Thomas Tynan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 339

[2012] AATA 339 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/1690
Re	Thomas Tynan
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	6 June 2012
Place	Sydney

The Tribunal sets aside the decision under review and in substitution decides that the applicant qualified for a carer allowance as of 17 August 2010.

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

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – carers allowance – whether husband qualified for carers allowance in respect of his wife – whether husband disqualified from carer allowance because wife resident in nursing home – daily care provided in private home – decision under review set aside

LEGISLATION

Social Security Act 1991 ss 954 and 954A

Social Security (Administration) Act 1999 ss 13, 41, 42 and sch 2, cll 3 and 4

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Clemente and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 831

SECONDARY MATERIALS

Department of Families, Housing, Community Services and Indigenous Affairs, Guide to Social Security Law, (Department of Families, Housing, Community Services and Indigenous Affairs, Canberra, 2012)

Family and Community Services and Veterans’ Affairs Legislation Amendment (2004 Budget Measures) Bill 2004 (Cth) Explanatory Memorandum

REASONS FOR DECISION

Senior Member J F Toohey

6 June 2012

BACKGROUND

1. These proceedings concern the interpretation of provisions in the Social Security Act1991 (the SS Act) concerning qualification for carer allowance. In particular, they concern whether Mr Thomas Tynan is disqualified from receiving carer allowance in respect of his wife, Christine, because she resides in a nursing home.

2. Mrs Tynan suffered a severe stroke in April 2006 which left her with right-sided hemiplegia.  The stroke affected her memory and her capacity to communicate, and left her dependent on others for assistance with all activities of daily living.  In July 2006, she was admitted to Blacktown Nursing Home.

3. Mr Tynan has devoted himself to his wife’s care and rehabilitation since her stroke.  With intensive therapy, her condition has gradually improved.  She is now able to walk with the help of a four-post stick, although she still needs a wheelchair on occasions.  With speech therapy, she is now able to speak, although with some difficulty, and her memory has started to improve. 

4. Despite the improvement in her condition, Mrs Tynan still needs a high level of care and assistance with all activities of daily living.  It is not feasible for Mr Tynan to care for her full time at home.  There is no argument that the nursing home is her residence and is likely to remain so for the foreseeable future.

   MR TYNAN'S APPLICATIONS FOR CARER PAYMENT AND CARER ALLOWANCE

5. In September 2008, Mr Tynan claimed a carer payment and carer allowance. Put simply, carer payment is an income support payment to a person who provides constant care to a person with a disability: s 198 of the SS Act. Carer allowance is a supplementary payment available to a person who provides daily care in a private home for someone with special needs: ss 954 and 954A.

6. Centrelink rejected Mr Tynan’s claims.  In February 2010, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decisions.  In March 2010, Mr Tynan sought review of the SSAT’s decisions in the Administrative Appeals Tribunal.  His application was lodged out of time.  His application for an extension of time was refused and his applications came to an end at that point.

7. The applications which are the subject of these proceedings started on 17 August 2010 when Mr Tynan contacted Centrelink by telephone to inquire again about claiming carer payment and carer allowance. On 24 August 2010, he lodged written claims for both payments with Centrelink. Because he lodged his written claims within 14 days of contacting Centrelink by telephone, he is taken to have made his claims on 17 August 2010: s 13 of the Social Security (Administration) Act 1999 (SSA Act).

8. Centrelink again rejected Mr Tynan’s claims and, on 15 April 2011, the SSAT affirmed those decisions. 

9. Mr Tynan seeks review of the SSAT’s decision concerning his claim for carer allowance.  He no longer pursues his claim for carer payment. 

10. Mr Tynan gave oral evidence before the Tribunal.  He was an impressive witness and I accept his evidence without reservation.

    THE ISSUE

11. I have to decide whether Mr Tynan qualified for carer allowance on 17 August 2010 or at any time in the following 13 weeks: ss 41, 42 and sch 2, cll 3 and 4, of the SSA Act.

12. The particular issue raised by Mr Tynan’s application is whether he is disqualified from receiving carer allowance because his wife receives paid care in a nursing home. 

