Jordan and Secretary, Department of Family and Community Services

[2003] AATA 816

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 816

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/77

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SHIRLEY JORDAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate/Professor B W Davis AM (Part-time Member)

Date20 August 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - domiciliary nursing care benefit - carer allowance (CA) - disabled adult - where care provided - residence of carer - eligibility for allowance.

Legislation

National Health Act 1953

Social Security Act 1991 - s954

Social Security (Administration) Act 1999

Assistance for Carers' Legislation Amendment Act (No 13) 1999

Guide to Social Security Law

Authorities

Nixon and Secretary, Department of Social Security (1998) 52 ALD 19

Robinson and Secretary, Department Family and Community Services (1999) 29 AAR 274

Dunstall and Secretary, Department of Social Security (1998) 50 ALD 583

Snell and Secretary, Department of Family and Community Services (2002) AATA 135

Jackson and Secretary, Department of Family and Community Services (2000) AATA 636

Brown and Secretary, Department of Family and Community Services (2003) AATA 475

Cronin and Secretary, Department of Family and Community Services (2001) AATA 859

Kinsey and Secretary, Department of Social Security 20 ALD 14

Secretary, Department of Family and Community Services and Cocks (2002) AATA 1179

REASONS FOR DECISION

20 August 2003 Associate/Professor B W Davis AM (Part-time Member)   

The Application

1.      The applicant, Shirley Jordan, seeks review of a decision made by the Social Security Appeals Tribunal (SSAT) on 15 April 2003, affirming a decision made by a delegate of Centrelink on 30 December 2002, cancelling carer allowance (CA) in respect of her brother Harry Belbin.

The Issue

2.      The issue is whether Mrs Jordan is qualified for carer allowance for a disabled adult, namely her brother.

Background

3.      Shirley Jordan has been in receipt of carer allowance (CA) and the previous domiciliary nursing care benefit (DNCB) since at least 1982.

4.      On 29 February 1984 the then Federal Minister for Health approved payment of DNCB to Mrs Jordan and backdated the payment to September 1982.

5.      On 1 July 1999 new legislation came into effect that meant existing DNCB recipients were transferred to CA effective from 1 July 1999.   It was announced that all case situations would be reviewed within two years.

6.      In December 2002 Centrelink reviewed Mrs Jordan’s entitlement to CA and on 30 December 2002 Centrelink made a decision to cancel the allowance because she did not live in the same house as her brother.

7. Mrs Jordan sought a review of this decision and on 17 January 2003 an authorised review officer (ARO) affirmed the decision. The ARO’s determination was made on the basis that under s954 of the Social Security Act 1991 (“the Act”), a carer and care receiver are required to live in the same house.

8.      On 11 February 2003 Mrs Jordan appealed to the SSAT for an independent review of the decision to cancel her carer allowance.   The hearing was conducted in Launceston on 15 April 2003 and on that date the SSAT affirmed the decision under review.

9.      Mrs Jordan then lodged an application for review by the Administrative Appeals Tribunal on 4 May 2003.

Legislation

10. The relevant legislation is s954 of the Act, which provides as follows:

“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 under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30; 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

(f)       the person is an Australian resident.”

11. Section 1.1 P426 of the Guide to Social Security Law further defines “private home” and gives examples of the rule that the carer and care received must reside together.

The SSAT Hearing

12.     At the SSAT hearing conducted in Launceston on 15 April 2003, Mrs Jordan was in attendance accompanied by her brother, Mr Harry Belbin (the care receiver) and Mr Bob Belbin.

13.     Mrs Jordan gave evidence that she had been in receipt of carer payments, initially as DNCB, then CA since 1984, backdated to 1982.  Her brother, Harry Belbin, had been a quadriplegic for 21 years and it was her care and attention that kept him from an institution.   They both lived in East Devonport, approximately one kilometre apart, using a phone code to communicate.   She carried out a wide range of health, domiciliary and other care for her brother all hours as necessary.   She was astonished at having her carer payment cancelled after 21 years when the circumstances had not altered or improved.

14.     The SSAT noted a range of other evidence in the form of reports and letters of support, confirming Mr Harry Belbin’s medical disabilities and the level and variety of care provided by Shirley Jordan.

