Walker; Secretary, Department of Family and Community Services

[2004] AATA 381

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 381

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/321

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And JAN DOROTHY WALKER

Respondent

DECISION

Tribunal Ms Ann Cunningham (Part-time Member)

Date16 April 2004

PlaceHobart

Decision The Tribunal affirms the decision under review.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Social Security – carer allowance – child at youth services home for 3 days in each week -meaning of “special reasons” – decision under review affirmed.

Social Security Act 1991 – ss953(1), 957(1), 957(3)

REASONS FOR DECISION

April 2004 Ms Ann Cunningham (Part-time Member)          

1.      The applicant has sought the review of a decision of the Social Security Appeals Tribunal (SSAT) made on 14 November 2002, setting aside a decision of a Centrelink officer of 8 May 2002 to reduce the payment of the Mrs Walker’s carer allowance in respect of her son.   The SSAT referred the matter back for reconsideration with a direction that Mrs Walker did not cease to be qualified for carer allowance (CA) for her son whilst he was resident at Devonfield, and therefore temporarily absent from her care for a period of up to 173 days in the 2002 calendar year.

2. The applicant was represented by Mr Brian Sparkes. Oral evidence was presented by the Mrs Walker who was represented by Mr John Crooks of the Launceston Community Legal Centre. The T documents were tendered pursuant to s37 of the Administrative Appeals Tribunal Act 1975 together with other documentary evidence, which included a report from Dr Evelyn Funk of the Mersey Community Hospital, dated 19 January 2004, a report from Dr T G Shannon from Latrobe Medical Practice, dated 19 February 2004 and information the Australian Bureau of Statistics regarding mental health, in particular depression, and extracts from the Centrelink guide regarding payment of carer allowance.

Agreed Facts

3.      The following facts were agreed:

(a)Since 1998  Mrs Walker has and continues to receive CA for her son Kieren.

(b)From January 2002 until September 2002, Kieren was spending 3 nights per week at a youth service home in Devonfield.  

(c)From 14 September 2002 Kieren has spent 4 nights per week at the youth service home.   Centrelink was advised of this arrangement in May 2002.

(d)Mrs Walker informed Centrelink that she was paying $33 per night for this service.

(e) Kieren daily attends Mersey Heights Special School in Devonport and  did so in 2002.

(f)The arrangement whereby Kieren attends Mersey Heights Special School and Devonfield  is continuing.

(g)Kieren has been diagnosed with autism, severe epilepsy, attention deficit hyperactivity disorder (ADHD) and intellectual disability and requires the necessary level of care required for the purposes of a person qualifying for CA.

(h)On 8 May 2002 following advice from Mrs Walker, Centrelink decided to reduce her CA.

Issues

4.      It was conceded on behalf of the applicant Department that Mrs Walker satisfies the threshold test under the relevant legislation and was qualified to receive CA during the year 2002.

5.      As there was no dispute that Kieren was residing at Devonfield for part of each week and thus temporarily absent from Mrs Walker’s care, the issue for determination by the Tribunal is whether there are any special reasons within the meaning of the legislation to extend the 63 day limitation period.

The Legislation

6. The qualification provisions for CA are set out in s953(1) of the Social Security Act 1991 (“the Act”).

7. Section 957(1) states:

“957(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.”

8. Whilst it was conceded on behalf of the applicant that Mrs Walker is qualified to receive CA pursuant to the provisions of s953(1) of the Act, and did not cease to be qualified under the provisions of s957(1) of the Act, because of a temporary cessation of care, it was contended that there should be a reduction in the CA for the period in excess of 63 days that Kieren was absent from the Mrs Walker’s care pursuant to the provisions of s957(3) which states:

“957(3) However, 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.”

9.      The period which is the subject of this appeal is the calendar year 2002.

10. It was contended on behalf of the Mrs Walker that the special circumstances of her case justify the extension of the 63 day limitation period referred to in s957(3) of the Act, and that there should not be a pro rata reduction of her CA.

The Evidence

11.     It was Mrs Walker’s evidence that after caring for her son, Kieren on her own since her husband left the family in April 2001, she reluctantly took the advice of medical specialists and placed Kieren at the Devonfield Youth Service Home for 3 nights per week in January 2002.    Mrs Walker stated that she found the situation of having to cope on her own very stressful and thought at the time that “Things couldn’t get any worse”.    She described how every day she was subjected to some kind of physical and verbal abuse from her son, which resulted in black eyes, split lips and numerous bite marks.   Mrs Walker said that her son is extremely strong and she has difficulty in asserting any control over him.   The care of Kieren became progressively worse and Mrs Walker made the decision in September to increase his period at Devonfield to 4 nights per week.

