Smith; Secretary, Department of Social Services and (Social services second review)

[2016] AATA 10

Smith; Secretary, Department of Social Services and (Social services second review) [2016] AATA 10 (15 January 2016)

Division	GENERAL DIVISION
File Number(s)	2014/4777-78
Re	Secretary, Department of Social Services
APPLICANT
And	Sandra Smith
RESPONDENT

Decision

Tribunal	PW Taylor SC, Senior Member
Date	15 January 2016
Place	Sydney

The Tribunal affirms the SSAT’s decision setting aside the cancellation of Mrs Smith’s carer allowance.

The Tribunal sets aside the SSAT’s decision to set aside the cancellation of the Respondent’s carer payment.  In substitution for that decision the Tribunal decides that Ms Smith was not qualified for carer payment as at 30 April 2014.

………………[sgd]………........................

PW Taylor SC, Senior Member

Catchwords

SOCIAL SECURITY – carer payment and carer allowance - cancellation of payments - mother providing care for children - mental health conditions - behavioural issues - whether constant care required - whether 'intense' rating under determination -   whether severe incapacity to undertake paid employment - Tribunal not satisfied of severe restriction on capacity to undertake paid employment – respondent qualified for carer allowance- decision under review affirmed - respondent not qualified for carer payment – decision under review set aside and substituted

Legislation

Social Security Act 1991 ss 197C, 953

Cases

Del Vecchio and Secretary, Department of Families, Community Services And Indigenous Affairs [2007] AATA 1145

Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2010] AATA 551; 116 ALD 601 (2010)
Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582
Halls v Secretary, Department of Social Services [2014] AATA 129
James v Secretary, Department of Social Services [2014] AATA 802
Lemon v Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 305
Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harvey [2009] AATA 835; (2009) 112 ALD 216
Secretary, Department of Social Security and Retallack [1998] AATA 424

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Towse [2008] AATA 763; (2008) 103 ALD 688

Secondary Materials

Disability Care Load Assessment (Child) Determination 2010

Explanatory Memorandum to the Social Security Legislation Amendment (Improved Support For Carers) Bill 2009
Guide to Social Security Law

REASONS FOR DECISION

1. Ms Smith has eleven-year-old twin sons.  (I will refer to them as Tw1A and Tw2M.)  They are difficult to manage and have been diagnosed with PTSD and ADHD.  In May 2012 Ms Smith was granted carer allowance.  In August 2012 she was also granted carer payment.  Centrelink’s 30 April 2014 decision cancelled both benefits, and that decision was affirmed on 3 July 2014 following an internal review.  However on 14 August 2014 the Social Security Appeals Tribunal (the “SSAT”) set aside the cancellations.

2. In these review proceedings the Secretary seeks to have the Tribunal reinstate the April 2014 cancellations.

   Carer payment - nature & criteria

3. Carer payment is an income and means tested income supplement payment. The fortnightly payment rate for an individual carer is determined by applying the rate calculator in s 1064 of the Social Security Act 1991 (“SSA 1991”). (The current maximum single basic fortnightly rate is about $780.) The qualification criteria for carer payment are set in SSA 1991 s 197C. In the circumstances relevant to Ms Smith they involve the following, presently material, requirements:

   (a)Ms Smith must be an Australian resident:  SSA 1991 s197C(3).

   (a)the twins must be under 16 and each have a disability or medical condition: SSA 1991 s197C(1)(a).

   (b)The twins must be Australian residents and require constant care:  SSA 1991 s197C(4)(a)&(b).

   (c)each twin must be the subject of a health professional’s written certification that, because of their disability or medical condition, they require the personal care of a specified number of persons, for at least six months: SSA 1991 s197C(1)(c).

   (d)Ms Smith must have the qualifying rating of “intense” (under the Disability Care Load Assessment (Child) Determination) for caring for the boys: SSA 1991 s197C(1)(b).

   (e)Ms Smith must personally provide “constant care” to the twins: SSA 1991 s197C(1)(a).

   (f)Ms Smith must provide the care in the twin’s own home:  SSA 1991 s197(2).

   (g)that care provision must severely restrict her capacity to undertake paid employment: SSA 1991 s197C(1)(d).

   Carer allowance - nature & criteria

4. Carer allowance is calculated at a daily rate based on a total fortnightly rate provided for in SSA 1991 s 974 (and indexed in accordance with SSA 1991 ss 1190 & 1191). (The current fortnightly carer allowance is about $122.) The qualification criteria for carer allowance are set out in SSA 1991 s 953. They include residence and care rating requirements similar to those relating to carer payment. But the other requirements are less numerous, and differently expressed. The carer allowance criteria, in so far as they are material to Ms Smith’s claim, can be summarised as involving the requirements summarised below. (In the summary I have underlined those expressions that differ from the otherwise similar carer payment qualification criteria.)

   (a)Ms Smith person must be an Australian resident:  SSA 1991 s953(2)(f).

   (b)The twins must be her Australian resident dependent children: SSA 1991 s953(2)(a)&(b)

   (c)The twin’s respective disabilities must cause them to receive daily care and attention from Ms Smith, in their common private home:  SSA 1991 s953(2)(d)

   (d)Ms Smith must have been given a qualifying rating of “intense” under the Disability Care Load Assessment (Child) Determination for her care for the twins: SSA 1991 s953(2)(e).

   Disability Care Load Assessment (Child) Determination

5. The Disability Care Load Assessment (Child) Determination 2010 (“the 2010 DCLA Determination”) is a legislative instrument made by the Secretary on 1 July 2010. SSA 1991 s 38E permits the Secretary to devise a test for (i) assessing the ability, behaviour and special care needs of a person under 16, (ii) determining a method for rating those care needs and, (iii) determining a method for rating the actual care provided. The 2010 DCLA Determination is authorised by SSA 1991 s 38E.

6. The 2010 DCLA Determination

   (a)sets out an “Assessment of care load” questionnaire (“the ACL questionnaire”) - to be completed by the person seeking the relevant payment:  see 2010 DCLA ss 8(1), 8(2)(a) & Schedule 1 Pt 1

   (b)sets out a “Professional” questionnaire (“the THP questionnaire”) - to be completed by a treating health professional:  see 2010 DCLA ss 8(3), 8(4) & Schedule 1 Pt 2

   (c)details the scoring for both the ACL questionnaire (see 2010 DCLA s 10(3) & Schedule 2 Pt 1) and the THP questionnaire (see 2010 DCLA s 11 & Schedule 2 Pt 2)

   (d)provides (in the circumstances relevant to Ms Smith) that a person will achieve a qualifying carer payment or carer allowance rating of “intense” if

   (i)each twin has an ACL questionnaire score of at least 20

   (ii)the twins’ combined ACL questionnaire scores total at least 85

   (iii)the THP questionnaire score for each child is more than zero: see 2010 DCLA ss 4, 9, 13 & 16.

7. In the circumstances of the present case it is not, and has apparently never been, contentious that each of the twins has a THP questionnaire score greater than zero.  Consequently, the dispute as to whether Ms Smith has a qualifying “intense” rating turns on whether the twins combined ACL questionnaire score was at least 85.

   ACL “conversion scores”

8. The ACL questionnaire scoring method in the 2010 DCLA Determination s 10(3) Schedule 2 Pt 1 requires at least a three (and potentially a four) stage process.  Those stages involve (i) determining scores for various behavioural, functional and care need “domains”, (ii) converting those scores into a “care load score” for each domain, (iii) adding the “care load score” for each of the domains, and finally (iv) adding any adjustment where the Secretary considers particular ACL questions have been missed or misinterpreted in the questionnaire responses:  see 2010 DCLA Determination s 10(6), Schedule 2 Pt 1 Steps 2 to 18  & 19, 13 & 16. 

9. The second stage of the ACL questionnaire scoring method (ie determining the “care load score”) is “stepped” (rather than merely cumulative) for the behavioural and functional “domains” A, B & C.  The scoring method allocates specific “conversion scores” to various “score ranges” in those individual domains.  The stepped (and variable) nature, of the scoring method is illustrated in the following Table - which reproduces the relevant “step” values for those three domains.

