Gidley and Secretary, Department of Social Services (Social services second review)
[2018] AATA 2890
•14 August 2018
Gidley and Secretary, Department of Social Services (Social services second review) [2018] AATA 2890 (14 August 2018)
Division:GENERAL DIVISION
File Number: 2017/6244
Re:Kayla Gidley
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:14 August 2018
Place:Brisbane
The Tribunal affirms the decision under review.
..........................[sgd]........................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Carer Payment – whether satisfied qualification criteria – whether applicant providing “constant care” – applicant attending school – decision under review affirmed.
LEGISLATION
Adult Disability Assessment Determination 1999 (Cth)
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Cavanagh-Hans and Secretary, Department of Social Services [2017] AATA 687
Comcare v Drinkwater (2018) 158 ALD 244
Re Confidential and Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs (2010) 116 ALD 601
Halls v Secretary, Department of Social Services [2014] AATA 129
Hawkins and Secretary, Department of Social Services [2018] AATA 108
Johnson and Secretary of Families, Housing, Community Service and Indigenous Affairs (2008) AATA 875
Milne and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Smith; Secretary, Department of Social Services and (Social services second review) [2016] AATA 10
SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936
SECONDARY MATERIALS
Guide to Social Policy Law (2018)
REASONS FOR DECISION
Member D K Grigg
14 August 2018
INTRODUCTION
Miss Gidley is 18 years old. In 2010, Miss Gidley’s mother, Ms Nadine Murphy, sustained significant permanent injuries resulting from a car accident and is now a recipient of the disability support pension.[1] Since December 2016, when she was only 16 years old, Miss Gidley has provided daily care to her mother.[2]
[1] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions dated 4 May 2018 at para 1.
[2] Exhibit 1, T Documents, T7, page 42, Carer payment form dated 5 January 2017
On 29 December 2016 Miss Gidley contacted the Department of Human Services (“Centrelink”) regarding her intention to make a claim for a carer payment in relation to the care that she claimed to provide to her mother.[3] Miss Gidley’s application for the carer payment (“CP”) and carer allowance (“CA”) was lodged on 5 January 2017.[4]
[3] Exhibit 1, T Documents, T5, pages 26 – 27, Confirmation of intention to claim dated 29 December 2016.
[4] Exhibit 1, T Documents, T6, pages 28 – 39, Carer payment form completed by Miss Gidley dated 5 January 2017.
As part of her claim Miss Gidley completed an Adult Disability Assessment Tool which sets out the needs of the person requiring care. Miss Gidley indicated that she provided constant care to her mother at home and provided the following information about how well her mother manages her day-to-day care needs and how her mother behaves:[5]
[5] Exhibit 1, T Documents, T7, pages 40 – 46, Carer payment form dated 5 January 2017.
·she needs help from one person to move around the house
·she sometimes falls over indoors or outdoors
·she can move to and from a bed, chair, wheelchair and walking aids with some help
·she sometimes has difficulty seeing clearly
·she sometimes needs help or attention during the night
·she sometimes has a loss of bladder control or bowel control
·she needs some help using the toilet
·she needs a lot of help to shower or bathe
·she needs some help to dress herself
·she needs some help to look after her grooming
·she needs some help to manage her medication
·she usually remembers things that happened each day
·she sometimes shouts, screams or threatens other people
·she sometimes laughs or cries without apparent reason
·she sometimes deliberately harms herself
·she often has unusual, inappropriate or repetitive behaviours
At the time of Miss Gidley’s application for the CP she was about to commence year 12. Miss Gidley advised Centrelink that she would only be attending school on Mondays, Tuesdays, Thursdays and Fridays between 9am and 2:30pm each day and that therefore her time away from her mother would only be a total of 23 hours per week.[6]
[6] Exhibit 1, T Documents, T8, page 47, Statement by Miss Gidley dated 5 January 2017.
On 11 January 2017 Centrelink requested that Miss Gidley provide verification of the current school timetable on or before 25 January 2017.[7]
[7] Exhibit 1, T Documents, T9, pages 48 – 49, Letter from Centrelink to Miss Gidley dated 11 January 2017.
CA was granted to Miss Gidley from 4 January 2017.[8]
[8] Exhibit 1, T Documents, T 10, pages 50 – 51, Letter from Centrelink to Miss Gidley dated 11 January 2017.
On 24 January 2017 Miss Gidley provided Centrelink with her high school flexible arrangement timetable which the school indicated was designed to support Miss Gidley completing school while she continues on the role of caring for her mother. The information confirmed that Miss Gidley would attend school four days a week, staying at home on Wednesdays, and that she would be provided with extra support.[9]
[9] Exhibit 1, T Documents, T 11, pages 53 – 58, A flexible arrangement assessment and approval.
In February 2017 Miss Gidley and her mother were assessed by a social worker for the purposes of determining Miss Gidley’s CP application (“Care Assessment”). The information used by the social worker to prepare their assessment was collected via a telephone interview with Miss Gidley. The Care Assessment report provides as follows:[10]
[10] Exhibit 1, T Documents, T 12, pages 59 – 63, Social worker, carer payment/allowance assessment dated 6
February 2017.
