Alameddine and Secretary to the Department of Family and Community Services
[2000] AATA 1164
•12 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1164
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº N99/357
GENERAL ADMINISTRATIVE DIVISION)
Re: SAMIH ALAMEDDINE
Applicant
And: SECRETARY TO THE
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Date: 12 December 2000
Place:Sydney
Decision: The decision under review is affirmed.
(sgd) H.E. Hallowes
Senior Member
SOCIAL SECURITY — child disability allowance — asthma — assessed and rated under Child Disability Assessment Tool 1998 — whether positive score of not less than 1 — whether questionnaire completed by a treating health professional accurate reflection of child's functional ability — child's behaviour and special care needs
PRACTICE AND PROCEDURE — section 37 documents
Administrative Appeals Tribunal Act 1975 ss.34, 37
Social Security Act 1991 ss.952, 952A, 953, 954
Child Disability Assessment Determination 1998
Re Gibbons and Secretary, Department of Family and Community Services
[1999] AATA 994
Re Brammer and Secretary to the Department of Family and Community Services
[2000] AATA 310
REASONS FOR DECISION
12 December 2000 Mrs H.E. Hallowes, Senior Member
This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 2 February 1999. The SSAT recorded that it was reviewing a decision of a delegate of the Secretary who rejected Ms Alameddine's claim, lodged on 6 July 1998, that she was entitled to be paid child disability allowance ("CDA") in respect of her son Johann, who was born on 2 June 1990. That decision was affirmed by an authorised review officer ("ARO") on 26 November 1998. The Tribunal notes that Ms Alameddine also lodged a further claim for CDA on 20 November 1998 which was rejected on the same day and which was also considered by the ARO but not apparently by the SSAT.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") ("the AAT Act"), together with further material lodged by both parties at the hearing. During the course of the hearing, Ms Alameddine requested that she have an opportunity to obtain a further medical report from Dr L. Schachter, physician, who had treated Johann for his asthma in 1998 but who had since left The Asthma Centre where that treatment took place. The Tribunal had before it five reports from Dr Schachter with respect to Johann's treatment for his asthma during 1998. The Tribunal gave Ms Alameddine the opportunity to lodge any further reports and an opportunity was provided to both parties to make further submissions in writing. Further submissions were made by both Ms M. Buckley, an advocate with Centrelink, who appeared for the Secretary at the hearing, and Ms Alameddine, who represented herself at the hearing. Ms Alameddine provided a report from Dr C. Lennings, psychologist, dated 17 July 2000. She advised that she had been unable to obtain a further report from Dr Schachter.
Considerable delay occurred in the listing of this matter for hearing due to non-attendance by Ms Alameddine at conferences held pursuant to section 34 of the AAT Act and Ms Alameddine's own medical condition, and action she was taking in the District Court of New South Wales to "get her son back". The hearing was ultimately held with Ms Alameddine appearing by way of mobile telephone.
As indicated above, Ms Alameddine lodged a claim for CDA on 6 July 1998. She advised that Johann had had asthma since he was 4½ years old and that Dr Schachter was Johann's treating specialist. She outlined the medication Johann was prescribed, which she gave him using a "spacer". She indicated that Johann had been absent from school somewhere between 1 to 10 days in the last 12 months. His asthma attacks occur less than 6 weeks apart and he requires medication every night. His symptoms occur on most days. In a written statement Ms Alameddine advised that Johann suffers from many viruses, flus and colds, and that she was constantly looking after him.
The Tribunal must consider Ms Alameddine's entitlement to be paid CDA at the time she lodged her claim. The documents include brief medical reports with respect to Johann's asthma from the Royal Prince Alfred Hospital, together with a treating health professional's responses to the questionnaire under the Child Disability Assessment Determination 1998 ("the Tool") which a decision-maker must apply in determining whether a young person is a disabled child.
