O'Neill; Secretary, Department of Family and Community Services
[2002] AATA 253
•16 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 253
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/355
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
And VALERIE O'NEILL
Respondent
DECISION
Tribunal Dr EK Christie, Member
Date16 April 2002
PlaceBrisbane
Decision The decision under review is affirmed. This means that the application for review by the Secretary, Department of Family and Community Services is unsuccessful.
............(Sgnd)............
Dr EK Christie
Member
CATCHWORDS
SOCIAL SECURITY – lump sum – bereavement payment – qualification for carer payment when person receiving care admitted to institution – continuation of carer payment for bereavement period where person cared for dies – meaning of 'permanent' – meaning of 'special reasons'
Social Security Act 1991 s 198 AA(1), 198AC(3), 235(1), 236(1)
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Re Coxen, MacCallum v Coxen [1948] (1) [1948] Ch 747
Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543
REASONS FOR DECISION
16 April 2002 Dr EK Christie, Member
This is an application by the Secretary, Department of Family and Community Services ("the Department") to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 28 March 2001 that Mrs O'Neill was entitled to a lump sum bereavement payment.
The reasons for this application for review by the SSAT were:
"The SSAT erred by finding the respondent's mother's absence was not 'permanent' within the meaning of section 198AAA(1) of the Social Security Act 1991 and thereby erred in finding that the respondent was entitled to receive the bereavement payment (T1 folio1)."
In its application of the law, the SSAT concluded:
"14. In this case, the Tribunal is satisfied that Mrs O'Neill had not admitted Mrs Hewett to a nursing home on a permanent basis and therefore remained qualified for carer payment (T2 folio 5).
In its discussion of the evidence, the SSAT concluded:
"11. The Tribunal was left in no doubt that in Mrs O'Neill's mind, at the time of Mrs Hewett's admission to the nursing home, it was not a permanent arrangement and as soon as it was possible, Mrs O'Neill would again care for her mother in her home. The only reason this did not eventuate was because of the death of Mrs Hewett."
In addition to the "T" documents, a Witness Statement prepared by Mrs Valerie O'Neill (dated 21 November 2001) filed with the Tribunal and further Centrelink documents, filed by the Department, accompanied the "T" documents as supplementary information.
The parties consented to the Tribunal deciding this application for review on the papers. However, before proceeding on this basis the Tribunal held a telephone directions hearing (TDH) with the legal representatives for each party on 11 March 2002. During the TDH, the Departmental Advocate, Mr Neil Foster, acknowledged that neither Mrs O'Neill's credit, her evidence before the SSAT, nor the findings of facts made by the SSAT were in dispute. Rather, the application for review raised a question of law that had to be decided. Specifically, the legal meaning of 'permanent' in s 198AAA(1) of the Social Security Act 1991 ("the Act").
Accordingly, the Tribunal has proceeded on this basis:
(a)to construct the meaning of 'permanent'; and
(b)then to apply the facts arising from the SSAT hearing, together with all the information before the Tribunal (including further material submitted by both parties) to the legal meaning so constructed.
Issues Before the Tribunal
The issue for the Tribunal to decide was whether Mrs O'Neill, as carer for her late mother, was entitled to a lump sum bereavement payment. This issue was dependent on whether Mrs O'Neill's late mother left her care permanently, or temporarily, on admission to a nursing home at Gracehaven on 5 December 2000.
Based on the evidence before it, the SSAT concluded:
"(i)Mrs O'Neill was in receipt of carer payment in respect of her mother, Mrs Ethel Hewett
(ii)On 5 December 2000, Mrs Hewett [moved from a private residence and] was admitted to Gracehaven Nursing Home for care
(iii)On 9 February 2001, Mrs Hewett died [at Gracehaven Nursing Home] (T2, folio 4)."
It is not in dispute that Mrs O'Neill advised the Department that Mrs Hewitt had entered the nursing home.
Legal FrameworkSection 198AAA of the Social Security Act came into operation on 20 March 2000. This section provides for "Continuing of qualification when person receiving care admitted to institution." Sub-section 198AAA(1) provides for a situation where the care receiver is admitted permanently to an institution where care is provided for the care receiver:
"198AAA(1) This section applies if:
(a)carer payment is payable to a person who has ordinarily been providing constant care for a care receiver or care receivers; and
(b)the person ceases to be qualified for the payment because he or she ceases to provide constant care for the care receiver or any of the care receivers as a result of the care receiver being admitted permanently to an institution where care is provided for the care receiver." (Tribunal emphasis)
Section 198AC deals with the situation where a person providing constant care for a care receiver temporarily ceases to provide that care:
"Effect of cessation of care etc on carer payment
Continuation of payment where temporary cessation of care· 198AC(1) Subject to subsection (3), if:
(a) a person is qualified for carer payment because the person is personally providing constant care for a care receiver or care receivers; and
(b) the person temporarily ceases to provide that care for the care receiver or care receivers;
the person does not cease to be qualified for the carer payment merely because of that cessation.