·Ms Murphy has pain down her right leg, numbness in right foot and chronic back pain and needs assistance with daily activities such as vacuuming, sweeping, cleaning, mopping, making beds, cooking and laundry;
·Ms Murphy is able to attend to her own personal care needs with showering, washing hair, general grooming and dressing and needs minimal assistance with shoes;
·Ms Murphy lacks concentration and has mood swings and compulsive behaviours such as hand washing and counting;
·Ms Murphy does not require assistance with lifting or transferring of her body weight and can balance her own body weight with the use of a walking stick;
·Ms Murphy has no issues driving her car;
·Ms Murphy may be assisted by her daughter in and out of the shower twice a week but independently completes her personal care need tasks;
·Ms Murphy can prepare her own breakfast and lunch while the daughter prepares the evening meal;
·Miss Gidley has no restrictions and can socialise with her friends and when she does her younger sister and brother are home with her mother; and
·Ms Murphy continues to have responsibility for the younger children.
The Care Assessment concluded that Miss Gidley qualified for the CA but not the CP and explained as follows (emphasis added):[11]
…it is unclear whether the amount of care provided can be deemed to be significant on a daily basis [because Miss Gidley]… is at school four days per week…[And when she is] at school her mother is able to manage at home. Although [Miss Gidley] stated, when her mother is in pain she remains in bed. [Miss Gidley’s] mother is able to manage her own personal care needs. [Miss Gidley] assists with household chores and shopping. Limited supervision provided when mother gets in/out of shower, however mother is able to dress and groom herself independently.
…
[Miss Gidley] is providing care to her mother on a daily basis and [the social worker] supports granting of carer allowance. The care she provides has not prevented [Miss Gidley] from attaining her child development milestones. However it does not appear that significant other care with personal care needs, supervision, administering of medication etc … is provided. According to information provided, her mother uses a walking stick and is able to attend to her own personal care needs, be left alone whilst [Miss Gidley] is at school and continues to have the capacity and concentration to drive a car. No services are required to attend the home for her mother while she is at school. The assistance [Miss Gidley] provides her mother with household chores, cooking, cleaning, shopping etc… would be expected of any 16-year-old as part of the family unit.
[11] Exhibit 1, T Documents, T 12, page 62, Social worker, carer payment/allowance assessment dated 6 February
2017.
As a result of the Care Assessment, Centrelink rejected Miss Gidley’s application for the CP. Centrelink explained in its letter to Miss Gidley on 8 February 2017 that it had determined that Miss Gidley did not provide “constant care” to her mother and that: [12]
“constant care means you provide personal care on a daily basis that is at least equal to a normal working day, except when using temporary cessation of care (respite) provisions. The care may include supervising or monitoring the care receiver”.
[12] Exhibit 1, T Documents, T 13, pages 64 – 65, Letter from Centrelink to Miss Gidley dated 8 February 2017.
Centrelink contends that Miss Gidley did not satisfy the qualification criteria set out in section 198 of the Social Security Act 1991 (Cth) (“the Act”).
Claims History
Miss Gidley requested a review of Centrelink’s decision to reject her CP claim by an Authorised Review Officer (ARO) on 15 February 2017.[13] The ARO affirmed the decision to reject the CP on 21 February 2017.[14]
[13] Exhibit 1, T Documents, T 14, page 66, Letters from Centrelink to Miss Gidley dated 15 February 2017.
[14] Exhibit 1, T Documents, T 15, pages 67 – 71, Decision of Authorised Review Officer and notes dated 21 February
2017.
Miss Gidley then sought a further review by the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 23 May 2017.[15] However, the SSCSD rejected Miss Gidley’s claim and affirmed the ARO’s decision on 13 September 2017.[16]
[15] Exhibit 1, T Documents, T 16, pages 72 – 74, Application to the SSCSD dated 23 May 2017.
[16] Exhibit 1, T Documents, T2, pages 3-6, SSCSD’s Decision and Reasons for Decision dated 5 October 2016.
On 21 October 2017 Miss Gidley lodged an application for review of the SSCSD’s decision by the General Division of this Tribunal.[17]
[17] Exhibit 1, T Documents, T1, pages 1 – 4, Application for Review dated 21 October 2017.
ISSUES FOR DETERMINATION
The issue is whether Miss Gidley was eligible for CP pursuant to section 198 of the Act.
RELEVANT LEGISLATION
Section 198 of the Act prescribes that to qualify for CP for a disabled adult (a care receiver) the following requirements, relevantly, must be met (“Section 198 Requirements”):-
(a)the person must personally provide constant care for the disabled care receiver (section 198(2)); and
(b)if the person is the only person providing the constant care, the care receiver must have been assessed and rated under the Adult Disability Assessment Tool (ADAT) and given a score under that assessment tool of at least 25, being a score calculated on the basis of a professional questionnaire score of at least 10 (section 198(2)(a)(i)); and
(c)the care must be provided in a private residence that is the home of the care receiver (section 198(3)); and
(d)the carer and care receiver must be Australian residents (sections 198(4)-(5)).
Adult Disability Assessment Tool (ADAT)
The ADAT is found in the Adult Disability Assessment Determination 1999 (Cth) (“Determination”). Part 1 of Schedule 1 of the Determination sets out the questionnaire that must be completed by the applicant for CP (“Applicant Questionnaire”) and provides a series of questions concerned with identifying the care receiver’s difficulties and care needs. Part 2 of Schedule 1 of the Determination is a questionnaire to be completed by the care receiver’s treating health professional (“Professional’s Questionnaire”). Schedule 2 of the Determination sets out how the answers to the Professional’s Questionnaire are to be rated.
