Hawkins and Secretary, Department of Social Services (Social services second review)

[2018] AATA 108

Hawkins and Secretary, Department of Social Services (Social services second review) [2018] AATA 108 (1 February 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2195

Re:Kristen Hawkins

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:1 February 2018

Place:Canberra

The decision under review is set aside and the Applicant is to be granted a carer payment with effect 11 August 2016.

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

Bill Stefaniak AM RFD, Senior Member

Catchwords

SOCIAL SECURITY – carer payment – whether Applicant provides constant care – whether Applicant provides constant care in a private residence that is the home of the care receiver – Applicant ‘on-call’ – reviewable decision set aside.

Legislation

Social Security Act 1991 ss 197, 197B

Cases

Halls and Secretary Department of Social Services [2014] AATA 129
Department of Families, Housing, Community Services and Indigenous Affairs and Towse [2008] AATA 763
Lemon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 305
Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Harvey [2009] AATA 835

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

1 February 2018

1. The Applicant, Kristin Hawkins, sought a carer payment for her son Jaidyn and lodged a claim on 11 May 2016.

2. This was knocked back and, after going through the review process unsuccessfully, the Applicant appealed to the AAT1 which affirmed the Respondent’s decision on 21 March 2017.

3. The AAT1 accepted that the Applicant provided constant care for Jaidyn, but found that it was not provided at a private residence that was the home of the care giver.

4. The Secretary, Department of Social Services, the Respondent, contends that because the Applicant was working full time at the date of the claim and during the qualification period, she is unable to satisfy s 197B(1)(d) of the Social Security Act 1991 (the Act) which requires that her capacity to undertake paid employment be severely restricted by reason of the provision of constant care.

5. Further, the Respondent contends that, because Jaidyn stays with his father for one week in every fortnight, the Applicant is unable to meet the requirements of providing constant care pursuant to s 197B(1)(a) and s 197B(2) of the Act (i.e. constant care and constant care which must be provided in a private residence that is the home of the care giver – the Applicant here). There is also a requirement, as mentioned above, that the provision of constant care must severely restrict the Applicant’s capacity to undertake paid employment as per s 197B(1)(d).

6. The Respondent advised the Tribunal that it accepts that the Applicant satisfies the qualification criteria in ss 197B(1)(b) and 197B(1)(c) of the Act.

7. The relevant period this Tribunal is looking at is 11 May 2016 to 11 August 2016.

8. As at the relevant period, the Applicant was separated from her husband (Jaidyn’s step father) and was living in Eden on the South Coast New South Wales. Jaidyn’s father, Gareth Fox, was living at Wolumla, a small village between Merimbula and Bega.

9. Jaidyn’s mother and father had and have custody of Jaidyn for one week in every fortnight respectively.

10. It was not in dispute that even when Jaidyn was living with his father the Applicant would on numerous occasions have to attend the school because of problems with Jaidyn and, on other occasions, she would have to take him to medical appointments.

11. Jaidyn had and continues to have significant medical, developmental, behavioural and mental health problems.

12. Neither party in this matter denied that looking after Jaidyn took a lot of effort. The issues for consideration were those listed above.

    The Legislation

13. The term “constant care” is not defined in the Act. The term “care” is defined in s 197 as including attention and supervision. “Constant” is an ordinary word and should be given its ordinary meaning. In the Australian Oxford Dictionary it means:

    “Continuous (needs constant attention) 2. Occurring frequently (receive constant complaints) 3. Unchanging, faithful, dependable” (see Halls and Secretary DSS [2014] AATA 129 and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harvey [2009] AATA 835.

14. This Tribunal agrees with the Respondents contention at para 5.14 of its Statement of Facts, Issues, and Contentions that “the question of constant care is a difficult one, and one which requires a holistic consideration of the circumstances specific to the case to hand.”

15. In Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 at para 7 SM McCabe said:

    “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 underlines the legislative scheme creating the carer’s payment: the benefit is paid to replace income that has been forgone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.”

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.

    THE EVIDENCE

17. The Applicant at the time was working full-time at the Caltex Depot in Eden, but because of the nature and circumstances of her job she was able to take time off to go to various medical appointments and attend Eden primary school when her son was being difficult.

18. After her contract ceased on 18 August 2016, she has ceased work, largely as a result of the problem she had with her son. Since then she has applied for some jobs without success because she declared she had responsibilities towards her son who had mental health issues. In short, she has found it impossible to get a job because of the need to care for her son.

