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

[2016] AATA 922

TLCC and Secretary, Department of Social Services (Social services second review) [2016] AATA 922 (18 November 2016)

Division	GENERAL DIVISION
File Number	2014/4337
Re	TLCC
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	18 November 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – carer payment – carer allowance – two children – cancellation – whether applicant qualified for carer payment at date of cancellation – whether applicant provided constant care at the date of cancellation – whether applicant’s capacity for employment severely restricted by provision of constant care – whether children required constant care – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 35(3)

Social Security Act 1991 ss 38E(3), 197B, 197C, 953(1)

Social Security (Administration) Act 1999 s 80(1) and (2)

CASES

Re Drake and Minister Immigration and Ethnic Affairs (No 2) (1975) 2 ALD 634

Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 551
Lemon and Secretary, 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 Social Security and Maria Retallack [1998] AATA 424

Secretary, Department of Social Services and Smith [2016] AATA 10

SECONDARY MATERIALS

Disability Care Load Assessment (Child) Determination 2010

Guide to Social Security

REASONS FOR DECISION

Senior Member J F Toohey

18 November 2016

Background

1. This application concerns a decision by Centrelink to cancel the applicant’s carer payment and carer allowance in respect of her son and daughter.  The children were aged fifteen and fourteen when the payments were cancelled on 7 April 2014.

2. The applicant’s son has been diagnosed with multiple psychological disorders including anxiety disorder and behaviour problems. Her daughter was born with hypochondroplasia, a genetic bone disorder characterised by short stature.  She has been diagnosed with a cognitive impairment, multiple psychological disorders including learning difficulties, anxiety disorder and behaviour problems.

3. The Tribunal has made an order under subsection 35(3) of the Administrative Appeals Tribunal Act 1975 prohibiting the publication of information tending to reveal the identity of the applicant, her husband or their children. For this reason, I refer to the applicant in this decision as “the mother”, to her husband as “the father”, and to the children as “the son” and “the daughter”. Other information that might identify any of them has been omitted or details altered.

   The decision under review

4. The mother was granted carer payment and carer allowance in respect of her children in September 2009.  In November 2013, Centrelink decided to review her payments.  On 7 April 2014, Centrelink decided she did not qualify for either payment and cancelled both.  On 13 June 2014, an Authorised Review Officer affirmed that decision.

5. The mother asked the Social Security Appeals Tribunal (SSAT) to review Centrelink’s decision.  On 4 August 2014, the SSAT decided that she did not qualify for carer allowance or carer payment for her children “on 7 April 2013” and affirmed the decisions under review.  The reference to 2013 was plainly a typographical error.      

6. The mother seeks review of the SSAT’s decision.

   The legislation

7. The relevant legislation is contained in the Social Security Act 1991 (the Act). Carer payment is an income support payment made to a person who provides constant care at home to a dependent child or dependent children (or to one or more adults, in which case, separate provisions apply).

8. If a claim for carer payment is made in respect of one child, the child must have a “severe disability or severe medical condition”: s 197B.  If a claim concerns two or more children, it is sufficient that each has “a disability or medical condition”: s 197C. 

9. Where care is provided to two or more children, s 197C provides:

   (1)       A person is qualified for a carer payment if:

   (a)the person personally provides constant care for 2 or more persons (the care receivers) aged under 16 each with a disability or medical condition; and

   (b)the person has been given a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination for caring for the care receivers; and

   (c)in relation to each care receiver--a treating health professional has certified in writing that, because of that disability or condition:

   (i)     the care receiver will need personal care for 6 months or more; and

   (ii)    the personal care is required to be provided by a specified number of persons; and

   (d)the provision of constant care by the person severely restricts the person's capacity to undertake paid employment; and

   (e)the requirements of subsections (2), (3) and (4) are met.

   (2)       The constant care must be provided in a private residence that is the home    of the care receivers.

   …

   (4)       The care receivers must:

   (a)require constant care; and

   …

10. Carer allowance is a supplementary payment to a person who provides care and attention on a daily basis at home to a dependent child or children (or to one or more adults, in which case, separate provisions apply).  If a claim is made in respect of two disabled children, the person must have a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination (the Determination): s 953(2). 

