Malgham and Secretary, Department of Social Services (Social security) - [2025] ARTA 648

Malgham and Secretary, Department of Social Services (Social security) [2025] ARTA 648 (7 March 2025)

Applicant/s: Mr Malgham

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/M192212
Tribunal: Member K Hamilton
Place:Brisbane
Date:7 March 2025

Decision:

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that Centrelink obtain a fresh professional questionnaire completed by [Ms] Malgham’s treating health professional and reassess Mr Malgham’s claim for carer allowance.

Statement made on 07 March 2025 at 1:48pm

CATCHWORDS

SOCIAL SECURITY – Carer Allowance – disabled adult – mental health condition – fresh professional questionnaire to be completed – treating health professional – decision under review set aside

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

This matter concerns a decision made by Services Australia – Centrelink (Centrelink) to reject Mr Malgham’s claim for carer allowance (CA) lodged on 7 June 2024.
On 7 June 2024, Mr Malgham lodged a claim for carer allowance in respect of care provided to his daughter, [Ms Malgham]. Centrelink rejected this claim on 27 June 2024.
Mr Malgham sought internal review of the decision to reject his claim and on 20 November 2024 a Centrelink authorised review officer affirmed the decision.
Mr Malgham then applied to the Administrative Review Tribunal (the Tribunal) for independent review.
The matter was heard on 4 March 2025. Mr Malgham participated in the hearing by telephone and gave evidence under affirmation. The Tribunal was assisted by an interpreter in the Arabic language.
The Tribunal had regard to relevant documents produced by Centrelink, numbered as pages 1–123. Prior to hearing, Mr Malgham provided further relevant documents, which were numbered by the Tribunal as pages A1–A12.

ISSUES

The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act) and the Adult Disability Assessment Determination 2018 (the ADAT Determination).
The issue which arises in this case is whether Mr Malgham was qualified for CA at the time of his claim on 7 June 2024 (or within 13 weeks) and, in particular, whether [Ms Malgham] had a qualifying score under the Adult Disability Assessment Tool (the ADAT).

CONSIDERATION

Part 2 of the ADAT Determination provides the ADAT, which is a tool used to assess the level of care required by a care receiver. The ADAT consists of a questionnaire that is to be completed by the person providing the care (the claimant questionnaire) and a questionnaire that must be completed by the care receiver’s treating medical practitioner (the professional questionnaire).
The ADAT Determination also sets out the method for scoring the responses provided on each questionnaire. The scores from each questionnaire are added together to give a total ADAT score.
Section 954 of the Act sets out the qualification criteria for CA where care is provided for a disabled adult in a private home that is shared by the care receiver and the person claiming CA (the care provider). It relevantly requires that:
·     the care receiver is a family member of the care provider;
·     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;
·     because of their disability, the care receiver receives care and attention on a daily basis from the care provider, or from the care provider together with another person.

