Kemp and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1291

Kemp and Secretary, Department of Social Services (Social services second review) [2017] AATA 1291 (17 August 2017)

Division:GENERAL DIVISION

File Number:           2016/5936

Re:George Kemp

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:17 August 2017

Place:Brisbane

The Tribunal affirms the decision under review.

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Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – Carer Allowance – cancellation – whether satisfied qualification criteria – decision under review affirmed

LEGISLATION

Adult Disability Assessment Determination 1999 (Cth)

Social Security Act 1991

Social Security (Administration) Act 1999

CASES

Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534

REASONS FOR DECISION

Member D K Grigg

17 August 2017

INTRODUCTION

1. Mr Kemp was granted a Carer Allowance (“CA”) on 29 October 2013 for the care he provided to his father (“Care Receiver”). However, following a review by the Department of Human Services (“Centrelink”) Mr Kemp’s CA was cancelled on 11 February 2016[1] (“Cancellation Date”).

   [1]           Exhibit 1, T Documents, T6, pages 52-53, Letter from Centrelink to Mr Kemp dated 11 February 2016.

2. Centrelink contends that, at the Cancellation Date, Mr Kemp did not satisfy the qualification criteria set out in section 954(1) of the Social Security Act 1991 (Cth) (“the Act”).

   Claims History

3. Mr Kemp requested a review of Centrelink’s decision to cancel the CA however the Authorised Review Officer (ARO) affirmed the decision to cancel the CA on 28 June 2016.[2]

   [2]           Exhibit 1, T Documents, T 8, pages 60-64, Decision of Authorised Review Officer and notes dated 28 June 2016.

4. Mr Kemp then sought a further review by the Social Services and Child Support Division (“SSCSD”) of this Tribunal. However, the SSCSD rejected Mr Kemp’s claim and affirmed the ARO’s decision on 5 October 2016.[3]

   [3]           Exhibit 1, T Documents, T2, pages 3-6, SSCSD’s Decision and Reasons for Decision dated 5 October 2016.

5. On 26 October 2016 Mr Kemp lodged an application for review of the SSCSD’s decision by this Tribunal.[4]

   [4]           Exhibit 1, T Documents, T1, pages 1 – 2, Application for Review dated 26 October 2016.

   ISSUES FOR DETERMINATION

6. The issue is whether Mr Kemp was eligible for CA at the Cancellation Date pursuant to section 954(1) of the Act.

   RELEVANT LEGISLATION

7. Section 954(1) of the Act prescribes that to qualify for CA for a disabled adult (a care receiver) the following requirements must be met (“Section 954 Requirements”):-

   (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 (ADAT) 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.

8. It is important to keep in mind that medical evidence generated after the Cancellation Date concerning the care receiver’s care requirements can still be considered if it “casts light on” the care requirements as at the Cancellation Date.[5]

   [5]           See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on

   appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97

   ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

   Adult Disability Assessment Tool (ADAT)

9. The ADAT is found in the Adult Disability Assessment Determination 1999 (Cth) (“Determination”). Part 1, Schedule 1 of the Determination sets out the questionnaire that must be completed by the applicant for CA (“Applicant Questionnaire”) and provides a series of questions concerned with identifying the care receiver’s difficulties and care needs. Part 2, Schedule 1 of the Determination is a questionnaire to be completed by the treating health professional of the care receiver (“Professional’s Questionnaire”). Schedule 2 of the Determination sets out how the answers to the Professional’s Questionnaire are to be rated.

10. The minimum score that must be achieved from the Professional’s Questionnaire for Mr Kemp to qualify for the CA is 12 points.[6]

    [6] Section 954(1)(c) of the Act and Schedule 2 of the Determination, Step 5.

    Timing of Assessment

11. Before determining whether Mr Kemp qualified for CA, a preliminary issue arises, namely, what is the relevant date by which Mr Kemp must qualify? Is the date of assessment the date Mr Kemp’s CA was cancelled or is it also relevant whether Mr Kemp meets those requirements at the date of this decision?

