Robert Halls and Secretary, Department of Social Services
[2014] AATA 129
[2014] AATA 129
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2576
Re
Robert Halls
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Senior Member J Toohey
Professor McCallum, MemberDate 10 March 2014 Place Sydney The Tribunal sets aside the decision under review and decides instead that the applicant qualified for carer payment at 17 August 2012 and his payment should not have been cancelled.
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Senior Member J Toohey
CATCHWORDS – SOCIAL SECURITY – carer payment – cancellation – meaning of constant care – whether applicant has constant care of his son – decision under review set aside
Legislation
Social Security Act 1991 (Cth) ss 197, 198, 198AC(4), 954(1)(d)
Cases
Milne & Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 698
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Senior Member J Toohey
Professor McCallum, MemberBackground
Mr Robert Halls’ 21-year old son, Jamie, has Down Syndrome. Mr Halls has cared for him since he and Jamie’s mother separated in 2000. In April 2009, Mr Halls was granted carer payment. At that time, he was Jamie’s full-time carer.
After a time, Jamie started spending every second weekend with his mother. Mr Halls continued to receive carer payment.
In August 2012, Jamie started spending each weekend, from Friday evening until Monday morning, with his mother. On 17 August 2012, Centrelink cancelled Mr Halls’ carer payment on the ground that he no longer qualified for the payment because he was not providing constant care to Jamie.
Carer payment
Carer payment is an income support payment to a person who provides care to another person or persons. If the person cared for is a disabled adult, the carer must provide constant care in order to qualify for the payment: see s 198 of the Social Security Act 1991 (the Act). The meaning of constant care is discussed below.
The issue
The facts are not in dispute. We have to decide whether Mr Halls qualified for carer payment on 17 August 2012 or whether the decision to cancel his carer payment was correct. It is agreed that, other than whether he provided constant care, Mr Halls qualified for the payment.
The facts
Jamie has a severe disability. In April 2009, his rating according to the Adult Disability Assessment Tool was 88.50; in August 2012 it was 69.50. There is no information before us about the significance of those scores but the respondent accepts they are “high”.
After Mr Halls separated from Jamie’s mother, Jamie lived with him full-time. Mr Halls had casual work delivering furniture but found he could not hold down a job once he was caring for Jamie full-time.
As at 17 August 2012, Jamie would spend Monday to Friday with Mr Halls, and from 5.30pm on Friday until Monday morning with his mother. He attended a day program run by Lifestyle Solutions on Mondays, Tuesdays, Thursdays and Fridays from 9.30am to 2.30pm. Mr Halls would drop him off and collect him each day. He spent each Wednesday, and a pupil-free Friday once a month, at home with Mr Halls.
There were days when Jamie would refuse to go to Lifestyle Solutions and would stay home (and still does). Mr Halls says he could not force him to go because he is “getting to be a big boy”. If he does not want to go for the day, he becomes aggressive; he starts punching himself or punching walls until Mr Halls relents and he stays home.
Mr Halls estimates that, as at August 2012, Jamie would miss four or five of the fifteen days each month he was supposed to be at Lifestyle Solutions. Centrelink documents show that the Authorised Review Officer noted in February 2013 that Jamie was meant to attend four days a week but generally was going only two. In May 2013, the Social Security Appeals Tribunal recorded that Mr Halls said Jamie attended Lifestyle Solutions “two or three times a week” but there were times he would not attend.
On other occasions, Lifestyle Solutions staff would telephone Mr Halls and ask him to collect Jamie because his behaviour was too disruptive. Mr Halls told us that Jamie knows he can “play up” and be sent home if he smacks someone else on the head. In about September 2013, he smashed two windows at the centre. Mr Halls estimates that, as at August 2012, Jamie would come home early about three times each month.
Mr Halls told us that Jamie cannot cope with deviation in his routine which means Mr Halls has to maintain the same routine. If he does not, Jamie will punch a hole in the wall, or slam the door, or scream and kick, or swear at him. He knows he can usually get his own way by punching himself repeatedly. He insists on changing his clothes up to five to ten times a day and will not wear them again until they have been washed. He has very little speech and gets frustrated when he cannot communicate his wants. He is especially unsettled on Mondays, after the weekend.
