Claxton and Department of Family and Community Services

[2002] AATA 567

DECISION AND REASONS FOR DECISION [2002] AATA 567

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/298
GENERAL ADMINISTRATIVE  DIVISION
  Re:         JODIE CLAXTON
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             20 June 2002
Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
  Member
SOCIAL SECURITY – carer allowance – asthmatic child – whether disabled – whether permanent – whether for an extended period – Child Disability Assessment Tool
Social Security Act 1991 s952, 953(1), 38D

REASONS FOR DECISION

20 June 2002  M.J. Carstairs, Member

1. This is a hearing of an application by Jodie Claxton (the applicant) for review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 6 February 2002.  This decision affirmed a decision made on 17 December 2001 by a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent). 

2. At the hearing the applicant represented herself, and her mother, Mrs Dorothy Claxton was in attendance.  Ms P. D'Cunha, an advocate with Centrelink represented the respondent. 

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975  as well as exhibits marked A1 to A4 for the applicant and R1 for the respondent. 
   Backround

4. The applicant is aged 29.  She has a son, Dylan, who is aged nine and who suffers from asthma.  The documentary material also records that he also has pes planus (or flat feet) and experiences learning difficulties.  On 20 November 2001 a form claiming carer allowance was lodged.  The claim was rejected on 29 November 2001.  The applicant then sought review of the decision and on 17 December 2001 an authorised review officer affirmed it, as did the SSAT.  The appeal was then lodged with this Tribunal on 25 March 2002.

5. Ms Claxton and her mother gave evidence at the hearing, essentially confirming the evidence given to the SSAT and recorded in its decision at T2.  This evidence included that Dylan is a chronic asthmatic who has suffered from asthma since birth and has required treatment continually since then.  He is on daily inhalants and requires nebulising almost nightly, often more than once per night.  His disturbed sleep patterns lead to tiredness during the day and he is resistant to using the nebuliser and is frustrated by his need for continual treatment for asthma. 

6. Ms Claxton gave evidence that his learning difficulties are being accommodated at school where he has one-on-one teaching to advance his learning to the level of children of an equivalent age.  He obtains assistance with reading, maths and spelling, as well as general learning.  The evidence was also clear that his supportive home environment would assist in his developmental skills as both mother and grandmother focus on educational improvement in the games that they play with Dylan.  They constantly supervise his learning and his care.

7. Ms Claxton gave evidence that the sleep deprivation from which Dylan suffers leads to problems for him during the day, and the family is disrupted by Dylan's sleep disturbances as well.  Dylan has attempted to participate in sports but his reduced lung capacity makes certain sports too difficult.  He cannot play after early evening when the air becomes chilled.  His grandmother has installed a pool to assist with his asthma through swimming.  She has considerable experience in dealing with asthmatic children as asthma runs through the family.
   CONSIDERATION OF ISSUES

8. The issues for the Tribunal focus particularly on one aspect of the decision-making, that is the application of the Child Disability Assessment Tool (the Tool).  The legislation clearly provides for the use of the tool.   This is done through provisions in the Social Security Act 1991 (the Act).

9. Section 38D of the Act provides for such a Tool in the following terms:

   38D (1) The Secretary may, by determination in writing:

   (a)devise a test for assessing the functional ability, behaviour and special care needs of a person aged under 16; 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).

38D (2) The scale referred to in subsection (1) is a scale that provides for a range of negative and positive scores and under which:

(a)a negative score indicates an absence of a physical, intellectual or psychiatric disability at a significant level; and

(b)a positive score indicates the presence of a physical, intellectual or psychiatric disability at a significant level.

38D (3) The 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.
38D (4) The determination, in so far as it provides (in accordance with subsection (1) and subsection (2)) for a test for assessing, and a method for rating, the functional ability, behaviour and special care needs of a person aged under 16 is, in this Act, referred to as the Child Disability Assessment Tool.

1. The Tool is the mechanism through which the carer allowance is determined.

2. Under s38D(2) the provision is made for negative and positive scores. A negative score is an indicator that a certain level of physical, intellectual or psychiatric disability is not met, and a positive score indicates disability at a significant level. This then forms part of the test that is provided for in the qualification provision for carer allowance, namely s953 of the Act.

3. That section provides as follows:

   953 (1) 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
   (c)       either of the following applies:

   (i)the disability from which the care receiver is suffering is declared, under subsection 38D(3), to be a recognised disability for the purposes of this section;

   (ii)the care receiver has been assessed and rated, and been given a positive score of not less than 1, under the Child 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:

   (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

   (f)        the person is an Australian resident.

4. It was not disputed that Dylan met the definition of a dependent child, and there was no issue about residence.

5. The fundamental issue in the hearing was the question of whether the care receiver, Dylan, had been assessed, rated, and given a positive score of not less than 1, under the Tool as required by ss953(1)(c)(ii) of the Act. Ms Claxton did not dispute the medical assessments that have been scored in this case on the basis of medical reports and the application of the Tool to them and other information supplied by the applicant.

6. Having taken into account all the medical evidence and the evidence given at the hearing, the Tribunal is reasonably satisfied that the questionnaires as filled out by the applicant and her treating doctor, Dr K. Dyer, on 20 November 2001 and 29 November 2001, accurately reflect the level of disability and care needs. 

7. When the Tool is applied to these figures arising from medical evidence and answers to questionnaires, it produces the figures that appear at T20 of the documents, which are two negative numbers at the different dates of assessment.  The Tribunal is satisfied that there is no basis to find a positive score using the Tool.   The Tool is the only measurement system to be applied under the Act in assessing qualification for carer allowance.  Once a decision maker is satisfied that there is no positive score then the person cannot qualify under the Act.

8. Ms Claxton, while accepting that the formula in the Tool had been correctly applied, submitted strongly that the assessment system does not take into account the real and continuing problems that the treatment of asthma means to both the child suffering from it and for the parents and others caring.  However, these are not factors that can be taken into account under the Act, in the absence of the positive score of not less than one. 
   DECISION

9. For these reasons the decision under review is affirmed.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of 
M.J. Carstairs, Member

(sgd)       Olympia Sarrinikolaou
              Clerk

Date of Hearing:  20 June 2002
Date of Decision:  20 June 2002
Solicitor for the applicant:           Nil — self-represented
Solicitor for the respondent:        Nil — Mr P. D'Cunha, Advocate with Centrelink