Fraser and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2007] AATA 2105

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2105

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3856

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CAROLYN FRASER

Applicant

And

SECRETARY,

DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member

Date24 December 2007  

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY – carer allowance – daughter classified as a disabled adult on reaching the age of 16 - adult disability assessment tool criteria and score not met – allowance denied – Tribunal affirms the decision as no discretion to do otherwise

Social Security Act 1991

Adult Disability Assessment Determination 1999

REASONS FOR DECISION

24 December 2007   Miss E.A. Shanahan, Member      

1.      Mrs Fraser is the mother and carer of Alice, now aged 16.  Alice has suffered from insulin dependent (Type 1) diabetes since November 2002 and requires five insulin injections per day.  Mrs Fraser works at the school Alice attends and is thus able to supervise and police Alice’s insulin injections.  From November 2002 to 12 November 2006 Alice qualified for a health care card.  When Alice turned 16 on 12 November 2006, Centrelink cancelled Alice’s health care card.  Centrelink is the service delivery agency for the Department Of Families, Community Services and Indigenous Affairs (as it then was).  Mrs Fraser lodged a claim for carer allowance with Centrelink on 25 January 2007 and the claim was rejected on the same day.  Mrs Fraser had provided two assessments by health care professionals in support of her claim; but neither of these met the legislative requirement of 12 points.  An authorised review officer affirmed the decision of the primary decision maker.  Subsequently, the Social Security Appeals Tribunal (SSAT) also affirmed the decision on 16 July 2007.  Mrs Fraser then lodged an application for a review of the decision with the Administrative Appeals Tribunal on 15 August 2007. 

2. It appeared to the Tribunal that the issues for determination could be adequately determined in the absence of the parties. The parties consented to a review of the decision in their absence. Therefore, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Tribunal conducted the review on the papers, relying on the evidence contained in the documents lodged pursuant to s 37 of the AAT Act (the T-documents) and the Respondent’s Statement of Facts and Contentions. Mrs Fraser did not provide further documentation but relied on the contents of the T-documents.

TRIBUNAL’S DELIBERATIONS

3.      Mrs Fraser applied for a carer allowance on the recommendation of Centrelink.  Centrelink also advised that Alice apply for a low income health care card. 

4.      Alice has had difficulty accepting her diagnosis of Type 1 diabetes, her need to diet and the treatment she requires.  Given her negativity with respect to treatment, Mrs Fraser has, of necessity, been more vigilant in her supervision of Alice’s treatment.  Alice has recently become more willing to discussing her condition and needs and this attitude will hopefully not only continue but increase. 

5.      Dr M Alsabti completed the first Health Professional Assessment (HPA) on 24 January 2007.  Dr Alsabti had only seen Alice on two occasions and assigned a score of 4 using the Adult Disability Assessment Tool (ADAT). The ADAT is defined in s38C of Social Security Act 1991 (the SS Act). Section 38C states that the Secretary may, by legislative instrument (the determination), devise a test for assessing the disability, emotional state, behaviour and special care needs of a person aged 16 or more; and 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 that provides for a range of scores that indicate the different levels of physical, intellectual or psychiatric disability of persons. The relevant legislative instrument is the Adult Disability Assessment Determination 1999.  Dr I Al-Hassani (Alice’s general practitioner for the past two or more years) completed another HPA on 20 March 2007 and assigned a score of 8 using the ADAT.  The ADAT requires an assessment of 12 in order for the claim to succeed. 

6.      In light of her evidence before the SSAT, Mrs Fraser obviously understood the legislative requirements and considered them to be unfair.  In her opinion, reaching the age of 16 in no way changed the level of care her daughter required.  The SSAT recommended that Mrs Fraser pursue the option of having the legislation amended. 

7. The SS Act does not invest any discretion in the Tribunal to set aside or vary the primary decision. Alice Fraser does not meet the requirements of the Adult Disability Assessment Tool.  The ADAT is concerned predominantly with age-related degenerative conditions.  For example, under the heading Neurological, twelve of the twenty conditions noted are degenerative conditions inapplicable to children, teenagers and young adults.

8.      Insulin dependent diabetes is classified under Other diseases/disorders and this is the only condition from which Alice is known to suffer.  The other disorders listed in this category include drug and alcohol dependence and AIDS. 

9.      The ADAT is so structured that very few disabled children could qualify on reaching the age of 16, unless they have a major psychiatric disorder, cerebral palsy, mental retardation, spina bifida (degree not specified), blindness or cystic fibrosis.  Inherited/genetic diseases such as Huntington’s chorea are not manifest before the late 30s or early 40s.  (With the exception of Huntington’s chorea it is apparent on the face of it.  With respect to Huntington’s it is basic medical knowledge and not my specialist knowledge – even historians would be aware as the Russian Czar’s family was blighted by Huntington’s as were some of Queen Victoria’s forebears).

10.     While Alice has had an understandable difficulty in accepting her diagnosis and has displayed mood swings, neither HPA (Dr Al‑Hassani or Dr Alsabti) met the required 12 point score.  The Tribunal has no alternative but to affirm the decision under review and recommends to Mrs Fraser that she continue to seek legislative review and amendment. 

I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision herein of Miss E.A. Shanahan

Signed: Ursula Noyé

Clerk

Date of Hearing:  2 November 2007
Date of Decision:  24 December 2007