Editors --- "Carer allowance: 'care and attention' may also include supervising and prompting" [2012] SocSecRpr 21; (2012) 14(3) Social Security Reporter, Article 2

• ADAMS and SECRETARY TO THE DFHCSIA
• Background
• Issues
• Legislation
• Consideration
• Formal decision

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Carer allowance: ‘care and attention’ may also include supervising and prompting

ADAMS and SECRETARY TO THE DFHCSIA

(2012/507)

Decided: 3rd August 2012 by N. Isenberg

Background

Adams first met Zielinski in 1984. She was already diagnosed with schizophrenia and an alcoholic; she was paid disability support pension from 1995. Adams lobbied to have her live in his housing complex and she moved there in 2006: he was paid carer allowance for her from 2006. Adams would take her to the doctor, the psychiatrist and other therapy. She was on fortnightly injections and towards the end of the fortnight he would ‘beg’ the doctor to allow him to bring her in early. She overdosed on some medications and failed to take others. She had epilepsy medication and in the last six months of her life she had seven grand mal seizures in the street.

In April 2010 Zielinski told Centrelink that Adams was no longer her carer. His carer allowance was re-instated when, in May 2010, she retracted that statement; and it was cancelled in November 2010 when she again told Centrelink that he was not her carer. Adams believed that Zielinski’s family influenced her adversely for the purposes of defrauding her. Zielinski died in April 2011.

Adams was the Centrelink nominee for Zielinski until December 2010 when orders were made in the Guardianship Tribunal. Adams sent a letter to the Guardianship Tribunal stating that Zielinski could shop, cook, do her laundry, pay her bills, her rent etc but that he had to prompt her on a regular basis because, like all addicts, she preferred to spend her money on her addictions. Adams had expected the Guardianship Tribunal to send a taxi for him to go to the Tribunal, he could not afford a taxi to get there and he did not attend. After the Guardianship Tribunal orders, Adams no longer took Zielinski on excursions but, he said, nothing else changed.

Adams called his neighbours as witnesses to the AAT hearing. One gave evidence that she knew Adams was Vol. 14 No. 3, September 2012 3 Zielinski’s carer and that she knew he gave her medicine and took her to the doctor. One spoke of Zielinski using Adams to get alcohol and cigarettes and of Zielinski banging on his window at 2:30 am until he opened the door.

Issues

The AAT had to determine whether the cancellation of carer allowance from 5 November 2010 was correct.

Legislation

Section 954A(2) of the Social Security Act 1991 (the Act) 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.

Consideration

The Department contended that the evidence given of care needed by Zielinski did not meet the requirements of s.954A (2) of the Act. The Department argued that for carer allowance, the care needs had to have a connection with bodily functions or sustaining the care receiver’s life. The Department argued that the time Adams spent with Zielinski was more in the nature of companionship.

The AAT took note of a referral to the Area Mental Health Service from one of Zielinski’s GPs. The report on Zielinski detailed Adams’ concerns about finding Zielinski’s behaviour difficult to manage and expressing distress about her drinking, smoking and shouting and knocking on his windows and that Adams was requesting case management. The problems were noted to be longstanding. The AAT found that the objective evidence showed Zielinski to be a very disturbed and needy woman.

The AAT found that Adams’ actions in hounding Zielinski to eat and wash, take her medication and taking her to the appointments with doctors and psychologists, and his monitoring of her behaviour, was necessary to sustain her life. The AAT referred to the Explanatory Memorandum to the Family and Community Services and Veterans' Affairs Legislation Amendment (2004 Budget Measures) Bill 2004 that brought in the change that carers and disabled adults were no longer required to share the same home. The Explanatory Memorandum stated:

The types of “care and attention” that are intended to satisfy the new subsection 954A(2), which are also special care needs addressed in the ADAT, may include the carer personally providing assistance to the care receiver with the basic activities of daily living, such as feeding, dressing, showering, hygiene, including grooming and toileting, mobility, communication, or administering medication and/or treatment etc. These activities are special care needs required by the care receiver that relate to the care receiver’s bodily functions or to sustaining their life. “Care and attention” may also include supervising or prompting the care receiver with any of these activities in person [emphasis added]. In addition, “care and attention” may also include preventing and/or protecting the care receiver from undertaking harmful, damaging, aggressive or other inappropriate behaviour.

Formal decision

The decision under review was set aside and the Tribunal found that there was sufficient evidence to be satisfied that as at 5 November 2010 Adams was providing the necessary care to Zielinski of at least 20 hours per week, as specified in s.954A(2) of the Act. [M.R.]