Nashid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 157

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 157

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3428

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAFAT NASHID

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date12 March 2009

PlaceSydney

Decision The reviewable decision made by the Social Security Appeals Tribunal on 11 July 2008 to refuse Mr Nashid's claim for carer payment for his son Matthew is affirmed.

...................[sgd].........................

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Carer payment – Claim by father – Rejected – Child diagnosed with acute lymphoblastic leukaemia - Whether profoundly disabled child – Whether father personally providing constant care for six months -  Whether severe behavioural disability or condition – Medical evidence considered – Held not profoundly disabled child – Criteria not met - Decision affirmed

Administrative Appeals Tribunal Act 1975, s 37

Families, Community Services and Indigenous Affairs and Other Legislation (2006 Budget and other Measures) Act 2006

Social Security Act 1991, ss 197, 198

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Guide to the Social Security Law, parts 1.1.C.146, 3.6.4.15

REASONS FOR DECISION

12 March 2009 Mrs Josephine Kelly, Senior Member      

1.      On 7 April 2008 Mr Rafat Nashid applied for a carer payment in relation to his son Matthew who was diagnosed with acute lymphoblastic leukaemia (ALL) in December 2007.  Mr Nashid's application was rejected by the original decision-maker, the Authorised Review Officer and the Social Security Appeals Tribunal (SSAT). 

2.      At the hearing before me, Mr Nashid was seeking the carer payment for the period beginning when he made his application in April 2008 and ending when he was able to return to work in September 2008.  He told me that he had applied for and been granted carer allowance in about February 2008 but did not fill in the part of the form for carer payment at that time because the Centrelink officer told him that he would be unsuccessful.  

THE ISSUES

3.      The issues  in these proceedings were:

(a) Is Matthew a "profoundly disabled child" within the meaning of s 197(2) or (2AA) or (2A) of the Social Security Act 1991 (the Act)?

(b) Did Mr Nashid personally provide constant care for Matthew (s 198(2) of the Act)? 

(c) Did Mr Nashid provide continuous personal care for Matthew within the meaning of s 197(2AA) (b) of the Act, as required by s 198(10)(a) of the Act; and

(d) If so, did the provision of that care severely restrict Mr Nashid's capacity to undertake paid employment (s 198(10)(b) of the Act)?

CONSIDERATION

4. The evidence before me included the documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and a report from Dr Hartel, Oncology fellow from the Children's hospital at Westmead dated 24 July 2008. The other medical evidence available to me was within the s 37 documents and included the medical report form dated 5 May 2008 that was provided by Matthew's general practitioner, Dr Akladious, in support of the application, another report from Dr Akladious dated 9 July 2008, and an earlier from Dr Hartel dated 16 May 2008. Mr Nashid also provided additional oral evidence.

5.      Matthew was born on 29 January 1999 and is now 10 years of age.

6.      I accept Mr Nashid's evidence as follows. He stopped working to look after Matthew while he received treatment for AAL. His wife continued to work.  They also have two older children to care for, who are currently aged 17 and 14 years of age.  Matthew had three stages of intensive treatment from December 2007 until August 2008.  The last stage was intense and Matthew made a noticeable improvement.  Matthew continues to take oral medication for the AAL.

7. Section 198 of the Act sets out the qualification for carer payment, relevantly:

198.    Qualification for carer payment    198.(1)  A person is qualified for a carer payment if the requirements of this section are met.  …

198.(2)  Constant care of disabled etc. persons   198.(2)  The person must personally provide constant care for: …                   (b) a profoundly disabled child (the care receiver) aged under 16; or

198.(3)  Care in home  198.(3)  The care must be provided in a private residence that is the home of the care receiver or care receivers.

198.(4)  Carer in Australia  198.(4)  The person must be an Australian resident, unless: …

198.(10)  Carers of certain profoundly disabled children  198.(10)  if the care receiver is a profoundly disabled child within the meaning of subsection 197(2AA):   (a) a person must provide continuous care for the child within the meaning of paragraph (b) of that subsection; and   (b) the provision of that care by the person must severely restrict the person’s capacity to undertake paid employment. 

