Confidential and Secretary, Department of Social Services
[2014] AATA 510
•25 July 2014
[2014] AATA 510
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6265
Re
Confidential
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 25 July 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd].....................................................................
Miss E A Shanahan, MemberSOCIAL SECURITY – pensions and allowances – carer allowance – incomplete medical assessment and carer’s questionnaire forms provided – no diagnosis of any medical condition – assessment relates to the intensity of the level of care not the intensity of the underlying medical condition if any – decision affirmed
Legislation
Social Security Act 1991
The Disability Care Load of Assessment (Child) Determination 2010Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Miss E A Shanahan, Member
25 July 2014
The Applicant lodged a claim for carer allowance on 16 April 2013. A delegate of Centrelink, which is the service delivery agency for the Department of Social Services (the Secretary), rejected the claim on 4 June 2013 (original decision). An authorised review officer (ARO) affirmed the original decision on 16 July 2013. The Applicant sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the ARO’s decision on 20 November 2013. It found that the absence of a completed treating doctor’s report relating to the care receiver’s care needs did not permit an assessment of a score above zero, which was required for qualification for the carer allowance. The Applicant lodged an application for review of the SSAT’s decision by this Tribunal on 3 December 2013.
At the hearing, the Applicant was self-represented. Ms Ailsa Bramley, an advocate with the Department of Human Services, appeared for the Secretary. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents and Supplementary T (ST)-documents). The Applicant filed reports regarding his three step-children’s health, his own health, several psychologists’ reports and numerous reports regarding sexual assaults towards the care receiver by her biological father and grandfather.
BACKGROUND TO THE APPLICATION
The Applicant lodged a claim for carer allowance in relation to the care receiver on 17 April 2013. At the time, the care receiver was 12 years old. The treating doctor’s report accompanying the claim was completed by the family’s general practitioner (the GP) on 13 April 2013. It stated that the care receiver’s diagnosis was post-traumatic stress disorder (PTSD) secondary to sexual abuse and this had led to depression and anxiety. As PTSD is not a recognised disability or medical condition for the purposes of the carer allowance, the GP was required to complete a professional questionnaire which consisted of 21 questions.
Despite the fact that questions 12 to 21 in the questionnaire contained tick boxes with options, including Child’s abilities are age appropriate or none of the above apply, the GP left all the questions unanswered. As a result of the incompleteness of the treating doctor’s report, there was insufficient data for the Centrelink delegate, the ARO and the SSAT to determine whether there was a professional assessment rating greater than zero. As a result, the Applicant did not qualify for carer allowance for the care receiver.
The Applicant is the step-father of three children, the eldest of whom suffers from cerebral palsy, permanent low blood oxygen saturations and hypoplastic right heart, for which he has undergone bilateral Blalock-Taussig shunts. This child has limited mobility and spends most of his time in a wheelchair or is required to use crutches. The care receiver is the second child in the family. The youngest child is autistic or (as the Royal Children Hospital reports) suffers from an autistic disorder.
The Applicant receives Newstart Allowance and currently works three to four hours per week at a supermarket, cares for the three children and is studying at university for a degree in politics and international relations. He has a Bachelor’s degree in Theology, a Master’s degree in Business and was a Minister in the Seventh-Day Adventist Church. He stated that his wife, the mother of the three children, was in receipt of a carer payment and had been receiving Austudy as she was undertaking further education. His wife also received Family Tax Benefit B payments.
The Applicant initially gave evidence that he received the carer payment or allowance for one of the boys and his wife received the carer payment for the other child. However, Centrelink records indicate that he is in receipt of the carer payment for the oldest child and the carer allowance for the youngest child. Later in the hearing, the Applicant advised that he was receiving the carer payment and allowance which amounts to approximately $600 per fortnight.
All three children attend the Royal Children’s Hospital (Children’s Hospital) in Melbourne and two of them attend the Gatehouse Centre for the Assessment and Treatment of Child Abuse (the Gatehouse) which is run by the Children’s Hospital. The youngest child and the care receiver attend weekly and the oldest child attends as required. The Applicant advised that the care receiver frequently required urgent treatment at the Children’s Hospital and they had to call an ambulance to transport her to hospital. The most recent of these events was said to have resulted from an acute episode where the care receiver curled up in a foetal position and was banging her head while screaming incessantly. On further questioning, the Applicant said the care receiver had been taken to the Children’s Hospital on one or two occasions in the past 18 months. Amongst the documents lodged there is a report from the Children’s Hospital recording that the care receiver was seen on 7 May 2013 in the Accident and Emergency Department and a diagnosis of headache was made. This responded rapidly to simple analgesia and she was discharged.
