Grey; Department of Family and Community Services - [2002] AATA 138

DECISION AND REASONS FOR DECISION [2002] AATA 138

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/834

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Secretary, Department of Family and Community Services
  Applicant
           And    Jillian Grey
  Respondent

DECISION

Tribunal N Bell, Member

Date5 March 2002
PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the Respondent was not qualified to receive carer payment in respect of her daughter, Jessie Grey.

..............................................
N Bell,
Member

CATCHWORDS
Social Security – carer payment – severely disabled child – whether child is 'profoundly disabled' – whether child 'cannot stand without support' – meaning of the words 'cannot stand without support'

Social Security Act 1991 – sections 197(2) and 198(2)

Harrison v Secretary, Department of Family and Community Services [2001] AATA 1001
Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691

REASONS FOR DECISION

N Bell, Member

This is an application by the Secretary, Department of Family and Community Services ("the Applicant") for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 8 May 2001 which set aside the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 5 February 2001. The original decision by Centrelink, which was reviewed and affirmed by an authorised review officer ("ARO") on 16 February 2001, was that Jillian Grey ("the Respondent") was not eligible for carer payment in respect of her daughter, Jessie.
At the hearing of the application the Respondent was represented by Ms Finlay of the Welfare Rights Centre and gave oral evidence by telephone. Mr Slattery, from the Advocacy and Administrative Law Team at Centrelink, represented the Applicant. The Tribunal had before it the following documents:

Exhibit          Description    Date
TD1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-Documents")
A1      Applicant's Statement of Facts and Contentions          8 January 2002
R1      Respondent's Statement of Facts and Contentions (with attachment detailing facts pertaining to Rett syndrome)    29 January 2002

Background

Jessie Grey was born on 13 August 1994. At the time of the Respondent's claim for carer payment in February 2001 Jessie was 7 years old. Jessie has Rett syndrome, a neurodevelopmental disorder characterised by loss of purposeful use of the hands, distinctive hand movements, slowed brain and head growth, gait abnormalities, seizures and mental retardation (attachment to Exhibit R1). Jessie lives at home with her mother, the Respondent, and the rest of her family.
On 1 February 2001 the Respondent lodged a claim for carer payment in respect of Jessie and her claim was rejected on the basis that Jessie did not meet the definition of "profoundly disabled child" in section 197(2) of the Social Security Act 1991 ("the Act"). On 16 February 2001 the decision was affirmed by an ARO. The decision was set aside by the SSAT on 8 May 2001 and sent back to Centrelink for reconsideration in accordance with the direction that Jessie satisfies the definition of profoundly disabled child and has done so since the date of claim.
Issue and legislation
The issue in this application is whether Jessie is a "profoundly disabled child" within the definition of that term in section 197(2) of the Act, and therefore whether the Respondent is eligible for carer payment.
Section 198(2) of the Act sets out the requirements for eligibility for carer payment:
"(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."

The term "profoundly disabled child" is defined in section 197(2) of the Act:
"(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."
It is common ground between the parties that Jessie is severely disabled and satisfies the requirements in section 197(2)(a) and (b) of the Act. It is also common ground that Jessie satisfies two of the conditions listed under section 197(2)(c) in that she has faecal incontinence (subsection 197(2)(c)(iv)) and requires care on two or more occasions at night (subsection 197(2)(c)(vii)).
The only issue in dispute is whether Jessie "cannot stand without support" (subsection197(2)(c)(v)).
Evidence
The Respondent gave evidence to the Tribunal by telephone. She described some of the symptoms of Jessie's condition, which were in accordance with the fact sheet pertaining to Rett syndrome contained in Exhibit R1, and include:

Intellectual impairment, including an inability to understand simple directives such as "stop", "come here" or "stand up"; and
Difficulty with depth perception which means that she will not ascend or descend stairs without assistance and will not walk on textured or uneven floors such as lino or pavers - nor will she attempt escalators or moving walkways. When approaching such surfaces she will simply stop and sit down.

