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

[2023] AATA 2070

Nguyen; Secretary, Department of Social Services and (Social services second review) [2023] AATA 2070 (7 July 2023)

Division:GENERAL DIVISION

File Number:          2022/5204 and 2022/5205

Re:Secretary, Department of Social Services

APPLICANT

AndThi Nguyen

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:7 July 2023

Place:Melbourne

The decision under review is set aside and, in substitution, the Tribunal decides that Ms Thi Nguyen was not qualified to receive carer payment from 24 April 2017 to 31 July 2018 on the basis that she did not satisfy the requirements of subsection 198(2) of the Social Security Act 1991 (Cth).

...............................[SGD].........................................

Dr L Bygrave, Member

Catchwords

SOCIAL SECURITY – carer payment – cancellation – whether carer payment should have been cancelled – whether Respondent provided constant care to the care receiver – decision under review set aside and substituted

Legislation

Social Security Act 1991 (Cth)

Secondary Materials

Guides to Social Policy Law: Social Security Guide, Department of Social Services, version 1.307 released 8 May 2023.

REASONS FOR DECISION

Dr L Bygrave, Member

7 July 2023

BACKGROUND

1. Ms Thi Nguyen lodged a claim for carer payment and carer allowance on 16 May 2014 in relation to the care she provided to her brother, Mr Hoang-Lam Nguyen (Mr H Nguyen). Ms Nguyen was subsequently granted carer payment and carer allowance from 29 May 2014.

2. On 24 April 2017, the Department of Human Services (Centrelink) (now Services Australia) decided to cancel Ms Nguyen’s carer payment on the basis that she was no longer providing ‘constant care’ to Mr H Nguyen.[1] Ms Nguyen requested a review of this decision and, on 9 May 2017, an Authorised Review Officer (ARO) at Centrelink affirmed this decision and advised Ms Nguyen in writing.

   [1] Exhibit T-T6, 56.

3. Centrelink also wrote to Ms Nguyen on 9 May 2017 to advise that her carer allowance had been ‘cancelled from 24 April 2017’ because she was not providing ‘sufficient care’ to Mr H Nguyen.[2] Ms Nguyen was subsequently told by a Centrelink officer on 7 August 2017 that the ‘appeal has been finalised and confirmed by [an] ARO’, her carer payment and carer allowance ‘were cancelled as a result of a review’ and she ‘will need to lodge an appeal with [the] SSAT as a further appeal process’.[3]

   [2] Exhibit T-T9, 63.

   [3] Exhibit T-T37, 511. The SSAT is the Social Security Appeals Tribunal, which is now the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal.

4. On 9 December 2021, Ms Nguyen lodged an application to the Social Services and Child Support Division (AAT1) of the Tribunal for review of the decisions to cancel her carer payment and carer allowance. The AAT1 made a decision on 10 May 2022 that Ms Nguyen ‘remained qualified for carer payment and carer allowance at 24 April 2017’.[4]

   [4] Exhibit T-T1.1, 10.

5. On 20 June 2022, the Secretary Department of Social Services (the Secretary) applied for review of the AAT1 decision that Ms Nguyen was eligible for carer payment to the General Division of the Tribunal.[5] The Secretary did not seek review of the AAT1 decision that Ms Nguyen remained qualified for carer allowance as at 24 April 2017.[6]

   [5] Exhibit T-T1, 2.

   [6] Statement of Facts, Issues and Contentions of the Applicant, 17 February 2023, paragraph 3.

6. The matter was heard by the Tribunal in Melbourne on 15 June 2023. Ms Nguyen attended the hearing and provided oral evidence by videoconference.

   RELEVANT LEGISLATION

7. The qualification criteria for carer payment are set out in section 198 of the Social Security Act 1991 (Cth) (the Act); relevantly, subsection 198(2) states:

   Constant care for disabled adult…

   (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 …

   [emphasis added]

8. The term ‘constant care’ is not defined in the Act; however, the Social Security Guide (the Guide) provides the following definition:

   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 [carers payment] 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.[7]

   [emphasis added]

   [7] Social Security Guide, version 1.307 released 8 May 2023, 1.1.C.310.

