K and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 819
•21 November 2012
[2012] AATA 819
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1195
Re
K
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey and Dr I Alexander
Date 21 November 2012 Place Sydney The Tribunal affirms the decision under review.
.............[sgd]...........................................................
Senior Member J F Toohey and Dr I Alexander
CATCHWORDS
SOCIAL SECURITY – carer allowance – disabled child – whether applicant provides daily care – whether child has a declared disability – whether level of care provide is intense – decision under review affirmed
LEGISLATION
Social Security Act 1991 ss 952 and 953
SECONDARY MATERIALS
Department of Families, Housing, Community Services and Indigenous Affairs et al, “Disability Care Load Assessment (Child) Determination”, Guide to Social Security Law, Ch 3.6.12.
REASONS FOR DECISION
Senior Member J F Toohey and Dr I Alexander
21 November 2012
BACKGROUND
This matter concerns whether the applicant qualifies for carer allowance in respect of his 14-year old daughter. Because the application concerns care provided to a child, the applicant, his wife, their daughter and her general practitioner are not identified here.
K has received carer allowance in respect of his daughter since she was a young child. On 3 August 2011, Centrelink decided he no longer qualified and cancelled his payment. It appears the decision was the result of a routine review of K’s payment following amendments to the Social Security Act1991 (the Act) in July 2010 to the provisions concerning qualification for carer allowance.
On 20 March 2012, the Social Security Appeals Tribunal affirmed Centrelink’s decision.
K and his wife attended a hearing of this Tribunal on 16 November 2012. K receives a carer allowance in respect of his wife, who is on disability support pension. He also receives a carer allowance in respect of their two elder daughters. Only the allowance in respect of his youngest daughter is presently in dispute.
At the conclusion of the hearing, we gave brief oral reasons for our decision that K does not qualify, and has not qualified since 3 August 2011, for carer allowance in respect of his daughter. These written reasons are based on, and expand, our oral reasons.
LEGISLATION
To qualify for a carer allowance in respect of a disabled child under 16, a person must satisfy the criteria in s 953 of the Act.
A disabled child means a person under 16 who has a physical, intellectual or psychiatric disability, and is likely to suffer from that disability permanently or for an extended period: s 952
A person claiming carer allowance must provide care and attention on a daily basis to the child in a private home in which they both live, and either:
(i)the child’s disability must be one which is declared, under s 38E(3) of the Act, to be a recognised disability for the purposes of s 953; or
(ii)the care provided to the child must be given a qualifying rating of intense according to the Disability Care Load Assessment (Child) Determination (the DCLA Determination).
There are other criteria, none of which is in dispute in this case.
THE EVIDENCE
K gave evidence before the Tribunal through an interpreter. We did not require his wife to give evidence. Dr A, who has been the daughter’s general practitioner since 2009, gave evidence by telephone.
Documents before the Tribunal include K’s original application for carer allowance and forms he has completed for Centrelink at different times; reports from Dr A, reports from a psychiatrist at the same practice as Dr A; correspondence from a school counsellor at the daughter’s school; and Centrelink forms and records.
According to reports from Dr A, the applicant’s daughter has suffered from vescico-ureteric reflux, nocturnal enuresis, asthma and eczema from a young age, and from “developmental delay”.
It is plain from K’s evidence, which we accept, that his daughter has a number of physical and behavioural problems. He describes her as often quite “normal”; she attends school and does well. A letter from a school counsellor in 2011 described her as “in the top academic class”, although it also noted concerns about truanting. However, at times she is unwell with a fever or asthma and does not go to school at all, or has to come home during the day. This can happen once a week, or every two or three weeks. Correspondence from the school shows that, in 2012, she was absent on average one day each week and the school was concerned about the effect on her academic achievement.
K gave evidence that his daughter’s behaviour can change without apparent reason, and she becomes withdrawn and depressed and refuses to talk. She can be angry and aggressive and will not cooperate. According to the letter from the school counsellor, there is no evidence of such behaviour at school.
K gave evidence that he also helps his daughter several times a week, as required, with activities such as bathing and dressing herself, and eating. He gave evidence that, when she is feeling well, she is quite capable of doing these things for herself but, when she is depressed or upset or angry, he has to coax her to eat properly and, if she has wet herself at night or refuses to bathe and dress herself, he has to help her. When her eczema is bad, and she will not apply cream, he will help her.
DOES K PROVIDE CARE AND ATTENTION ON A DAILY BASIS?
K gave evidence that his daughter sometimes needs to be coaxed to eat two or three times each week, sometimes less frequently, depending on her mood; the same applies to getting her to bathe and dress, and when she occasionally wets herself at night, he has to help her. It is plain from his evidence that he does not provide these forms of care on a daily basis.
