Davies; Department of Family and Community Services
[2001] AATA 101
•5 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 101
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/748
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
And PAMELA DAVIES
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date5 February 2001
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that: a) the Tribunal is not satisfied that the professional questionnaire of Dr Ticehurst of 9 December 1999 is an accurate reflection of Belinda's functional ability, behaviour and special care needs; and b) the Tribunal requires a replacement professional questionnaire to be completed by another treating health professional; and c) the Tribunal recommends that in the light of the particular circumstances of the matter, care allowance be granted retrospective to 15 September 1998.
……………………….
Dr J D Campbell
Member
CATCHWORDS
SOCIAL SECURITY – carers allowance – actions of Social Security Appeals Tribunal – alteration of scores – proper action - consequences
Social Security Act 1991, Sections 38D, 952, 953, 1258
Child Disability Assessment Determination 1999
Determination under para 1.5 (2) of the Child Disability Assessment Determination.
REASONS FOR DECISION
Dr J D Campbell, Member
In this matter the Secretary, Department of Family and Community Services ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT"), dated 4 April 2000. The SSAT decision in question set aside the decision made by a Centrelink delegate of the Secretary, Department of Family and Community Services on 20 October 1999. This decision was reviewed again and affirmed by an authorised review officer on 30 December 1999 which rejected Mrs Pamela Davies' ("the Respondent's") claim for carer allowance.
A hearing was held before the Tribunal on 11 December 2000 at which the Applicant was represented by Ms Smith, an advocate from the advocacy and Administrative Law section of Centrelink. The respondent was represented by Ms Koller, a solicitor from the Welfare Rights Centre.
The following material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T20 pp1-81
Applicant's amended statement of facts and contentions, dated 24 November 2000 Exhibit A1
Letter from the Applicant to the Tribunal with three attachments, dated 6 December 2000 Exhibit A2
Respondent's statement of facts and contentions, dated 6 December 2000 Exhibit R1
Treating doctor's report, dated 26 June 2000 Exhibit R2
Submissions for the Respondent, dated 11 December 2000 Exhibit R3
ISSUES
The issues in this matter are:
a)whether the actions taken by the Social Security Appeals Tribunal to amend the ruling given by the treating doctor under the Child Disability Assessment Tool was within their power to do so; and
b)whether the Respondent is entitled to be paid carer allowance in respect of her foster daughter, Belinda, from the date of claim on 14 September 1999 or sometime earlier, namely 14 September 1998.
LEGISLATION
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 38D, 952, 953, 1253. Also relevant is the Child Disability Assessment Determination 1999, particularly the Determination under paragraph 1.5 (2).
BACKGROUNDOn 20 August 1999, the Respondent claimed carer allowance for two foster children, Jaydon and Belinda. This claim was made on an outdated claim form and no treating health professional's assessment report accompanied the claim. On 14 September 1999 the correct claim forms were lodged together with the treating health professional's report, being received by the Applicant on 30 September 1999. Payment of a carer allowance in respect of Jaydon was granted and backdated to 20 August 1998 (T8). The claim for carer allowance for Belinda was rejected as the score calculated in respect of the health professional's assessment of Belinda was 1.85 (T7).
A further health professional's assessment was completed by Dr Ticehurst in relation to Belinda on 9 December 1999, which was calculated at 0.85 (T11), using the Child Disability Assessment Tool (T12). The Respondent was again notified that her later application was unsuccessful on 15 December 1999 (T16) and this was confirmed by the authorised review officer on 30 December 1999 (T19).
On 4 April 2000, the SSAT reassessed the treating health professional's report and concluded that the correct score should be + 1.38 and that as a consequence the respondent was qualified for the payment of carer allowance in respect of Belinda.
WRITTEN EVIDENCEThe Tribunal, in assessing the written evidence in this matter, and about which there is no disagreement between the parties, noted the following.
a)Belinda suffers from behavioural disorders, attention deficit, hyperactivity disorder, oppositional deficit disorder and sexualised behaviour consequent upon severe abuse at a young age, which require medication and supervision.
b)Dr Ticehurst, paediatrician, sees Belinda every six months and has completed three treating doctor's reports, namely:
a report dated 28 September 1999 (T5) – a score of -1.85 (T7)
a report dated 9 December 1999 (T11) – a score of - 0.85 (T12)
a report dated 29 June 2000 (Exhibit R2)
c)As a result of the third report a carer allowance was granted with effect from 28 April 2000, with arrears payment being made for the period 6 may 1999 to 27 April 2000.
