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

[2016] AATA 68

KFNL and Secretary, Department of Social Services (Social services second review) [2016] AATA 68 (9 February 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2819
Re	KFNL
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	9 February 2016
Place	Sydney

The decision under review is set aside and, in substitution, the preferable decision is that in July 2014, pursuant to s 198AC of the Social Security Act 1991 (Cth), the Applicant did not cease to be qualified for Carer Payment.

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Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – carer payment – cancellation of carer payment - applicant exceeded allowed respite period – whether there is “for any special reason” another appropriate period – the meaning of “special reason” – applicant subject of a court order – applicant main care provider – care receivers suffer from autistic spectrum disorder – decision set aside

LEGISLATION

Social Security Act 1991 (Cth), s 198AC

CASES

Boscolo v Secretary, Department of Social Services [1999] FCA 106

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Dr I Alexander, Member

9 February 2016

1. The Applicant has been separated from her husband and has three dependent teenage children including two boys who suffer autism spectrum disorders.

2. The Applicant had been receiving Carer Payment and Carer Allowance in respect of her eldest son, Child A, since May 2011.

3. In February 2013, the Federal Magistrates Court ordered that “By consent, orders are made in accordance with the terms of settlement”. The Court order specified changed custody arrangements so that all the children would be in the care of their father for about 108 to 114 days per calendar year.

4. It is agreed that these changes were not realised until September 2013 because her former husband had to purchase a new house. It is also agreed that since that time the changes have been adhered to by all parties.

5. In February 2015, Centrelink informed the Applicant that her Carer Payment had been cancelled as of September 2014 because information she had provided indicated that during 2014 Child A had been out of her care for more than the 63 days allowed by the temporary cessation of care (respite) provisions.

6. In April 2015, an Authorised Review Officer (ARO) affirmed the decision to cancel Carer Payment and determined that the Applicant had exceeded her allowed respite period in July 2014 and that she had incurred a Carer Payment debt. However, the debt was waived on the basis that it was incurred solely due to administrative error. 

7. In May 2015, the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision.

8. In these proceedings the Applicant was self-represented and seeks review of the SSAT decision.

   ISSUES

9. Section 198AC of the Social Security Act 1991 (Cth) (“the Act”) provides for the continuation of Carer Payment where there is a temporary cessation of care by a person qualified to provide the care for a care receiver.

10. Subsection 198AC(3) provides the limits on the periods for cessation of care as “63 days in any calendar year” [s 198AC(3)(a)] or “another period that the Secretary, for any special reason in the particular case, decides to be appropriate” [s 198AC(3)(b)]. 

11. It is not in dispute that during 2014, as a consequence of the Court’s custody orders, the Applicant did not provide care for a period of more than 63 days.

12. Therefore the issue that the Tribunal must consider is whether, in this case, there is “for any special reason” another appropriate period.

    THE APPLICANT’S EVIDENCE

13. The Applicant told the Tribunal she has three children Child A, Child B and Child C.

14. Child A suffers from autism spectrum disorder with moderate learning delay and attends a special school.  He is able to undertake basic self-care but requires assistance with dressing and must always be accompanied by a carer when leaving the house. He requires a strict routine, is easily frustrated, has difficulty coping with change and is prone to aggressive and sometimes violent behaviour.  He also suffers from allergies including peanuts and has an Epipen and an action plan for anaphylaxis.

15. Child B suffers from Asperger’s syndrome, Tourette’s syndrome and behavioural and mood control issues. He is able to attend a normal school but requires medication for mood stabilisation. He is also always accompanied by a carer, usually his mother, when leaving the house. 

16. Child C has no significant health problems.

17. The Applicant told the Tribunal that she is available for contact at all times and is “on call” to attend the boys schools when required. This occurs relatively frequently, including at times when the children are under the care of their father. She indicated that she is not aware of any arrangement between the schools and her former husband but believes that they do not contact him for assistance. She described the strict routines of the boys which, if disturbed, can cause significant difficulties and lead to frequent phone calls even on weekends when the children are with their father.

