King and Department of Family and Community Services

[2001] AATA 373

DECISION AND REASONS FOR DECISION [2001] AATA 373

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1417

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      WENDY KING        
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       DR J D CAMPBELL, MEMBER   

Date12 April 2001 

PlaceSydney

Decision      The decision under review is affirmed.          

[sgd]Dr J D Campbell
  Member
CATCHWORDS
Social Security - carer payment - qualifications for carer payment - carer payment rate - members of a couple - income and asset resource pooling - cancellation
Social Security Act 1991 ss 8, 198, 210, 231, 1064

REASONS FOR DECISION

DR J D CAMPBELL, MEMBER                 

1. In this application, Mrs W King ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 4 April 1999, which affirmed the decision of the Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 15 December 1998, to cancel the Applicant's carer payment.  This latter decision was reviewed by the authorised review officer and affirmed in a decision dated 6 January 1999.

2. A hearing was held before the Tribunal at Narrandera on 15 November 2000, at which the self represented Applicant presented oral evidence.  The Respondent was represented by Ms M Buckley, an advocate from the Administrative Law Section of Centrelink.

3. The following material was placed into evidence before the Tribunal:
   Exhibit No  Description                   Date         
   T1-T23 PP1-88 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
   R1      Respondent's Statement of Facts and Contentions     20 February 2000   

issues

1. The relevant issue before the Tribunal is whether the Applicant was entitled to the payment of carer payment at and from 10 December 1998.
   legislation

2. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 8, 198, 210, 231, 1064.
   file background evidence:

3. A review of the Tribunal documents portrays the following:

(a) the Applicant claimed carer payment to look after her disabled daughter, Deborah, on 18 February 1998, indicating that prior to the lodgement of the claim she had worked as a cleaner (T6, P15).  In an accompanying document, the Applicant's partner detailed that he earned $508 gross per week from employment at the rice mills (T7, P29).  In a further form lodged with the Respondent on 18 February 1998, the Applicant indicated that she was earning $295 gross per week from her employment at Menzies Cleaning Services (T9, P48). However, in an accompanying letter, the Applicant confirmed that she had relinquished this job to look after her daughter.  Further, the Applicant advised that her partner's income nominated was his normal wage, and that on occasions he works overtime (T10).  The claim was rejected, as the Applicant indicated in the claim lodged that she was still working (T6, P15);

(b) on 6 April 1998, the Applicant again advised that she had resigned from work with effect from 6 April 1998 (T13), and re-claimed carer payment which was granted on a part rate from April 1998;

(c)  the Applicant's partner commenced work with the Rice Growers Co-operative Leeton on 22 July 1998, and in the period 22 July 1998 to 20 October 1998 earned a gross salary of $11,780.25, which equated to a gross weekly salary of $906.19 (T14).

(d) as a consequence of the Applicant's partner's gross salary averaging $906.19 per week over the 13 week period from 22 July 1998 to 20 November 1998, the Applicant's carer payment was ceased with effect from 10 December 1998, the disqualifying income limit for the payment of carer payment being $689.60 per week (T18); and

(e) the issue of cancellation of carer payment was subject to internal review on 21 December 1998 (T20), and to review by the authorised review officer on 6 January 1999 (T22).  On both occasions the original decision was affirmed.  The SSAT reviewed the original decision and in a decision dated 4 March 1999, affirmed the decision (T2).

applicant's evidence

1. The Applicant stated that her daughter, born on 31 March 1980, has been sick since birth, suffering from cerebral palsy, meningitis at the age of three months and a further bout of meningitis at age 15, for which she was hospitalised for a period of five months.  Since the latter period of hospitalisation, her daughter has been confined to a wheel chair, and her weight over time has significantly increased.  Further, by nature of their geographic isolation, the major and significant carer for her daughter is the Applicant.  The Applicant did indicate that some variable assistance is given in relation to toileting, showering and mobility, but in essence the majority of effort falls upon her.  There has been no access to respite care for 18 months, and the Applicant remains the primary carer at all times.

2. The Applicant indicated that she was involved in a car accident at age 18 and as a consequence at age 46 she has a painful left knee.  The Applicant stated that she takes anti-depressants, analgesics and sleeping tablets.  The Applicant stated that her husband, aged 47 works at the rice mill and suffers from diverticulitis and asthma.  The Applicant stated that she and her husband own their own house, with a $13,000 mortgage requiring a monthly payment of $500.  They own two cars valued at $6000 and $2000, and she receives $350 a fortnight for housekeeping from her husband.  The disabled daughter has a separate bank account and does contribute to household expenses.

