MCRI No. 14

Military Compensation Scheme

Safety Rehabilitation and Compensation Act 1988 (SRC Act)

SUBJECT  – PROVISION OF HOUSEHOLD SERVICES UNDER SECTION 29 OF THE SRC ACT

1. Purpose
   1. This instruction outlines interpretation of section 29 of the SRC Act and procedures for its application in the provision of household services to Australian Defence Force (ADF) members and ex-members.
   2. Procedures relating to Attendant Care are covered in MCRI 25
   3. Defence Compensation Instruction 22 is hereby revoked.

2. Scope
   1. This instruction applies to ADF members and ex-members who have suffered an injury or illness (as defined in section 4 of the SRC Act).  The employee must subsequently have had a claim for compensation for the injury accepted as compensable under the SRC Act.  In other words, SRC Act Delegates can only meet the costs of agreed household services under section 29 of the SRC Act if there is an accepted claim for compensation.

3. Background
   1. Section 29 of the SRC Act provides that the Commonwealth will meet the cost (to a statutory upper limit) of household services that are reasonably required by an employee as a result of a compensable injury.
   2. Although Delegates must have regard to the requirements of any rehabilitation program, payment for provision of household services is not dependent on participation in such a program.
   3. There is no legislative requirement for provision of household services for employees who do not have an accepted claim for compensation under the SRC Act.
   4. Additional guidance regarding the application of section 29 may be obtained from Comcare Operations Manual Volume 9 Part 5. The intent of this instruction is that it shall be complementary to the Comcare Operations Manual but in the event of any procedural conflict or contradiction arising between the two documents, this instruction shall take precedence.

4. Household Services - Definition
   1. Household services are defined in Section 4 of the SRC Act as "... services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household".
   2. Household services include:

1.   lawn mowing and gardening
2.   cleaning gutters
3.   wood chopping and stacking
4.   window cleaning
5.   dusting and vacuuming
6.    washing floors and walls
7.   cooking and washing dishes
8.   making beds and tidying up
9.     ironing and laundry
10.     shopping
11.   child care

3. When considering which services might come under the description of being “required for the proper running and maintenance of the employee's household”, regard needs to be had to the individual local situation. For example, wood chopping and stacking would not be a requirement in the tropics, while more frequent lawn mowing might well be needed in that area.

The following examples are provided by way of guidance as to what might be considered as “required for the proper running and maintenance of the employee's household”:

•     lawn mowing- 1 hour per service and up to 26 services a year;
•     cleaning gutters -up to 1 hour per service twice a year;
•     cleaning windows -up to twice a year
•     wood chopping and stacking up to 1 hour per service twice a year

4. The AAT decision in Todd v Department of Defence confirms that Section 29 does not include the provision of household maintenance services. Accordingly, payment for the following types of services would be rejected:

1.   painting and decorating (exterior and interior)
2.   washing, servicing, repairing or maintaining family vehicles
3.   repairing fences, doors and windows
4.   plumbing
5.   electrical repairs
6.    chopping down trees
7.   removal of large items of rubbish,  such as old furniture or white goods,  that do not fit in normal household bins.

5. In essence, any services for which a householder might usually or reasonably need to employ a professional service provider would not normally be paid for under Section 29.
6. Sub-section 29(5) provides that compensation is not available for household services under Section 29(1) for the first 28 days after injury unless the Delegate “determines otherwise in a particular case on the ground of financial hardship or the need to provide for adequate supervision of dependent children.”

5. Payment for Child Care Costs
   1. Child Care services includes most long day care, family day care, outside school hours day care, vacation care, some occasional care services and some in-home care.
   2. Child care can only be paid where the employee has incurred a loss due to their compensable condition. In other words if the employee was paying for child care prior to the date of injury, payment cannot be considered for similar care obtained after the date of injury.  If employees were caring for their own children prior to the injury and are now paying for childcare because the compensable injury/illness prevents them for providing this care themselves, then compensation may be payable.
   3. Please note that the criteria (Points 6.1 and 6.2 refer) that affect any application for household help must be applied, particularly the extent of assistance that other members of the household can be expected to provide.

Medical and other evidence should be sought to establish:

•     That there is an inability by the employee to provide child care,
•     The extent of child care that is necessary.

