Borg and Department of Family and Community Services
[2001] AATA 1047
•10 December 2001
DECISION AND ORAL REASONS FOR DECISION [2001] AATA 1047
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/237
GENERAL ADMINISTRATIVE DIVISION )
Re LUELLA BORG
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Date10 December 2001
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that as at 22 March 2001 the applicant was qualified for payment of Carer Payment.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Carer Payment – two disabled children – whether applicant's daughter is a "profoundly disabled child" – level of care required by profoundly disabled child
Social Security Act 1991 sections 197,198
ORAL REASONS FOR DECISION
10 December 2001 Senior Member WJF Purcell
This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 28 May 2001, which affirmed the decision of an Authorised Review Officer of 6 April 2001, to reject the applicant's claim for Carer Payment.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with exhibits tendered by the respondent (the Department). The applicant appeared on her own behalf and gave oral evidence. She was assisted by her husband, who also gave evidence. Mr Kilderry represented the Department.
The applicant is in receipt of Carer Allowance in relation to her two disabled children, Nathan, who recently turned 11 years of age, and Shanae who turned 10 on 5 May 2001.
The issue before the Tribunal is whether the applicant's daughter, Shanae, is a "profoundly disabled child" in accordance with the Social Security Act 1991 (the Act) or whether the applicant's two disabled children require a level of care at least equivalent to the level of care required by a "profoundly disabled child".
The applicant applied for Carer Payment, an income support payment for carers, who, because of the demands of their caring role, are unable to support themselves through full-time work. She applied in relation to Shanae on 22 March 2001. A person is qualified for Carer Payment if he/she satisfies section 198(1) of the Act which, as far as is relevant for the purpose of this review, provides:
"(1)A person is qualified for a carer payment if the requirements of this section are met.
Note: Sections 198AA, 198AB and 198AC allow the person to qualify in certain short-term circumstances where the requirements would not be met.
Constant care of disabled etc. persons(2) The person must personally provide constant care for:
(a) either:(i)if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated, and given a score of at least 25, under the Adult Disability Assessment Tool; or
(ii)if not—a disabled adult (the care receiver) who has been assessed and rated, and given a score of at least 80, under the Adult Disability Assessment Tool; or
(b) a profoundly disabled child (the care receiver) aged under 16; or
(c) 2 or more disabled children (the care receivers) aged under 16; or(d)a disabled adult and a dependent child of the adult (the care receivers), where:
(i)the disabled adult has been assessed and rated, and given a score of at least 20, under the Adult Disability Assessment Tool; and
(ii) the child is aged under 16; and
(iii)if the child is aged 6 or more—carer allowance is payable for the child."
A "profoundly disabled child" is defined in section 197(2) of the Act as follows:
"(2) A child is a profoundly disabled child if:
(a) the child has either:
(i) a severe multiple disability; or
(ii) a severe medical condition; and
(b)the child, because of that disability or condition, needs continuous personal care for:
(i) 6 months or more; or
(ii)if the child's condition is terminal and the child's life expectancy is less than 6 months—the remainder of the child's life; and
(c)the child's disability or condition includes 3 or more of the following circumstances:
(i)the child receives all food and fluids by nasogastric or percutaneous enterogastric tube;
(ii) the child has a tracheostomy;
(iii) the child must use a ventilator for at least 8 hours each day;
(iv) the child:
(A) has faecal incontinence day and night; and(B)if under 3 years of age, is expected to have faecal incontinence day and night at the age of 3;
(v) the child:
(A) cannot stand without support; and(B)if under 2 years of age, is expected to be unable to stand without support at the age of 2;
(vi)a medical practitioner has certified that the child has a terminal condition for which palliative care has replaced active treatment;
(vii) the child:
(A)requires personal care on 2 or more occasions between 10 pm and 6 am each day; and
(B)if under 6 months of age, is expected to require care as described in sub-subparagraph (A) at the age of 6 months."
The Departmental Policy Guidelines in relation to the definition of two or more disabled children read as follows:
"Definition
For the purposes of CP, 2 or more disabled children are 2 or more children who require a level of care that is AT LEAST equivalent to the level of care required by a profoundly disable child (1.1.P.430).
