Johnson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 875
•2 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 875
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1764
GENERAL ADMINISTRATIVE DIVISION ) Re KELLY JOHNSON Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr M Denovan, Member Date2 October 2008
PlaceBrisbane
Decision The Tribunal determines as follows:
(a) The decision in relation to carer allowance is affirmed.
(b) The decision in relation to carer payment is set aside and in its place is substituted the decision of the Tribunal that Ms Johnson was eligible for carer payment from 7 December 2007 to 27 January 2008.
....................[Sgd].........................
Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – disability support pension – carer payment and carer allowance – constant care – carer engaged in study for 25 hours per week – special care needs not related to care receiver’s bodily functions or to sustaining life – decision under review regarding carer payment set aside – decision under review regarding carer allowance affirmed.
Social Security Act 1991 ss 198(2), 954A(1)(d), 954A(2)
Re Ronald Anthony Del Vechhio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145
Re Kedwell and Secretary, Department of Social Security (1987) 13 ALD 419
Re Retallack and Secretary, Department of Social Security (AAT 12978, 11 June 1998)
Re Paul Fuad and Telstra Corporation Ltd [2004] AATA 1182
Re Anne-Marie Harman and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 257
REASONS FOR DECISION
2 October 2008 Dr M Denovan, Member INTRODUCTION
1. Ms Johnson provided care for Mr Patrick Stoddart, a 39-year-old paraplegic, between 7 December 2007 and 27 January 2008.
BACKGROUND
2. Ms Johnson provided care for Mr Patrick Stoddart and was paid carer payment between January 2006 and March 2007[1].
[1] Exhibit 1: T46, folio 162.
3. After March 2007, Ms Johnson worked for the Cerebral Palsy League[2]. On 7 December 2007, she started caring for Mr Stoddart again.
[2] Exhibit 1: T2, folio 6.
4. On 13 December 2007, Ms Johnson lodged a claim for carer payment and carer allowance[3]. The basis of the Applicant’s claims was that she cared for Mr Stoddart between 5pm and 10pm, 13 nights per fortnight[4]. She provided this care between 7 December 2007 and 27 January 2008[5].
[3] Exhibit 1: T16, folio 90.
[4] Exhibit 1: T40, folio 147.
[5] Exhibit 1: T44, folio 157.
5. In decisions of the Secretary dated 9 January 2008, Ms Johnson’s claims were both rejected[6].
[6] Exhibit 1: T25, folio 120.
6. Ms Johnson asked for a review of those decisions and on 14 February 2008 an authorised review officer reviewed and affirmed the decisions [7].
[7] Exhibit 1: T40, folio142.
7. Ms Johnson applied to the Social Security Appeals Tribunal (SSAT) for review of the decisions of Centrelink[8]. The decision in relation to carer payment was affirmed by the SSAT on 3 April 2008[9].
[8] Exhibit 1: T44,folio157.
[9] Exhibit 1: T2, folio 4.
8. The application for review of the decision by the Administrative Appeals Tribunal (AAT) was lodged on 24 April 2008[10].
[10] Exhibit 1: T1.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
9. I have to consider whether Ms Johnson is entitled to carer payment and/or carer allowance for the period 7 December 2007 to 27 January 2008.
10. Section 198(2) of the Social Security Act 1991 (“the Act”) provides that to qualify for carer payment, a person “must personally provide constant care” for a relevantly disabled person.
11. Carer allowance is a supplementary payment that recognises care relating to special care needs within private homes[11]. Section 954A(1)(d) of the Act provides that a person qualifies for carer allowance if the person provides “care and attention”. Section 954A(2) provides:
[11] Exhibit 1: T2, folio 168.
“The care and attention:
(a) must address special care needs:
(i)that the care receiver is assessed under the Adult Disability Assessment Tool as having; and
(ii)that relate to the care receiver’s bodily functions or to sustaining the care receiver’s life; and
(b)must be received by the care receiver on a daily basis, for a total of at least 20 hours a week…”
12. The Adult Disability Assessment Tool (ADAT) refers to the Adult Disability Assessment Determination 1999, a legislative instrument made under the Act[12]. The relevant ADAT information in this case appears at T14, ff 85‑87 and T16, ff 98-101.
[12] Social Security Act 1991 s 38C. Exhibit 1:T4, folio 18.
13. It is not in dispute that Mr Stoddart is a disabled person within the scope of s 198, because he has a score under the ADAT requirement of 48[13]. It is also not in dispute that Mr Stoddart has special needs identified under the ADAT[14].
[13] Social Security Act 1991 s 198(2)(a)(i). Exhibit 1:T15 folio 88.
