Re Walsh and Secretary, Department of Family and Community Services - [2002] AATA 881

DECISION AND REASONS FOR DECISION [2002] AATA 881

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/118

GENERAL ADMINISTRATIVE DIVISION )

Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    RONALD WALSH
  Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date4 October 2002
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes its decision that the respondent is not qualified for carer allowance.

....................(Sgd).....................
RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY – carer allowance – shared care – care on a daily basis – provision of care by commercial arrangement – use of Guide to Social Security Law

Social Security Act 1991 ss 952, 954, 955, 956, 957, 964, 965, 981
Social Security (Administration) Act 1999 Clauses 3(1) and 17(2) of Schedule 2
Acts Interpretation Act 1902 (Cth) ss 15AA
Wakefield and District Light Railway Order 1901 (UK) ss 70

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Foster v Howard [1949] VLR 311
Gorton v Repatriation Commission [2001] FCA 286
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
London County Council v South Metropolitan Gas Company [1903] 2 Ch 532
McDonald v Brown [1918] 87 LJKB 1119
Mills v Meeking (1990) 169 CLR 214
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Repatriation Commission v Gorton (2001) 33 AAR 370

REASONS FOR DECISION

4 October 2002 Mr RG Kenny, Member

Application

Ronald Walsh (the respondent) lodged a claim for carer allowance with Centrelink on 18 September 2001 in relation to the care he provided for his son, Anthony Walsh, whom he described as being intellectually disabled since his birth on 23 July 1965.
On 20 November 2001, a Centrelink officer, on behalf of the Secretary, Department of Family and Community Services (the applicant), rejected the respondent's claim. That decision was affirmed by an Authorised Review Officer on 30 November 2001. On 4 January 2002, the Social Security Appeals Tribunal set aside the decision and substituted its decision that the respondent's claim for carer allowance was to be granted. The applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 14 February 2002.
At the hearing, Mr P Kanowski, Advocate from the Advocacy and Administrative Law Team, appeared for the applicant. Mr V Brennan of Counsel appeared on behalf of the respondent.
In evidence were the T Documents (T1 – T15) (Exhibit 1) as well as the following:

Exhibit R1: a bundle of documents assembled by Mrs Mary Walsh, wife of the respondent;
Exhibit R2: a letter dated 6 August 2002 from Cheryl Byrne, Administration Officer, of Stan Lohse House, Bundaberg;
Exhibit R3: a calendar for the year 2002; and
Exhibit R4: a letter dated 27 August 2002 from the respondent.

