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

[2015] AATA 699

VZTK and Secretary, Department of Social Services (Social services second review) [2015] AATA 699 (11 September 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6166
Re	VZTK
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	11 September 2015
Place	Brisbane

The Tribunal sets aside the decision under review and substitutes a decision that on 1 April 2014 the applicant qualified for carer payment.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – carer payment  – whether applicant providing “constant care” – where applicant attending school – where cessation of care does not exceed 25 hours per week – decision under review set aside

LEGISLATION

Social Security Act 1991 (Cth) ss 197, 198, 198AC

CASES

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

Seven Network Limited v Commissioner of Taxation [2014] FCA 1411

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

10 September 2015

INTRODUCTION

1. On 1 April 2014 the applicant made a claim for carer payment under the Social Security Act 1991 (Cth) (“the Act”). Centrelink decided that she did not qualify for carer payment because she was not providing “constant care” to the care recipient. I have to determine whether on 1 April 2014 the applicant qualified for carer payment.

   BACKGROUND       

2. The applicant’s mother is a disabled adult. She has been assessed under the Adult Disability Assessment Tool as having a rating of 70.75, comprising a treating health professional score of 34.5 and a carer score of 36.25. One of the matters that must be satisfied in order for the applicant to qualify for carer payment is that a disabled adult (the care receiver) must have been given a rating of at least 25 which is a score calculated on the basis of a total professional questionnaire of at least 10. This requirement under s 198(2)(a) of the Act is certainly satisfied in this case.

3. The applicant provides care to her mother at her residence. The requirement under s 198(3) of the Act that the care must be provided in a private residence that is the home of the care receiver is also satisfied.

4. The applicant is 14 years of age and lives with her parents. The care that is provided by the applicant is outlined in her statement dated 31 May 2015 that is in evidence.[1] The applicant has stated that on an ordinary day she checks on her mother and repositions her in the bed as required. She takes her mother to the toilet; her mother has a bell which she rings when she needs to go to the toilet.[2] The applicant assists her mother with showering, grooming and dressing. The applicant makes her mother breakfast and sets her up with the TV or movies to watch and then does cleaning around the house to ensure that her mother does not get infections. Throughout the day the applicant regularly checks on her mother, this could be as often as every 5 to 10 minutes when her mother is very ill. The applicant has outlined the different types of evening meals that she prepares for her mother. The applicant will assist her mother with medication as well as rubbing cream on her mother’s skin rashes. The applicant will provide assistance to her mother from sometimes after 6:00am in the morning until 9:00pm on school nights and up to 11:00pm on other nights.

   [1] Exhibit D.

   [2] Exhibit A f 6.

5. The applicant’s father also has disabilities. He has provided a statutory declaration in which he outlined the “pivotal role” of the applicant in family life and that the applicant must ensure the house is in a clean condition because of the hyper allergic reactions of the mother.[3] The hyper allergic reactions of the mother cause the household a great deal of concern. Visitors to the household are restricted from entering the home.  The applicant has outlined how it is necessary for her to clean the family dog if her mother requires the company of the dog.

   [3] Exhibit C par 33, 37.

6. The applicant attends her school for three days of the school week. On a day when the applicant attends school she is absent from home from about 7:45am until about 3:30pm. A comprehensive report has been provided by a social worker that contains an interview with the Deputy Head of the school who advised that the Principal of the school has approved the applicant having a modified timetable.[4] The applicant has indicated that the teachers accommodate this timetable by giving her an assignment earlier than other students so that she has the same real time as other students to complete the assignment. The applicant is disadvantaged as her home does not have any internet access and she does not have any modern computer facilities.

   [4] Exhibit B.

   MEANING OF “CONSTANT CARE”

7. Where a person cared for is a disabled adult, the carer must provide “constant care” in order to qualify under s 198 of the Act for carer payment. While the word “care” is defined in s 197 of the Act to include attention and supervision, the expression "constant care” is not defined in the Act. In such cases where a word in an Act is not defined, the Federal Court of Australia has considered that it is legitimate in those circumstances to have regard to dictionary meanings of a word.[5] I have had regard to a number of dictionary meanings of “constant” which defines the expression as meaning “regularly recurrent” (Macquarie Dictionary); “continually occurring or recurring, regular” (Penguin English Dictionary) and “occurring frequently, unchanging, faithful, dependable (Australian Oxford Dictionary). 

   [5] See for example Seven Network Limited v Commissioner of Taxation [2014] FCA 1411.

8. There is also a definition of “constant care” in the Guide to Social Security Law (“the Guide”)[6] as being “care on a daily basis for a ‘significant period’ during each day”. A policy document can be applied in accordance with the principles outlined in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 unless there are cogent reasons not to do so. The Guide refers to situations which are obviously inapplicable to this particular applicant such as where carer payment is made in situations where “the carer is not able to undertake substantial employment because of their caring responsibilities”. The Guide cannot be applied to unfairly limit or restrict the beneficial operation of an Act of Parliament.

   [6] Guide to Social Security Law s 1.1.C.310

   CONSIDERATION

9. The main issue to be resolved in the determination of this application is whether at the time of her claim the applicant was providing “constant care” in the terms of s 198 of the Act. The Secretary has quite properly conceded that the applicant does provide care to her mother on a daily basis and has not challenged any statements made by the applicant or her father as to the nature or level of care provided by the applicant. Both the applicant and her father attended the Tribunal hearing and were not required for cross-examination. I might say that there is a consistency between what the applicant told the Social Security Appeals Tribunal and her statement which is in evidence.

10. The provision of care by the applicant both before and after school on those days when she attends school is in my view “constant care” for “a significant period” during each day as required by the Guide. The care provided by the applicant is certainly “regular” and “faithful” in terms of the dictionary meaning of “constant” because the applicant regularly attends to her mother’s needs every day. On some occasions she has to attend to her mother’s needs as often as every 5 to 10 minutes. The applicant prepares and provides her mother with the breakfast and dinner meals every day. She assists her mother with showering, attending the toilet, grooming and dressing as well as ensuring that she takes her medications.  I find that the applicant provides constant care to her mother.

11. I also rely upon the unchallenged evidence of the applicant to find that during a school week she would be absent from home for educational reasons for about 23 hours and 15 minutes per week. If the applicant is qualified for carer payment because she is personally providing constant care for a care receiver and she temporarily ceases to provide that care in order to undertake education and the cessation does not exceed 25 hours, then she does not cease to qualify for the payment merely because of the cessation.[7] The evidence before me is that the absence of the applicant from home because of education does not exceed 25 hours and the applicant comes within the terms of s 198AC (4) of the Act.

    [7] Social Security Act 1991 (Cth) s 198AC (4).

12. I therefore find that on 1 April 2014, the date of her claim for carer payment, the applicant was qualified for carer payment. One matter that has influenced my decision was that the care recipient was at that time requiring a higher level of care due to her having seizures which resulted in admission to hospital. There is some weight in the submissions of the respondent that school arrangements would need to be reviewed in the future. However, my assessment of this application is focused upon the care which was provided by the applicant to the care recipient at the date of her claim. I appreciate that it is necessary to review the needs of the care recipient in the future.

    DECISION

13. I set aside the decision of the Social Security Appeals Tribunal dated 3 November 2014 and in substitution decide that on 1 April 2014 the applicant qualified for carer payment.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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Associate

Dated 11 September 2015

Date(s) of hearing	27 August 2015
Counsel for the Applicant	Mr M Black
Solicitors for the Applicant	Legal Aid Queensland
Solicitors for the Respondent	Department of Human Services