[14] Exhibit 1: T14.
14. I have to decide weather Ms Johnson provided constant care and whether at least 20 hours of the care Ms Johnson provided was for Mr Stoddart’s special needs identified under the ASAT that relate to his bodily functions or to sustaining his life.
Evidence of the Applicant
15. At the time of the claim, Ms Johnson lodged the following description of her care activities[15] :
[15] Exhibit 1: T17, folio 110.
Start: 5pm – 10pm
Meal preparation
Light house duties
Preparing medication
Empty night bottle
Get medication for him during the day
Bring mail in to him
Observe him taking his medication at right time
Bring washing in
Leave 10pm
16. Ms Johnson indicated that that Blue Care and Homelife personnel attended during the day to provide personal care to Mr Stoddart [16].
[16] Exhibit 1: T19, folio 112.
17. On 8 January 2008, the Applicant told a Centrelink officer that her care activities included[17] :
Meal preparation 30mins per day
Light sweeping and cleaning 30mins per day
Medication preparation 30mins per week
Empty night bottle 5mins per day
Occasional showering 5mins per dayBring mail in 5mins per day[17] Exhibit 1: T23, folio 118.
18. At the hearing, Ms Johnson gave evidence and the following is the gist of what she said.
19. During the period in question, Ms Johnson performed a number of chores for Mr Stoddart, including hanging up washing and bringing washing in, preparing his evening meal, washing dishes, making sure Mr Stoddart had access to drinking water and other meals, and light house work such as sweeping the floor. In addition, Ms Johnson would assist Mr Stoddart prepare a weekly shopping list, and ensure that his medications were accessible to him, and that he had a ready supply of his medications. Occasionally, Ms Johnson would attend the Caboolture hospital during the day time to collect Mr Stoddart’s medications. Ms Johnson did not routinely assist Mr Stoddart with his showers, although occasionally on weekends she was required to do this. Ms Johnson said that apart from having coffee with Mr Stoddart once a day, she spent the entire time working.
20. Mr Stoddart sometimes suffered from pressure sores and this would necessitate him staying in bed. On these occasions, he would require extra assistance with eating, his food would have to be cut up for him to enable him to eat whilst lying on his side. On Ms Johnson’s one day off a fortnight, Mr Stoddart received care from his girlfriend.
21. Ms Johnson said that the time she spent assisting Mr Stoddart with bodily functions was limited to 30-90 minutes each day.
medical evidence
22. In December 2007, Dr Vahid Mohabbati reported that Mr Stoddart is not cognitively impaired, although he sometimes shows signs of depression or memory loss[18]. Dr Mohabbati reported Mr Stoddart’s day-to-day needs as follows[19]:
[18] Exhibit 1: T 14, Folio 86.
[19] Exhibit 1: T14, Folio 85-86.
Bowels Continent
Bladder Incontinent or catheterised and unable to manage
Grooming Independent (implements provided)
Toilet use Independent (on and off, wiping, dressing)
Feeding Independent (food provided within reach)
Transfer Minor help (verbal or physical)
Mobility Wheelchair independent, including corners etc.(i.e. uses wheelchair without assistance)
Dressing Needs help but can do about half unaided
Stairs Unable
Bathing Dependent
23. In January 2006, Dr Thurlow stated that Mr Stoddart required constant care on a daily basis to carry out routine personal activities, but that he did not require that care from more than one person[20].
FINDINGS OF THE TRIBUNAL
[20] Exhibit 1: T8, Folio 67.
Carer payment
24. The evidence of Dr Thurlow indicates that Mr Stoddart is disabled due to paraplegia.
25. Although Dr Thurlow has indicated that Mr Stoddart requires constant care, the Secretary contends that the care provided by the applicant did not reach a level of either quantity or intensity sufficient to amount to “constant care” within the meaning of the Act.
26. The term “constant care” is not defined in the Act. The Secretary has published a Guide to the Social Security Law that assists decision makers to reach consistent and principled decisions. It is well settled that such policy statements may be relied upon by this Tribunal provided that they are not inconsistent with the legislation. The Guide to Social Security states[21] (T5, f 33):
“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 CP 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.”
[21] Exhibit 1: T5, folio 33.
27. In Re Del Vecchio[22], Senior Member Hastwell said that this policy, although not strictly binding on the Tribunal, “really just elaborates on what the cases say which is that “constant care” requires something more than episodic or spasmodic care and requires a significant degree of daily care for the individual involved”.
[22] Re Ronald Anthony Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145.
28. In Re Kedwell[23] Senior Member Renouf said that the phrase “constant care and attention” appearing in an earlier version of social security law “contemplated that the affected person requires significant assistance every day”.
