Hanisch and Secretary, Department of Social Services (Social services second review)

[2021] AATA 3921

Hanisch and Secretary, Department of Social Services (Social services second review) [2021] AATA 3921 (27 October 2021)

Division:GENERAL DIVISION

File Number:          2020/1653

Re:Maria Hanisch  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson

Date:27 October 2021

Place:Brisbane

The decision under review is affirmed.

...............................[SGD]...............................

Senior Member P J Clauson

CATCHWORDS

SOCIAL SECURITY – carer allowance – qualification – residence – rejection – Adult Disability Assessment Tool Score – assessment questionnaire – differing answers provided previously – only contemporary questionnaire under consideration – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Adult Disability Assessment Determination 1999 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Social Security (International Agreements) Act 1999 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

REASONS FOR DECISION

Senior Member P J Clauson

27 October 2021

BACKGROUND

1. Mrs Maria Hanisch (“the applicant”) made a claim for carer allowance for her husband, Mr Graeme Hanisch, on 16 January 2019.[1]

   [1] Exhibit 1, T Documents, T7, 72 to 76.

2. The applicant’s claim was rejected by the Department of Human Services (Centrelink) on 5 March 2019.[2]

   [2] Exhibit 1, T Documents, T8, 77-78.

3. The applicant sought a review of this decision by way of letter dated 16 March 2019[3] and a review was conducted by an Authorised Review Officer (“ARO”) and affirmed on 30 April 2019.[4]

   [3] Exhibit 1, T Documents, T9, 79.

   [4] Exhibit 1, T Documents, T10, 80-85.

4. The applicant sought review of that decision by the Tribunal (“AAT1”) by way of an application and supporting documents dated 15 November 2019 and noted as received on 19 November 2019.[5] This Tribunal notes that the “Request for Statement” document addressed to the ARO Coordinator notes the date of lodgement of the Application for Review as 20 November 2019[6] and the decision of the AAT1 notes that the application filing date was 30 November 2019.[7]

   [5] Exhibit 1, T Documents, T12, 90-94.

   [6] Exhibit 1, T Documents, T13, 95-96.

   [7] Exhibit 1, T Documents, T2, 7.

5. The Tribunal, having sighted the stamped copy of the application, intends, for the purposes of accuracy, to adopt the date of the application as 19 November 2019.

6. The AAT1 review was conducted on 30 January 2020 and affirmed the decision under review.[8]

   [8] Ibid.

7. The issue in this matter is whether the applicant meets the requirements of the Social Security Act1991 (“the Act”) set out in section 954(1) as at the date of her claim for carer allowance, and specifically:

   (a)Does Mr Graeme Hanisch (the care receiver) have an Adult Disability Assessment Tool (“ADAT”) Score of at least 30 as required by section 954(1)(c); and

   (b)Is the applicant an Australian resident as required by section 954(1)(f)?

   THE FACTS

8. The applicant arrived in Australia on 7 June 2018, being a citizen of the Philippines, and at the time of her application was residing in Australia under a Visa Sub-Class 020 granted on 2 April 2019.[9]

   [9] Exhibit 1, T Documents, T14, 106-114 at pages 106 and 109 respectively.

9. Dr Frederick Morgan, the caregiver’s General Practitioner, completed a Carer Payment and/or Carer Allowance Medical Report for the care receiver on 30 October 2018.[10]

   [10] Exhibit 1, T Documents, T6, 64-71.

10. The applicant submitted a claim for carer allowance on 16 January 2019[11] which had, as forming part of that application, the ADAT Claimant Questionnaire answered by Dr Morgan.[12] The Applicant’s questionnaire was also included with the application.[13]

    [11] Exhibit 1, T Documents, T7, 72-76.

    [12] Exhibit 1, T Documents, T6, 64-71.

    [13] Exhibit 1, T Documents, T7, 72.

11. The applicant’s claim was rejected on 5 March 2019 following assessment of the claim by Centrelink[14] on the basis that the applicant did not hold a Permanent Resident Visa.[15]

    [14] Exhibit 1, T Documents, T8, 77-78.

    [15] Ibid.

12. On 16 March 2019, the applicant sought an internal review of the claim[16] and an ARO reviewed the applicant’s claim and on 30 April 2019 affirmed the original decision. The ARO determined that the applicant was not an Australian resident and that the care receiver had an ADAT score of 27.[17]

    [16] Exhibit 1, T Documents, T9, 79.

    [17] Exhibit 1, T Documents, T10, 80-85.

13. When calculating the ADAT score, two questionnaires are taken into account and a points allocation is made based on the answers to each questionnaire given by the care receiver’s medical professional and the care giver themselves. The form of the questionnaires, the possible answers to the questions and the scores to be assigned are prescribed and set out in the Adult Disability Assessment Determination 1999 (“the Instrument”).[18]

    [18] Exhibit 1, T Documents, T3, 29-54.

