Fairhall and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1323
•16 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1323
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/792
GENERAL ADMINISTRATIVE DIVISION ) Re BERYL FAIRHALL Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr EK Christie, Member Date16 May 2007
PlaceBrisbane
DecisionThe decision under review is affirmed. This means that Mrs Fairhall’s application for review is unsuccessful. The respondent has raised the possibility of an Act of Grace payment for Mrs Fairhall based on her factual circumstances.
...................[Sgd].......................
Member
CATCHWORDS
SOCIAL SECURITY – carer allowance – qualification – Adult Disability Assessment Tool – possibility of an Act of Grace Payment
Social Security Act 1991 (Cth) s 954
Haidar v Secretary, Department of Social Security (1998) 157 ALR 359
WRITTEN REASONS FOR DECISION
16 May 2007 Dr EK Christie, Member 1. This is an application for review of the decision (of the Social Security Appeals Tribunal) (the “SSAT”) made on 14 September 2006 that decided to reject Mrs Fairhall’s claim for carer allowance made on 6 June 2006.
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1] and the various exhibits lodged by the parties.
3. The applicant represented herself at the hearing. The respondent was represented by Mr R Hamilton, a Departmental Advocate.
Statutory Requirements and Case Law
4. The relevant statute is the Social Security Act 1991 “(the Act”). Section 954 sets out the relevant facts which must be proved in order for Mrs Fairhall to succeed in her application:
“954 Qualification for carer allowance –caring for a disable adult in a private home of both the adult and the carer
954(1) A person is qualified for carer allowance for a disable adult (the care receiver) if:
(a) the care receiver is an Australian resident; and
(b)the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and
(c)the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and
(d)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and
(f)the person is an Australian resident.”
5. Mr Hamilton acknowledged at the commencing of the hearing that all requirements for entitlement for a carer allowance under section 954(1) of the Act had been satisfied by Mrs Fairhall, except for section 954 (1)(c).
Issues Before The Tribunal
6. In relation to section 954(1)(c) of the Act the only question to decide was whether the assessment and rating under the Adult Disability Assessment Tool had given a total score of at least 30 – including at least a score of 12 under the “professional questionnaire”.
FACTS BEFORE THE TRIBUNAL
7. Mrs Fairhall agreed that the following summary of information provided to the SSAT gave a review of the situation (T2 Folios 4, 5):
·Her granddaughter came to live with her on 30 May 2006. She was sent to live with Mrs Fairhall because she was in a dangerous environment in Victoria.
·Her granddaughter’s mother abused her and her granddaughter has an AVO against her mother. Her granddaughter was sent to live with another family and the son abused her. Her granddaughter became pregnant and had a miscarriage. The lady her granddaughter was staying with, also took her money.
·Her granddaughter is 19 years of age but has the mental age of about 8 to 10 years. She is able to shower herself, dress herself and feed herself although she is very slow. She could make herself a simple sandwich but does not do any cooking although Mrs Fairhall is trying to teach her. She cannot tell the exact time but does have a sense of approximate time.
·Her granddaughter is attending a literacy course and Mrs Fairhall helps her with homework. She can travel on the bus on her own if necessary. However, Mrs Fairhall usually accompanies her. Mrs Fairhall said that her granddaughter does not understand “stranger/danger”. She is too trusting and timid.
·Mrs Fairhall said that her main role was a supervisory one. Her granddaughter was on medication for some medical conditions and is usually good at remembering to take this. However, Mrs Fairhall occasionally has to prompt her.
·Mrs Fairhall said she had been advised by disability services to claim carer allowance.
8. The reason Mrs Fairhall found herself in the position of becoming the carer for her granddaughter was that the Department of Human Services (Victoria) asked her to fill in and take care of her granddaughter because of the paramount need to ensure her personal safety and care – a problem if she had continued to live in the dangerous environment in Victoria. In agreeing to the Department of Human Services request to act as a carer for her granddaughter that morning, Mrs Fairhall found herself acting in this role when the Department sent her granddaughter by air, from Victoria, arriving at 6pm the same day.
9. Her granddaughter remained in her care from 29 May 2006 to the time she returned to live with her father in Victoria on 16 December 2006.
10. Mrs Fairhall first completed the questionnaires for the Adult Disability Assessment Tool on 7 June 2006. That is, at the time she first applied for a carer allowance. Based on her answers the following scores were obtained:
Part 1 (Division A): 11½ points
Part 1 (Division B –
“Professional Questionnaire”): 3½ pointsTOTAL 15 points
11. Mrs Fairhall completed a further questionnaire on 20 January 2007. Based on her answers, the following scores were obtained:
Part 1 (Division A): 20 points
Part 1 (Division B
“Professional Questionnaire”) 8½ pointsTOTAL 28½ points
12. Mrs Fairhall explained the discrepancy between the first and second questionnaires arose because she had not seen her granddaughter for six years and was unaware, in June 2006, of the actual extent of her problems. This lack of knowledge, in June 2006, limited her in answering the questions.
