LEMON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 305

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 305

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5223

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUSAN  LEMON

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date29 April 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]...................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and entitlements – Claim for carer payment – Caring for child with cystic fibrosis – Meaning of “constant care” - Use of the Guide to the Social Security Law - Child residing with non-carer for 3 days each fortnight and one-half of school holidays – Carer’s regular monitoring of child’s condition during non-residence periods - Carer able to engage in part-time employment – Requirement of “constant care” not met - Decision affirmed.

Social Security Act 1991 (Cth) ss 197B, 198A, 198B
Social Security Act 1947 (Cth) s 105J

Re Del Vecchio and Secretary, Department of Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Re Secretary Department of Social Security and Retallack (1998) 3 SSR 50 [

Re Shingles and Director-General of Social Security (1984) 6 ALD 568

REASONS FOR DECISION

29 April 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      On 22 July 2009, Susan Lemon claimed carer payment (CP), in accordance with the Social Security Act 1991 (Cth) (the Act), in relation to her son, Djon, who was aged 9 years at that time and has cystic fibrosis. On 30 July 2009, a Centrelink officer rejected her claim. That decision was affirmed by an authorised review officer on 19 August 2009 and, in turn, by the Social Security Appeals Tribunal (SSAT) on 15 October 2009.

LEGISLATION AND SUBMISSIONS

2. The qualifying criteria for CP in this matter are set out in s 197B of the Act. It is not in dispute that Djon is under 16 years or that he and Ms Lemon are Australian residents. Further, it is conceded by the respondent that Djon has a severe medical condition of cystic fibrosis[1]; that a treating health professional has certified in writing that, because of cystic fibrosis, he will need personal care for at least 6 months and also that personal care is required to be provided to him; and that Djon satisfies the income and assets tests under s 198A and s 198D of the Act. Each of those matters is listed as a qualifying criterion for CP in s 197B of the Act and I am satisfied that the respondent’s concessions on those matters have been properly made. In issue is whether the following further requirements of s 197B of the Act are met: whether Ms Lemon personally provides constant care for Djon[2] in a private residence that is Djon’s home[3]; and whether the provision of that constant care severely restricts Ms Lemon’s capacity to undertake paid employment[4].   

[1] It is also conceded by the respondent that a qualifying rating of “intense” under the Disability Care Load Assessment (Child) Determination for caring for Djon is satisfied.

[2] See s 198A(1) of the Act.

[3] See s 198A(2) of the Act.

[4] See s 198A(1)(d) of the Act.

3.      Ms Lemon acknowledged that Djon stays with his father from Friday night until Tuesday morning each fortnight during school terms and for one-half of each school holiday period during the year.  That notwithstanding, she contended that, when all of the responsibilities discharged by her are taken into account including those undertaken while Djon is with his father, she provides constant care for Djon throughout the year.  Her assessment of the hourly allocation of carer responsibility between herself and Djon’s father for a typical fortnight is 70.53% to 29.46%[5].  She also contended that this dramatically limits her capacity to gain substantial employment.

[5] See exhibit 8.

4. For the respondent, Joe Guthrie referred to provisions in the Guide to Social Security Law, in particular the definition of “constant care”, as well as to Tribunal decisions and submitted that Ms Lemon does not provide constant care and is not severely restricted by the care she provides in her capacity for paid employment as required by s 197B of the Act. Mr Guthrie did not take issue with the requirement that care had to be in a private residence that was Djon’s home and submitted that each residence where Djon stayed was his private home at that time and that this provision distinguished between care at home and care in an institution.

EVIDENCE

5.      Djon lives most of the time with Ms Lemon and her husband in their home which is located adjacent to Djon’s school.  Djon stays with his father every second weekend and for half of the school holidays.  Ms Lemon’s evidence was that Djon also stays for 1 or 2 nights each year with his grandmother.  The standard arrangement with Djon’s father is that, on the weekends that Djon is to stay with him, Djon’s father comes to Ms Lemon’s home after school on Friday afternoons, collects Djon and takes him to his own residence.  He stays there until he goes to school on Monday morning.  After school that day, Djon’s father collects him from Ms Lemon’s home and takes him to his residence where he stays until he goes to school on Tuesday.  After school that day, Djon returns to Ms Lemon’s home and remains resident there, attending school, until the following fortnightly return to his father’s place.  For school holidays, he is collected by his father and taken to his residence.  On returning to his home after school, Djon engages in a range of activities including physiotherapy, dancing and sport such as trampolining as well as his school homework.

6.      Ms Lemon constantly monitors Djon’s health, particularly his breathing and sputum production.  She does so even when Djon is staying with his father and completes this by speaking with Djon by telephone.  On approximately one occasion in most weeks, including those of the school holidays when Djon is at his father’s place, she has had to take a sputum sample for testing.  This has also occurred on approximately six of the weekends in a 12 month period when he was staying with his father.  When this occurs, she drives some 16 kilometres to the nearest town for samples to be tested.  When these tests have been completed, medication is usually required.  She administers this and, when necessary, drives to Djon’s father’s home to do so.  Because Djon has developed a lung complication which was diagnosed in August 2009 as allergic bronchopulminary aspergillosis (ABPA), Ms Lemon has been required to take him to a cystic fibrosis clinic at the Mater Hospital in Brisbane. These clinics were conducted on a fortnightly basis in August and September 2009 and, since then, have been conducted monthly. 

