SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and RYAN CALLAGHAN
[2010] AATA 506
•7 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 506
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4693
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
RYAN CALLAGHAN
Respondent
DECISION
Tribunal M J Carstairs, Senior Member and
Dr M Denovan, MemberDate7 July 2010
PlaceBrisbane
Decision The Tribunal sets aside the decision under review as it relates to carer payment and substitutes the decision that Ryan Callaghan was not qualified to receive that payment.
As to the starting date for payment of carer allowance, we affirm that payment should start from 7 May 2009.
...................[Sgd]...........................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Carer payment – Carer full-time high school student – Not providing constant care for a care receiver – Not qualified for carer payment – Decision set aside.
SOCIAL SECURITY – Carer allowance – Start date of payment – Not prevented from lodging claim form – Decision affirmed.
Social Security Act 1991 (Cth), ss 197, 198, 198AC
Social Security (Administration) Act 1999 (Cth), s 13
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Re Secretary, Department of Social Security and Mari Retallack (AAT 12978, 11 June 1998)
Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461
REASONS FOR DECISION
7 July 2010 M J Carstairs, Senior Member and
Dr M Denovan, Member1. Ryan Callaghan (referred to by his first name in these reasons) cares for his mother, Suzanne Callaghan. On 7 May 2009, Ryan lodged a claim for carer allowance and carer payment. Centrelink decided that Ryan was eligible only for carer allowance. However, the Social Security Appeals Tribunal on review decided that Ryan qualified for carer payment in addition to carer allowance, both payable from 7 May 2009.
2. The Secretary has sought further review of that part of the Social Security Appeals Tribunal decision that granted Ryan carer payment. The Secretary does not dispute Ryan’s entitlement to be paid carer allowance. Ryan also has sought review. He wants reviewed the starting date of both payments, contending that he should be paid from 18 March 2009, the date his mother first contacted Centrelink to enquire about his eligibility.
LEGISLATIVE SCHEME
3. The rules for determining eligibility for carer payment are contained in sections 197 and 198 of the Social Security Act 1991 (“the Act”). To be eligible to receive carer payment a person must, amongst other things, provide “constant care” for a care receiver.
4. The rules for working out the “start day” for a social security payment are contained in the Social Security (Administration) Act 1999 (“the Administration Act”). Payments start on the day the claim is made, provided a person is qualified for the payment on that day. If a person contacts Centrelink in relation to a claim and then claims in writing within 14 days, the claim is deemed to have been made on the day of contact.[1] Backdating of carer payment up to 12 weeks prior to the claim is permitted, provided the carer became eligible for the payment during that period on the ground of care being provided for a disabled adult who had suffered an acute onset of disability.[2]
[1] Section 13 of the Administration Act.
[2] Schedule 2, cl 17 of the Administration Act.
ISSUES
5. The pivotal issue with respect to the Secretary’s application is the question of whether Ryan provides “constant care” for his mother.
6. In relation to the start date, the issue is whether there are grounds for a date earlier than 7 May 2009. These must be grounds identified in the Administration Act.
Issue 1: Does Ryan Callaghan provide constant care for his mother?
7. Mrs Callaghan suffers from Sjogren’s syndrome, fibromyalgia, psoriasis and major anxiety depression. She takes medications to relieve pain associated with the first three conditions.[3] It is not in dispute that Mrs Callaghan is a “care receiver” within the meaning of subsection 198(2)(a)(i) of the Act.
[3] Report of Dr Jeffrey Philips, in Exhibit R3.
8. Mrs Callaghan, we note, has represented her son in the applications for review at the Social Security Appeals Tribunal and at this Tribunal. We were told ahead of the hearing that neither she nor Ryan wished to attend in person. They participated by phone, with Mrs Callaghan presenting the case and questioning witnesses where relevant. Ryan indicated he was attending on another telephone, but did not intervene in the discussions at any point in the hearing. Mrs Callaghan told us that she and Ryan would rely upon materials they had filed, which included Ryan’s written statement headed “Decision Under Review”,[4] and other materials (mainly medical records).
[4] Exhibit R3.
