Loughman; Secretary, Department of Social Services and (Social services second review)
[2021] AATA 3561
•6 October 2021
Loughman; Secretary, Department of Social Services and (Social services second review) [2021] AATA 3561 (6 October 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1425
Re:Secretary, Department of Social Services
APPLICANT
AndAngelina Loughman
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:6 October 2021
Place:Sydney
1.The reviewable decision of the AAT1 dated 27 January 2021 is set aside.
2.In substitution, it is decided that the Respondent’s claim for carer payment made on 31 July 2020 is refused.
.............................[SGD]...........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
SOCIAL SECURITY – Carer payment and carer allowance – Respondent providing care for husband – Whether Respondent providing constant care to husband – Definition of constant care – Husband diagnosed with medical condition – Husband maintaining casual employment at relevant time – Whether Respondent qualified for carers payment under Adult Disability Assessment Test at relevant time – Tribunal granted carer payment claim to Respondent – Respondent not qualified for carer payment – Decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth), ss 38C, 198
Social Security (Administration) Act 1999 (Cth), Schedule 2
CASES
Halls and Secretary, Department of Social Services [2014] AATA 129
James and Secretary, Department of Social Services [2014] AATA 802
Ozturk and Secretary, Department of Social Services [1993] AATA 296
Secretary, Department Social Services v Smith [2016] AATA 10
SECONDARY MATERIALS
Adult Disability Assessment Determination 2018
Guide to Social Security Law
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
6 October 2021
BACKGROUND
Mrs Loughman, the Respondent, was born in January 1973. Mr Loughman, the Respondent’s husband, was born in February 1958 and is aged 63.
On 12 December 2018, Mrs Loughman claimed Carer Allowance and Carer Payment.
In support of her Carer Payment claim, Mrs Loughman lodged a Medical Report for a person – 16 years or over form which was completed by Dr Karim.[1]
[1] T-Documents, T4, 57.
On 28 December 2018, Mrs Loughman’s Carer Allowance claim was rejected because she did not provide the information sought.
Mrs Loughman lodged a further claim for Carer Payment on 13 January 2019.
On 5 March 2019, Mrs Loughman was granted Carer Allowance payable from 12 December 2018.[2] Services Australia unsuccessfully tried to contact Mrs Loughman at that time to discuss her Carer Payment claim.
[2] T19, 141.
On 31 May 2019, Mrs Loughman lodged a claim for Carer Payment.[3] With regard to Mr Loughman’s day to day care needs, Mrs Loughman provided the following information:[4]
[3] T5, 64.
[4] T5, 68-70.
(a)move around the house – without help (Score: 0)
(b)fall over indoors or outdoors – sometimes (not every week) (Score: 1)
(c)move to and from bed, chair – with some help (Score: 3)
(d)have difficulty hearing others – never (Score: 0)
(e)have difficulty seeing clearly – never (Score: 0)
(f)need help or attention during the night – sometimes (not every week) (Score: 3)
(g)have loss of bladder and/or bowel control – sometimes (nor every week) (Score: 1)
(h)use continence aids or equipment – does not use aids (Score: 0)
(i)use the toilet – without help (Score: 0)
(j)eat their food – with some help (Score: 2.5)
(k)shower or bathe themselves – with some help (Score: 1.25)
(l)dress themselves – with some help (Score: 1.25)
(m)look after their grooming – with some help (Score: 2)
(n)take care of their own medication – with some help (Score: 1)
(o)take care of their own treatment – without help. (Score: 0)
With regard to employment, Mrs Loughman said that Mr Loughman worked 24 hours per fortnight.[5]
[5] T5, 72.
On 24 June 2019, Mrs Loughman was notified that her Carer Payment claim had been rejected on the grounds that she did not provide constant care to another person.[6]
[6] T6, 74; T7; 76.
On 3 March 2020, the AAT1 affirmed the rejection decision, finding that Mrs Loughman did not provide Mr Loughman with ‘constant care’ in the manner the Social Security Act 1991 (the Act) requires.[7] An application for further review to the General Division of this Tribunal was subsequently withdrawn.
[7] T10, 89.
On 31 July 2020, Mrs Loughman lodged a claim for Carer Payment which is now the subject of this review.[8] With regard to Mr Loughman’s day to day care needs, Mrs Loughman provided the following information in the Adult Disability Assessment Determination 2018 (the Determination) Schedule 1 Part 1 Division A Claimant Questionnaire for a total score of 16 again:[9]
[8] T11, 93.