A disabled adult is defined for the purposes of CA as a person over 16 with a physical, intellectual or psychiatric disability who is likely to suffer that disability for a permanent or extended period: section 952 of the Act.
Centrelink’s documents contain 2 completed professional questionnaires, dated 26 June 2024 and 25 November 2024. Both questionnaires were completed by [Doctor A] (GP) and contain identical responses. Mr Malgham’s claim for CA in respect of care provided to [Ms Malgham] was rejected by Centrelink on the basis that the professional questionnaire score was 8, which is lower than the minimum required professional questionnaire score under the ADAT (12). I am satisfied that the responses in those professional questionnaires have been correctly scored by Centrelink.
However, Mr Malgham told the Tribunal that his daughter is not physically ill, but has very serious mental health conditions. He said that [Doctor A] was correct in saying that physically, [Ms Malgham] can do things like walk, shower and dress herself. However, her mental health is so poor that [Ms Malgham] will not shower, dress herself, feed herself or do anything unless Mr Malgham prompts her and supervise her.
Mr Malgham said that [Ms Malgham’s] mental health condition developed in 2023. Before this time, she was a lovely girl who took great care of her appearance and hygiene. [Ms Malgham’s] condition has been deteriorating and she has not shown any improvement in more than a year.
Mr Malgham said that even when food is prepared for [Ms Malgham], she will not eat unless he tells her to and supervises her while she is eating. [Ms Malgham] has lost a lot of weight in a short time and now only weighs 48kgs.
[Ms Malgham] will not shower or clean her teeth unless Mr Malgham makes her do this. [Ms Malgham] has attempted suicide twice, so when she is showering or toileting Mr Malgham takes her to the bathroom, then waits outside the door so she is not left alone. He tells her each step she has to do through the door and keeps checking that she is alright.
Mr Malgham said that if he does not prompt [Ms Malgham] to go to the toilet, she will occasionally have accidents. She will not get up and take herself to the toilet herself unless she feels pain.
Mr Malgham’s evidence about [Ms Malgham’s] level of functioning and care needs is supported by a questionnaire dated 1 March 2025 provided by [Ms Malgham’s] psychologist, [Psychologist A]. [Psychologist A’s] responses in that questionnaire indicate that:
·[Ms Malgham’s] condition is permanent and not likely to improve - “she is unable to look after herself without being prompted by her father to self-care, or eat. She is a high risk client”.
·[Ms Malgham] is continent in bladder and bowels, but forgets to go to the toilet unless prompted by her father.
·[Ms Malgham] needs help with self-care (i.e. constant reminders). For example, [Ms Malgham] had not brushed her teeth or bathed for over 6 weeks.
·[Ms Malgham] is dependent on her father for toilet use as she remains in a “trance state” and requires help.
·[Ms Malgham] is unable to feed herself and only eats when reminded and fed by her father.
·[Ms Malgham] needs some help with mobility, transfers and going up and down stairs. This includes encouragement and reminders to get up, but [Ms Malgham] also requires physical assistance as her rapid weight loss means she is quite unsteady on her feet.
·[Ms Malgham] is dependent on others for bathing and dressing. She needs reminders to change her clothes and shower and is unable to look after herself due to her psychological condition.
[Psychologist A] also indicates that [Ms Malgham] is cognitively impaired, but an abbreviated mental test was not administered as [Ms Malgham] refused to participate. [Psychologist A] said that [Ms Malgham] shows signs of depression and withdraws from social contact most of the time, and was said to often display aggression towards herself and others.
Mr Malgham clarified that [Ms Malgham] was not aggressive towards her family members but she engages in self-harm and had twice attempted suicide. She no longer talks to any of her friends and spends most of her time in her room. Mr Malgham said that [Ms Malgham’s] condition has not improved since the time he claimed CA.
I accept Mr Malgham’s evidence regarding [Ms Malgham’s] functioning and am satisfied that the responses provided by [Doctor A] in the professional questionnaires provided to Centrelink do not accurately capture [Ms Malgham’s] true level of functioning and her care needs, particularly her need for frequent supervision and encouragement to perform basic self care.
If a decision maker is not satisfied that the responses in a professional questionnaire are an accurate reflection of the person’s disability, emotional state, behaviour and special care needs, a replacement professional questionnaire can be requested. However, the ADAT Determination dictates that only a treating health professional can complete the professional questionnaire. It is not open to me to substitute responses in that professional questionnaire.
The ADAT Determination provides that a treating health professional is a person, or class of persons, approved by the Secretary. The classes of persons approved by the Secretary as treating health professionals who can complete a professional questionnaire for the purposes of a claim for CA for an adult caree include registered medical practitioners, registered nurses, occupational therapists or registered and licenced physiotherapists, but does not include psychologists.
The professional questionnaire completed by [Psychologist A], a psychologist, cannot therefore be used for the purposes of calculating a professional questionnaire score for the purposes of determining [Ms Malgham’s] ADAT score.
However, evidence from [Ms Malgham’s] treating psychologist may be considered by an approved treating health professional in completing a new professional questionnaire that takes into account [Ms Malgham’s] need for assistance in the form of constant supervision and encouragement to perform daily activities.
Centrelink will be directed to obtain a new professional questionnaire from one of [Ms Malgham’s] treating health professionals and reassess [Ms Malgham’s] ADAT score and Mr Malgham’s qualification for CA on the basis of that new questionnaire.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that Centrelink obtain a fresh professional questionnaire completed by [Ms] Malgham’s treating health professional and reassess Mr Malgham’s claim for carer allowance.

Date(s) of hearing:	Tuesday, 4 March 2025
Representative for the Applicant:	Self