KOLHOFFER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2011] AATA 561

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 561

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4455

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARIA KOLHOFFER

Applicant

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

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date16 August 2011

PlaceAdelaide

Decision The Tribunal varies the decision under review.

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

R W DUNNE      
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – applicant received Carer Allowance in respect of her son (care receiver) who has an intellectual disability – son assessed under Adult Disability Assessment Tool (“ADAT”) and results disqualified applicant from receiving Carer Allowance – Carer Allowance subsequently re-granted – review of entitlement to Carer Allowance conducted, including treating health professional assessment – score under ADAT less than 30 or professional assessment score less than 12  – Carer Allowance withdrawn – whether applicant now qualified to received Carer Allowance – decision under review varied.

Social Security Act 1991 (Cth) ss 952, 954(1)

Adult Disability Assessment Determination 1999

Re Abdallah and Secretary, Department of Family and Community Services [2004] AATA 719

REASONS FOR DECISION

16 August 2011   Senior Member R W Dunne      

introduction

1.Ms Maria Kolhoffer (“applicant”) has previously received a Carer Allowance (“CA”) for her son, who is now 24 years of age and has an intellectual disability.  CA has been granted, cancelled and then re-granted because she became ineligible for payment at various times.  As a result of a review of her entitlement and receipt of a treating health professional assessment in March 2010, Centrelink decided that she did not qualify for CA and it was cancelled.  She sought review of the decision, which was affirmed by an Authorised Review Officer and the Social Security Appeals Tribunal (“SSAT”).  She has applied to this Tribunal for review of the decision of the SSAT.

2.At the hearing before me, Ms Kolhoffer represented herself (by telephone) and Ms J Edwards (from the Centrelink Program Litigation and Review Branch) appeared for the respondent. I received into evidence the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1).

issue for the tribunal

3.The issue for determination by the Tribunal is whether the applicant is qualified for CA in respect of the care she provides to her son. 

legislation

4.The legislation that applies in Ms Kolhoffer’s case is contained in the Social Security Act 1991 (“Act”). The provisions that are relevant are those contained in s 952 and s 954(1) of the Act, which follow:

“952     Carer allowance definitions

In this Part, unless the contrary intention appears:

Adult Disability Assessment Tool has the meaning given by subsection 38C(3).

care receiver has the meaning given by subsections 953(1) and (2), 954(1) and 954A(1) and section 954B.

…

disabled adult means a person aged 16 or more who:

(a)      has a physical, intellectual or psychiatric disability; and

(b)is likely to suffer from that disability permanently or for an extended period.

…

954Qualification for carer allowance—caring for a disabled adult in a private home of both the adult and the carer

(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.

Disabled adult does not qualify for carer allowance for another disabled adult

(2)If a person is qualified for carer allowance for a disabled adult, the disabled adult is not able to qualify for carer allowance for another disabled adult.

…”

5.Under s 954(1)(c), for a person to be qualified for CA for a care receiver who is a disabled adult, the care receiver must be assessed and rated under the Adult Disability Assessment Tool (“ADAT”) and given a total score of at least 30, which must include a score of at least 12 given under an assessment by a treating health professional.

6.The ADAT is set out in the Adult Disability Assessment Determination 1999. It requires the completion of a questionnaire by the claimant and by a treating health professional and must be read with s 954(1) of the Act. The ADAT relevantly reads:

“2.1      Questionnaires

(1) Part 1 of Schedule 1 sets out a questionnaire (the claimant questionnaire) about disability, emotional state, behaviour and special care needs of an adult.

(2) The claimant questionnaire may be completed only by a person (the claimant) wishing:

(a) to claim a carer allowance or carer payment, or both, under the Act for the care of an adult; or

(b) to continue to be qualified for receiving carer allowance or carer

payment, or both, under the Act for the care of an adult.

(3) Part 2 of Schedule 1 sets out another questionnaire (the professional questionnaire) about the disability, emotional state, behaviour and special care needs of an adult.

(4)The professional questionnaire may be completed only by a treating health professional.

…”

background and evidence

7.The material facts in this case are not in dispute and may be taken from the reasons in writing of the SSAT.  In 2003, when her son turned 16 years of age and the adult disability criteria became applicable, Mr Kolhoffer’s eligibility for CA was re-tested.  The results of the ADAT disqualified her from receiving CA at that time.  In 2005, she made another claim for CA for her son, the requirements were met and she was re-granted CA.  In 2007, Centrelink reviewed her entitlement to CA, the requirements were not met and CA was cancelled.  It was later reinstated, on appeal. 