Issues and Legislation

The qualifications for carer allowance in relation to a disabled adult are set out in subsection 954(1) of the Social Security Act 1991 (the Act) which reads:
"954 Qualification for carer allowance--caring for a disabled adult
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, and been given a score of not less than 30, under the Adult Disability Assessment Tool; 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."
In this case, the applicant has conceded that the respondent meets the requirements of paragraphs 954(1)(a), (b), (c) and (f) of the Act. Also, it is not disputed that the respondent's son suffers from Williams Syndrome, a significantly debilitating condition which has necessitated his residing at Stan Lohse House, a supportive residential service provided by Endeavour Foundation. The applicant has conceded that his circumstances meet the definition of disabled adult in section 952 of the Act which reads:
"952 Carer allowance definitions
In this Part, unless the contrary intention appears:
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."
I am satisfied that those concessions are appropriate and, therefore, the issue for determination is whether or not the respondent meets the requirements of paragraph 954(1)(d) of the Act.
Respondent's Evidence
The respondent's wife, Mrs Mary Walsh, gave evidence. She said that she and her husband had responsibility for the care of her mother who is 93 years of age and, in addition, assist in providing for the needs of their son. She said that her husband had ceased full-time employment so that he could stay at home to look after her mother and their son.
Mrs Walsh said that her son required support 24 hours per day and that this could not be provided in the family home. Accordingly, a commercial arrangement had been made with the Endeavour Foundation according to which her son lived at Stan Lohse House. However, she said that he routinely returned to the family home on weekends and on other occasions when medical treatment was required and also when, from time to time, he was suspended from Stan Lohse House because of behavioural matters. She said that, currently, he is living in the family home and has been there since 25 July 2002 because of surgical procedures he was required to undergo on 7 August 2002. She said he had stayed at home, on a full-time basis, for 203 days out of the previous 423 days prior to the hearing and that, for the months of May, June, July and August 2002, he had been at home for 82 days of the total of 123 days. She said that, while at Stan Lohse House, her son was involved in either a business service or an adult training support service from Monday to Friday and that, although her son received a disability support pension and a mobility allowance, these did not cover the full costs of maintaining him. Also, she said that, during the periods when her son was not staying at Stan Lohse House, she and her husband were still required to pay all associated costs as if he were there. She said that, in a typical fortnight, these would comprise $8 for bus contribution, $364.80 for board and $16.40 for activity levies.
Applicant's Case
Mr Kanowski submitted that there had been variations in the estimates provided by the respondent about the periods of time that his son had stayed in the family home. He referred to the initial claim for carer allowance and to the reference to the provision of care for "60% of the time" (see T5 at 27). He also referred to an e-mail message sent on 4 January 2002 by Mrs Walsh to the Social Security Appeals Tribunal (see T15 at 68) in which the estimate of the time when her son was at home was revised downwards to 47%.
In relation to paragraph 954(1)(d) of the Act, Mr Kanowski submitted that the reference to the care receiver who receives care and attention on a daily basis is one that requires the rendering of that care every day. He submitted it was not sufficient for it to be provided for about half of the time or even for a majority of the time. He referred the Tribunal to the judgement of Darling J in McDonald v Brown [1918] 87 LJKB 1119 where, at 1121, the term daily labourer was determined to be applicable to a person who worked every day.
Mr Kanowski also submitted that the reference to the term attention on a daily basis in paragraph 954(1)(d) of the Act had to be considered in the light of the surrounding provisions of the Act. In that regard, he submitted that there were circumstances specifically noted where carer allowance could continue to be paid despite the fact that a person was no longer living with the carer. One such situation was in section 955 of the Act which allowed for such continuation where the care receiver was hospitalised. Another situation was provided for in section 957 of the Act where there was a temporary cessation of care. He said that in each of these cases, there was a maximum placed on the period of time for which the payments could continue and that this was 63 days in any calendar year. He also referred to section 956 of the Act which enables, in circumstances where the carer and care receiver travel outside of Australia together, for payments to continue to be paid even though they are not living in the private home that is their residence.
Mr Kanowski noted the terms of sections 964 and 965 of the Act which preclude payment of carer allowance to more than one person even though each of those persons may be qualified for carer allowance. He submitted that, in those situations, carer allowance would be paid to only one of the carers unless there was a declaration made under section 981 of the Act which enabled the carer allowance to be proportioned between two qualified carers. However, he submitted that, in those situations, it was a pre-condition to the application of section 981 that each of the persons meet the qualifying requirements of section 954 of the Act.