11. The Determination forms part of the legislation that must be applied in deciding whether a person qualifies for carer payment or carer allowance.  It includes questionnaires used to assess whether a person has a qualifying rating of intense, and about the functional ability, behaviour and special care needs of the child (or children).  One questionnaire must be completed by the person claiming the payment and the other by a treating health professional.

12. The Secretary (and so the Tribunal) is to determine that a social security payment that is being made to a person who is not qualified for the payment is to be cancelled or suspended: s 80(1) and (2) Social Security Administration Act 1999.

    The issues

13. The Secretary has accepted that, based on the questionnaires completed in accordance with the Determination, the mother had a qualifying rating of intense in respect of the children at the date of cancellation and that she qualified for carer allowance at that date.  I understand that, despite that concession, the mother’s carer allowance has not yet been restored.  The reasons for this are not clear. 

14. I am satisfied that the mother qualified for carer allowance on 7 April 2014 and that her payment should be restored with effect from that date.  In the son’s case, she qualified for carer allowance up until recently when he turned 16, at which point different criteria applied and must be assessed separately from the decision being reviewed here.  

15. It remains for the Tribunal to decide whether the mother qualified for carer payment at the date of cancellation.  The Secretary contends that, at that date:

    (i)she did not provide constant care to either child;

    (ii)her capacity for paid employment was not severely restricted by the provision of constant care; and 

    (iii)neither child required constant care.

    Information before the Tribunal

16. The mother and father provided written statements and gave evidence before the Tribunal.  The mother has provided medical reports about each child.  The children’s treating clinical psychologist provided written reports and gave oral evidence. 

17. The Secretary has provided two bundles of documents comprising medical reports and certificates, care needs assessment forms, letters from the children’s school and school reports, and correspondence from Centrelink to the mother.

18. A bundle of documents was provided under summons by the children’s school.  It includes school reports, attendance records and letters to the parents concerning the children’s behaviour.

    The meaning of constant care

19. “Constant care” is not defined in the Act.  Guidance is found in the Guide to Social Security (the Guide) which represents government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.

20. The Guide at Part 1.1.C.310 describes constant care as follows:

    A carer is said to provide constant care if they personally provide care on a daily basis for a ‘significant period’ during each day.  The care may be active, supervisory or monitoring.  To provide care on a daily basis for a significant period, carer should reasonably be expected to provide at least the equivalent of the 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 the 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.

21. In Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 at [7], the Tribunal said:

    The expression “constant care” is not defined in the Act. These words should be given their ordinary English meaning. “Care” may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost). A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household.

22. The Guide does not define what is meant by a “significant period” during each day, or a “normal working day”, and it is not possible to be prescriptive.  In Milne, the Tribunal said at [7]:  

    The requirement that the “care” be “constant” means that the person must be acting as a carer on a more-or-less full-time basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer’s payment: the benefit is paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend. (emphasis added)

23. In Lemon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 305 at [14], the Tribunal found the applicant was “freed up” to undertake casual work for an average of some 25 hours each fortnight over a period of several months and, in those circumstances, her capacity for employment was not severely limited. A similar approach is found is Secretary, Department of Social Security and Maria Retallack [1998] AATA 424 at [18], in which the applicant was “freed up” between 9.00 am and 2.30 pm on most weekdays while her daughter was at school.

24. The Guide recognises that a person is not disqualified from carer payment merely because a child attends school.  For example, a carer may be called upon while a child is at school, and the nature and intensity of the care provided during the remainder of the day may amount to constant care.   Matters to be taken into account include whether the carer attends school with the child, whether she or he is “on call” while the child is at school, and whether she or he is regularly required to attend the school to support and actively attend to the care of the child: Part 1.1.C.310.

    The parents’ evidence

25. I am satisfied that the mother and the father gave their evidence truthfully and without exaggeration.  The mother’s evidence about how often she was called to the school at different times to deal with the children’s behaviour, and how frequently she had to take them to various appointments, was not borne out by the independent evidence, but I do not think this reflected on her credibility.  It may be that her perception of her caring responsibilities has influenced her recollection.