19. The Applicant gave sworn evidence in person and was cross examined.

20. She stated she was on a short-term contract with the Caltex depot at Eden between June 2015 and August 2016. She stated during this period of time that Jaidyn got worse and that she would be frequently called to the school to attend to his needs and to assist teachers in controlling him.

21. The Caltex depot also employed a part-time worker and a full-time delivery driver. The Applicant said the manager who worked elsewhere and the other two staff were very nice but were not happy that she had to spend so much time caring for Jaidyn, and the manager was simply biding his time until her contract expired.

22. Jaidyn was in the special needs class at school that had one teacher, a teacher's aide and between 4 to 6 students. He had some severe disabilities.

23. He had dyspraxia, ADHD, a speech disorder, anxiety problems, motor coordination problems, significant behavioural problems and an intellectual disability. He took a number of medications. He was a very difficult student and very hard to teach. He was argumentative, prone to aggression and had tunnel vision.

24. He would argue daily with other teachers and students and had major difficulties in the playground. Whenever there were difficulties in the classroom the school would call the Applicant. He was a big boy aged 11 at the time and it took two adults to restrain him.

25. When agitated he would kick doors and windows, hit, scratch and bite other students and teachers, throw things like chairs at them and threatened to kill people. He remembered slights against him. There had been a number of incidents in 2016 and the last major incident was in June/July 2017 not long before the hearing.

26. It was an integral part of the school management plan that the school would call the Applicant to come to the school and get Jaidyn when things got out of hand. The Applicant was on constant call whenever Jaidyn was at school.

27. Jaidyn had severely injured other children and teachers in the past and had on one occasion strangled a seven-year-old and punched a teacher which caused the school to go into lockdown.

28. The school standard operating procedure when he was violent was for his mother to take him home. On other occasions she would be called and would attempt to calm him down over the phone. The Applicant would also be responsible for taking Jaidyn to approximately 100 medical appointments a year.

29. These ranged from appointments in Pambula/Bega, some 25 and 45 minutes’ drive away respectively, to longer overnight appointments in Canberra and on some occasions appointments lasting a week in Manly. On all but one occasion when his father took him, it was the Applicant who would take Jaidyn to these appointments.

30. On the occasion she would take Jaidyn to medical appointments in the local area (Pambula/Bega) he would often stay overnight at her place even if it was during the week when his father had access to him. This was because if he was taken back to his father he would get agitated. On some of these occasions she would have to keep him for two full nights at her house in Eden after appointments.

31. The Applicant further told the Tribunal that during the relevant period there was never one day at work when she could just do her job without having to do something involving Jaidyn

32. Jaidyn would have trouble toileting and would need assistance but he would not tell his teachers this which caused problems at school. Whilst he could turn on a shower and wash his body and according to his father, but not his mother, wash his hair, he could not dress himself, nor tie up his shoe laces, could not make his meals, could not cut up his meals, and on some occasions had trouble walking because of leg muscle problems.

33. When he was at his fathers he would catch the school bus. His father has a number of health issues as well and was and is basically house bound.

34. There have been a number of incidents on the school bus and Jaidyn has been bullied by older children. This has caused him to arrive at school in a very bad mood and problems would then occur at school. The ride takes about 60 minutes from Wolumla to Eden.

35. Accordingly, his mother would, from mid-2016 until the end of that year, meet the school bus daily and walk him around for about 30 minutes before school to relax him.

36. The Applicant described Jaidyn as a big 11 year old with the mentality of a 5 year old.

37. He at times had trouble walking due to his muscles tightening and his mother regularly had to attend to this.

38. The Applicant would also, regularly during the day, spend time on the internet researching his condition.

39. She also stated that she would on average get a call from the school at the relevant time in 2016 on average about 3 or 4 times a week of anything from 5 to 20 minutes duration. She would have to go to school on average anytime between 2 and 3 days per week.

40. The Applicant gave evidence that Jaidyn would also come into her bed 3 or 4 times a night if he was upset. He would also have melt downs with his big brother who did his best to assist her with chores around the house and playing with Jaidyn when he could.

41. Shortly before the Applicant’s contract finishing in August 2016 with Caltex Eden she started looking for another job – both part time jobs and full time jobs.

