CREMONAApplicantAnd: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
[2014] AATA 122
•6 March 2014
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2014] AATA 122
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/1875
General Administrative Division )Re: DAVID CREMONA
Applicant
And: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
RespondentCORRIGENDUM FOR DECISION
TRIBUNAL: Miss E A Shanahan, Member
DATE: 17 March 2014
PLACE: Melbourne
Member Shanahan made a Decision under section 43 of the Administrative Appeals Tribunal Act 1975 (the Act) on 6 March 2014.
In accordance with section 43AA(1) of the Act, the Tribunal directs that the text in the
following paragraphs of the Decision be altered in the following way:
1.In paragraph four:
(i).insert the word of after the word copy in the fourth sentence; and
(ii).insert a full stop after the words (Exhibit A2).
2.In paragraph 12, insert the word been after the words There have in the third sentence.
3.In paragraph 19, delete the words may be described in the fifth sentence.
4.In paragraph 31, insert the word the after the words The Respondent submitted that in the first sentence.
5.In paragraph 33, delete the word nor and replace with the word not in the second sentence.
...............[sgd]..................................................
Miss E A Shanahan, Member
[2014] AATA 122
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1875
Re
David Cremona
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Miss E A Shanahan, Member
Date 6 March 2014 Place Melbourne The Tribunal affirms the decision under review.
..............[sgd].......................................................
Miss E A Shanahan, Member
Social Security – carer allowance child under the age of 16 – change in disability care load assessment by determination 2010 – review of eligibility October 2012 followed by cancellation of carer allowance payment – cancellation based on the carer questionnaire score – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999Disability Care Load Assessment (Child) Determination 2010
Cases Cited
PKDK and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 221 (12 April 2013);
K and Secretary, Department of Families, Housing, community Services and Indigenous Affairs [2012] AATA 819 (21 November 2012);
Short and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 391 (27 June 2012).
REASONS FOR DECISION
Miss E A Shanahan, Member
6 March 2014
Mr Cremona has received a carer’s allowance for his daughter Melanie since 26 September 2006. Melanie suffers from encopresis which is faecal soiling associated with chronic constipation. Mr Cremona’s care allowance was cancelled on 26 October 2012 following a review of the care needs assessment for a child under 16 years (which is completed by the carer) and the review of carer allowance medical report (which was completed by Dr Ng, the family general practitioner).
Mr Cremona requested a review of the decision on 2 November 2012. An authorised review officer (ARO) affirmed the decision on 11 January 2013. Mr Cremona then applied to the Social Security Appeals Tribunal (SSAT) for a further review. On 5 April 2013 the SSAT affirmed the decision under review. Mr Cremona lodged his application for review of the SSAT decision by this Tribunal on 24 April 2013. At the same time, he lodged an application for an order to stay the implementation of the SSAT decision until the review process was finalised. The Tribunal refused to stay the operation of the decision on 22 May 2013.
Mr Cremona was self-represented at the hearing before this Tribunal. Ms Ailsa Bramley, an advocate with the Department of Human Services, appeared for the respondent.
The Tribunal was provided with the documentation pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (the AAT Act), the T‑Documents and Supplementary T-Documents (which were assigned the Exhibit No R1).The Applicant tendered a bundle of documents identified as DC1 to 75 (Exhibit A1) and a copy the Deer Park Medical Centre records relating to Melanie Cremona (Exhibit A2) Dr Ng and Dr Fiona Shaw, general practitioners of Deer Park Medical Centre, gave evidence by telephone having been summoned by Mr Cremona. Mr Cremona declined to give evidence on oath or affirmation.
At the commencement of the hearing Mr Cremona informed the Tribunal that he considered the Tribunal had already reached a decision in his matter before the evidence had been heard and that he would be appealing the decision of the Tribunal regardless of what that decision was. The appeal would be based on procedural matters. Mr Cremona had requested the issuing of summonses to several persons including the two general practitioners who subsequently gave evidence. The Tribunal had refused to issue summonses for the other two, a Conference Registrar at this Tribunal and Senior Detective in the Victorian Police Force, after Mr Cremona had failed to provide or indicate the relevance of the evidence these two persons would give.
Mr Cremona said the relevance would become apparent when they gave their evidence. As neither the Conference Registrar nor the Senior Detective had any knowledge of the medical condition of encopresis or the level of care required by Melanie, the Tribunal maintained its refusal. .
