Reining and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 732

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 732

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0642

GENERAL ADMINISTRATIVE DIVISION		)
Re		JENNIFER REINING

Applicant

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

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date21 August 2008

PlaceMelbourne

Decision The Tribunal decides the decision under review is set aside and in lieu thereof a decision that the applicant is to be paid carer allowance for the 12 week period preceding the date on which the applicant applied to be paid the allowance.

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

Deputy President

CATCHWORDS

SOCIAL SECURITY - Social Security (Administration) Act – carer allowance – whether carer allowance should be backdated – acute onset – whether acute onset must occur within the 12 week period preceding the claim for allowance – decision under review set aside

Acts Interpretation Act 1901 s 15AB
Administrative Appeals Tribunal Act 1975 s 37

Social Security (Administration) Act 1999 s 41; Schedule 2 Clauses 3(1), 17

Bienstein and Secretary to the Department of Family and Community Services [2001] AATA 322
Bonnett and Secretary, Department of Family and Community Services [2005] AATA 1140
Cuschieri and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AAT 1999

Syron and Secretary, Department of Family and Community Services [2006] AATA 236

REASONS FOR DECISION

21 August 2008 Mr G L McDonald, Deputy President

The Application

1.      The applicant is appealing against a decision of the Social Security Appeals Tribunal granting carer allowance from 28 November 2007 rather than an earlier date.

The Hearing

2. The Tribunal has before it the documents filed for the purposes of s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).  The applicant was self-represented. The respondent was represented by Mr Faisal Bakhtiar.  In addition to both parties making written submissions, both addressed the Tribunal.

The Background

3.      On 28 November 2006 the applicant lodged a claim for carer allowance.  The applicant was granted carer allowance.  However, the applicant claimed the carer allowance should be granted from 12 weeks prior to the date of her claim.

4.      The applicant’s claim for carer allowance relates to the care she provides to her husband, Mr Carl Reining, who had initially suffered a back injury in a motor vehicle accident in 1997.

5.      Mr Reining was not hospitalised after the accident and he returned to work as an information technologist about a week later.  Initially he returned to work on a full‑time basis, taking time off for physiotherapy, thus working a 4½ day week.  After a period of time, Mr Reining began taking additional time off work to rest.

6.      In April 1999 Mr Reining underwent day surgery on his back in an attempt to improve his condition.  

7.      The operation proved unsuccessful with Mr Reining still continuing to suffer pain.

8.      Mr Reining returned to work five weeks after the operation, initially working for two to three hours a day.  Over a period of four to five weeks, Mr Reining worked a total of eight days.

9.      Mr Reining was extremely tired and unable to function after the operation.  His condition progressively worsened.

10.     Mr Reining attempted to work from home, but this arrangement was also unsustainable.  He was put on extended sick leave and remained so for almost a year before his employment was terminated.

11.     Mr Reining underwent an MRI scan in July or August 1999.  The scan showed his back condition had deteriorated as the result of the operation.

12.     At the Social Security Appeals Tribunal hearing the applicant gave evidence that her husband’s care needs at the time she claimed the allowance and in the post‑surgery period would have been similar.  However, she claimed her husband’s care needs were greater in the period after the surgery.[1]

[1] T documents, T2, page 7.

13.     The Social Security Appeals Tribunal determined Mr Reining, at the separate times of both the accident and the surgery, did not require the care he presently requires.  Neither event was deemed an ‘acute onset’ as was required by the legislation.  It was determined that the applicant did not become qualified for carer allowance at the time of either of these events.  Therefore, the applicant could not claim a back payment in carer allowance.

The Evidence

14.     The applicant submitted an MRI report, dated 27 August 1999,[2] taken after her husband’s surgery, which compared his current condition to his pre-operative condition. The report concluded Mr Reining’s condition had worsened after the surgery carried out in April of that year.

[2] Exhibit A1.

15.     An unaddressed medical certificate from Dr N Parghi, dated 18 April 2008, which stated Mr Reining’s general condition has been the same since 1999, was filed with the Tribunal but not tendered as an exhibit.  Its contents would not have assisted in the resolution of this application.

16.     The respondent relied on the T documents and its Statement of Facts and Contentions previously filed with the Tribunal.

17.     In the application form for carer allowance[3], the applicant stated she cared for her husband seven days a week, her husband could move around the house unassisted, he fell over sometimes, moved from a chair or bed with some help, often needed help during the night, sometimes lost bowel or bladder control, needed some help using the toilet, needed help to shower, needed help to dress and with grooming, and needed a lot of help with medication and treatment.[4]

[3] T documents, T4.

[4] T documents, T4, pages 29-30.

