Harrison and Department of Family and Community Services
[2001] AATA 1001
•10 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1001
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2001/53
GENERAL ADMINISTRATIVE DIVISION )
Re JANNIS HARRISON
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal N Bell, Member
Date10 December 2001
PlaceSydney
Decision The Tribunal affirms the decision under review.
[sgd] N Bell,
Member
CATCHWORDS
SOCIAL SECURITY – carer payment – eligibility – severely disabled child – whether child is 'profoundly disabled' – whether child 'cannot stand without support'
Social Security Act 1991 – sections 197(2) and 198(2)
REASONS FOR DECISION
N Bell, Member
This is an application by Jannis Harrison ("the Applicant") for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 27 November 2000 which affirmed a decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 29 May 2000. The original decision by Centrelink, which was reviewed and affirmed by an authorised review officer ("ARO"), was that the Applicant was not eligible for carer payment in respect of her disabled son, James.
At the hearing of the application the Applicant appeared in person and gave oral evidence and Ms Shuster, from the Advocacy and Administrative Law Team at Centrelink, represented the Respondent. 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 note of significant falls in 2000 Undated
A2 "Respite for Carers of Young People with Severe or Profound Disabilities Initiative – Guidelines" Attachment B January 2000
A3 Applicant's submission Undated
R1 Respondent's Statement of Facts and Contentions 24 September 2001
Background
James Harrison was born on 26 July 1985. At the time of the Applicant's claim for carer payment in May 2000 he was 15 years old. James has a chromosomal abnormality with resulting physical and intellectual disabilities. He lives at home with his mother, the Applicant.
On 17 May 2000 the Applicant lodged a claim for carer payment in respect of James and her claim was rejected on the basis that James did not meet the definition of "profoundly disabled child" in section 197(2) of the Social Security Act 1991 ("the Act"). On 13 June 2000 the decision was affirmed by an authorised review officer. The decision was also affirmed by the SSAT, on the same grounds, on 27 November 2000.
IssueThe issue in this application is whether James is a "profoundly disabled child" within the definition of that term in section 197(2) of the Act.
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):
"(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 James is severely disabled and satisfies the requirements in section 197(2)(a) and (b) of the Act. It is also common ground that James satisfies two of the conditions listed under section 197(2)(c) in that he has faecal incontinence (subparagraph 197(2)(c)(iv)) and requires care on two or more occasions at night (subparagraph 197(2)(c)(vii)).
The only issue in dispute is whether James "cannot stand without support" (subparagraph 197(2)(c)(v)).
EvidenceThe Applicant prepared and presented to the Tribunal a written submission which included the following summary of her evidence (Exhibit A3):
"James is a person who is in motion most of the time. He essentially lacks an ability to entertain himself, so shadows the adult he is with. A family friend has described his intensity as "not letting you forget he is there". In doing this he frequently fails to stop in time as he approaches someone, overshoots, and topples onto them. He has difficulty coming to stop, and due to his poor motor control one is always ready to catch him. When you live within an unsteady person, this point is pertinent, relevant and important.
He stands too close to people, although while reaching out with his hand for support, or making contact with his shoulder. He rushes impulsively, throwing his feet out as he goes, at times catching furniture and tripping. He rarely voluntarily sits. Our former DoCs community worker described James as being "like a flapping attachment" to me, such is the movement and intensity of his closeness.
"Can he stand without help?" Yes he can in a familiar environment or on even terrain, but he cannot stand unsupported in places that most people would manage well. The are two aspects to this:(1) on uneven or unfamiliar ground
(2) in the community where he needs support to restrain him both for his safety and because of his overly friendly nature.
In relation to (1), as an analogy, I ask you to consider a person who is blind. They may well be able to negotiate their own home and yard, however beyond that familiar environment they invariably need the support of a cane, a dog, or an assistant. In considering "support" I do not believe we should pick and choose when it is a valid consideration."
