Vasiliou; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 362

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 362

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2871

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And PETER VASILIOU

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date5 May 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.  The Tribunal orders that this decision comes into effect immediately.

(sgd) Egon Fice

Member

Social security – carer payment – eligibility – care and attention – residence of care giver and care receiver – special care needs – temporary cessation of care

Social Security Act 1991 ss 954, 954A and 957

Administrative Appeals Tribunal Act 1975 s 43(5C)

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

REASONS FOR DECISION

5 May 2008 Mr Egon Fice, Member      

1.      Mr Vasiliou lodged a claim with Centrelink in August 2006 for carer allowance and/or carer payment on the basis that he was caring for his brother, who is known as Michael Good or Mick Vasiliou.  Centrelink acts as the service providing agency for the Secretary to the Department of Families, Community Services and Indigenous Affairs (the Secretary). 

2.      In October 2006 Centrelink advised Mr Vasiliou that his claims for carer payment and carer allowance were rejected.  That decision was affirmed by an Authorised Review Officer (ARO).  Mr Vasiliou sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT).  On 23 May 2007 the SSAT rejected Mr Vasiliou’s claim for carer payment but it allowed his claim for carer allowance.  It found that Mr Vasiliou was entitled to be paid a carer allowance commencing 16 August 2006.  The Secretary disagreed with the SSAT decision to allow Mr Vasiliou’s claim for carer allowance and sought review of that decision by this Tribunal.  

3. Division 2 of the Social Security Act 1991 (the Act) sets out the qualifications for carer allowance in a number of different circumstances. The relevant provisions dealing with qualification for carer allowance in respect of a disabled adult are found in s 954 and s 954A of the Act.

4.      The issues which I have to determine are:

(a)whether s 954 or s 954A should be applied in determining qualification for the carer allowance in Mr Vasiliou’s case; and

(b)whether Mr Vasiliou qualifies for the carer allowance.

RELEVANT BACKGROUND

5.      The facts in this case are not disputed. 

6.      Mr Good suffers from chronic paranoid schizophrenia.  He receives medical treatment which involves taking medication in tablet form and receiving fortnightly injections at the Junction Clinic. 

7.      Mr Vasiliou lives with his mother, who owns their residence.  Mr Good does not live with Mr Vasiliou and their mother because, at night, he paces up and down persistently, which prevents other persons in the house from sleeping.  When he does not take his medication, he can become violent.

8.      Mr Good has been provided with his own small residence which is situated above a garage.  That allows him to pace up and down during the night without disturbing anybody else.  Although Mr Good’s accommodation has basic bathroom and kitchen facilities, according to Mr Vasiliou, he does not use the facilities frequently.  In fact, Mr Good leaves his place of residence between 3.00am and 5.00am most mornings and drives to Mr Vasiliou’s residence.  He sits in the car outside the house until Mr Vasiliou’s mother rises and lets him in.  He spends most of the day time at Mr Vasiliou’s residence where he is fed and pressured to shower.  Apparently, he is reluctant to shower when he is not urged to do so and he appears unclean and unhygienic.  He makes a terrible mess after using the bathroom and also generally around the house where he makes no effort at all to clean up after himself.  He has to be encouraged to eat.  Mr Good manages his own money and pays the rent on his residence above the garage.  He owns an old car which he uses frequently. 

9.      At times, Mr Good simply disappears.  His whereabouts are unknown and he may not appear at Mr Vasiliou’s residence for up to four weeks at a time.  From time to time, Mr Vasiliou has to call the CAT team to give Mr Good his injection when he does not go to the Junction Clinic.  When Mr Good omits to take his medication or to receive injections, he displays symptoms of depression, memory loss and social withdrawal.  He often displays an absence of inhibition and aggression towards himself and others. 

RELEVANT LEGISLATION

10. Section 954 of the Act sets out the qualifications for carer allowance in respect of a disabled adult where, amongst other things, the care receiver receives care and attention on a daily basis in a private home that is the residence of the carer and the care receiver.

11. Section 954A of the Act provides that a person is qualified for carer allowance for a disabled adult if, amongst other things, the care is received in a private home that is the residence of the care receiver or care provider, but not the residence of both the care receiver and the care provider. Furthermore, s 954A requires a more extensive list of criteria to be met than s 954. The carer receiver must receive care and attention that meets the requirements in s 954A(2). Section 954A(2) provides:

(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

(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.