    THE LEGISLATION

13. Prior to September 2004, a carer could only qualify for carer allowance if he or she lived in the same private home as the person for whom they provided care (the care receiver): s 954 (Qualification for carer allowance--caring for a disabled adult in a private home of both the adult and the carer). 

14. In September 2004, the SS Act was amended and s 954A was inserted. The amendment recognised that “the coresidency requirement [had] been subject to criticism for not recognising the diversity of caring situations in the community or the valuable contribution made by non-coresident carers to providing care” which “in many cases … allows the care receiver to continue to live in their own home, rather than going into alternative care”: Family and Community Services and Veterans’ Affairs Legislation Amendment (2004 Budget Measures) Bill 2004 (Cth) Explanatory Memorandum.

15. Section 954A provides:

    1A person is qualified for carer allowance for a disabled adult (the care receiver) if:

    (a)the care receiver is an Australian resident; and

    (b) the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

    (c)the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and

    (d)the care receiver receives care and attention that meet the requirements in subsection (2); and

    (e)the person is an Australian resident; and

    (f)the person's work in providing the care and attention is not on wages that are at or above the relevant minimum wage; and

    (g)neither the person nor anyone else is qualified for carer allowance for the care receiver under section 954.

16. Only s 954(1)(d) is in issue in this case. There is no dispute, and I am satisfied, that Mr Tynan will qualify for carer allowance if Mrs Tynan receives care and attention that meet the requirements in s 954A(2).

17. Section 954A(2) provides that 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

    (c)must:

    (i)      be received by the care receiver from the person alone; or

    (ii)     be received by the care receiver from the person together with another person whose work in providing the care and attention is not on wages that are at or above the wages mentioned in paragraph (1)(f), whether or not both persons are present every day when the care receiver receives the care and attention; and

    (d)must be received in a private home that is the residence of the care receiver, the person or the other person (if any), but not the residence of both the care receiver and the person; and

    (e)must not be care and attention of a kind (if any) specified, by legislative instrument, by the Secretary for the purposes of this paragraph.

18. Guidance for decision-makers in applying these provisions is found in the Guide to Social Security Law (The Guide) produced by the Secretary. The Guide is government policy and should be followed unless there are cogent reasons otherwise: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    SECTION 954A(2)(a): DOES THE CARE AND ATTENTION RECEIVED BY MRS TYNAN ADDRESS HER SPECIAL NEEDS?

19. On 22 September 2008, Dr I Miller completed a medical report for the purpose of Mr Tynan’s original applications for carer payment and carer allowance.  It showed the range and extent of Mrs Tynan’s permanent disabilities and her daily needs, and assessed her as unable to manage, or requiring assistance, in every category. 

20. An Adult Disability Assessment Tool Summary (ADAT) dated 23 September 2008 shows that Mrs Tynan had been given an ADAT score of 51.50. As s 954A(1)(c) requires her to be given an ADAT score of at least 30, she plainly satisfied that criterion at that time.

21. According to The Guide, an ADAT assessment remains current for two years.  If a condition is “permanent and non-improving” and the score is 40 or more, no further assessment is required: The Guide, Part 3.6.9.

22. According to The Guide, the ADAT assessment was still current when Mr Tynan made his second application in August 2010.  The Secretary has not taken issue with the currency of the assessment but, given the evidence about the improvement in Mrs Tynan’s condition, I have considered whether the September 2008 assessment fairly reflects what her score would have been on 17 August 2010 or within 13 weeks of that date, being the relevant period in this case.  I am satisfied, having heard Mr Tynan’s evidence, that even allowing for some improvement in her condition since the assessment in September 2008, Mrs Tynan would have been given the necessary score of 30 in the relevant period.

23. The Guide assists decision-makers to determine whether the personal care and attention provided by a non-coresident carer addresses the special needs that the care receiver is assessed as having by the ADAT assessment: The Guide 3.6.7.47. 

24. Mr Tynan gave evidence that his wife can use a wheelchair but cannot get up unaided and cannot be left unsupervised.  She needs help with all aspects of her personal care including washing, dressing and feeding herself; she can get herself to the toilet but needs help to dress herself afterwards; she needs supervision and assistance around the clock and could not survive without it.  In summary, while her condition has improved over time, her needs have remained largely the same.  While she is at home with him, he helps her with all aspects of her mobility, personal hygiene, eating and drinking and behaviour management.  His evidence about this is not contested.