The minimum score that must be achieved from the Professional’s Questionnaire for Miss Gidley to qualify for the CP is 10 points.[18]
[18] Section 198(2)(a)(i), the Act.
Timing of Assessment
Pursuant to the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), whether a person is qualified for the CP is assessed at the date of the claim unless the person becomes qualified within 13 weeks of making the claim. Therefore, Miss Gidley has to satisfy the Tribunal that she qualified for the CP on the date of her claim, being 5 January 2017, or within 13 weeks thereof, that is by 6 April 2017 (“Qualification Period”).[19]
[19] Sections 41 and 42 Administration Act, Schedule 2, clauses 3 and 4, Administration Act.
REVIEW OF CP ELIGIBILITY
Ms Murphy’s ADAT score was 77 with a total professional questionnaire score of 29, which is higher than the required score of 10.[20] Therefore the criteria in section 198(2)(a)(i) of the Act are satisfied.
[20] Exhibit 1, T Documents, T 19, pages 81-86 and 89, Centrelink records.
There is no dispute that Ms Murphy is a disabled adult and that Miss Gidley also meets the requirements in sections 198(3) and (4) of the Act.
Is Miss Gidley providing “constant care” to her mother? [section 198(2)(a)]
What is in dispute is the level of care Miss Gidley provides her mother and whether it meets the “constant care” requirement of section 198(2)(a) of the Act.
What is meant by “constant care”?
The Act does not define what constitutes “constant care”. However “care” is defined in section 197 of the Act as including “attention and supervision”.
“Constant” is defined in the Macquarie Online Dictionary as:
1. invariable; uniform; always present.
2. continuing without intermission.
3. regularly recurrent; continual; persistent.
4. steadfast, as in attachment; faithful.
The Tribunal has considered the meaning of “constant care” on numerous occasions. For example:
(a)In Milne and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 (“Milne”) Senior Member McCabe, as he then was, said (at [7]) (emphasis added):
The requirement that the ‘care’ be ‘constant’ means that the person must be acting as a carer on a more-or-less full-time basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer’s payment: the benefit is paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.
(b)In Hawkins and Secretary, Department of Social Services [2018] AATA 108, Senior Member Bill Stefaniak AM RFD said (at [16]):
Generally, as a rule of thumb, if a person is working 25 hours plus a week that person is unlikely to be providing constant care.
(c)In Re Confidential and Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs (2010) 116 ALD 601, Senior Member K S Levy RFD said (at [24]) the word constant “implies a much higher than normal level of attention, supervision and personal support” and (at [23]) referred to Re Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145 where Senior Member L Hastwell said (at [38]) that “constant care” implies “something more than episodic or spasmodic” care.
(d)In Johnson and Secretary of Families, Housing, Community Service and Indigenous Affairs (2008) AATA 875 the Tribunal found, at [31]:
…that to qualify for carer payment, a carer need not be providing care every waking moment of the day
The Tribunal in Smith; Secretary, Department of Social Services and (Social services second review) [2016] AATA 10 helpfully summarised how the concept of “constant care” has been treated in this Tribunal, at [41]:
The concept of “constant care” is not statutorily defined. It has been said (i) to require more than the ordinary activities involved in parental care and household management, (ii) to involve the provision of that care “on a more or less fulltime basis” and in the sense of “devoting a substantial part of each day” to looking after the person, and (iii) possibly to be satisfied by a requirement for “constant supervision” (having regard to the inclusive definition of “care” in SSA 1991 s 197(1): Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 at [7], [8] and [11] (SSA 1991 s 198). Decisions of this Tribunal have held that a requirement for “constant care”
(a) was not satisfied where the care recipient was regularly attending a normal school: Secretary, Department of Social Security and Retallack [1998] AATA 424 (Downs Sydnrome [sic] child attending school five days a week - SSA 1991 ss 197 &198(2AA)
(b) was not satisfied where the care recipient had reasonably regular school attendance, was cared for by another parent for a substantial number of days a year, and the carer undertook regular, causal, part time employment: Lemon v Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 305 (9 year old child with cystic fibrosis - SSA 1991 s 197)
(c) was not satisfied where the vision impaired adult care recipient was in full time employment, but substantially dependent on the carer for assistance with the activities of daily living and, ordinary household tasks, and the carer also provided regular travel assistance: Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2010] AATA 551; (2010) 116 ALD 601 (2010) (SSA 1991 s 198)
(d) was not satisfied where the carer spent about five hours per day, five to six days a week, and provided companionship as well as some assistance with activities of daily living, to an adult care recipient who otherwise lived alone: Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582 (osteoarthritic elderly mother - SSA 1991 s 198)
(e) was not satisfied where the carer did not live with the adult care recipient and, despite visiting the property and making regular enquiries about the welfare, had no direct contact with her: Del Vecchio and Secretary, Department of Families, Community Services And Indigenous Affairs [2007] AATA 1145 at [37] (SSA 1991 s 198)
(f) was not satisfied where the carer predominantly assisted his mother with the activities of daily living and performed a range of ordinary household tasks, but was able to attend school full time, and had only reduced his hours of school attendance in order to attempt to establish his carer payment qualification: James v Secretary, Department of Social Services [2014] AATA 802 (17 year old whose mother had a significant spinal injury as a result of a motor vehicle accident - SSA 1991 s 198)
(g) was satisfied, even though the care recipient only lived with the carer five days a week and usually attended a special needs program each day, where the attendance was frequently irregular and the carer had to supervise the recipient very closely at home: Halls v Secretary, Department of Social Services [2014] AATA 129 (21 year old incommunicate person with Downs Syndrome - SSA 1991 s 198)
(h) was satisfied where the care recipient required careful monitoring of fluid intake, extensive medication, and regular treatment and surgical procedures (as well as assistance in recovering from them), despite the fact the “ongoing and permanent” care need (apart from monitoring and supervision) was neither daily nor required for significant periods of the day: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harvey [2009] AATA 835; (2009) 112 ALD 216 especially at [26] to [30] & [47] (husband with history of very regular, extensive and ongoing treatment for basal cell carcinoma, and renal failure requiting [sic] thrice weekly home dialysis)
While these decisions can be useful, none of them are determinative of the issue before this Tribunal. Further, the Tribunal is not bound by previous decisions. However, consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision”.[21]
[21] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.
