Bell and Department of Family and Community Services
[2000] AATA 573
•12 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 573
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1999/200
GENERAL ADMINISTRATIVE DIVISION )
Re Jennifer Bell
Applicant
And Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal R D Fayle, Senior Member Dr Y Haslam, Member Ms S McKnight, Member
Date12 July 2000
PlacePerth
Decision The decision under review is affirmed.
........…(sgd R D Fayle)...........
Senior Member
CATCHWORDS
SOCIAL SECURITY – child disability allowance – Type 1 juvenile diabetes – rated under Child Disability Assessment Tool – whether child has particular behavioural characteristics – whether claimant's opinion in relation to child's behaviour validated in terms of Part 11 of the Tool.
Social Security Act 1991 s 952A
REASONS FOR DECISION
12 July 2000 R D Fayle, Senior Member, Dr Y Haslam and Ms S McKnight, Members
The applicant seeks review of the Social Security Appeals Tribunal ("SSAT") decision made on 31 May 1999 that she was not entitled to receive Child Disability Allowance ("CDA") in relation to her daughter Melanie who suffers from Type 1 juvenile diabetes.
Since the original decision under review the applicant has, in effect, amended her answers to two questions in the claimant's questionnaire and since the SSAT decision she has provided additional evidence from a registered Social Worker, Mrs Katrina Stratton, affirming those answers. Mr de Hoog, Manager, Advocacy and Administrative Law Team, Centrelink, represented the respondent in these proceedings. He concedes that if the Tribunal is satisfied that Mrs Stratton's evidence supports the additional answers provided by the applicant then she qualifies for CDA in relation to Melanie (Tr. p.11 lines 43-44).
The applicant was represented by Ms Chris Belcher from Welfare Rights and Advocacy Service. The applicant and Mrs Stratton gave evidence. The Tribunal had before it documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("T documents") and several exhibits were taken into evidence.
The brief history of this matter is that Melanie, who was born on 11 April 1991, was diagnosed in July 1998 with Type 1 juvenile diabetes. A claim for CDA was lodged by the applicant on 7 July 1998 (R1) after which she completed a functional assessment form on 15 July 1998 (R2) and another on 8 September 1998 (A3). Dr T W Jones, the treating specialist, completed two Treating Doctor's Reports on 2 July 1998 (T4) and 3 September 1998 (T5) respectively. The respondent determined Melanie's disability rating, assessed from the two lots of forms, using the Child Disability Assessment Determination 1988 pursuant to s952A of the Social Security Act 1991. In relation to the July 1998 questionnaires, the rating was determined to be –2.43 and in relation to the September 1998 questionnaires it was determined to be –1.09. As both these ratings were less than 1.00 the applicant did not qualify for CDA in respect of Melanie. An Authorised Review Officer reviewed the decision and affirmed the respondent's decision on 16 November 1998. The matter went to the SSAT on 23 November 1998 for hearing on 19 May 1999. The applicant had amended answers to four of her earlier statements. The SSAT did not accept all the amendments and found that on the revised statements as accepted, the rating was +0.23 which was insufficient to qualify for the CDA, not being greater than 1.00. Subsequent events have given rise to these proceedings which concern the independent validation of the applicant's responses to two of the statements, discussed below.
Essentially the matter reduces to an examination of questions 9 and 10 in Ex. A3, the Child Disability Allowance Functional Assessment form completed by Mrs Jennifer Bell on 8 September 1998 in relation to her daughter, Melanie.
If the answers given by the applicant to those two questions can be corroborated/verified by a specified person, namely, "the treating health professional who completed the questionnaire (a reference to another questionnaire), a different treating health professional or another person such as a psychologist or teacher", (see Step 11 Column 3 Action relating to Item 1 & 4) – then it is conceded by the respondent that those answers are sufficient to enable the applicant to qualify for the CDA.
Mrs Katrina Stratton gave evidence to corroborate or verify the applicant's answers to those questions. Mrs Stratton is a Social Worker employed by the Metropolitan Health Service Board attached to the Princess Margaret Hospital's child diabetes ward. Mrs Stratton wrote to the respondent (Mr CG de Hoog) on 1 February 2000. That letter is in evidence as Ex. A2.
