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

[2010] AATA 997

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 997

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3427

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHONA SPANN

Applicant

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

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date13 December 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd]...............................

Member

CATCHWORDS

SOCIAL SECURITY – Benefits and allowances – Eligibility for carer allowance – Applicant’s circumstances do not satisfy the care requirements under the relevant legislation – Decision under review affirmed.

Social Security Act 1991 (Cth) ss 954, 954A

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Harman and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 257.

REASONS FOR DECISION

13 December 2010 Dr M Denovan, Member    

INTRODUCTION

1.      Ms Spann (“the applicant”) has provided care for Ms Wendy James since late 2009.  She made a claim for carer’s allowance in relation to that care on 13 January 2010.  Because Ms James was living in the home of Ms Spann only four nights each week, the claim was rejected by Centrelink (“the respondent”) on 5 February 2010.

2.      An authorised review officer (“ARO”) affirmed the decision on 31 March 2010, as did the Social Security Appeals Tribunal (“SSAT”) on 16 July 2010.

ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

3.      The relevant legislation is contained within the Social Security Act 1991 (“the Act”). A person can qualify for carers allowance whether or not they live at the same home as the care receiver. The qualifying criteria for each of these alternative living situations are different, and are set out in ss 954 and 954A of the Act respectively.

4.      Both provisions contain specific requirements about the frequency and location at which the care is to be received.  When the carer and the care receiver live in the same home, subsection 954(1)(d) requires that the care receiver receive care and attention on a daily basis from the carer, or from the carer together with another person.  When the carer and the care receiver do not reside in the same home, the care must be received on a daily basis, for at least a total of 20 hours a week, and relate to the care receiver’s bodily functions or to sustaining the care receivers life[1].

[1] Section 954A(2)(a)(ii) and (b)

5.      It is not in dispute that Ms James is a disabled person who qualifies to receive care within the scope of legislation.  I have to decide whether Ms Spann provided the type of care that qualifies for carer allowance for any period up until 4 October 2010, when Ms James ceased to reside with Ms Spann.

Does Ms Spann provide care that would satisfy the requirements for carer’s allowance?

6.      Ms Spann told me that Ms James is the fiancé of a close friend of her former partner, Mr Tony Reihana.  Mr Reihana represented Ms Spann at the hearing and has prepared most of the written submissions to Centrelink, the SSAT and this Tribunal.

7.      Ms Spann lives in a home owned by her adult son.  She occupies the upstairs of that property along with her two young children, also children of Mr Reihana.  The downstairs of the house is occupied by Ms Spann’s adult daughter, her partner and their infant child.

8.      Ms Spann said that when looking after Ms James, she needed to remind her to attend to most normal activities of daily living.  Whilst Ms James is capable of feeding and showering herself, she is inclined not to do either if not pushed to do so.  Ms James also needs reminding to take her medication.  Ms Spann would take Ms James with her almost everywhere she went.  She also took Ms James to her appointments, such as hairdressers and doctors.  Ms Spann took Ms James to a weekly outreach centre, where Ms James was involved in cutting other peoples hair.

9.      Ms Spann told me that when Ms James first commenced living with her, the arrangement was for Ms James to spend 4 days and nights with Ms Spann, and the remainder of the time with her fiancé, Oscar.  Oscar was living on a boat at the time.  The vessel had a toilet and sleeping facilities but no shower.  Ms Spann would provide the food for Ms James for those three days.  She would also drop in most days and remind Ms James to take her medication, and to make sure she had showered (at a friend’s) and eaten.

10. Because Ms Spann and Ms James resided together s 954 of the Act is the appropriate provision. In order to qualify for carer allowance under that section, a person must provide care on a daily basis[2].  The Guide to Social Security Law (“the Guide”)[3], whilst not binding on this Tribunal, will be followed unless there are cogent reasons for not doing so[4].  According to the Guide daily care means care seven days a week.  Significantly, that care must be provided in the home of the carer and the care receiver.  Care of the nature provided by Ms Spann for three of the seven days a week whilst Ms James resided with her fiancé or friends, including providing food, driving Ms James to the shops and reminding her to shower and take medications whilst she is on the boat does not constitute care in the private home of the carer and the care receiver.