18.     A Health Professional Assessment report completed by Dr N Parghi, dated 14 November 2006, was part of the T documents.  In answer to a question which asked “Are the current needs attributable to an acute onset of the disability or medical condition“ Dr Parghi has ticked the ‘yes’ box.  It seems an employee of Centrelink telephoned the doctor to query her response.  A note, presumably made by the employee, states “10 years ago on going.  Not attributable.  Confirmed with Doctor 21/12/06 by phone, Q3 No.”[5]

[5] T documents, T3, page 16.

19.     A later Health Professional Assessment report completed by Dr Rumberg, dated 16 June 2007, also stated Mr Reining’s disability commenced more than 12 weeks ago and his care needs were attributable to an acute onset of the disability, being 30 April 1997.[6]

[6] T documents, T9.

The Legislation

20. Section 41 of the Social Security (Administration) Act 1999 (the Act) provides that a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

21.     Schedule 2, Clause 3(1) of the Act provides as follows:

If:

(a)       a person makes a claim for a social security payment; and

(b)       the person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.

22.     The Act provides the start date for carer allowance may be backdated for up to a maximum of 12 weeks prior to the date of the claim.  Schedule 2, Clause 17 provides:

(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.

The Submissions

23.     Mr Bakhtiar submitted the term ‘acute onset’ used in Clause 17 means the disability or medical condition is acquired suddenly or an existing condition is aggravated sharply to a crisis.

24.     Mr Bakhtiar relied on Bienstein where Senior Member Hallowes explores the meaning of ‘acute onset’:

The Tribunal finds that Mrs Bienstein was not a person 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. Mrs Bienstein was qualified for carer allowance and Tamara was a disabled adult care receiver but, the disability, which affected Tamara was not "due to an acute onset". The Dictionary of Scientific and Technical Terms, McGraw-Hill, Fifth Edition, defines "acute" as "... Referring to a disease or disorder of rapid onset, short duration, and pronounced symptoms". The Tribunal is satisfied that Tamara's disease was not of rapid onset, nor, sadly, is it of short duration.[7]

[7] Bienstein and Secretary to the Department of Family and Community Services [2001] AATA 322 at paragraph 17.

25.     Mr Bakhtiar further relied on Bonnett where Member Fice discusses the connection of the disability and the ‘acute onset’:

The question therefore for me to decide is what is the appropriate start day for payments of the carer allowance to Mr Bonnett? The general rule, which is set out in cl 3 of Schedule 2 of the Administration Act, is that the start day in relation to the payment of social security is the day on which the claim is made. Mr Bonnett claimed the carer allowance on 6 November 2003. That ordinarily would be the start day; except that cl 17 of Schedule 2 of the Administration Act allows the start day to be backdated in the circumstances set out in that clause. The clause does not explicitly mention a temporal connection between the date of acute onset and the date when the carer became qualified for an allowance. However, this would seem to necessarily follow because backdating of the start date is only permitted under the section where the relevant disability affecting the adult is due to an acute onset. As I understand that phrase, the acute onset itself must give rise to the disability which in turn, when combined with the qualifications for the allowance set out in s 954(1) of the Social Security Act 1991, results in the person making the claim being entitled to a carer allowance. Acute is defined in Blacks Medical Dictionary, 39^th Edition as a condition of short duration which starts quickly and has severe symptoms. Therefore, while I accept that Ms Linford’s schizophrenia had an acute onset, she did not suffer a disability as a consequence of the acute onset which required care and attention on a daily basis. Rather, it was the development of chronic schizophrenia which resulted in Ms Linford requiring daily care and attention. On the evidence, this did not occur until 1996, some 12 years after the acute onset, when Mr Bonnett claimed and received a carer allowance in respect of Ms Linford because of her schizophrenia. It follows that I cannot accept Mr Bonnet’s submissions regarding the interpretation of cl 17(2) of Schedule 2 of the Administration Act.[8]

[8] Bonnett and Secretary, Department of Family and Community Services [2005] AATA 1140 at paragraph 19.

26.     Mr Bakhtiar further referred to a departmental publication, the Guide to the Social Security Law, which provides examples of what may constitute ‘acute onset’ for the purposes of backdating a claim for carer allowance.  Clause 1.1.A52 defines ‘acute onset’ as a “disability or medical condition acquired suddenly or over a short period of time… a situation in which a pre-existing disability or condition comes sharply to a crisis.”  The guide goes on to expressly state that a “pre-existing condition that gradually becomes worse over time cannot be an acute onset.”

