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

[2007] AATA 1958

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1958

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/2580

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		GEORGETTE FISHLOCK

Applicant

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

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Dr Kerry Breen, Member

Date16 November 2007

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
Senior Member

  

SOCIAL SECURITY – claim for carer payment by mother of a four year old child – bilateral retinoblastoma diagnosed – both eyes surgically removed – legislation prohibits finding that child is profoundly disabled – legislation deficient and rigid – discretion not available – recommendation for amendment – decision affirmed

Social Security Act 1991 (Cth) s 23, s 197(2), s 197(2AA) and s 197(2A)

Social Security (Administration) Act 1999 (Cth) s 15(1), s 15(2), s 15(3), s 15(4A), s 15(4B) and s 15(5)

REASONS FOR DECISION

16 November 2007

  Mr John Handley, Senior Member

  Dr Kerry Breen, Member

1.      Georgette Fishlock, the applicant in these proceedings, is the mother of Tyler who was born on 27 June 2002.  An application made for carer payment was rejected by Centrelink.  That decision was affirmed by the Social Security Appeals Tribunal (SSAT).  Review of that decision is sought by these proceedings.

2. In order to qualify for carer payment, Mrs Fishlock must demonstrate pursuant to s 198 (2) of the Social Security Act 1991 (the Act) that she personally provides constant care for a profoundly disabled child as defined by s 197 (2), (2AA) and (2A) of the Act.

3.      Having heard Mrs Fishlock in evidence at the hearing on 2 November 2007, having read the documents lodged and having considered the circumstances of herself and Tyler, we have become alerted to what we regard as a significant deficiency in the legislation.  We will return to this aspect later.

4.      The circumstances giving rise to this application may be briefly summarised as follows.

5.      In November 2004 when Tyler was two years of age he was diagnosed with retinoblastoma.  Tumours were first detected in Tyler's left eye and he was initially treated with chemotherapy, cryotherapy and radiation.  The condition of his left eye became severe and in July 2005 it was removed.  In August 2005 multiple tumours were also detected in Tyler's right eye.  Similar treatment as previously was undertaken but was unsuccessful.  In February 2006 his right eye was removed.  Before he achieved his fourth birthday, Tyler was permanently blind.

6.      In November 2004, Mrs Fishlock was assisted by a social worker at the Royal Children's Hospital and given advice about Commonwealth benefits.  A claim for carer allowance / carer payment was completed by the social worker and given to Mrs Fishlock to sign which she did.  She told us that she was then in a distressed state and did not carefully read the form.  She was not aware until some years later that the claim made was for carer allowance only.  The relevant part of the form is found at page 43 of the T‑documents and it specifically records that a claim for carer payment was not then being made.  We would at this stage repeat that the only part of the form completed by Mrs Fishlock was the last page where she signed her name and recorded the date.  From the date of that claim, carer allowance has been and continues to be paid.

7.      In February 2007, Mrs Fishlock learnt that carer payment is a benefit to which she may have been entitled.  A claim for that benefit was made.  The claim was rejected.

the legislation

8.      Because we regard the legislation as deficient, we record, as follows, s 197 (2), (2AA) and (2A) of the Act:

profoundly disabled child has the meaning given by subsection (2), (2AA) or (2A). 

197(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 in writing 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. 

197(2AA)  A child is a profoundly disabled child if: 

(a)       the child has either: 

(i)a severe intellectual, psychiatric or behavioural disability; or 

(ii)a severe intellectual, psychiatric or behavioural medical condition; and 

(b)the child, because of the 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 is at least 6, and under 16, years of age; and 

(d)because of the child’s disability or condition, the child does one or more of the following: 

(i)repeatedly engages in dangerous behaviour that is, or that gives rise to, a significant risk (whether immediate or long-term) to the child’s health or safety and that, without carer intervention, would result in the child suffering sustained tissue or bodily damage, or death; 

(ii)repeatedly engages in aggressive or violent behaviour that is, or that gives rise to, a significant risk to the health or safety of others, or that results in significant property damage, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities; 

(iii)repeatedly engages in severe sexually deviant or sexually inappropriate behaviour, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities. 

