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

[2018] AATA 1840

Hosseini and Secretary, Department of Social Services (Social services second review) [2018] AATA 1840 (18 May 2018)

Division:General and Other Division

File Number:          2017/3019

Re:Mohadeseh Hosseini

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member G Hallwood

Date:18 May 2018

Date of written reasons:        20 June 2018

Place:Adelaide

The decision under review is affirmed. This decision and reasons for the decision were provided orally on 18 May 2018.

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Member G Hallwood

CATCHWORDS

Social Security – Carer payment – Requirement of “constant care” – Decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s197, s198

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Milne and Secretary, Department of Families Housing Community Services and Indigenous Affairs [2008] AATA 689

SECONDARY MATERIALS

Guide to Social Security Law, 1.1.C.310

REASONS FOR DECISION

Member G Hallwood

20 June 2018

1. The decision under review was affirmed orally on 18 May 2018.  The paragraphs below provide background and reasons for the decision.

   BACKGROUND

2. After about four years living away from her Ms Mohadeseh Hosseini moved in with her mother, Mrs Hajar Yaghoubi, in the first week of August 2016.

3. On 11 August 2016 Ms Hosseini claimed carer payment in accordance with the Social Security Act 1991 (the Act) to provide care for her mother.

4. Ms Hosseini’s claim was rejected in writing by Centrelink on 9 September 2016 on the basis that the care she provided was not constant care.  A further claim for carer payment lodged on 4 October 2016 was also rejected on 11 November 2016.  A subsequent request was made for an authorised review officer (ARO) to review these rejection decisions.  The decision to reject was affirmed by the ARO on 2 February 2017.

5. A further review of the decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal on 16 May 2017 affirmed the decision to reject Ms Hosseini’s claim for carer payments.

   REASONS FOR THE DECISION

6. The qualifying criteria in order for Ms Hosseini to successfully claim a carer payment are set out in s 198 of the Act.

7. There is no contention that Mrs Yaghoubi meets the required rating under the Adult Disability Assessment Tool to receive care. There is also no contention that Ms Hosseini was providing care to Mrs Yaghoubi.

8. The issue in contention is whether Miss Hosseini was providing constant care to Mrs Yaghoubi in order to meet the requirement of s 198 of the Act.

9. Section 197 of the Act defines care which includes both attention and supervision.

10. Constant care is not defined in the Act. The Guide to Social Security Law (the Guide) at 1.1.C.310 presents Department of Social Services policy in respect of the meaning of constant care for the purposes of s 198 of the Act. The definition in the Guide provides:

    “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 Carer Payment 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”.

11. The Tribunal is not bound by Departmental policy guidelines.  Unless there are good reasons not to, such as causing an unlawful or unjust outcome, the Tribunal will usually apply policy so that there is consistency in decision making where situations match.[1] There were no submissions or evidence provided to the Tribunal suggesting a need to vary from policy.

    [1] See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

12. Since moving in with her mother Ms Hosseini has provided a range of supports for her mother including: working, cleaning, gardening, cooking, and shopping.  Ms Hosseini has also provided some assistance with toileting, showering and medication.

13. Also evident are the benefits of Mrs Yaghoubi’s daughter’s companionship described by her GP Dr Jaber in his report of 24 May 2017 stating that Ms Hosseini can provide moral and mental support whether as a full‑time or part‑time carer, and that Mrs Yaghoubi feels more comfortable and secure with her daughter.  Dr Somasundaram, Mrs Yaghoubi’s treating Psychiatrist, recommended in a report of 1 June 2017 that because of the positive impact her daughter was having that Ms Hosseini should be made her full‑time carer.

14. At the time of her claim in August 2016 Miss Hosseini was 17 years old and provided in evidence that she was a full‑time student.  As Ms Hosseini was aged under 18 she was referred to a Centrelink Social Worker on 22 August 2016 to consider whether she was capable of providing constant care to Mrs Yaghoubi.

15. The Social Worker provided a report that despite a range of care, assistance and companionship being provided by Miss Hosseini to Mrs Yaghoubi, it appeared the level of care was not beyond the normal range of activities expected of a family member and that there did not appear to be a substantial amount supervisory and personal care provided.

16. Ms Hosseini provided evidence that she was a full‑time student, although not attending school, up until early October 2016 when her mother went on holiday to Iran.  Mrs Yaghoubi indicated that her trip to Iran was until Christmas 2016.

17. While traveling to Iran Mrs Yaghoubi was accompanied by a neighbour.  She stayed with her brother, a nurse, and his family while in Iran.  Ms Hosseini’s evidence was that she provided pre‑planning and telephone support to her mother during the first month of the Iran trip and then joined her for the remainder of the trip having given up school to become her mother’s full‑time carer.  Ms Hosseini also indicated that her uncle and his family provided a significant amount of the care her mother needed while they were in Iran.

18. While Ms Hosseini was providing support to her mother, in order to receive a carer payment she must meet the constant care provision which roughly equates to daily provision of care equivalent to a normal working day.

19. Senior Member McCabe has explained the term “constant care” indicating that it is not enough that the person providing the care undertake tasks that would normally form part of managing a household such as washing, ironing or cooking.  The care required to meet the care described in the Act may be active (helping them to wash, dress or feed) or passive (supervising or monitoring them to ensure they are not injured, hungry or lost).[2]

    [2] See Milne and Secretary, Department of Families Housing Community Services and Indigenous Affairs [2008] AATA 689.

20. The evidence presented supported Ms Hosseini having provided a range of care that was useful and well received by her mother.  Having considered all of the evidence it is clear that the care provided by Ms Hosseini that meets the requirements of the Act could be undertaken in a fraction of a normal working day.  This is reinforced by the evidence provided by Ms Hosseini that at the time of the original claim she was a full‑time student.

21. It is not evident in relation to this claim that Ms Hosseini was providing constant care to Mrs Yaghoubi.  

    DECISION

22. The decision under review is affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood

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Administrative Assistant

Dated: 20 June 2018

Date(s) of hearing:	18 May 2018
Advocate for the Applicant:	Mrs H Yaghoubi
Advocate for the Respondent:	Mr O H F Morris
Solicitors for the Respondent:	Department of Human Services