Lang (Now Roberts) and Department of Family and Community Services

[2000] AATA 413

DECISION AND REASONS FOR DECISION [2000] AATA 413

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V1999/631

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      CATHY LANG – NOW ROBERTS           
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES         
  Respondent

DECISION

Tribunal       Miss E. A. Shanahan, Member     

Date29 May 2000

PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and remits the matter for reconsideration by the Department in accordance with the Directions and recommendations of the Tribunal.       

..….(Sgd) E. A. Shanahan.........
  Member
CATCHWORDS
SOCIAL SECURITY – child disability allowance – administrative error or misinterpretation of medical report – error in cancelling of Child Disability Allowance
Social Security Act 1991 ss. 952, 952A, 961
Child Disability Assessment Determination 1998
Gibbons and Secretary, Department of Family and Community Services [1999] AATA 994

REASONS FOR DECISION

29 May 2000            Miss E. A. Shanahan, Member     

1. Between the date of the application for review, namely 9 June 1999, and the hearing of this matter before the Administrative Appeals Tribunal on 17 February 2000, the applicant, Mrs Cathy Lang married and is now known as Mrs Cathy Roberts.  The file and all documentation have been amended to reflect her current marital status. 

2. Mrs Roberts, the applicant, seeks review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 26 April 1999, wherein the SSAT affirmed the decision of the delegate of the Secretary to the effect that Mrs Roberts' claim for Child Disability Allowance in respect of her daughter Melanie James was not sustained on the basis that Melanie was not a disabled child.  The decision of the delegate was made on 1 May 1998 and affirmed by an Authorised Review Officer ("ARO") on 2 November 1998.  The initial claim for Child Disability Allowance ("CDA") was made on 27 February 1991 and the allowance granted on 21 March 1991.  The disability affecting Melanie James is that of nephrotic syndrome, focal glomerular sclerosis of the kidney. 

3. At the hearing before the Tribunal the applicant Mrs Cathy Roberts was self-represented and assisted by her husband, Mr Roberts.  The Secretary of the Department of Family and Community Services was represented by Mr Michael Todd, an advocate for Centrelink.

4. Mr Todd advised the Tribunal that in May 1998, pending the introduction of the Child Disability Assessment Determination 1998 effective on 1 July 1998, the Department reassessed something like 109,000 CDA recipients out of which some 21,000 were subsequently cancelled.  Mrs Roberts' allowance fell within these 21,000 cancellations.  Whilst the Department has the ability to review any allowance at any time, this would appear to have been a major survey of all CDAs prior to introduction of the new legislation.

5. As part of that review process, a treating doctor's report was sought from Dr Harley Powell, Senior Nephrologist at the Royal Children's Hospital, who had treated Melanie James for many years.  Dr Powell's report is detailed in the T documents at pages 18–21.  Dr Powell provided the diagnosis of steroid responsive nephrotic syndrome with "Frequent relapses in the past but no relapses for many months (years)".  Many subsections in the report were left unanswered or, what in retrospect now seems to be, incomplete.  For example, it was stated that there were no admissions to hospital in the year ending 4 March 1998.  To the question "How long is extra care needed because of the disability?", the answer was less than "12 months".  On the basis of this medical report one P Kelly, Centrelink Manager in Box Hill, determined that the allowance should be cancelled as the condition was basically resolved as of 1 May 1998.  Mrs Roberts (then Lang) had completed a review declaration on the 12 March 1998 which in general terms indicated there had been no change in the condition of her daughter Melanie James.  On 19 September 1998 Mrs Roberts submitted a new claim for CDA with respect to her daughter Melanie James.  This was accompanied by a further medical report by Dr Powell, dated 16 October 1998, wherein the primary diagnosis was relapsing steroid-responsive nephrotic syndrome.  This treating doctor's report was made in accordance with the new legislation introduced on 1 July 1998.  Melanie's condition did not fall within the recognised disabilities detailed in this legislation.  Dr Powell's report stated that Melanie did not require extra care and attention for 14 hours or more per week and that she was affected by the condition for some 13 to 23 days per year.  The functional assessment provided was that of a near normal child (see details pages 51–54 of T documents). 

