FEDERAL COURT OF AUSTRALIA

SOCIAL SECURITY - carer’s pension - whether handicapped person was a “severely handicapped person” within Social Security Act 1991 (Cth) s 198(3)(b) - handicapped person held not to be in need of frequent care in connection with “bodily functions”.

Social Security Act 1991 (Cth), ss 198(3)(b)(i), 198(3)(b)(ii)

Seventy-Ninth Vibration Pty Ltd v The Chief Executive Officer of Customs (Drummond J, 19 February 1998, unreported), applied

Re Seager and Director-General of Social Security (1984) 6 ALD 556, considered

Re Kedwell and Secretary, Department of Social Security (1987) 7 AAR 243, considered

WORDS AND PHRASES - “severely handicapped person”, “bodily function”.

ALEXANDER DEME v DEPARTMENT OF SOCIAL SECURITY

QG 185 of 1997

DRUMMOND J

9 MARCH 1998

BRISBANE

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.                     The appeal be dismissed.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

This is an appeal from the Administrative Appeals Tribunal which, by its decision on appeal by the Department of Social Security, reversed the decision of the Social Security Appeals Tribunal which granted the appellant a carer’s pension within s 198 the Social Security Act 1991 (Cth).  Mrs Deme is in receipt of a social security pension granted because of a disability she suffers from due to a long standing condition of chronic fatigue syndrome.  The appellant is her husband.  The issue before the AAT was whether Mrs Deme was a “severely handicapped person” within the meaning of that in s 198(3) of the Act.  The Tribunal held she was not.

The errors of law said to invalidate the AAT’s decision can be summarised in this way:  firstly, failure to comply with its duty to give reasons for its decision; secondly, wrongly holding that it was common ground that Mrs Deme was not a “severely handicapped person” in so far as she did not require frequent care in connection with her bodily functions within s 198(3)(b)(i); and thirdly, that there was no evidence to support the Tribunal’s finding that she was not a “severely handicapped person” within s 198(3)(b)(ii) because she did not require “constant supervision to prevent injury to” herself or someone else. 

It is convenient to deal with ground (2) first.  Mr Boulton, counsel for the appellant, points out that Mr Deme, who represented himself before the AAT, expressly qualified his response to the Tribunal’s query as to whether counsel for the Department was correct in saying that Mr Deme did not contend that his wife was in need of care in connection with her bodily functions.  Mr Boulton pointed to the fact that counsel cross-examined Mr Deme on this issue at some little length and also addressed on it, submitting that it was simply not open to find that Mrs Deme requires frequent care in connection with bodily functions.  Addressing in this way, so Mr Boulton contended, was inconsistent with the issue being common ground.

It is apparent from the qualification Mr Deme placed on his response to the Tribunal’s query that he carefully stated his position as being that, while he could not say his wife now required care in connection with her bodily functions, it was his ongoing care in the past that had prevented her deteriorating to that stage.  That is the point he has made throughout.  He made it in his original application for a pension.  It is a point he explained in his contacts with the Department, firstly in his letter of 1 May 1996 and then in his telephone discussion with a Departmental officer on 31 May 1996, and it is what he later told the Queensland Health social worker whose report is in evidence.

A person is only handicapped for the purpose of s 198(3)(b)(i) if she is in need of care in connection with her bodily functions at the time the application is made for the carer’s pension.  Mr Deme did not contend for that position at any stage, including when he appeared before the AAT.  Mr Deme did not contend for such a finding and there was in truth no basis put forward to the Tribunal on which a favourable finding on this issue could have been made.  It is, however, understandable that counsel for the Department would follow the course he did, cross-examining and addressing, given that Mr Deme was representing himself and that he had not made an unqualified concession to the matter being common ground.

It would have been better if the Tribunal had explained what it meant in these circumstances by saying that the issue was common ground.  Mr Deme would have understood that the Tribunal was saying it was finding against him on the basis that the section did not cover a person who was not, in fact, in need of care in respect of her bodily functions at the relevant time, even if she was only able to avoid being in such a condition because of the preventative care she was receiving.  But I do not think, in the circumstances, that the way the Tribunal stated the position amounts to an error of law that invalidates its decision.