10. The most obvious, and presently relevant, aspect of the scoring method is that the ultimate “care load score” is sensitive to the behavioural scores.  This is particularly apparent in relation to the domain B score range.  There are 11 questions in domain B.  The maximum possible (unconverted) score for the response to those questions is 155.  That is five times the threshold score that would suffice to lead to a (converted) “ACL score” of 85 - and thus establish the “intense” rating under the 2010 DCLA Determination. 

    The cancellation decision and the review grounds

11. Centrelink’s cancellation decisions were the result of dissatisfaction about the accuracy of ACL questionnaire responses Ms Smith provided in December 2013 and July 2014.  Although Ms Smith did not herself score those responses, their effect was to suggest scores of 39 (out of a maximum 49) for domain A, and 125 (out of a maximum 155) for domain B.  Centrelink regarded these scores as exaggerated - because they were thought to be (i) inconsistent with information that the twins were attending an ordinary primary school, and (ii) not readily reconcilable with the responses in the December 2013 THP questionnaires about the boys functional abilities (even though those responses also reported their diagnosed illnesses, their behavioural difficulties and their need of extra care and attention for more than 14 hours per week.

12. Ultimately Centrelink determined to exercise the scoring amendment discretion conferred by s10(6) of the 2010 DCLA Determination (see paragraph 8 above).  The Authorised Review Officer’s 3 July 2014 decision letter to Ms Smith stated that the decision affirming the cancellation was based on assessments that the adjusted ACL scores were 10 for Tw1A and 0 for Tw2M.  However, neither the letter, nor anything contained in the section 37 documents, meaningfully detailed the precise nature and extent of the adjustments that had resulted in such negligible scores.  Against the background provided by the THP responses, and the lack of specific information about Centrelink’s adjustments, it is unsurprising that in its 18 August 2014 decision reasons, the SSAT said this about Centrelink’s adjustments:

    “… Centrelink made a mistake in disregarding the entire form.  It should have correctly disregarded most of the answers for domains C & D, but should have given careful consideration to domains A and B, and relevant questions in domains C and D in the light of the available medical evidence”

13. The 18 August 2014 decision reasons record that the SSAT took Ms Smith through the relevant parts of the ACL questionnaire, and obtained her detailed responses.  The SSAT was comfortably satisfied that Ms Smith had established an “intense” rating for the purposes of the 2010 DCLA Determination.  The SSAT’s consequential findings and scores are summarised in the Table set out in paragraph 16 below.

14. In the light of the SSAT’s criticism, and its detailed review of Ms Smith’s ACL questionnaire responses, it is significant to note that in the 15 September 2014 review application the Secretary raised the sole ground that Ms Smith did not provide “constant care” for the two boys. That specific ground is relevant only to the qualification for carer payment: see SSA 1991 s 197C(1)(a) & (4) - and appears (from the August 2014 decision reasons) not to have been ventilated at all in the SSAT proceedings. (The Secretary did not, and does not, dispute that Ms Smith provided “daily care and attention” for the purposes of the carer allowance criteria.)

15. However in the course of the review proceedings the Secretary relied on three further matters.  The first of those returned to the “intense” rating issue, and disputed Ms Smith’s qualification.  That contention raised an issue that was common to both carer payment and carer allowance qualification:  see paragraphs 3(d) & 4(d) above.  The two other contentions were only relevant to the qualification for carer payment.  They were contentions that (i) the twins did not require “constant care”:  see paragraph 3(b) above, and (ii) Ms Smith’s provision of constant care did not severely restrict her capacity to undertake paid employment:  see paragraph 3(g) above. 

    The care load rating contentions

16. The parties co-operated to identify the SSAT findings, and their respective contentions, in relation to the relevant domain score ranges, and the corresponding ACL care load score for the purposes of the 2010 DCLA Determination.  It is convenient to summarise those matters by (i) identifying only those responses where either one of the parties contended for a relevant score, or the questions are otherwise potentially relevant to the determination of Ms Smith’s entitlement, and (ii) abbreviating the description of the corresponding ACL questionnaires, in order to illustrate the basic nature of the parties competing contentions.  That summary is set out in the following Table.

17. The entries in the “Topic” and “Description” columns in the Table are abbreviations.  In the case of the “Topic” entries I have either selected the actual heading of the relevant question in the ACL questionnaire or paraphrased the content of the question.  However, I have used that paraphrase only in the presentation of the Table.  In my evaluation of the evidence I have had regard to the actual wording of each question in the ACL questionnaire.  In the case of the “Description” column I have had regard to the “multi choice” question responses set out in the ACL questionnaire.  Those responses typically use the alternatives “never”, “sometimes”, “often” and “always” (or similar variants more appropriate to the subject matter of the particular question) and provide an explanatory exegesis to illustrate the degree of frequency each temporal adverb was intended to capture in relation to the particular question.  I have included in the Description column in the Table my paraphrase of the various responses that were either favoured by the SSAT, or are in contest between the parties in the present proceedings.  Again, however, the abbreviated content of the column entries is a matter of convenient presentation.  In the findings I express in these reasons, I have had regard to the actual wording of the ACL questionnaire responses and to the parties’ respective submissions.

18. Subject to the explanation in the preceding paragraph, the summary in the Table encourages several observations.  First, neither party materially contested the appropriate ACL questionnaire scores for domains C and D.  Second, in relation to the domain A and B scores, the SSAT substantially accepted Ms Smith’s evidence about the twins’ behaviour.  The SSAT made findings resulting in scores similar to those appropriate to Ms Smith’s December 2013 responses:  see paragraph 11 above.  Third, the Secretary’s position substantially rejected the whole of the SSAT’s domain B findings.  Fourth, Ms Smith’s contentions in these proceedings resiled, to varying extents, from the SSAT’s domain B findings.  Fifth, despite the parties widely differing contentions, an ACL questionnaire score of more than 85 points would result if either twin had a domain B “domain score” . 15 points higher than that contended for by the Secretary.  .  Such a score would establish Ms Smith’s “intense” rating under the 2010 DCLA Determination.  (The “domain scores” for the questions most apparently relevant to that possibility are shaded in the Table set out above.)

    Ms Smith’s evidence - behaviour relevant to domains A & B

19. Ms Smith provided a written statement, and gave detailed evidence, about the twins’ behaviour.  Although she was extensively cross examined about details of her evidence, the questioning was mainly in the nature of an elaboration or clarification of her accounts of the boys’ behaviour, and of her own activities.  The Respondent explicitly stated that there was no challenge to the honesty with which Ms Smith gave her evidence. 

20. The generality of Ms Smith’s evidence was corroborated by her husband.  He said the two boys fought a lot, and had even hurt him on occasions.  They could never be left alone in the house.  Ms Smith is with them when they eat, shower or toilet.  Ms Smith's husband said that, at most, the boys slept for four or five hours a night.  He also said that he had found their behaviour at night too much to deal with, and he and Ms Smith “have been very close to divorcing more than once”.  He said that for a long time he had slept at his sister’s house.  (Other evidence places this occurrence around mid 2014, and includes the period around the time of the cancellation decision.)  He described Tw2M as loud and aggressive, given to wantonly breaking things around the home, and throwing rocks and balls at the neighbours. 

21. Ms Smith’s father also gave evidence about the two boys.  He particularly described their behaviour during a month long period in early 2015 when he and his wife looked after the twins while Ms Smith was overseas.  He also reported Tw2M’s frequent aggression, fighting with Tw1A (as much as several times a day), hostility towards neighbours, and nocturnal enuresis.  He described Tw1A as constantly worried, frightened and apprehensive.  He was regularly and inexplicably tearful, frequently had disturbed sleep (waking up sweating and crying), and also regularly wet the bed.  Both boys were very difficult to settle down at night and often had not gone to sleep before 2:00am.

22. Ms Smith’s brother in law also gave evidence about the twins’ behaviour, most specifically in the period in early 2015 when Ms Smith was overseas.  He described the boys as always fighting.  He reported that when he drove them to school they were so aggressive with each other that he had to stop the car several times, during a very short trip, in an effort to get them to calm down.  At home the boys were destructive and could not be left alone.

