Maude and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 803
•10 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 803
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4779
GENERAL ADMINISTRATIVE DIVISION ) Re VIRGINIA MARY MAUDE Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date10 September 2008
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Carer Allowance – Adult Disability Assessment Tool – health professional score – score different on three occasions – no discretion in Tribunal to vary or look behind score - decision affirmed
Social Security Act 1991 ss 38C, 954
Social Security (Administration Act) 1999 s 152
Re Cronin and Secretary, Department of Family and Community Services [2001] AATA 859
Re Cankulovski and Secretary, Department of Family and Community Services [2001] AATA 1034Re Fairhall and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1323
REASONS FOR DECISION
10 September 2008 Senior Member L Hastwell 1. Mrs Virginia Maude (the applicant) is the mother of Kersten Fitzpatrick, who was born on 28 November 1986. Kersten has Asperger’s syndrome as well as some other physical problems.
2. Mrs Maude was a recipient of Carer Allowance for Kersten from 12 February 2004 until it was cancelled by Centrelink on 8 March 2006 on the basis of a Health Professional Assessment of Kerstin’s conditions which was completed as part of a routine review. That assessment did not allocate a sufficiently high point score with respect to Kerstin’s disability for her mother to qualify for Carer Allowance.
3. That decision was affirmed by an Authorised Review Officer of Centrelink on 16 June 2006. It was not until 5 July 2007 that Mrs Maude applied for a review of that decision to the Social Security Appeals Tribunal (the SSAT). The SSAT affirmed the decision on 24 August 2007. Mrs Maude now seeks review of the SSAT decision to this Tribunal.
4. Carer Allowance has now been granted to Mrs Maude with effect from May 2007 on the basis of a fresh application.
5. Mrs Maude was not paid Carer Allowance between the date of cancellation and the date of reinstatement. She seeks payment of an arrears amount for that period on the basis that her caring responsibilities and her costs associated with them did not change during that time.
issues
6. The issue in this case is whether there is any basis upon which Mrs Maude can be paid Carer Allowance for the period 8 March 2006 until 15 May 2007.
7.This involves consideration of:
·whether the requirement of a Health Professional Assessment score of at least 12 of a required point score of at least 30, under a test known as the Adult Disability Assessment Tool, is a mandatory requirement for grant of Carer Allowance;
·if that score is not achieved in the Health Professional Assessment, does the Tribunal have any power to consider the facts and vary the score allocated; and
·is the payment of arrears (if applicable) limited to the date when the application for review was lodged with the SSAT?
legislation
8. Qualification for Carer Allowance for an adult with a disability is set out in s 954 of the Social Security Act 1991 (the Act). The provision with respect to the score under the Adult Disability Assessment Tool is as follows:
“954 Qualification 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:
…
(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.”
9. Section 38C of the Act allows for a test to be devised for assessing a person’s disability, emotional state, behaviour and special care needs. Section 38C provides as follows:
“38C Adult Disability Assessment Tool
(1) The Secretary may, by determination in writing:
(a)devise a test for assessing the disability, emotional state, behaviour and special care needs of a person aged 16 or more; and
(b)provide a method for rating the person by giving him or her, on the basis of the results of the test, a score in accordance with a scale of the kind described in subsection (2).
(2)The scale referred to in subsection (1) is a scale that provides for a range of scores that indicate the different levels of physical, intellectual or psychiatric disability of persons.
(3)The determination is, in this Act, referred to as the Adult Disability Assessment Tool.
(4)The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.”
10. The Secretary of the Department of Family and Community Services made a determination under s 38C on 28 April 1999, entitled the Adult Disability Assessment Determination 1999.
11. Part 2 of Schedule 1 of the Adult Disability Assessment Determination 1999 sets out the content of the questionnaire. Schedule 2 of the Adult Disability Assessment Determination 1999 provides for values to be assigned against the answers to the questionnaire.
12. Section 152 of the Social Security (Administration Act) 1999 (the Administration Act) provides as follows:
“152 Date of effect of SSAT decisions (other than Activity Agreement decisions)
…
(4) If:
(a) a person is given written notice of a decision under the social security law; and
(b)the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and
…
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.”
the relevant evidence
13. Mr and Mrs Maude attended the hearing and gave oral evidence to the Tribunal.
14. Kersten was born with the neurological disability of Asperger’s syndrome. She also has problems with her eye sight and suffers from recurrent patellar dislocations which can require hospitalisation.
15. Kersten requires more care than a person of her age would usually require because of these disabilities. She suffers from panic attacks and anxiety because of her neurological problems and she presents in a complex way. She has the intellectual capacity of a six-year-old with respect to particular social issues, while at other times appears to act more her age. She is recognised as having an intellectual disability and she works on a full-time basis with the Phoenix Society.
