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

Mosavi and Secretary, Department of Social Services (Social services second review) [2017] AATA 126 (3 February 2017)
Division:GENERAL DIVISION
File Number: 2016/4754
Re:Sam Mosavi
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Date:3 February 2017
Place:Sydney

The decision under review is affirmed.
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Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – carer payment and carer allowance - diabetes mellitus type 1 – behavioural issues – whether qualifying rating of ‘intense’ under determination – whether ACL questionnaire score of 85 or more – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 197B(1), 197B(2)
CASES
Smith and Secretary, Department of Social Services [2016] AATA 10
SECONDARY MATERIALS
Disability Care Load Assessment (Child) Determination 2010 (Cth) cll 8, 10, 12(3)
REASONS FOR DECISION
Professor R McCallum AO, Member
3 February 2017
INTRODUCTION

The Applicant, Mr Sam Mosavi has sole care of his 12 year old son whom I shall refer to as ‘Child X’. Child X suffers from diabetes mellitus type 1, and Mr Mosavi became his sole carer in December 2015 because Child X’s mother, who is Mr Mosavi’s former wife, was not able to manage his diabetes mellitus.
On 11 January 2016, Mr Mosavi lodged with the Department of Human Services, which is better known as Centrelink, a claim for carer payment. Child X was then aged 11 and he was diagnosed with diabetes mellitus.
Mr Mosavi’s application was accompanied by a medical report from Dr Duraid Haddad dated 11 January 2016.
On 11 January 2016, Mr Mosavi completed a Carer Payment and Carer Allowance -Care Needs Assessment (for a child under 16 years) form, and on 11 January 2016 and 18 March 2016 respectively, Dr Haddad completed a Review of Carer Payment and Carer Allowance – Medical Report (for a child under 16 years). Mr Mosavi also completed a Review of Carer Allowance Care Needs Assessment (for a child under 16 years) form on 18 March 2016.
On 23 March 2016, Mr Mosavi’s claim for carer payment was rejected because the care provided did not meet the level of care required for carer payment.
On 4 April 2016, Dr Haddad completed another Review of Carer Payment and Carer Allowance – Medical Report (for a child under 16 years).
On 22 April 2016, Mr Mosavi completed a further Review of Carer Payment Care Needs Assessment (for a child under 16 years), and the Care Load Score from this form was 23.
Mr Mosavi sought review from an Authorised Review Officer (ARO), but on 17 May 2016, the ARO affirmed Centrelink’s decision.
Mr Mosavi then sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1). However, the AAT1 affirmed the decision under review. The decision is dated 3 August 2016 and it was posted on 11 August 2016.
Mr Mosavi now appeals to the General Division of the AAT which is known as an AAT second review (AAT2).
THE LEGISLATION
The provisions governing carer payment are to be found in the Social Security Act 1991 (Cth) (the SS Act).
In Mr Mosavi’s circumstances, the relevant provision is subsection 197B(1) which is as follows.
197B Qualification—child with a severe disability or severe medical condition
(1)       A person is qualified for a carer payment if:
(a)(a) The person personally provides constant care for a person (the care receiver) aged under 16 with a severe disability or severe medical condition; and
(b)(b) the person has been given a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination for caring for the care receiver; and
(c)(c) A treating health professional has certified in writing that, because of that disability or condition:
(i)     the care receiver will need personal care for 6 months or more; and
(ii)    The personal care is required to be provided by a specified number of persons; and
(d)(d) The provision of constant care by the person severely restricts the person’s capacity to undertake paid employment; and
(e)(e) the requirements of subsections (2), (3) and (4) are met.
In Mr Mosavi’s circumstances the requirements specified in subsections (2), (3) and (4) of section 197B have been met. For present purposes, subsection 197B(2) provides as follows:
Constant care in home
(2) The constant care must be provided in a private residence that is the home of the care receiver.
THE ISSUE BEFORE THE TRIBUNAL
Paragraph 17 of the Respondent’s statement of facts issues and contentions is as follows.