Mr Kanowski made reference to the Guide to Social Security Law (the Guide) published by the applicant. He noted that several examples were referred to in the Guide insofar as it related to carer allowance but submitted that some of the examples incorrectly applied the legislation and would suggest a favourable outcome when, on the application of the provisions of the Act, this was not open. In that category he included the following example at 1.1.D.10 of the Guide:
"Example: Heather and Sam are divorced but still share care for their son James, who has Downs Syndrome. Sam provides care for 5 days a week and Heather provides care the other two days. Heather and Sam both apply for CA. A determination is made that they share care and they each receive a proportional payment of CA."
Mr Kanowski submitted that the example, while beneficial in its interpretation of the legislation, served only to enable the carer allowance to be shared between two individuals who were both qualified and who were providing care in private settings. He said that was not the case with the respondent where the sharing was between him and an institution where the institution was engaged on a commercial basis and would not qualify as a carer. In that regard, he referred to the definition of private home of the carer and care receiver as detailed in paragraph 1.1.P.426 of the Guide which reads:
"1.1.P.426 Private home of the carer and care receiver (CA) Definition
A private home can be any residence that a person regards as his or her home provided that:
·the person actually lives in that residence, and
·the person carries out his or her main domestic functions there, and
·there are NO commercial arrangements in place for the provision of personal care, such as may be found in a nursing home.
Provided that these 3 criteria are met, a private home can be a house, unit, shed, caravan, campervan, yacht or any other type of structure.
NOTE: In the case of hostels, group homes and nursing homes, it may be necessary to contact the particular hostel or home to ascertain whether or not any commercial arrangements for the provision of personal care are in place."
Mr Kanowski submitted that the purpose of the carer allowance under the Act was that of compensating persons who choose to undertake the care of family members but that the terms of the legislation were clear and that they should be given their plain meaning. He noted that the Authorised Review Officer, in his determination, had suggested that the respondent would be qualified for the carer allowance on any 24 hour period when his son was living at his home. That officer had indicated that individual applications would need to be made for any period that his son was there. Mr Kanowski submitted that this was not a correct interpretation of the relevant provisions and that there could be no payments during those periods because the terms of the Act were not met.
Finally, Mr Kanowski noted that, in its decision, the Social Security Appeals Tribunal had relied upon the terms of clause 17(2) of schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) to enable the start date of payment of the carer allowance to be backdated a period of 26 weeks prior to the date on which the claim was made. He submitted that this was not a provision which had application to the circumstances of the respondent's case because the provision enabling that backdating applied only to circumstances where there was an acute onset of the disabling condition.
Respondent's Case
Mr Brennan submitted that the term attention on a daily basis in paragraph 954(1)(d) of the Act should not be limited to care provided every day as this was far too narrow a construction. He submitted that, if this narrow interpretation were to apply, it would render nugatory the operation of sections 955, 956, 957 and 981 of the Act because, in each of those provisions, care is not provided every day and yet the qualification for carer allowance is maintained. In relation to section 956 of the Act, which enables carer allowance to be paid during an absence from Australia, he submitted that this embraced a situation where the carer was outside of Australia but the care receiver remained in Australia.
Mr Brennan noted the concession from Mr Kanowski that some of the examples in the Guide appeared to provide an interpretation which was outside the scope of the Act. In that context, he submitted that the applicant should not publish a Guide which contained such errors. Mr Brennan referred to the example of Heather and Sam (noted above) and also to the following example provided in the Guide at paragraph 1.1.D.10 which reads:
"Example: Rebecca and Joe are a couple that both care for their daughter Julie, who has cerebral palsy. Rebecca provides care for 4 days a week and Joe for 3 days. It is determined that together they provide care on a daily basis but because they are a couple the payment is made to one member only. Rebecca is granted 100% of the payment."
He submitted that these examples suggest that care may be "split" between two persons and that care need only be a percentage of the total care provided by one or other of the persons on a regular basis. He also submitted that the presence of section 981 in the Act refutes the suggestion that attention on a daily basis is only met by "every day" care. He submitted that the only practical interpretation of the term daily basis is that it is intended to qualify care providers who regularly provide care on a 24 hour basis to a care receiver and that that care need not necessarily be every day.
