Grenville and Secretary, Department of Social Services (Social security)
[2024] ARTA 715
•18 December 2024
Grenville and Secretary, Department of Social Services (Social security) [2024] ARTA 715 (18 December 2024)
Applicant: Mr Grenville
Respondent: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2024/M190523
Tribunal: Member K Hamilton
Place:Brisbane
Date:18 December 2024
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that Centrelink obtain a fresh professional questionnaire completed by [Mrs A]’s treating doctor and reassess Mr Genville’s claims for carer payment and carer allowance.
CATCHWORDS
SOCIAL SECURITY – Carer Allowance and Carer Payment – adult disability assessment tool score – professional questionnaire completed by treating medical practitioner based only on care receiver’s responses, and do not accurately reflect usual day-to-day functioning – new questionnaire should be obtained – decision under review set aside and remitted
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.
Statement of Reasons
BACKGROUND
This matter concerns decisions made by Services Australia – Centrelink (Centrelink) to reject Mr Grenville’s claims for carer allowance (CA) and carer payment (CP) lodged on 23 August 2023.
On 23 August 2023, Mr Grenville lodged a claim for carer allowance and carer payment in respect of care provided to his mother, [Mrs A]. Centrelink rejected this claim on 7 September 2023.
Mr Grenville sought internal review of the decisions to reject his claims and on 28 November 2023 an authorised review officer affirmed the decisions. Mr Grenville then applied to the Administrative Appeals Tribunal (the AAT) for independent review.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The matter was heard on 26 November 2024. Mr Grenville participated in the hearing by telephone and gave evidence under affirmation. He was assisted by [Ms B], one of [Mrs A]’s support workers, who also gave evidence under affirmation.
The Tribunal had regard to relevant documents produced by Centrelink, numbered as pages 1–63. Following the hearing, Mr Grenville was provided with an opportunity to provide further relevant documents. No further documents were received within the time permitted by the Tribunal, and the Tribunal has accordingly proceeded to make a decision based on the evidence presently available to it.
ISSUES
The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act) and the Adult Disability Assessment Determination 2018 (the ADAT Determination).
The issue which arises in this case is whether Mr Grenville was qualified for CA and CP at the time of his claim on 23 August 2023 (or within 13 weeks) and, in particular, whether [Mrs A] Green had a qualifying ADAT score.
CONSIDERATION
Part 2 of the ADAT Determination provides the Adult Disability Assessment Tool (the ADAT), which is a tool used to assess the level of care required by a care receiver. The ADAT consists of a questionnaire that is to be completed by the person providing the care (the claimant questionnaire) and a questionnaire that must be completed by the care receiver’s treating medical practitioner (the professional questionnaire).
The ADAT Determination also sets out the method for scoring the responses provided on each questionnaire. The scores from each questionnaire are added together to give a total ADAT score.
Section 198 of the Act sets out the qualification criteria for CP. It requires that a person provide constant care to a disabled adult who has been assessed and rated under the ADAT as having a score of at least 25, being calculated on the basis of a professional questionnaire of at least 10. The care must be provided in the private home of the disabled adult.
Section 954 of the Act sets out the qualification criteria for CA where care is provided for a disabled adult in a private home that is shared by the care receiver and the person claiming CA (the care provider). It relevantly requires that:
· the care receiver is a family member of the care provider;
· the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12;
· because of their disability, the care receiver receives care and attention on a daily basis from the care provider, or from the care provider together with another person.
A disabled adult is defined for the purposes of CA and CP as a person over 16 with a physical, intellectual or psychiatric disability who is likely to suffer that disability for a permanent or extended period: sections 197 and 952 of the Act.
Mr Grenville’s claim for CA and CP was rejected by Centrelink on the basis that [Mrs A] did not reach the qualifying ADAT score required for either payment, and the professional questionnaire score was 4.
[Ms B] told the Tribunal that Mr Grenville has been caring for his mother since his father’s death 4 years ago. [Mrs A] lives with schizophrenia and has 4 professional support workers funded under the NDIS, who work throughout the day in 4-hour blocks.
