Jackson and Secretary, Department of Social Services (Social services second review)
[2019] AATA 165
•18 February 2019
Jackson and Secretary, Department of Social Services (Social services second review) [2019] AATA 165 (18 February 2019)
Division:GENERAL DIVISION
File Number: 2017/7438
Re:Lynkin Jackson
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:18 February 2019
Place:Brisbane
The Tribunal affirms the decision under review.
............................[SGD]...........................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – carer payment – carer allowance – whether care person was personally providing constant to the care recipient – decisions under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)CASES
James and Secretary, Department of Social Services [2014] AAT 802
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
Cavanagh-Hans and Secretary, Department and Social Services [2017] AATA 687
Gidley and Secretary, Department of Social Services [2018] AATA 2890.
REASONS FOR DECISION
Member D Mitchell
18 February 2019
INTRODUCTION
On 5 April 2017, Master Lynkin Jackson (the Applicant) lodged a claim for carer payment and carer allowance in respect of care for his mother, Ms Hayley Jackson.[1]
[1] Exhibit 1, T Documents, T 6, pages 38-59, Claim for Carer Payment and/or Carer Allowance.
The claim for carer payment was rejected on 10 April 2017 on the basis that the Applicant had been assessed as spending more than 25 hours a week away from care to undertake employment, voluntary work, study or training. [2]
[2] Exhibit 1, T Documents, T 10, page 79-80, Letter from the Department: Rejection of your claim for carer payment.
The claim for carer allowance was rejected on 10 April 2017 on the basis that the Applicant had been assessed as not meeting the daily care requirements. [3]
[3] Exhibit 1, T Documents, T 9, page 77-79, Letter from the Department: Rejection of your claim for carer payment.
The decisions were reviewed by an Authorised Review Officer (ARO) and affirmed on
5 July 2017.[4][4] Exhibit 1, T Documents, T 12, page 87-92, Decision of the Authorised Review Officer.
The Applicant sought a first-tier review of these decisions by the Social Services and Child Support Division of this Tribunal (SSCSD) who affirmed the decision of the ARO on
28 November 2017.[5][5] Exhibit 1, T Documents, T 2, pages 5-10, Decision of the Social Services and Child Support Division of the Tribunal.
Following this, the Applicant sought a second-tier review of his applications by the General Division of this Tribunal, by way of an application dated 14 December 2017.[6]
[6] Exhibit 1, T Documents, T 1, pages 1- 4, Application for Review of Decision.
On 12 June 2018, based on an agreement reached by the Applicant and Respondent in relation to the Applicant’s qualification for carer allowance, the Tribunal issued a decision that:
1.1
the Applicant satisfied the requirements of subsection 954(1) of the Social Security Act 1991 (Cth) in relation to carer allowance as at the date of claim
(5 April 2017; and
1.2subject to the Applicant satisfying any other qualification or pay ability requirements, the claim for carer allowance lodged on 5 April 2017 is to be granted.[7]
[7]Consequently, only the Applicant’s application for review of the decision relating to his claim for carer payment remains before the Tribunal and will be the subject of this Decision.
On 12 July 2018, a Hearing was held for this application. The Applicant was represented by his mother Ms Jackson. Both the Applicant and Ms Jackson appeared in person and gave evidence by affirmation at the Hearing.
On 15 January 2019, Executive Deputy President Dr P McDermott RFD reconstituted the Tribunal[8] so that the matter would be determined by Member Mitchell. On 21 January 2019, a Directions Hearing was held. The parties did not wish to make further submissions.
[8] Section 19D of the Administrative Appeals Tribunal Act 1975 (Cth).
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive carer payment at the date of his claim or within 13 weeks thereafter.
BACKGROUND
In lodging his claim for carer payment and carer allowance the Applicant completed the ‘Centrelink Carer Payment and/or Carer Allowance Caring for a person 16 years or over form’.[9] The form was lodged on 5 April 2017[10] and claimed carer payment in relation to his mother Hayley Jackson on the basis that he provides constant care for her in her home. The Applicant provided that he undertakes study at Robina State High School for 25 hours a week with an additional 10 minutes travel time.[11]
[9] Exhibit 1, T Documents, T 6, pages 38-59, Claim for Carer Payment and/or Carer Allowance.
[10] Exhibit 1, T Documents, T 17, page 134, Files notes from the Department’s Mainframe.
[11] Exhibit 1, T Documents, T 6, page 52, Claim for Carer Payment and/or Carer Allowance.
At the time of making the application the Applicant was 14 years old and attending year 9 at High School on a full-time basis.