The Respondent said that in order to get Jessie to attempt taking stairs or walking on uneven surfaces, she or whoever is caring for Jessie at the time must speak to her as one would speak to a toddler, offering reassurance that she will be safe and that it will be a good thing to attempt. Failure to convey that reassurance will result in Jessie becoming frightened, frustrated and distressed and perhaps repeatedly banging her head against a wall.
In answer to a question from the Tribunal, the Respondent said that Jessie will not rise from a seated position alone but has to be guided or sometimes lifted to that position – she will not respond to the request to stand. She said that, once standing, Jessie will not remain standing if one walks away from her – she will just sit down again.
The Respondent said that Jessie generally does not walk around even in familiar areas, such as her own room, by herself. Rather, she will signal that she wants assistance or for something to be done for her by banging her head on the wall. When Jessie accompanies her carer to a shopping centre or other places where there are stairs or escalators, she rides in a stroller. The Respondent said that she is putting off obtaining a wheelchair for Jessie as she does not want her to attract an attitude from others that she is different from other children.
Included in the "T documents" are reports from Dr V G Armano dated 1 February 2001 and 9 February 2001. In both of those reports, which are in the standard form required by the Applicant, Dr Armano indicates that Jessie can stand without support.
Submissions
The Applicant submitted that the words "cannot stand without support" must be interpreted literally and according to their ordinary meaning. Mr Slattery, for the Applicant, submitted that there is no medical evidence to support the contention that Jessie cannot stand without support. The Applicant also drew the Tribunal's attention to the very specific and narrow criteria listed in section 197(2) of the Act and suggested that this indicates that the words of subsection 197(2)(c)(v) should be interpreted in a similarly narrow way. Mr Slattery also referred the Tribunal to the use of the word "profound" in the relevant provisions and suggested that this indicates something substantially more than "severe" and that the provisions should be interpreted accordingly.
While acknowledging the severity of Jessie's condition, Mr Slattery submitted that the relevant provisions seek to include only those children who have the most profound of disabilities and he noted the seriousness and significance of the seven criteria listed in section 197(2)(c). He submitted that it is in the nature of the provisions that they are arbitrary and will exclude some people who would otherwise be regarded as profoundly disabled and the use, in the provisions, of the word "cannot" is intended to be absolute, unqualified as it is by such words as "generally" or "often".
The Respondent's central submission is set out in her Statement of Facts and Contentions, prepared on her behalf by the Welfare Rights Centre, and contains the following passage:
"We contend that there is no basis for restricting the notion of "support" to solely physical support. Both the dictionary definition of "support" as outlined in the SSAT's decision – "enable to last out, keep from falling, give strength to, encourage" – and the ordinary meaning of the word sustain the conclusion that "support" can include emotional support.
This case can be distinguished from the recent Administrative Appeals Tribunal (AAT) decision in Harrison v Secretary, Department of Family and Community Services (N2001/23 (sic) decided 10/12/01). Most of the evidence in that case was relevant to the issue of whether or not the child could stand still without moving constantly. In Harrison the AAT was primarily concerned with the issues of physical support and the meaning of "to stand"…
We note that the first three criteria in s197(2)(c) describe medical procedures. The remaining four criteria concern care needs and, excepting s197(2)(c)(vii), are not qualified by frequency of occurrence. The care requirements outlined in s197(2)(c)(iv)-(vii) require a child to be constantly monitored however the number of actual incidents when assistance to the child will be required cannot be known. It is for these reasons that we contend that there is no requirement to add the qualifier that the child always "cannot stand without support"."
The Respondent also encouraged the Tribunal to adopt the reasoning of the SSAT that "support" includes emotional support. The relevant passage of the SSAT's decision and reasons is at paragraph 23:
"The Oxford Dictionary defines "support" as, "Carry (part of) weight of, hold up, keep from falling or sinking" and "enable to last out, keep from failing, give strength to, encourage". The tribunal considers that in the first definition of support it may be argued that Jessie can stand and not need help to "keep her from falling or sinking". However in the veiw of the tribunal, there is ample evidence to support the view that in the second definition of support Jessie does require the presence of another person to see that she "is able to last out, keep her from falling by giving up, to give her strength and encouragement". The evidence is quite stark that if Jessie has any problems with depth perception, an uneven floor, stairs or a ramp then she will simply sit down again. She will not move again without emotional support of another person. This fact is recognised by educational authorities who have provided one on one aides at preschool for Jessie on a full time basis. The tribunal finds, for the reasons outlined, that Jessie meets this third requirement of section 197(2)(c) of the Act."