[Ms B] said that [Mrs A] is very dependent on people being in the home with her in order to function. Mr Grenville understand his mother’s diagnosis very well and is able to manage her changes in moods and personalities, which are frequent and unpredictable. The support workers rely on Mr Grenville to settle his mother and get her to cooperate with the support workers.
If [Mrs A] thinks that Mr Grenville is going out, she becomes incredibly anxious and difficult to manage. The idea of Mr Grenville being able to go to work or study is not feasible as [Mrs A] becomes very destabilised if he is not around. Mr Grenville’s presence settles her so she is then capable of doing things.
[Ms B] told the Tribunal that she accompanied [Mrs A] to her long-term treating GP, [Dr C], to have the medical report for CA and CP completed. [Ms B] said that the doctor’s responses in that report do not accurately reflect [Mrs A]’s usual day-to-day functioning. She said that [Mrs A] in the moment when she was speaking to the doctor feels that she is capable, but she lacks insight into her limitations. [Ms B] was not able to correct [Mrs A]’s responses to [Dr C] as [Mrs A] gets extremely upset if she is contradicted.
While [Dr C] is aware of [Mrs A]’s limitations, he told [Ms B] that he felt that he was only allowed to complete the medical report based solely on [Mrs A]’s responses.
Mr Grenville said in his application to the Tribunal that his mother did not provide correct responses to a number of questions. The Tribunal compared the responses provided by [Dr C] with the responses provided by Mr Grenville in his claim form for similar questions. For the most part, [Dr C]’s responses were very consistent with Mr Grenville’s own responses as to [Mrs A]’s functioning and care needs. There were, however, several discrepancies.
In particular, [Dr C] notes that [Mrs A] was continent in bladder and bowels and did not require assistance for toileting. However Mr Grenville indicated in his claim form that [Mrs A] sometimes had loss of bladder and bowel function, sometimes needed help toileting and sometimes needed help and attention during the night.
Mr Grenville and [Ms B] explained that [Mrs A] did not physically need help with toileting. However, on occasions her anxiety can cause her to wet the bed or lose control of her bowels. She will also forget to go to the toilet and requires reminders and encouragement to use the toilet regularly.
[Dr C] indicated that [Mrs A] was not cognitively impaired. However, he identified that [Mrs A] had an intellectual disability, which Mr Grenville believed was a learning disability. [Ms B] said that [Mrs A] has significant cognitive difficulties due to her mental health conditions, including difficulty in comprehending things and memory difficulties.
Mr Grenville’s claim form also indicated that [Mrs A] sometimes had difficulty seeing as a result of her glaucoma. This condition was not noted on [Dr C]’s report.
[Ms B] and Mr Grenville also explained to the Tribunal that while [Mrs A] can physically use stairs and can physically dress and groom herself, she does need assistance and encouragement to do these things correctly. For example, sometimes [Mrs A] will become frightened of using stairs and requires verbal encouragement and assistance to walk up and down stairs as a result. [Mrs A] will dress herself in clothes that she wants to wear regardless of the weather – for example, [Mrs A] on a hot summer’s day might dress herself in trackpants and 3 jumpers. She will then complain that she is extremely hot but will refuse to remove any of her jumpers.
I accept the evidence of Mr Grenville and [Ms B] and am satisfied that the responses provided by [Dr C] in the professional questionnaire provided to Centrelink do not accurately capture [Mrs A]’s true level of functioning and her care needs, particularly her need for frequent supervision and encouragement to perform basic self care.
The ADAT Determination dictates that only a treating health professional can complete the professional questionnaire. It is not open to me to substitute responses in that questionnaire.
Centrelink will be directed to obtain a new professional questionnaire from one of [Mrs A]’s treating health professionals and reassess [Mrs A]’s ADAT score on the basis of that new questionnaire. When completing a new professional questionnaire, it is important for [Mrs A]’s treating health practitioner to select responses that accurately reflect their professional opinion of [Mrs A]’s true level of functioning and her care needs.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that Centrelink obtain a fresh professional questionnaire completed by [Mrs A]’s treating doctor and reassess Mr Grenville’s claims for carer payment and carer allowance.
| Date(s) of hearing: | Tuesday, 26 November 2024 |
| Representative for the Applicant: | [Ms B] |
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