Harman and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 257

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 257

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/835

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANNE-MARIE HARMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date17 March 2006           

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............................................

Deputy President

CATCHWORDS

SOCIAL SECURITY – carers allowance – “care & attention”

SocialSecurity Act 1991 ss 954A(1)(a)(b)(c)(d)(e)(f)(g), 954A(2)

Guide to Social Security Law

REASONS FOR DECISION

17 March 2006   Deputy President P E Hack SC       

1.The applicant, Miss Anne-Marie Harman, is, without doubt, a devoted carer to her 83 year old mother Mrs Edwina Harman. The issue that I have to decide is whether Miss Harman is entitled to receive carer allowance.

2.In September 2004 Miss Harman applied for, and was granted, carer allowance for the care she provided for Mrs Harman. Later, Miss Harman’s circumstances were reviewed by Centrelink and in May 2005 Centrelink decided that Miss Harman was not entitled to carer allowance. That decision was affirmed on internal review and by the Social Security Appeals Tribunal.

3.      Miss Harman now seeks a review of the decision by this Tribunal.

4.The Secretary, who appeared by Ms Oliver, a departmental advocate, accepts that Mrs Harman was a disabled adult as that term is used in the Social Security Act 1991 (the Act). The qualification for a carer allowance is set out in s 954A(1) of the Act. Again, the Secretary accepts that Miss Harman satisfies each of the criteria specified in paragraphs (a), (b), (c), (e), (f) and (g) of that subsection. The contest before me concerned paragraph 954A(1)(d) which requires that the “care receiver” i.e. Mrs Harman, receive care and attention that meets the requirements of s 954A(2).

5.      That sub-section is in these terms,

“(2) The care and attention:

(a) must address special care needs:

(i) that the care receiver is assessed under the Adult Disability Assessment Tool as having; and

(ii) that relate to the care receiver’s bodily functions or to sustaining the care receiver’s life; and

(b) must be received by the care receiver on a daily basis, for a total of at least 20 hours a week; and

(c) must:

(i)  be received by the care receiver from the person alone; or

(ii) be received by the care receiver from the person together with another person whose work in providing the care and attention is not at award wages or above, whether or not bother persons are present every day when the care receiver receives the care and attention; and

(d) must be received in a private home that is the residence of the care receiver, the person or the other person (if any), but not the residence of both the care receiver and the person; and

(e) must not be care and attention of a kind (if any) specified in a written instrument made by the Secretary for the purposes of this paragraph.”

6.The Secretary has published a Guide to the Social Security Law that assists decision makers to reach consistent and principled decisions. It is well-settled that such policy statements may be relied upon by this Tribunal provided that they are not inconsistent with the legislation. That part of the Guide that deals with s 954A(2) is, I think, a useful aid in determining whether the sub-section is satisfied. I propose to have regard to it, bearing in mind that ultimately it is the language of the Parliament that is pre-eminent.

7.      The Guide relevantly provides:

“Care & attention must address special care needs

To be eligible under the new rules, carers who do not live with the person being cared for will need to provide care and attention that address special care needs that the care receiver is assessed under the ADAT as having (i.e. assistance with bodily functions and/or to sustain life).

Special care needs include assistance with bodily functions and care to sustain life. Assistance with BODILY FUNCTIONS includes:

·   MOBILITY, which may include assisting the person to transfer in and out of bed, moving around the home, negotiating stairs and positioning in their chair or bed,

·   PERSONAL HYGIENE,  including help with dressing and undressing, bathing and showering, grooming, and assistance with using the toilet,

·   EATING AND DRINKING (hydration and nourishment), which may include cutting, mashing or juicing food so the person can eat it, feeding the person food and drink is consumed,

·   COMMUNICATION, this may include signing or interpreting for the person and assisting the person to use communication equipment, and

·   TREATMENT which may include helping the person take medication, changing dressings, applying bandages and operating and monitoring medical equipment.

CARE TO SUSTAIN LIFE includes supervision to prevent wandering, removing the person from dangerous situations and preventing the person from damaging property or injuring themselves or others.

