Ibdah and Secretary, Department of Families, Community Services and Indigenous Affairs
[2006] AATA 691
•25 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 691
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/64
GENERAL ADMINISTRATIVE DIVISION ) Re ZAINAB IBDAH Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr E Christie, Member Date25 July 2006
PlaceToowoomba
Decision The Tribunal affirms the decision under review. The earliest date for payment Carer Allowance to be paid to Mrs Ibdah, in respect of her daughter Noor, is 8 July 2004.
The Tribunal raises the possibility for the payment of an Act of Grace payment in the factual circumstances.
..................[Sgd].......................
EK Christie
MEMBER
CATCHWORDS
SOCIAL SECURITY – Carer Allowance – child disability assessment tool – whether Tribunal should go behind assessment of medical professional
Social Security Act 1991 s38D, 952, 953
Social Security (Administration) Act 1999 Clauses 3, 16 (Schedule 2)Child Disability Assessment Determination 2001
Smith and Secretary, Department of Family and Community Services [2003] AATA 784.
WRITTEN REASONS FOR ORAL DECISION
9 August 2006 Dr EK Christie, Member 1. This is an application to review a decision made on 16 January 2006 by the Social Security Appeals Tribunal, that the earliest date for payment of carer allowance to Zainab Ibdah, in respect of her daughter, Noor, was 8 July 2004.
2. Noor was born on 8 August 1994. She was nearly 11 years of age when the decision was made to grant the carer allowance to Mrs Ibdah on 7 July 2005.
3. Noor exhibits extreme ranges of behaviour. These behavioural changes were evident about a month before she was diagnosed with diabetes as a six year old. The behavioural changes include kicking, pushing, screaming and aggression – sometimes towards other people. The behavioural problems have increased over time.
4. At the hearing Mrs Ibdah represented herself. The Department was represented by Ms S Dole, a Departmental Advocate.
5. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit R1] and the various exhibits lodged by the parties.
ISSUES TO BE DECIDED
6. The only issue for the Tribunal to decide was whether Mrs Ibdah was entitled to payment of carer allowance, in respect of her daughter Noor, for any period before 8 July 2004.
STATUTORY REQUIREMENTS FOR CARER ALLOWANCE
7. The relevant legislation is contained in sections 38D, 952 and 953 of the Social Security Act 1991 and in the “Child Disability Assessment Determination 2001”. The legislation was introduced to provide a more objective means of assessing eligibility by a treating medical professional. “The previous legislation allowed for assessments which were subjective, included the opinions of lay persons and produced inconsistencies. The perception was growing that children with disabilities that were relatively easily managed were being put into the same category as very disabled children”: Smith and Secretary, Department of Family and Community Services [2003] AATA 784.
8. Section 952 of the Social Security Act contains the following definitions for “Carer Allowance’:
“952 In this Part, unless the contrary intention appears:
….
Care receiver has the meaning given by subsections 953(1) and (2) and 954(1).
Child Disability Assessment Tool has the meaning given by subsection 38D(4).
Disabled child means a person aged under 16 who:
(a) has a physical, intellectual or psychiatric disability;”
9. Section 38D of the Social Security Act provides for the use of a “Child Disability Assessment Tool” for assessing the functional ability, behaviour and special care needs of a person aged under 16:
“38D(1) [Secretary may devise test] The Secretary may, by determining in writing:
(a) devise a test for assessing the functional ability, behaviour and special care needs of a person aged under 16; and
(b)provide a method of rating the person by giving him or her, on the basis of the results of the test, a score in accordance with a scale of the kind described in subsection (2).
38D(2) [Scale] The scale referred to in subsection (1) is a scale that provides for a range of negative and positive scores and under which:
(a)a negative score indicates an absence of a physical, intellectual or psychiatric disability at a significant level; and
(b)a positive score indicates the presence of a physical, intellectual or psychiatric disability at a significant level.
38D(3) [Recognised disability] The determination may, in addition, declare that a physical, intellectual or psychiatric disability specified in the determination is a recognised disability for the purposes of section 953.
