Davis and Secretary, Department of Family and Community Services

[2005] AATA 572

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 572

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/107

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANNETTE DAVIS

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr KS Levy, Member

Date16 June 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd]......................

KS Levy
  Member

CATCHWORDS

SOCIAL SECURITY – Carer Allowance – “disabled child” – not a recognised disability – application of Child Disability Assessment Tool (CDAT) score – CDAT score of 0.50 – CDAT threshold requirement of 1.0 not satisfied – decision under review affirmed.

Social Security Act 1991 ss 38D, 953

REASONS FOR DECISION

16 June 2005 Dr KS Levy, Member          

1. This is an application under section 29(1) of the Administrative Appeals Tribunal Act 1975 by Annette Davis in relation to a decision made by Centrelink on 1 September 2004 to cease payment of the fortnightly instalment of Carer Allowance paid in respect of the applicant’s daughter, Melissa Flentjar.  That decision was affirmed by the Social Security Appeals Tribunal on 9 February 2005.  It is that latter decision which this Tribunal is asked to review.

2.      A hearing was held at Southport on 2 June 2005.  The applicant was self-represented.  The respondent was represented by Ms S Oliver, a Departmental Advocate.

Issues

3.      The issue to be determined by the Tribunal is whether the Child Disability Assessment Tool (CDAT) score is such to entitle the applicant to Carer Allowance in respect of Melissa Flentjar.

BACKGROUND

4.      The applicant’s daughter, Melissa, was diagnosed with Insulin Dependent Diabetes Mellitus at age three years and ten months.  While she has had a number of instances requiring close medical attention since that time, she is now presently aged thirteen and has been assessed as at a stage of normal development for her age, with a condition of Diabetes.  The applicant, Annette Davis, is the child’s mother and is now a sole parent.  She has three other teenage children, all older than Melissa.  She was granted Carer Allowance from 16 July 1998 until 31 August 2004. Following assessment of Melissa’s condition, the allowance was discontinued from that date.

LEGISLATION

5.      The relevant legislation in this matter is the Social Security Act 1991 (“the Act”).  The provisions which are relevant to this matter are –

“Qualification for carer allowance—caring for either 1 or 2 disabled children

Single child

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 under the Child Disability Assessment Tool and given a positive score under that assessment tool not less than 1, being a score calculated on the basis of a professional questionnaire score greater than 0; 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.

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.”

6.      Also relevant to the legislative requirements here, is the Child Disability Assessment Determination 2001 (“the Determination”) which commenced on 1 July 1999. The following provisions of that Determination are relevant in deciding this matter:

“Part 2  Child Disability 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 of 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 aged 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.

2.2      Testing 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 calculated in paragraph (2)(b) is greater than 0, the test is taken to be completed only if a claimant questionnaire is completed.

(6)If the score calculated under paragraph 2(b) is greater than 0 and a claimant questionnaire has 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.

2.3      Rating 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 38D(2) of the Act; and

(b)that determines whether the person is a care receiver to which subparagraph 953(1)(c)(ii) or paragraph 953(2)(c) of the Act applies.

….

Part 3            Recognised disabilities

3.1Recognised disabilities

For section 953 of the Act, the physical, intellectual and psychiatric disabilities set out in Schedule 3 are recognised disabilities.

Note:See subparagraph 953(1)©(ii) of the Act for the application of this determination.”

EVIDENCE

7.      The following documents were admitted into evidence –

·Exhibit 1 - Documents admitted under Section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents);

·Exhibit 2 – Supplementary “T” Documents;

·Exhibit 3 – Questionnaire provided by Dr Harte (with Centrelink’s letter of 31 May 2005);

·Exhibit 4 – File note of 27 May 2005 with Centrelink letter of 31 May 2005;

·Exhibit 5 – Printout of Assessment History in relation to Melissa Flentjar; and

·Exhibit 6 – Letter from the applicant dated 25 May 2005.

8.      The applicant’s evidence was that her daughter was diagnosed with Diabetes with Insulin Dependence Diabetes Mellitus at three years and ten months of age. She had had two serious incidents because of low blood sugar between the ages of 5 and 12 and has had no incidents of concern since that time.  She indicated that her daughter had had a relatively long period of time (approximately 7 years) during which her blood sugar levels had been relatively stable.  Now that she is in her early teenage years, she has had one incident of some concern where the applicant had to call an ambulance one evening.  She indicated, however, that the ambulance officers could do no more than what her mother had done.  She further indicated that she has learnt to recognise indicators of Melissa’s blood sugar levels being very low – mainly from the colour of her skin, perspiration and that her eyes twinkle.  She indicated that Dr Harte explained to her that her daughter often does not pick up the signals that her blood sugar level is low until it is very low.

9.      The applicant also informed the Tribunal that since her daughter turned 12 years of age, her blood sugar readings became erratic and that she now checks on her approximately three times throughout the night.  She indicated that she is able to work but needs to limit herself to school hours so that she can be home when her youngest daughter is home from school.  She indicated there were two other daughters, all living at home.  The applicant also stated that she does not necessarily spend a significant amount of time tending to her daughter’s needs, however, she needs to be vigilant in her oversight of Melissa to ensure that she maintains a level of equilibrium.

