Virtue and Secretary, Department of Family and Community Services
[2002] AATA 1311
•2 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1311
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/612
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN VIRTUE
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Date2 December 2002
PlaceMerimbula
Decision For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the reviewable decision dated 19 March 2002.
G Ettinger
Senior Member
CATCHWORDS
SOCIAL SECURITY - carer payment - severely disabled child - whether child is "profoundly disabled" whether child "cannot stand without support" - meaning of the words "cannot stand without support"
Social Security Act 1991 - ss 197 and 198
Harrison v Secretary, Department of Family and Community Services [2001] AATA 1001
Re Secretary, Department of Family & Community Services v Jillian Grey [2002] AATA 138
Keith Farnsworth v Secretary, Department of Family & Community Services [2001] AATA 741
REASONS FOR DECISION
2 December 2002 Ms G Ettinger, Senior Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member G Ettinger
Signed:
..................................................................................……………………………….Associate
Date of Hearing 2 December 2002
Date of Decision 2 December 2002Representative for Applicant Ms A Leydon
Solicitor for Respondent B Slattery
DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2002/612
By Ms G. ETTINGER, Senior Member
JOHN VIRTUE and DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
MERIMBULA, NSW, MONDAY, 2 DECEMBER 2002
MS ETTINGER: The application before the Tribunal was that of Mr John Virtue for review of a decision of the Social Security Appeals Tribunal made on 19 March 2002 which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services, which is the respondent in this matter dated 30 November 2001.
The original decision by Centrelink which was reviewed and affirmed by an authorised review officer was that the applicant was not eligible for carer payment in respect of his disabled son Billy. At the hearing of the application Mr & Mrs Virtue gave oral evidence and were represented by Ms Anne Leydon, team leader of the Ageing and Disability Services with Bega Shire Council. Mr Bernard Slattery from the Advocacy, and Administrative Law team at Centrelink, represented the respondent.
The Tribunal had before it the following documents; Ms Leydon's submissions as exhibit A1, documents lodged pursuant to section 37 of the AAT Act as the T-documents, exhibit R1, and the statement of facts and contentions of the respondent, exhibit R2.
Background: Billy Virtue was born on 26 October 1993. At the time of the applicant's claim for carer payment in June 2001, he was 7 years old. Billy has a number of disabilities including autism, tremors and resulting physical and intellectual disabilities. He lives at home with his mother and his father, the father being the applicant here. Mr Virtue's claim for carer payment in respect of Billy was rejected by Centrelink on the basis that Billy did not meet the definition of "profoundly disabled child" in section 197(2) of the Social Security Act 1991. That decision as I already said was affirmed by the authorised review officer on 30 November 2001 and by the SSAT on the same grounds on 19 March 2002.
The issue here is whether Billy is a "profoundly disabled child" within the definition of that term in section 197(2) of the Act. Section 198(2) of the Act sets out the requirements for eligibility for carer payment. Now, I have that all here but I won't read out the whole of the legislation to you because you've probably been through it. You can certainly have a copy of it if you want to.
It is common ground between the parties that Billy is severely disabled and satisfies the requirements of section 197(2)(a) and (b) of the Act. It is also common ground that Billy satisfies two of the conditions listed under section 197(2)(c) in that he has faecal incontinence day and night, and that's in satisfaction of subparagraph 197(2)(c)(iv) and that he requires care on two or more occasions at night; that is subparagraph (vii). The only issue in dispute is whether Billy cannot stand without support, and that is subparagraph 197(2)(c)(v).
As to the evidence; both Mr & Mrs Virtue gave oral evidence before the Tribunal. The evidence of Mrs Virtue was as follows. Billy is very strong, and because of this she is no longer the primary carer because she cannot manage him in and out of the bath or to change his nappy. She says he is not co-operative in that regard, and resists her attempts to achieve these tasks. She spoke about all his physical and emotional disabilities. She said he is very difficult to look after and needs assistance with all aspects of his life.
Mrs Virtue said Billy has no understanding of how the world functions, and the role of his parents and school is to keep him safe because he may otherwise harm himself and others, unintentionally. Mrs Virtue said Billy can walk and can physically stand without support, but must be supervised particularly on steps because he does not understand that you must walk up and down them. He can also easily trip on obstacles which must be removed out of his way.
Mrs Virtue said Billy's tremor is worse when he wakes up and the incidence of its severity is irregular. Billy finds it distressing and likes to be in his stroller and in the car.
As to Mr Virtue's evidence; he told me that he used to manage a large number of people at Canberra Hospital but was made redundant and has done many other jobs, including labouring. He now works six hours a fortnight with an antique business, doing handyman duties. Mr Virtue said he is restricted in his employment opportunities because he needs to be available for Billy. He now receives NewStart Allowance and has an exemption from the activity test until April 2003.
Ms Leydon prepared and presented to the Tribunal a written submission, exhibit A1 before the Tribunal. Ms Leydon referred me to the report of Dr De Sousa who stated that:
"Billy is unpredictably dangerous and should not be allowed to be upright by himself and that he is not able to stand without social and emotional support."
