Brammer and Secretary to the Department of Family and Community Services

[2000] AATA 310

DECISION AND REASONS FOR DECISION [2000] AATA 310

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V99/916
GENERAL ADMINISTRATIVE  DIVISION)                   
           Re:     ANITA ELAINE BRAMMER          
  Applicant
           And:    SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES            
  Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member        

Date:20 April 2000

Place:Melbourne

Decision:      The decision under review is affirmed.   

(sgd) H.E. Hallowes
  Senior Member
SOCIAL SECURITY — child disability allowance — juvenile diabetes — rated under Child Disability Assessment Tool — whether a positive score of not less than one — applicant's understanding of the Tool — child unable to qualify under the Tool if behavioural and special care needs not included in the assessment — material which can be taken into account by the decision-maker — relevant documents
Social Security Act 1991 ss. 952, 952A, 953, 954
Child Disability Assessment Determination 1998

REASONS FOR DECISION

20 April 2000           Mrs H. E. Hallowes, Senior Member        

1. Mrs Brammer seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 28 July 1999.   She represented herself at the hearing.   Mr D. Perdon, an officer of Centrelink, represented the Secretary to the Department of Family and Community Services ("the Secretary").   In affirming the decision under review the SSAT noted that it was reviewing a decision made by a Centrelink officer on 24 March 1999 rejecting Mrs Brammer's claim for child disability allowance ("CDA") in respect of her daughter Ashlee who was born on 19 July 1989.   No decision or document bearing the date 24 March 1999 was amongst the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal 1975 ("the documents").   Perhaps the SSAT obtained the date 24 March 1999 from the authorised review officer's advice dated 11 May 1999 (T17) which was provided to the Senior Member of the SSAT indicating that 24 March 1999 was the date Mrs Brammer's claim for CDA had been rejected.   The index to the documents records that Mrs Brammer's claim was rejected on 12 October 1998 (T9).   The document bearing that date is a copy of a letter sent to Mrs Brammer advising her, amongst other things:

   About Your Child Disability Allowance
   Dear Mrs Brammer
   You will be paid $75.10 for Christopher and Ashlee every second Thursday, starting on 22 October 1998.
   . . . the medical report shows that Ashlee needs much more care and attention than that needed by a child of the same age who does not have a disability.
   We will be reviewing her medical condition/s from time to time.
   We will send you a Health Care Card for Ashlee.   . . .

2. 2.        On 16 December 1999 Mr Perdon provided Mrs Brammer and the Tribunal with a copy of a text with respect to her claim, entered into the department's computer on 15 March 1999 as follows:

   I received a fresh Treating Doctor's Report and processed it through the Child Disability Assessment tool in the Child Disability Allowance computer processing system. I also re-entered the Functional assessment information previously provided by Mrs Brammer (I had to alter the date for processing purposes – it was supplied and processed with the original claim and signed on 8 October 1998). I attach printouts to the file showing the assessment as input and the resulting score of -2.39 which fails to meet the criteria of "positive score not less than 1" per Section 952 of the Social Security Act 1991. I am of the opinion that Ashlee is not entitled to Child Disability Allowance, and in the absence of the Original Decision Maker, agree with the original decision under the above legislation. . . . (exh 2)

3. Mrs Brammer advised the Tribunal that one of her frustrations is that all the letters she continues to get from the Department of Family and Community Services ("the department") advise her that she will be paid CDA for Christopher and Ashlee despite her requests that the letters reflect the true situation which is that her claim for CDA with respect to Ashlee has been rejected.   She also reflected upon her receipt of health care cards, having been issued with 15 cards all with the expiry date 7 September 1998.   Cards were issued bearing an expiry date which had already passed.   She is frustrated by the time and effort it has taken her to obtain a correct health care card and the Tribunal can understand her distress in pursuing these matters in light of the health of her children.