9. In deciding the case we have relied on the above materials. We have also relied upon the outline of evidence given by Mrs Callaghan to the Social Security Appeals Tribunal, and on the documents in the s 37 statement which the Secretary was required to file. Mr Hamilton, who appeared on behalf of the Secretary, objected to Ryan and Mrs Callaghan attending by telephone, but had not sought to summon attendance. We would simply make the observation that the Tribunal routinely conducts hearings by telephone, especially when people live at a distance from Brisbane and would be inconvenienced by travel.
10. We will deal firstly with the documentary materials, including the information provided when Ryan claimed carer payment and carer allowance. At that time, he was a full-time school student in grade 12, undertaking his final year of studies. In the claim form, Ryan stated that he had been caring for Mrs Callaghan seven days a week since 2004. He also indicated that his mother required (amongst other things) oversight of her medication. With respect to a number of other tasks, including eating, showering and toileting, he indicated that his mother carried these out unassisted. Mrs Callaghan’s doctor, Dr McConachie, confirmed that Mrs Callaghan was continent, largely independent in self-care and mobility, and not cognitively impaired.[5] However, the doctor stated that Mrs Callaghan showed signs of depression, aggression and memory loss, and was at risk of self-harm.
[5] T6, p 69.
11. Because Ryan was aged less than 18 years, Centrelink organised for an assessment by a social worker, Ms Pauline Stewart. She carried out a home visit. In her oral evidence, Ms Stewart said that she waited for Ryan and Mrs Callaghan to return home by car and so observed on their return that Mrs Callaghan alighted from the car and was able to walk up stairs to the house unaided. She also observed that once inside the house, Mrs Callaghan was able to sit and rise from a chair unaided, and could move about the house without assistance.
12. Ms Stewart said that she is experienced in conducting such social work assessments. Mrs Callaghan told Ms Stewart that Ryan wakes her in the morning, prepares breakfast for them both and rinses the crockery. Ryan also keeps the yard tidy, cleans up after the family dog and hangs out the washing. Mrs Callaghan told Ms Stewart that during the school day she stayed at her mother’s house, and Ryan may check on her at lunchtime if need be. Ms Stewart confirmed in her oral evidence that no mention was made to her by either Ryan or Mrs Callaghan of Mrs Callaghan suffering vomiting and choking attacks as now claimed. Ms Stewart assessed that there was nothing for her to follow up or report upon, as there was no evident signs of the requisite level of disability, nor the care provision required for carer payment.
13. The only other evidence in relation to the nature of the care Ryan provides for his mother comes from Mrs Callaghan and letters from Ryan. Mrs Callaghan told the Social Security Appeals Tribunal that one aspect of the care Ryan provides for her is the supervision of her medications. She said that without such supervision, she does not take her medication appropriately or regularly, and in the past had taken unintentional overdoses because of her forgetfulness. She said Ryan monitors her medication before and after school each day and also visits her at lunchtime. We were not provided with any medical evidence to support Mrs Callaghan’s contention that she has overdosed on medications in the past.
14. We have referred to general practitioner Dr McConochie’s report indicating that Mrs Callaghan was a risk to herself “psychiatrically”.[6] However, there was little medical evidence that the degree of care Mrs Callaghan alleges Ryan provides for her is in fact required. This is despite Mrs Callaghan forwarding to us bundles of her medical records from various medical practices and hospital attendances, as well as extracts from the internet about the nature of her syndrome.
[6] T6, p 74.
15. We did have the advantage of two written statements from Ryan, one (unsigned) lodged on 21 December 2009,[7] and the other (signed) dated 31 May 2010.[8] In the latter statement, the care Ryan provides for his mother was described as follows:
In caring for my mum its full time to me examples of this being strict medicine control strict self safety, massaging particular areas of pain, getting hot packs, cold packs for migraines, helping her by hitting her back during vomiting episodes as she chokes and panics trying to breathe, that's a regular occurrence for me cleaning it up getting bags or buckets for her to use, keeping tabs when she’s like this there’s new medication and extra’s required and I have to be there so I can keep track of what medication she brings up and then re-administer to her meds. Taking her to appointments after appointments tests after tests fortnightly visits to doctors so I know what she gets prescribed so I can insure her safety in taking the required amount. She's a risk driving as she is having memory loss forgetting things in front of her … she’s, even had a lots of falls requiring stitches, concussions and also me having to call an Ambulance at these times.
[7] Exhibit R2.