18. In 2014, the Applicant was employed as a part-time teacher’s aide and was assigned to care for a young girl with autism. During this time she received frequent phone calls which interfered with her work and subsequently her contract was not renewed.

19. The Applicant explained that she manages all the medical care for the children and accompanies them for all medical appointments even when they are under the care of their father.

20. The Applicant told the Tribunal that her encounter with the Federal Magistrates Court cost her $40,000 and was “the most awful experience of her life”, so much so, she would never go to court again. She explained that the matter had dragged on for about two years but was finally listed for hearing in February 2013. On the day of the hearing the parties were informed that, because another matter had not finished, her matter was postponed and would be relisted in about six months. In consequence, the parties agreed to re-negotiate and after seven hours terms of settlement were finalised.

21. In respect of her own health, the Applicant explained that she suffers from depression and anxiety. She takes anti-depressant medication prescribed by her GP and has also had treatment with a psychologist. 

    OTHER EVIDENCE

22. In a Centrelink Carer - Medical Report dated 23 February 2015 the Applicant’s GP confirmed that Child A’s primary disability is “Autism Spectrum Disorder with moderate learning delay” and listed other medical conditions as “allergy to peanuts, eczema, hay fever and seasonal asthma”.

23. In a letter dated 21 November 2013 a paediatric registrar at the Children’s Hospital (Westmead) states as follows:

    “This letter is written to support [Child B’s] transition to High School. He has a diagnosis of Aspergers [sic] syndrome and Oppositional Defiant Disorder. He has struggled with social skills and aggressive behaviour both at home and at school. [Child B] has responded very well to behavioural management programs and he and his family have attended a psychology (sic) from 2011 – 2013.”

24. In a Centrelink Medical Certificate dated 12 June 2015 the Applicant’s GP notes that she suffers from a “major depressive illness” and confirms that she is taking anti-depressant medication (Avanza) and is under the care of a psychologist.

25. In a letter dated 18 September 2015 a psychologist states as follows:

    “This letter is to shed some light on the psychological state of my above mentioned client [the Applicant] who I have been treating since May 2013 for extremely severe depression, anxiety and adjustment disorder. During these past couple years [the Applicant’s] levels has only fluctuated to a moderate level at best. [sic] However, the stress of dealing with two high need children, studying at university, trying to maintain a reasonable relationship with her ex-husband for the sake of the children and the continuous harassment from Centrelink over [the Applicant’s] payments keep increasing [the Applicant’s] conditions.”

26. In a letter dated 20 October 2015 the principal of Child B’s college states as follows:

    “…[Child B] is a pleasant student although at times he can encounter difficulties in social settings. When problems do arise he can be difficult to manage and consequently his mother will be contacted to support the school. Our college has been fortunate to have [the Applicant] available when impromptu issues arise. Her availability to assist [Child B] during such times has included, discussion over the phone, attendance at Student Individual Planning Meetings and if necessary to collect [Child B] from school. Her availability to assist his management at [the college] is greatly appreciated.”

27. In a letter dated 21 October 2015 the principal of Child A’s school states as follows:

    “[Child A] has an intellectual disability, Autism Spectrum Disorder (ASD) and complex sensory, behavioural and emotional needs… In order to provide the best learning outcomes for [Child A] [the school] requires [the Applicant] to be ‘on call’ on a regular basis. It is essential that [the Applicant] is available to contact at all times and be on call to attend the school when required. The frequency and occurrence of incidents where [the school] is required to contact [the Applicant] can fluctuate and therefore cannot be predicted.”

    CONSIDERATION

28. The Respondent submits that, in this case, there is no “special reason” that would warrant the application of the discretion to apply “another period” as provided by subsection 198AC(3)(b) of the Act.

29. The phrase “special reason” is not defined in the Act and the Respondent relies solely on the provisions of the Guide to Social Security Law (“the Guide”). The advocate for the Respondent did not refer the Tribunal to any authorities in which the phrase “special reason” is considered.

30. Part 3.6.4.40 of the Guide considers the qualification for Carer Payment during temporary cessation of care and states the following:

    “A delegate of the Secretary has discretion to extend the period of temporary cessation of care for any special reason in the carer’s particular case. If a special reason exists, a carer can cease to provide the care receiver/s with constant care for more than 63 days in a calendar year, and still retain qualification for CP.