38D(4) [Determination] The determination, in so far as it provides (in accordance with subsections (1) and (2)) for a test for assessing, and a method of rating, the functional ability, behaviour and special care needs of a person aged under 16 is, in this Act, referred to as the Child Disability Assessment Tool.”
10. Section 953 of the Social Security Act sets out the requirements for “qualifying for carer allowance when caring for either 1 or 2 disabled children. The relevant parts of this section for Mrs Ibdah’s case are:
“A person is qualified for carer allowance for a disabled child (the care receiver) if:
(a)…
(b) ...; and
(c) either of the following applies:
(i)the disability from which the care receiver is suffering is declared, under subsection 38D(3), to be a recognised disability for the purposes of this section;
(ii)the care receiver has been assessed and rated, and been given a positive score of not less than 1, under the Child Disability Assessment Tool , being a score calculated on the basis of a professional questionnaire score greater than 1; and …”
11. Schedule 3 of the Child Disability Assessment Determination (2001) does not contain Insulin Dependent Diabetes, and therefore, Insulin Dependent Diabetes is not a “recognised disability” for the purposes of subparagraph 953(1)(c)(i) of the Act. Therefore, Noor’s disability must be assessed under 953(1)(c)(ii) of the Act using the Child Disability Assessment Determination (2001).
12. The Child Disability Assessment Determination (2001) sets out the details of the “Child Disability Assessment Tool” that is used to assess the functional ability, behaviour and special care needs of a person aged under 16.
“PART 2 CHILD DISABILITY ASSESSMENT TOOL
2.1 Questionnaires
(1) Part 1 of Schedule 1 sets out a questionnaire (the claimant questionnaire) about the functional ability, behaviour and special care needs of a person aged under 16.
(2) The claimant questionnaire may be completed only by a person (the claimant) wishing:
(a)to claim a carer allowance under the Act for the care of a person aged under 16; or
(b)to continue to be qualified for receiving a carer allowance under the Act, for the care of a person aged under 16.
(3) Part 2 of Schedule 1 sets out another questionnaire (the professional questionnaire) about the functional ability, behaviour and special care needs of a person aged under 16.
(4) The professional questionnaire may be completed only by a treating health professional.
2.2 Testing method
(1) The test for assessing a person’s functional ability, behaviour and special care needs is the assessment, under this Part, of the answers given in relation to the person in the 2 questionnaires mentioned in section 2.1.
(2) The following steps are carried out for the test:
(a) the Secretary must be satisfied that a completed professional questionnaire is an accurate reflection of the functional ability, behaviour and special care needs of the person concerned;
(b) a score must be calculated;
(i) using the rating method mentioned in section 2.3; and
(ii) on the basis of the answers given in the questionnaire.
(3) If the Secretary is not satisfied that the professional questionnaire is an accurate reflection of the person’s functional ability, behaviour and special care needs, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional.
(4) If the score calculated in paragraph (2)(b) is not greater than 0, the test is taken to be completed.
(5) If the score calculated in paragraph (2)(b) is greater than 0, the test is taken to be completed only if a claimant questionnaire is completed.
(6) If the score calculated under paragraph (2)(b) is greater than 0 and a claimant questionnaire has been completed, a score must be calculated on the basis of the answers given in that questionnaire using the rating method mentioned in section 2.3.
2.3 Rating method
(1) Steps 1 to 12 in Schedule 2 set out the method for rating a person, on the basis of the answers given in each questionnaire completed in relation to the person.
(2) The method gives the person a score:
(a) in accordance with the scale mentioned in subsection 38D(2) of the Act; and
(b) that determines whether the person is a care receiver to which subparagraph 953(1)(c)(ii) or paragraph 953(2)(c) of the Act applies.
(3) For all calculations in Schedule 2, numbers extending to more than 2 decimal places are to be rounded to 2 decimal places.
Part 3 Recognised disability
3.1 Recognised disabilities
For section 953 of the Act, the physical, intellectual and psychiatric disabilities set out in Schedule 3 are recognised disabilities.
Note See subpara 953(1)(c)(i) of the Act for the application of this determination.”