Together with his application for carer payment and carer allowance the Applicant provided:
- An application made for a tax file number;[12]
- A completed ‘Carer Payment – Income and assets details of the person being cared for – 16 years and over form’; and[13]
-
A ‘Carer Payment and/or Carer Allowance Medical Report’, completed by
Dr Gregory Shrimpton dated 5 April 2017.[14]
[12] Exhibit 1, T Documents, T 6, pages 58- 59, Claim for Carer Payment and/or Carer Allowance.
[13] Exhibit 1, T Documents, T 7, pages 61- 70, Carer Payment: Income and Assets details.
[14] Exhibit 1, T Documents, T 8, page 71-76, Carer Payment and/or Carer Allowance: Medical Report.
As part of his claim the Applicant, with the assistance of Ms Jackson, completed an ‘Adult Disability Assessment Tool’ (ADAT) in relation to the day-to-day care needs, cognitive function and behaviour of Ms Jackson. He provided that Ms Jackson:[15]
[15] Exhibit 1, T Documents, T 6, pages 43-44, Claim for Carer Payment and/or Carer Allowance.
- Could move around the house with help of one person;
- Fell over indoors or outdoors sometimes;
- Could move to and from bed, chair, wheelchair and use walking aids with a lot of help;
- Never had difficulty hearing or seeing others;
- Needed help or attention during the night often;
- Sometimes had loss of bladder control or bowel control or both;
- Used continence aids or equipment without help;
- Used the toilet with some help;
- Could eat her food without help;
- Could shower or bath themselves with some help;
- Could dress herself with a lot of help;
- Could look after her grooming with some help;
- Take care of her medication with a lot of help;
- Take care of their own treatment with a lot of help;
- Usually understood what he and others said and remember things that happened today;
- Always let others know how she felt and what she wanted, knew where she was and whether it is morning afternoon or night;
- Would never wander away or physically harm others; and
- Would often shout, scream at, or threaten other people; damage furniture, possessions or objects, laugh or cry without apparent reason; withdraw from contact with other people or appear depressed, worried or fearful; deliberately harm herself; and, have unusual, inappropriate or repetitive behaviours.
In completing the ‘Carer Payment and/or Carer Allowance Medical Report’, dated
5 April 2017, Dr Shrimpton also completed an ADAT in relation to the day to day care needs, cognitive function and behaviour of Ms Jackson. He provided that Ms Jackson:[16][16] Exhibit 1, T Documents, T 8, pages 74-75, Carer Payment and/or Carer Allowance: Medical Report.
- Needs some help to use the toilet;
- Needs minor help (verbal or physical) to transfer form bed to chair and back (minor help meaning 1 person easily, or needs any supervision for safety);
- Walks with help of one person;
- Needs help with stairs;
- Is independent in relation to feeding (able to eat any normal food, can be cooked and served by others but not cut up), dressing (select and put on clothes) and grooming (refers to personal hygiene: cleaning teeth, fitting false teeth, doing hair, shaving, washing face) herself;
- Is continent in relation to bowel movements; however, has the occasional accident in relation to bladder control;
- Requires assistant with bathing;
- Is not cognitively impaired and does not show signs of memory loss;
- Shows signs of depression and withdrawal from social contact most of the time;
- Sometimes displays aggression towards self or others; and
- Often displays disinhibited behaviour.
On 10 April 2017, a decision was made to reject the Applicant’s claim for carer payment on the basis that he spent more than 25 hours a week away from care to undertake employment, voluntary work, study or training.[17]
[17] Exhibit 1, T Documents, T 10, pages 79-80, Letter from the Department: Rejection of your claim for carer payment.
A Social Worker Report was provided on 30 May 2017 as a result of an in-person assessment undertaken by the Applicant and Ms Jackson at the Department’s Customer Service Centre at Nerang.[18] The end summary provided in the report was:
Social Worker does not recommend the carer’s payment be granted. Lynkin does not appear to have the emotional capacity, understanding or concentration, planning and organisation skills required to provide the required care for his mother, Hayley Jackson. Hayley provides ongoing support to Lynkin due to his ADHD and she has recently engaged with further community supports.[19]
[18] Exhibit 1, T Documents, T 11, pages 81-86, Social Worker Report.
[19] Exhibit 1, T Documents, T 11, page 86, Social Worker Report.
On 5 July 2017, an ARO affirmed the decision to refuse the Applicant’s carer payment application on the basis that the Applicant does not meet the constant care or daily care provision for the purposes of the Act.[20]
[20] Exhibit 1, T Documents, T 12, pages 87-92, Decision of the Authorised Review Officer.