I should say that before me counsel argued that the evidence raised, as an issue for determination, whether Mrs Deme came within this particular sub-paragraph of s 198(3).  He pointed to the evidence to the effect that her mobility was restricted in so far as she only went on her own by bus to the shopping centre and library for limited periods of up to two hours about three times a week and to visit her parents on the Gold Coast - she lives in Toowoomba - once or twice a year.  Counsel also referred to the evidence that she needed assistance to, as he put it, cook a major meal.  But a person will only come within s 198(3)(b)(i) if she has a physical or other disability and that disability has such an effect on her bodily functions that she cannot attend to those functions without another’s care.

I read the expression “bodily functions” in the context of a provision that makes those functions the occasion for the need for another’s care as describing activities or operations which are in a healthy body, automatic, as well as a reference to those operations and activities which are essential to the continued functioning of the body regarded as a living organism.  Those functions would include such operations and activities as breathing, ingestion of food and the evacuation of bodily wastes.  That Mrs Deme’s mobility is partially limited by her condition and that her capacity to attend to meal preparation is partially impaired provides no basis therefore for saying that she might, for those reasons, come within the statutory description.  Her physical capacities may well be impaired.  But the matters relied on by counsel are incapable of raising a question as to whether her bodily functions necessitate care from another.

As to the first ground, the Tribunal’s failure to give reasons for its decision, I recently said in Seventy-Ninth Vibration Pty Ltd v The Chief Executive Officer of Customs (19 February 1998, unreported):

Whether the Tribunal has discharged its duty to give reasons does not depend on whether it has sought to explain how it came to its decision at length, rather than briefly:  the duty can be properly performed in economical language.  But the obligation imposed on the Tribunal to give reasons for its decision is not satisfied by its stating a number of propositions, either concisely or at length, which do not provide an intelligible explanation for how the Tribunal reached its conclusion.  In Australian Telecommunications v Barker (1990) 12 AAR 490, the Full Court said at 492:

The Tribunal failed to state reasons for that conclusion, to expose its reasoning process.  It is an error of law for a Tribunal, which is bound to state reasons for its decision, to fail to express findings and reasons for decision adequate for the purpose of enabling a proper understanding of the basis on which the decision has been reached. (Emphasis added)

The AAT summarised the evidence it considered material in very brief fashion at paragraphs 3, 4 and 5.  Then, at paragraph 7, it said:

The medical evidence is such that we believe that it shows that Rachel Deme does not need constant supervision.

It went on to say:

The Tribunal does not accept that Rachel Deme is likely to injure herself or anyone else.  She does not need Mr. Deme’s constant personal care.  We believe that the fear that she will injure herself is related to anticipated problems rather than real ones.  There is a hypothetical danger but not an actual one.

The Tribunal concluded by observing:

Consequently, it is our finding that under the terms of the Social Security Act 1991, Rachelle Deme is not a severely handicapped person within the meaning of that term in the Act.

The AAT did not attempt to state its understanding of the meaning of the definition of “severely handicapped person” in s 198(3)(b)(ii).  So far as argument before me shows, that is not a concept so well established by authority that it could be said to be unnecessary for the Tribunal to state the criteria involved in the statutory provision which it applied and by reference to which it assessed the evidence to reach its conclusion adverse to Mr Deem.  Nor is it a phrase of such simple clarity that the Tribunal could properly avoid that task.

There is nothing to indicate that the words of s 198(3)(b) are used in anything other than their ordinary sense.  Those words were designed to be applied in a wide variety of differing circumstances.  It is both unnecessary and inappropriate, therefore, to attempt to devise an expression different from that used in the statute.  But it is essential, before the statutory expression in s 198(3)(b)(ii) can be applied to a particular set of facts, to recognise a number of things.