    Delegates must exercise discretion in determining what constitutes a special reason. Generally, such reasons would be outside the carer’s control, and would be consistent with their role as a carer. The care situation would be expected to resume after a definite period.”

31. The Guide provides two “examples” which describe circumstances in which the discretion provided by Subsection 198AC(3)(b) can be considered. The Guide does not state that these examples are to be taken as exhaustive of the circumstances which can be considered. I understand the section to require the decision-maker to respond to the unique circumstances of the particular case under consideration.

32. Also, I note that the section does not use the phrase “to extend the period of temporary cessation of care”, as stated in the guide, but appears to provide a discretion that allows for the application of “another period” that is considered to be appropriate for any special reason in the particular case.

33. In Boscolo v Secretary, Department of Social Security [1999] FCA 106 (“Boscolo”) French J stated, inter alia, the following:

    “The word ‘special’ conditioning ‘reasons’ or ‘circumstances’ guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is “…sufficiently understood not to require judicial gloss”… If helpful to speak in terms of its meaning almost all of it comes from context… It is an elastic instruction suitable for application across a range of situations… That application is not to be confined by precise limits or rules… Circumstances or reasons will not necessarily fall outside the designation of ‘special’ because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise… The core of the requirement for ‘special circumstances’ or ‘special reasons’ is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course… But that does not require that the case be extremely unusual, uncommon or exceptional…” [emphasis added]

34. I am satisfied that the evidence before the Tribunal demonstrates the Applicant’s two sons have significant needs and require constant care and supervision. It is clear that the Applicant has been intensely involved in their care and has probably been the primary carer for many years. After the separation from her husband she was, in fact, the sole carer for her three children until September 2013.

35. Since September 2013, as a consequence of a court order with respect to custody, she continues to be the sole carer of the children for about 70% of the calendar year.

36. The Applicant’s evidence, which I accept, is that she continues to be involved in the care of her children even when they are formally under the care of their father. This is, in my view, not surprising as it is quite clear that she has considerable skill and experience in managing the particular issues that arise with the often difficult behaviour of her two sons.

37. Furthermore, when one considers the particular needs of her two sons, the Applicant’s willingness to continue to assist when needed is, in my view, in the best interest of her sons, their father and the schools.

38. Clearly, as a consequence of the court order, the Applicant has no control of the time allocated to her as the sole carer during the calendar year.

39. In the Statement of Facts and Contentions the Respondent submits that “The extension provision should be applied where unforeseen events occur rather than overcoming a court order”.

40. At the hearing the advocate for the Respondent submitted that “court orders are not uncommon or exceptional” and, therefore, cannot be considered to be a special reason.

41. The advocate also submitted that, as the court order was in accordance with agreed terms of settlement, it was open to the Applicant to return to court and seek to change the agreed terms. When one considers the particulars of this case I consider this submission to be unreasonable.

42. I accept that a court order, alone, would generally not be considered to be a special reason.

43. However, in my view, the submissions made on behalf of the Respondent are somewhat narrow and do not adequately address the consequences of the court order in the context of the circumstances in this case.

44. Furthermore, in my view, the approach taken by the advocate does not accord with the approach suggested by French J in Boscolo.

45. The Applicant, despite her own mental health issues, continues to provide the majority of the care and supervision for two teenage boys with autism spectrum disorders which is, in my view, a situation which is sufficiently “unusual or different” to be considered a “special reason” for the purposes of subsection 198AC(3)(b) of the Act.

46. Accordingly I am satisfied that the “appropriate period” for the purposes of s 198AC of the Act is the period set out in the court order of February 2013 which means that at 12 July 2014 the Applicant did not cease to be qualified for carer payment.

    DECISION

47. For reasons set out above the decision under review is set aside and, in substitution, the preferable decision is that in July 2014, pursuant to s 198AC of the Act, the Applicant did not cease to be qualified for Carer Payment.

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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Associate

Dated 9 February 2016

Date(s) of hearing	11 December 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services