Mr Brennan also submitted that the existence of a commercial care arrangement with, in this case, the Endeavour Foundation, did not necessarily preclude the carer from receiving carer allowance. He referred to the entry in the Guide which provides the definition of private home (see above). He submitted that the definition only served to preclude the residence of the commercial care giver and not that of the respondent.
Mr Brennan submitted that the relevant provisions of the Act should be interpreted in accordance with the purposive approach which is reflected in section 15AA of the Acts Interpretation Act 1901 (Cth) and he referred to Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424 and Mills v Meeking (1990) 169 CLR 214. He submitted that the purpose of the carer allowance under the Act was to relieve the burden on public institutions by compensating persons who choose to undertake the care of family members or others and that, in the event that the respondent was unable to take his son on weekends, during holiday periods, when he was ill and when the Endeavour Foundation requested, the State would be financially burdened by necessarily providing for his son's care during those periods in a State-financed institution. He submitted that the care provided by the respondent alleviated the burden on the public purse and provided a more beneficial experience for the care receiver. He submitted that the provisions do not exclude the prospect of a carer being qualified merely because some form of commercial arrangement is in place and that the purpose of the legislation is to exclude persons from seeking to exploit the qualification for carer allowance by making a claim on the Department but providing no actual at-home care. He submitted that, if the legislature had intended to exclude a care provider who provided care in combination with a person who is employed under a commercial arrangement, the intention would have been clearly stated in the Act.
Finally, Mr Brennan submitted that the respondent exercises the care responsibility for almost 50% of the time in the family home and has been forced to surrender his full-time employment for the purposes of doing so. He submitted that the respondent qualified for 100% of the carer allowance or that, in the alternative, a declaration should be made pursuant to section 981 of the Act providing for the respondent to receive a proportion of the carer allowance reflected in the extent to which he undertook the caring responsibility.
Consideration
The letter from Cheryl Byrne (Exhibit R2) shows that, in the period from the beginning of July 2001 until the date of hearing on 27 August 2002, the respondent's son was absent from Stan Lohse House for 201 out of 423 days. That same number of days is recorded in the calendar as being periods when care was provided by the respondent at his home (Exhibit R3). Exhibit R3 also indicates that in all but three of the weeks during that period of 14 months, the respondent's son spent some time at the respondent's home with the amount varying from 1 day on 8 occasions; to 2 consecutive days, mostly on weekends, on more than 20 occasions; and to several longer periods of 3, 4 or up to 27 days, consecutively, on other occasions. The evidence is consistent with the respondent's son, over those 14 months, spending approximately 48% of the time in the family home and the remainder of the time at Stan Lohse House.
The provisions relating to the qualification for and payability of carer allowance are set out in Part 2.19 – Division 2 of the Act. Insofar as relevant, the provisions read:
"Qualification for carer allowance-caring for a disabled adult
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, and been given a score of not less than 30, under the Adult Disability Assessment Tool; 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.
Qualification for carer allowance-hospitalisation
955.(1) If:
(a) a person (the carer) is participating in the care of a disabled child, or a disabled adult, (the hospitalised person) in hospital; and
(b) it is reasonable to assume that, if the hospitalised person were not in hospital, one or more persons would qualify for carer allowance for the hospitalised person or for the hospitalised person and another person; and
(c) either:
(i) the hospitalised person is terminally ill; or
(ii) it is reasonable to expect that the hospitalised person will reside in the private home of the carer and the hospitalised person upon leaving hospital;
the one or more persons who would qualify for carer allowance as mentioned in paragraph (b) qualify for carer allowance.
Limit on qualification under subsection (1)
955.(2) However, the period, or the sum of the periods, for which the one or more persons can be qualified under subsection (1) is 63 days in any calendar year.
Absence from Australia
956. During any period of absence from Australia:
(a) throughout which Division 2 of Part 4.2 applies to the person; and
(b) that is before the end of the person's portability period for carer allowance (within the meaning of that Division);
the person does not cease to be qualified for carer allowance merely because the care and attention of the care receiver or care receivers is not provided in a private home that is the residence of the person and the care receiver or care receivers.
Effect of cessation of care etc. on carer allowance
Continuation of allowance where temporary cessation of care
957.(1) Subject to subsection (3), if:
(a) a person is qualified for carer allowance because a care receiver or care receivers are receiving care and attention on a daily basis; and
(b) the care receiver or care receivers temporarily cease to receive care and attention that would qualify the person for carer allowance;