[9] T5, 68.
(a)move around the house – without help (Score: 0)
(b)fall over indoors or outdoors – sometimes (not every week) (Score: 1)
(c)move to and from bed, chair – with some help (Score: 3)
(d)have difficulty hearing others – never (Score: 0)
(e)have difficulty seeing clearly – never (Score: 0)
(f)need help or attention during the night – sometimes (not every week) (Score: 3)
(g)have loss of bladder and/or bowel control – sometimes (nor every week) (Score: 1)
(h)use continence aids or equipment – does not use aids (Score: 0)
(i)use the toilet – without help (Score: 0)
(j)eat their food – with some help (Score: 2.5)
(k)shower or bathe themselves – with some help (Score: 1.25)
(l)dress themselves – with some help (Score: 1.25)
(m)look after their grooming – with some help (Score: 2)
(n)take care of their own medication – with some help (Score: 1)
(o)take care of their own treatment – without help. (Score 0).
On 3 August 2020, Mrs Loughman’s claim was rejected on the basis that she did not provide ‘constant care’ to another person.[10]
[10] T12, 104.
On 2 November 2020, an Authorised Review Officer affirmed the rejection decision.[11]
[11] T16, 112.
Mrs Loughman appealed to the Social Services and Child Support Division (AAT1) and on 27 January 2021 the AAT1 set aside the decision under review and decided that Mrs Loughman’s claim for Carer Payment lodged on 31 July 2020 should be granted.
On 10 March 2021, the Secretary lodged an application for review of decision with this Tribunal.
LEGAL FRAMEWORK
Legislation
The legislation relevant to qualification for CP is contained in:
·Part 2.5, Division 1 of the Act;
·the Determination; which includes the Adult Disability Assessment Tool (ADAT); and
·the Social Security (Administration) Act 1999 (the Administration Act).
Section 198 of the Act sets out the criteria for qualification for Carer Payment for a disabled adult.[12] The section provides, inter alia:
1) A person is qualified for a carer payment if the requirements of this section are met.
Constant care for a disabled adult or disabled adult and a dependent child
(2) The person must personally provide constant care for:
(a) either:
(i) if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or
(ii) if not—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or
[12] T3, 14.
The Social Security Guide (Guide) at instruction 1.1.A.78 states:
The ADAT measures the level of care needed by an adult (16 years or older) because of a disability or severe medical condition for the purpose of assessing eligibility for CA (adult) and CP (adult).
The ADAT measures care needs in terms of how much assistance an adult requires with basic activities such as eating, bathing and behaviour management. In doing so it takes account of the adult's physical, cognitive and/or behavioural disabilities. The ADAT is effective regardless of the type of disability or medical condition the adult may have. The ADAT does not assess higher activities of daily living such as managing finances, housework, cooking, shopping, laundry or gardening.
The ADAT was developed in consultation with representatives of peak disability and consumer groups and with specialists in adult disability from a range of medical and allied health professional backgrounds.
Relevant time
The question to be determined by the Tribunal is whether Mrs Loughman qualified for Carer Payment at the relevant date of claim, 31 July 2020.
Pursuant to Schedule 2 of the Administration Act, it is also open to the Tribunal to consider whether Mrs Loughman became so qualified for Carer Payment within 13 weeks of the date of claim; that is by 30 October 2020:
4 Start day--early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
(2) For the purposes of subclause (1), the following provisions have effect:
(a) subject to paragraph (b), any social security payment, other than special benefit, is a relevant social security payment;
(b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child.
(3) If:
(a) a detained person makes a claim for a social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) the person becomes qualified for the payment within 3 weeks after the claim is made;
the claim is taken to be made on the first day on which the person is qualified for the payment.
ISSUES
The question for the Tribunal is whether Mrs Loughman qualified for Carer Payment on 31 July 2020 in respect of the care she personally provides to Mr Loughman.
It is also open to the Tribunal to consider the question of whether Mrs Loughman became qualified for Carer Payment between 31 July 2020 and 30 October 2020.
