Garrett and Comcare (Compensation)

[2022] AATA 4379

Garrett and Comcare (Compensation) [2022] AATA 4379 (16 December 2022)

Division:GENERAL DIVISION

File Number(s):     2021/7056          

Re:Stephen Garrett

APPLICANT

AndComcare

RESPONDENT

Decision

Tribunal:Member W Frost

Date:16 December 2022

Place:Canberra

The Tribunal varies the decision under review pursuant to subsection 43(1)(b) of the Administrative Appeals Tribunal Act 1975, as follows:

i.household services (for food preparation) and attendant care services are to be paid to Mrs Garrett under section 29A of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) at the rate of $57.58 per hour;

ii.attendant care services for transport assistance for Mr Garrett to attend medical appointments may be paid to Mrs Garrett when a support worker is not available, up to a maximum of 90 minutes per appointment, at the rate of $57.58 per hour; and

iii.Mr Garrett is entitled to compensation under subsection 16(6) of the SRC Act for three journeys to attend medical appointments exceeding 50 kilometres, being those on 13 April 2021, 24 August 2022 and 28 October 2022.

Any written submissions regarding the issue of costs in this proceeding pursuant to subsection 67(8) of the SRC Act may be given to the Tribunal by Comcare within 7 days of the date of this decision and by Mr Garrett within 21 days of this decision.

....................[SGD]........................................

Member W Frost

Catchwords

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – section 29A – compensation payable for catastrophic injury – household and attendant care services – gardening – whether the Applicant’s wife can be paid compensation – reasonable hourly rate of compensation - decision under review varied

Legislation
Administrative Appeals Tribunal Act 1975, ss 34D, 42C, 43
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 29A, 62, 67

Cases

Garrett and Comcare [2015] AATA 801
Haberfield v Department of Veterans Affairs (2002) 121 FCR 233

REASONS FOR DECISION

Member W Frost

16 December 2022

INTRODUCTION

1. The Applicant, Mr Stephen Garrett, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision of the Respondent, Comcare, regarding the amount of compensation payable for household and attendant care services obtained as a result of a catastrophic injury under section 29A of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

2. The Tribunal has considered all of the documents filed by the parties, including those filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the parties’ written and verbal submissions in this proceeding.

3. For the reasons that follow, the Tribunal varies the decision under review.  

   ISSUES

4. The issues for the Tribunal to decide in this proceeding are:

   (a)what is a reasonable hourly rate for the provision of household and attendant care services by Mrs Garrett to her husband?;

   (b)does Mr Garrett reasonably require an additional two hours per week of household services for gardening?;

   (c)can Mrs Garrett be compensated for providing gardening services?;

   (d)can Mrs Garrett be compensated for her time assisting Mr Garrett to attend medical appointments?; and

   (e)if so, is compensation payable under section 16 or 29A of the SRC Act?

   BACKGROUND

5. On 16 June 2010, Mr Garrett made a claim to Comcare for workers’ compensation following a stroke he suffered on 16 May 2010 at a hotel in Sydney where he was staying for work.[1] At the time, Mr Garrett was employed in the Australian Public Service at the Executive Level 2 with the then Department of Education, Employment and Workplace Relations.[2]

   [1] Exhibit 1, pages 25-41.

   [2] Ibid.

6. In July 2010, Comcare made a determination denying liability to pay compensation to Mr Garrett under section 14 of the SRC Act for his ‘intracerebral hemorrhage’.[3] Comcare was not satisfied that Mr Garrett’s condition arose out of, or in the course of, his employment in order to establish liability under the SRC Act.[4]

   [3] Ibid., pages 42-43.

   [4] Ibid., page 47.

7. In August 2010, following Mr Garrett’s request for reconsideration, Comcare revoked its determination and found that Mr Garrett had, around the time of his stroke, travelled to Sydney to participate in ‘Austrade business for two weeks with approval from your employer, DEEWR’ and that this travel was ‘to undertake an activity at the direction of the Commonwealth’.[5] Therefore, Comcare accepted that Mr Garrett’s stroke ‘arose out of or in the course of Commonwealth employment’.[6]

   [5] Ibid., pages 46-48.

   [6] Ibid., page 48.

8. Between May 2011 and March 2014, Comcare made a number of determinations under the SRC Act regarding the payment of compensation to Mr Garrett for household and attendant care services.[7]

   [7] Ibid., pages 61-66; 90-92; 100-101; 132-137; 150-151; 160-165; 184-185; 192-194; and 204-207.  

9. In August 2014, Comcare affirmed its determination of 22 May 2014, which denied Mr Garrett’s claim for compensation for household and attendant care services provided by his wife, Mrs Garrett, from November 2012 to April 2014.[8]

   [8] Ibid., pages 225-226 and 239-243.

10. In September 2014, Comcare accepted liability to pay compensation to Mr Garrett for, among other things, attendant care services under the SRC Act up to and including 31 October 2014.[9]

    [9] Ibid., pages 252-253.

11. On 20 October 2014, Comcare informed Mr Garrett of its intention to undertake a reconsideration on its own motion under section 62 of the SRC Act regarding its decision from 2010 which accepted liability to pay compensation in respect of his stroke, or what it described as ‘cerebral embolism and visual field defects (bilateral)’.[10]

    [10] Ibid., pages 254-256.  

12. In November 2014, following its reconsideration, Comcare decided that its decision in 2010 accepting liability under the SRC Act to pay compensation to Mr Garrett for his stroke was incorrect.[11] Comcare was satisfied that the Department ‘neither “directed”, “encouraged”, “induced” or “requested” you to travel for the purposes of your employment with them’ and that Mr Garrett’s stroke ‘occurred while you were not on duty and/or were not performing the inherent duties in respect of your employment’.[12] Comcare determined that Mr Garrett’s condition did not occur as a result of either an activity he was induced or encouraged to undertake by the Department or as a result of being at the hotel in Sydney.[13]

    [11] Ibid., pages 257-260.

    [12] Ibid., page 258.

    [13] Ibid., page 259.