Furthermore, a person may qualify for the carer allowance under s 954A and/or or s 954 for 2 but no more than 2, disabled adults.  This is significant because Mr Vasiliou receives carer allowance for his mother but not for any other person. Therefore, if I were to find that Mr Vasiliou qualifies for the carer allowance in respect of Mr Good, he will nevertheless satisfy the requirements of s 954A(5) of the Act.

QUALIFYING UNDER S 954 OF THE ACT

12. As I have stated above, s 954(1)(d) of the Act requires the care receiver to receive care and attention on a daily basis in a private home that is the residence of the care giver and the care receiver.

13. Mr Vasiliou’s evidence was that he and his mother reside at 23 Odessa Street, St Kilda. Mr Good’s unit is at 134 Inkerman Street, St Kilda. The two residences are some distance apart, as demonstrated by Mr A Carson, the Centrelink advocate representing the Secretary, using a Melway’s street directory. It cannot be doubted that the care received by Mr Good at Mr Vasiliou’s residence does not meet the requirements of s 954(1)(d) of the Act. Therefore, in order to qualify for the carer allowance, Mr Vasiliou must satisfy the qualification criteria set out in s 954A of the Act.

QUALIFICATION UNDER S 954A

14. The Secretary did not contend that Mr Vasiliou does not meet the requirements set out in s 954A(1)(a) - (c) and (e) - (g) of the Act. I am satisfied that Mr Vasiliou does meet the requirements of all of those subsections. However, the Secretary takes issue with Mr Vasiliou’s contention that he satisfies s 954A(1)(d) because he does not meet the requirements in s 954A(2)(a) and (b). In particular, the Secretary contends that Mr Vasiliou’s care of his brother Mr Good does not address his brother’s special care needs as assessed under the Adult Disability Assessment Tool (the Assessment Tool); and that those care needs do not relate to Mr Good’s bodily functions or to sustaining his life. The Secretary also contended that, in any event, Mr Good does not receive care on a daily basis for a total of at least 20 hours a week.

15.     Mr Carson submitted that I ought to have regard to the Guide to the Social Security Law prepared by Centrelink (the Guide) when determining whether the care provided by Mr Vasiliou relates to Mr Good’s bodily functions or to sustaining his life.  The term bodily functions and the phrase sustaining the care receiver’s life are not defined under the Act.  As the statute provides no guide as to what constitutes bodily functions or sustaining the care receiver’s life, other than the fact that they must be special care needs assessed under the Assessment Tool, this seems to be a proper case for the application of the Guide, bearing in mind the assessed special care needs identified under the Assessment Tool (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590–591).

16.     There were two assessments, prepared by health professionals, before me: the first prepared by Dr Steven Kalfas and dated 11 August 2006; and the second prepared by Dr A. Gouras and dated 19 September 2006.  Each of those assessments sets out the day-to-day needs of Mr Good.  Unfortunately, they are inconsistent in the following ways:

(a)Grooming – Dr Kalfas noted that Mr Good needs help with personal care: face, hair and teeth: while Dr Gouras said he was independent;

(b)Dressing – Dr Kalfas noted Mr Good needs help but can do about half his dressing unaided: while Dr Gouras said he was independent; and

(c)Bathing – Dr Kalfas indicated Mr Good was dependent on help: while Dr Gouras said independent but many times he has to be urged to have a shower and also be supervised.

17.     The Guide (at 3.6.7.45 (ST.2)) sets out the following matters to be taken into account in determining the special care needs which deal with assistance with bodily functions and care to sustain life:

Care & attention must address special care needs

To be eligible under the new rules, carers who do not live with the person being cared for will need to provide care and attention that address special care needs that the care receiver is assessed under the ADAT as having (i.e. assistance with bodily functions an/or to sustain life).

Special care needs include assistance with bodily functions and care to sustain life.

