Bushby and Secretary, Department of Social Services (Social services second review)
[2018] AATA 3936
•18 October 2018
Bushby and Secretary, Department of Social Services (Social services second review) [2018] AATA 3936 (18 October 2018)
Division:GENERAL DIVISION
File Number: 2018/2728
Re:Rosetta Bushby
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member C Edwardes
Date:18 October 2018
Place:Perth
The Tribunal affirms the decision of the AAT1.
...........[sgd].............................................................
Member C Edwardes
CATCHWORDS
Carer allowance – temporal element – only date of claim is relevant – hearing on papers by consent – Adult Disability Assessment Determination 1999 – score of 30 required – failure to achieve score of 30 – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) - s 34J
Social Security Act 1991 (Cth) – s 38C, s 954, s 954(1)(c)
Social Security (Administration) Act 1999 (Cth), s179CASES
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
SECONDARY MATERIALS
Adult Disability Assessment Determination 1999 – Schedule 1, Schedule 2
REASONS FOR DECISION
Member C Edwardes
18 October 2018
THE APPLICATION
This is an application for a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 20 April 2018. This decision affirmed a decision by an Authorised Review Officer (the ARO) dated 15 February 2018 as to whether the Applicant was qualified on the 19 September 2017 for carer allowance (T15).
The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth).
INTRODUCTION
The Applicant lodged a claim for carer allowance on 19 September 2017 (T15, 117-129).
The carer allowance claim included a list of questions pursuant to the Adult Disability Assessment Determination 1999 (Cth) (the Determination).[1] The Determination contains the “Adult Disability Assessment Tool” (ADAT) (T15, 120-121).
[1] This was the relevant determination that was in force at the time that the Applicant made her claim for carer’s allowance.
The Applicant responded to the questions in the claim for carer allowance (T15, 120-121).
The care receiver’s treating health professional also responded to questions in an attached form entitled “Carer Payment and/or Carer Allowance Medical Report” (T14, 111-116).
On 18 January 2018, the Applicant’s claim was rejected by a delegate at the Department of Human Services (the Department) (T16). Based on the medical evidence given to the Department, the condition of the care receiver was not at the level which would qualify the Applicant for carer allowance (T16).
The Applicant sought a review of the delegate’s decision and on the 15 February 2018, an ARO affirmed the decision of 18 January 2018 (T19, 139-144).
The ARO made the following findings of fact in its decision:
· The medical report completed by Dr Mudhar, on 11 September 2017 indicates that the care receiver has medical conditions including congestive cardiac failure, hypothyroidism, hypertension and diabetes.
· The care receiver requires no care assistance in day to day needs such as bowels, grooming, toilet use, feeding, dressing and bathing.
· The care receiver requires care assistance in day to day needs such as transfer from bed to chair and back, mobility and using stairs.
· The care receiver does sometimes experience loss of bladder control however you advise she requires no help with continence aids or equipment.
· The care receiver is not cognitively impaired.
· The care receiver sometimes shows signs of depression and memory loss.
· The care receiver is never withdrawn from social contact.
· The care receiver never displays aggression towards themselves or others or displays disinhibited behaviour.
· The care receiver Adult Disability Assessment Tool score from the Health Professional Assessment and your self-assessment were 14.50 and 10.50 respectively, giving a total score of 25.00 (T19, 140).
Dissatisfied with this decision, the Applicant sought a review from the AAT1 on 13 March 2018 (T20, 145).
The AAT1 affirmed the decision of the ARO on 20 April 2018 (T2, 3-6).
The AAT1 found:
17.The professional questionnaire completed by Dr Mudhar on 11 September 2017 rates a score of 14.50 under the ADAT. The claimant questionnaire completed on 23 January 2018 rates a score of 10.50. Based on Ms Bushby’s evidence the Tribunal was satisfied the claimant questionnaire represents [the care receiver’s] care needs as at the date of claim for carer allowance on 19 September 2017. This means the total score under the ADAT was 25.00 which is not sufficient to be qualified for carer allowance.
18.The Tribunal accepts Ms Bushby’s evidence that [the care receiver’s] behaviour has deteriorated in recent months and she feels she needs to stay close to her when she is moving about and that she sometimes appears to laugh or cry without any reason. Ms Bushby said [the care receiver] uses a walking stick because she shuffles when walking. It is open to Ms Bushby to lodge a new claim for carer allowance (T2, 6).
The Applicant applied for review of the AAT1 decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) on 15 May 2018. She stated generally, that the condition of the care receiver was deteriorating (T1, 2).
Both parties have advised the Tribunal they consent to the matter proceeding without a hearing. Having considered the nature of the matter under section 34J of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal is satisfied that the matter can proceed without a hearing and the Tribunal may review the decision by considering the documents or other material lodged/provided to the Tribunal.