…
Limit on subsections (1) and (2)· 198AC(3) However, the period, or the sum of the periods, for which subsection (1) or (2), or a combination of those subsections, can apply is:
(a)63 days in any calendar year; or
(b)another period that the Secretary, for any special reason in the particular case, decides to be appropriate." (Tribunal emphasis).
Section 235(1) of the Act is also relevant in Mrs O'Neill's fact situation as her mother had passed away in the Gracehaven Nursing Home.
"Continuation of carer payment for bereavement period where person cared for dies
· 235 (1) if:
(a)a person is receiving carer payment because he or she ordinarily cares for a care receiver or care receivers; and
(b)the person is caring for the care receiver or care receivers or has temporarily ceased to care for the care receiver or care receivers; and
(c)the care receiver or any of the care receivers dies; and
(d)the care receiver who dies is not the person's partner; and
(e)because of the death, the person would, apart from this subsection, cease to be qualified for the carer payment;
the person remains qualified for the carer payment during the bereavement period as if the death had not occurred."
The circumstances were a lump sum bereavement payment is payable is set out in section 236A and the applicable paragraphs in Mrs O'Neill's case is paragraph (a):
· "Lump sum payable in some circumstances
236A(1) A lump sum is payable to a person under this section if:
(a)the person remains qualified for carer payment because subsection 235(1) … applies; and …"
Meaning of 'permanent'
The Macquarie Dictionary (3rd Edition 1997) defines "permanent" as:
"1.lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding."
The Australian Concise Oxford Dictionary (3rd Edition, 1997) gives the following meaning of "permanent":
"lasting or intended to last or function, indefinitely"
In Re Coxen, MacCallum v Coxen (1) [1948] Ch 747, Jenkins J stated at 760:
"It remains to consider what is meant by the word 'permanently' …[the person] must have given up all intention of ever living in the house, or in other words, must have no 'animus revertendi' to put it objectively, she must have given up personal residence once and for all."
Facts and Contentions of the Parties
The Department submits that Mrs O'Neill ceased to qualify for carer payment on 1 December 2000 as Mrs Hewett was admitted permanently to an institution where care was to be provided for her. Factors which indicated that Mrs Hewett left Mrs O'Neill's care permanently included:
Mrs Hewett was admitted to a permanent bed at Gracehaven.
Mrs O'Neill did not seek to utilise the respite provisions for temporary absences under section 198AC. At the time of Mrs Hewett's admission to Gracehaven, the Respondent had only used 37 of her possible 63 respite days (see T22).
Consistent with an acceptance that the admission was permanent, Mrs O'Neill did not contest the cancellation of her carer payment, but instead claimed age pension.
It was the Department's contention that the nature and severity of Mrs Hewett's illness indicated that it was unlikely that she would return to Mrs O'Neill's care in the foreseeable future. At the time of her admission, Mrs Hewett was suffering from dementia, which is a progressive, irreversible, degenerative condition. The letter from Dr Fenelon (T16) indicated that Mrs Hewett was admitted to Gracehaven due to her violent behaviour and that Mrs O'Neill was unable to adequately care for Mrs Hewett alone. Following Mrs Hewett's admission, her health deteriorated further, ultimately resulting in her death. There is little basis from these circumstances to conclude that Mrs Hewett's admission would only be short term.
The Department contended, that with hindsight, Mrs Hewett never actually returned to Mrs O'Neill's care. Given the factors already cited, the reality that Mrs Hewett never returned to Mrs O'Neill's care reinforced their assertion that her admission to Gracehaven was permanent.
The Department referred to the SSAT conclusion that the admission was temporary, on the basis of Mrs O'Neill's hope that Mrs Hewett might one day return to her care. The Department then submitted that the factors cited above clearly outweighed any tenuous, and as it turned out, unrealised hope held by Mrs O'Neill. The Department submitted that the weight of the evidence pointed strongly to Mrs Hewett being admitted permanently, not temporarily, to Gracehaven.
