Mohamud and Secretary, Department of Social Services (Social services second review)

[2016] AATA 663

Mohamud and Secretary, Department of Social Services (Social services second review) [2016] AATA 663 (31 August 2016)

Division	GENERAL DIVISION
File Number	2015/5820
Re	Diriye Mohamud
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mrs J C Kelly, Senior Member
Date	31 August 2016
Place	Sydney

The Tribunal affirms the decision under review.

........................[sgd]................................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – Carer payment – Cancellation – Meaning of “constant care” – Whether applicant provides “constant care” for his mother– Applicant did not provide “constant care” at the time of the cancellation – undisclosed financial circumstance – Decision affirmed

LEGISLATION

Social Security Act 1991 s 198

CASES

Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

SECONDARY MATERIALS

The Guide to Social Security Law

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

31 August 2016

The decision under review and the Tribunal’s conclusion

1. Mr Diriye Mohamud seeks the review of the decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) (the AAT first review) dated 16 September 2015.  That decision affirmed the decision made by the Authorised Review Officer dated 28 April 2015 to reject the applicant’s claim for a carer payment. The hearing at the AAT first review was held on 16 September 2015.  The applicant had applied for carer payment on 30 December 2014.

2. For the reasons that follow, the Tribunal affirms the decision under review.

   The issue in this case

3. The issue in this case is whether the applicant provides constant care on a daily basis to his mother (the care receiver).

4. Relevant to that issue is determining the relevant date for eligibility for a Carer Payment. At the hearing, the respondent was unsure whether eligibility is to be determined only at the date of application or within 13 weeks following that date. The Tribunal accepts the respondent’s post-hearing written submission that eligibility for a Carer Payment is to be determined at the date on which the applicant lodged the claim, that is, 30 December 2014, or within 13 weeks following that date, that is, 31 March 2015. The detailed analysis of the legislation in that submission is compelling and unnecessary to repeat here.  The provision operates more generously in favour of the applicant rather than limiting the eligibility date to the date of application.

   The statutory context

5. Section 198 of the Social Security Act 1991 (the Act) sets out the qualification requirements for Carer Payment. 

6. Relevantly, subsection 198(2) provides that a person must personally provide constant care for a disabled adult (the care receiver) who has been assessed and rated at a particular score under the Adult Disability Assessment Tool.  The respondent concedes that the care receiver has satisfied the score requirement.

7. The care must be provided in a private residence that is the home of the care receiver: subsection 198(3) of the Act.

8. The Act does not define the term “constant care”.  The Guide to Social Security Law (the Guide) at paragraph 1.1.C.310 states that the policy intent of Carer Payment is to recognise that the carer is “not able to undertake substantial employment because of their caring responsibilities”. The Guide recognises that there may be situations where the carer or care receiver is absent from the care situation for part of the day. In such a case, the intensity of the care required and provided during the remainder of any 24 hour period is such that is equates to a normal working day.

9. The Tribunal accepts that that policy promotes consistency and fairness in decision-making and ought to be applied unless there are cogent reasons for departing from it:  Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.

10. In Milne and Secretary Department of Families Housing Community Services and Indigenous Affairs [2008] AATA 689 (7 August 2008), Senior Member McCabe explained the term “constant care” at paragraph [7]:

    …These words should be given their ordinary English meaning.  “Care” may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost).  A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household.  The requirement that the “care” be “constant” means that the person must be acting as a carer on a more-or-less full-time basis.  That is consistent with the apparent intention which underlies the legislative scheme creating the carer’s payment:  the benefit 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.

    The evidence before the Tribunal

11. The applicant and one of his daughter’s, Fardowsa Ali, gave oral evidence before the Tribunal. A Somali interpreter assisted the Tribunal.

12. The section 37 documents and supplementary section 37 documents were before the Tribunal. Additional taxi operational information relating to the applicant was before the Tribunal. 

13. The respondent provided an outline of submissions after the hearing in accordance with directions the Tribunal made. The submission addressed the relevant date for determining eligibility for a Carer Payment and provided the address of the applicant’s mother.  Centrelink records that were said to be relevant in relation to the latter matter were annexed. 

14. The applicant advised the Tribunal on 20 May 2016 that he would not be providing any response to that submission. On 15 August 2016, the applicant sent an email to the Tribunal in which he stated that the care receiver had left Australia on 12 August 2016 and since May, her grandson had been looking after her when the applicant had appointment to attend with his wife and when he needed to work.