3. In response to questions in cross-examination, the Applicant indicated that she and her husband were legally married and were not living separately.
   submissions

4. The Applicant submitted that she was essentially the sole carer for her disabled daughter and that the degree of dependency had increased after the last episode of hospitalisation.  The Applicant indicated that there was no opportunity for respite care in the previous 18 months nor was she optimistic about the availability of such care options in the future.

5. The Applicant contended that while her husband worked at the rice mills, there was particular difficulty in estimating his gross weekly pay, as the issue of overtime hours remained variable.  Further, the Applicant submitted that she had to stop work to care for her daughter and the absence of her weekly income made it difficult for her to cope with the expenses of running the house and the activities associated with caring for her daughter.  Further, the Applicant was concerned with her and her husband's variable health conditions and the inability to obtain any periods of respite care.  The Applicant felt she would be greatly assisted if she were granted a health care card.

6. The Respondent accepted that the Applicant was qualified to receive carer payment when granted on 16 April 1998, but further contended that as the Applicant was legally married to her husband, and not living separately or apart from him on a permanent or indefinite basis, she was not entitled to carer payment as the combined income of her and her husband was too high. This resulted in the Applicant's reduction for ordinary income being more than her maximum payment rate, which then resulted  in her maximum payment rate being reduced to nil.
   consideration and findings

7. In initial comment, the Tribunal, having observed the disabilities of the Applicant's daughter, recognises the issues, concerns and difficulties expressed by the Applicant in caring for her daughter in a relatively remote geographical location, with limited health, welfare resources and facilities.  The Tribunal also acknowledges the matter of a health care card, but as stated during the hearing, this is a matter for the Applicant to address with the appropriate medical authorities, and is not a matter which falls within the jurisdiction of the Tribunal on this occasion.

8. In considering the particular issue in this matter, the Tribunal, in acknowledging the evidence placed before it, makes the following findings of fact:

• the Applicant's daughter Deborah is a severely disabled person, who lives in the private residence of the Applicant and receives a social security pension;

• the Applicant provides constant care for her daughter Deborah;

• the Applicant received partial carer payment from 16 April 1998; and

• the Applicant's husband, during the period 22 July 1998 to 20 October 1998, had gross earnings of $11,780,57, which equate to an average gross weekly earning rate of $906.19.

1. In considering the issue further the Tribunal notes the following statutory framework contained within the Act:

   Section 8     -  defines income;
   Section 198  -  defines qualification for carer payment;
   Section 210 - defines how to work out a person's carer payment rate by reference to section 1064, Calculator A;
   Section 1064 - Calculator A defines the methodology to be used for calculating rate of pension; and
   Section 231 - states that where carer payment should not be paid, it is to be cancelled.

2. In addressing the issue for the rate of carer payment, the Tribunal notes that at the relevant time the disqualifying income limit for carer payment was $689.60 per week. In working through the rate calculator as defined in section 1064 of the Act, the Tribunal makes the following findings:

• as the Applicant was a member of a couple, her ordinary income was half the sum of the combined income of her and her partner, that is half of $47,122.40 (or $906.20 per week), namely $23,561.20 per annum ($353.10 per week);

• deducting the Applicant's income free area, results in the Applicant's ordinary income excess being $21,573 or $414 per week; and

• the Applicant's reduction for ordinary income is half of the ordinary income excess, namely $10,786.50 or $207 per week.

1. The Tribunal, in noting that the Applicant's reduction is significantly more than her maximum payment rate, concludes that the Applicant's rate of carer pension at the time of cessation was nil and that it had been correctly cancelled in accordance with section 231 of the Act.

2. In summary, the Tribunal finds that the Applicant's carer payment was correctly cancelled on 10 December 1998 as a consequence of the combined earnings of her and her husband in the period 22 July 1998 to 20 October 1998.
   determination

3. The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL, MEMBER

Signed:         .....................................................................................
  Associate

Date/s of Hearing  15 November 2000
Date of Decision  12 April 2001
Counsel for the Applicant        Self represented
Solicitor for the Respondent    Ms M Buckley