The following provisions of the Social Security Act 1991 ("the Act") apply with respect to whether Ms Alameddine is qualified to be paid CDA. The relevant legislation came into effect on 1 July 1998, very shortly before Ms Alameddine lodged her claim:
952. Subject to subsection 953, a young person is a disabled child if:
(a)the young person:
(i)has a physical, intellectual or psychiatric disability; and
(ii)is likely to suffer from the disability permanently or for an extended period; and
(b)a determination of the Secretary under section 952A is in force and one of the following conditions applies:
(i)under the determination, the disability is declared to be a recognised disability for the purposes of this section;
(ii)the young person has been assessed and rated under the Child Disability Assessment Tool and has been given a positive score of not less that 1.
952A.(1) The Secretary may, by determination in writing:
(a)devise a test for assessing a young person's functional ability, emotional state, behaviour and special care needs; and
(b)provide a method for rating the young 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).
. . .
953. A disabled child is a CDA child of a person if:
(a)family allowance is payable to the person for the disabled child; or
(b). . .
954.(1) A person is qualified for child disability allowance for a young person if:
(a)the young person is a CDA child of the person; and
(b)because of the disability from which he or she is suffering, the young person receives care and attention on a daily basis from:
(i)if a person is a member of a couple — the person or the person's partner; or
(ii)if the person is not a member of a couple — the person;
in a private home that is the residence of the person and the young person.
. . .
The Tribunal notes that the relevant legislation has now been repealed and new provisions substituted.
In introducing amendments to the Act concerning CDA in 1988, the Honourable Phillip Ruddock, the Minister representing the Minister for Social Security in the House of Representatives, said with respect to the Bill:
Mr Speaker, the Bill contains amendments that introduce significant reforms in the area of child disability allowance. A simpler assessment process, involving a Child Disability Assessment Tool, will be introduced for use in relation to all new claims for child disability allowance from July 1 1998. The Assessment Tool will measure the impact of a child's disability on his/her functional ability in communication, mobility, self-care and community living skills against developmental milestones. It will also assess a child's behaviour, emotional state and special care needs.
The use of the Assessment Tool will provide a simpler, more objective means of assessing eligibility for child disability allowance than the current criterion of "substantially more care and attention". It will provide a more objective method of assessment for parents and treating medical professionals, will minimise the subjectivity and inconsistency in the current criteria, will reduce the number of reviews and appeals, and will increase the level of understanding of the program by staff, parents and the medical profession. Parents with very disabled children have been concerned that the child disability allowance payment has been seriously compromised over recent years.
The Tribunal in Re Gibbons and Secretary, Department of Family and Community Services [1999] AATA 994 said:
. . .
The present legislation may provide a more objective method of assessment for parents and treating medical professionals but whether it reduces the number of reviews remains to be seen. Certainly the level of understanding of the program by parents and carers will not be increased unless the application of the Child Disability Assessment Tool ("the CDA Tool") devised for assessing a young person's functional ability, emotional state, behaviour and special care needs is spelt out so that a parent or carer may understand how a treating health professional's responses and their responses to the questionnaires in the CDA Tool are translated into a score. . . .
A copy of the Tool, including the questionnaire a treating health professional is required to complete, and the scoring with respect to Johann under the Tool based on Dr A. Johnson's questionnaire which was amongst the documents, were lodged with the Tribunal by Ms Buckley when Ms Buckley lodged the Secretary's statement of facts and contentions with the Tribunal. The Tribunal recommends that that material should be provided to the Tribunal and to an applicant as part of the documents. Dr Johnson is also a physician at The Asthma Centre.
Dr Johnson completed his treating health professional's questionnaire with respect to Johann on 17 November 1998. He diagnosed asthma and indicated that the condition was moderately severe in Johann's case. In completing the functional assessment of Johann and in indicating Johann's best abilities, he ticked boxes to indicate Johann's best ability with respect to Receptive language skills (question 7); Expressive language skills (question 8); Feeding and mealtime skills (9); Hygiene and grooming skills (question 10); Dressing skills (question 11); Social and community skills (question 12); Mobility — fine motor skills (question 13), and Mobility — gross motor skills (question 14). He did not tick any boxes with respect to Johann's Behaviour and Special care needs (questions 15 and 16) where the medical practitioner is asked to tick any box which may apply.