197(2A)  A child is a profoundly disabled child if a medical practitioner has certified in writing that: 

(a)       the child: 

(i)has a terminal condition; and 

(ii)is in the advanced phase of that condition; and

(b)       either: 

(i)the child has a life expectancy measured in weeks or months; or 

(ii)it is possible that the child will live for more than 12 months but unlikely that he or she will live for a period substantially greater than 12 months; and 

(c)because of the condition referred to in paragraph (a), the child will need continuous personal care for the remainder of his or her life.

conclusion and reasons for decision

9.      Mrs Fishlock is resigned to being unsuccessful in this review.  It is our view that as a matter of law an unsuccessful outcome to this review is inevitable.  A combination of Tyler's circumstances, his age at November 2004 and presently and the manner in which the legislation is constructed, prohibits Mrs Fishlock from qualifying for carer payment.

10.     With respect to s 197 (2) (a) it is conceded by the respondent that Tyler does have a severe multiple disability.  The respondent also acknowledges that he does require personal care on two or more occasions between 10.00pm and 6.00am daily thereby satisfying s 197 (2) (c) (vii).  On the evidence heard, and on the documents read, he is not a child who needs continuous personal care for six months or more nor is he a child who has a condition that is terminal with a life expectancy of less than six months.  Sub-paragraph (b) of s 197 (2) therefore cannot be satisfied.  Sub‑paragraph (c) requires that three of the seven listed circumstances must be satisfied.  We are able to find that three of those circumstances can be satisfied namely, sub‑paragraph (iv) and (as discussed earlier) (vii).  We are satisfied from the evidence of Mrs Fishlock that at November 2004 she had been advised by Tyler's medical practitioners that it would be pointless to attempt to toilet train him, that nappies should continue to be used and in those circumstances he probably was faecal incontinent.  Sub‑paragraph (v) may also have been satisfied because it was learnt at the hearing that the effects of radiation treatment caused Tyler a significant degree of weakness and he was unable to walk and stand without support.  However each of sub‑paragraphs (a), (b) and (c) of s 197 (2) must be satisfied and for the reasons given above that cannot be achieved.  In the absence of sub‑paragraph (b) being satisfied, Tyler is not a profoundly disabled child within the meaning of s 197 (2).

11.     Section 197 (2AA) cannot be satisfied because although Tyler probably did have a severe behavioural medical condition within the meaning of sub‑paragraph (a), he did not then need continuous personal care for six months or more nor was his condition at November 2004 terminal with a life expectancy of less than six months.  There is no doubting that at November 2004 Tyler suffered from a very serious illness which if untreated could have caused a limited life expectancy.  We think it is unlikely that any medical practitioner would have then certified him as then suffering from a terminal condition with a limited life expectancy, before treatment was administered.

12.     The language of s 197 (2A) clearly demonstrates that it would be impossible to demonstrate qualification.

13.     If the ordinary literal meaning of the words making up the phrase profoundly disabled child were adopted, we would have no doubt that Mrs Fishlock would qualify for carer payment.  A four year old child, being rendered permanently blind as a consequence of necessary surgery is profoundly disabled.  But we are restrained from adopting a commonsense interpretation of those words.  We are obliged to apply the legislation.  As may be seen from the above, those words have a defined meaning, which denies qualification for carer payment.

14.     We regret that the legislation which prohibits Tyler being regarded as a profoundly disabled child consequently denies Mrs Fishlock the carer payment which in our view should otherwise have been paid.  It would appear that persons in authority within the office of the respondent have recognised that but for the manner in which the legislation is constructed, Tyler should have qualified as a profoundly disabled child, because Mrs Fishlock has been paid an ex-gratia payment (refer T‑documents, pp100 – 101).  The legislation is rigid and we fear that there may be many other children who are profoundly disabled but their parents or carers do not qualify for carer payment.