Example 1: A daughter goes to her elderly mother’s home to care for her mother every day. As her mother has chronic arthritis, she has difficulty getting around and undertaking basic tasks as her hands and feet are affected. Her daughter assists her with showering and dressing in the morning, feeding her breakfast and lunch, and helping her get around the house. All of these activities address her mother’s special care needs and meet the requirements of the ‘care and attention’ definition, so they may be counted towards the daughter’s minimum of 20 hours a week for CA qualification under section 954A.

Activities that DO NOT address the care receiver’s special care needs (as assessed under the ADAT), and which do not relate to the care receiver’s bodily functions or to sustaining their life, are not considered to be care and attention e.g. shopping, housework and travel time.

Example 2: Activities undertaken by the daughter such as travelling to her mother’s house, reading a book aloud to her mother and making afternoon tea for her mother do not address her mother’s special care needs as defined in section 954A(2) because they do not relate to her bodily functions or to sustaining her life. This means that these activities would not be ‘care and attention’ that could be counted towards the daughter’s minimum 20 hours a week for CA qualification under section 954A.

Care & attention must be received by the care receiver on a daily basis, for a total of at least 20 hours per week

To qualify for CA a non co-resident carer must provide at least 20 hours of ‘care and attention’ to the care receiver per week. At least some of this care must be provided to the care receiver by the carer on a daily basis, that is, each and every day. There is no specified minimum level of care to be provided in a day. This requirement is as flexible as possible to help non co-resident carers balance work, families and caring as best they can.”

8.The Secretary accepts that Miss Harman provides care for her mother, indeed Ms Oliver acknowledged during the hearing that Miss Harman does a lot for her mother and that she helps her mother with her daily needs. But the Secretary’s case is that the care which Miss Harman undoubtedly provided for her mother is not ‘special care’, that is, it is not care that relates to Mrs Harman’s bodily functions or to sustaining her life.

9.To assist me in determining this issue I had the benefit of a detailed statement from Miss Harman (Exhibit 2) supplemented by her oral evidence. I have no hesitation in accepting that this evidence, written and oral, was truthful and accurate.

10.On the basis of that evidence I am satisfied that Miss Harman devotes a minimum of 20 hours in each week to caring for her mother’s needs. Her evidence was that there was no set pattern but that she could spend between 1 to 6 hours with her mother each day and, as well, spend a considerable period of additional time each day on the telephone answering her mother’s questions and explaining issues in her mother’s life to her. I am also satisfied that Miss Harman attends at her mother’s unit to provide care for a minimum of 6 days in each week – some weeks she may not visit on a Monday, in other weeks she may not visit on a Friday – but overall I consider that care is provided on a daily basis.

11.But the area where I think that Miss Harman does not satisfy the statutory test is in relation to the nature of the care provided. I am unable to be satisfied that it was care that addressed the special care needs,

“that relate to the care receiver’s bodily functions or to sustaining the care receivers’ life.”

12.The point is well demonstrated by the two examples given in the Secretary’s Guide; Miss Harman is much closer to the daughter in Example 2 than that in Example 1. I have no desire to recite unnecessarily details of the life of Miss Harman or her mother but the difficulty that I have in the present case may be illustrated by reference to the headings used in the Guide. There is, on Miss Harman’s evidence, very little care provided for her mother at the levels explained in the Guide. For example, in terms of the reference to “Mobility” Mrs Harman undertakes the tasks described there herself – Miss Harman has a role, and a very important role it is, of ensuring that Mrs Harman’s walker is positioned correctly and that there are no misplaced items of furniture that might impede or trip her. Similarly, when considering “Treatment” Mrs Harman is self sufficient, however Miss Harman has the important role of ensuring, whilst respecting her mother’s fierce independence, that Mrs Harman has taken her medication at the appropriate times. It would be unnecessarily intrusive to give further examples.

13.Whilst I am satisfied that Miss Harman provides some care that addresses ‘special care needs’ I am not satisfied that she does so to the extent, or with the frequency that the statute requires.

14.I should add that I regard that as an unfortunate outcome. As it seems to me, without the care that Miss Harman provides, it is likely that Mrs Harman would require care in a nursing home, care that would come at a far greater cost – financial and social – to the community. But for the present the Parliament has set a requirement that Miss Harman cannot satisfy.

15.     It follows that I must affirm the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Leisa Pendle, Associate

Date of Hearing  7 March 2006
Date of Decision  17 March 2006
The Applicant appeared in person    
For the Respondent                  Ms S Oliver, Departmental Advocate