Wilson and Secretary, Department of Family and Community Services [2002] AATA 14 (14 January 2002)

Last Updated: 18 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 14

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/983

GENERAL ADMINISTRATIVE DIVISION )

Re Patricia WILSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date 14 January 2002

Place Sydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

.......................................

Ms N Isenberg

Member

CATCHWORDS

Social Security - carer pension - eligibility for - bereavement payment - severely handicapped person

LEGISLATION

Social Security Act 1991 sections 47, 198, 202 and 235 as in force at 10 July 1996

Social Security (Administration) Act 1999 s 152

CASE LAW

Re Smith and Secretary of Social Security (AAT 12392, 14 November 1997)

REASONS FOR DECISION

Ms N Isenberg, Member

DECISION UNDER REVIEW

1. The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the delegate of the Department of Family and Community Services ("the Respondent") dated 17 July 1996 as affirmed by the Authorised Review Officer on 15 October 1996 (T8) and the Social Security Appeals Tribunal ("the SSAT") on 25 June 2001 (T2), to reject Ms Wilson's ("the Applicant's") claim for carer pension.

APPEARANCES

2. Ms A Garcia from the Advocacy and Administrative Law Team at Centrelink appeared for the Respondent. The Applicant appeared without representation.

ISSUE BEFORE THE TRIBUNAL

3. The issue for determination was whether the Applicant was entitled to receive a carer pension in respect of care she provided for her mother, Mrs C Wright. Further, if the Applicant was so entitled, were arrears payable and was the Applicant also entitled to bereavement payment.

LEGISLATION

4. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") as in force at the time of the original decision, in particular section 198. That section, so far as is relevant, provided as follows:

" 198.(1) A person (the "carer") is qualified for a carer pension if:

(a) the carer personally provides constant care for a severely handicapped person; and

(b) the care is provided in a private residence that is the home of the handicapped person; and

(c) the carer lives in a home that is either:

(i) the home of both the carer and the handicapped person; or

(ii) adjacent to the home of the handicapped person; and

(d) either:

(i) the handicapped person is receiving a social security pension or benefit, a service pension or income support supplement; or

(ii) subsection (1A) (certain severely handicapped people not receiving pension because of residence test) or subsection (1B) (description of care receiver) applies to the handicapped person; and

(e) the carer is in Australia."

5. The term 'severely handicapped person' had a specific definition in the social security law at that time which was:-

"198.(3) In this section:

"severely handicapped person" means a person who:

(a) has a physical, intellectual or psychiatric disability; and

(b) because of that disability:

(i) requires frequent care in connection with the person's bodily functions; or

(ii) requires constant supervision to prevent injury to the person or to another person;

permanently or for an extended period."

TIME FOR CONSIDERATION OF ENTITLEMENT TO CARER PENSION

6. Section 201 of the Act as in force at 17 July 1996 provides:

"Sect 201 Provisional Commencement Day

s 201(1) Subject to subsections (2) and (3) a person's provisional commencement day is the day on which the person claims the carer pension.

...

Early claim

(3) If:

(a) a person lodges a claim for a carer pension; and

(b) the person is not on the day on which the claim is lodged, qualified for a carer pension; and

(c) the person becomes qualified for a carer pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

Therefore, the Tribunal had to consider if Ms Wilson was entitled to a carer pension on or about 10 July 1996 or at any time until 10 October 1996.

EVIDENCE: the Applicant

7. The Applicant told the Tribunal that she had moved to Adelaide in 1992 but kept coming to Sydney 'all the time' to help her mother. In 1995 she permanently returned to Sydney, and lived at Kirrawee. She stayed with her mother at Erskineville 'all the time'. In 1995 her mother had a gastro-intestinal bleed, was 'going white' and had a 'banging noise' in the ear. The Applicant felt her mother's medical care at that time was inadequate and her mother required hospitalisation for three weeks. On release Mrs Wright needed added assistance and Homecare was arranged. However the Applicant's mother did not like Homecare and she 'got rid of them' in 1996. Between the time of the hospitalisation and 1996 the Applicant's mother was actually 'not too bad', but later, in 1996 and 1997 she was having falls 'all the time'.

