Cankulovski and Secretary, Department of Family and Community Services
[2001] AATA 1034
•21 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1034
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/812
GENERAL ADMINISTRATIVE DIVISION )
Re Kiril Cankulovski
Applicant
And Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Ms N Bell
Date21 December 2001
PlaceSydney
Decision The decision under review is affirmed.
[sgd] Ms N Bell
Member
CATCHWORDS
Social Security- carer allowance - carer payment - eligibility for - adult disability assessment tool - discrepancy between health professional's assessment and Applicant's assessment of care recipient's care needs
Social Security Act 1991 - sections 38C, 198 and 954
REASONS FOR DECISION
Ms N Bell
Member
This is an application by Mr Kiril Cankulovski ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 28 May 2001, which affirmed the decision of the Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 8 March 2001, to cancel the Applicant's carer payment and carer allowance in respect of his wife Mrs Cveta Cankulovska. The latter decision was reviewed by an Authorised Review Officer ("ARO") and affirmed in a decision dated 23 March 2001.
The Tribunal had before it the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents") and the Respondent's Statement of Facts and Contentions. The Applicant appeared on his own behalf and gave oral evidence to the Tribunal. The Respondent was represented by Ms Angela Smith.
BackgroundThe following background information was provided by the Respondent and not disputed by the Applicant:
Prior to the introduction of carer allowance and changes to the qualification criteria for carer payment in July 1999, the Applicant had been in receipt of carer payment, after successfully appealing the rejection of his claim for that payment;
Following the introduction of carer allowance and changes to qualification criteria for carer payment, the Applicant's entitlement to those payments was reviewed by Centrelink (T14 and 15). This involved the completion by Mrs Cankulovska's treating doctor of a Health Professional's Assessment form (which scored 5.5 points – T14) and completion by Mr Cankulovski of a Claimant Questionnaire (which scored 49.5 points – T19);
Carer payment and carer allowance were cancelled on 20 February 2001 on the basis of the Health Professional's Assessment;
A second Health Professional's Assessment was obtained on 28 February 2001 but only gave a score of 4.0 points and the decision to cancel was affirmed by an ARO on 23 March 2001;
On 28 May 2001 the SSAT affirmed the decision to cancel carer payment and carer allowance.
Issue
The issue to be considered in this application is whether the decision to cancel the Applicant's carer payment and carer allowance was correct, and, in particular, whether Mrs Cankulovska has a sufficient score under the Adult Disability Assessment Tool ("the ADAT") from the Health Professional's Assessment provided by Dr Sobol.
LegislationThe legislation relevant to these issues is sections 38C, 198 and 954 of the Social Security Act 1991 ("the Act") and the Adult Disability Assessment Determination 1999 ("Disability Assessment Determination").
Section 38C of the Act provides:
"The Adult Disability Assessment Tool
38C(1) The Secretary may, by determination in writing:(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).38C(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.
38C(3) The determination is, in this Act, referred to as the Adult Disability Assessment Tool.
38C(4) The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901."The Disability Assessment Determination provides that the ADAT will involve the completion of two questionnaires, namely the claimant questionnaire and the professional questionnaire, with the latter being completed by a treating health professional. Further, pursuant to Step 5(d) contained within Schedule 2 (Rating Method) a professional questionnaire score of 12 is the minimum score permitted if an individual is to qualify for payments of carer allowance pursuant to subsection 954(1)(c) of the Act. Step 5(a) requires that a score of 10 on the professional questionnaire must be achieved in order for the Applicant to qualify for carer payment pursuant to subsection 198(2)(a)(i) of the Act.
Section 954 of the Act provides relevantly:
"Qualification for carer allowance—caring for a disabled adult
954(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, and been given a score of not less than 30, under the Adult Disability Assessment Tool; 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."
Section 198 of the Act provides relevantly:
" 198 Qualification for carer payment
198(1) A person is qualified for a carer payment if the requirements of this section are met.
…
Constant care of disabled etc. persons198 (2) The person must personally provide constant care for:
….
(i) if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated, and given a score of at least 25, under the Adult Disability Assessment Tool; …"
Applicant's Evidence
The Applicant confirmed the information he had already given the SSAT. In summary that is:
his wife had a hysterectomy, colostomy and an ileostomy in 1994;
she also has high blood pressure which requires medication;
she experiences dizziness and this makes her reluctant to go near the stove and to shower without her husband's assistance;
the Applicant's wife needs his assistance to change her colostomy bag, particularly if she has diarrhoea. She has difficulty doing up all the tapes and sometimes has to wash the skin around the bag and change her clothes.
In addition the Applicant said that his wife's condition has deteriorated and continues to deteriorate. He said that for the last four weeks his wife has been in hospital, having had surgery at Wollongong Hospital and was then transferred to Westmead Hospital where she will have another operation. The Applicant was unsure of the nature of the surgery his wife had and is to have. He said that Mrs Cankulovska was referred for surgery by her treating doctor, Dr Sobol. After her surgery she will return home to be cared for by the Applicant.