15. In relation to the qualification criteria for CA, the Tribunal noted there was no dispute about Mr Belbin’s needs and the devoted care provided by Mrs Jordan, satisfying all criteria specified in sub-paragraphs (a), (b), (c) and (f) of s954(1) of the Act, the only issue remaining being that of sub-paragraph (d) of s954(1).

16.     Information before the SSAT confirmed that Mrs Jordan resided at her home at 1 Gwynne Street, East Devonport and Mr Belbin resides in his home at 51 Stephen Street, East Devonport, approximately one kilometre apart.   The legislation clearly states that the care must be received:

“… in a private home that is the residence of the person and the care receiver …”.

The Tribunal concluded that this was not the case for Mrs Jordan and her brother Mr Belbin and thus she did not meet the criteria identified in s954(1)(d) of the Act.

17. The SSAT noted a number of authorities that tested and defined what is meant by the phrase “residence of the person and the care receiver;” in each case noting that nearby or adjacent dwelling did not qualify. Taking relevant authorities into account, the SSAT concluded that Mrs Jordan and Mr Belbin lived in separate residences, therefore she did not qualify for CA in accordance with s954(1) of the Act. Thus the decision under review was affirmed i.e. her appeal was unsuccessful.

18.     The SSAT noted the Second Reading Speech introducing the Assistance for Carers Legislation Amendment Bill No 13 (1999), which included a statement that:

“… The qualification rules for carer allowance will mean that it will be more easily available to carers of adults with disabilities than is presently the case for domiciliary nursing care benefit…”.

The Tribunal acknowledged that Mrs Jordan had not found this to be the case in relation to her situation.

facts and Contentions

19.     Statements of facts and contentions were filed with the AAT prior to the hearing.   Parties were agreed about facts of the case, but sought different orders.   The applicant requested the Tribunal to set aside the decision under review and remit the matter for reconsideration with any direction or recommendation of the Tribunal.   The respondent requested that the Tribunal affirm the decision under review.

The AAT Hearing

20.     At the AAT hearing conducted in Devonport on 25 July 2003 the applicant was represented by Mr John Crooks, welfare rights advocate of the Launceston Community Legal Centre and the respondent (DFCS) by Mr Brian Sparkes.

21.     The applicant called three witnesses, namely Sister Kim Tait, a registered nurse of the Mersey Community Nursing Service, then Mr Harry Belbin, the care receiver and Mrs Shirley Jordan, the care provider.    The respondent did not call any witnesses or conduct cross-examination, relying upon material before the Tribunal and witness statements.   Counsel for the respondent noted that the witnesses appeared truthful and agreed with their factual statements.

22.     Sister Kim Tait was sworn and provided a detailed account of Harry Belbin’s disabilities, the diverse care required and stressed that over an extensive period she had noted the close and devoted care provided by Shirley Jordan.   Family Based Care could not meet such a 24 hour demand and if for any reason Mrs Jordan became unavailable it was her judgment that a nursing home placement would have to be sought for Mr Belbin.   Such an action would be an additional burden on the public purse and Harry Belbin would hate such an outcome.

23.     Mr Harry Belbin was then sworn and described difficult domestic situations where it was essential for his sister to come to his residence day or night to care for  him.   Some of these circumstances were not pleasant, but his sister had given him a reason to live.   He was happy to accept a pension, but did not wish to become a burden on the community.   His sister, Shirley Jordan, was certainly not a dole cheat and had been completely honest in revealing they lived apart but close by.   He was lucky to have a loving family and only that gave him an acceptable quality of life.

24.     Mrs Jordan was then sworn and under questioning explained that the former CA had been used to meet petrol and servicing of her car and phone expenses relating to the two households.   She and her husband were pensioners and loss of the CA had made life financially difficult, inducing considerable stress.   She praised her husband for his loyal support.   She considered it would be cruel and heartless to have Harry placed in a nursing home, all because an allowance had been cut off after 21 years, when need and circumstances of care remained the same.

25. In closing submissions, counsel for the applicant argued that CA was intended to help redress the impact of disabilities on an individual and family, where social, occupational, emotional and financial stresses were involved at various levels of disability severity. It was essential that the care receiver’s medical situation and care requirements were appropriately assessed and this had occurred in Mr Belbin’s case. It was clear all criteria specified in s954(1) of the Act had been met, with the exception of sub-paragraph (d); i.e. the requirement that care provider and care receiver reside in the same house. Although criterion (d) had not been met, the Tribunal had heard three compelling testaments of the care provided and it would be a great shame if CA was stopped after 21 years. The applicant recognised the Tribunal was constrained by statutory provisions, but urged the decision under review to be set aside and the matter remitted for further consideration with any direction or recommendation of the Tribunal.

