Hiller and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 358

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 358

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/137

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HELEN HILLER

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date19 April 2006

PlaceHobart

Decision The decision under review is affirmed

..............................................

Part-Time Member

CATCHWORDS

Social Security - benefit - carer payment - child - disabled - profoundly disabled - nature of disabilities - circumstances - medical report - reviews - Social Security Appeals Tribunal (SSAT)

Social Security Act 1991 and amendments, Sections 197 and 198

Guide to Social Security Law

Social Security (Administration) Act 1999

Harrison and DFCS [2001] AATA 1001 (10 December 2001)

Grace and DFCS [2002] AATA 155 (27 February 2002)

Virtue and DFCS [2002] AATA 1311 (2 December 2002)

Day and DFCS [2005] AATA 449 (19 May 2005)

REASONS FOR DECISION

19 April 2006 Associate Professor B W Davis AM (Part-Time Member)   

Decision Under Review

1.      The decision under review is a decision made by a delegate of Centrelink on 2 June 2005, subsequently affirmed by the Social Security Appeals Tribunal on 31 August 2005, to reject Mrs Helen Hiller’s claim for carer payment in respect of her daughter Phillipa.

Issues

2.      The issues are:

(a)  whether Phillipa Hiller is a profoundly disabled child;  and if so

(b)  whether Helen Hiller is qualified to receive carer payment in respect of            Phillipa.

Legislation

3.      The relevant legislation is the Social Security Act 1991 and amendments, Sections 197 and 198.

Standard of Proof

4.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background

5.      The applicant’s daughter Phillipa Hannah Stacey-Lee Hiller was born on 17 May 1995 and is currently 10 years of age.  Phillipa suffers from a learning disability and anxiety-depression.  Her food has to be cut up for her and she suffers some incontinence.  The disabilities are such that she requires considerable attention and her mother, the applicant Helen Hiller, claims that the need to teach her at home and care for her means the mother cannot seek employment.

6.        On 24 May 2005 Mrs Hiller lodged a claim for carer allowance, but this was rejected by Centrelink on 7 June 2005.  Mrs Hiller sought review of the decision but it was affirmed by an authorised review officer (ARO) on 30 June 2005 and later affirmed by the Social Security Appeals Tribunal (SSAT) on 31 August 2005.  The applicant then sought review by the Administrative Appeals Tribunal on 26 September 2005.

The AAT Hearing

7.        The AAT hearing was conducted in Hobart on 5 April 2006.  The applicant was affirmed and gave evidence by phone, being self-represented;  the respondent was represented by Ms Michelle Baulch.  No witnesses were called.

8.        Mrs Hiller claimed she had been advised by a member of Centrelink staff to seek carer payment but on application discovered that the qualification criteria were heavily weighted towards physical disabilities rather than mental condition.  She felt this discriminated against her daughter Phillipa, as it would be almost impossible to meet the nominated qualification criteria.  She considered the Act required amendment, but claimed her child was demonstrably ‘profoundly disabled’ and required ongoing attention.

9. Counsel for the respondent agreed that the criteria specified in Section 197(2) of the Act were narrowly defined and intended to apply only to very severely disabled individuals, as other welfare benefits were available and needed to be taken into account. Mrs Hiller was already receiving parenting payment, an isolated education allowance and had some overseas tax benefit. There were heavy demands upon a range of Australian Social Security benefits and the Commonwealth had decided applicants for carer payment must meet at least three of seven specified criteria before assistance would be granted. While the respondent admitted Phillipa met the incontinence provision and required considerable care, she did not meet the specified profoundly disabled criteria overall, having at most two of the seven specified disabilities.

10.      Mrs Hiller argued she still considered the Act discriminated against individuals with the kind of disabilities her daughter faced.  There was a need for compassion in situations such as she was experiencing.

Analysis

11.      This is a de-novo review, with the Tribunal required to examine all available evidence as well as relevant statutory provisions, policy guidelines and prior case determinations.