The Secretary contends that the decision to reject the Applicant’s claim for carer payment on 23 March 2016 was correct because the Applicant has not been given a qualifying rating of intense under the Determination for caring for his son. Accordingly, he fails to satisfy subsection 197B(1)(b) of the Act.
At the hearing, Dr Thompson, who appeared for the Secretary, conceded that Mr Mosavi met the criteria set out in paragraphs (a), (c), (d) and (e) of subsection 197B(1) of the SS Act. In other words, Centrelink accepts that Child X has a medical condition, that he will need care for more than six months, that Mr Mosavi’s constant caring restricts his capacity to undertake paid employment, and Child X receives care on a daily basis in Mr Mosavi’s home.
However, Centrelink asserts that Mr Mosavi does not fulfil the criteria specified in paragraph (b) of subsection 197B(1) of the SS Act. Paragraph (b) will be fulfilled if Child X receives a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination 2010 (Cth) (the Determination).
Therefore, the issue before me, as I stand in the shoes of the Secretary, is whether Child X has a qualifying rating of intense under the Determination.
THE DETERMINATION
The Determination is subordinate legislation made pursuant to section 38E of the SS Act.
In Mr Mosavi’s circumstances, the Determination establishes a method of determining whether a child under the age of 16 has a qualifying rating of intense. Put briefly, this is achieved through the use of two questionnaires, the Carer Payment and Carer Allowance – Care Needs Assessment (for a child under 16 years) questionnaire (‘ACL questionnaire’) and the Review of Carer Payment and Carer Allowance – Medical report questionnaire (‘professional questionnaire’).
The ACL questionnaire and the professional questionnaire are described in clause 8 of the Determination as follows.
8 Questionnaires
(1)Part 1 of Schedule 1 sets out a questionnaire (the ACL questionnaire) about the functional ability, behaviour and special care needs of a child.
(2)The ACL questionnaire must only be completed by a person seeking to claim:
(a)a carer payment under the Act for the care of a child; or
(b)a carer allowance under the Act for the care of a disabled child.
Note Subsection 10(6) allows the Secretary to amend a completed ACL questionnaire in certain circumstances.
(3)Part 2 of Schedule 1 sets out another questionnaire (the professional questionnaire) about the functional ability, behaviour and special care needs of a child.
(4)The professional questionnaire must only be completed by a treating health professional.
[original emphasis]
Thus, Mr Mosavi was required to complete an ACL questionnaire, and Child X’s doctor, Dr Duraid Haddad, who was the treating health professional completed the professional questionnaire.
Subclause 10(1) of the Determination describes the ACL questionnaire as follows.
10       ACL questionnaire
Scoring method
(1)       The questions in the ACL questionnaire are grouped into 4 categories (domains):
(a)2 Behavioural domains; and
(b)Functional Abilities domain; and
(c)Special Care Needs domain.
Note   The Functional Abilities and Special Care Needs domains are further divided into subdomains.
…
In Smith and Secretary, Department of Social Services [2016] AATA 10, Senior Member P W Taylor SC, helpfully explains the scoring method for the ACL questionnaire as follows:
8. The ACL questionnaire scoring method in the 2010 DCLA Determination s 10(3) Schedule 2 Pt 1 requires at least a three (and potentially a four) stage process. Those stages involve (i) determining scores for various behavioural, functional and care need “domains”, (ii) converting those scores into a “care load score” for each domain, (iii) adding the “care load score” for each of the domains, and finally (iv) adding any adjustment where the Secretary considers particular ACL questions have been missed or misinterpreted in the questionnaire responses: see 2010 DCLA Determination s 10(6), Schedule 2 Pt 1 Steps 2 to 18 & 19, 13 & 16.
