Haslam and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1474
•27 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1474
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600924
GENERAL ADMINISTRATIVE DIVISION ) Re DOMINIQUE HASLAM Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr KS Levy RFD, Senior Member Date27 June 2007
PlaceBrisbane
Decision The decision under review is affirmed. ..................[Sgd]............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – carer payment – whether the care provided to the applicant’s son satisfies the requirements of “a profoundly disabled child” under s 197(2) of the Social Security Act – applicant unable to satisfy the requirements of ss 197(2)(c) – a ‘purposive’ approach of statutory interpretation considered – decision affirmed
Social Security Act 1991 (Cth) ss 197, 198
Acts Interpretation Act 1901 (Cth) s 15AA
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490
Palgo Holdings v Gowans (2005) 221 CLR 249REASONS FOR DECISION
27 June 2007 Dr KS Levy RFD, Senior Member Introduction
1. Ms Haslam seeks a carer payment in respect of her disabled son, Kyle Haslam. Ms Haslam has been in receipt of a carer allowance since 2003 but made an application on 9 June 2006 for a carer payment. Centrelink determined on 7 July 2006 that she did not meet the qualifications for that payment. That decision was reviewed and affirmed by the original decision-maker and, subsequently, by an Authorised Review Officer on 18 August 2006. It was again reviewed by the Social Security Appeals Tribunal (SSAT) but Ms Haslam was unsuccessful in that appeal (SSAT decision of 16 November 2006). A review of that decision is now sought by this Tribunal.
Issues
2. Section 198(2) of the Social Security Act 1991 (the Act) specifies the qualifications for eligibility for a carer payment. Specifically, s 198(2)(b) provides qualifications for those who provide constant care for a profoundly disabled child under 16 years of age. The term “profoundly disabled child” is defined in s 197(2) of the Act. Therefore, for Ms Haslam to establish qualifications under s 198(2), the issue for the Tribunal is:
Does the care provided to Kyle Haslam satisfy the requirements of him being “a profoundly disabled child” in terms of s 197(2) of the Act?
Standard Of Proof
3.The standard of proof in this case is on the balance of probabilities.
Background
4. Kyle Haslam was four years of age at the time of the hearing. When he was 14 months old, he contracted pneumococcal septicaemia. His condition necessitated amputation of part of both legs and parts of his fingers. He also suffered a subarachnoid brain haemorrhage or haemorrhagic stroke whilst in hospital.
5. Medical reports have been provided by Dr Hussain (the treating doctor) and additional medical reports have been provided by Dr Williams, Dr Worsey, and Dr Leighton in support of the claim. The Authorised Review Officer also obtained a further medical report from Dr Das from Health Services Australia and from Dr Toft of Health Services Australia. Those reports have resulted in an assessment that Kyle satisfies some of the requirements of s 197(2), but does not satisfy the requirements specifically of s 197(2)(c).
Evidence
6. Most of the evidence in this case is contained in the T documents (Exhibit 1). Ms Haslam also had available a number of other documents which she said helped to put her case in perspective.
7. One of these additional documents was a pay slip which highlighted that she had little or no leave available from her employer, and no available sick leave. She maintained that this was due to the amount of time that she needs to take off work to be able to attend hospital appointments with Kyle and also to visit the Gold Coast to have new prosthetics made for him. She said that her case might be treated more sympathetically as the government has since made a new vaccine for pneumococcal infection, which was not available when Kyle was born. Other incidents of living which she indicated placed a great strain on her family were:
(i)She has to be available to attend appointments with a speech therapist and an occupational therapist, which were usually held at home but, in any case, she was not available to be at work for those times.
(ii)They had renovated the bathroom in the house to accommodate Kyle’s disability.
(iii)She needs to be available to assist Kyle for various activities which a normal child might attend to himself, such as getting out of bed.
(iv)Kyle does not have a spleen and is therefore more prone to infection. The demands and the frequency of attention needed to be provided is far greater than that ordinarily for a child of his age.
(v)Kyle has lost all his teeth and she often has had to attend the university for dental appointments. The cost of parking and petrol to attend these appointments is an additional burden which would not otherwise be borne by most families.
8. Ms Haslam also referred to an incident of another family which, she understood, was initially rejected for payment of a carer payment. When rejected, and the matter was subsequently aired on television, that applicant was then approved to receive a carer payment. The details were not known by the applicant and nor was the respondent in a position to clarify, elaborate or confirm the claims made. She also referred to children with Aspergers Syndrome being eligible for a carer payment when these were mainly behavioural abnormalities. Ms Haslam argued that Kyle’s problem was at least as difficult as, if not worse than, a child with that condition.