    Background

15. The following factual findings are not in dispute.

16. The applicant and his partner have eight children.  Five of them were under 18 years of age as of the date of the hearing. The youngest was born in January 2007.  All but one live with their parents. A married son was studying in Saudi Arabia on a scholarship granted by that country. He returns annually to Australia for three months when the university is closed. His wife and three children live in the same suburb as the applicant and his family.  She was pregnant at the time the current application was lodged in December 2014.

17. The applicant first applied for a Carer Payment and Carer Allowance on 30 July 2013.  It is clear that he was granted Carer Allowance in respect of the care receiver in July 2013. It is not clear whether he was granted Carer Payment at that time. 

18. The applicant and care receiver left Australia on 25 March 2014.  The applicant returned to Australia on 12 April 2014 and left again on 8 November 2014. Both the applicant and the care receiver returned on 15 December 2014.  The care receiver spent almost nine months in Somalia. 

19. On 18 June 2014 the applicant’s Carer Allowance was cancelled. It was again granted from 17 December 2014.  The applicant stated in the application dated December 2014 that the care receiver was living at an address which he confirmed at the hearing was his daughter-in-law’s address.  The applicant and his family have lived at the one address which is in the same suburb as their daughter-in-law’s address, at all relevant times.

20. The applicant held a taxi plate from 4 April 2005 until 7 April 2015.  The Driver Logons Report shows his shifts from 7 April 2012 to 17 February 2016.  

    Consideration of the evidence and findings

21. The Tribunal found the applicant’s evidence inconsistent, unreliable and exaggerated.   Below are some examples of the inconsistencies, unreliability and exaggerations.

22. In the form the applicant completed when he applied for Carer Payment and Carer Allowance for his mother on 24 July 2013, he provided an address for her that was different from his address and his daughter-in-law’s address, although it was in the same suburb.  When asked about that at the hearing, the applicant said that the care receiver was living with family and friends from the same tribe.  He said that he was the carer going there every day. The applicant claimed in his 2013 application that he was not doing paid work and started to provide care for his mother on 2 June 2013.  He claimed that he provided 40 hours of care per week.

23. When asked about his answer to question 30 which asks how many days per week is care provided, he stated that he was looking after the care receiver seven days a week. The applicant said that he drove a taxi occasionally, only at night time, when the children were home. He also said that he used to drive on some Sundays.  If he had lots of bills to pay he would go to work at night when the children were at home.  His adult children would go over there to care for her when he worked.

24. Taxi records from 1 to 31 July 2013 show that he worked 20 shifts in July 2013.  On some days he worked in the morning and in the afternoon or evening until the next morning. He worked on various days of the week.  His shifts included a part of each day from Sunday 21 July to Wednesday 31 July inclusive.  That is inconsistent with the claims in his 2013 application and his evidence set out above.

25. In the application form submitted on 30 December 2014, which is the application the subject of this proceeding, he provided the address of his daughter-in-law as the address of the care receiver. When asked whether his daughter-in-law cared for the care receiver at that address in 2014, he said that there was a three week trial, at the maximum.  His daughter-in-law was pregnant and had two children aged four and one. She requested that he take the care receiver there because his premises were very crowded at the time the care receiver returned from Somalia on 15 December 2014.  He took her there to sleep and in the morning took her back to his home.  His daughter-in-law found it difficult to watch and look after the care receiver and he decided to bring her back to his home.  He emphasised that it was only for three weeks and only at night.

26. When asked about the record of his conversation with a Centrelink officer on 10 April 2015 which records that he said that the care receiver was living at his daughter-in-law’s address, the applicant stated at the hearing that this is about the day the care receiver changed her address. He was recorded as saying during that conversation that he picked up the care receiver Monday to Friday and she stays at his home while he looks after the children. At the hearing, the applicant said that there was a trial for a maximum of two or three weeks because the care receiver had complained that she could not sleep in his house. He also said that his daughter-in-law’s third child was born in about May 2015.  The applicant said at the hearing that on Sundays when he worked, his daughter looked after the care receiver and his daughter-in-law looked after her on Saturdays.  His said that his brother also helped.  Other evidence shows that his brother is a nurse who works in a public hospital.

27. The applicant said that apart from those three or so weeks, the care receiver was permanently living at his address.  He also said that in February he changed her address to his address.  He said that she has lived at his home since the end of January or February 2015.