8. Mrs Wright was very demanding. When she stayed with her mother the Applicant made all the meals and 'did everything'. She showered her mother 'all the time' and washed her hair. The Applicant said she stayed with her mother three to four nights per week, but there was nowhere to stay at her mother's home and she had to share her mother's bed. When she was at her own home the Applicant would receive phone calls from her mother about ten times a day.

9. The Applicant conceded in cross-examination that her mother was 'not really badly handicapped'. When she was absent, her mother was 'OK'. She would make herself weetbix for breakfast and cups of tea. She ate little although the Applicant ensured there was plenty there for her mother to eat.

EVIDENCE: T documents

10. The Applicant completed a Carer Pension questionnaire on 10 July 1996 (T4) in which she stated "I visit my mother each week. She is 89 lives alone. I stay with her four days and do anything to help". There (T4/10), the Applicant also stated she did the following tasks to help her mother:

"When (sic) my mother for 4 days I cook meals

I shower when Home care do not turn up

Take to the Doctor if required

Take to the Hairdresser also collect her pension."

11. Dr Libberman, in a Carer Pension - Medical Report on Person Being Cared For form dated 10 July 1996 similarly advised that the Applicant cooked her mother's meals four days per week for five hours and made sure food was accessible. (T5/12) He also said in relation to Mrs Wright's bathing/showering that a nurse called twice per week and that the Applicant assisted at other times. He also said that the Applicant assisted her mother with transport and was present when he called on her mother.

12. The Applicant also made a statement dated 25 September 1996 (T7/16). There she said:

"I feel that my mother needs constant care and attention on a full time basis. I provide care and attention to her approximately 3-4 days per week. I would like to live with my mother and care for her on a full-time basis but I cannot do this as my mother lives in a small one bedroom house and there is no room for me there."

The Applicant further stated:

"The treating doctor has stated that she does not require constant care attention (sic) and is not in any danger to herself or others. I agree in some ways that this is true but I would like to give her more care if I could."

SUBMISSIONS

13. The Applicant said she was entitled to the carer's pension because she was her mother's carer. The Respondent conceded that there was no dispute that the Applicant was taking care of her mother at the date of application for the carer pension.

14. When her mother passed away the Applicant felt she was entitled to the 'seven weeks bereavement' because she was the next of kin. (Although the Applicant has four siblings none 'went near' their mother.) The decision to refuse her this benefit is her major concern.

15. The Respondent contended that the decision to reject the Applicant's claim for a carer pension was correct. This was because the Respondent's mother was not considered to require frequent care in connection with her bodily functions, and therefore she did not satisfy the definition of being a 'severely handicapped person'.

16. The Respondent accepted that the Applicant's mother required some assistance with some of her daily living tasks. However, it was submitted, she did not require 'frequent care with her bodily functions', that is, in needing to be fed; dressed and undressed; in moving about the home and in and out of bed; grooming; going to the toilet; and special exercises or therapy. It was submitted that there was no evidence that the Applicant's mother required assistance in these areas, apart from help with showering, with which the Applicant assisted when she was with her mother four days per week.

17. The Respondent further contended that even if the Applicant were now considered to have been qualified for carer pension in 1996, no arrears of carer pension are payable for two reasons.

18. Firstly, the Applicant was, at the time of her application for carer's pension already being paid an age pension, and the rates of both these pensions were the same. The Respondent invited the Tribunal's attention to the following sections of the Act:

"47.(2) If:

(a) a person is receiving an age pension; and

(b) another social security pension or a service pension becomes payable to the person;

the age pension is not payable to the person.

.....

202.(2) If:

(a) a person is receiving a carer pension; and

(b) another social security pension or a social security benefit, youth training allowance or service pension becomes payable to the person;

the carer pension is not payable to the person."

Thus, a person may not receive both the age pension and the carer pension simultaneously.

19. Secondly, the Applicant did not lodge an appeal with the SSAT within three months of receiving the letter from the authorised review officer, which was dated 15 October 1996 (T8). Her application for review by the SSAT was made on 11 May 2001 (T9). The Respondent invited the Tribunal's attention to the following:

"152.(4) If:

(a) a person is given written notice of a decision under the social security law; and

(b) the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and

(c) the SSAT varies the decision or sets the decision aside and substitutes a new decision; and

(d) the effect of the decision of the SSAT is:

(i) to grant the person's claim for a social security payment or a concession card; or

(ii) to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or

(iii) to increase the rate of the person's social security payment;

the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision."

