Petry and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 945

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 945

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/310

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELIZABETH ANNE PETRY

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date7 November 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.  

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Carer Allowance for care of disabled adult – meaning of disabled adult – discussion of what is meant by “for an extended period” – disability arising after surgery and temporary – relevance of Guide to the Social Security Law – decision affirmed

Social Security Act 1991 ss 952, 954(1)
Social Security (Administration) Act 1999 Schedule 2 s 17(1), 17(20

Guide to the Social Security Law, point 1.1.P.230

Secretary, Department of Family and Community Services and Pascoe [1999] AATA 873
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Strauss and Secretary, Department of Family and Community Services [2005] AATA 608

REASONS FOR DECISION

7 November 2006   Senior Member L Hastwell       

1.      Elizabeth Petry (the applicant) applied to Centrelink on 7 September 2004 for a Carer Allowance (CA) with respect to the care that she was providing for her husband, Peter Petry, who had undergone shoulder surgery in May of that year.  On 21 January 2005, her claim was rejected.  On 25 July 2005 an Authorised Review Officer (ARO) affirmed the decision to reject the claim.  On 19 October 2005 the Social Security Appeals Tribunal (SSAT) affirmed the decision.  The applicant seeks a review of the SSAT decision by this Tribunal. 

legislation

2. Section 954(1) of the Social Security Act 1991 (the Act) sets out the qualification requirements for CA for a disabled adult and provides:

“954(1)A person is qualified for carer allowance for a disabled adult (the care receiver) if:

(a)      the care receiver is an Australian resident; and

(b)the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

(c)the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and

(d)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and

(f)       the person is an Australian resident.”

3.      The term “disabled adult” is defined in s 952 of the Act in the following terms:

“disabled adult means a person aged 16 or more who:

(a)       has a physical, intellectual or psychiatric disability; and

(b)       is likely to suffer from that disability permanently or for an extended period.”

4.      Under the Social Security (Administration) Act 1999 (the Administration Act) there is provision for the back-dating of CA from a date prior to the date of claim. Sections 17(1) and (2) of Schedule 2 of the Administration Act provide:

“17(1)  If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; and

(b)the person makes a claim for carer allowance within 12 weeks after the day on which the person became qualified for the allowance in the circumstances mentioned in paragraph (a);

the person’s start day in relation to the allowance is the day on which the person became qualified for carer allowance in the circumstances mentioned in paragraph (a).

(2)      If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; and

(b)the person makes a claim for carer allowance more than 12 weeks after the day on which the person became qualified for the allowance in the circumstances mentioned in paragraph (a);

the person’s start day in relation to the allowance is the first day of the period of 12 weeks ending immediately before the day on which the claim was made.”

issues

5.      The issues for the Tribunal to determine in this case are:

·whether Mr Petry is a “disabled adult” within the meaning of the legislation; and

·to determine that issue the Tribunal must consider whether at the time of the application the care receiver was likely to suffer from that disability permanently or for an extended period.

the hearing

6.      The applicant appeared by telephone link at the hearing.  The respondent (the Department) was represented by Mr Goldsworthy.  The T documents were received into evidence.  Copies of Mr Petry's medical notes from the Port Augusta Medical Centre were received by the Tribunal shortly after the hearing and were marked Exhibit A1.  The Department raised no objection to the Tribunal considering this additional evidence.

7.      A number of matters were not in dispute and are well documented in the T documents and in the medical notes contained at Exhibit A1: 

·In November 2003 Mr Petry was first diagnosed with “widespread osteoarthritis including pain in the left shoulder with painful arc and positive impingement signs”.

·In January 2004 the applicant ceased her employment and thereafter received Disability Support Pension.

·Mr Petry had physiotherapy, medication and investigations of the shoulder between November 2003 and February 2004 when after consultation with an orthopaedic surgeon, he decided to undergo shoulder surgery.  He was placed on an elective waiting list.  Rotator cuff repair surgery took place on 25 May 2004.

·On 9 September 2004 the applicant completed and sent by facsimile to the Department a claim form for CA for a disabled adult, namely her husband.  The accompanying Health Professional Assessment (HPA) form completed by Mr Petry's general practitioner indicated that in the doctor's opinion the condition was temporary and would continue for less than six months.

the applicant's evidence

8.      The applicant told the Tribunal that her husband's problems with his shoulder first began in October 2003 and those problems were exacerbated by his continued use of his arm between then and early 2004.

9.      When her husband first began to experience difficulties with his shoulder she was working full-time, but she then chose not to reapply for a contract partly because of her perceived need to care for her husband and she also suffers from disabilities.  The applicant commenced to receive Disability Support Pension in her own right as of January 2004.

10.     Her husband underwent reconstruction surgery of his shoulder in May 2004.  Thereafter she said that he remained significantly disabled until approximately February 2005 and she provided care for him on a daily basis throughout this time.