28. In a record of a conversation with a Centrelink officer on 20 March 2015, the applicant said that the care receiver lives with his daughter-in-law and her two children. His daughter-in-law cannot care for the care receiver because she is caring for her two children. The applicant gave evidence that he arrives at the care receiver’s house approximately 6:00 am, wakes up the care receiver at 7:00 am, prepares her breakfast, takes her to the bathroom, cleans her bedroom, washes her clothes, gives her medication, takes her back to his place and then takes her for a  walk to a  park.  He gives the care receiver lunch, and assists with showering.  She rests for a couple of hours.  He provides her afternoon tea and takes her for a walk to the park.  He prepares her dinner and medication and takes her to the bathroom before sleeping and then takes her back home approximately 9:00 pm.  He lives around the corner from the care receiver’s home and if she needs to go to the toilet he is alert and wakes up to assist her.

29. The respondent’s post-hearing submission attached various Centrelink records and submitted that there is no evidence to suggest that the applicant has provided to Centrelink an address for the care-receiver that is different from that contained in the Income and Assets form received by the Department on 30 December 2014, since that date. That was the address of his daughter-in-law. That is, the applicant has never advised Centrelink that the care receiver lived at his address.  I accept that is correct.  The applicant’s evidence as set out above was contradictory and inconsistent. I do not accept that the care receiver lived at the applicant’s address as he claimed. I find that the care receiver was living at the address of the applicant’s daughter-in-law from her return to Australia on 15 December 2014 until at least 10 April 2015.  In making that finding, I have taken into account the oral evidence of the applicant’s daughter who made the following different statements:  the care receiver has been living at their address for almost two years, she could not remember when the care receiver moved in, and that she moved from her sister-in-law’s address at the end of 2014.  I prefer the contemporaneous written records to the evidence of the applicant or his daughter.

30. In the 2013 application, the applicant provided the following information about the care receiver’s day to day care needs:

    ·She moves around the house “with the help of one person”;

    ·She “sometimes” falls over indoors or outdoors (or from a wheelchair);

    ·She moves to and from bed, chair, wheelchair and walking aids “with some help”;

    ·She “sometimes” has difficulty hearings others;

    ·She “always” has difficulty seeing clearly;

    ·She “always” needs help or attention during the night;

    ·She “always” has loss of bladder and/or bowel control;

    ·She uses continence aids or equipment “with some help”;

    ·She uses the toilet “with some help”;

    ·She eats her food “without help”;

    ·She showers or bathes “with some help”;

    ·She dresses herself “with some help”;

    ·She “cannot” look after her grooming (e.g. caring for hair, teeth);

    ·She can take care of her own treatment “without help”.

31. At the hearing, the applicant said that in July 2013 he used to wash the applicant’s clothes which had urine on them, changed her sheets because she passed urine in bed, took her to the bathroom in a wheelchair, gave her a bath, helped her to dress, used to help her eat because sometimes she would choke, he would feed her slowly. He would take her to appointments, to visit relatives and to the park in the evening for fresh air.

32. The applicant said at the hearing that she needed “ten times” the care currently.  Her health had deteriorated and she cannot walk any more.  She has used a wheelchair for almost one and a half years.  His adult children are at home to help him before 9:00 am and then after 3:30 or 4:00 pm. At the time of the hearing, he was taking her to medical appoints, to the park, does her washing and cooks what she wants.  At 5:00 am he prepared her breakfast.  He also prepares her lunch and dinner.  He cooks her soft food which is in small and manageable pieces.  She has problems with her throat.  He has to be with her in case she needs help.

33. When asked if his wife helped to look after the care receiver, the applicant said that she used to help, a long time ago, in 2013 or 2014.  She is on dialysis 24 hours a day.  He also said that in the last five or six weeks she has a special machine that she uses every five or six hours.  In the past, she was free during the day.  She plugged in to a machine at 10:00 pm until 6:00 or 7:00 am, for nine hours, but infection caused her to cease using that machine.  When asked if his wife had been free during the day to help prior to five or six weeks before, the applicant said that the care receiver weighed 80 to 90 kilograms and his wife had been advised not to lift more than 10 kilograms.  It was enough that she helped herself and the children. She did not help the care receiver.  She cooked for herself and the children.  The care-receiver’s food was prepared separately.