d)In Dr Ticehurst's first report (T5), the Tribunal notes that Dr Ticehurst makes comments to item 11 of Part C – Functional Assessment.
e)In Dr Ticehurst's second report (T11), the Tribunal notes that Dr Ticehurst makes comments in relation to items 7,8,11,12,14 and 15 of part C – Functional Assessment.
f)In Dr Ticehurst's third report (Exhibit R2), there are no added comments.
g)In terms of Dr Ticehurst's three assessments the following observations are pertinent:
i) between assessment one and two the only difference between the reports relates to question 15 of the functional assessment (behaviour) with Dr Ticehurst considering in the second report that Belinda shows behavioural attributes nominated in M-9a, 9c, 9e;
ii) between assessments two and three, Dr Ticehurst notes relative differences in:
receptive language skills (M–1g);
expressive language skills (M–2g);
hygiene and grooming skills (M-f);
dressing skills (M-5g);
social and community skills (M-6g); and
mobility (M-8g).
h)The SSAT in forming its views listened to evidence both from the Respondent and Ms Rawlings but recalculated the rating for Belinda after taking into account only Dr Ticehurst's written comments in her second assessment. This resulted in the following changes:
Q71g as more appropriate than 1h
Q82g as more appropriate than 2h
Q115g as more appropriate than 5h
Q125f as more appropriate than 6h
In relation to questions 9,10 and 14 the SSAT made no changes to Dr Ticehurst's appraisals in her second assessment.
i)The SSAT, as a result of their appraisal of Dr Ticehurst's second assessment and her comments and changing particular responses as outlined, recalculated the CDAT score to be + 1.38.
SUBMISSIONS: The Applicant
The Applicant made the following submissions:
a) The SSAT erred in altering the CDAT score in relation to the Respondent's claim and that the decision of SSAT is ultra vires for the following reasons:
i)the SSAT, pursuant to ss1253(3) of the Act, may exercise all the powers and discretions that are confirmed by the Act on the Secretary, with the exceptions nominated in ss1253(a) of the Act; and
ii)pursuant to Part 2 [2.1(3) and (4) and 2.(2) and (3)] of the Child Disability Assessment Determination 1999, the Secretary must be satisfied that a completed professional questionnaire is an accurate reflection of the functional ability, behaviour and special care needs of the person concerned, and when the Secretary is not satisfied that the questionnaire is an accurate reflection, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional; and
iii)the only cause of action open to the SSAT where it was not satisfied that Dr Ticehurst's professional assessment was an accurate reflection, was for the SSAT to seek a replacement questionnaire to be completed by another treating health practitioner; and
iv)that it is inappropriate for a medical member of the SSAT or medically qualified delegate of the Secretary to act in a medical capacity and undertake a replacement questionnaire during the processing of the application, as it would be:
an inappropriate function for such an individual to perform when acting in the role of a reviewer, and this would raise issues of possible conflict and bias, both real and perceived;
that even allowing the greatest latitude to the term "treating health professional", it is difficult to consider that the role of a Doctor on the SSAT can be construed as that of a treating health professional and indeed his role is that of Tribunal member, with a role to consider the matter on evidence put before him, not evaluate new evidence during the process of a hearing; and
v)that in like fashion, it is not the role of a Tribunal to embark on new evidence evaluation, particularly where such activity is not consistent with the determination under review, nor with its role and function as the first tier of external administrative review.
SUBMISSIONS: The Respondent
The Respondent submitted that:
a)in all the circumstances, the role of the medical Tribunal Member was an appropriate and lawful one, suggesting that in their view section 253 of the Act was not an exhaustive definition of the SSAT or Members' powers, because where opportunity exists for a Member to exercise particular specialist skills it is appropriate to do so, as evidenced by the role of the medical Member in disability support pension matters; and
b)if the matter had been remitted by the SSAT, another treating health professional's report would have been allowed and this would have been attributed to the same claim, namely that of 14 September 1999, and that in this regard, as evidenced by Dr Ticehurst's third report, the new report would be processed as part of the original claim, allowing backdating of payment to 14 September 1998.
