Editors --- "Carer Allowance: qualification; carer and care receiver not living in the same house; whether 'care and attention' needs to be provided face to face" [2013] SocSecRpr 32; (2013) 15(4) Social Security Reporter, Article 8

• STEWART and SECRETARY to the DEEWR
• Background
• Legislation
• Discussion
• Formal decision

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Carer Allowance: qualification; carer and care receiver not living in the same house; whether 'care and attention' needs to be provided face to face

STEWART and SECRETARY to the DEEWR

(2012/3854)

Decided: 13th September 2013 by B.J McCabe

Background

Stewart lived and worked in Brisbane. Her mother lived in her own home in Mt Tamborine, and required significant care on the basis of her disabilities. Stewart travelled to her mother’s home several times during the week to provide this care, and sometimes stayed overnight in her mother’s home. On the days that Stewart could not be with her mother, she would telephone her to remind her to take her medication and about other important tasks, and to check in with her.

Stewart applied for Carer Allowance in respect of the care she provided her mother. This claim was rejected by the Secretary. The SSAT affirmed the decision, and Stewart appealed to the AAT.

Legislation

Section 954A of the Social Security Act 1991 (‘the Act’) sets out the qualification criteria for carer allowance, where the carer and care receiver do not live in the same home. The decision in this matter centred on whether Stewart met the ‘care and attention’ requirements in paragraph 954A(2):

...

(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.

Discussion

Stewart’s application for carer allowance was rejected by the original decisionmaker on the basis that she did not satisfy the requirement in s.954A(2)(b). This requirement is that the care ‘must be received by the care receiver on a daily basis, for a total of at least 20 hours a week.’

Stewart gave evidence that she spent more than 20 hours a week providing care for her mother in her mother’s home. She also explained that she was in her mother’s home 3 or 4 days in an average week, but 5 to 6 days in other weeks. On a day that she was not physically present in her mother’s home, Stewart would

call her mother at least once, in order to remind her to take her medication and to check that she had performed self-care tasks. On these days respite carers visited

her mother to provide her with face-to-face care.

Stewart argued that there was nothing in the Act to say that ‘care and attention' could not be provided by telephone. She argued that the care provided over the telephone, together with the care provided in her mother’s home, meant that she was providing care ‘on a daily basis’.

The Secretary did not agree with the submissions that the telephone care could be taken into account. The Secretary referred to s.954A(2)(d) of the Act which requires that the care ‘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’. Reference was also made to the Explanatory Memorandum to the Family and Community Services and Veterans’ Affairs Legislation Amendment (2004 Budget Measures) Bill 2004, which introduced the qualification criteria for care situations where the care receiver and carer did not live together.

The Explanatory Memorandum made the following statement in relation to s.954A(2)(d):

...the carer may go to the care receiver’s home to provide care, or the care receiver may go to the carer’s home to receive care.

The Secretary argued that the reference that the carer must ‘go to the care receiver’s home’ indicated the legislative intention that the care must be provided on a face-to-face basis. The Tribunal expressed the opinion that the focus on s.954A(2)(d) was misconceived, as the purpose of that paragraph was to confirm that there was no co-residency requirement. The Tribunal stated that regard must first be paid to s.954A(2)(a), which defines the type of ‘care and attention’ that must be provided, before moving on to decide where this ‘care and attention’ was provided. Paragraph (2)(a) states:

(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

The Tribunal did not make a determination about Stewart’s mother’s assessment under the Adult Disability Assessment Tool. In relation to paragraph (2)(a)(ii) the Tribunal stated:

The sort of care contemplated by the parliament in that provision is ordinarily provided on a face-to-face basis. Care that addresses bodily functions cannot be provided remotely. These are “hands on” tasks. Providing telephone reminders about taking medication is unlikely to fall within the range of activities contemplated by the sub-section, even where taking medication is itself necessary to sustain life. Simply stated, you have to be there in order to satisfy the requirements of the section. [Reasons for decision, para. 9].

On this basis the Tribunal decided that Stewart was not providing ‘daily’ care and attention to her mother, and did not qualify to carer allowance. The Tribunal did not make any observations about the second part of paragraph (2)(a)(ii), which refers to ‘sustaining the care receiver’s life’, and whether care provided other than on a face-to-face basis could satisfy this requirement.

Formal decision

The Tribunal affirmed the decision under review.

[DA]