Michael Adams and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 507
•3 August 2012
[2012] AATA 507
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3171
Re
Michael Adams
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 3 August 2012 Place Sydney The decision under review is set aside and the Tribunal finds that there is sufficient evidence to be satisfied that as at 5 November 2010 Mr Adams was providing the necessary care to Ms Zielinski of at least 20 hours per week, as specified in section 954A(2) of the Social Security Act 1991.
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Ms N Isenberg, Senior Member
Catchwords
SOCIAL SECURITY – Carer Allowance – whether decision to cancel carer allowance was correct – care provider and care recipient not living in same residence – nature of care provided – whether necessary care of at least 20 hours per week provided – evidence from neighbours and doctors – decision under review set aside.
Legislation
Social Security Act 1991, s 945A(2)
Secondary Materials
The Guide to Social Security Law
REASONS FOR DECISION
Ms N Isenberg, Senior Member
3 August 2012
BACKGROUND
Elizabeth Zielinski was paid disability support pension from 1995. She suffered from schizophrenia, depression and alcohol dependency. From at least 2006 Mr Adams cared for her and from that time he was paid carer allowance.
In April 2010 Ms Zielinski informed Centrelink that Mr Adams was no longer her carer and his carer allowance was cancelled. She then withdrew that assertion in May 2010 and his carer allowance was re-instated. In November 2010 she again told Centrelink that he was not her carer and Centrelink again cancelled his carer allowance. That decision was affirmed on internal review and by the Social Security Appeals Tribunal (SSAT). Mr Adams now seeks review of that decision by this Tribunal.
Ms Zielinski passed away on 30 April 2011.
ISSUES FOR DETERMINATION
Was the decision to cancel Mr Adams' carer allowance with effect from 5 November 2010 correct?
LEGISLATIVE FRAMEWORK
The qualification criteria for carer allowance (adult) where the care provider and care receiver are not living in the same residence is found in s 954A of the Social Security Act 1991 (the Act), which so far as is relevant, sets out:
Qualification for carer allowance—caring for a disabled adult in a private home not shared by the adult and carer
(1) A person is qualified for carer allowance for a disabled adult (the care receiver) if:
…
(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, being a score calculated on the basis of a professional questionnaire score of at least 12; and
(d) the care receiver receives care and attention that meet the requirements in subsection (2); and
...
(2) The care and attention:
(a) must address special care needs:
(i) that the care receiver is assessed under the Adult Disability Assessment Tool as having; and
(ii) that relate to the care receiver's bodily functions or to sustaining the care receiver's life; and
(b) must be received by the care receiver on a daily basis, for a total of at least 20 hours a week; and
…
The Guide to Social Security Law at Chapter 3.6.7.45 discusses what is meant by the level of care required to satisfy s 954A(2):
Care & attention must address special care needs
To be eligible under the new rules, carers who do not live with the person being cared for will need to provide care and attention that address special care needs that the care receiver is assessed under the ADAT as having (i.e. assistance with bodily functions and/or to sustain life).
Special care needs include assistance with bodily functions and care to sustain life. Assistance with BODILY FUNCTIONS includes:
•MOBILITY, which may include assisting the person to transfer in and out of bed, moving around the home, negotiating stairs and positioning in their chair or bed,
•PERSONAL HYGIENE, including help with dressing and undressing, bathing and showering, grooming, and assistance with using the toilet,
•EATING AND DRINKING (hydration and nourishment), which may include cutting, mashing or juicing food so the person can eat it, feeding the person food and drinks and supervising the person to ensure that their food or drink is consumed,
•COMMUNICATION, this may include signing or interpreting for the person and assisting the person to use communication equipment, and
•TREATMENT which may include helping the person take medication, changing dressings, applying bandages and operating and monitoring medical equipment.
CARE TO SUSTAIN LIFE includes supervision to prevent wandering, removing the person from dangerous situations and preventing the person from damaging property or injuring themselves or others.
