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

[2008] AATA 197

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 197

ADMINISTRATIVE APPEALS TRIBUNAL    )

)    No 2007/3420

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARGARET COLLINS

Applicant

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

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member

Date8 February 2008

PlaceMelbourne

Decision For reasons given orally the Tribunal affirms the decision under review.

………[Sgd]……..

Member

SOCIAL SECURITY – carer allowance – disabled adult – application of the adult disability assessment tool – failure to meet the necessary score – decision affirmed

Social Security Act 1991 (Cth) s38C (1) (2) and (3) s954

Guide to Social Security Law Adult Disability Assessment Tool (ADAT)

REASONS FOR DECISION

March 2008  Miss E.A. Shanahan, Member     

1.      Mrs Collins completed an application for carer allowance (CA) on 25 May 2004 and this was lodged with Centrelink on 31 May 2004. Centrelink is the agency which provided services for the Department of Families, Housing, Community Services and Indigenous Affairs. The CA related to her now 35 year old son, Rudolf Yo-Hann Kalab (Rudy), who suffers from schizophrenia. Rudy returned to his mother's care on 9 February 2004, having spent the previous three years in special accommodation. With her application, Mrs Collins lodged the completed carer questionnaire and a health professional assessment form completed by Dr I Cannizzo. On 18 June 2004 a Centrelink delegate determined that Mrs Collins did not qualify for the CA. To Mrs Collins to qualify for CA, Rudy needed to score 30 points using the Adult Disability Assessment Tool (ADAT). According to the delegate, he scored only 8 points. Mrs Collins sought a review of the delegate’s decision by an authorised review officer (ARO).The ARO affirmed the decision on 25 February 2005. Mrs Collins made an application for review of the decision to the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decision. Mrs Collins the applied to the Administrative Appeals Tribunal for review of the SSAT decision on 25 July 2007.

2. Mrs Collins was represented by Mr Bernard Daniels, a friend. Mr Frank Sims also assisted the applicant. The respondent was represented by Mr Andrew Carson, Senior Legal Advocate with Centrelink Legal Services Branch. The Tribunal was provided with documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). The applicant tendered the following documents:

Exhibit A1 ‑ An Order from the Victorian Civil and Administrative Tribunal Guardianship List appointing Mrs Collins as administrator of the estate in relation to Rudolf Yo-Hann Kalab

Exhibit A2 ‑ A letter addressed to Whom It May Concern from Dr Martin Hill dated 20 November 2007 --

Exhibit A3 ‑ A letter dated 6 February 2008 addressed to Whom It May Concern by Mrs Joan Tranter -.

Mrs Collins gave evidence before the Tribunal.

BACKGROUND TO THE APPLICATION

3.      Mrs Collins has cared for and supervised her son’s, Rudy, day-to-day activities since he returned to live with her on 9 February 2004. Rudy was diagnosed with schizophrenia some years ago (the exact year is unknown), after his admission to a psychiatric hospital as an involuntary patient. During his period in special accommodation he was treated with appropriate medication but ceased all medication in November 2005 because of side effects. Mrs Collins is of the opinion that Rudy has been much quieter and happier since ceasing his medication. Rudy can perform the tasks of daily living efficiently, is able to bathe, shave, dress and feed himself when necessary and has no physical restrictions. However, he forgets to do things such as turning off taps, turning off the gas when cooking and flushing the toilet. Therefore, he does need supervision. In her application, Mrs Collins estimated that she spent five hours per week supervising Rudy's care.

4.      Mrs Collins has two other sons, aged 14 and 17. In the past Mrs Collins ran a car repair business, regrettably at a loss. She then ran her own cleaning business which allowed her to work flexible hours. She was receiving parent payment single (PPS) and family tax benefit (FTB). Following the introduction of the Welfare to Work programme, she was required by Centrelink to obtain regular employment. She now works three hours per day, cleaning a restaurant close to her home. She says the work is extremely hot and demanding.

5.      Rudy is no longer on any medication, nor does he see a psychiatrist. He apparently does not like doctors or going out of the family home.

6.      Mrs Collins' application for CA was unsuccessful as she did not meet the requirements of ADAT. The carer questionnaire which she completed with Rudy's input resulted in a score of one (1) and the health professional questionnaire resulted in a score of seven (7) giving a total of eight (8) points. She required 30 points to qualify for CA.

7.      Mrs Collins was most unhappy with the decision of the SSAT. In particular, she believes she was misunderstood, misconstrued and misrepresented. She denied, in a letter she wrote to the SSAT on 31 October 2007, that she had said Rudy suffered severe brain damage. Mrs Collins' representative, Mr Daniels, also pointed out the contradictory statements in various documents which he claimed Centrelink had failed to pick up. In particular, he referred to information that Rudy was deaf and attributed this comment to Dr Cannizzo. Mrs Collins' application form recorded that Rudy's hearing was normal. The Tribunal notes that Dr Cannizzo said Rudy’s hearing was normal. The report of deafness was attributed by the SSAT to Mrs Collins' telephone evidence at the hearing on 25 June 2007.

EVIDENCE BEFORE THE TRIBUNAL

Mrs Collins

8.      Mrs Collins confirmed that Rudy had returned to her care in February 2004, prior to which he had been in a fully-supported special accommodation home. She described her work history which is summarised above.