Ms Leydon argued that "cannot stand without support" is unqualified and it therefore should be interpreted to include social and emotional support. She also referred to the Macquarie Dictionary definition which for "stand" is:
"To take or keep an upright position on the feet (opposed to sit, lie, etcetera), to be in an upright position, to remain motionless or steady on the feet."
"Support" is defined as:
"To sustain or withstand without giving way."
Ms Leydon referred to the matter of Secretary, Department of Family and Community Services v Grey, and I'll read you paragraphs 2 and 3 of the submission which is what she said about Grey. Paragraph 2:
"In the matter of Grey vs Secretary, Department of Family and Community Services (2002) AATA 138 5th March 2002, we concur with the submission by the respondent that "the first three criteria in section 197(2)(c) described medical procedures. The remaining four criteria concern care needs and excepting 197(2)(c)(vii), are not qualified by frequency of occurrence. The care requirements outlined in section 197(2)(2)(iv) to (vii) require a child to be constantly monitored. However, the number of actual incidents when assistance to the child will be required cannot be known. It is for these reasons that we contend there is no requirement to add the qualifier that the child always "cannot stand without support"."
Paragraph 3; Ms Leydon drew to the Tribunal's attention what she considered to be inconsistencies within the Act. She said:
"…We refer again to the matter of Grey vs Secretary, Dept of Family and Community Services (20002 AAATA 138 5th March 2002. where in clause 22 The Explanatory Memorandum states: "To satisfy the "personal care" requirement the child must require intervention by another person to maintain comfort, sustain life or attend to a bodily function that a child cannot manage by him or herself." It appears that the "personal care" definition is broad and inclusive taking into consideration a number of risk factors, however, the 'cannot stand with support' phrase is prohibitively narrow in its interpreted definition".
Ms Leydon submitted that this Tribunal should not take a narrow or restricted view of the legislation as that would not be in keeping with the spirit of the provisions.
Mr Slattery opened his submissions by stating that he could not comment on whether the provisions of the Act were fair, and expressed his acknowledgment to the Virtue family for their difficulties and the sacrifices they had to make for Billy. Mr Slattery acknowledged that Billy has serious disabilities and that he meets the tests in section 197(2)(a) and (b), and that the only outstanding matter is whether, pursuant to subsection (c), Billy can stand without support.
Mr Slattery submitted there was no medical evidence to support the contention that Billy cannot stand without support. He submitted that words "cannot stand without support" must be interpreted according to their ordinary meaning. He too referred the Tribunal to the definitions of the relevant words in the Macquarie Dictionary. He also drew the Tribunal's attention to the very specific and narrow criteria listed in section 197(2) of the Act, and suggested that this indicated that the words of section 197(2)(c)(v) should be interpreted in a similarly narrow way.
Mr Slattery also referred to the cases of Grey and Harrison, submitting that the Tribunal there had interpreted the provisions of sections 197 and 198 appropriately. He submitted that the correct decision for this Tribunal was that the decision under review be affirmed.
The Tribunal: Now, in coming to a decision, the Tribunal had to take into account all the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether Mr Virtue was eligible to receive the carer payment.
In doing so, the Tribunal had to consider the tests in sections 197 and 198 of the Social Security Act 1991.
The Tribunal puts on record that it found Mr & Mrs Virtue to be witnesses of truth and very concerned parents who have had an extremely hard time with their son Billy's medical problems. I accepted the evidence of Mr & Mrs Virtue as to the range of assistance provided to Billy by them.
Mrs Virtue told the Tribunal that they do not want to remain dependent on social security payments permanently, and are trying to work their lives out. She said that she is enrolling at university to study social sciences, and that Mr Virtue is trying to make something out of his spring water project on their farm. Meanwhile, Mr Virtue is on NewStart Allowance, and has an exemption from the activity test until April 2003.
I moved then to consider Billy Virtue's situation, and find that it is undisputed he has a severe multiple disability and because of that disability, needs a carer's personal care for six months or more. He satisfies, as we have already said, section 197(2)(a) and (b) of the Social Security Act. In relation to 197(2)(c) the Tribunal finds that Billy Virtue has faecal incontinence day and night in satisfaction of 197(2)(c)(iv)(A) of the Social Security Act, and requires personal care on two or more occasions between 10.00 pm and 6.00 am each day in satisfaction of section 197(2)(c)(vii)A. He therefore meets two of the required three factors in section 197(2)(c) of the Social Security Act 1991.
The third factor identified by the applicant but disputed by the respondent is that Billy cannot stand without support, and that relates to section 197(2)(c)(v) of the Act. As noted above, I had the opportunity of meeting Billy who is a handsome 9 year old who came to the first part of the hearing. We adjourned for Mr Virtue to take him back to his school as it would have been difficult for him and his family if he had been required to attend the whole hearing.