23. The evidence of Ms Smith’s husband, her father and brother in law is generally corroborative of Ms Smith’s evidence, but it is less detailed and comprehensive.  She is the one person who has had the most regular and direct contact with the boys.  She is most familiar with the details of the nature and frequency of their relevant behaviour.  Because no significant challenge was made to her honesty, and because the generality of her evidence was corroborated by her husband, father and brother in law, I accept it as the most reliable available account of the twins’ behaviour.  That acceptance is however subject to a reservation about the reliability of her evidence in relation to the reasons for, and the extent of, the twins’ day care attendances.  I refer to that matter in paragraphs 24(a)(i) and 77 below.  (I also note that Ms Smith tended to describe the twins’ current or usual behaviour, rather than focussing attention on the circumstances that existed at the time of the cancellation.  However nothing turns on this:  see paragraphs 30 to 32 below.)

1. Ms Smith’s evidence about the twins’ behaviour involved the following details - relevant to the ACL questions about which the parties differed in the allocation of an appropriate score - was to the following effect.

   (a)Settling for sleep:  Q:2   

   (i)Ms Smith has constant difficulty in getting the boys to go to bed and sleep.  She said that on a typical school day she will take the boys to a park for up to an hour after school, so as to keep them active and make it easier to settle them down later in the evening.  (This evidence about park attendance after school may not be really descriptive of the pattern of events around the time of the cancellation decision - having regard to the objective evidence of the twins’ day care attendances - see paragraph 53 below.)

   (ii)Settling the boys for sleep is always extremely difficult.  She will ordinarily attempt to get them to bed at around 9pm.  She stays in the bedroom with them, but they, talk, joke, jump around and manufacture thirst or hunger to defer going to sleep.  She will often read to them, or dance for them.  Sometimes they will sit with her whilst she does her own work.

   (iii)The boys would rarely settle down to sleep before 2:00am.  On a good night they would go to sleep around 1:00am to 1:30am.  On a bad night they might go to sleep as late as 4:00am or 5:00am.

   (iv)There have been only three days when she had managed to have eight hours sleep.  That was within the six months before August 2015, after the family had moved into a new house, and only because she had asked her husband to look after the boys.

   (b)Night sleep:  Q:3   

   Neither boy usually sleeps right through the night.  One or other will wake up during the night.  Tw1A has bad dreams, will often wet his bed and wake crying and screaming.  This happens as much as five nights a week.  Tw1A’s disturbed sleep often rouses Tw2M.  That results in Tw2M waking up, becoming angry and swearing.  More than four or five times a month Tw2M himself wakes up distressed during the night, often after having wet the bed.

   (c)Irritable behaviour:  Q:3  & Shouting and threats:  Q: 12  

   Both boys typically yell and swear at each other using both “f” and “s” words.  This is a noticeable feature of their behaviour at breakfast, and in the car on the way to and from school.  But it is not confined to those occasions.  They will also yell and swear at people in the street.  The seriousness of their yelling and shouting in the car varies according to how much sleep they have had.  But it is very common.

   (d)Wandering or running away:  Q:11   

   (i)Both boys tend to try to run away when they get upset.  Tw2M escaped from Ms Smith’s previous residence (a third floor flat) on three occasions. 

   (ii)To prevent the boys from escaping Ms Smith now has locks and chains on the external doors, and double security locks on all the windows.  Notwithstanding these security measures being put in place, Tw1A escaped on one other occasion. 

   (e)Aggression: Q:13  &  High risk behaviour:  Q:17  

   (i)Both boys are destructive, Tw2M more so than Tw1A.  Tw2M has broken a bed, television, windows and a shower screen.

   (ii)Both boys will hit each other with anything that comes to hand.  Consequently Ms Smith tends not to leave them alone together, and keeps all her kitchen implements and cutlery locked away.  She does not keep any glasses in the home and tends to keep it clear of anything they can use as missiles or weapons.

   (iii)Ms Smith sits between the two boys every day at breakfast.  This prevents them from hitting each other, but results in them hitting her.  She separates, and supervises them when they shower.

   (iv)Tw2M would fight every day with his brother Tw1A, but was often provoked into doing so by Tw1A’s bullying (despite Tw2M being the larger boy).

   (v)This pattern of daily fighting had been typical of the boys behaviour since they were about three years of age.  It was getting more serious as they grew older and stronger.

   (vi)The boys are also aggressive towards a younger male cousin, and Tw2M hits him.  Their aggression is so significant that Ms Smith’s sister will not leave her son alone with the twins.

   (vii)The boys are have also been aggressive towards neighbours.  They were responsible for a significant dispute with neighbours that ultimately led to Ms Smith having to move to another residence. 

   (f)Self harm behaviour:  Q:18  

   Tw2M bangs his head on the wall.  This can happen as regularly as 4 to 6 times a month.  Tw1A has a habit of stubbing his toe on the ground, or against a wall or bed, when he is nervous.  This a very common occurrence and happens most of the time.

   The Secretary’s criticism of Ms Smith’s evidence

2. The Secretary’s initial contentions that Ms Smith did not have an “intense” care rating were advanced in a detailed March 2015 Statement of Facts and Contentions.  In that Statement, despite specifically agreeing that the medical evidence suggested the twins were likely to have exhibited “severe behavioural difficulties … until late 2014”, the Secretary emphasised (i) a suggested element of inconsistency and exaggeration in Ms Smith’s June 2014 ACL questionnaire responses, and (ii) a possible dissonance between the twins’ level of functional competence (as reported in the THP questionnaire responses) and their reported behavioural difficulties. 

3. The Secretary’s criticisms were, in my view, insubstantial.  As both the SSAT and I have emphasised, careful consideration of the answers to the relevant questions in domain B was critically important.  The Secretary’s submissions substantially conceded that proposition.  But apart from identifying the scores proposed in the contention Table I have set out earlier, and making specific points about the appropriate answers to Q:11 and Q:18, the Secretary’s submissions did not really engage with either the SSAT findings or the potential significance of the Secretary’s own concession that the twins were likely to have exhibited “severe behavioural difficulties …until late 2014”.  In these circumstances, and the absence of challenge to the honesty of Ms Smith’s evidence, I do not consider it appropriate to accede to the Secretary’s contentions about the appropriate scores for either domain A or domain B.

4. The Secretary made a further criticism that Ms Smith’s evidence, and her suggested domain B answers, wholly misinterpreted the ACL questionnaire.  The basis of this submission was the content of ACL Q:9.  It is in the following terms:

   Q 9: Questions 10 to 20 ask you about the child’s behaviour ( e.g. running away, aggressive behaviours, self harming behaviours, extreme anxiety or withdrawal). For each question, please select the response that best describes the child’s behaviour and the effect that this behaviour has on you  during the day and night.

5. The Secretary submitted that this instruction directed attention to the effect of conduct upon the carer, rather than to the frequency of its occurrence.  Based on that submission the Secretary further contended that none of the questions could properly be answered either “often” or “always” - “regardless of the boys different behavioural characteristics” - because of the substantial periods during each day when the twins were either at school or in day care.  (I refer to those attendances in paragraphs 49 to 62 below.)

6. I do not accept the submission.  The last sentence of Q:9 directs attention to a response that “best describes” both behaviour and effect.  In some instances the enquiry directs attention to both the frequency of the conduct and its effect on other people (ie. people other than the care giver - see Q:12).  None of the specific domain B questions (ACL Q:10 to 20) really permits a sensible response which differentiates between frequency and effect on the carer.  All of them are primarily enquiries about the frequency of conduct.  Consequently the direction permits a care giver to emphasise the frequency of the behaviour as the “best” response to the question.  Given the content of the direction, and the particular questions, there is no reason to distort the typically plain wording of each question, in the manner that would be involved in accepting the Secretary’s submission.  In expressing that view I am fortified by the approach Dr Campbell took to a similar issue in his reasons in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harvey [2009] AATA 835 at [35] - when he said this:

   [35] Further, even if I were to perceive that there were some ambiguities in the instructions nominated, I am mindful that the Act is beneficial legislation designed to assist the needy and the disadvantaged. I am reminded of what Isaacs J stated in Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384:

   … [T]his is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially … This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow …

   Relevant time issues

7. The Secretary submitted it was necessary for Ms Smith to establish her relevant qualifications (including her “intense” rating) as at 30 April 2014.  This was not a controversial proposition.  The Secretary’s submissions raised the point on the apparent basis that, because Ms Smith’s December 2013 ACL questionnaire responses were perceived to have been exaggerated, and the more specific and credible version of the boys functional abilities arose from evidence provided after the cancellation decision (that evidence being mainly Ms Smith’s evidence to the SSAT) Ms Smith had not established her qualification at the relevant time.