The notional date for the hearing was 11 October 2018.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for carer allowance are contained in the Social Security Act 1991 (the Act), and the Determination.
Section 954 of the Act contains rules about when a person qualifies for a carer allowance in circumstances where the care provider and care receiver live in the same house.
Section 954(1) of the Act states:
Qualification for carer allowance–caring for a disabled adult in a private home of both the adult and the carer
(1)A person is qualified for carer allowance for a disabled adult (the care receiver) if:
(a)the care receiver is an Australian resident; and
(b)the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and
(c)the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and
(d)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and
(f)the person is an Australian resident…
[Emphasis added]
The Determination is made under section 38C of the Act which states:
38C Adult Disability Assessment Tool
(1)The Secretary may, by legislative instrument (the determination):
(a)devise a test for assessing the disability, emotional state, behaviour and special care needs of a person aged 16 or more; and
(b)provide a method for rating the person by giving him or her, on the basis of the results of the test, a score in accordance with a scale of the kind described in subsection (2).
(2)The scale referred to in subsection (1) is a scale that provides for a range of scores that indicate the different levels of physical, intellectual or psychiatric disability of persons.
(3)The determination is, in this Act, referred to as the Adult Disability Assessment Tool.
The Determination contains two questionnaires that together measure the amount of help the care receiver requires in order to be able to undertake the basic activities of daily living. Part 2.1 of the Determination states:
2.1 Questionnaires
(1)Part 1 of Schedule 1 sets out a questionnaire (the claimant questionnaire) about disability, emotional state, behaviour and special care needs of an adult.
(2)The claimant questionnaire may be completed only by a person (the claimant) wishing:
(a)to claim a carer allowance or carer payment, or both, under the Act for the care of an adult; or
(b)to continue to be qualified for receiving carer allowance or carer payment, or both, under the Act for the care of an adult.
(3)Part 2 of Schedule 1 sets out another questionnaire (the professional questionnaire) about the disability, emotional state, behaviour and special care needs of an adult.
(4)The professional questionnaire may be completed only by a treating health professional.
Schedule 2 of the Determination sets out a “rating method” and allows a decision maker to score the claimant based on the responses to the questionnaires set out in Schedule 1 of the Determination.
The Tribunal notes that the Applicant’s qualification for carer allowance can only be assessed at the date of claim, and any deterioration or change in the Applicant’s medical conditions can only be considered in the context of a new claim (Shi v Migration and Registration Authority [2008] HCA 31).
ISSUES
The key issue for the Tribunal to determine is whether the Applicant on the 19 September 2017 qualified for a carer’s allowance pursuant to section 954 of the Act.
EVIDENCE
The Tribunal has the following evidence before it:
·Exhibit A1 – an email from the Applicant to the Tribunal dated 11 September 2018 attaching:
oa claim form for “Review of care provider Carer payment and/or Carer Allowance” completed by the Applicant on 3 September 2018;
oa claim form for “Carer Payment and/or Carer Allowance Medical Report” completed by Dr Mudhar on 5 September 2018; and
oeight statements made by people in support of the Applicant’s application.
·Exhibit A2 – emails sent from the Applicant to the Tribunal on 8 July 2018 with the attachments:
oa copy of the Tribunal’s listing notice sent to the Applicant on 18 May 2018;
oa medical report from Canning Eye Clinic dated 22 June 2018;
oa letter from the East Metropolitan Health Service dated 25 May 2018 regarding an Occupational Therapy home assessment;
opages from a document titled “700 Health Assessment”, the author and date of the document is unclear;
opages from a document titled “707 Health Assessment” from Carousel Medical Centre dated 14 May 2018;
oa medical report from Dr Suganthan (Consultant Physician) at Armadale Health Service dated 27 April 2018; and
oa referral from Dr Mudhar (of Carousel Medical Centre) to Dr D’Souza to review the care receiver for further advice and assistance.
·Exhibit R1 – the T-documents (T1-T23, pp 1-179).
·Exhibit R2 – the Secretary’s Statement of Facts & Contentions dated 24 August 2018.
·Exhibit R3 – the Secretary’s Supplementary Statement of Facts & Contentions dated 13 September 2018, including a list of authorities and Attachments A – C. The attachments include:
othe claimant component of an ADAT questionnaire dated 3 September 2018 (Attachment A);
othe treating health professional component of an ADAT questionnaire dated 5 September 2018 (Attachment B); and
ovarious third party statements in support of the Applicant’s claim for carer’s allowance (Attachment C).
·Exhibit R4 – the Secretary’s hearing certificate received by the Tribunal on 30 July 2018.