[23] Re Kedwell and Secretary, Department of Social Security (1987) 13 ALD 419.
29. Similarly, in Re Retallack[24], Senior Member Kiosoglous accepted that “in determining whether “constant care” is being given the fundamental question is one of the amount of time the carer of a severely disabled person is “freed up” for other things”.
[24] Re Retallack and Secretary, Department of Social Security and Retallack (AAT 12978, 11 June 1998).
30. In the present case, Ms Johnson provided 30-35 hours per week of care to a disabled person. This consisted of 5 hour shifts between 5pm and 10pm. Unlike the circumstances in Re Del Vecchio, where the applicant rarely saw the caree and did not enter his premises on any occasion during the period in question, the majority of care provided by Ms Johnson was performed in the caree’s home and in his presence.
31. Section 198AC of the Act envisions that a person who engages in 25 hours a week study or work in addition to caring for a disabled person, can still be regarded as providing constant care for the purposes of carer payment. This suggests that to qualify for carer payment, a carer need not be providing care every waking moment of the day.
32. I found Ms Johnson to be a credible witness and accept her evidence that during the five hours she worked almost the entire time, and at the most had one coffee break each night. It is arguable that as she provided companionship to Mr Stoddart during those coffee breaks, she did not have any time off her duties at all during her five-hour shifts.
33. It is significant that in order to provide care for Mr Stoddart, Ms Johnson gave up her job at the Cerebral Palsy League, even though that job was for fairly limited hours. Whilst Ms Johnson admitted that she could have worked as well as caring for Mr Stoddart, it is not reasonable to conclude that she would have had enough time during the week to study or work for more than 25 hours in addition to caring for Mr Stoddart. Ms Johnson identified the need to collect medications and provide occasion care outside of her ordinary hours, was a reason that taking on additional employment would have been difficult.
34. For these reasons I consider that the intensity of care provided by Ms Johnson to Mr Stoddart roughly equated to a normal working day.
35. It is clear from the evidence of both Dr Thurlow and Ms Johnson, that Mr Stoddart required significant assistance every day. The nature of the care that Ms Johnson provided was not episodic, but regular and consistent.
36. Whilst Mr Stoddart also received care from Blue Care and Homelife for short periods most days, this does not detract from the fact that Ms Johnson provided constant care that was required by Mr Stoddart in addition to that care, as the care provided by these agencies was insufficient in isolation to provide the constant care Mr Stoddart required.
Carer allowance
37. The SSAT affirmed the decision in relation to carer payment, however did not make a decision in relation to carer allowance.
38. In the decision of Fuad[25], President of the AAT Justice Downes determined that:
“All matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way.”
[25] Re Paul Fuad and Telstra Corporation Limited [2004] AATA 1182.
39. It follows that although the SSAT did not specifically address the issue of carer allowance, that matter was before them and is now before me.
40. To be entitled to carer allowance, the special care needs provided by Ms Johnson must, for at least 20 hours a week, “relate to the care receiver’s bodily functions or to sustaining the care receiver’s life”.
41. The Guide explains that assistance with bodily functions includes assistance with mobility, personal hygiene, eating and drinking, communication, and treatment[26]. The Guide suggests that assistance with showering and dressing, feeding and helping the care receiver get around the house may be examples of activities addressing special care needs. On the other hand, activities such as shopping, housework or making afternoon tea do not address special care needs. This approach has been approved previously by the Tribunal[27].
[26] Exhibit 1: T5, folio 46.
[27] Re Anne-Marie Harman and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 257.
42. The evidence of Ms Johnson is that she provided care that could be described as for Mr Stoddart’s identified special care needs, no more than 90 minutes each day. Most of the tasks performed by Ms Johnson, whilst necessary for Mr Stoddart’s day-to-day functioning, could not be described as relating to his bodily functions or to sustaining his life. Ms Johnson indicated that she accepted this was the case.
CONCLUSION
Ms Johnson provided constant care for a disabled person between 7 December 2007 and 27 January 2008. This care did not address the special care needs of the disabled person for 20 hours or more a week.
FINDINGS OF THE TRIBUNAL
43. The Tribunal determines as follows:
(a)The decision in relation to carer allowance is affirmed.
(b)The decision in relation to carer payment is set aside and I find that Ms Johnson was eligible for carer payment from 7 December 2007 to 27 January 2008.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: ......................[Sgd]...................................................
Elizabeth Young, Research AssociateDate/s of Hearing 15 September 2008
Date of Decision 2 October 2008
The Applicant was self represented
For the Respondent Mr Matt Black, Departmental advocate
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