It was the Department's further contention that Mrs O'Neill was not entitled to have a lump sum bereavement payment because:
Mrs Hewett was admitted to Gracehaven permanently resulting in Mrs O'Neill being entitled to a further carer payment for 14 weeks from the date of admission;
However, Mrs O'Neill had already received 14 weeks payment under s 198AAA and so did not come within the bereavement provisions of s 235 of the Act;
Furthermore, as Mrs O'Neill did not come within s 235 provisions of the Act, she was not entitled to a lump sum bereavement payment under s 236A of the Act.
It was the Department's further contention that even if the SSAT's finding that Mrs Hewett's admission was temporary was accepted, it was still not possible to pay a lump sum bereavement payment to Mrs O'Neill. Mrs O'Neill could only continue to receive carer payment during a temporary cessation of care under section 198AC. However, a person was generally only entitled to 63 days respite leave per calendar year under this section. At the time of admission, Mrs O'Neill had already taken 37 respite days in 2000. Given that a further 70 days elapsed from the date of admission to the date of Mrs Hewett's death, carer payment would not have been payable to Mrs O'Neill under section 198AC at the time of Mrs Hewett's death. Even accepting if the absence of Mrs Hewett as temporary, section 235 could not be satisfied by Mrs O'Neill. A lump sum bereavement payment was not payable to her under section 236A.
The Department also submitted that there were no "special reasons" for the number of respite days to be varied from the 63 days prescribed by the statute. Mrs O'Neill never resumed care; the respite provisions were not utilised at the time of cessation of care; and the objective evidence points to the cessation of care being permanent rather than temporary.
Finally, the Department contended that Mrs O'Neill was not entitled to carer payment in relation to any care provided for Mrs Hewett at Gracehaven, as carer payment was only payable for care provided in a private home.
Mr Muller, Solicitor for Mrs O'Neill, submitted on behalf of Mrs O'Neill, that Mrs Hewett was admitted to a permanent room, at Gracehaven, on 4 December 2000 as she believed that her mother had exhausted the number of respite days she was entitled to for the year. However, if the Department's contentions were correct (see para 20), and that Mrs O'Neill could have had her mother admitted as a respite resident – and not a permanent resident at Gracehaven, the dispute would not have arisen.
Mr Muller referred to the fact situation that the room Mrs Hewett occupied at Gracehaven would have been the same room she would have been admitted to as a "respite" resident.
Mr Muller submitted that it was never Mrs O'Neill's intention that the admission of her mother to Gracehaven would be permanent, notwithstanding the illness and condition of her mother. Rather, Mrs O'Neill's intention was for her mother to return to her private home for the remainder of her lifetime when her mother's condition had been stabilised. Moreover, with medication and care, Mrs O'Neill had a reasonable expectation that Mrs Hewett could return to her private home.
Mr Muller referred to the evidence before the SSAT that Mrs O'Neill provided constant care for her mother up to the 4 December 2000, and beyond this date. Mrs O'Neill continued to provide care for her mother whilst at Gracehaven and Bundaberg Base Hospital. It was Mr Muller's contention that Mrs O'Neill had persisted with these actions with the reasonable expectation that she would resume continuous care for her mother in her private home. Such actions could not be construed as an "unrealistic hope".
Finally, Mr Muller submitted that Mrs O'Neill had applied for Age Pension acting on advice from a Centrelink officer to do so. Mrs O'Neill had responded in good faith, at the instigation of the Centrelink officer. Furthermore, it was Mr Muller's contention that Mrs O'Neill did not have the knowledge or desire to not rely on the advice given to her as she believed that such an application would not affect her eligibility for a lump sum payment on the death of her mother.
Consideration of the IssuesThe objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.
The Tribunal has considered the plain meaning and common law construction for the meaning of "permanent" and concludes together they clearly and unambiguously define "permanent" to mean "lasting or intended to last indefinitely" and, in Mrs O'Neill's fact situation, for her mother to have given up personal residence at Mrs O'Neill's home "once and for all".
Applying the objective test for the meaning of "permanent" to the facts before the Tribunal, it is concluded that a finding that Mrs Hewett had been admitted permanently to Gracehaven Nursing Home could not be made. The Tribunal makes this finding for the following reasons:
(a)Mrs O'Neill's evidence before the SSAT (T2 Folio 3 paras 5,6);
(b)The findings of the SSAT (see para 3 of this decision), given that in their discussion of Mrs O'Neill's evidence the SSAT concluded:
"8.Mrs O'Neill's evidence was thorough and confirmed by her daughter, Mrs Janice Ives.
