Suttie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 169 (10 March 2010)

Last Updated: 11 March 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 169

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3873

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MICHELLE SUTTIE

Applicant

And

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

Respondent

DECISION

Tribunal

Dr M Denovan, Member

Date 10 March 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

....................[Sgd]............
Member

CATCHWORDS

SOCIAL SECURITY – Social security entitlement – carer allowance and/or carer payment – whether the applicant provides ‘constant care’ for her husband

Social Security Act 1991 (Cth) s 198(2)

Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145

Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689

REASONS FOR DECISION

10 March 2010

Dr M Denovan, Member

1. Michelle Suttie, the applicant, provides care for her husband, Norman Suttie, who was injured at work in 2004. He has a degenerative back condition and required a spinal fusion in 2005.
2. Centrelink, the respondent, rejected Mrs Sutties’s claim for carer payment on the basis that Mrs Suttie was not providing constant care for her husband.
3. In order to resolve the matter in this case, I must determine whether Mrs Suttie provides “constant care” for a disabled person within the meaning of s 198(2) of the Social Security Act 1991 (Cth) (“the Act”).
4. After having regard to all of the medical and other evidence, I have decided to affirm the decision under review. My reasons are below.

THE FACTUAL BACKGROUND

5. The applicant lodged a claim for carer payment and/or carer allowance on 27 April 2009, in relation to the care she provides for her husband, Norman Suttie. A medical report form completed by general practitioner Dr James Martin was lodged with the claim form.
6. On 13 May 2009, the claim for carer payment was rejected on the basis of Dr Martin’s indication that Mr Suttie did not require constant care. A further medical report was lodged on 18 May 2009. In that report, Dr Mark Bennett indicated that Mr Suttie did not require constant care.
7. The applicant lodged a further medical report from Dr Mark Bennet on 15 June 2009. After discussing the amended medical report with Dr Bennett, Centrelink affirmed the decision to reject the claim for carer’s payment.
8. On 30 July 2009, the SSAT affirmed the decision.
9. The applicant applied to this Tribunal for review on 19 August 2009.

APPLICANT’S POSITION

10. Mr Suttie injured his back at work in 2004. It is Mrs Suttie's position that since that time she has, by necessity, provided constant care to her husband. She informed the Tribunal that as Mr Suttie cannot bend down, he requires assistance when showering, clothing and putting shoes on. Mrs Suttie assists him with all of these tasks. The Tribunal was also informed that Mr Suttie has problems getting himself up from couches and she must therefore be available to assist him to move around the house. She estimates that she provides this assistance two to three times a day. Mrs Suttie cooks and cleans for Mr Suttie. She also gets up during the night if he requires medication. Mrs Suttie feels that because there is a chance that Mr Suttie may fall, she is unable to leave him unattended at any time. If she goes out for any period she calls a friend, relative or neighbour to come and stay with Mr Suttie. Mrs Suttie said that her husband does not drive and she is responsible for taking him to his medical appointments.
11. It was Mrs Suttie’s position that her claim had been rejected due to a combination of errors. Dr Martin was her doctor, not Mr Suttie’s. He was therefore unable to accurately report on the amount of care required by Mr Suttie. Dr Bennett initially completed the medical report incorrectly when he stated that Mr Suttie did not require full time care. It was Mrs Suttie’s position that had Dr Bennett not made this initial mistake, Centrelink would not have spoken to him and her claim would have been approved.

MEDICAL EVIDENCE

Dr Kassim

12. Dr Kassim, general practitioner, was Mr Suttie’s local doctor some years prior to the work injury in 2004. Since the injury, Dr Kassim has seen Mr Suttie on only two occasions, the most recent being 10 December 2009. Dr Kassim told the Tribunal that Mr Suttie requires constant care because the exacerbations experienced in relation to his back pain are unpredictable, and when they do occur, Mr Suttie requires constant care with basics such as self-care and mobility.