13. Over the next six months, as she got to know her granddaughter better, she had a better picture of her problems, when she next completed the questionnaire in January 2007. However, Mrs Fairhall said that she had some difficulty completely understanding some of the questions in the questionnaire in Part 1 Division B, as they did not always fully describe her granddaughter’s problems in terms of how she “usually manages”. In this situation, she “filled in” [the questionnaire] as best she could.
Consideration of the Issues and Findings of Fact
14. In this application for review, I consider all the evidence and information before me as at the date of the hearing “to the extent those facts are relevant to the decision…by reference to the subject matter, scope and purpose of the legislation…”
[See Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 at 367]
15. Firstly, I find Mrs Fairhall to be a credible witness who has been completely honest in all information that she has provided to Centrelink and in the evidence she has given to the Tribunal.
16. The only finding I can make on the proved facts before me is that on 20 November 2007, Mrs Fairhall did not satisfy the requirements of section 954(1)(c) of the Social Security Act1991 in having a Adult Disability Assessment score of at least 30 points.
17. The only obstacle for Mrs Fairhall to succeed in receiving carer allowance was Part 1 (Division ‘B’) of the “Professional Questionnaire”, in which the assessed score was only 8½ points. The requirement was at least 12 points. If Mrs Fairhall had reached a score of at least 12 points, then the total point score would have been 32 points and she would have met all of the requirements to be eligible for carer allowance.
18. Mrs Fairhall has given an explanation of some degree of uncertainty in completely understanding some of these questions (see para 13) which may have contributed to an underestimate of her score for Part 1 (Division B).
19. This means Mrs Fairhall’s is not entitled to receive carer allowance over the period 30 May 2006 – 16 December 2006, as a matter of law.
20. It is also unfortunate for Mrs Fairhall that the Social Security Act does not give me any discretion to make any other decision based on the traumatic events which led to her being placed in the situation she found herself in. That is, she had to care for her disabled granddaughter to protect her from the serious personal harm situation that existed had her granddaughter remained in Victoria.
21. However, these facts cannot be applied to the decision that must be made under the Social Security Act as they are not relevant to the questions of law set out in section 954. In addition, the Social Security Act does not give me any discretion to consider them in my decision, as a matter of law.
Decision
22. For all of the above reasons, the Tribunal affirms the decision under review. This means that Mrs Fairhall’s application for review is unsuccessful.
23. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The Social Security Act gives me no other option than to make such a decision. There is no discretion in the Social Security Act for me to make any other decision, as a matter of law, for Mrs Fairhall.
Tribunal Observations
24. Therapeutic jurisprudence (Wikipedia, 2007[1]) is a term first used by two United States Professors, David Wexler and Professor Bruce Winick in 1987. It represents a new perspective for studying the role of lawyers and judges and how the legal process may, or may not, produce beneficial consequences for individuals involved in the legal process. Therapeutic jurisprudence has been applied in an effort to reframe the role of the lawyer. It conceives lawyers “practicing with an ethic of care and heightened interpersonal skills, who value the psychological well being of the [parties] as well as their legal rights and interests, and to actively seek to prevent legal problems through creative… problem-solving approaches.”
[1] ‘Therapeutic Jurisprudence’, 15/02/2007, Wikipedia, < (March 2007).
25. In this context, the Tribunal makes the following observations. Firstly, Mr Hamilton has raised the possibility of an Act of Grace payment by the Commonwealth. In so doing, Mr Hamilton has adopted a creative problem-solving approach to Mrs Fairhall’s legal problem.
26. Finance Circular Number 2006/05 (Australian Government, Department of Finance and Administration) sets out, amongst other things, the principles and application for Act of Grace payments by the Commonwealth Government agencies under the Financial Management and Accountability Act 1997 [“FMA Act”].
27. The following materials in the Finance circular give an overview of Act of Grace payments.
“13. The ace of grace powers under section 33 of the FMA Act allow the Finance Minister and his or her delegates to authorise one-off and periodic payments to individuals or other bodies (such as companies) in special circumstances.