26. In closing submissions, counsel for the respondent said that the application for review involved an issue with a very narrow compass, nonetheless it was incumbent to understand legislative change involved in the case. The Department of Family and Community Service accepted that Shirley Jordan’s situation satisfied criteria detailed in ss954(1)(a), (b) (c) and (f) of the Act, but not necessarily s954(1)(d). it was necessary to refer back to the legislative authority for DNCB and note how the situation was transformed as CA was introduced.

27. Section 58G of the National Health Act 1953 provided payment to any approved person providing domiciliary nursing care to a patient, the payment at that time being $2 for each day of care provided. The Act required individual carers to apply for approval, one of the requirements being that the person cared for must reside in the same house as the applicant carer. The Act further provided in S58F for review by the Minister in some circumstances, and it was pursuant to this power that the then Minister for Health approved the payment of DNCB to Mrs Jordan, even though the care provider and care receiver were not living in the same house. In brief, it was a situation of ministerial discretion permitted at the time.

28.     The law relating to the DNCB was changed by the Assistance for Carers’ Legislation Amendment Act No 13 of 1999, by inserting various provisions relating to Carer Allowance (CA) and transitional arrangements into the Social Security Act 1991, including s954 which details criteria for qualification and payability of carer allowance. These provisions remain operative today.

29. Transitional arrangements for transfer from nursing care benefit to carer allowance are now contained in Schedule 1(a) of the Social Security Act 1991, but were intended to provide continuity of payment until such time as the allowance ceased to be payable under the social security law.   Section 80 of the Social Security Administration Act 1991 provides the Secretary of the Department with authority to cancel or suspend social security payments under certain circumstances. Carer allowance is an allowance as defined in the 1991 Act and, as such is a social security payment.

30. Having explained the relevant statutory provisions, counsel for the respondent stated that the only issue before the Tribunal was whether Mrs Jordan as carer and Mr Harry Belbin as patient resided in the same house. If they did not, as all evidence indicated, then criterion s954(1)(d) was not met and CA could not be paid.

31. To reinforce this claim, counsel cited a number of authorities, including Snell and Secretary, Department of Family and Community Services (2002) AATA 135; Jackson and Secretary, Department of Family and Community Services (2000) AATA 636; Brown and Secretary, Department of Family and Community Services (2003) AATA 475. In each case the circumstances were slightly different from those of Mrs Jordan, but all were focussed on the issue of where the carer and the care receiver resided. In each decision the Tribunal found that care must be provided in a private home that is the residence of the care provider and care receiver, if requirements of s954(1(d) are to be met.

32. Counsel stated that although the Act is beneficial legislation, the meaning and effect of s954(1)(d) is clear and therefore the decision under review should be affirmed.

Analysis

33.     The Tribunal is required to stand in the shoes of the original decision-maker, examining all material evidence anew, but being bound by statutory provisions and noting relevant case determinations.

34.     It must be noted at the outset that the jurisdiction of the Tribunal is limited to the issue before it and associated legal provisions and administrative practice.   The jurisdiction does not extend to comment on matters which are properly the province of Ministers and Government.

35.     It is common ground among parties to this case and accepted by the Tribunal on available evidence that:

(a)Mrs Shirley Jordan has been providing daily care for her paraplegic brother, Harry Belbin for the past 21 years;

(b)Mrs Shirley Jordan was in receipt of a Domiciliary Nursing Care Benefit (DNCB) and Carer Allowance (CA) for that period, until CA was cancelled by DFCS on 31 December 2002;

(c)Mrs Shirley Jordan resides at 1 Gwynne Street, East Devonport and Mr Harry Belbin resides at 51 Stephen Street, East Devonport, two residences approximately one kilometre apart.

36. It is further conceded and agreed by the parties that Mrs Jordan’s situation satisfies all criteria for CA set out in s954(1)(a),(b),(c) and (f) of the Act, but does not appear to meet the criterion specified in s954(1)(d).