The Secretary referred the Tribunal to extracts from the Guide to Social Policy Law (“the Guide”) which is used by the Department. The Tribunal is not bound to apply the Guide but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[22]
[22] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
The Guide defines “Constant care” in section 1.1.C.310 — as follows (emphasis added):
A carer is said to provide constant care if they personally provide care on a daily basis for a 'significant period' during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing CP is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities. This includes circumstances where the carer or care receiver are absent from the care situation for part of the day, but the intensity of the care required and provided during the remainder of any 24 hour period is such that it roughly equates to a normal working day.
Miss Gidley submits that guidance can also be taken from section 198AC(4) of the Act. That provision concerns whether a carer payment should cease based on a temporary reduction in the amount of care. If the carer temporarily ceases to provide constant care in order to undertake education for example, provided that cessation does not exceed 25 hours per week, the person will not cease to be qualified for CP (sometimes referred to as the “25 hour rule”[23]). Miss Gidley contends that, given she was not attending to her education for more than 25 hours per week, she can be considered to have been providing “constant care” to her mother.
[23] James v Secretary, Department of Social Services [2014] AATA 802, at [42].
Section 198AC(4) of the Act provides:
(4) If:
(a) a person is qualified for carer payment because the person is personally providing constant care for a care receiver or care receivers; and
(b) the person temporarily ceases to provide that care in order to undertake training, education, unpaid voluntary work or paid employment; and
(c) the cessation does not exceed 25 hours per week;
the person does not cease to be qualified for the carer payment merely because of the cessation.
Miss Gidley also referred to section 3.6.4.70 of the Guide which provides:
"if a carer ceases care for more than 25 hours per week to, participate in training, education employment or voluntary work qualification should be reviewed as they may no longer satisfy the constant care criteria."
Miss Gidley contends that it follows, in the corollary, that a carer may “cease care for more than 25 hours per week” yet still provide 'constant care'”.[24]
[24] Exhibit 2, Applicant’s Submissions dated 4 May 2018, para 69.
The Secretary disputes Miss Gidley’s submission regarding whether guidance can be taken from section 198AC(4) of the Act and submits that the 25 hour rule is only relevant to cessation of payments, not to initial eligibility.
Based on the ordinary meaning of the word “constant” and consistent with previous Tribunal decisions, the Tribunal finds that “constant care” in section 198(2)(a) of the Act requires continuing and regular care, rather than intermittent or spasmodic care,[25] for a significant period each day, on the equivalent of a full-time basis. In terms of the application of the 25 hour rule, it is tempting to find that an applicant provides constant care if they are only absent from the care recipient for 25 hours or less. However, there is no time qualification provided for in section 198(2)(a) of the Act. If constant care was intended to be defined based on the number of hours of care provided, the Act would have specifically provided for that.
[25] Kedwell and Secretary to the Department of Social Security [1987] AATA 323; Reidy and Secretary, Department of Social Security [1986] AATA538; Re Del Vecchio and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2007] AATA 1145.
Level/Nature of Care provided by Miss Gidley
The following evidence was before the Tribunal:
(a)An affidavit of Miss Gidley affirmed 4 May 2018;[26]
(b)A further affidavit of Miss Gidley affirmed 21 June 2018;[27]
(c)An affidavit of Ms Murphy affirmed 4 May 2018;[28]
(d)A joint statement of Miss Gidley and Ms Murphy dated 5 February 2018;
(e)Two reports from Ms Murphy’s General Practitioner, Dr Chiang-Leng Teo.[29]
[26] Exhibit 5, Affidavit of Ms Gidley dated 4 May 2018.
[27] Exhibit 6, Supplementary Affidavit of Ms Gidley dated 21 June 2018.
[28] Exhibit 4, Affidavit of Ms Murphy dated 4 May 2018.
[29] Exhibit 7, Secretary’s Statement of Facts, Issues and Contentions dated 8 March 2018, Attachment A; Exhibit 8, Secretary’s Amended Statement of Facts, Issues and Contentions dated 18 May 2018, Annexure A.
Miss Gidley and Ms Murphy also gave evidence before the Tribunal.
Miss Gidley states in her affidavits that:
·She has two siblings aged 8 and 13;
·During year 12 she did not attend school on Mondays or after 11:30am on Wednesdays;[30]
[30] Exhibit 5, Affidavit of Ms Gidley dated 4 May 2018 at para 11.