6. Principles for Decision Making
   1. The key concept in considering any proposal for provision of household services is whether or not the employee as a result of their injury reasonably requires the services.
   2. In determining the reasonable requirement for provision of household services, the delegate should consider:

1. the practical implications of the injury (including the nature and extent of the injury or illness) in relation to the services requested
2. the expected duration of the injury
3. whether the requirement for services has resulted from the injury
4. whether the employee (personally) previously performed the services
5. whether the services are able to be performed by another family member
6. whether provision of services would alleviate a substantial disruption to the activities of family members
7. the likely positive effects of provision of services upon the outcome of a rehabilitation program
8. the length of time for which the services are likely to be required
9. whether 28 days have elapsed from the date of injury

7. Application of the Principles - Household services
   1. Decisions regarding provision of household services are primarily made according to the principles outlined in point 6.2 above.  However, Delegates should note that it is common for cases to be far less clear-cut in practice.  Therefore, the actual decision is made by carefully weighing up the totality of evidence in a case, which may have a combination of strong and weak points, when considered against the factors outlined in the SRC Act.

Injury implications

2. The delegate should be satisfied that the employee's injury significantly prevents them from undertaking the requested household duties. Provision of household services is for employees with seriously incapacitating conditions. If there is any doubt about the employee's ability to perform the specific household services, medical evidence or evidence from another suitably qualified professional (eg Occupational Therapist) should be obtained.  Advice should also be obtained on provision of any ergonomic aids (under Section 39) which might assist employees to carry out household and gardening services themselves.

An employee may be able to undertake certain household duties such as cooking and cleaning but may be unable to undertake heavier household duties such as lawn mowing and general gardening. Household services are only payable for those duties that the employee is not able to perform.

Injury duration

3. Household services are generally intended for short-term conditions (less than 6 months) and due regard should be had for an employee's improving ability progressively to undertake household duties as their condition resolves.

Notwithstanding the above emphasis on short-term conditions, household services may be required in the longer term (more than 6 months) for employees with long term or permanently incapacitating conditions. Such long-term incapacities are relatively common in military compensation and rehabilitation, however, there is a commensurately greater obligation to obtain supporting medical and other evidence for long-term incapacities initially and to review such cases at least annually. (Point 9.5 refers)

Link to injury

4. The requirement for household services must be specifically linked to the condition(s) for which compensation liability has been accepted.

Personally undertaken prior to injury

5. Household services are normally only provided if those services were personally undertaken by the employee prior to their injury or illness. For example, if an employee paid a lawn mowing contractor to do their lawns prior to their injury, they would not be eligible for supply of lawn mowing services, regardless of their current capacity to mow their lawn.

Another example, if an employee previously mowed their own standard suburban lawn but moved to a larger "acreage" property following an injury, funding of lawn mowing services would be restricted to the cost of mowing the reasonable house environs not the entire "acreage".

Notwithstanding the (above) general limitation to tasks previously personally performed by the employee, special consideration should be afforded to ex-serving members who were housed in military barracks, etc prior to their injury. In such cases, the delegate should decide whether the employee was likely to have personally performed the household task(s), were it not for their previous accommodation.

Family members to contribute

6. Household services are not payable if there are other family members who can reasonably undertake the tasks without substantial disruption to that family member's employment or other external commitments. In particular, the employee's spouse or teenage dependent children's capability to undertake all or some of the tasks should be assessed.

As a general rule, in most cases where at least one other healthy adult member of a household resides with the injured employee, household services will not be payable.

Substantial disruption

7. As a guide, household members from 13 years of age could reasonably be expected to provide up to 4 hours household assistance per week each, even if they were working and/or engaged in other (educational, sporting or community) external commitments totalling 60 hours per week. Any such household members with less than 60 hours per week total external commitments could reasonably be expected to contribute proportionately more hours to household duties.

Effect on rehabilitation program

8. Where an employee is actively involved in a rehabilitation program and especially when the rehabilitation program involves return to work (eg. work trial), claims for household services which will enhance the likelihood of successful rehabilitation should be given favourable consideration. These claims should only apply for the duration of the rehabilitation program.

Length of services

9. Short-term or once-off household services require less substantiation than long-term arrangements for longer-term impairments.

28 days from date of injury

10. Household services are generally not payable within the first 28 days from the date of injury. However, in line with section 29(5), household services may be provided in the first 28 days if there is sufficient evidence of financial hardship, or a need to provide adequate supervision of dependent children.

