Morris and Secretary, Department of Family and Community Services

[2002] AATA 716

DECISION AND REASONS FOR DECISION [2002] AATA 716

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/487

GENERAL ADMINISTRATIVE DIVISION         )          
           Re      CHERYL MORRIS 
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Ms J Cowdroy, Member    

Date23 August 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review..                

(Sgd) J Cowdroy
  Member

CATCHWORDS
SOCIAL SECURITY – carers payment – whether child is a "profoundly disabled child"

Social Security Act 1991

REASONS FOR DECISION

22 August 2002  Ms J Cowdroy

BACKGROUND TO THE APPLICATION

1. By decision dated 13 May 2002,  the Social Security Appeals Tribunal ("the SSAT") reviewed a decision made by Centrelink on 24 December 2001 to reject a claim for carer payment in respect of Mrs Morris' daughter, Kristy.   

1. The Tribunal decided the matter on 23 August 2002 on the basis of the written material before it, with the consent of the parties. That material consisted of the T-documents, prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.  

1. The sole issue for the Tribunal's determination is whether Kristy is a "profoundly disabled child" within the meaning of s 197(2) of the Social Security Act 1991 (the Act). 

APPLICANT'S CASE

1. In her application for review, the applicant contended that the definition of "profoundly disabled child" in the Act is wrong and that exceptions should be made for children in her daughter's situation.  Mrs Morris stated that if her daughter was unable to walk, she would be eligible for the carer pension.  Despite the fact that Kristy's limitations meet most of the criteria under the relevant section of the Act, the fact that she can walk precludes her from meeting the definition of "profoundly disabled child".

1. It was said that although Kristy is able to walk without support, her mobility "causes more strain and pressure on the whole family" (T1-3).  Mrs Morris referred also to the high cost of nappies, due to Kristy's incontinence.  She described her daughter as a child with high needs.

1. Dr Pat Ryan, paediatrician, provided a report dated 15 November 2001 in which he states Kristy suffers from severe autism with intellectual disability and complicated refractory epilepsy.  He states that the fact that the child is independently mobile places a greater burden on her carers than a child who is unable to walk.  This is because Kristy demonstrates a total lack of insight into danger and needs constant supervision.

RESPONDENT'S CASE 

1. The respondent's case is set out in the decision of the authorised review officer dated 21 January 2002.   Essentially, the respondent accepts that Kristy is a child who is fully dependent on her parents for care.

1. The respondent referred to Dr Ryan's report in which it is confirmed that Kristy has a severe multiple disability, in respect of which she needs continuous personal care and will continue to do so for the foreseeable future. Kristy suffers from faecal incontinence day and night and she requires personal care on more than two occasions between 10 pm and 6 am per day. All of those aspects are referred to in s 197(2) of the Act, which sets out the definition of a "profoundly disabled child". Paragraph (c) of that section requires the presence of three or more of a range of circumstances, and Kristy's circumstances meets only two factors.

1. As Kristy's medical condition does not satisfy all of the criteria within the definition of "profoundly disabled child", the qualification for carers payment was not met. 

CONSIDERATION

1. The facts of the matter are not in dispute.   Medical opinion is to the effect that Kristy is a child with multiple medical conditions, who needs and receives a high level of continuous care.

1. Section 198 of the Act sets out the criteria for payment of carer payment. It states that a person is qualified for carer payment if the person personally provides constant care for a profoundly disabled child under 16 years of age. Section 197(2) of the Act sets out the definition of "profoundly disabled child":

"A child is a profoundly disabled child if:

(a)the child has either:

(i)a severe multiple disability; or

(ii)a severe medical condition; and

(b)the child, because of that disability or condition, needs continuous personal care for:

(i)6 months or more; or

(ii)if the child's condition is terminal and the child's life expectancy is less than 6 months – the remainder of the child's life; and

(c)the child's disability or condition includes 3 or more of the following circumstances:

(i)the child receives all food and fluids by nasogastric or percutaneous enterogastric tube;

(ii)the child has tracheostomy;

(iii)the child must use a ventilator for at least 8 hours each day;

(iv)the child:

(A)has faecal incontinence day and night; and

(B)if under 3 years of age, is expected to have faecal incontinence day and night at the age of 3;

(v)the child:

(A)cannot stand without support; and

(B)if under 2 years of age, is expected to be unable to stand without support at the age of 2;

(vi)a medical practitioner has certified that the child has a terminal condition for which palliative care has replaced active treatment;

(vii)the child:

(A)requires personal care on 2 or more occasions between 10pm and 6am each day; and

(B)if under 6 months of age, is expected to require care as described in sub-paragraph (A) at the age of 6 months."  [Tribunal's emphasis]

1. Kristy's disabilities include only two of the three circumstances necessary to fulfil (c).  Mrs Morris contends that the definition of "profoundly disabled child" should be reliant on a medical practitioner's opinion, rather than any strict legal definition.  She argues persuasively that the level of care needed by Kristy exceeds that of a child who is not independently mobile.  The Tribunal accepts that this is the case.  The applicant contends that the legislative provisions in relation to mobility or the lack thereof, acts unfairly in precluding her from carers pension.

1. Unfortunately for the applicant, the Tribunal has no discretion in this matter. If Kristy's circumstances do not meet the criteria of a "profoundly disabled child", and that is the finding of this Tribunal, then the applicant does not satisfy the requirements for payment of carer pension.

1. Accordingly, the Tribunal affirms the decision under review.

   I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

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

   Matter Heard on the Papers
   Date of Decision  23 August 2002
   The Applicant Represented Herself
   Solicitor for the Respondent    Ms McDonald, Departmental Advocate