8. Later in these reasons I have summarised the effect of the three sets of THP responses (see paragraph 34 below).  As that summary shows, it is correct to say that the June 2014 THP response is more descriptive than the December 2013 version.  But it is consistent with the earlier THP response of August 2012.  There is a similar degree of consistency in the various ACL questionnaire responses provided by Ms Smith.  In those circumstances I do not regard it as correct to say that Ms Smith can only establish her “intense”: rating qualification on the basis of circumstances and evidence relating to the period after 30 April 2014.  In my view, it is more correct to say that the ACL and THP responses consistently report that the twins had significant behavioural disturbances.  Those disturbances (with their corresponding care needs) most likely existed as at 30 April 2014.

9. In making that finding, I acknowledge that the scores I have allocated in the Table in paragraph 33 differ from the contents of both the December 2013 and June 2014 ACL responses.  I also acknowledge that in some respects the very regular “always” responses in those questionnaires, were contradicted by the more moderate evidence Ms Smith gave in the current proceedings.  However Ms Smith, whose first language was not English, impressed me as a highly intelligent person who was generally careful in the evidence she gave in the present proceedings.  In those circumstances, and when no challenge was made to her honesty, I do not regard the apparent inaccuracies in some of her previous responses to some of the ACL questions, as a sufficient reason to conclude either that her current evidence was unreliable or that it did not equally well describe both the twins’ behaviour, and the pattern of her own care provision, as at 30 April 2014.

   Care load findings

10. I have made the assessments, and allocated the scores, set out in the following Table. (The Table is in the same format as that set out in paragraph 16 above, but omits the SSAT findings set out in that Table.)

11. The findings indicated in the Table are based mainly on the evidence summarised in the previous section of these reasons.  However I have also had regard to the contents of the various THP questionnaire responses dated August 2012, December 2013 and June 2014.  The August 2012 responses to the behavioural questions recorded that each of the twins (i) was consistently unco-operative, active, disruptive and unable to concentrate, (ii) displayed self injurious behaviour, (iii) displayed violence during treatment sessions, (iv) displayed obsessional, repetitive behaviours, and (v) persistently attempted to abscond from the treatment setting.  The December 2013 responses recorded that each of the twins (i) was extremely active and unable to concentrate, and (ii) displayed aggressive behaviour or violence during treatment sessions.  The June 2014 responses related only to Tw2M, and recorded that he (i) was consistently unco-operative and disruptive, (ii) displayed self injurious behaviour, and (iii) displayed violence during treatment sessions.

12. Ms Smith’s main submission in relation to the “intense” rating requirement was that the evidence comfortably justified an “always” answer to the physical aggression question (ACL questionnaire Q:13) in relation to Tw2M, such a response increased the domain B score range by 18 points above the Secretary’s contention, and alone resulted in a “care load score” of 85 points - sufficient to establish her “intense” rating under the 2010 DCLA Determination.  Ms Smith additionally submitted that “occasionally” was the appropriate answer in relation to Tw2M for each of the questions about “running away” (Q:11), “shouting” (Q:12) and “self harm” (Q: 18) and that these answers also increased the domain B score range by at least 18 points above the Secretary’s contention.

13. I have accepted Ms Smith’s submissions in relation to the appropriate response for Tw2M to the physical aggression question.  ACL questionnaire Q:13 relevantly enquired whether Tw2M became physically aggressive, and “harms others by hitting, pushing, kicking, biting or throwing objects” only “sometimes” (ie not every week) - as contended by the Secretary - “often” (ie at least once a week) or “always” (ie every day).  Ms Smith’s evidence was that both boys, and not just Tw2M, typically fought each day.  I accept that evidence.

14. I have not, however, accepted Ms Smith’s submissions in relation to Q:11, Q:12 and Q:18.  Partly that is because the submissions, as expressed, did not rely on the actual wording of the ACL questionnaire, and consequently conflated the appropriate scores.  Partly it is also because I have made my own assessment of the proper evaluation of Ms Smith’s evidence.  I have also made specific findings in relation to the contentious scores for Q:2, Q:3 and Q:4 - even though these matters were not at the forefront of Ms Smith’s submissions.  In the following sub-paragraphs of these reasons I explain the reasons for my findings in relation to each of the questions to which I have just referred.

    (a)Settling for sleep:  Q:2   

    Ms Smith’s evidence, partly corroborated by that of her husband and (less directly) her father, establishes that both twins are always difficult to settle down to sleep.  

    (b) Night sleep:  Q:3 

    Ms Smith’s evidence established, at least, that Tw1A often woke at night as a result of bad dreams and or enuresis.  It also established that Tw2M regularly had disturbed sleep, but probably less often than twice per week.

    (c)Irritable behaviour:  Q:4  & Shouting and threats:  Q: 12 

    Ms Smith’s description of the boys daily interaction, typified by daily fighting and yelling, requires at least an “often” answer to both questions.  This is on the basis that the relevant behavioural aspect is the twins’ conduct directed at others.  It is typified by their unruly conduct in the car and at day care (see paragraph 55 below).  I have regarded it as inappropriate to score the twins’ regular antagonism towards each other in response to these two questions because that would tend to “double score” the answer to Q:13 (relating to physical aggression).  And since the boys car trips and day care attendance were not everyday occurrences I have regarded the proper answer as “often” rather than “always”.  I have also considered it proper to allocate a score to both Q:4 and Q:12.  I have reached that view because Q:4 in domain A is directed principally at the nature of the behaviour itself, in the sense of enquiring about the extent to which each twin was “continually agitated, prone to angry outbursts”.  On the other hand Q: 12 in domain B appears to be directed at the effect of the conduct on others (ie whether the conduct involves screams or threats directed at other people, or was otherwise sufficient to cause them alarm).

    (d)Wandering or running away:  Q:11 

    Ms Smith’s evidence described the security measures she had introduced at home, and the occasional instances where one or other of the boys had escaped.  On one view, the fact that Ms Smith has installed locks on all her doors and windows, in order to ensure that the boys do not escape, could sustain an “always” score.  However, in view of the very limited number of instances where the boys have escaped I was ultimately not satisfied that either an “always” or “often” score was appropriate.

    (e)Unexplained upset:  Q:14 

    There was very little evidence that bore directly on this topic (apart from the evidence of Ms Smith’s father - to which I referred in paragraph 21 above).  However, the Secretary conceded a 1 point score for this question and Ms Smith proffered the same view in relation to Tw2M.  In relation to Tw1A Ms Smith contended for a 5 point score, on the basis that he was “often” upset for little or no reason.  It is arguably consistent with that view to note the evidence of Ms Smith, her father, and the day care worker, to the effect that Tw1A was considerably more worried, anxious and tearful than his sibling.  But I have concluded that this evidence is more directly related to his difficulties with anxiety and withdrawal (Q:15) and disturbed sleep (Q: 3) and is less specifically probative of the kind of “unexplained upset” to which Q:14 is directed.

    (f)High risk behaviour:  Q:17 

    I have not accepted Ms Smith’s submission that the appropriate response to this question is merely “sometimes” in the case of Tw1A and perhaps “often” in the case of Tw2M.  Her actual evidence convincingly described her apprehensions about the boys conduct if she left them unsupervised, and the extent to which those apprehensions had driven her to lock away cutlery and keep all her cooking implements outside the house, in an area to which the boys did not have access.  When regard is had to the full terms of Q:17 Ms Smith’s evidence indicates that the proper answer to the question is, at least, “often” for both of the boys.

    (g)Self harm behaviour:  Q:18 

    The parties did not dispute that the appropriate frequency for scoring this question was “sometimes” in the case of Tw1A.  Ms Smith contended for an “often” score in relation to Tw2M - presumably on the basis that his head banging activities could be as frequent as 4 to 6 times a month.  Whilst I accept her evidence, I am not satisfied that it justifies a finding that Tw2M engaged in that kind of self harming activity “at least once a week”.  And that is the actual criterion for an “often” response to this question.