The care receiver has attended the Gatehouse on a regular basis and during the first six months or so she was seen by a forensic psychologist on a weekly basis. For the past eight months she has been seeing a social worker. The Applicant and his wife are both attending the Gatehouse and are seeing a clinical psychologist.
The care receiver was subjected to many years of sexual abuse at the hands of her biological father, who was arrested in 2007 and subsequently jailed for a period of 19 years. For a period of several months in 2012, the care receiver was again subjected to sexual abuse by her maternal grandfather who was subsequently jailed for a period of four years and three months. In 2009, the care receiver was diagnosed with PTSD as was the older sibling, who had also been sexually abused. Both children received compensation through the Victims of Crime Service from the New South Wales Trustee and Guardian; the oldest child received $45,000 and the care receiver received $50,000. This money remains in trust accounts and the Applicant regards it as being for the children’s future. It has not been used to assist in their current care.
In December 2011 the care receiver was assessed by a psychologist at the request of the Victims of Crime Tribunal. The psychologist concluded that the care receiver had ...developed a fairly stable pattern of living. ... but would be ... more vulnerable to stress experiences.
A second psychologist treated the care receiver from August 2012 and completed a Statement of Harm on 13 June 2013 concluding that:
... despite all these terrible symptoms and circumstances, [care receiver] is a remarkably resilient and exceptionally mature young woman. ...
With support, [care receiver] will reach her potential to become a leader, and to change her life and the life of those around her for the better.
The second psychologist had earlier made the diagnosis of PTSD and does not appear to have reached this diagnosis in June 2013. A third and fourth psychologist assessed the care receiver on 28 November 2012 and 19 November 2013, respectively. They have not made any psychiatric diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders Text Revision (DSM-IV-TR).
The SSAT hearing commenced on 21 August 2013. The SSAT agreed to defer a final decision to enable the Applicant to complete his own assessment of care load (ACL) questionnaire and obtain a completed treating doctor’s professional questionnaire. Eventually, the Applicant provided the SSAT with a psychological report from the fourth psychologist, which listed the care receiver’s symptoms but did not make a formal diagnosis. However, once more the SSAT did not receive a completed treating doctor’s professional questionnaire. The SSAT said:
[t]he assessment is not determined by the degree of devotion a carer, ... has for the individual needs of the child or the actual time spent on such care. The assessment tool requires, for a rating of intense, a score greater than 0 from a medical professional and 85 or more in respect of the needs of the child from a care provider.
In the absence of sufficient data to determine whether there was a professional score above zero, the Applicant could not satisfy the legislative requirements for qualification for the carer allowance.
In his oral evidence, the Applicant addressed the difficulties in obtaining reports from health professionals in the format required by the legislation. The vast majority of the psychological reports relating to the care receiver were provided by professionals in private practice. No reports have been received from the treating hospital, the Royal Children’s Hospital in Melbourne.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant gave evidence, particularly in relation to his current receipt of carer payment and allowance. The Applicant was insistent in his belief that the ACL questionnaire was inappropriate to the care receiver’s medical condition/psychological state. He also argued that the ACL or professional questionnaires did not take into account the inter-relationship between the three children and the impact of their behaviour on one another.
The Applicant provided documentation and gave evidence in relation to what he refers to as a behaviour management system wherein his three step-children have been provided with guidelines as to what is appropriate behaviour and are rewarded or penalised according to good and constructive behaviour or misbehaviour. For example, an offensive attitude results in a penalty of five tokens and manipulating a situation to personally benefit oneself attracts a penalty of 45 tokens. Good behaviour is rewarded, again by tokens; the range being five tokens for all three participating in play to 65 tokens for taking others needs into consideration. Once a week or fortnight the tokens are counted, the results discussed and the tokens cashed in for money or a money‑equivalent reward. The Applicant says that as result of the institution of this system, the level of conflict within the house has been greatly reduced.
DOCUMENTARY EVIDENCE
The relevant documentary has been addressed under BACKGROUND TO THE APPLICATION.
RELEVANT LEGISLATION
Section 953(1) of Social Security Act 1991 (the Act) prescribes the requirements for qualification for the carer allowance.
953Qualification for carer allowance—caring for either 1 or 2 disabled children
Single child
(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
(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.
In relation to section 953(1)(e)(ii) of the Act, there is a requirement for an intense qualifying rating which is defined in ss 15(2)(a) and (b) of the Disability Care Load Assessment (Child) Determination 2010 (the Determination).