Assistance with BODILY FUNCTIONS includes:

·     MOBILITY, which may include assisting the person to transfer in and out of bed, moving around the home, negotiating stairs and positioning in their chair or bed,

·     PERSONAL HYGIENE, including help with dressing and undressing, bathing and showering, grooming, and assistance with using the toilet,

·     EATING AND DRINKING (hydration and nourishment), which may include cutting, mashing or juicing food so the person can eat it, feeding the person food and drinks and supervising the person to ensure that their food or drink is consumed,

·     COMMUNICATION, this may include signing or interpreting for the person and assisting the person to use communication equipment, and

·     TREATMENT which may include helping the person take medication, changing dressings, applying bandages and operating and monitoring medical equipment.

CARE TO SUSTAIN LIFE includes supervision to prevent wandering, removing the person from dangerous situations and preventing the person from damaging property or injuring themselves or others.

…

18.     The special care needs which Mr Vasiliou says he provides to Mr Good relate to personal hygiene, eating and drinking, and to some extent, treatment and care to sustain life.

19.     Mr Vasiliou’s evidence was that although his brother is usually fully dressed when he comes to his residence, at times his clothes need washing.  Although fully dressed, as Dr Kalfas reported, Mr Good needs help dressing but can do about half his dressing unaided.  That, in terms of the assessment, means that he requires help with buttons, zips etc but can put some garments on alone.  Dr Gouras recorded that as far as dressing is concerned, Mr Good is independent. 

20.     Mr Vasiliou said nothing about Mr Good’s grooming.  However, Dr Kalfas recorded that Mr Good needs help with personal care, including face, hair and teeth.  On the other hand, Dr Gouras recorded that as far as grooming is concerned, Mr Good is independent.  However, coupled with grooming is the issue of bathing.  Dr Kalfas indicated that Mr Good was dependent regarding bathing activities and Dr Gouras, while indicating Mr Good was independent, stated that many times he had to be urged to have a shower and also (had) to be supervised.  Mr Vasiliou’s evidence supports what Dr Gouras said, in that he needed to be urged to shower and unless that happened, he became smelly.  In addition, Mr Vasiliou said that in showering, Mr Good left a terrible mess in the bathroom indicating he was not capable of properly looking after his personal hygiene.  On balance, the evidence indicates that he does need some assistance with personal hygiene. 

21.     As far as eating and drinking are concerned, Dr Kalfas and Dr Gouras have indicated that Mr Good is independent.  However, Mr Vasiliou said that when Mr Good is at his residence, he needs to be fed all of the time.  He was concerned that Mr Good did not eat properly and after he had disappeared at times for short periods, he did not appear to be healthy.  He was also aware that, at times, another brother provided Mr Good with food when he did not appear at Mr Vasiliou’s residence.  In his evidence to the SSAT, Mr Vasiliou said that he had to give Mr Good meals otherwise he would not eat.  Mr Vasiliou also indicated to the Tribunal that his brother eats a lot when he is at his residence and that he has to clean up after his brother as he leaves cigarette butts and coffee cups everywhere.  Overall, the evidence indicates that although Mr Good gives the appearance of being independent as far as eating and drinking are concerned, he clearly needs support in this regard in order to remain healthy.

22.     As far as medical treatment is concerned, Mr Vasiliou said that his brother does not always attend the Junction Clinic to receive his injections.  When he disappears, he sometimes has to arrange for the CAT team to locate him to provide him with his medication.  He told the SSAT that the CAT team sometimes comes to his residence but that is not a common event.  Again, the evidence seems to indicate that although Mr Good generally is able to look after his own medical treatment, that is not always the case.  There are times when Mr Vasiliou is required to assist in locating him or to inform the CAT team that he has disappeared.

23.     The Guidelines, under the heading Care To Sustain Life, include supervision to prevent wandering, removing the person from dangerous situations and preventing the person from damaging property or injuring themselves or others.  Mr Vasiliou’s evidence was that Mr Good became violent when he was not medicated.  There was nothing that could be done when he became violent; and that he broke things around the house when in that state of mind.  In his evidence to the SSAT, Mr Vasiliou pointed out that Mr Good’s schizophrenia resulted in aggression towards other people and also uninhibited behaviour.  Therefore, it was essential that he was supervised during the day to maintain everybody’s safety.  Dr Kalfas also indicated that Mr Good needed help on a daily basis to carry out routine personal activities because he may be a risk to himself or to others.  That means Mr Good needs physical assistance, supervision and prompting.  Dr Gouras also indicated that Mr Good needed constant care on a daily basis because he may be at risk to himself or to others.  It seems to me that the evidence regarding this aspect is unequivocal and that Mr Good does need care to sustain life. 