Mr Halls told us that Jamie can only be left alone briefly. Mr Halls will sometimes leave him for 10 minutes to go to the local shops but will not leave him for longer. On one occasion, Jamie started using the deep fryer while Mr Halls was in the garden and the kitchen filled with smoke. Mr Halls has to watch him in the shower and shave him. He cannot travel alone because he cannot communicate.
Jamie goes to bed around 9.30 or 10.00pm. Mr Halls says he plays with his x-box “constantly” and watches police shows on television then acts them out in his room. He gets upset if his program is not on.
Mr Halls told us he does some housework while Jamie is not at home with him. He tries to do small projects of his own at home but cannot get to them. Asked whether, in August 2012, he could have worked on the weekend, Mr Halls said he “supposed so” but he spent Saturdays, when Jamie was with his mother, doing housework and cleaning up after Jamie, and he tried to see other family on Sundays. He said he never imagined his life like this; he would like to work but he “doubted very much” that he could hold down employment during the week when Jamie was at Lifestyle Solutions because of his unpredictable attendance. He recounted one occasion when he had travelled into Newcastle but had to return when staff rang and asked him to collect Jamie early.
In September 2013, Jamie decided he wanted to live with his mother. Mr Halls agreed to the proposal. Jamie went to live with his mother and she became his Centrelink nominee. As Mr Halls describes it, she found she could not care for him. Jamie returned to live with Mr Halls at the end of December, spending one day each weekend with his mother. On the basis that he was again caring for Jamie on six days each week and so was providing constant care, Mr Halls has been paid carer payment since 31 December 2013.
The meaning of constant care
Section 197 of the Act defines care as including attention and supervision. Constant care is not defined in the Act but constant is an ordinary word and should be given its ordinary meaning. In the Australian Oxford Dictionary it means:
1. continuous (needs constant attention). 2. occurring frequently (receive constant complaints). 3. unchanging, faithful, dependable
The Guide to Social Security Law, which provides guidance to decision-makers on social security-related decisions, defines constant care as follows:
A carer is said to provide constant care if they personally provide care on a daily basis for a 'significant period' during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing [carer payment] is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities. This includes circumstances where the carer or care receiver are absent from the care situation for part of the day, but the intensity of the care required and provided during the remainder of any 24 hour period is such that it roughly equates to a normal working day.
We agree with the following statement by Senior Member McCabe in Milne & Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 698, (at para 7):
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.”
The definition of constant care in the Guide as care on a daily basis for a ‘significant’ period during each day gives practical, ordinary meaning to that expression. The Guide reflects Government policy and, for the reasons detailed by Justice Brennan in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, should be applied unless there are cogent reasons not to do so; see also Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
Drake (above) concerned the exercise of discretionary power, as opposed to statutory interpretation which is what the Tribunal is called upon to do in this case but it makes no real difference; in carrying out the Tribunal’s ultimate task of making the correct or preferable decision on the material before it, we should apply the policy unless there is very good reason not to do so.
We understand from Mr Lozynsky who represented the Secretary, that, although the Guide refers to care on a daily basis, the Secretary has a “de facto policy” by which significant care on six days each week may be considered to be constant care. No doubt this is to allow decision-makers the flexibility to deal with the range of circumstances in which carers provide full-time care to others. We have no documentary evidence concerning this “de facto policy” but understand it was the basis on which Mr Halls received carer payment up until 17 August 2012, and after 31 December 2013 when Jamie was again in his care six days each week.
As we understand it, the Secretary’s position is that care on five days of the week cannot amount to constant care; that the “de facto policy” in effect defines the limits of departure from the requirement in the Guide that care be for a significant period on a daily basis.
For Mr Halls it is submitted that it is enough that care be regular, recurrent and continuing, rather than episodic or spasmodic, and roughly equivalent to a full-time job so that the carer is unable to undertake substantial employment. It is submitted that, had Parliament intended that in order to qualify for carer payment, care must be daily, it could have said so. In contrast, it is said, Parliament specifically made it a requirement for carer allowance (which is a supplementary payment for certain carers who provide additional daily care and attention) that care and attention be provided in the home of the carer and receiver on a daily basis: s 954(1)(d) of the Act.
