The jurisdiction of the Tribunal arose from the application made to it to review the decision of the delegate who, on 18 August 1987, affirmed the decision of the officer made on 19 May 1987. The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman's widow's pension at that time was the correct or preferable decision to have been made. In coming to its decision the Tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the Tribunal's decision.

1. The Respondent submits that the Applicant was not providing care on a daily basis as of 23 May 2023 or that the care being provided related to 20 hours or more per week of care relating to bodily functions of the care receiver. The Respondent noted that the amount and level of care asserted by the Applicant in February 2024 was not feasible, given the distance between her home and her mother's home. There was, further, no evidence the Applicant was travelling each day to her mother's home, but rather, the evidence was that she was budgeting to make the trip once per month. Subsequent evidence provided by the Applicant in August 2024 about the care she was providing to her mother did not relate to bodily functions or sustaining the care receiver's life.
2. The Respondent further noted that the Applicant was granted disability support pension from 2 June 2023 and had described difficulties in day-to-day functioning and an inability to function even with basic tasks. The Respondent submitted that this level of functioning was "inconsistent and irreconcilable with her providing daily care and attention to the care receiver".
3. The Respondent further noted that the Applicant's mother was receiving a home care package, covering some of the care the Applicant states she has been providing. This includes bathing, showering, personal hygiene, grooming and dressing. The Respondent submits that this further corroborated that the Applicant was not providing daily care and attention, for 20 hours per week, to her mother.
4. The Respondent submits that the Applicant's carer allowance was correctly cancelled, pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

1. The qualification requirements for carer allowance are set out at section 954A of the Social Security Act 1991 (Cth) (the Social Security Act), where a person is caring for a disabled adult in a private home not shared by the adult and the carer. Subsection 954A(1) states as follows:

(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 under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and

(d) the care receiver receives care and attention that meet the requirements in subsection (2); and

(e) the person is an Australian resident; and

(ea) the person satisfies the carer allowance income test under section 957A; and

(f) the person's work in providing the care and attention is not on wages that are at or above the relevant minimum wage; and

(g) neither the person nor anyone else is qualified for carer allowance for the care receiver under section 954.

1. Subsection 954A(2) of the Social Security Act then specifies the care and attention that must be received by the care receiver and provides that:

(2) The care and attention:

(a) must address special care needs:

(i) that the care receiver is assessed under the Adult Disability Assessment Tool as having; and

(ii) that relate to the care receiver's bodily functions or to sustaining the care receiver's life; and

(b) must be received by the care receiver on a daily basis, for a total of at least 20 hours a week; and

(i) be received by the care receiver from the person alone; or

(ii) be received by the care receiver from the person together with another person whose work in providing the care and attention is not on wages that are at or above the wages mentioned in paragraph (1)(f), whether or not both persons are present every day when the care receiver receives the care and attention; and

(d) must be received in a private home that is the residence of the care receiver, the person or the other person (if any), but not the residence of both the care receiver and the person; and

(e) must not be care and attention of a kind (if any) specified, by legislative instrument, by the Secretary for the purposes of this paragraph.

1. The Social Security Guide at Part 3.6.7.45 sets out examples of what kinds of care constitute assistance with bodily functions and assistance with sustaining life, and states that:

Care & attention must address special care needs

To be eligible under the new rules, carers who do not live with the person being cared for will need to provide care and attention that address special care needs that the care receiver is assessed under the ADAT as having (that is, assistance with bodily functions and/or to sustain life).

Special care needs include assistance with bodily functions and care to sustain life. Assistance with BODILY FUNCTIONS includes:

• MOBILITY, which may include assisting the person to transfer in and out of bed, moving around the home, negotiating stairs and positioning in their chair or bed
• PERSONAL HYGIENE, including help with dressing and undressing, bathing and showering, grooming, and assistance with using the toilet
• EATING AND DRINKING (hydration and nourishment), which may include cutting, mashing or juicing food so the person can eat it, feeding the person food and drinks and supervising the person to ensure that their food or drink is consumed
• COMMUNICATION, this may include signing or interpreting for the person and assisting the person to use communication equipment, and
• TREATMENT, which may include helping the person take medication, changing dressings, applying bandages and operating and monitoring medical equipment.

CARE TO SUSTAIN LIFE includes supervision to prevent wandering, removing the person from dangerous situations and preventing the person from damaging property or injuring themselves or others.