EVIDENCE OF APPLICANT
Mr Adams gave evidence that he had first met Ms Zielinski in 1984. By that time she had already been diagnosed with schizophrenia and was an alcoholic. They kept in contact and, after he lobbied on her behalf, she eventually she came to live in the same housing complex as him in May 2006.
After providing some background, Mr Adams was particularly asked to address his level of care of Ms Zielinski in 2010.
Mr Adams said that Ms Zielinski would spend between 6 and 20 hours a day at his place. He said she would come banging on his window anytime between 1.00am and 6.00am, shouting and swearing. Other people in the accommodation were upset by her behaviour. He would get up, let her in and cook her breakfast. She would not even feed her cats so he would have to feed them as well. When she drank to excess she was unable to hold food down which is why in August he said he would not cook for her anymore after she vomited up the meal he had specially cooked for her all over his furniture, which he then had to clean up.
From about mid-June 2001 he was taking her to the doctor, to the psychiatrist and to various other forms of therapy. One of her treatments involved having fortnightly injections and he would take her to those appointments. He took charge of whether there was medication remaining on the script because Ms Zielinski was unable to do so. He made the appointments because she would not want to go. He had to talk her round and “drag her there”. She was very headstrong. Sometimes she would run away while waiting for her appointment and go to the pub. The benefit of the injections generally lasted a fortnight, but towards the end of that time her mental health seriously deteriorated, and he sometimes would “beg” the doctor to let him bring her in early. After about 10 days into the fortnight her behaviour would be really bad, and she would do things like shout at people in the street and at cars. He would have to tell people that “she was a nutter” and they would then tolerate her behaviour. He said that management of her behaviour could take 10 hours a day depending on where she was in her medication cycle.
He ensured that she would take her medication. He had her epilepsy medication in his bathroom and he would put it in front of her to take. He could see a seizure coming on. Up to three times a week he made her take her medication because she either forgot or refused to take it or lied about having taken it. Once, when left to her own devices, she overdosed on her nicotine medication and in 2007 she had taken an overdose of Valium. He estimated that he would spend an hour a day supervising her medication because she would otherwise just come to his place to steal his alcohol and drink that instead. He would question her at length about her medication. She was evasive about how much medication she had taken and when she had taken her medication at all. He estimated that he spent six to seven hours per week ensuring that she took her medication. He said that, despite his efforts, in the last six months of her life she had seven grand mal seizures in the street.
He said she did not “wander aimlessly” but might go off somewhere other than where she said she said she was going. He had to watch her the whole time. He would stop her from wandering around and abusing people. She would say she was going to buy cigarettes but she might later be found passed out in the street. He estimated that he spent 60-70 hours per week “watching” her. Sometimes she would step out in front of traffic.
From about mid-2010 she started going twice a week to visit her parents in order to get money from them. Her father would give her $50 a day. Sometimes she would return within two hours, having collected the money. Sometimes he would have to travel on the bus with her to the interchange to ensure that she got on the right bus. She had “a mental block” about public transport and would think people were looking at her. Sometimes she would insist that he accompanied her. He would take her on excursions. She would go on excursions with a social club for mentally ill people, but he would have to escort her to the van, otherwise she would go off somewhere else.
In 2009 while visiting her parents she found a rate notice with her name on it even though she did not understand herself to own any property. From then on she talked endlessly about her concerns. Mr Adams took her to the Land Titles Office, only to discover there was a huge mortgage on that, and several other properties, about which Ms Zielinski was completely unaware. From that time she went further downhill and increased drinking even more.
Mr Adams said he would escort her to the ATM. She would often drink a bottle of spirits before midday, especially on pension day. She knew which bottle shops opened early. When she was drunk – which was most of the time – she was very loud. She would gravitate towards undesirables when she went to the pub and he would have to pull her away.
He supervised her buying food because if he did not insist that she buy food she would not buy any at all. She ate nearly all her meals at his place anyway and, as far as he knew, she never cooked at all. While she was able to feed herself he had to continually remind her to eat. Her parents would sometimes give her food but as soon as she arrived home she would throw it away; she was only interested in drinking.
