Abdallah and Secretary, Department of Family and Community Services
[2004] AATA 719
•6 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 719
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/2004
GENERAL ADMINISTRATIVE DIVISION ) Re MRS HOUDA ABDALLAH Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO Date6 July 2004
PlaceSydney
Decision The decision under review is affirmed. ………………………………….
Rear Admiral A R Horton A O
Member
CATCHWORDS
SOCIAL SECURITY – Carer Allowance – applicant previously in receipt of Child Disability Allowance – legislative change 1998 to Carer Allowance – old provisions extant until June 2003 – review of eligibility in 2003 – applicant’s son (care receiver) has bronchial asthma – bronchial asthma not a recognised disability under section 38D(3) of Act – child to be rated under Child Disability Assessment Tool – negative score based on claimant and professional questionnaires – professional questionnaire considered to be an accurate reflection – Tribunal satisfied that a replacement professional questionnaire not required or appropriate – – decision affirmed
Social Security Act 1991 – sections 38D, 953(1)
Child Disability Assessment Determination 2001
Re Secretary, Department of Family and Community Services and Stewart [2001] AATA 50
Re Secretary, Department of Family and Community Services and Davies [2001] AATA 101
REASONS FOR DECISION
6 July 2004 REAR ADMIRAL A R HORTON AO 1. This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 18 November 2003 that affirmed a decision of an Authorised Review Officer (“ARO”) made on 2 September 2003 to cancel the Carer Allowance paid to Mrs Houda Abdallah (“the Applicant”), in respect of her son Walid.
2. At the hearing on 3 June 2004, Mrs Abdallah was self represented. Ms S Mantaring, an advocate from the Centrelink Service Recovery Team, appeared for the Secretary, Department of Family and Community Services (“the Respondent”). Ms G Majzoub, an interpreter fluent in the Arabic language provided the initial assistance to the Tribunal. Due to an administrative problem she was replaced by Mr Yassim part way through the hearing.
3. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T documents) and supplementary T documents (T1). The Respondent’s Statement of Facts and Contentions were also taken into evidence (Exhibit R1).
BACKGROUND AND LEGISLATION
4. Mrs Abdallah is a single parent with four sons, aged 19, 18, 14 and 13. The youngest son Walid, the son relevant to this matter, was born on 5 June 1990, and hence was just short of his fourteenth birthday on the day of the hearing. Walid was diagnosed in infancy with bronchial asthma by Dr A Kumar, the family general practitioner, and that diagnosis remains extant to this day. In 1992, Mrs Abdallah claimed, and was granted, Child Disability Allowance (“CDA”) for Walid under the legislation extant at the time.
5. That legislation based eligibility for such an allowance on the care provided and the care needs of the person being cared for. In 1998, new legislation was enacted which provides for the measurement of functional ability in a number of discrete areas of the person being cared for as compared to other children of the same age. Section 953(1) of the Social Security Act 1991 (“the Act”) sets out the requirements for eligibility and states relevantly:
“953.(1) A person is qualified for carer allowance for a disabled child (the care receiver) if:
(a) the care receiver is a dependent child (disregarding subsection 5(3)) of the person; and
(b) the carer is an Australian residence; and
(c) either of the following applies:
(i)the disability from which the care receiver is suffering is declared, under subsection 38D(3), to be a recognised disability for the purposes of this section;
(ii)the care receiver has been assessed and rated under the Child Disability Assessment Tool and given a positive score under that assessment tool not less than 1, being a score calculated on the basis of a professional questionnaire score greater then 0: and
(d)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from:
(i) …
(ii)if the person is not a member of a couple – the person or the person together with another person;
in a private home that is the residence of the person and the care receiver; and
(f) the person is an Australian resident.”
6. The Child Disability Assessment Tool (“CDAT”) forms part of the Child Disability Assessment Determination 2001 (“CDAD”) and is authorised under section 38D of the Act, which states:
“38D(1) The Secretary may, by determination in writing:
(a) devise a test for assessing the functional ability, behaviour and special care needs of a person aged under 16; and
(b) provide a method for rating the person by giving him or her, on the basis of the results of the test, a score in accordance with a scale of the kind described in subsection (2).
38D(2) The scale referred to in subsection (1) is a scale that provides for a range of negative and positive scores and under which:
(a) a negative score indicates an absence of a physical, intellectual or psychiatric disability at a significant level; and
(b) a positive score indicates the presence of a physical, intellectual or psychiatric disability at a significant level.
38D(3) The determination may, in addition, declare that a physical, intellectual or psychiatric disability specified in the determination is a recognised disability for the purposes of section 953.
