GJTM and Secretary, Department of Social Services (Social security second review)
[2025] ARTA 629
•31 January 2025
GJTM and Secretary, Department of Social Services (Social security second review) [2025] ARTA 629 (31 January 2025)
Applicant/s: GJTM
Respondent: Secretary, Department of Social Services
Tribunal Number: 2020/0992
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:31 January 2025
Decision:The decision under review, insofar as it relates to carer payment, is affirmed.
Statement made on 31 January 2025 at 1:26pm
Disclaimer: names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
SOCIAL SECURITY – carer payment – claim rejected – whether applicant is personally providing constant care – decision under review affirmed
Legislation
Social Security Act 1991 – s 198
Social Security (Administration) Act 1999Cases
Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 698
Statement of Reasons
On 23 November 2018, the applicant, then aged 11, lodged claims with Centrelink for Carer Payment and Carer Allowance based on the support and care she was providing to her mother, [MZLB].[1] The claims were initially rejected,[2] and the rejection of the claims were upheld on review in a Tier 1 decision in the Administrative Appeals Tribunal (AAT).[3] An application for Tier 2 review was lodged in the AAT.
[1] T-Documents, T6, pp 56-68.
[2] Centrelink originally rejected the claims on 21 February 2019 (T24, pp 278 and 276). A Centrelink Authorised Review Officer then affirmed those decisions on 11 June 2019 (T13, pp 210-215) following an internal review.
[3] T-Documents, T2, pp 6-15.
As the application progressed through the AAT, the Secretary’s position was modified. He accepted that the applicant satisfied the requirements for Carer Allowance.[4] He also accepted that the applicant satisfied many of the requirements for Carer Payment.[5] Orders were made which remitted the question of the applicant’s entitlement to Carer Allowance to be reconsidered. The question of whether the applicant is entitled to Carer Payment remains in issue. The application now falls to be determined by the Administrative Review Tribunal (ART); the new Tribunal set up to replace the AAT.
[4] Exhibit R1 at [3] and [19]. Carer Allowance is a benefit payable under section 954 of the Social Security Act 1991.
[5] See for example: Exhibit R1 at [33], [41] and [48].
The basis on which the respondent maintains that the applicant does not qualify for Carer Payment is that she does not provide ‘constant care’ to [MZLB]. The requirement for the applicant to provide constant care is found in section 198 of the Social Security Act 1991 (Act).
Section 198 relevantly provides as follows:
198 Qualification - disabled adult or disabled adult and dependent child
(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:
(a) either:
(i)If the person is the only person providing the constant care – a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or…
(ii)If not – a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or
(b) …
(c) …
(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 only matter which the Secretary puts in issue is whether the applicant provided ‘constant care’.[6]
[6] Exhibit R1 at [52]; Exhibit R2 at 4.1.
The applicant submits that the evidence establishes that she did provide ‘constant care’ in the relevant period,[7] and even if she did not, the effect of the deeming provision in subsection 198(9) is that she meets the requirement in any event.[8]
[7] In this case, because the applicant lodged her claim for carer payment and carer allowance on 23 November 2018 the relevant period for assessing her claim is during the 13 week period from 23 November 2018 to 22 February 2019 – see section 42 of the Social Security (Administration) Act 1999.
[8] Exhibit A11, pp 6-7.
Subsection (9) provides as follows:
Deemed personal care of disabled adult and dependent child
(9)For the purposes of paragraph (2)(d) and other references in this Part that relate to that paragraph, if a disabled adult is providing care of a dependent child of the adult at a particular time and another person is supervising the provision of that care at that time, the other person is taken personally to provide care of the adult and child at that time.
The merit of the applicant’s submissions cannot be assessed without regard to the facts.
Evidence
The application for Tier 2 review by the Tribunal was made on 14 February 2020.[9]
[9] T-Documents, T1, pp 1-5.
After significant delays related to an application to the Human Rights Commission, the matter was listed for hearing and heard by Deputy President McDermott on 22 March 2022.
The Deputy President failed to make a decision in relation to the matter even though final submissions were received from the parties on 9 June 2022.
Deputy President McDermott left the AAT in early 2023.
The matter was re-constituted on 19 August 2024, along with two other matters related to the family’s claims for various social security benefits. A directions hearing was held on 21 October 2024, and I determined that two of those matters should be determined on the evidence that had previously been received and without a further hearing. I published a decision with reasons in relation to the first matter on 13 December 2024.[10]
[10] ART reference 2020/0989.
