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

[2016] AATA 888

Lababidi and Secretary, Department of Social Services (Social services second review) [2016] AATA 888 (9 November 2016)

Division	GENERAL DIVISION
File Number(s)	2016/2848
Re	Mrs Majeda Lababidi
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	9 November 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Mr Conrad Ermert, Member

CATCHWORDS

SOCIAL SERVICES - qualification for Carer Allowance and Carer Payment - the relevant period - Adult Disability Assessment Tool (ADAT) - self-assessment ADAT score - professional ADAT score - medical report not an accurate reflection of disability, emotional state, behaviour and special care needs - replacement professional questionnaire by another treating health professional - ADAT scores not sufficient to satisfy qualification requirements - decision affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

Adult Disability Assessment Determination 1999

REASONS FOR DECISION

Mr Conrad Ermert, Member

9 November 2016

INTRODUCTION

1. In an application dated 30 August 2014 Majeda Lababidi, the Applicant, lodged a claim for Carer Allowance and Carer Payment with Centrelink in regard to her husband.  On 3 September 2014 the claim was accepted by Centrelink.  Centrelink is the service provider for the Secretary, Department of Social Services (the Respondent).

2. On 8 August 2015 Mrs Lababidi departed Australia for Lebanon.  On 21 September 2015 Centrelink suspended the Carer Allowance and Carer Payment on the basis that she had been overseas for more than the six week portability period.  The Carer Allowance and Carer Payment were subsequently cancelled on 21 December 2015.

3. Mrs Lababidi returned to Australia on 5 November and on the same day she lodged another claim for Carer Allowance and Carer Payment.  In support of her claim, Mrs Lababidi lodged a medical report by Dr Mikhail dated 31 December 2015. 

4. On 5 January 2016 Centrelink advised Mrs Lababidi that her claim for Carer Allowance was denied on the basis that she did not meet the daily care requirements (the original decision).  On the same day, Centrelink advised Mrs Lababidi that it did not accept the report from Dr Mikhail and that her claim for Carer Payment would remain rejected unless she provided a report from another health professional. 

5. Mrs Lababidi did not provide the required report.  The Respondent then procured an assessment by another doctor.  Dr Salib provided a report dated 9 January 2016.

6. On 13 January 2016 Mrs Lababidi requested a review of the original decision.  On 3 March 2016 an Authorised Review Officer (ARO) of Centrelink affirmed the original decision.  On 9 March 2016 Mrs Lababidi requested a review of the ARO decision.  On 10 May 2016 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the ARO decision.

7. This matter is an application for review of the AAT1 decision.

   HEARING

8. Mrs Lababidi represented herself and gave her evidence by telephone with the assistance of an interpreter in the Arabic language.  Mr Nacion of Sparke Helmore represented the Respondent, also by telephone. 

9. At the hearing I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) pages 1 to 110 and the Supplementary T-Documents (ST-Documents) ST1 to ST11, pages 1 to 74.

10. For Mrs Lababidi I took in as evidence the following:

    ·Exhibit A1 – Immigration records;

    ·Exhibit A2 – Dr Mikhail report dated 30 May 2014;

    ·Exhibit A3 – Work Capacity Form dated 30 May 2014; and

    ·Exhibit A4 – Medication List dated 30 May 2014.

11. For the Respondent I took in for consideration the Secretary’s Amended Statement of Facts, Issues and Contentions dated 6 October 2016.

    LEGISLATION

12. The legislation relevant to this matter is contained in the:

    ·Social Security Act 1991 (the Act),

    ·Social Security (Administration) Act 1999 (the Administration Act), and

    ·Adult Disability Assessment Determination 1999 (the ADAD Determination).

    Relevant Period

13. Clause 3 in Schedule 2 to the Administration Act provides the general rule for a start date as the day on which a claim is made. Clause 4(1) in Schedule 2 provides that a person’s qualification for Carer Allowance and Carer Payment is to be considered during the ensuing 13 weeks from the date on which the claim was made.

14. In this matter the relevant period is from 5 November 2015, the date of the claim, for a period of 13 weeks to 4 February 2016.