On 7 September 2017,[21] the Applicant sought review of the ARO decision by the SSCSD and provided:
- Letter dated 22 November 2017 from Fiona Fox in support of the Applicant’s carer payment application;[22]
- Functional Impact Assessment Report dated 27 September 2017 of Aubri Hendrick, Mental Health Occupational Therapist in relation to Ms Jackson;[23]
- Letter and HoNOS Report dated 19 September 2017 from Jude Markland in relation to Ms Jackson;[24]
- Letter dated 15 November 2017 from Cathy McCann dated 15 November 2017 in support of the Applicant’s carer payment application;[25] and
- Copy of the Applicant’s school leave pass.[26]
[21] Exhibit 1, T Documents, T 13, pages 93, Letter from the Department: confirmation of application for first review.
[22] Exhibit 1, T Documents, T 14, pages 94-95, Letter from Fiona Fox, Partners in Recovery Gold Coast (with attachments).
[23] Exhibit 1, T Documents, T 14, pages 96-103, Letter from Fiona Fox, Partners in Recovery Gold Coast (with attachments).
[24] Exhibit 1, T Documents, T 14, pages 14-111, Letter from Fiona Fox, Partners in Recovery Gold Coast (with attachments).
[25] Exhibit 1, T Documents, T 15, page 113, Email from Hayley Jackson (with attachments).
[26] Exhibit 1, T Documents, T 15, pages 114-115, Email from Hayley Jackson (with attachments).
On 1 June 2017, the decision under review was affirmed by the SSCSD.[27]
[27] Exhibit 1, T Documents, T 2, pages 5-10, Decision of the Social Services and Child Support Division of the Tribunal.
THE LAW
The relevant law in assessing a person’s qualification for carer payment is found in the Social Security Act 1991 (the Act); and, the Social Security (Administration) Act 1999 (Administration Act).
Section 198 of the Act prescribes the criteria that must be met by an Applicant to qualify for carer payment of a disabled adult (care receiver). In the present case, the predominate qualification questions before the Tribunal are:
1)Does the Applicant personally provide constant care for the disabled care receiver (section 198(2)(a) of the Act); and
2)Has the care receiver been assessed and rated under the ADAT and been 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 (section 198(2)(a)(i) of the Act); and
3)Is the care being provided in a private residence that is the house of the care receiver? (section 198(3) of the Act).
The Administration Act sets out that qualification for carer payment. The qualification for carer payment is to be determined at the date of claim or, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, the date the person becomes qualified.[28]
[28] Sections 41 and 42 of the Administration Act; Schedule 2, Part 2, Clauses 3 and 4(1) of the Administration Act.
Relevant Period
The Relevant Period in this matter commences on 5 April 2017, being the date the Applicant lodged his carer payment application, and ends 13 weeks later on 5 July 2017. The Tribunal is limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
Qualification Requirements
Based on both the Applicant’s and Dr Shrimpton’s responses to Centrelink questionnaires required as part of the claim for carer payment, Ms Jackson has been rated under the ADAT with an overall score of 88.75 with a total professional questionnaire score of 30.[29]
[29] Exhibit 1, T Documents, T 16, page 119, Screen captures from the department’s mainframe.
As the overall ADAT score is greater than 25 with a total professional questionnaire score greater than 10, I am satisfied that Ms Jackson (the care receiver) is a disabled adult and the requirements of section 198(2)(a)(i) of the Act are met. This finding is not disputed by the Respondent.[30]
[30] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 4, paragraph 19.
At all times the evidence before the Tribunal confirms that the Applicant both lived with and provided care to Ms Jackson the care recipient at her private residence. I am therefore satisfied that the requirements of section 198(3) of the Act are met. This finding is not disputed by the Respondent.[31]
[31] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 9, paragraph 33.
The remaining issue for the Tribunal to consider is whether the Applicant personally provided constant care for his mother, Ms Jackson (the care receiver) during the Relevant Period.
Does the Applicant personally provide constant care for the disabled care receiver pursuant to section 198(2)(a) of the Act?
What is constant care?
‘Constant care’ is not defined in the Act, however, ‘Care’ is defined in section 197 of the Act as ‘includes attention and supervision’. The term constant is defined in the Australian Oxford Dictionary as ‘occurring frequently, unchanging faithful, dependable’.
The Respondent drew the Tribunal’s attention to the definition of ‘constant care’ in the Guide to Social Security Law, which provides:[32]
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 a carer payment is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities.[33]
[32] Guide to Social Security Law, Chapter 1.1.C.310.
[33] A policy document can be applied unless there are cogent reasons not to do so, see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The Tribunal has considered the meaning of ‘constant care’ for the purposes of carer payment on many occasions. Relevantly, Member Denovan remarked in James and Secretary, Department of Social Services:[34]
There are numerous hardworking committed members of the community who, after attending to demands of their paid employment, selflessly commit much of the remainder of their time helping elderly and disabled friends and family. The benefit to the care receivers, as well as to the public purse is obvious. Yet these people providing care will not qualify for Carer Payment, irrespective of how many hours they attend the care recipient. As identified in previous matters before the Tribunal, Carer Payment is for those who are unable to maintain substantial employment (or study), as a result of the care they provide. If the needs of the care recipient are flexible enough that the carer can be attended to outside the times when the carer is required to work or study then Carer Payment is not payable.
