Muller and Secretary, Department of Social Services
[2013] AATA 767
•28 October 2013
[2013] AATA 767
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4608
Re
Helgard Muller
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 28 October 2013 Place Brisbane The Tribunal affirms the decision under review.
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Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Carer allowance – Carer payment – Whether care addressing special care needs for at least 20 hours per week – Whether applicant provides “constant care” – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 197, 198, 954A
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Milne and Secretary of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Harvey [2009] AATA 835
SECONDARY MATERIALS
Guide to Social Security Law
Macquarie Dictionary (4th ed, 2005)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
28 October 2013
INTRODUCTION
Ms Helgard Muller (“the applicant”) has made a claim for carer allowance and carer payment. I have to determine whether she is entitled under social security law to either or both of these benefits.
BACKGROUND
On 15 February 2012 the son of the applicant (“the care receiver”) sustained an injury to his right hand whilst he was servicing his motor cycle. On 24 February 2012 the applicant made a claim for carer allowance in relation to the care that she provided to the care receiver. The applicant provided some medical certificates in support of her claim. In one medical certificate dated 15 March 2012, Dr Anthony Solomon stated that the care receiver would be unable to attend work for six months.[1] In a later medical report dated 26 March 2012, Dr Solomon confirmed that the care receiver has a medical condition of trauma to his right hand, which required surgery.[2] Dr Solomon stated that care was required for a significant period each day (at least the equivalent of a normal day). Dr Solomon also assessed the medical condition of the applicant as temporary, but did not answer the section of the medical report which requested the treating doctor to express an opinion on how long he expected the medical condition of the applicant to continue.
[1] Exhibit A, T-Document 5, p. 21.
[2] Exhibit A, T-Document 8, pp. 32-37.
On the basis of the information which was provided to Centrelink, an assessment was made of the care receiver using the Adult Disability Assessment Tool. The applicant’s component was scored at 13.50 and Dr Solomon’s component was scored at 34.75 giving a combined score of 48.25. On 3 April 2012 the claim for carer allowance was rejected. On 17 April 2012 the applicant lodged a claim for carer payment. On 8 May 2012 the claim for carer payment was rejected on the ground that the disability or medical condition of the care receiver “is not expected to continue for a period of at least six months”.[3]
[3] Exhibit A, T-Document 10, p. 45.
The applicant sought review of these decisions to reject her claim for carer allowance and carer payment. On 14 June 2012 an Authorised Review Officer (“ARO”) affirmed the decision to reject the claim for carer allowance and on 15 June 2012 the ARO affirmed the decision to reject the claim for carer payment. These decisions were affirmed by the Social Security Appeals Tribunal on 19 September 2012. On 11 October 2012 the applicant lodged an application to this Tribunal for review of these decisions.
RELEVANT LEGISLATION
Carer allowance
When the claim for carer allowance was made the applicant and the care receiver did not reside in the same residence. Section 954A of the Social Security Act 1991 (Cth) (“the Act”) applies in a case where the carer and the care receiver (who is a disabled adult) do not reside in the same residence, the provision provides that to qualify for carer allowance:
·the care receiver and the applicant must be Australian residents (ss 954A(1)(a) and (e)); and
·the care receiver is a family member of the applicant (s 954(1)(b)); and
·the care receiver has been assessed under the Adult Disability Assessment Tool (“ADAT”) and assigned a score of at least 30 (s 954A(1)(c)); and
·the applicant alone must provide care and attention on a daily basis for a total of at least 20 hours per week, with such care and attention addressing the care receiver’s special care needs that relate to his bodily functions or to sustaining his life (ss 954A(1)(d) and 954A(2)); and
·the care and attention must be provided in the private home of the care receiver (s 954A(2)(d)); and
·the care and attention must not be of a kind specified by the Secretary in a legislative instrument (s 954A(2)(e)); and
·the applicant must not receive wages at or above the relevant minimum wage for providing the care and attention (s 954A(1)(f)); and
·no one, including the applicant, qualifies for carer’s allowance under section 954 in relation to the care receiver (s 954A(1)(g)).
Carer payment
Section 198 of the Act provides (in reference to caring for a disabled adult) that for the applicant to qualify for carer payment:
·the applicant must personally provide constant care for the care receiver, where the care receiver has been assessed under the ADAT and assigned a score of at least 25 (s 198(2)(a)(i)); and
·the care must be provided in either the private residence of the applicant or the care receiver (s 198(3)); and
·the applicant must be an Australian resident (s 198(4)); and
·the care receiver must be an Australian resident and satisfy the prescribed income and assets tests (s 198(5)).
Meaning of “disabled adult”
In s 197 of the Act, “disabled adult” is defined to be a person who is over the age of 16 years who has a physical, intellectual or psychiatric disability and who is likely to suffer from that disability permanently or for an extended period.