12.      The law applicable in this case is the Social Security Act 1991 (the Act). The qualifications for carer payment are set out in Section 198 of the Act, which states, inter alia, that in order to qualify for carer payment in respect of a child under 16 years of age, the child must be a “profoundly disabled child” within the meaning specified in subsections (2) or (2A):

“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.

197.(2A)  A child is a profoundly disabled child if a medical practitioner has certified in writing that:

(a)       the child:

(i)        has a terminal condition; and

(ii)       is in the advanced phase of that condition; and

(b)       either:

(i)        the child has a life expectancy measured in weeks or months; or

(ii)       it is possible that the child will live for more than 12 months but      unlikely that he or she will live for a period substantially greater than 12         months; and

(c)       because of the condition referred to in paragraph (a), the child will need continuous personal care for the remainder of his or her life”.

14.      Parties are agreed that Phillipa Hannah Stacey-Lee Hiller has substantial disabilities but she is clearly not in a situation of final phases of a terminal illness.  The applicant contends that Phillipa suffers from mental deficiency, anxiety-depression and periodic faecal incontinence, day and night.  Her mother claims Phillipa requires and is given constant care, including home education, precluding Mrs Helen Hiller from seeking employment.

15. The respondent concedes that Phillipa meets general requirements of Sections 197(2) (a) and (b) of the Act, but states Phillips is not a ‘profoundly disabled child’ as she does not meet the required three or more of seven circumstances set out in Section 197(2) (c) of the Act. The respondent also notes that although the SSAT (Social Security Appeals Tribunal) determined Phillipa met the requirements of Section 197(2) (a) of the Act, the treating doctor (Dr McArdle) did not indicate she suffered a severe multiple disability or a severe medical condition. A slightly later report (August 2005) by Dr Ian Stewart did state she had a severe medical condition, but both reports involved ticked boxes and no detailed explanation of the medical condition itself.

16. In evidence before the Tribunal, counsel for the respondent argued that the criteria set out in Section 197(2) (c) of the Act were necessarily restrictive and specific, given that other forms of welfare payments exist. In Harrison and SDFCS [2001] AATA 1001, Member Bell stated:

“The range of circumstances described in S197(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’, Section 197(2)(c) (1) and ‘must use a ventilator’ Section 197(2)(c)(iv).  The words ‘cannot stand without support’ are similarly unqualified by,, for example, such words as ‘often, sometimes or generally’”.

17.      Given these provisions and the medical evidence, the Tribunal has considered each of the seven criteria for ‘profoundly disabled’ individuals and in the case of Phillipa Hiller finds as follows:

(a)  ‘receives all food and fluid by masogestic or percutaneous enterogastric tube’;  not applicable because Phillipa is able to feed herself, provided food is cut up;

(b)  ‘has a tracheostomy’;  no evidence Phillipa’s condition meets this circumstance;

(c)  ‘uses a ventilator for at least 8 hours per day’;  does not apply in the current case;

(d)  ‘has faecal incontinence day and night’;  evidence suggests mainly at night, but parties accept the criteria is met;

(e)  ‘cannot stand without support’;  no evidence Phillipa’s condition meets this circumstance;

(f)  ‘medical practitioner has certified the child has a terminal condition’;  no evidence Phillipa fits this category;

(g)  ‘requires personal care on two or more occasions between 10 pm and 6 am each day’;  evidence tends to confirm this happens from time to time.  In any event, care is required for much of each day.

18.      In totality, this demonstrates Phillipa meets two of the seven criteria, but the Act requires three or more.  The Tribunal has considerable sympathy with the applicant’s case, but must apply the law as it stands.  The decision of the Social Security Appeals Tribunal dated 31 August 2005 is affirmed and Mrs Hiller’s appeal fails;  she does not qualify for carer payment.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-Time Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  5 April 2006 
Date of Decision  19  April 2006
Solicitor for the Applicant          Applicant appeared on her own behalf
Counsel for the Respondent     Ms Michelle Baulch
Solicitor for the Respondent     Centrelink