4. When Ashlee was first diagnosed with juvenile diabetes on 25 August 1998, the hospital to which she was admitted provided Mrs Brammer with forms to complete with respect to claiming CDA.   She completed her claim form (T4) and obtained a medical report from Dr D. Garrick, consultant paediatrician, who was responsible for Ashlee's medical treatment (T5).   Both the claim form completed by Mrs Brammer (T4) and the medical report form completed by Dr Garrick (T5) were forms which were out of date, being referrable to entitlement to CDA before the Social Security Act 1991 ("the Act") was amended with effect from 1 July 1998. When Mrs Brammer tried to lodge the forms with the department she was advised that the forms were out of date and she was provided with a current form for Dr Garrick to complete under the new provisions which were inserted into the Act with respect to new qualification provisions for entitlement to CDA. Mrs Brammer told the Tribunal that she was advised by staff at the hospital that they had not been advised of the legislative changes nor provided with new forms. Unfortunately for Mrs Brammer, Dr Garrick failed to complete the new form correctly but despite this, an extract from the department's computer records dated 9 October 1998 advises "reject claim for cda" (T8). A later file note dated 19 January 1999 (T13) records that the treating doctor had ticked all boxes therefore an assessment could not be properly done. The file note goes on to record, "I was reluctant to proceed as mother is very likely to go to SSAT and the claim is not presented well and rejection was not based on sound evidence". However, Mrs Brammer asked to go through the process again.

5. At the hearing the Tribunal noted that the documents lodged by the department had been provided in two sets, the first set being lodged on 23 September 1999, a further set being lodged with the Tribunal on 12 October 1999.   The second set of documents, indexed T18 to T26, include the assessment of the treating health professional's further questionnaire which Dr Garrick had completed on 11 March 1999, the assessment of Mrs Brammer's questionnaire, the relevant legislation and the Child Disability Assessment Determination 1998 ('the Tool"), together with an extract from the department's Policy and Legislative Guidelines ("the guidelines").   The Tribunal considers that that material should always be provided to claimants together with the calculations made under the Tool, so that a claimant may have some understanding of how a questionnaire completed by them and their child's treating health professional is converted into a score so that a decision can be made whether a young person is a disabled child and the claimant may be qualified for CDA.

6. As the relevant legislation is included in the second set of documents (T24 and T25), the Tribunal will not reproduce it here. The Tribunal notes that the legislation has now been further amended and the name of the allowance changed but at the relevant time, when Mrs Brammer lodged her initial claim, qualification for CDA was provided under section 954 of the Act including the provision that the young person be a CDA child of the person. Section 953 provided when a disabled child is a CDA child and disabled child is provided for under section 952. Section 954 further provided with respect to qualification for CDA that because of the child's disability the young person must be receiving care and attention on a daily basis from the person in a private home that is the residence of them both.

7. The starting point in this application is whether Ashlee has a physical disability for which she is likely to suffer from permanently (section 952(a)) and whether Ashlee has been assessed and rated under the Tool and has been given a positive score of not less than one (section 952(b)(ii)). Ashlee is not a disabled child under the Act under the other entitling provision (section 952(b)(i)) which provides that the Secretary, in determining a CDA entitlement, may declare a disability as a recognised disability for the purposes of section 952. In Schedule 3 of the Tool the recognised disabilities are recorded as Severe Disabilities under Part 1 and as Chronic Medical Conditions under Part 2 (T25). It concerns Mrs Brammer that juvenile diabetes has not been included as a recognised disability under Schedule 3 and she wonders what further must be done to persuade the legislature that juvenile diabetes is a chronic medical condition. She has approached her local federal Member of Parliament and obtained a letter which was amongst the documents. Her local member wrote, amongst other things:

   . . .
   I encourage you to reconsider this application, as I believe it should be in the automatic category of Child Disability Allowance qualification.  Ashlee can no longer lead the life of a normal child her age without the substantial care and attention of her parents, because of this disability.    (T22)

The Secretary, and on review this Tribunal, must apply the legislation as it provides at the relevant time.  It is the legislature which is in a position to amend that legislation.   As well as the letter from the Member of Parliament, the documents include letters of support for Mrs Brammer's claim from Dr Garrick dated 8 December 1998 (T11); and Ms J. Wilkinson, paediatric diabetes educator, 1 December 1998 (T10) and Ms G. Pack, chairperson of the Juvenile Diabetes Foundation Australia Education Division, undated (T23).