CONSIDERATION AND FINDINGS
The Tribunal, having considered all the evidence placed before it, makes the following findings of fact:
a)that on 20 August 1999, the Respondent claimed carer allowance for the two foster children and that the claim was made on an outdated form with no accompanying treating health professional's report being lodged; and
b)that on 14 September 1999, the Respondent lodged a claim for carer allowance, with a health professional's report being received by the Applicant on 30 September 1999; the claim in relation to Belinda was rejected by the Applicant, as the score in respect of Dr Ticehurst's assessment was –1.85; and
c)that a further health professional's report (Dr Ticehurst) was completed on 9 December 1999, in which Dr Ticehurst made both alterations and comments to many of the questions asked, before proceeding to finalise the assessment for each question - the score in respect of the assessment was –0.85, and the claim was again rejected; and
d)that on 4 April 2000 the SSAT, which included a medically qualified Member, having considered Dr Ticehurst's assessment of 9 November 1999, concluded that Dr Ticehurst's final assessment for questions 7, 8, 11 and 12 were inconsistent with her alternations and/or additions to the explanatory comments in the body of each question; and
e)that as a result of this inconsistency the Tribunal, having taken into account only Dr Ticehurst's written comments, changed the assessment in relation to questions 7, 8, 11 and 12 while considering, but not changing, assessments under questions 9, 10 and 14 and such changes resulted in a CDAT score of at least +1.38; and
f)that a new claim for Belinda was submitted by the Applicant with a further treating doctor's report (Dr Ticehurst) dated 29 June 2000 and this further claim was granted, with date of effect being 28 April 2000 and payment in arrears for the period 6 may 1999 to 27 April 2000.
The Tribunal in turn noted the following statutory framework which is concerned with the following:
"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.
…"
"38D Child Disability Assessment Tool
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 subsections (1) and (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.
38D(5) The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
…"
The Tribunal observes that there is no disagreement between the parties as to the application of ss953(1) and ss38D(1), (2), (3), (4) and (5) of the Act. Further, the Tribunal observes that pursuant to ss38(1) of the Child Disability Assessment Determination 1999 commenced on 1 July 1999 and amongst other matters made the following provisions, which are relevant in deciding this matter:
"Part 1 Introductory
1.5 Treating health professional
1)The Secretary may approve a person as a treating health professional.
2)The Secretary may also approve a class of person tas treating health professionals.
3)A person approved, or in a class of persons approved, by the Secretary under section 1.5 of the 1998 determination is a treating health professional for this determination.
Part 2 Child Disabilities Assessment Tool
2.1 Questionnaires
1)Part 1 of schedule 1 sets out a questionnaire (the claimant questionnaire) about the functional ability, behaviour and special care needs of a person aged under 16.
2)The claimant questionnaire may be completed only by a person (the claimant) wishing
a)to claim a carer allowance under the Act for the care os a person aged under 16; or
b)to continue to be qualified for receiving a carer allowance under the Act, for the care of a person under 16.
3)Part 2 of schedule 1 sets out another questionnaire (the professional questionnaire about the functional ability, behaviour and special care needs of a person aged under 16.
4)The professional questionnaire may be completed only by a treating health professional.
2.2Testing Method
1)The test for assessing a person's functional ability, behaviour and special care needs is the assessment, under this part, of the answers given in relation to the person in the 2 questionnaires mentioned in section 2.1.
2)The following steps are carried out for the test
a)the secretary must be satisfied that a completed professional questionnaire is an accurate reflection of the functional ability, behaviour and special care needs of the person concerned.
b)a score must be calculated:
i)using the rating method mentioned in section 2.3; and
ii on the basis of the answers given in the questionnaire.
3)If the secretary is not satisfied that the professional questionnaire is an accurate reflection of the person's functional ability, behaviour and special care needs, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional.
4)If the score calculated in paragraph (2)(b) is not greater than 0, the test is taken to be completed.
5)If the score calculate din paragraph (2)(b) is greater than 0, the test is taken t be completed only if the claimant questionnaire is completed.
6)If the score calculated under paragraph (2)(b) is greater than 0 and a claimant questionnaire had been completed, a score must be calculated on the basis of the answers given in that questionnaire using the rating method mentioned in section 2.3.
2.3Rating Method
1)Steps 1 to 12 in Schedule 2 set out the method for rating a person, on the basis of the answers given in each questionnaire completed in relation to the person.
2)The method gives the person a score:
a)in accordance with the scale mentioned in subsection 38(D) (2) of the Act; and
b)that determines whether the person is a care receiver to which subparagraph 953 (1)(ii) or paragraph 953(2)© of the Act applies.
Part 3Recognising Disabilities
3)Recognised Disabilities
For section 953 of the Act, the physical, intellectual and psychiatric disabilities set out in schedule 3 are recognised disabilities.
