Bracefield and Department of Family and Community Services - [2000] AATA 600

DECISION AND REASONS FOR DECISION [2000] AATA 600

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1824

GENERAL ADMINISTRATIVE DIVISION )
Re ROBYN BRACEFIELD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Dr JD Campbell

Date25 July 2000
PlaceNewcastle

Decision The Tribunal affirms the decision under review.

(Sgt) Dr J D Campbell
………………………………………..
Member

CATCHWORDS:
Social Security – Child Disability Allowance – Attention Deficit Disorder – whether care and attention needed is substantially more than that needed by a young person of the same age who does not have a disability – whether care and attention needed for an extended period

Social Security Act (1991)

Re Gindy and Secretary, Department of Social Security (AAT 10425, 22 September 1992)
Re Sachs and Director-General of Social Security (1984) 6 ALN N22
McDonald and Secretary, Department of Family and Community Services [1999] AATA 540
Re Goktas and Secretary, Department of Social Security (AAT 9498, 27 May 1994)
Re Torrington and Secretary, Department of Social Security (AAT 956, 15 December 1998)
Re Secretary, Department of Social Security and Bosworth (1989) 18 ALD 373
Re Secretary, Department of Social Security and King (AAT 8179, 20 August 1992.
Re Corcoran and Secretary, Department of Social Security (AAT 9936, 3 January 1995)
Re Secretary, Department of Social Security and MacLean (1993) 30 ALD 95
Hart v Secretary, Department of Social Security (AAT 12099, 16 July 1997)

REASONS FOR DECISION

This is an application by Mrs Robyn Bracefield ("the Applicant") for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 17 November 1999. The SSAT affirmed a decision of the Secretary of the Department of Family and Community Services ("the Respondent") dated 7 September 1998 and an authorised review officer dated 1 July 1999, to cancel the Applicant's child disability allowance ("CDA") in respect of her son, James. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 6 December 1999.
The hearing was held in Newcastle on 10 July 2000. The Applicant was self-represented and assisted by her husband, Mr Warren Bracefield. The Respondent was represented by Mr George Lozynsky of Centrelink.
The Applicant and her husband provided oral evidence. The following written material was also placed in evidence before the Tribunal:

Material prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T37, pp 1-122
Medical report of Dr Gardiner dated 17 February 2000 Exhibit A1
Respondent's statement of facts and contentions dated 9 March 2000 Exhibit R1

legislation

The relevant legislation is the Social Security Act 1991 ("the Act") and in particular sections 952, 953 and 954 which provide:
"952 Subject to subsection 953, a young person is a disabled child if:
a)the young person has a physical, intellectual or psychiatric disability; and
b)because of that disability:
i)the young person needs care and attention from another person on a daily basis; and
ii)the care and attention needed by the young person is substantially more than that needed by a young person of the same age who does not have a physical, intellectual or psychiatric disability; and
c)the young person is likely to need that care and attention permanently or for an extended period.
…
953A disabled child is a CDA child of a person if:
a)family payment is payable to the person for the disabled child; or
…
954(1) A person is qualified for a child disability allowance for a young person if:
a)the young person is a CDA child of the person; and
b)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."

issues

The issues before the Tribunal are as follows:
a)whether James has a physical, intellectual or psychiatric disability; and
b)whether James needs care and attention from another person on a daily basis; and
c)whether this care and attention is substantially more than that needed by a young person of the same age who does not have a disability; and
d)whether the care and attention is needed permanently, or on an extended basis; and
e)whether the decision to cancel the Applicant's CDA was correct.

background

On 18 December 1997 the Applicant lodged a claim for CDA in respect of her son, James. James turns 9 years of age on 9 July 2000 and suffers from Attention Deficit Disorder ("ADD") (T7). Attached to the claim was a medical report from Dr Banna, dated 3 December 1997 (T8). On 8 January 1998 the CDA was granted from the date of claim. A delegate of the Respondent outlined the following additional care and attention requirements:
"Bathing; dressing; feeding & bottling to get him to eat; 1 hr per night on homework; transport to & from school; supervision & administration of medication; putting to bed; fairly constant supervision." (T9, p41)
On 12 January 1998 a review of the Applicant's CDA entitlement was conducted by Centrelink. A CDA review form was completed by the Applicant on 2 March 1998 (T11) and a treating doctor's report was completed by Dr Banna on 4 March 1998 (T10). As a consequence, on 7 September 1998 a delegate of the Respondent decided to cancel the Applicant's CDA stating the following:
"no evidence of severe educational delay or behavioural problems and no remedial therapy programmes in place." (T13)
"appears behaviour controlled by medication." (T12)
On 14 September 1998 the Applicant requested a review of the decision to cancel her CDA entitlement. The original decision maker affirmed the decision to cancel, as did an authorised review officer on 1 July 1999 (T31). On 18 August 1999 the Applicant appealed to the SSAT (T34). On 17 November 1999 the SSAT also affirmed the decision to cancel CDA and the Applicant subsequently lodged an application for review with the Tribunal on 6 December 1999.
In addition to appealing the cancellation of her CDA, the Applicant lodged a new claim for CDA on 28 September 1998. This claim was considered under an entirely new basis of qualification for CDA which came into effect from 1 July 1998, pursuant to the Social Security Legislation Amendment (Parenting and Other Measures) Act 1997. On 15 December 1998 the claim was rejected by the Respondent as the relevant treating doctor's report resulted in a score below zero. The rejection of the Applicant's CDA on 15 December 1998 is not in issue in this application for review.