1. In writing to Mrs Brammer on 11 May 1999 (T17) the authorised review officer ("ARO") advised that his findings of fact were based, amongst other things, on questionnaires completed by Ashlee's treating doctor on 5 September, 8 October 1998 and 11 March 1999, questionnaires completed by Mrs Brammer and letters from Ms Wilkinson and Dr Garrick. The SSAT noted that it had relied on the same material together with the letters from the Member of Parliament and Ms Pack. In light of the relevant legislation, it appears to the Tribunal that those letters may be relevant to the issue under section 954 whether a CDA child receives care and attention on a daily basis in a private home and under section 952(a) and whether the treating health professional's responses to the questionnaire are accurate (see 2.2(3)(a)), but they cannot be relevant to the determination of the issue whether a child is a disabled child and therefore a CDA child under section 952(b). The questionnaire which is provided under the Tool to be complete by a treating health professional asks the question whether the young person has a disability and whether the child is likely to suffer from the disability permanently. Dr Garrick answered both those questions. The only other relevant material which the section provides that the decision-maker should consider is the material referred to in the Tool.

2. Mr Perdon had included the guidelines amongst the second set of documents to provide Mrs Brammer with a better understanding of how the Tool worked.   The overview of the Tool's scoring regime 3.6.8.10 (T26) within the guidelines provides an overview of the scoring process.   A child's chronological age is calculated; a score is assigned to each of the responses by the claimant and the treating health professional's questionnaires; the raw scores are adjusted; scores are amended for children aged 12 years and above; scores for the claimant and the treating health professional are added to obtain a total score; further adjustments are made for children who do not have a qualifying score but who are about to enter a new stage of development.   The scores are then validated in certain cases.   Steps 2, 3, 4 and 5 of the Tool provide for converting responses to questions in the treating health professional's and the claimant's questionnaires into scores with the aid of Tables.   Step 6 provides for the calculation of a score from the claimant's responses.   Step 7 provides for the calculation of a score from the treating health professional's responses.   Step 8 is not relevant here because it concerns children 12 years or older.    Step 9 provides that the claimant's score (step 6) and the treating health professional's score (step 7) are added, step 9(1) providing (T25):

   (1)Add the following scores:

   . . .
   (a)     Age amended claimant total score from part 1 of step 8:

   OR

   If there is no age amended claimant total score from part 1 of step 8—the interim claimant total score from step 6:

   AND

   (b)Age amended treating health professional total score from part 2 of step 8:

   OR

   If there is no age amended treating health professional total score from part 2 of step 8—the interim treating health professional total score from step 7:

Step 9(2) provides

(2)If the score mentioned in paragraph (b) of the table is not greater than 0, or the total score mentioned in the table is less than +1, go to step 10."

1. The second set of documents included a computer printout of the conversion of Dr Garrick's correctly completed questionnaire (T14) into a score.   It was a score of -1 (T18).   That is, it is not great than "0".   Mr Perdon provided Mrs Brammer and the Tribunal with a copy of the score calculated manually (exh 1, R1).   Step 9(2) of the Tool therefore requires the decision-maker to go to step 10.   Step 10 provides for the calculation of age amended scores but, due to Ashlee's age, step 10 is not relevant to her circumstances but the Notes to step 10 are.   A score of -1 was apparently calculated on 7 May 1999 after the correctly completed questionnaire had been obtained from Dr Garrick and before the ARO decided that the original decision made with respect to Mrs Brammer's claim was correct.   It was only after adding that score –1 to the score calculated from Mrs Brammer's questionnaire of -1.39, that a total recalculated age amended score of -2.39 was arrived at.   It is not clear why the scores were added in light of the Testing method (see paragraph 2 above).   The Notes to step 10 provide (T25):

   1. If, after completing step 10, the recalculated score mentioned in paragraph (b) of the table in step 9 in the Schedule is not greater than 0, or the recalculated total score mentioned in the table is less than +1, the child does not satisfy the condition in subparagraph 952(b)(ii) of the Act.

