Cronin and Department of Family and Community Services

[2001] AATA 859

DECISION AND REASONS FOR DECISION [2001] AATA 859

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2000/1816

GENERAL ADMINISTRATIVE DIVISION        )          
           Re      NORMA CRONIN  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member            

Date15 October 2001

PlaceSydney

Decision      The decision under review is affirmed.   
  [Sgd] Dr JD Campbell
  Member
CATCHWORDS
Social Security - Carer Allowance - Disabled Adult - Adult Disability Assessment Tool - Professional Questionnaire Score.

Social Security Act 1991, ss 38C, 952, 954

REASONS FOR DECISION

Dr J D Campbell, Member   

1. In this matter, Mrs Norma Cronin  ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 20 December 2000, which affirmed the decision of an authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 1 September 2000, to cancel the Applicant's Carer Allowance for Mr William Cronin, her husband.  This decision was also reviewed by the authorised review officer and affirmed in a decision dated 18 October 2000.

2. A telephone hearing was held on 3 July 2001, with the Applicant being represented by her husband, Mr William Cronin.  The Respondent was represented by Ms Smith, an advocate from the Advocacy and Administrative Law section of Centrelink.

3. The following material was placed into evidence before theTribunal:
   Exhibit No     Description    Date   
   T1-T17 pp1-74 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975            
   A1      Material submitted by Mr Cronin in support of application      17 January 2001    
   R1      Respondent's Statement of Facts and Contentions     20 March 2001        

ISSUES

1. The relevant issue in this matter is whether payment of carer allowance to the Applicant in respect of the care she provides to her husband Mr William Cronin was correctly cancelled.  More specifically whether Mr Cronin, as care receiver, had been correctly assessed and rated under the Adult Disability Assessment Tool.
   LEGISLATION

2. The relevant legislation in this matter is the Social Security Act 1991 ("the Act"), in particular sections 38C and 954, and the Adult Disability Assessment Tool.
   BACKGROUND

3. The Applicant had been receiving domiciliary nursing care benefits for some years prior to the introduction of a carer allowance on 1 July 1999, pursuant to the Assistance for Carers Legislation Amendment Act No 13 of 1999.  The Applicant was receiving such a nursing care benefit because she was caring for her husband, Mr William Cronin.  Mr Cronin was and is in receipt of the Extreme Disablement Allowance from the Department of Veterans Affairs for the following war-caused disabilities:

• Osteoarthritis left knee joint;

• Internal rearrangement right knee joint with osteoarthritis;

• Amputation second digit left hand;

• Cervical spondylosis;

• Crush Injury Thoracic Vertebrae;  and

• Lumbar Spondylosis.

Mr Cronin is also stated to have the following non war-caused disabilities:

• Ischaemic heart disease;

• Myocardial infarction;

• Prostatic hypertrophy treated by prostatectomy;  and

• Non insulin dependent diabetes mellitus.

1. Mr Cronin is also detailed as taking the following medication:

• Nitrolyngual (self administered);

• Diamicron - 1 daily;

• Cardizem - 1 daily;

• Imdur – ½ tablet each morning;

• Diabex - 1 daily;

• Serepax - 30 mg nightly;

• Mogodon - 1 nightly;

• Lanoxin PG - 1 daily;

• Amoxil - as required;

• Maxolon - as required;  and

• Coloxyl with Senna - 2 daily.  (T13, p58)     

1. After 1 July 1999 the Applicant was transferred onto a carer allowance pending review of her eligibility for that allowance.  A review of carer allowance was undertaken in August 2000, involving the completion by the Applicant of a review of the care provided for Mr Cronin (also signed by Mr Cronin) (T5), and a Health Professional Assessment dated 28 August 2000 (T6).

2. On 1 September 2000 the Respondent notated a carer score of 14.50 and a treating health professional score of 5.50, making a total score of 20 (T7). Cancellation of the carer allowance was effected on 1 September 2000, as the treating health professional score was less than 12 (T7, p42), and the Applicant was so notified (T8).  Following an internal reconsideration, the initial decision to cancel the carer allowance was affirmed on 4 October 2000.  Following discussions with both the Applicant and the hearing officer, the authorised review officer affirmed the decision following a review on 20 November 2000 (T2).
   APPLICANT'S EVIDENCE

3. Mr Cronin described to the Tribunal his various ailments and the medications he receives.  He stated that he is able to get around the house on good days, while on bad days he stays in bed.  Mr Cronin stated that he has, approximately, two good days for every one bad day.  He stated that he owns a Ford Falcon, which both he and his wife can drive.  He finds that driving for up to a period of two hours does him more good than harm.  The car is automatic and has both power brakes and air conditioning.

4. Mr Cronin stated that he relies upon his wife for advice in relation to his medication, in terms of what to take and when.  He stated that he has experienced difficulty with his daily medication, when for whatever reason his wife has not been available to supervise.

