Bellchambers and Department of Family and Community Services

[2002] AATA 622

DECISION AND REASONS FOR DECISION [2002] AATA 622

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2001/847

GENERAL DIVISION         )          

Re      Kathy Bellchambers         

Applicant

And    Secretary, Department of Family and Community Services         

Respondent

DECISION

Tribunal       Ms SM Bullock, Senior Member Mr S Webb, Member

Date17 July 2002

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No N2001/847
  )  
GENERAL DIVISION   )

Re:     Kathy Bellchambers

Applicant

And:     Secretary, Department of Family 
  and Community Services      
  Respondent

DECISION

Tribunal              Ms S M Bullock, Senior Member
  Mr S Webb, Member

Date  17 July 2002

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter on 17 July 2002, the decision of the Social Security Appeals Tribunal ("the SSAT") dated 22 May 2001 which affirmed a decision of a delegate of the Secretary, Department of Family and Community Services ("the Department") dated 20 September 2000 that rejected claims for Carer Allowance in respect of Justin, Ashley and Travis Bellchambers is set aside and in substitution therefor, the Administrative Appeals Tribunal ("the Tribunal") decides that the Treating Doctor's Reports completed by Dr Konduru for Justin Bellchambers, Ashley Bellchambers and Travis Bellchambers on 3 July 2000, 14 July 2000 and 20 July 2000 respectively, are not an accurate reflection of each child's functional ability, behaviour and special care needs.  Pursuant to Clause 2.2(3) of the Child Disability Assessment Determination 1999, the Secretary accordingly is to request a replacement professional questionnaire to be completed by another treating health professional, which the Tribunal recommends should be from Northern Sydney Health, Family and Child Health Services. 

.............................

Ms S M Bullock

Presiding Member

CATCHWORDS

SOCIAL SECURITY – Carer Allowance – Qualification – Child Disability Assessment Tool - Whether Treating Doctor's Reports Accurate – Replacement Professional Questionnaire

Social Security Act 1991 ss 38D, 953

Child Disability Assessment Determination 1999 

REASONS FOR DECISION

Ms SM Bullock, Senior Member

Mr S Webb, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. 

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of Ms SM Bullock, Senior Member and Mr S Webb, Member

Signed:         
          ..................................................................................……………………………….

Ms J Purches, Associate

Date of Hearing  17 July 2002
Date of Decision  17 July 2002

Representative for Applicant     Self-Represented
Representative for Respondent Marian Buckley, Departmental Advocate

DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/847
By  MS S.M. BULLOCK, Senior Member
and MR S. WEBB, Member
BELLCHAMBERS and SEC DEPT OF
FAMILY & COMMUNITY SERVICES
SYDNEY  17 JULY 2002

MS BULLOCK:  Ms Bellchambers and Ms Buckley what has transpired today is that we have heard from you Ms Bellchambers, but we did not get to the end of the hearing in the sense that there was still cross-examination to be completed by Ms Buckley and questions possibly from Mr Webb and myself.  Because we interposed Dr Konduru, her evidence was very clear in terms of the assessments that she did, the Treating Doctor's Reports in relation to the children in July 2000.

That then allowed Ms Buckley to seek some instructions and we are here where there has been a concession, a conceding of the case as it were by the Department that yes, indeed Dr Konduru's assessments in July in relation to the children Ashley, Travis and Justin were inaccurate.  That is a concession that is properly given, it is something that quite clearly Dr Konduru said and it clearly put the case back to the Respondent and countered many of the things that were said, so we have got this concession.

Mr Webb and I think this is a proper concession.  We are going to make a decision, notwithstanding the fact that there is a concession, that the reports completed in relation to Ashley, Justin and Travis in July, I think the dates 14 July, 20 July and 3 July in relation to the individual children, that they were an inaccurate reflection of the situation.  We were able to come to that view not just because of Dr Konduru but also in getting your evidence.

So you might have thought that perhaps if we had had Dr Konduru earlier that we would not have needed to talk to you, well that is not right.  We did need to talk to you because you gave us, even though we are only part heard, you provided evidence in answer to my questions, Mr Webb's questions and Ms Buckley's questions which just confirms, certainly in the Tribunal's mind, and I think it obviously must have confirmed in Ms Buckley's mind, the true situation, which is why there has been the concession.

So it was extremely valuable to have you here to provide that context.  That, combined with Dr Konduru, has led us to make a decision that those Treating Doctor's Reports were an inaccurate reflection.  Now having said that and having decided that, the next thing that we are required to do under the legislation, if we find it's inaccurate, is that the matter has to be sent off to get a different Treating Doctor's Report.

Now Mr Webb and I have noted the material that you have supplied, we have got the T documents, and particularly we note, and this is where your evidence was also very valuable, that there is a report from Dr Zilibowitz from Northern Sydney Health.  That report is dated 25 October 2000, I am referring to T7, but from your evidence which we accept, and let me as an aside say that the Tribunal considers you to be very genuine, very truthful, a person of credit and we believe what you have told us.  From your evidence it is clear that you had dealings with that doctor earlier than 25 October and indeed it was that doctor that recommended that you seek the Carer Allowance.  It is Mr Webb's and my recommendation that a Treating Doctor's Report be obtained from a doctor from the Northern Sydney Health Centre.  Now I do not know whether Dr Zilibowitz is there or not.  If he is it would be a very good thing for him to do it.  If he is not, what I know from my understanding of these matters is that the records are kept there.

The strong reason for going to the Northern Sydney Health Centre is that there are contemporaneous records around about that July 2000 period, before and after.  I know your concerns about the difficulties in trying to remember back two years ago and I understand all of that but there are some contemporaneous records and certainly if Dr Zilibowitz is there himself he's got a very clear understanding, obviously, he suggested that you apply for the Carer Allowance.

So that is the Tribunal's recommendation that a doctor be sought from the Northern Sydney Health Centre and specifically, if Dr Zilibowitz is there, that he be asked to do it.  I also note, and I am going to put something out in writing telling you what I am saying now but I also note in our decision-making process, what was said by Dr Konduru by telephone in relation to the fact that she considers the children when she did that original report are not that much different.

They are obviously older, but in terms of their capacities and the reasons that they needed your care and their learning disabilities, all of those matters, she doesn't think that they're much different and I will put it in writing, but I want it noted, Ms Buckley, that whoever does this and makes the decisions on this should take into account the evidence of the doctor who did the original Treating Doctor's Reports.

I also want to state that whoever does it from Northern Sydney Health should be given a copy of the T Documents and the reports that we have taken into evidence in the Exhibits for the Respondent and the Applicant, and we will assist with making sure that all of those - we want all of that documentation to be provided to the Northern Sydney Health.  The other thing I wanted to confirm Ms Buckley is that you will assist in expediting this matter.  I know that is not necessarily your role but I take your offer that we think that is a very important thing to do, particularly in light of the way that this matter has been run, with the numerous people that have been involved, the confusion in assisting Ms Bellchambers to understand what she has to do and what she does not have to do and also because there has been delay and I certainly have experienced that for myself.

It is not necessarily all to do with the Department at all, there were some difficulties with doctors and things of that nature but I think in my observation, and I think Mr Webb holds this view, that there were some times when perhaps there wasn't full and proper explanation of what was needed or required and the purpose of it and also I think that there were some delays and falling within the cracks.  I think that it just didn't flow the way it should have flowed.

Can I say Ms Bellchambers that I think that you have done a sterling job in your attempts and I do not know what will happen from here but I think the children do owe you a great deal of debt for your efforts.

©Auscript Pty Ltd 2002