Performing household domestic duties, cooking, cleaning, attending to the laundry and other similar activities are not of the nature of duties required to satisfy the requirement that constant care is provided. These are tasks that can be completed when it suits the care giver. Domestic duties, assisting with transport to appointments, assisting with paper work, making sure bills are paid, organising domestic maintenance and repairs, and providing excursions and outings, are all types of activities that can be done at the convenience of the carer, usually outside of the hours they must attend work. These tasks, although sometimes time consuming, do not require the constant presence of a care giver.
The type of care necessary for Carer Payment is that which is determined by the medical needs of the care recipient. Constant care does not need to be active, it can be supervised, for example, a care receiver may have dementia and require constant supervision to prevent them wandering. What constitutes constant care will vary from case to case; the common element is the fact that the care is needed on more or less continuous basis. It is not necessary for a carer to be present 100% of the time in order to qualify for Carer Payment. It is a question of how much of the carer’s time is occupied in the role of caring. If the needs of the care recipient are flexible enough to allow a carer to engage in substantive employment or study, the care giver will not qualify for Carer Payment.
An important consideration is how much time the care giver has control over, and whether they could attend to, the care recipient’s needs and still allocate sufficient time to attend to the needs of substantive employment or study. It is only when the needs of the care recipient are such that the care giver is unable to maintain substantial employment or study that it is appropriate they receive Carer Payment.[35]
… It is not enough to be regularly in the company of a care recipient. Constant care is only given if the carer’s presence is necessary, and is related to needs generated by the medical conditions of the care recipient.[36]
[Emphasis added]
[34] [2014] AATA 802.
[35] James and Secretary, Department of Social Services [2014] AATA 802 [34]-[37].
[36]James and Secretary, Department of Social Services [2014] AATA 802 [44].
Further there is no time threshold placed on hours of care provided when qualifying for carer payment. The Tribunal has considered this issue on a number of occasions and I agree with the view expressed by Senior Member Kenny in Confidential and Secretary, Department of Families Housing, Community Services and Indigenous Affairs[37]:
That test is not expressed in terms of a specified number of hour of care but whether care is provided for a significant period of each day such that the carer is unable to undertake substantial employment.
[37] [2013] AATA 582 [19].
While the Tribunal is not bound by previous decisions, in reaching the preferable decision one of the factors to be considered is consistency with comparable cases and decisions.[38]
[38] Re Drake and minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.
Evidence of Care Provided
A Social Worker Report was provided on 30 May 2017 as a result of an in-person assessment undertaken by the Applicant and Ms Jackson at the Department’s customer Service Centre at Nerang.[39] The report provided:[40]
[39] Exhibit 1, T Documents, T 11, pages 81-86, Social Worker Report.
[40] Exhibit 1, T Documents, T 11, pages 81-86, Social Worker Report.
- The Applicant has an average build for a 14 year old male and would manage typical household chores and assistance to get things for his mother. If his mother were to fall, the Applicant may have difficult assisting to get her up. The Applicant’s mother was observed to get up out of her chair independently from the wait room and from the interview room. She was also observed mobilising independently to and from the interview room. The Applicant was unable to verbalise his mother’s medical conditions during the interview;
- The Applicant advised he gets Ms Jackson’s medication from the chemist however is unaware of what medication she takes and advised she is independent with taking her own medication;
- During the interview, it appears the Applicant would have difficulty providing prompts, reminder or emotional support to Ms Jackson. He advised he has difficulty remembering to do tasks if he has more than 1. Ms Jackson advised that due to the Applicants ADHD she assists with his memory, homework and planning and organisation;
- The Applicant advised he will get Ms Jackson’s clothes and effects ready for the shower, however she is independent with showering;
- Ms Jackson advised sometimes she requires assistance to get off the toilet;
- The Applicant attends school all day and advised he gets Ms Jackson’s food and drink for the day while he is away;
- The Applicant prepares meals and does all the housework;
- Ms Jackson confirmed she is independent with showering. Ms Jackson advised that the Applicant will get her things ready for her and will assist with some aspects of getting dressed and occasionally assist her get of the toilet;
- Ms Jackson advised she is independent with personal activities of daily living but does required the Applicant to get things ready for her;
- The Applicant appears capable of taking care of the household tasks with supervision, however would not be able to provide further support such as emotional or any other due to his ADHD; and
- The Applicant advised he attends school all day. He informed he only lives across the road and can go home during breaks to check on his mother.