The Tribunal accepts that on the evidence of the applicant as supported by Mrs Stratton, the answer to Question 10, Special Care Needs is validated. That question requires to following statement to be affirmed:
Child is aged over five years and requires care provided by parents more than twice each night between the hours of 10.00pm and 6.00am.
The applicant's evidence was that Melanie goes to bed about 8.00pm each evening. In September 1998, when the application was made, the applicant, just before retiring for the night, would check Melanie. This check involved feeling her face for signs of sweat and observing her hands to see if there was any signs of tremors, two indicators that Melanie may have a low blood-sugar count (hypoglycaemia) which would require for her to be woken and given some food. About mid-night each night (and more recently about 2.00am instead) the applicant carried out a blood-sugar test on Melanie. This involved taking a small sample of blood from a finger and testing it for sugar level. The procedure is carried out using a hand held instrument and apparently, is relatively painless. Melanie does not always wake up when this is done but if the count is low then she will be awoken and given something to eat. The applicant said it was necessary to wake Melanie about 3 to 4 times each week to give her something to eat because her readings were low, a phenomenon which she said occurs mainly at night. The third "care" is another blood-sugar test at about 6.00am when the applicant first rises in the morning. She routinely is an early riser. She said she couldn't sleep in if she tried! If the reading is within the appropriate levels then Melanie will remain in bed until she rises about 7.30am, has her insulin injection (administered usually by the applicant but sometimes by Mr Bell) and her (special) breakfast before going to school about 8.30am.
Mrs Stratton confirmed that in cases similar to Melanie's (Type 1 juvenile diabetes) it is necessary for the carer, before retiring for the night, to check the child for signs of low blood-sugar; to take a blood-sugar level during the night; and repeat that procedure early the following morning. If the level proved to be low then it would ordinarily be sufficient to give the child something to eat – something with sugar and carbohydrate; (refer to Mrs Stratton's evidence Tr.pp.14-15 lines 38-10, and to A2). Mr de Hoog for the respondent, submitted, in this respect, that because the latter blood-sugar test was carried out after the applicant rose at 6.00am it was not as required, before 6.00am. Whilst this may be correct in a literal sense, the Tribunal is mindful that this is a questionnaire designed to provide information across a broad spectrum of characteristics and should not be construed as black letter law. The Tribunal is of the opinion that the question does not demand that impugned level of precision and "care" given very proximate to 6.00am, before the child has woken, would qualify. In the Tribunal's opinion, such an interpretation would not distort the objective of the exercise for the assessment of a CDA.
However, in the opinion of the Tribunal, Question 9 is more problematical for the applicant. That question is headed "Behaviour" and contains 9 statements, each dealing with an aspect of what might be considered to be unsociable, obsessive, unusual or dangerous behaviour. It is preceded by "Instructions for Questions 9-10". These state:
Please indicate ALL statements that describe your child's behaviours (sic) or special care needs.
The questions should be left blank if none of the statements apply to the child.
Your response should be based on the child's behaviour when they are receiving any prescribed medication.
The Tribunal observes that the third dot point instruction above can only be a reference to Question 9 as its subject is exclusively the child's behaviour.
The applicant selected the following statement as best describing the situation with Melanie:
"Child's behaviour is such that the child cannot be left with anyone other than the parents or outside the parent's home."