Thus, if a person appeals to the SSAT more than three months after being advised of a decision, and the SSAT decided to grant the payment, the date of effect of the payment would only be from the date of the SSAT decision.

20. The Applicant had also requested a review of her entitlement to bereavement payments, on the basis that she had been caring for her mother, who passed away on 6 April 1998. Subsection 235(1) of the Act in force at the relevant time provided as follows:

"235.(1) If:

(a) a person is receiving a carer payment because the person ordinarily cares for another person who is not the first person's partner; and

(b) the first person is caring for the other person or has temporarily ceased to care for that person; and

(c) the person being cared for dies;

the first person remains qualified for the carer payment during the bereavement period as if the person being cared for had not died."

However, as the Applicant was not receiving a carer payment as at the date of her mother's death, she was not entitled to the bereavement payments provided for in section 235(1).

DECISION

21. The Tribunal accepts that at least from the time of her return to Sydney in 1995 until her Mrs Wright's death in April 1998 the Applicant cared extensively for her mother. Mrs Wright was very reliant upon the Applicant, particularly, as it seems, that the Applicant's siblings had little concern for their mother's welfare.

22. Notwithstanding that the Applicant may have provided a high level of support to her mother, however, it was for the Tribunal to be satisfied whether the Applicant was 'a carer' within the meaning of subsection 198(1) of the Act. It is only if a person can meet the criteria of the subsection that the person providing care can be eligible for the carer's pension.

23. The Tribunal first considered if, at the date of the application for the carer's pension (or at any time during the following three months), the Applicant's mother was a 'severely handicapped person' as defined in subsection 198(3) of the Act.

24. In Re Smith and Secretary, Department of Social Security (AAT 12392, 14 November 1997) the Applicant assisted the handicapped person in many ways eg hair washing, grooming, dressing and undressing, and in household tasks and the administration of medication. The Tribunal found that she did not require frequent care in connection with her bodily functions:

"42. Likewise, on the evidence before it, the Tribunal does not consider this assistance as being required on either a "constant" or "frequent" basis. It is not given "full time", nor can it be considered to be "significant". Whilst Ms Curran requires some assistance, she does not require substantial assistance".

25. In this case, at the time of the application for carer pension, in mid 1996, the Applicant's mother was, on the Applicant's evidence, 'not too bad' and was 'not really badly handicapped'. The Applicant understood her mother's treating doctor to have been of the view that Mrs Wright did not require constant care and was not in any danger to herself or others.

26. At that time the Applicant was staying with her 89-year-old mother three to four nights per week and would have stayed more often but there was nowhere to sleep at her mother's home. While there she made all the meals and 'did everything'. When she was absent, her mother was 'OK', making herself breakfast and cups of tea, and otherwise caring for herself. The Applicant left food there but her mother ate little.

27. The Applicant said at the hearing that she showered her mother 'all the time' but in her application she had said that she showered her mother when 'Homecare do not turn up'. Dr Libberman had noted that a nurse called twice per week and that the Applicant assisted at other times.

28. The Applicant said at the hearing that she washed her mother's hair, while in the application she said she would take her mother to the hairdresser. She would also take her mother to the doctor and to collect her pension.

29. Applying the test discussed in Re Smith (supra) the Tribunal found that at the date of the application, and in the three months thereafter, the Applicant's mother was not a severely handicapped person, as defined. She functioned alone for some periods of the week, and was able to undertake outings, such as to the doctor and hairdresser, albeit with assistance. The Tribunal found that it was later, towards the end of Mrs Wright's life, that her condition deteriorated and the Applicant's role intensified as her mother became housebound.

30. In coming to this view, the Tribunal makes no finding as to whether Mrs Wright's condition subsequently became such that she would have met the definition of 'severely handicapped person', and if so, when that may have been.

31. Having found that the Applicant was not entitled to a carer pension at the time of her application and in the immediate period thereafter, the Applicant's circumstances did not attract the benefits of subsection 235(1) in respect of payments during the bereavement period.

determination

32. For these reasons the Tribunal has no alternative but to find that the decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed: R Savage .....................................................................................

Associate

Date of Hearing 19 December 2001

Date of Decision 14 January 2002

Applicant self represented

Advocate for the Respondent Ms A Garcia