Two or more disabled children are seen as requiring the same level of care as a profoundly disabled child if:
each child has a severe disability (1.1.S.100) OR severe medical condition (1.1.M.90), AND
each child needs continuous personal care (1.1.C.340) for AT LEAST 6 months unless one of the children has a terminal condition, AND
between the children, AT LEAST 3 of the following circumstances must apply:
- the child receives all food and fluids by nasogastric or percutaneous enterogastric tube,
-the child has a tracheostomy,
-the child must use a ventilator for at least 8 hours a day,
-the child is 3 years of age or over and has faecal incontinence day and night; OR is under 3 and is expected to have faecal incontinence day and night at the age of 3,
-the child is 2 years of age or over and cannot stand without support; OR is under 2 and is expected to be unable to stand without support at the age of 2,
-a medical practitioner has certified that the child has a terminal condition for which palliative care has replaced active treatment,
-both or all children require personal care on 2 or more occasions between 10pm and 6am each day, AND if the children are under 6 months old, are expected to need personal care on 2 or more occasions between 10pm and 6am each day at the age of 6 months.
Act reference: SSAct section 198 Qualification for Carer Payment
Policy reference: The Guide 3.6.4 CP – Qualification & Payability"
Shanae suffers from an intellectual disability and epilepsy, and it is not in dispute that she requires care during the night, at least twice between 10pm and 6am. The applicant maintains that because of Shanae's level of mobility, destructiveness and behavioural problems – her behaviour is so outrageous that the house is consistently in disarray; her brother, Nathan, is constantly harassed; the applicant is obliged to follow her around at all times to clean up the "trail of disaster", she cannot take up any kind of employment, even of a part-time nature. The applicant's husband, a registered nurse, must take leave to assist, and the level of care they both provide is at least equivalent to the level of care required by a profoundly disabled child. The care of the two disabled children, the applicant submits, satisfies section 198(8) of the Act.
The Department concedes that Shanae's condition satisfies section 197(2)(a) and (2)(b), but not section 197(2)(c) of the Act, in that her condition includes only one, and not three of the circumstances set out in the sub-section. The Department concedes also, that the applicant has two "disabled children", but argues that although the level of care is not defined in the legislation, the level of care required by these children, is not at least equivalent to the level of care required by a profoundly disabled child. The SSAT followed the Department's Policy Guidelines and stated:
"… The Tribunal is satisfied that Mrs Borg is required to provide constant care for her children, and that this care may be more onerous in some way than the care provided for one child who meets the definition of profoundly disabled child. However, the Tribunal considers that the provision in relation to two children refers attention back to the provisions in relation to one child, and does require that the two children meet the very high threshold established for one child. The Tribunal considers that requiring that the two children between them meet three of the seven specified circumstances made for consistency in the application of the legislation and is a correct interpretation of the law. …" [T2/15]
The Department submits finally that there is no evidence provided that indicates that between them the two children have disabilities or conditions which include three or more of the circumstances in section 197(2)(c) of the Act.
The applicant outlined in detail the duties that she performs during the day, with the assistance of her husband when he is available. Their evidence was, in essence, in similar terms to that which they gave to the SSAT, and in these brief oral reasons I will adopt, as a matter of convenience, some of the evidence the SSAT has outlined in its Reasons for Decision:
"INFORMATION PROVIDED AT THE HEARING
Mr and Mrs Borg told the Tribunal that they have been receiving carer allowance in respect of Shanae for some time. Shanae suffers from epilepsy, an intellectual disability and global delays, having the developmental age of a 3 or 4 year old, though her language is perhaps that of an 8 year old. Shanae was born in May 1991, and at the date of the hearing was about to turn 10.
The Borgs said they have been struggling to cope with Shanae's care needs. Mrs Borg is unable to work because of undertaking the carer role. They receive respite care through domiciliary care of 4 hours per fortnight and community support assistance of 4 hours a week through IDSC. They explained it is very hard to find appropriate carers for Shanae as people find it difficult to bond with her given her difficult behaviour. There are frequent changes of carers because carers do not engage well with her.
Mr Borg works as a nurse on a 7 day shift work roster basis. His hours of work are not fixed, meaning that Mrs Borg is unable to obtain work on a regular basis because of Mr Borg's uncertain hours. Shanae's grandparents find her too difficult to manage and are unwilling to look after her.