9. The second stage of the ACL questionnaire scoring method (ie determining the “care load score”) is “stepped” (rather than merely cumulative) for the behavioural and functional “domains” A, B & C. The scoring method allocates specific “conversion scores” to various “score ranges” in those individual domains. The stepped (and variable) nature, of the scoring method is illustrated in the following Table - which reproduces the relevant “step” values for those three domains.[table not reproduced]
10. The most obvious, and presently relevant, aspect of the scoring method is that the ultimate “care load score” is sensitive to the behavioural scores. This is particularly apparent in relation to the domain B score range. There are 11 questions in domain B. The maximum possible (unconverted) score for the response to those questions is 155. That is five times the threshold score that would suffice to lead to a (converted) “ACL score” of 85 - and thus establish the “intense” rating under the 2010 DCLA Determination.
Subclause 12(3) of the Determination provides what questionnaire scores are required by paragraph (b) of subsection 197B(1) of the SS Act for a qualifying rating of intense and is as follows:
…
(3) For the purposes of paragraph 197B(1)(b) of the Act, the person achieves a qualifying rating of intense if:
(a)the total score for the ACL questionnaire is 85 or more; and
(b)the score on the professional questionnaire is greater than 0.
[original emphasis]
Thus for Mr Mosavi to succeed the score on the ACL questionnaire must be 85 or more, and the score on the professional questionnaire must be greater than zero.
Dr Haddad who was the treating health professional for Child X, filled in the professional questionnaires and the score was 1.50. However on the ACL questionnaires which Mr Mosavi filled out dated 11 January 2016, 18 March 2016 and 22 April 2016, the score of 85 was not reached.
THE POWER OF THE SECRETARY
The Secretary possesses power to amend the scores in the ACL Questionnaires. Subclauses 10(5), (6) and (7) of the Determination specify the circumstances where the Secretary may amend ACL Questionnaire scores. These subclauses provide as follows:
(5)The Secretary must be satisfied that a completed ACL questionnaire is an accurate reflection of the functional ability, behaviour and special care needs of the child to whom it relates.
(6)If the Secretary is not satisfied that the completed ACL questionnaire is an accurate reflection of the child’s functional ability, behaviour and special care needs, the Secretary may amend the scores for any of the domains if a question is deemed to have been missed or misinterpreted.
(7)Additional points may only be added by the Secretary to the scores for any of the domains to reflect unaccounted for care load that is not presently recognised by the ACL questionnaire.
THE AAT1 DECISION
Mr Mosavi gave evidence at the AAT first review. The AAT1 summarised his evidence as follows.
7. In relation to [Child X’s] care needs, Mr Mosavi told the tribunal that he provides care all the time. He is a full time dad. He showed the tribunal his telephone alarm history which suggested that he checks [Child X’s] sugar level every five minutes, There is no medical reason for such intense and constant readings and the tribunal asked Mr Mosavi why readings were taken so frequently, particularly in the middle of the night, given this may increase [Child X’s] anxiety about his medical condition. He replied that he is a concerned father and loves his son and wants to make sure that he is OK. Mr Mosavi said that he agreed with Dr Haddad’s report but also said sometimes his son displays some behavioural issues, such as he gets overexcited when he is with friends or plays in the bathroom for long periods of time. He also said that he washes and cooks for his son but it was explained to Mr Mosavi that care is confined to medical care specifically directed to the medical condition the subject of the claim.
8. The questions and responses relating to [Child X’s] functional ability, behaviour and special care needs as previously related by Mr Mosavi in his forms were again discussed. Mr Mosavi confirmed that when at school [Child X] can regulate his own readings and insulin levels. The tribunal independently recalculated the questionnaire and confirmed the score of 55 was attained. As this is a care load of less than 85, Mr Mosavi does not meet this mandatory qualification requirement for carer payment or carer allowance.
9. The tribunal acknowledges the extra care and attention provided by Mr Mosavi to [Child X] on a daily basis, and the costs this care has on him emotionally, physically and financially. The tribunal notes Mr Mosavi is a single parent who expressed frustration that he cannot get a newstart exemption. He said because of the additional care needs he needs to sleep during the day and has difficulty complying with Centrelink obligations. However, there is no provision in the legislation to take into account matters not contained within the Disability Care Load Assessment described above.
THE HEARING
Mr Mosavi attended the hearing and represented himself.
Mr Mosavi gave evidence by affirmation with the assistance of an interpreter.