13. In October 2015, following an application by Mr Garrett, the Tribunal, differently constituted, in Garrett and Comcare [2015] AATA 801, set aside Comcare’s decision and in substitution made a decision that Comcare was liable under the SRC Act to pay compensation to Mr Garrett in respect of his stroke.[14] The Tribunal found that Mr Garrett’s stroke arose in the course of his employment because his employer ‘induced or encouraged him to engage in the activity he was engaged in at the time of the stroke’, being showering in his hotel room during an ‘interval or interlude in an overall period or episode of work’.[15] Comcare has subsequently accepted Mr Garrett’s further claims for compensation in relation to additional conditions arising from the stroke he suffered in 2010.[16]

    [14] Ibid., pages 261-276.

    [15] Ibid., page 275. 

    [16] Ibid., pages 348-351, 356-357 and 578.

14. In April 2016, Comcare made three determinations that compensation was payable to Mr Garrett under the SRC Act for household services.[17] Comcare determined that the maximum hourly rate payable for household services was $46.75 (including GST).[18]

    [17] Ibid., pages 285-292.

    [18] Ibid., pages 285 and 288.

15. In May 2016, the Tribunal, differently constituted, made a decision pursuant to an agreement between Mr Garrett and Comcare, under subsection 42C(1) of the AAT Act, which set aside Comcare’s reviewable decision of 1 August 2014 and in substitution relevantly decided that Comcare was liable to pay compensation in specific lump sum amounts for household and attendant care services provided by Mrs Garrett in three separate periods from November 2012 to April 2014.[19] This decision did not set out an hourly rate payable for these services.

    [19] Ibid., pages 293-294. 

16. In 2017, Mrs Garrett received payments for household services provided to her husband at the hourly rates of $50.60 for weekdays, $59.40 for Saturdays, $69.30 for Sundays and $86.90 for public holidays.[20]

    [20] Exhibit 9.

17. On 25 October 2018, Comcare determined that Mr Garrett would receive household and attendant care services under the SRC Act up to and including 1 November 2019.[21] These entailed two hours for cleaning services per week; three hours per month for gardening services, except during Winter; one hour per day for attendant care services; and transport assistance to and from approved medical and treatment appointments.[22] Following a requested reconsideration, Comcare affirmed this determination on 28 November 2018.[23] Mr Garrett applied to the Tribunal for review of this decision.

    [21] Exhibit 1, pages 405-407.

    [22] Ibid., page 405.

    [23] Ibid., pages 417-420.

18. On 13 December 2019, pursuant to an agreement between Mr Garrett and Comcare as to the terms of a decision reached in the course of an alternative dispute resolution process and after the requisite seven days had passed following lodgement of the parties’ terms of agreement under section 34D of the AAT Act, the Tribunal varied the reviewable decision of 28 November 2018, such that from 25 October 2018 to the date of the decision on 13 December 2019, Mr Garrett was entitled to the following compensation under section 29A of the SRC Act:

    (a)two hours per week for household help (cleaning);

    (b)three and a half hours for household help (food preparation);

    (c)fourteen hours per week for attendant care services;

    (d)one and a half hours per week for gardening services; and

    (e)transport assistance to attend medical appointments.[24]

    [24] Exhibit 1, pages 452-454.

19. In that 2019 decision, the Tribunal also noted the parties’ agreement that Mr Garrett acknowledged and agreed that: compensation for household help (food preparation) and attendant care services may be paid to Mrs Garrett at a rate of $50.00 per hour; she is not a registered provider for the services and cannot charge GST; the agreed rate of $50.00 per hour applies to weekends, after hours and public holidays; compensation for household help (cleaning), gardening services and transport assistance is to be paid to a GST-registered provider only; and the one and a half hours of gardening services incorporates ‘all aspects of the gardening, including hedge trimming, lawn mowing, weeding and clean up’.[25] The Tribunal further noted the parties’ agreement that:[26]

    On receipt of the Tribunal’s decision, the Respondent will issue a further determination providing compensation for household and attendance care services under section 29A of the SRC Act, for the period from 1 November 2019 to 1 November 2020. That determination will provide for compensation under section 29A of the SRC Act, at the rates determined by the Tribunal above. On or before 1 November 2020, Comcare will consider whether there are any changed circumstances which may impact upon the Applicant’s requirement for household services and/or attendant care services.

    The Respondent will pay for up to 2 hours per week for household help (cleaning services) performed by the Applicant’s wife, up to the date of the Tribunal’s decision. From the date of the Tribunal’s decision, the Respondent will only pay for household help (cleaning services) performed by an external cleaning service. The Respondent will not accept claims for household help (cleaning services) performed by the Applicant’s wife from the date of the Tribunal decision.

    [25] Ibid., page 453.

    [26] Ibid.

20. On 13 July 2021, Comcare determined under section 29A of the SRC Act that Mr Garrett was entitled to compensation up to and including 1 July 2022, in the same terms as both the Tribunal’s decision from 2019 and a subsequent determination of Comcare from 13 January 2020, except that one extra hour, from three and a half hours to four and a half hours, was also allocated for ‘household help (food preparation)’.[27] Comcare stated that, in accordance with the Tribunal’s 2019 decision, compensation for household help (cleaning), gardening services and transport assistance will be paid to a GST-registered provider only.[28] Additionally, Comcare noted that the allocated gardening services incorporates all aspects of the gardening.[29] Comcare also stated that:[30]

    As per the AAT Decision, compensation for household help (food preparation) and attendant care services may be paid by Comcare to Mrs Garrett, at a rate of $50.00 per hour. We acknowledge that it was requested by Mrs Garrett at the meeting on 10 June 2021 that this rate be reviewed.

    Comcare consider the current rate of $50.00 per hour continues to be reasonable. As part of this determination, Comcare have completed a market scan and have considered the comments of Ms Perks, in which she advised that the hourly rate paid to a person completing such services can be up to $28 per hour. It is also acknowledged and agreed that Mrs Garrett is not a registered provider for the services and cannot charge GST. It is also acknowledged and agreed that the rate of $50.00 per hour applies to weekend, after hours and public holidays.

    [27] Ibid., pages 572-574.

    [28] Ibid., page 573.

    [29] Ibid.

    [30] Ibid.