    Carer Allowance

15. Section 954 of the Act sets out the relevant qualification criteria for Carer Allowance with respect to caring for an adult as follows:

    1A person is qualified for carer allowance for a disabled adult (the care receiver) if:

    (a)…

    (c)The care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and

    Because the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person …

    Carer Payment

16. Section 198 of the Act sets out the relevant qualification criteria for Carer Payment with respect to caring for an adult as follows:

    1A person is qualified for a carer payment if the requirements of this section are met …

    Constant care for disabled adult …

    2The person must personally provide constant care for:

    (a)either:

    (i)     If the person is the only person providing the constant care – a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score calculated on the basis of a total professional questionnaire score of at least 10: or …

    Adult Disability Assessment Tool (ADAT)

17. Part 2 of the ADAD Determination provides for two questionnaires that must be completed to assess the disability, emotional state, behaviour and special care needs of an adult.  One questionnaire is completed by the person’s treating health professional, and the other by the person wishing to make the claim.  These questionnaires are referred to as the ADAT.

    Issues

18. The issues I must decide are whether Mrs Lababidi:

    ·Qualified for Carer Allowance during the relevant period on the basis that her husband had an ADAT score of at least 30, of which the professional questionnaire score was at least 12;

    ·Qualified for Carer Payment during the relevant period on the basis that her husband had an ADAT score of at least 25, of which the professional questionnaire score was at least 10; and

    ·Provided constant care for her husband.

    EVIDENCE

19. In her evidence Mrs Lababidi stated that her husband was extremely ill and that she has to do everything for him. 

20. Mr Nacion referred to the ADAT completed by Mrs Lababidi on 18 August 2014  in which she had ticked the following responses to questions:

    ·1. Move around the house – without help;

    ·3. Move to and from bed, chair, wheelchair and walking aids – without help;

    ·9. Use the toilet – without help;

    ·10. Eat their food – without help;

    ·11. Shower or bathe themselves – without help;

    ·12. Dress themselves – with some help;

    ·13. Look after their grooming – with some help; and

    ·14. Take care of their own medication – with some help.

21. Mrs Lababidi agreed that all those answers were correct as at August 2014.  

22. Mr Nacion referred to the AAT1 decision which recorded:

    The Tribunal questioned Mrs Lababidi at length about her care of her husband.  Mrs Lababidi consistently said her husband “sometimes” needs help with things and that some days were better than other days.  She said her husband “sometimes” showered himself but he can’t do it all the time; that she “sometimes” helps him with shaving and cleaning his teeth.  She said her husband “sometimes” needs a little bit of help with eating; he sometimes can cut his own food …

23. Mrs Lababidi said there are definitely many things her husband cannot do.  If the food is hard he cannot cut it. 

24. Asked if her husband’s condition had deteriorated since the AAT1 hearing in May 2016 Mrs Lababidi said the situation is getting worse.  She said that part of his stomach had been removed before they were married and he has never recovered.  Mrs Lababidi also said that her husband has an iron deficiency.  When asked why the stomach problem and iron deficiency were not mentioned in the report of Dr Mikhail she said it was a chronic condition which her husband had had for a long time.  Mrs Lababidi said also that her husband had been diagnosed with tuberculosis in Lebanon but the Australian doctors say it is asthma. 

25. Returning to the August 2014 ADAT questionnaire, Mr Nacion asked whether Mrs Lababidi’s responses referred to her husband’s condition on his good days.  Mrs Lababidi said that he has some good days, but even on his good days he constantly calls for help.  He is worse on a bad day.  She said that in August 2014 he was slightly better than now. 

    TRIBUNAL CONSIDERATION

26. I consider first the ADAT questionnaires and the scores applied to them.

27. On 18 August 2014 Mrs Lababidi completed and lodged a Carer Payment and Carer Allowance review form.  In her evidence she confirmed the correctness of her responses as they applied to her husband on his good days in the relevant period.   The Respondent contends that, when calculated, Mrs Lababidi’s answers provide an ADAT rating of 14.25 points.  Mrs Lababidi does not contest this assessment.

28. I am satisfied that the evidence supports the questionnaire as presented and that the ADAT rating for Mrs Lababidi’s assessment is 14.25 points.  I find accordingly.

29. Dr Mikhail completed professional assessments on 11 April 2007, 2 October 2007 and 31 December 2015.  His responses are identical in each case.  When assessed the responses given by Dr Mikhail resulted in an ADAT rating of 26 points.

