Jackson and Department of Family and Community Services
[2000] AATA 636
•18 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 636
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/55
GENERAL ADMINISTRATIVE DIVISION )
Re GEORGE JACKSON
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION AND ORAL REASONS FOR DECISION
Tribunal Miss WJF Purcell (Senior Member)
Date18 July 2000
PlaceBrisbane
Decision For the reasons given orally at the Hearing of this matter the Tribunal affirms the decision under review.
(Sgd) WJF Purcell
Senior Member
CATCHWORDS
SOCIAL SECURITY – Carer Allowance – applicant cared for mother who suffers from dementia and lives next door – whether the applicant satisfied section 954(1)(d) of the Social Security Act 1991
Social Security Act 1991 ss 198(3), 954(1)
Kinsey v the Secretary, Department of Social Security [1999] 20 ALD 14.
Dunstall v Secretary, Department of Social Security A 18 12583
ORAL REASONS FOR DECISION
18 July 2000 Miss WJF Purcell (Senior Member)
This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 7 December 1999 which affirmed a decision of an Authorised Review Officer that the applicant was not qualified to receive Carer Allowance.
The evidence before the Tribunal comprised the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the applicant who appeared on his own behalf. Mr Foster, a Departmental Advocate, represented the respondent (the Department).
The applicant lodged a claim for Carer Allowance on 13 September 1999 in relation to his 86 year old mother who suffers from dementia. To qualify for Carer Allowance a person must satisfy Section 954 of the Social Security Act 1991 (the Act) which provides:
"954.(1) A person is qualified for Carer Allowance for a disabled adult (the care receiver) if:
(a)the care receiver is an Australian resident; and
(b)the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and
(c)the care receiver has been assessed and rated, and been given a score of not less than 30, under the Adult Disability Assessment Tool; and
(d)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and
(e)the person is in Australia; and
(f)the person is an Australian resident.
On 16 September 1999 a delegate refused the claim on the basis that the applicant did not meet the daily care requirement. The applicant requested a reconsideration, and the delegate, on 14 October 1999, advised the applicant by letter that he had decided that the decision was correct and stated in part:
"In making my decision I have taken into account the following factors:
You have stated that you are caring for your mother who lives in a flat you own next door to you, and that the two properties are under separate titles.
To qualify for payment of Carer Allowance, care and attention must be provided in a private home that is the residence of the carer and the person for whom they are caring (the care receiver). Carer Allowance is not payable where the carer and care receiver are living on separate properties". [T11/62]
On 19 October 1999 the applicant sought review of the decision. On 27 October 1999 the Authorised Review Officer affirmed the decision and stated in part:
"The reasons for my decision are as follows: I have considered the information in your claim and your statement dated 1 October 1999. I can understand your concerns about not being paid the allowance. However, the legislation states the care must be provided in a private home that is the residence of the person and the care receiver. The social security policy and legislation give examples of variations to care situations. The policy details situations of when the allowance can be paid and when it can't. Where the carer and care receiver live in dwellings that have separate titles, such as in a block of flats or adjacent dwellings, it cannot be accepted that the care receiver's home is the private residence of the carer and the care receiver. This example applies to you and your mother. The decision to reject your claim was correct." [T16/68]
The policy to which the Authorised Review Officer refers appears at T15/67 and reads:
"Social Security Policy and Legislation – current as at 18/10/99
Care and attention must be provided in a private home
Care and attention must be provided in a private home that is the residence of the carer and the care receiver (unless care receiver is hospitalised and the hospitalisation provisions can be applied). This also applies where the carer and care receiver are travelling or living overseas together.
This requirement is also satisfied where the care receiver is living in a granny flat or other dwelling that is attached to the home of the carer, or is separate but within the same property boundaries AND is in the immediate vicinity of the carer's dwelling. It is not satisfied where the dwellings are not within easy reach of each other.
Explanation: The carer must be able to provide daily care and attention and the requirement cannot be satisfied where the carer and care receiver's dwellings are not in close proximity.
Where the carer and care receiver live in dwellings that have separate titles, such as in a block of flats or adjacent dwellings, it cannot be accepted that the care receiver's home is the private residence of the carer and the care receiver." [T15/67]
The applicant applied for review of the decision and on 7 December 1999 the SSAT affirmed the decision, and, in the course of its Reasons for Decision, stated:
"EVIDENCE PROVIDED AT HEARING
5. Mr Jackson gave evidence to the Tribunal, which included the following. He had previously also provided a written statement to the Tribunal.
He was questioning the requirement that his property had to be on the same title as where his mother was living.
He cares for his 85 year old mother who has dementia and who lives on the next door property. Mr Jackson owns this property.
There is a gate between his home and the flat in which his mother lives. He has also put in a "buzzer" between the two homes.
His mother lived some three kilometres away until the end of last year when he moved her to the present location.
He believes his mother values the "dignity" of her own separate place but she will soon require more close care and he is building an extension to his present home to bring her into his home.
The flat in which his mother lives is on a separate title to his home. The two properties were on the same title in the past.
He has assets which are too high for him to receive the means tested carer payment..
He wants the law changed to include his situation as he considers that the change since the payment transferred to Centrelink has disadvantaged carers compared to what previously applied.
He provides his mother with a hot meal each day and visits her about 4 times daily.
APPLICATION OF THE LAW
10. Section 954(1) of the Act, as below, provides the qualifications for carer allowance. Mr Jackson meets all of the requirements except for Section 954(1)(d). That section requires that the care must be provided in "the residence of the person and the care receiver". Mr Jackson and his mother do not meet this requirement in that they are not living in the same residence. Centrelink has extended this qualification to include accommodations within the same titled property, even if not in the same residence. Mr Jackson's circumstances do not meet this extended definition in that his residence and his mother's residence are on separate titles."