12. The High Court has discussed this issue of timing and relevance of subsequent evidence in Shi v Migration Agents’ Registration Authority [2008] HCA 31 (“Shi”). In Shi the High Court noted that the Administrative Appeals Tribunal Act 1975 (Cth) does not specifically provide whether the Tribunal’s review is of the decision made based on the evidence available at the time the original decision was made. The High Court held that the question of whether or not the Tribunal is restricted to a consideration of facts and events which had occurred at the time of the reviewable decision is answered by identifying the powers which are to be exercised by the Tribunal and the specific decision to which they are addressed ([at 119], per Kiefel J, as she then was).

13. Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment. A decision made under section 80 is an “adverse determination” within the meaning of s 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[7]

    [7]           See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.

14. Therefore, in order to qualify for the CA, the Section 954 Requirements must have been met at the Cancellation Date, that is, on 11 February 2016.

    REVIEW OF CA ELIGIBILITY

15. Pursuant to Centrelink’s request for a review of the Care Receiver’s care needs, Mr Kemp completed a review of care form, the Applicant Questionnaire, on 5 February 2016[8] and Dr Johnston, the Care Receiver’s General Practitioner, provided the Professional’s Questionnaire, on 1 February 2016[9] (“February Questionnaire”) Based on the information provided by Dr Johnston, the ADAT professional score was 3.50, which is less than the required score of 12, and as a result Mr Kemp’s CA was cancelled.

    [8]           Exhibit 1, T Documents, T5, pages 45-51, Review of Care Form competed by Mr Kemp dated 5 February 2016.

    [9]           Exhibit 1, T Documents, T4, pages 39-44, Medical Report by Dr Johnston dated 1 February 2016.

16. Dr Johnston then provided further information on 4 March 2016 which increased the ADAT professional score to 8.5 (“March Questionnaire”).[10]

    [10]          Exhibit 1, T Documents, T7, pages 54-59, Medical Report of Dr Johnston dated 4 March 2016.

    Is Mr Kemp Eligible for CA?

17. The Secretary submits that section 954(1)(a), (b), (d), and (f) are not in dispute. What is in dispute is the level of care requirements of the Care Receiver at the Cancellation Date.

18. Mr Kemp appeared in person at the Tribunal and gave the following evidence:-[11]

    ·In December 2008, the Care Receiver appointed Mr Kemp as one of his enduring power of attorneys;[12]

    ·Due to his father’s health decline his father had not been able to properly advise Dr Johnson of his care needs for the purpose of Dr Johnson completing the Professional’s Questionnaire;

    ·If he had accompanied his father to the appointments of Dr Johnson, Dr Johnson would have been able to complete the Professional’s Questionnaire more accurately;

    ·His father had decided to change doctors and had not advised Mr Kemp and that transition caused difficulties in disclosing information Dr Johnson needed to complete the Professional’s Questionnaire;

    ·The care his father was receiving in February 2016 was the same amount of care he is receiving now;

    ·The information provided to Dr Johnson by his father in February 2016 that he was continent, able to independently groom himself, use the toilet, feed himself, move around unaided, able to use stairs and bath himself, was incorrect;

    ·After the SSCSD’s decision in October 2016 Mr Kemp realised his father required assistance in providing relevant and accurate information and instructions to Dr Johnston;

    ·The Professional’s Questionnaire completed by Dr Johnston in November 2016 is an accurate reflection of the Care Receiver’s care needs (“November Questionnaire”) as at the Cancellation Date.[13]

    [11]         See also Exhibit 6, Written submissions of Mr Kemp dated 31 July 2017.

    [12]         Exhibit 5, Enduring Power of Attorney dated 17 December 2008.

    [13]         Exhibit 3, Professional Questionnaire Report completed by Dr Johnson dated 24 November 2016.

19. In addition to the February Questionnaire and March Questionnaire, Dr Johnston completed a further Professional Questionnaire on 24 November 2016 (“November Questionnaire”).

20. Annexed to this decision is a Table I have prepared which sets out how Dr Johnston’s answers to the Professional Questionnaire have differed between 1 February 2016 and 24 November 2016.