For the purposes of determining this application, I have had regard to the following material:
Respondent’s Material
T
T-Documents lodged 23 March 2020 (T1 to T24, pages 1 to 281)
ST
ST-Documents lodged 15 December 2021 (ST1 to ST35, pages 1 to 178)
R1
Secretary’s Amended Statement of Issues, Facts & Contentions dated 24 November 2021, including attachments A to E
R2
Secretary’s Closing Submissions dated 9 May 2022
Applicant’s Material
A1
Email from [MZLB] to Tribunal received 7 August 2020 attaching:
(i) Government-contracted doctor Disability Medical Assessment dated 15.04.2020
(ii) Carer Payment and Carer Allowance – Medical Report (SA431) in relation to [YTJP] by Dr Hodgkinson dated 06.07.2020
A2
Undated Word Document entitled ‘The burden of proving that the requirement or condition is reasonable’
A3
Email from [MZLB] to Tribunal received 30 November 2020 attaching:
(i) Copy of AAT1 decision under review in 2020/0992
(ii) Excel spreadsheet titled ‘Request Further Information Centrelink 5 June 2020’
(iii) Carer Payment and Carer Allowance – Medical Report (SA431) in relation to [YTJP] by Dr Hodgkinson dated 06.07.2020
A4
Email from [MZLB] to Tribunal received 15 October 2021 attaching:
(i) Specialist Mental Health Social Work Report of Amanda Kruger dated 19.09.2021
A5
Email from [MZLB] to Tribunal received 18 June 2021 attaching:
(i) Word document submissions titled ‘Additional Information Summary and Images’
(i) 21 May 2021 CT spine – 3 regions with and without contrast
(ii) 21 Apr 2021 CT cervical spine without contrast
(iii) 3 Mar 2021 GP MRI Head without contrast
(iv) 16 Dec 2020 MRI cervical spine without contrast
(v) 8 Oct 2020 CT Thoracic Spine without contrast
(vi) 5 Feb 2021 [MZLB] NCS Townsville Neuroscience
(vii) Dr Tollesson (Neurosurgeon) Wickham Tc Brisbane
(viii) 17 May 2021 My Letter to Dr Tollesson
(ix) 16 June 2021 Dr Tollesson recommendation LAMINECTOMY C5-C6
(x) 16 June 2021 Financial Consent
A6
Email from [MZLB] to Tribunal received 18 October 2021 attaching:
(i) Australian Human Rights Commission Decision dated 05.07.2021
(ii) Australian Human Rights Commission Reasons dated 05.07.2021
(iii) Copy of Centrelink Decision dated 29.09.2021
(iv) NDIS Plan approval for [MZLB] dated 01.09.2021
(v) Extracts from NDIS Application
(vi) Centrelink Request for Information notice issued to [GJTM] dated 31.03.2020
(vii) Document Upload History
(viii) [School I] Academic Report, [GJTM],
A7
Email from [MZLB] to Tribunal received 16 December 2021 attaching:
(i) Reply to Secretary’s Statement of Issues, Facts and Contentions;
(ii) [GJTM] Enrolment History;
(iii) [School M] Academic Report, [GJTM], Semester 1 2018; and
(iv) [School M] Academic Report, [GJTM], Semester 2 2018.
A8
Email from [MZLB] to Tribunal received 17 March 2022, attaching:
(i) Occupational Therapy Functional Assessment dated 12.02.2022.
(ii) annotated Centrelink file notes.
A9
Email from [MZLB] to Tribunal received 12 March 2022 attaching:
(i) email correspondence regarding [YTJP] NDIS dated 04.03.2022; and
(ii) [YTJP] Childhood Autism Spectrum Test.
A10
Applicant’s final submissions dated 27 April 2022 and attachments.
A11
Applicant’s final submissions in reply dated 9 June 2022 and attachments.
A12
Applicant’s submissions filed 22 October 2024.
At the hearing on 22 March 2022, [MZLB] refused to submit to cross-examination and no other oral evidence was given. The parties agreed to provide their closing submissions in writing.
Facts
The following are my factual conclusions based on the evidence available to me.
MZLB is the mother of [GJTM] and [YTJP]. When [GJTM] applied for Carer Payment, [MZLB] was 62 years old, [GJTM] was 11 years old and [YTJP] was 8 years old.
[MZLB] has a great many significant health conditions, including:[11]
[11] T-Documents, T7, pp 61-68; Exhibit A8, attachment (i); Exhibit A10, attachment entitled ‘Statement by [MZLB]’; Exhibit A5, attachment entitled ‘Additional Information Summary and Images’;
· depression and anxiety;
· chronic fatigue syndrome;
· coeliac disease;
· osteoarthritis;
· radiculopathy;
· mild degenerative spondylosis in thoracic spine;
· significant spondylosis in lumbar spine (L4/L5);
· mild unilateral degenerative sacroiliac inflammation;
· issues with cervical discs and vertebrae;
· sleep apnoea;
· fatty liver disease; and
· obesity.
In February 2022, [MZLB] underwent a functional assessment by an occupational therapist.[12] Although that assessment relates to a period that is different from the assessment period for this matter, because [MZLB]’s conditions did not improve between 2018 and 2022, I am satisfied that it represents the good evidence of [MZLB]’s functional capacity and care needs during the relevant assessment period.
[12] Exhibit A8. Attachment (i).