STATUTORY REQUIREMENTS FOR COMMENCEMENT DATE FOR THE PAYMENT OF CARER ALLOWANCE CLAIMS
13. Clause 3 of Schedule 2 of the Social Security (Administration) Act 1999 provides that, generally the start day in relation to a social security payment is the day on which the claim is made. However, clause 16 of this Schedule provides an exception with respect to claims for carer allowance for a disabled child.
14. Clause 16(2) of Schedule 2 of the Social Security (Administration) Act 1999 is relevant in Mrs Ibdah’s case as it specifies requirements which allow carer allowance to be paid 52 weeks before a successful claim is lodged.
“If:
(a)a person is qualified for carer allowance for a care receiver who is a disabled child…; and
(b)the person makes a claim for carer allowance more than 52 weeks after the day on which the person became qualified for the allowance;
The person’s start day in relation to the allowance is the first day of the period 52 weeks ending immediately before the day the claim was made.”
EXPERT MEDICAL EVIDENCE OF CHILD DISABILITY ASSESSMENT OF NOOR IBDAH BY TREATING DOCTORS: 2001-2005
15. Mrs Ibdah lodged four claims for carer allowance over time: 29 June 2001, 1 September 2003, 1 December 2004, and 7 July 2005. The latter claim ultimately proved to be successful (on 22 July 2005) following the Department receiving a “Carer Allowance Functional Assessment for a child – under 16 form” [“Functional Assessment Form”] (T24, folios 134-142).
16. Dr D Adsett completed the Functional Assessment Form in relation to the first claim lodged on 29 June 2001. He allocated a score of –3.71 for Noor. As a score of 0 was allocated to Mrs Ibdah’s level of care, the total score under the Child Disability Assessment Tool, with respect to the claim lodged on 29 June 2001, was - 3.71 for Noor.
17. Dr JK Lamb completed the Functional Assessment Form in relation to the second claim lodged in 1 September 2003. He allocated a score of -1.77 for Noor. As a score of 0 was allocated to Mrs Ibdah’s level of care, the total score under the Child Disability Assessment Tool with respect to the claim lodged on 1 September 2003 was -1.77.
18. Dr V Salehi completed the Functional Assessment Form in relation to the third claim lodged on 1 December 2004. She allocated a score of -1.94 for Noor. As a score of 0 was allocated to Mrs Ibdah’s level of care, the total score under the Child Disability Assessment Tool with respect to the claim lodged on 1 December 2004 was -1.94.
19. Dr V Salehi completed the Functional Assessment Form in relation to the fourth claim lodged on 7 July 2005. She allocated a score of +2.02 for Noor. Together with the score of +1.50 for Mrs Ibdah’s functional assessment, the total score under the Child Disability Assessment Tool, with respect to the claim lodged on 7 July 2005, was +3.52.
20. The Tribunal raised with the parties the fact that, in completing the Functional Assessment of Noor in 2004 and 2005, Dr Salehi had answered all 16 questions on both occasions with the exception of “Question 15: Behaviour”. In December 2004 she had not ticked any of the six options for this question. However, in July 2005 she had ticked the option:
“Child persistently attempts to leave or abscond from the treatment or assessment setting (M9-d).”
21. Given Ms Ibdah’s evidence that the behavioural problems of Noor had persisted since the time of the diagnosis of diabetes, the Tribunal decided to call Dr Salehi to give evidence in regard to explain her differential response to Question 15.
22.Dr Salehi’s evidence in this regard, can be summarised as follows:
“(a)She did not complete Q15 in December 2004 because she believed Noor’s diabetes condition was such that the carer allowance would be granted to Mrs Ibdah.
(b)She found the questions asked in the Functional Assessment Form to be difficult and complex and difficult to understand in relation to the evaluation of diabetes.
(c)In December 2004, because of her concerns as to the relevance and applicability of the questions on the Functional Assessment Form for evaluating diabetes, she believed that the Tables and Criteria had limitations in assessing the functional capacity of a diabetic child.
(d)She said that, in December 2004, she had further difficulty in the responses she received from Noor at this time: Noor did not want any box marked to indicate that she was “disabled”. Consequently, some answers Noor had given to Dr Salehi reflected this aspect.
