Calo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 378

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 378

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5470

GENERAL APPEALS DIVISION		)
Re		TONY CALO

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date9 May 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.................[Sgd]........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – carer’s payment – whether child is a “profoundly disabled child” – child suffers from encopresis – applicant not entitled to payment – decision  under review affirmed.   

Social Security Act ss 197(2), 197 (2AA), 198

REASONS FOR DECISION

9 May 2008 Mr S Karas, AO, Senior Member

INTRODUCTION

1.        Tony Calo (the Applicant) applied to the Administrative Appeals Tribunal (the Tribunal) on 12 November 2007 for a review of a decision made by a Centrelink Officer on 30 July 2007 to reject his claim for carer’s payment.  On 10 August 2007 the Applicant sought reconsideration of that decision by the original decision maker.  The original decision maker affirmed the decision not to pay carer’s payment to the Applicant on 10 August 2007.  The Applicant sought further review of that decision by an authorised review officer on 13 September 2007.

2.        The authorised review officer affirmed the original decision on 5 October 2007.  On 9 October 2007 the Applicant appealed that decision to the Social Security Appeals Tribunal (SSAT).  On 9 November 2007 the SSAT affirmed the decision under review.

3.        A hearing of this matter was held in Coolangatta on 24 April 2008.  The Applicant appeared on his own behalf.  Mr McQuinlan appeared for the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent).  The Tribunal had before it the T-Documents lodged in accordance with s 37 of the Administrative Appeals Act 1975 together with other documents as follows:

·           A letter from the Respondent to the Applicant dated 7 December 2007 relating to the issues in this matter;

·           A further medical report submitted by the Applicant, a copy of which was forwarded to the Tribunal under cover of the Respondent’s letter 13 February 2008;

·           A copy medical report by Dr Judith Chittenden forwarded to the Tribunal and the Applicant under cover of the Respondent’s letter 4 April 2008;

·           A copy fax of Dr David Eyears report to the Respondent on 4 April 2008;

·           Copy of the Respondent’s Statement of Facts and Contentions dated 9 April 2008.

BACKGROUND

4.        The Applicant lodged a claim for carer allowance and/or carer payment with the Respondent on 21 June 2007 in relation to his son who was diagnosed as having “encopresis”.  The child’s treating doctor, Dr Raju indicated in her report submitted on 17 July 2007 that the child’s condition was “chronic constipation with soiling/incontinence” and “behavioural problems”.  It is noted on 6 February 2008 the applicant provided a further medical report from Dr Raju in support of his claim for carer payment.

5.        From the Secretary’s Statement of Facts and Contentions dated 9 April 2008:

“15.     On 6 February 2008 the applicant provided a further medical report from Dr Raju in support of his claim for carer’s payment.  That report disclosed the child’s medical condition as “chronic constipation with faecal soiling/incontinence” and “behavioural problems at home”.  In response to specific questions, Dr Raju indicated that the following criteria applied to the child: -

(a)       the child has faecal incontinence day and night; and

(b)       that child had a severe intellectual, psychiatric or behavioural disability/medical condition, as a result of which he

(i)repeatedly engages in dangerous behaviour that is, or gives rise to, a significant risk to his health and safety and that, without carer intervention, would result in the child suffering sustained tissue or bodily damage, or death; and

(ii)repeatedly engages in aggressive or violent behaviour that is, or gives rise to, a significant risk to the health or safety of others, or that results in significant property damage, and as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities.

16.Clinical notes obtained from Dr Raju’s practice at Christine Avenue Medical Centre do not however disclose that the child has ever been formally diagnosed with a severe intellectual, psychiatric or behavioural disorder.

17.On 12 March 2008 the child attended a psychological assessment with Dr Judith Chittenden.  Dr Chittenden subsequently provided a report to Centrelink dated 27 March 2008.  Dr Chittenden noted that: -

(a)The child had been “diagnosed as having encopresis which essentially means retention of faeces, gross constipation, and bowel motions occurring at inopportune moments during the day”;

(b) He was “an active (but not hyperactive) child who is intellectually of average intelligence”;

(c)His “diagnosis of encopresis and his high-spirited, but normal, behaviour exacerbates these family stresses”; and

(d)“The child does not have a severe intellectual handicap.  He is an active, high-spirited boy, but does not have a behavioural disorder”.