21. On 18 August 2021, following Mr Garrett’s request for reconsideration, Comcare affirmed its determination regarding the payment of compensation for household and attendant care services.[31] It found that $50.00 per hour was a reasonable rate and referred to Ms Perks’ home assessment report of 22 December 2020 which, Comcare stated:[32]

    reported companies charge from $21.00 to $28.00 per hour for care services, with an average of $23.00 per hour. On this basis, I find that the $50.00 per hour is above current commercial rates, but is reasonable for your circumstances given the previous agreement between you and Comcare on this rate.  

    [31] Ibid., pages 575-580.

    [32] Ibid., page 579.

22. In September 2021, Mr Garrett applied to the Tribunal for review of Comcare’s decision.[33]

    [33] Ibid., pages 9-12.

    LEGISLATION

23. Subsection 4(1) of the SRC Act provides that:

    (a)‘attendant care services’, in relation to an employee, means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the employee; and

    (b)‘household services’, in relation to an employee, means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee’s household.

24. Section 29A of the SRC Act, regarding compensation for ‘household services’ and ‘attendant care services’ obtained as a result of a catastrophic injury, provides as follows:

    Household services

    (1) If, as a result of a catastrophic injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances.

    (2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare must, in making such a determination, have regard to the following matters:

    (a) the extent to which household services were provided by the employee before the date of the catastrophic injury and the extent to which he or she is able to provide those services after that date;

    (b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;

    (c) the extent to which household services were provided by the persons referred to in paragraph (b) before the catastrophic injury;

    (d) the extent to which the persons referred to in paragraph (b), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the catastrophic injury;

    (e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).

    Note: In relation to paragraph (2)(d), see also subsection 4(2).

    Attendant care services

    (3) If, as a result of a catastrophic injury to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances.

    (4) Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare must, in making such a determination, have regard to the following matters:

    (a) the nature of the employee’s catastrophic injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;

    (b) the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;

    (c) the extent to which it is reasonable to meet any wish by the employee to live outside an institution;

    (d) the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;

    (e) any assessment made in relation to the rehabilitation of the employee;

    (f) the extent to which a relative of the employee might reasonably be expected to provide attendant care services.

    Note: In relation to paragraph (4)(f), see also subsection 4(2).

    Recipient of compensation

    (5) An amount of compensation payable by Comcare under subsection (1) or (3) is payable:

    (a) if the employee has paid for the household services or attendant care services, as the case may be—to the employee; or

    (b) in any other case—to the person who provided those services.

    (6) If Comcare pays an amount under subsection (1) or (3) to a person who provided household services or attendant care services to an employee, the payment of the amount is, to the extent of the payment, a discharge of the liability of the employee to pay for those services.

    WITNESS

    Ms Nicole Perks – Occupational Therapist

25. On 22 December 2020, Ms Perks provided a report to Comcare following her in-home assessment of Mr Garrett.[34] In her report, Ms Perks relevantly responded to Comcare’s questions as follows:[35]

    [34] Ibid., pages 523-532.

    [35] Ibid., pages 529-531.

    1. How much attendant care does Mr Garrett currently require? Please include tasks and hours per day / week.

    The current 2 hours per day is, in my opinion, sufficient to assist with necessary personal care (supervision with showering, transfers and assist with dressing).

    During the assessment, both Mr and Mrs Garrett noted the increased risk of falls, which is a particular concern when Mrs Garrett is away from the home, working during the day.

    Unless the Cleaner or Gardener is on the property, or if Mr Garrett has an appointment to attend, he is on his own. While Mr Garrett doesn’t necessarily require 24 hour supervision, some additional safety measures might be worthwhile considering. e.g. A personal alarm (live life alarms)

    2. From your observation and questioning please indicate the capacity of Mrs Garrett to safely administer attendant care to Mr Garrett?

    At present, Mrs Garrett is capable of assisting with attendant care. While Mr Garrett requires the use of ambulatory aids / grab rails etc, he remains able to transfer mostly independently. Should his mobility / transfer independence decline, it is likely Mr Garrett will require professional assistance and additional assistive equipment.

    3. Does Mr Garrett require an attendant carer to provide transport and support to and from medical appointments? Please make note of the specific activities which require assistance, with respect to all the appointments attended, and advise whether a dedicated carer is required e.g. assistance with dressing at hydrotherapy, accessing stairs etc.

    Yes, a Carer / support person is required for all / any appointments outside the home. Mr Garrett’s mobility is significantly compromised. He is unable to transfer / ambulate without aids, he cannot stand / walk for more than a few minutes at a time and due to his decreased mobility / balance and strength is at risk of fall. This falls risk is increased when outside his home, navigating public spaces, step up / down etc.

    4. Current approval for cleaning is 2 hours per week. Is this reasonable? If an increase is requested, please provide justification for the increase.

    2 hours of Cleaning per week is reasonable and does not need to be increased. There are three adults living in the home and while Mr Garrett is not able to assist with domestic tasks, Mrs Garrett and her adult daughter (23) are certainly capable of completing a general tidy, spot cleaning etc as required. I note there are 3 hours per week funded by Comcare for cooking, in addition to the Cleaning support.

    5. Current approval for gardening is 1.5 hours per week, is this reasonable? Please make note of the specific tasks to be managed. Please justify any change to the current service provision. Assuming 1.5 hours continues, would there be an issue with determining 3 hours per fortnight, noting that Mrs Garrett has advised difficulty in getting a gardener for 1.5 hours per week?

    Yes, this is reasonable. I would support fortnightly services for 3 hours, rather than 1.5 weekly. It might even be worthwhile considering monthly services in the autumn / winter months. This could be anywhere from 4-6 hours, depending on the maintenance required at the time of the visit. (This reduction in frequency, may minimize the issues with Gardeners cancelling / re-scheduling visits).

    6. Please review meal preparation requirements for Mr Garrett and advise of time required to meet Mr Garrett’s needs. Please justify any change to the time currently considered reasonable. Are there any meals Mr Garrett could prepare for himself?