34. The applicant said in 2013 his wife was self-employed and caring full-time for children in their home.  He said that his wife had stopped working a year ago or more, that is, in May 2015.  When a health summary for her from a Dr Thakkar printed out on 24 March 2016 was put to the applicant, the applicant said that she was working full-time until that date.  In the list of current active problems, the print out states “2015 peritoneal dialysis”.  It also states that she has “Stage 4 renal failure on peritoneal dialysis (from 3 pm till [sic] morning daily)”. 

35. The statement of the applicant’s daughter dated 22 March 2016 says that her mother cannot assist the care-receiver because her mother has to use the dialysis machine several times a day.  At the hearing, she said that her mother worked until January 2016.

36. An undated letter from the then other director of the family day care business received by Centrelink on 20 November 2015 states that the applicant’s partner was working as an educator from 25 November 2013 to 30 August 2014 and from 10 August 2015 “current”.  It sets out the duties she performs in detail.  The listed activities are not consistent with being unable to assist the applicant to care for his mother because of illness.  

37. Based on the evidence of the applicant’s daughter and the former director of the family day care business, I find that the applicant’s wife was working as an educator for the business during the periods listed in the director’s letter. Her dialysis treatment changed around the end of 2015. I find the applicant’s evidence about his wife’s illness and capacity inconsistent and exaggerated. 

38. In his 2014 application, the applicant claimed that he was not currently undertaking any paid work and started to provide this care on 17 December 2014.  He answered “no” to the question of whether he and/or his partner have money on loan to another person or organisation.

39. By letter dated 20 January 2015 Centrelink wrote to the applicant requesting that he complete the enclosed income and asset form, requesting that the enclosed medical report be completed by a health professional, and that he provide bank statements for all accounts held by him and his partner for the past three months. Centrelink also asked whether he was still working as a taxi driver and how he was able to support himself and his family on an income of $4,138 and enquired whether he had another job. The letter also requested that he provide a “7 day schedule” of care provided to his mother from the time he commenced to the time he ceases the care.

40. In his hand written statement received by Centrelink on 27 January 2015, the applicant said that he was “working as a taxi driver only sometimes [on] Sunday” for a couple of hours during which time his daughter looks after the care receiver. He also stated that he does not have anyone to support his family except his daughter who sometimes helped support the family financially.

1. The Driver Longons Report shows that the applicant worked shifts on 1, 7, 8, 9, 14, 15, 21, 22, 23, 24, 25 26, 27, 28, 29, 30 and 31 March 2015.  The pattern of work is not consistent with his claim to drive only sometimes on Sunday for a couple of hours. The records show he last drove on 28 December 2015. His carer payment had been rejected by letter dated 20 March 2015 (T23 page 249).

2. The applicant provided a seven-day schedule of the care he provided for the care receiver. Each day’s schedule was the same.  The applicant wrote: “Throughout the night, I am alert & hence need to wake up to assist her to the toilet/bathroom etc”. 

3. I do not accept that the care receiver lived at the applicant’s address at the time the schedule was written in January 2015, for the reasons set out earlier in this decision.  Assuming that the applicant did take the care receiver to his address during the day as he claimed, I do not accept that he was alert through the night as he claimed because the care receiver slept at the address of her daughter-in-law and not at his address.   He did not claim that he slept there. I do not accept that he was able to attend to his mother’s toilet needs at night because he lived around the corner and was alert and wakes up and assists her.  That is not plausible.  I do not accept that the information in the schedule is reliable.

4. That finding is reinforced by the note on the schedule that the care receiver requires his presence “as she needs to go to the toilet/bathroom on average every 20 minutes due to the medication she takes.  She requires my assistance whenever she needs to go to the toilet/bathroom.  Hence, it is a 24 hour care that I provide her”.  On its face, the statement the care receiver needs to go to the toilet/bathroom on average every 20 minutes is an exaggeration.  She would not be able to leave her home if that were the case.  She would certainly not be able to go for the walk to the park each morning and afternoon as set out in the schedule.  The applicant said that the park is about 200 metres from his home.  He said that it takes 30 to 40 minutes to walk to and from the park and they spend 30 minutes at the park.  When asked about the care receiver’s incontinence, the applicant said that there is a toilet. 

5. Further, I would expect such an unusual toilet habit would have been reported to her doctor and recorded by him, which it was not.