27.     It was Mr Bakhtiar’s submission that Mr Reining’s care needs were not attributable to an ‘acute onset’.  He did not accept either the motor vehicle accident or the subsequent operation could be deemed an ‘acute onset’.

28.     Furthermore, Mr Bakhtiar submitted the ‘acute onset’ must occur within the 12 week period prior to the application.  He submitted there was a temporal connection implied in Schedule 2 Clause 17(2)(b) and to the lodging of an application, and that the applicant lodged her application nine years after the event.  He cited Cuschieri where, while the Tribunal found expressly that the disability was due to an ‘acute onset’, it stated there was no evidence the disability arose within the 12 weeks prior to the lodgement of the claim.[9]

[9] Cuschieri and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AAT 1999 at paragraph 13.

29.     Ms Reining submitted sub-clauses 17(1) and 17(2) should not be read together.  She submitted only sub-clause 17(2) should apply to her application.  She further submitted this sub-clause did not have a time restriction, that there is no requirement to lodge a claim within 12 weeks of becoming qualified.  Ms Reining submitted that the ‘acute onset’ could therefore occur outside of the 12 week period and still be deemed the relevant ‘acute onset’ so that she could receive the back payment.

30.     Ms Reining submitted the ‘acute onset’ is the unsuccessful back surgery of 1999.  She maintained her husband’s condition worsened as the result of the surgery, that he has been effectively unemployable since and the care she provides is due to the operation.  In support of this she tendered the MRI scan report as Exhibit A1 which determines her husband’s condition is worse than before the surgery.

31.     Ms Reining also stated the terms used in the legislation and Centrelink publications were interchanged freely making it confusing to know the exact requirements were.  She tendered a Centrelink pamphlet entitled ‘Information you need to know about your claim for Carer Allowance’ as Exhibit A2.  Ms Reining pointed out the pamphlet does not state the acute onset must occur within the 12 week period prior to the lodgement of the claim.

32.     Ms Reining further relied on Syron.[10]  In this case, the carer who was the care receiver’s wife, claimed carer allowance in 2005 and was successful.  She subsequently claimed she should receive 26 weeks of back payment (as was then allowed under the Act).  The claim concerned a care receiver who had injured his knee in an accident at work in 2000.  He had surgery on his knee soon after injury and returned to work.  He eventually ceased working because of the pain in his knee and other medical conditions.  His knee condition gradually deteriorated and he became depressed as he progressively lost his independence.  The care receiver’s treating doctor gave evidence that he had chronic osteoarthritis before the injury but that the injury caused an acute flare-up which in turn caused the acute onset of the care receiver’s disability.  The Tribunal agreed the injury brought about the acute onset of the disability.  The Tribunal granted back payment for the 26 week period prior to the lodgement of the claim for carer allowance.  Mrs Reining, through a submission filed after the hearing date[11] in this matter, brought the Tribunal’s attention to the date of the acute onset in Syron and the subsequent successful claim for carer allowance.  She pointed out the acute onset in Syron occurred sometime in 2000 while the claim was granted in 2005.  The acute onset did not occur within the six months immediately prior to the claim for carer allowance but back payment for the period was still granted by the Tribunal.

Tribunal Consideration

[10] Syron and Secretary, Department of Family and Community Services [2006] AATA 236.

[11] Filed on 30 July 2008.

Is There An Acute Onset?

33.     The Tribunal is satisfied that both the accident in 1997 and the surgery in 1999 are capable of amounting to acute onset for the purposes of the Act.  The Tribunal is satisfied that although Mr Reining did attempt to go back to work after the surgery in his condition, it quickly became clear he would not be able to cope with the pain, tiredness and depression.  While Bienstein relied on the definition of acute onset as a disease or disorder of rapid onset, short duration and pronounced symptoms, this Tribunal does not see why it should be limited to such a definition.  While Mr Reining’s condition came about rapidly, there is no reason for the added requirement of short duration.  The term ‘acute onset’ refers to the sudden commencement of a condition, on the face of the term it does not expressly provide the condition must be of short duration.  Indeed the inclusion of requirement of short duration is antithetical to the payment of carer’s allowance for a person with a long term disability.  The short duration requirement imposes an undue restraint on the words used in clause 17 and is not justified. 

34.     The Tribunal accepts the treating doctors’ assessment that Mr Reining’s back surgery brought on an acute onset of his condition.[12]  While Dr Parghi initially ticked the box indicating an acute onset she changed her opinion when queried by a Centrelink employee.  When queried, Dr Parghi stated the event of 10 years ago, being around 1996, was not an acute onset.  It must be assumed Dr Parghi was referring to the motor vehicle accident.  However, when Dr Parghi was subsequently again questioned by the Authorised Review Officer, she agreed the back surgery was an acute event.[13]  Dr Rumberg nominated the 1997 accident as the acute onset.