14. The ARO had before them the professional questionnaire of Dr Morgan and the answers that he provided on 30 October 2018 to the professional questionnaire when assessing for points under the Instrument. This assessment gave a total of 18.5 points.[19] They also had the claimant’s answered questionnaire relating to Dr Morgan’s questionnaire before them dated 16 January 2019.[20] This questionnaire, when assessed under the Instrument, produced an 8.5 total. Thus, the combined points score of both questionnaires was 27 points for the care receiver.[21]

    [19] Exhibit 2.1, Attachment “A” to the Statement of Facts, Issues and Contentions of the Respondent, 1-3, 15-21, 49-52, 57-59.

    [20] Exhibit 2.1, Attachment “A”, 7-10, 31, 43-48, 53-56.

    [21] Exhibit 2.1, Attachment “A”, 60.

15. The care receiver, it is noted, stated that his late wife Elizabeth was a previous caregiver who, on the ADAT score, held 44 points on 10 August 2004.[22] This score was made up of 17 points based on the professional questionnaire and 27 points under the claimant’s questionnaire.[23]

    [22] Exhibit 1, T Documents, T14, 100.

    [23] Ibid.

16. The applicant sought review by the AAT1 on 19 November 2019[24] and on 11 February 2020 the AAT1 affirmed the ARO’s finding that the applicant was not an Australian resident and the care receiver had an ADAT score of 27.[25]

    [24] Exhibit 1, T Documents, T13, 95-96.

    [25] Exhibit 1, T Documents, T2, 8 at para [12] and 9 at para [24].

17. The applicant lodged an application for a second review of the decision on 13 March 2020 which nominated the care receiver as her representative.[26]

    [26] Exhibit 1, T Documents, T1, 1-5.

18. The applicant sought an updated ADAT report from Dr Amrita Prasad (Rehabilitation Specialist) who completed the updated professional questionnaire during the temporary incapacitation of Dr Morgan. The Secretary, as noted, accepts Dr Prasad’s assessment as more accurate than the previous one by Dr Morgan as relating to the representation of care needs by the applicant. The updated questionnaire report was submitted on 26 June 2020[27], together with the applicant’s submissions that the form for the questionnaire is flawed in certain respects.

    [27] Exhibit 2.2, Attachment “B”.

19. The assessment of Dr Prasad’s medical report, when applying the mandated calculations process, equates to a calculation for the professional questionnaire of 20 points.[28]

    [28] Exhibit 2.1, Attachment “A”, 4-6, 22-28, 49-52, 57-59.

20. The assessment of the total points score for both the professional questionnaire and the claimant’s questionnaire is raised to 28.5, the sum of the two.[29]

    [29] Exhibit 2.1, Attachment “A”, 60.

21. The care receiver is an Australian resident and is a family member with the applicant by way of marriage[30] and the Secretary accepts that the care receiver, because of disabilities, is receiving care and attention on a daily basis from the applicant in their matrimonial home.[31]

    [30] Exhibit 1, T Documents, T14, 105.

    [31] Exhibit 1, T Documents, T7, 73.

    HEARING ON THE PAPERS

22. Section 34J of the Administrative Appeals Tribunals Act 1975 provides for circumstances in which a Hearing may be dispensed with.

23. If it appears to the Tribunal that the issues for determination on the review of a decision can be adequately dealt with in the absence of the parties, and the parties consent to the review being determined without a Hearing, the Tribunal may review the decision by considering the material lodged with or provided to the Tribunal and without holding a hearing.

24. The applicant requested, and the respondent agreed, that this matter be dealt with “on the papers”.

    THE RELEVANT LEGISLATIVE FRAMEWORK

25. The applicable legislation is contained in the:

    (a)Social Security Act1991 (“the Act”);

    (b)Social Security (Administration) Act1999 (“the Administration Act”);

    (c)Migration Act1958 (“the Migration Act”);

    (d)Social Security (International Agreements) Act1999 (“the International Agreements Act”);

    (e)Adult Disability Assessment Determination1999 (“the Instrument”);

    (f)Migration Regulations1994 (“the Migration Regulations”).

    THE APPLICANT’S QUALIFICATION FOR CARE ALLOWANCE

26. The Act, at section 954, sets out the criteria to qualify an applicant for carer allowance as follows:

    “(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 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; 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; and

    (g)  the person satisfies the carer allowance income test under section 957A.

    Note 1:       For family member see subsection 23(1). For Australian resident see section 7.

    Note 2:       For qualification for carer allowance in circumstances of hospitalisation, see section 955.

    Note 4:       For the effect of temporary cessation of care and attention on carer allowance, see section 957.

    Note 5:       For the effect of 2 people being qualified for carer allowance, see sections 964 and 965.

    Disabled adult does not qualify for carer allowance for another disabled adult

    (2)  If a person is qualified for carer allowance for a disabled adult, the disabled adult is not able to qualify for carer allowance for another disabled adult.

    Person cannot qualify for more than 2 carer allowances

    (3)  A person may qualify for carer allowance under this section and/or section 954A for 2, but no more than 2, disabled adults.”

27. Pertinent to the consideration in this matter are the issues of the care receiver being assessed and rated by the ADAT so as to have an overall score of at least 30 points and, of that score, 12 points at least to be on the basis of the answers to the professional questionnaire. The professional questionnaire in this care receiver’s situation is 20 points and is thus above the required minimum of 12 points under the Act. The care receiver’s overall combined point score, however, of 28.5 does not reach the 30 point threshold as required by the Act.