37. This section of the Act is quite clear in wording and intent, stating:

“…(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."

38.     Mrs Jordan’s situation does not meet this requirement, therefore prima facie she does not qualify for CA and her appeal fails, unless some other circumstance is found which might permit reconsideration of her case.

39.     The Tribunal notes that initial approval of DNCB payment was made under Ministerial discretion then existing in the National Health Act 1953, even though Shirley Jordan did not meet the specified criterion of carer and care receiver living in the same house.    Whether intended or inadvertent, enactment of the Assistance for Carers’ Legislation Amendment Act (No 13 of 1999) and subsequent introduction of provisions for CA into the Social Security Act 1991 appear to have resulted in lack of mention of Ministerial discretion in the current legislation.

40. Reference to Section 1.1 P426 of the Guide to the Social Security Law does not provide assistance to Mrs Jordan either. After defining “home” and “residence” the Guide then provides examples of situations that meet or fail to meet requirements in s954(1) of the Act.

41.     While stressing that the carer and care receiver must reside in the same private home, it is stated that the following situations do not satisfy this requirement: a retirement village, block of flats or caravan park setting where the carer lives in one unit and the care receiver lives in another unit (even if immediately adjacent).

42.     The one exception that may be acceptable, is if the carer and care receiver live in separate homes, but typically spend each night together or have at least one meal each day together under the same roof.   Even so, there must be an adjoining door that permits unhindered access between the two homes or the two homes are within the same property boundary and in the same immediate vicinity of each other; or carer and care receiver reside with each other although they maintain separate residences.

43.     Evidence provided by Mrs Jordan indicates she sometimes stays the night at her brother’s house, but she advised the SSAT this did not occur very often.   She and her husband occasionally have meals with Harry, but on her admission this only occurs perhaps once in a fortnight or three weeks.   Because of the separation of residences and the intermittent nature of stopovers or shared meals, she does not meet the “exception” example provided for in the Guide to Social Security Law.

44. The Tribunal has examined a range of case authorities, relating to carers and care receivers. Although the individual circumstances vary, the point is reinforced that both parties must reside in the same residence, if provisions of s954(1) of the Social Security Act 1991 are to be met.

45.     In the case of Brown and Secretary, Department of Family and Community Services (2003) AATA 135, it was held that Mrs Brown did not qualify for carer allowance, because he resided elsewhere from her disabled son. The Tribunal said: “… the failure to live at the same address is crucial, because s954(1) of the Social Security Act 1991 provides as follows …”. The Tribunal stated there was no option but to affirm the original decision, although it was clear this was a case that slipped through the cracks, because there was no special circumstances in s954(1).

46.     In Jackson and Secretary, Department of Family and Community Services (2000) AATA 636 where a son cared for his elderly mother who lived in a flat adjoining the son’s house, the Tribunal concluded that “… only one house can be the residence of the person and the care receiver, for the purposes of the Act.”  In Dunstall and Secretary, Department of Family and Community Services (1998) 50 ALD 583 a similar conclusion was reached, namely that a handicapped person could only have a single residence for purposes of the Act, hence carer and care receiver must reside together.

47.     More recently in Snell and Secretary, Department of Family and Community Services (2002) AATA 135, the Tribunal held that a daughter-in-law who resided in an adjacent property did not satisfy requirements of s954 (1)(d). The Tribunal then commented on the unsatisfactory nature of this section of the Act, which in its view “… imposed a seemingly unfair and a less than opportune domiciliary environment in which the carer and caree must relate …”. (Paragraph 26).

Decision

48.     In the current case the Tribunal understands and fully sympathises with the difficult situation Mrs Shirley Jordan faces, but is required to apply the law as it stands at present.

49. Having considered all available evidence de novo, the Tribunal finds that Mrs Shirley Jordan’s circumstances fail to meet criteria specified in s954(1)(d) of the Social Security Act 1991 and she therefore fails to qualify for carer allowance and her appeal is unsuccessful.

50.     The decision under review is affirmed.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Associate/Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  25 July 2003
Date of Decision  20 August 2003
Counsel for the Applicant          John Crooks
Solicitor for the Applicant           Launceston Community Legal Service
Counsel for the Respondent     Mr Brian Sparkes 
Solicitor for the Respondent      Centrelink