8. I carefully went through the criteria that need to be satisfied, for a child to be a profoundly disabled child, with Mr Nashid and Mr Larcombe, who appeared for the Secretary. Those criteria are set out in section 197, subsections (2), (2AA) and (2A), of the Act.

9. Mr Nashid agreed, and it was clear from the evidence, fortunately, that Matthew did not satisfy the criteria set out in s 197(2A) which applies to a terminal condition.

Is Matthew a profoundly disabled child? (Subsection 197(2))

10.     In relation to subsection 197(2) of the Act, Mr Larcombe accepted that Matthew satisfied the criteria in two of the three subsections which must be satisfied. That is, Mathew is a child with a severe medical condition (s 197(2)(a)(ii)) and because of that condition needs continuous personal care for 6 months or more (s 197(2)(b)(i)).   I agree that the evidence supports those concessions.

11. The question in relation to s 197(2) is therefore where Matthew satisfied three of the criteria set out in s 197(2)(c) which provides:

(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 a 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 in writing 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 10 pm and 6 am each day; and

(B)  if under 6 months of age, is expected to require care as described in sub-subparagraph (A) at the age of 6 months.

12.     Mr Larcombe accepted that Matthew required personal care on two or more occasions between 10 pm and 6 am each day and therefore satisfied subsection 197(2) (c)(vii)(A) of the Act.   I infer that this concession was made on the basis of the report Dr Akladious prepared in May, where the doctor ticked the box to indicate that Matthew requires personal care on 2 or more occasions between 10 pm and 6 am each day.   I find that this concession was properly made.

13.     Did Matthew satisfy a further two of the criteria in subsection 197(2)(c)?

14.     Mr Nashid agreed that the matters set out in subsection (c)(i) and (ii) did not apply to Matthew.   I find that this is so taking into account the evidence.

15.     In relation to subsection (c)(iii), Mr Nashid said that there was one day when Matthew was in hospital and could not breathe. Assuming that Matthew was using a ventilator on that occasion, I do not consider that the provision applies because the use of the phrase "each day" requires that the use of a ventilator for "8 hours each day" is an ongoing requirement for the child "each day", not on just one day.

16.     Mr Nashid agreed that Matthew did not satisfy subsection (c)(iv). The evidence did not support a finding that Matthew satisfied the criterion.

17.     In relation to subsection (c)(v), as Matthew was older than 2 years of age, subsection (c)(v)(B) could not apply.

18.     When Mr Nashid's attention was drawn specifically to subsection (c)(v)(A), he said that for three or four months Matthew was lying down and therefore satisfied subsection (c)(v)(A).   The medical evidence from Dr Akladious and Dr Hartel does not support that conclusion.  The form Dr Akladious filled out in May 2008 specifically asked the doctor to tick a box against various conditions "which describe the child's disability/medical condition", including "the child:  is 2 or over and cannot stand without support".  Dr Akladious did not tick the box next to the question.  Further, Mr Nashid told the SSAT on 11 July 2008 that Matthew had missed six weeks of school in 2008 until that time, which is quite remarkable given the seriousness of Matthew's illness, and the effects of the treatment he received.  I accept that Matthew spent periods of time in bed in hospital and at home, however, I am not satisfied on the evidence that he satisfied this criterion.