It is not in dispute that the applicant's mother is a "disabled adult" and that she receives the requisite care and attention from the applicant. The issue is whether this care and attention is received in:
"….a private home that is the residence of the applicant and his mother."
The applicant submits that with respect to where the carer and care receiver live, Carer Allowance, for which he has applied, should be treated in the same way as Carer Payment is treated under the Act. Section 198 of the Act outlines the qualification for Carer Payment – a means-tested payment. Sub-section 3 provides:
"Care in home
198.(3) The care must be provided in a private residence that is the home of the care receiver or care receivers."
10. The applicant contends also, that in line with Departmental policy Carer Allowance would be paid in cases where people live further away from one another than do he and his mother, and as such, the letter of the law should be relaxed or altered in this case. The applicant contends further that: a "residence" is a place where one resides; that there is no qualification in the amount of time per day that one must spend in the residence to show that one is in residence. Further to this point, the applicant states that if he were asked to say where he resided he would say: at 2/2 Beatty Street when caring for his mother, and also at 19 Hawthorne Street. His mother resides he says at 2/2 Beatty Street and 19 Hawthorne Street.
11. The applicant, in the course of his submissions, referred to Departmental policy regarding Section 954 of the Act, which uses terms such as "close proximity", "immediate vicinity" and "easy reach" when qualifying the distance between a granny flat and a carer's residence for the purposes of the Section. He contends that the manner in which this distance is determined is not clear, and that a title deed should not make any difference. The applicant submits finally, that "care", in the case of Carer Payment and Carer Allowance, is the same, and a title deed should not make the difference. He queries why the rules as to where the carer and care receiver live were changed for Carer Payment, and not for Carer Allowance.
12. The Department submits that the properties, which are separate buildings on separate titles, next door to each other, and connected by a gate, cannot be regarded as the one home. It relies on Kinsey v the Secretary, Department of Social Security [1999] 20 ALD 14. As to the question whether one of the properties by itself constitutes "a private home that is the residence" of the applicant and his mother, the Department argues that this expression does not allow a person to have more than one residence; the term "the residence" contemplates that the residence in question is the only residence of the carer and the care receiver. It relies on Dunstall v Secretary, Department of Social Security A18 12583.
13. The applicant is clearly aggrieved by the determination that he does not qualify for payment of Carer Allowance unless he and his mother reside in the same residence; and in his written contentions he outlined his hopes that this Tribunal will, in effect, alter or relax the law. It is not the role of this Tribunal, however, to alter or relax the law as the applicant desires. It is for Parliament to enact the law, and this Tribunal to apply the legislation.
14. Section 954 of the Act refers to "a private home that is the residence of the person and the care receiver". Departmental policy is but guidance for Departmental officers; the legislation itself is paramount. In the matter of Kinsey, the legislation applicable was Section 39 of the Act wherein a person is requested to provide constant care and attention for another person in a home of the person and the other person. Gray J stated at page 17:
"In none of these cases is there any indication that separate buildings, on land in separate titles and under different ownership can together constitute one home. In my view, it would be necessary to stretch the meaning of the expression "home" to include such a situation. Nothing about the language of s 39 of the Act compels the conclusion that any departure should be made from the ordinary meaning of the word. The concept of a home is a nebulous one to some extent but is difficult to apply to 2 separate dwellings, each with its own facilities complete, owned and occupied by separate family groups, simply because there is ease of access between them and one person performs household duties, sleeps and eats in both. I am therefore of the view that the learned senior member applied the law correctly in reaching the conclusion which she reached on the question with which she dealt.
An alternative submission put to the Tribunal was that the house at 32 Gray Street and the flat at 17 Callander Street were 2 separate homes, but that each of them was a home of the applicant. The Tribunal did not deal with this argument at all. As the first group of cases to which I have referred shows, it is possible for a person to have more than one home. Nothing in s 39(1) of the Act seems to preclude the recipient of a carer's pension from having more than one home, so long as that recipient provides care for another person in a home which is both the home of the recipient and of the person for whom care is provided. In my view, the Tribunal erred in law in failing to determine whether the flat at 17 Callender Street, by itself, was a home of the applicant and of M. The findings of fact made by the Tribunal do not enable this question to be determined on appeal. It is necessary for the matter to be returned to the Tribunal for a determination of this question."
In this present matter I do not consider that these two dwellings on separate titles can together constitute one home.
15. I turn now to the submissions as to whether the home in which the applicant's mother resides could be regarded as the residence of both the applicant and his mother. The wording of Section 954 of the Act is different from Section 39 of the Act considered by the Federal Court in Kinsey. Section 39 of the Act refers to care provided in "a home of the person and the other person". This wording contemplates the possibility of two separate homes, but each of them could be a home of the applicant and the other person. Section 954 of the Act, on the other hand, refers to "a private home that is the residence of the person and the care receiver". I consider that, as was the situation in Dunstall, the use of the singular "the residence" signifies that only one residence can be the residence of the person and the care receiver, for the purposes of the Act .
16. The applicant's and his mother's living arrangements do not satisfy Section 954 of the Act, in my view; and the applicant is not qualified to receive Carer Allowance.
17. For these reasons the Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 18 July 2000
Date of Decision 18 July 2000
Date of Written Reasons 2 August 2000
For the Applicant Applicant in person
For the Respondent Mr N Foster, Departmental Advocate
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