oral evidence of the applicant and mr bracefield

The Applicant informed the Tribunal that she is 45 years of age and married Mr Bracefield, currently aged 46, approximately 14 years ago. The Applicant and her husband have two children, James (aged nine) and Katie (aged seven). The Applicant also has four children from a previous marriage, who are all married and do not live in the family home. Mr Bracefield was born in New Zealand, as were James and Katie, and the family lived there for approximately four years, before returning to Australia to reside in the Cessnock area. The Applicant performs home duties, attends a weekly craft group, and has recently applied for on-call employment. Mr Bracefield currently undertakes casual employment. The Applicant and her husband are both involved with the rural volunteer fire brigade.
The Applicant stated that she first noticed differences in James when he was born. He was milk intolerant and she 'couldn't put him down from day one'. The problem with milk intolerance was eventually controlled when the family returned to Australia where James was put on a formula which was being trialed and was therefore not available to outpatients or chemists. The Applicant had difficulty finding funding for a continual supply of the formula but was eventually given assistance by Maitland Hospital, which resulted in one and a half hours travel each time new formula was needed. James drank formula out of a bottle until aged approximately four and a half, which caused problems for the Applicant at meal times because James did not like people to see him drinking out of the bottle.
The Applicant stated that she could never leave James to play without her supervision. At times she was ready to 'give him up' because of the strain. James was later prescribed Ritalin and a change in his behaviour occurred when he was approximately five years of age. James attended pre-school for approximately two years and started school at age five. James sometimes did not co-operate with the need to attend school, but he did not show any signs of a developmental delay. The Applicant stated that James currently hates school because it is 'boring' and that sometimes getting him to school in the morning can be difficult and can 'turn into a real fight'.
The Applicant stated that James wakes up at approximately 6am each morning, wakes his sister up and turns on the television and watches it. He may play in his room occasionally and likes to pull things apart, but can't get them back together. James is able to eat breakfast by himself, though on occasion he will make a mess or throw his cereal on the floor. The Applicant tries to vary the breakfast menu for James as gets bored easily and giving him what he wants reduces conflict. James is 'content to starve' if he decides not to eat and as a result his weight is below average. Because of this, the dosage of Ritalin has recently been reduced, which has resulted in a worsening of his behaviour. Currently, James takes one tablet at 8am, and half a tablet at 12pm and 3pm.
It can take up to one and a half hours for James to get dressed for school as he has a tendency to get sidetracked. His parents walk him to school as there is a busy main road to be crossed on the way. This is about a three minute walk. James is dropped at the front gate, he then takes himself into the school grounds and he is next seen by his parents at 3pm when they wait for him outside the school and walk him home. When he arrives home, James is supposed to unpack his bag, have a drink and do his homework, but can be defiant about doing his homework. The Applicant stated that James will often ride his bike down the street and she will not know which house he has gone to. Mr Bracefield often has to drive around to find him.
James is able to bath himself but must be supervised; when showering he has a tendency to 'daydream' and forgets to get out of the shower. This also occurs when toileting. In the evenings, James will watch television or play in his room. He changes the television channels and hides the remote from his parents. He goes to bed around 8.30pm but is 'up and down' all night.
The Applicant stated that typically two 'good days' would be considered as a well-behaved week for James. She considered that a good day involved James eating his breakfast, playing with his sister and not fighting with his parents. James has some friends but doesn't play with them on a regular basis. He is hard to take shopping or to social events. The constant irritation which James causes and the constant supervision required cause the Applicant and her husband to feel 'totally worn out' and 'drained'. The Applicant stated that her daughter is influenced by James and sometimes copies his behaviour and 'temper tantrums' when at home, which causes additional stress. The Applicant has been on anti-depressants for the last four years and her dosage has recently increased. Mr Bracefield suffers from migraines which he believes to be from tension and stress.
The Applicant stated that the family is not in financial hardship, but that finances are strained due to medical expenses and other bills. In addition to ADD, James suffers from an intolerance to milk, cheese and other dairy products which can cause him diarrhoea, but he is aware of this problem and is usually able to manage it himself.
In cross examination the Applicant stated that James requires parental supervision to take his Ritalin and while at school he is supervised by the school receptionist while taking his medication. His behaviour has improved with this medication and he is not now as badly behaved as he was when the initial claim for CDA was made, but there are still many ongoing problems. The amount of hours spent supervising James each day depends on his behaviour at the time. The Applicant and her husband must arrange their work schedules so that someone is always home to supervise.
Mr Lozynsky for the Respondent directed the Applicant to T21 at page 83 where she had ticked boxes indicating that James has good communication skills. The Applicant stated that James does have good communication skills and understands personal safety, but this does not mean that he reacts accordingly. She informed the Tribunal that she recently found James 'playing chicken' with cars in the street and she believes that he wouldn't care if he was hit by a car.
The Applicant stated that James can't prepare his own food, often tips food on the floor, and cannot use hot water or the toaster. Most tasks depend on the mood that James is in, he does not like to participate in school sports days, has trouble concentrating at school, goes on school excursions occasionally and attends karate at least once per week.