DISCUSSION
In order to determine the issue of whether Mrs Loughman qualified for Carer Payment on 31 July 2020, the Tribunal needs to examine the various qualifying ratings set out in the ADAT. The Tribunal must also determine whether the care Mrs Loughman provided to Mr Loughman is consistent with the terms of section 198 of the Act.
Turning to the first issue, there is relevant medical evidence in relation to the determination of Mr Loughman’s score under the ADAT. In particular, the medical evidence does not support Mrs Loughman’s contention that Mr Loughman is in the final phase of a terminal illness and is not expected to live more than 3 months.
There is evidence that Mr Loughman has been diagnosed with a ‘well documented ischaemic disease’ since 2011. However, a short summary of the medical evidence makes it clear that the condition has responded to appropriate medical treatment and is regarded by the relevant medical practitioners as stable.
The various medical reports were usefully summarised by the Applicant as follows:
(a)A report of Dr Kiyingi, Cardiologist, dated 20 March 2011 stated that he had examined Mr Loughman in respect to ‘mild ischaemic heart disease with atrial fibrillation’.[13] Dr Kiyingi opined that he had commenced Mr Loughman on medication and ‘had a long talk to him about lifestyle modification, diet and exercise… should reduce his alcohol’.
[13] Supplementary T-Documents, ST2, 230.
(b)On 23 July 2012, Dr Kiyingi provided a report to Dr Fajardo at Myhealth Merrylands Medical Centre.[14] Dr Kiyingi stated that he saw Mr Loughman (emphasis in the original):
[14] ST2, 198.
… earlier than expected because he wanted an assessment as part of the Centrelink review”; that on examination his chest was clear; heart sounds were normal; a stress test was conducted with “no arrhythmias induced, no chest pain and no ECG changes. Recovery was normal. This was a negative stress test … This gentleman is stable from a cardiovascular point of view …
(c)On 20 November 2012, Mr Loughman again saw Dr Kiyingi who reported to Dr Fajardo that Mr Loughman’s examination was normal as was his stress test and that he is (emphasis in the original) “stable from a cardiovascular point of view”.[15]
[15] ST2, 190.
(d)On 5 May 2013, Dr Kiyingi reported to Dr Fajardo that he had reviewed Mr Loughman again.[16] On examination, Mr Loughman was stable; “he continues to be active”; he had been asymptomatic during a 24 hour Holter monitor test; a stress test had revealed “no arrhythmias induced, no chest pain and no ECG changes. Recovery was normal. This was a negative stress test while on medication. This gentleman is stable from a cardiovascular point of view”.[17]
[16] ST2, 188.
[17] ST2, 188.
(e)A report of Dr Kiyingi dated 25 April 2014 stated he had been treating Mr Loughman for “3½ years”.[18] The report stated Mr Loughman “has well documented ischaemic disease … other problems include depression, stress, anxiety and atrial fibrillation … He needs assistance when using private/public transport and definitely requires assistance from his wife and family in routine daily tasks”. Treatment for the condition was noted as medication.
[18] ST2, 166.
(f)On 25 April 2014, Dr Kiyingi reported to Dr Fajardo that he had reviewed Mr Loughman who had been stable for the past six months; he had been asymptomatic during a Holter monitor test; a stress test produced no arrhythmias, no chest pain and no ECG changes which was a (emphasis in the original) “negative stress test while on medication”; and that Mr Loughman was “stable from a cardiovascular point of view”.[19]
[19] ST2, 166.
(g)On 9 May 2015 and 19 July 2016, Dr Kiyingi provided further reports to Dr Fajardo opining Mr Loughman continued to be active over the last 12 months; continued to be asymptomatic; and stable from a cardiovascular point of view.[20]
[20] ST2, 161-162.
(h)On 1 August 2017, Dr Kiyingi reported to Dr Begum at Pioneer Medical Practice that Mr Loughman had been stable for the past 12 months; he was asymptomatic and continued to be active; on examination, his heart and chest were normal; he completed a stress test and there “were no arrhythmias induced, no chest pain and no ECG changes. Recovery was normal. This was a negative stress test while on medication”.[21]
[21] ST2, 160.
(i)Dr Kiyingi also reported that “In the meantime, I have again had a long talk to him about lifestyle modification, diet and exercise”.[22]
[22] ST2, 160.