[12] T documents, T3, page 16 and T9, page 51.

[13] T documents, T10, page 63.

35.     The Tribunal therefore accepts Mrs Reining’s claim that Mr Reining’s surgery in 1999 (after which his condition worsened[14]) may be deemed an acute onset for the purposes of the Act.

[14] Exhibit A1.

Is There A Connection Between The Surgery And Care Needs?

36.     It is clear Mr Reining’s condition worsened after surgery.

37.     Although Mr Reining did return to work for a short period of time after the surgery he was not able to continue, eventually being put on permanent sick leave.  The applicant contends that Mr Reining needed her care on a daily basis which included “rescue from work on each occasion.”[15]

[15] Submission lodged with the application for review, dated 15 February 2008.

38.     The Tribunal finds Mr Reining’s care needs are attributable to the surgery.  His condition progressively worsened after the surgery resulting in more pain than was experienced before the surgery.

Does The Acute Onset Have To Occur Within The 12 Week Period Immediately Before Lodgement Of The Claim?

39.     The Tribunal agrees with Ms Reining that the legislation is ambiguous.  It is unclear whether sub-clauses 17(1) and 17(2) are meant to be read together.  Mr Bakhtiar agreed that the Act is beneficial legislation, that if the Act was ambiguous an interpretation which was beneficial should be applied.

40. Section 15AB of the Acts Interpretation Act 1901 allows the Tribunal to consider extrinsic material where a provision of an Act is ambiguous. Section 15AB(2) lists Explanatory Memorandum and second reading speeches as some of the material the Tribunal may have regard to when interpreting legislation.

41.     Prior to the amendment of 2006, the Act allowed back payment for up to 26 weeks.  This period was shortened to 12 weeks, commencing 1 July 2006.

42.     The Explanatory Memorandum of the 2006 amendment is unhelpful.  The Explanatory Memorandum states carer allowance may be backdated if the disability is due to an acute onset.  It does not explain what is meant by the term ‘acute onset’ and does not nominate a timeframe in which the acute onset is to occur.

43.     The second reading speeches are similarly unhelpful.  The speeches do not discuss why the backdating period of 26 weeks was reduced to 12 weeks or what constitutes an ‘acute onset’ and when that acute onset needs to occur.

44.     Despite the decision in Cuschieri, the Tribunal can find nothing which supports the proposition that the acute onset must occur within the 12 week period immediately prior to the lodgement of the claim.  The Tribunal notes the Tribunal in Syron did not require the acute onset to occur in the six month period immediately prior to the claim for carer allowance.  In fact, the acute onset occurred some four years before the claim.

45.     On the face of it, sub-clauses 17(1) and 17(2) are not required to be read together.  In fact, the Tribunal determines the sub-clauses are alternatives to each other.  Sub-clause 17(1) relates to the situation where a person is qualified for carer allowance due to the disability which was caused by an acute onset, and the carer makes a claim within 12 weeks after the day of the acute onset, the start day in relation to the allowance being the day of the acute onset.[16]  Sub-clause 17(2) relates to the situation where a person is qualified for carer allowance due to the disability which was caused by an acute onset, and the carer makes a claim more than 12 weeks after the day of the acute onset, the start day to the allowance being the first day of the period of 12 weeks ending immediately before the day on which the claim was made.[17]  In both sub-clauses the person becomes qualified for carer allowance upon the acute onset which causes disability.  The sub-clauses clearly apply to two different situations.  The first being where a claim is made within 12 weeks of the acute onset and the second where a claim is made more than 12 weeks after the acute onset.  In the first case the start day is the day of the acute onset and in the second case the start day is the first day of the 12 week period immediately prior to the lodgement of the claim.

[16] Tribunal’s emphasis.

[17] Tribunal’s emphasis.

46.     The date of the claim cannot be both within the 12 week period of the acute onset and after the 12 week period of the acute onset.  That simply would not make sense.

47.     Thus, it is the Tribunal’s conclusion that sub-clauses 17(1) and 17(2) should be read separately, and apply to two different situations.

The Tribunal Determination

48.     The decision under review is set aside and in lieu thereof a decision that the applicant is to be paid carer allowance for the 12 week period preceding the date on which the applicant applied to be paid the allowance.

I certify that the forty-eight preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President

Signed:         ...............................................................

Grace Horzitski                 Associate

Date of Hearing  24 July 2008

Date of Decision  21 August 2008
For the Applicant  self represented
Solicitor for the Respondent     Mr Faisal Bakhtiar, departmental advocate