Olivia Stewart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 656

[2013] AATA 656 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3854
Re	Olivia Stewart
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	13 September 2013
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Carer allowance – Form of care given – Face-to-face care – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 953, 954, 954A, 957

SECONDARY MATERIALS

Explanatory memorandum - Family and Community Services and Veterans’ Affairs Legislation Amendment (2004 Budget Measures) Bill 2004

REASONS FOR DECISION

Senior Member Bernard J McCabe

1. Olivia Stewart cares for her elderly mother who lives in Mt Tamborine. The applicant travels to her mother’s home on a regular basis during the week and often stays overnight. But Ms Stewart cannot be there all the time. She has work to do in Brisbane. When she leaves her mother behind, Ms Stewart makes a point of maintaining contact by phone. She has to chase up her mother about taking medication and other tasks that might not be at the forefront of the minds of the respite carers who fill in for Ms Stewart. Does this pattern of care – including an element of “phone care” – satisfy the criteria applicable to claims for a carer allowance?

   THE RULES APPLICABLE TO CLAIMS FOR CARER’S ALLOWANCE

2. Ms Stewart and her mother do not live in the same home – Ms Stewart resides in Brisbane – so her claim for a carer allowance must be assessed against the criteria in s 954A of the Social Security Act 1991. Ms Stewart clearly satisfies most of those criteria. The Secretary said the dispute in this case turns on the requirement in s 954A(2)(b) that the care and attention provided by the carer “must be received by the care receiver on a daily basis, for a total of at least 20 hours a week” [Emphasis added].

3. Ms Stewart gave evidence that she spends more than 20 hours with her mother each week. Her other family members are not in a position to provide assistance, and Ms Stewart often stays overnight with her mother in Mt Tamborine. In some weeks, she might spend five or six nights at her mother’s home. But she also confirmed in her oral evidence before the Tribunal she was physically present in her mother’s home for three or four days in an average week, albeit that she spent more than 20 hours with her mother over that three or four day period. On the days on which she was not present, Ms Stewart said she would call her mother on the telephone. She would typically call at a key time or times during the day: when her mother was due to take her many medications, for example. She would call at least once a day, but often more than once. Ms Stewart said each call might last for 20 minutes or so. She would have to question her mother closely about her medication and other self-care issues. The phone contact was in the nature of a follow-up on care that had already been provided when Ms Stewart was physically present at the house or by the professional carers who assisted with her mother’s care. There was no challenge to this evidence, and I have no difficulty accepting Ms Stewart’s account.

4. Ms Stewart argued the telephone contact was not a substitute for physical contact. It was an adjunct to the face-to-face care Ms Stewart provided to her mother for over 20 hours each week. She agreed telephone contact on its own might not qualify as care and attention for the purposes of the legislation. But she said the situation was different where the telephone contact occurred in conjunction with face-to-face care. She pointed out there was nothing explicit in the Act that excluded telephone care from consideration.

5. The Secretary said that was not the right way to interpret s 954A. I was told it was important to understand the history of the provision. Section 954A was introduced to deal with a situation where the carer and the care recipient do not live together. (Where a carer and care recipient reside together in the same home, s 954 applies.) The explanatory memorandum that accompanied the amendments introducing s 954A (Family and Community Services and Veterans’ Affairs Legislation Amendment (2004 Budget Measures) Bill 2004) explained s 954A(2)(d) dispensed with a co-residency requirement. It went on to say:

   …the carer may go to the care receiver’s home to provide care, or the care receiver may go to the carer’s home to receive care.[Emphasis added]

6. The Secretary said the reference in the explanatory memorandum to a carer who would go to a care recipient’s home (or vice versa) indicated a legislative intention to restrict the type of care covered to care that was provided face-to-face. On that basis, the applicant was unable to satisfy the requirement in s 954A(2)(d). Mr McQuinlan, for the respondent, added the flood gates would open if individuals could start making claims for carer’s allowance on the basis of telephone contact. He warned relatives from overseas and others who never visited would be able to claim carer’s allowance on the basis of telephone contact. One could imagine an applicant who “monitors” a distant relative remotely by Skype using an internet connection that is never interrupted claiming they were providing care and attention. While the Secretary’s concern is legitimate, Ms Stewart pointed out in her oral submissions that she did not argue telephone contact on its own could amount to care in the sense intended by the legislation. She said she provided in excess of the minimum amount of face-to-face contact with her mother required by the section, and it made no sense to interpret the legislation in a way that made an arbitrary distinction between carers on the basis of the way in which they allocated their time between their caring responsibilities and other aspects of their lives.

7. As it happens, I think the focus on s 954A(2)(d) and the words of the explanatory memorandum is misconceived. Section 954A(2)(d) merely confirms there is no co-residency requirement. The real issue is whether phone contact – even phone contact in conjunction with face-to-face care – can be regarded as care and attention of a kind referred to in s 954A(1) and (2).

8. Section 954A(1)(d) says the care and attention in question must meet the requirements in sub-section (2). The key provision for present purposes is s 954A(2)(a). That provision says:

   (2) The care and attention:

   (a) must address special care needs:

   (i) that the care receiver is assessed under the Adult Disability Assessment Tool as having; and

   (ii) that relate to the care receiver's bodily functions or to sustaining the care receiver's life; …

9. I was not provided with a copy of the Adult Disability Assessment Tool, which would indicate the precise sort of care the care recipient required. But sub-paragraph (ii) qualifies the nature of the care that is eligible to be considered in any event. The sort of care contemplated by the parliament in that provision is ordinarily provided on a face-to-face basis. Care that addresses bodily functions cannot be provided remotely. These are “hands on” tasks. Providing telephone reminders about taking medication is unlikely to fall within the range of activities contemplated by the sub-section, even where taking medication is itself necessary to sustain life. Simply stated, you have to be there in order to satisfy the requirements of the section.

10. There is one final matter. Ms Stewart questioned whether s 957 might be of assistance in this case. That section permits the Secretary to effectively waive breaks in the continuity of care where the carer otherwise satisfies the requirements under ss 953, 954 or 954A. That section does not assist because I am satisfied Ms Stewart does not otherwise satisfy the requirements under s 954A, and there is no suggestion ss 953 or 954 apply.

    CONCLUSION

11. The legislation attempts to accommodate more flexible arrangements for providing care, but there are limits. In working out the limits, I must interpret the meaning of the words in the context of the Act as a whole. I am satisfied the sort of care referred to in s 954A is care that is ordinarily provided face-to-face. In those circumstances, the applicant cannot succeed in her claim for a carer allowance.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated  13 September 2013

Date of hearing	27 July 2013
Applicant	In person
Advocate for the Respondent	Department of Human Services