Mr Cremona also stated that he was not prepared to conduct his examination of the two doctors by telephone and required their presence in the hearing room. Both doctors had, upon being served with the summons, applied in writing to the Tribunal to give their evidence by telephone. In accordance with s 35A of the AAT Act, the Tribunal granted them permission to do so.
Mr Cremona then sought an adjournment to a time when the doctors could be present in person to give their evidence. Arrangements had been made for both doctors to give their evidence on the first day of the hearing on 14 January 2014. The doctors were contacted to determine their availability. Dr Ng was available to attend in person at 2pm on that day but Dr Shaw was not available. The doctors required an undertaking that they would be paid their witness costs by Mr Cremona, in accordance with the Tribunal’s practice. Mr Cremona was aware that the cost would be $475 for each doctor and stated that he would pay the costs but refused to give any undertaking that was binding, particularly in writing.
Following a discussion with his wife, Mr Cremona reconsidered and agreed to proceed with both doctors giving their evidence by telephone.
BACKGROUND TO THE APPLICATION
Melanie Cremona is the youngest of Mr Cremona’s three children. She was born in 1999. Melanie first presented to the Emergency Department of Sunshine Hospital on 28June 2001 with constipation, having not had a bowel movement for four days. She was prescribed regular doses of Parachoc laxative. At the time of examination she was found to have an abnormal urine test and further investigation was recommended. The investigation revealed that she had Grade 2 vesico urethral reflux on the left side but normal renal ultrasound appearances. When she was reviewed on 20 July 2001 Melanie’s bowel actions had returned to normal and she no longer required medication. Her urinary tract infection had been confirmed and treated and it was recommended that a renal ultrasound be conducted 12 months later.
In May 2006 Melanie was referred by Dr Shaw to the Continence Clinic at the Royal Children’s Hospital with an eight month history of soiling of her underwear. Melanie had been toilet trained between two and three years of age and progressed without any difficulty. She had bowel actions every second day. During her first year at school she became more constipated, having intervals between bowel actions of up to 14 days, with a pattern of soiling up to three to four times a day. Melanie was otherwise well except for the recent onset of daytime and nocturnal wetting.
A strict toilet program was instituted, with Melanie having three supervised toilet-sittings per day and Parachoc was again prescribed. Thereafter, Melanie was reviewed on a regular basis. There have some problems with compliance and certainly in early 2010 she was sitting on the toilet only once or twice per day.
In the report dated 21 June 2010, Dr Julie Belousoff reported that Melanie was soiling or had skid marks on her underwear at least once a week, was sitting on the toilet only once or twice each day, had (in 2009) frequently passed stool in her underwear at school though this had improved considerably and she now only soiled at home. A normal stool was passed every third day and Melanie was totally continent of urine. Melanie was instructed to sit on the toilet more frequently and it was suggested Mr Cremona provide incentives, such as small rewards (for example 20 cents) for each time Melanie sat on the toilet. Overall, the reports from the Royal Children’s Hospital indicate a slow but steady improvement in Melanie’s encopresis. It would appear that Melanie no longer attends the Royal Children’s Hospital but goes to the Sunshine Hospital, as she objected to not seeing the same doctor on each of her visits to the Royal Children’s Hospital.
In 2010 the Disability Care Load Assessment (Child) Determination defined the qualifying rating on intense care of a single disabled child must be a score of equal to or greater than 85 on the carer questionnaire form (ACL questionnaire). In October 2012 Mr Cremona was required to complete a review of carer allowance – care needs assessment for a child under 16 years form and to have his general practitioner, Dr Ng, complete the Review of carer allowance – Medical report for a child under 16 years form. On 4 November 2012 Mr Cremona returned to Centrelink a second completed review of carer allowance – care needs assessment for a child under 16 years form.
The medical form completed by Dr Ng on 23 October 2013 attracted a score on the professional questionnaire of 0.11 the requirement being that the score be greater than 0. Both of the care load assessment questionnaire completed by Mr Cremona on 19 October 2012 and 31 October 2012 resulted in a score of 41 which fell well short of the required qualifying rate for intense care of 85. On this basis the carer allowance was cancelled.
Mr Cremona has argued before the SSAT and this Tribunal that a scoring system in the determination should not be used in Melanie’s case. He also argues that he has been a victim of a conspiracy between the Victoria Police and Centrelink. He bases this theory of conspiracy on the timing of events. Apparently, Mr Cremona had been arrested by the Victoria Police on 24 September 2012, he claims falsely; the review forms for the carer’s allowance for Melanie were received on 12 October 2012; and the carer’s allowance was cancelled on 26 October 2012. On 6 March 2013 Mr Cremona had been issued with an Intervention Order by the Victoria Police. On 20 March 2013 his carer’s allowance with respect to his wife (who is diagnosed as having a depressive disorder) was cancelled and Mr Cremona was forced to seek work. The carer allowance for his wife was reinstated for a time, but as Mr Cremona is now working part time it was cancelled again and this cancellation is subject to an appeal he has lodged with the SSAT.
