Editors --- "Carer payment: 'significant assistance'; carer allowance and 'special care' needs" [2008] SocSecRpr 49; (2008) 10(4) Social Security Reporter, Article 15

• JOHNSON and SECRETARY TO THE DFHCSIA
• Background
• The Issue
• Legislation
• Evidence
• Carer payment
• Carer allowance
• Formal decision

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Carer payment: ‘significant assistance’; carer allowance and ‘special care’ needs

JOHNSON and SECRETARY TO THE DFHCSIA

(2008/875)

Decided: 2nd October 2008 by M. Denovan

Background

Johnson provided care for Stoddart, a 39-year-old paraplegic, and was paid carer payment between January 2006 and March 2007. After March 2007, Johnson worked for the Cerebral Palsy League and on 7 December 2007, she started caring for Stoddart again. On 13 December 2007 she lodged a claim for carer payment and carer allowance on the basis that she cared for Stoddart between 5pm and 10pm, 13nights per fortnight. Stoddart had special needs identified under The Adult Disability Assessment Tool (ADAT). Blue Care and Homelife personnel attended during the day to provide personal care for Stoddart. The Secretary rejected both claims and the SSAT affirmed the decision about carer payment.

The Issue

The issue was whether Johnson was entitled to carer payment and/or carer allowance for the period 7 December 2007 to 27 January 2008. The Tribunal had to decide if Johnson provided constant care and whether at least20 hours of the care per week was for Stoddart’s special needs relating to his bodily functions or to sustaining life as identified under the ADAT.

Legislation

Section 198(2) of the Social Security Act 1991 (the Act) provides that to qualify for carer payment, a person ‘must personally provide constant care’ for a relevantly disabled person.

Carer allowance is a supplementary payment that recognises care relating to special care needs within private homes. Section954A(1)(d) of the Act provides that a person qualifies for carer allowance if the person personally provides ‘care and attention’. Under Section 954A(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...

Evidence

In January 2006, Dr Thurlow stated that, although Stoddart required constant care on a daily basis to carry out routine personal activities, he did not require care from more than one person. The Secretary contended that the level of care provided by Johnson was not of sufficient quantity or of sufficient intensity to qualify as ‘constant care’ under the Act.

Johnson claimed that she started at 5pm and left at 10pm. Johnson said that, during the period in question, she performed a number of chores for Stoddart, including hanging up washing and bringing washing in, preparing his evening meal, washing dishes, making sure he had access to drinking water and other meals, and light house work such as sweeping the floor. Johnson would assist Stoddart prepare a weekly shopping list; ensure that his medications were accessible and that he had a ready supply of his medications. She would collect his medications, as needed, from the hospital during the day time. Johnson did not routinely assist Stoddart with his showers, although occasionally, on weekends, she was required to do this. Johnson said that apart from having coffee with Stoddart once a night, she spent the entire time working.

Stoddart sometimes suffered from pressure sores. He would then stay in bed; need his food cut up and need assistance with bodily functions (some 30-90 mins per day). On Johnson’s one day off a fortnight, Stoddart received care from his girlfriend.

Carer payment

It was noted that the term ‘constant care’ is not defined in the Act. The Guide to Social Security assists by stating the carer is said to provide constant care if they personally provide care on a daily basis for a ‘significant period’ during each day. It is recognised that the carer or care receiver may be absent from the care situation for part of the day, but the ‘intensity of the care required and provided during the remainder of any 24 hour period is such that it roughly equates to a normal working day’. The policy intent of providing carer payment is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities.

In this case Johnson worked for the entire five hours and even the coffee break was companionship for Stoddart. Johnson gave up her job at the Cerebral Palsy League and it was reasonable to infer that she would not have had enough time to work or study for more than 25hours in addition to caring for Stoddart. The care provided by the other agencies was not sufficient for Stoddart’s needs and the care Johnson provided was regular and consistent, not episodic.

The AAT held that Johnson was eligible for carer payment from7 December 2007 to 27 January 2008.

Carer allowance

The SSAT made no finding on the carer allowance but, following the decision in Paul Fuad and Telstra Corp. Ltd.[2004]AATA1182 which held that all matters put before the decision-maker as part of a claim are before the AAT when there is an application for review, the Tribunal held that the issue of carer allowance was before the AAT.

For carer allowance, the care needs to relate to the care receiver’s bodily functions or to sustaining the care receiver’s life for at least 20 hours a week. Most tasks performed by Johnson did not relate to his bodily functions or special care needs. Johnson’s care did not qualify for carer allowance during the relevant period.

Formal decision

The Tribunal affirmed the decision in relation to carer allowance.

The decision in relation to carer payment was set aside and in its place was substituted the decision of the Tribunal that Johnson was eligible for carer payment from 7 December 2007 to 27 January 2008.

[M.R.]