25. I am satisfied that the care received by Mrs Tynan from Mr Tynan meets addresses her special care needs as set out in s 954A(2)(a).

26. I note that the SSAT found that the care provided by Mr Tynan did not satisfy s 954A because, at the time of its hearing, there had been no ADAT assessment of Mrs Tynan’s “special needs”. It followed that Mr Tynan could not satisfy s 954(2)(a) and that was “the end of the matter” for the purposes of its review. It is not clear why the SSAT found there had been no ADAT assessment given that one was undertaken in September 2008, but the point is that it did not consider the application for carer allowance further.

    SECTION 954A(2)(b): IS THE CARE RECEIVED ON A DAILY BASIS FOR A TOTAL OF AT LEAST 20 HOURS A WEEK?

27. Mr Tynan gave evidence that, with limited exceptions, which are dealt with below, he has provided his wife with care at their home every day since early 2010.  Around then, as her condition improved, he started taking her out of the nursing home and caring for her in his home for six or seven hours each day.  She would also spend one night a week at home with him. 

28. For about three months from November 2011, Mrs Tynan stopped staying at home one night each week and was returning each night to the nursing home.  She was still spending six or seven hours at home each day with him.  More recently, she has again started spending one night a week at home with Mr Tynan.

29. From late September 2010, as her condition continued to improve and Mr Tynan felt more confident about leaving her, their two sons were able to help out and give him some respite.  Since around that time, their son, Rod, has helped care for Mrs Tynan on Sundays.  He generally picks her up from the nursing home in the morning and is with her during the day, allowing Mr Tynan to leave the house for several hours.  Mr Tynan returns to help her with her dinner and takes her back to the nursing home in the evening.  He gave evidence that he might take a “back seat” but there is never a Sunday when he is not involved in her care, even if only preparing a meal for her at the end of the day and feeding her before dropping her back at the nursing home. 

30. Tables in The Guide assist to determine whether the amount of time the carer takes to provide the requisite care is reasonable by suggesting reasonable average and maximum hours spent on various aspects of care.  The estimates given by Mr Tynan in evidence, which are not contested, are within what The Guide suggests is reasonable.

31. I am satisfied that Mrs Tynan receives care and attention from Mr Tynan that address her special needs on a daily basis for a total of at least 20 hours per week and so satisfies s 954A(2)(b).

32. The only exception to Mr Tynan’s daily care is that, since around September 2010, he has spent one weekend every six to eight weeks fishing in Port Stephens, so as to have a break. He estimates there may be 30 to 40 days in a year when he provides no care at all to his wife. 

33. Section 957(1) of the SS Act provides that a person who otherwise qualifies for carer allowance does not cease to be qualified merely because of a temporary cessation in care, as long as the total period is not more than 63 days in a year (or any such longer period as the Secretary may allow if there is a special reason: s 957(3))

34. I am satisfied that the temporary cessation in daily care provided by Mr Tynan has not exceeded 63 days since the date of his application to Centrelink and does not disqualify him from carer allowance.

    DOES THE CARE AND ATTENTION RECEIVED BY MRS TYNAN SATISFY s 954A(2)(c)?

35. Section 954A(2)(c) provides that “the care and attention” must:

    (i)      be received by the care receiver from the person alone; or

    (ii)     be received by the care receiver from the person together with another person whose work in providing the care and attention is not on wages that are at or above the wages mentioned in paragraph (1)(f), whether or not both persons are present every day when the care receiver receives the care and attention

36. The Secretary contends that, because Mrs Tynan receives care and attention from staff at the nursing home who are paid at or above award wages, Mr Tynan cannot satisfy s 954A(2)(c). As I understand it, the argument is that, because he provides care in conjunction with “another person” who is receiving wages at or above award wages, Mr Tynan is disqualified from receiving carer allowance.

37. In my view, the interpretation contended for by the Secretary is not supported by the language of s 954A(2)(c) whether read on its own or in the context in which it appears.