·While she was at school she was contactable by her mother at all times on her mobile and was allowed to leave school if her mother was having a bad day;
·Her daily care of her mother begins at 6:30am when she would assist her mother out of bed and in the shower. She then dresses her mother, after which she wakes her siblings and helps them dress and get ready for school which includes making their breakfast and preparing their lunches. She also prepares her mother’s lunch;
·Around 8:30am she helps her mother to the car and stays with her while dropping off her siblings at school as her mother does not like to drive alone and sometimes cannot drive;
·Around 2:30pm her mother picks her up from school and together they go to collect her siblings. The siblings are dropped at home and she then goes to the shops to buy food with her mother. Her mother’s obsessive compulsive condition means that fresh food must be purchased every day. Her mother is unable to shop alone because of her disability and anxiety. Shopping usually takes an hour and then they return home;
·At 5:00pm she prepares dinner for the family;
·Between 7:00pm and 10:00pm she does general cleaning and checks on her mother every 10-15 minutes to see if she is comfortable or needs anything and keeps her company;
·Between 10:00pm and 2:00am she provides her mother with her medication, although she states that she does not know what all of the medication is needed for;
·At around 10:30pm, she helps her mother shower and get ready for bed;
·At around 2:00am, she helps her mother go to the toilet and puts her into bed, which takes approximately 30 minutes;
·On Mondays, Wednesday afternoons and weekends, the routine is the same except that she is there to assist her mother during the day;
·She is able to go out with friends on the weekend but ensures her mother has everything that she needs and that her sister is there to help;
·She would go out with friends one night every three to four weeks;
·She was on school holidays at the date of her application, 10 January until 23 January 2017;
·Miss Gidley’s cousin had previously been Ms Murphy’s care provider and had qualified for the Carer's Payment. Miss Gidley says her cousin qualified for CP even though she did not care for Miss Gidley’s siblings. Miss Gidley’s cousin did not attend school while caring for Ms Murphy; and
·She resigned from her casual job to care for her mother.[31]
[31] Exhibit 6, Supplementary affidavit of Miss Gidley dated 21 June 2018, paras 8-11.
Ms Murphy confirmed that the care her daughter provides her is as set out in Miss Gidley’s affidavit. Ms Murphy said the reason her daughter has to do the cooking is because she cannot stand for long periods of time.[32] Ms Murphy also stated that her obsessive compulsive disorder is linked to cleanliness and that Miss Gidley does the cleaning and housework because she is the only one of her children who will do “things properly”.[33]
[32] Exhibit 4, Affidavit of Ms Murphy dated 4 May 2018 at para 29.
[33] Exhibit 4, Affidavit of Ms Murphy dated 4 May 2018 at para 30.
Ms Murphy’s and Miss Gidley’s joint statement provides:[34]
Our morning routine is as follows:-At 6:30am Kayla wakes up Nadine and assists her out of bed. Whilst doing so we will have a conversation about how Nadine has slept. Sometimes it can be determined from Nadine's sleeping pattern during the night as to whether she will have a good or bad day either physically or mentally.
For example if Nadine has had nightmares during the night this can cause her to be very down and depressed all day. Also Nadine can usually tell if she will have a bad day physically if the pain has kept her awake for most the night. Nadine is always in pain but the bad days cause great difficulty in moving especially walking. If Nadine is having a really bad day, Kayla will be kept home from school.
Kayla then helps Nadine to get dressed and helps her to the toilet. Kayla will then make breakfast for Nadine. Kayla then helps Nadine to prepare her siblings lunches for school. After all this has been finished we would leave by car at 7:50am. During the half an hour drive to school, Kayla and Nadine would converse on general topics.
This general conversation is necessary for keeping Nadine alert and helps her concentrate. Nadine has trouble concentrating whilst on her own due to her highly intrusive thoughts and feelings from her depression, anxiety and OCD.
As for the evening. It is stated that it only takes 30 minutes from Nadine taking her pills until bed. Nadine takes her medication at 10pm. Then Kayla sets up the shower and prepares everything. Kayla also turns on Nadine's air conditioner at this point, as Nadine cannot sleep without it on. Nadine then is helped into the shower Kayla
Showering Nadine takes between 30 to 45 minutes depending on shaving and whether her hair needs to be washed. Upon exiting the shower Kayla then helps Nadine into her pajamas [sic] and then into bed and makes sure that Nadine has everything she will require to sleep.
[34] Statement of Ms Gidley and Ms Murphy receied 5 February 2018.
Dr Teo reported:[35]
[35] Exhibit 9, Centrelink Care Allowance/Payment Medical Report by Dr Chang Teo dated 27 March 2014.
(a)in 2014, that due to her disabilities Ms Murphy required daily help for a significant period each day, that her overall condition was not likely to improve and that she had the following day-to-day needs:
· Bowels- continent
· Bladder- occasional accident (once a week)
· Grooming- needs help with personal care: face, hair teeth;
· Toilet use - needs some help but can do some things alone;
· Feeding - independent;
· Transfer - minor help (verbal or physical);
· Mobility - walks with help of one person (verbal or physical);
· Dressing - needs help but can do about half unaided;
· Stairs - needs help (verbal, physical carrying aid); and
· Bathing- dependent.
(b)in August 2017 that Ms Murphy suffers from:[36]
(i)L5S1 disc protusion with chronic back pain; and
(ii)chronic generalised anxiety, obsessive compulsive disorder and depression;
as a result of which she needs assistance with daily activities and prevents her from doing simple chores.