Mr Mosavi stated that he arrived in Australia in 1994, and that he married his former wife in 1997. They have three sons: Child X who is now aged 12, Child Y aged 16 and Child Z aged 8.
Mr Mosavi and his former wife separated in 2010 and divorced in 2011. Mr Mosavi re-married, but his wife no longer lives with him and Mr Mosavi said that she is presently in Iraq.
Mr Mosavi said that in August 2016, a court gave him sole custody of his three sons. They live in a three bedroom unit. Mr Mosavi has one bedroom, Child Y has the second bedroom, while Child X and Child Z share the third bedroom.
Mr Mosavi recounted that he has been the sole carer of Child X since December 2015 because his former wife was unable to do so.
Mr Mosavi said that Child X is about to commence his first year in high school.
Mr Mosavi said that he drives Child X to and from school.
Mr Mosavi stated that Child X is able to inject himself with insulin when at school, however, he said that there are nurses at school who also inject Child X. Mr Mosavi said that when Child X reaches a risk level, he is called by the school to come and collect him.
Mr Mosavi said that he checks Child X’s blood sugar levels during the night and that he does this every day. He said that he tries not to wake Child X when testing his blood sugar levels.
Mr Mosavi said that Child X has behavioural problems. He said that Child X plays with toys which are more appropriate for toddlers and that he speaks to them. He said that Child X behaves more like a four year old and that, in his view, Child X’s brain has not grown.
Mr Mosavi stated that Child X also gets into fights. Mr Mosavi handed up to the Tribunal a letter dated 22 November 2016 from Child X’s school. The letter stated that Child X was suspended for the following day for pushing and punching other students.
In cross-examination, Mr Mosavi said that Child X usually has three insulin injections a day: one in the morning, one before lunch and one in the evening. However, Mr Mosavi stated that on days when there is a rapid change in Child X’s blood glucose levels he needs five injections.
Mr Mosavi was shown an email dated 11 March 2016 from Ms Whitford, who is a clinical nurse specialising in diabetes at the children’s hospital. In the email, Ms Whitford asked Mr Mosavi to check Child X’s blood sugar levels at 12:00am and again at 3:00am for the next two days.
Mr Mosavi was asked why he needed to check Child X’s blood glucose levels so frequently. Mr Mosavi said that other nurses have told him orally to check the blood sugar levels which he does frequently, including at night.
Mr Mosavi was shown the professional questionnaire which was dated 11 January 2016 and was filled in by Dr Duraid Haddad who was then child X’s general practitioner.
The following statements in this questionnaire which concerned Child X were put to Mr Mosavi and he said that he agreed with them. They were: his receptive language skills were age appropriate, his expressive language skills were age appropriate, his dressing skills were age appropriate, his fine motor skills were age appropriate, his gross motor skills were age appropriate, and he was consistently uncooperative and disruptive during treatment.
However, Mr Mosavi disagreed with the following statements in the report by Dr Haddad. They were: his feeding and meal time skills were age appropriate, his hygiene and grooming skills were age appropriate, and his social and community skills were age appropriate.
CONSIDERATION
It will be recalled that for Child X to be given the designation of intense under paragraph (b) of subsection 197B(1) of the SS Act, a score of zero or above must be attained on the professional questionnaire, and that a score of 85 and above must be attained on the ACL questionnaire.
It will be recalled that Dr Haddad, who was Child X’s treating health professional, filled in the professional questionnaires and the score was 1.50. However on the ACL questionnaires which Mr Mosavi filled out, the score of 85 was not reached. The score on the ACL questionnaire dated 11 January 2016 was 75, but pursuant to subclause 10(6) of the Determination, Centrelink altered this score from 75 to 55.
The discretion reposed in me, as I stand in the shoes of the Secretary, by subclauses 10(5), (6) and (7) of the Determination is rather confined. I have reproduced these subclauses above. I note that under subclause 10(7), I may only add to the scores for “any of the domains to reflect unaccounted for care load that is not presently recognised by the ACL questionnaire.”