(j)In Mr Loughman’s medical file from Pioneer Medical Health Practice,[23] Dr Begum recorded that Mr Loughman saw him on 19 April 2018 for dermatitis,[24] on 26 June 2018 for a Centrelink medical certificate noting “can not do heavy work”[25]; and on 14 November 2018 again for a letter for Centrelink. On 26 November 2018, Mr Loughman saw Dr Begum for a blood test referral and on 2 December 2018, he returned to see Dr Begum for his blood test results.[26]
[23] ST3, 362.
[24] ST3, 372.
[25] ST3, 372.
[26] T3, 373.
(k)On 10 December 2018, Dr Kiyingi provided Mr Loughman with a report at his request stating Mr Loughman “has well documented ischaemic disease … other problems include depression, stress, anxiety and atrial fibrillation … He needs assistance when using private/public transport and definitely requires assistance from his wife and family in routine daily tasks”.[27] Treatment for the condition was noted as medication. Dr Kiyingi stated in the report that he had been treating Mr Loughman for “8 ½ years”.[28]
[27] ST2, 158.
[28] ST2, 158.
(l)On 12 December 2018, Mr Loughman’s medical file from Pioneer Medical Practice records that Mr Loughman consulted Dr Karim requesting a Centrelink form be completed for disability pension.[29]
[29] ST3, 373.
(m)On 12 December 2018, Dr Karim provided the following information in a Medical Report for Carer Payment:[30]
[30] T4, 57.
othe person being cared for had physical and psychiatric disabilities being ischaemic heart disease, arterial fibrillation, anxiety and depression;[31]
[31] T4, 60.
othe conditions were permanent and not likely to improve;[32]
[32] T4, 61.
othe conditions began in 2011;
othe person was continent with bladder and bowels;
othe person “needs help with personal care: face, hair, teeth”;
othe person is “independent with toilet use” and “feeding”;
othe person was “independent” with “transferring from a bed to a chair and back”;
o“walks with the help of one person”;
othe person “needs help but can do about half unaided” when dressing;
o“needs help (verbal, physical, carrying aid)” when using stairs;[33] and
[33] T4, 62.
owas “independent” with bathing.
(n)Dr Karim also recorded that Mr Loughman was not cognitively impaired and ‘sometimes’ had the following difficulties with behaviour:[34]
[34] T4, 62.
oshowed signs of depression;
owithdrew from social contact;
odisplayed aggression; and
odisplayed disinhibited behaviour.
(o)On 6 November 2019, Dr Kiyingi again saw Mr Loughman for review and reported to Dr Begum that Mr Loughman was stable from a cardiovascular point of view; was asymptomatic; continued to be active; a stress test gave a negative result; and that Mr Loughman (emphasis in the original) “was stable from a cardiovascular point of view”.[35] Dr Kiyingi also noted that he “had again had a long talk to him about lifestyle modification, diet and exercise”.
(p)On 10 June 2020, Mr Loughman attended Dr Begum for repeat prescriptions, noting “nil complains. going well”.[36]
(q)On 27 August 2020, Mr Loughman attended Dr Begum for a prescription for dermatitis.[37]
(r)A further examination by Dr Kiyingi on 12 September 2020, as reported to Dr Begum, resulted in a similar opinion that Mr Loughman “is stable from a cardiovascular point of view” and that he “again had a long talk to him about lifestyle modification, diet and exercise”.[38]
(s)On 1 April 2021, Mr Loughman attended Dr Begum for “pain and swelling … of the Rt. Hand following hit with a golf ball this AM. …Plan X.ray … Come back after X-ray … ref. to Auburn Hospital for Plantic [sic] suegeon [sic] assessment and Mx”.[39]
[35] ST2, 157.
[36] ST3, 378.
[37] ST3, 378.
[38] ST2, 156.
[39] ST3, 380.
The report of Dr Kyingi dated 12 September 2020 is particularly important in that it states clearly that Mr Loughman is ‘stable from a cardiovascular point of view’. Accordingly, the 3.5 ADAT points relevant to this issue should be deducted.
It is also clear from the evidence given to the Tribunal that Mr Loughman did not require assistance in order to feed himself. The evidence was that Mrs Loughman prepared food for her husband but that he actually feeds himself. In other words, it is not physically necessary for Mrs Loughman to convey food to Mr Loughman’s mouth. Mr Loughman did say that sometimes he did need his face to wiped or other minor assistance. However, the 2.5 points allocated to this issue should, on the basis of the evidence, be deducted in calculating the ADAT score.