    Intense rating

15. The findings I set out above, and the corresponding care load scores indicated in the Table in paragraph 33 above, establish that Ms Smith has an “intense” rating for the purposes of the 2010 DCLA Determination.

    Carer Allowance qualification

16. The qualification criteria for carer allowance are summarised in paragraph 4 above.  Ms Smith’s evidence about the care she provides, the absence of challenge to the proposition that she provides that care on a daily basis, and the findings I have made about Ms Smith’s ACL care load score, combine to show that she was qualified for carer allowance at the time of the 30 April 2014 cancellation. 

    Constant care - carer payment

1. The Secretary contended that the policy underlying the SSA 1991 carer payment provisions was a recognition of a payment entitlement when care responsibilities precluded a carer from undertaking substantial employment. This proposition is asserted in the Guide to Social Security Law (at paragraph 1.1.C.310) and is at least arguably consistent with the SSA 1991 provisions governing the rate of carer payment (see paragraph 3 above). However, the policy underlying the totality of the qualification requirements for carer payment is one thing. The meaning of an individual qualification criterion is another. The difference is particularly appropriate to observe when, as the qualification summary set out in paragraph 3 shows, there are at least three (presently relevant) distinct, cumulative criteria - (i) the “intense” rating care load threshold requirement, (ii) the concept of “constant care” (both as to need and provision) and (iii) the consequential severe restriction on paid employment capacity.

2. The concept of “constant care” is not statutorily defined. It has been said (i) to require more than the ordinary activities involved in parental care and household management, (ii) to involve the provision of that care “on a more or less fulltime basis” and in the sense of “devoting a substantial part of each day” to looking after the person, and (iii) possibly to be satisfied by a requirement for “constant supervision” (having regard to the inclusive definition of “care” in SSA 1991 s 197(1): Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 at [7], [8] and [11] (SSA 1991 s 198). Decisions of this Tribunal have held that a requirement for “constant care”

   (a)was not satisfied where the care recipient was regularly attending a normal school:  Secretary, Department of Social Security and Retallack [1998] AATA 424 (Downs Sydnrome child attending school five days a week - SSA 1991 ss 197 & 198(2AA)

   (b)was not satisfied where the care recipient had reasonably regular school attendance, was cared for by another parent for a substantial number of days a year, and the carer undertook regular, causal, part time employment:  Lemon v Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 305 (9 year old child with cystic fibrosis - SSA 1991 s 197)

   (c)was not satisfied where the vision impaired adult care recipient was in full time employment, but substantially dependent on the carer for assistance with the activities of daily living and, ordinary household tasks, and the carer also provided regular travel assistance:  Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2010] AATA 551; (2010) 116 ALD 601 (2010) (SSA 1991 s 198)

   (d)was not satisfied where the carer spent about five hours per day, five to six days a week, and provided companionship as well as some assistance with activities of daily living, to an adult care recipient who otherwise lived alone:  Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582 (osteoarthritic elderly mother - SSA 1991 s 198)

   (e)was not satisfied where the carer did not live with the adult care recipient and, despite visiting the property and making regular enquiries about the welfare, had no direct contact with her:  Del Vecchio and Secretary, Department of Families, Community Services And Indigenous Affairs [2007] AATA 1145 at [37] (SSA 1991 s 198)

   (f)was not satisfied where the carer predominantly assisted his mother with the activities of daily living and performed a range of ordinary household tasks, but was able to attend school full time, and had only reduced his hours of school attendance in order to attempt to establish his carer payment qualification:  James v Secretary, Department of Social Services [2014] AATA 802 (17 year old whose mother had a significant spinal injury as a result of a motor vehicle accident - SSA 1991 s 198)

   (g)was satisfied, even though the care recipient only lived with the carer five days a week and usually attended a special needs program each day, where the attendance was frequently irregular and the carer had to supervise the recipient very closely at home:  Halls v Secretary, Department of Social Services [2014] AATA 129 (21 year old incommunicate person with Downs Syndrome - SSA 1991 s 198)

   (h)was satisfied where the care recipient required careful monitoring of fluid intake, extensive medication, and regular treatment and surgical procedures (as well as assistance in recovering from them), despite the fact the “ongoing and permanent” care need (apart from monitoring and supervision) was neither daily nor required for significant periods of the day:  Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harvey [2009] AATA 835; (2009) 112 ALD 216 especially at [26] to [30] & [47] (husband with history of very regular, extensive and ongoing treatment for basal cell carcinoma, and renal failure requiting thrice weekly home dialysis)

3. The Secretary drew on these various decisions to submit that clause 1.1.C.310 of the Guide to Social Security Law provides valuable, although not determinative, assistance in applying the “constant care” criterion.  That passage is contained in the general definitions section of the Guide and is in the following terms:

   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.

4. It may be noted that this passage expressly relies on the “policy intent” of Carer Payment to move from the suggested meaning of “constant care“ - as “care on a daily basis for a significant period” - to the proposition that the required period is reasonably expected to be “at least the equivalent of normal working day”. This movement, from “constant” to “daily” and then “significant period”, apparently prompted by a general statement of policy, is questionable. It is questionable because it appears not to take into account the separate cumulative criteria contained in SSA 1991 s 197C (see paragraphs 3 and 40 above). Nevertheless, the Secretary then submitted that two important aspects of the “constant care” criterion were that the care must be (i) more than “episodic and spasmodic” and, (ii) “more or less full time”. The former of those propositions was drawn from the Del Vecchio decision and  is nothing more than an obvious truism - especially when regard is had to the circumstances involved in that matter (see paragraph 41(e) above).  The second proposition was drawn from the Milne decision. It carries the risk of introducing a prescription of doubtful precision as a substitute for the apparent intent of the statutory concept as it appears in SSA 1991 s 197C.

5. That section was introduced at the same time as s 38E (the provision that authorises the 2010 DCLA Determination - see paragraph 5 above), by the Social Security Legislation Amendment (Improved Support for Carers) Act 2009, and commenced on 1 July 2009. Prior to the 2009 amendments, SSA 1991 s 198(10) included a similar qualification requirement relating to severe restriction of employment capacity, but it applied only to the care of a particular kind of “profoundly disabled child” who required “continuous personal care”. The amended s 197C deals more generally with the provision of care to children, and dispenses with the concept of “continuous personal care”, whilst retaining the separate qualification requirement of the carer’s “severe” restriction of paid employment capacity. The existence of that specific additional requirement suggests there is doubtful justification for construing “constant care” as meaning “more or less” full time care.

6. That doubt is also contributed to by the policy exegesis contained in the Guide.  This is partly evident from the passage set out in paragraph 42 above.  It is made more clear by other provisions of the Guide.  For example, one of the explanatory examples following Guide clause 1.1.C.310 reads

   Example 2: Where the care receiver is a child aged under 16 years with severe disability or severe medical condition and that child attends a special school, the carer is personally providing care on a daily basis for a period of time that is generally the equivalent of a normal working day. If the carer also undertakes employment or training of not more than 25 hours per week, consideration must be given to the carer's capacity to satisfy the constant care requirement. Aspects of the care situation that can be taken into account include whether the carer attends school with the care receiver, or whether the carer is 'on-call' while the care receiver is at school and is regularly required to attend the school to support and actively attend to the care of the child.

7. That passage indicates the Guide recognises that a care recipient’s regular school attendance may not preclude a carer’s involvement from being characterised as “constant care”.  The same possibility emerges, in relation to the prospect of the care recipient’s full time employment, from other provisions of the Guide.  For example Guide clause 3.6.4.60 is in the following terms:

   If the care receiver is employed, attending education or training course, whether on a full-time, part-time or limited basis, their carer (1.1.C.40) may still qualify for Carer Payment. The level of care required and provided during the remainder of any 24-hour period determines whether or not the carer remains qualified for Carer Payment. Temporary cessation of care provisions may apply if care is not provided to the care receiver, by the carer, for periods of 24 hours or more.

   If the care receiver enters employment their circumstances should be assessed to ensure they continue to meet the care receiver's income and assets test, if applicable. The 25 hour rule (3.6.4.150) that applies to carers in receipt of Carer Payment does not apply to their care receiver/s.