24. Although the evidence clearly indicates that Mr Good does not need special care including assistance with bodily functions under every heading set out in the Guidelines, on balance, he certainly satisfies the requirement for care to sustain life. He probably also requires a degree of care regarding personal hygiene, eating and drinking, and treatment. Accordingly, I am satisfied that on the balance of probability, Mr Good does satisfy the requirements under s 954A(2)(a) of the Act.

25. The Secretary also contended that Mr Good cannot satisfy s 954A(2)(b) of the Act because he does not receive care on a daily basis. Mr Vasiliou’s evidence was that although on most days his brother would attend his residence for the whole day, there were occasions when he simply disappeared.  Mr Vasiliou said that he could disappear for around two weeks on occasions and possibly even for as long as up to a month, on rare occasions.  For that reason, the Secretary submitted that it cannot be said that Mr Vasiliou provides the relevant care and attention on a daily basis as is required under the Act.

26. However, Mr Carson did not refer me to s 957 of the Act. Section 957 provides:

957  Effect of cessation of care etc. on carer allowance

Continuation of allowance where temporary cessation of care

(1)Subject to subsection (3), if:

(a)a person is qualified for carer allowance because a care receiver or care receivers are receiving care and attention on a daily basis; and

(b)the care receiver or care receivers temporarily cease to receive care and attention that would qualify the person for carer allowance;

the person does not cease to be qualified for carer allowance merely because of that cessation. …

27. Section 957(3) provides:

… the period, or the sum of the periods, for which subsection (1) or (2), or a combination of those subsections, can apply is:

(a)63 days in any calendar year; or

(b)another period that the Secretary, for any special reason in the particular case, decides to be appropriate. …

28.     Quite clearly, just because Mr Good temporarily ceases to receive care and attention that would qualify Mr Vasiliou for the carer allowance, does not mean that Mr Vasiliou ceases to be qualified for carer allowance.  That of course is provided that the cessation does not exceed 63 days in any one calendar year.  On the evidence of Mr Vasiliou, any cessation of daily care occurs for periods of less than 63 days in any calendar year.  Furthermore, when Mr Good has not disappeared for a short period, he attends Mr Vasiliou’s residence everyday, for the whole of the day, only returning to his own residence to sleep.  Quite clearly, he would therefore meet the requirement of receiving care for a total of at least 20 hours per week, except for when he disappears.  Therefore, the cessation which occurs from time to time, when Mr Good disappears, would not result in Mr Vasiliou ceasing to be qualified for the carer allowance.

CONCLUSION

29. In my view, Mr Vasiliou qualifies for the carer allowance as he meets the qualification requirements set out under s 954A of the Act. He does provide care for his brother, Mr Good, which addresses Mr Good’s special care needs. In addition, that care is received by Mr Good on a daily basis for a total of at least 20 hours per week, save for the occasions when Mr Good disappears and does not receive care. In my view, the periods of cessation of the provision of care are temporary and fall within the provisions of s 957 of the Act. In other words, despite Mr Good’s disappearance from time to time, Mr Vasiliou does not cease to be qualified for carer allowance merely because of that cessation. It follows that the decision made by the SSAT on 23 May 2007 was correct and must be affirmed.

30. There is one other matter which I must address. On 27 July 2007, on the application of the Secretary, I ordered that the decision of the SSAT made on 23 May 2007 be stayed pending the hearing and final determination of this matter. Therefore, unless I otherwise order, the operation or implementation of my decision in this matter is stayed for the periods set out in s 43(5C) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). In my opinion, this is an appropriate case to make an order that this decision comes into operation immediately upon the handing down of this decision.

I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member

(sgd) Mara Putnis

Clerk

Date of Hearing  13 February 2008
Date of Decision  5 May 2008
Advocate for the Applicant          Mr Andrew Carson, Centrelink Legal Service
Advocate for the Respondent       Self-represented