…
10.In obtaining evidence from Mrs O'Neill at the hearing, the Tribunal probed in detail the circumstances under which Mrs Hewett was admitted to the nursing home and in fact whether this was a permanent arrangement (T2, Folio 4)"; and
(c) that the Department has acknowledged that neither Mrs O'Neill's credit in relation, or her evidence before the SSAT, or the findings of fact made by the SSAT were in dispute (see para 6).
Furthermore, with respect to Dr Fenelon's (21 February 2001) statement (T26 Folio 24) as well as the Health Professional Statement completed by Dr Fenelon on 20 October 2000 (Supplementary document), there are no objective facts before the Tribunal to establish the inference, contended by the Department that Mrs Hewett, because of her medical condition, had given up personal residence in Mrs O'Neill's home "once and for all". That is, she would remain indefinitely in the Gracehaven Nursing Home. Whilst the Health Professional Statement refers to Mrs Hewett's condition as "permanent" and "likely to deteriorate" (at Question 7), it does not state that her condition, as such, had reached the stage where it would require Mrs Hewett to remain indefinitely in some form of full-time care in a hospital/nursing home i.e. to be cared for other than in the private home of, and by Mrs O'Neill. Consequently, the Tribunal concludes that the contention by the Department in this regard is mere speculation and cannot be acted upon: see Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169.
The Tribunal concludes that it was Mrs O'Neill's intention for her mother to return to her home when her medical condition had become stabilised at the Gracehaven Nursing Home. That is, her mother was not "permanently" admitted to the nursing home on 5 December 2000.
In accordance with this finding and its application to s 198AAA(1), the Tribunal concludes that Mrs O'Neill remained qualified to receive carer payment following Mrs Hewett's admission to Gracehaven Nursing Home.
The next question for the Tribunal to decide relates to the length of the period Mrs O'Neill remained qualified for carer payment, given that she had temporarily ceased to provide care for Mrs Hewett following her admission to Gracehaven Nursing Home. That is, whether there were "special reasons" to extend the period beyond 63 days in any calendar year: s 198AC.
In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531, French J considered the general approach to determining whether "special reasons" exist (at 536):
"The core of the requirement for 'special circumstances' or 'special reasons' is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Thoo (1988) 78 ALR 307 AT 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 27 FCR 32 (at 29 AAR 124)."
The Tribunal concludes that there are "special reasons" for the period of carer payment to continue for 14 weeks after Mrs Hewett entered the nursing home on 5 December 2000. The 14 week period encompassed the 2000 and 2001 calendar years. The Tribunal makes this conclusion for the following reasons:
(a)Based on the information before the Tribunal, the Department did not notify or inform Mrs O'Neill that the Health Professional Assessment by Dr Fenelon completed on 20 October 2000 indicated that Mrs Hewett's condition had deteriorated to such an extent that it would justify Mrs Hewett to be permanently cared for in a nursing home or hospital. Or in the alternative, for Mrs O'Neill to consider having Mrs Hewett admitted permanently to a nursing home or hospital;
(b)Based on this lack of advice, it was reasonable for Mrs Hewett to continue to care for her mother whilst in the nursing home as there was no indication to her that Mrs Hewett's admission would be permanent. (See also para 30);
(c)That Mrs Hewett had been given incorrect advice by the Bundaberg office of Centrelink in relation to advice she sought for qualification for carer payment and bereavement payment (T10 Folio 22); and
(d)The decision of this Tribunal in Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543 with respect to advice given to Social Security recipients by departmental officers:
"Any failure to regard the seriousness of the consequences of the giving of wrong advice as not being a circumstance special to the person or persons who have suffered as a result of that advice would be cruel. Citizens are entitled to act upon the advice given to them by representatives of government through its departments and agencies. Citizens also are entitled to have confidence in the advice that they are given by persons in authority and who represent government departments and agencies. Citizens should be entitled to expect nothing less (Tribunal emphasis)."
Applying the above findings to s 235(1) and s 236A(1) of the Act, the Tribunal concludes that:
(a)Mrs O'Neill was entitled to a lump sum bereavement payment under s 236A(1), because
(b)Mrs O'Neill remained qualified for carer payment because she satisfied the requirements prescribed by s 235(1) of the Act.
For all of the above reasons the Tribunal affirms the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: .....................................................................................
AssociateDate/s of Hearing Heard on the papers
Date of Decision 16 April 2002
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