In answer to questions from the Tribunal, the Applicant said that James can rise from a seated position without assistance but half the time he will topple over. She said that, once standing, James can remain standing but will rock from side to side. It is rare for his feet to remain motionless. She said that James can remain almost motionless for only up to 30 seconds at a time. When she is walking in the street with James they have to link arms otherwise he will wander off and she always has to have a hand ready to steady him.
The Applicant said that James experiences periods when he is more unbalanced, and provided the Tribunal with a list of significant falls sustained by James in the year 2000 (Exhibit A1). These numbered eight from February to November and included serious lacerations requiring stitches.
The Respondent relied on the report of Dr S. Anderson dated 19 May 2000 in which Dr Anderson indicated that James can stand without support. The Respondent also relied upon the report of Maureen Nelson, Occupational Therapist, dated 5 July 2000 which states, in relation to James' gross motor skills (T20, p72):
"James can walk independently. He can walk up and down stairs holding on to a rail. James has had many falls on to his knees in the past. The recent operation on his leg hopefully will reduce the risk of falling in future. James is clumsy and awkward in movement and has poor balance."
Submissions
The Applicant's Statement of Facts and Contentions, prepared on her behalf by the Welfare Rights Centre, contains the following passage:
"…We contend that the Social Security Appeals Tribunal's interpretation of the meaning of "stand without support" was unduly narrow, and fails to take into account that a person whose mobility is impaired in terms of a lack of control over movement (rather than in terms of a lack of capacity to move), may not be capable of either standing still or moving to a standing position from a seated or prone position, without assistance. We contend that the phrase should properly be given a broader interpretation that would take into account whether James can remain standing without assistance when a situation requires that he stand; or whether he can stand up from a sitting or prone position without support, without unbalancing.
Pertinent Macquarie dictionary definitions of "stand" are as follows:
"to take or keep an upright position on the feet (opposed to sit, lie, etc).";
"to remain motionless or steady on the feet";
"to cease moving; halt; stop";
"to take a position or stand as indicated";
"to become or remaining still or stationary". (Macquarie Dictionary, Revised ed., Macquarie Library, 1981. Extracted copy of fall definition is attached).
Although James is not offered or given the constant physical support of another person to either stand from a sitting or prone position, or to remain still in a standing position, he clearly needs the support of his carer for all aspects of his mobility. This support is a major component of his mother's caring responsibilities. As explained to the Social Security Appeals Tribunal by Ms Harrison, James' instability and tendency to lurch forward mean that he is constantly at risk of falling, and banging into walls and windows, and he frequently falls. Not only does he often sustain lacerations, cuts, fractured bones and bruises, but the skin on his elbows is thin and discoloured due to regular trauma to the area. She is constantly monitoring him and supporting him so as to minimise the frequency of these injuries…
Given the foregoing, we contend that James fulfils the requirement of not being able to "stand without support". Having regard to the Macquarie Dictionary definitions of "stand" quoted above, we propose it to be clear that without "support", James:cannot keep an upright position on his feet;
cannot remain motionless or steady on his feet;
cannot cease moving, halt or stop;
cannot take a position or stand as indicated;
cannot become or remain still or stationary."
In addition, the Applicant provided the Tribunal with the following as part of her submission:
"My evidence and analogies are offered to convince you that there is a defect in the way the criteria is set out. I suggest the criteria does not always capture everything of relevance to a person's disability. There was no question that James' disability would allow me to qualify for the carer payment after he turned 16. Surely, the fundamental that underpins this legislation, is the degree of additional care required to care for the person with a disability? It is a long bow to draw to say that when the person "cannot stand" according to Centrelink's interpretation, the level of care is greater than when a person is ambulatory, but a danger to himself. The level of care is not less or greater… it is different.