Part 4Review of Decisions
4.1)For Chapter 6 of the Act, a decision under section 1.5 or subsection 2.2(3) is taken to be a decision of an officer under the Act."
The Tribunal further notes that on 1 July 1998, pursuant to paragraph 1.5(2) of the Child Disability Assessment Determination 1998, medical practitioners were approved, as a class of persons, as treating health professionals (Exhibit A2).
In addressing the issues in contention between the parties, the Tribunal observes that a particular issue in contention is the role and power of the SSAT to make the decision they ultimately arrived at in this matter. The Tribunal notes ss1253(3) and (4) of the act which provides:
"1253.(3) Subject to subsection (4), the Social Security Appeals Tribunal may, for the
purpose of reviewing a decision under this Act, exercise all the powers and discretions that are conferred by this Act on the Secretary.1253.(4) The reference in subsection (3) to powers and discretions conferred by this Act does not include a reference to powers and discretions conferred by:
d)a provision dealing with the form and place of lodgement of a claim; or
e)a provision dealing with the manner of payment of a social security payment; or
f)section 1233 (garnishee notice); or
g)a provision dealing with the giving of a notice requiring information from a recipient of social security payment; or
h)section 1100 (application of Division 2 of para 3.10 to a foreign currency); or
k)section 1304 to 1307 (notice requiring information from any person); or
m)section 1241 or 1251 (continuation of payment pending review of adverse decision); or
n)a provision dealing with the imposition of requirements before grant of social security payment; or
o)a provision dealing with the deduction of amounts from social security payment payments for tax purposes.
The Tribunal also notes s43(1) of the Administrative Appeals Tribunal Act 1975 which states:
"43(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision in writing.
…
C (111)Remitting the matter for reconsideration in accordance with and directions or recommendations of the tribunal."
As a consequence of the Tribunal detailing the statutory framework, under which this matter is to be tested, the first issue, namely the ambit of the review power, is clearly defined by subsections 1253(3) and (4) of the Act in relation to review by the SSAT and to subsection 43(1) of the Administrative Appeals Tribunal Act 1975, in so far as review by this Tribunal is concerned. In so far as this matter is concerned the power of the primary decision maker is contained within the Child Disability Assessment Determination 1999. In particular, the Tribunal observed that paragraph 2.2 determines the testing method nominated for the Child Disability Assessment Tool and, within paragraph 2.2(3), that if the Secretary is not satisfied that the professional questionnaire is an accurate reflection of the person's functional ability, behaviour and special care needs, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional.
From the consideration of the Secretary's powers, duties and responsibilities nominated, it is clear to the Tribunal that where the decision maker, the Secretary, is not satisfied with medical assessment he/she must ask for a replacement questionnaire to be completed by another treating health professional. In the matter at hand, the primary decision maker was satisfied, while the SSAT was clearly not satisfied, and proceeded to make a further assessment using as the basic data for the new assessment the assessment made by Dr Ticehurst, together with her written comments or exclusions where they existed in a particular question.
The Tribunal, having considered the facts and issues raised in this matter, finds that the decision of the SSAT is wrong in law, and should be set aside for the following reasons.
a)In carrying through administrative review under the Act, the SSAT can exercise all the powers and discretions that are conferred by this Act on the Secretary in subsection 1253(3). Paragraph 2.2(3) of the Child Disability Assessment Determination 1999 states that if the Secretary is not satisfied that the professional questionnaire is an accurate reflection of the child's disabilities the Secretary must ask for a replacement professional questionnaire by another treating health professional. In this matter the SSAT was not satisfied that the professional questionnaire completed by Dr Ticehurst on 9 December 1999 was an accurate reflection of Belinda's functional ability, behaviour and special care needs. They proceeded to make a further assessment report as a result of a further evaluation of Dr Ticehurst's Report. This, in the Tribunals view, is clearly an error of law, for in such a situation it is mandatory that the Tribunal seek a replacement report from another treating health professional.
b)The SSAT is a Tribunal and its functions are clearly defined. No evidence was adduced before this Tribunal that the SSAT could be considered or deemed to be considered a treating heath professional, even if one of the members was legally a medically qualified practitioner. As such, the Tribunal finds that the SSAT cannot provide a treating doctor's report irrespective of its composition, as the Tribunal has not been approved as being within the class of persons deemed treating health practitioners pursuant to paragraph 2 of the Child Disability Assessment Determination 1999.
