Carberry and Department of Family and Community Services
[2001] AATA 105
•19 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 105
ADMINISTRATIVE APPEALS TRIBUNAL )
) No n1999/1933
GENERAL ADMINISTRATIVE DIVISION )
Re robin dawn carberry
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member M D Allen
Date19 January 2001
PlaceCoffs Harbour
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/1933
)
GENERAL ADMINISTRATIVE DIVISION )
Re: ROBIN DAWN CARBERRY
Applicant
And: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 19 January 2001
Place Coffs Harbour
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT this matter is to be remitted to the Respondent so a replacement questionaire by another treating health professional can be obtained.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
Child Disability Allowance. Was treating paediatrician's report one which accurately reflected child's disabilities etc? Child Disability Assessment Determination criticised.
Social Security Act 1991 - s952
Dainty v Minister for Immigration 6 AAR 259.
Gibbons v Secretary to the Department of Family and Community Services [1999] AATA 994
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 19 January 2001
Date of Decision 19 January 2001Solicitor for Applicant Ms F McMullin,
Legal Aid Commission, Coffs Harbour
Advocate for Respondent Ms M Buckley,
Department of Family & Community Services
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1999/1933
By Mr M.D. ALLEN
CARBERRY and DEPARTMENT OF
FAMILY & COMMUNITY SERVICES
COFFS HARBOUR, FRIDAY, 19 JANUARY 2001MR ALLEN: In this matter, by application lodged with the Tribunal on 13 December 1999, the applicant seeks review of the decision by a Social Security Appeals Tribunal made 22 September 1999 affirming a prior determination by a delegate of the respondent to reject the applicant's claim for a child disability allowance in respect of her son, Harley. The initial claim was made on 3 February 1999 in respect of the child who was born on 5 February 1994.
The legislation involved is section 952 of the Social Security Act 1991, as amended which reads, inter alia:
"… a young person is a disabled child if:
(a)the young person:
(i)has a physical, intellectual or psychiatric disability; and
(ii)is likely to suffer from the disability permanently or for an extended period; and
(b)a determination of the Secretary under section 952A is in force and one of the following conditions applies:
(i)under the determination, the disability is declared to be a recognised disability for the purposes of this section;
(ii)the young person has been assessed and rated under the Child Disability Assessment Tool and has been given a positive score of not less than 1."
In this matter, in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, Document T5 is a treating doctor's report. In that document, various assessments are given as to the severity of the child's incapacities and, in this case, the report was prepared by a Dr Budd, who is the child's treating paediatrician.
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In evidence to the Tribunal today, the applicant stated that Dr Budd has been treating her child, Harley, since he was born. There is also other material before the Tribunal to point to the fact that that treatment is still ongoing. I take it from that, therefore, that Dr Budd is very familiar with the child. In passing, I would also say that I reject the submission by the applicant's solicitor that the delegate of the Secretary should, in any way on the material before her, have any reason to investigate further an assessment by an appropriately qualified professional.The assessment by Dr Budd was apparently done under something which is called the Child Disability Assessment Tool and there is also a Child Disability Assessment Determination of 1998. Paragraph 2.2 of that determination is headed, Testing Method and reads, inter alia:
"(1)The test for assessing a young person's functional ability, emotional state, behaviour and special care needs is set out in this section.
(2)The test consists of the 2 questionnaires mentioned in section 2.1.
(3)The following steps are carried out for the test:
(a)the Secretary must be satisfied that a questionnaire set out in Part 2 of Schedule 1 completed by a treating health professional is an accurate reflection of the young person's functional ability, emotional state, behaviour and special care needs;
…"
In this matter, the applicant in evidence today has challenged the accuracy of Dr Budd's assessment. The applicant gave evidence and it is clear that she is a person of Aboriginal extraction. She has a limited education and by no means could be thought to be a sophisticated person. I infer from all that that she would have some diffidence in questioning a professional of the status of Dr Budd.
I saw her give evidence and be cross-examined and I agree with the submission of the applicant's solicitor that she is a person lacking in guile. In other words, there are some inconsistencies in her evidence but I do not believe that they are deliberate. What point she did make, however, was that in various assessments, Dr Budd has over-assessed the competence of the child, Harley. For example, Dr Budd has stated that the child dresses and undresses himself but needs assistance with buttons, laces or tight clothing. The evidence of the
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It is also under section 8, Dr Budd, in his report in January 1999, says that:
"Child talks or signs well and can use six or more words in a sentence."
In a follow-up report dated 7 April 2000, Dr Budd has noted that:
"Child can say sentences with three to four words. People other than family members can understand the child's speech."
One must deduce from that that either he was over-assessed in 1999 or his condition has regressed. It is difficult to say which. Similarly, under section 10, in 1999 (T5 p21), Harley was assessed as being able to indicate toilet needs during the day but needing some assistance with clothing and wiping whereas in 2000 (Exhibit A1 p8) he requires full assistance with toileting. That confirms the mother's evidence today.
In addition, the report in 1999 was apparently compiled by talking with the mother whereas in 2000 Dr Budd had the child before him and made an assessment from observation as well as reports. Exhibit R3 is a report by Dr Budd. However, as can be said with all medical reports, a medical practitioner in making that report is limited by the extent of his instructions. In the report, Dr Budd says:
"Thank you for supplying me with photocopies of the information provided by me in the reports. This information is fair and reasonable for the time the reports were written, reflecting the priorities affecting Harley at the time the reports were completed."
I must say, as an aside, I am not quite clear what Dr Budd means by that. He goes on to add:
"In terms of the diagnosis of ADHD"
which I take to mean Attention Deficit Disorder
"I have little doubt that features of that disorder were present at the time of the first report on the 20th January, 1999. However, the other conditions were of greater priority and in greater need of assistance than the ADHD."
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©Auscript Pty Ltd 2000That may be so but if it was present, no doubt it should have featured in the report. What the evidence of the mother has satisfied me of today, together with the comparison between the reports of Dr Budd in 1999 and 2000, is that I am not satisfied that the questionnaire completed by him in 1999 is an accurate reflection of the young person, namely Harley's functionability, emotional state, behaviour and special care needs.
Under the terms of the Child Disability Assessment Determination, the only option to the respondent – and hence this Tribunal – is to ask for a replacement questionnaire to be completed by another treating health professional. That, of course, reflects a serious defect in the determination in that this matter could readily be resolved if Dr Budd was consulted again and asked to reconsider his reports. It may well be that, on a reconsideration, he would adhere to his original report. I don't know.
Suffice it to say, on the material which has been before me, the applicant has satisfied me that I should not be satisfied that the questionnaire is accurate. Therefore the decision under review will be set aside and this matter remitted to the respondent in order that it can take action to obtain a replacement questionnaire by another treating health professional. As an aside, I would also question the word "treating health professional". If the child is under the care of one paediatrician, one wonders what is meant by another treating health professional.
The only other matter I would mention is that argument was addressed to me by the advocate for the respondent as to public policy matters. I will only state that the task for this Tribunal is to make the correct or preferable decision in the individual's case. The policy, or what it might be, was not enunciated in any detail and certainly no document setting out policy was provided to me. In dealing with policy, I would simply refer to the decision of Davies J in Dainty v Minister for Immigration 6 AAR 259.
The only other matter to mention is that, in contrast to the case of Gibbons v Secretary to the Department of Family and Community Services [1999] AATA 994 referred to by the respondent in this matter, there are inconsistencies. For the reasons I have just stated therefore, this matter will be set aside and remitted to the respondent for the obtaining of a further report.
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