In an undated statement the Applicant provided that he provides the following care:[41]
[41] Exhibit 4, Statement of the Applicant, received by the Tribunal on 23 April 2018.
- Before school – assists Ms Jackson with dressing and prepares breakfast;
- During the school day – comes home during lunch and recess to check on Ms Jackson and help her get out of bed and go to the toilet and prepare her lunch;
- After school – cleans the house, does the shopping and other chores that Ms Jackson cannot do. Makes healthy meals for dinner and reminds Ms Jackson to take her medication every night;
- Without specifying the time of day, the Applicant also provided he:
o Assists Ms Jackson to move around the house, by assisting her in and out of bed or the lounge, getting her walker or assisting her to walk;
o Assists Ms Jackson go to the toilet when her back is really bad;
o Cleans up incontinence accidents;
o Assists Ms Jackson in the shower to help her wash her hair and the lower half of her body;
o Applies Ms Jackson’s ointments to her boils, put creams on her eczema and deep heat on her ankles and legs when she is in pain;
o Goes to all Ms Jackson appointments with her;
o Lifts the walker in and out of the car;
o Makes Ms Jackson happy when she’s crying and sad;
o When Ms Jackson is getting frustrated or angry in public calms her down; and
o Does the banking.
The Applicant also provided in his statement that he has ADHD and takes medication each morning to help him with his concentration. He provided he was always well behaved and very mature and the effect of his medication last the whole day. He wrote ‘Mum and I use picture cards and timetables and diaries to help stay organised.’
The Applicant provided in his claim for carer payment that at the Relevant Period he undertook study at Robina State High School for 25 hours a week with an additional 10 minutes travel time.[42]
[42] Exhibit 1, T Documents, T 6, page 52, Claim for Carer Payment and/or Carer Allowance.
The Applicant gave evidence under affirmation and, at the Hearing, told the Tribunal that at the time of making his application he was in year 9 and that he left for school around
9:00am and had to be at school at 9:10am and would leave school at 3:00pm. The Applicant said that recess was around 10:30am and that he could go to the office, use his pass, go and check on Ms Jackson and make sure she had something to eat in the morning, then two minutes before the bell was about to ring, go back to school and sign back in. He said that if Ms Jackson desperately needed help she would call him and then he would go to the office, tell them he needed to go and then would go home since he only lived a minute away. Otherwise he went every recess. The Applicant said he had to sign out of school to go home.[43] The Applicant also said he went home at lunch time and would make sure Ms Jackson got out of bed and tried to walk around, that she had been to the toilet and make her some lunch.[44]
[43] Transcript pages 27- 28.
[44] Transcript page 29.
The Applicant also told the Tribunal at the Hearing that he would wake up around 8 am and would check on Ms Jackson first, help her up, take her - help her to the toilet and while she was in there get all of their stuff ready. When asked what sort of stuff he would get ready he said:
So firstly, I would get her medication, make sure she has like, water to take it with, and while she was at the toilet, then I would help her off it, and the I would go and get myself ready for school.[45]
[45] Transcript page 27.
The Applicant also told the Tribunal that:[46]
[46] Transcript pages 28-31.
- He would get Ms Jackson’s clothes out of the drawer and help her put her clothes on;
- He would make Ms Jackson breakfast;
- Make sure the house would be clean;
- When he got home in the afternoon he would make sure Ms Jackson had gone to her appointments, or if she still needed to go make sure she is ready for them to go to them;
- He would go to Ms Jackson’s appointments unless Joel or Fi were there;
- On days where Ms Jackson did not have an appointment, after school he would help Ms Jackson out of her room, take her to the lounge room, ‘then just constantly help her. Like if she needs to go back to the toilet, I would help her.’;
- He did the grocery shopping once a week. Ms Jackson would write a list but he did all of the carrying buying, figuring out what was needed;
- In the morning, he would quickly do the dishes and make sure the washing was on before he left for school and when he got home he would clean up a little bit more;
- When he got homework, he did it around ‘4ish to 5ish’ and Ms Jackson did not really help with that;
- He made dinner each night;
- He normally went to bed around ‘11ish’. He would make sure Ms Jackson was in bed, get all of her clothes ready for tomorrow and that Ms Jackson knew what was going on tomorrow;
- On weekends, he would just stay home and play computer games sometimes;
- He did not see his friends that much on weekends or holidays and if he did they would go over to Robina Town Centre, which is three minutes away; and
- He did not play any sports.