8. Provision of Household Services
   1. In most cases, the employee should be required to provide information about their home situation and obtain supporting documentation (see example form at Attachments 1- 3 (Form SF17 series) from their treating doctor and/or rehabilitation provider.
   2. In situations where a Delegate is not satisfied that the treating doctor and/or rehabilitation provider's advice serves as a sound, objective basis for determining entitlement, assessment should be arranged by an independent and suitably qualified Occupational Therapist of the employee's reasonable requirement of household services. This course of action may also be appropriate for long-term requests or if there is doubt about the employee's eligibility (as in a “borderline” case).
   3. Although payment for household services is usually the same amount as was expended to obtain the services, section 29(1) provides that the delegate may pay a lesser amount when there is evidence that claimed costs are excessive. However, the delegate may not restrict payment to less than 50% of the amount expended in these circumstances unless it is to comply with the overall requirement in section 29(1) to restrict household services to the statutory limit.

At the time of writing (July 2002), the statutory limit for household services was $317.65 per week. The statutory limit is indexed annually (from 1 July) and the current limit will be obtained from Comcare and advised annually by Military Compensation and Rehabilitation Instruction.

Note: many employees who qualify for household services, also qualify for attendant care services.  In such cases, they may be entitled to payment up to the statutory limit for both household services and for attendant care services.  In other words, a weekly amount of up to $635.30 per week ($317.65 plus $317.65) could be payable at the time of writing this instruction.

4. Although not specifically required by Section 29 of the SRC Act, household services should only be provided by a professional service provider. This ensures that the best service possible is provided to the employee.

A professional service provider should have: -

•     Appropriate insurance coverage to provide professional indemnity;
•     Proper systems to ensure accountability for their services;
•     Professional provision of services and correct mechanisms for payment of taxation and superannuation, where appropriate; and
•     Necessary back-up in cases of sickness.

Where the employee can demonstrate that relatives or friends are professional service providers  who are able to meet the above criteria, claims for such provision of household services may be paid at a rate equivalent to industry standards.

5. The employee should clearly understand, for the purposes of household services, at all times he or she is responsible for: -

•     choosing a provider
•     arranging the times when the provider can undertake the household services
•     and collecting any invoices from that provider.

The MCRS only has responsibility for determining the payment in relation to the services, and takes no responsibility for: -

•     the standard of service provided;
•     the conduct of the service provider in the employee's home ; and
•     liability issues , including taxation, superannuation and workers' compensation for the provider or the provider's employees, agents or subcontractors. In this regard, there is an employee/employer relationship between the service provider and injured employee, whilst there is no such relationship between the Department and the service provider.

6. Payment for household services may be made to the employee, on production of receipts, when they have purchased the services.

Preferably, payment may be made direct to a supplier, on production of an invoice, especially for long-term arrangements.

9. Approval and Review Procedures
   1. Regardless of the cost involved, the reasons behind any decision to supply (or not supply) funding for household services must be recorded on the appropriate rehabilitation or compensation file.  A determination should be issued using SL19a.
   2. The written record of reasons is especially important for decisions made under Section 29 of the SRC Act 1988, as these decisions are subject to review.
   3. Payment for household services may be approved by an MCRS delegate at the APS 5 level.
   4. Every effort should be made to avoid creating an expectation for open-ended provision of household services. This is especially important when there is even a small chance of a resolution of the employee's condition. The ongoing requirement for provision of household services should be monitored and regularly reviewed according to the circumstances of each case.
   5. However, there is a necessity in most cases to review and document the ongoing requirement for services at least once every 12 months to ensure that employees are receiving the services most appropriate to their needs (see Attachments 1-3 [Forms Series SF17 and 20] for household services review format).
   6. Where the employee is in receipt of either incapacity or attendant care payments, delegates should, wherever possible, align these reviews so they can all be undertaken at the one time. In the cases of more severely disabled employees, this review may be able to be done as a file review, without the need to contact the claimant.
   7. Employees should be given at least 28 days' notice of any intention to reduce the level of household services approved so that they have a fair opportunity to provide evidence or argument in support of their case.

10. Enquiries
    1. Enquiries regarding this instruction should be directed to Teresa Kent at MCRS National Office in Canberra on (02) 6289 6007.

[Signed]

Mark Travers

Director MCRS Policy and Procedures

11 — th July 2002

Attachments:

SF17 (1)

SF17 (2)

SF20