Salisbury and Secretary, Department of Social Services (Social services second review)
[2023] AATA 1814
•27 June 2023
Salisbury and Secretary, Department of Social Services (Social services second review) [2023] AATA 1814 (27 June 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9696
Re:Andrea Salisbury
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member K Millar
Date:27 June 2023
Place:Adelaide
The decision under review is affirmed.
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Senior Member K Millar
Catchwords
SOCIAL SECURITY – cancellation of carer payment – whether eligible to receive carer payment – meaning of “constant care” - whether constant care was provided – decision under review is affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Secretary, Department of Social Services v Smith [2016] AATA 10
Secondary Materials
The Guide to Social Security Law
REASONS FOR DECISION
Senior Member K Millar
27 June 2023
BACKGROUND
Ms Salisbury has applied for a review of the decision to cancel her carer payment from 20 November 2022, and the decision to cancel her carer allowance from 14 August 2022, because her child (“C”), entered Voluntary Out of Home Care (“VOOHC”) on 12 August 2022.
C has highly complex care needs as a result of a chromosomal disorder which results in an intellectual disability, ADHD, autism and intermittent explosive disorder. Ms Salisbury cared for C in her home until he was accepted into VOOHC. This is care is outside of Ms Salisbury’s home and is staffed by paid carers.
The decisions to cancel her carer payment and care allowance were affirmed by an authorised review officer and by the Social Services and Child Support Division (“AAT1”) of this Tribunal. Ms Salisbury has sought a further review of these decisions.
LEGISLATION
Under s 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), where a social security payment is being paid to a person who is not qualified for the payment, the payment must be suspended or cancelled.
A person is qualified for carer payment for a child with a severe disability in the circumstances set out in s 197B of the Social Security Act 1991 (Cth) (“the Act”). Section 197B of the Act states:
(1)A person is qualified for a carer payment if:
(a)the person personally provides constant care for a person (the carereceiver) aged under 16 with a severe disability or severe medical condition; and
(b)the person has been given a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination for caring for the care receiver; and
(c) a treating health professional has certified in writing that, because of that disability or condition:
(i)the care receiver will need personal care for 6 months or more; and
(ii) the personal care is required to be provided by a specified number of persons; and
(d) the provision of constant care by the person severely restricts the person's capacity to undertake paid employment; and
(e) the requirements of subsections (2), (3) and (4) are met.
Constant care in home
(2)The constant care must be provided in a private residence that is the home of the care receiver.
The term “care” is defined in s 197 of the Act as including attention and supervision.
Under s 198AAA of the Act, if a person is receiving carer payment and ceases to provide care because the care receiver is “admitted permanently to an institution where care is provided”, the person remains qualified for carer payment for 14 weeks after the care receiver is admitted permanently to the institution.
A person is qualified for a carer allowance if, among other things, the person meets s 953(1) of the Act. As it applies to a child with a disability, s 953(1) of the Act requires the care to be provided in a private home that is the residence of the child and the carer.
CONSIDERATION
This matter concerns whether Ms Salisbury remained qualified for carer payment and carer allowance at the time a decision was made to cancel these payments.
Carer Payment
To remain qualified for carer payment, Ms Salisbury must personally provide constant care in a private residence that is C’s home.
The term “constant care” has been considered on a number of occasions by the Tribunal. In Re Milne,[1] the care required in this context was taken to be active; in actually doing something for someone like helping them dress, wash or feed, or could be passive; such as supervising them to make sure they are not injured, hungry or lost. A person is not taken to be caring for another because they undertake tasks like washing, ironing or cooking in the ordinary course of managing a household. The care in this case was considered constant in that the person was acting as a full-time carer on a more-or-less full-time basis.
[1] Re Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 at [7].
In Secretary, Department of Social Services v Smith[2] it was considered that “constant care” requires regard to the nature, intensity, frequency and period of the care needs and the carer’s activities.
[2] Smith; Secretary, Department of Social Services and (Social services second review) [2016] AATA 10 at [41].
At the time the decision was made, C was living in VOOHC in Elizabeth Vale in a private residence. C received care from two support workers from 6:00am – 10:00pm, and from one passive carer overnight. C has a specialist support co-ordinator who oversees his allied health and education needs, and a plan manager who arranges payment for his costs.
Ms Salisbury is C’s guardian, and her consent is required for medical treatment, schooling and other therapy. Ms Salisbury takes C to his medical appointments, with the two carers following behind in another car. Ms Salisbury arranges webster packs and signs an authority to administer C’s medication, and the carers record and give C his medication. C has an education plan under which he attends school for up to two hours a day with a 1:1 teacher, and a school support officer.
At the time the decision was made to cancel her payments, Ms Salisbury visited C every day for periods between one minute and three hours. While with C, she would sit on the couch and cuddle him, watch television, or try to engage in activities with him. She offered him opportunities to shower and assisted him to shower one to three times a week. Ms Salisbury checked the bed was made, ensured C had incontinence products available and did shopping and cleaning. Ms Salisbury said she would model appropriate behaviour towards C to educate the carers about his needs.
At the time, Ms Salisbury was required to provide a roster of times she would visit or provide one hours’ notice of visiting, and could not attend the residence at shift changeover times. These requirements have since changed so that Ms Salisbury can visit at any time.
Ms Salisbury said C has been missing on fifteen occasions since 2019. When C is missing, Ms Salisbury attends as soon as she can and works with the team to locate C and reassure him if she can. She provides advice on how to manage C when he is located, as even with a specialist support co-ordinator, she provides expertise on how to manage him. She finds these incidences highly distressing, and it takes the rest of the day for her to recalibrate.