21. You can see by comparing the answers in the questionnaires which were prepared over a period of nine months that there has been quite a marked change in the extent of help Mr Kemp’s father requires to do everyday activities. In the November Questionnaire Dr Johnston says Mr Kemp’s father requires help daily, whereas in the February Questionnaire he said he did not.  

22. The February Questionnaire scored 3.5, the March Questionnaire scored 8.5 and the November Questionnaire scored 28.

23. At the beginning of the hearing I asked Mr Kemp if the Applicant Questionnaire he completed as part of the review in February 2016 was an accurate and correct reflection of his father’s care needs at that time.[14] Mr Kemp said yes.

    [14]Exhibit 1, T Documents, T 5, pages 45-51, Review of Care Provided form completed by Applicant dated 5 February 2016.

24. The Secretary submits that the Applicant’s Questionnaire scored 12.5 and that the answers provided by Mr Kemp are consistent with the February Questionnaire but very different to the November Questionnaire which Mr Kemp asserts is a more accurate reflection of the Care Receiver’s care needs in February 2016. If the Applicant’s Questionnaire is accurate, as testified by Mr Kemp initially, then the Care Receiver’s needs in February 2016 must have been different to those in November 2016.

25. Mr Kemp says he was his father’s carer in February 2016 which is why he completed the Applicant’s Questionnaire. Pursuant to the Applicant’s Questionnaire Mr Kemp declared that:[15]

    [15]Exhibit 1, T Documents, T 5, pages 45-51, Review of Care Provided form completed by Applicant dated 5 February 2016.

    (a)the information he was providing was correct and accurate and he acknowledged that to give false and misleading information is a serious offence;

    (b)his father:

    (i)could move around the house without help;

    (ii)sometimes falls over;

    (iii)can move to and from a bed, chair or wheelchair without help;

    (iv)sometimes has difficulty hearing;

    (v)always has difficulty seeing clearly;

    (vi)sometimes needs help at night;

    (vii)had never lost control of his bowel or bladder;

    (viii)did not use continence aids;

    (ix)could use the toilet without help;

    (x)eats his food without help;

    (xi)could shower without help;

    (xii)could dress himself without help;

    (xiii)could groom himself without help;

    (xiv)could take care of his own medication without help;

    (xv)needed some help to take care of his own treatment;

    (xvi)had no cognitive function issues;

    (xvii)sometimes withdrew from contact but otherwise had no behavioural issues.

26. When it was put to Mr Kemp that his answers were substantially consistent with those provided by Dr Johnston in the February Questionnaire and that therefore both the February Questionnaire and the Applicant Questionnaire were an accurate snapshot of his father’s care needs in February, Mr Kemp said the answers he gave in the Applicant Questionnaire were not accurate (contrary to what he told the Tribunal earlier in the hearing).

27. Mr Kemp said he had found the questionnaire confusing and that some of the answers he had provided were not accurate. For example, he said that his father was incontinent in February and having to wear nappies in February 2016 (despite stating in the Applicant Questionnaire that he was continent) and that his mother had taken care of his father’s incontinence and had not told him about it until later. But how could Mr Kemp not know about this when he declared he was the primary care giver, declared that he cared for his father 5-7 days per week and he lived with his father? Mr Kemp also said his father does need help to be mobile and he got confused by the question and that things fluctuate. Mr Kemp told the Tribunal that he did not know that the answers he gave would mean the CA would be cancelled. That is no doubt true.

28. Mr Kemp told the Tribunal that Dr Johnson was surprised in February 2016 when his CA was cancelled. However, given that the answers provided by Dr Johnson in the February 2016 indicate that Mr Kemp’s father did not have any care needs, why would he have been surprised? Even if Dr Johnson was surprised, and this explains why he provided the March Questionnaire, Dr Johnson still reported that Mr Kemp’s father had no daily care needs and the only answers he changed were to indicate that Mr Kemp’s father sometimes showed aggression and sometimes withdrew from social contact.