26. The mother and father gave evidence that both children have serious behavioural problems.  They fight constantly and have to be physically separated.  They have to be supervised at all times or they will fight.  They throw things and make mess throughout the house which the mother has to tidy up.  She gave evidence that, when the son and daughter are at home, she spends all her time supervising them and breaking up fights.  They take longer than other children to do things and just getting them to finish their dinner, shower and dress can take all afternoon.  She does the housework and cooking when they are at school.

27. The children do not go to sleep until late, sometimes after midnight.  The daughter is fearful that someone is trying to get in and attack the family or kidnap her, and the parents have installed security cameras outside that she can monitor on her iPad to reassure her.  The son plays online games until late at night and does not want to sleep.

28. The son has been verbally abusive and physically aggressive at school and at home. In early 2014, he punched a hole in the wall at home and, around the same time, broke a window with his fists, resulting in injuries to his hand which required treatment at hospital.  Both children are regularly involved in fights with other students and the son has run away from school, and from home twice.  The mother gave evidence that he has been suspended from school “many many times” and, when this happens, the daughter refuses to go to school without him.  The evidence about times when she is called up to the school because of the children’s behaviour is considered below.  The son has said he wants to kill himself although he has not actively attempted to do so. 

29. The mother gave evidence that the daughter is bullied at school and humiliated because of her short stature, and she is fearful and anxious.  She is more verbally abusive than the son.  She has poor short-term memory and takes a long time to complete tasks, and she needs additional help with her homework.  She needs help bathing, with washing and brushing her hair, and getting things down from high places.  Because of her stature, the mother has to alter clothes to fit her, and this takes up time.

30. The mother gave evidence that, at the date the payments were cancelled, she was taking the daughter to a physiotherapist approximately fortnightly for back pain, and to hospital clinics every one to three months.  However, records provided by the physiotherapist show that she first saw the daughter on 12 June 2014 and a further nine times that year, and 11 times during 2015.  The mother could not be sure whether the daughter saw the physiotherapist before June 2014, and there is no evidence that she did.   

31. The mother also gave evidence that she takes the children to a psychologist every two to three weeks, and twice a week she takes the son to school early so he can get extra help with his school work.  This is not borne out by the psychologist’s records which show that, in 2013, she saw the daughter on 12 occasions, and on three occasions in 2014 up to the date of cancellation, and she saw the son on nine occasions in 2013, and twice in 2014 up to the date of cancellation.  

32. The mother gave evidence that, around the time her carer payment was cancelled, her older daughter, who has two children, would come to the house every day and the mother would help with her children.  When she was not breast-feeding, the older daughter would sometimes leave the children with her.

    Evidence of the psychologist

33. The psychologist has seen the daughter regularly since 2008.  She has seen the son since 2011; before then he was under the care of another psychologist. 

34. In a brief report dated 20 October 2014, the psychologist stated that the son was being treated for behavioural disorder, emotional disturbances, anger problems, violent behaviour, anxiety disorders, sleep disturbances and hypersensitivity, the severity of which are “interfering greatly” with his overall functioning, particularly in interpersonal relationships.

35. In another brief report of the same date, the psychologist stated that the daughter was being treated for multiple disorders which were “interfering greatly with her functioning” and she “appears to require significantly more additional care and monitoring at home due to her physical limitations, anxiety disorders and severe behaviour problems”.

36. In detailed reports prepared on 26 April 2015, the psychologist described the son’s “severe behaviour problems”.  (Her report indicates that he also has cognitive delay but this appears to be an error as it is not referred to elsewhere in her evidence and there is no other evidence suggesting he has a cognitive impairment).  The psychologist described the daughter’s learning difficulties and generalised anxiety disorder, and said her symptoms of behavioural issues “do not fulfil any DSM-5 diagnostic criteria but she can at times be oppositional, short tempered and aggressive”.

37. The extent of the daughter’s intellectual disability was a matter of some dispute at the hearing, in particular whether she is of “borderline intelligence”, but little turns on this.   

38. As set out below, the psychologist agreed with, or did not dispute, assessments by their general practitioner of the children’s care needs at the date of cancellation.  Those assessments support the conclusion that neither child required constant case at that date.