8. Furthermore, other provisions of the Guide suggest that even significant employment activities on the carer’s part may not adversely affect qualification for carer payment.  Guide clause 3.6.4.70 provides as follows 

   Participation in education or training does NOT impact on the carer's qualification for Carer Payment, UNLESS the cessation of care in order to undertake the education or training (including the carer's travel time) exceeds 25 hours per week.

   …

   Paid employment or unpaid voluntary work does not impact on the carer's qualification for Carer Payment, UNLESS the cessation of care in order to undertake the paid employment or voluntary work (including the carer's travel time) exceeds 25 hours per week. However, any income earned may affect the rate of payment.

   …

   Employment in the home within the care situation does not impact on qualification, provided it is consistent with the care receiver's (1.1.C.20) need for frequent personal care or constant supervision (1.1.C.310).

9. It is of some importance in the interpretation of the concept of “constant care” in SSA 1991 s 197C to observe that the reference to 25 hours in the preceding citation from the Guide, relates to the effect of a temporary cessation of care, and the provision permitting that cessation to be ignored where the carer is instead involved in education, training or work - subject to the 25 hour limit: see SSA 1991 s 198AC(4). This provision has no direct relevance to the question whether ongoing care should properly be characterised as “constant”. Similarly, both of the decisions in Milne and Del Vecchio, and many of the other decisions referred to in paragraph 41 above, concern the meaning of “constant care” where it is used in SSA 1991 s 198. That section deals with the qualification for carer payment where the care recipient is an adult. Its qualification criteria do not include the requirement that the “constant care” provision severely restricts the carer’s employment capacity. In that respect it is significantly different from SSA 1991 s 197C.

10. The “constant care” requirement, in the context of the qualification criteria in SSA 1991 s 197C requires regard to the nature, extent, intensity, frequency and period of the care needs, and the carer’s activities. The answer to the question whether those aspects of the care satisfy a decision maker that it is properly characterised as “constant” may be informed by considering (i) whether the care activities are “more or less” full time (see Milne), (ii) whether they involve a period “roughly the equivalent of a normal working day” (see Guide clause  3.6.4.60 ) and (iii) whether they are of such intensity that they “roughly equate(s) to a normal working day” (see Guide clause 1.1.C.310).  But neither of these considerations should be elevated to the status of being determinative of the “constant care” characterisation.  The proper approach is that taken by Dr Campbell in his reasons for decision in Harvey [2009] AATA 835; (2009) 112 ALD 216 when he said

    [28]I note that the term “care” has been defined to include attention and supervision. I note the dictionary definitions of constant as unmoved, resolute, unchanging, unremittent as to attention, occurring continually over a period of time, remaining the same over a period of time. I would conclude that the phrase “constant care” refers to care needs which are unchanging, unremittent, occurring continually and remaining the same over a period of time. I have already concluded that the assessment of the care needs, including the level of care needs, are and remain a function of the ADAT. I would further conclude that, as a consequence of the functions nominated in the Act and referred to above, phrases that “constant care” requires the provision of care on a daily basis “for ‘a significant period’ during each day”, a carer would be expected to provide at least the equivalent of a normal working day, could only be relevant if the phrase “constant care” was to be interpreted as constant care on a daily basis — a meaning that the statute could have conveyed by including the words “on a daily basis” and clearly one that was not adopted.

    [29]In defining “constant care” as I have, I am mindful that such a definition points to the provision of care that is occurring continually or remains the same over a period of time, with the latter encompassing circumstances of continuous reoccural. In relation to the phrase “period of time”, the time period must reflect the opportunity to assess adequately the need for the provision of constant care, and the likelihood for it to be required on a continuing and permanent basis.

11. Dr Campbell’s reference to the care need assessment level being primarily “a function of ADAT” referred to the tool used for the assessment of adult care needs.  But the point he made is also relevant to the assessment of a child’s care needs.  Those needs must be assessed and scored using the 2010 DCLA Determination.  In the present matter, having regard to the findings I have set out in the Table in paragraph 33 above, the twins’ care load, for their behavioural problems alone, amply establishes the required “intense” care rating - and points to the conclusion that the twins have very significant, and frequently occurring, behavioural problems that rate highly in the ACL scoring.  Perhaps of even greater significance is that, having regard to the findings reflected in the Table and the evidence of Ms Smith, the twins’ behavioural problems are of particular significance during times when she is primarily responsible for their care (meal times and at night).

12. The Secretary said that Ms Smith did not satisfy the “constant care” requirement - because

    (a)in both her December 2013 and June 2014 ACL questionnaire responses Ms Smith had reported that she provided daily care for the boys, but specifically indicated that it was not “constant care”.

    (b)Ms Smith’s evidence about the twins’ limited sleep, and her nightly activities in looking after them, was exaggerated.

    (c)prior to the April 2014 cancellation decision the twins’ regularly attended a mainstream school, and child care (before and after school, and on Saturdays), for weekly periods of up to 75 hours

    (d)Ms Smith’s ACL questionnaire responses conceded that she was neither required to attend school, nor frequently summoned to the twins’ school, because of the boys behavioural difficulties.

13. The first of these points is unsubstantial. The relevant enquiry is about the nature and extent of Ms Smith’s care activities and whether they merit characterisation as “constant care” for the purpose of SSA 1991 s 197C. As the various decisions summarised in paragraph 41 show, the question is one of some difficulty. Its answer may be regarded as informed by Ms Smith’s “no” answer in the ACL questionnaire response, but in my view that particular response provides information of only marginal significance and does not dictate the appropriate answer.

14. The Secretary placed principal reliance on the twins’ school attendance, and an October 2014 report from the school that the twins had not been suspended, were not the subject of any school intervention programs, had not been the subject of reports of inappropriate behaviour since September 2014, and were only the subject of four such reports since May 2014.  The Secretary contended that these reports were inconsistent with the level of behavioural difficulties recounted by Ms Smith, and supported the Secretary’s submission that her evidence was exaggerated.  Ms Smith, when questioned about the school records reported that they were not the whole story.  She said that there were other occasions when the boys had been sent to the principal’s office, and when she had been summoned to the school because of complaints about the boys.  I accept her explanation that the school report does not provide the whole story - both because of my general view of her reliability as a witness, and because any suggestion that the boys’ school behaviour was unremarkable seems difficult to reconcile not only with her evidence (and that of her husband and father) but also with reports from the day care facility the boys attended.  However, given her response to the specific questions in the ACL questionnaires (see paragraph 51(d) above) her explanation does not establish that, at times relevant to the April 2014 cancellation decision, she had significant care responsibilities while the boys were at school.

15. The Secretary also relied on details of the twins’ day care attendances in the period from January to mid April 2014, and from August to October 2014.  The second period was after the cancellation decision of 30 April 2014, but the Secretary relied on it as consistent with the pattern of care in the earlier period.  That reliance was reasonable both because of the attendances in the earlier period and also because of Ms Smith’s evidence that the boys’ behavioural problems and care needs had been much the same both before and after the cancellation decision.  (The Secretary also tendered child care records for the period from October 2014 to July 2015.  However, I do not consider that these attendance records themselves meaningfully inform the assessment of care as at 30 April 2014, and I note that the Secretary partly conceded that proposition in submissions.)

1. The Secretary pointed out that, according to the attendance records, in both the 2014 periods the twins attended day care six days a week - for two hours before school (7:00am to 9:00am), five hours after school (3:00pm to 8:00pm) and 12 hours on a Saturday (8:00am to 8:00pm).  (In the second period 2014 period the twins attended day care for 10 hours a day at least in the first week of the school holidays.)  The Secretary then submitted that, assuming the boys slept for an average of four hours per night Ms Smith would have been involved in their care for, at most, 7 hours each weeekday.  That time would likely be even less - because some of her activities would be more properly characterised as ordinary maternal and domestic assistance, rather than relevant “care”.

2. Although in her written statement Ms Smith said that the boys had only attended day care “for a few weeks … around February” and a week in September 2014, there was ultimately no dispute about the details of their actual attendances, or about the extent of her involvement whilst they were at day care.  She said that when the children were attending day care she would take them to the day care provider early in the morning.  The carer would usually take them to and from school.  She would usually attend the day care premises between 6 and 6:30pm, and stay there with the boys until about 8:00pm.