29. On 19 December 2016 Dr Johnson and Mr Kemp signed a statement to say that the Care Receiver, has been receiving the same amount of care from Mr Kemp as at the Cancellation Date as he was receiving now and in November 2016. Dr Johnson says the transition from the Care Receiver’s previous doctor caused difficulties in disclosing the information needed to complete the health professional questionnaire within the needed time frame and that the statement is to ensure that there is no misunderstanding that at the time of cancellation Mr Kemp qualified for CA.[16]

    [16]         Exhibit 4, Statement of Mr Kemp and Dr Johnston dated 19 December 2016.

30. The statement provided by Dr Johnston:

    (a)refers to some difficulties in disclosing information but does not explain what those difficulties were and what he did to address them;

    (b)does not expressly say that the information that he previously provided was completely incorrect;

    (c)does not explain what information he relied on to complete the February Questionnaire.

31. Further, Mr Kemp says Dr Johnston was only able to complete the November Questionnaire because he was present at the appointment with his father.

32. The impression I was left with is that Mr Kemp is trying to suggest that his father’s needs were more extreme than they were to obtain the CA from February 2016. However, the reports of Dr Johnston indicate his father has deteriorated since February 2016; this was confirmed by Mr Kemp during the hearing. Mr Kemp kept saying it was “complicated” and more complicated than even he understood. However, Mr Kemp did not elaborate. At one stage Mr Kemp acknowledged that he could see why, on the material, Centrelink had decided the way it did.

33. Even if Dr Johnston’s February Questionnaire was not entirely accurate, it does not explain why Mr Kemp’s Applicant Questionnaire was also inaccurate, as he contends. Mr Kemp declared he was the primary care giver of his father to obtain the CA. I see no reason not to accept that the information provided to Centrelink by Mr Kemp in February was accurate. To find otherwise would be to determine that Mr Kemp provided false and misleading information, but given that Mr Kemp’s Applicant Questionnaire resulted in a low score of 12.5, it seems highly unlikely that Mr Kemp was providing false and misleading information at that time.

34. For the reasons set out above I am not satisfied that the Section 954 Requirements were satisfied at the Cancellation Date.

35. Given that the November Questionnaire now satisfies section 954(1)(c), Mr Kemp could consider making a fresh CA application.

    DECISION

36. Mr Kemp’s appeal fails.

37. The decision under review is affirmed.

    Annexure – Dr Johnston’s Professional Questionnaire Answers

    Between February 2016 and November 2016.

    Questionnaire Question                 Dr Johnston’s Answer             Date of Report

Needs help on a daily basis	No	1 February 2016
Yes	4 March 2016
Yes	1 August 2016
Yes	24 November 2016
Is the care required for a significant period each day	No	1 February 2016
Yes	4 March 2016
No	1 August 2016
No	24 November 2016
Bowels	Continent	1 February 2016
Continent	4 March 2016
Occasional accident	1 August 2016
Occasional Accident	24 November 2016
Bladder	Continent	1 February 2016
Continent	4 March 2016
Occasional accident	1 August 2016
Occasional accident	24 November 2016
Grooming	Independent	1 February 2016
Independent	4 March 2016
Independent	1 August 2016
Needs help with personal care	24 November 2016
Toilet use	Independent	1 February 2016
Independent	4 March 2016
Independent	1 August 2016
Independent	24 November 2016
Feeding	Independent	1 February 2016
Independent	4 March 2016
Independent	1 August 2016
Needs help in cutting spreading butter et cetera	24 November 2016
Transfer	Independent	1 February 2016
Independent	4 March 2016
Minor help	1 August 2016
Minor help	24 November 2016
Mobility	Independent	1 February 2016
Independent	4 March 2016
Independent	1 August 2016
Walks with help of one person	24 November 2016
Dressing	Independent	1 February 2016
Independent	4 March 2016
Needs help but can do about half needed	1 August 2016
Needs help but can do about half needed	24 November 2016
Stairs	Independent up and down	1 February 2016
Independent up and down	4 March 2016
Needs help	1 August 2016
Needs help	24 November 2016
Bathing	Independent	1 February 2016
Independent	4 March 2016
Independent	1 August 2016
Independent	24 November 2016

I certify that the preceding 37 (Thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate

Dated: 17 August 2017

Date of hearing:	1  August 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services