K told us that he gives his daughter her medication for her reflux each morning and evening. He gives her a puffer for her asthma before she goes to school and again at night and, when she needs it, he helps her with her nebuliser. He estimates this help takes him 10 to 20 minutes each day. That is the extent of the care he provides on a daily basis.
It appears that K’s wife also helps their daughter with her medication, meaning it is doubtful that K provides her with daily care and attention. However, we are prepared to accept that he does provide daily care and attention with medication. That said, the care and attention he describes in relation to her medication, while regular, is minimal, and is the kind of care commonly given by parents to children.
ARE ANY OF K’S DAUGHTER’S CONDITIONS A RECOGNISED DISABILITY FOR THE PURPOSE OF THE ACT?
In relation to her “developmental delay”, Dr A gave evidence that he did not diagnose that condition himself but, rather, relied on reports from K’s wife about their daughter’s behaviour at home which he took at “face value”. He was surprised to hear that she was attending school and doing well academically, and agreed there was no medical basis for his comment that she was developmentally delayed.
Dr A gave evidence that K’s daughter’s asthma is moderately severe. However, to his knowledge she had not been admitted to hospital in the time he has been treating her and, while he has discussed a treatment plan for her asthma, he had not prepared a written plan.
In relation to her kidney condition, Dr A gave evidence that his report that K’s daughter suffers from “many urinary tract infections” was based on her mother’s report. In fact, while she reported symptoms on one occasion in 2009, he said there was no evidence in his notes of infection in that time, and testing in 2009 and 2010 was negative for bacterial infection on both occasions.
Dr A gave evidence that he had recommended to her mother that her daughter see a psychiatrist for her bedwetting and her behaviour generally. However, he did not know whether she had in fact seen anyone and he had not followed this up. He gave evidence that, when he sees her, she is “like any other teenager” of her age; she is not very responsive.
Centrelink records show that, on 26 September 2011, a Centrelink officer contacted Dr A to clarify aspects of the medical reports he had provided in support of K’s claim for carer allowance because, on their face, they suggested his daughter was severely disabled in many respects. The officer’s record of that conversation is in evidence. It shows that, after clarifying the questions on the Centrelink form with him, Dr A revised his report to show that K’s daughter’s language skills, feeding, hygiene and dressing skills, social and community skills, and motor and mobility skills were “age appropriate”. Dr A told us that he understood the form was to reflect her condition at its worst but, once it was explained to him that it was to reflect how she was on a daily basis, he amended it as described above.
A list of recognised disabilities for the purposes of carer allowance is set out in Schedule 3 of the DCLA Determination. It comprises moderate to severe physical and intellectual disabilities. None of the disabilities or conditions suffered by K’s daughter is listed. It follows that K can only qualify for carer allowance if he satisfies the alternative criterion of providing a level of care that is intense.
DOES K PROVIDE INTENSE CARE?
Care provided to a child is rated according to scores determined on the basis of questionnaires completed by the carer (the Assessment of Care Load questionnaire) and by the child’s doctor (the professional questionnaire). To achieve a qualifying rating of intense, a minimum score must be achieved on both: “Overview of the DCLAD (Child) Scoring Regime”, Guide to Social Security Law, Ch 3.6.12.10.
As it applies to K’s care for his daughter, the DCLA Determination requires him to have a score of 85 on the ALC questionnaire and a score of more than zero on the professional questionnaire.
K gave evidence, which we accept, that a person at a community welfare organisation helped him fill in the ACL questionnaire. It quickly became clear at the hearing that his answers to the multiple choice questions did not accurately reflect, and in fact significantly overstated, the level of care needed by his daughter. For instance, where the form indicated that she needed “a lot” of help with bathing, dressing and feeding herself, K said that was not correct, and she was often able to do those things for herself. He also confirmed that it was also not correct – as the forms indicated – that he spent up to three hours each day helping her with medication. We are satisfied that this was largely a result of K’s limited English language skills.
K gave his evidence before the Tribunal frankly. He did not seek to exaggerate his daughter’s need for care. We are satisfied that any discrepancy between what he told Centrelink and what he said in evidence came about because he had to rely on others to help him.
We are satisfied that, had K completed the Centrelink form according to the evidence he gave before the Tribunal, his score on the ACL questionnaire would be less than 85. We reach that conclusion taking into account that, even based on the questionnaires which K told us overstated his daughter’s needs as well as the level of care he provides, he scored less than 85 (other than one score in August 2011 which is so grossly different from the others that it can only be an aberration).
It follows that K’s care is not intense and he cannot satisfy this criterion.
CONCLUSION
K appeared to us to be an honest and genuine person who has a lot to contend with in caring for his family. However, for the reasons we have given, we are satisfied that the decision to cancel his carer payment from 3 August 2011 was correct.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr I Alexander. .........[sgd]...............................................................
Associate
Dated 21 November 2012
Date(s) of hearing 16 November 2012 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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