Snell and Department of Family and Community Services [2002] AATA 135 (27 February 2002)

Last Updated: 6 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 135

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1182

GENERAL ADMINISTRATIVE DIVISION )

Re BETH SNELL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 27 February 2002

Place Sydney

Decision The decision under review is affirmed.

[SGD] Dr J D Campbell

Member

CATCHWORDS

SOCIAL SECURITY - carer's allowance - place of residence of carees and carer

Social Security Act 1991 - section 954

REASONS FOR DECISION

Dr J D Campbell, Member

1. In this matter, Mrs Beth Snell ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 18 July 2001, which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 28 March 2001 that a carer allowance could not be paid to the Applicant for the care given to Mr William Snell and Mrs Rene Snell, her parents-in-law, as both the Applicant (the carer) and the carees were living in separate but adjoining residences. The decision had been reviewed by an authorised review officer and affirmed in a decision dated 20 April 2001.

2. A hearing was held before the Tribunal on 24 January 2002 at which the self-represented Applicant presented evidence by telephone. The Respondent was represented by Ms Schuster, an advocate from the Advocacy and Administrative Law Team at Centrelink.

3. The following material was placed into evidence before the Tribunal:

Exhibit Description Date

T1-T30 pp1-73 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T Documents")

T1-T45 pp74-135 Additional T Documents

R1 Respondent's Statement of Facts and Contentions 21 January 2002

issues

4. The relevant issue before the Tribunal is whether the Applicant qualifies for the payment of carer allowance in respect of care she provides to her parents-in-law, Mr William and Mrs Rene Snell ("the carees").

legislation

5. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular section 954.

background

6. The Applicant had received the payment of a domiciliary nursing care benefit paid by the Department of Health and Aged Care under the National Health Act 1953 until 1 July 1999, when the benefit was withdrawn and replaced by a carer allowance benefit payable pursuant to the Social Security Act 1991.

7. As part of the transfer process from a domiciliary nursing care benefit to a carer allowance, the Applicant completed the necessary forms in which she declared that she lived at 10 Record Street, Goulburn and that her parents-in-law (the carees") lived at 8 Record Street, Goulburn. A carer allowance payment continued to be paid to the Applicant.

8. On 8 March 2001 the Applicant was requested to complete a form for a "review of care provided" in relation to carer allowance. This, the Applicant lodged with the Respondent on 20 March 2001 (T35).

9. In completing the "review of care provided" form, the Applicant stated that Mrs Rene Snell can move around the house without help; sometimes falls over whether indoors or outdoors; is able to move to and from bed without help; sometimes has difficulty hearing, but no difficulty seeing clearly; sometimes needs attention during the night; sometimes has a loss of bladder and/or bowel control, but does not use any aids; is able to use the toilet and eat her food without help, but needs a lot of help in showering/bathing, dressing and grooming; is able to take care of her own medication and is receiving no special treatment. In relation to Mrs R Snell's cognitive function, the Applicant stated that she usually understands what the carer and others say; always lets others know how she feels and always knows where she is, and whether it is day or night; and usually remembers things that have happened the same day. In relation to Mrs R Snell's behaviour, the Applicant stated that Mrs R Snell does not wander, shout or scream, physically harm others, damage furniture, or laugh or cry without reason, nor deliberately harm herself or have unusual behaviour. However, she sometimes withdraws from contact with other people (T35).

10. In relation to Mr William Snell, the Applicant stated in the "review of care provide" form that he is able to move around the house, to and from chairs and beds; use the toilet, take his own medication and feed himself without help; sometimes falls over indoors or outdoors; sometimes has difficulty with hearing and seeing clearly; sometimes needs attention at night; has loss of bladder and/or bowel control; and needs some help with the continence aids, showering/bathing and dressing. In relation to cognitive function the Applicant stated that Mr Snell always understands what the carer or others say; always knows where he is and whether it is day or night; usually lets others know how he feels; and usually remembers things that have happened the same day. In relation to his behaviour the Applicant stated that he never wanders, shouts, does physical harm to himself or others, damage furniture, exhibit unusual behaviour or laugh or cry without apparent reason, though sometimes he withdraws from contact with other people (T35).

11. In a health professional assessment dated 23 March 2001, Dr Tait, the treating general practitioner, stated that Mr William Snell (T36):

* has physical disabilities, namely osteoarthritis and a bladder carcinoma;

* his physical conditions result in the need for constant care on a daily basis, to carry out routine personal activities and because he may be at risk to himself; and

* his condition is permanent and not likely to improve.

12. Dr Tait considered that Mr Snell is bowel continent, but bladder incontinent; needs help with personal care, but is independent in relation to toilet use, feeding, getting in and out of bed and chairs, and moving around the house. Further, he needs help with dressing, taking the stairs and bathing. Dr Tait did not believe Mr Snell to be cognitively impaired but that sometimes he shows signs of depression and memory loss (T36).

13. Dr Hutchins, the treating general practitioner, in his health professional assessment dated 26 May 2001, considered Mrs Rene Snell to have physical disabilities, namely osteoporosis and severe spinal kyphosis, but that such disabilities do not require constant care on a daily basis to carry out routine personal activities, nor do they place Mrs Snell in a situation where she is at risk to herself or others. Dr Hutchins reported that Mrs Snell is occasionally incontinent of bowel and bladder, needs help in cutting, spreading butter, requires major help in transferring from bed or chairs, walks with the help of one person, is unable to cope with stairs and is dependent in relation to both dressing and bathing. Dr Hutchins did not consider Mrs Snell to be cognitively impaired but sometimes she shows signs of memory loss and withdrawal from social contact (T37).