12.     Mrs Walker informed the Tribunal that she pays the sum of $80 per week towards Kieren’s care.   She also has the additional cost of a mobile phone as she must be on call 24 hours a day in the event that she is called out to attend to Kieren, which happens on various occasions.   She has incurred the additional cost of a reliable car to transport Kieren to and from the hospital and medical appointments.    After meeting her own and Kieren’s expenses she is left with between $30 and $50 each week from her Centrelink benefits.

13.     The medical reports confirm Mrs Walker’s evidence regarding her son’s behaviour and the results of the physical assaults upon her by Kieren.    Dr Funk reported:

“… that for both Kieren’s happiness and mom’s sanity he should spend most of his time in care.   This is going to be especially important as he gets older and stronger.  Jan loves her son dearly but is aware that she cannot handle him on her own and medically we have found nothing that will calm him down.”

14.     Dr Shannon’s report states that Kieren’s behaviour has had a marked impact on Mrs Walker’s health –

“… such that she suffers from depression, insomnia, anxiety and migraines.   Her requirement for medication has been consistent thought it has been difficult finding medications that suit her.   She currently needs to take Mirtazapine (antidepressant), Sodium Valproate for improving her mood stability and at times take Mersyndol for migraine.   All this has an effect on her ability to sleep, her ability to eat and her ability to function normally.”

15.     Dr Shannon also recommend that Mrs Walker and Kieren have considerable time apart “or otherwise Mrs Walker would not be able to care for Kieren at all”.

16.      Dr Shannon goes on to state in his report that whilst separation provides Mrs Walker with some rest, the rest is not complete.   This is because even though Kieren is in respite care, Mrs Walker still has to be available by telephone in case there is a sudden medical emergency and Kieren is required to go to hospital as has happened on a number of occasions.

Discussion

17. The term “any special reasons” referred to in subsection 957(3)(b) is not defined in the Act. The Tribunal was referred to the decision in Zomaya and Secretary, Department of Family and Community Services (2002) AATA 1190 where the Tribunal considered the meaning of “for any special reason in a particular case” and there stated:

“As has been pointed out frequently in cases arising from the many statutory discretions that involve judgments about whether `special reasons’ or `special circumstances’ exist in a particular case, in the words in French J  in Boscolo (supra) "[t]he core of the requirement...is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 27 FCR 32."

18.     It was contended by Mr Crooks that Mrs Walker’s circumstances gave rise to special reasons why the 63 day limit referred to in the legislation should be extended to include the total number of 173 days that Kieren spends at the respite home.

19.     In the decision Radmilovich and Secretary, Department of Family and Community Services  (2002) AATA 779, the Tribunal considered the meaning of “special reasons”, in the exercise of its discretion as to whether to treat the applicant as not being a member of couple. The Tribunal referred to the decision Secretary, Department of Social Security v Le-Huray 1996 138 ALR 533 and noted that Jenkinson J:

“emphasised that the decision-maker must have regard to both to the purpose of the enactment and the facts of the case in giving effect to a just outcome   He considered the meaning of “special reason” with reference to the discussion of “special circumstances” in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 and Beadle v Director-General of Social Security (1985) 7 ALD 670.    What emerges from that discussion is that to be “special”, the circumstances must be unusual, uncommon or exceptional.”

20.     As the Tribunal noted in its decision in Re Beadle (supra)  at page 3:

“An expression such as `special circumstances’ is by its very nature incapable of precise or exhaustive definition.   The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.   Whether circumstances answer any of these descriptions must depend upon the context in which they occur.   For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases.   This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”

21.     The Tribunal in Re  Ivovic and Director-General of Social Services (1981) 3 ALN N95 commented that the use of the word “special” is:

“intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case.”

22. The Tribunal went to state that the reference to “special circumstances” requires that there must be a factor or factors which justify an exception to the principle of liability which the Act otherwise establishes. Essentially that the decision-maker in exercising its discretion must make a decision which is consistent with achieving the objectives of the relevant legislation. The Tribunal also noted that the decision-maker must be prepared to respond to the special circumstances of any case by reason of which a strict enforcement the legislative provisions would produce an unjust, or unreasonable or otherwise inappropriate result.

23.     This is not to say however that merely because a result may be harsh, that the decision-maker is justified in ignoring the clear meaning of legislative provisions and the intent of Parliament (Re Krzywyk and Secretary, Department of Social Security (1988) 15 ALD 690.