the person does not cease to be qualified for carer allowance merely because of that cessation.
Continuation of allowance after hospitalisation-section 955 ceases to apply
957.(2) Subject to subsection (3), if:
(a) a person is qualified for carer allowance under section 955 because the person or another person is participating in the care of a disabled child or disabled adult in hospital; and
(b) apart from this subsection, the person would later cease to be qualified for carer allowance under that section; and
(c) the person would not cease to be qualified for carer allowance if the disabled child or disabled adult were receiving care and attention on a daily basis;
the person does not cease to be qualified for carer allowance merely because of the lack of receipt of that care and attention.
Limit on subsections (1) and (2)
957.(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.
Cessation of care in order to undertake training etc.
957.(4) If:
(a) a person is qualified for carer allowance for a care receiver who is a disabled child or for care receivers who are 2 disabled children; and
(b) the care receiver or either or both of the care receivers then are, or are likely to be, receiving education, training or treatment (other than treatment in hospital) for a period; and
(c) during the period the care receiver or care receivers are not receiving the care and attention that would qualify the person for carer allowance; and
(d) subsection (1) does not apply to the period;
the person does not cease to be qualified for carer allowance during the period merely because of the lack of receipt of that care and attention.
Carer allowance not payable to 2 people for the same care receiver or care receivers unless declaration made
964. If:
(a) 2 persons who are not members of the same couple are each qualified for carer allowance for the same care receiver or care receivers; and
(b) the Secretary has not made a declaration under subsection 981(1) in respect of carer allowance for the care receiver or care receivers; and
(c) one of the persons is receiving carer allowance for the care receiver or care receivers;
carer allowance is not payable to the other person for the care receiver or care receivers.
Carer allowance not payable to more than one member of a couple
965.(1) Subject to this section, if one member of a couple is receiving carer allowance for a care receiver or care receivers, carer allowance is not payable to the other member of the couple for the same care receiver or care receivers.
965.(2) If:
(a) the Secretary is satisfied that each of the members of a couple is qualified for carer allowance for the same care receiver or care receivers; and
(b) each of them has made a claim for carer allowance (whether or not one of them is receiving carer allowance);
the Secretary is to make a declaration:
(c) stating that the Secretary is satisfied that each of them is qualified for carer allowance for the care receiver or care receivers; and
(d) naming one of them as the member of the couple to whom carer allowance is payable for the care receiver or care receivers.
965.(3) If such a declaration is made, carer allowance for the care receiver or care receivers to which the declaration relates is not payable to the member of the couple who is not named in the declaration as mentioned in paragraph (2)(d).
965.(4) The Secretary is to give notice of the declaration to each of the members of the couple involved.
965.(5) In making the declaration, the Secretary must have regard to whether one member of the couple is the primary carer for the care receiver or care receivers.
Rate of carer allowance
Daily rate
974.(1) A person's rate of carer allowance is a daily rate worked out by dividing the person's fortnightly rate of carer allowance by 14.
Fortnightly rate
974.(2) Subject to subsections (3) and (4), a person's fortnightly rate of carer allowance for a care receiver or care receivers is $85.30.
Reduced fortnightly rate if care receiver undertakes training etc.
974.(3) If on one or more days (each of which is a training day) in an instalment period in relation to carer allowance a person would have stopped being qualified for carer allowance apart from subsection 957(4) (care receiver undertakes training etc.), the person's fortnightly rate of carer allowance for that period is to be reduced by the following amount:
Number of training days x Daily rate of carer allowance applicable to each training day
Rate where carer allowance shared
974.(4) If:
(a) 2 people who are not members of the same couple are each qualified for carer allowance for the same care receiver or care receivers; and
(b) the Secretary has made a declaration under subsection 981(1) in respect of carer allowance for the care receiver or care receivers;
the person's rate of carer allowance is the share specified in the declaration under paragraph 981(1)(b) of the carer allowance rate that would otherwise apply in respect of the care receiver or care receivers.
Secretary may make declaration where 2 people are qualified for carer allowance for the same care receiver or care receivers
981.(1) If the Secretary is satisfied that 2 people who are not members of the same couple are each qualified for carer allowance for the same care receiver or care receivers, the Secretary is to make a declaration:
(a) stating that the Secretary is satisfied that the 2 people are each qualified for carer allowance for the care receiver or care receivers; and
(b) specifying the share of the carer allowance for the care receiver or care receivers that each of the 2 people is to receive.
981.(2) If the Secretary makes a declaration under subsection (1), the Secretary is to give each of the 2 people involved notice of the declaration."

