CHRISTY SHORT and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 391
•27 June 2012
[2012] AATA 391
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4933
Re
CHRISTY SHORT
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr A Frazer
Date 27 June 2012 Place Perth The Tribunal affirms the decision under review.
(sgd) Dr A Frazer Member........................................
Dr A Frazer, Member
CATCHWORDS
SOCIAL SECURITY - Carer Payment and Carer Allowance - assessment of score on Care Needs Assessment questionnaire – less than 85 – child less than 16 years of age.
LEGISLATION
Social Security Act 1991 s 38E, s 197A, s 197B, s 953
Social Security (Administration) Act 1999 cl 4(1) of Schedule 2
Disability Care Load Assessment (Child) Determination 2010
REASONS FOR DECISION
Dr A Frazer, Member
27 June 2012
HISTORY
The applicant has a daughter, Jayde, who was born on 24 August 1995.
The applicant lodged a claim for carer payment and carer allowance for Jayde (a child under 16 years) in respect of Jayde’s von Willebrands disease and chronic anaemia on 16 May 2011.
On 18 May 2011 Centrelink received a medical report confirming Jayde suffered from anaemia due to iron deficiency.
On 2 June 2011 Ms Short was notified of the rejection of her claims for carer payment and carer allowance (for a child under 16 years).
On 9 August 2011 the applicant provided a further Care Needs Assessment form and further medical evidence that Jayde, in addition to her von Willebrands disease and anaemia, was also suffering from Chronic Fatigue Syndrome with a reactive depression.
On 9 August 2011 Centrelink notified the applicant that the rejection decisions had been reconsidered and found to be correct.
On 9 August the applicant requested that the rejection decisions be reviewed by an authorized review office (ARO).
On 16 August 2011, after discussing the matter with the applicant and arranging for her to provide new responses to the questions on the Care Needs Assessment form, an ARO affirmed the decisions that the applicant was not qualified to carer payment or carer allowance for a child under 16 years of age.
On 21 October 2011 the Social Security Appeals Tribunal (SSAT) affirmed the rejection of the carer payment and carer allowance (child under 16 years).
On 18 November 2011 the applicant made an application to this Tribunal for a review of the SSAT’s decision.
On 24 August 2011 the applicant’s daughter, Jayde, turned 16 and the applicant claimed for and was granted carer payment and carer allowance (for a person 16 years or over) from that date.
ISSUE
The issue to be considered by this Tribunal is whether the applicant was qualified to receive carer payment and carer allowance (for a child under 16 years) for her daughter, Jayde.
LEGISLATIVE FRAMEWORK AND POLICY
Sections 197A and 197B of the Act together set out the qualification for carer payment for a single disabled child. Section 197A states, in part:
(1)The following sections set out the circumstances in which a person is qualified for a carer payment:
(a) section 197B (child with a severe disability or severe medical condition);
Of relevance to this application for review, section 197B of the Act states, in part:
Child with a severe disability or severe medical condition
(1) A person is qualified for a carer payment if:
(a)the person personally provides constant care for a person (the care receiver) aged under 16 with a severe disability or severe medical condition; and
(b)the person has been given a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination for caring for the care receiver; and
(c)a treating health professional has certified in writing that, because of that disability or condition:
(i)the care receiver will need personal care for 6 months or more; and
(ii)the personal care is required to be provided by a specified number of persons; and
(d)the provision of constant care by the person severely restricts the person’s capacity to undertake paid employment; and
(e) the requirements of subsections (2), (3) and (4) are met.
Constant care in home
(2)The constant care must be provided in a private residence that is the home of the care receiver.
Section 953 of the Act sets out the qualification for carer allowance for a disabled child. It states, in part:
A person is qualified for carer allowance for a disabled child (the care receiver) if:
(a)the care receiver is a dependent child (disregarding subsection 5(3)) of the person; and
(b)the care receiver is an Australian resident; 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:
(i)if the person is a member of a couple—the person, the person’s partner or the person together with another person (whether or not the person’s partner); or
(ii)if the person is not a member of a couple—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
(e)either of the following applies:
(i)the disability from which the care receiver is suffering is declared, under subsection 38E(3), to be a recognised disability for the purposes of this section;
(ii) the person has been given a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination for caring for the care receiver; and
(f)the person is an Australian resident.