6. As a result of these reports, several assessments were made by the Department of Family and Community Services using the Child Disability Assessment Tool.  This resulted at various times in a CAR score of 1.88, a 0.28 score and treating doctor's score of –1.60.  In accordance with Schedule 2, s. 2.3 Child Disability Assessment Determination 1998, the application of the rating method resulted in Melanie James being assessed as not being a disabled child.  By letter dated 14 July 1998 the Department advised Mrs Cathy Lang (now Roberts) of their decision.  The applicant sought reconsideration of this decision and lodged a new claim for CDA on 19 September 1998.  On 2 November 1998 Mr Kevin Ritchie, ARO, affirmed the decision noting there had been a delay of some six days in him receiving the referral.  This was attributed to the original decision-maker having been unable to contact the applicant. 
   Evidence of Mr and Mrs Roberts before this Tribunal

7. The applicant gave evidence that her daughter Melanie James was diagnosed with nephrotic syndrome between the ages of one and two years.  A renal biopsy had revealed focal glomerulosclerosis.  The course of the child's illness has been characterised by periods when the disease is under control dispersed with frequent relapses.  Melanie has been required to take medication all of her life and has experienced considerable numbers of side-effects from her medication.  The mainstay of treatment has been Prednisolone in dosages up to 75mg but when control has been poor, Cyclosporin has been prescribed.  In 1998 Captopril was prescribed but had to be ceased after several fainting attacks due to low blood pressure.  Penicillin and aspirin are frequently prescribed, penicillin for infections and the aspirin to reduce clotting.  The applicant described the side-effects of predominantly Prednisolone and Cyclosporin and attributed Melanie's apparent heavy periods to the Prednisolone medication.  The child has had to take several days off from school because of heavy menstrual bleeding.  In addition there have been fluctuating emotional states and frequent depression attributed to the Prednisolone.  In earlier times when on large doses of Prednisolone Melanie had developed some of the side-effects in the form of "moon face".  Melanie also complains of aching knees.  On days when Melanie is unwell and cannot attend school, it has been necessary to employ a carer as the applicant now works full-time.  Melanie has also required extra maths tuition because of lost time at school.  The applicant detailed the cost of Melanie's medication and urine testing sticks.  The applicant performs daily urine testing, daily weighing and recording of this data as well as the daily medications.  At the time of the hearing, the applicant advised that Melanie's protein readings were 1+ and that she was currently taking 20mg of Prednisolone every second day.  Her diet has to be closely supervised as Melanie is on a salt-free diet and her mother has to watch that she does not eat processed foods which might contain a high salt level.  Melanie attends the Nephrology Outpatient Clinic at the Royal Children's Hospital every three to four months.  In addition to her attendance, the applicant advises the treating doctors whenever there is a change in the urinary protein level and drug dosages are adjusted on the advice of the doctor by telephone. 

8. The applicant was of the opinion that the CDA should never have been cancelled and that Melanie should have been assessed under the "older laws before July 1998" (Transcript page 13, line 1).  She likened Melanie's condition to that of children suffering from epilepsy which is controlled by medication except, in Melanie's case, there have been episodes of severe relapse and the need for changed medication.  Melanie's senior treating physician Dr Powell has been optimistic that Melanie will grow out of the condition and has told the applicant that Melanie is quite a well girl even when she is taking up to 75mg of Prednisolone daily. 

9. In cross-examination by Mr Todd, the applicant was of the opinion that Dr Powell's report of March 1999 was an inaccurate reflection of Melanie's condition.  In that report Dr Powell had stated:

   "She is in relapse of nephrotic syndrome for a only a few weeks each year but needs long courses of prednisolone treatment following each relapse.  Melanie has an intermittent condition, which is disabling when active, but with complete normality on treatment between episodes."

The applicant did not believe Melanie was completely normal when on treatment and between episodes of relapse.