18.Dr Chittenden responded to specific questions which indicated that, in her opinion,

(a)The child does not have a severe intellectual, psychiatric or behavioural disability;

(b)The child does not have a severe intellectual, psychiatric or behavioural medical condition;

(c)       The child does not have a disability or condition that results in him engaging in dangerous behaviour that places his health or safety at risk;

(d)       The child does not engage in dangerous behaviour that, if not prevented, would result in him suffering sustained tissue or bodily damage or death;

(e)       The child does not have a disability or condition that results in him repeatedly engaging in aggressive or violent behaviour that poses a significant risk to the health and safety of others;

(f)       The child does not have a disability or condition that results in him repeatedly engaging in aggressive or violent behaviour that results in significant property damage;

(g)       The child does not engage in aggressive or violent behaviour that results in him being regularly or permanently excluded from community programs, activities, services or facilities;

(h)       The child does not have a disability or condition that results in him repeatedly engaging in severe sexually deviant or sexually inappropriate behaviour.

19.On 8 April 2008, the applicant provided a further report from Dr David Eyears, Consultant Child, Adolescent and Adult Psychiatrist.  Relevantly, in respect of the child, Dr Eyears noted that:-

(a)The child “has a long history of encopresis with overflow soiling”;

(b)“he suffers from a mild to moderate degree of social anxiety and some separation anxiety symptoms”;

(c)       “there is a suggestion of mild learning problems in the area of reading and possible Attention-Deficit/Hyperactivity Disorder.  Any ADHD syndrome is not severe in and of itself as evidenced by mild symptoms only”;

(d)       “his parents report severe challenging behaviour with open defiance toward them.  There has been physical aggression toward his mother and brother…”;

(e)       his “parents have detailed incidents of dangerous behaviour…[including] wandering onto the road in a provocative way”;

(f)The child’s “behaviour does not preclude him from usually attending school”; and

(g)He was “unaware of any significant concerns about property damage”; and

(h)There was no “repeated engagement in any severe sexually deviant or sexually inappropriate behaviour[1]”

[1] See Respondent’s Statement of Facts and Contentions par 15 -19.

6. Section 198 of the Social Security Act 1991 (the Act) sets out the requirements for a carer payment. Section 198(2) of the Act requires that to qualify for a carer payment a person must provide constant care for a profoundly disabled child aged under 16.

7. Section 197(2) defines a “profoundly disabled child” 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 in writing 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”.

8. Although the Respondent accepted that the child had a severe medical condition (encopresis) that results in him requiring permanent care for 6 months or more, the child was unable to satisfy the requirements of s 197(2) that needed him to meet 3 or more of the listed circumstances in that section of the Act. Section 197(2AA) of the Act provides an extended definition for “profoundly disabled child” in relation to children over the age of 6.  That section provides as follows:

“(2AA)  A child is a profoundly disabled child if:

(a)  the child has either:

(i)  a severe intellectual, psychiatric or behavioural disability; or

(ii)  a severe intellectual, psychiatric or behavioural medical condition; and

(b)  the child, because of the 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 is at least 6, and under 16, years of age; and

(d)  because of the child's disability or condition, the child does one or   more of the following:

(i)  repeatedly engages in dangerous behaviour that is, or that gives rise to, a significant risk (whether immediate or long‑term) to the child's health or safety and that, without carer intervention, would result in the child suffering sustained tissue or bodily damage, or death;

(ii)  repeatedly engages in aggressive or violent behaviour that is, or that gives rise to, a significant risk to the health or safety of others, or that results in significant property damage, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities;

(iii)  repeatedly engages in severe sexually deviant or sexually inappropriate behaviour, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities. “

9.        It was found by the earlier decision makers and the SSAT that the child was unable to satisfy the definition of a “profoundly disabled child” under the Act.