42. In August 2016 she applied for a job at the Mitre 10 Store in Pambula. She was the best qualified for the job, but as soon as she mentioned Jaidyn and the need for her to attend to his problems her prospective employers lost interest in her. She had the same experience at other job interviews. No one wanted to hire the mother of a special needs child.

43. The Applicant stated she would much rather be working and was quite happy to stack shelves if need be, but no one would have her because of Jaidyn.

44. She also stated that she was very stressed working at Caltex and was not managing. She concluded her evidence by stating that she would come home some nights in tears and that having a special needs child was extremely stressful.

45. The Applicant’s husband Gareth Fox gave evidence and effectively backed up what his wife had to say. The only point of difference was that the Mr Fox indicated Jaidyn could wash his own hair.

46. He confirmed Jaidyn was an absolute handful and that even when Jaidyn was staying with him, about once a week he'd stay overnight with his mother and he said half the time Jaidyn was staying with her she would be called up to go to the school to talk about his problems, if not daily then at least every second day.

47. Mr Fox found it hard, because of his condition, to be on the phone talking to people and he had depression and social anxiety disorder himself. He indicated he was largely housebound and left all the hard work to his wife as a result. That is why the Applicant did all the medical specialist appointments. He confirmed he had only taken Jaidyn to one. He said he did do the house work at Wolumla and did attend to Jaidyn’s needs when he was in the home.

48. He confirmed that the Applicant was the parent who had all the contact with the school and that Jaidyn would have medical appointments one or two times a week.

49. He further confirmed that Jaidyn would also talk to the Applicant by phone when he was with him and that Jaidyn missed her and his cat.

50. Tanya Vogt gave evidence. She is the principal of Eden primary and had been at the school for 23 years. She had known Jaidyn since he started kindergarten. She was also the welfare and well-being teacher and indicated that Jaidyn was in the senior support class which currently only had four children and 2 adults supervising.

51. She stated “In classroom if we have difficulties we call Mum.”

52. She stated that he was a big boy and it would take two adults to control him.

53. She confirmed that the Applicant was an integral part of the school plan to handle Jaidyn and that the school would call her to come and get him if he was being very difficult because it was so distressing for staff and students and for Jaidyn himself.

54. She stated Jaidyn would kick, bite and scratch other students. She stated his behaviour would ebb and flow and sometimes there might be no incident for a month and then there would be several incidents.

55. She was taken through the school records, which indicated that Jaidyn may not have been taken out of class as often as his mother and father stated. She did indicate that in 2016 not every incident was recorded and it was possible that the Applicant could have called the school and that had not been recorded.

56. She indicated there were more minor incidents than major ones for the simple reason that the school was able to get hold of the Applicant who would be able to calm Jade and de- escalate the matter before it got out of hand.

57. Ms Vogt indicated that in 2017 the school had started logging all phone calls but that was not the case in 2016. She indicated that in 2016 there had been a lot of difficulties with Jaidyn.

58. She further stated that part of the plan for Jaidyn was to exercise him and his mother would come to the school, meet him off the bus and take him away to exercise him for about half an hour to calm him down before school started for the day.

59. She told the Tribunal that the Applicant would meet the bus regardless of whether there had been an incident or not on it from about the middle of 2016 to the end of that year.

60. She agreed with the Applicant’s legal representative that it was quite possible that the Applicant could have picked Jaidyn up from school without signing him out.

61. Whilst the principal’s records indicated Jaidyn had been sent home nine times for behavioural problems in 2016 she did concede some incidents may not have been logged into the system because everyone was so involved in the incident itself.

62. She further stated that in 2016 there was an average of one incident per week involving Jaidyn. In some weeks there would be more on others less.

63. The principal further indicated the school would contact the Applicant about once a fortnight on average but the Applicant may well have contacted the school more often .She stated it was very difficult to be exact. She stated, in any one month, there might have been 6 to 8 times that were difficult and again conceded that not all incidents were reported.

64. She stated it was critical that the Applicant was on call as the school staff couldn't talk to Jaidyn and couldn't talk him around when he was argumentative. The only people who could deal with this was the Applicant or the Applicant’s mother (who had to ceased going to the school to help out prior to the relevant period as it was affecting her job).

65. School records tendered in evidence showed that Jaidyn had missed 12 days of school between 6 June and 11 August 2016 inclusive.

    SUBMISSIONS

66. The Applicant’s legal representative likened this matter to the matter of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Towse [2008] AATA 763 in that the Applicant was in a situation “where she was constantly waiting for the phone to ring.”