(e)Accordingly, in July 2005, when confronted a similar situation once more, she sought advice from Diabetes Australia before completing the Functional Assessment Form. This advice had offset the problems she had in completing the Form in December 2004.”
23. Finally, Dr Salehi conceded that, based on her entire knowledge of clinical history of Noor from June 2004 – July 2005, Question 15 in the Functional Assessment Form should have been given the same answer in both December 2004 and July 2005 i.e. the option M9-d, would have been satisfied on both dates. Apart from the reasons she gave (see para 22), she stated that the clinical history and information she had available from Noor and Mrs Ibdah in July 2005 was greater compared to December 2004.
24. Furthermore, she clarified her position in relation to her conclusions on functional assessment, in December 2004, for “Question 15 – Behaviour”. In her oral evidence at the Tribunal hearing, she stated:
“I was uncertain whether I would have made this conclusion in December 2004 [with the existing information] as I had more history available in 2005. In 2005 I had more information to make a better judgment”.
CONSIDERATION OF THE ISSUES
25. It is very clear to the Tribunal from Mrs Ibdah’s evidence that she and her husband saw the need as to care for the health and well being of their daughter Noor as paramount. They have made many personal sacrifices in their own lives in order to fulfil this goal.
26. Dr Salehi’s evidence made clear that there were many reasons why the Functional Assessment which she completed in December 2004 resulted in a score less than 1 – resulting in Mrs Ibdah’s claim being unsuccessful. The notes provided for Treating Doctors to assist in completing this form states that:
“•It is not expected, or required, that a full investigation of the child’s abilities be conducted for each functional category.
•If practical, decisions about the child’s best abilities should be based on observation or testing of the child during consultation.
• The decision may also be based on:
-assessments you have made on previous occasions (if still valid);
-recent assessment made by other treating health professionals (written or oral);
-information from the parent/carer, teachers, allied health professionals (written or oral);
-Any combination of the above.”
27. However, Dr Salehi was “uncertain” whether, in December 2004, she would have ticked the option on “Question 15 – Behaviour” (as she had in July 2005) because of the history and information she had available at this time. Accordingly, the Tribunal cannot be satisfied, at the legal standard of proof, that the same conclusion for “Question 15 – Behaviour”, would apply in December 2004 and July 2005 because of the absence of objective medical evidence in December 2004. Consequently, the Tribunal cannot see any justification for going behind the assessment of Dr Salehi in December 2004.
28. Given the above findings, the Tribunal cannot find any justification for going behind the assessments of Dr Adsett (June 2001) or Dr Lamb (September 2003).
29.Based on the above findings the Tribunal concludes that:
- The statutory requirements [in s 953(c)(ii)] i.e. to qualify for carer allowance for a disabled child requiring a positive score greater than 1 on the basis of a professional questionnaire, were first satisfied on 7 July 2005; and
- The correct start date for Mrs Ibdah’s claim for carer allowance is 8 July 2004: Clause 16(2) Social Security (Administration) Act 1999.
30. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The Social Security Act gives the Tribunal no other option than to make such a finding. There is no discretion in the legislation for the Tribunal to make any other decision based on the application of the relevant statutory requirements that set out the questions of law that must be addressed by the facts before the Tribunal.
31. However, the Tribunal does raise for consideration by Mrs Ibdah and the Department, the Commonwealth Policy Guideline, “Act of Grace Payments”.
32. The Commonwealth Policy Guideline for Act of Grace Payments [Attachment C to Finance Circular 2000/01] states as follows:
§ “The Australian Government may provide discretionary assistance in some cases by act of grace payments, or by waiving debts owed to the Australian Government. In general, this assistance may be granted where it is considered that the Australian Government has a moral responsibility to provide assistance, rather than a legal responsibility.
§ This may be because of an action, or failure to act, by an Australian Government agency. Such an obligation may also arise because of the unforeseen and anomalous operation of a federal law or program (Emphasis added).