Issues

10.      The issues for the Tribunal to determine are:

(a)Whether the child is a “profoundly disabled child” as defined in the Act; and

(b)Whether the applicant is entitled to carer’s payment in respect of his child.

11.      A hearing of this matter was held in Coolangatta on 24 April 2008.

Evidence

12.      At the hearing the applicant gave evidence to the effect that:

·     In June 2007 he applied for a “carer’s pension” for his son.

·     He referred to his dealings with Centrelink and the doctor’s reports in this matter.

·     He was critical of Dr Chittenden’s report as she had “not assessed” his child nor had she interviewed or interacted with him as Dr Eyears had.

·     Reference was made to a psychologist Dr Bunch who had seen the child and the association Pondering Poos had with the family.

·     He referred to the child’s behavioural problems as identified by Dr Raju the treating doctor.  He indicated that the child’s behaviour had become more intense and progressive in that he “shows and uses a lot of aggression” towards members of his family.  He also stated that the child’s behaviour is not improving.

·     He noted the child played soccer and was “very quiet” and “slow” at school.  He referred to difficulties at school and how his child has 1 or 2 friends with whom he plays at school.

·     He does not work as he needs to care for his child.

·     He and his partner have two other children and his partner is expecting another child.

13.      The child’s maternal grandmother gave evidence of the child’s behavioural problems over the last few years.  She noted the child spends one day each week at her place on the weekend and how she has to contact the child’s father to pick him up as he gets “wild”; he does other things of a sexual nature and how he is unlike any other of her grandchildren.  She stated the child runs off and she is unable to control him.  She also cares for her 84 year old mother.  She described the child as “a very insecure boy” and although he is well behaved at times he “plays up” usually at night time.

14.      The child’s maternal grandfather also alluded to the child’s bad behaviour.  He stated he and his wife usually care for the child some 3 times a week after school.

15.      The child’s mother believes he has severe behavioural problems and that he needs treatment for this.  She referred to his medical condition and the child’s visits to Pondering Poos every 3 months and other doctors such as Drs Raju and Eyears.  She noted the child plays soccer.  He regularly attends school and the calls from school are not about his behaviour but that he has soiled himself.  The child has friends and receives invitations to birthday parties. 

16.      She described the child as being aggressive to his siblings and to her.  He is very defiant and becomes annoyed when he does not get his own way.  He regularly goes out of the house on to the road and has exposed himself.  She stated he goes to his grandparents once a week usually on weekends and how they also look after him when she has to go to the doctors and the like.

17.      The child’s mother stated he attends regular school and she usually gets two calls a week to collect him from school.  The teachers are aware of and sympathetic to his situation and as yet he is not teased by others at school.  She stated that he plays with other children and when he pulls their pants down “he laughs about it”.  The doctors are fully aware of this and his playing with other children.  She reiterated that he is aggressive at home with her and his siblings and that she needs to supervise him.  She wants him to get the help he needs and related an incident when he got a knife out of a drawer.

18.      The child’s paternal grandmother, who lives in Sydney and visits every 3-4 months for a couple of weeks, stated that she gets upset looking after the child and she believes there is something wrong with him and that he needs help.  She has also noticed the child’s aggressiveness towards members of his family and even to her.

19.      A friend of the applicant, who has lived with the family for the last 4 months and largely keeps to himself, described the child as being “very defiant”.  He has noticed the child being “unruly” and that he gets “uppity and over zealous”.  The child tends to stand over his younger brother although they usually play “alright” and he sometimes gets violent to his younger brother.  He referred to his 12 nephews and nieces and how children get into fights and that he can be “spiteful” but he sees some malice in this child.  He interacts with the child and said he does not listen.  As well he noticed the child plays with the neighbour’s two children who come over for an hour or so to play with the child.