Therefore, unless the Tribunal is satisfied that the questionnaire completed by the treating health professional is not an accurate reflection of Ashlee's functional ability, emotional state, behaviour and special care needs, Mrs Brammer is not qualified to be paid CDA.  

1. The Tribunal is of the view that the Testing method under Part 2, 2.2 of the Tool and the steps in the Rating method, Schedule 2, are far from clear and on their face appear to be inconsistent.  The Testing method 2.2 under the Tool provides that a score must be calculated using the treating health professional's responses to the questionnaire using the Rating method in section 2.3 of the Tool, which includes the steps outlined above, including the scoring of the claimant's questionnaire.   If the score calculated with respect to the treating health professional is not greater than 0, the Testing method provides that the test is completed.   It would appear from the Testing method that it is unnecessary for a claimant to have completed a questionnaire at that stage.  

2. The Tribunal has already referred to the advice sent to Mrs Brammer on 12 October 1998 with respect to her claim (see paragraph 1 above).   The ARO advised Mrs Brammer in a letter dated 11 May 1999, that to qualify for CDA Ashlee required a score of not less than one under the Tool, advising:

   The Child Disability Assessment Tool comprises a set of questionnaires which are completed by you and by the child's treating health professional (THP).   It measures the child's functional abilities against age-related standards to determine the child's level of disability, and will do so regardless of the child's age or the type of disability.   In addition, the CDAT measures the child's behaviour and special care needs.   Responses to the questionnaires are assigned graded and weighted scores.   CDA cannot be granted if your child scores less than 1 under the CDAT.
   The responses  provided by you and Dr. Garrick on your respective questionnaires have been assessed under the CDAT and Ashlee has been assessed as having a score of –2.39.   Because her score is less than 1 you are not entitled to receive CDA for Ashlee and your claim has been rejected."  (T17)    

Even after Mr Perdon's explanation, Mrs Brammer said that she still found it hard to understand the Tool and the Tribunal can well understand her difficulty in the matter. The ARO advised Mrs Brammer that Ashlee was assessed as having a score of -2.39 yet the Notes to step 10 provide that if the score in paragraph (b) of the table in step 9 is not greater than 0 the child does not satisfy section 952(b)(ii) of the Act, which was Mr Perdon's submission.

1. Mrs Brammer told the Tribunal that she has two children, Christopher, now aged 15 years and Ashlee, now aged 10 years.   Ashlee has now been diagnosed with a further medical condition, symptoms of which were apparent when Mrs Brammer lodged her first claim for CDA with respect to Ashlee.   Mrs Brammer had not completed questions 9, behaviour and 10, special care needs in her questionnaire, as she was told by an officer at Centrelink that unless her child had a severe mental problem, such as attention deficit disorder, she should not respond to those questions.   In lodging her further claim for CDA with respect to Ashlee she has ticked the relevant boxes with respect to questions 9 and 10.   Mrs Brammer ticked one box stating that Ashlee displayed obsessional repetitive behaviour and the special care needs box that she required care provided by her parents more than twice each night.   The Tribunal accepts Mrs Brammer's evidence with respect to Ashlee's behaviour and that Ashlee had the same special care needs when Mrs Brammer completed her first questionnaire and had been advised not to complete those questions.   However, as the first hurdle for Mrs Brammer to overcome to qualify for CDA is the treating health professional's questionnaire responses, even had she completed the behaviour and special care needs questions correctly, she would not be entitled to CDA.