    The time currently provided (3.5 hours per week) is sufficient. Mrs Garrett completes all main meal preparation. Mrs Garrett will often cook for several hours on a weekend to make sure there are ready meals available for Mr Garrett during the week. Mr Garrett is capable of prepping very small / light meals. I.e. Re-heat a meal or retrieve a meal from the fridge. His inability to stand unaided, reduced balance / standing tolerance as well as his left sided hemiplegia severely limit him from participating in regular meal preparation.

    …

    9. Are you able to advise what hourly rate a person undertaking care duties, in the ACT, would be paid? Noting, not what a company would charge, but what the person doing the duties would receive?

    From my understanding, this can vary between companies and can also be based on experience / qualifications etc. Pay rates look to vary from $21 per/hr to 28 per/hr, with the average around $23 per hr. [emphasis in original]

1. Ms Perks also gave evidence at the Tribunal hearing. She confirmed that the purpose of her assessment of Mr Garrett at his home in December 2020 was to review the services being provided and to assess whether they remained reasonable and appropriate. Ms Perks told the Tribunal that her assessment focused on the impact of Mr Garrett’s diagnosis on his daily living, such as personal care, domestic tasks, gardening, transport and community access. That is, his capacity and functioning in relation to activities of daily living. Ms Perks spoke to both Mr and Mrs Garrett for her assessment. She reviewed the household, attendant care and other services then being received by Mr Garrett and recommended no change to the number of allocated hours being provided.

2. Ms Perks told the Tribunal that her recommendation from 2020 regarding gardening services was based on the size of the Garrett’s garden and what was required for its maintenance, noting that Mr Garrett had been predominantly responsible for this task. Ms Perks told the Tribunal she did not consider it was reasonable to provide an additional two hours per week of gardening services to sweep paths and undertake watering, because these are not tasks a commercial gardener would be employed to complete. Ms Perks added that if gardening services were reduced in frequency during the winter months there would be ample hours to perform these additional requested tasks if Mrs Garrett or another family member could not complete them. She also said that watering was not an overly physically demanding or skilful task and this was not ‘ever’ factored into a recommendation for the provision of gardening services.

3. Ms Perks confirmed the evidence in her report that the hourly rate payable to a person undertaking care services in the ACT was between $21 and $28, with an average of $23 per hour. Ms Perks told the Tribunal that these rates had ‘not significantly’ changed, but they varied on weekends and public holidays; it was ‘still around the higher end at $28 per hour’ and various care agencies pay their staff at rates ‘around this figure’.

   contentions

   Mr Garrett

4. Mr Garrett contended that the rate of compensation paid to his wife under the SRC Act for household and attendant care services should be equivalent to the commercial rates published by ‘Absolute Home Care’ and ‘DUO/Life Without Barriers’, less the Goods and Services Tax (GST) component.[36] In his application for review, Mr Garrett stated that the Tribunal decision in May 2016 decided that the payment rates to be applied were ‘DUO’s rate at that time’.[37] In this regard, Mr Garrett requested:

   [36] Ibid., pages 12-15.  

   [37] Ibid., page 9.

   (a)  payment for household and attendant care services at the hourly rates published by ‘DUO/Life Without Barriers’, as follows:

   i.$58.80 per hour between Monday to Friday (6am-8pm);

   ii.$72.77 per hour between Monday to Friday (8pm-12pm);

   iii.$86.57 per hour on Saturday;

   iv.$105.13 per hour on Sunday; and

   v.$128.30 per hour on a Public Holiday;

   (b) an additional two hours per week of household services for watering the garden and sweeping the paths around the house;

   (c) that Mrs Garrett be compensated for providing gardening services when a commercial gardener is not available to provide these services;

   (d) compensation for attendant care services provided by Mrs Garrett in transporting Mr Garrett to and from medical appointments; and

   (e) retrospective payments of the difference in the rate of payment between the hourly rate determined by ‘Comcare Melbourne’ and the hourly rate determined in Comcare’s determination of July 2021, which was affirmed following reconsideration.

   Comcare

5. Comcare contended that:[38]

   (a)the decision under review by the Tribunal should be varied, such that $57.10 per hour, rather than $50 per hour as previously determined, is a reasonable rate of compensation for household and attendant care services to be paid to Mrs Garrett under section 29A of the SRC Act;

   (b)on the basis of the available evidence, Mr Garrett does not reasonably require an additional two hours per week of household services for gardening;

   (c)it is not reasonable to compensate Mrs Garrett for providing gardening services. The reason these services are compensable is because these are services it is not reasonably expected Mrs Garrett should have to perform;

   (d)on the basis of the available evidence, Mr Garrett does not reasonably require attendant care services for the entire time Mrs Garrett takes to attend medical appointments with him. However, when a support worker is not available, it is reasonable in the circumstances for Mrs Garrett to be compensated for up to 90 minutes for each appointment that she assists her husband to attend and this aspect of the decision under review should be varied accordingly; and

   (e)under subsection 16(7) of the SRC Act, compensation is not payable for travel to medical appointments unless the travel is to attend compensable medical appointments and is a distance greater than 50 kilometres. As such, the majority of journeys for which compensation has been claimed are not compensable. However, Mr Garrett is entitled to compensation under subsection 16(6) of the SRC Act for his attendance at one appointment on 13 April 2021, which journey was 52 kilometres.

   [38] Respondent’s Statement of Facts, Issues and Contentions dated 3 June 2022, page 8.

   CONSIDERATION

   What is a reasonable hourly rate for the provision of household and attendant care services by Mrs Garrett?

6. As set out above in these reasons, Mr Garrett sought compensation under the SRC Act for the provision by his wife of household and attendant care services in accordance with the hourly rates published by ‘DUO’, part of the ‘Life Without Barriers’ group, which charges clients for community care services across Australia.[39] That is, Mr Garrett sought compensation at a commercial hourly rate, less the applicable GST component. While Comcare contended that the average hourly rate from DUO’s published commercial fee for service rates on weekdays, weekends and public holidays was $71.87, it was in fact $121.71, because Comcare had not factored into its calculation, set out at Annexure A of its Statement of Facts, Issues and Contentions dated 3 June 2022, the weekday rate from 8pm to 12pm of $72.77 across 250 weeknights in 2021, totalling $18,192.50 for one hour each day over 250 weeknights.[40]

   [39] Exhibit 1, page 15.