6. The evidence of the applicant and his daughter about the preparation of this schedule was inconsistent.  He said that he explained what he did in Somali to his daughter and she wrote it.  She said that the applicant wrote it himself and she assisted in relation to spelling errors.

7. A medical report was filled out by a general practitioner on 21 January 2015. The doctor listed the care receivers disability and/or medical conditions as severe osteoarthritis, atrial fibrillation and hypertension.  He ticked the following day to day needs for the care receiver:

   ·Occasional bowel accident (once a week);

   ·Occasional bladder accident (once a week);

   ·Needs help with personal care:  face, hair, teeth;

   ·Needs some help with toilet use but can do some things alone;

   ·Needs help (feeding) in cutting, spreading butter etc;

   ·Needs minor help (verbal or physical) to transfer from bed to chair and back;

   ·Walks with help of one person (verbal or physical);

   ·Needs help dressing but can do about half unaided;

   ·Needs help to use stairs (verbal, physical, carrying aid);

   ·Bathing – she is dependent.

8. When asked about the doctor’s report of the care receiver’s bladder and urine incontinence being inconsistent with the applicant’s claims going back to 2013, the applicant said that he was not happy with what that doctor said.  He stated the doctor had told him that it was enough and she needs care and if he liked, the applicant could give him other forms.  The applicant claimed that he transferred to another doctor who wrote to that doctor. I find that he was referring to the report from the cardiologist to the general practitioner dated 22 October 2015 which said that the applicant was looking after the care receiver 24 hours a day.  The general practitioner provided a further medical report dated 16 March 2016.  It mentions urinary incontinence but says she is bowel continent.   Those two medical reports have been prepared seven months and almost a year after the eligibility period with which I am concerned respectively.

9. The financial circumstances of the applicant’s family are unclear, despite the extensive information before me.  It emerged in the course of Centrelink’s inquiries in February 2015 after the application was made, that the applicant is a director of a family day care business (T21).  The company was incorporated on 25 June 2013. Tax records for the year ending 2014 record the following:  Taxable income was $1,307.55.  The company tax return, of which the applicant is a director, shows the sale of goods and services totalled $660,501. A profit and loss statement shows that figure is comprised of $565,725 child care benefit and operations income of $94,776.  The total deductions were $653,251, including total salary and wage expenses were $57,443.  Educators’ fees were $512,672. 

10. The 2015 tax return is not before the Tribunal.  The applicant said that the gross income for that financial year was $2.4 million and the profit was $7,000.  He also explained that the business is a service provider.  Self-employed people register with it to look after children.  The business is paid by the government. 

11. An ASIC documents shows that there were 100 ordinary shares issued.  The applicant beneficially held 50 fully paid ordinary shares.

12. It emerged at the hearing that the daughter who gave evidence was running the day care business earning $1,700 a fortnight after tax. That is $44,200 after tax per year. The applicant described her position as general manager.  She said that she also studies at university two days a week, in the late afternoon or evening. 

13. The applicant told the Tribunal that since 29 January 2016 one of his sons had taken over from the other director.  The applicant denied being paid director’s fees.  He said his son was paid director’s fee.  He also said that his son was the financial manager of the business and received an income of $30,000 per year. In his statement dated 22 March 2016, the applicant’s son said that he is currently completing postgraduate studies and works.    

14. In his 2015 individual tax return, the applicant’s main business or professional activity was described as taxi driver.  His total income was $5,400, his expenses $4,660, and his net income $740.   No tax was payable.

15. The applicant’s wife’s 2015 individual tax return showed her gross income from her business activity of child minding (babysitting in the home) was $16,632 and her expenses were $7,867.  Her total business income was $8,765.  Her income from Australian Government allowances and payments was $10,255.  She received gross interest of $351.  Her total income was $19,371.  The last page of the tax return was not before the Tribunal. I find that the business income received by the applicant’s wife during the life of the business was paid by the business of which her husband was a director.

16. An estimate of household expenses summary for 2014/2015 was provided by the applicant to the AAT.  It showed a total household expenditure of $154,339.54. It was itemised as including school fees of $15,400, higher education costs of $7,000, and child care of $6,125.54.  Food shopping was $32,000. Health was $11,500, and holidays $11,000.

17. A Household Income Summary (Estimate) for the same year provided by the applicant showed his income as $45,000, his wife’s income of $19,371, His daughter’s income of $44,200, the son’s income of $30,000 and the care receiver’s income of $4,710, totalling $143,281.  No tax returns were provided for either of the children or the care receiver.