   EVIDENCE

9. Documents before the Tribunal set out the following evidence in relation to Ms Nguyen’s carer payment:

   ·In a claim for carer payment and carer allowance completed on 16 May 2014, Ms Nguyen declared:

   oshe was born in 1960, her residential address is [redacted] (Preston) and she is a ‘non homeowner’;

   oshe cares for Mr H Nguyen who was born in 1955;

   oMr H Nguyen’s address is [redacted] (Footscray) and he does not live with her;

   oher relationship to Mr H Nguyen was ‘carer’;

   oshe ‘personally provide[s] additional care and attention’ to Mr H Nguyen ‘because of [his] disability or medical condition’ six days a week and started to provide this care on 19 August 2006;

   oher assessment of Mr H Nguyen’s day to day care needs, cognitive function and behaviour as part of the Adult Disability Assessment Tool (ADAT); and

   oshe was providing ‘constant care to [Mr H Nguyen] in [his] home’.[8]

   [8] Exhibit T-T2, 21-34.

   ·In a carer allowance questionnaire completed by Ms Nguyen on 16 May 2014, she declared she provided ‘personal care’ to Mr H Nguyen ‘6 days each week’.[9] This included:

   [9] Exhibit T-T3, 39.

   o32 hours per week helping him with ‘mobility’;

   o15 hours per week helping him with ‘personal hygiene’;

   o10 hours per week helping him with ‘assistance with eating and drinking’;

   oone hour per week helping him with ‘communication’;

   oone hour per week helping him with ‘treatment’; and

   otwo hours per week helping him with ‘safety and behaviour’.[10]

   [10] Exhibit T-T3, 39-40.

   ·A medical report completed by Dr Madeleine Thai (general practitioner) on 27 May 2014 stated Mr H Nguyen’s disability and/or medical condition(s) were: ‘unable to walk long distance due to shortness of breath (cardiac failure)’ and ‘poor vision’; and his disability/medical conditions were ‘permanent’ and his ‘overall condition’ was likely to ‘not improve’.[11] This medical report also provided a functional assessment of Mr H Nguyen’s day to day needs, cognitive function and behaviour.

   [11] Exhibit T-T4, 42-45.

   ·On the basis of Dr Thai’s medical report and Ms Nguyen’s carer questionnaire, Mr H Nguyen’s ADAT score was 56.25, which comprised a medical score of 24.50 and a carer score of 31.75.[12]

   [12] Exhibit T-T21, 94.

   ·An income and assets details form for carer payment that was to be completed by Mr H Nguyen dated 10 December 2015 declared he did not have a partner, stated his family assets were $14,000, and outlined his taxable income for the 2014–2015 and 2015–2016 financial years.[13] Ms Nguyen told the Tribunal at the hearing that she completed this form for Mr H Nguyen.

   [13] Exhibit T-T5.

   ·Centrelink records dated 17 March 2017 reported an interview with Ms Nguyen in which she stated she was providing care for her brother, Mr H Nguyen, for six days a week. The daily care Ms Nguyen provided included ‘monitoring’ Mr H Nguyen ‘in case he falls over’; ‘any cooking, cleaning or food shopping’ as Mr H Nguyen is unable to do this himself; driving Mr H Nguyen to all appointments and taking him to work. Ms Nguyen also advised Centrelink that Mr H Nguyen had travelled overseas without her from 31 May to 26 June 2014, 9 November to 17 December 2014, 8 to 25 February 2015, 22 May to 26 June 2015, 30 October to 2 December 2015, 15 January to 17 February 2016, 30 October to 30 November 2016 and 22 January to 19 February 2017.[14]

   [14] Exhibit T-T27, 101-102.

   ·Centrelink records dated 24 April 2017 stated Ms Nguyen said she ‘provides care to her brother for 40 hours per week over a 6 day period’ and ‘she swapped with her brother recently as she has to care for her mother now one day per week’.[15]

   [15] Exhibit T-T27, 105.