16. Her Asperger’s syndrome requires tasks to be explained to her clearly. She has difficulty explaining things herself. She requires prompts for many of the basic tasks of daily living, including combing her hair and cleaning her teeth. She needs a strict routine, as any change in routine can drive her into a state of anxiety and panic.
17. Mrs Maude’s Carer Allowance was cancelled in 2006 when Dr Challa carried out a Health Professional Assessment. When this assessment was applied to the Adult Disability Assessment Tool, a score of 11 was calculated. The overall score on this occasion was 45.
18. Two further Health Professional Assessments were carried out in April and June of that year by a different doctor. Again the score, when calculated by reference to the Adult Disability Assessment Tool, did not achieve the required level of 12.
19. Mrs Maude did not make application for review of the Authorised Review Officer’s decision of 16 June 2006 until July 2007. In 2007 she had re-applied for Carer Allowance and a further Health Professional Assessment gained a sufficiently high score for Carer Allowance to be re-instated.
20. The applicant’s husband, Christopher Maude, also gave evidence. He is supportive of his step-daughter and is also involved in assisting his wife with her care. He confirmed that Kersten is in need of a lot of care and gave many anecdotal examples of the difficulties that they face and the level of care that they need to provide for her.
21. The Tribunal noted the report from Mr Adrian Bauze, the Director of Orthopaedics and Trauma at the Lyell McEwin Hospital dated 12 November 2007 (Exhibit A2) and a letter dated 7 August 2008 from the Phoenix Society (Exhibit A1) which confirmed Kersten’s employment and that she is considered to be a person with disabilities sufficient to work at the Phoenix Society.
mrs maude’s contention
22. Mrs Maude asks the Tribunal to look at the reality of the situation. The level of care that she gives to Kersten has not changed, but the nature of her daughter’s disability is unusual. It does not fit easily into the sort of boxes that Centrelink fit people’s disabilities into. She is frustrated and angry with the system and, to some extent, blames the doctor who carried out the first assessment for not fully understanding or reading the directions in fine print on the assessment.
23. Carer Allowance is financially important to the family. They rent premises in Adelaide and do not own their own home. They have additional expenses associated with the care of Kersten.
24. During the relevant period, Mrs Maude was studying to be a disability carer and under some pressure. She did receive a letter advising her of the right to seek review to the SSAT, but she then became involved in what appears to have been for her a distressing telephone dialogue with the Authorised Review Officer and she did not exercise her right to lodge an application for review until more than 12 months after the original Authorised Review Officer’s decision.
can the tribunal substitute its own assessment under the adult disability assessment tool?
25. The Tribunal accepts the veracity of the evidence given by the applicant and her husband and has no reason to doubt any aspect of their evidence.
26. The relevant legislation has been considered in prior cases. Only the health professional who is carrying out the assessment can complete the Health Professional Assessment form and it is not for the Tribunal to substitute its own assessment for that of the treating health professional (Re Cronin and Secretary, Department of Family and Community Services [2001] AATA 859; Re Cankulovski and Secretary, Department of Family and Community Services [2001] AATA 1034 and Re Fairhall and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1323). The treating health professional applied their own professional judgment in completing the questionnaire and two further assessments by a different doctor, within a short space of time of the first questionnaire, also failed to allocate a score of 12.
27. If Parliament intended that a Tribunal could subsequently review that professional assessment, it is the Tribunal’s view that a discretionary provision would have been included in the legislation. The Tribunal is given no discretion and is bound by the score that was allocated.
28. The terms of s 954 of the Act set out the qualifications for a person to qualify for Carer Allowance for a disabled adult. Those requirements are cumulative and one of these requirements is that at least 12 points must be allocated to the treating health professional score using the Adult Disability Assessment Tool.
29. As such a score was not achieved in this case, then the application must fail as the requirements of the legislation are not satisfied. The Tribunal therefore must affirm the decision of the SSAT.
30. The Tribunal has no doubt that Mrs Maude and her husband put a great deal of effort into caring for Kersten and assisting her to overcome her disabilities to enable her to maintain as normal a life as possible. They are to be commended for their efforts. Three different health professionals have assessed Kersten using the Adult Disability Assessment Tool and they have each reached different scores.
31. Mrs Maude is possibly correct in her assertion that the questionnaire does not necessarily fit well for individuals who have complex disabilities such as those from which Kersten suffers and, in particular, intellectual or neurological disabilities. This may explain the discrepancies in the testing by the different doctors. This is really a matter for her to take up with Government at a policy level.
32. The Tribunal notes that even had the applicant been successful, the fact that she was so late in lodging her application for review to the SSAT prevents her receiving any arrears prior to the date that she lodged that application. She would therefore have not received any payment if she had been successful as she was already receiving Carer Allowance by the time she sought review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member
L HastwellSigned: .....................................................................................
AssociateDate of Hearing 11 August 2008
Date of Decision 10 September 2008
Advocate for the Applicant Self representedAdvocate for the Respondent Mr A Parker
Centrelink Legal Services Branch
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