Beddoe and Secretary, Department of Family and Community Services

[2004] AATA 767

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 767

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/334

GENERAL ADMINISTRATIVE  DIVISION

Re:LYNDA CHRISTINE BEDDOE

Applicant

And:SECRETARY, DEPARTMENT OF

FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             16 July 2004

Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G. D. Friedman

Member

SOCIAL SECURITY ‑ carer allowance ‑ child suffering from depression and anxiety disorder ‑ whether a recognised disability ‑ rating under Child Disability Assessment Tool

Social Security Act 1991 s953(1)

REASONS FOR DECISION

16 July 2004  G.D. Friedman, Member

1.      This is an application by Lynda Christine Beddoe (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 25 February 2004.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 11 December 2003 to refuse the applicant’s claim for carer allowance in respect of her daughter Nicole Jane Stainsby (Nicole) (born on 10 June 1994) because Nicole did not have a recognised disability for the purposes of social security legislation.

2. At the hearing on 16 July 2004 the applicant represented herself, and Mr D. Perdon, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent). The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T29) plus three exhibits (Exhibits A1 to A3) filed on behalf of the applicant.

BACKGROUND

3.      On 22 October 2003 the applicant lodged a claim for carer allowance in respect of Nicole.  In support of her application the applicant lodged Treating Doctor’s Reports dated 21 October 2003 and 30 September 2003 by Dr M. Gordon, child psychiatrist, which stated that Nicole suffered from anxiety and depression.

4.      On 22 October 2003 Centrelink refused the claim because Nicole’s score for the Treating Doctor’s Report was -2.94 using the Child Disability Assessment Tool (CDAT).  On 11 November 2003 the applicant provided further information including another Treating Doctor’s Report dated 2 November 2003, a neuropsychological report from New York University’s ‑ Mount Sinai Comprehensive Epilepsy Centre, and a school report.  Centrelink did not change its decision.  On 11 December 2003 an authorised review officer affirmed the decision.    

5.      On 22 December 2003 the applicant sought review of the authorised review officer’s decision by the SSAT.  Following the SSAT decision, the applicant lodged an application with the Tribunal on 12 March 2004 for review of the decision.

6.      The issues before the Tribunal are whether Nicole has a recognised disability, and whether she has the required qualifying score using the CDAT.

EVIDENCE

7.      The applicant gave oral evidence that Nicole has had behavioural and psychological problems for several years, including difficulty sleeping and problems interacting with other children at school.  The applicant told the Tribunal that Nicole is bright academically but is depressed and anxious, resulting in threats of self‑harm.  The applicant stated that Nicole has been seeing Dr Gordon since August 2003 and has benefited from these consultations.

8.      In the Treating Doctor’s Report dated 21 October 2003 Dr Gordon provided a treating health professional (THP) questionnaire, and a written report dated 30 September 2003.  The THP was rated under the CDAT as negative (-2.94).  A further THP report dated 2 November 2003 was rated under the CDAT as 0.00. 

9.      In a written report dated 30 April 2004 (Exhibit A1) Dr Gordon stated:

…

It appeared to me that Nicole was a bright girl suffering with anxiety and depressive symptoms in the context of complex environmental factors such as the bullying at school.  I have offered supportive, conjoint therapy with Nicole and her mother focusing on the anxiety and depressive symptoms in her presentation.

Dr Gordon noted that there had been some settling of her symptoms since the start of term 2, 2004 with an associated reduction in bullying at school.

10.     In a written report dated 18 May 2004 (Exhibit A2) Dr Gordon stated that the applicant reported Nicole’s ongoing problems interacting with other children at school.  He said that the applicant is extremely involved in Nicole’s life, and that at times the applicant has daily contact with him regarding her concerns about Nicole’s behaviour and incidents at school.  Dr Gordon noted that the applicant has indicated that a great deal of her time is taken up with the care of Nicole.

11.     In a written statement dated 8 July 2004 (Exhibit A3) Dr J. Dickman, Nicole’s general practitioner, stated that she has chronic paronychia secondary to chronic nail‑biting.  The applicant produced photographs showing that Nicole bites her nails and fingers, causing infection.  The applicant stated that recent medical research has suggested that Nicole’s anxiety and depression, and her behavioural problems, may be related to developmental issues caused by a condition affecting the cerebella, or base of the brain.  The applicant explained that she is investigating the possibility of seeking treatment involving an exercise program.

12.     In respect of the THP questionnaire, the applicant noted that Dr Gordon would have assessed Nicole’s behaviour as meeting the criteria concerning self‑injurious behaviour such as head banging or hand biting, but that Nicole did not display these symptoms during consultations with Dr Gordon.  

CONSIDERATION OF THE ISSUES

13. Section 952 of the Social Security Act 1991 (the Act) defines a disabled child as a child under 16 years who has a physical, intellectual or psychiatric disability and is likely to suffer from that disability for an extended period of time.  Section 953 of the Act sets out the criteria for carer allowance:

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 care receiver is an Australian resident; 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 than 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)if the person is a member of a couple—the person, the person’s partner or the person together with another person (whether or not the person’s partner); or

(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.

The term recognised disability is a physical, intellectual or psychiatric disability specified in Schedule 3 of the Child Disability Assessment Determination 2001 (as amended by the Child Disability Assessment Determination 2003) (the CDAD). 

14.     In the alternative, Nicole must be assessed using the CDAT as described in Part 2 of the CDAD and given a score of not less than +1.00, being a score calculated on the basis of a THP questionnaire score greater than 0.00 (s 953(1)(c)(ii) of the Act).

15.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing.

16.     On the basis of the medical evidence the Tribunal finds that Nicole suffers from anxiety and depressive symptoms, neither of which is a recognised disability under Schedule 3 of the CDAD (s 953(1)(c)(i) of the Act).

17. The Tribunal notes that Dr Gordon has had close contact with the applicant and Nicole since August 2003, and he has completed two THP questionnaires which show a CDAT rating of zero or less. Consequently, further validation of the rating is not required, and the Tribunal finds that Nicole (the care receiver) does not satisfy s 953(1)(c)(ii) of the Act.

18.     For these reasons the Tribunal finds that the applicant does not satisfy the criteria for carer allowance.

DECISION

19.     For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  16 July 2004

Date of decision:  16 July 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr D. Perdon, Centrelink