   ·On 7 June 2017, Ms Nguyen lodged a claim for carer allowance in relation to her mother, Ms Ban Thi Huynh. Ms Nguyen declared Ms Huynh lived at [redacted] (Carlton) and she had personally provided additional care and attention care to Ms Huynh since 1 January 2010 for ‘7 days each week’.[16]

   [16] Exhibit T-T10, 68-72.

   ·A written statement made by Mr H Nguyen on 13 June 2017 stated he has ‘heart problems’ and needs to go to Vietnam for ‘Asian Special medical treatment’.[17] The statement set out how he is able to travel to Vietnam and why he does not require care from Ms Nguyen in Vietnam:

   [17] Exhibit T-T34.9, 153.

   When I arrived in Vietnam, my friend or family members would come to take me home. My father in-law is a nurse. I have 3 friends who are medical doctors in Vietnam. When I have medical problems, they will come to see me, I don’t have to come to see doctor as in Australia. So what sort of arrangement that you think that she need to carry out to care for me in Vietnam.[18]

   [18] Exhibit T-T34.9, 153.

   This statement was unsigned and provided no information about the care Ms Nguyen provided to Mr H Nguyen.

   ·In a letter to Centrelink dated 1 July 2017, Ms Nguyen stated Mr H Nguyen received disability support pension ‘in 2009 and needed to be looked after almost 24 hrs [a day], so a carer (a family member) had to be with him all the time’.[19] She wrote she is always by his side and:

   [19] Exhibit T-T34.10, 156.

   In a typical day, the care receiver got up around 5am, sometimes 2am, praying and going to the toilet. Supervising him during his praying, toilet use and cleaning. Feeding him breakfast, then medicine. Assisting in measuring his sugar level. Helping him in dressing up. Checking up for any medical appointments.

   Around 9am - 10am, driving him back to his home address, taking him to a street coffee shop for exposure to the sun to absorb vitamin D and a cup of coffee was purchased instead of paying for sitting fee. After sun bath, he was back to his address, supervising him to climb up the stairs. Around lunch time, helping him in measuring sugar level, feeding him lunch and then medicine, supervising him moving around or taking him to medical appointments. In the evening, taking him to the carer’s home then helping him in measuring sugar level, feeding him dinner and medicine, supervising him in moving around or bathing.

   Needless to say, other assistance as taking him to shop, cooking, buying food and groceries was also provided.[20]

   [20] Exhibit T-T34.10, 156.

   [replicated as in original]

   ·In a statutory declaration made by Mr Vincent Nguyen (Mr V Nguyen) on 8 February 2022, he stated that he is the carer for his mother, Ban Huynh, and his sister (Ms Nguyen) ‘was the carer for [their] brother, Hoang Lam Nguyen’.[21] Mr V Nguyen stated that when Mr H Nguyen is ‘out of Australia for medical treatment’ he has to ‘swap’ roles with his sister to care for Mr H Nguyen overseas.[22] This statutory declaration did not set out any dates for this care arrangement or any details about the care Ms Nguyen provided for Mr H Nguyen.

   [21] Exhibit T-T34.2, 141.

   [22] Exhibit T-T34.2, 141.

   ·In a written declaration dated 30 March 2022, Ms Nguyen stated in relation to Mr H Nguyen’s residence that:

   he has already informed Centrelink that he stayed at two places, in Footscray at day time and in Preston at night time.

   a) I have explained to the officer that, the care receiver [Mr H Nguyen] has a business in Footscray for 15 years and rent the property in Footscray on [sic] his own name. As the care receiver cannot be left alone, he needs to be always with someone. Therefore, at night we cannot leave him by himself at his place and have to bring him along with us.

   b) The care receiver’s address at Footscray is [redacted] but the review officer referred to it as a flat. I was unfamiliar with the word flat as it was called First Floor, so I told the review officer that it was not a flat but if she wanted to call a flat then it is fine…[23]

   [replicated as in original]

   Ms Nguyen also explained in relation to her mother, Ms Huynh, that:

   Both my mother and brother [Mr H Nguyen] were brought to my home address [redacted] at night. My mother’s carer looked after my brother while I spent time with my mother in bathing/showering, dressing; helping her using the toilet, moving to and from bed, moving around the house, administering treatment using equipment; explaining information and message, preventing her from injuring herself, monitoring her behaviour to ensure safety etc.[24]

   [replicated as in original]

   [23] Exhibit T-T34, 134-135.

