Julianne Rabbas and Secretary, Department of Social Services

[2014] AATA 637

[2014] AATA 637 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0219
Re	Julianne Rabbas
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	4 September 2014
Place	Sydney

The decision under review is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – carer allowance – professional questionnaire – whether discretion to alter results of questionnaire – whether carer allowance can be back dated – no discretion to change a professional questionnaire – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 954(1)(c)

SECONDARY MATERIALS

Adult Disability Assessment Determination 1999

REASONS FOR DECISION

Dr Ion Alexander, Member

4 September 2014

BACKGROUND

1. On 20 March 2013 Ms Rabbas lodged a claim for carer allowance in respect of her adult daughter (the care receiver).

2. Ms Rabbas’ claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that the claimant did not attain a sufficient score, in particular a score of at least 12 under the professional questionnaire, under the Adult Disability Assessment Tool (ADAT) pursuant to s 954(1)(c) of the Social Security Act 1991 (the Act) .

3. In January 2014 Ms Rabbas obtained two updated medical reports and lodged a new claim which proved to be successful and she is now receiving carer allowance.

4. In these proceedings Ms Rabbas seeks review of the decision of the SSAT on the basis that the medical reports done in January should be used in the assessment of her earlier claim which should result in a retrospective  payment of her carer allowance.

5. Ms Rabbas attended the hearing by telephone and was self-represented.

   ISSUES

6. The criteria for qualification of carer allowance for an adult with a disability is set out in section 954 of the Act. This section provides in part:

   (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.

7. It is agreed that subsections (1)(a),(b),(d) and (f) are satisfied.

8. The issue before the Tribunal involves subsection 954(1)(c), which provides for an assessment using the Adult Disability Assessment Tool (ADAT).

9. The ADAT provides a measure of the special care needs of an adult and involves completing two questionnaires, one by the claimant (the claimant questionnaire)  and one by a treating health professional ( the professional questionnaire).

10. Subsection 954(1)(c) requires that the claimant achieve a total minimum score of 30, which must include a minimum score of 12 for the professional questionnaire. 

11. Schedule 2 of the Adult Disability Assessment Determination 1999 (the Determination) provides for values to be assigned against the answers to each questionnaire. The values are then added together to produce a score.

12. The ADAT questionnaires submitted with the original decision resulted in a total score of 18, comprised of 10 from the claimant questionnaire and 8 from the professional questionnaire.

13. Upon review by the Department’s authorised review officer in September 2013, the total score was increased to 19.5, with a score of 10 from the claimant questionnaire and 9.5 from the professional questionnaire.

14. At the SSAT hearing, Ms Rabbas told the SSAT that the answers she provided in her questionnaire of 22 March 2013 were not accurate. The SSAT decided to re-score the questionnaires and found a score of 24.5 on the claimant questionnaire and 9.5 on the professional questionnaire, however as the score on the professional questionnaire remained below the minimum score of 12, the SSAT found that Ms Rabbas still did not meet the requirements of s 954(1)(c).

15. In January 2014 Ms Rabbas’ claim was successful on the basis of two new professional questionnaires which were scored at 20.5 and 27.5.

16. Ms Rabbas submits that the professional questionnaire scores obtained in January 2014 should be considered as relevant to the time of her original application and that she is entitled carer payment backdated to 20 March 2013.

    EVIDENCE

17. A professional questionnaire dated 7 May 2013 was provided by Dr Elizabeth Birkby, the care receiver’s general practitioner, and resulted in a score of 8.

18. At the hearing Ms Rabbas explained that there was some delay in getting a consultation with Dr Birkby because she was a busy regional practitioner and was leaving her practice to move to Sydney. Ms Rabbas felt that perhaps Dr Birkby had not fully appreciated the extent of her daughter’s special care needs when filling out the questionnaire.

19. It is agreed the calculation of the score of the questionnaire as marked by Dr Birkby is correct.

20. A second professional questionnaire, dated 15 July 2013 and completed by Dr Christopher Lenkic, the general practitioner who replaced Dr Birkby, resulted in a score of 9.5.

21. At the hearing Ms Rabbas suggested that, because of his recent arrival to the practice, Dr Lenkic may not have fully appreciated the extent of her daughter’s special care needs when filling out the questionnaire.

22. Again it is agreed that the calculation of the score, as marked by Dr Lenkic, is correct.

    CONSIDERATION

23. Section 2.1(4) of the Determination provides that the professional questionnaire may be completed only by a treating health professional.

24. Also s 2.2(3) of the Determination provides that if the Secretary, and therefore the Tribunal, is not satisfied that the professional questionnaire is an accurate reflection of the person’s disabilities or special care needs, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional.

25. I read nothing in the Act or the Determination which provides a decision maker with discretion to alter a professional questionnaire, the result of which would be to decide a claimant was eligible for carer allowance from an earlier date, and therefore entitled to back pay following a later, favourable decision. In Worthing and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 246, the Tribunal considered whether the professional questionnaire supporting a later grant of carer allowance could be applied retrospectively to an earlier claim and found at [12] that it could not as “[t]he legislation does not permit a decision maker, including a member of the tribunal, to go behind the answers to the questionnaire.”

26. In the absence of medical evidence contradicting the reports relied upon by the decision-maker at the time of the original decision, or some other compelling reason as to why the professional questionnaires should not be relied upon, the results of the questionnaires should be accepted.

27. Apart from Ms Rabbas’ submissions made in regard to the professional questionnaires provided by Dr Birkby and Dr Lenkic in 2013, I have no evidence which would challenge the accuracy of these reports and no reason to believe that either doctor did not apply their professional judgement with the best information available to them at that time.

    DECISION

28. For the reasons set out above I conclude that at the time of her claim on 20 March 2013 Ms Rabbas did not satisfy the requirements of section 954(1)(c) of the Act because the score in each of the relevant professional questionnaires was less than 12. I therefore find she did not qualify for carer allowance at that time.

29. The decision that Ms Rabbas did not qualify for a carer allowance on 20 March 2013 is affirmed.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

...............[sgd]..................................

Associate

Dated:  4 September 2014

Date of hearing	27 August 2014
Applicant	In person
Advocate for the Respondent	Mr S Misrachi, Department of Human Services