20.      Before preparing the report for Centrelink, Dr Chittenden referred to the three hour period spent speaking with the parents separately and together and with the child and his parents.  Dr Chittenden said that the child was not dangerous.  She was referred to parts of Dr Raju’s report referring to the child’s behaviour, and she stated the child was not a sexual deviant.  She referred to the psychological aspects of the child’s medical condition and to the “real pressures” on the family.  The child’s condition was “very frustrating” and created more work for the parents and caused tension within the family.  However, she found that the child was not a “profoundly disabled child”.

21.      The applicant also questioned Dr Chittenden and raised the assessment of the child or lack of it with her.  She stated she spoke long enough to the child to conclude that although he was not intellectually handicapped he had a medical problem.  She stated the child was not a sexual deviant but that this behaviour should not be encouraged.  The child was assessed as part of the family and she urged Centrelink to consider the stress on the family in her report on the child.  She was concerned about the stress on the family, that the child’s behaviour was difficult to manage by the family and that the child is not disabled.

22.      Dr Raju stated she had been treating the child since 2005.  She referred to his medical reports and stated the child’s medical condition was regarded as “serious”.  She stated she was a general practitioner (GP) and not a child psychologist or psychiatrist.  She had relied on what she was told by the child’s parents and had not noticed him being aggressive as such during her consultations.  She stated she was told of his “aggressive and violent behaviour” by the child’s parents and that she was awaiting reports by other doctors such as Dr Price in relation to the child.  She agreed that if specialists thought the child was not aggressive or violent she would agree with that to a degree.

23.      The advocate for the Respondent relied on the Facts and Contentions already submitted in this matter and that the child was not a profoundly disabled child as defined in the Act.  Reference was made to Dr Raju’s earlier report where she only referred to his medical condition of chronic constipation and made no reference to behavioural problems that she referred to in a later report in January 2008.  It was pointed out that this later report was in contrast to the specialist report by Dr Chittenden and to a lesser extent of Dr Eyears.

24.      The advocate noted that the child attended normal school and there was no evidence that the school finds the child as “out of control”.  He plays soccer and engages with the neighbourhood children.  The child’s behavioural problems seem to be with his parents and family and indeed this was first referred to in Dr Raju’s second report.  He also noted it appeared Dr Raju made that report with some reluctance and that she had not diagnosed this herself.  The advocate referred to the specialist reports in this matter by Drs Chittenden and Eyears.

25.      The applicant summed up by referring to the child’s behavioural problems that he stated “were getting worse and needed attention”.  He referred to Dr Raju’s second report and how he had been requested by Centrelink to back date it.  He referred to Dr Chittenden not assessing the child and that he disagreed with her report and she should have spent more time with the child.

26.      The applicant noted Dr Eyear’s report that was recommended by Dr Raju.  The applicant stated he wanted the child to get the help he needed and again referred to his sexual and behavioural problems as not being “normal”.

CONSIDERATION AND FINDINGS

27.      In order for the applicant to qualify for carer payment in respect of his child, he must be providing constant care for the child who, in turn, must be a “profoundly disabled child” as defined in the legislation.

28.      Dr Raju’s report dated 14 July 2007 indicated that the child suffered “chronic constipation with soiling/incontinence” and “behavioural problems”.  However in completing question 5 of the report Dr Raju noted that the child did not “have a severe intellectual, psychiatric or behavioural disability/medical condition”.

29.      On 6 February 2008 the applicant provided a further medical report from Dr Raju (the second report) where her answer to question 5 had changed as the doctor now indicated that the child did suffer “a severe intellectual or behavioural disability/medical condition” in that he “repeatedly engages in dangerous behaviour…” and that he “repeatedly engages in aggressive or violent behaviour…”.  This report also noted, in question 1, that the child had “behavioural problems at home”.

30.      The Tribunal notes that this report was initially dated 29 January 2008 but the date was changed to 21 June 2007 at the applicant’s request it seems.  Dr Raju stated in evidence that she was told of the child’s behaviour by his parents and that if a specialist diagnosis was different to a certain degree she would agree.