   [40] See Respondent’s Statement of Facts, Issues and Contentions dated 3 June 2022, pages 8-9 and Annexure A.

7. However, despite this omission, the rates charged to clients by DUO take into account the organisation’s commercial costs or ‘overheads’, such as insurance, training, leasing of premises, marketing and advertising. These are costs not borne by Mrs Garrett in the provision by her of household and attendant care services for her husband. In this regard, these hourly commercial rates are not paid directly to the employee performing the service; they receive a portion of these rates as salary. As a result, the Tribunal is not satisfied that the commercial rates published by DUO for care services and charged to clients, less GST, are ‘reasonable in the circumstances’ to be paid to Mrs Garrett, as required under section 29A of the SRC Act.

8. The Tribunal finds that a reasonable rate of compensation payable for household and attendant care services provided by Mrs Garrett is in line with an hourly rate set out in the Social, Community, Home Care and Disability Services Award 2010 (Award).

9. Comcare contended that, prima facie, a reasonable rate of remuneration was the amount that a disability support worker would receive per hour if they were providing care to Mr Garrett.[41] In this regard, Comcare referred to Ms Perks’ report from December 2020, in which she considered that the hourly rate for a person undertaking care duties in the Australian Capital Territory would be between $21 per hour and $28 per hour, ‘with the average around $23’.[42] Comcare accepted that this rate may have increased in the subsequent two year period, including due to increases in the Consumer Price Index (CPI), the COVID-19 pandemic and ongoing staff shortages in the community services sector.[43] As a result, Comcare referred to the ‘careers’ section on the website of the organisation, ‘Life Without Barriers’ and identified that ‘permanent part time disability support worker roles are remunerated at between $25.00 and $29.00 per hour’.[44] However, the three advertisements from May 2022 provided by Comcare in this proceeding listed pay rates between $25.68 per hour and $29.12 per hour, plus penalty rates in accordance with the Award.[45] These advertisements for permanent part time disability support workers in Sydney and Melbourne did not list in the ‘Skills & Experience’ category the requirement to hold any vocational education certificate or other relevant qualification.[46]

   [41] Ibid., page 9.

   [42] Exhibit 1, page 531.

   [43] Respondent’s Statement of Facts, Issues and Contentions dated 3 June 2022, page 9.

   [44] Ibid.

   [45] Ibid., Annexure B.

   [46] Ibid.

10. Additionally, under the Award, the minimum weekly wages for social and community services employees at ‘level 1’, ‘pay point 1’, being the lowest pay point in level 1, is $880.10 per week, where the ‘ordinary hours of work will be 38 hours per week or an average of 38 hours per week’.[47] The equivalent hourly rate is $23.16. None of the three pay points in level 1 have an hourly rate of more than $25, with the highest, pay point 3, being $940.90 per week equalling $24.76 per hour.[48] The Award states that a person employed as a social and community services employee level 1 ‘works under close direction and undertakes routine activities which require the practical application of basic skills and techniques. They may include the initial recruit who may have limited relevant experience’.[49] Based on the evidence before the Tribunal, it is not satisfied that compensation to Mrs Garrett under section 29A of the SRC Act should be payable at the level 1 rate under the Award.

    [47] See the Award at paragraphs 15 and 25.1, accessed on 21 November 2022.

    [48] Ibid., paragraph 15.1.

    [49] Ibid., Schedule B at B.1.1.

11. The Award also notes that an equal remuneration order applies to certain employees and sets out a table with the equal remuneration rates for those applicable social and community services employees.[50] This commences with a level 2 employee under the Award and results in the current hourly wage being $30.46 at pay point 1.[51] The Award further notes that graduates with a three year degree that undertake work related to the responsibilities under level 3 ‘will commence at no lower than pay point 3’ and that graduates with a four year degree that undertake work related to the responsibilities under this level ‘will commence at no lower than pay point 4’.[52] These hourly rates are $35.77 and $36.50, respectively.[53] Social and community services employees up to and including those at level 5 under the Award will work under general direction from senior employees.[54] The current hourly rate for a level 5 employee at pay point 3, being the highest pay point at that level, is $46.95.[55] An employee at level 6 under the Award will operate under limited direction from senior employees or management and, at pay point 3, receive an hourly rate of $51.24.[56] The Award states that a level 7 employee ‘will operate under limited direction and exercise managerial responsibility for various functions within a section and/or organisation or operate as a specialist, a member of a specialised professional team or independently’.[57] The hourly rates of pay in level 7 range from $53.07 to $55.29.[58] The table for equal remuneration rates for applicable social and community services employees sets out the hourly rates of pay for employees up to and including level 8, being between $57.58 and $59.85.[59] Employees at this level are ‘subject to broad direction from senior officers and will exercise managerial responsibility for the organisation’s relevant activity’.[60] In addition, these employees ‘may be identified by the significant independence of action within the constraints of organisational policy’, with their responsibilities including undertaking duties ‘of innovative, novel and/or critical nature with little or no professional direction’.[61]

    [50] Ibid., paragraph 15.8.

    [51] Ibid.

    [52] Ibid., Schedule B at B.3.1.

    [53] Ibid., paragraph 15.8.

    [54] Ibid., Schedule B. For example, see B.5.1.

    [55] Ibid., paragraph 15.8.

    [56] Ibid., paragraph 15.8 and Schedule B at B.6.1.

    [57] Ibid., Schedule B at B.7.1.

    [58] Ibid., paragraph 15.8.

    [59] Ibid.

    [60] Ibid., Schedule B at B.8.1.

    [61] Ibid., Schedule B at B.8.2.

12. Paragraph 28 in the Award concerns overtime and penalty rates, noting again that the ordinary hours per week are 38. Relevantly, for part-time and casual employees, the Award provides as follows:[62]

    All time worked by part-time or casual employees in excess of 38 hours per week or 76 hours per fortnight will be paid for at the rate of time and a half for the first 2 hours and double time thereafter, except that on Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.

    [62] Ibid., paragraph 28.1(b).