67. The Applicant’s legal representative stressed there was no really accurate record of the number of calls made to the school and stressed at the relevant time the Applicant would always meet the school bus when Jaidyn was staying that week with his father.

68. The Applicant’s legal representative stressed the hundred days per year of medical appointments and that the Applicant was proactive in terms of going to school to assist with problems and stop them getting bigger

69. The Applicant’s legal representative differentiated this case from that of Lemon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 305 and Milne (2008) and submitted that the availability of the Applicant was a key part of the behavioural plan.

70. The Applicant’s legal representative also submitted that the Applicant faced the small country town factor in relation to Jaidyn. Everyone would know him or at least of him. Everyone would know about Jaidyn – other parents, business owners – and this would have a significant impact on her capacity to sustain any employment.

71. The Applicant’s legal representative submitted that 25 hours referred to in the guide is not a prohibition that prevents a person getting a carers payment, the test is that it severely impacts on it but does not preclude one from getting a carers payment.

72. The Respondent submitted that no one could dispute the Applicant was a dedicated parent and referred to the case of Milne.

73. The Respondent’s legal representative indicated it was hard to work full-time and provide constant care and that the evidence didn't amount to full-time care on the weeks Mr Fox had Jaidyn. The Respondent said the hours just did not add up.

    DISCUSSION

    Does the Applicant fulfil s 197B(2) of the Act?

74. In order for the Applicant to qualify for a carer payment, pursuant to s 197B(2) of the Act, “The constant care must be provided in a private residence that is the home of the care receiver.”

75. Neither party really seemed to address this issue

76. It was however not disputed that the Applicant exercised her care from her home at Eden. Jaidyn went to school in Eden. He stayed at the Applicant’s house on the weeks she had him full time and he stayed at that house on the weeks he was meant to be at his father’s home in Wolumla but was unable to stay at Wolumla due to issues at school, or because of the need to stay there after each of his many local area medical appointments.

77. On the times he had to travel to Canberra (about three times a year) or Manly (twice a year for a week at a time) he would be accompanied by his mother and return to the Eden home with her.

78. His pet cats live at the Eden house.

79. I am satisfied that the care provided to him by his mother was care provided to him in a private residence that is the home of the care receiver. 

1. I am further satisfied that he spends more time at that home than anywhere else. The question is however, does the Applicant provide care that is constant care?

2. In the case of Halls and Secretary, Department of Social Services, Mr Hall cared for his son during the week and the son went to his mothers on weekends. The Department’s policy was to allow one day off caring a week as a guide but not two.

3. At Paragraph 21 in that case the Tribunal said:

   “… in carrying out the Tribunal’s ultimate task of making the correct ,or preferable decision on the materiel before it, we should apply the policy unless there is very good reason not to do so.”

4. See also in Re Drake and Minister for Immigration and Ethnic Affairs(No2) (1979) 2 ALD 634

5. The Tribunal went onto say (para 25) that the definition of “constant care” should not be applied in a purely formalistic way. Its meaning has to be considered in light of the underlying policy intent of the legislation. Mr Hall was caring for his son for a significant part of each day 5 days a week plus a significant part of each Saturday, shopping and washing for him.

6. In that case the son Jamie was also unpredictable in relation to when he attended, or needed to be picked up from Lifestyle Solutions and the father had to be on call effectively which made it harder for him to gain employment. At para 33 the Tribunal found that if Jamie attended Lifestyle solutions as he was meant to 4 days a week for 20 hours all up, that plus time on the weekend would then become available for Mr Hall to find a job.

7. However, that was not the case the Tribunal went on to say

   “..However, we find that the extent of Jamie’s unpredictable attendance made regular, substantial employment unrealistic for Mr Halls. The fact he was unable to maintain even casual work once he was caring for Jamie lends weight to this conclusion.”

8. The Tribunal found that Mr Halls qualified for carer payment.

9. This Tribunal notes that the Act is beneficial legislation and having regard to all of the evidence is of the opinion that the Applicant was lucky at the relevant time to hold down a full-time job.

10. It appears to be the fact that it was only because the manager was not located at the depot plus the fact she was on a short-term contract that expired in August 2016 that enabled her to attend the school so often and take so much time off work to attend to Jaidyn's problems, either when he was staying with her for the week or when he was staying with his father

11. Had it been any other job, or had the manager taken a different approach, she would either be out of work, or unable to attend to Jaidyn’s needs.

