Grace and Department of Family and Community Services

[2002] AATA 155

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 155

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2001/324

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      RICHARD GRACE
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Senior Member WJF Purcell        

Date27 February 2002

PlaceAdelaide

Decision      For the reasons give orally at the Hearing of this matter, the Tribunal affirms the decision under review.      
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Carer Payment – whether applicant qualifies for Carer Payment in respect of his foster child – severe medical condition –  autism and epilepsy – profoundly disabled child 
Social Security Act 1991 sections 197, 198
Disability Discrimination Act 1992

ORAL REASONS FOR DECISION

27 February 2002      Senior Member WJF Purcell                 

1. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 20 July 2001, which affirmed the decision of an Authorised Review Officer of 19 March 2001, to reject the applicant's claim for Carer Payment in respect of his foster child, Hamish. 

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with an exhibit tendered by the respondent (the Department). The applicant appeared on his own behalf and Mr Kilderry represented the Department.

3. On 30 August 2000, the applicant lodged a claim for Carer Payment in respect of Hamish, who was born on 22 November 1993, and suffers from a severe medical condition, autism and epilepsy.  He suffers from faecal incontinence, requires constant care and attention, has extreme communication difficulties and violent behaviour. 

4. The Department concedes that Hamish satisfies two of the circumstances required to satisfy the definition of "profoundly disabled child" in section 197(2) of the Social Security Act 1991 (the Act) which provides:

   "(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."

5. Section 198(2) of the Act provides:

   "(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.'

6. Hamish satisfies section 197(2)(c)(iv) of the Act inasmuch as he has faecal incontinence day and night. He also satisfies section 197(2)(c)(vii) of the Act inasmuch as he requires personal care on two or more occasions between 10 pm and 6 am each day, but his disabilities and conditions do not include three or more of the circumstances listed in section 197(2)(c) of the Act and he cannot be considered therefore as a profoundly disabled child.

7. The applicant maintains that on any view of his circumstances, Hamish is a profoundly disabled child.  He has no power of speech, he screams in frustration, is faecally incontinent and subject to self harm; but does not qualify under the Act and is discriminated against by the legislation and the Department.  The legislation is contrary to the Commonwealth Disability Discrimination Act 1992, which outlaws discrimination. The discrimination arises because the parents or carers of intellectually disabled children can never qualify under the legislation. These children appear normal, can walk unaided, and do not have the physical disabilities that satisfy section 197(2) of the Act.

8. The applicant contends that the terms of the legislation act as a filter to reduce the number of children who qualify.  It is systemic discrimination against the intellectually disabled who cannot look after themselves, and whose parents are so burnt out and ashamed, that they cannot summon sufficient numbers to be a force to be reckoned with.

9. I consider that on the whole of the evidence, Hamish's condition does not satisfy at least three of the circumstances in section 197(2) of the Act. I accept the applicant's submission that Hamish's autism and behavioural problems are of such severity that they could be more demanding upon a carer and time consuming in effect, than the circumstances resulting from medical conditions set out in section 197(2) of the Act. Nevertheless, Federal Parliament, by the introduction of section 197 of the Act in 1999, has set out the circumstances which must be satisfied before a child can be regarded as a profoundly disabled child; and I must apply that legislation. Hamish's condition does not satisfy the legislation, and for the purposes of the Act, he cannot be regarded as a "profoundly disabled child".

10. For these reasons, the Tribunal affirms the decision under review.

    I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

    Signed:         .....................................................................................
      Associate

    Date/s of Hearing  27 February 2002
    Date of Decision  27 February 2002
    Counsel for the Applicant        In person
    Solicitor for the Applicant         -
    Counsel for the Respondent    Mr R Kilderry
    Solicitor for the Respondent    Centrelink