3. Ms Smith’s submissions sought to explain her use of day care as an occasional and temporary measure primarily prompted by her own medical condition and relationship needs. In this context the submissions pointed to (i) evidence (in May 2014) of Ms Smith’s mental health difficulties, and (ii) the difficulties the twins’ behaviour presented for her relationship with her current husband. Ms Smith’s submission was that these periods of day care usage should be regarded as merely temporary arrangements and should not be used to detract from a “constant care” finding. In that context the submissions pointed to SSA 1991 ss 198AC(3) & 957(3) - with their discretions to disregard temporary periods of cessation in the provision of care.

4. I am not satisfied that Ms Smith’s use of child care facilities is properly to be characterised as merely a temporary change from the usual care arrangements.  She said the decision was prompted by her own deteriorating health, the difficulties in the relationship with her husband and the burdens of looking after her youngest son (who was then perhaps only a year old).  These were all likely to be real pressures, but I am not satisfied that Ms Smith’s extensive use of day care was the result of the burden of her own care activities in providing care for the twins’ behavioural problems.  In any event, the more important matter is the nature and extent of her own actual care activities, given the extent of her day care use. 

5. In that regard, the primary emphasis of Ms Smith’s submissions was that the proper connotation of constant care (i) required appreciation that care included “care and attention” as well as specific physical activity, (ii) required regard to the permanent and recurring nature of the care need, (iii) did not require either daily activity or physical activity for significant periods.  In essence, Ms Smith’s submissions placed considerable reliance on the approach to “constant care” that the Tribunal had taken in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harvey [2009] AATA 835; (2009) 112 ALD 216 (see paragraph 41(h) above).

6. Ms Smith submitted that the matter to which attention should principally directed was the twins’ behaviour at night.  She had to attend to both children in managing the boys around the process of the evening meal, preparing for bed, attempting to get them settled down to sleep, and in dealing with their sleep disturbances (whether the regular distress and incontinence of Tw1A, the consequential disturbance of Tw2M, or Tw2m’s own (less frequent) sleep disturbance.  Her daily responsibilities in caring for the twins in dealing with these matters were said to be “paramount” in determining whether or not she provided “constant carel”.

7. The findings I have made in relation to the boys care load accept the significance of their behavioural problems, with which Ms Smith had to deal on a daily basis.  Other evidence about the twins’ conduct at day care actually tends to support Ms Smith’s evidence about the nature and extent of the boys’ behavioural difficulties.  This is because:

   (a)There was an October 2014 day care fieldworker’s report detailing her observation of the boys having “quite damaging bruises on their knees, elbows, face and scars on their arms”  (That evidence is, of itself, not directly probative of the boys constant fighting.  But it is consistent with Ms Smith’s evidence of their conduct.)

   (b)There was a July 2015 report from the day care co-ordinator reporting the following behaviours for the twins

   (i)Tw1A:  difficult to work with and hard to control, angry or shouting and yelling “most of the time”, “always” hitting other children, and someone who would cry “most of the time”

   (ii)Tw2M:  extremely difficult and hyperactive, always angry and likely to hit other children report

   (c)The July 2015 report also disclosed that the day care provider regarded the boys’ behaviour as so difficult that they had been refused further attendance after July 2015.

8. The Secretary was critical of the July 2015 report, and challenged it as something that had been prepared for the present proceedings, written by a person who had no direct knowledge of the boys’ behaviour, and significantly prompted (as to its more detailed contents) by Ms Smith herself.  There is some justification for each of the Secretary’s criticisms.  But the day care co-ordinator who prepared the report gave evidence by telephone and explained that she had been given a specific list of topics to address, and had discussed them with both Ms Smith and the actual day carer who had looked after the boys.  In those circumstances, I regard it as proper to conclude that the report provides some measure of support for, and no good reason to discount, Ms Smith’s evidence about the nature and extent of the boys’ behavioural difficulties.

9. I accept the Respondent’s submissions that the question of “constant care” is to be determined by regard to the nature and extent of Ms Smith’s care in the periods before and after the boys’ school and day care attendances. Having regard to the twins’ significant behavioural difficulties, the corresponding ACL care load score, and Ms Smith’s evidence of the nature and extent of her care activities, I find that the regularity and intensity of her care is properly to be characterised as “constant” for the purposes of the qualification requirement in SSA 1991 s 197C(1)(a).

   Employment restriction - carer payment

10. The Secretary contends that Ms Smith’s care activities, even if properly characterised as “constant”, do not “severely restrict her capacity to undertake paid employment”.  There are several aspects to the Secretary’s contention:

    (a)the twins’ school and day care attendance pattern, shows that her direct “constant care” involvement around the time of the cancellation decision was typically before and after normal working hours (see paragraph 55 above).

    (b)Ms Smith’s evidence about the extent of her nightly activities in supervising and attending to the boys, until well into the night, and its suggested effect on her ability to function during the day, was exaggerated.

    (c)Ms Smith’s involvement in various educational courses was inconsistent with her having a severely restricted employment capacity.

11. The evidence tends to show, and Ms Smith’s submissions did not substantially dispute, that during the time the twins were attending school and day care, she had very limited involvement with them.  She principally relied on the nature and intensity of her care responsibilities during the remainder of the day, as sufficient to establish that her care responsibilities severely restricted her employment capacity.  A significant part of that claim was that her own sleep was severely disrupted each night (see paragraph 24(a)above).  But apart from that claim, there was very little evidence about what actual impact her care had on her daily activities.  Indeed there was little evidence about what those activities involved.  No doubt it would be reasonable to infer that they likely involved attendance to normal household tasks, care of her infant son, preparation for the evening’s supervision of the boys, and maybe some “catch up” sleep (as the Secretary’s submissions speculated, but about which there was no specific evidence).

12. The employment capacity “restriction” qualification requirement in SSA 1991 s 197C(1)(d) was introduced in partial recognition of the fact that the responsibilities of ordinary parental care may impact on a person’s employment capacity, and to emphasise that the requirement is satisfied only when the employment capacity is “severely” restricted by the actual “constant care” needs. Necessarily the requirement is not amenable to a prescriptive description, and requires an impressionistic assessment of the carer’s particular circumstances, and actual satisfaction that the care itself gives rise to a “severe” restriction on employment capacity.

13. The Tribunal’s decision in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Towse - [2008] AATA 763; (2008) 103 ALD 688 dealt with an 8 year old autistic boy who satisfied the then statutory definition of a “profoundly disabled child” (see the former SSA 1991 s 198(2AA)). The boy attended school from 0830 to 1600 and was otherwise cared for by his mother, on their country property. She had undertaken some part time TAFE course, but had eventually stopped, because of the demands of caring for the boy. Dr Alexander rejected the Secretary’s submission that because Mrs Towse had the opportunity to pursue employment whilst her son was at school, she did not satisfy the severe restriction on employment capacity requirement (then contained in SSA 1991 s 198(10(b). Dr Alexander said that the submission addressed the wrong question:

    [42] The question is not whether she is able to undertake employment, but whether the care that she provides, severely restricts her capacity to undertake paid employment.

14. The distinction Dr Alexander made in Towse is arguably reflected in the contents of the Guide.  That is perhaps suggested by the passages I have set out in paragraphs 46 and 47 above.  The suggestion was perhaps more clear from the wording of part of paragraph 3.6.4-60 of the Guide as it stood in July 2010:  see Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2010] AATA 551; (2010) 116 ALD 601 (2010) at [22]. That passage was as follows.

    A carer providing a substantial level of care in the early morning and evening, and/or overnight, may not be capable of substantial employment when they are not providing care. However, the level of care they provide to the care receiver may make it possible for the care receiver to participate in the work force.