Dr Bennett

13. Dr Bennett said that he had been Mr Suttie’s local doctor for approximately seven to eight years, commencing prior to his injury in 2004. Dr Bennett said that Mr Suttie definitely required care regularly but not every day of the year. Dr Bennett last saw Mr Suttie on 7 July 2009. Prior to that time, he saw Mr Suttie approximately once every three months.
14. Dr Bennett said that he had never seen Mr Suttie walking with assistance. He believed that ordinarily Mr Suttie would be able to independently feed and care for himself. Dr Bennett said that Mr Suttie did experience exacerbations during which time his mobility was more restricted and he would require care with daily tasks.
15. Dr Bennett said that it had never been reported to him that Mr Suttie had falls or episodes of excruciating pain that limited his capacity to move from the shower or off his bed.
16. Dr Bennett said that Mr Suttie drove himself to the surgery. Due to Mr Suttie’s exacerbations, Dr Bennett estimated that he would require care for approximately 30 days a year.

TRIBUNAL’S CONSIDERATION

17. Mrs Suttie called a number of witnesses in support of her claim that she provided constant care for her husband. These witnesses, including her father, her husband, family friends and neighbours gave varying and inconsistent reports about the amount of care that they had provided for Mr Suttie in Mrs Suttie’s absence.
18. Significantly, Mr and Mrs Suttie gave inconsistent reports as to the type and amount of medication Mr Suttie was currently taking. Based on the evidence of Dr Bennett and Dr Kassim, Mr Suttie has not been prescribed any of the medications that he claims to require weekly since July 2009. Further, Mr Suttie claimed not to be taking many of the medications that Mrs Suttie claimed he required daily. These inconsistencies made it impossible for me to accept that Mrs Suttie assists her husband with his medications with any regularity.
19. Mrs Sweett testified that she has known Mrs Suttie for 25 years. She said that since Mr Suttie’s accident, he has required regular assistance with mobility. She stated that she cares for Mr Suttie one to five hours a week, and during that time she is required to assist Mr Suttie with the removal of his clothing and underpants every time he uses the toilet. This evidence was inconsistent with that of Mr Suttie himself, who claimed he could use the bathroom unattended but sometimes required assistance getting off the couch to get to the bathroom. Mrs Sweett gave evidence in a hesitant and less than forthright manner and I found her to lack credibility.
20. Mr Suttie gave evidence that he could, if necessary, get up from couches and move around the house with the assistance of a walker only. He said that he preferred to have someone around because he may have a muscle spasm that immobilises him. His evidence was consistent with that of Mr Gallagher and Mrs Hissey, both of whom gave me the impression that Mr Suttie was mobile and capable of self care but preferred assistance to get up from the couch if available.
21. The evidence of Dr Kassim was far less persuasive than that of Dr Bennett. Dr Kassim has seen Mr Suttie on only two occasions since the accident in 2004. He is not in a position to comment on Mr Suttie’s condition since the time the claim in the decision under review was initiated. He also has much more limited knowledge of Mr Suttie’s medical history since the injury in 2004. I did not find his evidence persuasive, and gave much less weight to it than that of Dr Bennett.
22. The evidence as a whole indicates that Mrs Suttie is required to perform all of the household tasks including, but not limited to washing, ironing, cleaning, cooking as well as swimming pool care and garden maintenance. I have no doubt that Mr Suttie contributes little if anything to the normal day-to-day management of the home. I also accept Dr Bennett’s evidence that on occasion, amounting to an approximate total amount of time of one month per year, Mr Suttie does require full time constant care.
23. That is not enough to satisfy s 198(2) of the Act[1]. Whilst the Act does not define “constant care”, the intention that underlies the legislative scheme is such that the benefit is paid to replace income that is lost because the person is acting as a carer on a more or less full time basis. The care must be something that is more than episodic care[2]. I am not satisfied that Mrs Suttie meets the statutory criteria for carer payment.
24. That the department may have made an incorrect decision had they not contacted Dr Bennett is not a reason to find in the applicant’s favour.

CONCLUSION

25. The Tribunal affirms the decision under review.
    

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: .........................[Sgd]..................................................

Kate Slack, Research Associate

Date/s of Hearing 4 February 2010

Date of Decision 10 March 2010

Applicant was self represented

Solicitor for the Respondent Matthew Hawker, Sparke Helmore

---

[1] Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689.
[2] Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145.