§ However, the act of grace and waiver provisions are not intended as a means to correct anomalies in federal law or administration that should be rectified by other means. Nor are they intended as an alternative to settlement of legal claims.
§ The conditions under which act of grace claims are determined can broadly be characterised as where the Commonwealth considers it has a moral obligation, as opposed to a legal obligation, to provide redress because (Emphasis added):
(a) the Commonwealth’s direct role, acts or omissions in relation to the particular case has caused an unintended or inequitable result for the individual or entity concerned;
(b) the application of Commonwealth legislation has produced a result that is unintended, anomalous, inequitable or otherwise unacceptable in a particular case (Emphasis added); or
(c) the matter is not covered by legislation or specific policy, but it is intended to introduce such legislation or policy and it is considered desirable in a particular case to apply the benefits of the relevant provisions prospectively.
§ The act of grace power is a unique discretion given to the Minister for Finance and Administration to make payments to persons who may have been unintentionally disadvantaged by the effects of Commonwealth Government legislation, actions or omissions and who have no other viable means of redress.
§ The act of grace power should not be seen as an alternative to other viable avenues of redress but rather as a remedy that may only be applied in special circumstances to ensure consistency and equity in the impact of Government activities.
§ The authority to act of grace payments is provided by s33 of the Financial Management and Accountability Act 1997 (the FMA Act), under which the Minister for Finance and Administration, or the Minister’s Parliamentary Secretary, may authorise a payment if he or she considers it appropriate to do so because of special circumstances
§ Act of grace payments can arise from any sphere of Commonwealth administration. As implied by s 33(1) of the FMA Act, the Minister has an unfettered discretion to determine each act of grace request on a case by case basis and as such, it is not appropriate to specifically define special circumstances.”
33. In relation to the Departmental “Act of Grace Policy”, the Tribunal considers that there is no issue for a claim under the Departmental Policy, “Compensation for Detriment Caused by Administrative Error”, as there is no issue of departmental administrative procedures that would have applied to Mrs Ibdah’s circumstances.
34. In any external consideration of the possibility for an Act of Grace Payment, due regard must be given to the following aspects of the evidence and information before the Tribunal:
(i)A Tribunal finding that Mrs Ibdah was a credible witness who answered all questions asked of her honestly and in a forthright manner;
(ii)The oral evidence of Dr Salehi and that her assessment of clinical history and information over the entire period June 2004 to July 2005 would now lead her to a revised professional opinion. That is, in relation to “Question 15 – Behaviour”, Noor would come within the option: “child persistently attempts to leave or abscond from the treatment or assessment setting”, in December 2004 and July 2005. The Tribunal considers the reasons Dr Salehi gave for not ticking any option for “Question 15 – Behaviour” in December 2004 are plausible (see paras 22 to 24).
35. In these circumstances, the Child Disability Assessment Tool would need to be recalculated in order to determine whether a positive score, greater than 1 arises. Were this to be the case, then an Act of Grace payment may be a pathway for Mrs Ibdah to pursue on the basis that the statutory requirements to qualify for carer allowance were first satisfied on 1 December 2004.
36. In relation to the Act of Grace policy, the Tribunal considers that the legal outcome in Mrs Ibdah’s factual circumstances, may have led to a result that is an “unintended anomalous, inequitable, unjust or otherwise unacceptable result”. On consideration of the overall circumstances, it may even lead to a conclusion “that there is a moral obligation on the Commonwealth to make a payment”.
37. The Tribunal emphasises that it has no power whatsoever to order that an Act of Grace Payment be made to Mrs Ibdah. The process for such a payment is for Mrs Ibdah to make a claim to the Department for an Act of Grace payment and to request that her claim be assessed under the specified eligibility criteria. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but the Minister for Finance or their appointee.
38. For all of the above reasons, the Tribunal affirms the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member Signed: .......................................................................................
B. Hitchcock, Admin AssistantDate/s of Hearing 25 July 2006
Date of Decision 25 July 2006
Date of Written Reasons 9 August 2006
The Applicant represented herself
For the Respondent Ms S Dole, Departmental Advocate
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Legitimate Expectation
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Act of Grace
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