In an undated statement Ms Jackson provided that:
I have severe sleep apnea and I don’t fall asleep until around 3am so I generally sleep during the day (I wake up in the morning but need to go back to bed before Lynkin leaves for school) and am awake when Lynkin comes home from school, it’s during this time (3pm – 12 am) that Lynkin provides the most care, this is when he helps with showering, prepares healthy meals, helps with medication and keeps my moods balanced by engaging in different activities and tactics to avoid become upset or depressed as I cry for long periods of the day and Lynkin is the only one who knows how to console me. He also helps at night by putting me to bed and setting up my cpap machine and getting my medicine ready. He also gets up during the night when my GERD is playing up and I vomit and accidently wet myself, this happens 4/7 nights a week. He also is a light sleeper as his [sic] always checking on my breathing and making sure my cpap machine is working properly as I have long paused where I don’t breathe.” [47]
[47] Exhibit 5, Statement of Ms Jackson, received by the Tribunal on 20 and 29 June 2018.
Ms Jackson gave evidence under affirmation and, at the Hearing, told the Tribunal that:[48]
[48] Transcript pages 14-25.
- When the claim for carer payment was made, the Applicant had an arrangement with the school where he could come home during lunch and recess so that he was not actually at school for 25 hours but rather more specifically 24 hours;
- The arrangement with the school was set out in a letter from the principal as they only lived directly across the road from the school;
- She would be able to send the Applicant a text and he could come and he would help her with her lunch, get changed and other activities she needed help with;
- The Applicant “does go to school and does not have a formal arrangement to not be present at school for the normal time period but the stuff that he does when he gets home from school, he spends at least eight hours a day after school helping her which is more time spent at home helping her than what the time is away from her”;
- The Applicant gets home from school at 3:00pm and does not go to bed until 11:00pm;
- The Applicant was a full time study who attended school from 9:10am in the morning until 3:00pm with 10 minutes a week travel time;
- When asked how did the Applicant know that Ms Jackson needed him while he was at school she said by a text. Then when asked about not being able to provide any evidence about the days the Applicant would come home she provided ‘No because I was – he didn’t want me to send him a text, like I could have done that if I was asked.’;
- She slept when the Applicant was at school;
- In April 2017, she would drive only to appointments; however, not on her own as she could not lift her walker in and out of the car by herself;
- When she was attending classes, Fiona Fox would help by picking her up and that some days she could take herself as well;
- Fiona Fox helped her for her mental not physical health;
- When asked if, in May 2017, she was “independent with showering; is that right?” She answered “Yes.”;
- When the Respondent raised the Social Worker Report Ms Jackson said “To rely on the Social Worker’s Report is outrageous to me because she has said things that were not true and she has put down incorrect things.”;
- With further questions about the assistance the Applicant provided in relation to showering:
o The Applicant was only washing my hair;
o He would also have to wash the lower part of me; and
o Otherwise independent in showering.
- She would not help with making dinner but would instruct – she would give instructions on how to make dinner but could not help;
- The Applicant would get her clothes ready for her;
- The Applicant would occasionally assist her getting off the toilet and sometimes she was independent;
- The Applicant would bring her medication; however, she could get it herself if he was not there and she needed it;
- She had prepared task cards for different things. For homework, for the Applicant to brush his teeth, to have breakfast and do all that kind of stuff. To follow routine; and
- Better Care would provide two hours per fortnight of cleaning to support the Applicant.
The Applicant called Ms Fiona Fox from Partners in Recovery to provide evidence at the Hearing. It is noted that Ms Fox provided a letter dated 22 November 2017, together with various attachments in support of the Applicant’s application to receive the carer allowance,[49] and a further letter dated 27 February 2018, in support of the Applicant’s application for carer payment.[50] In the letter dated 27 February 2018, Ms Fox provided:[51]
With regards [the Applicant’s] role as carer; he is recognised as Hayley’s primary carer by the Young Carers Program. [The Applicant] helps Hayley stay connected in their local community, be physically and mentally active and prepares nutritious food. [The Applicant] undertakes tasks such as shopping and housework as well as a more intensive care role in helping Hayley with daily living tasks such as dressing, assistance with mobility issues and taking medication.
[49] Exhibit 1, T Documents, T 14, pages 94-111, Letter from Fiona Fox (with attachments).
[50] Exhibit 3, Letter from Ms Fiona Fox from partners in Recovery – Gold Coast, dated 27 February 2018.
[51] Exhibit 3, Letter from Ms Fiona Fox from partners in Recovery – Gold Coast, dated 27 February 2018.
Ms Fox provided evidence under oath, in person and told the Tribunal that:[52]
- She is a mental health support facilitator for Partners in Recovery;
- Partners in Recovery support people with severe and persistent mental illness overcome barriers to connecting with community services;
- Ms Jackson was self-referred and that she has worked with her to connect with a clinical psychologist, make an NDIS application, organise other community supports;
- Just Better Care provided domestic support for one to two hours a week to Ms Jackson;
- She had seen the Applicant assist Ms Jackson getting dressed when they attended Hydro sessions and at the GP and that he holds her bag all the time when she is walking.