5. Mr Cronin also stated that he relies upon his wife to manage his dietary intake in view of his diabetes.  He felt that his doctor had failed to take account of the following issues when completing the health professional assessment:

• His myocardial infarction and peripheral vascular disease;

• His joint replacement and osteoarthritis;

• His mood variation from time to time;

• His shortness of breath (although he has not smoked for  two years);

• Occasional incontinence of urine and bowels (carries a bottle when travelling in a car);

1. Both Mr and Mrs Cronin concurred on the Applicant's major activities surrounding medication and dietary supervision.  Further they both affirmed that the treating doctor had recorded what they had stated to him.
   SUBMISSIONS

2. The Applicant submitted that her husband's medical conditions were numerous and complex, requesting a significant involvement in ensuring a correct medication and dietary regime was maintained.  Further the Applicant contended that, in view of her husband's many and serious disabilities, the payment of an Extreme Disablement Allowance by the Department of Veterans' Affairs and a long history of payment of allowance for undertaking the care of her husband, the payment of a Carer Allowance should be granted.

3. The Respondent, while acknowledging that Mr Cronin has a range of medical conditions, which require him to take an assortment of medications, and that the Applicant assists and supervises the purchase and administration of such medications, notes that when the Applicant is carrying through the supervisory role as regards medication, the responses given by Mr and Mrs Cronin to the treating health professional have in general terms been accurately recorded.  The difficulty perceived is that when the Applicant is absent for whatever reason, such responses may no longer be appropriate.

4. The Respondent contends that both elements of the Adult Disability Assessment Tool have been completed and scored on the facts and circumstances nominated by the Applicant and Mr Cronin, and that such results, being a total score of 20, are less than the 30 required under the legislation. The Respondent contends that the decision to cancel the Applicant's Carer Allowance was correct.
   CONSIDERATION AND FINDINGS

5. In preliminary comment the Tribunal recognises the range and complexities of Mr Cronin's disabilities and the need for his medication and diet to be consistent which what is prescribed.  It is clear to the Tribunal that the Applicant does undertake both roles with particular endeavour and achieves an outcome in terms of Mr Cronin's general state of health which they have both described to the treating health professional.

6. The Tribunal nevertheless, having considered all of the evidence, makes the following findings of fact:

• Mr Cronin does suffer from a range of medical conditions which have been outlined earlier in this decision, and these conditions cause Mr Cronin significant incapacity;

• Mr Cronin takes a substantial number of regular medications as listed earlier in this decision, plus occasional analgesics;

• The Applicant generally supervises the acquisition and taking of the medication, as well as supervising Mr Cronin's diet;

• Mr Cronin has been assessed under the Adult Disability Assessment Tool as having a health professional assessment score of 5.5, a claimant score of 14.5 and a total score of 20;  and

• Such assessments have been undertaken on facts and circumstances as stated by Mr Cronin, which on his own evidence are true in circumstances when his medication schedule is maintained.

LEGISLATIVE FRAMEWORK

1. The following legislative framework contained within the Social Security Act 1991 provides:

   "Qualification for Carer Allowance
   954(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, and been given a score of not less than 30, under the Adult 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 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)       the person is in Australia; and
   (f)        the person is an Australian resident."
   "The Adult Disability Assessment Tool
   38C(1) The Secretary may, by determination in writing:
   (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).
   38C(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.
   38C(3) The determination is, in this Act, referred to as the Adult Disability Assessment Tool.
   38C(4) The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901."

The Adult Disability Assessment Determination 1999 provides that the Adult Disability Assessment Tool will involve the completion of two questionnaires, namely the claimant questionnaire and the professional questionnaire, with the latter being completed by a treating health professional. Further pursuant to Step 5(d) contained within Schedule 2 (Rating Method) a professional questionnaire score of 12 for Carer Allowance is the minimum score permitted if an individual is to qualify for payments pursuant to section 954(1)(c) of the Act.

1. In considering that the professional questionnaire score is 5.5 in this matter the Tribunal finds that the minimum professional questionnaire score of 12 has not been achieved and that neither that requirement nor a total score of 30 pursuant to section 954(1)(c) of the Act has been satisfied. The Tribunal concludes that the Applicant does not satisfy the qualification requirements for a Carer Allowance.

2. In this matter the Tribunal, in noting the respective ages of the Applicant (75+) and the receiver of care (78+), reflects upon the difficulties that the parties may have in working their way through the two questionnaires. It is not surprising to the Tribunal that either the carer or the receiver or both may err in the initial completion process, and if this be the case it may be more appropriate for the Applicant to be advised that a new application should be made, rather then to continually move through a statutory appeal process. The latter process in such circumstances is limited by the very nature of the instrument being reviewed, and the Tribunal is not in a position to deal other than with the evidence which was part and parcel of the Adult Disability Assessment Tool.
   DETERMINATION

3. The Tribunal determines that the decision under review be affirmed. 

   I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.
   Signed:  ...................................................................................
              R Quinn        Associate

   Date/s of Hearing  3 July 2001
   Date of Decision  15 October 2001

   Solicitor for the Applicant   Self-represented, with assistance from Mr W Cronin

   Advocate for the Respondent  A Smith