There are a number of other issues for which points were allocated which would also seem to be incorrect, including Mr Loughman’s capacity to manage his medication. The evidence is that he is able to take his medication himself. His wife reminds him to take his medication and prepares the medication for him, but his evidence was that he is able to pick up the medication and put it in his mouth quite independently. Although he might forget on occasion if his wife did not remind him, there was no evidence that he was mentally or physically incapable of taking the right medication at the right time.
I cannot agree with the conclusion of the AAT1 regarding Mr Loughman’s ADAT score. Mrs Loughman’s personal ADAT score from the claimant questionnaire simply does not correlate with the evidence as to the disability, emotional state, behaviour and ‘special needs’ of Mr Loughman on the basis of the medical evidence and the evidence given by Mrs Loughman to the Tribunal.
It became very clear at the hearing that Mrs Loughman was deeply concerned for her husband’s welfare and may be described as ‘over-anxious’ on his behalf, although this clearly arises from love and concern for Mr Loughman. It also appears from the evidence given to the Tribunal, that Mrs Loughman was not present where Dr Begum filled out the medical practitioner ADAT questionnaire in relation to her husband. While Mr Loughman consulted with Dr Begum, Mrs Loughman sat in the waiting room, as COVID-19 restrictions meant only one person could be with the doctor at any given time. Dr Begum was not Mr Loughman’s specialist heart physician, although he had been Mr Loughman’s doctor for some years. The Tribunal was given no explanation as to why Mrs Loughman may have thought that Mr Loughman’s condition was terminal and that he had less than 3 months to live[40], which added very significantly to the ADAT score.
[40] T11, 98.
Further, it would appear that the ADAT score recorded by Dr Begum did not reflect the evidence of the doctors who had been treating Mr Loughman over a long period of time and would appear to be based upon misinformation. Dr Begum did not appear before the Tribunal for cross-examination. It should be noted however, that all of the medical reports of Dr Kyingi recorded that Mr Loughman ‘continues to be active’, including Dr Kyingi’s report of 6 November 2019. This would seem to be supported by the fact that Mr Loughman sustained a fracture to his right hand on 1 April 2021 ‘following hit with a golf ball this AM’.[41]
[41] Applicant’s Statement of Facts, Issues and Contentions, paragraph 8.7.
There was no evidence before the Tribunal that Mr Loughman had serious behavioural issues or that he was unable to move from the bed to his chair, even though his wife might sometimes help him sit up.
During much of the relevant period, Mr Loughman gave evidence that he worked on average 2 casual shifts per week as a concierge, a responsible position requiring regular interaction with other people. He was able to get himself to and from work, usually on the train, although on occasion his wife would drive him.
On the basis of the evidence, I am of the opinion that Mr Loughman would not reach the required ADAT threshold of 25 points, but rather, would fall substantially short of the required threshold.
Further, for the reasons set out below, I am of the opinion that Mrs Loughman did not provide ‘constant’ care to her husband.
In considering the question of whether Mrs Loughman provided constant care to Mr Loughman, I note that ‘constant care’ is not defined in the Act. The Applicant directed the Tribunal’s attention to the definition of constant care in the Guide, which at Instruction 1.1.C.310 states as follows:
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.
The Tribunal has considered the definition of ‘constant care’ for the purposes of Carer Payment on a number of occasions. In the case of Secretary, Department Social Services v Smith [2016] AATA 10, the Tribunal said as follows:
The “constant care” requirement, in the context of the qualification criteria in SSA 1991 s 197C requires regard to the nature, extent, intensity, frequency and period of the care needs, and the carer’s activities. The answer to the question whether those aspects of the care satisfy a decision maker that it is properly characterised as “constant” may be informed by considering (i) whether the care activities are “more or less” full time (see Milne), (ii) whether they involve a period “roughly the equivalent of a normal working day” (see Guide clause 3.6.4.60 ) and (iii) whether they are of such intensity that they “roughly equate(s) to a normal working day” (see Guide clause 1.1.C.310). But neither of these considerations should be elevated to the status of being determinative of the “constant care” characterisation. The proper approach is that taken by Dr Campbell in his reasons for decision in Harvey [2009] AATA 835; (2009) 112 ALD 216 when he said:
[28] I note that the term “care” has been defined to include attention and supervision. I note the dictionary definitions of constant as unmoved, resolute, unchanging, unremittent as to attention, occurring continually over a period of time, remaining the same over a period of time. I would conclude that the phrase “constant care” refers to care needs which are unchanging, unremittent, occurring continually and remaining the same over a period of time. I have already concluded that the assessment of the care needs, including the level of care needs, are and remain a function of the ADAT. I would further conclude that, as a consequence of the functions nominated in the Act and referred to above, phrases that “constant care” requires the provision of care on a daily basis “for ‘a significant period’ during each day”, a carer would be expected to provide at least the equivalent of a normal working day, could only be relevant if the phrase “constant care” was to be interpreted as constant care on a daily basis — a meaning that the statute could have conveyed by including the words “on a daily basis” and clearly one that was not adopted.
