Editors --- "Carer payment: care and attention; residence of care giver and care receiver; special care needs; temporary cessation of care" [2008] SocSecRpr 29; (2008) 10(2) Social Security Reporter, Article 11

• SECRETARY TO THE DFHCSIA and VASILIOU
• Background
• Facts
• Legislation
• Decision

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Carer payment: care and attention; residence of care giver and care receiver; special care needs; temporary cessation of care

SECRETARY TO THE DFHCSIA and VASILIOU

(2008/362)

Decided: 5th May 2008 by E. Fice

Background

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. In October 2006 Centrelink advised Vasiliou that his claims for carer payment and carer allowance were rejected. That decision was affirmed by an ARO.

The Secretary disagreed with the SSAT decision to allow Vasiliou’s claim for carer allowance and sought review of that decision by the AAT. 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.

Facts

It was not disputed that Vasiliou’s brother suffered from chronic paranoid schizophrenia and received medical treatment which involved taking medication in tablet form and receiving fortnightly injections. Vasiliou lived with his mother, who owned their residence. The brother did not live with Vasiliou and their mother because, at night, he paced up and down persistently, which prevented other persons in the house from sleeping. When he did not take his medication, he could become violent. He had been provided with his own small residence which was situated above a garage. That allowed him to pace up and down during the night without disturbing anybody else. Although his accommodation had basic bathroom and kitchen facilities, according to Vasiliou, his brother did not use the facilities frequently. His brother left his place of residence between 3.00am and 5.00am most mornings and drove to Vasiliou’s residence. He sat in the car outside the house until their mother rose and let him in. He spent most of the day time at Vasiliou’s residence where he was fed and pressured to shower. He did not shower unless he was urged to do so and he appeared unclean and unhygienic. He made a terrible mess after using the bathroom and also generally around the house where he made no effort at all to clean up after himself. He had to be encouraged to eat. However he managed his own money and paid the rent on his residence above the garage. He owned an old car which he used frequently.

At times he simply disappeared. His whereabouts were unknown and he might not appear at Vasiliou’s residence for up to four weeks at a time. From time to time, Vasiliou had to call the CAT team to give his brother his injection when he did not go to the Clinic. When he omitted to take his medication or to receive injections, he displayed symptoms of depression, memory loss and social withdrawal. He often displayed an absence of inhibition and aggression towards himself and others.

Legislation

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.

Vasiliou’s evidence was that he and his mother resided in Odessa Street, St Kilda. His brother’s unit was in Inkerman Street, St Kilda. The two residences were some distance apart. The care received by his brother at Vasiliou’s residence did not meet the requirements of s.954of the Act. Therefore, in order to qualify for the carer allowance, Vasiliou had to satisfy the qualification criteria set out in s.954A of the Act.

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, fora 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.

The Secretary contended that Vasiliou’s care of his brother did 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 his brother’s bodily functions or to sustaining his life. The Secretary also contended that, in any event, he did not receive care on a daily basis for a total of at least 20 hours a week.

The Secretary submitted that the Tribunal ought to have regard to the Guide to the Social Security Law prepared by Centrelink(the Guide) when determining whether the care provided by Vasiliou relates to bodily functions or to sustaining his life. The Tribunal said:

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).

(Reasons, para. 15)

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 and/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,

- PERSONALHYGIENE, including help with dressing and undressing, bathing and showering, grooming, and assistance with using the toilet,

- EATINGAND 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.

...

The special care needs which Vasiliou said he provided to his brother related to personal hygiene, eating and drinking, and to some extent, treatment and caret sustain life.

There were 2 medical reports which displayed some inconsistencies. Having considered the reports and heard evidence from Vasiliou the Tribunal concluded that whilst Vasiliou’s brother did not need special care including assistance with bodily functions under every heading set out in the Guidelines, he unequivocally satisfied the requirement for care to sustain life. He probably also required a degree of care regarding personal hygiene, eating and drinking, and treatment.

The Secretary also contended that Vasiliou’s brother did not receive care on a daily basis. 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. 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 could not be said that Vasiliou provided the relevant care and attention on a daily basis as is required under 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. ...

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. ...

The Tribunal concluded that simply because his brother temporarily ceased to receive care and attention that would qualify Vasiliou for the carer allowance, did not mean that Vasiliou ceased to be qualified for carer allowance provided that the cessation did not exceed 63 days in anyone calendar year. On the evidence of Vasiliou, any cessation of daily care occurred for periods of less than 63 days in any calendar year. Furthermore, when he had not disappeared for a short period, he attended Vasiliou’s residence everyday, for the whole of the day, only returning to his own residence to sleep. He would therefore meet the requirement of receiving care for a total of at least 20 hours per week, except for when he disappeared. Any cessation which occurred from time to time, when he disappeared, would not result in Vasiliou ceasing to be qualified for the carer allowance.

Decision

The decision of the SSAT was affirmed.

[I.T.]