2. Mrs Brammer said that Dr Garrick observed Ashlee during Ashlee's initial hospitalisation for eight days when she was first diagnosed with juvenile diabetes and he had only seen her on two further occasions before completing his initial questionnaire.   Mrs Brammer's evidence with respect to Ashlee's behaviour highlights a problem which may arise for a decision-maker with respect to the accuracy of the treating health professional's responses to the questionnaire.   Mrs Brammer said that Ashlee had been "an angel" on her initial visits to Dr Garrick, but on her most recent visit she threw herself on the floor in tears.   At home she now suffers from violent mood swings, punching her mother in the stomach and, as she moves towards puberty, her blood sugar levels have varied widely.   Mrs Brammer provided the Tribunal with a chart that she has kept of Ashlee's finger prick and urine tests.   She checks Ashlee each evening just before midnight and Ashlee is again checked at approximately 4:00 a.m. to ensure that she does not need to be woken up to eat something.   Mrs Brammer also said that Ashlee did not have good hand/eye co-ordination for catching when she was first diagnosed with juvenile diabetes, although she could hit a ball with a bat.   She had therefore ticked response 8i (T6) with respect to the functional domain body movement and response 7j with respect to the functional domain hand movement as Ashlee can paint although she cannot do the other examples with respect to hobbies.   The Tribunal is satisfied that Mrs Brammer ticked the correct boxes in that it is not necessary for a child to be able to do all the examples given.  

1. Mrs Brammer is frustrated in that there was no provision on the claim form for general comments and she was unable to record that Ashlee suffers from an itchy scalp which she scratches until her scalp bleeds.   Mrs Brammer also needs to pay attention to Ashlee's diet.   Ashlee cannot play sport at school due to her now diagnosed knee condition and she is unable to attend school excursions.   She cannot go and stay with other children and she has told her mother that she would rather be dead than have diabetes.   She can become abusive and, although Mrs Brammer knows that help is only a telephone call away, she told the Tribunal that at the end of the day "you are on your own", a telling comment with respect to the unrelenting effect of Ashlee's condition on not only Ashlee but also her parents.

2. 16.      The Tribunal understands Mrs Brammer's reaction to the letter she received from the Minister for Family and Community Services (exh C) with respect to childcare, which appears to have been sent to all parents by way of information.   The letter did not suggest that Ashlee be placed in childcare, but the Tribunal can understand Mrs Brammer's reaction to it when she is under such stress.   Mrs Brammer said that she has claimed CDA to try to provide for Ashlee's extra needs, a recently purchased machine cost her $500 and other equipment, including needles and testing strips.  

3. Dr Garrick's six monthly reviews of Ashlee are now to be conducted on a three monthly basis.   The Tribunal gave consideration to calling Dr Garrick to give evidence but in light of the consistency between his responses to the questionnaire and Mrs Brammer's responses, the Tribunal decided it should not do so.   Regrettably, the Tribunal must accept the submission made by Mr Perdon that the decision under review should be affirmed, even though it accepts Mrs Brammer's evidence.   The treating health professional's responses do not translate into a score which would enable consideration to be given to Mrs Brammer's questionnaire, that is under step 9(3) of the Tool.   It is only if a treating health professional's total score is greater than 0, that further steps must be taken.   Mr Perdon said that the relevant legislation, including the Tool, are under review, and consideration is being given not only to the wording of the Tool to make it clearer to claimants how a decision is made, but also to ensure that the Tool fairly discriminates between those who have or do not have a disabled child.  

4. It is for these reasons that the decision under review will be affirmed.

   I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of 
   Mrs H.E. Hallowes, Senior Member
   (sgd)    Catherine Thomas
             Personal Assistant

   Date of Hearing:  09.03.2000
   Date of Decision:  20.04.2000
   Solicitor for the Applicant:           IN PERSON
   Solicitor for the Respondent:       Mr D. Perdon, Officer of Centrelink