c)In addressing the issue raised by the Respondent that the medical member of the SSAT in the matter was doing no more than providing another treating doctors report the Tribunal, while acknowledging that individual tribunal Members are appointed on the basis of a particular skill, concludes that such individual Members contribute their specialist knowledge in order to assist and/or promote better understanding of medical matters before the Tribunal and in a way which insures fairness to both parties. It is, in the Tribunals view, not the function of a specialist Member of a tribunal to embark on an episode of individual client practice during the course of a hearing. Clearly in such a situation a tribunal Member falls into conflict and a practice of unfairness, as the Member creates primary evidence upon which there is further adjudication and to which, as a Member of the tribunal, the Member is party. Further, this Tribunal is of the view that such dual functioning by a specialist Member would, in the mind of the objective observer, create a perception of bias at best and the possibility of real bias at worst. This would occur where a particular individual is subject to an episode of individual specialist tribunal Member assessment and report during the course of a hearing and then a decision is later arrived at which is dependent on the same opinion and report.
d)Further it was submitted that the medical Member in this matter was in similar circumstances to that of one undertaking a similar function in a disability support pension matter. The Tribunal finds such an analogy to be misleading, for in the disability support pension matter the role of the Tribunal member is to undertake the task within the prescribed statutory framework, nominated within section 94 and 100(3) of the Act. In this situation, the role of the specialist Member, as a Member of the tribunal, is to assist the tribunal in better understanding any medical and other evidence placed before it, and as a tribunal make an assessment of individual disabilities and impairments, their work ability and work capacity against a schedule of impairment tables nominated in the Act. This task is undertaken by the tribunal, with the specialist medical Member assisting the tribunal in gaining a better understanding on particular issues contained within the medical elements on the evidence before it. In this regard the role of the specialist Member is not at variance with any other Member of the Tribunal, and at no stage does the specialist Member move to independent activity and create either written or non written evidence upon which the Tribunal is then asked to adjudicate. In the matter before this Tribunal, it is clear that the submission put forward by the Respondent involved an independent, non tribunal activity by the specialist Member which in turn led to the creation of a treating doctor's report which was then subject to a decision by the SSAT. In creating the new report the specialist Member took what was before him in the form of a treating doctor's report and created the new report by drawing different conclusions from the earlier report. While this may have seemed a rational exercise it is in the Tribunal's view clearly beyond the power of the specialist Member and a tribunal in asking the specialist Member to do so. In so stating, the Tribunal reasons that such an action is clearly inconsistent with the statutory framework nominated in the Child Disability Assessment Determination 1999 and secondly, clearly inconsistent with the proper approach that should be adopted by the tribunal when dealing with expert reports/opinions. In such latter circumstances these expert reports/opinions are received into evidence by the Tribunal and assessed with an evidentiary weighting afforded on the particulars within the report. At no stage does the Tribunal move to correct the report/opinion or rewrite the opinion and arrive at a different conclusion/opinion on the same set of facts and then proceed to determine the matter with the newly constructed opinion. In the tribunal process such a process is particularly flawed and introduces both bias and conflict to an administrative law process.
As a result of the Tribunal's considerations and findings, it is the Tribunal's conclusion that the decision under review be set aside, and that the report of Dr Ticehurst of 9 December 1999 is found not to be an accurate reflection of Belinda's functional ability, behaviour and special care needs. The Tribunal further finds that a replacement professional questionnaire should be completed by another treating health professional.
In relation to the latter findings and in view of the particular circumstances of the matter, including time, the difficulty of obtaining a treating doctor's report which is congruent in time and relevant content, and the fact that a new claim has been made and approved, the Tribunal recommends that consideration be given to granting the claim retrospectively to 15 September 1998. In arriving at such a recommendation the Tribunal has assessed the practicability and reality of the likely outcome of a further treating doctor's report were one to be requested.
DETERMINATIONThe Tribunal sets aside the decision under review and in substitution therefore determines that:
a)the Tribunal is not satisfied that the professional questionnaire of Dr Ticehurst of 9 December 1999 is an accurate reflection of Belinda's functional ability, behaviour and special care needs; and
b)the Tribunal requires a replacement professional questionnaire to be completed by another treating health professional; and
c)the Tribunal recommends that in the light of the particular circumstances of this matter, that care allowance be granted retrospective to 15 September 1998.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell.
Signed: .....................................................................................
AssociateDate of Hearing 11 December 2000
Date of Decision 5 February 2001
Representative for the Applicant Angela SmithRepresentative for the Respondent Sandra Koller
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