9. Finally, she submitted that Kyle might not be “profoundly” disabled as determined by the definition in legislation but, nevertheless, she asserted that he was severely disabled and a burden on the parents – one that was more difficult to deal with than had been so far acknowledged.
10. The Tribunal questioned Ms Haslam about whether Kyle met the requirements of s 197(2)(c). Essentially, Ms Haslam stated that while Kyle required feeding by a nasogastric tube when he was very young, that is no longer the case. Furthermore, she declared that Kyle does not require a tracheostomy and nor does he need the use of a ventilator for at least eight hours per day. Ms Haslam also advised that Kyle does not have faecal incontinence day or night. Accordingly, she agreed that s 197(2)(c) was not applicable.
Consideration
11. All of the relevant factual and statutory and case law material has been considered in arriving at a decision in relation to this matter. This hearing was a de novo review with all the material and legal provisions being considered afresh.
12. The legislative provisions relevant to this case in order for Ms Haslam to be entitled to carer payment stipulate that she must demonstrate that she is qualified as such by being a person who provides constant care for a profoundly disabled child aged under 16 years (s 198(2)(b)). The meaning of “a profoundly disabled child” is amplified in s 197(2). That section provides as follows:
“197(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 in writing 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.”
13. It is conceded by the respondent that Ms Haslam satisfies subsection (a) and (b) of s 197(2) but not s 197(2)(c). That latter subsection requires an applicant to show that the child in question satisfies three of the provisions of that subsection. The respondent concedes that two of the subsections are complied with - that is, s 197(2)(v) and (vii). In relation to the remaining provisions of s 197(2)(c), Ms Haslam agreed with the Tribunal that Kyle:
(i)does not receive all food and fluids by nasogastric or percutaneous enterogastric tube;
(ii)does not have a tracheostomy;
(iii)does not use a ventilator for at least eight hours per day;
(iv)does not have faecal incontinence day and night.
14. Therefore, the provisions of s 197(2)(i), (ii), (iii) and (iv) are not satisfied. Likewise, s 197(2)(vi) is not satisfied as a medical practitioner has not certified that Kyle has a terminal condition for which palliative care has replaced active treatment. Consequently, of the remaining provisions which have not been attested to by a medical practitioner, Ms Haslam has conceded that Kyle does not strictly satisfy those provisions. Therefore, I must form the view that Kyle does not have three or more of the circumstances described in s 197(2)(c) and therefore is not “a profoundly disabled child” as defined in s 197(2) of the Act.
15. I have been conscious also of whether a wider interpretation could be given to s 197(2). In particular, s 15AA of the Acts Interpretation Act 1901 (Cth) provides:
“Regard to be had to purpose or object of Act
(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. “
16. That section emphasises an approach to statutory interpretation which favours resolving any ambiguity by using a “purposive” approach. This approach has been clearly emphasised by the High Court of Australia in recent cases (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 590 per McHugh J; and Palgo Holdings v Gowans (2005) 221 CLR 249).
17. I find that the child, Kyle Haslam, has a severe multiple disabilities and as a result, needs a high level of continuous personal care. I note, and the respondent has also acknowledged, the difficult circumstances within which Ms Haslam has been placed. Indeed, the stress, anxiety and disappointment cannot, in this respect, be underestimated. Ms Haslam and her partner clearly work and do not seek a high level of social security benefits merely for their own convenience. It is apparent that the demands on Ms Haslam as a young mother are quite extensive, but that she has borne this significant burden with great alacrity. She was clearly a witness of truth. She discussed, for example, the fact that she needed to take Kyle to the toilet at night like any four year old. However, she was realistic and fair about whether she honestly could say that Kyle fell within the bounds of that aspect of s 197(2). Ms Haslam did not magnify her case or imply any sense of exaggerated entitlement merely because of the demands placed on her.
18. At the end of the day, the decision must reflect what is the law – the evidence to prove the third factor required in s 197(2)(c) was simply not available. Ms Haslam herself conceded that. I have no option, then, but to determine that the decision under review must be affirmed. There is no precedent which would guide a decision in this matter and which would justify a wider interpretation of the strict and narrow existing reading of s 197(2). Whilst that does not assist the applicant to deal with the additional cost in travelling to hospitals and having new prostheses made for her son, I understand that the applicant was genuinely offered advice after the hearing by Ms Hamilton, advocate for the Secretary, which is likely to provide the most satisfactory and sympathetic solution to her plight, and which would also not offend s 197(2). That advice clearly showed ‘a model litigant’ approach by a government organisation.
19. I therefore find that the evidence indicates that only two of the requirements of s 197(2)(c) have been met. The decision under review is therefore affirmed.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member.
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 23 May 2007
Date of Decision 27 June 2007
Applicant Ms Haslam, herself
Respondent Ms K Hamilton, departmental advocate
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