Decision: The decision under review is affirmed.

Disclaimer: names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.

SOCIAL SECURITY - carer payment - claim rejected - whether applicant is personally providing constant care - decision under review affirmed

Social Security Act 1991 s 198

Social Security (Administration) Act 1999

Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 698

1. [GJTM], then aged 14, lodged a claim for carer payment on 24 January 2022. The claim was based on care provided to her mother, [MZLB].[1] The claim was initially rejected,[2] and the decision was confirmed on internal review.[3] [GJTM] applied for review in the Administrative Appeals Tribunal, Social Services and Child Support Division ('Tier 1 AAT'). The decision under review was affirmed.[4] Following that review, [GJTM] applied for review in the General Division of the AAT ('Tier 2 AAT').[5] When the AAT was abolished and replaced by the Administrative Review Tribunal ('Tribunal'), her application continued in this Tribunal.
2. This is the second matter constituted to me concerning [GJTM]'s entitlement to Carer Payment based on care that she provides to her mother. This application involves consideration of a different qualification period and is based on different evidence. I have reviewed the evidence admitted in these proceedings and given consideration to whether [GJTM] met the statutory requirements for carer payment during the relevant qualification period. I note that there is an overlap both factually and legally between the earlier decision I made and this one. For reasons of efficiency, some of the paragraphs used in the earlier decision have been carried across into this decision.
3. The basis on which the respondent maintains that the applicant does not qualify for Carer Payment is that she does not provide 'constant care' to [MZLB] as required by section 198 of the Social Security Act 1991 (Cth) ('Act').
4. Section 198 sets out the qualification requirements for Carer Payment and provides as follows:

198 Qualification - disabled adult or disabled adult and dependent child

(1) A person is qualified for a carer payment if the requirements of this section are met.

(2) The person must personally provide constant care for:

(a) either:

(i) If the person is the only person providing the constant care - a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or...

(ii) If not - a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or

(b) ...

(c) ...

(d) A disabled adult and a dependent child of the adult (the care receivers), where:

(i) the disabled adult has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 20, being a score calculated on the basis of a total professional questionnaire score of at least 8; and...

(ii) the child is aged under 16; and

(iii) if the child is aged 6 or more - carer allowance is payable for the child; and

(iv) section 197D does not apply in respect of the care receivers.

Deemed personal care of disabled adult and dependent child

(9) For the purposes of paragraph (2)(d) and other references in this Part that relate to that paragraph, if a disabled adult is providing care of a dependent child of the adult at a particular time and another person is supervising the provision of that care at that time, the other person is taken personally to provide care of the adult and child at that time.

1. [GJTM] submits that the evidence establishes that she did provide 'constant care' in the relevant period, which in this matter is the period between 24 January 2022 and 25 April 2022.[6]
2. The merit of the submission cannot be assessed without regard to the facts.

1. For the purposes of determining this application, I have had regard to the following material:

T-Documents lodged in application 2022/5359 (T1-T23, pages 1-228)

Australian Human Rights Commission Notice of Termination dated 30 September 2022

Reasons for Australian Human Rights Commission Notice of Termination dated 30 September 2022

Copy of Australian Human Rights Commission complaint dated 10 November 2021

Services Australia's response to Australian Human Rights Commission complaint dated 18 August 2022.

Applicant's submissions in relation to [YTJP], filed 14 October 2022

Letter of diagnosis of Autism Spectrum Disorder of [YTJP] by Dr Michalis Yiallourides, Consultant Paediatrician, dated 12 October 2022

Assessment Report of [YTJP] by Kate Schatz, Occupational Therapist, dated 7 October 2022

Letter of Rosemary Colston, Psychologist, dated 5 May 2022.