CONSIDERATION
Carer allowance
While the Act does not define the meaning of what is an ‘extended period’ in the definition of “disabled adult”,[4] the policy guide (the Guide to Social Security Law) provides some guidance as to the length of time that care is required, defining ‘extended period’ to mean 12 months or more unless the care receiver is in the final stages of a terminally illness: policy guides such as this will ordinarily be relied on by the Tribunal,[5] although a policy guide cannot control the meaning of a term in an Act of Parliament. The term ‘extended’ has been defined as being, amongst other things, ‘prolonged’.[6] I consider that in some cases a lesser period than 12 months may be regarded as a prolonged or an ‘extended period’.
[4] See s 197 of the Act.
[5] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
[6] Macquarie Dictionary (4th ed, 2005), p. 499.
I accept that the applicant provided care for more than 12 months to the care receiver. However, I cannot be satisfied on the state of the medical evidence before me that care was required to be given for an extended period. Certainly Dr Salomon, who was the treating doctor during that time, was not prepared in his initial medical report dated 26 March 2012 to give an estimate of how long the care receiver’s condition was expected to continue. Dr Solomon in his later medical report dated 14 May 2102 was not prepared to give an estimate that the condition would continue for more than 12 months.[7] Another treating doctor, Dr Mark Henderson, in a recent report dated 27 September 2013 has given a different opinion that the applicant was required to give care for a period of 13 months.[8] However, I do not give weight to this report because he was not the treating doctor at the time of the care receiver’s injury or at any time soon after and because he has not provided reasons for coming to his conclusion. He has also not completed a medical report which details the day to day needs of the care receiver.
[7] Exhibit A, T-Document 11, p. 49.
[8] Exhibit C.
I have to determine whether the applicant alone provides care and attention on a daily basis for a total of at least 20 hours per week, with such care and attention addressing the care receiver’s special care needs that relate to his bodily function or in sustaining his life. On 6 December 2012 the applicant completed a statement which listed her care of the care receiver.[9] I appreciate that the applicant has stated that on 10 September 2012 she towelled him after he had a shower. In that statement she did not state that she needed to assist the care receiver to wash himself in the shower. The care receiver gave evidence that he was able to shower himself after some weeks following the surgery to his hand. I appreciate that in showering the care receiver has had to take precautions to cover his wound with plastic, but he was able to wash himself within some weeks of the surgery. The care receiver also stated that he was also then able to attend to his toiletry needs. This evidence from the care receiver is consistent with the report of Dr Solomon who has reported that by 14 May 2012 the care receiver was independent in his toilet use. Dr Solomon also then thought that the condition of the care receiver was likely to improve.
[9] Exhibit B.
I accept that the applicant has provided extensive support to the care receiver in cutting up food, assisting with showering and dressing, and personal grooming. However, on the state of the evidence before me I cannot be satisfied that the applicant had to give care of 20 hours per week for the purpose of meeting the needs of the care receiver in relation to his bodily function or in sustaining his life.
I have examined the report of Dr Henderson who has given an opinion that the applicant has had to provide care for a minimum of “8 hours per day, seven days/week”. As discussed above,[10] I have already provided reasons for not giving any weight to this evidence.
[10] See [8] above.
I do not consider that the applicant was eligible to be granted carer allowance.
Carer payment
The eligibility of the applicant to carer payment is dependent upon whether she provides “constant care”. There is no definition of the expression “constant care” in the Act. This Tribunal in a number of decisions considered what would be regarded as “constant care” in the particular circumstances of a case.[11] In order for the applicant to be regarded as providing constant care to care receiver, such care would ordinarily be given on a constant basis.
[11] ReMilne and Secretary of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689, [7];To show that there is a need for constant care it will ordinarily be necessary to have regard to medical evidence. On 28 May 2012 Dr Solomon informed the ARO that he did not think that the care receiver required full time personal care.[12] Dr Solomon, however, recognised that if the applicant was working she would need to take a lot of time off work to take the care receiver to his various appointments. This is because the applicant resides some distance from the public hospital which has treated the care receiver.
On 12 June 2012 Dr Solomon answered a questionnaire sent to him, in which he confirmed that the care receiver did not require care for a significant period of each day commencing from 1 April 2012 for a 6 month period.[13]
[12] Exhibit A, T-Document 24, p. 85.
[13] Exhibit A, T-Document 16, p. 57.
Dr Henderson’s evidence regarding the level of care required has not been given any weight for the reasons discussed above.
On the state of the medical evidence before me I cannot be satisfied that the care receiver required constant care each day, the applicant therefore was not eligible to receive carer payment.
DECISION
I affirm the decision under review.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member
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Associate
Dated 28 October 2013
Date of hearing 1 October 2013 Applicant In person Solicitors for the Respondent Mr Christopher Bishop
ReSecretary, Department of Families, Housing, Community Services and Indigenous Affairs andHarvey [2009] AATA 835, [28].
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