When the stimulus package was paid she spent nearly all her $1,400 on alcohol, cigarettes and clothes. He persuaded her to buy a sandwich maker and a microwave oven in case he was not available to cook meals for her. He understood her to have used the sandwich maker twice. He did not think she ever used the microwave oven because, although he had shown her how to use it, she said she could not be bothered. If he did not cook for her she did not eat.
He said that she did not manage her finances. Her rent came out of her Centrelink payments automatically and the utilities were also automatically deducted. She just squandered the balance. She also spent about $7,500 of his money. She smoked continually and burnt holes in his furniture and carpet.
He said that she was capable of showering herself but chose not to. He would have to badger her to shower when she had not done so for several days. He would constantly argue for hours with her just to shower or brush her teeth.
She would bring her washing to him and dump it in with his washing. While she may have been capable of hanging it up, she did not do so and insisted he did it.
Because he was her nominee for Centrelink purposes he received all her correspondence from Centrelink. He only ceased being her nominee in December 2010 after the orders of the Guardianship Tribunal. He estimated that he would spend an hour a day, seven days a week managing her phone calls and her mail because she was so argumentative.
Mr Adams was asked about his failure to participate in the Guardianship Tribunal hearing (which was to appoint a financial manager) when he was owed so much money by Ms Zielinski, and considered himself to be her carer. He said he was told that the Tribunal would send a taxi for him but they did not do so. As to why he did not make his own way there, he said that he could not get from Padstow to Balmain by public transport and could not afford a taxi.
He said that after the Guardianship Tribunal orders the only thing that changed was that he did not take her on excursions. He was still taking her to the doctors for example, especially when she “went crazy”.
In cross-examination he was invited to comment on his letter to the Guardianship Tribunal wherein he had written that she was “… not that dysfunctional”. He said that if she was sober and medicated and willing to do things then she had the capability of going shopping, cooking and doing her laundry. However, she was never sober nor was she compliant with her medication regime and this resulted in endless arguments.
He was referred to the notations he had made upon a carer allowance questionnaire in which he had noted in relation to:
Safety and behaviour refers to supervising the person you care for to ensure their safety, the safety of others, and/or to prevent inappropriate behaviour.
Include:
•not letting them wander
•removing them from dangerous situations
•preventing them from damaging property
•preventing them from injuring themselves or others
•monitoring behaviour to ensure their safety
•supervising and preventing aggressive behaviour
•preventing inappropriate behaviour
•reassuring and calming them if they are distressed.
that he that had undertaken all of these activities every day. He said he was her “nanny”.
As to her telling Centrelink that he was not her carer, he said she was under the influence of her mother, who he believed also had a psychiatric condition in that she described Mr Adams as being a “war criminal”. He said the attendance at Centrelink on 5 November 2010 was at the instigation of Ms Zielinski’s sister and brother-in-law, who he regarded as “swindlers”, and who he believes have engaged in criminal activity by defrauding Ms Zielinski. He has complained about them to the police and to his local member.
OTHER EVIDENCE
Mr Adams called several witnesses. Some were not available or declined to give evidence. Those who gave evidence were neighbours of Mr Adams and Ms Zielinski.
Ms Edwards gave evidence that she had lived above Ms Zielinski for four to five years. She knew Mr Adams to have been Ms Zielinski’s carer. He would give her medicine and take her to the doctor. She would see them siting together. She did not know the extent to which he helped her.
Mr Forscutt only spoke with his neighbour, Ms Zielinski, in passing. He would see her in Mr Adams’ unit smoking and intoxicated. He would see her in the yard intoxicated. He would see her talking with Mr Adams and asking him for alcohol or helping herself to alcohol from his fridge. He did not see Mr Adams helping her. He thought she was using Mr Adams to get money to buy cigarettes and alcohol. He said she would get up at about 2:30am and bang on the window and call out using bad language until Mr Adams opened the door.