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it. Relevant aspects before the Tribunal will be analysed and referred to below.
The Secretary’s submissions
The Secretary made the following contentions in Exhibit R2:
12.Section 954 of the Act contains rules about qualification for carer allowance when the care provider and care receiver live in the same house. In those circumstances, the legislation requires the care receiver to receive ‘care and attention on a daily basis’. In addition, the carer receiver must be assessed and rated under the ADAT set out in the Determination, and given a score of at least 30, including a score of at least 12 on a professional questionnaire (s 954(1)(c)).
13.The ADAT contains two questionnaires that together measure the amount of help the care receiver needs to undertake basic activities of daily living such as mobility, communication, hygiene, eating and management in a range of cognitive and behavioural arears [sic]. The carer is required to complete the claimant questionnaire of the ADAT, and a treating health professional must complete the health professional assessment component. The responses from the questionnaires are used to calculate a score indicating the level of care needed because of a physical, intellectual and/or psychiatric disability.
14.In this instance, professional and claimant questionnaires were completed by Dr Mudhar and the applicant on 11 September 2017 and 19 September 2017 respectively. The responses equated to a total score of 25 under the ADAT, made up of:
(a)Professional questionnaire: 14.5; and
(b)Claimant questionnaire: 10.5
15.The applicant did not dispute the information provided in the questionnaires in her evidence to the AAT1 on 20 April 2018, apart from noting a deterioration in [the care receiver’s] functioning ‘in the last three or four months’. As there is a temporal element, the applicant’s qualification for CA [carer allowance] can only be assessed at the date of claim, and any deterioration or change in [the care receiver’s] medical conditions can only be considered in the context of a new claim (Shi v Migration and Registration Authority [2008] HCA, 31 [144] – [145]).
16.As [the care receiver] was given a score of less than 30 under the ADAT, the applicant cannot satisfy s 954(1)(c) of the Act, and was therefore not qualified for CA at the time of her claim. No power exists to dispense with the operation of the provision, and the Tribunal’s determination of the applicant’s qualification must be based on the scores achieved using the ADAT questionnaires (original emphasis).
[Footnotes omitted]
The Secretary made further contentions in Exhibit R3 in response to additional evidence produced by the Applicant, they were as follows:
3.On 12 September 2018, the Applicant provided additional material in support of her contention that she was eligible for CA from 19 September 2017. The Applicant provided copies of:
(a)the claimant component of an ADAT questionnaire dated 3 September 2018 [Attachment A];
(b)the treating health professional component of an ADAT questionnaire dated 5 September 2018 [Attachment B]; and
(c)various third party statements in support of the Applicant's claim for CA [Attachment C].
Relevance of the additional material provided by the Applicant
4.On 19 September 2017, the applicant lodged a claim for CA in respect of the care provided to [the care receiver].
5.As there is a temporal element to a claim for CA, the applicant’s qualification for CA can only be assessed at the date of claim, and any deterioration or change in [the care receiver’s] medical conditions can only be considered in the context of a new claim (Shi v Migration and Registration Authority [2008] HCA, 31 [144] - [145]).
6.The Secretary submits that Attachment A and Attachment B are representative of [the care receiver’s] medical conditions at the date that they were authored, being 3 September 2018 and 5 September 2018 respectively. This is approximately 12 months after the Applicant’s date of claim of 19 September 2017. The Secretary contends these documents bare [sic] limited relevance to the Applicant’s eligibility for CA at the date that the claim [sic]. While they may demonstrate a deterioration in the caree’s conditions since the date of claim, it is submitted that the questionnaires completed at the time of the claim are more reliable when considering the Applicant's eligibility for CA.
7.In relation to the third party statements, as [the care receiver] was given a score of less than 30 under the ADAT, the applicant cannot satisfy s 954(1)(c) of the Act, and was therefore not qualified for CA at the time of her claim. The third party statements all note deterioration in the caree, lending support to the contention that the new evidence has limited application given the temporal element to the claim. The Secretary submits that the third party statements are incapable of disturbing the requirement to achieve an ADAT score of 30 points, and therefore, will not impact the Tribunal’s decision in this matter.
8.The Secretary submits that no power exists to dispense with the operation of section 954(1)(c) of the Act, and the Tribunal’s determination of the applicant’s qualification must be based on the scores achieved using the ADAT questionnaires provided with the claim (original emphasis).