[52] Transcript pages 33-38.
The Applicant called Ms Cathy McCann, a Carer Support Officer of the Young Carer Program,[53] to provide evidence at the Hearing. It is noted that Ms McCann provided a letter in support of the Applicant’s claim as a carer, dated 15 November 2017, and provided in summary that “[the Applicant] has been providing significant care and attention both physically and emotionally on a daily basis to his Mum Hayley, since 2016 due her disabilities and regardless of his own health.”.[54]
[53] This is a program run by the Commonwealth Respite and Carelink Centres; Exhibit 3, Letter from Cathy McCann – Carer Support Officer from Young Carer Program dated 15 November 2017.
[54]Ms Julie Warwick, Principal of Robina State High School, provided a letter dated
29 May 2018. This letter provided that Ms Jackson informed the school, on 2 May 2017, that the Applicant was her primary carer and that he was authorized to leave the school grounds, at lunch time when the need was raised to care for Ms Jackson, then return to school.[55]
[55] Exhibit 5, Statement of Ms Jackson, dated 20 and 29 June 2018.
Contentions
The Respondent sets out their contentions in the Statement of Issues, Facts & Contentions, dated 22 May 2018,[56] as follows:
[56] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, pages 6-8, paragraphs 23-28.
[23] The Secretary contends that the Applicant did not provide constant care to Ms Jackson during the qualification period and relies on the following in support of that contention:
(a) The Applicant's claim form states that the Applicant is away for 25 hours per week for school and 10 minutes per week for travel time (T6, p52).
(b) The Department's social worker report dated 23 May 2017 (T11). The social worker assessment was based on a face to face interview with the Applicant and his mother. The social worker noted the Applicant's responses were as follows:
i. The Applicant will get his mother's clothes and effects ready for the shower, however Ms Jackson is independent with showering.
ii. The Applicant attends school all day and advised he gets his mother's food and drink for the day while he is away.
iii. The Applicant was not aware of which medications his mother requires and advised his mother is independent with taking her own medication.
iv. The Applicant advised that he attends school all day but can go home during breaks to check on his mother.
(c) The Department's social worker report dated 23 May 2017 (T11). The social worker assessment was based on a face to face interview with the Applicant and his mother. The social worker noted Ms Jackson's responses were as follows:
i.Due to the Applicant's attention deficit hyperactive disorder (ADHD), Ms Jackson assists with the Applicant's memory, homework, planning and organization.
ii.Anglicare will be assisting with house cleaning in the near future.
iii.Ms Jackson confirmed she was independent with showering but the Applicant would get things ready for her.
iv. Ms Jackson advised that the Applicant will assist with some aspects of getting dressed and occasionally assist her getting off the toilet.
v.Ms Jackson advised she is independent with personal activities of daily living but does require the Applicant to get things ready for her.
vi. Ms Jackson attends her GP regularly and commenced aqua fit which she drives to herself while the Applicant attends school.
The social worker also observed Ms Jackson independently getting up out of her chair and mobilising independently to and from the interview room (T11, p83).
[24] Having regard to the Tribunal's reasoning in Milne and James, household domestic duties such as cooking, cleaning, paying bills and other similar household activities do not satisfy the requirement of 'constant care'. The Secretary contends that a large portion of the Applicant's 'caring' responsibilities before and after school were largely household domestic duties such as preparing meals, cleaning the house, doing the banking and completing the grocery shopping.
[25] Having regard to the Tribunal's reasoning in James, it is not enough to be regularly in the company of a care recipient, but needs to be related to needs generated by the care receiver's medical condition. The Secretary contends that the social worker assessment report noting that the Applicant does not appear to have the emotional capacity, understanding or concentration, planning or organizational skills required to provide the required care for his mother, particularly noting that Ms Jackson provides care and assistance to the Applicant due to his own medical condition (T11, p86).
[26] In relation to the Applicant's attendance at school, the Secretary notes the following:
a. The Applicant's claim form noted that he attended Robina State High School for 25 hours per week, with 10 minutes travel time (T6, p52).
b. Ms Jackson's evidence to the AAT1 that the Applicant is a full time student and his school hours are from 9:10am to 3:00pm (T2, p8).
c. Although the Secretary accepts that the Applicant had permission to sign out at morning tea and lunch times to visit Ms Jackson (T15, p115), the Secretary contends there is no corroborating evidence of the sign out and sign in times which confirmed that the Applicant utilised his approved absence times during the qualification period.