38. The focus of s 954A is on “the care and attention” by which a person claims to qualify for carer allowance. The person’s work in providing “the care and attention” must not be on wages at or above the relevant minimum wage: s 954A(1)(f).

39. A claimant will satisfy s 954A(2)(c) if “the care and attention” by which he or she seeks to qualify for carer allowance is received by the care receiver daily for 20 hours a week from the claimant alone or from the claimant together with another person who is not paid more than the relevant minimum wage for that work. 

40. It is not in dispute that Mr Tynan alone provides his wife with daily care totalling 20 hours a week. It follows that he satisfies s 954A(2)(c)(i). Section 954A(2)(c)(ii) is an alternative route by which My Tynan might satisfy s 954A(2)(c). It is not an exclusion; it cannot operate to defeat s 954A(2)(c)(i).

41. Section 954A(2)(c)(ii) serves to preclude a claimant from relying on care provided by “another person” paid more than the relevant minimum wage in order to make up the necessary daily care of 20 hours of each week. So, for example, Mr Tynan would not qualify if he cared for his wife at home for 10 hours a week and engaged a paid carer for the rest of the time. Nor could he provide care for 20 hours a week on some days only and rely on “another person” to make up the balance of the “daily care”.

42. Nothing in either the Explanatory Memorandum or The Guide suggests that the mere existence of another paid carer disqualifies a person who would otherwise qualify for carer allowance.  To the contrary, both cite situations in which care is provided by a professional carer as well as the non-coresident carer and make clear that the professional care cannot count towards the requisite daily care totalling 20 hours per week.  

43. The Explanatory Memorandum states in relation to ss 954A(2)(b) and (c):

    In a situation where a non-coresident carer and professional carer are both providing care to a disabled adult, the care provided by the professional carer (who is precluded from being qualified for carer allowance if they are paid at award wages or above) will not count towards the carer's requirement to provide at least 20 hours a week of care and attention. In order to be qualified for carer allowance under section 954A, the non-coresident carer must still provide care and attention on a daily basis, that is, every day, and this must be for a minimum of 20 hours per week in itself. This care is over and above any other care that is provided by the professional carer (emphasis added).

44. The Guide adopts the same interpretation, virtually replicating (at Part 3.6.7.45) the Explanatory Memorandum:

    Where a non-coresident carer and the professional carer are both providing care to an adult with a disability, the care provided by the professional carer does not count towards the carer's requirement to provide at least 20 hours a week of care and attention.  In order to be qualified for CA, the non-coresident carer must still provide care and attention on a daily basis, that is, every day, and this must be for a minimum of 20 hours per week in itself.  This care is over and above any other care that is provided by the professional carer (emphasis added).

45. As I read it, nothing in the language of s 954A(2)(c) disqualifies a carer from the allowance because the care receiver also receives paid care somewhere other than the private home. “Another person” in that provision has a specific meaning; it is not at large.

46. I can find no ground for concluding that, merely because his wife receives paid care in a nursing home, the care and attention she receives from Mr Tynan does not satisfy s 954A(2)(c). I find that it does.

    DOES THE CARE AND ATTENTION RECEIVED BY MRS TYNAN SATISFY s 954A(2)(d)?

47. Section 954A(2)(d) provides that “the care and attention”:

    must be received in a private home that is the residence of the care receiver, the person or the other person (if any), but not the residence of both the care receiver and the person…

48. There is no dispute that the nursing home has been Mrs Tynan’s residence since July 2006.  It is her permanent home.  Her needs are such that, even with the considerable improvement in her condition, Mr Tynan cannot care for her full time at home. 

1. There is no dispute that the care provided by Mr Tynan is provided in a private home that is his residence.

2. As I understand it, the argument for the Secretary is put in the alternative. 

3. First, it is said, because Mr Tynan takes his wife to a residence that is his home and her home and cares for her there, the applicable provision in this case is s 954. However, Mr Tynan does not suggest that he satisfies s 954 precisely because the private home in which he provides care for his wife is not the residence of them both. Because it is his, but not her, residence, he relies on s 954A but I can see nothing in s 954 that excludes his claim.