31.      Dr Eyears a specialist consultant child psychiatrist in his report dated 8 April 2008 agreed that the child had a “history of encopresis with overflow soiling” and he referred to other behavioural matters arising from what the child’s parents reported.  However he noted that the child’s behaviour did not prevent him from usually attending school and that there was no “repeated engagement in any severe sexually deviant or sexually in appropriate behaviour” and “no report of a need for regular or permanent exclusion from community activities, programs or facilities as a result of sexualized behaviour”.

32.      As well Dr Judith Chittenden a specialist in psychological medicine found the child had encopresis was high spirited but normal in behaviour who did not have a behaviour disorder and as indicated above in answers to specific questions that the child was not profoundly disabled.

33.      The Tribunal notes that at the hearing Dr Raju referred to her changed answers in relation to question 5 on the form and the reasons for doing so.  However, in the circumstances the Tribunal prefers the evidence of the other 2 specialists in this matter, Drs Chittenden and Eyears, where both indicated that the child’s behaviour and sexual deviancy was not in the order as contemplated in the legislation.  All doctors agreed that the child suffered encopresis and this does exacerbate his behaviour at times.  Given the child’s medical condition and the fact that in his every day life his pants would normally be pulled down each day, this does not in these circumstances translate as sexually deviant behaviour for this child to take down his trousers and at time that of others. Indeed the Tribunal does not find the child’s actions as being sexually deviant given his bowel problems and as explained by Dr Chittenden. 

34.      In regard to the child’s aggressive behaviour the Tribunal accepts the evidence of the applicant, his friend and family that on occasions the child exhibits such behaviour.  However, the Tribunal notes that it seems largely to be directed at members of the family including grandparents.  The child attends a normal school where his “aggressive behaviour” does not appear to be a problem.  He plays soccer regularly and again there was no evidence that he exhibits violence in that sport or pastime.  He also attends birthday parties of his friends from time to time and the neighbourhood children play with him as well.  Indeed, his main problem seems to be from his encopresis condition.

35.      The Tribunal notes that although Dr Eyears referred to some behavioural problems in his report on the child he was not prepared to conclude that the child has a severe intellectual, psychiatric or behavioural disorder or condition.  Dr Chittenden also concluded that the child did not have or did not engage in the type of behaviour required by the legislation.  Neither doctor concluded that the child engaged in repeated dangerous behaviour or that his behaviour results in significant property damage.  Indeed, as indicated above the child’s behaviour has not resulted in his being excluded from school or other community activities or facilities as a result of such behaviours.  Furthermore, neither doctor considered that the child engages in severe sexually deviant or sexually inappropriate behaviour.  The Tribunal notes that he has not been excluded from school or other activities as a result of such behaviour.

36. The Tribunal finds on the evidence and material before it that the child suffers from a severe bowel disorder, encopresis, and meets the condition listed in s 197(2)(c) of the Act that needs constant care for 6 months or more. However, he is unable to satisfy any other requirement of that section. Consequently, as he is unable to satisfy at least three of the conditions listed in section 197(2)(c), he does not have a severe intellectual, psychiatric or behavioural disability or medical condition as referred to in s 197(2AA)(a) and he does not satisfy any of the additional requirements combined in s 197(2AA)(d) he cannot be regarded as a “profoundly disabled child” for the purposes of the legislation. Given that the definition of a “profoundly disabled child” in s 197 of the Act is an exclusive definition, the applicant does not qualify for carer payment pursuant to s198 of the Act. The Tribunal notes that there is no discretion under the act to pay carer payment to a person unless the requirements for qualification for such payment as referred to in s 198 of the Act are satisfied. However, the Tribunal like the SSAT before has much sympathy for the applicant and his family in the circumstances as he provides care and on-going support to his child in difficult circumstances. The Tribunal also notes the comments of Dr Chittenden in her report regarding the stresses and difficulties on this family and their need for support and assistance. That said the Tribunal is bound by the legislation and must apply the law as expressed in the Act.

CONLUSION

37.      The Tribunal affirms the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed:         .......................[Sgd].........................................................
  Research Associate

Date/s of Hearing  24 April 2008
Date of Decision  9 May 2008
For the Applicant  Applicant, self represented 
For the Respondent                  Mr R McQuinlan, departmental advocate