[27] The Secretary notes that the Applicant attended school for at least 5 hours and 50 minutes per day. The Secretary contends that the Applicant was effectively 'freed up' from caring responsibilities as he had the ability to attend school 5 days per week and relies on the Tribunal's reasoning in Reta/lack and James in this regard. The Secretary contends that the substantial time the Applicant was able to attend school indicates that the needs of Ms Jackson are flexible enough to allow the Applicant to engage in substantive study.
[28] The Secretary contends that as the Applicant does not personally provide constant care to the Applicant for a significant period of care each day.
At the Hearing, Ms Jackson contended, on behalf of the Applicant, that he spends more time at home caring for her than what he does at school, or even at home studying. The Applicant spends between 50 and 70 hours a week looking after Ms Jackson, rather than the 25 hours he is away at home. Ms Jackson told the Tribunal that the Applicant helps her as her mentor keeping her happy, keeping her positive, making her go out in the community. The Applicant also keeps her company as a companion, as part of the role of a carer. The Applicant’s carer role extends far beyond dressing or feeding.[57]
[57] Transcript, page 45.
CONSIDERATION
Based on the evidence outlined above, there is no doubt that Ms Jackson has medical conditions which means she meets the definition of disabled adult required by section 198 of the Act. The Tribunal accepts that Ms Jackson requires assistance and care and that she relies upon the Applicant to provide a large portion of that assistance and care.
The question for the Tribunal is whether the Applicant provided constant care to Ms Jackson during the Relevant Period.
I have considered the type of care provided by the Applicant. The evidence shows that the Applicant performs household duties including meal preparation, weekly shopping, some cleaning, doing the dishes and putting the washing on. These tasks do not of themselves satisfy the requirement of constant care but are rather considered to be normal domestic duties undertaken as part of managing a household and are tasks that can be completed when it suits the Applicant.
The evidence in relation to the personal care provided by Ms Jackson is not consistent with that provided by the Applicant on the initial claim for carer payment, his written submission, report to the social worker and oral evidence provided to the Tribunal. Such a discrepancy is also evident in the Social Work Report and Carer Payment and/or Carer Allowance Medical Report completed by Dr Shrimpton and the evidence given by Ms Jackson in her written submission and oral evidence provided to the Tribunal. I accept that Ms Jackson requires some help with personal care including getting in and out of bed, moving around the house, going to the toilet, showering and dressing. It is not clear how much care Ms Jackson required at the Relevant Period. For example, the Applicant provided evidence to the Tribunal that he assists Ms Jackson in the shower to help her wash her hair and the lower part of her body; however, the social worker report provided that Ms Jackson confirmed she is independent with showering.
I accept the evidence of the Applicant that he provides care each day, both before and after school, the regularity of that care during the school day has not be substantiated. Both the Applicant and Ms Jackson gave evidence to the effect that the Applicant was in year 9 and studying full time during the Relevant Period. While there was reference to the Applicant having an arrangement requiring him to sign in and out of school, allowing him to come home during school breaks or if Ms Jackson contacted him and needed him more immediately, the Tribunal has no evidence before it of any such instances of the Applicant signing out of school to care for Ms Jackson during the school day.
It has been found in previous decisions of the Tribunal[58] that a person is not entitled to carer payment where the needs of the care recipient are such that the care giver is able to maintain substantial employment or study. In this instance, the Applicant has provided that he was able to maintain full time study during the Relevant Period. The care provided by the Applicant was substantially able to be provided outside of school hours.
[58] See James and Secretary, Department of Social Services [2014] AAT 802; 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; Cavanagh-Hans and Secretary, Department and Social Services [2017] AATA 687; Gidley and Secretary, Department of Social Services [2018] AATA 2890.
I find that the Applicant did not provide constant care of Ms Jackson during the Relevant Period as:
(a)the needs of Ms Jackson were flexible enough to allow the Applicant to engage in substantive study; and
(b)a large portion of the care provided by the Applicant are of a domestic nature rather than provision of personal care; and
(c)the regularity in which the Applicant provided personal care to Ms Jackson has not been established as requiring constant care.
CONCLUSION
While I have no doubt that the Applicant provides support to Ms Jackson, based on the evidence before the Tribunal, I find that the Applicant did not, for the purpose of section 198(2)(a) of the Act, personally provide constant care for Ms Jackson (the care recipient) during the Relevant Period.
Accordingly, the decision under review is affirmed.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.............................[SGD]...............................
Associate
Dated: 18 February 2019
Date of hearing: 4 September 2018 Applicant: Mr Lynkin Jackson Advocate for the Applicant: Ms Hayley Jackson Solicitors for the Respondent: Ms Jacky Vetter
Decision in relation to a part of a proceedings made by Deputy President Dr P McDermott RFD,
dated 12 June 2018.
Exhibit 3, Letter from Cathy McCann – Carer Support Officer from Young Carer Program dated
15 November 2017.
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