CONSIDERATION
The Tribunal refers to the medical report of Dr Mudhar dated 11 September 2017, which formed part of the Applicant’s claim for carer’s allowance on 19 September 2017. The Tribunal considers the following relevant evidence from Dr Mudhar’s report (T14):
(a)the care receiver suffered from congestive cardiac failure, hypothyroidism, diabetes, hypertension and neurofibromatosis;[2]
(b)the care receiver’s conditions are physical, permanent and not likely to improve;
(c)the care receiver is bowel continent;
(d)the care receiver has the occasional (once a week) bladder accident;
(e)the care receiver is independent in relation to her grooming, toilet use, feeding, dressing and bathing;
(f)the care receiver requires help with transferring from the bed to a chair and back again, with mobility about the house/indoors and with stairs;
(g)the care receiver has no cognitive impairment;
(h)the care receiver sometimes shows signs of depressions and memory loss; and
(i)the care receiver does not withdraw from social contact, does not display aggression towards herself or others and does not display disinhibited behaviour.
[2] The Tribunal notes here that the handwriting was very difficult to decipher and neurofibromatosis is what the Tribunal understood the last medical condition to be.
Based on Dr Mudhar’s assessment of the care receiver 14.5 points were awarded under the ADAT. Based on the Applicant’s claimant questionnaire (T15) a score of 10.5 points was achieved, giving a total score of 25 points.
The Tribunal is bound to consider the answers given to the questions that the Applicant and the care receiver’s health practitioner provided to the Department at the time that the Applicant made her claim.
In this case, the Applicant only had a score of 25 points at the time that she lodged her claim, not a score of 30 as is required by section 954(1)(c) of the Act (see paragraph 18 above).
As previously mentioned, the Tribunal notes that the Applicant’s qualification for carer allowance can only be assessed at the date of claim, and any deterioration or change in the Applicant’s medical conditions can only be considered in the context of a new claim (Shi v Migration and Registration Authority [2008] HCA 31).
The Tribunal notes that the following evidence was given by the Applicant during the AAT1 hearing:
12. Ms Bushby did not take issue with the information provided by Dr Mudhar: however, she said the [care receiver’s] behaviour has deteriorated in the last three or four months and she has been verbally abusive towards her (Ms Bushby) on occasion. The care receiver has also started to repeat herself sometimes.
13. The Tribunal had regard to the carer allowance claimant questionnaire completed by Ms Bushby on 23 January 2018.
14. Ms Bushby confirmed that the information she provided on 23 January 2018 remained accurate except for some changes which she described as follows:
· In relation to [the care receiver’s] day-to-day care needs (question 5 of the claimant questionnaire) Ms Bushby stays close to her when she is moving about and sometimes verbally checks with her that she has taken her medication.
· In relation to [the care receiver’s] behaviour (question 7 of the claimant questionnaire) she sometimes laughs or cries without apparent reason.
15. At the hearing Ms Bushby provided the following additional documentation:
· Medical certificates from Dr Mudhar dated 12 and 19 April 2018.
· An appointment letter dated 19 March 2018 from Armadale Health Service.
· A Caregiver Strain Index completed by Ms Bushby on 19 April 2018 and given to Royal Perth Bentley Group.
16. Ms Bushby told the Tribunal she completed the Caregiver Strain Index to enable consideration of whether she can be provided with specialised equipment in her home in relation to her care of [the care receiver] (T2, 5-6).
The Tribunal notes that the Applicant lodged her claim for carer allowance on 19 September 2017 and this is the only application that the Tribunal is considering. The Tribunal notes that it also received additional information from the Applicant, including:
(a)the “Carer Payment and/or Carer Allowance: Medical Report” completed by Dr Mudhar on 5 September 2018;
(b)a “Review of Care Provider Carer Payment and/or Carer Allowance” completed by the Applicant on 3 September 2018;
(c)statements from various people to the effect that the care receiver’s condition has deteriorated; and
(d)medical reports and referrals between the period of April 2018 and June 2018 provided in Exhibit A2.
However, as these documents consider the care receiver’s condition after the Applicant’s claim for carer allowance (and in some cases approximately 12 months after the claim), the Tribunal finds they are of limited assistance in assessing the care receiver’s condition at the time of the claim. The Tribunal notes that this information may be considered in any future claims for carer allowance. Further, with regard to the statements provided showing that the care receiver’s condition has deteriorated this does not alter the requirement that the care receiver must be assessed as having a score of at least 30 under the ADAT.
CONCLUSION
On the basis of the evidence before it, the Tribunal finds that the Applicant’s claim of 19 September 2017 does not satisfy section 954(1)(c) of the Act. Therefore, the Tribunal finds the Applicant did not qualify for a carer’s allowance at the time of her claim.
DECISION
The Tribunal affirms the decision of the AAT1.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
.................[sgd].......................................................
Administrative Assistant Legal
Dated: 18 October 2018
Date of hearing: On the papers Applicant: Self-represented Solicitors for the Respondent: Department of Human Services
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Judicial Review
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