MICHAEL FERGUSON and COMCARE
[2013] AATA 310
[2013] AATA 310
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5874
Re
MICHAEL FERGUSON
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 16 May 2013 Place Brisbane The Tribunal affirms the decision under review.
............................[SGD].......................................
Ms Lee Cross, District Registrar
CATCHWORDS
COMPENSATION – Accepted liability for injury – Claim for cost of toilet cistern maintenance – Definition of household services – Maintenance not regular or frequent – Not a household service under the Act – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 29
CASES
Ryan and Telstra Corporation Limited [1995] AATA 170
Todd and Department of Defence [1993] AATA 295
SECONDARY MATERIALS
Claims Procedures Manual (Comcare)
REASONS FOR DECISION
Dr M Denovan, Member
Mr Ferguson (the applicant) made a claim for his toilet cistern repair. The respondent (Comcare) rejected his claim on 5 November 2012 and affirmed that decision on 13 December 2012. Mr Ferguson applied to this Tribunal for review of that decision on 20 December 2012.
Both parties have consented to this matter being determined without a hearing pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
BACKGROUND
Mr Ferguson suffered a stroke on his way home from work in 1993. Liability was accepted in 2007 under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for his condition.
On 11 October 2012, Mr Ferguson made a claim for repairs to his domestic toilet cistern.
LEGISLATION
Under s 29 of the Act, Comcare is liable to pay compensation for household services reasonably required by an employee as a result of injury. Section 29 relevantly provides:
(1) Subject to subsection (5), where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
Note: In relation to paragraph (2)(d), see also subsection 4(2).
Accordingly, the respondent must be satisfied that the household service of repairs of a toilet cistern, as requested, are reasonably required by the employee.
Section 4(1) of the Act defines household services in relation to an employee as:
services of a domestic nature (including cooking, household cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee’s household.
CONSIDERATION
It is not disputed that Mr Ferguson was required to call a qualified plumber to repair his cistern and that he is incapable of undertaking the repairs himself. The respondent also accepts his claims that he was capable and did undertake similar repairs himself prior to his compensable injury and that other members of the Mr Ferguson’s household have not undertaken any similar repairs since the date of his compensable injury.
The issue is whether repairs to the toilet are of such a character as to warrant the description of “household services” mentioned in s 4(1) of the Act.
In Ryan and Telstra Corporation Limited [1995] AATA 170, the Tribunal held that grass cutting is a “gardening service” and thus constituted a household service.
In Todd and Department of Defence [1993] AATA 295 (Todd), the Tribunal held that while cleaning of a swimming pool constituted a household service, painting and decorating of the applicant’s house did not fall within the definition of “household services” as that definition did not include home improvements.
In his written submission Mr Ferguson referred to Senior Member Hotop’s words at [13] in Todd:
In the Tribunal’s opinion house painting/decorating does not fall within the definition of “household services” in s.4(1) of the Act. That definition includes ordinary domestic services, such as cooking, house cleaning, laundry and gardening services (which are expressly included) and analogous services, that are required on a regular or relatively frequent basis for the proper running and maintenance” of the relevant household. It does not include services in the nature of home improvements, such as painting/decorating.
Mr Ferguson claims that servicing of his toilet cistern was necessary to halt the wastage of water. Mr Ferguson submitted that servicing a toilet cistern is a maintenance activity of a domestic nature that is analogous to house cleaning, laundry and gardening services.
The Respondent submits that repair to a toilet cistern is not an activity that would require attention on a regular basis in the normal domestic situation.
In distinguishing between activities such as painting and decorating, cleaning the pool and gardening, the fact that the later activities were related to the proper running and maintenance of the household was only one aspect of Senior Member Hotop’s reasons in distinguishing between which activities fall within the definition of household services in s 4(1) of the Act. Of equal importance was the fact that activities that do fall within the definition have a recurrent characteristic and occur on a frequent basis. Cooking, house cleaning, gardening and pool cleaning are activities that all must be done on a regular basis for the necessary functioning and maintenance of a household. It is those types of activities that fall within the definition of household services in s 4(1) of the Act.
Just because activities can be said to be related to the maintenance of the household is not enough to qualify. In fact, a chapter titled “Determining liability for household services” in Comcare’s Claims Procedures Manual (the Manual), makes it clear that certain household maintenance is excluded. Maintenance for plumbing is specifically excluded. I would consider a toilet cistern to be appropriately described as plumbing and therefore specifically excluded. Whilst the Manual is not binding on Tribunals, for the sake of consistency it is appropriate that Tribunals follow the Manual (or Guide) unless there are cogent reasons for departing from it.[1] I see no reasons for not following the Manual in this case.
[1] See Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645 per Brennan J (President).
Even if not excluded in the Manual, there is no evidence to suggest that Mr Ferguson’s cistern has been repaired at any other time since the date of his injury in 1993. Therefore, the repair of Mr Ferguson’s toilet cistern is not a recurrent or ongoing household maintenance issue and is outside the ambit of ss 4 and 29 of the Act.
DECISION
For these reasons, I affirm the decision under review.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ............................[SGD].......................................
Associate
Dated 16 May 2013
Heard on the Papers 3 April 2013
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