Mycoe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 769 (7 October 2009)

Last Updated: 8 October 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 769

ADMINISTRATIVE APPEALS TRIBUNAL ) No 2008/4952

)

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JULIE-ANNE MYCOE

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Ms L R Tovey, Member

Date 7 October 2009

Place Perth

Decision

The Tribunal affirms the decision under review.

...........(sgd) Ms L R Tovey......................

Member

CATCHWORDS

SOCIAL SECURITY – carer allowance – eligibility – carer of more than 2 disabled adults

Social Security Act 1991 (Cth), ss 953, 954

REASONS FOR DECISION

7 October 2009

Ms LR Tovey, Member

1. Julie-Anne Mycoe has, for a number of years, been a carer of her husband and children. Prior to April 2008 she received a carer allowance in respect of all three family members. She received an adult carer allowance in respect of her care of her husband and adult son, and a child's carer allowance in respect of her care of her daughter Emily.
2. In April 2008 Emily turned sixteen, and so became an "adult" for the purposes of Part 2.19 of the Social Security Act 1991 (Cth) ("the Act"), which provides for the carer allowance. On 17 April 2008 Mrs Mycoe lodged a claim for an adult carer allowance in respect of her daughter. That application was rejected by the Respondent's delegate on 16 May 2008. That decision was confirmed on reconsideration by Centrelink on 11 June 2008, by an Authorised Review Officer of the Respondent on 23 June 2008 and by the Social Security Appeals Tribunal on 16 December 2008. Mrs Mycoe now seeks further reconsideration of the decision by this Tribunal.
3. The reason the application was refused may be shortly stated. Section 954(3) of the Act provides:

"A person may qualify for carer allowance under this section and/or section 954A for 2, but no more than 2, disabled adults".

4. As Mrs Mycoe already received a carer allowance in respect of her husband and adult son, this section precluded her from receiving a third carer allowance in respect of her daughter once she turned 16.
5. The Act does not give the Respondent or this Tribunal any discretion to waive this requirement. Therefore, the Respondent was bound, as am I, to reject the application for carer allowance in respect of Emily.
6. Before me, Mrs Mycoe questioned the policy standing behind this provision. The reason why a person having the care of more than two qualifying adult family members can only receive an allowance for two adults is not readily apparent.
7. Provision for a carer allowance was introduced into the Act in 1999 by the Assistance for Carers Legislation Amendment Act 1999 (Cth). The restriction on the number of allowances payable to one person in respect of adults in their care was present at that time. The Explanatory Memorandum to the Bill for that Act indicated that the carers allowance was intended to replace, in relation to carers of adults, the "domiciliary nursing care benefit" which, until then, was provided for by Part VB of the National Health Act 1953. Part VB provided for the Secretary to approve a person in relation to a patient over 16 being cared for in the residence of the applicant and patient. The patient must have been certified as having a continuing need for nursing care. A benefit was payable to the approved person. Under s. 58E(4) of the National Health Act, as it stood in 1999, a person could be approved in relation to 2, but not more than 2, patients. As far as I can see there was no specific consideration of the reasons for carrying over this limitation when the current provisions replaced those of Part VB of the National Health Act in 1999.
8. Section 58E was introduced into the National Health Act by the National Health Act 1972 (Cth) ("the 1972 Act"). The provision in s. 58E(4) that a person could be approved in respect of 2, but not more than 2, patients was included in the section at that time. However, when s. 58E was originally enacted the other qualifications for the domiciliary care allowance were more limited than the present provision in two important respects. Firstly, the patient must have been suffering from an illness, disease, incapacity or disability such that he or she would be approved for admission into a nursing home. Secondly, the minimum age for the patient was 65 years. As the Minister's second reading speech to the Bill for the 1972 Act made clear, Parliament's concern at that time was the needs of "those people who are looking after aged chronically ill relatives in their private homes who would otherwise need to be admitted to a nursing home" (Hansard, House of Representatives, 24 October 1972 at pages 3014 and 3017).
9. While even in 1972 the rationale for limiting the permissible number of patients to two was not explained, it might be thought that it would be unlikely that a person would be in a position of caring for more than 2 chronically ill aged relatives in their own home, or have the capacity to properly do so. What has happened since 1972 is that the eligibility criteria for the allowance has considerably expanded, in a way that makes the limitation as to number of persons cared for difficult to justify. The limitation as to the maximum number of persons in care has remained unchanged. It does not appear from my research that the rationale for maintaining the rule has been directly considered as the limiting provision has been carried forward from the subsection enacted in 1972 into the present provisions of the Act.
10. The presently relevant rationale for this long-standing limitation is not readily apparent from the legislative history. Nor was the Respondent's representative able to do more than surmise as to the reasons for the limitation.
11. I agree with the Applicant's submission that the limitation operates unfairly in her case, and no doubt others where a person is responsible for the care of more than 2 qualifying adult family members. The current justification for the rule is not apparent, and it might be that the rule, first established in a very different context, has simply been carried forward as the current legislative provisions have been developed without significant critical analysis.
12. However, the responsibility of this Tribunal is to apply the law as Parliament has enacted it, regardless of its views as to the policy merits of the legislation. In this case Parliament has enacted a clear and specific limitation on eligibility to receive a carer allowance, which is not subject to relaxation by administrative discretion. If the law is inadequate in this respect it can only be changed by Parliament. Given that the apparent reasons for the initial enactment of the limitation may have been made redundant by the way in which the legislation has developed, such a review may be warranted.
13. For the above reasons I must affirm the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member

Signed: .......... (sgd) Ms L Huynh................................

Associate

Dates of Hearing: 7 August 2009

Date of Decision 7 October 2009

Representative for the Applicant Self-represented

Representative for the Respondent Mr A Holt

Solicitors for the Respondent Centrelink Legal Services and Procurement Branch