Farnsworth and Department of Family and Community Services - [2001] AATA 741

DECISION AND REASONS FOR DECISION [2001] AATA 741

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/365
GENERAL ADMINISTRATIVE DIVISION
  Re:         KEITH FARNSWORTH
  Applicant

And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             24 August 2001
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.
(sgd) Graham Friedman
Member
SOCIAL SECURITY - carer payment - disabled child - meaning of "profoundly disabled child"
Social Security Act 1991 s197(2), s198(2)

REASONS FOR DECISION

24 August 2001 G.D. Friedman, Member

This is an application by Keith Farnsworth (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 28 February 2001 which affirmed a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 8 January 2001. The original decision by Centrelink found that the applicant was not eligible for carer payment in respect of his disabled son.
With the consent of the parties the Tribunal decided to make a decision on the review application without holding a hearing. The material before the Tribunal comprised the documents lodged under s37 of the Administrative Appeals Tribunal Act1975, written submissions dated 17 June 2001 and 23 July 2001 by Anglicare Victoria on behalf of the applicant, and a submission dated 23 August 2001 by the respondent.
BACKGROUND
Elliot Rhys Farnsworth (the child), son of the applicant, was born on 30 April 1987. According to a medical report submitted to the SSAT the child suffers from a number of conditions including autism, epilepsy, intellectual disability and a brain tumour. He lives at home with his parents.
On 27 October 2000 the applicant lodged an application with Centrelink for carer payment. On 13 November 2000 the application was refused on the grounds that the child did not meet the definition of profoundly disabled child under the Social Security Act 1991 (the Act). On 8 January 2001 an authorised review officer affirmed the decision and on 12 January 2001 the applicant applied to the SSAT for review of the decision. In affirming the decision the SSAT accepted the level of care provided by the applicant, but found that child did not meet the definition.
EVIDENCE
The material before the Tribunal, which was not disputed by the respondent, confirms that the disabilities suffered by the child are permanent. He is an active child who can walk unaided. He has faecal incontinence day and night and requires personal care on two or more occasions at night. The applicant and his wife provide this care, and respite care is available up to three or four nights each month.
CONSIDERATION OF THE ISSUES
Section 198(2) of the Act sets out eligibility for carer payment:
(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, and given a score of at least 25, under the Adult Disability Assessment Tool; or
(ii)if not—a disabled adult (the care receiver) who has been assessed and rated, and given a score of at least 80, under the Adult Disability Assessment Tool; or
(b)a profoundly disabled child (the care receiver) aged under 16; or
(c)2 or more disabled children (the care receivers) aged under 16; or
(d)a disabled adult and a dependent child of the adult (the care receivers), where:
(i)the disabled adult has been assessed and rated, and given a score of at least 20, under the Adult Disability Assessment Tool; and
(ii)       the child is aged under 16; and
(iii)if the child is aged 6 or more—carer allowance is payable for the child.
The term profoundly disabled child is defined in s197(2):
(2)          A child is a profoundly disabled child if:
(a)the child has either:
(i)        a severe multiple disability; or
(ii)a severe medical condition; and
(b)the child, because of that disability or condition, needs continuous personal care for:
(i)6 months or more; or
(ii)if the child's condition is terminal and the child's life expectancy is less than 6 months—the remainder of the child's life; and
(c)the child's disability or condition includes 3 or more of the following circumstances:
(i)the child receives all food and fluids by nasogastric or percutaneous enterogastric tube;
(ii)the child has a tracheostomy;
(iii)the child must use a ventilator for at least 8 hours each day;
(iv)the child:
(A)       has faecal incontinence day and night; and
(B)if under 3 years of age, is expected to have faecal incontinence day and night at the age of 3;
(v)the child:
(A)cannot stand without support; and
(B)if under 2 years of age, is expected to be unable to stand without support at the age of 2;
(vi)a medical practitioner has certified that the child has a terminal condition for which palliative care has replaced active treatment;
(vii)the child:
(A)requires personal care on 2 or more occasions between 10 pm and 6 am each day; and
(B)if under 6 months of age, is expected to require care as described in sub-subparagraph (A) at the age of 6 months.
In a submission dated 17 June 2001 Mr Michael White, Team Leader, Anglicare Family Centre, Rosebud, stated that he has provided case management support to the applicant for the past two years. He said that the applicant believes that the guidelines for eligibility for carer payment are unfair and are not broad enough to cater for situations where families provide care for children whose physical disabilities may not be severe but whose challenging behaviour requires constant supervision.
Mr White stated that the applicant and his family have made significant sacrifices to care for the child, and the decision to refuse the grant of carer payment means that the applicant is expected to pursue full-time employment, which would reduce his capacity to provide ongoing care for the child. This may lead to the breakdown of the family. Mr White submitted that the role played by the applicant is no different from that adopted by other families who receive carer payment, and the grant to the applicant would be just and fair.
In a submission dated 23 July 2001 Mr White attached a statement dated 15 July 2001 in which the applicant described the daily care provided to the child by him and his wife. The applicant stated that although the child's disability might not be considered profound by the criteria in the legislation, the effects of caring are very profound upon the entire family. He advocated a change in the legislation or in the relevant application form.
In a submission dated 23 August 2001 the respondent stated that as the child's condition satisfies two circumstances of the seven listed in s197(2)(c) he does not satisfy s197(2) and therefore does not meet the definition of profoundly disabled child.
In applying the facts in this case to the legislation the Tribunal finds that the child has a severe multiple disability and, because of that disability, needs continuous personal care for six months or more. Therefore the child satisfies s197(2)(a) and s197(2)(b).
In relation to s197(2)(c) the Tribunal finds that the child has faecal incontinence day and night (s197(2)(c)(iv)(A)) and requires personal care on two or more occasions between 10pm and 6 am each day (s197(2)(c)(vii)(A)). However there is no evidence that the child's disabilities include any other matter specified in s197(2)(c). The Tribunal finds that the child's disability does not include three or more of the circumstances set out in s197(2)(c) and consequently the child does not come within the definition of profoundly disabled child.
For these reasons the Tribunal finds that the applicant does not satisfy the criteria in s198(2) for the grant of carer payment.
DECISION
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:
G.D. Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  Nil - decision on papers
Date of decision:  24 August 2001
Solicitor for applicant :                Nil
Solicitor for respondent:              Nil - Ms P. D'Cunha, Advocate for Centrelink