Duck and Secretary, Department of Family and Community Services

[2005] AATA 1037

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1037

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1102

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		Raymond Duck

Applicant

And Secretary, Department of Family & Community Services  

Respondent

ORAL DECISION

Tribunal Ms N Bell, Senior Member

Date20 October 2005

PlaceSydney

Decision The decision under review is affirmed

................[sgd]...............

Ms N Bell
  Senior Member

SOCIAL SECURITY - Application for Carer Allowance and Pension – Conditions Suffered by Person Receiving Care do not meet Legislative Requirements – Adult Disability Assessment Tool Score Insufficient – Decision Under Review Affirmed

Social Security Act 1991 – Sections 38C, 954, 198

Adult Disability Assessment Determination 1999

WRITTEN REASONS FOR ORAL DECISION

20 October 2005 Ms N Bell, Senior Member

1.      Mr Duck is 66 years of age and is the sole carer for his wife.  Mrs Duck suffers from schizophrenia, an abdominal hernia, has suffered from spinal injuries and is morbidly obese.  Mr Duck, who is currently in receipt of an age pension, asserts that he should qualify for carer payment and carer allowance, due to the level of care he needs to provide his wife. 

2.      Determining whether Mr Duck can be paid the carer allowance and carer payment is largely reliant upon what rating can be attributed to his wife’s various conditions.  Mrs Duck, when assessed under the ‘Adult Disability Assessment Tool’ has to obtain a score of at least 30 in order for Mr Duck to be eligible to receive the payments requested.  The Social Security Act 1991 sets out the criteria to which I am bound in deciding Mr Duck’s application:

3.      In relation to Mr Duck’s carer allowance claim section 954(1) of the Act provides:

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 Took and given a score under that assessment took 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

(e)       the person is an Australian resident.

4.      In relation to Mr Duck’s carer payment claim, section 198 of the Act relevantly states:

198(1)  A person is qualified for a carer payment if the requirements of this section are met.

198(2)  The person must personally provide constant care for:

(a)       either:

(i)        if the person is the only person providing the constant care – a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or

(ii)       if not – a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32.

5. The Adult Disability Assessment Determination provides two questionnaires that are relied upon for calculating the rating upon which eligibility for a carer’s pension and/or allowance depends. One questionnaire is to be completed by the carer allowance claimant and the other is completed by a treating health professional.

6.      Mr Duck completed a Claim for carer allowance and/or carer payment form in November 2003 and Mrs Duck’s doctors, McGilvray and Hodge completed Health Professional Assessment forms in October and December 2003 respectively.

the care that mr duck provides his wife

7.      Mr Duck said that the combination of his wife’s conditions require him to “keep a finger on the pulse”.  Mrs Duck was diagnosed with schizophrenia in 1971, at which time she had a breakdown and had to be scheduled.  She has been on medication for this condition ever since. Mr Duck said this condition is not life threatening but requires him to be with her constantly.

8.      The hernia condition that Mrs Duck suffers with, according to Mr Duck, is the condition that causes the greatest concern.  Mr Duck considered this condition to be life threatening.  He told the Social Security Appeals Tribunal that on 3 October 2003, Mrs Duck suffered an extremely painful episode where her stomach became bloated and she had to go to bed and have Mr Duck massage her stomach to get rid of wind.  Mr Duck advised this tribunal that on September 18 of this year Mrs Duck underwent a total abdominal hysterectomy.  This was major surgery and Mrs Duck required a lot of care during the post operative recovery period. 

9.      Mr Duck told the Social Security Appeals’ Tribunal that his wife is quite obese, being about 5’6’’ tall and weighing about 127kilograms.  He said her schizophrenia medication, ‘Largactil’, has caused the weight gain.  Mrs Duck’s weight and hernia conditions affect her mobility to the point that she is prevented from lifting anything or bending or stretching.

10.     Mrs Duck’s back condition arises from a long standing childhood injury and causes her neck to “play up” on occasion.  Mr Duck said this tends to happen when she is upset and that Mrs Duck will seek treatment from a chiropractor. 

11.     Among other things, Mr Duck’s completed claim form indicated that his wife requires the following assistance:

·Sometimes needs help or attention during the night;

·Needs some help with showering or bathing;

·Needs some help dressing herself;

·Becomes emotional for no apparent reason, requiring attention;

12.     Other help that Mr Duck needs to offer his wife is help hanging out the washing, helping her get out of bed and getting up from a seated position.  Mr Duck also helps his wife by applying ointment to areas where she suffers from a rash.  He also needs to remind her to take her medication sometimes.  Overall, Mr Duck feels he needs to be at home with her all the time so that he can “keep an eye” on his wife.

the legislative requirements

13.     Based on the medical evidence and Mr Duck’s oral evidence about his wife’s care needs, I am satisfied that the responses provided by doctors McGilvray and Hodge, in the Health Professional Assessment forms are an accurate reflection of Mrs Duck’s disability, emotional state, behaviour and care needs.  I am also satisfied that the responses provided on the form completed by Mr Duck were accurate.

14.     The score attributed to Mr Duck’s application, by virtue of the Adult Disability Assessment Tool was 17 points (15 points calculated from the form completed by Mr Duck and 2 points calculated from the forms completed by doctors McGilvray and Hodge).  The minimum score required in order to qualify for carer allowance is 30 and the minimum score required in order to qualify for carer allowance is 25.

15.     With a total score of 17, Mr Duck’s application for both the carer allowance and carer pension must fail.

decision

16.     The decision under review is affirmed.

I certify that the 16  preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         .........[Linda Blue].............................
  Associate

Date of Hearing  4 October 2005
Date of Oral Decision                4 October
Date of Written Reasons          20 October 2005
Solicitor for the Respondent     Centrelink, Legal Services