12. The Tribunal was impressed with her evidence, the evidence of her husband and the evidence of the principal Mrs Vogt.

13. The Tribunal finds that there were very few discrepancies between the evidence of the Applicant and her husband and that he largely corroborated what she said.

14. The main discrepancy in this case was between the amount of times that the Applicant said she attended the school or rang the school and the amount of time the school took a note of her attendance or contact and recorded.it.

15. That said, the principal was quite clear that not all incidents or phone calls would have been recorded in 2016. The principal was also quite clear is saying that the Applicant was an essential part of the care plan and that the school always used her as the first point of call if anything went wrong. At the relevant time she was on call whenever Jaidyn was at school.

16. There was no indication from any witness that Jaidyn’s father Mr Fox was in any way involved with the school for the obvious reasons as set out above; namely distance, the fact he was housebound and the fact that he had his own significant health issues.

17. The Tribunal accepts that it would be rare for a day to go by during the relevant period when Mr Fox had Jaidyn with him at Wolumla that the Applicant would not have to attend to some matter involving Jaidyn.

18. On the basis alone that there would be about 100 days per annum when the Applicant would have to take Jaidyn to medical appointments, this would mean that at least one or two times a week when Jaidyn was staying with his father, his mother would have to spend one and a half to two hours taking him to a local appointment, plus two days to take him to an overnight one in Canberra or perhaps even for one week to take him to Manly.

19. When one adds to that the time she would spend walking to school to meet the bus and spending approximately half an hour exercising Jaidyn before class, the times she would have to go to school during that period and the times while she was at work simply taking phone calls from the school, not to mention after each medical appointment having Jaidyn stay overnight with her, this amounts to a considerable period of time spent caring for Jaidyn when he was meant to be full-time with his father.

20. As well as this she was on call all the time Jaidyn was at school. And her situation there was similar to Hall’s case.

21. Mr Fox corroborated the time spent issue and indicated that Jaidyn and would on average spend 4 to 5 nights a week with him when he was the carer as a result it would seem of the above. The Tribunal accepts that estimate.

22. The whole idea of this legislation is to provide a benefit that replaces income that has been forgone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend. The idea is to provide.an adequate income for a person who otherwise would be able to work but can't because he or she is effectively a constant carer for a person.

23. It is clear to this Tribunal that at the relevant time as far as her job was concerned, the Applicant was “a dead woman walking” (her words). She knew this and was applying, unsuccessfully for other jobs. She also applied for this benefit effectively for these reasons.

24. It is clear to this Tribunal that her community being a small one where everyone knows everyone was not one conducive to her getting any work because of the need to look after her son on what in my view was to all intents and purposes, on a constant basis.

25. Had she not been on call to the school, and/or had Mr Fox been able to take Jaidyn to some of the appointments or been available to go to the school on occasions, then the situation may well be very different.

26. If I cannot take into account the fact that her employment was finishing up 7 days after the relevant period concerning us here, and have to be bound by the fact that she was still in employment at the time and therefore cannot look behind it, then her entitlement would not begin until 19 August 2016 and she may fail. But, I do not think that is what the legislation intends.

27. One has to look at the circumstances in each case. It is clear from the evidence  that at the relevant time (11 May to 11 August 2016) her employment was going to cease on 18 August 2016 and after that she could not be employed at Caltex Eden because of her caring duties,. Nor indeed could she be employed anywhere else as no employer was interested in taking her on because of those commitments

28. As a result, this Tribunal is satisfied that the Applicant satisfies the criteria as at the relevant time in 2016.

29. I should add, that in the spirit of the legislative intent of providing a benefit to compensate a carer for being unable to be in employment, because the applicant’s paid employment in this case did not cease until 18 August 2016, I believe the appropriate date her benefit should start is 11 August 2016, i.e. at the end of the relevant period, so that the Australian taxpayer suffers the least possible disadvantage.

30. Accordingly the decision under review will be set aside and the Applicant will be granted a carers payment with effect 11 August 2016.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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

Associate

Dated: 1 February 2018

Date(s) of hearing:	18 September 2017
Date final submissions received:	18 September 2017
Solicitors for the Applicant:	Illawarra Legal Centre
Solicitors for the Respondent:	Department of Human Services