Documentary Evidence before the Tribunal

9.      Mrs Collins provided a copy of the Order of the Victorian Civil and Administrative Tribunal Guardianship List (VCAT) appointing her as administrator of the estate of Ruldof Yo-Hann Kalab. This Order was made on 5 December 2007 by Senior Member R Scott.

10.     Dr Martin Hill, a specialist in anti-aging medicine therapeutics provided a letter on 20 November 2007 (Exhibit A2) stating that:

Mrs Collins is unable to manage with the duration of time away from home for work due to responsibilities required to care for her sick son, Rudy, who has a mental illness and needs constant supervision. She wants to be except [sic] of the Welfare to Work laws to be able to spend more time caring for her son.

Letter from Mrs Joan Tranter

11.     In a letter dated 6 February 2008, addressed to Whom It May Concern, Mrs Tranter stated that she had known Mrs Collins for 12 years and that:

After Margaret's son came out of hospital in 1998, I have never seen such a caring mother. When he came home from hospital Margaret had to spoon feed him because he simply could not feed himself as he was to [sic] weak. Rudy came out a changed person and unable to look after himself. Rudy is 35 years old and he really has the needs of a child. This means that Margaret has to do all his personal grooming all the time such as bathing him, washing his hair, cutting his nails, washing etc and keeping an eye on him.

Social Security Appeals Tribunal decision

12.     The SSAT rejected Mrs Collins' application, affirming the decision under review. The SSAT was provided information, at the hearing, which stated that the drugs (prescribed for schizophrenia) caused him severe brain damage and that Mrs Collins did not agree that Rudy suffers from schizophrenia. Mrs Collins was reported as telling the SSAT that if he is left to wash himself he doesn't always do a very good job. Mrs Collins washes his hair and upper body.

13.     At paragraph eight of its decision the SSAT said that Mrs Collins provided the information that Rudy was deaf in one ear and has some hearing loss in the other but refuses to consider having hearing aids fitted.

Centrelink Records

14.     The T‑documents contained Centrelink computer entries and payments made to Mrs Collins since 2004. Mrs Collins also wrote to Centrelink on several occasions in support of her application for CA. In these letters she outlined her financial difficulties and her belief that she qualified for and was entitled to CA.

RELEVANT LEGISLATION

15.     The relevant legislation is contained in s 38C(1)(2) and (3) and s 954 of the Social Security Act 1991. Section 38C states:

38C Adult Disability Assessment Tool

(1)The Secretary may, by legislative instrument (the determination):

(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).

(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.

(3)The determination is, in this Act, referred to as the Adult Disability Assessment Tool.

Section 954 states:

954 Qualification for carer allowance—caring for a disabled adult in a private home of both the adult and the carer

(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 under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; 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.

Note 1:For family member see subsection 23(1). For Australian resident see section 7.

Note 2:For qualification for carer allowance in circumstances of hospitalisation, see section 955.

Note 4:For the effect of temporary cessation of care and attention on carer allowance, see section 957.

Note 5:For the effect of 2 people being qualified for carer allowance, see sections 964 and 965.

Disabled adult does not qualify for carer allowance for another disabled adult

(2)If a person is qualified for carer allowance for a disabled adult, the disabled adult is not able to qualify for carer allowance for another disabled adult.

Person cannot qualify for more than 2 carer allowances

(3)A person may qualify for carer allowance under this section and/or section 954A for 2, but no more than 2, disabled adults.

16.     The Guide to Social Security Law provides guidance on how to interpret, complete and score the ADAT.

SUBMISSIONS

The Applicant

17.     Mr Daniels submitted that Centrelink should have identified the contradictory statements and evidence between Mrs Collins' application and the SSAT's recording of the evidence before it. He also submitted that Centrelink lacked a humane approach to persons such as Mrs Collins. He advised that Mrs Collins will now lodge another application for CA and also seek a further health professional report; although this would be difficult given Rudy's dislike of doctors. He asked that when this application is lodged, Centrelink give it the highest priority. Mr Daniels also asked Centrelink to revisit the 2004 application.

The Respondent

18.     Mr Carson submitted that Centrelink is bound to follow the legislation (the Social Security Act) and its provisions and that the decision was based entirely on the information Mrs Collins provided in the CA questionnaire and the professional treatment questionnaire completed by Dr Cannizzo.

TRIBUNAL’S DELIBERATIONS

19.     The Tribunal delivered an oral decision on 8 February 2008, explaining to Mrs Collins and her representatives that the Tribunal was bound by the law and in accordance with the legislative provisions her application did not meet the requirements of ADAT in terms of total points scored. The Tribunal, prior to making its oral decision, offered Mrs Collins the alternative of written reasons for the decision. After some thought she declined the offer for written reasons. Later she changed her mind and requested written reasons. The Tribunal notes that she will make a further application for CA or pension and obtain an updated health professional report. The Tribunal strongly advised Mrs Collins to arrange for Rudy to have regular psychiatric assessments and follow up assessments.

Decision

20.     For reasons given orally the Tribunal affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         ................[Associate]..........................

Date of Hearing  8 February 2008
Date of Decision  8 February 2008

Solicitor for the Respondent      Mr Carson