11.     She recounted that after the shoulder operation her husband was totally immobilised for a period.  He was unable to do many things for a long time.  In the phase immediately following the operation, he required assistance with showering, dressing and on occasions toileting.  His arm was immobilised in a sling for six weeks.  During that time she had to feed him.

12.     The care requirements lessened gradually as his mobility improved, but she continued to provide him with significant care until early 2005.  He could not drive at all for two to three months and so was reliant upon her for any transport.  He required assistance with dressing as he could not put his arms behind his back, and to some extent he still requires occasional assistance with dressing as he has difficulty putting his left arm behind his back.  For a short time after the operation she was responsible for the dressing on the wound.  He required physiotherapy and she had to ensure that he then did his exercises at home and regularly remind him to do them.  She described him as being extremely agitated after the operation and he was very reliant on her at that time.

13.     She first became aware of the existence of CA through a friend.  This was well after the date of her husband’s operation.  She lodged a claim for CA with the Department by facsimile on 9 September 2004.  There was a considerable delay in the Department dealing with the claim, and it was only after she lodged a complaint that she received the initial response rejecting her claim in January 2005.

14.     The applicant asked the Tribunal to accept that she had cared for her husband for an extended period of time.  She pointed out that he had been unable to work since January 2004 with the operation taking place in May 2004.

15.     A letter from the applicant to the SSAT dated 10 October 2005, which is contained at T26, provides a further description of the care that she provided to her husband during the relevant time.

16.     In the applicant's claim for CA dated 9 September 2004 (T11) at question 16 the applicant has ticked a box indicating that her husband came into her care on 25 May 2004.  She also comments in her own handwriting at question 16 “I wasn't sure how to answer this question.  I began to provide constant daily care from the date he was released from hospital – 25/5/04”.

the medical evidence

17.     The HPA form (T7) dated 1 September 2004 indicates that the condition from which Mr Petry was suffering was temporary, that the care for that condition did not commence more than six months earlier and that the condition was expected to continue for less than a further six months.

18.     The medical notes at Exhibit A1 indicate that in January 2004 the applicant's husband was complaining of pain and limited mobility in his left shoulder.  In February 2004 surgery was recommended.  On 25 January 2005 Mr Tom Savvoulidis, the treating orthopaedic surgeon, commented in a report to Dr Bhatti as follows:

“Peter was seen on the 18th January 2005.  His left shoulder is now comfortable and he has no pain.  He is back to full duties.  He does concede that he does have some discomfort when reaching behind him but otherwise he has no complaints and is very happy with the outcome of surgery.

…”

discussion of the evidence

19.     The applicant was a straightforward witness and it became evident from her evidence that her husband had been a difficult patient at times and she had found the period of his convalescence and recovery to be a difficult time.  As her husband has now developed psoriatic arthritis he has ongoing pain and mobility problems from time to time.  She still provides him with some assistance on an ongoing basis.

20.     The objective evidence suggests that the period during which the applicant’s husband required significant daily care was more limited than is perceived by the applicant.

findings of fact

21.     The Tribunal refers to the findings made in paragraph 7 hereof.  In addition the Tribunal makes the following findings of fact on the balance of probabilities:

·The period during which the applicant had to provide significant ongoing daily care to her husband commenced with the operation in May 2004.

·The applicant provided significant ongoing daily care to her husband from the time of the operation in May 2004 until late 2004 or January 2005.  The care requirements gradually lessened with time as her husband recovered from surgery and were most intense in the first three to four months after the surgery.

·In February 2005 when reviewed by his orthopaedic surgeon her husband had made a significant recovery, and although he still suffered some limitation of movement as a result of the shoulder surgery he was able to drive, he could feed and shower himself and he managed the majority of the tasks of daily living without assistance.

application of the law

22.     The sole issue for determination in this case is whether Mr Petry was a “disabled adult” within the meaning of the definition set out in the Act at the time that the applicant applied for CA. The Department has not made a determination under s 954(1)(c) of the Act, and if the applicant is successful in this application for review the matter would be remitted to the Department for further consideration of her application for CA.

23.     To be a “disabled adult” within the meaning of s 954(1) of the Act the care receiver must have a physical, intellectual or psychiatric disability, and be likely to suffer from that disability permanently or for an extended period.

24.     The term “extended period” is not defined in the legislation.  It is common ground that at the time of the application the care receiver was suffering from a physical disability.

25.     The applicant argues that she was caring for her husband from at least January 2004 until February 2005 and that should be taken to be an “extended period” within the meaning of the Act.  She says that she is therefore entitled to CA from at least the date of the application and that if back-dating is possible she should be paid CA from a date earlier than the date of lodgement of the claim.  The Tribunal has already made a finding with respect to the period of significant care as set out in paragraph 21 supra. 

