Foley and Secretary, Department of Family and Community Services

[2003] AATA 488

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 488

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1913 

GENERAL ADMINISTRATIVE DIVISION		)
Re		Aileen FOLEY

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date28 March 2003

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[Sgd] Ms N Isenberg,
  Member

CATCHWORDS

SOCIAL SECURITY - Applicants claim for a carer allowance – whether care receiver was assessed and rated correctly under the Adult Disability Assessment Tool

LEGISLATION

Social Security Act 1991 s 954(1)

Assistance for Carers Legislation Amendment Act No 13 of 1999

REASONS FOR DECISION

28 March 2003 Ms N Isenberg, Member

DECISION UNDER REVIEW

1.    The decision under review before the Administrative Appeals Tribunals (“the Tribunal") was the decision of the Respondent, the Secretary, Department of Family and Community Services ("the Department") dated I June 2001 (T7) as affirmed by the Authorised Review Officer on 25 June 2001 (T9) and the Social Security Appeals Tribunal (“the SSAT") on 14 November 2001 (T2), to refuse the Applicant’s claim for a carer allowance.

BACKGROUND

2.    The Applicant’s son, Graham Shorten suffers from nerve damage to his right arm and he lives with his mother who cares for him.  On 1 June 2001 she applied for a carer allowance.

ISSUE BEFORE THE TRIBUNAL

3.    Whether the decision to reject the Applicant’s claim for carer allowance in respect of care she provides to her son, Mr Graham Shorten, was correct.  More specifically, whether the care receiver, Mr Graham Shorten, has been assessed and rated correctly under the Adult Disability Assessment Tool (ADAT).

APPEARANCES

4.    A hearing was held before the Tribunal at Orange on 17 February 2003 at which the Applicant appeared without representation.  She was accompanied by Mr Shorten. The Respondent was represented by Andrea Garcia, an advocate from the Advocacy and Administrative Law Team at Centrelink.

LEGISLATION

5.    The relevant legislation in this matter is the Social Security Act 1991, in particular section 954(1). The Assistance for Carers Legislation Amendment Act No 13 of 1999 introduced a new social security benefit from 1 July 1999.  This payment was named carer allowance and it superseded child disability allowance (previously in the family and community services portfolio) payable to carers of children with disabilities, and domiciliary nursing care benefit (previously in the health and aged care portfolio) payable to cares of adults who would be eligible for entry into a nursing home.

An individual may be paid carer allowance in respect of care they provide to an adult, providing the criteria, in accordance with section 954 (1) of the Social Security Act 1991 (“the Act”), as follows, are met.

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, and been given a score of not less than 30 under the Adult Disability Assessment Tool; 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.

6. The Adult Disability Assessment Determination 1999 (T18, p.53-55 and T19, pp 56-57) provides the rating method for determining a person’s qualification for carer allowance under section 954(1)(c) by way of the Adult Disability Assessment Tool.

38C.(1) The Secretary may, by determination in writing:

(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.

38C.(4) The determination is a disallowable instrument for the purposes of section 46 A of the Acts Interpretation Act 1901.

7. Part 2 of the determination provides for two questionnaires; a claimant questionnaire and a professional questionnaire.  Section 2.1 provides, among other things, that the claimant questionnaire be filled in by the carer allowance claimant and the professional questionnaire be completed by a treating health professional.  Section 2.2 provides that the test for assessing a person’s disability etc. is the assessment of the answers given in relation to the person in the claimant questionnaire and the professional questionnaire.

8. Step 5 (d) of the Rating Method in Schedule 2 of the Determination (T19, p.57) commands that the professional questionnaire score must be at least 12, under paragraph 954(1)(c) of the Act, in order for a person to be qualified for carer allowance.

EVIDENCE: Documents

9. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence. In addition, the following documents were tendered:

Exhibit	Description	Date
A1	Applicants Health Professional Assessment	26/11/2002
A2	Carer Payment and or Carer Allowance Application	26/11/2002
A3	Medical Report by Dr Gordon	28/08/2002
A4	Medical Report by Dr Biggs	28/05/2002
A5	Treating Doctor’s Report	09/11/2002
A6	Summary of Mr Shorten’s Medical History
R1	Statement of Issues
R2	Respondent’s Statement of Facts and Contentions	09/01/2003
Testing methods for the Adult Disability Assessment Tool

EVIDENCE: the Applicant and Mr Shorten

10. The Applicant and Mr Shorten gave sworn evidence and were cross-examined on behalf of the Respondent.  Questions were also put to the Applicant and Mr Shorten by the Tribunal. Mrs Foley said at the outset that she ‘took offence’ that the Social Security Appeals Tribunal had said that she was dissatisfied with the professional questionnaire which Dr Howe had completed in association with her claim for carer allowance.  She said she had been told in the conferencing procedure leading up to the hearing that she needed more evidence and, to this end, had arranged for Dr Howe to complete a fresh professional questionnaire dated 8 November 2002 in support of a fresh application for carer allowance dated 26 November 2002 (Exhibit A1).  She agreed that that assessment by the doctor related to her son’s condition at that time, some 18 months after the claim under consideration.  Both she and Mr Shorten said that his condition had deteriorated since the date of the original claim and that deterioration was reflected in the doctor’s new professional questionnaire, and the new carer questionnaire Mrs Foley had completed in support of her fresh claim.