The key aspects of the assessment are set out below:
· In relation to activities of daily living, [MZLB] is largely independent in dressing, showering, toileting, continence, eating, grooming, mobility and transfers. Some minimal assistance is provided by [GJTM] when the applicant puts on particular tops over her head and she helps do up bras when [MZLB] wears one (which isn’t usual). [GJTM] provides help when [MZLB] washes her hair but this is not a daily activity. [GJTM] helps by getting [MZLB]’s clothes out following her shower (which again is not a daily activity). [GJTM] provides some balance support when [MZLB] travels to destinations outside the house such as supermarkets;
· In relation to domestic tasks like cleaning and meal preparation, [MZLB] is dependent upon formal support services to assist her;
· [MZLB] prepares her own snacks and meals (like tinned soup and cereal). Her children usually make their own food or snacks as wanted;
· [MZLB]’s children complete the majority of the laundry although [MZLB] occasionally completes the laundry;
· 90% of the time [GJTM] completes the grocery shopping
· [MZLB] relies on her neighbour to complete the yard mowing;
· [GJTM] provides assistance to [MZLB] in remembering what needs to be purchased at the supermarket, provides reminders about medication and assists her in locating items which she has misplaced or forgotten where they are located. This is in response to reduced cognition suffered by [MZLB]; and
· [MZLB] looks after her finances and attempts to keep a budget for everything they purchase. Her daughter provides some support particularly when needing to make major purchases.
[GJTM] also assists [MZLB] with social communication – dialling numbers for her and making arrangements over the phone. It appears that this type of assistance is required to overcome social anxiety experienced by [MZLB]. [GJTM] also assists when [MZLB] has difficulty hearing or understanding [YTJP]. It is clear that [GJTM] assists her mother with organisation, attending appointments and communication.[13]
[13] Exhibit A4, attachment (i), p 7.
The evidence establishes that [GJTM] attended [School M] between April 2015 to December 2018. She was on holiday for the remainder of the assessment period. [YTJP], [GJTM]’s younger brother, has been diagnosed with autism spectrum disorder.[14]
Consideration
[14] Exhibit A9.
Constant Care
I am not satisfied that the applicant provides her mother with constant care as required by s 198 of the Act.
Constant care in the section carries its ordinary meaning. It is well explained in the following passage in Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 698 at [7];
The expression “constant care” is not defined in the Act. These words should be given their ordinary English meaning. “Care” may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost). A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household. 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.
It is clear from the evidence that [MZLB] does not require anything that could be described as ‘constant care’. She is very unwell and suffers significant limitations in her functioning. She needs support in some areas. But there is a long list of things which she does do independently, including:[15]
· Driving;
· Simple food preparation for herself;
· Showering and toileting;
· Mobilising;
· Transfers;
· Setting budgets.
[15] Exhibit A8. Attachment (i); Exhibit A4, attachment (i).
While she does need assistance in some areas to complete tasks, I am satisfied that she is largely an autonomous adult albeit one who suffers significant functional limitations. She is not a person who requires constant care, either active or supervisory. She is safe to be left alone for long periods of time and can function in the world provided she gets some assistance at critical times and in relation to a small sub-set of tasks.
It is equally clear that what [GJTM] provides is not ‘constant care’. She provides significant help. But the evidence shows that in relation to cooking and food preparation [MZLB] is independent. [GJTM] arranges food for herself but not for her mother.[16] [GJTM] has at various times attended school for large parts of the day and is not required to be available to supervise her mother for extended periods after school.[17]
[16] Exhibit A8, attachment (i), p 5.
[17] [GJTM] attended school as a full-time student in 2018. T-Documents, T10, p 151
Assisting with shopping and budgeting and the other matters identified by [MZLB] as ways in which [GJTM] provides support do not add up to ‘constant care’.
Consequently, [GJTM] does not meet the statutory requirements for carer payment.
Other submissions in relation to ‘constant care’
The applicant submits that she does not need to meet the ‘constant care’ requirements. Her argument has two elements.
The first is that the Adult Disability Assessment Tool (ADAT) replaces the ‘constant care’ requirement.[18]
[18] Exhibit A10, p 23.
The second, is that as a result of subsection 198(9) [GJTM] is deemed to provide constant care.[19] Both these arguments are misconceived.
[19] Exhibit A11, pp 6-7.
In relation to the contention that establishing a significant score using the ADAT is sufficient to establish that ‘constant care’ is being provided, the respondent submits as follows:
…the Applicant’s submissions quite clearly misinterpret the criteria for carer payment as set out in s 198 of the Act. Satisfaction of the ADAT [Adult Disability Assessment Tool] is a separate requirement and is not determinative of the requirement that ‘constant care’ be provided. The Secretary accepts that [MZLB] has the required ADAT rating, however there is quite clearly an additional requirement that the Applicant provide ‘constant care’. The Secretary submits that the ‘constant care’ requirement is not satisfied on the facts of this case.[20]
[20] Exhibit R2 at 4.27.
I accept that submission.
In relation to the second argument, subsection 198(9) provides no assistance in establishing that [GJTM] provides ‘constant care’ to [MZLB] (or even [MZLB] and [YTJP]). Its only effect is to allow time spent supervising [MZLB] when engaged in care for [YTJP] to count as the provision of care of both the adult and the child during that time. Given my conclusion that [MZLB] does not require supervision from [GJTM] and only requires limited task-based assistance, subsection (9) does not remedy the fact that [GJTM] does not provide ‘constant care’ to [MZLB].
DECISION
The decision, insofar as it relates to carer payment, is affirmed.
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