The third dot point instruction (above), relating peculiarly to behaviour is not clear. What does the expression "when they are receiving any prescribed medication" mean? In the context of the questionnaire and for the purpose of ascertaining facets of the child's behaviour relevant to the grant of CDA, the Tribunal takes the view that it can only be a reference to the child's behaviour when they are on prescribed medication. For otherwise, in the context of a diabetic child requiring daily insulin injections, a literal reading of the question would be that the "receiving" of the medication is the actual act of the injection itself. That, in the Tribunal's opinion does not make sense in the context of the objective of the questionnaire. It is intended to derive information for an objective test of a child's functionality in terms of the impact of the disability/medical condition on the child and family (see Notes about Functional Assessment on page 1 of the questionnaire (A3)). If that is the purpose of the form then the particular statement might be interpreted literally as:
Child's behaviour is such that the child cannot be left with anyone other than the parents when [the child] is receiving [his/her] insulin injection. (Emphasis deliberate)
If that interpretation was open then, in a situation where a child will only trust their parents, or one or other of them, to administer insulin injections, the statement will always be satisfied. This holds even though the child's behaviour in every other respect may be quite normal. Mrs Stratton's evidence is that it is usual for children of Melanie's age to require a parent to inject them – even in a hospital situation – where, she said, when a parent is present the nurses are trained to ask the child whether they prefer their parent to give the injection; (Tr.p.23, lines 1-32). In that circumstance the behaviour of the child to require the parent to administer the injection is not the sort of behaviour to which, in the opinion of the Tribunal, the statement is directed. If the statement were put in the terms of:
[w]hen the child is on prescribed medication the child's behaviour is such that the child cannot be left with anyone other than the parents or outside the parent's home; (Emphasis deliberate)
then, based on the evidence of both the applicant and Mrs Stratton, that circumstance does not apply. The evidence is that but for Melanie's need to have her blood-sugar level checked four times each 24 hours and to receive two insulin injections at home each day (one before breakfast and the other before the evening meal), she is a fairly normal child whose only unusual characteristic is to eat something every couple of hours. She goes to school. She play with friends, albeit usually at home because the applicant wants to keep an eye on her. She participates in school sport but takes the precaution of having a "muesli bar" or something similar just before. She is conscious of her need to eat regularly and generally does so. Apparently she is aware that if she exerts herself physically then she has a special need to eat sugar and carbohydrates. The applicant does not allow Melanie to sleep over at friends' homes because of her special needs at night, not because she has behavioural problems, which she does not. But Melanie's disability does not prevent her from being out of her parent's immediate care during the day or even for periods at night for that matter. Indeed the evidence of the applicant is that Melanie has been taught to administer her own blood-sugar level test and can (Tr. p.37, lines 31-34). And Mrs Stratton admitted when questioned by Mr de Hoog, that a child of Melanie's age is capable of carrying out her own blood-sugar test and interpreting the results such that if in doubt they would arrange for someone to contact a parent; (Tr. p.27, lines.17-25). The transcript records the following question and answer;
Mrs McKnight: … in relation to Melanie's behaviour while she's at school and generally when she's with other people, would you see her as being difficult or different in any particular way from, you know, the children you typically see?--- No. Not in her social behaviour, no. (Tr. p28, lines 2-45)
Mr Fayle: So [Melanie] hasn't struck you as being an extraordinary patient or anything of that nature?---No, she's a normal 9 year old with diabetes.
All right. Quite a likeable kid, is she?---Yeah. (Tr. p.30, lines 19-22)
The statement in question is not qualified by a time period (i.e. "cannot be left for a time period"), so the Tribunal takes it to mean "ever or for any lengthy period during the day or night" and clearly that does not apply to Melanie. She can be, and is, left during the day, in circumstances where it would be regarded as appropriate to leave children of her age – for example, at school, in a trusted friend's care etc. Her behaviour in these circumstances cannot be considered to be "such that she cannot [ever] be left with anyone other that the parent or outside the parent's home".
For those reasons the Tribunal is satisfied that the rating assessed pursuant to the Tool remains below 1.00. That is, the statement made by the applicant in response to Question 10 (Ex.A3) has not been validated by a different treating health professional or another person (namely Mrs Stratton) in terms of Item 4 of Step 11 of Schedule 2, Rating Method. Therefore, the prerequisite conditions to qualify the applicant for CDA in relation to Melanie are not satisfied.
Pursuant to s43 of the Administrative Appeals Tribunal Act 1995, the decision under review is affirmed.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of R D Fayle, Senior Member, Dr Y Haslam and Ms S McKnight, Members
Signed:
..........................(sgd S Railton)............................
AssociateDate of Hearing 21 June 2000
Date of Decision 12 July 2000
Counsel for the Applicant Ms C Belcher
Solicitor for the Applicant Welfare Rights and Advocacy Service
Counsel for the Respondent Mr C G de HoogSolicitor for the Respondent Advocacy and Administrative Law Team, Centrelink
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