medical evidence

In her report of 3 December 1997, Dr Banna stated that James required 'some extra care…for behaviour management and medical follow up'. She also stated that James is likely to need this extra care for more than 12 months (T8). In her treating doctor's report of 4 March 1998, Dr Banna stated that the clinical features of the diagnosis of ADD with regard to James were 'impulsivity, inattention and disruptive oppositional disorder' (T10).
On 3 December 1998 Dr Banna provided another treating doctor's report. She stated that the diagnosis of ADD was expected to be present for at least 12 months and that the severity of the condition was 'moderate'. Dr Banna indicated that James could understand adult speech and had almost a full adult vocabulary, could prepare a simple uncooked snack, manage basic hygiene with little assistance, dress and undress without any assistance, understand basic personal safety, relate well to both children and adults, write clearly, and hit a ball with a bat and kick a ball with reasonable accuracy. However, Dr Banna also indicated that:
"Child is consistently uncooperative and disruptive during treatment or assessment episodes.
…
Child is extremely active and is unable to concentrate on a task for more than 30 seconds.
…
Child is aged over five years and has persistent difficulties with memory, concentration, planning and organisation." (T25)
On 17 February 2000 Dr Gardiner provided a health professional assessment in respect of James (Exhibit A1). Dr Gardiner diagnosed James with ADD and Oppositional Defiant Disorder. He indicated that James needs help with personal care, but acts independently with regard to toileting, feeding, mobility, dressing and bathing. Dr Gardiner also indicated that James often displays aggression towards himself or others and often displays disinhibited behaviour.
submissions
The Applicant submitted that the ongoing supervision which James requires is substantially more than that of another child of the same age without ADD. This additional care is in the form of assistance with homework and general supervision due to behavioural problems. The Applicant stated that her daughter, Katie, does not require the same level of attention as James, and that at times Katie feels neglected because of the extra time that is spent with James.
In a letter attached to her application for review (T1) the Applicant stated that the cost of Ritalin is high and she and her husband do not wish to try James on a cheaper medication for fear of adversely affecting the current stability of his condition. She submitted that the CDA entitlement would assist her to pay for the medication, and to provide a tutor for James to help him with his school work. Further, the Applicant stated that James has put a strain on her marriage and she has been to support groups to get as much information as possible to help the family cope.
Further, the Applicant submitted that at the time CDA was first granted, she was told that it would not be reviewed for a period of five years. She believed that it was reviewed because of changes to the legislation, but that James was:
"…first accepted under the old scheme and the changers [sic] that was [sic] made after that decision should not have affected my payment until he was due to be reviewed at the end of the 5 years". (T1, p2)

