Deveson and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1849

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1849

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0484

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		KELLY DEVESON

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member

Date17 September 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.  

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY – carer payment – child aged sixteen – severe congenital disability – application of the Adult Disability Assessment Tool (ADAT) – failure to meet statutory requirements – appropriateness of the professional questionnaire/assessment – decision affirmed

Social Security Act 1991  s 954, s 38C

REASONS FOR DECISION

17 September 2007 Miss E.A. Shanahan, Member      

1.      Mrs K. Deveson has a son, Josh.  Josh has been profoundly deaf since birth.  He is unable to speak.  Mrs Deveson received carer’s payment from Centrelink. Centrelink is the service delivery agency for the Department of Families, Community Services and Indigenous Affairs (the Department).  Josh turned 16 on 14 July 2006. On 17 July 2006 Centrelink decided that Josh did not meet the legislative requirements of the Adult Disability Assessment Tool (ADAT) and cancelled Mrs Deveson’s carer payment.  On 24 October 2006 an Authorised Review Officer (ARO) affirmed the decision.  Mrs Deveson sought review of the decision by the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decision on 16 January 2007.  Mrs Deveson then applied to the Administrative Appeals Tribunal (AAT) on 26 February 2007 for review of the SSAT decision.

2. Mrs Deveson was self-represented and gave evidence by telephone. Mr T. Noonan, an advocate with Centrelink Legal Services, appeared for the Secretary to the Department of Families, Community Services and Indigenous Affairs (the Secretary). The Tribunal had before it the documents lodged pursuant to s 37 of Administrative Appeals Tribunal Act 1975 (T‑Documents).

BACKGROUND TO THE APPLICATION

3.      Josh Deveson has been profoundly deaf since birth and is unable to speak.  He is proficient at signing (Auslan) and is able to send a text message (SMS) to his parents when in difficulty.  He travels by train for four hours per day to attend the Victorian School for the Deaf.

4. Josh qualified shortly after birth for the Child Disability Allowance (CDA), profound deafness being a recognised disability which did not attract the Child Disability Assessment Tool (CDAT). In 1999 the CDA was replaced by a carer allowance under s 953 of the Social Security Act 1991 (the Act); and Mrs Deveson was paid carer allowance.  On reaching the age of 16, Josh was required to be assessed under the ADAT.  As part of this assessment the person requiring the care must score at least 12 points on the professional questionnaire.  Dr W. Hooper assessed Josh, based on information provided by Mrs Deveson, at six points.  Dr Hooper has been the family’s general practitioner since Josh’s birth, but rarely saw or treated him.  On this basis Mrs Deveson’s carer allowance was cancelled. 

EVIDENCE BEFORE THE TRIBUNAL

Mrs Deveson

5.      Mrs Deveson is a Senior Nurse in the Accident and Emergency Department of a major teaching hospital in Melbourne.  She works the nightshift so that she can be available during the day to meet Josh’s needs.  She would prefer to work the day shift. 

6.      Mrs Deveson told the Tribunal that the level of care she provided for Josh had remained unchanged since Josh had turned 16.  Josh’s deafness results in him being unaware that he has left taps running, incorrectly flushed the toilet or left his electric toothbrush on.  He is unable to hear loudspeaker announcements at railway stations advising of changed timetables and train cancellations.  Given that he spends four hours per day travelling on trains, such changes can result in him missing trains or becoming stranded; at which time he sends an SMS to his mother to come to his aid.  Mrs Deveson estimated that this occurred once every few weeks but pointed out that she had no way of predicting when he might need this type of assistance.  A burglary of the family home had elevated Josh’s level of anxiety because he was unable to hear the breaking-in occur.

7.      Mrs Deveson assessed Josh’s cognitive function and social relationships as well below that of his 14-year-old brother.  When Josh was assessed at the Eye and Ear Hospital regarding his suitability for Cochlear Implants, Mrs Deveson was informed his cognitive function was five years behind his actual age. 

8.      Mr Noonan went through all the questions posed by the health professional assessment questionnaire completed by Dr Hooper.  At the time of completion of the questionnaire, given Josh’s inability to speak, Dr Hooper had completed the questionnaire according to the information provided by Mrs Deveson.  Mrs Deveson commented on each of the questions posed and in some instances felt the answer never might be more appropriately assessed as sometimes.

9.      Mrs Deveson agreed that she had provided all the information that Dr Hooper required to complete the form and that she was fully aware of the answers to the questions provided by Dr Hooper. 

RELEVANT LEGISLATION

10.     Section 954 of the Act states:

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 under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; 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

(f)the person is an Australian resident.

954(2)If a person is qualified for carer allowance for a disabled adult, the disabled adult is not able to qualify for carer allowance for another disabled adult.

954(3)A person may qualify for carer allowance under this section and/or section 954A for 2, but no more than 2, disabled adults.

Section 38C of the Act provides that:

38C(1) The Secretary may, by legislative instrument (the determination):

(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.

SUBMISSIONS

11.     Mrs Deveson submitted that the ADAT was inappropriate in its application to Josh; as his congenital disabilities (deafness and inability to speak) remain constant despite him having reached the age of 16; and the need for her to police his activities in the home and rescue him from difficulties with public transport, were unchanged.  In her opinion the questions posed by the ADAT where designed for older adults with acquired illness. 

12.     Mr Noonan submitted that the decision should be affirmed as Josh did not meet the legislative requirements and the only discretion the Tribunal could exercise was to order another professional assessment. 

TRIBUNALS DELIBERATIONS

13.     The Tribunal agrees that Josh does not meet the requirements of the Professional Assessment section of the ADAT.  Given that Dr Hooper’s assessment was based entirely upon information provided by Mrs Deveson, a further professional assessment is not indicated. 

14.     The Tribunal agrees, in part, with Mrs Deveson: that the application of the ADAT to a 16-year old with profound congenital deafness and an inability to speak is less than appropriate.  The questions posed on the ADAT relate predominately to acquired adult illnesses.  Question 8 of the questionnaire headed Please tick any condition(s) which you believe significantly contributes to the person’s disability, lists fifty-four specific conditions, eight of which are congenital with four of these usually being diagnosed during infancy or early childhood. 

15.     However, the current legislation requires the application of the ADAT to Josh. In light of that requirement, the Tribunal affirms the decision under review. 

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision of:

Miss E.A. Shanahan, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  17 September 2007
Date of decision:  17 September 2007
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr T. Noonan, Centrelink Legal Services Branch