   [24] Exhibit T-T34, 137.

10. Ms Nguyen gave oral evidence at the Tribunal hearing on 15 June 2023 and said she was providing care to Mr H Nguyen almost 24 hours a day in April 2017. Ms Nguyen said the care she provided to Mr H Nguyen included taking him to a coffee shop for breakfast, driving him to his workplace (which is the same address as his residence) where he was self-employed and supervised four staff, accompanying him to business lunches with clients and medical appointments when required, and taking him to do his grocery shopping. Ms Nguyen said she would then drive Mr H Nguyen to her home every evening where she provided care (bathing etc) to their mother while Mr V Nguyen watched Mr H Nguyen. She said that she, her mother and Mr H Nguyen all slept in the same room at her home, and her daughter was also living at her home at Preston at the time.

11. Ms Nguyen said she did not cook for Mr H Nguyen as they normally ate out, but she made him cereal if he was hungry when at her home or required medication. Ms Nguyen described Mr H Nguyen’s medical conditions as ‘cardiac issues, poor vision and diabetes’ and said she gave him medication, which she described as ‘Chinese herbal medicine’. She was unable to tell the Tribunal about any other medication or medical treatment that Mr H Nguyen required.

12. Ms Nguyen told the Tribunal that she stopped being the carer for with Mr H Nguyen in July 2018. She said that they argued, Mr H Nguyen left her house and she did not know where he went. She also said that Mr H Nguyen’s health deteriorated at that time and she was no longer able to provide sufficient care to him.

    CONSIDERATION

13. It is accepted by the Secretary – and the Tribunal – that Mr H Nguyen had the ADAT score required by subparagraph 198(2)(a)(i) of the Act and Ms Nguyen ceased caring for Mr H Nguyen in July 2018. Consequently, the sole issue for determination by the Tribunal is whether Ms Nguyen was providing ‘constant care’ to Mr H Nguyen in the period from 24 April 2017 to 31 July 2018. I note the Secretary made submissions about Ms Nguyen’s financial circumstances in the period after 31 July 2018: however, given the only issue in dispute is the care Ms Nguyen provided to Mr H Nguyen between 24 April 2017 and 31 July 2018, I have confined my consideration of the evidence to this period.

14. The evidence before the Tribunal is contradictory.

15. On the one side, Ms Nguyen provided detailed written statements about the daily care she provided to Mr H Nguyen when he was in Australia. I note Ms Nguyen gave oral evidence that she told Centrelink she provided care to Mr H Nguyen for six days a week because she calculated the periods that he was in Vietnam (approximately eight weeks in 2014 and 2016, and 10 weeks in 2015) equated to approximately one day a week.

16. On the other side, as I set out below, aspects of Ms Nguyen’s oral evidence at the Tribunal hearing were of significant concern.

17. First, Ms Nguyen’s oral evidence about the type and level of care she provided to Mr H Nguyen was not consistent with Mr H Nguyen’s medical conditions (‘unable to walk long distance due to shortness of breath (cardiac failure)’ and ‘poor vision’) and the functional assessment set out by Dr Thai in her medical report dated 27 May 2014. I note this report by Dr Thai is the only medical evidence provided to the Tribunal.

18. For example, when Ms Nguyen was asked to describe the daily care she provided to Mr H Nguyen in April 2017, she said she ‘monitored’ him because he ‘faints’ and ‘can fall’ but then acknowledged that he did not faint ‘very often’ and was ‘okay a couple of seconds later’. She was vague and evasive in her answers, and unable to describe the regularity of Mr H Nguyen fainting or explain why this condition was not set out in Dr Thai’s report. She was also unable to describe what medication/s Mr H Nguyen required for his medical conditions, except to say that he took ‘Chinese herbal medicine’. Ms Nguyen also said personally fed Mr H Nguyen: when she was asked why he required this type of assistance, she said he had a ‘hand injury’ but could not provide details about this injury or why Dr Thai did not list this medical condition in her report.