[36] Exhibit 8` Secretary’s Amended Statement of Issues, Facts and Contentions dated 18 May 2018, Attachment A, Report of Dr Teo dated 18 August 2017.
CONTENTIONS
Miss Gidley contended that:
(a)her attendance at school does not mean she was not providing “constant care” to her mother;
(b)the care she provided her siblings is also relevant to whether she was providing “constant care” to her mother; and
(c)the care tasks she provided were in the nature of “constant care”.
School Attendance/Relevance of “25 hour rule”
Miss Gidley contends that, during the qualification period she provided “constant care” despite her attendance at school and relies on the Guide and the decisions of Halls v Secretary, Department of Social Services [2014] AATA 129 (‘Halls’) and Johnson.
The Guide provides that “the policy intent of providing CP is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities”.[37]
[37] The Guide, section 1.1.C.310.
In Halls, the Tribunal found that it could be inferred from the Guide and the Act that 25 hours equated to being engaged in substantial employment.[38] Miss Gidley’s argument was that as she attended school for less than 25 hours per week due to her care responsibilities, this meant she was unable to engage in the equivalent of substantial employment.
[38] [2014] AATA 129, at [29].
In Johnson it was said at [31]:
Section 198AC of the Act envisions that a person who engages in 25 hours a week study or work in addition to caring for a disabled person, can still be regarded as providing constant care for the purposes of carer payment. This suggests that to qualify for carer payment, a carer need not be providing care every waking moment of the day.
Miss Gidley submits that it is contradictory for the Secretary to rely upon her school attendance as a disqualifying feature, whilst also submitting that "the 25 hour rule" is not relevant to an assessment of "constant care".
There are Tribunal decisions where a child carer has been found not to be providing constant care in circumstances where they have been able to attend school.[39] In Cavanagh-Hans and Secretary, Department of Social Services [2017] AATA 687, the Tribunal found that in a situation where the carer was attending school on a flexible basis, the carer was not providing “constant care”.
[39] Cavanagh-Hans and Secretary, Department of Social Services (Social services second review) [2017] AATA 687; James v Secretary, Department of Social Services [2014] AATA 802.
Miss Gidley says Cavanagh-Hans is distinguishable from her situation because she is providing her mother with care up to 13.5 hours per day and the applicant in Cavanagh-Hans was not also caring for siblings.
As referred to earlier, there is merit in consistency of decision making. However, each case has to be determined on its own merits. The fact that Miss Gidley attended school does not necessarily disqualify her from being eligible for CP.
Miss Gidley had stated in her affidavit that she had reduced her school attendance hours in direct response to her mother’s care needs. However, the oral evidence given at the hearing by both Miss Gidley and her mother confirmed this was not the case and that her school attendance hours did not change until the second semester of the school year, after the Qualification Period, and that it was only changed for timetabling reasons.
Miss Gidley’s school schedule was not adjusted because of her mother’s care needs. Miss Gidley was in school attendance for approximately 24 hours per week.
Miss Gidley was questioned at the hearing about when her timetable at school changed. The interaction went as follows:
Ms Vetter – And why did your timetable reduce to 3 and a half days?
Miss Gidley – That was when we made the second appeal, I think, when we appealed the case the second time and… I originally had the half Wednesdays off but then it was changed to, that I had, originally it was that I had the whole Wednesday off and then it was changed to half Wednesdays and a full Monday off because so it wouldn’t clash with some of my classes.
Ms Vetter – So what has that got to do with the appeal?
Miss Gidley – I’m not sure
Ms Vetter - Ok
An inference that could be drawn from this evidence is that the only reason Miss Gidley reduced her school hours was to further support her claim for CP. Miss Gidley’s timetable was not, as had been stated in her affidavit, adjusted to suit her mother’s care needs.
Miss Gidley was able to undertake all of the requirements of her courses. Miss Gidley was not in a standard stream year 12 but was undertaking certificate and vocational stream courses. She was not required to do any study outside of school hours. The care she provides her mother therefore did not impact on her ability to complete year 12.
Care of Siblings
In supplementary written submissions, Miss Gidley had also contended that her CP application should be considered under section 198(2)(d) of the Act because she also cares for her two siblings aged 9 and 13. Section 198(2)(d) of the Act provides:
(1) A person is qualified for a carer payment if the requirements of this section are met.
(2)The person must personally provide constant care for
…
(d) a disabled adult and a dependent child of the adult (the care receivers), where·
(i)the disabled adult has been assessed and rated under the adult disability assessment tool and given a score under that assessment tool of at least 20, being a score calculated on the basis of a total professional questionnaire score of at least 8,· and
(ii)the child is aged under 16, and
(iii)if the child is aged 6 or more--carer allowance is payable for the child, and
(iv)section 197D does not apply in respect of the care receivers
At the hearing, the witnesses confirmed they do not receive care allowance for Ms Murphy’s other children. Therefore, it was conceded by Miss Gidley that section 198(2)(d) of the Act had no application.
However, Miss Gidley still submits that the care provided to her siblings ought to be considered as relevant in the assessment of the amount of "constant care" provided by her to Ms Murphy. The parties were not aware of any previous decision of the Tribunal where the care given to other children who were not the subject of a carer’s allowance was considered a relevant factor.
The Secretary says there is no medical reason that Ms Murphy cannot care for her children. However, given some of the tasks that Ms Gidley has to perform for her mother, such as cooking and cleaning, it is clear that her mother cannot perform those tasks for her other children.