[29] In defining “constant care” as I have, I am mindful that such a definition points to the provision of care that is occurring continually or remains the same over a period of time, with the latter encompassing circumstances of continuous reoccural. In relation to the phrase “period of time”, the time period must reflect the opportunity to assess adequately the need for the provision of constant care, and the likelihood for it to be required on a continuing and permanent basis.
Dr Campbell’s reference to the care need assessment level being primarily “a function of ADAT” referred to the tool used for the assessment of adult care needs.
I agree with what was said in that case.
There are further decisions of this Tribunal consistent with the case above, such as Halls and Secretary, Department of Social Services [2014] AATA 129, James and Secretary, Department of Social Services [2014] AATA 802 and Ozturk and Secretary, Department of Social Services [1993] AATA 296.
Having regard to the above decisions and, on the basis of the evidence before the Tribunal, I find that Mrs Loughman did not provide constant care to Mr Loughman. Much of her care and attention directed to Mr Loughman was not ‘determined by the medical needs or the care of the recipient’, as was clearly evident from the reports of Dr Kyingi that Mr Loughman’s heart condition was stable and that stress tests produce no arrythmias, chest pain, or ECG changes. The medical files of Pioneer Medical Practice and Myhealth Marylands only record a skin condition and excessive earwax at the relevant time.
The additional care Mrs Loughman gave her husband by laying out his clothes, making his lunch and reminding him to take his tablets each day were tasks that would be regularly undertaken by partners to assist each other, and therefore relate more to convenience and ease of lifestyle than necessity. The evidence demonstrates that Mr Loughman would be able to perform these tasks, even with some difficulty, if Mrs Loughman were not able to assist him. This is equally true of Mr Loughman’s capacity to get himself to work. The evidence suggests that out of a sense of love, care and responsibility, Mrs Loughman often walked with him to the station or drove him to work, especially if there were interruptions to the train service. But it appeared that Mr Loughman was quite capable of going between work and home independently, even at irregular hours. Certainly, it was better for Mr Loughman to have his wife assist him and it was more convenient for Mrs Loughman to carry out many of these tasks in order to relieve her constant anxiety about her husband. There was not however, a medical requirement for Mrs Loughman to perform most of these tasks.
I note further that many of the tasks performed by Mrs Loughman would not require significant periods of time and so could not be said to fall within the definition of ‘constant care’. Despite Mrs Loughman’s response to the ADAT questionnaire indicating that her husband occasionally shouted or perhaps behaved inappropriately, there was no supporting evidence for the claim that Mr Loughman had serious behavioural issues and therefore required constant care. This finding is reinforced by the fact that Mr Loughman was able to hold down a responsible job involving interaction with other people, play golf, and generally interact with others, which indicates that this was not a medical condition that would generate a need for constant care.
Although it is open to the Tribunal to consider the question of whether Mrs Loughman became qualified for carers payment between 31 July 2020 and 30 October 2020, it is not necessary for the Tribunal to consider this question in light of the above findings. In any event, if required to do so, I find no evidence indicating that the situation changed during that period from the situation as at 31 July 2020.
DECISION
The reviewable decision of the AAT1 dated 27 January 2021 is set aside. In substitution, it is decided that the Respondent’s claim for Carer Payment made on 31 July 2020 is refused.
I certify that the preceding 45(forty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
............................[SGD]............................................
Associate
Dated: 6 October 2021
Date of hearing: 23 August 2021 Solicitors for the Applicant: S Thompson, Sparke Helmore Advocate for the Respondent: S Loughman
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