Example: A daughter goes to her elderly mother's home to care for her mother every day. As her mother has chronic arthritis, she has difficulty getting around and undertaking basic tasks as her hands and feet are affected. Her daughter assists her with showering and dressing in the morning, feeding her breakfast and lunch, and helping her get around the house. All of these activities address her mother's special care needs and meet the requirements of the 'care and attention' definition, so they may be counted towards the daughter's minimum of 20 hours a week for CA qualification under SS Act section 954A.

Activities that DO NOT address the care receiver's special care needs (as assessed under the ADAT), and which do not relate to the care receiver's bodily functions or to sustaining their life, are not considered to be care and attention, for example, shopping, housework and travel time.

Example: Activities undertaken by the daughter such as travelling to her mother's house, reading a book aloud to her other and making afternoon tea for her mother do not address her mother's special care needs as defined in section 954A(2) because they do not relate to her bodily functions or to sustaining her life. This means that these activities would not be 'care and attention' that could be counted towards the daughter's minimum 20 hours a week for CA qualification under section 954A.

1. The Tribunal is not bound by the above policy, but will follow the Department's policy unless there are cogent reasons not to do so (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645). The Tribunal accepted that the above examples are consistent with the intentions of the legislation and provide guidance for the Tribunal when interpreting the requirements in subparagraph 954A(2)(a)(ii) of the Social Security Act.
2. The Tribunal accepted that the Applicant had been receiving carer allowance from September 2005, in respect of the care she had been providing to her mother. A "Carer Payment and/or Carer Allowance Medical Report (SA332a)" form was completed by a medical practitioner on 20 July 2023 in respect of the Applicant's mother's health circumstances. The information stated that the Applicant's mother had been diagnosed with legal blindness, with dilated ascending aorta, hypertension and osteoarthritis and the conditions were described as permanent and not likely to improve. The medical practitioner stated that care was required for a significant period each day and that the "Patient required at least 8 hours daily supervision and care". The Applicant's mother was described as sometimes showing signs of depression and withdrawing from social contact. The medical practitioner stated that the care receiver was continent with bowels and bladder; independent with grooming and toilet use; independent with feeding; needed some help with transfers, mobility, dressing and stairs; was dependent with bathing; was not cognitively impaired; and did not ever show signs of memory loss, aggression or disinhibited behaviour. The Tribunal accepted the description of the needs of the Applicant's mother as described in the form completed in July 2023.
3. The Applicant agreed in her evidence at the hearing that, as of May 2023, she and her mother had been living in separate residences. She estimated that it took a couple of hours to drive from one residence to the other. She did not dispute the Respondent's assessment that the residences are 242 kilometres apart. This evidence was consistent with information provided in the hearing papers and was consistent with information provided by the Applicant to the Tribunal at first review. The Tribunal accepted that, at the time of cancellation, the Applicant was residing separately from her mother and that the distance between the two residences was 242 kilometres, which involved travel of over two hours between the houses.
4. As to the care being provided by the Applicant to her mother as of May 2023, the Applicant gave evidence at the second review hearing that she had been at her mother's home "constantly", she would say every fortnight. When asked how long she would stay each fortnight, she commented that her health is not consistent, nor is her mother's. She could be there for six months and back at her home for a month; it was all depending on what was happening at the time. Prior to the cancellation decision, she estimated she would have been at her mother's address "half and half". She agreed she had given evidence at the first review hearing that she was required to budget to travel to her mother's address, stating she budgets $60, but that if something urgent comes up, she doesn't have a spare $100 to use.
5. The Applicant was asked about her evidence at the first review hearing, where she was reflected as having said that she stayed with her mother for a week or so and then returned to her own residence; her mother may come back to stay with her, but her mother finds it difficult at the Applicant's residence due to lack of amenities. When asked whether, based on this evidence, there were extended periods of time that she was not present at her mother's, the Applicant stated possibly.
6. The Applicant gave evidence that, when not physically with her mother, she continued to provide assistance such as buying socks and undies and posting these to her mother, downloading and printing bills to send to her mother, and contacting her mother by phone or through a tablet. The Applicant had described in a care form that she was providing four hours per week of care relating to communication and, when asked about this, told the Tribunal that this related to phone calls, such as checking she had had breakfast, that she had taxi vouchers available and what she was wearing for the day.
