Re Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 689

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 689

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2577

GENERAL ADMINISTRATIVE DIVISION		)
Re		JENNIFER MILNE

Applicant

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

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date7 August 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

......................[Sgd]........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Carer payment – Cancellation – Meaning of “constant care” – Whether applicant provides “constant care” for her father – Applicant did not provide “constant care” at the time of the cancellation – Decision affirmed  

Social Security Act 1991 (Cth), s 198

REASONS FOR DECISION

7 August 2008 Senior Member Bernard J McCabe         

1.      Miss Jennifer Milne’s father is in poor health. He lives at home with the applicant and Mrs Milne (Senior). Miss Milne, the applicant in these proceedings, was in receipt of the carer’s payment from 16 December 2003 until the payments were stopped on 7 December 2006. Centrelink decided the applicant was no longer eligible to receive the payment after the primary decision-maker considered the contents of a Health Professional Assessment form that had been completed by the applicant in respect of her father.

2. This case requires that the Tribunal consider whether Miss Milne is able to satisfy the criteria that must be met before a person is eligible to receive the carer’s payment from Centrelink. I am required to focus in particular upon the question of whether the applicant provides “constant care” for a disabled person within the meaning of s 198(2) of the Social Security Act 1991 (“the Act”). This decision is backward-looking in the sense that I am required to make an assessment of whether the applicant met the criteria at the time of cancellation in December 2006. Her entitlement since that time and into the future must be constantly re-assessed having regard to the circumstances that exist.

3.      For reasons I will explain, I am not satisfied that the applicant was providing “constant care” in the relevant sense.

Background to the application

4.      Mr Milne is a sick man. His treating doctor, Dr Chihumbiri, says Mr Milne suffers from chronic renal failure. His condition has resulted in anaemia and shortness of breath and exhaustion. He also suffers from heart disease and has experienced impaired cognitive function. There is also evidence of prostate cancer, although it appears that condition is being successfully treated. I understand the respondent has resumed payment of the carer’s payment in light of Dr Chihumbiri’s recent report.

5.      Dr Chihumbiri has only become the treating doctor relatively recently. Miss Milne explained it was difficult to access effective and consistent medical care for her parents in Katherine. She was critical of the reports prepared by the doctors whose opinions were sought in 2006. She says those reports did not accurately reflect the full range of Mr Milne’s difficulties at the time. She says she believed the reports tended to understate the degree of infirmity, and she noted that the report from Dr Brummitt in particular did not refer to her father’s asthma and a psychiatric condition. Her criticism was based on her observation of her father’s conditions at close quarters over a long period of time.

6.      Mr Milne was living at home with his wife and daughter at the time the decision to cancel Miss Milne’s payments was made. He had ceased work some time before. Miss Milne appears to have taken on the bulk of the work involved in managing the household because her mother is also elderly and sick. Miss Milne foreshadowed making an application for a carer’s payment in respect of Mrs Milne in due course.

The rules

7. Section 198(2) of the Act says a person may be entitled to receive a carer’s payment if he or she provides “constant care” to a disabled person. The expression “constant care” is not defined in the Act. These words should be given their ordinary English meaning. “Care” may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost). A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household. The requirement that the “care” be “constant” means that the person must be acting as a carer on a more-or-less full-time basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer’s payment: the benefit is paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.

Did miss milne provide “constant care” to her father during the relevant period?

8.      I am not satisfied Miss Milne could be said to provide “constant care” (emphasis added) for her father in the period leading up to December 2006 when the cancellation decision was made. I accept he was very ill at the time, although it appears his condition might have improved in the sense that he was no longer regarded by the doctors who provided reports as being terminally ill. Drs Brummitt and Scattini agreed Mr Milne did not require “constant care” (emphasis added) at the relevant time, in the sense that a carer would devote the substantial part of each day to looking after the person. Dr Carpenter suggested that might be necessary. I am satisfied the opinions of Drs Brummitt and Scattini are consistent with the evidence provided to me at the hearing, and I accept them.

9.      Miss Milne said her father had good days and bad days. His condition was fluid, she explained. There were days in the relevant period where he might be so unwell that he was practically immobile. He was also occasionally difficult to deal with, and he could be aggressive. But she explained he was usually able to feed himself and he was able to dress and use the bathroom without assistance. He slept a lot. He is no longer able to drive, but he did not give up his licence until Christmas last year.

10.     At the hearing, which was conducted by video-link, Miss Milne explained that she was anxious “to keep his independence going as much as possible”. The whole point of the carer’s payment is to assist carer’s to look after those who are no longer independent.

11.     It appears that Mr Milne’s condition has now reached the point where he requires at least constant supervision, which may well be enough to satisfy the criteria. But it is unclear that he needed constant attention at the time of the cancellation decision. I accept from time to time he may have required more intensive attention, but that was only on bad days. Without for a moment suggesting that Miss Milne’s burden was an easy one, I cannot be satisfied she met the statutory criteria at the relevant time.

Conclusion

12.     The decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.....................................[Sgd].........................................
  Michael Buckingham, Associate

Date of Hearing  10 June 2008
Date of Decision  7 August 2008
Applicant was self-represented
Advocate for the respondent     Mr B Hamilton, Centrelink.