7.      Ms Lemon’s evidence is that it is essential for Djon’s well-being that she maintains this monitoring regimen herself as she is the only person who is able to make proper assessments because of her consistent and ongoing observations of his condition.  Djon’s condition requires him to have a strictly controlled diet and associated medication and Ms Lemon assumes responsibility for this.  Her monitoring of Djon’s health also involves her attending the school from time to time.  The principal of the school confirmed that school staff work with Ms Lemon to ensure this is properly done[6].  Djon has frequent absences from school because of his health and an absence report from the school reveals 30 such days from mid September 2009 until February 2010[7].  These include the various Mondays when Djon has attended the cystic fibrosis clinic at the Mater Hospital.  He has also been required to spend periods of some days in the Mater hospital and, on those occasions, Ms Lemon stays with him, spending the nights on a folding bed beside him. 

[6] See exhibit 3 (report of school principal Ms M Porter dated 18 March 2010).

[7] See exhibit 4.

8.      When she is able to, Ms Lemon undertakes casual employment that offers flexible working hours in a range of work such as cleaning, reception work and assisting disabled people.  Her availability depends upon Djon’s health although she is often able to leave him with her husband and, for example, may undertake cleaning work from as early as 6.00 am.  In evidence was documentation from Centrelink[8] which reported Ms Lemon earnings from Eltham Valley Pantry for each fortnight from 29 October 2009 until 15 April 2010, with hours of work varying from 3 to 15 hours per fortnight at an average of approximately 8 hours per fortnight.  Records from Multitask reported earnings for each fortnight from 26 November 2009 until 15 April 2010 varying from 13 to 40 hours per fortnight at an average of approximately 25 hours per fortnight.  While Ms Lemon agreed that she had been able to undertake work in that way, she said that Djon’s health problems and her need to be on hand to deal with these meant that she was not able to undertake any permanent, and therefore substantial, employment.

[8] See exhibit 2.

CONSIDERATION

9.      It is not in dispute that Ms Lemon provides a high level of care for Djon.  Care is also provided by Djon’s father every second weekend and for one-half of the school holidays.  During those periods, Ms Lemon’s monitoring role continues with the need for intervention on some Saturdays.  She estimated this to involve six Saturdays a year and this would point to some 3 or 4 Saturdays while Djon is with his father.  She also has to take sputum samples for testing with the need for follow-up medication administration in most weeks of the year which would point to her doing so on some 4 or 5 occasions when Djon is with his father in the school holidays.  Even when those days are notionally allocated as carer days to Ms Lemon, although resident with his father, it leaves some 26 Sundays, 22 Saturdays and some 20 or so week days in the school holidays when Djon is not in her care.  That analysis does not include Fridays during school, when Djon is with Ms Lemon in the mornings.  Neither does it include Mondays, for some (but not all) of which Ms Lemon has taken him to the Mater Hospital.  There is also an unspecified number of days when Djon is with his grandmother. 

10.     In evidence were extracts from the Guide produced by the applicant. It provides guidance to those who administer the Act.  The Tribunal, whilst not bound to apply policy guidelines of the kind in the Guide, may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so[9].  In this case, there is no material before the Tribunal to indicate that the Guide should not be applied. 

[9] See Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645.

11.     The term “constant care” is not defined in the Act.  Reference is made to the term in Chapter 1.1.C.310 of the Guide which reads:

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.

12.     That description was relied upon by the Tribunal in Del Vecchio and Secretary, Department of Department of Families, Community Services and Indigenous Affairs[10] where it was held that “constant care” requires a “significant degree of daily care for the individual involved”[11].  I agree with that conclusion.  The meaning of “constant care” was also considered by the Tribunal in Re Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[12].  There, it was noted that the care may be active, such as actually doing something for someone, or passive, such as supervising or monitoring a person’s activity.  The Tribunal said that, to be constant, the care needed to be on a more-or-less full-time basis to be consistent with the apparent intention underlying the CP legislative scheme.  This was that CP is “paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.”[13]  To similar effect is the Tribunal decision in Re Secretary Department of Social Security and Retallack[14] where the giving of constant care was described as involving a consideration of whether the carer was “freed up for other things”.  I agree with that analysis. 

[10] [2007] AATA 1145

[11] At para [38].

[12] [2008] AATA 689.

[13] See para [7].

[14] (1998) 3 SSR 50 at para [24].

13. I also accept Mr Guthrie’s submission that the care provided at both Ms Lemon’s house and that of Djon’s father was in a private residence that was Djon’s home at the times he was there and that this was not displaced on occasions for any part of a day when Djon was absent from home for such purposes as attending school or obtaining medical treatment [15].

[15] See Re Shingles and Director-General of Social Security (1984) 6 ALD 568 where the purpose of the requirement in a similar provision (s 105J in the Social Security Act 1947) was to distinguish between care in a home and care in an institution.

14.     In this case, Ms Lemon has been “freed up” to undertake casual work for an average of some 25 hours each fortnight over a period of several months.  On that basis, I am satisfied that she is not severely limited in obtaining employment.  She has been assisted in this by the extent to which Djon’s father has reduced her level of responsibility for daily care of Djon.  Looking at his involvement in a generous manner from Ms Lemon’s perspective, this has been for at least 66 days per year.  I am satisfied that, in that situation, Djon is not in the constant care of Ms Lemon.

DECISION

15.The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: .........................[Sgd].................................................
              Kate Slack, Research Associate

Hearing  19 April 2010
Date of Decision  29 April 2010
The applicant was not represented
The respondent was represented by Mr J Guthrie, Departmental Advocate.