Can the care providing to the siblings form part of the “personal care” provided to Ms Murphy?
Statutes are construed firstly by considering the text of the legislation, and, at the same time its context and purpose.[40] The High Court explained in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34:
[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." [Footnotes omitted].
[40] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381–382 [69]–[71]; [1998] HCA
28; Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (2009) 239 CLR 27at 46–47 [47]; [2009] HCA 41.
In interpreting a section of an Act, the High Court has said that “[t]he words of the statute, not non-statutory words seeking to explain them, have paramount significance”: Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at [22].
The High Court discussed the primary objective of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70] (per McHugh, Gummow, Kirby and Hayne JJ):
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals…
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision…
In Comcare v Drinkwater [2018] FCAFC 62, the Full Federal Court said, at [45] (emphasis added):
It may be accepted that the task of statutory construction begins and ends with considering the text of the provision to be construed; and that the search for textual meaning may involve a consideration of the purpose and context of the provision.[41]
[41] Citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [47];
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [22]-[23]; North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [11]; Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 at [10]; and, most recently, Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCAFC 100; 251 FCR 448 at [25]-[26].
The Tribunal believes that the plain and ordinary interpretation of section 198(2) of the Act leads to a conclusion that it is only the care directly provided with the care recipient which is relevant.
The wording of section 198(2)(a) is clear. What is relevant is the care that is being provided to the care recipient. There is nothing in the section that provides that care given to others on the care recipient’s behalf is relevant to that consideration. It is also worth noting that the questionnaires set out in the Schedules to the Determination which are used to assess a potential care receiver’s needs makes no reference and ask no question regarding whether the person needs help caring for others. Section 198 specifically sets out when care provided to a child becomes relevant, and that is when the dependent child is also being provided constant care and is the subject of a carer allowance.
Nature of Care Tasks Provided
The Secretary contends that the fact that Miss Gidley undertakes household domestic duties such as cooking and cleaning is not relevant to the assessment of whether Miss Gidley is providing "constant care" to her mother.
Other Tribunal decisions have found that performing household or domestic duties does not constitute care being provided to a person because it is common to the management of any household.[42] Some of these decisions also make the point that general household tasks are generally tasks that can be undertaken at the care giver’s convenience.[43]
[42] Milne and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689; James v Secretary, Department of Social Services [2014] AATA 802.
[43] James v Secretary, Department of Social Services [2014] AATA 802.
Miss Gidley says her case can be distinguished here because she was a child, and the domestic duties, such as the cooking, could not be done at her convenience. The meal preparation has to be done at certain times of the day. The Tribunal accepts that submission. The Tribunal also accepts that while teenage children are often expected to assist around the house, they are unlikely to be expected to perform all the domestic duties of the household. In relation to the general cleaning and tidying, there is, in the Tribunal’s belief a distinguishing feature in this case from the others referred to, and that is Ms Murphy’s OCD. Not only does Miss Gidley have to undertake household chores because of her mother’s physical limitations, she also has to perform those chores in the way which satisfies her mother’s OCD. This evidence was not challenged by the Secretary.
Miss Gidley also submitted that the Care Assessment report failed to accurately report upon the level of care she provided to Ms Murphy. Miss Gidley provided a statement on 11 September 2017 to say she believed the social worker misunderstood her and provided as follows:[44]
I believe that I was misunderstood during my phone interview with the centrelink social worker. When the social worker rang it was during school whilst I was in class. Also I am not very good at talking to people and explaining myself properly. I also dont believe that my mothers mental issues were taken into account fully.
Physically my mother requires help with most daily activities. It is stated by the social worker that my mother does not require assistance with lifting or transferring of her body weight. Also that she has no issues with driving her car. These two statements are incorrect. There are certain times when my mother can stand on her own from a seated position but on most occasions she requires help with getting up and on her really bad days this task can take quite a bit of time for me to help her up because she can only move very slowly due to extreme pain. As for driving this activity causes her pain but unfortunately until I get my license there is no other choice but for her to drive when necessary.
The social worker also stated that I only assist my mother in and out of the shower twice weekly. I help my mother daily with her showering needs, especially because she is a high fall risk and she is highly unstable on her legs after standing in the shower. I also help her with washing herself, especially the lower half of her body as she has difficulty bending. I also shave her legs for her.
I also help her with dressing daily. I also need to help her with her footwear. My mother needs to be reminded to take her medication every night. I also have to supervise her when her medications are changed. The recent medication she has been given have a list of severe side effects. She has suffered several of these side effects, including constant headaches, worstening [sic] of her asthma and light sensitivity.
The social worker also stated that my mother does not require care and is capable on her own whilst I am at school, but as I stated to her my mother sleeps during the day whilst I am at school. And if she is in need of my help there have been special arrangements made with the school that she can contact me by phone at anytime and if necessary I am able to leave school to assist her. I am also supported by several programs at school.
Mentally my mother suffers from depression, anxiety and several forms of OCD. She currently takes three times the recommended daily dose of Luvox for her depression. I support her emotionally with her depression and anxiety. I accompany my mother whenever she leaves the house…
Other Issues
[44] Exhibit 8, Secretary’s Amended Statement of Facts, Issues and Contentions dated 18 May 2018, Attachment A.