In evidence were extracts from the Guide published by the applicant. It provides guidance to those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines of the kind referred to above in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86. In this case, there is no material before the Tribunal to indicate that the Guide should not be applied.
The provisions relating to carer allowance were enacted in 1999 [Act No 13 – s 3, Sch 2, Part 1(7)]. Those provisions and the Explanatory Memorandum which accompanied them make it clear that the purpose of the legislation is to ensure that those who are involved in providing care for a disabled adult, who is a family member, are given financial assistance in that regard. Where the qualifying criteria for payment of carer allowance are met, the allowance will be paid for 100% of the year and, where one person is qualified, that person will receive the allowance. The provisions in the Act also enable that person to continue to receive the allowance during periods when care is not actually provided. Section 955 of the Act so provides in the case of a period of hospitalisation; section 956 so provides in circumstances where the carer and/or the care receiver (see Explanatory Memorandum at page 30) are absent from Australia; section 957 so provides in relation to periods of temporary cessation for up to 63 days in any calendar year or where certain forms of training are undertaken; and section 964 so provides in the case of persons who are not members of the same couple, who are each qualified, and where no declaration has been made under subsection 981(1) of the Act. The provisions also enable the carer allowance to be shared between qualified carers so that payment of the allowance continues through 100% of the year in accordance with the proportion determined in a declaration under subsection 981(1) of the Act.
Mr Brennan's submission was that the respondent was qualified not only during the periods when his son was resident in his private home but also for the periods when he had returned to Stan Lohse House. Subsection 954(1) of the Act makes provision for a person to qualify whilst the care receiver is in the private home. Sections 955 to 957 of the Act make provision for the extension of qualification in periods when the temporal connection with the home is broken by reason of hospitalisation, absence from Australia or temporary respite for up to 63 days. In this case, sections 955 and 956 do not arise and, in relation to section 957, I am satisfied that the return by the respondent's son to Stan Lohse House could not be described as a temporary cessation of the provision of care and attention by the respondent. When sections 954 to 957 are read together, they preclude the inference that a person may be qualified whilst not providing care and assistance outside of the home or outside of those specific circumstances of extension. It cannot be said that the respondent's son is receiving care and attention from the respondent during the periods while he is at Stan Lohse House. It follows that the respondent is not qualified for carer allowance during the periods when his son was actually staying at Stan Lohse House.
It is also the case that Stan Lohse House is not able to be paid the carer allowance because it does not meet the definition of private home in the Guide (see above) because a commercial arrangement is in place between the respondent and the Endeavour Foundation in that regard. However, that commercial arrangement relates only to the terms upon which the respondent's son will stay at Stan Lohse House and not at the respondent's home. On one reading of the definition, the mere existence of the commercial arrangement would also impact on the status of the respondent's residence as being a private home. That is because the definition requires that there be no commercial arrangements in place for the provision of personal care. It doesn't specifically provide that the commercial arrangement has to be associated with any particular residence. Nevertheless, the tenor of the definition is that there be no commercial arrangement in relation to a place such as the respondent's home and, on that basis, I am satisfied that his home is not excluded because of the commercial arrangement with the Endeavour Foundation for Stan Lohse House.
The alternative submission of Mr Brennan is that the respondent qualifies for carer allowance on the days when he provides care and attention to his son in his home. The issue is whether that situation is encompassed by paragraph 954(1)(d) of the Act.
The submission of Mr Kanowski is that the care and attention provided by the respondent has not been provided on a daily basis because it is not provided every day. The Act provides no guidance on the meaning of the term daily basis but the following definition of the term and associated examples are set out in paragraph 1.1.D.10 of the Guide:
"1.1.D.10 Daily basis (CA)
Definition
For the purposes of CA, daily basis means that the care receiver must be receiving care from the carer (either alone or with others in a shared care situation) on a continuing basis i.e. every day. This is subject to periods when the carer may take periods of temporary cessation of care.
Example: Mary cares for her mother six days each week and uses temporary cessation of care one day a week to give herself a break from caring. Mary would therefore be seen to be providing care on a daily basis.
Example: Rebecca and Joe are a couple that both care for their daughter Julie, who has cerebral palsy. Rebecca provides care for 4 days a week and Joe for 3 days. It is determined that together they provide care on a daily basis but because they are a couple the payment is made to one member only. Rebecca is granted 100% of the payment.
Example: Sue cares for her father two days each week with no other carer providing care for the remainder of the week. Sue is not providing care on a daily basis and would not meet this requirement.
Example: Heather and Sam are divorced but still share care for their son James, who has Downs Syndrome. Sam provides care for 5 days a week and Heather provides care the other two days. Heather and Sam both apply for CA. A determination is made that they share care and they each receive a proportional payment of CA.
Care provided occasionally to deal with an illness or temporary medical crisis does NOT satisfy the eligibility requirements for CA."