10. The respondent submitted that the treating doctors’ reports were at Folios 66 to 74 (T8) and Folios 75 to 87 (T9) of the “T” Documents. In referring to the score on the CDAT test, she submitted that a score of 0.50 was achieved and where the score is less than 1, the applicant did not satisfy the threshold for Carer Allowance. She referred to the legislative provisions in section 953(1) of the Act and to the computer records of assessment of Melissa (Exhibit 5). The respondent also referred to the report by Dr Khoo and argues that this was an accurate reflection of Melissa’s functional ability, behaviour and special care needs. It was argued that that report more accurately reflected Melissa’s state of development than that of Dr Harte’s (see Folio 118 -129 (T22)). However, on questioning from the Tribunal, it was generally agreed that the assessments by Dr Khoo and Dr Harte were not inconsistent, however, Dr Harte, who is Melissa’s treating doctor, amplified some of the practical considerations. In fact, he has advised the applicant that the changes in Melissa’s blood sugar levels are a normal course of puberty. He also highlighted the areas where particular supervision would be required, for example, preparation of meals for a diabetic adolescent and ensuring that cutting of toenails is also done under supervision.

findings of fact

11.     The Tribunal makes the following findings of fact –

(a)Melissa Flentjar turned 13 years of age on 2 October 2004.

(b)Following re-assessment of Melissa’s condition in August 2004, Centrelink determined on 31 August 2004 that the score under the Child Disability Assessment Tool required cessation of the Carer Allowance paid to Ms Davis.

(c)Ms Davis received Carer Allowance from 16 July 1998 until 31 August 2004.

(d)Ms Davis is still entitled to a Health Care Card in her daughter’s name.

(e)Following treating doctors’ reports from Dr David Khoo and Dr Glen Harte, the CDAT score was 0.50.

(f)The original decision to cancel the Carer Allowance to Ms Davis was affirmed by the original decision maker on 27 October 2004, by the ARO on 6 December 2004 and by the Social Security Appeals Tribunal on 9 February 2005.

(g)On 1 March 2005 Dr Harte provided a further report.  He concluded Melissa is a normal 13 year old girl with diabetes.  That report resulted in a CDAT score also of 0.50.

Consideration of the Issues

12.     In arriving at the correct or preferable decision, the Tribunal has taken into account all of the evidence submitted and relevant legal provisions.

13.     At the outset of the hearing, it was made clear to the applicant that eligibility for Carer Allowance turned on satisfying the relevant legal provisions.  This involves a determination of a number of points earned under the Rating Method provided.

14.     The legislation is quite categorical and where one of the recognised disabilities under Schedule Three of the Child Disability Assessment Tool, then the child must satisfy the relevant CDAT score in order for the carer to be entitled to Carer Allowance.  The CDAT score required is not less than +1.

15. The Tribunal noted that the applicant was very truthful and frank in the evidence she provided. She was clearly very dedicated in the concern and management of her daughter’s condition. The Tribunal however, noted the relevant statutory framework which requires that Carer Allowance is paid where there is a dependent child who is an Australian resident and either has a recognised disability or meets the specified threshold in the Child Disability Assessment Tool (see section 953(1) of the Act). The Child Disability Assessment Tool is determined by the Secretary under section 38D of the Act. By virtue of section 38D(1) of the Act, the Child Disability Assessment Determination has been approved. This Determination provides for questionnaires to be completed by the claimant and the treating health professional. A testing method is specified in Section 2.2 of the Child Disability Assessment Tool and a Rating Method is prescribed in Section 2.3 of that same instrument.

16.     Based on the assessment of Dr Khoo, Melissa’s assessment ratings for all functions assessed are shown to be age appropriate. The assessment by Dr Harte also assesses the functions to be age appropriate, but his specialist assessment qualifies the completion of the professional questionnaire and refers to the need for supervision with meals preparation and with the cutting of toenails. Ms Davis admitted that the amount of time required in these tasks as well as taking blood samples and monitoring her daughter’s blood sugar levels may be very small but there is concern and a need to be vigilant with Melissa and more so than with a child who did not have such a condition.

17.     The CDAT assessment is of course, one about the child’s functional ability and not about the carer.  This case shows that the young person concerned is, as described by Dr Harte, a normal 13 year old with Diabetes.  She has had occasional needs for special medical attention.  This has been undoubtedly facilitated due to the level of care and concern provided by her mother who is the applicant in this case.  Her evidence did not attempt to exaggerate her daughter’s needs or her responsibilities. Equally, she explained that as a single mother, she works in school hours so that she is at home with her daughter at other times. She has clearly made a significant commitment for the care of her daughter.

18.     The Tribunal has reviewed the evidence and the assessments made.  It is noted that for a person over 12 years of age, the assessment is modified to take account of advancing maturity.  Applying the tool as approved, the Tribunal is satisfied that the rating assessed pursuant to that instrument, remains at 0.5.  It is therefore below the threshold required of 1.0.  Therefore, the prerequisite conditions to qualify the applicant for Carer Allowance are not satisfied from a legal point of view.

19. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review must be affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member

Signed:         Jenny Tran
  Associate

Date/s of Hearing  2 June 2005
Date of Decision  16 June 2005
The Applicant appeared in person
For the Respondent                  Ms Sarah Oliver, Departmental Advocate