Yanz and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 410 (2 July 2012)

Last Updated: 4 July 2012

[2012] AATA 410

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/4983
Re	Julieann Yanz
	APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
	RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	2 July 2012
Place	Brisbane (heard in Townsville)

The decision under review is affirmed.

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Deputy President P E Hack SC

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - carer payment - no longer qualified for allowance – application for review - constant care not provided – failure to achieve the requisite disability score – application under review affirmed.

LEGISLATION

Social Security Act 1991(Cth) ss 197, 198(2)

CASES

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

REASONS FOR DECISION

Deputy President P E Hack SC

2 July 2012

1. The applicant, Ms Julianne Yanz, is the mother of a 25-year-old daughter who is legally blind. For many years Ms Yanz has received carer payment for the care of her daughter. In early 2011 the respondent, the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, undertook a review of the eligibility of Ms Yanz to continue to receive carer payment. A decision was made on 27 May 2011 that Ms Yanz no longer qualified for receipt of this payment. That decision was affirmed on internal review and by the Social Security Appeals Tribunal.
2. Ms Yanz now seeks a review of that decision in this Tribunal.
3. The qualifications for a carer payment are set out in s 198 of the Social Security Act 1991 (Cth). The issue in the present case is whether the requirements of s 198(2) are met. So far as is presently relevant it provides as follows,

The person must personally provide constant care for ... 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...

The term "care" is defined in s 197 of the Act as including "attention and supervision". The expression "constant care" is not otherwise defined within the Act. In that regard I agree, with respect, with these observations of Senior Member McCabe in Re Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 at [7]:

Section 198(2) of the Act says a person may be entitled to receive a carer's payment if he or she provides “constant care" to a disabled person. The expression "constant care" is not defined in the Act. These words should be given the 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 carers payment; the benefit is paid to replace income that has been forgone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.

4. There are, in my view, two insurmountable obstacles to Ms Yanz succeeding in these proceedings. In the first place the care that she provides is not, in my view, constant care. Moreover, even on the most charitable view of the assessments that have been undertaken using the Adult Disability Assessment Tool, the requisite score is not reached.
5. Ms Yanz's daughter is aged 25, she resides with her partner and two children aged four and 20 months. Her disability is one of blindness; she has no sight in one eye and only 25% in the other. She is however self-sufficient in most activities around the home. As Ms Yanz described the position to me, she assists her daughter on a regular basis by taking the older grandchild to and from school three days each week and by accompanying her daughter on shopping expeditions on a regular basis. And, on a regular basis, Ms Yanz assists her daughter by taking the children to play in a neighbouring park. Less frequently she assists her daughter with matters of personal grooming.
6. Given the inclusive definition of care I do not doubt that these activities answer the description of care however the pattern falls well short of constant care, all the more so where Ms Yanz does not reside with her daughter and where the daughter herself has a partner.
7. Ms Yanz also accepts that the result of the application of the Adult Disability Assessment Tool is that she fails to achieve the point score required by the Act.
8. In these circumstances I am bound to affirm the decision under review.
9. The real complaint that Ms Yanz has is that the legislation, and the assessment tool, does not address the care requirements of those with visual impairments; it is directed instead to those who suffer from mobility or cognitive impairments. That may be so but it is a matter that Ms Yanz will need to take up with the legislature; I am obliged to give effect to the legislation in the form that it is.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 2 July 2012

Date of hearing	16 June 2012
Advocate for the Respondent	Mr R Hamilton, Department of Human Services