Does Matthew have a severe intellectual, psychiatric or behavioural disability or condition? (Section 197 (2AA))

19. Section 197 (2AA) of the Act provides:

A child is a profoundly disabled child if:

(a)  the child has either:

(i)  a severe intellectual, psychiatric or behavioural disability; or

(ii)  a severe intellectual, psychiatric or behavioural medical condition; and

(b)  the child, because of the 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 is at least 6, and under 16, years of age; and

(d)  because of the child’s disability or condition, the child does one or more of the following:

(i)  repeatedly engages in dangerous behaviour that is, or that gives rise to, a significant risk (whether immediate or long‑term) to the child’s health or safety and that, without carer intervention, would result in the child suffering sustained tissue or bodily damage, or death;

(ii)  repeatedly engages in aggressive or violent behaviour that is, or that gives rise to, a significant risk to the health or safety of others, or that results in significant property damage, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities;

(iii)  repeatedly engages in severe sexually deviant or sexually inappropriate behaviour, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities.

20.     The use of the word "and" between each of paragraphs (a), (b), (c) and (d) means that each must be satisfied.  Clearly Matthew satisfied paragraph (2AA)(c). Did he satisfy each of the other subsections?

Subsection 197(2AA)(a)

21.     Mr Nashid said that Matthew had a severe behavioural medical condition as required by subsection (2AA)(a)(ii).   He referred to the most recent medical reports of Dr Akladious and Dr Hartel. 

22.     In her report dated 9 July 2008, Dr Akladious wrote:

Mathew Nashid (D.O.B:29/01/1999) suffers from a severe behavioural disability.  He suffers from depression, engages in dangerous behaviour which would result in him suffering sustained tissue or bodily damage or death.

23.     In his report dated 24 July 2008, Dr Hartel stated:  

The treatment for ALL is highly intense and causes a broad spectrum of side effects, for which a considerable inter-individual variability exists.  Matthew particularly suffered from behavioural side-effects which are associated with the essential steroid treatment.  Both parents and Dr. Akladious (in her letter from 09/07/2008), noted aggressive behaviours, depression, impatience and, most importantly, tendencies of self-harm and misjudging the consequences.  As you are aware, several incidents happened which gave risk to a significant risk to the child’s health or safety.  Without carer intervention, these behavioural changes may cause immediate or long-term body damage for him and for others or even death.  

24.     Mr Nashid's evidence was that Matthew's behaviour was affected by the medication he was given for the AAL.  Matthew engaged in dangerous behaviour on two occasions.  In February 2008 Matthew burnt himself with hot cooking oil when he would not wait for his father to prepare his food and had to be taken to hospital.   On another occasion in about August, Mr Nashid said that Matthew turned the toaster to the highest heat which resulted in flames erupting from the toaster.  Matthew also pushed things that were in front of him, and threw things.

25.     When Dr Akladious filled out the form in May 2008, her initial response to the  question "7 Does the child have a severe intellectual, psychiatric or behavioural disability/medical condition”?  was to tick the "No" box, which she later crossed out.  Her final response was to tick the "Yes" box, circle "a severe" and "medical condition" and cross out "intellectual, psychiatric or behavioural disability".  Dr Akladious’ response indicated that Matthew has a severe medical condition which is the language used in subsection 197(2)(a)(ii) of the Act.

26.     The next statement in that form was:  "8 Please tick any of the following behaviours which describe the child's disability/medical condition".   Dr Akladious ticked the box next to "the child repeatedly engages in dangerous behaviour that is, or gives rise to, a significant immediate or long term risk to the child’s health or safety that without carer intervention, would result in the child suffering sustained tissue or  bodily damage or death”.  That wording reflects s 197(2AA)((d)(i).

27.     I also take into account the opinion Dr Akladious gave in her 9 July 2008 report referred to above that Matthew “suffers from a severe behavioural disability” and the evidence of Dr Hartel.

28.     Mr Larcombe referred to the explanatory memorandum which accompanied the Families, Community Services and Indigenous Affairs and Other Legislation (2006 Budget and other Measures) Act 2006 (the Amendment Act) which inserted s 197(2AA) and s 198(1) into the Act, and also to Part 1.1.C.146 and 3.6.4.15 of the Guide to the Social Security Law, which is a policy matter to be taken into account (Re Drake and Minister for Immigration and Ethnic Affairs (No 2)).