It is important to appreciate that no “special circumstances” discretion is reposed in the Secretary. In other words, it is only when scores of 85 and above on the ACL questionnaire and 0 and above on the professional questionnaire are obtained, that a child can receive the designation of intense.
I am unfamiliar with Child X, and he did not attend the hearing. I am therefore confined to the documents and evidence at the hearing, and especially the medical evidence.
Mr Mosavi forwarded to the Tribunal a brief undated report from Hansen Li who is a child psychologist, which the Tribunal received on 28 October 2016. In Hansen Li’s opinion, Child X’s behaviours “are not age appropriate and the way he interacts with his brother demonstrates that he may lack sufficient social skills”.
When summarizing the evidence given at the hearing by Mr Mosavi, the professional questionnaire form which was filled out by Dr Haddad on 11 January 2016 was examined.
In relation to the questions concerning the behavior of Child X, I set out the answers to the questions written by Dr Haddad with which Mr Mosavi agreed, and also the answers with which Mr Mosavi disagreed. Mr Mosavi’s ACL questionnaire form dated 18 March 2016, is largely consistent with the questions with which he agreed and disagreed when he gave his evidence.

However, on Mr Mosavi’s ACL questionnaire form which he filled out on 11 January 2016, he regarded Child X’s behavior as far more reasonable and age appropriate, than when giving his answers at the hearing or when filling out later ACL questionnaire forms.
For example, on the 11 January 2016 ACL questionnaire, Mr Mosavi ticked the box in question 8, “The child plays and mixes with other children as expected for a child of his or her age.”
Mr Mosavi ticked “never” for the statement in question 12, “The child shouts, screams at or threatens other people, or makes so much noise that other people become alarmed.”
Mr Mosavi also ticked “never” for the statement in question 13, “The child becomes physically aggressive and harms others by hitting, pushing, kicking, biting or throwing objects.”
Mr Mosavi ticked “never” for the statement in question 14, “The child gets extremely upset for little or no apparent reason (e.g. the child has episodes of intense crying or screaming and is very difficult to calm down).”
Finally, Mr Mosavi ticked “never” for the statement in question 16, “The child has very strange behaviours, such as unusual routines, repetitive or obsessive behaviours, or hearing voices, or seeing things which are not there.”
Where there is a conflict between the documentary and oral evidence of Mr Mosavi and the professional questionnaires filled out by Dr Haddad, I prefer the evidence of Dr Haddad.
Child X usually has three insulin injections each day, and on school days he usually administers his insulin injection around lunch time.
In his evidence, Mr Mosavi said that he tested Child X’s blood sugar levels during the night each day. Apart from situations where Child X’s blood sugar level fluctuates, or when directed by health workers to test, there is no medical evidence before me that the testing should occur every night. I note that the AAT1 reached this conclusion in paragraph 7 of its decision which is reproduced above.
While Mr Mosavi said in his evidence that he thought Child X’s brain was not developing properly, there is no medical evidence before me of any brain malfunction. On the contrary, According to Dr Haddad whose evidence I accept, Child X’s language comprehension skills are age appropriate.
I also accept the view of Child X’s behavior as documented by Dr Haddad. Psychologist Hansen Li in a brief report states that Child X lacks some social skills. However, this appeared to be recognized by Dr Haddad who stated that Child X was consistently uncooperative and disruptive during treatment.
Having regard to all of the evidence before me, I am not satisfied that Mr Mosavi’s ACL questionnaire dated 11 January 2016 which scored 55 after Centrelink had altered it pursuant to subclause 10(6) of the Determination is inaccurate.
Having regard to the evidence, I find that it is not appropriate to alter the scores for any of the three ACL Questionnaire forms which Mr Mosavi filled in, that is, on 11 January 2016, 18 March 2016 and 22 April 2016.
DECISION
The decision under review is affirmed.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate
Dated: 3 February 2017

Date of hearing: 20 January 2017

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Department of Human Services

[2017] AATA 126

3 February 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Date of hearing:	20 January 2017
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services