Editors --- "Carer payment and/or carer allowance:'constant care'; 'care on a daily basis'; adult disability assessment tool" [2009] SocSecRpr 47; (2009) 11(4) Social Security Reporter, Article 10

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Carer payment and/or carer allowance:'constant care'; 'care on a daily basis'; adult disability assessment tool

SECRETARY TO THE DFHCSIA and HARVEY

(2009/835)

Decided: 29th October 2009 by J. D. Campbell

Background

Harvey lodged a claim for carer allowance (CA) and/or carer payment (CP) on 23 October 2007 for providing care for Mr Harvey, her husband.

Harvey’s claims for CA and CP were rejected for failure to respond to correspondence and because caring activities did not exceed 25 hours. On 27 December 2007, following further information, CP and CA were granted effective from 23 October 2007.

On February 2008 Centrelink cancelled Harvey’s payments on the basis that care was not provided on a daily basis.

On 18 July 2008, the authorised review officer (ARO) affirmed the cancellations. The ARO had the Adult Disability Assessment Tool (ADAT) rating reassessed with a new treating health professional score of 6.5. This score was less than the 10 points required to qualify for CP and the 12 points required to qualified for CA.

On 16 October 2008 the Social Security Appeals Tribunal (SSAT) set aside the cancellations of CP and CA. The SSAT decided that Harvey provided constant care for her husband and that the relevant ADAT assessments were a 28.75 claimant score and a 19.5 health professional score.

Issues

The issues in this case were:

a) Whether Mr Harvey was a disabled adult?

b) What does ‘constant care’ mean?

c) Did Harvey alone provide ‘constant care’?

d) What does ‘care and attention on a daily basis’ mean?

e) What was Mr Harvey’s ADAT score at cancellation?

f) Did Harvey qualify for CP and/or CA?

Discussion

Mr Harvey suffered from chronic renal failure, extensive skin cancers requiring regular surgery, hypertension and had a joint replacement. He was dialysed three days a week at home, with Mrs Harvey present for the eight hours that it took to prepare, undertake the dialysis and clean up. The AAT found that for at least five hours of that dialysis period, Mr Harvey was restricted to limited static activity. Because of his renal failure, Mr Harvey’s diet was restricted and he needed to maintain strict adherence to his medication program.

It was also found that because of his skin condition Mr Harvey required skin biopsy, excision, lesion removal or skin graft on a fortnightly basis and that during the post-excision and/or lesion removal period, Mr Harvey required assistance with wound dressing, showering, dressing and food preparation, as well as being unable to drive during the post-surgery recovery period.

When Mr Harvey was not undergoing renal dialysis and was not in a post-surgery recovery period he was generally able to care for himself, undertake shopping activities and drive a car, as well as socialise.

Mr Harvey had been in receipt of a disability support pension (DSP) since 1 March 2005.

The Secretary argued that the claimant’s completed questionnaire was not a real reflection of how Mr Harvey usually managed. The AAT noted that Mr Harvey suffered from two chronic, permanent conditions each of a different nature making the completion of the claimant questionnaire difficult.

The AAT further noted that, ‘even if ...there were some ambiguities in the instructions nominated,

... The Act is beneficial legislation designed to assist the needy and the disadvantaged’ (Reasons, para. 35).

The Secretary also argued that the care needs recorded in the health professional questionnaire were not an accurate reflection of when Mr Harvey was not on dialysis. The AAT considered that the professional questionnaire had to establish what the care receiver does as opposed to what he ‘could do’. The AAT further said ‘the thrice weekly dialysis program dictates a specific care program ... which cannot be ignored’ (Reasons, para. 42)

The AAT considered the issue of ‘constant care’ within the meaning of s.198 as required for the purposes of cp by examining dictionary definitions as well as the Guide to Social Security Law. Several cases decided prior to the current Act were also analysed.

The AAT concluded that the phrase ‘constant care’ refers to care needs which are unchanging, unremittent, occurring continually and remaining the same over a period of time’ (Reasons, para.28). The assessment of care needs and the level of care needs was a function of the ADAT. The AAT further said that the idea that a carer would be expected to provide at least the equivalent of a normal working day could only be relevant if the phrase ‘constant care’ was interpreted to mean ‘constant care on a daily basis’. That interpretation should not be adopted because the Act did not include the additional words ‘on a daily basis’.

The AAT then turned to the issue of receiving ‘care and attention on a daily basis’ for the purpose of qualifying for CA. While the physical care activities were ‘predicated by the scheduling of treatment programs for...two chronic conditions’, it was also found that there were monitoring and supervisory activities for diet and food preparation that occurred on a daily basis.

The AAT found that Mr Harvey was a disabled adult suffering from two permanent conditions: chronic renal failure and extensive basal cell carcinoma of the skin, Harvey was the only person providing constant care in relation to the two permanent conditions, and she provided some elements of the care on a daily basis.

Formal decision

The decision under review was affirmed with the claimant score of the ADAT varied to 30 and the total ADAT rating to 49.5.

[M.O’H.]