19. I find this oral evidence was also inconsistent with Ms Nguyen later telling the Tribunal that Mr H Nguyen is able to walk independently along the street, does not require any walking aids (either for support while walking or to assist him due to his poor vision) or to hold her arm. She said he is able to climb the stairs to his residence/workplace holding onto the railing. She confirmed Mr H Nguyen is not ‘legally blind’, and is able to handwrite and read documents ‘up close’. Somewhat oddly, the oral evidence of Ms Nguyen that Mr H Nguyen was able to handwrite seems to be inconsistent with her evidence that he could not feed himself due to a hand injury.

20. Second, Ms Nguyen has filed no supporting medical or other evidence to verify the level of care she provided to Mr H Nguyen from April 2017 to July 2018. For example, there are no updated medical reports about Mr H Nguyen’s medical conditions or functional capacity. The only statement from the care receiver, Mr H Nguyen, is dated 13 June 2017; this statement was typed, unsigned and contained no information about the care Ms Nguyen provided to him. There are also no details about the care Ms Nguyen provided to Mr H Nguyen in the statutory declaration of Mr V Nguyen dated 8 February 2022.

21. Third, all the forms and documents lodged with Centrelink were completed by Ms Nguyen, including the income and assets details form for carer payment dated 10 December 2015 that was to be completed by Mr H Nguyen. At the hearing, Ms Nguyen confirmed she completed the form dated 10 December 2015 on behalf of Mr Nguyen. Notably, this form declared Mr H Nguyen did not have ‘a partner’.[25]

    [25] Exhibit T-T5, 49

22. In her oral evidence, Ms Nguyen was very evasive in responding to questions about whether she knew Mr H Nguyen was married at the date she completed the income and assets details form on 10 December 2015. She said she did not know when Mr H Nguyen married, submitted that his wife was not in Australia, and said she only spoke with his wife (her sister-in-law) once by telephone. I find this evidence very difficult to reconcile with Ms Nguyen’s oral evidence that she provided constant care – ‘almost 24 hours a day’ – for Mr H Nguyen in the period from May 2014 to July 2018, except when he was overseas. This evidence is at odds with the written statement by Mr H Nguyen dated 13 June 2017 (which Ms Nguyen said she had read) in which he referred to his ‘father-in-law’ being a nurse in Vietnam. It is also inconsistent with Australian Taxation Office records filed by the Secretary that showed Mr H Nguyen declared in tax returns for 2017–2018 and 2018–2019 that he had a spouse for both of these financial years, and set out his spouse’s taxable income for the 2018–2019 financial year.[26] It is apparent from the documentary evidence that Mr H Nguyen was married in the period from 24 April 2017 to 31 July 2018 when Ms Nguyen has stated she was providing constant care to him.

    [26] Exhibit ST-ST3, 611-618.

1. For these reasons, I find Ms Nguyen’s evidence was unreliable, lacking in credibility and unsupported by any evidence from another person. In view of this finding, I place minimal weight on the evidence of Ms Nguyen that she personally provided care on a daily basis for a significant period to Mr H Nguyen. It follows that I cannot be satisfied Ms Nguyen was providing ‘constant care’ to Mr H Nguyen from 24 April 2017 to 31 July 2018.

   DECISION

2. The decision under review is set aside and, in substitution, the Tribunal decides that Ms Thi Nguyen was not qualified to receive carer payment from 24 April 2017 to 31 July 2018 on the basis that she did not satisfy the requirements of subsection 198(2) of the Social Security Act 1991 (Cth).

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 7 July 2023

Date of hearing:	15 June 2023
Advocate for the Applicant:	Ms Peta Heffernan
Solicitors for the Applicant:	Australian Government Solicitor
Respondent:	Self-Represented