Sunitskaya and Secretary, Department of Family, Community Services and Indigenous Affairs

[2006] AATA 1015

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1015

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/254

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RAISA SUNITSKAYA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

REASONS FOR DECISION

Tribunal Dr J D Campbell, Member 

Date28 November 2006

PlaceSydney

Decision The decision under review is affirmed.

……………………..

Dr J D Campbell
  Member

CATCHWORDS

Social Security – carer allowance – issues and activities addressing special care needs – bodily functions – sustaining care receiver’s life – care on a daily basis

Social Security Act 1991, section 954 A(1), A(2)

REASONS FOR DECISION

28 November 2006   Dr Campbell, Member     

1.       Mrs Raisa Sunitskaya is seeking payment of a Carer Allowance in caring for her mother, Mrs Dora Sunitskaya.  Mrs Sunitskaya lodged a claim on 25 July 2005, in which she completed a questionnaire on how well her mother manages particular activities of daily living, her cognitive function and her behaviour.  Accompanying the claim was a Health Professional Assessment completed by the attending general practitioner for her mother (Dr Vald Zeldovich). 

2.       Mrs Sunitskaya completed two further Carer Allowance questionnaire forms, one at Centrelink’s request, and one at her own behest, the former being lodged on 8 August 2005 and the latter on 5 October 2005.  Mrs Sunitskaya’s claim was refused on 9 August 2005 (8 August 2005 questionnaire considered), with the original decision maker affirming his earlier decision on 26 October 2005, having considered the questionnaire of 5 October 2005.  This decision was affirmed by an Authorised Review Officer on 30 November 2005.

THE ISSUES

3.        The issues in this matter are particularised as:

·does Mrs Raisa Sunitskaya provide care to her mother, Mrs Dora Sunitskaya, on a daily basis?

·if so, does the care relate to Mrs Dora Sunitskaya’s bodily functions, or to sustaining her life?

·does the care given for such activities amount to 20 hours per week?

THE DECISION

4.       For the reasons stated later in this decision I conclude that:

(a)Mrs Raisa Sunitskaya provides care to her mother, Mrs Dora Sunitskaya on almost a daily basis;

(b)Mrs Raisa Sunitskaya provides much care for her mother, but only some of this care relates to caring for Mrs Dora Sunitskaya’s bodily functions or sustaining her life;

(c)the time taken in provision of such care (bodily functions/sustaining life benefits) is less than 20 hours per week by Mrs Raisa Sunitskaya, in conjunction with her husband and son;

(d)Mrs Sunitskaya is not successful in her application for carer payment on this occasion, with the decision under review being affirmed.

BACKGROUND EVIDENCE

5.       Mrs Raisa Sunitskaya, the carer in this matter, was born in Uzbekistan in 1948, migrated with her husband and two sons to Australia in 1991, lives in a three bedroom unit (almost ground floor – five steps) at Allawah with her husband and one son. Her mother, Mrs Dora Sunitskaya, also resides there from Friday evening until Tuesday morning. Mrs Raisa Sunitskaya works as a Credit Officer with British American Tobacco on a full time basis at Pagewood, Monday to Friday, driving a car to and from work.  English is Mrs Raisa Sunitskaya’s third language.

6.       Mrs Dora Sunitskaya, her mother, was born in Uzbekistan in 1926, educated, trained and practised as a cardiologist in that country prior to emigrating to Australia in 1993 with her husband.  Initially Mr and Mrs Sunitskaya lived with their daughter and her husband, but in 1994 moved to a ground floor Housing Commission unit at Maroubra. 

7.        In 1993 Mrs Dora Sunitskaya underwent a right hip replacement which was repeated in 2003.  In 2004 she underwent a partial gastrectomy for stomach cancer.  In June 2005, her husband died.

8.        Since her husband’s death, Mrs Dora Sunitskaya has continued to reside alone at Maroubra from Tuesday morning to Friday evening each week.  She has difficulty with vision in her left eye (cataract), has no difficulty with hearing, an occasional urinary mishap, and has been under cardiological care for her heart and hypertension for the last ten months.