30. In a notice dated 5 January 2016 Centrelink advised Mrs Lababidi of their decision that the report of Dr Mikhail dated 31 December 2015 was not accepted as it doesn’t show a true reflection and capabilities of ones [sic] medical condition. I note that Part 2.2(3) of the ADAD Determination provides that If the Secretary is not satisfied that the professional questionnaire is an accurate reflection of the person’s disability, emotional state, behaviour and special care needs, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional. 

31. Centrelink procured a replacement professional questionnaire from Dr Victor Salib.  He provided a report dated 29 January 2016.  When assessed Dr Salib’s report resulted in an ADAT rating of 10.5 points.

32. Mrs Lababidi contends that Dr Mikhail’s assessment should be accepted as he is the treating doctor and has observed her husband’s condition over many years.  She submitted that she has been seen by Dr Salib on only one or two occasions. 

33. Mr Nacion submits that Dr Salib’s report should be preferred over that of Dr Mikhail as:

    ·Dr Mikhail’s latest report is identical to his reports completed in 2007;

    ·Dr Mikhail’s reports are not a true reflection of Mr Lababidi’s conditions and capabilities; and

    ·Dr Salib’s assessments more closely match those presented in Mrs Lababidi’s August 2014 questionnaire and her evidence to the AAT1 hearing.

34. The Secretary’s Amended Statement of Facts, Issues and Contentions dated 6 October summarises in a table the inconsistent responses in the questionnaires of Mrs Lababidi, Dr Salib and Dr Mikhail and the evidence given in the AAT1 hearing.

35. I note the matching responses of Mrs Lababidi and Dr Salib in regard to: mobility around the house, move to and from bed, chair, wheelchair and walking aids, toilet, eating/feeding and showering.  Dr Salib assesses Mr Lababidi as independent in regard to dressing.  This contrasts with Mrs Lababidi’s August 2014 assessment.  It also contrasts with Mrs Lababidi’s evidence at the AAT1 hearing at which she said she always has to help him dress; he can’t tie his belt himself.  Dr Salib assesses grooming as Independent (implements provided).   This is comparable with Mrs Lababidi’s evidence in the AAT1 decision in which she said that she sometimes helps him with shaving and cleaning his teeth. 

36. By contrast, the responses of Dr Mikhail generally reflect a more severe disability than assessed by Mrs Lababidi and Dr Salib.  However, Dr Mikhail’s assessment of dressing is in line with Mrs Lababidi’s assessment and also her evidence to AAT1. 

37. The ADAD Determination provides for a replacement professional questionnaire to be completed by another health professional.  It does not provide the Secretary with a discretion to select detailed assessments from different reports and compile them into a composite assessment. 

38. On balance, I prefer the report of Dr Salib as more accurately reflecting Mr Lababidi’s disabilities and care needs.  As a consequence I find the professional ADAT score to be 10.5.

39. Applying the professional and self-assessed ratings, I find that the total rating is 24.75, with the professional rating of 10.5.  These ratings are insufficient to satisfy the requirements for Carer Allowance which requires a total rating of at least 30 points, of which the professional rating must be at least 12 points.  Neither do the applied ratings satisfy the requirement for Carer Payment which requires a total of at least 25 points. 

40. As Mrs Lababidi does not satisfy the requirements of section 954(1)(c) of the Act in the relevant period, she is not qualified for Carer Allowance, and I find accordingly.  Further, as Mrs Lababidi does not satisfy the requirements of section 198(2)(a)(i) of the Act in the relevant period she is not qualified for Carer Payment, and I find accordingly.

41. As I have found that Mrs Lababidi is not qualified for Carer Payment from the effect of section 198(2)(a)(i) of the Act, there is no need for me to consider the question of whether Mrs Lababidi provides constant care as provided for in section 198(2).

    CONCLUSION

42. The ADAT scores applicable to the relevant period are insufficient to satisfy the qualification requirements of the Act for Carer Allowance and Carer Payment.  This is the same conclusion reached by AAT1. 

    DECISION

43. I affirm the decision under review.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Associate

Dated 9 November 2016

Date(s) of hearing	7 October 2016
Applicant	By telephone
Advocate for the Respondent	Mr Pietro Nacion
Solicitors for the Respondent	Sparke Helmore