The Applicant described his wife as being "totally dependent" on him.
The Applicant said that Dr Sobol, who completed the Health Professional Assessment form, has been Mrs Cankulovska's treating doctor for approximately six years. The Tribunal noted Dr Sobol having been Mrs Cankulovska's treating doctor ever since her colostomy in 1994. She also noted Mr Cankulovski's evidence to the SSAT that Mrs Cankulovska sees Dr Sobol approximately three times per month.
Respondent's evidence and submissionsMs Smith for the Respondent told the Tribunal that she had recently arranged for a social worker from the Dapto office of Centrelink to contact Dr Sobol with a view to discussing with him the apparent discrepancy between his assessments of Mrs Cankulovska's care needs and Mr Cankulovski's reporting of them. In particular, she noted that Dr Sobol had assessed Mrs Cankulovska as "continent" notwithstanding her colostomy and her frequent difficulties with diarrhoea. In this respect, Ms Smith advised, the social worker will attempt to discuss with Dr Sobol some issues of interpretation. The Tribunal notes that the SSAT highlighted this matter in its decision.
Ms Smith suggested that following this discussion, the Applicant would be assisted by Centrelink to make a further claim. The Tribunal also noted the Applicant's evidence that in recent weeks his wife's condition had taken a turn for the worse, including the need for surgery, which could be taken into account in a further assessment. Further, Ms Smith advised the Tribunal that in late August or early September of 2001, Dr Sobol completed yet another Health Professional's Assessment which gave the Applicant a score of 8.5 points.
Ms Smith, after drawing the Tribunal's attention to the provisions of sections 38C, 198 and 954 of the Act, referred it to the terms of Part 2.2 of the Adult Disability Assessment Determination 1999 and in particular paragraph three which provides:
"(3) If the Secretary is not satisfied that the professional questionnaire is an accurate reflection of the person's disability, emotional state, behaviour and special care needs, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional." (T4)
Ms Smith drew the Tribunal's attention to the obvious practical difficulties of the Applicant obtaining a further questionnaire from another treating health professional. These include Dr Sobol having been Mrs Cankulovska's treating doctor ever since her colostomy in 1994. She also noted Mr Cankulovski's evidence to the SSAT that Mrs Cankulovska sees Dr Sobol approximately three times per month. The Tribunal noted the Applicant's evidence that it was Dr Sobol who referred Mrs Cankulovska for surgery recently. He appears, from the information available to the Tribunal, to be the health professional best acquainted with Mrs Cankulovska's condition and needs.
ConsiderationThe Tribunal finds, on the basis of the Applicant's evidence and the documents lodged under section 37 of the Administrative Appeals Tribunal Act:
Mrs Cankulovska had a colostomy and an ileostomy in 1994;
she also has high blood pressure which requires medication;
she experiences dizziness and this makes her reluctant to go near the stove and to shower without her husband's assistance;
she needs the Applicant's assistance to change her colostomy bag, particularly if she has diarrhoea. She has difficulty doing up all the tapes and sometimes has to wash the skin around the bag and change her clothes;
her condition has deteriorated and continues to deteriorate and for the last four weeks she has been in hospital, having had surgery at Wollongong Hospital and then transferred to Westmead Hospital where she will have another operation.
Dr Sobol has been Mrs Cankulovska's treating doctor ever since her colostomy in 1994 and she sees Dr Sobol approximately three times per month.
Dr Sobol has completed two Health Professional's Assessment forms yielding scores of 5.5 and 4.0 respectively.
While the Tribunal notes the discrepancy between Dr Sobol's assessments of Mrs Cankulovska's care needs and the Applicant's reporting of her care needs, it is not satisfied that Dr Sobol's assessments are not an accurate reflection of Mrs Canuklovska's needs. That is not to say that the Tribunal has no doubts about the way in which Dr Sobol has interpreted such terms as "toilet use" and "incontinence" used in the forms. However, on a range of other matters that are less open to varying interpretations, Dr Sobol has also assessed a level of need that is at variance with that reported by the Applicant.
Given that the Disability Assessment Determination requires a minimum score from a Health Professional of 10 for carer allowance and 12 for carer payment, the Applicant, having obtained a score of 5.5, does not qualify to receive carer allowance or carer payment. The decision under review must therefore be affirmed.
The Tribunal is conscious of the efforts of Ms Smith to assist the Applicant in a further claim by ensuring that he has the assistance of a Centrelink social worker to liaise between him and Dr Sobol for the purpose of obtaining the most accurate assessment possible. The Tribunal is also mindful of the recent deterioration in Mrs Cankulovska's condition and the impact this may have on the Applicant's entitlements. The Tribunal, therefore, encourages the Applicant to avail himself of the assistance being offered to him and to pursue his right to make a further claim for carer allowance and carer payment.
DeterminationThe decision under review is affirmed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Signed: Raina Savage .....................................................................................
AssociateDate/s of Hearing 17 December 2001
Date of Decision 21 December 2001
Advocate for the Applicant Self
Solicitor for the Respondent Ms A Smith
1
0
0