Mr & Mrs Virtue did not dispute that Billy can stand without support and he walked into the hearing unaided. However, the evidence of Mr & Mrs Virtue was that because of the nature of his complaints he cannot be left to walk around alone, and was indeed accompanied by his father as he moved around the room and sat at the table around which the Hearing was conducted. The applicant's submission as put by Ms Leydon was that this Tribunal should not take a restrictive approach to the words "standing without support" and that a narrow view did not accord with the spirit of the Social Security Act.
My view is that the context in which the words appear is relevant to the interpretation. A range of circumstances described in section 197(2)(c) is restrictive and specific, referring to particular medical procedures and specific periods of time. The language used in the provision is absolute, for example, "all food and fluids" in section 197(2)(c)(i) and "must use a ventilator" in the equivalent (iii). The words "cannot stand without support" are similarly unqualified by, for example, such words as "often, sometimes or generally".
I note here also, as Member Bell did in her decision in Grey that the definition of "profoundly disabled child" as it now appears in section 197(2) was first included in the legislation in section 18A of the Act by the Social Security and Veterans' Affairs Legislation Amendment, Budget and Other Measures Act 1998. The explanatory memorandum accompanying the Bill, and the Second Reading Speech for the Bill generally shed no light on the Government's intention, except to say that the purpose of the amendment was to extend the payment of carer pension to the carers of "profoundly disabled children". The exception to this is that the Explanatory Memorandum states in relation to personal care:
"To satisfy the personal care requirement the child must require intervention by another person to maintain comfort, sustain life or attend to a bodily function that the child cannot manage by him or herself."
The definition of "profoundly disabled child" was then, by the Assistance for Carers Legislation Amendment Act inserted in section 197(2) of the Act. The Explanatory Memorandum accompanying the Bill for that Act and the Second Reading Speech for that Bill make no reference to the intention of the Government in relation to definition of "profoundly disabled child". Member Bell also concluded in Harrison v Secretary of the Department of Family and Community Services, [2001] AATA 1001, that the context in which words appear in legislation is relevant to their interpretation. Paragraph 21 of that decision reads:
"The range of circumstances described in section 197(2)(c) is restrictive and specific referring to particular medical procedures and specific periods of time. The language used in the provision is absolute. For example, "all food and fluids", section 197(2)(c)(1) and "must use a ventilator", section 197(2)(c)(iv). The words "cannot stand without support" are similarly unqualified by, for example, such words as "often, sometimes or generally".
Similarly, the factors or criteria listed in section 197(2)(c), leaving aside for the present section 197(2)(c)(v), refer either to matters in the nature of medical procedures, (that's sections 197(2)(c)(i) to (iii)), or matters in the nature of personal or palliative care, and that's sections 197(2)(c)(iv) and (vi) to (vii). These all involve physical assistance or ministering to the child. As one of seven criteria listed in section 197(2)(c), six of which refer to physical procedures or physical care, the criteria of "cannot stand without support" can only in my view, taking into account the context in which it appears, be interpreted as cannot stand without physical support. This is notwithstanding the fact that the dictionary definitions of support include, as submitted by Ms Leydon, the word "encourage".
Now, there is a case Bourne v Norwich Crematorium [1967] 1 WLR 691 at 696 (which is cited in Pearce & Geddes which is "Statutory Interpretation in Australia" 5th Edition, Buterworths (2001) at page 102), and they say:
"Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases and then put back again into the sentence with the meaning which one has assigned to them as separate words so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language."
The Tribunal is of the view that the ordinary meaning of the words "cannot stand without support", the restrictive context in which they appear, the absence of any qualification of the words and the physical nature of the other matters listed in subsection 197(2)(c) support the interpretation argued by the respondent.
The medical reports of Drs Penton and De Sousa who care for Billy are most supportive of him and his family but none diagnosed that he cannot stand without support.
I was mindful, of course, of Mrs Virtue's evidence that the level of Billy's tremor is often very strong when he first wakes but that it improves some time later. I was mindful also that she could not predict how often it was really severe, saying ultimately that he might have a good month and two bad ones to follow. At no time, however, in my understanding is he unable to stand unaided even when the tremor is severe.
As there is no evidence that Billy's disability satisfy any of the other criteria specified in section 197(2)(c) other than faecal incontinence and requiring care on two or more occasions at night, the Tribunal must conclude that Billy's disability does not include three or more of the circumstances set out in section 197(2)(c). Consequently he does not fall within the definition of "profoundly disabled child" in section 197(2) of the Act.
It follows that Mr Virtue therefore will not qualify to receive carer payment in respect of Billy. Ms Leydon argued there is ambiguity on one view regarding section 197(2)(c)(v). Perhaps if representations are made to the legislators the relevant sections of the Act may be amended. This Tribunal is, however, required to apply the law as it stands.
DECISION Accordingly, the decision of the Social Security Appeals Tribunal and the respondent must be affirmed. This means that Mr Virtue has not been successful in his claim. The determination today is that the Tribunal affirms the decision under review being the decision of the Social Security Appeals Tribunal of 19 March 2002 to find that Mr John Virtue is not qualified for carer payment pursuant to section 198 of the Social Security Act in respect of Billy because Billy is not a profoundly disabled child within the terms of section 197 of the Act.
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