Finally I believe the legislation discriminates against people who have very high support needs, and leans towards those who present with significant medical issues. I find the relevant legislation is not beneficial, and seems to say to me "how can we exclude" rather than "how can we include?"."Following some discussion at the hearing of the meaning of the term "profoundly disabled", the Applicant provided to the Tribunal a copy of a document titled Respite for Carers of Young People with Severe or Profound Disabilities Initiative – Guidelines. In the definition section of that document the following appears:
"The terms "severe" and "profound" should be interpreted in line with the "Disability, Ageing and Carer's Survey 1998 (Australian Bureau of Statistics)". The Disability, Ageing and Carers Survey reports on the level of assistance required by people with a disability in relation to three core activities which are considered to underlie all aspects of everyday life: self-care, mobility and communication.
A person with a severe restriction in core activities sometimes requires assistance to perform a core activity, while a person with a profound restriction is unable to perform core activity or always requires assistance to perform a core activity."
The Respondent submitted that the words "cannot stand without support" must be interpreted according to their ordinary meaning. Ms Shuster, for the Respondent, referred the Tribunal to the definitions of the relevant words in the Macquarie Dictionary, as did the Applicant. She submitted that there is no medical evidence to support the contention that James cannot stand without support and the thrust of the medical evidence is to the contrary. The Respondent 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. The Respondent 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.
The Respondent also submitted that the decision under review gave rise to no undue hardship for the Applicant, given that she had entitlement to parenting payment, carer allowance and family tax benefit. The Respondent also noted that prior to 1 July 1998, carer payment had not been available in relation to children at all and had deliberately not been made widely available in respect of children after that date.
ConsiderationThe Tribunal finds that James Harrison has a severe multiple disability and, because of that disability, needs continuous personal care for six months or more. He 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 James Harrison has faecal incontinence day and night (s197(2)(c)(iv)(A)) and requires personal care on two or more occasions between 10 pm and 6 am each day (s197(2)(c)(vii)(A)). He therefore meets two of the required three factors in section 197(2)(c). The third factor identified by the Applicant, but disputed by the Respondent, is that James "cannot stand without support" "(s197(2)(c)(v)).
As submitted by the Respondent, the context in which the words appear is relevant to their interpretation. 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".
The dictionary definitions of the words, quoted by both the Applicant and the Respondent, shed little light beyond what may be gathered from the ordinary meaning of the words. The Applicant has, however, emphasised the stationary aspect of standing and argued that James does not "stand" in that he does not stand motionless. However, the logical extension of that argument is that James never stands, even with support, given that he is always in some kind of motion. This conflicts with the Applicant's concession that James can stand in a familiar environment or on even terrain.
The Tribunal is of the view that the ordinary meaning of the words "cannot stand without support", the restrictive context in which they appear and the lack of any qualification of the words, support the interpretation argued by the Respondent. Further, support for the contention that James does not meet the criterion in section 197(2)(c)(v) is found in the reports of Dr Anderson and Ms Nelson. On this basis the Tribunal concludes that James does not meet that criterion.
As there is no evidence that James' disabilities include any other matter specified in section 197(2)(c), the Tribunal must conclude that James' disability does not include three or more of the circumstances set out in section 197(2)(c) and consequently, he does not fall within the definition of "profoundly disabled child" in section 197(2) of the Act. It follows that the Applicant was not, at the relevant time, qualified to receive carer payment in respect of James.
The Tribunal appreciates the Applicant's frustration with the effect of the provisions that are the subject of this application. It is clear that the Applicant is a loving parent who is devoted to her son. She provides him with a level of care that is not only very high but is designed to afford him, as far as is possible, some breadth of experience and fullness of life. Her criticisms of the legislation are understandable.
DeterminationThe Tribunal affirms the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Narelle Bell, MEMBER
Signed: R Quinn .....................................................................................
AssociateDate/s of Hearing 6 November 2001
Date of Decision 10 December 2001
Representative for the Applicant Self
Advocate for the Respondent Ms H Schuster
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