[2] Section 954(1)(d)

[3] Department of Families, Housing, Community Services and Indigenous Affairs, The Guide to Social Security Law (Commonwealth of Australia 2010) version 1.171 released 1 November 2010

[4] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

11. Mr Reihana submitted that the legislation should be interpreted remedially, because it is unfair that the circumstance of this case were not anticipated at the time the legislation was drafted. His submissions in effect, require me to accept Ms Spann’s situation as a hybrid of ss 954 and 954A. Such legislative interpretation is beyond the scope of this Tribunal, however it is instructive to point out that the nature of care given by Ms Spann to Ms James for the three days she stayed with her fiancé would not satisfy s 954A, even if it had been given seven days a week, because Ms Spann was not assisting Ms James with bodily functions during that time[5].

[5] Section 954A(2)(a)(ii)

12.     The Guide explains that assistance with bodily functions includes assistance with mobility, personal hygiene, eating and drinking, communication, and treatment[6].  The Guide suggests that assistance with showering and dressing, feeding and helping the care receiver get around the house may be examples of such activities.  On the other hand, activities such as shopping, housework or making afternoon tea do not address special care needs.  Merely reminding Ms James to shower or take medications would also not be sufficient.  This approach has been approved previously by the Tribunal[7].

[6] Instruction 3.6.7.45 of The Guide to Social security Law last reviewed 4 September 2006

[7]Harman and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 257.

13.     Without any prompting, Ms Spann told me that four or five weeks after Ms James moved in with her, the care arrangements changed, and Ms James stayed with her almost full time.  She explained that this was because Oscar ceased living on his boat and relocated to board with a family.  Ms James still visited Oscar, about one night a week.  Neither Ms Spann nor Mr Reihana could adequately explain to me why these changes in circumstances were not reported to Centrelink at the time the change occurred, or in fact any time prior to a conference at this Tribunal in preparation for this hearing.  The conference at this Tribunal was apparently the first time Ms Spann mentioned that Ms James remained with her seven nights a week most weeks.  Those conference notes are not before me, however I understand it to be on or about 29 September 2010. Ms Spann acknowledged that for three weeks in May 2010, and one week in August 2010, Ms James was not in her care.

14.     I accept Ms Spann’s evidence that she adopted those submissions as her own, and signed them without understanding what had been written by Mr Reihana on her behalf.  That does not explain to me why she did not mention to Centrelink that Ms James was in her care most nights a week at any time since February 2010, as she now claims.  Ms Spann claimed ignorance was her excuse, she did not understand the issues, and left everything up to Mr Reihana.  It was clear however, that when giving evidence to this Tribunal she recognised the significance that this might make to her application.

15.     Mr Reihana and Ms Spann have children together and are in frequent contact with each other.  He is in a position to be well aware of the living arrangements, and it is not his submission that he did not know about the change in care arrangements.  Mr Reihana has prepared several lengthy submissions addressing the issue that prevented Ms Spann’s claim being successful.  The thrust of his submissions until now has been that it should not matter that Ms James is not in the residence of Ms Spann three nights a week.  Some of those submissions were made as recently as August 2010, yet there is no mention even in those later documents of the altered care arrangements.

16.     I do not accept that within the thirteen weeks of making a claim for carer allowance, the type of care Ms Spann was providing care for Ms James satisfied the legislative criteria for carers’ allowance.

FINDINGS OF THE TRIBUNAL

17.I affirm the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ..............................[Sgd]...............................................
  Alex Seagar, Associate

Date/s of Hearing  26 November 2010
Date of Decision  13 December 2010
The Applicant was assisted by Mr T Reihana     
For the Respondent                  Mr J Guthrie, Departmental Advocate