[8] Exhibit R3.
16. We make the observation that this suggests a level of care being required well beyond what was stated at the time of the claim in May 2009. Mr Hamilton submitted that little, if any, weight should be given to these statements as their authenticity is questionable. We did doubt their authenticity, not only because the claims now made go well beyond what was previously stated (including in evidence to the Social Security Appeals Tribunal) but also because Ryan, at a number of points, refers to himself in the third person. It seemed to us more likely than not that these statements were written by Mrs Callaghan.
17. This of course does not make them untrue accounts, but we are troubled by the inconsistency between the current, rather florid, account of symptoms and past accounts. We also had concerns that other documents Mrs Callaghan had lodged, which purported to be high school records, had been tampered with (see below). Consistent with this conclusion is the evidence of the social worker, Ms Stewart, who told us that Mrs Callaghan answered most of the questions she directed to Ryan.
18. Even though the statements may not be Ryan’s, we considered whether to accept as credible the information contained in them, namely that Ryan was providing constant care for his mother.
19. We first considered the fact that Ryan was attending school full-time when he claimed carer payment. In that regard, the Tribunal decision of Re Secretary, Department of Social Security and Mari Retallack (AAT 12978, 11 June 1998) dealt with somewhat similar circumstances, albeit with a role reversal. In that matter, the Tribunal held that a mother was not providing constant care for her daughter because of the child’s attendance at school between 8.30 am and 3 pm on most week days. In deciding whether constant care was being provided, the Tribunal considered that the fundamental question concerned the amount of time a carer is “freed up" for other things.
20. It was submitted by Mrs Callaghan that Ryan had many absences from school due to a need to care for her. Mr Craig Forknall, acting deputy principal at Ryan’s high school, gave evidence that the documents Mrs Callaghan had tendered referring to Ryan’s absences from school were not authentic, not being on the official letterhead. Those documents indicated numerous absences on grounds that Ryan was “caring for mum”; however we prefer the evidence of Mr Forknall that actual school records show that of the considerable number of days Ryan was absent, only 20% were on grounds of caring for his mother. The remainder were due mostly to Ryan being unwell. The evidence indicates that the time Ryan spent with his mother was determined largely by Ryan’s availability and only by Mrs Callaghan’s needs on intermittent occasions, such as when she was unable to drive herself to a medical appointment or when she had vomited.
21. The Act provides for carers to have some time to themselves. Section 198AC provides respite for a maximum of 63 days a year to persons receiving carer payment. Sub-section 198AC(4) provides for a person in receipt of carer payment to temporarily cease to participate in the care in order to undertake training, education, unpaid voluntary work or paid employment—they do not lose their benefit provided such activity does not exceed 25 hours per week. However, these provisions cannot be construed in such a way as to enable a carer to rely on "unused" respite time to expand the 25 hour time for non-carer activity provided for by sub-section 198AC(4).[9]
[9] See Re Secretary, Department of Social Security and Mari Retallack (AAT 12978, 11 June 1998) at [17]. Amendments made to the Act subsequent to this decision are not relevant to a discussion of “unused” respite time.
22. Ryan’s normal school hours were from 8.45 am to 3 pm. No doubt in addition to school attendance, Ryan would have needed to spend a significant time after school studying. This was, after all, his grade 12 year. He was also playing football. We note that Ryan’s first statement indicated that he did not care for his mother on Fridays; he studied that day. We doubt that Ryan was limited to studying on Fridays after school. However, the more substantive problem for Ryan succeeding in his claim is the nature of the care Ryan provides for his mother.
23. We were told that Ryan checked in on her at lunchtime each school day. The “care” that is relevantly provided for carer payment can be supervisory; however it must occur in the residence of the care receiver. Ryan’s time accompanying his mother to school in the car, and seeing her over the school lunch hour (but not in her home) would not count towards that care.
24. We also note the reliance placed upon Ryan carrying out certain household chores. The Tribunal has previously held that time spent on household chores is not regarded as giving care for the purposes of the Act. In Re Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 at [7], Senior Member McCabe said:
Section 198(2) of the Act says a person may be entitled to receive a carer’s payment if he or she provides “constant care” to a disabled person. The expression “constant care” is not defined in the Act. These words should be given their ordinary English meaning. “Care” may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost). A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household. The requirement that the “care” be “constant” means that the person must be acting as a carer on a more-or-less full-time basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer’s payment: the benefit is paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.