In her submissions, Ms Salisbury states she provides oversight and coordination of C’s care that averages between 20–38 hours per week for phone calls, emails, travel, crisis response, report writing or sector co-ordination and this directly affects her ability to work. At the hearing, she said she has calls from the carers at least four to five times a week and up to five times a day. Ms Salisbury said she is constantly checking in with the care providers.
Between October 2022 and January 2023, Ms Salisbury was employed for 22.8 hours per week, but has been unable to attend work for more than 50% of the time due to callouts or urgent meetings, phone calls and checking in with the case coordination for C.
At the time of the previous application to the Tribunal, Ms Salisbury says she could not care for C in her current home unless modifications are made, which the National Disability Insurance Agency (‘NDIA’) would not fund because it is rental accommodation. At that time, there was ‘no end point’ to the VOOHC and when C will live with her.
Ms Salisbury has now left the family home and C and his carers live in the home. Ms Salisbury lives separately, and this care arrangement will continue for the reasonably foreseeable future. She has applied for priority government housing and is currently homeless.
According to a letter dated 5 January 2023 from the Senior Social Worker at VOOHC, although Ms Salisbury has secured paid work for 22 hours per week, the impact of C's complex needs is a barrier to her regularly working these hours or seeking work during weeks where her working hours fall below the minimum requirement. The barriers to participation in employment were identified as follows:
· C engages in daily behaviours of concern with current behaviours requiring a medical response and input from Ms Salisbury as the legal guardian.
· C engages in absconding behaviours which can result in him missing for several hours. During these incidences, which elicit a SAPOL response, Ms Salisbury is out looking for him and under a huge amount of stress.
· C is supported by two workers during all waking hours so requires a large care team. Ms Salisbury works closely with the care team responding to queries and providing support and guidance when C is escalated.
· Ms Salisbury needs to attend numerous medical appointments for C as well as have regular meetings with school, his care provider, therapy team and other stakeholders involved in C's care, including the Exceptional Needs Unit and NDIA.
· C's significant needs, and the input required from Ms Salisbury, impacts on her other two children, who have their own challenges including mental health issues. He too requires considerable support from Ms Salisbury, which further impacts on her ability to work her contracted hours.
Does Ms Salisbury personally provide constant care to C in his residence?
To remain qualified for carer payment, Ms Salisbury must personally provide the constant care, which includes attention and supervision. The constant care must occur in a private home that is C’s residence.
While Ms Salisbury spends a large amount of her time educating carers, ensuring C has the care he needs, and attending meetings regarding C’s care, she does not herself provide the constant care in a private residence, as this need is made by the carers. Ms Salisbury makes decisions about C’s care and is involved in phone calls, emails, travel, crisis response, report writing or sector co-ordination outside of the residence.
The care Ms Salisbury provides at this residence includes attention and some supervision when she is present, and some cleaning and shopping.
While the Tribunal does not doubt that Ms Salisbury devotes much of her time and attention concerned with C’s welfare, the tasks she undertook at that time in C’s residence do not amount to constant care under s 197B of the Act.
At the time the carer payment was cancelled, was the change in care temporary?
If the change to the care is temporary and is less than 63 days in a calendar year, the provisions in s 198AC of the Act may apply. In this case, C has not been able to visit or live with his mother since he entered VOOHC.
The aim of VOOHC is family reunification. However, at the time the payments were cancelled, C was in VOOHC for the foreseeable future and there was no fixed end point. As a result, the care arrangements were not temporary.
As Ms Salisbury was not personally providing constant care in C’s private residence from 12 August 2022, she was not qualified for carer payment from this date.
In the ordinary course of events, her payment is required to be cancelled or suspended from the date she ceases to qualify for the payment.[3] However, s 198AAA of the Act allows a person to continue to qualify for carer payment for a period of 14 weeks if the care receiver has been permanently admitted to an institution where care is provided for the care receiver.
[3] S 80 of the Administration Act.
It has been assumed in Ms Salisbury’s favour that institution in this sense includes a place where full time care is provided by professional carers.
As C is cared for on an ongoing basis with no fixed end point in a place, and where full-time care is provided by professional carers, s 198AAA of the Act allows Ms Salisbury to continue to be qualified for carer payment for 14 weeks after C entered VOOHC.
Carer Allowance
To qualify for carer allowance, a child with a disability must be cared for in a private residence that is the home of carer and the child. C is not living in the same residence as Ms Salisbury, and she does not meet the requirement to qualify for carer allowance.
Date of Effect
In general, if an adverse determination, such as the cancellation of a payment under s 80 of the Administration Act, is made following the person having informed of a change of circumstances, and the person is not paid an instalment of the social security payment after the occurrence of the event then the determination takes effect on the day the change of circumstances occurred.[4]
[4] Subsection 118(2) of the Administration Act.
On 12 August 2022, Ms Salisbury notified the Secretary that C had entered voluntary out of home care on 12 August 2022.[5] This would generally be the date of effect of the decision, as it was before the next instalment of her carer allowance was paid.[6] This would then mean her carer payment should have been cancelled 14 weeks after the date he entered VOOHC, which is 18 November 2022.
[5] T16, 212.
[6] T15, 197.
This is slightly different to the dates calculated by the Secretary, however little turns on this difference and given Ms Salisbury’s current circumstances, is unlikely to result in any change to the amount of carer allowance and carer payment she has been paid.
DECISION
The decision under review is affirmed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar.
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Associate
Dated: 27 June 2023
Date of hearing: 2 June 2023 Advocate for the Applicant:
Self-Represented
Advocate for the Respondent: Mr Alex Chan
Sparke Helmore Lawyers
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