14. On 28 March 2001, the Respondent cancelled the Applicant's carer allowance in relation to Mr and Mrs Snell, on the basis that the Applicant was not residing in the same residence as the care receivers (T28, T29). This decision was affirmed by an authorised review officer on 20 April 2001 (T43) and by the SSAT on 18 July 2001 (T2).

applicant's evidence

15. The Applicant told the Tribunal that she cared for her parents-in-law, Mr William Snell and Mrs Rene Snell, who resided at 8 Record Street, Goulburn, with the Applicant, her husband and children residing next door at 10 Record Street, Goulburn.

16. The Applicant informed the Tribunal that Mrs Rene Snell suffered from osteoporosis, osteoarthritis, severe spinal kyphosis and polymyalgia rheumatica and that she had been admitted to hospital in October 2001 with crush fractures to the thoracic vertebrae and fractured ribs following a fall. The Applicant stated that Mrs Snell remained in hospital and had been suffering some episodic depression, and that issues as to her future long-term care were being discussed. The Applicant also stated that Mrs R Snell suffers from pernicious anaemia.

17. In relation to Mr Snell, the Applicant stated that he suffered from osteoarthritis and had a prosthetic bladder, following surgery some years ago for carcinoma of his bladder. At just on 85 years of age Mr Snell spent most of his day coming and going between the two residences, with the Applicant providing all meals other than breakfast and also taking Mr Snell each day to see his wife in hospital. The Applicant has a baby monitoring system between the two houses. The Applicant also stated that Mr W Snell suffered from cluster migraine headaches two to three times a week for half a day at the time and twice a month for three days and this is treated with panamax, sandromigran and lithogard. He also has bilateral plantar warts and a hiatus hernia.

18. The Applicant also described to the Tribunal in detail the care she provides for Mr and Mrs Snell, the constancy of their needs, their fierce desire to maintain independence and the demands placed upon her in her caring responsibilities.

submissions

19. The Applicant told the Tribunal that she realised that she did not meet the requirements nominated in section 954(1) of the Act because she (as carer) and Mr and Mrs Snell (as carees) did not reside in the same residence. The Applicant considered that living next door should be considered as appropriate geographic arrangements for carer and caree, as the same caring responsibilities and activities can be undertaken as if they were living in the same residence, with the carer and caree retaining a sense of relative independence.

20. The Respondent submitted that a carer allowance should not be paid to the Applicant, as the Applicant and the carees did not share a common place of residence as required by section 954(1) of the Act.

consideration and findings

21. In preliminary consideration the Tribunal recognises that the Applicant undertakes wide-ranging and necessary activities that assist her parents-in-law to remain independent in their place of residence at 8 Record Street, Goulburn. The Tribunal notes that Mr Snell receives further assistance by way of a Community Nurse from the Department of Veterans' Affairs, who visits twice a week to help Mr Snell in showering, and that some home help is also provided on a weekly basis. Nevertheless, the Tribunal does recognise that the responsibility for the day to day care of Mrs Snell fell on the Applicant, up to the time of Mrs Snell's hospitalisation , and continues to fall on the Applicant in relation to Mr Snell.

22. The Tribunal also observes the reports of both treating general practitioners, and further observes the incongruence in the report of Dr Hutchins, when he states that Mrs Snell, by virtue of her disabilities, does not require constant care on a daily basis to carry out routine personal activities, and the list of daily activities, including eating, bathing, dressing, mobility and coping with stairs for which she requires help or major help. The Tribunal would further comment that her fall in October 2001 reinforces her need for considerable care on a daily basis being required.

23. The Tribunal observes the qualification for carer allowance nominated in section 954(1) of the Act, which states:

"954(1) A person is qualified for carer allowance for a disabled adult (the "care receiver") if:

(a) the care receiver is an Australian resident; and

(b) the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

(c) the care receiver has been assessed and rated, and been given a score of not less than 30, under the Adult Disability Assessment Tool; and

(d) because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and

(e) ...

(f) the person is an Australian resident.

..." [Emphasis added].

24. In considering the circumstances of the matter the Tribunal finds that the Applicant satisfies all the requirements of the above section, with the exception that the carer and carees do not live in the same residence as required by subsection 954(1)(d) of the Act. As such, the Tribunal finds that the Applicant does not meet the qualifications for carer allowance.

25. In the particular circumstances of this matter the Tribunal expresses the view that such a finding, it being the necessary consequence of the legislation, is in many ways an unfair outcome for the Applicant, in that the geographic relationship in the Act clearly excludes such circumstances where two separate side by side residences are maintained by the respective parties. This may well include circumstances where two residences are maintained on a block (separate and discrete flat), where carer and caree are in two adjacent units or flats, as well as the circumstances existing in this matter.

26. The Tribunal considers that the geographic definitional requirements, that both the carer and caree live in the same residence, impose a seemingly unfair and a less than opportune domiciliary environment in which the carer and caree must relate. This is particularly so where the requirement for maintaining relative independence for the elderly is interfaced with the requirements and demands of a family with three young teenage children. The Tribunal respects the need for relative certainty in decision making on such issues, but believes certainty should relate to the need for care, which can be objectively defined and assessed, with some flexibility where it can be established that the carer is domiciled adjacent to the carees as well as where the carer and caree are domiciled under the one roof.

27. Nevertheless, despite the comments made, the Tribunal does conclude that the Applicant does not satisfy the qualifications for a carer's allowance in relation to the care she provides for her parents-in-law, as the carer and carees do not reside in the same private home.

determination

28. The Tribunal determines that the decision under review be affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: .......................................................................................

Associate

Date of Hearing 24 January 2002

Date of Decision 27 February 2002

Representative for the Applicant Self

Advocate for the Respondent Ms H Schuster