8.In March 2010, Centrelink again conducted a review of Ms Kolhoffer’s entitlement to CA for her son.  As part of this review, a treating health professional assessment was undertaken, which scored 5.5.  Ms Kolhoffer also provided a “Review of care provided” form (Exhibit R1, T13), which resulted in the allocation of a score of 24.  As the total score on assessment was less than 30, Centrelink decided that she did not qualify for CA and it was cancelled.  Ms Kolhoffer sought reconsideration of Centrelink’s decision by submitting two further health professional assessments for her son.  Both these assessments scored only 10 and, as they scored less than the 12 required, they were too low to qualify Ms Kolhoffer for CA.  She sought further review by a Centrelink Authorised Review Officer and by the SSAT, but was unsuccessful in both instances.  After failing in her appeal to the SSAT, Ms Kolhoffer provided a further health professional assessment in September 2010.  Again, the health professional assessment scored only 10, which was too low to qualify her for CA.  She was advised of her failed claim in a letter sent by Centrelink dated 1 October 2010. 

9.In giving her evidence, Ms Kolhoffer said that she could not understand why her CA had been cancelled.  Her circumstances and the circumstances of her son had not changed, but her CA payments had stopped.  She said she believed the health professionals who had met and assessed her son may not have appreciated the extent of his intellectual disability.  When I asked her why her son would not allow her to accompany him to the health professional assessments, she said he insisted on going alone and would refuse to go if she wanted to go with him.  He was very independent and did not like attending the assessments in any event.  When I asked her if she could point to any errors that she could see or was aware of in the health professionals’ questionnaires, she was unable to do so.  She said she thought it was unfair that she had to go through the assessment process in any case, to be entitled to CA. 

consideration

Is the applicant qualified for CA in respect of the care she provides her son?

10.The criteria that are necessary to determine whether a person is qualified for CA for a disabled adult are set out in s 954(1) of the Act. Although Ms Kolhoffer may believe it is unfair that she and her son have to go through the ADAT assessment, that is what the Act requires, and the Tribunal has no discretion to vary that process. Having reviewed the evidence, I am of the opinion that Ms Kolhoffer satisfies the conditions set out in paragraphs (a), (b), (d) and (f) of s 954(1) of the Act. However, she is unable to satisfy the requirements of s 954(1)(c), in that in the most recent treating health professional questionnaires (being those dated 16 March 2010, 31 March 2010, 19 May 2010 and 21 September 2010) the assessments have all scored less than 12.

11.I have been unable to determine whether the questionnaires provided by the various treating health professionals adequately (or properly) assessed the “disability, emotional state, behaviour and special care needs” of Ms Kolhoffer’s son.  In any event, under s 2.1(4) of the ADAT, I am not able to do so.  A health professional questionnaire can only be completed by a treating health professional (see ReAbdallah and Secretary, Department of Family and Community Services [2004] AATA 719 at paragraph 10). At best, I am only able to direct that the respondent should ask for a replacement health professional questionnaire to be completed by another treating health professional. However, to do this, I must be satisfied that the most recent treating health professional questionnaires are incorrect or inadequate and a further questionnaire is required. Having regard to all the evidence in Ms Kolhoffer’s case, I find myself unable to do this. I also note that Ms Kolhoffer herself is unable to point to any error or inconsistency in any of the recent health professional questionnaires. In my view, there is no evidence to suggest that the recent health professional questionnaires in Ms Kolhoffer’s case are not an accurate reflection of the level of intellectual disability of her son.

12.Ms Kolhoffer referred to the fact that treating health professionals frequently moved to and from Mount Gambier and even obtaining an appointment with them was difficult.  As a result, she believed that those who have assessed her son may have not been very familiar with his history and his abilities.

13.Having spoken to Ms Kolhoffer at length on the telephone during the hearing, I appreciate the difficulty she is experiencing in having her son properly assessed by a treating health professional, and perhaps in having the professional questionnaire completed more accurately.  I would suggest that she should seek an appointment with the treating health professional who would be most familiar with her son’s disability.  In addition, I suggest she should try to impress on her son the importance of her accompanying him to meet the treating health professional to conduct the assessment. 

14.The circumstances in which Ms Kolhoffer finds herself are most regrettable and I sympathise with her.  However, given the scoring that has been made by the recent treating health professionals in the assessments they have made, and given the conditions that are imposed in the ADAT, I am unable to provide any assistance to her.

15.Ms Edwards, for the respondent, submitted that both the Authorised Review Officer and the SSAT in the reviews referred to in paragraph 1 above had proceeded on the basis that the date that Ms Kolhoffer’s CA was cancelled was 20 March 2010, and that the correct cancellation date should have been 16 March 2010.  This was the date that the relevant treating health professional (Dr Abeysirigunawardana) completed his professional questionnaire which identified that Ms Kolhoffer was no longer qualified for CA (Exhibit R1, T12, page 64).  In these circumstances, I agree that the correct cancellation date of Ms Kolhoffer’s CA was 16 March 2010 and not 20 March 2010, as was found by the SSAT.

decision

16.For the reasons outlined above, the decision under review is affirmed, but is varied to the extent indicated in paragraph 15 of these reasons.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed:         .....................................................................................
  Associate

Date of Hearing  21 July 2011
Date of Decision  16 August 2011
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Ms J Edwards

Program Litigation and Review Branch