11. The Tribunal asked Mrs Foley to turn to the carer allowance claim form (T5) so as to work through her responses to the questions asked there to indicate the level of care provided to her son, as at the date of the claim.  With Mr Shorten's assistance she responded that each of the answers in Part C, (T5/p24-27) was accurate as at the date of claim with the following exceptions.

·     Where no answer had been provided that was because there was nothing to report in relation to the question asked.

·     In section A, question 10: ‘Does the person you care for eat his food?’, should have been answered ‘with some help’, rather than ‘without help’..  She said her son is able to eat soft food or soup but she must cut up meat and whole vegetables for him.

·     In section A, question 15: ’Does the person you care for take care of his own treatment?’, she said that when her son had an operation on his arm in 2001 it had been bandaged and stitched.  Changing of the bandages and dealing with the wound was taken care of by medical staff, but at night she would have to hook his bandages up to a stand so that his arm was elevated.  She might have to get up during the night to help him move if he was uncomfortable.  This went on for up to 8 weeks.

12. Mrs Foley was also asked to consider the assessment of her son by Dr Howe in the Health Professional Assessment dated 1 June 2001.  In relation to Part B, she said, that at that date, in relation to each answer, Dr Howe’s assessment was correct.

13. There was also some discussion about Mr Shorten having worked.  T20 contains notations that Mr Shorten worked from February 1999 to February 2000 for Norm Penhall, who, Mr Shorten said, was an undertaker.  The records also show him to have again worked for Mr Penhall from February 2002 to April 2002.  There was some suggestion by Mr Shorten that the records may be incomplete. 

14. The advocate for the Respondent told the Tribunal that it was unlikely that someone who otherwise met the criteria, by satisfying the Adult Disability Assessment Tool, would be able to work because of their condition.

CONSIDERATION AND FINDINGS

15. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation. At the outset of the hearing it was made clear to Mrs Foley and Mr Shorten that eligibility for carer allowance turned on the application of the ‘points system’ determined by the legislation.  ‘Points’ are allocated by the decision-maker in accordance with the rating method outlined in Schedule 2 of Exhibit R3.

16. The Tribunal then turned to Mrs Foley’s responses to the questions asked of her in her carer application.  At the hearing she adopted all responses in the application form, with some specific exceptions.  She said that where no answer had been provided that was because there was nothing to report in relation to the question asked.  In the questionnaire she had provided no responses to questions 23-1 and 23-3.  Her evidence at the hearing was that in each of these areas of care, namely Mr Shorten’s ability to move around the house, and to move from a bed or chair, he experienced no difficulties and the Tribunal accepts this evidence.

17. In relation to question 23-10: ‘Does the person you care for eat his food?’, the Tribunal accepts that she cuts up meat and whole vegetables for her son and the appropriate response was ‘with some help’.

18. As regards question 23-15: ’Does the person you care for take care of his own treatment?’ the Tribunal accepts that at night she would have to hook Mr Shorten’s bandages up to a stand so that his arm was elevated and that she might have to get up during the night to help him move.  In those circumstances, the Tribunal accepts that the appropriate response was ‘with some help’, because this lasted only eight weeks.

19. Having accepted the Applicant’s evidence and that of Mr Shorten, that the responses in the questionnaire were accurate with the above modifications the Tribunal then turned to apply the ratings referred to above.  T3 sets out the Respondent’s ratings but it was not until this was read with Schedule 2 in Exhibit R3 that the conclusions of each previous decision-maker was apparent.

20. Applying Schedule 2 in Exhibit R3 to the Applicant’s responses the Tribunal finds these produce results as follows:

Part A: 12
Part B: 0
Part C: 0
Total 12

21. Mrs Foley and Mr Shorten agreed with Dr Howe’s assessment, and when the ratings are applied, the Tribunal finds these result as follows:

Part A: 5
Part B: 0
Part C: 2
Total 7

22. When the ratings from the carer questionnaire and the doctor’s assessment are added together in accordance with Step 4 of Schedule 2 these produce a final score of 19.

23. Section 954(1)(c) provides that the care receiver’s (combined) score must not be less than 30. Step 5 of Schedule 2 also provides that in relation to the care of an adult, the professional questionnaire must total at least 12. In this case, neither can be satisfied.

24. The Applicant therefore cannot meet the criteria for the carer allowance.

DECISION

25.The Administrative Appeals Tribunal therefore affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         L Bonouvrie
  Associate

Date of Decision  28 March 2003
Representative for the Applicant               self
Representative for the Respondent          Andrea Garcia