14. The act of grace mechanism:
· may be appropriate in relation to losses that have occurred as a direct result of:
a. the involvement of an agency of the Australian Government, where that involvement had an unintended outcome in the claimant’s circumstance; or
b. the application of Commonwealth legislation, where the application has had an unintended, inequitable or anomalous effect on the claimant in his or her particular circumstances (including in cases where the agency has acted correctly in administering the legislation involved);
· may operate in such a way that conditions are attached to payments;
· is used where the paramount obligation to the claimant is moral, rather than legal (see paragraph 20 of attachment B: Act of Grace Payments);
· is generally confined to claims related to FMA Act agencies and the legislation they administer;
· can cover economic and non-economic losses sustained; and
· is not applicable in circumstances where:
a. the proposed payments could be construed as literally supplementing other payments that have explicitly been ‘capped’ by Parliament in other legislation; or
b. in some cases where there is legislation that sets conditions for particular benefits, and the proposed act of grace payments would be applied to all or most beneficiaries on an ongoing basis, or for a significant period of time; or
c. the proposed payments could be construed as creating a scheme that would replace case-by-case consideration of the merits of specific claims.”
28. Attachment B of the Finance Circular describes the Act of Grace power, and the principles and processes that underlie decisions to accept or decline requests.
“The nature of the act of grace power
8. subsection 33(1) of the FMA Act provides:
‘If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability): one or more payments of an amount specified in the authorisation (or worked out in accordance with the authorisation): periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during the period specified in the authorisation (or worked out in accordance with the authorisation)’…
Which types of claims are generally examined in the act of grace context and what are the exceptions to the ‘rules’?
21. The conditions under which act of grace claims are approved can broadly be characterised as where the Minister or delegate considers the Australian Government has a moral obligation, as opposed to a legal obligation, to provide redress because:
· the direct role of an agent/agency of the Australian Government has caused an unintended or inequitable result for the individual or entity concerned;
· the application of Commonwealth legislation has produced a result that is unintended, anomalous, inequitable or otherwise unacceptable in a particular case (including in cases where the agency has acted correctly in administering the legislation involved); or
· the matter is not covered by legislation or specific policy, but it is considered desirable in a particular case to apply the benefits of the relevant provisions prospectively.
22. The act of grace power is used generally as a last resort, where there is no other remedy that could be used effectively to compensate a person for a loss he or she has suffered (or would suffer were an act of grace payment not approved).
23. As a general rule, claims will not be examined in the act of grace context until a claimant has exhausted all other means available to him or her….”.
29. In relation to the Act of Grace policy, it is possible that the outcome of Mrs Fairhall’s application for review, as covered by the provisions of the Social Security Act, in her factual circumstances, may have led to a result that may be considered as an “unintended anomalous, inequitable, unjust or otherwise unacceptable result”. On consideration of the overall circumstances, it may even lead to a conclusion “that there is a moral obligation on the Commonwealth to make a payment”.
30. In order to pursue an Act of Grace Payment, Mrs Fairhall must decide whether, or not, to pursue an Act of Grace claim. In reaching such a decision, the following facts may be relevant for her application.
·The reasons Mrs Fairhall became the carer of her granddaughter (see paras 7, 8).
·It is significant that the Department of Human Services (Victoria) asked her to take on that role because of the crisis situation that existed for her granddaughter in Victoria.
·The score under the Adult Disability Assessment Tool was only marginally less than the threshold value required for carer allowance.
31. As Mr Hamilton stated, Mrs Fairhall “stepped into the breach” in a very short time following a request to do so by the Department of Human Service (Victoria). He said that it was “most unfortunate that her sacrifice had been disregarded”.
32. Mrs Fairhall acknowledged some difficulty in completely understanding some of the questions on the questionnaire she answered on 20 January 2007 – but she answered them all honestly as best she could (para 13). Mrs Fairhall has also been found to be an honest witness (para 15).
33. Independent statements verifying Mrs Fairhall’s predicament are in evidence before the Tribunal:
·Major R Walters, Commanding Officer, Salvation Army, Bundamba, 2 August 2006 (T13, Folio 21); and
·Ms E Richardson, Social Worker, Montague Continuing Education Centre, South Melbourne, Victoria, 21 August 2006 (T14, Folio 22).
34. I must emphasise that the Tribunal has no power whatsoever to order that an Act of Grace Payment be made to Mrs Fairhall. The process for such a payment is for Mrs Fairhall to make a claim to the Department for an Act of Grace payment and to request that the claim be assessed under the specified eligibility criteria. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but with the Minister for Finance or their appointee.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: ……………………………………
Personal AssistantDate of Hearing 10 May 2007
Date of Decision 10 May 2007
Date of written reasons 16 May 2007
The Applicant was self represented
For the Respondent Mr R Hamilton, Departmental Advocate
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