15. Remarkably, unlike many other provisions in the social security legislation (and other legislation where a beneficial approach to interpretation and application applies), there is no discretion available under s197 or s 198 to allow payment of carer payment to be made in circumstances where a child is profoundly disabled but does not satisfy the legislated definitions. Inevitably, there will be persons who are profoundly disabled whose circumstances were not envisaged and who will not be regarded as being profoundly disabled as defined. Tyler is one such person. It is our recommendation that immediate attention be given to amending the legislation. We would suggest that s 197 (2) be cast in terms far less rigid. Additionally, or in the alternative, we would suggest that an additional amending provision be added to give decision‑makers a discretion where the circumstances of a disabled child do not satisfy the relevant provisions of s 197 (2), (2AA), and (2A).

16.     We learnt at the hearing that carer payment was not claimed at November 2004 because a social worker then assisting Mrs Fishlock did not complete the relevant part of a claim form.  At the time the form was completed, we would readily acknowledge that Mrs Fishlock was overwhelmed by the diagnosis that she had recently received with respect to Tyler and probably did not read the form (it having been completed for her by the social worker).  It may also be that the social worker did not appreciate the distinction between carer payment and carer allowance.  Nonetheless, it remains unexplained why the social worker recorded that carer payment was not being claimed.  As a matter of law nothing will turn on this.  For reasons given earlier, it is unlikely that Tyler would have qualified as a profoundly disabled child at November 2004, however the focus of persons assisting Mrs Fishlock at that time was clearly towards entitlement for carer allowance only.  The social worker completed the form claiming carer allowance only on behalf of Mrs Fishlock and the medical report completed by a doctor at the Royal Children's Hospital is the form used only with respect to carer allowance.  The claim form records that further information concerning qualification for carer payment can be found by reference to a booklet or by ringing a Centrelink telephone number.  It is our view that further information concerning eligibility should be recorded on the form so the persons making application for benefit can properly determine and claim the benefit applicable to their circumstances.  It would also appear by reference to another version of the claim form completed in February 2007 that qualifying information is again unavailable to potential claimants (refer p24, T‑documents).

17. We are also satisfied that s 15 of the Social Security (Administration) Act 1999 (the Administration Act) will not give Mrs Fishlock any comfort. This section permits substitution of another benefit if an incorrect claim has been made.

18. Section 15 (1), (2), (3), (4A), (4B) and (5) are recorded as follows:

15Deemed claim—incorrect or inappropriate claims

(1)       For the purposes of the social security law, if: 

(a)a person makes an incorrect claim; and 

(b)the person subsequently makes a claim for a social security payment for which the person is qualified; and 

(c)the Secretary is satisfied that it is reasonable that this subsection be applied; 

the person is taken to have made a claim for that social security payment on the day on which he or she made the incorrect claim. 

(2)For the purposes of this section, a claim made by a person is an incorrect claim if: 

(a)the claim is for a social security payment, other than a supplementary payment; and 

(b)when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment, other than a supplementary payment. 

(3)For the purposes of this section, a claim made by a person is an incorrect claim if: 

(a)the claim is for a supplementary payment; and 

(b)when the claim was made, the person was not qualified for the payment claimed but was qualified for another supplementary payment. 

(4)       For the purposes of the social security law, if: 

(a)a person makes a claim for a pension, allowance, benefit or other payment under a law of the Commonwealth, other than this Act or the 1991 Act, or under a program administered by the Commonwealth, that is similar in character to a social security payment, other than a supplementary payment (the initial claim); and 

(b)when the claim was made, the person was qualified for a social security payment, other than a supplementary payment; and 

(c)the person subsequently makes a claim for the social security payment referred to in paragraph (b) (the later claim); and 

(d)the Secretary is satisfied that it is reasonable that this subsection be applied; 

the person is taken to have made the later claim on the day on which the initial claim was made. 

