Young and Secretary, Department of Family and Community Services

[2004] AATA 948

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 948

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/295

GENERAL ADMINISTRATIVE DIVISION		)
Re		GERARD YOUNG

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal  MJ Carstairs, Member

Date 14 September 2004

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..................(Sgd)....................

MJ Carstairs
  Member          

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – carer allowance – cancellation – care receiver must receive care and attention on a daily basis in private home that is the residence of the care giver and the care receiver – care receiver no longer residing in same residence as care giver – decision affirmed

Social Security Act 1991 s954

Re Jackson andSecretary Department of Family and Community Services [2000] AATA 636
Re Brown and Secretary Department of Family and Community Services [2003] AATA 475
Re Snell andSecretary Department of Family and Community Services [2002] AATA 135
Re Channels and Secretary Department of Family and Community Services [2004] AATA 53
Re Jordan and Secretary Department of Family and Community Services [2003] AATA 816

REASONS FOR DECISION

14 September 2004 MJ Carstairs, Member

1.      This is an application by Gerard Young (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 5 April 2004. The SSAT affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 31 July 2002, cancelling the applicant’s payment of carer allowance on the basis that he was no longer living at the same address as the person for whom he was paid carer allowance.

2. The applicant and respondent agreed that this matter should be heard on the papers. The respondent was represented by its advocate Mr J Howard who filed a Statement of Facts and Contentions with the Tribunal on 22 July 2004. The Tribunal also had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975.   

BACKGROUND

3.      The applicant was in receipt of carer allowance when caring for Ms Anne Nicholas, while he lived with at the same residence as she did.    When he moved to other accommodation, Centrelink made the decision to cancel carer allowance.

4.      The applicant sought review of the decision.  From the documents before the Tribunal it was clear that despite no longer living at the same residence, the applicant continued to give care to Ms Nicholas on a daily basis and would sometime spend nights at her address if required. 

5.      The decision to cancel the allowance has been affirmed by the original decision maker, the authorised review officer and the SSAT, each pointing to the mandatory requirement in the Social Security Act1991 (the Act) that the carer and the caree live at the same residence.

6.      It was clear from his letters to Centrelink and to the SSAT that the applicant considers the requirement to be living at the one address is unfair. In his application to this Tribunal, the applicant said that he has pursued the issue with his local Member of Parliament. 

7.      The applicant also referred the Tribunal to a television report of a  case similar to his where an act of grace payment was made to a carer who was not living at the same residence.  This Tribunal does not have jurisdiction to consider act of grace payments, so the issue for this Tribunal is confined to the question of whether the decision to cancel carer allowance was a correct decision under the Act.

CONSIDERATION OF THE ISSUES

8. Section 954 of the Act provides:

(1)  A person is qualified for carer allowance for a disabled adult (the care receiver) if:

(a)…

(b)the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

(c)…

(d)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and

(f)…

9. Mr Howard submitted that each of the criteria must be satisfied and that, because the applicant and Ms Nicholas live in separate residences, the applicant is unable to satisfy s954(1)(d). Mr Howard referred to decisions of the Tribunal including Re Jackson andSecretary Department of Family and Community Services [2000] AATA 636; Re Brown and Secretary Department of Family and Community Services [2003] AATA 475 and Re Snell andSecretary Department of Family and Community Services [2002] AATA 135; Re Channels and Secretary Department of Family and Community Services [2004] AATA 53 and Re Jordan and Secretary Department of Family and Community Services [2003] AATA 816.

10.     Mr Howard noted the expressed intention of the Government that from 1 September 2004 carer allowance payments will be extended to carers who do not live in the same residence as the person for whom they care, but who provide more than twenty hours of care per week.

11.     It was not disputed that the applicant provides a high level of care and attention to Ms Nicholas daily.  It was not disputed that the applicant and Ms Nicholas live at separate addresses.

12. The requirement of s954(d) is that the carer and the caree live in the same residence. The Tribunal agrees that there is no discretion in the Act and the authorities cited at paragraph 9 of these reasons confirm this. The Tribunal applies those authorities and finds that the applicant was not qualified for carer allowance. Therefore Centrelink were correct in cancelling his payment.

13.     Taking into account the Media Release by the Minister for Family and Community Services dated 20 June 2004 (Attachment 1 to the respondent’s statement of facts and contentions), the legislative changes that would extend carer allowance to people in the applicant’s circumstances were due to come into effect on 1 September 2004.  To qualify, however, the applicant needs to lodge a new claim.

DECISION

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of MJ Carstairs, Member

Signed:         Sarah Oliver
  Associate

This Matter was Heard on the Papers
Date of Decision  14 September 2004

The Applicant represented himself
For the Respondent                  Mr Howard, Departmental Advocate