In relation to Ms Murphy’s ability to drive, the Respondent contends that the period during which Miss Gidley is a passenger while Ms Murphy drives should not be considered "constant care". The Tribunal agrees with this submission, particularly given that Ms Murphy is able to drive to and from school to collect the children on her own. There is no corroborating medical evidence that Ms Murphy needs care whilst driving. Further, Miss Gidley told the Tribunal that her mother would sometimes teach her how to drive.
Consideration
The number of hours of care provided may be indicative of whether the care being provided is constant, but the legislation does not specify any particular threshold amount of time. It is preferable to consider the care in terms of its significance and importance to the care recipient, that is, it constitutes personal care, and whether it is provided for a significant period each day.[45] In this regard the nature of the care given is important. As Deputy President McCabe noted in Milne, care can be active, such as helping the care recipient to wash or clothe themselves, and it can be passive, such as supervision.[46]
[45] See Confidential and Secretary, Department of Families Housing, Community Services and Indigenous Affairs [2013] AATA 582, at [19]; Re
James and Commonwealth of Australia (1986) 11 ALD 273; Cavanagh-Hans and Secretary, Department of Social Services [2017] AATA 687, at [21]-[23]; Secretary, Department of Families, Housmg, Community Services and Indigenous Affairs and Towse (2008) 103 ALD 688, at [38].
[46] [2008] AATA 689, at [7].
The care provided by Miss Gidley was regular, daily and consistent during the relevant period. The nature of the care provided by Miss Gidley to her mother is a relevant factor. The fact that Miss Gidley attended school approximately 24 hours per week and was able to complete all of her study requirements is also relevant.
During the Qualification Period, Miss Gidley provided care to her mother at critical points during the day – namely at waking and in preparing for bed at night. Miss Gidley attended to primary elements of her mother’s self-care needs, namely washing and dressing, at both ends of the day. She was responsible for all of the meal preparation in the home, including preparing her mother’s and siblings’ lunch for the period when she was at school. Her mother is clearly reliant on Miss Gidley to attend to the normal duties involved in running a household, including doing to the washing and cleaning. Her mother was also being cared for by Miss Gidley by way of emotional support, supervision and regular 15 minutes monitoring. When Miss Gidley attended school, Ms Murphy says she slept. However, there is no corroborating evidence that Ms Murphy slept the whole time Ms Gidley was at school. Further, Ms Murphy was clearly able to wake herself up and ready herself to collect the children from school and then was able to drive to Miss Gidley’s school unassisted. Ms Murphy was then able to drive to collect her other children and then drive to and from the shops each day to buy food and other necessities that reportedly took about an hour. Ms Murphy clearly did not need assistance when Miss Gidley was absent. Further, the evidence regarding the driving seems inconsistent with other evidence given by Miss Gidley.
The fact that her mother admitted at the hearing that she can drive on her own, casts doubt on the evidence given by Miss Gidley that:
(a)Ms Murphy has numbness in her right foot. The right foot is what is used to operate the car accelerator and brake, unless the car has been modified;
(b)Ms Murphy’s concentration is so poor that she needs to converse with her mother while she drives. If this evidence is correct, the Tribunal questions how her mother can drive to and from school on her own multiple times per week.
The Tribunal is also concerned about Miss Gidley’s inconsistent evidence regarding her school timetable and the reference to that fact that it was changed for the purposes of appealing Centrelink’s decision.
The inconsistencies cast serious doubt on the extent of the actual care being provided and there is no corroborating evidence to assist the Tribunal in coming to a conclusion. The only medical evidence which is closely referrable to the Qualification Period is extremely limited, given the issues Miss Gidley says her mother has, and only refers to Ms Murphy needing assistance with daily activities and chores. There is no reference in this evidence to Ms Murphy being unable to manage her own medications for example. The Tribunal is also concerned by Miss Gidley’s evidence that that she does not know what all of the medication is needed for and that she is taking three times the recommended daily dose of antidepressant. A health care professional should refer Ms Murphy as soon as possible for a “fitness to drive” assessment, not only because of her physical and mental impairments, but also because of her drug regime.
In relation to the previous care provider, the fact that Miss Gidley’s cousin received CP for caring for Ms Murphy confirms that Ms Murphy requires care. That is not in dispute. The relevance of the fact that there was a former carer is limited. There is no corroborating evidence of the care provided by Miss Gidley’s cousin, and the care was provided during a different time period than the one under consideration here. It does not necessarily follow that CP should automatically be given to the next person that provides Ms Murphy with care, and it does not illuminate the extent and nature of the care being provided by Miss Gidley.[47]
[47] Exhibit 6, Supplementary affidavit of Miss Gidley, paras 6-7.
There is no evidence that Miss Gidley was ever contacted by her mother while at school nor any evidence of her having to leave school early or not attending school because of her mother’s care needs. The care needs met and provided by Miss Gidley were all able to be provided outside of school hours, and accordingly, it cannot be concluded that Miss Gidley provided constant care within the meaning of the Act.
In the circumstances, the Tribunal is not satisfied that Miss Gidley satisfied the requirements of section 198 during the Qualification Period.
DECISION
The decision under review is affirmed.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
................................[sgd]..................................
Associate
Dated: 14 August 2018
Date of hearing: 9 July 2018 Counsel for the Applicant: Ms Charlotte Smith Solicitors for the Applicant: Legal Aid Queensland Applicant: In person Advocate for the Respondent: Ms Jacky Vetter, Seconded Lawyer Solicitors for the Respondent: Department of Human Services
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