18. When asked about his $45,000 income for the year ending 2015 listed in Household Income Summary (Estimate), the applicant said he received $38,000 from the business.  He put money into the company and was paid back from the profit.  He and his partner put in $50,000.  He also said that some was his money and some was a loan. He said that the company has repaid all the loans.  He also said that he was owed less than $5,000. 

19. The applicant had not disclosed any loans in either his 2013 or 2014 Carer Payment application.  When asked about that, he said that it was not a loan at the time. It was a loan when the company was set up in November 2013.

20. The applicant’s explanation about his income was unpersuasive.  His net income set out in his 2015 tax return was $740.  Therefore, more than $44,000 needed to be accounted for.

21. Further, there are significant amounts deposited at various times into the applicant’s bank account which do not have a clearly identified source, in addition to amounts identified as being from the taxi company, his daughters and the business.  Some examples are a cash/cheques deposit of $2,889 on 2 May 2014, a bank transfer of $6,000 on 23 March 2014, $4,600 deposit on 17 March 2014, $4,000 cash deposit on 11 February 2014, a transfer of $2,000 on 5 February 2014, a transfer of $10,000 on 21 May 2014, another transfer of $2,000 on 11 May 2014, a deposit of $3,300 on 3 June 2014, a deposit of $3,400 on 10 October 2014, a deposit of $4,000 on 5 August 2014, and  a deposit of $4,600 on 8 July 2014, $2,641 on 13 May 2015, and $1,600 on 19 October 2015.  That is approximately a total of $50,000.

22. Deposits into the applicant’s bank account from the business include “advance repayments” of $5,000 on 20 May 2014, $4,900 on 2 June 2014, $2,000 on 30 June 2014, and “debt repayments” of $10,000 on 27 November 2014, $2,000 on 13 October 2014, $10,000 on 24 September 2014, $1,500 on 28 July 2014, $2,000 on 17 July 2014, and $10,000 on 12 January 2015.  That is a total of $47,400.  

23. A further transaction which may relate to the business is a debt repayment of $5,000 on 4 February 2015 from the then other director.  There is also a direct credit deposit of $5,000 from another individual on 13 July 2015.

24. On 11 February 2015 Centrelink contacted the applicant to discuss the amounts of $10,000 from the business appearing in his Commonwealth Bank statements.  He said he was just a shareholder of the company.

25. The applicant provided information about the private company as requested by Centrelink. The form was dated 21 February 2015. He claimed that his role in the company was only as a director. 

26. The transactions appearing on the applicant’s bank statements include significant amounts of money, the origin of which is unclear.  The applicant did say at the hearing that every quarter he and the other director get together for a whole day on a Saturday, plus he communicates with the director who handles the day-to-day management and who communicates with the government.  On the evidence, that person is now one of the applicant’s sons who lives with the applicant. The applicant said that he talks on the telephone with him every second day.

27. Given the rapid expansion of the businesses activities described by the applicant, I am not satisfied that the applicant does not have a more hands-on role.  Further, given the other deposits into his account, I am not satisfied that I know what other activities he is involved in which may generate income.  What can be concluded from the financial records before the Tribunal is that applicant has not been open and honest about his financial affairs.

28. I am also not satisfied that his adult daughters are as committed to other activities as are claimed such that they cannot assist in caring for the care receiver.  For example, in his statement dated 22 March 2016, the applicant’s son says that both of his sisters are full-time students and one of them also works.  I find based on her evidence, that the sister he was referring to as a full-time student who works, attends university for two sessions a week in the late afternoon or evening.  If that constitutes full-time study, his other sister may have a lot of time to devote to caring for her grandmother, in addition to undertaking studies. 

29. Taking all the evidence into account, and for the reasons given above, I do not accept the evidence of the applicant or of any of his family members is reliable.  I do not accept their evidence unless it is supported by objective, contemporaneous documentary evidence. 

30. For the above reasons, I am not satisfied that the applicant provides constant care on a daily basis for the care receiver and therefore does not satisfy subsection 198(2) of the Act.

31. The decision under review is affirmed. 

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.............................[sgd]...........................................

Associate

Dated 31 August 2016

Date of hearing	13 May 2016
Date final submissions received	16 May 2016
Applicant	In person
Solicitors for the Respondent	Dr S Thompson, Department of Human Services