29. In part, the explanatory memorandum to the Amendment Act stated:

This measure expands the definition of profoundly disabled child in section 197 of the Social Security Act so that it includes behavioural characteristics of a child who requires constant care or supervision because of unsafe behaviour due to severe intellectual, psychiatric disability (rather than focusing on specific disability types).

30.     Mr Larcombe argued that because the relevant behaviour was a side effect of essential steroid treatment, it was not a "severe intellectual, psychiatric or behavioural disability or medical condition".  He also noted that Dr Hartel did not diagnose a severe behavioural medical condition or behavioural disability.

31.     Mr Larcombe also pointed to Matthew's attending an ordinary school and to Mr Nashid's evidence before the SSAT  that he had had to attend school 10 times during 2008 when Matthew was vomiting and sick.  That is, according to Mr Larcombe, Mr Nashid's attendance was necessary because of the physical side effects of Matthew's treatment, and not because of the behavioural consequences.

32.     I accept that there were changes to Matthew's normal behaviour which were understandably very disturbing for his parents.  However, leaving aside the legal question of whether changes to behaviour caused by medication for a medical condition can be a severe intellectual, psychiatric or behavioural disability or medical condition, I am not persuaded that the changes to Matthew's normal behaviour were of the degree of severity to constitute a severe behavioural medical condition or disability within the meaning of subsections 197(2AA) (a) and (b).

33. Given that finding, it is unnecessary to consider the legal question whether side effects of treatment can relevantly be a behavioural disability or behavioural medical condition within the meaning of s197(2AA)(a)(i) or (ii).

Section 197(2AA)(b)

34.     Although not necessary given the above finding, I consider the other relevant criteria because I went through each of them with Mr Larcombe and Mr Nashid.

35. I also find that Matthew did not need continuous personal care for 6 months or more because of the behavioural changes as required by s 197(2AA)(b)(i) of the Act. He was able to attend an ordinary school for substantial periods from February to August 2008 and there was no evidence that his behavioural difficulties caused any problems at school. His father attended school in relation to physical side effects of Matthew's treatment.

Section 197(2AA)(d)

36. Matthew had to demonstrate one or more of the behaviours set out in s 197(2AA)(d). There was no evidence that Matthew's behaviour fell within subsection (d)(ii) or (iii). However, was subsection (d)(i) satisfied? There was evidence of two occasions when Matthew engaged in dangerous behaviour that gave rise to a significant risk to his safety and that without carer intervention, would result in his suffering sustained tissue or bodily damage, or death. However, I do not consider that those two incidents are sufficient to satisfy the requirement of the phrase "repeatedly engages in".

CONCLUSION

37. The criteria parliament has set out in ss 197 and 198 of the Act are stringent, narrow and restrictive and therefore difficult to satisfy. They are particularly difficult to satisfy in circumstances such as Mr Nashid faced, where his son suffered an acute medical condition, the treatment for which was intense and resulted in behavioural and physical side effects which required his father to give up work during the period of that treatment.

38.     I have considerable sympathy for Mr Nashid.  He expressed his frustration with the situation he was in with respect to Centrelink.  As I understand his evidence, during this very difficult period, he was receiving Newstart Allowance and had to continually seek exemptions from the work test.  I understand his evidence to be that he did not find Centrelink very sympathetic to his plight.   

39.     Regrettably, the parliament has as yet not considered it appropriate to confer a discretion on decision-makers, including this Tribunal on review, to grant carer payment if the strict criteria are not met.  

40.     For the reasons set out above, I do not consider that Matthew's circumstances satisfied the relevant criteria.

DECISION

41.     The reviewable decision made by the SSAT on 11 July 2008 to refuse Mr Nashid's claim for carer payment for his son Matthew is affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ……[sgd]………..

Steven Mulipola, Associate

Date of hearing:  9 February 2009

Date of decision:  12 March 2009

Representative for the Applicant:             Self-represented

Representative for the Respondent:       Centrelink Legal Services and Procurement