The documents do not include copies of letters advising Ms Alameddine of the decisions made in respect of her claims, but the documents do include a copy of a letter from the ARO advising Ms Alameddine that he had decided not to change the decision. The ARO referred to the legislation above. Unfortunately, Ms Alameddine will probably find these reasons for decision as difficult to understand as the rest of the documents which were before the Tribunal, including the letter from the ARO. The ARO noted that as a result of
The responses to the questions that you and Dr Johnson have provided have been input into the CDAT [Child Disability Assessment Tool]. A rating of less than 1 has been obtained and as a consequence your claim for full CDA has been rejected.
No explanation was given to Ms Alameddine how that rating was arrived at nor why her responses to a questionnaire were used. Certainly the Tribunal did not have before it a copy of a questionnaire under the Tool which Ms Alameddine may have completed although she had provided information on her two claim forms. It appears from the documents that the ARO may have been referring to documentation Ms Alameddine completed with her claim form dated July 1998, but that claim form was with respect to qualification for CDA under the legislation before it was amended on 1 July 1998. As with the applicant in Re Brammer and Secretary to the Department of Family and Community Services [2000] AATA 310, Ms Alameddine appears to have been given incorrect forms to fill in.
In Re Gibbons the Tribunal said that it was unclear as to why the ARO took into account a questionnaire completed by Ms Gibbons, because under Part 2 of the Tool the Testing method provided as follows:
2.2
Testing method(1)The test for assessing a young person's functional ability, emotional state, behaviour and special care needs is set out in this section.
(2)The test consists of the 2 questionnaires mentioned in section 2.1.
(3)The following steps are carried out for the test:
the Secretary must be satisfied that a questionnaire set out in Part 2 of Schedule 1 completed by a treating health professional is an accurate reflection of the young person's functional ability, emotional state, behaviour and special care needs;
a score must be calculated:
using the rating method mentioned in section 2.3; and
on the basis of the results of the questionnaire.
(4)If the Secretary is not satisfied that the questionnaire completed by the treating health professional is an accurate reflection of the young person's functional ability, emotional state, behaviour and special care needs, the Secretary must ask for a replacement questionnaire to be completed by another treating health professional.
(5)If the score calculated in paragraph (3)(b) is not greater than 0, the test is completed.
(6)If the score calculated in paragraph (3)(b) is greater than 0, the test is completed only if a questionnaire set out in Part 1 of Schedule 1 is completed by the claimant.
(7)If the score calculated in paragraph (3)(b) is greater than 0 and a questionnaire set out in Part 1 of Schedule 1 has been completed by the claimant, a score must be calculated on the basis of the results of the questionnaire using the rating method mentioned in section 2.3.
The Rating method referred to in (3)(b)(i) provided:
2.3 Rating method
(1)Steps 1 to 12 in Schedule 2 set out the method for rating a young person, on the basis of the results of each questionnaire completed about the young person.
(2)The method gives the young person a score that:
(a)is in accordance with the scale mentioned in subsection 952A(2) of the Act; and
(b)determines whether the young person meets the condition in subparagraph 952(b)(ii) of the Act.
For all calculations in Schedule 2, numbers are to be rounded to 2 decimal places.
The SSAT did not give Ms Alameddine any explanation as to how Johann had been assessed other than to say that his rating was less than 1.