Part 3Disability Care Load Assessment (Child) (Carer Allowance)
15Carer of a single disabled child
...
(2) For the purposes of subparagraph 953(1)(e)(ii) 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.
SUBMISSIONS BEFORE THE TRIBUNAL
The Applicant
The Applicant contends that the ACL questionnaire, as defined in Part 1 of Schedule 1 to the Determination, is not designed to assess the level of care required for someone in the care receiver’s situation. He submitted that the fourth psychologist’s report of 19 November 2013 provides all the data required by the professional questionnaire in order to achieve a rating greater than zero to satisfy the definition of intense in terms of the care required.
The Secretary
The Secretary has conceded that the Applicant’s claim satisfies sections 953(1)(a), (b), (d) and (f) of the Act but says that the claim does not satisfy section 953(1)(e)(i). Ms Bramley submitted that neither the GP nor the fourth psychologist’s reports or truncated questionnaires permit an assessment of a score, under a professional questionnaire, necessary for the applicant to satisfy section 953(1)(e)(ii) of the Act.
TRIBUNAL’S DELIBERATIONS
The documentary evidence before the Tribunal confirms the horrific level of sexual abuse suffered by the care receiver and that in 2009 a diagnosis of PTSD was warranted. This diagnosis has not been confirmed since that date. The second psychologist, who made the original diagnosis, did not proffer such a diagnosis in 2013 and considered the care receiver to be stable and mature for her age.
The Applicant is the step-father of three children, two of whom have documented and recognised disabilities in accordance with Schedule 3 of the Determination. These qualify him for the carer payment and allowance. The care receiver does not have a disability or medical condition recognised by Schedule 3. The Applicant’s claim in relation to the care receiver is subject to a formal assessment based on the carer’s assessment of the care required (the ACL questionnaire) and a professional assessment (the professional questionnaire), under s 11 of the Determination.
The Applicant did not fulfil the ACL requirements until he lodged a more complete questionnaire dated 25 July 2013 with the SSAT on 20 November 2013. A fully completed professional questionnaire has never been provided. Both questionnaires are required in order to determine the level of care required and whether it meets the level of intense care, estimated at greater than 85 points for the carer under the ACL questionnaire and greater than zero under the professional questionnaire. The assessment is not based on the severity of the underlying disability or medical condition but the intensity of the care required.
The Applicant completed the ACL questionnaire dated 25 July 2013 and attracted a score of 108, which satisfies s 15(2)(a) of the Determination. No score can be assigned to the incomplete professional questionnaire. Nor is it possible to determine a score based on the fourth psychologist’s detailed report. This report appears to be based on a history given by the Applicant and psychological testing of the care receiver, which revealed mild to moderate depression, average intelligence and the need to further investigate the presence or absence of a Specific Learning Disorder. The fourth psychologist described the care receiver as a bright, articulate and engaging adolescent with good social skills, who would function well at school but would continue to face:
... considerable stressors in a family working to overcome the aftermath of the horrific abuse by two family members and the presence of siblings of special needs.
In her report, the fourth psychologist does not address the care receiver’s physical functional ability or special care needs. The report states that the psychologist saw the care receiver and the Applicant for the specific purpose of addressing the carer allowance application.
The Tribunal notes that no report assessment has been made by any treating doctors, psychologists or social workers associated with the Children’s Hospital or the Gatehouse. This is despite the care receiver’s regular attendance for nearly two years. While the Applicant has explained that this was due to the reluctance of the hospital staff to provide reports, he has filed other reports relating to him and the other two children that have been provided by medical staff at the Children’s Hospital.
In the course of the hearing, the Applicant raised the questions of act of grace payments and a referral to the carer specialised assessment team as provided in the Guide to Social Security Law. Ms Bramley has subsequently provided more information to the Tribunal with respect to these two queries. It is clear that referrals to the carer specialised assessment team are only required where the professional questionnaire score is a qualifying score but the ACL falls under the threshold of 85.
As there appears to have been no defective administration in the Applicant’s claim and it does not appear that he has been unfairly disadvantaged in the claims process, an act of grace payment appears to be unwarranted.
The Tribunal affirms the decision under review.
I certify that the preceding 29 (twenty ‑nine) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member [sgd].......................................................................
Administrative Assistant
Dated 25 July 2014
Date of hearing
28 June 2014
Applicant In person Advocate for the Respondent Ms Ailsa Bramley, Department of Human Services
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