Section 38E of the Act allows a means of assessing a child’s disability which is known as the Disability Care Load Assessment (Child) Determination (DCLA). This section of the Act enables the Secretary (Centrelink) to devise the assessment tool as follows:
The Secretary may, by legislative instrument (the Disability Care Load Assessment (Child) Determination):
(a)devise a test for assessing the functional ability, behaviour and special care needs of a person aged under 16 (the child), that includes an assessment that must be completed only by a treating health professional; and
(b)provide a method for rating the care needs of the child; and
(c)provide a method for giving a qualifying rating to a person (the carer) who is caring for the child that takes into account:
(i) the care provided for the child by the carer; and
(ii) the assessment completed by the treating health professional.
…
(3)The Disability Care Load Assessment (Child) Determination may, in addition, declare that a physical, intellectual or psychiatric disability specified in the determination is a recognised disability for the purposes of section 953.
The DCLA contains the rating method, the assessment of care load (ACL) questionnaire completed by the carer, the professional questionnaire, the scoring method for each questionnaire, the minimum scores required for each questionnaire to contribute to a qualifying rating, and the minimum total scores for each questionnaire to achieve a qualifying rating for carer allowance (child). The DCLA enables an assessment of the functional ability, behavior and special care needs of a child to determine a qualifying rating, which is the rating a claimant must achieve to be qualified to receive carer payment or carer allowance under the Act for the care of a child aged under 16 years of age.
Part 2, section 12 of the DCLA states:
Carer of a child with a severe disability or severe medical condition
(1)This section applies to a person who is caring for a child with a severe disability or severe medical condition.
(2)If this section applies to a person:
(a) a professional questionnaire must be completed for the child; and
(b) the person must complete an ACL questionnaire for the child.
(3)For the purposes of paragraph 197B(1)(b) of the Act, the person achieves a qualifying rating of intense if:
(a)the total score for the ACL questionnaire is 85 or more; and
(b) the score on the professional questionnaire is greater than 0.
In accordance with clause 4(1) of Schedule 2 to the Administration Act, the Tribunal is required to determine Ms Short’s qualification for carer payment and carer allowance on the date she lodged her claim, 16 May 2011, and in the 13 week period thereafter.
THE EVIDENCE
The evidence before the Tribunal comprised the T documents lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
The oral evidence of the applicant
THE APPLICANT’S EVIDENCE
The applicant told the Tribunal that Jayde is now in Year 12 at a Senior High School. The applicant said that Jayde has von Willebrands disease (a type of bleeding disorder) and an associated anaemia, however this is now better managed with some dietary iron and hormonal supplements. Jayde has not been well since Year 10 however she may be slowly improving now.
The applicant is still unsure of the cause of Jayde’s illness. The applicant said Jayde sees her local GP regularly and Jayde has also been reviewed by various clinical specialists. Jayde had a tonsillectomy in Year 10 however this did not lead to much clinical improvement. Jayde will also see an allergy specialist.
Jayde has missed a lot of school over Year 11 and 12 and also missed work experience this year. She has not had enough energy to play sport regularly. Jayde has maintained her social contacts with her friends still dropping over, watching a movie and she also meets up with her friends at the shopping centre.
The applicant said Jayde was 15 when the applicant first applied for the Carer Allowance and that the questions she was asked by Centrelink to fill out about Jayde’s behaviour and care did not really seem appropriate for Jayde’s age. The applicant said it is difficult to understand why she did not qualify to receive Carer Payment for Jayde when she was 15 and then has been granted this type of payment as soon as Jayde turned 16. The applicant accepted that, under the relevant law as described above, for a child younger than 16, the applicant must provide responses to the assessment of care load (ACL) questionnaire which is completed by the applicant/carer. The applicant accepted that, in order to qualify for Carer Payment/Carer Allowance the total score of the ACL questionnaire must be 85 or more.
The applicant and Centrelink representative then addressed each question in the ACL questionnaire with respect to Jayde’s health and behaviour on the date the claim was lodged (16 May 2011) and the 13 week period thereafter for the Tribunal.
The applicant and the Centrelink representative then agreed on a revised score of 77, which is 3 points higher than the previously accepted score of 74. This score however is still however below the required score of 85.
The Tribunal advised the applicant that the qualifications for carer payment and care allowance for a disabled adult are different to those relating to a disabled child.
ANALYSIS
As Jayde’s ACL score was accepted as 77, she did not achieve a rating of 85 and therefore the applicant was not qualified for carer payment or carer allowance at the time she made her claim.
DECISION
The Tribunal affirms the decision of the Social Security Appeals Tribunal.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of
Dr A Frazer, Member(sgd) D Brodie........................................................................
Administrative Assistant
Dated 27 June 2012
Date of hearing 16 April 2012 Representative of the Applicant Self-represented Representative of the Respondent Mr P Maishman
Centrelink Program Litigation and Review Branch
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