1. Mr Greg Roberts, the applicant's husband, also gave evidence before the Tribunal.  Mr Roberts informed the Tribunal that there had been a delay of the receipt of the primary decision to cancel the CDA and that the applicant had not received this until approximately a month after the date on the cancellation advice.  The applicant had rung the Department and been advised that she could not seek review of the decision and must re-apply for the CDA.  He also advised that they had received letters from the Review Officers stating they had not been able to contact the applicant by telephone because they could not find the telephone number.  It is noted that the telephone number is a silent number but it is, however, noted on the front of all application forms.  Mr Roberts referred to the CDA review form (T6 page 22), and in particular, page 34 of the T documents wherein the applicant has written "Although this form is dated 12 January I did not receive it until March".  The review form signed by the applicant was dated 12 March 1998.

2. Mr Roberts substantiated the evidence given by the applicant regarding Melanie's general state of health and stated that since July of 1998, she would have been off all medication for only a period of two to three weeks.  He has had to leave work on several occasions to pick Melanie up from school when she has been unwell, has stayed at home to care for her and frequently takes her to her medical appointments.  When on high doses of Prednisolone and/or Cyclosporin he noted a general puffiness in Melanie's face, heavy menstrual bleeding, moodiness and shaking of the hands.  Mr Roberts was of the opinion that the treating doctors did not take into account the side-effects of the medication when completing the treating doctor's report. 
   Medical evidence before the Tribunal

3. The T documents contained very little in the way of medical evidence with the exception of treating doctor's report on three occasions by Dr Powell.  These were confined to completion of the Centrelink TDR forms. 

4. The applicant, Mrs Roberts, had provided data on the nephrotic syndrome and minimal change focal glomerulosclerosis and the side-effects of Prednisolone and Cyclosporin.  This data had been obtained from the Internet.  (Exhibit A1).  The applicant had also obtained some information under the Freedom of Information Act from Melanie's medical record at the Royal Children's Hospital.  This data related to Melanie's early treatment between 1989 and 1992.  No results of recent tests were available.  There was a copy of letter from Dr Margaret Danchin, Renal Registrar, to Melanie's general practitioner, Dr Rick Hooper, dated 6 October 1998.  (Exhibit A1)  This letter stated that as a baby Melanie had Prednisioone resistant nephrotic syndrome which required treatment with both Cyclosporin and Cyclophosphamide.  Although an initial renal biopsy showed minimal change disease, a repeat biopsy showed FSGS (focal segmental glomerular sclerosis).  The possibility of peritoneal dialysis was discussed.  Melanie recently had a prolonged relapse of over three weeks and this had been resistant to Prednisolone and necessitated a course of Cyclophosphamide.  At that time Melanie was lethargic, tired and suffering from headaches.  Her blood pressure was low at 90/50 and she was quite pale.  Urine testing showed only a trace of protein and as a result penicillin and aspirin were ceased as was Cyclosporin and she was commenced on a nine week course of Prednisolone. 

5. The Tribunal was perturbed by the lack of clinical information regarding Melanie James' current state of health.  There was no detailed information regarding the period from 1992 to the present time. 

6. With the agreement of both parties, the Tribunal elected to write to the treating nephrologist, Dr Powell, and obtain a more detailed medical report. 