13. Contrary to Comcare’s submission, the Award does not provide for penalty rates or overtime on Saturdays at time and a half.[63] It provides for time and a half for the first two hours after the ordinary 38 hours per week and for double time after those first two hours and on Sundays, with double time and a half paid on public holidays.

    [63] Respondent’s Statement of Facts, Issues and Contentions dated 3 June 2022, page 9.

14. Comcare contended that it appeared that a permanent part-time disability support worker employed at the higher end of the pay bracket by DUO or Life Without Barriers would receive remuneration at the following rates, averaging $36.79 per hour:[64]

    (a)$29.00 per hour on weekdays;

    (b)$43.50 per hour on Saturday;

    (c)$58.00 per hour on Sundays; and

    (d)$72.50 per hour on public holidays.

    [64] Ibid., page 9 and Annexure A.

15. As detailed above in these reasons, the higher of the two hourly rates of pay advertised by Life Without Barriers was $29.12, not $29 as set out by Comcare. Therefore, noting that there is no specific provision in the Award for overtime on Saturdays, applying the rate of $29.12 to 250 weekdays in 2021, overtime on 49 Sundays (at double time, equalling $58.24 per hour) and 16 public holidays (at double time and a half, equalling $72.80 per hour) equals an average hourly rate of $30.95 (being $11,298.56 divided by 365 days).

16. However, there is a degree of imprecision in these calculations and their practical application to this proceeding because, most importantly, under the Award overtime is only paid after 38 hours of work per week (or after 76 hours per fortnight). Mr Garrett presently receives compensation for household and attendant care services provided by his wife for 18.5 hours per week. That is, not more than 38 hours per week, although these services are provided at all times of the week, including weekends and public holidays.[65] Accordingly, these average hourly rates of pay can, at most, only provide a useful guide when determining what is reasonable in the circumstances under the SRC Act.

    [65] Exhibit 1, page 572.

17. Comcare contended that, on its face, an hourly rate of $36.79, being what it considered to be the average hourly rate for a permanent part-time disability support worker employed at the higher end of the pay bracket by DUO or Life Without Barriers, is a reasonable rate of compensation for household and attendant care services under section 29A of the SRC Act.[66] Despite this submission, Comcare accepted that, in Mr Garrett’s particular circumstances, a higher rate of compensation is likely to be reasonable.[67] Specifically, Comcare submitted that the complexity of Mr Garrett’s conditions and the fact that care is provided by his wife (who is not supported by a commercial organisation) warrant a higher rate of compensation.[68] Comcare contended that a reasonable rate of compensation for household and attendant services ‘should fall somewhere between the rates requested by the Applicant (average of $71.87 per hour) and those that a disability support worker would otherwise be entitled to (average of $36.79 per hour)’ and that there should be a single hourly rate of compensation, not variable based on the day services are provided, because Mrs Garrett is not entitled to penalty or overtime rates under the Award.[69] While the Tribunal considers that the Award is a useful benchmark for determining the reasonable rate of compensation for Mrs Garrett in this application, her provision of services and compensation does not fall under the terms of the Award. Therefore, for the avoidance of doubt, and unlike as provided under the Award, Mrs Garrett is not entitled to the minimum two-hour payment for any work performed in relation to household and attendant care services under the SRC Act.

    [66] Respondent’s Statement of Facts, Issues and Contentions dated 3 June 2022, page 9.

    [67] Ibid.

    [68] Ibid.

    [69] Ibid., page 10.

18. In addition, compensation is payable under the SRC Act for household services and attendant care services that an employee obtains and reasonably requires as a result of an injury. This compensation is therefore directed to the injured employee. It is not directed to the person providing the household and attendant care services. In this way, the SRC Act does not provide for such a person to be compensated for the loss of remuneration arising from caring for an injured employee, here being a spouse; it is to compensate for services obtained by the employee that they reasonably require as a result of that injury, payable in an amount ‘as Comcare considers reasonable in the circumstances’. However, the Tribunal acknowledges the difficult circumstances arising from Mr Garrett’s injury in 2010, including for himself, his wife and family. Mrs Garrett left full time employment to care for her husband and she currently works on a casual basis, subject to Mr Garrett’s daily care requirements and the ability to secure an external carer.

19. While the decision under review from August 2021 affirmed Comcare’s determination that an hourly rate of $50 was reasonable compensation, Comcare submitted to the Tribunal that an hourly rate of $57.10 applicable on all days of the year was a reasonable rate of compensation to be paid to Mrs Garrett for services provided in accordance with section 29A of the SRC Act.[70] To this end, Comcare stated that this proposed higher amount of compensation accounted for CPI increases since the amount of $50 per hour was agreed by the parties and resulted in the Tribunal’s consent decision of 2019, and ‘as a show of good faith’ to Mr Garrett.[71] Comcare also contended that this amount ‘is more than $20 per hour higher than the rate Mrs Garrett would be expected to receive if she had been employed as a permanent part-time disability support worker over the course of 2021, based on the above calculations’.[72]

    [70] Respondent’s Statement of Facts, Issues and Contentions dated 3 June 2022, page 10.

    [71] Ibid. see also Exhibit 1, pages 452-454.

    [72] Ibid.

20. As submitted by Comcare, an hourly rate of $57.10 is ‘consistent with the price limit for assistance with self-care activities (standard weekly rate) set by the National Disability Insurance Scheme Pricing Arrangements and Price Limits (2021-2022) in effect at the time the reviewable decision was made’ in August 2021.[73] In this regard, the Tribunal again notes that the decision under review affirmed Comcare’s determination regarding the payment of compensation under section 29A of the SRC Act up to and including 1 July 2022.[74] The NDIS Price Guide for 2020-2021 listed the price limit for an hourly rate of ‘Assistance with Self-Care Activities – Standard – Weekly Daytime’ as being $55.47.[75]

    [73] Ibid.

    [74] Exhibit 1, pages 572 and 578.

    [75] See NDIS Price Guide 2020-21, valid from: 1 March 2021 (Version 2.1 – Publication Date: 2/03/2021).