Johann's score under the Tool was –5.60. Ms Buckley told the Tribunal that the Secretary does not dispute that Johann has a physical disability from which he is likely to suffer permanently, but, although Ms Alameddine had provided further medical reports with respect to Johann's asthma and letters describing Johann's behavioural problems from his school, she put to the Tribunal that Ms Alameddine had not established that Dr Johnson's assessment, in which he had not ticked any of the boxes in question 15 Behaviour and question 16 Special care needs, was not an accurate assessment of Johann's behaviour and special care needs. She put to the Tribunal that it should affirm the decision under review.
Having considered Dr Johnson's responses to the questionnaire and the scoring under the Tool, the Tribunal is satisfied that the treating health professional's score has been correctly calculated, and is –5.60. In Re Gibbons the Tribunal had the advantage of hearing evidence from Ms F. Mallise, director of Disability Policy and Carer Section of the department, who outlined to the Tribunal how the Tool was developed. At paragraph 13 of its reasons for decision in Re Gibbons the Tribunal said:
13. Ms Mallise explained that, applying "the Table", if a child was functioning at his chronological age he would score zero. If he scored above his chronological age he would be scored in the negative. If he was functioning below his chronological age he would score in the positive. As indicated from the reproduction of part of Schedule 2 above, the first eight statements in the questionnaire are concerned with comparing the age at which a child is functioning with the child's chronological age. Ms Mallise told the Tribunal that the first eight statements in the questionnaire are descriptive of parts of a developmental sequence used to determine the relationship between the child's functional age and his or her chronological age.
14. If a child scores zero in response to the statements with respect to the child's behaviour and special care needs, Ms Mallise said it meant that they do not have any behavioural or special care needs. . . .
In giving evidence to the Tribunal Ms Alameddine acknowledged that, although Dr Johnson had only examined Johann on one occasion, his responses to the questionnaire correctly reflected Johann's functional abilities. She had been present when Dr Johnson completed the questionnaire and he had asked her and Johann questions. She is however concerned about Johann's behavioural problems at school. She understands that he yells, swears and fights, storming out of class. He sometimes leaves it too late to go to the toilet and his clothes may smell of urine. Ms Alameddine said that Johann will not take his medication on his own and she has had to go to his school to give it to him, which was "a big hassle". The Tribunal notes that Johann has not been in her care since 25 May 1999.
Ms Alameddine said that, when Johann was originally diagnosed with asthma at the age of 4 years, he attended a doctor who prescribed steroids for him every day. She therefore took Johann to The Asthma Centre for treatment. Johann bites his nails. She described him as being "hypo". She used to drive to school to ensure that he ate his lunch. When commenting on Dr Johnson's responses to the questionnaire and the consultation during which he completed the questionnaire, Ms Alameddine said in response to a question as to whether she had taken the reports with respect to Johann's behaviour from the school principal, which were before the Tribunal, to Dr Johnson, she replied:
No, because I think he filled out that treating doctor's thing before he got suspended. That's why I got upset with that doctor because he didn't listen to me when I said I wanted to change the medication because he was having a lot of behavioural problems at school.
Turning to section 952 of the Act, paragraph (b)(ii), Johann has been assessed and rated under the Tool after Dr Johnson completed the treating health professional's questionnaire. The questionnaire is to be completed by a legally qualified medical practitioner who has supervised the child's treatment. It is not clear to the Tribunal why Dr Johnson completed the form. It appears from the material before the Tribunal that he is one of a number of doctors at The Asthma Centre who has treated Johann, including Dr K. Yan and Dr Schachter, who was treating Johann until 1998 but who apparently left The Asthma Centre before Ms Alameddine was provided with the correct documentation to complete in respect of her claim for CDA.
Dr Johnson noted in a report dated 22 October 1998 to Dr D. Leiberman, presumably Johann's treating general practitioner, that he had reviewed Johann on 21 October 1998. Dr Johnson completed the questionnaire on 17 November 1998 and the Tribunal is therefore satisfied that he saw Johann on more than the one occasion recalled by Ms Alameddine. However, it is important that the treating health professional with the best knowledge of a child and the child's functional ability and behaviour is asked to complete the questionnaire. After November, it appears that Dr Yan took over Johann's treatment. It must be difficult for people such as Ms Alameddine, who are in the public health system, to arrange to see the same medical practitioner on a regular basis when they attend public hospitals or clinics, and this in turn should alert decision-makers to look very careful at whether the treating health professional's questionnaire is an accurate reflection of a young person's functional ability, emotional state, behaviour, and special care needs (see Testing method 2.2(3)(a) under the Tool).