A statutory declaration was provided by Ms Krawczynski that she witnessed Mr Adams providing care to Ms Zielinski for over 20 hours per week. This included being her “virtual nanny, counsellor all hours”. The Respondent did not object to the tendering of the statutory declaration on the basis that the declarant was available for cross-examination. The Tribunal tried on numerous occasions to contact her but was unable to do so. As a consequence I have placed little weight upon her evidence.
CONSIDERATION
The Respondent submitted that the independent evidence of care needed by Ms Zielinski at the time of cancellation did not attract the requirements of s 954A(2).
The Respondent relied on the letter by Ms Linda Ford, Service Manager from the Bankstown Mental Health Service dated 18 January 2010, as independent evidence of Ms Zielenski’s care needs. The letter referred to Ms Zielinksi's problematic drinking of alcohol and the extent to which she disturbed Mr Adams. Ms Zielinski was reluctant to be admitted for “detox”. Ms Zielinski was advised to reduce her drinking to a level that would allow her to participate in a case management program. Ms Ford added that the “file also notes” that “Mr Adams was advised against providing you with unrestricted time and money”.
The assessment, however, appears to have come about after a referral to the Area Health Service from Dr Nugara, one of Ms Zielinski’s GPs. Ms Ford spoke with both Ms Zielinski and Mr Adams. Mr Adams was reported as being very concerned about Ms Zielinski and was finding her behaviour difficult to manage. He expressed his distress about her drinking, smoking, asking him for money, being at his unit for such long periods during the day and waking him up at night by shouting and knocking on his doors and windows. The problems were noted to be long-standing without significant recent change. Mr Adams was requesting case management. Ms Ford noted that Ms Zielinski did not want admission to detox or rehabilitation from alcohol. It was also noted that she had not previously been compliant in attending sessions with psychologists, nor completing homework tasks, using strategies or engaging with support groups. She was recorded as having no significant time without drinking.
This objective evidence paints a picture of Ms Zielinski being a very disturbed and needy woman.
The Authorised Review Officer (ARO) had noted a conversation with Dr Mary Yue, another of Ms Zielinski's GPs, on 21 February 2011, which was about a year after Ms Ford’s assessment and a few months before Ms Zielinski’s death. Dr Yue was reported as saying that Mr Adams was still escorting Ms Zielinski to consultations twice a week. Although Ms Zielinski was reported to have told the doctor she did not want Mr Adams caring for her, the doctor, in that context, observed that Ms Zielinski was not mentally stable. I do not find the report of Ms Zielinski’s statement about Mr Adams to be helpful, especially given the doctor’s observations as to Ms Zielinski’s mental health.
There is no doubt that Ms Zielinski’s various serious conditions had not in any way improved between the two assessments. Indeed, she passed away shortly after the second.
Mr Adams was recorded telling the ARO that Ms Zielinski “bangs her fist on his door” in the morning and gains admittance. This was consistent with his evidence and that of a neighbour.
It was reported that he told the ARO he did not clean or cook for Ms Zielinski. His evidence was that after she had vomited on his furniture he would not make her specially prepared meals. He did, however, continue to supervise her meals and did provide her with meals.
He was reported to have said that he was claiming under “category 19?” which, it appears, refers to the matters listed at question 19 on the Carer Allowance Questionnaire. The matters listed there relate to how many hours the carer spends each week helping the person cared for in relation to their “safety and behaviour”. Mr Adams was reported by the ARO as saying he spent 60 to 70 hours per week caring for Ms Zielinski in this category. Mr Adams also reported spending time assisting Ms Zielinski with her correspondence, as well as taking her to doctor's appointments and assisting her with her medication.
The Respondent submitted that the information from the Guardianship Tribunal proceedings is relevant to the issue of Mr Adams' eligibility for carer allowance, and that his evidence to the Guardianship Tribunal casts doubt over the level of appropriate care he was providing to Ms Zielinski at that time.
A letter sent by Mr Adams to the Guardianship Tribunal stated in part that:
She shops, cooks, does her laundry cleans, pays her bills her rent etc.
