Editors --- "Carer allowance: caree in nursing home" [2012] SocSecRpr 20; (2012) 14(3) Social Security Reporter, Article 1

• TYNAN and SECRETARY TO THE DFHCSIA
• Background
• Issues
• Legislation
• Care over and above that of the professional carer.
• Formal decision

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Carer allowance: caree in nursing home

TYNAN and SECRETARY TO THE DFHCSIA

(2012/339)

Decided: 6th June 2012 by J. F. Toohey

Background

Tynan’s wife suffered a severe stroke in April 2006 which left her with rightsided hemiplegia. She was unable to communicate and was dependent on him for all her daily living needs. In July 2006 she was admitted to Blacktown Nursing Home.

From the time of the stroke Tynan devoted himself to his wife’s rehabilitation with the result that her memory and speech were improving and she could walk with a stick. She could not be left alone unsupervised, she still needed high level care, but her condition was much improved.

Tynan claimed carer allowance and carer payment in 2008 and Centrelink rejected the claim. Tynan claimed carer allowance again in August 2010. Tynan stated that from early 2010 he had been caring for his wife, in their home, every day for six or seven hours a day. For some of the time she was spending one night at home with Tynan. Tynan’s wife needed assistance with all aspects of personal care: mobility, personal hygiene, eating and drinking and behavioural management. Tynan estimated that there was only 30-40 days per year when he provided no care to his wife. Since September 2010 the improvement in Tynan’s wife’s health allowed Tynan to feel confident enough to allow their sons to assist with the care.

The medical report for the carer claim in 2008 showed that Tynan’s wife was unable to manage, or needed assistance, in every category. Her ADAT score was 51.50. The AAT considered that, even with the improvement, the ADAT score would still be 30 or more for the 2010 claim.

Issues

The AAT needed to interpret the Social Security Act 1991 (the Act) ss.954 and 954A to decide whether carer allowance could be paid when the caree resided in a nursing home.

Legislation

Until September 2004 the carer and the caree had to live in the same house: in 2004 the legislation inserted s.954A to allow non-co-resident carers to be granted carer allowance.

Section 954A(2) provides that:

(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, for a 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.

Care over and above that of the professional carer.

The Department argued that Tynan’s wife received care and attention from the paid carers in the nursing home and therefore Tynan was disqualified from receiving carer allowance.

The AAT said that s.954A(2)(c)(ii) prevents a claimant from giving, for instance, 10 hours of care per week and relying on a paid worker to make up the necessary 20 hours of weekly care. The AAT found nothing in the Explanatory Memorandum, or the Guide to the Social Security Law, to suggest that the mere existence of another paid carer disqualifies payment to a carer who would otherwise qualify for payment. The Explanatory Memorandum and The Guide each state that the minimum of 20 hours care ‘is over and above care that provided by the professional carer’.

The AAT also considered that s.954A(2) (c) allowed for paid care in a nursing home. The AAT held that the intention was to allow people to remain at home for as long as possible, but that receiving care, other than in the private home, would not exclude carer allowance.

Tynan had devoted himself to providing care and rehabilitation for his wife. The AAT decided that, although she would probably remain in the nursing home for the rest of her life, Tynan’s care and attention had resulted in an improvement in her condition. The AAT was satisfied that Tynan met the requirements of s.954A (1) and that he qualified for carer allowance from 17 August 2010.

Formal decision

The Tribunal set aside the decision under review and in substitution decided that Tynan was qualified for a carer allowance as of 17 August 2010. [M.R.]