9.        Mrs Dora Sunitskaya is able to walk to the beach on her own (five minutes away); became tearful after her husband died (sometimes seems to be getting better): watches Russian pay television, converses with another elderly Russian couple in the complex, and attempts to read the paper each day.  In her activities in the unit she is able to warm prepared meals in the evening, as well as attending to breakfast and lunch.  She is able to care for herself in relation to personal hygiene, dressing (some assistance) and bathing (some assistance) and care of her bedroom (variable) and washes the dishes.  She maintains a bank account in her name and communicates frequently with her daughter by telephone, both at home and at work.  Mrs Raisa Sunitskaya organised and pays for general cleaning (one and a half hours per fortnight through the Benevolent Society).

10.      In defining Mrs Raisa Sunitskaya’s provision of care, the following details are provided.

·Mrs Dora Sunitskaya remains a person of an active and intelligent mind, with a keen interest in her own welfare and events happening within her environment and elsewhere.  She has had some mood/emotional disturbance (since the death of her husband), but apart from an occasional memory loss, she remains alert, inquisitive and makes particular demands on her daughter.

·The weekly schedule is well established whereby Mrs Raisa Sunitskaya collects her mother on Friday evening and returns her to her unit on most Tuesday mornings.0

·During the period while living alone, Mrs Raisa Sunitskaya has adopted a routine in part which involves an early morning phone call to and/or from her mother, lunch time shopping and banking and a visit to the unit to see her mother on almost every day.  The routine obviously varies from time to time.  During her visits she will assist with bathing, dress irregularities and other matters requiring attention.  Communication is a major ingredient of their interaction, and this may involve up to three phone calls a day at work making sure of particular issues.  Further, Mrs Raisa Sunitskaya ensures that the appropriate medications have been taken.  In relation to food, evening meals are prepared by the daughter, with Mrs Dora Sunitskaya undertaking the heating up, eating, and cleaning up unaided.

·During the weekend period at Allawah, care is given in relation to mobility (entering and egresssing car), climbing stairs (five), movement after prolonged sitting, and if going for a small walk.  Other assistance given is with bathing, massage and some nail manicure.  Food eaten is the same as for others in the household.

·In relation to medical appointments, Mrs Raisa Sunitskaya tends to go with her mother as often as possible, but if not her husband and/or son will attend.  This is of particular importance because Mrs Dora Sunitskaya is particularly enquiring both at and after such consultations. Such consultations are variable in number, but would number on average one or two a month.

CONSIDERATION AND FINDINGS

11.      There is no doubt that Mrs Raisa Sunitskaya is a caring and attentive daughter towards her mother.  I certainly make such a finding.  In so doing I acknowledge, that following the death of Mr Sunitskaya in 2005, the current domestic relationships have evolved which respect the desire of Mrs Dora Sunitskaya to remain in independent living.  That such existing domestic relationships are but in essence temporary (months/years) is a reflection of the underlying issues, namely increasing frailty of an active but ageing person and the ability of an individual, with some family assistance, to cope with increasing demands, while holding down a full time responsible job.

12.      In terms of the questions I must answer, I was particular in exploring the areas nominated in the Carer Allowance questionnaire with Mrs Raisa Sunitskaya.  I addressed with her the variability in answers given.  I accept that she does experience some difficulty in fully understanding the questions asked, but in time I observed that she tended to become less particular as more detail was requested.  Further questioning did not assist, and on occasions seemed to confuse information already given.

13.      In addressing the particulars of questions asked within sections six to eight of the various Carer Allowance questionnaires, I make the following observations:

(a)Mobility:        

Description was clearly that Mrs Dora Sunitskaya had particular positional restrictions from which she needed assistance on occasions.  These included climbing stairs (minimal), prolonged sitting (weekends) and climbing out of bed (weekend only).  It was also noted that she was able to look after her own mobility at Maroubra, with ability to walk unattended to beach (five minutes each way).