DR SHAW, GENERAL PRACTITIONER
Dr Shaw confirmed Melanie’s diagnoses of encopresis but did not regard this as a disability. She said it was a medical condition which in Melanie’s case was moderately severe; but the condition in general was common and usually resolved by the time a child reached the age of eight to nine.
Dr Shaw in answer to Mr Cremona’s questions denied that she had discussions with any representative of a government department such as the Department of Human Services, Centrelink or a member of Victoria Police regarding the hearing of the matter or in relation to Mr Cremona’s carer’s allowance in respect of Melanie. Dr Shaw said she had had been contacted by Centrelink on 20 March 2013 with respect to Mr Cremona’s carer’s allowance for his wife, when she confirmed her answer to a question – that Mrs Cremona did not require supervision by her partner.
Dr Shaw confirmed the content of the various letters from the Royal Children’s Hospital and the investigations that had been conducted. Mr Cremona asked her if she regarded Melanie’s condition as being intense. Dr Shaw stated that this was not a word used to describe a medical condition and doctors used the words mild, moderate and severe, although a symptom such as pain may be described may be described as intense. Dr Shaw denied that Melanie had a physical, psychiatric or intellectual disability as the condition of encopresis usually settled and was of a functional rather than a physiological nature.
DR NG, General practitioner
Dr Ng confirmed that he had been requested to give evidence by telephone, and had done so in writing on 8 January 2014. He did not regard Melanie as disabled either physically, intellectually or psychologically. Dr Ng regarded her condition of encopresis as temporary and that she would grow out of it. Dr Ng regarded it as a social problem and not a significant disability. Dr Ng confirmed the answers he had given to the questions on the medical report review of carer allowance form.
Dr Ng in answer to Mr Cremona’s question stated that he had not been contacted by any member of a government department, the Victoria Police Force or Centrelink regarding his carer’s allowance and the requirements for members of the family, except for contact made with respect to Mr Cremona’s father. Dr Ng refused to expand on this contact in respect to Mr Cremona’s father on the grounds of doctor/patient confidentiality.
Mr Cremona asked Dr Ng how long he expected Melanie’s condition to last. Dr Ng answered that it depended on how he and his wife managed Melanie’s toilet training and her diet.
MR CREMONA
As previously stated, Mr Cremona declined to give evidence on Oath or Affirmation but did provide information regarding the chronology of events in terms of cancellation of his carer’s allowance and his arrest by Victoria Police, which he submitted was evidence of a conspiracy. He also queried why, given the determination in 2010, his carer’s allowance was not reviewed at an earlier date; a question Ms Bramley could not answer.
Originally, Mr Cremona had requested that the relevant Conference Registrar be summoned to give evidence. The Tribunal refused to issue the summons on the grounds of relevance. Mr Cremona raised this issue again at the hearing, and after he discussed the matter with Ms Bramley, both parties agreed to inform the Tribunal of the contents of the conference considered relevant.
Mr Cremona had apparently raised the issue of a conspiracy in the course of a conference with the Conference Registrar. The Conference Registrar had advised him that this was not a matter within the jurisdiction of the Administrative Appeals Tribunal and should be dealt with by the police.
RELEVANT LEGISLATION
Section 953 of the Social Security Act 1991 (the Act) details the qualifications for carer allowance as follows:
953 Qualification 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.
As Melanie Cremona does not have a Schedule 3 recognised disability or medical condition s 953(e)(ii) is attracted.
Section 15 of the Disability Care Load Assessment (Child) Determination 2010 states:
15Carer of a single disabled child
(1)If a person is caring for a disabled child:
(a)a professional questionnaire must be completed for the child; and
(b) the person must complete an ACL questionnaire for the 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.
Section 15(2)(a) and (b) applies to Melanie Cremona.