Functional Capacity Assessment by Lily Cornish-Jones, undated, attaching WHODAS assessment

Functional Capacity Assessment by Alexa Samuel dated 1 March 2023

Functional Capacity Assessment by Claire Pritchard dated 14 August 2024

1. The following are my factual findings based on the evidence available to me.
2. On 24 January 2022, [GJTM] submitted an online claim for Carer Payment. The application was made the same day as a Tier 1 AAT decision rejecting an earlier claim for Carer Payment. In the application she advised that she was undertaking 24 hours study per week at [School I].[7] [MZLB] was identified as the person cared for.
3. [MZLB] is the mother of [GJTM] and [YTJP]. When [GJTM] applied for Carer Payment, [MZLB] was 65 years old, [GJTM] was 14 years old and [YTJP] was 11 years old. [GJTM] said in the claim that she provided care to [MZLB] 7 days per week for a significant amount of time each day.[8]
4. [MZLB] has a great many significant health conditions, including:[9]
   • anxiety/depression/PTSD;
   • peripheral neuropathy;
   • severe osteoarthritis - cervical spine fusion;
   • chronic pain in her left upper limb post motor vehicle accident;
   • coeliac disease;
   • bradycardia; and
   • underactive thyroid.
5. There are no relevant reports that were obtained in the qualification period, but there are a number of functional capacity assessments and reports from other health professionals that are in evidence.
6. A physiotherapy report was prepared following an assessment of [MZLB] on 27 April 2022, just after the end of the qualification period.[10] Consequently, it represents a contemporaneous record of [MZLB]'s support needs and the care [GJTM] provided at the time.
7. It records that [MZLB] lives with her children in North Queensland. [MZLB] is unemployed, and [GJTM] and [YTJP] attend school. [MZLB] has had some formal support through Ingham Disability Care for transport and cleaning, but feels this has been insufficient. [GJTM] is [MZLB]'s carer, providing her assistance with shopping, meals, and household cleaning. [MZLB] still drives currently but fears this may not continue due to her increasing peripheral neuropathy. [MZLB] expresses significant concerns regarding the pressure put on her daughter [GJTM] to care for her and expresses her lack of joy in her life. [MZLB] reported no falls in the preceding six months, however reported 'near-misses' every day.[11]
8. The report noted that:
   • [MZLB] mobilises within the home with the assistance of a hiking pole. Her distance tolerance is 10 meters. She avoids the use of stairs, but with assistance from a rail and her children she could navigate them. She drives 3 km into town to complete shopping tasks. She only does this with her daughter present. She does not take her poles into the community but hangs onto her children and the shopping trolley for support. With the use of the shopping trolley, she can mobilise around the grocery store.
   • A sit to stand transfer was observed which required heavy right upper limb assistance on the arm of the chair. In a chair without arms, she requires physical assistance to complete the task.
   • She needs assistance getting out of bed.
   • She is independent getting in and out of the car but doing so costs her significant energy.
   • [MZLB] is unable to get on and off the floor even with a moderate amount of physical assistance.
   • [MZLB] reported being globally weak throughout her body. She reported having almost no strength in her left upper limb and unable to carry objects in that arm anymore. On observation [MZLB] could pick up a glass of water if it was in close reach and she pulled it in close to her body.
   • [MZLB]'s standing tolerance was about 3 minutes.
   • She reported increased difficulty with getting dressed especially when putting tops over her head, as the slightest loss of vision makes her fall backwards. This added to [MZLB]'s high risk of falls.
   • [MZLB] was noted to be severely limited in her functional capacity and this limitation has significantly impacted her quality of life.
   • Pain was described as very limiting to her functional mobility, with increasing difficulty with bed mobility, sitting to standing, and limiting her walking to only 10 meters.
9. The impact of these limitations on [MZLB]'s daily life was described in the following terms: 'she is having difficulty with almost all aspects of her day-to-day functioning including: getting in and out of bed, standing from a chair, dressing herself, providing nourishing meals for herself and her family, caring for her children and walking....[MZLB] is an extremely high falls risk...she currently lacks safe mobility aids for use within the home and within the community'.[12] In an occupational therapist's report prepared around same time, based on a telehealth assessment on 26 April 2022, [GJTM]'s role was identified as 'providing her assistance with shopping, meals, bills, and household cleaning'.[13]
10. In that assessment, the [MZLB] reported the following:
    • She is independent with toileting including transfers and maintaining hygiene.
    • She is independent in managing most showering tasks, including washing and drying her upper and lower body and regulating the taps and water temperature. She requires physical assistance from her daughter who washes her hair and passes her shower items out of reach due to decreased upper limb range of motion and impaired balance. She uses a shower chair.