The Tribunal must apply the Tool in order to decide if Johann is a disabled child and thus a CDA child of Ms Alameddine. The only relevance of the other medical evidence before the Tribunal is as to whether Dr Johnson's answers to the questionnaire are an accurate reflection of Johann's functional abilities, behaviour and special care needs. Most of the other material before the Tribunal is with respect to diagnosis and treatment rather than being relevant to that question. Ms Alameddine provided the Tribunal with a report from Dr Lennings (see paragraph 2 above), but he first saw Johann in September 1999, well after the period with which the Tribunal is concerned and after Johann had left Ms Alameddine's care. The Tribunal notes that Dr Lennings found Johann to be emotionally disturbed and that he reported Johann has difficulty handling frustration and aggression. Much of Dr Lenning's report is with respect to techniques to assist Johann to deal with his frustration and aggression and his underlying sadness. It raises questions in the Tribunal's mind as to the accuracy of Dr Johnson's responses to questions 15 and 16 in the questionnaire, but, on the balance of probabilities, Dr Johnson would have had the clinical records of The Asthma Centre with respect to Johann before him when he examined Johann and discussed the answers to the questions with Ms Alameddine. Dr Lennings's report focuses on Johann's "rather erratic course" during the 10 months before his report dated 17 July 2000, which is also outside the period the Tribunal must consider.
There is no box under question 16 Special care needs for a treating health professional to tick with respect to the type of equipment Johann requires to deliver his medication and it appears that, despite his apparent behaviour at school and with his carers, Johann has not been consistently uncooperative and disruptive during treatment or assessment. Three of the boxes under question 15 Behaviour only relate to behaviour during treatment or assessment. Ms Alameddine did not give evidence suggesting that Johann is obsessional in his behaviour nor that Johann demonstrates self-injurious behaviour.
Even if Dr Johnson had ticked one or two of the boxes under question 15 Behaviour, it would not offset the score with respect to Johann's functional abilities such that a score of greater than 0 would be reached and a questionnaire by Ms Alameddine required (see Testing method 2.2(6)). In all these circumstances the Tribunal has come to the conclusion that it is satisfied that the questionnaire completed by Dr Johnson is an accurate reflection of Johann's functional ability, emotional state, behaviour and special care needs. If the Tribunal was not so satisfied, a replacement questionnaire completed by another treating health professional must be obtained. The Tribunal is further satisfied that, as Johann's score is not greater than 0, the test is completed and it therefore finds that Johann is not a disabled child under section 952 of the Act and Ms Alameddine is not qualified for CDA following her claims for that payment in 1998.
In paragraph 13 of her statement of facts and contentions on behalf of the Secretary, Ms Buckley contended that, as Ms Alameddine had not provided a replacement functional assessment questionnaire completed by another treating health professional, Dr Johnson's report should be accepted as an accurate reflection of Johann's functional ability, emotional state, behaviour and special care needs. The Tribunal notes that the Tool provides that it is the Secretary who must ask for a replacement questionnaire to be completed by another treating health professional.
It is for these reasons that the Tribunal will affirm the decision under review while expressing its sympathy for Ms Alameddine and Johann with respect to the difficulties that they are both encountering.
I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member(sgd) Catherine Thomas
Personal AssistantDate of Hearing: 11.07.00
Date of Decision: 12.12.00
Solicitor for the Applicant: NIL —SELF-REPRESENTED
Solicitor for the Respondent: Ms M. Buckley, Advocate with Centrelink
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