The Respondent submitted that the decision to cancel the Applicant's entitlement to CDA was correct because James does not require substantially more care than a child of the same age without a disability and therefore is not a 'disabled child' as required by the Act. There is no dispute that James has the disability of ADD, or that he needs some care and attention from the Applicant on a daily basis because of his disability.
The Respondent accepted that the Applicant supervises the administration of medication to James, his homework for up to one hour each day, and his behaviour on an ongoing basis. However the Respondent submitted that it would be expected that a parent would provide such supervision to a child of James' age with no disability, particularly in relation to the provision of meals and attendance at sporting events. It was the Respondent's contention that James is largely able to manage his condition and its treatment on a day-to-day basis; that he is able to accept his condition, and is independent in relation to showering, dressing, toileting and eating. Further, his condition is more stable and tolerable as a result of Ritalin and the Applicant has stated that James has improved since the first claim for CDA. The Respondent acknowledged that James has hyper activity, temper tantrums and lacks a sense of responsibility, but submitted that this behaviour is:
"…part of a little boy's personality and would continue to generate a management problem for his parents as noted in Re Gindy and Secretary, Department of Social Security (AAT 10425, 22 September 1992)" (Exhibit R1).
Relying on various cases such as Re Sachs and Director-General of Social Security (1984) 6 ALN N22, the Respondent submitted that the level and type of care a child needs should be established by the objective medical evidence, and not the subjective views of the Applicant. Further, the needs of James should then be assessed by reference to what is necessary or required rather than what is actually provided as acknowledged in McDonald and Secretary, Department of Family and Community Services [1999] AATA 540 and Re Goktas and Secretary, Department of Social Security (AAT 9498, 27 May 1994).
The Respondent submitted that the performance of James which occurs at school is not relevant to the issues arising in this case and that what needs to be decided is whether he requires more care and attention from his mother, as noted in Re Torrington and Secretary, Department of Social Security (AAT 956, 15 December 1998). Further, the Respondent submitted that financial costs are not a relevant consideration under the Act, as discussed in Re Secretary, Department of Social Security and King (AAT 8179, 20 August 1992) and that the Applicants costs are subsided in some respects by holding a health care card as a result of receiving other social security benefits.

consideration and findings

The Tribunal found the Applicant and her husband to be honest and reliable witnesses. In taking into account all of the material before it and the oral evidence provided at the hearing, the Tribunal makes the following findings of fact:
a)James is currently nine years of age and attends primary school; and
b)James has been diagnosed with and continues to suffer from the psychiatric disability of ADD, characterised by impulsivity, inattention and disruptive oppositional disorder; and
c)James also suffers from an intolerance to dairy products; and
d)James currently takes Ritalin at a dosage of one tablet at 8am, half a tablet at 12pm and half a tablet at 3pm, to assist with his behavioural problems.
On the available evidence, the Tribunal is satisfied that on a daily basis it takes approximately:
a)two hours of supervision and attention each morning to get James washed, dressed and fed before school; he cannot prepare his own food, but is able to eat breakfast himself; he may occasionally make a mess and requires some variation in the breakfast menu to reduce boredom and conflict; he has a tendency to get sidetracked when dressing; and
b)15 minutes to walk James to school and 15 minutes to walk him home from school; this is required as there is a busy main road to be crossed; and
c)there is a short period of care at midday when James is given his medication by the school secretary; James is able to identify this time by himself through the use of an alarm on his watch; and
d)30 minutes after school for the preparation of afternoon tea, administration of medication and commencement of homework; James can be defiant about doing his homework; and
e)four hours of continued general supervision including showering, preparation of the evening meal and preparation for bed.
Other additional care and attention provided to James on an on-going basis largely involves his erratic behavioural problems and disruptiveness. The Tribunal acknowledges that James has little regard for his own safety and may create situations that are potentially dangerous. James can also on occasion display a reluctance to attend school or participate in other events such as school sporting days. In addition, intermittent personal care is required by the Applicant when James is unable to manage his own intolerance of dairy products.
The Tribunal notes, however, that James is able to get himself out of bed in the morning, feed himself breakfast, dress himself (albeit in a distracted fashion), unpack his bag in the afternoon, bath himself, and does spend some time in the mornings and evenings watching television or playing in his room. James also attends karate at least once each week. James' behaviour appears to be well controlled by his medication.
There is no dispute that James is a young person as defined by the Act, nor that family allowance was payable to the Applicant in respect of James thereby satisfying subsection 953(a) of the Act, and the Tribunal so finds. Further, there is no dispute and the Tribunal so finds that the Applicant satisfies subsection 952(a) of the Act in that James has the psychiatric disability of ADD. The Respondent also acknowledged that James needs care and attention from another person on a daily basis and the Tribunal finds that the Applicant satisfies section 952(b)(i) of the Act.
The Tribunal now turns to the issue of section 952(b)(ii) of the Act and whether the care and attention provided to James is substantially more than that needed by a young person of the same age without a disability. In the leading case of Re Secretary, Department of Social Security and Bosworth (1989) 18 ALD 373, the word 'substantial' was taken to mean 'considerably or significantly more than'. Further, whether James requires substantially more care and attention must be assessed objectively on the medical evidence available, rather than the Applicant's view of the level of care and attention needed. In Re Corcoran and Secretary, Department of Social Security (AAT 9936, 3 January 1995), the Tribunal stated:

"…it can be distilled that the test of need is to be determined objectively. The subjective view of an applicant is not the test. The comparison between the care and attention needed by the child with the disability and a child without the disability is a question of fact to be decided by the Tribunal. The phrase "substantially more than" is used in a comparative sense. The care and attention needed by the child must be significantly more than the care and attention needed by a child without the disability."