7. The hearing on 17 February 2000 was adjourned without a decision being made. 

8. Dr Powell's report was received by the Tribunal on 10 April 2000.  It states:

   "I have known Melanie James (Lang-Roberts) since 1988 when she presented with typical steroid responsive nephrotic syndrome of infancy.  Her condition remitted with complete clearing of proteinuria and oedema a few days after commencing treatment with high dose Prednisolone but relapse occurred on reducing the Prednisolone dose.  The relapse cleared on increased Prednisolone dose and a renal biopsy then showed Minimal Lesion Glomerulopathy.
   She had several relapses in 1988 and 1989, so was given a short, 8 week course of Cyclophosphamide which usually reduces the relapse frequency.  However, relapses continued and a further course of Cyclophosphamide was given in 1990 with similar lack of effect.
   Over the next two years she had several relapses all rapidly responding to Prednisolone but in 1992 she had a steroid – resistant nephrotic episode with continued proteinuria throughout most of the year despite treatment with Prednisolone and Cyclosporin.  Repeat biopsy then showed tubular atrophy suggesting that the pathology had changed to the condition called Focal Glomerulosclerosis, although specific glomerular features of that condition were not seen.
   She was then given 6 months of oral Cyclophosphamide in early 1993 and during this time her nephrotic syndrome remitted.  A further relapse in 1994 responded quickly to Prednisolone and she remained well and in remission then until 1998 when a series of relapses commenced again.  These occurred in September 1998, January 1999, May 1999, August 1999, and all responded to high dose Prednisolone with clearing of proteinuria within two weeks.  Relapses occurred when the Prednisolone dose was gradually reduced so, in the last six months, she has been on continuous Prednisolone 20 – 25mg alternate days with complete control of the proteinuria in this time.
   You requested details of her hospital admissions.  These occurred in April 1989, May 1989, February 1990, November 1990, February 1991, October 1991, June 1992, August 1992, November 1992, September 1998 (2 admissions) and November 1998.  All these admissions were for treatment of her nephrotic relapses (mostly intravenous albumin) or for renal biopsy.
   In the last six months she has been free of nephrotic syndrome on continuous Prednisolone treatment.  She has normal renal function, and normal blood pressure and is expected to eventually "grow out" of her nephrotic relapses.  However, the timing of this is quite uncertain and more relapses could well occur when we give her a trial off maintenance Prednisolone in the next few months.
   When in relapse of her nephrotic syndrome, Melanie first develops heavy proteinuria (usually precipitated by an intercurrent viral infection) and after a few weeks of proteinuria she becomes oedematous unless the relapse is terminated by commencing high dose Prednisolone.  We now commence Prednisolone after 4 days of heavy proteinuria and this regime keeps her free of oedema.
   Between relapses Melanie is quite well although her mother feels she has reduced immunity and is more susceptible to recurrent viral infections than a normal child.  The prolonged Prednisolone treatment theoretically could make her more susceptible to infection but the treatment also reduces the severity of symptoms in many intercurrent infections.  Generally we do not see a measurably higher risk of recurrent infection in children on maintenance Prednisolone treatment."

9. This report gives a fuller picture of Melanie James' chronic illness.  It would appear that between 1992 and 1998 Melanie did not require admission to hospital.  This would suggest her disease was relatively stable or at least any relapses responded rapidly to medical treatment.  There were, however, three admissions in 1998 and a further three admissions in 1999 for relapsed nephrotic syndrome.  Whilst Dr Powell expects that she will eventually grow out of her nephrotic relapses, this would appear to be quite unpredictable and if the hospital admissions are taken as an indicator, her relapses have been more frequent in the last two years.  She has required continuous Prednisolone therapy since September 1999.  Dr Powell does not address the side-effects of Prednisolone and Cyclosporin and does not mention the use of Captropril. 

10. Melanie James has chronic renal disease requiring large doses of immuno-suppressive drugs to maintain a status free of the nephrotic syndrome (proteinuria and generalised oedema).  Many of her observed symptoms and signs relate to side-effects from the immuno-suppressive medication.  Between 1994 and 1998, she was free of the nephrotic syndrome but since then has had several relapses and required six admissions to hospital in 1998 and 1999.  It appears to this Tribunal that Dr Powell's report dated 19 March 1999, because of its brevity, was misinterpreted by the primary decision-maker as delegate for the Secretary of the Department of Family and Community Services.  Dr Powell's report was interpreted as showing the disease process had resolved completely.  (T6 page 22)

11. While the applicant sought review of the decision of 1 May 1998, she did not do so within time provided for by the legislation.  She claims there was a delay in receipt of the notification of cancellation of CDA.  As the request for review was out of time she was correctly advised to lodge a new application for CDA.  The evidence before this Tribunal suggests that the medical reports received by the Department may have been misinterpreted leading to the decision that Melanie James' renal disease had completely resolved.  As there is no evidence that Melanie's renal condition has resolved and there is evidence that in 1998 and 1999 the frequency of relapses has increased, the decision under review is set aside and the matter remitted to the Department for reconsideration.

    I certify that the twenty (20) preceding paragraphs are a true copy of the reasons for the decision herein of

    Miss E. A. Shanahan, Member

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  17 February 2000
    Date of Decision  29 May 2000
    The Applicant  Self-represented
    Solicitor for the Respondent    Mr M. Todd, Centrelink