I do have to prompt her on a regular basis, like all addicts she would prefer to spend Money on her addictions.
This, in my view, was consistent with his evidence. While Ms Zielinski had the physical capability to do those things, she chose not to. From the evidence, I accept that she was headstrong and argumentative, but she was also, on the evidence of both Mr Adams and Ms Ford, clearly extremely self-destructive. She was non-compliant with her medication and drank vast quantities of alcohol. She was abusive and engaged in dangerous behaviour, such as stepping out in front of cars, arguing with strangers and gravitating towards undesirables.
Mr Adams disputed the statement by the Guardianship Tribunal that he had relinquished care of Ms Zielinski. Mr Adams also told the SSAT he disputed a statement attributed to him by the ARO that he did not wish to care for Ms Zielinski anymore.
The Respondent’s submissions focused on Ms Zielinski’s physical capabilities. To a large extent the legislation does not deal adequately with psychiatric illness. A person extremely unwell from a psychiatric viewpoint may have no physical limitations whatsoever. The only relevant aspect of s 945A(2) refers to sustaining the care receiver's life.
The Respondent acknowledged that Ms Zielinski may have spent considerable time in the company of Mr Adams. It was submitted, and I agree, that this time can only be counted towards the necessary minimum of 20 hours of care per week required to satisfy the care and attention aspect if it satisfies the requirements of s 954A(2). Any time merely keeping Ms Zielinski company cannot be included in this assessment, as this does not relate to care needs in connection with “bodily functions or to sustaining the care receiver's life”. The Respondent submitted that most of the time Mr Adams spent with Ms Zielinski should more accurately be described as “companionship” rather than “care”. While I considered Mr Adams to be a fairly poor historian as to the number of hours he spent in the various claimed activities, I do not doubt, having regard to the poor state of Ms Zielinski’s mental health, that he was engaged in managing her – to sustain her life – for more than the requisite 20 hours per week.
I have no hesitation in finding that Mr Adams’ actions in taking Ms Zielinski to appointments with doctors and psychologists; his perpetual hounding of her to eat, wash, take her medication and brush her teeth; his monitoring of her, removing her from dangerous situations, supervising and preventing her aggressive and inappropriate behaviour; and preventing her from wandering was necessary to sustain her life.
In coming to this view I note the Explanatory Memorandum referred to by the SSAT:
In interpreting s 954A(2) the Tribunal had regard to the Explanatory Memorandum to the Family and Community Services and Veterans’ Affairs Legislation Amendment (2004 Budget Measures) Bill 2004 that brought in the change that the carer and disabled adult were no longer required to share the same home. The Explanatory Memorandum stated:
“The types of “care and attention” that are intended to satisfy the new subsection 954A(2), which are also special care needs addressed in the ADAT, may include the carer personally providing assistance to the care receiver with the basic activities of daily living, such as feeding, dressing, showering, hygiene, including grooming and toileting, mobility, communication, or administering medication and/or treatment etc. These activities are special care needs required by the care receiver that relate to the care receiver’s bodily functions or to sustaining their life. “Care and attention” may also include supervising or prompting the care receiver with any of these activities in person [emphasis added]. In addition, “care and attention” may also include preventing and/or protecting the care receiver from undertaking harmful, damaging, aggressive or other inappropriate behaviour.”
CONCLUSION
For the reasons given above I reject the Respondent’s submission and find that there is sufficient evidence for the Tribunal to be satisfied that as at 5 November 2010 Mr Adams was providing the necessary care to Ms Zielinski of at least 20 hours per week.
DECISION
The decision under review is set aside and the Tribunal finds that there is sufficient evidence to be satisfied that as at 5 November 2010 Mr Adams was providing the necessary care to Ms Zielinski of at least 20 hours per week, as specified in section 954A(2) of the Act.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
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Associate
Dated 3 August 2012
Date(s) of hearing 26 July 2012 Applicant In person Solicitors for the Respondent Bernard Slattery, Centrelink Program Litigation & Review Branch
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