26.     The Department relied upon the case of Secretary, Department of Family and Community Services and Pascoe [1999] AATA 873. In that case Senior Member Kiosoglous considered the meaning of the term “for an extended period” in the context of an application for CA for a disabled child.  He reviewed the authorities.  He noted that at the time of the application for CA, the decision-maker must determine whether it was likely that the infant care receiver would suffer from the disability for an extended period. 

27.     The reasoning of the Tribunal on that occasion is relevant to this particular case.  Senior Member Kiosoglous commented:

“Sub-section 952(a)(ii) requires the Tribunal to assess whether it is "likely" that the condition will be permanent or suffered for an extended period of time.  It is not sufficient to simply look at what actually happened, but necessary for the Tribunal to look at the situation at the time of application for the allowance and determine if at that stage it was considered "likely".  "Likely" in this context can be seen to be akin to be on the balance of probabilities, it is not to be left in the realm of possibilities.  If at the time of application it is considered likely that the condition will be for an extended period then allowance will be payable until such time as it becomes ascertainable that the condition will not persist for an extended period of time.”

28.     The Tribunal went on to find that the condition in that case was likely to last for less than 12 months and therefore was not for an extended period within the meaning of the Act.

29.     At the time of the application in this case it was the doctor’s view that the condition would last for a limited and defined period.

30.     In September 2004 when Dr Fanning completed the HPA form (T7) he described Mr Petry's condition as likely to last for less than six months.  In hindsight it is evident that he was correct as an orthopaedic surgeon was satisfied that Mr Petry had made a good recovery from surgery by January 2005.  He described him as being “back to full duties” at that time (Exhibit A1).

31.     In the circumstances the Tribunal is satisfied that at the time that the applicant lodged her claim for CA her husband was anticipated to be disabled for up to six months. 

32.     It is impossible to put a consistent minimum term on what can amount to an extended period.  In some cases a month may be an extended period depending on what is occurring during that time.  Where can the Tribunal look to guidance in this case in reaching the correct and preferable decision? 

33.     The Guide to the Social Security Law (the Guide) at point 1.1.P.230 provides the following definition of “extended period”:

“for the purposes of CA, an extended period means 12 months or more unless the carer receiver has been certified by a medical professional as being in the final stage of a terminal illness.”

34.     The electronic reference guide to the Social Security law also defines extended period for the purposes of CA in the following terms:

“Requiring care for an extended period means for at least 12 months (unless the condition is terminal).”

35.     The Tribunal is not bound by the Guide, but it is an indication of current Government policy and the Department contends that the Tribunal should be guided by the interpretation of the term as set out in the Guide.

36.     The Guide has been produced by the Department.  It is available on the internet.  Previous cases have considered the extent to which policy can be taken into account by a Commonwealth review tribunal.

37.     In the case of Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Justice Brennan discussed the role that Ministerial policy plays when an administrative decision made is faced with exercising a discretion in a case where the Minister has issued policy guidelines. In that case he commented as follows:

“These considerations warrant the Tribunal's adoption of a practice of applying lawful Ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of Ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. …

In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:

When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.”

38.     In this instance the Tribunal is not dealing with a statement of direct Ministerial policy as such, so the case is distinguishable, but the underlying statement about the importance of policy guidelines is not to be ignored.  Further, in the Tribunal’s view there appears nothing unreasonable or unjust in the policy guideline which attributes some definition to the term “disabled adult”.

39.     In the case of Re Strauss and Secretary, Department of Family and Community Services [2005] AATA 608 Justice Downes considered the role that the Guide could play when determining the meaning of a term under Commonwealth legislation. He commented as follows:

“39.… Naturally, Tribunals are frequently called upon to decide questions of law and determine the meaning of words. However, merits review tribunals such as the Commonwealth review tribunals are not exercising judicial power but executive or administrative power. They are ultimately engaged in administrative decision-making which frequently requires the exercise of discretion. This is recognised by the formula which guides their decision-making, namely that they must reach "the correct or preferable decision" (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 582). …

…

41.I have referred to the policy contained in the Act and the Guidelines. Although the Tribunal can depart from policy it should be restrained in doing so. …”

40.     The Tribunal considers that given the cases referred to and taking into account the policy contained in the Guide, a period of six months or less does not, amount to an extended period in the context of establishing whether Mr Petry was a disabled adult for the purposes of CA.

41.     The Tribunal finds that Mr Petry was not a “disabled adult” within the meaning of the Act at the time that the application was lodged.  The Tribunal affirms the decision under review.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .............J Coulthard........................................
  Associate

Date of Hearing  8 September 2006
Date of Decision  7 November 2006
Advocate for the Applicant       In person

Advocate for the Respondent   Mr C Goldsworthy

Centrelink Legal Service Branch