    • She needs assistance from [GJTM] to manage most dressing tasks, including finding and retrieving clothing items, donning/doffing clothing over her head and feet. [MZLB] reported that she remains seated for dressing tasks.
    • She reported no concerns regarding independence in grooming tasks.
    • Due to reduced upper limb strength she is unable to cut up her meal using a knife and fork.
    • She experiences high levels of fatigue when attempting to communicate with others and relies on her 14-year-old daughter to interpret her needs without verbally communicating them. [MZLB] was observed to have word finding and attention difficulties during the initial and follow-up assessments, however this had minimal impact on her ability to maintain conversation. [MZLB] reported that her language skills declined as she physically fatigues.
    • She is currently using a food service to eat pre-made meals.
    • She has no capacity to vacuum, mop and sweep due to her mobility issues. She advised that she relies on formal domestic assistance and her children to help to manage household cleaning tasks.
    • She has significant difficulty completing laundry tasks. She advised that wet laundry could sit in the washing machine for days due to a lack of energy to transfer them into the dryer.
    • [GJTM] manages weekly financial matters including making purchases and paying bills due to [MZLB]'s fatigue and reported memory issues.
    • She has difficulty remembering to take her medication and as such often does not take it daily.
    • She predominantly engages in the community for medical appointments, grocery shopping, and parent-teacher interviews at her children's school. [MZLB] reported that she will only access the community with the support of [GJTM] and will usually sit in the car while her daughter completes the shopping.
    • She experiences issues with her cognition due to the decline in her physical health. She reported that she has difficulty remembering to take her medication daily, pay bills, and reported being able to lose her mobile phone three times within ten minutes.
11. The occupational therapist assessed the applicant has having level 4 support needs, which meant that she can be left alone for part of the day and overnight. It was recommended that support worker hours be increased to support [MZLB] to safely participate in tasks such as dressing and to alleviate carer burden on [GJTM].
12. This reporting was broadly consistent with a report prepared a few months later by psychologist Rosemary Colston,[14] although in that report, assistance with laundry from her children was specifically noted by [MZLB], as was assistance from [GJTM] in making social arrangements.
13. These reports give insight into the assistance that [GJTM] provides.
14. In relation to [GJTM]'s non-care activities in the qualification period, the evidence is not consistent, particularly in relation to her schooling pattern.
15. [GJTM] was enrolled in [School I] up to 7 February 2022.[15] As the school term in Queensland commenced in late January that year, this suggests that she commenced the academic year at Ingham. She had a flexible timetable with four days of school attendance per week, with Wednesdays off. [GJTM] then moved to [School G], on 3 March 2022. [MZLB] requested a flexible timetable (Wednesdays off). This request was tentatively refused.
16. Despite this refusal, [GJTM] continued to attend [School G] for a period. According to information given to the AAT Tier 1, that attendance only lasted eight weeks and the applicant only attended for five days per week for the first three weeks. According to the information given at Tier 1, [GJTM] returned to [School I] on the flexible timetable (with Wednesdays off) for the last couple of weeks of the qualification period.
17. [GJTM] describes her experiences as a carer in a statement.[16] The statement covers the period from 2018 to 2024, so lacks precision for the purposes of assessing whether she was giving her mother 'constant care' in any particular period. [MZLB] refused to allow [GJTM] to be asked questions by the respondent at the hearing. Apart from diminishing the weight that it would be appropriate to give the statement, this decision also meant that some of the factual ambiguity in the statement could not be clarified. [MZLB] herself also refused to submit to any questioning by the respondent.
18. As a consequence, it was not possible to put to either [GJTM] or her mother a significant discrepancy between the material in [GJTM]'s statement and information provided to the AAT in the context of the Tier 1 review.
19. As noted above, in an email to the AAT,[17] [MZLB] indicates that [GJTM] moved to a new High School at the start of 2022, then moved back to Ingham High School a few weeks later after she was unable to secure a modified timetable which allowed her to take Wednesdays off.
20. This is not consistent with [GJTM]'s statement. Doing my best to understand [GJTM]'s account of her movements as set out in the statement, it would seem that at the start of 2022 she switched schools from [School I] to [School G]. Her statement however suggests that rather than switching back to [School I] after a few weeks, she persisted with the school switch. She states:

...I had to switch schools in 2022 (start of grade 10) to help [my brother]. I struggled with new teachers and missing my friends, but I persevered and came out stronger.[18]

1. I examined carefully all of the material submitted that dealt with [GJTM]'s schooling. None of the material submitted as corroborating evidence assists me in understanding what the true state of affairs was at the relevant time. On any view of the evidence, [GJTM] was attending school full time for at least three weeks in February 2022. It is possible that her hours reduced (with Wednesday's off) for the next five weeks. It is also possible that after 8 weeks [GJTM] returned to [School I] and persisted with a four day per week timetable. I am unable to satisfy myself that that is what occurred.

1. I am not satisfied that the applicant provided her mother with constant care in the qualification period as required by s 198 of the Act.
2. Constant care in the section carries its ordinary meaning. It is well explained in the following passage in Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 698 at [7]:

The expression "constant care" is not defined in the Act. These words should be given their ordinary English meaning. "Care" may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost). A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household. The requirement that the "care" be "constant" means that the person must be acting as a carer on a more-or-less full-time basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer's payment: the benefit is paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.

3. The evidence available does not support the conclusion that [GJTM] personally provides constant care. [MZLB] is very unwell and suffers significant limitations in her functioning. She needs support in some areas and in some of those areas [GJTM] provides assistance with certain tasks. The assistance she provides includes assistance with dressing, laundry, shopping, some aspects of communication and tasks like budgeting. She provides significant help. However, the evidence shows that in relation to cooking and food preparation, she is not called upon to provide that assistance. Pre-prepared meals are obtained. For many weeks of the qualification period, it is clear that [GJTM] attended school for a standard school day without modification. It is possible that that was the case for the whole of the qualification period. The evidence on the issue is unclear.
4. Assisting with shopping and budgeting and the other matters identified by [MZLB] as ways in which [GJTM] provides support do not add up to 'constant care'.
5. Consequently, [GJTM] does not meet the statutory requirements for carer payment.
6. I note that submissions were made that [GJTM] provided 'extra care' to her younger brother [YTJP] who has been diagnosed with autism spectrum disorder. As the claim was initially made only in relation to care provided to [MZLB], it is not appropriate to consider care provided to [YTJP]. In any event, the result is the same whether the question of 'constant care' is considered in relation to just [MZLB], or in relation to [YTJP] as well.[19] The only evidence of care provided to [YTJP] is in [GJTM]'s statement where she notes 'taking care of my little brother' as one of the tasks she helps her mother with. Given that [GJTM] is at school for extended periods (on any view of the evidence), even adding in his care needs and noting that he has been diagnosed with autism spectrum disorder, does not support the conclusion that [GJTM] is providing constant care to the other members of her family.

[6] In this case, because the applicant lodged her claim for carer payment and carer allowance on 24 January 2022 the relevant period for assessing her claim is during the 13-week period from 24 January 2022 to 25 April 2022 - see Social Security (Administration) Act 1999 (Cth) s 42.