Shanae attends school where she gets 5 hours a week additional help. Mrs Borg said that the rest of the time she just wanders around at school. Mrs Borg has 3 meetings a week at school on average to discuss things. She finds herself at school most days doing what she termed "SSO work" in effect. The Borgs said they needed to communicate a great deal with the school.
The Borgs felt that their situation came within that described in Centrelink magazines about carer payment. The care Mrs Borg provides for Shanae prevents her from working. Mr Borg has to work extra days in order to pay the bills. Without the care Mrs Borg provides Shanae would normally be in an institution.
The Borgs provided the Tribunal with copies of publicity information produced by Centrelink.
Mrs Borg also provided the Tribunal with a detailed list of kinds of care she provides to Shanae every day. She compared this with the care provided by her friend to her friend's child who suffers from Rett Syndrome and epilepsy and uses a wheelchair. This child is aged 13 years.
Mrs Borg explained that Shanae needs all her food cut up and needs close supervision whilst eating and this is very time consuming.
The Borgs explained that some times Shanae suffers faecal incontinence, and needs a nickers change every day. She needs help wiping her bottom. She is incontinent during an epileptic seizure.
The frequency of Shanae's seizures vary a lot. There are indications that she has nocturnal seizures, in that in the morning her speech is slurred and her position in bed indicates a seizure. Shanae is irritable 2 – 3 days before a seizure and takes 1 – 3 days to recover from a seizure. She suffers one sided weakness after her seizure. She only received a definite diagnosis of epilepsy 18 months ago although she has suffered seizures since birth. EEGs do not always show the abnormality. The specialist finds it difficult to understand her illness. She suffers 2 – 3 seizures a month.
The Borgs do not know her potential developmental achievements.
The Borgs are trying to get assistance with developing behavioural management strategies for Shanae from Minda. It is difficult to implement them because of the nature of her conditions, and because she does not understand the concept of consequence for behaviour. The Borgs are overwhelmed by the amount and extent of care Shanae needs every day, and this is affecting all the relationships within the family. She wakes between 5.30 am and 6 am, and is very active all day.
The Borgs said their son Nathan, nearly 12, suffers from learning difficulties and gait difficulties requiring orthotic treatment. He has problems with learning and cognition and they receive carer allowance for him also.
Nathan requires extra tuition at home twice a week, and assistance with his homework between ½ an hour and an hour each night. He has an unusual gait, which is corrected by orthotics. His parents must supervise his exercises daily. He is supposed to practise these constantly when he remembers, and at least ½ an hour morning and night making one hour total daily. Nathan is seeing a psychologist about the impact of the demands made by his sister Shanae, including her care requirements, the impact on Nathan's social relationships, and that Shanae physically hits her brother.
In summary the Borgs said they appealed the decision because they considered they came within the publicised definition of people eligible for carer payment. Ms Borg was unable to work because of Shanae's care requirements. They were concerned about the quality of life issues for themselves and their son, and about maximising opportunities for their son. They were struggling to stay on top of the situation, which strained all of the relationships within the family. …" [T2/5-7]I accept the evidence of the applicant and her husband as to the level of care they provide for their two disabled children. Although the Department has developed a Policy Guideline requiring that between two disabled children, at least three of the circumstances in section 197(2)(c) of the Act must be satisfied, I consider that it is clear on the evidence that each child has a severe disability, and needs continuous personal care. Shanae's level of mobility and destructiveness (as opposed to a lack of mobility and interaction with siblings contemplated by the circumstances set out in section 197(2)(c) of the Act) require, as a matter of fact, a level of care and intervention which, in my view, is at least equivalent to the level of care required for a child who is a profoundly disabled child.
I am satisfied on the whole of the evidence, that as a matter of fact, the applicant's two disabled children require a level of care that is at least equivalent to the level of care required by a profoundly disabled child. The applicant is qualified, therefore, for payment of Carer Payment in accordance with section 198 of the Act.
For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision that as at 22 March 2001, the applicant was qualified for payment of Carer Payment.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate/s of Hearing 10 December 2001
Date of Decision 10 December 2001
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr R Kilderry
Solicitor for the Respondent Centrelink
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