SUBMISSIONS
The Tribunal requested that the parties provide written submissions so that Mr Cremona had adequate time to review and address the evidence before the Tribunal. Mr Cremona’s submissions were received on 28 January 2014 and were stated to be private and confidential and only for the Tribunal’s consideration. Mr Cremona, at the Tribunal’s request, confirmed that his submissions were not to be provided to the Respondent. The Tribunal made orders in accordance with S39 of the Administrative Appeals Tribunal Act 1975 regarding the exchange of such documents. When the order was ignored by Mr Cremona, the Tribunal provided the Respondent with a copy of Mr Cremona’s submissions on 11 February 2014. The Tribunal received the Respondent’s submissions in response on 21 February 2014.
Mr Cremona’s submission dealt at length with unrelated procedural matters, such as the dates of the primary decision and the reviewable decision; aspects of a stay application in 2013; the Tribunal’s refusal to issue a summons on grounds of relevance; and a challenge of the Tribunal’s independence given that it looks into the decisions of a previous Tribunal. He summarised the medical evidence as he perceived it, and submitted that his daughter Melanie’s condition had not dramatically changed over the years.And that as her condition of constipation was documented by the Royal Children’s Hospital in June 2001, he had been entitled to Carer Allowance from that date. Mr Cremona sought orders reinstating payment of his allowance, backdated to 11 October 2012, and that the allowance be paid for the period between 2001 and 2006. In addition to these written submissions, Mr Cremona had indicated at the hearing that he believed:
(1)that the scoring system should not apply to his daughter Melanie and her condition of encopresis; and
(2)that there has been a conspiracy between the Victoria Police Force and Centrelink in relation to the timing of the cancellation of his carer’s allowance for Melanie and his carer allowance for his wife.
The Respondent submitted that word intense relates to the level of care required for the child who is the subject of the carer’s allowance, not the intensity of a medical condition. In his Statement of Facts and Contentions, the Secretary has acknowledged that Melanie is a dependent child for the purposes of the Act; is an Australian resident and receives care and attention from Mr Cremona on a daily basis in their shared home. Mr Cremona is also an Australian resident.
As Melanie does not have a Schedule 3 recognised disability or medical condition, s 953(1)(e)(i) of the Act does not apply. In order to satisfy the qualification for carer’s allowance, the care provided by Mr Cremona must have a rating of intense, which is defined as an ACL questionnaire score of 85 or more. The Secretary was satisfied that the professional questionnaire score completed by Dr Ng was greater than zero.
The Respondent addressed the issues raised by Mr Cremona in his submissions although, as the Tribunal has mentioned above, most of them were nor relevant to the decision. The Respondent referred to three recent AAT decisions relevant to this application. In all three the Applicant had failed on the grounds that the carer’s assessment of the care provided (S38E (2)(a)(i)) was less than a total score of 85 (85 being the qualifying rate of intense (S15) of the Disability Care Load Assessment (Child) Determination 2010). The Respondent provided Mr Cremona with the developmental milestones tables (Part 2 of Schedule 2 of the Determination) and the Departmental Guidelines regarding the timing of reviews of medical requirements based on these milestones.
THE tribunal’s deliberations
The Tribunal finds that Melanie Cremona suffers from a medical condition termed encopresis; which is soiling associated with chronic constipation and rectal distention. This is a condition treated by a strict regime of toilet training and the use of stool‑softening medication. The condition is usually self-limiting and improves as the child gets older. Melanie Cremona is now 14 years old. On the documentary evidence of the care needs assessment for a child under 16 years form completed by Mr Cremona on two occasions (26 October 2012 and 4 November 2012), the score being 41 on each occasion, Melanie’s condition falls well short of the score of 85 or more required by s 15(2) of the Disability Care Load Assessment (Child) Determination 2010. The level of care required is not intense based purely on Mr Cremona’s assessment of the care he provides to Melanie.
The evidence before the Tribunal confirms that Melanie Cremona was diagnosed with constipation on 28 June 2001 but that her bowel function had returned to normal by 20 July 2001. There is no further evidence of Melanie suffering from bowel dysfunction until approximately September 2005, as recorded by the Royal Children’s Hospital in May 2006. The Royal Children’s Hospital reports also confirm the improvement in Melanie’s encopresis with age, as was to be expected.
The Tribunal finds that the requirements for payment of carer’s allowance for a child under the age of 16 are not met. The Tribunal concludes that the cancellation of payment of carer’s allowance to Mr Cremona was correct at law.
The Tribunal affirms the decision under review.
I certify that the preceding 37 (thirty‑seven) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member ............[sgd]….....................................
Administrative Officer
Dated 6 March 2014
Date of hearing 14 January 2014 Date final submissions received 22 February 2014 Applicant In person Advocate for the Respondent Ailsa Bramley - Department of Human Services
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