(4A)     For the purposes of the social security law, if: 

(a)a person makes a claim for an income support payment (the initial claim); and 

(b)on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment); and 

(c)the person subsequently makes a claim for the other income support payment (the later claim); and 

(d)the Secretary is satisfied that it is reasonable that this subsection be applied; 

the person is taken to have made the later claim on the day on which the initial claim was made. 

(4B)     For the purposes of the social security law, if: 

(a)a person makes a claim for a supplementary payment (the initial claim); and 

(b)on the day on which the initial claim is made, the person is qualified for another supplementary payment (the other supplementary payment); and 

(c)the person subsequently makes a claim for the other supplementary payment (the later claim); and 

(d)the Secretary is satisfied that it is reasonable that this subsection be applied; 

the person is taken to have made the later claim on the day on which the initial claim was made. 

(5)       In this section: 

supplementary payment means: 

(a)carer allowance; or 

(b)double orphan pension; or 

(c)education entry payment; or 

(d)employment entry payment; or 

(i)mobility allowance; or 

(j)pensioner education supplement. 

19.     Section 23 of the Act defines income support payment, social security benefit, social security payment and social security pension as those terms appear above as follows:

income support payment means a payment of: 

(a)a social security benefit; or 

(aa)a job search allowance; or 

(b)a social security pension; or 

(c)a youth training allowance; or 

(d)a service pension; or 

(e)income support supplement.

social security benefit means: 

(aa)widow allowance; or 

(aab)youth allowance; or 

(aac)austudy payment; or 

(a)newstart allowance; or 

(c)sickness allowance; or 

(d)special benefit; or 

(e)partner allowance; or 

(ea)a mature age allowance under Part 2.12B; or 

(f)benefit PP (partnered); or 

(g)parenting allowance (other than non-benefit allowance).

social security payment means: 

(a)a social security pension; or 

(b)a social security benefit; or 

(c)an allowance under this Act; or 

(e)any other kind of payment under Chapter 2 of this Act; or 

(f)a pension, benefit or allowance under the 1947 Act. 

social security pension means: 

(a)an age pension; or 

(b)a disability support pension; or 

(c)a wife pension; or 

(d)a carer payment; or 

(e)a pension PP (single); or 

(ea)a sole parent pension; or 

(f)a bereavement allowance; or 

(g)a widow B pension; or 

(ga)disability wage supplement; or 

(i)a mature age partner allowance; or 

(k)a special needs pension.

20. Subsections (2) and (3) of the Administration Act cannot apply because Mrs Fishlock was qualified for the payment claimed, namely carer allowance.  Accordingly, an incorrect claim as defined has not been made.  Consequently subsection (1) also, cannot be satisfied.

21.     We do not think subsection (4) can be satisfied.  When the claim was made (whether it be initial or subsequent claim), Tyler was not, as defined, a profoundly disabled child, and Mrs Fishlock could not qualify for carer payment, (that is, a social security payment, being a social security pension).

22.     Subsection (4A) does not apply.  An income support payment is defined at s 23 of the Act as meaning a payment of a social security benefit or a social security pension.  A social security benefit is defined at s 23 but does not include carer allowance or carer payment.  A social security pension is defined as including a carer payment.  As may be seen by the journey through these definitions, the claim made was for carer allowance which was not a claim for an income support payment.

23.     Subsection (4B) does not apply because although a claim for carers allowance was made (a supplementary payment), Mrs Fishlock was not then qualified for another supplementary payment.

24.     For all of the above reasons we are obliged in the circumstances to find as a matter of law that the decision under review must be affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member and
Dr Kerry Breen, Member

Signed:         Grace Carney, Personal Assistant

Date of Hearing  2 November 2007
Date of Decision  16 November 2007
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr T de Uray