1. Having regard to all of the above, and the evidence before the Tribunal, it is satisfied that a reasonable hourly rate of compensation payable to Mrs Garrett under section 29A of the SRC Act is $57.58. This is the current hourly rate for a level 8 social and community services employee at pay point 1 under the Award, although it also includes the equal remuneration order applicable to those employees.[76] This rate reflects the current hourly rate for a social and community services employee at the highest level under the Award, albeit at pay point 1 of 3 in level 8.[77]

   [76] See the Award at Ibid.

The Tribunal has determined that this is a reasonable rate of compensation in light of the Award rates, Mrs Garrett’s qualifications and experience, her important caring work without supervision, but also without management responsibility or the commercial costs associated with operating an organisation, the previously agreed rate of $50 per hour from 2019, the subsequent CPI increases and Mrs Garrett being compensated for 18.5 hours work, thereby not exceeding the normal 38 hours of work set out under the Award, which would attract the applicable overtime rates. For completeness, the Tribunal notes that it has not accepted Comcare’s proposed hourly rate, although the ultimate difference between that hourly rate and the one determined by the Tribunal to be reasonable is slight, because the Tribunal could not tie Comcare’s proposed amount to a strong evidential foundation given the above analysis, although the reasonableness of that suggested amount is not impugned given the Tribunal’s ultimate finding on this matter.

Accordingly, the Tribunal will vary the decision under review and decide that the hourly rate of $57.58 to be applied on all days of the year (that is, weekdays, weekends and public holidays) is a reasonable rate of compensation to be paid to Mrs Garrett for household and attendant care services under section 29A of the SRC Act.

Does Mr Garrett reasonably require an additional two hours per week of household services for gardening?

As detailed above in these reasons, Mr Garrett presently receives compensation for three hours of gardening services per fortnight.[78] He sought review of Comcare’s decision and requested an additional two hours gardening per week to sweep the pathways and water the garden.

[78] Exhibit 1, page 572.

Comcare’s determination from July 2021 provided that gardening services incorporated ‘all aspects of the gardening, including hedge trimming, lawn mowing, weeding, watering and clean up’.[79] In December 2020, Ms Perks, the occupational therapist, opined that one and a half hours per week (or three hours per fortnight) was ‘reasonable’.[80] She confirmed this view in her evidence at the Tribunal hearing.

[79] Ibid., page 573.

[80] Ibid., page 530.

At the hearing, Mr and Mrs Garrett referred to the daily requirement to sweep the pathways around the house due to the mess made by kangaroos and birds and to enable Mr Garrett to mobilise around this area without a potential fall. Additionally, they told the Tribunal that watering was required. However, there was no evidence before the Tribunal to support these contentions or to find that further assistance in the form of gardening services to that recommended by Ms Perks following her in-person assessment in late 2020 is reasonably required pursuant to section 29A of the SRC Act.

Moreover, while these additional gardening tasks fall within the range of gardening contemplated by the three hours per fortnight presently allocated to Mr Garrett, they could also reasonably be expected to be completed by Mrs Garrett in the normal maintenance of a garden, pursuant to subsection 29A(2) of the SRC Act, and as supported in Ms Perks’ occupational assessment.[81]

[81] Ibid., page 524.

Accordingly, for these reasons, the Tribunal finds that Mr Garrett does not reasonably require an additional two hours of household services for gardening under section 29A of the SRC Act.

Can Mrs Garrett be compensated for providing gardening services?

The Tribunal’s 2016 decision, made pursuant to an agreement by the parties, compensated Mrs Garrett for household services when a private service provider was not available to deliver those services during three discrete periods of time.[82] The Tribunal’s 2019 decision, again made following agreement between Mr Garrett and Comcare, noted their agreement that gardening services, among others, would be paid to a GST-registered provider.[83] The decision under review from August 2021 also approved compensation for gardening services to be paid to a GST-registered provider. Mr and Mrs Garrett told the Tribunal of their difficulties finding a gardener to perform this service, however there was no evidence to corroborate this submission.

[82] Ibid., pages 293-294.

[83] Ibid., page 453.

The Tribunal is not satisfied that it is reasonable in the circumstances for Mrs Garrett to be compensated for providing gardening services. Comcare determined that Mr Garrett reasonably requires three hours of gardening assistance per fortnight, because it was not reasonable to expect Mrs Garrett to provide more intensive gardening services that a commercial gardener would undertake and that an external provider should perform these tasks and be compensated pursuant to the SRC Act. This decision was also made in accordance with the recommendations of the occupational therapist, Ms Perks. Based on the evidence, the Tribunal finds that it is not reasonable to expect Mrs Garrett to provide these household services and therefore not reasonable in the circumstances for her to be compensated for them under the SRC Act. Moreover, the additional gardening tasks of sweeping the paths and watering the garden, as the Tribunal has detailed above, are light tasks that it is reasonable to expect Mrs Garrett would undertake without compensation under the SRC Act. That is, they are not reasonably required pursuant to section 29A of the Act. Accordingly, the Tribunal finds that Mrs Garrett cannot be compensated for providing gardening services under section 29A of the SRC Act.

Can Mrs Garrett be compensated for her time assisting Mr Garrett to attend medical appointments?

There was no evidence before the Tribunal to demonstrate that Mr Garrett requires attendant care services to attend medical appointments. Under subsection 4(1) of the SRC Act, set out above, these services are those that ‘are required for the essential and regular personal care of the employee’. In Haberfield v Department of Veterans Affairs (2002) 121 FCR 233 (Haberfield), the Federal Court of Australia considered that:[84]

Not all services that are desirable, or even necessary for the personal care of an employee are within the definition. The qualifying words in the definition make it clear that the services must be required for the employee’s essential and regular personal care. This is an important qualification. [emphasis in original]

[84] At [25].

The Court in Haberfield found that there was no error of law in the finding, as a matter of fact and on the available evidence, that the applicant did not require someone to drive him to shops, medical appointments and social occasions for his ‘essential and regular personal care’ and that they therefore did not constitute ‘attendant care services’ under the SRC Act.[85]

[85] At [70] and [74].