7. The Applicant gave evidence at hearing that, in addition to visiting her mother at her mother's house, her mother had also travelled to stay with her, she estimated every eight weeks. As to how she met the 20-hours-per-week requirement when staying at her mother's house, the Applicant stated that from the moment she would walk in, she could assess how long she needed to be there. In the first two days she would assess and plan her tasks and, sometimes she would be working from the moment she woke up. She described activities including checking whether the bread was mouldy in the fridge, cleaning out the fish tank, buying TattsLotto tickets, getting her mother's dog's nails cut and organising a podiatrist appointment for her mother. As of May 2023, physical assistance she was giving her mother included assisting her mother up and down from weeding the garden, taking the bins out, helping her mother on and off an escalator, and standing outside the shower while her mother was showering. As to assistance with administrative tasks, the Applicant stated she has often had to take her mother to Optus, in addition to regular phone contact and checking on her wellbeing.
8. The Applicant agreed that her mother had had a Level 4 Home Care Package in place as of May 2023. She agreed this provided for personal services including bathing and showering, personal hygiene and medical management, although gave evidence that while options were there, some services were not being provided. She agreed that paid workers were in place to provide the services in her mother's home, that staff were attending on a regular basis and that she herself was not required to be present for the services, although noted that she was there a lot.
9. The Applicant also agreed in her evidence at the hearing that she had been granted disability support pension from June 2023, based on having a severe impairment relating to physical exertion and stamina, and that she herself had physical limitations. While she agreed this affected her capacity to provide care for another person, she stated that she "worked around it". The Applicant was taken during the hearing to "Review Notes" made in respect of her disability support pension application. The notes were made within the context of a conversation between the Applicant and a customer service officer of the Respondent on 24 February 2024 and reflected the Applicant as advising that:
   • She is in constant pain when doing anything. She feels pain not only in her arm, but where her operative scars are, as well as in her bones and joints.
   • She can look after herself and complete day to day activities, but she can't sustain any activity.
   • Some days she can't function at all, even with the most basic tasks.
   • She has a lady come to her house for an hour each fortnight to help her with household chores.
   • She can do things around the house, but can only go very, very slowly and her movements are inhibited.
   • If she does any task she has to then rest for at least half an hour before she can do something else.
   • If she takes on more strenuous tasks when she needs to, the following day she experiences pain and tingling sensations and is unable to function properly.
10. The Applicant gave evidence that the above information was correct and that that information had been correct as of May 2023. She noted that her joint pain had been worse in May 2023, and that other issues such as her asthma and blood pressure have become worse since that time.
11. The evidence given by the Applicant at the second review hearing was consistent with the information she had given to the authorised review officer, when the decision was being reviewed internally. The record of the discussion with the authorised review officer was that the Applicant had advised that (T docs page 12):
    • Prior to her CA being reviewed, she and her mother spent all of their time together, alternating between each of their homes on a 2 weekly basis.
    • At the time her CA was reviewed, that arrangement had ceased because they had both had a decline in health and had been unable to continue.
    • Her mother is living in aged care and [the Applicant] is in [suburb].
    • [Her mother] can't go to [the Applicant's] home like she used to - she is unable to see, so she is not safe in that setting, and she can't travel there independently.
    • They have no other family support and depend on each other entirely.
    • It is the fault of the system that she can't live with her mother, or closer to her - the house prices (rental and purchase) in that area are prohibitive.
    • The price of petrol also impacts her ability to travel to and from her mother's home more regularly.
    • She is currently staying with her mother, but the unit only has one bedroom (she sleeps on the bed and [her mother] sleeps on the lounge), so it is not a viable long term arrangement.
    • She is planning to return home in the coming days, but given that her mother has had to pay her mortgage and exhausted all of her money, they will have to work out how she will pay for the petrol to get home.
    • She has recently claimed CA again and been granted, based on the form she completed declaring that she provides personal care to her mother 7 days per week.
12. Other evidence before the Tribunal included estimated weekly hours of care, prepared by the Applicant and provided to the Respondent on 24 October 2023. The Tribunal noted that the Applicant indicated she was providing care to her mother seven days per week, with 40 hours of personal care being provided. Further questions asked the Applicant to specify hours per week spent on particular care activities. The Tribunal noted the inconsistency of this evidence with the Applicant's other accounts of the level of care she had been providing to her mother. The Tribunal did not accept the information provided in October 2023 to the Respondent accurately reflected the level of care being provided by the Applicant to her mother as of May 2023.
13. The Tribunal also had before it a document prepared by the Applicant for the first review hearing, providing an example of journal of activities undertaken on behalf of her mother. The Tribunal noted that many of the activities were of an administrative nature, such as dealing with utility companies on her mother's behalf. Some activities were of a supervisory nature, such as monitoring her mother while showering. Others dealt with household tasks such as meal preparation, taking out the rubbish bins and making beds. The Tribunal noted that, while comprehensive, the information related to a period a significant time after the cancellation decision had been made and did not provide contemporaneous evidence of the care being provided as of May 2023.