24.     The Tribunal in its decision Re A and Director-General of Social Services (1982) No A81/36 stated:

“The requirement that there must be `special reasons” to justify making an exception from the general rule regarding computation of income laid down by s29(2) connotes in our view that there must be some factor or factors in the circumstances of the particular case which take it outside the common run of cases (cf Re Hunter, ex parte Exclusive English Imports Limited (in liquidation) 1954 NZLR 746 at 752.   As we said in Ivovic and Director-General of Social Services (No V81/21) in relation to a similar discretion under s115(4A) of the Act, we consider that in exercising the discretion under s29(2) of the Act `the decision-maker must have regard to whether, by exercising a discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purposes of the Social Services Act 1947: (cf Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492) at 505 per Dixon J: `thus while keeping the general rule laid by s29(2) in mind, the decision-maker must nevertheless be prepared to respond to the circumstances of a particular case if for any reason the application of the general rule would be unjust, unreasonable or otherwise inappropriate having regard to the scope and object of the Act.”

25.     The purpose of a carer allowance as stated in the Centrelink guide to payments is as follows:

“Carer allowance helps parents or carers to care for children and adults with a disability at home.”

26.     There are several references to the requirement that the care be provided in the home.   Reviews are conducted periodically “to determine whether the carer is providing constant care”.    Where a care receiver is absent it is stated:

“If the child’s pattern of attendance at the school or institution is regular, the rate of CA (child) is set according to the number of days usually spent at home each fortnight.”

Findings

27.     It is noted that the provisions of s597(a) refer to “care and attention on a daily basis” and in sub-section (a) and subsection (b) to a temporary cessation of care.  

28.     The examples referred to in the Social Security Guide in (T8 pages 27-28) suggest that the justification for exercising discretion for a special reason would occur where the allocated period of 63 days had already been utilised in respect of temporary absences for respite care and an unexpected event occurred requiring hospitalisation of the single parent.  In such a case it would be appropriate to extend the 63 day limit.

29.     In examining Mrs Walker’s circumstances, individually each may not appear to be so uncommon or unusual to be classified as “special”.   It is arguable however, that when the total circumstances of Mrs Walker’s case are considered, they may be regarded as “special” within the ordinary meaning of the word as defined in previous decisions.

30.     As stated by the Tribunal in Re Secretary, Department of Social Security and Porter  (1997)  AATA 11804 the exercise of discretionary power must be:

“… for the purpose for which it was conferred and having regard for the scope and object of Act as a whole. The Act is welfare legislation whose general object is to make provision, by way of social security payments for those who are in genuine need thereof. The purpose of s24(1) is to preclude the application of the abovementioned general rule in a particular case if, for a “special reason” in that, such application would not promote, but would instead impair the welfare of the relevant “member of a couple” in receipt of social security, and therefore, would not accord with the general object of the Act.”

31.     In that case the Tribunal referred to an earlier Tribunal decision in Re Reid and Director-General of Social Security (1981) 4 ALN N1 where the Tribunal said:

“The decision-maker … must have regard to whether, by exercising a discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope of the Social Services Act 1947 …. Thus by keeping the general rule laid down by s29(2) in mind, the decision-maker must nevertheless be prepared to respond to the circumstances of a particular case if for any special reason the application of the general rule would be unjust, unreasonable or otherwise inappropriate having regard to the scope and object of the Act.”

32.     It is clear from the then President’s decision  in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979, 2 ALD 634 that when the Tribunal is reviewing the exercise of a discretionary power, ordinarily any relevant ministerial policy would be applied, unless there are cogent reasons for a departure from policy. For instance where its application tends to produce an unjust decision in the circumstances of a particular case, the Tribunal in exercising its function to reach the correct or preferable decision may depart from that policy.

33.     It is the Tribunal’s view that whilst the Social Security Guide offers examples of where a discretion may be exercised, it does not clearly prohibit the exercise of a discretion in the current circumstances of this case.

34. The Tribunal is satisfied that the applicant’s particular circumstances when considered together justify the exercise of discretion in the current case and considers that to refuse the extension of the 63 day period would produce an unjust and an unfair result contrary to the intent and spirit of the Social Security Act. As stated by the Tribunal in Porter’s case:

“The Act is welfare legislation whose general object is to make provision, by way of social security payments, for those who are in genuine need thereof.”

35.     The special circumstances of Mrs Walker’s case are that: (1) she is a sole parent caring for a severely disabled child on her own; (2) she suffers from depression which requires treatment with medication; (3) she is unable to work because of the difficulties with her health and the fact that she is required to be on call to care for her son from time to time; (4) she reluctantly accepted the advice of medical specialists to place Kieren at the home; and (5) she has considerable expenses associated with Kieren’s care, and in particular the sum of $80 per week that is paid to the Devonfield youth services home.

36.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Ann Cunningham (Part-time Member)

Signed:         .....................................................................................
  Associate

Date/s of Hearing  4 March 2004
Date of Decision  16 April 2004

Solicitor for the Applicant          Mr Brian Sparkes
  Service Recovery Team, Centrelink

Solicitor for the Respondent     Mr John Crooks
  Launceston Community Legal Centre