While Ms Perks’ evidence in this proceeding was that Mr Garrett’s mobility is limited and he requires aids for ambulation and transfers, there was no evidence that attendant care services are required by Mr Garrett when travelling to, or in attendance at, medical appointments. As a result, the Tribunal is not satisfied that Mrs Garrett’s attendance at these appointments is ‘required for the essential and regular personal care’ of Mr Garrett. On the available evidence, it appears that Mrs Garrett’s attendance is only required to assist with transporting Mr Garrett to and from medical appointments and not throughout the appointment itself. In accordance with Haberfield, the Tribunal finds that Mr Garrett does not reasonably require attendant care services from Mrs Garrett during his attendance at medical appointments.

Moreover, section 16 of the SRC Act provides for an employee to be compensated for transport to and from medical appointments. This supports the position that transport to and from medical appointments alone does not constitute ‘attendant care services’ under section 29A of the SRC Act.

However, Comcare acknowledged the evidence of Ms Perks to the effect that Mr Garrett requires assistance attending medical appointments as a direct result of his accepted conditions and that the decision under review decided it was reasonable for him to receive attendant care services ‘for transport assistance for attending medical appointments’, although that compensation was not payable to Mrs Garrett.[86] Therefore, Comcare contended that, on the available evidence, it is reasonable in the circumstances for Mrs Garrett to be compensated for assisting her husband to attend medical appointments for up to a maximum of 90 minutes per appointment. That is, for the time she spends directly assisting Mr Garrett in attending the appointment (including transferring into and out of the home, driving to the appointment, transferring into and out of the appointment location, and returning home) when no support workers are available to do so. The Tribunal accepts this submission regarding compensation for Mrs Garrett in these circumstances. However, as a result of the Tribunal’s earlier finding, any time spent by Mrs Garrett with her husband during a medical appointment is not compensable under section 29A of the SRC Act. She may choose to do so, as his wife, but the Tribunal is not satisfied that this is an attendant care service for the purpose of the SRC Act.

Is compensation for journeys to attend medical appointments payable under section 16 of the SRC Act?

[86] Respondent’s Statement of Facts, Issues and Contentions dated 3 June 2022, page 13.

As noted above, compensation for travel to attend medical treatment is set out under section 16 of the SRC Act, which relevantly provides that Comcare is not liable to pay compensation under subsection (6) unless ‘the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres’.

During the proceeding, Mr Garrett provided a document setting out the travel provided by Mrs Garrett for him to attend medical appointments.[87] A second document with further recent travel was provided to the Tribunal and Comcare at the hearing.[88] Three of the journeys listed in the two documents were claimed to have exceeded 50 kilometres, being those to and from the Canberra Hospital on 13 April 2021, 24 August 2022 and 28 October 2022.[89] Accordingly, the Tribunal finds that Comcare is liable to pay compensation under subsection 16(6) of the SRC Act for these three journeys exceeding 50 kilometres.

[87] Exhibit 8.

[88] Exhibit 10.

[89] Exhibit 8 and 10.

Should Mr Garrett receive retrospective payments of the difference between hourly rates of pay?

Having regard to the Tribunal’s above findings, and for the avoidance of doubt, the Tribunal finds that Mr Garrett should not receive retrospective payments of the difference between the hourly rate of pay determined in 2016 and that determined by Comcare in 2021. The Tribunal is limited in this proceeding to reviewing the decision of Comcare from 18 August 2021, which affirmed its determination of 13 July 2021 to provide compensation under the SRC Act up to and including 1 July 2022. For the reasons set out above in this decision, the Tribunal has found that the reasonable hourly rate of compensation for Mrs Garrett to provide household and attendant care services pursuant to section 29A of the SRC Act is $57.58.[90]

[90] Exhibit 1, pages 572 and 578.

CONCLUSION

While this decision is not the one sought by Mr and Mrs Garrett, the Tribunal has found that it is the correct or preferable decision on the available evidence in this proceeding. The Tribunal also acknowledges that Mrs Garrett performs an invaluable role as, largely, Mr Garrett’s sole carer. She has undertaken this task since his stroke in 2010 and it has resulted in her inability to participate in full-time employment, together with the attendant psychological, physical and financial toll on her and their family. In this regard, Mr Garrett and the Australian community are fortunate to have a person such as Mrs Garrett continue to perform her role as his carer, largely in an unpaid capacity, especially considering the information presented in this proceeding regarding the shortages of workers in the ‘care economy’.[91]

[91] Exhibit 11.

DECISION

The Tribunal varies the decision under review pursuant to subsection 43(1)(b) of the Administrative Appeals Tribunal Act 1975, as follows:

(a)household services (for food preparation) and attendant care services are to be paid to Mrs Garrett under section 29A of the SRC Act at the rate of $57.58 per hour;

(b)attendant care services for transport assistance for Mr Garrett to attend medical appointments may be paid to Mrs Garrett when a support worker is not available, up to a maximum of 90 minutes per appointment, at the rate of $57.58 per hour; and

(c)Mr Garrett is entitled to compensation under subsection 16(6) of the SRC Act for three journeys to attend medical appointments exceeding 50 kilometres, being those on 13 April 2021, 24 August 2022 and 28 October 2022.

Under subsection 67(8) of the SRC Act, where the Tribunal makes a decision varying a reviewable decision in a manner favourable to the claimant, here Mr Garrett, the Tribunal may, subject to the section, order that the costs of the proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority, here being Comcare.

When this issue was raised by the Tribunal at the hearing, Comcare submitted that there be no order made by the Tribunal regarding costs in this proceeding in circumstances where Mr Garrett was not legally represented before the Tribunal and therefore likely incurred no costs. Mr Garrett did not make any submissions regarding costs. In light of the Tribunal’s decision varying the decision under review, it will receive any submissions from Comcare regarding the issue of costs in this proceeding within seven days of this decision and within 21 days from Mr Garrett and subsequently proceed to make an order in relation to section 67 of the SRC Act.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

...........................[SGD].............................................

Associate

Dated: 16 December 2022

Date(s) of hearing:	17 November 2022
Date final submissions received:	3 June 2022
Applicant:	In person, with Mrs Pat Garrett
Counsel for Respondent:	Ms Josie Dempster
Solicitor for Respondent:	Mr Stuart Marris, Sparke Helmore