The Respondent submitted at exhibit R1, in relation to the care and attention being from 'another person' pursuant to section 952(b)(i) of the Act, that the person providing this care must be the young person's mother and stated that according to the case of Re Torrington (supra) James' performance at school is not relevant to the issues arising in this case. The Tribunal considers that the case of Re Torrington distinguishes between academic performance and supervision required at school, stating that the issues arising from a young person's performance at school may by relevant where they give support to the suggestion that the young person requires extra care and attention. In addition, the case of Re Secretary, Department of Social Security and MacLean (1993) 30 ALD 95 considered that the care and attention required by the child could not be provided by a single person:
"It is evident that not all the care and attention Jasmine needs to overcome her disability can be provided by a single person…The question then presents itself whether the expression 'another person' should be read restrictively as applying only to the case where one single individual is able to provide all the relevant care and attention to the exclusion of all others, or whether it may be construed distributively in the sense that whilst the need for care and attention may be constant, it may have to be provided by a number of persons each of whom individually qualifies as 'another person'. Having regard to the beneficial nature of the particular provisions, the tribunal accepts the latter meaning."

It is therefore the Tribunal's finding that any extra care and attention provided to James during school hours may be taken into account in assessing whether the care and attention provided is substantial.

However, the Tribunal notes that James does attend school and once dropped at the front gate by his parents, enters the school grounds alone and goes to class. James does not show any signs of developmental delay and his behaviour has led to only one instance of detention this year, and three last year. James is able to manage the timing of his medication at midday and attend the school receptionist on his own initiative. James is also able to attend the occasional school excursion.
The Tribunal acknowledges the extra expenses incurred by the Applicant in providing medical assistance to James but notes the case of Re King (supra) which stated:

"…a claimant is not paid by virtue of considerations of financial hardship."

In a comparitive sense, the Tribunal considered past decisions in relation to ADD specifically. In the case of Hart v Secretary, Department of Social Security (AAT 12099, 16 July 1997) the Tribunal found that the Applicant was entitled to CDA. However, in this case her son was being disruptive in school, was frequently required to eat his lunch in front of the principal's office, was depressed about his small size and there was ample evidence of him causing both deliberate and careless damage. In relation to assistance with school work, the Tribunal stated:
"One of the reasons for cancelling the child disability support [sic] allowance, was that the decision maker was referring only to the situation as it existed when Daniel was in his final year at primary school, where he was coping well with far less homework, and a lesser amount of extra care and attention by his parents was sufficient to achieve this result. Subsequent to the determination however, Daniel went into high school and this is now a very different situation, requiring the parents to put in a great deal of extra effort."

In the case of Torrington (supra), CDA was not granted in respect of ADD where the following facts existed:
"Anthony suffers from Attention Deficit Hyperactivity Disorder…in general terms Anthony is a good student…Anthony's hyperactive traits come to the fore in the evening and he expresses considerable reluctance to go to bed at night and to attend to normal toilet functions prior to going to bed…Anthony apparently has little regard for his own safety or welfare and apparently does not impose limits upon himself…reluctance to go to school on time…we are not sure if there is anything out of the ordinary as far as 12 year old boys are concerned…"
In consideration of all of the evidence and having considered other decisions of the Tribunal on this issue, the Tribunal concludes that the extra care and attention required by James because of his ADD is not significantly more than another child of the same age without a disability. The Tribunal is supported in it's view by the objective medical evidence of Drs Banna and Gardiner who report that James' condition is of moderate severity and that he requires 'some' extra care for behaviour management and personal care. Therefore, the Applicant fails to satisfy section 952(b)(ii) of the Act.
For completeness, the Tribunal finds that the care and attention needed by James will be required on an extended basis, as supported by Drs Banna and Gardiner. In this respect, the Applicant would satisfy section 952(c) of the Act.
determination
The Tribunal determines that the Respondent's decision to cancel CDA was correct, and the decision under review is therefore affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell.
Signed:         .....................................................................................
  Associate
Date of Hearing  10 July 2000
Date of Decision  25 July 2000
Representative for the Applicant              Self represented
Representative for the Respondent George Lozynsky