Comment :          Assistance two to three hours per week.

(b)Personal Hygiene:  

Description was clearly that Mrs Dora Sunitskaya was able to use toilet, groom and dress with minimal assistance.  Shower assistance was required, together with nail manicure.

Comment :          Assistance three hours per week.

(c)Feeding:       

Description was clearly that there was no assistance required for eating nor that Mrs Dora Sunitskaya was a non eater.  Assistance was to do with shopping, preparation and cooking.

Comment :          Nil required.

(d)Communication:      

Description was that Mrs Raisa Sunitskaya was to assist with mother’s queries as and when required.  Mother had other sources of information (Russian friends, TV, newspaper).  Again daughter does all the banking etc.

Comment :          Persistent four hours per week.

(e)Treatment:    

Specific description of supervising medication, interpreting at doctors appointments, lower back massage (weekend).

Comment :          Intermittent – two hours per week.

(f)Behaviour Management:   

Specific description of Mrs Dora Sunitskaya being emotional and a little withdrawn following husband’s death in 2005.  No suggestion of inappropriate behaviour.

Comment :          Communication – Considered within that question – otherwise nil.

14.      In summary I have concluded from the material before me that Mrs Dora Sunitskaya’s care needs in the respective areas nominated are of the order of 11-12 hours per week.  I acknowledge that this is somewhat less than what Mrs Raisa Sunitskaya believes she does, but I note the variability (e.g. nil to five hours for behaviour management; one hour to three hours 40 minutes for treatment, two hours 30 mins to four hours for feeding, five to seven hours for communication, two hours 30 mins to nine hours for mobility, two hours to four hours 30 minutes for personal hygiene in the three questionnaires before the Tribunal together with Mrs Raisa Sunitskaya’s oral evidence).  I note that the findings made above are in general terms consistent with the Health Professional Assessment of Dr Zeldovich.

15.      Similarly, in addressing explanation of this variability, I was left with the distinct impression that while Mrs Raisa Sunitskaya was genuine in caring for her mother, the particular nature of the material required was a matter she preferred to deal with more by way of generality.  I noted that it had been suggested to Mrs Raisa Sunitskaya that she maintain a diary of her caring efforts, but no evidence of such was forthcoming.  Finally, it was still evident to me that Mrs Raisa Sunitskaya was continuing to experience difficulty in what she could not and what she could count in terms of completing the questionnaire. 

16. In addressing the necessary qualifications for Carer Allowance, contained within sections 954A(1) and 954A(2) of the Social Security Act 1991 (‘the Act’), I note the following subsections within section 954A(2) which are relevant to this matter.

954A(2)  The care and attention:

(a)  must address special care needs:

(i)  that the care receiver is assessed under the Adult Disability Assessment Tool as having; and
(ii)  that relate to the care receiver's bodily functions or to sustaining the care receiver's life; and

(b)  must be received by the care receiver on a daily basis, for a total of at least 20 hours a week; and

17. Consequence to my finding of fact that Mrs Raisa Sunitskaya is providing some 11 to 12 hours special care needs for her mother, I conclude that Mrs Raisa Sunitskaya does not satisfy the qualification nominated in section 954A(2)(b) of the Act.

18.      In relation to the issue of care given on a daily basis, I again note some ambivalence in the evidence given by Mrs Raisa Sunitskaya.  I find it unnecessary to make a finding on this issue noting, in turn, that it is necessary for Mrs Raisa Sunitskaya to demonstrate that she is giving such care on a daily basis.

19.      In such circumstances, I conclude that Mrs Raisa Sunitskaya does not qualify for the payment of Carer Allowance on this occasion, and that the decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of DR CAMPBELL, MEMBER

Signed: .............[sgd]...............................................................
  Associate

Dates of Hearing  7 November 2006
Date of Decision  28 November 2006
Counsel for the Applicant         Self-represented 
Solicitor for the Respondent    Mr Ken Bullock