28. The other critical consideration relevant to this application set forth in section 954 requires, inter alia, that the applicant is an Australian resident. It follows that it is first necessary to establish that the care receiver is qualified under the ADAT to receive care assistance. Then, having established that fact, it is necessary to consider the eligibility of the carer to receive the carer’s payment.

29. The care receiver, it is argued by the respondent, does not qualify for the use of a carer as his combined ADAT score does not reach the minimum 30 points as above referred to. The care receiver has argued that the way in which the questionnaires are structured does not allow for the proper consideration of the impacts of his multiple conditions.

30. The care receiver contended that although the ADAT score of 27 points as originally submitted was later increased upon review by another medical practitioner’s professional questionnaire up to an overall score of 28.5, this was incongruent with the overall score of 44 points as assessed in 2004 for a previous caregiver as displayed in the Department screen shot.[32]

    [32] Exhibit 1, T Documents, T14, 100; Exhibit 3, Applicant’s Statement of Facts and Contentions.

31. The ADAT scores are, where a carer’s payment is sought, dependent upon the views of the parties who complete their questionnaire, whether it be the applicant or the treating medical professional. It is their answers to the questions in their relevant questionnaire at the time when they give them, that set the basis for the points calculation. The answers given by one party in 2004 could not be substituted for, or used to modify, a calculation based on a later applicant’s answers some 16 years later.

32. The circumstances around the claimant at one point in time may be significantly different from those at another point in time.

33. A care receiver’s conditions may have changed significantly for either better or worse, and the later caregiver may be providing a greater or lesser or differing type of care from a previous applicant.

34. It is thus necessary for a contemporary questionnaire to be the only relevant document under consideration. The Tribunal has noted that there are differing answers provided to the same questions by the 2004 caregiver from that of this applicant in their questionnaire.[33]

    [33] Exhibit 2.1, Attachment “A”, 11-14, 33-34.

35. When an applicant completes a questionnaire of the type employed in applications of a nature such as this, it is expected that the answers are truthful and accurate to the best knowledge and belief of the author. The Secretary is reliant upon this so as to be able to make a fair assessment of the applicant’s condition to enable the making of the best and preferable decision. The decision-maker is unable to disregard the answers given. In the absence of the applicant withdrawing their application and commencing anew, the Secretary has to consider the material submitted with the current active application.

36. The Tribunal, therefore, is in no position to interfere with or alter the score on the ADAT questionnaires. As the Secretary has indicated in its Statement of Facts, Issues and Contentions, it is not provided by the governing legislation any discretion to waive the requirement to satisfy the ADAT qualification.

37. The Tribunal notes that the care receiver agitates the point that the ADAT score, even in its reviewed model, does not adequately address his functional impairments stemming from his chronic pain, mobility, psychological and hearing functions. He contends that as the questionnaire is thus flawed, it does not reflect the true extent of his medical condition.

38. The Tribunal has also considered the Secretary’s response wherein it contends that the care receiver’s functions regarding mobility, psychological condition and hearing have been considered by both the professional and claimant’s questionnaires, where appropriate.

39. The respondent outlined in its Statement of Facts, Issues and Contentions document, and drew the Tribunal’s attention to, the professional and applicant’s responses to the questions appertaining to these conditions where the ADAT score was under consideration in regard to these conditions. The Tribunal finds no fault with the respondent’s outline and interpretation of how the scores fell for each of the conditions mentioned by the care receiver. The Tribunal notes that there is no separate section in either the professional questionnaire or the caregiver’s questionnaire about pain as a discrete condition. This may possibly be so on the basis that it is a causative factor in a condition which gives rise to a carer need or requirement as opposed to a condition where a carer may be able to assist with, for example, mobility.

40. The Tribunal finds that the score on the ADAT of 28.5 is, therefore, accurate as at the time of the applicant’s claim. The Tribunal has no discretion to disregard the requirement of satisfying the test and in the absence of an error affecting the results of the test, is unable to disregard the score achieved. It is the circumstance in this matter before the Tribunal that no such administrative error has occurred to render the result invalid.

41. The Tribunal understands the applicant and caregiver’s contention that the ADAT assessment questionnaires are insufficiently nuanced so as to provide a more fulsome picture of a care receiver’s condition. However, the Determination is not able to be reviewed by the Tribunal which is bound by the prescribed process therein.

42. The care receiver, having obtained an ADAT score of 28.5, therefore has not obtained the necessary ADAT score of a minimum of 30 and thus Mrs Hanisch, at the time of this application, is ineligible to receive carer payments.

43. Further, because Mrs Hanisch did not qualify at the time of her application for carer payment, it is not necessary for this Tribunal to consider whether, at that time, Mrs Hanisch was an “Australian resident” as defined in the Social Security legislation.

44. The decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

..............................[SGD]..........................

Associate

Dated: 27 October 2021

Hearing on the papers
Representative for the Applicant:	Graeme Hanisch
Solicitor for the Respondent:	Samuel Harvey, Services Australia