Mr Kanowski has submitted that, to meet the requirements of the Act, care must be provided every day subject to the other provisions in the division, in particular sections 955 to 957 which are noted above. He made reference to the judgement of Darling J in McDonald v Brown (see above) to support his contention that the term daily means every day. That case was concerned with the interpretation of the Wakefield and District Light Railway Order 1901 (UK) pursuant to section 70 of which a proper and sufficient service of carriages was to be provided for the use by, inter alia, daily labourers. Darling J expressed the opinion that a daily labourer was "a man who, by the terms of his engagement or the course of his labour, is not only a labourer, but one who works every week day and day by day" (at 1121). However, in the same case, Avory J expressed the opinion that the term daily labourer applied "to those working only three or four days a week, if they are artisans, mechanics, or daily labourers who may be described as workmen going to or returning from their work, which means manual labour" (at 1122). Also, Atkin J held that the term daily labourer was limited to men who "with some substantial regularity, support themselves by manual labour". As I read that case, it does not support the contention that the phrase on a daily basis means "every day".
33. In Repatriation Commission v Gorton (2001) 33 AAR 370, the Full Federal Court (Heerey, Emmet and Allsop JJ) considered the meaning of the term daily in the context of the phrase daily consumption of alcohol as that phrase is used in a Statement of Principles as published by the Repatriation Medical Authority. The Court accepted as correct the construction adopted by the primary judge, Stone J, who referred to the matter in the following way:
"Prima facie the word `daily' means `every day', London County Council v South Metropolitan Gas Company [1903] 2 Ch 532 per Joyce J at 537-538. However, as Barry J commented in Foster v Howard [1949] VLR 311 at 311, it is an adjective `the precise meaning of which is to be ascertained from the context in which it is used and particularly the substantive which it qualifies'. In my opinion, the precision which the term conveys will differ depending on whether it is used prescriptively or descriptively. A doctor's instructions that medicine is to be taken daily may easily be understood as meaning every day. However, we would not generally cavil at the description of a doctor's daily visits to a hospital if he did not generally go on Sundays. We would still regard it as accurate to describe an athlete as training daily even though it turned out that she missed a number of days a year. I do not accept that the phrase, 'daily consumption of alcohol' in Instrument 83 could only apply to a veteran who drank every day without exception." (at paragraph 27)
Stone J then accepted the term just about daily as being sufficient to satisfy a requirement that consumption be daily. In the Full Court, Heerey J, with whom Emmet and Allsop JJ agreed, also referred to the Oxford English Dictionary meaning of daily where it is expressed as: "Every day, day by day. Often in a looser sense: Constantly, always, habitually". His Honour then said (at 382):
"One of the examples given of that latter usage is from Macaulay's History of England (1848): 'He continued to offer his advice daily, and had the mortification to find it daily rejected'. A reader would not take Macaulay as meaning literally every day, seven days a week, 52 weeks a year."
I am satisfied that it is the prima facie meaning, as noted by Stone J, of daily that is applicable in this case and that an element of continuity is required before care and attention can be described as being given on a daily basis. The definition of daily basis in paragraph 1.1.D.10 of the Guide is in those terms. It refers to providing care on a continuing basis, uses the term every day and provides the examples listed above. I am satisfied that the requirement will not be met where the care and attention is given on an intermittent basis, a regular basis or even a frequent basis. Further, the meaning ascribed to the daily consumption of alcohol in Gorton (above) ie just about daily will not suffice for the purposes of paragraph 954(1)(d) of the Act because the Act makes specific provision for various forms of severance of the care regimen in sections 955 to 957 and, in the case of temporary cessation, does so by providing a limitation on the number of days for which the carer allowance may continue to be paid.
A further matter referred to in the definition of daily basis in the Guide is that, when care is provided occasionally to deal with an illness or temporary medical crisis, the qualifying criteria are not met. The term occasional is not defined in the Guide but the Concise Oxford Dictionary gives the following meaning:
"arising out of, made or meant for, adapted for use on, acting on, special occasion(s); happening irregularly; as occasion presents itself; coming now and then, not regular or frequent."
In the respondent's case, the entries in Exhibits 2 and 3 reveal that periods in the family home are both regular and frequent, comprising periods of varying length and totalling some 48% of the time in the 14 months prior to the hearing. In that situation, the evidence is not to the effect that the respondent's son stays only on an occasional basis with the respondent. However, some of those periods, including the one immediately preceding the day of the hearing, arose because of the need for the respondent's son to undergo medical treatment and would be embraced by the exclusionary reference in the Guide.
During the days when his son is with him, the respondent provides care and attention on each of those days. However, the intermittent rather than continuous nature of the periods of providing that care and attention remove the characteristic of it being on a daily basis as required by the Act. I am satisfied that the respondent is not qualified to receive carer allowance in the periods when he provides care and attention to his son in his own home
Decision
The Tribunal sets aside the decision under review and substitutes its decision that the respondent is not qualified for carer allowance.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  27 August 2002
Date of Decision  4 October 2002
Counsel for the Applicant        Mr VG Brennan
Solicitor for the Applicant         Welfare Rights Centre
Solicitor for the Respondent    Mr P Kanowski, Departmental Advocate