Consideration

The Tribunal finds that Jessie Grey has severe multiple disabilities and, because of those disabilities, needs continuous personal care for six months or more. She therefore satisfies the requirements in sections 197(2)(a) and 197(2)(b) of the Act.
In relation to section 197(2)(c), the Tribunal finds that Jessie Grey has faecal incontinence day and night (section197(2)(c)(iv)(A)) and requires personal care on two or more occasions between 10 pm and 6 am each day (section 197(2)(c)(vii)(A)). She therefore meets two of the required three factors in section 197(2)(c). The third factor identified and relied on by the Respondent, but disputed by the Applicant, is that Jessie "cannot stand without support" "(section197(2)(c)(v)).
The Tribunal accepts the evidence of the Respondent as to the range of assistance provided to Jessie by her carers.
The definition of "profoundly disabled child" as it now appears in section 197(2), was first included in the legislation, in section 18A of the Act, by the Social Security and Veterans' Affairs Legislation Amendment (Budget and Other Measures) Act 1998 (No. 93 of 1998). The Explanatory Memorandum accompanying the Bill and the Second reading speech for the Bill generally shed no light on the Government's intention except to say that the purpose of the amendment was to extend the payment of carer pension to the carers of profoundly disabled children. The only exception to this is that the Explanatory Memorandum states, in relation to "personal care":
"To satisfy the "personal care" requirement the child must require intervention by another person to maintain comfort, sustain life, or attend to a bodily function that the child cannot manage by him or herself."
The definition of "profoundly disabled child" was then, by the Assistance for Carers Legislation Amendment Act 1999 (No. 13 of 1999), inserted as section 197(2) of the Act. The Explanatory Memorandum accompanying the Bill for that Act and the Second Reading speech for that Bill make no reference to the intention of the Government in relation to the definition of "profoundly disabled child".
As this Tribunal concluded in Harrison v Secretary, Department of Family and Community Services [2001] AATA 1001, the context in which words appear in legislation is relevant to their interpretation. Paragraph 21 of that decision reads:
"…The range of circumstances described in section 197(2)(c) is restrictive and specific, referring to particular medical procedures and specific periods of time. The language used in the provision is absolute, for example, "all food and fluids" (s197(2)(c)(i)) and "must use a ventilator" (s197(2)(c)(iii)). The words "cannot stand without support" are similarly unqualified by, for example, such words as "often", "sometimes" or "generally"."
Similarly, the factors or criteria listed in section 197(2)(c), leaving aside for the present section197(2)(c)(v), refer either to matters in the nature of medical procedures (section197(2)(c)(i)-(iii)) or matters in the nature of personal or palliative care (section197(2)(c)(iv) and (vi)-(vii)). These all involve physical assistance or ministering to the child. As one of seven criteria listed in section 197(2)(c), six of which refer to physical procedures or physical care, the criterion of "cannot stand without support" can only, taking into account the context in which it appears, be interpreted to mean "cannot stand without (physical) support".
This is so notwithstanding that dictionary definitions of the word "support" include, as submitted by the Respondent, "encourage". In Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696 (cited in Pearce and Geddes, Statutory Interpretation in Australia, 5th edition, Butterworths, (2001) at page 102) Stamp J said:
"Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language."
Similarly, a criterion in a list of criteria such as that in section 197(2)(c), requires reference to the other criteria in the list in order to determine which of more than one available meaning should be adopted.
The Tribunal is of the view that the ordinary meaning of the words "cannot stand without support", the restrictive context in which they appear, the absence of any qualification of the words, and the "physical" nature of the other matters listed in subsection 197(2)(c) support the interpretation argued by the Applicant. Further, support for the view that Jessie does not meet the criterion in section 197(2)(c)(v) is found in the report of Dr V G Armano. On this basis the Tribunal concludes that Jessie does not meet that criterion.
As there is no evidence that Jessie's disabilities satisfy any of the other criteria specified in section 197(2)(c) other than faecal incontinence (section 197(2)(c)(iv)) and requiring care on two or more occasions at night (section 197(2)(c)(vii)), the Tribunal must conclude that Jessie's disability does not include three or more of the circumstances set out in section 197(2)(c). Consequently, she does not fall within the definition of "profoundly disabled child" in section 197(2) of the Act. It follows that the Respondent was not, at the relevant time, qualified to receive carer payment in respect of Jessie.
It is not surprising that a parent devoted to the care and development of a child with the range and extent of the disabilities suffered by Jessie expects to be eligible for carer payment when that payment has been specifically extended to those caring for children under 16 years. For such a parent to learn that he or she is not so entitled because the child she cares for is not a "profoundly disabled child" within the meaning of the Act is, at best, frustrating. The situation is not helped by the ambiguity, on one view, of section 197(2)(c)(v).
Determination
The Tribunal sets aside the decision under review and in substitution therefor determines that the Respondent was not qualified to receive carer payment in respect of her daughter, Jessie Grey.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of N Bell, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  1 February 2002
Date of Decision  5 March 2002
Solicitor for the Applicant         Ms Finlay
Advocate for the Respondent Mr Slattery