14. Finally, the Tribunal also had before it a range of documents provided by the Applicant after the hearing. These included a claims history for attendance at various doctors in May 2023. No patient details were identified in the information provided. The Applicant also provided a statement of attainment, dated 30 May 2024, for attendance at first aid, basic emergency life support and cardiopulmonary resuscitation; dates the programs were conducted were not identified in the document. The Applicant provided a Certificate III in non-emergency patient transport from November 2006, a mental health first aid certificate with the date not identifiable, and a brochure for a local council meeting to be held on 23 May 2023 in the broad region the Applicant's mother was residing in at the time. The Tribunal noted that the documents provided by the Applicant after the hearing provided a level of detail about the Applicant's qualifications relevant to the care she was providing to her mother, but did not provide clear evidence of the level of care she was providing to her mother as of May 2023.
15. The Tribunal had the benefit of hearing from the Applicant in some detail at the second review hearing about the care she had been providing to her mother. The Tribunal considered that the Applicant gave her evidence in a forthright and credible manner. She did not appear to overstate the care she had been providing her mother as of May 2023, and it was clear that the care being provided was limited, at least in part, due to the distance between their homes and the Applicant's own financial and health circumstances. The Tribunal accepted from the evidence before it that the Applicant was spending time with her mother as often as she could, which usually involved the Applicant travelling to her mother's residence but occasionally involved the Applicant's mother coming to her home. The Tribunal considered that the best evidence of the frequency of this care was the relatively contemporaneous account given by the Applicant to the authorised review officer, which was that while they had previously spent a fortnight at each other's homes on a rotating basis, this arrangement had broken down by the time of cancellation due to each of their health issues. The Tribunal found that the Applicant was not seeing her mother daily, or even weekly, at the time of cancellation.
16. The Tribunal accepted the Applicant was, as of May 2023, heavily involved in day-to-day aspects of her mother's care and had been for many years. The difficulty for the Tribunal, however, is that the legislation requires that the care being provided relates to the care receiver's bodily functions or to sustaining the care receiver's life and was being received by the care receiver on a daily basis, for at least 20 hours per week. The Applicant does not meet these requirements for two reasons.
17. Firstly, the Applicant's descriptions of the care she was providing to her mother indicate that a large part of her caring related, on her own evidence, to communication and advocacy for her mother. The Applicant provided examples of preparing Christmas cards, dealing with emails, cleaning the house, supervising her mother in the shower and assisting her mother in dealing with phone and utility companies. The Social Security Guide in describing care for bodily functions and for sustaining life provides examples of direct physical care such as transferring a care receiver, assisting with hygiene, physically feeding the care receiver, assisting the care receiver to take medication and actively monitoring and intervening to stop the care receiver from harming themselves or putting themselves in dangerous situations. The Applicant did not assert to have provided any such care to her mother, or any care that could be considered equivalent to the physical, direct care described in the Social Security Guide. The Tribunal noted that the Applicant's mother had an age care package in place, that was intended to provide many of these forms of care. On the evidence before it, the Tribunal found that as of May 2023 the Applicant was not providing care and attention to her mother that addressed special care needs relating to her mother's bodily functions or sustained her mother's life.
18. Secondly, the Tribunal was also not persuaded that as of May 2023, the Applicant was providing care on a daily basis to her mother, for at least 20 hours per week. This appears to have been, in large part, due to the distance between the Applicant's residence and her mother's residence, which necessitated a long drive and which made daily contact impossible. Further, the Applicant's own health issues, for which she was granted disability support pension, meant that she was physically unable to provide any level of care to her mother on some days, due to the limitations caused by her own health. The Tribunal found that the Applicant was not providing care on a daily basis, for at least 20 hours per week, as of May 2023. She did not meet the requirement in paragraph 954A(2)(b) of the Social Security Act at the time of cancellation.
19. The qualification requirements in subsection 954A(2) of the Social Security Act are cumulative. As the Applicant did not meet all of these requirements as of 23 May 2023, she did not meet the requirements to continue to be paid carer allowance as of that date.
20. Subsection 80(1) of the Social Security Act provides (in relevant part) that if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended. In circumstances where the Applicant was no longer qualified for carer allowance due to no longer meeting subsection 954A(2) of the Social Security Act, the Tribunal accepted that the payment was correctly cancelled by the Respondent. For this reason, the decision before the Tribunal is legally correct and is affirmed.