15. At the time of the introduction of SSA 1991 s 197C, The Explanatory Memorandum to the Social Security Legislation Amendment (Improved Support For Carers) Bill 2009 contained (at page 7) two illustrative examples relevant to the concept of severe restriction on employment capacity expressed in SSA 1991 s 197C

    Person’s capacity to undertake paid employment severely restricted

    Cristina makes a claim for carer payment on the basis that she is personally providing constant care to her child with a medical condition. The provision of that care has been assessed under the Disability Care Load Assessment (Child) Determination and has received a qualifying rating of intense. A treating health professional has also certified that the child will need care for six months or more and that care is to be provided by the mother. The child attends a special class within a school between the hours of 8:30am and 4:00pm, five days a week. In order to get the child to school, Cristina must begin bathing and feeding the child at 5:00am and drive the child to school at 8am. She picks the child up at 4:00pm each school day and, upon returning home, the child must be constantly supervised and cared for. The child often has seizures during the night, requiring the mother to be alert during the night and she supervises the child with the use of patient monitors. Cristina is also required to attend school in order to care for the child three days a week, and is often called in to the school to assist on the other days of the week. Although the child attends school five days a week, the provision of care outside the schooling hours, together with attendance with the child at school, causes Cristina to be severely restricted from undertaking paid employment. Provided the requirements of subsections 197B(2), (3) and (4) are met, Cristina will qualify for a carer payment.

    Person’s capacity to undertake paid employment not severely restricted

    Reginald makes a claim for carer payment on the basis that he is personally providing care to Morey, who has a behavioural disability. Morey attends a special class at school between the hours of 8:30am and 4:00pm, five days a week. In the class, teachers’ aides are employed to supervise the children in the class and help them in taking medication. Morey continues to require a level of supervision outside of school. However, Morey only requires a moderate level of assistance in dressing, bathing and feeding, and he only needs to be attended to occasionally during the night by Reginald. That is, the level of care required by Morey is not substantially more than any other child of his age and the provision of care by Reginald for Morey is not substantially greater than that of a child of the same age who attends school but does not have a behavioural disability. Reginald’s capacity to undertake paid employment is not severely restricted as he would be able to work when the child attends school. Reginald does not qualify for a carer payment as he does not meet the requirement of paragraph 197B(1)(d).

16. Contrasting the decision in Towse with the non-qualifying example given in the Explanatory Memorandum highlights the impressionistic, and difficult, assessment involved in determining whether an employment capacity restriction exists because of the care provision, and whether or not it is severe.  Dr Alexander apparently concluded that the restriction was severe because he was satisfied that the 9 year old required significant supervision outside school hours.  On the other hand, the Explanatory Memorandum suggested that a similar period of school attendance did not involve “severe” restriction - at least where the child’s care requirement was not “substantially greater than that of a child of the same age” without the particular behavioural difficulties.

17. In the present case the findings I have made require a conclusion that the twins’ care requirement is substantially greater than that of similarly aged children.  But the determinative question is whether or not the constant care Ms Smith actually provided gave rise to a severe employment incapacity in her particular circumstances.  I am not satisfied that it did.

18. As the Secretary emphasised, the pattern of Ms Smith’s care for a substantial period before the cancellation decision was typified by the twins’ prolonged attendance at day care and school.  I have not accepted the suggestion that Ms Smith’s extensive use of day care at that time was itself the result of the burden of her care responsibilities.  She did not suggest that the decision to remove the children from day care was a result of the financial effect of the cancellation decision.  She disavowed a suggestion that she resumed day care in August 2014 because of the stay that then came into force.  At one point in her evidence she questioned whether she had the personal skills to address the boys’ challenging behaviours.  In those circumstances, and having regard also to the relationship difficulties and the demands of her youngest child, it is possible that Ms Smith’s extensive use of day care reflected a desire to enlist qualified and experienced help in managing the boys’ behaviour.  Whether not that possibility reflects the reality, I am certainly not satisfied that Ms Smith’s day care use was probative of a conclusion that her constant care burden itself severely restricted her employment capacity.

19. As it seems to me, at the time of the cancellation decision Ms Smith made her own decision about the appropriateness of resorting to day care.  In the preceding months she had used day care for a substantial number of hours and for a substantial period.  The result of those decisions (about the frequency and extent of day care) was to remove her care responsibilities for the boys for very substantial periods of the days concerned.  She resorted to substantial day care use again in September 2014, and that use continued until April 2015.  The Secretary says this later period of day care attendance confirms the impression that the earlier attendance pattern was indeed typical, and can fairly be taken into account in determining Ms Smith’s payment entitlement.

20. Other evidence suggests that Ms Smith is an intelligent, resourceful and motivated person.  In 2012 she enrolled in various TAFE courses.  One course was a “nail technology” course which she liked.  (Ms Smith explained that she had previously worked from home as a beautician, and was particularly talented in that area.)  She had only attended the course of about six weeks.  She suggested that her 2012 pregnancy was a factor in not continuing the course.  Another factor, and one perhaps not entirely unrelated, was that it was around that time the boys were frequently getting into trouble at school and she was unable to concentrate on the course.  At around the time of the cancellation decision in April 2014, Ms Smith then had a one year old child - and in that respect the situation was somewhat similar.  But it was also different, because the evidence was that the twins were not then “getting into trouble” at school to any significant extent.

21. Moreover, in the intervening period Ms Smith did a Certificate II level course in Hairdressing.  She finished that course in 2013.  In 2014, after the cancellation decision she enrolled in an English language course at TAFE.  But that was very short lived.  She said that after two days she better appreciated how much work was involved, and decided that she could not manage the combined load of the course, looking after the twins and caring for her youngest son. 

22. It was submitted on Ms Smith’s behalf that this abandonment of the English course in mid 2014 was probative of the burden of her constant care and of its effect in severely restricting her capacity for employment.  I am not satisfied that is the correct conclusion to draw.  Such a conclusion contrasts first of all with Ms Smith’s pursuit of educational courses in 2012 and 2013, and secondly with her current endeavours.  In September 2014 Ms Smith enrolled in a Diploma level course in Early Childhood Education.  The course, which she started in September 2014, is a Diploma level course and involves TAFE attendance one day a week and home study.  Her course enrolment form indicates a study load of 22 hours per week.  She expects to continue with the course until December 2015.  This is a significant commitment, and one which I infer requires a good level of functional English.  But it is also one she feels able to undertake.  Her willingness to undertake such a commitment discourages me from accepting that her withdrawal from the English course in mid 2014 was in any sense probative of a severely restricted employment capacity as a result of her care provision.

1. I do accept that the twins have a need for constant care.  I accept that Ms Smith made a significant care contribution to her twin sons at around the time of the cancellation decision.  I also accept that she would likely to have had a severe restriction on her employment capacity at that time if she had provided “constant care” apart from the times when the boys were at school and at day care.  But the evidence shows that, for months before the cancellation decision, the twins were out of her care most days for more than 12 hours a day.  The evidence does not provide any clear indication about Ms Smith’s activities in those periods when the twins were away.  Nor does it give any clear indication of the effect of her care responsibilities on her during those periods.  Ms Smith’s extensive use of day care, both before and after April 2014, must have been the result of considered decisions.  Those decisions, and her extensive use of day care, were not really explained.   It was certainly not adequately or accurately explained in her written statement of April 2015.  In that statement she suggested, quite inaccurately, that she had only used day care for a few weeks.

2. In the decision under review the SSAT acted on the basis that Ms Smith was called to the school at least twice a week, and that the only time she got any rest was when the boys were at school.  The former proposition is inconsistent with Ms Smith’s ACL questionnaire responses in December 2013 and June 2014, and is not corroborated by the school records.  The latter proposition is very difficult to reconcile with the objective evidence of Ms Smith’s extensive use of day care, a topic that was not addressed at all in the SSAT decision reasons.

3. In the circumstances I am not satisfied that Ms Smith’s provision of constant care (to the extent I have found that she actually provided that care) did severely restrict her capacity to undertake paid employment.

   Decision conclusions

4. Ms Smith was qualified for carer allowance, as at 30 April 2014.  The SSAT’s decision to that effect should be affirmed.  Ms Smith was not qualified for carer payment at that time.  The SSAT’s decision to the contrary should be set aside.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mr Peter Taylor SC, Senior Member

....................[sgd]..................................................

Associate

Dated 15 January 2016

Date(s) of hearing	13, 14, 31 July, 17 August 2015
Date final submissions received	31 August 2015
Counsel for the Applicant	Ms K Sant
Solicitors for the Applicant	Dr Thompson, Sparke Helmore
Solicitors for the Respondent	Ms S Thirukumar, Welfare Rights Centre