38D(4) The determination, in so far as it provides (in accordance with subsections (1) and (2)) for a test for assessing, and a method for rating, the functional ability, behaviour and special care needs of a person aged under 16 is, in this Act, referred to as the Child Disability Assessment Tool.
38D(5) The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.”
7. For the purposes of section 953, the determination may, in addition, declare that a physical, intellectual or psychiatric disability specified within that determination (Schedule 3 refers) is a recognised disability. Bronchial asthma is not so specified and thus the criteria and procedure in section 953(1)(c)(ii) must be followed in that the care receiver must be assessed and rated under the CDAT. This test must therefore be applied to Walid.
8. Following an amendment to the legislation in 1998, recipients at that time of CDA had a five year period of grace before the review of their eligibility under the new legislation. Accordingly Mrs Abdallah sought review in August 2003, completing the questionnaire giving her opinions as to the functional abilities of her son compared to other children of the same age. Dr Kumar provided three responses to the professional questionnaires, and based on those responses, in accordance with the directions in section 953(1) of the Act, the Respondent determined on 15 August 2003 that Walid did not satisfy the criteria and hence Mrs Abdallah was no longer eligible for the Carer Allowance.
9. Dr Kumar completed his three reports at the time of the review or shortly thereafter, the relevant dates being 15 August 2003, 11 September 2003 and 30 October 2003. None of these questionnaires, when applied to the scoring system defined in CDAT resulted in a score greater than zero, and hence the Respondent considered the test to be complete, leading to the decision that Mrs Abdallah was no longer qualified.
10. CDAD 2001 is quite specific at Part 2.2(3) that should the Secretary, or in this case the Tribunal, find that the professional questionnaire, completed as it must be by a suitably qualified health professional, is not an accurate reflection of the functional ability of the child as compared to children of the same age, then the Respondent must obtain another report from a health professional. Decisions in Re Secretary, Department of Family and Community Services and Stewart [2001] AATA 50 and Re Secretary, Department of Family and Community Services and Davies [2001] AATA 101 provide recent authorities to address and confirm this interpretation. In practical terms, and following those decisions, this means that this Tribunal has no authority to put aside the professional responses of Dr Kumar, should that be found appropriate, other than to direct a second report from a health professional as defined.
EVIDENCE
11. Mrs Abdallah is in receipt of parenting payment single and family benefits tax, and she has a health care card for medication under the PBS scheme. Her evidence is that the father of the children provides no financial support. All the boys live with her, the youngest two attending a local high school some 10 minutes walk from home. The eldest boy attends a College of Technical and Further Education (“TAFE”), the second boy is a casual employee of Autobarn. Neither provides financial assistance to Mrs Abdallah.
12. In the questionnaire completed as part of the review process, Mrs Abdallah generally assessed Walid’s functional ability as “the same as most other children of the same age”. These responses, confirmed in oral evidence, applied to listening, reading, and understanding, engaging in conversation, writing skills, hygiene and grooming, and social and community skills, although she also said he was at times irritable or nervous in the latter environment. Mrs Abdallah stated that Walid could usually, but not always, appropriately dress himself, and she had to assist him because of wheezing, a condition she stated was present each morning.
13. Mrs Abdallah gave evidence that Walid has an asthma attack about three times in a month, an attack that might last 2 to 3 days, and keep him from school. Until this year, she walked Walid and his older brother to school each day, but there was no evident reason as to why she felt this necessary. She does not let him ride a bike, seemingly because it might bring on an asthma attack. She has the same attitude to sport – “I don’t want him to play sport. He does not play organised sport”. She will not allow him to camp. She was not aware of what sport or activities he might engage in at school during recesses. She considered he has no academic problems.
14. Walid uses a puffer before leaving for school and when required a nebulizer. He takes no medication to school, because it is inappropriate, it might embarrass Walid in front of other pupils and because she is concerned at a possible lack of control over its use. Whilst she can obtain his medication using the health care card, that does not cover the additional costs of special bed linen and a dust removing spray.
15. Two components of the questionnaire had no written responses, namely physical skills and behaviour. Mrs Abdallah informed the Tribunal that she thought the former, which includes ball skills, to be about the same as other children, but his behaviour less so, suggesting that an appropriate response box to the question would be “such that a child cannot be left with anyone other than the parents or outside the parent’s home”. In response to the Tribunal, she considered her assessment in this regard to be appropriate, albeit Walid was nearly 14 years of age, and attends school each day. In essence, she does not trust anyone else to monitor his medication. Dr Kumar has been the family doctor for about 19 years, and Mrs Abdallah stated that Walid sees him every Friday, and on occasions twice a week in the event of concerns as to his asthma.