Was Mr Halls providing constant care?
As the Secretary’s “de facto policy” recognises, the definition of constant care in the Guide should not be applied in a purely formulaic way. Its meaning has to be considered in light of the underlying policy intent of the legislation.
For Mr Halls it is submitted that the care he was providing to Jamie at 17 August 2012 was equivalent to a full time job and prevented him from undertaking substantial employment.
As we understand the Secretary’s position, it is accepted that Mr Halls was caring for Jamie for a significant part of each day on five days each week. His evidence that he spent a significant part of each Saturday attending to Jamie’s care by way of shopping, washing and cleaning up after him, was unchallenged.
As the Guide explains, the purpose of carer payment is to provide income support to people who, because of the demands of their caring role, are unable to support themselves through substantial workforce participation. This includes periods when the carer or care receiver is absent for part of the day and care for the remainder of the day is of such intensity that it roughly equates to a full-time job.
The Guide does not define substantial employment but it may be inferred from the Act and the Guide that employment for 25 hours a week is a reasonable measure of substantial employment.
By s 198AC(4) of the Act, a person who is providing constant care who temporarily ceases to provide that care in order to undertake training, education, unpaid voluntary work or paid employment does not cease to qualify for the payment merely because of the cessation of care where it does not exceed 25 hours per week. The Guide provides that, in such cases, the carer’s qualification should be reviewed as they may no longer satisfy the constant care criterion: cl 3.6.4.70.
Looked at another way, if a person can reasonably be expected to undertake employment for 25 hours a week, she or he should be considered able to support themselves through substantial employment. We do not take that as a fixed or prescriptive measure of “substantial employment” but as a realistic and reasonable guide.
We accept Mr Halls’ evidence about Jamie’s unpredictable attendance at Lifestyle Solutions. We accept that he could not force Jamie to go if he did not want to and that he could not predict when that might be. We accept that, at 17 August 2012, Jamie was not attending Lifestyle Solutions on one to two days each week and that Mr Halls could not predict when that might be. Nor could he predict when he might be asked to collect Jamie early which was, on average, every 10 days or so.
If Jamie attended Lifestyle Solutions four days each week as planned, Mr Halls would have had 20 hours during the week, plus time on weekends, in which to undertake employment. Without the unpredictability of his attendance at Lifestyle Solutions, Mr Halls might reasonably have been considered able to undertake substantial employment. However, we find that the extent of Jamie’s unpredictable attendance made regular, substantial employment unrealistic for Mr Halls. The fact that he was unable to maintain even casual work once he was caring for Jamie lends weight to this conclusion.
Taking into account Jamie’s need for close supervision, and that he kept adult hours, we are satisfied that the intensity of care Mr Halls was providing when Jamie was at home roughly equated to a normal working day on each weekday. Realistically, to undertake substantial employment, Mr Halls would have had to work all day on Saturdays and Sundays when Jamie was with his mother. That would have amounted to roughly 15 hours a week which, combined with his caring responsibilities, would have been more onerous than most full-time jobs.
We are satisfied that, at 17 August 2012, Mr Halls was unable to undertake substantial employment by reason of the high level of care he was providing to Jamie, which care was roughly equivalent to a full-time job. We are satisfied that he was providing constant care within the meaning of the Act to Jamie and so qualified for carer payment.
Conclusion
We have come to this conclusion cautiously, and mindful of the almost infinite variety of individual carers’ circumstances. The requirement in the Guide that constant care be provided for a significant period on a daily basis – or for at least six days each week – offers not only certainty and consistency of decision-making, it also fairly and reasonably describes a measure of caring responsibilities that precludes a person from undertaking substantial employment. We do not depart from that standard lightly.
For the reasons we have given, we are satisfied that, in the particular circumstances of his case, Mr Halls was providing constant care to Jamie at 17 August 2012.
We set aside the decision under review and substitute for it the decision that Mr Halls qualified for carer payment on 17 August 2012 and his payment should not have been cancelled.
1. I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Professor McCallum, Member.
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Associate
Dated 10 March 2014
Date of hearing 18 February 2014 Solicitor for the Applicant Mr M Butt, Welfare Rights Centre Solicitor for the Respondent Mr G Lozynsky, Department of Social Security
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