    School records

39. The mother relies primarily on the care she provides the children outside of school hours but says also that she is regularly called to the school about one or the other of the children in relation to their behaviour, and this forms part of the constant care she provides.  She submits that dealing with calls from the school and going to the school form part of the constant care she provides and severely restricts her capacity for employment.  The Secretary disputes the frequency of calls from the school and submits that responding to them does not severely restrict her capacity for employment.

40. The mother gave evidence that she would be called to go to the school frequently, up to several times each week, because of one or both of the children’s behaviour.  Giving evidence, she said that “every day” she would receive complaints from teachers, usually by telephone, and she would be called for an interview with the principal or social worker.  She said that, in 2014, she would be asked to go to the school three or four times a week about her son’s behaviour, and several times a week about her daughter’s behaviour, often because she had been bullied.

41. The mother’s evidence about how often she was required to attend the school is not borne out by school records.  The records show a number of occasions on which the school sent letters notifying the parents that the son or daughter had been suspended, or had been given detention.  However, only the notification of a suspension asked the parents to attend the school; others offered an appointment if they would like to discuss the matter, or asked them to sign and return an acknowledgement of the notification.  The mother acknowledged that on other occasions she would go to the school to speak to a school counsellor but it was not a requirement that she attend.

42. The mother provided copies of the following notices and letters issued by the school:

    (i)notice dated 10 June 2011 that the son had been given detention for one hour and asking the parents to discuss the matter with him;

    (ii)notice dated 11 November 2011 that the son had been suspended for two days and asking them to attend an interview at the school;

    (iii)notice dated 16 February 2013 that the son had been suspended for five days and asking them to attend an interview at the school;

    (iv)notice dated 22 March 2013 that the son had been given a half hour detention and asking the parents to discuss the matter with him;

    (v)notice dated 24 June 2013 that the son had been suspended for five days for “persistent misbehaviour” and asking them to attend an interview at the school;

    (vi)notice dated 20 November 2011 that the son had been suspended for two days for “continued disobedience” and asking them to attend an interview at the school;

    (vii)suspension warning letter dated 8 November 2014 about the daughter’s “disruptive and defiant behaviour” offering to discuss the matter if they would like;

    (viii)notice dated for June 2014 that the daughter had been suspended for two days for continued disobedience and asking them to attend an interview at the school;

    (ix)“letter of concern” dated 18 June 2014 about the daughter’s “unacceptable behaviour” offering the opportunity to discuss the matter;

    (x)notice dated 26 June 2014 that the daughter had been suspended for three days for continued disobedience and asking them to attend an interview;

    (xi)suspension warning letter dated 27 July 2015 about the daughter’s behaviour offering to discuss the matter if they would like.

1. The records show that the parents were asked to attend an interview about their son’s behaviour on four occasions, and about their daughter on two occasions.  The mother told the Tribunal that additional notices were issued requiring her to attend the school, but she was not able to produce them.  I am satisfied that the notices produced are all those issued by the school.  While they show a pattern of misbehaviour by both children, I do not accept that the mother attended the school as often as she now recalls.  Moreover, the letters requiring her to attend an interview concerning the daughter came after the date of cancellation.

2. I accept the mother’s evidence that there were occasions, besides those documented above, when she went to the school to discuss the children’s behaviour, or spoke to someone at the school by telephone.  However, she was not required to attend on those occasions.

3. School records for the period from January 2013 to 4 September 2015 show that both children were absent for some or all of a number of days.  The part-day absences appear to be occasions when the children left school early to attend an appointment, or arrived late for school, sometimes by only a few minutes.  I accept that the mother was with them on those occasions.      

   The professional assessment of the children’s care needs

4. On 30 May 2014, the children’s general practitioner completed professional questionnaires in respect of each child.

5. In respect of the daughter, the doctor stated she had “hyperactivity disorder, limited cognitive ability, behavioural problem, learning disorder, anxiety disorder, metaphyseal hypochondroplasia, poor relationship with others, sort stature, spinal canal stenosis (sic)”.  He recorded that she needed extra care and attention for 14 hours or more each week.