16. Dr Kumar was called by Mrs Abdallah to give evidence by telephone. He confirmed he had been the family doctor for at least 15 years. He agreed that he had written three professional questionnaire responses as earlier referred to, and that his diagnosis of bronchial asthma of moderate severity had been consistent in those reports. In respect of the frequency (in days per year) when Walid had been affected by asthma, which varied from 24 to 51 (report of 2 September 2003) to 52 or more (report of 24 October 2003), Dr Kumar stated “as you would probably realise, how often a child gets affected by asthma is a very subjective sort of decision which depends a lot more on the …given by the patient and the patient’s mother because I don’t always see him when he has an asthma (attack)”.
17. Dr Kumar gave evidence that he sees Walid on average about once a month. There is no set routine, the occasions being when Walid is brought to the surgery by his mother. Dr Kumar confirmed medication as inhaler as and when required, using a nebulizer in the event of aggravation of asthma.
18. The responses by Dr Kumar (marking the relevant boxes with a cross) in the health professional questionnaires were quite consistent throughout the three reports. They were consistent in opining that Walid’s functional ability is the same as other children of the same age. The third report also showed ticks in other, more restrictive, boxes. Dr Kumar confirmed to the Tribunal, as he had earlier done to Centrelink, that these entries were not of his making. Their origin is unknown.
19. Dr Kumar advised the Tribunal that “I don’t remember advising her (Mrs Abdallah) that her son should not play sport.” He further stated that in his opinion “a child with asthma should be able to play sport”.
ANALYSIS AND FINDINGS
20. In summing up her situation, Mrs Abdallah emphasised her concern at the ongoing need for financial assistance to enable her to look after Walid. She expressed concern that his grandfather had died from asthma, and that the life of Walid could be in jeopardy if not given proper treatment. She considered Walid to be entitled to payment from social security.
21. The Respondent submitted that Walid did not meet the criteria in the legislation as a care receiver. Asthma was not a recognised disability under section 38D(3) of the Act, and hence the assessment must be conducted under the provisions of the CDAT, wherein the score calculated on the basis of the health professional responses must be greater than zero. In this matter, all three of the reports by Dr Kumar had resulted in a negative score, namely -0.95, -0.11 and -1 respectively.
22. In summary, the Respondent submitted that the test under CDAT 2001 has been properly completed, and in turn, Mrs Abdallah cannot be eligible for the Carer Allowance. The Respondent further submitted that the reports by Dr Kumar satisfied the requirements of the professional questionnaire as being an accurate reflection of Walid’s functional ability.
23. In the view of the Tribunal, the assessment by Mrs Abdallah of the functional ability of Walid, initially in the review questionnaire and then in oral evidence, which generally accorded with other children of the same age, is supported on the evidence. In almost all categories, Walid is seen as being as functionally able as other children. He is able to attend school, he has no academic problems, and whilst his mother assists him at times, he is relatively self sufficient to the level one might expect of a 13 year old boy.
24. The reports by Dr Kumar are consistent. When scored, none of them resulted in a score greater than zero. Whilst Dr Kumar may have some reservations as to the type of test now required, as attributed to Mrs Abdallah in earlier proceedings, he gave no such reservation in his evidence. Further his evidence was that he saw Walid about monthly as against the weekly visits claimed by Mrs Abdallah, and he was in disagreement that Walid should be prevented from playing sport.
25. On the evidence before the Tribunal, both that of Mrs Abdallah and Dr Kumar, Walid does not meet the criteria as a care receiver and thus his mother cannot meet the criteria for Carer Allowance. The Tribunal acknowledges her concerns at the financial implications on respect of caring for Walid, but the conditions within the legislation are quite specific.
26. In reaching this decision, the Tribunal accepts that the reports and assessments by Dr Kumar are an accurate reflection of Walid’s functional ability. He has been his treating doctor since birth, and his reports are consistent. Were the Tribunal to find otherwise, it would be necessary under the legislation to direct the Respondent to obtain another health professional report, as was done in Re Stewart (supra) and Re Davies (supra). That is not the case in this matter, nor are the circumstances in those decisions relevant.
DECISION
27. The Tribunal therefore affirms the decision of the SSAT of 18 November 2003 that Mrs Abdallah is not eligible for the Carer Allowance.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO
Signed: Neil Glaser
AssociateDate of Hearing 3 June 2004
Date of Decision 6 July 2004
Representative for the Applicant Self Represented
Advocate for the Respondent Ms S Mantaring
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