4. Alternatively, it is said, Mr Tynan cannot satisfy s 954A because, firstly, s 954A(2)(d) prevents a person from receiving carer allowance if the care receiver is resident in a nursing home while also receiving care from the carer and, secondly, because the care must be received in a private home that is the residence of the care receiver.

5. The second part of this submission cannot be correct. Section s 954A(2)(d) requires that the care and attention on which the claimant seeks to rely is received in a private home that is the residence of the care receiver or the carer, so long as it is not the residence of both.  Nothing express or implied in that sub-section requires the care to be provided in the private home that is the residence of the care receiver.

6. In relation to the first part of the submission, the Secretary relies on the decision of the Tribunal in Re Clemente and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 831 in which the Tribunal found that Mrs Clemente was precluded from carer allowance because she was not providing care in a “private home” as required by s 954A(2)(d).

7. The decision in Clemente is wholly distinguishable from the present case. Mrs Clemente’s mother was severely disabled and living in a nursing home. She refused to accept food, medication or care from anyone except Mrs Clemente who had to travel four or five times each day to the nursing home to help care for her. Mrs Clemente’s application failed in the Tribunal not because her mother was in a nursing home but because she was not receiving care from Mrs Clemente in a “private home” as required by s 954A(2)(d). In the present case, there is no argument that Mrs Tynan receives “the care and attention” from Mr Tynan in a private home.

8. The Explanatory Memorandum contains the following paragraph which could be interpreted as against Mr Tynan:

   Private home – new paragraph 954A(2)(d)

   The required care and attention may be provided to the care receiver in a private home that is the residence of either the carer or the care receiver. There is no co-residency requirement for qualification under section 954A, so that home does not have to be the residence of both the carer and the care receiver.  What is intended that the person's home will be regarded as a dwelling in which the person actually lives or resides.  This excludes situations where care is provided outside the carer or the care receiver's private home, such as in an institution or hospital (although the non-coresident carer may still receive carer allowance in situations where the care receiver goes into hospital, the care and care receiver travel outside Australia, or the carer temporarily ceases to provide care to the care receiver on a daily basis – see sections 955, 956 and 957) therefore, the carer may go to the care receiver is home to provide care, or the care receiver may go to the carer's home to receive care (emphasis added). 

9. The meaning of this paragraph is not altogether clear. On their own, the words in bold appear to lend support to the Secretary’s position but, read in context, I do not think they do.  The context is the meaning of the private home in which “the required care and attention” must be provided.  I do not read the paragraph as stating that a person who otherwise qualifies is disqualified merely because any care is also received in an institution or hospital.

10. Also in the Explanatory Memorandum is the following:

    However, this co-residency requirement has been subject to criticism for not recognising the diversity of caring situations in the community, or the valuable contribution made by non-coresident carers to providing care.  In many cases this care allows the care receiver to continue to live in their own home, rather than going into alternative care.  This measure is intended to respond to community concern by removing the co-residency requirement for a new group of carers and allowing them to be qualified for carer allowance if they provide certain care (emphasis added).

11. This paragraph indicates that an aim of the amendment was to allow people to remain at home for as long as possible rather than going into nursing care.  However, it does not suggest that receiving care other than in the home excludes a carer who would otherwise qualify for the allowance.

    CONCLUSION

12. Mr and Mrs Tynan’s situation is unusual.  Permanent residence in a nursing home often means that, at best, a person’s condition stabilises.  Commonly, a person’s condition will deteriorate over time, making him or her increasingly dependent on the nursing home care.  That has not happened in Mrs Tynan’s case.  Mr Tynan has been able and willing to devote himself to her care and rehabilitation and her condition has improved.  Realistically, however, it is likely that the nursing home will remain her residence for the rest of her life. 

13. I am satisfied that Mr Tynan meets the requirements of s 954A(1) and that he qualifies for carer allowance from the date of his claim.

14. The decision of the SSAT made on 15 April 2011 is set aside and in substitution the Tribunal decides that Mr Tynan qualified for carer allowance as of 17 August 2010.

I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated  6 June 2012

Date(s) of hearing	24 April 2012
Solicitors for the Applicant	Mr M Butt, Welfare Rights Centre
Solicitors for the Respondent	Mr G Lozynsky, Centrelink Program Litigation Review Branch