Firstly, the phrase of critical importance is not “constant supervision”, which is the phrase that was the subject of interpretation in Re Seager and Director-General of Social Security (1984) 6 ALD 556.  Instead, the relevant phrase is the whole composite phrase “constant supervision to prevent injury to the person or to another person”, and it is that composite phrase in the context moreover of s 198.

Secondly, the identification of the purpose for which constant supervision is required by reason of the disability suggests that a person will come within this part of the definition of severely handicapped person only if her disability is such as to require the carer to have close involvement with her.

Thirdly, that the disability must be such as to require close involvement by the carer with the handicapped person is further shown by the different language used in sub-paragraphs (ii) and (i), “constant supervision” in sub-paragraph (ii), which is to be contrasted with less intensive involvement, “frequent care”, in sub-paragraph (i).

Finally, the amount of a carer’s pension is such that it can be seen to provide compensation to the carer for having to give up the opportunity to earn income for him or herself, a matter commented on in Re Kedwell and Secretary, Department of Social Security (1987) 7 AAR 243 at 246 and a further indication that the handicapped person must require close attention.

Although the Tribunal did not expressly deal with the implications in the statutory provision of crucial importance to its decision, it is, in my opinion, clear enough that it correctly proceeded on the basis that the need for a high level of supervision had to be shown, since what was called for was constant supervision to prevent injury:  I have already set out what the Tribunal had to say in this regard in paragraph 7 of its reasons.  The Tribunal said sufficient, in my opinion, to show that it has applied the statutory provision according to its proper construction to the facts of the case.  Although I regard the case as a borderline one, there is no sufficient failure to give reasons to ground a legitimate complaint of breach, by the Tribunal, of its statutory duty in that regard.

So far as ground (3), the no-evidence point, is concerned, Mr Deme’s own evidence was to the effect that he left his wife to herself at home for substantial periods of time and that she was capable of travelling by public transport to a shopping centre, which she also visited for substantial periods of time, on a regular basis.  According to him, she has, in fact, suffered no injury of any significance despite her obviously enfeebled condition.  The AAT placed decisive weight on Dr Schindler’s evidence, but his evidence is entirely consistent with what Mr Deme says.  His evidence contradicts the proposition that Mrs Deme is at such a risk of injury, due to her disability, that she needs the kind of close supervision referred to in the relevant part of the definition in s 198(3).

There is no suggestion of the existence of any such risk by Dr Schindler in his first report of December 1995.  True it is that in his second report of October 1996 he said:

Owing to the frequent unpredictability of her dizziness, concentration, fatigue and forgetfulness, Mr Deme must be with her even when [I think the doctor means “even though”] she can do some activities by herself, just in case she falls or gets confused.

But he never treated her for any injury and he also agreed with the proposition that Mr Deme put to him in these words:

Because Rochelle has been sick for about 8½ years, I guess now, would it be a fair comment for me to say that in the first 3 to 4 years we learnt enough about the illness to try to avoid those situations which would bring about extreme fatigue?

The doctor answered:

I think that would be a fair comment, …

He also said at p 111, a page of cross-examination:

Q:        And both she and Mr Deme have learnt to cope and adjust over time?

A:        Yes.

Q:        Is it a fair proposition that she would learn to adjust with him out of the house for a few hours every day?

A:        Every day?  I don’t think so, perhaps not every day.

Q:        Well, say four or five days a week?

A:        Four or five.  That may be possible to aim at.  I don’t think that would be possible at the moment, it would be more like something like two or three.  [Which I take to be two or three days.]  That is what I feel at the moment.

Given this evidence, it cannot be said that there was such an absence of evidence to entitle the Tribunal to find that Mrs Deme was in need of constant supervision to prevent injury to herself.  A no-evidence point can only be made out if there is an absence of any foundation in the evidence for the conclusion reached.  The point is not made out merely because the Tribunal’s decision is open to the proposition that it fails to give proper weight to relevant portions of the evidence, or it is indeed against the weight of evidence.

I would therefore dismiss the appeal.

Associate:

Dated:              9 March 1998