6. In respect of the daughter’s receptive and expressive language skills, the doctor indicated that she understands and responds appropriately to simple questions and can write her own first name and state her name and home address; her feeding and mealtimes skills, and her mobility, were “age appropriate”; she was reliably toilet trained during the day and could manage her own toileting with minimal assistance; she could dress and undress herself but needed assistance with buttons, laces or tight clothing; she plays with other children and forms close friendships, and joins in simple games but may not understand or follow the rules; she can write all letters of the alphabet clearly; she is extremely active and unable to concentrate on a task for more than 30 seconds; she had none of the “special care needs” listed on the questionnaire; she needed “personal care because of a severe disability or severe medical condition” for six months or more.

7. The doctor stated that the son had “opposition defiant disorder (sic), bronchial asthma, aggressive behaviour, conduct disorder, neck pain with radiculopathy”; he needed extra care and attention for 14 hours or more each week and “personal care because of a severe disability or severe medical condition” for six months or more. His receptive and expressive language skills, feeding and mealtimes skills, hygiene and grooming skills, dressing skills, and mobility skills were all “age-appropriate”; in respect of his social and community skills, he understood basic safety and related well to both children and adults; he “displays aggressive behaviour or violence towards other people or property in the treatment or assessment setting”. In respect of “special care needs”, the doctor indicated that the son had persistent difficulties with memory, concentration, planning and organisation.  

8. Giving evidence, the psychologist did not dispute the general practitioner’s assessment in relation to either child, although she said the son sometimes lacked motivation and needed reminding about his hygiene and personal care. 

9. The mother did not agree with the assessment by the general practitioner.   She gave evidence that the children were not able, when the payments were cancelled, to feed, bathe or dress themselves without her help.  By way of examples, she said she has to help her daughter bathe and dress, and she needs help each month during her period; the children can feed themselves but she cuts their meat for them.  However, her assessment of their care needs is not borne out by the professional assessments. 

10. Taking into account the assessment by the general practitioner, with which the psychologist largely agreed, I am not satisfied that either child required constant care around the date of cancellation of the mother’s payments.  The assessment shows their skills in the areas assessed was either “age-appropriate” or they required minimal assistance.  I prefer the evidence of the general practitioner and the psychologist to that of the mother.  In particular, I place weight on the fact that the psychologist, who has seen the children regularly over several years and is in a position to assess their skills and need for assistance, agrees with, or does not dispute, the general practitioner’s detailed assessment. 

    Consideration

11. I accept that each child has a disability or medical condition that involves a level of care more than would ordinarily be required for children of their age.  I accept that their behaviour, in particular their fighting, involves a degree of monitoring and supervision that would not ordinarily be required for children of their age.  I accept that caring for them is emotionally and physically demanding on both parents, in particular the mother.  I accept that, when they are at school, she has to tidy up each day after they make a mess fighting and throwing things around, and she has to shop, and buy and alter clothes for the daughter.  I accept that she finds the demands of caring for them exhausting and does not get enough sleep because they are awake, often fighting, until late at night.

12. However, I am not satisfied that the mother was providing the children with constant care for the purposes of qualifying for carer payment when her payment was cancelled in April 2014.  I agree with the observation by the Tribunal in Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 551 that “the adjective ‘constant’ imposes a dimension of incessancy. It implies a much higher than the normal level of attention, supervision and personal support”. Importantly, as the Tribunal observed, the concept of constant care is therefore a reflection of the care needs of the care receiver (see also Secretary, Department of Social Services and Smith [2016] AATA 10). In the professional assessment of the general practitioner, which the psychologist did not dispute, neither child had care needs that required constant care.

13. In any event, I am not satisfied that the mother’s capacity for employment was severely limited by providing constant care.  To the extent that she was called to the school, I am not satisfied that it severely restricted her capacity for employment.  She was “freed up” for employment when the children were at school.

    Conclusion

14. For the reasons above, I am not satisfied that the mother was providing constant care to the children at the time her payments were cancelled.  Even allowing that she provided care to the extent she claims, I am not satisfied that the level of care reflected the children’s requirement for constant care.  To the extent that her capacity for employment was restricted, it was not severely restricted by providing constant care to her children. 

15. I affirm the decision under review.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated 18 November 2016

Date(s) of hearing	6 & 21 September 2016
Solicitors for the Applicant	Linda Rogers Solicitor
Solicitors for the Respondent	Department of Human Services