25. The Guide to Social Security Law provides assistance for decision makers in matters such as this. Section 1.1.C310 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 CP 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.
26. Departmental policy should be applied by administrative decision makers unless there are cogent reasons for not doing so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Further, in Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461, the Federal Court said that in determining who has an entitlement to social security benefit, if there is any relevant government policy guidance, then appropriate regard should be paid to it. The time and intensity of the care provided by Ryan is not, on the evidence before us, of a nature that equates to a normal working day. The Tribunal considers that there are no cogent reasons for departing from departmental policy in this case.
27. We are aware that Ryan completed his school study in 2009. No evidence was lead as to what Ryan is now doing. At one point in her submissions, Mrs Callaghan acknowledged that it may be difficult to establish Ryan’s entitlement to benefits while he was at school, but said that her care needs are substantial and Ryan would qualify now. However this would need to be the subject of a new claim, supported by clear medical evidence establishing the level of care Mrs Callaghan now requires. There is no sufficient evidence of any change in circumstances such that Mrs Callaghan’s need for care is any greater than it was in 2009.
28. Accordingly we set aside the decision under review as it relates to carer payment and substitute the decision that Ryan was not qualified to receive that payment.
Issue 2: The start date for payment
29. Mrs Callaghan had telephoned a Centrelink call centre on 18 March 2009 to enquire about carer payments. On that date, Centrelink sent a letter confirming the telephone contact and advising that the claim needed to be lodged on or before 1 April if it was to be paid from the earliest date possible. This letter of advice expressed, in an informal way, the effect of s 13(1) of the Administration Act, which allows the start date for a claim to be the date of the informal contact where a person then lodges the written claim form within 14 days. The claim form was lodged on 7 May 2009.
30. There are other ameliorating provisions that extend the periods for making a claim where there are relevant medical circumstances[10] or special circumstances.[11] (There is also provision in clause 17 of Schedule 2 of the Administration Act for backdating of carer allowance where the disability affecting the care receiver is acute in onset.) There was no medical evidence that the conditions were of that kind. Rather, the medical evidence suggested that Mrs Callaghan’s medical conditions were longstanding.
[10] Section 13(2)(e)(ii)) and s13(3)(e) of the Administration Act.
[11] Section 13(3A) of the Administration Act.
31. Being satisfied that Ryan was not qualified for carer payment, the issue of the start date of that claim does not arise. However, the Secretary does not dispute Ryan’s entitlement to carer allowance. Ryan says carer allowance should have been paid from the date of Mrs Callaghan’s telephone contact with Centrelink on 18 March 2009.
32. It was clear from the materials provided by Mrs Callaghan and Ryan to Centrelink that, between the time of the telephone call and the lodgement of the written claim, the family was affected by a number of distressing incidents. Ryan was in hospital for a period in March 2009; Mrs Callaghan’s uncle died about this time and her aunt had a stroke. However it seems to us that, however distressing, these incidents were not sufficient to prevent the claim being lodged either by Mrs Callaghan or Ryan. We are not satisfied that these incidents prevented the simple act of posting a claim form or dropping it in to Centrelink. Having looked at the claim form,[12] it only required the provision of substantial information from the knowledge of Ryan himself. There was no need for a doctor to countersign or provide a report on the day of lodgement. This was made plain in the instructions accompanying the form.[13]
[12] T5.
[13] T5, p 50.
33. Accordingly, we affirm the decision to pay carer allowance from 7 May 2009, the date the written claim was lodged.
DECISION
34. The Tribunal sets aside that part of the decision under review that Ryan Callaghan qualifies for carer payment, and substitutes the decision that Ryan Callaghan is not qualified for carer payment.
35. As to the starting date for payment of carer allowance, we affirm the decision under review: the start day for payment of carer allowance remains as 7 May 2009.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member and Dr M Denovan, Member.
Signed: .............................[Sgd]...............................................
Mátyás Kochárdy, AssociateDate of Hearing 2 June 2010
Date of Decision 7 July 2010
For the Applicant Mr R Hamilton, Departmental Advocate
The Respondent was represented by Mrs S Callaghan
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