Neville and Department of Family and Community Services - [2000] AATA 601

DECISION AND REASONS FOR DECISION [2000] AATA 601

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1243

GENERAL ADMINISTRATIVE DIVISION          )
           Re      HILIARY NEVILLE
  Applicant
           And    DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date25 July 2000
PlaceMelbourne

Decision The decision under review is affirmed.

…………………..….
Senior Member

SOCIAL SECURITY: Carer's Pension; acquired brain injury; whether requisite score achieved; whether form deficient; decision affirmed.

Social Security Act 1991 s954

REASONS FOR DECISION

25 July 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Social Security Appeals Tribunal made on 18 October 1999 which decided to affirm a decision previously made by the respondent to reject an application for Carer Allowance.
At the hearing Mrs Neville appeared without legal representation but with the assistance of Mr Lazich an advocate with the Acquired Brain Injury Association Inc. (Headway Victoria). Mr Perdon represented the respondent.
The relevant legislation is to be found at s954 of the Social Security Act 1991.
The application is brought by Mrs Neville who is presently 77 years of age seeking to recover a Carer's Pension with respect to her adult son Ralph who is presently 50 years of age. The application follows a review of social security entitlements in 1999 where domiciliary nursing care benefit was abolished and Carer's Pension was extended to persons who cared for adult persons. In summary, the legislation permits qualification for Carer's Pension with respect to adults who are not receiving institutional care, where a score of 30 is achieved under an Adult Disability Assessment Tool (ADAT) and where the assessment completed by a medical practitioner (Health Professional Assessment – HPA) provides a score of no less than 12. The HPA assessment is included within the score achieved under the ADAT.
In effect, the ADAT is a questionnaire with respect to the care provided to a person. It is divided into sections, which take account of day-to-day care needs, cognitive function and behaviour. The HPA is a similar questionnaire completed by the medical practitioner which has similar criteria as above, but also records the disability suffered. For the purposes of the present application, there is no quarrel with the carer being an Australian resident, providing care in a private residence to a person who is also an Australian resident and who suffers either a physical, intellectual or psychiatric disability.
The only issue in dispute, in the present application, was whether a score of 30 was achieved under the ADAT.
Ralph Neville suffered injuries in an accident, whilst bushwalking in the Grampians, in 1977. He was then 27 years of age. He was thereafter an in-patient of the Royal Melbourne Hospital for approximately 12 months and then was an in-patient at the Brain Trauma Unit at Mont Park for approximately two years. He was then a resident of special accommodation until 1986 when he returned to live with Mrs Neville. Thereafter, she has maintained his care on a day-to-day basis save for short periods of respite on which occasions Ralph is cared for in special accommodation at the Kingston Centre in South-Eastern Melbourne.
Mrs Neville first claimed Carer's Pension on 2 July 1999, being the day after the Social Security Act was amended to permit qualification for Carer's Pension, with respect to adult persons with disability. The total score then achieved under the ADAT was 14, which comprised 11 upon the questionnaire completed by Mrs Neville and 3 upon the questionnaire completed by the Treating Health Professional, Dr Lau-Gooey. That application was subsequently reviewed and affirmed. Upon review by the Social Security Appeals Tribunal it was also decided that the decision should be affirmed. It is that decision which is the subject of these proceedings.
In December 1999 Mrs Neville made a further application, which has not yet been reviewed, nor has it been before the Social Security Appeals Tribunal. That application is not before this Tribunal.
Nonetheless, a score of 26.75 was achieved inclusive of the Treating Health Professional's score of 7 points. For the purposes of that application Dr Waldron was the Treating Health Professional.
At the hearing before this Tribunal on 18 July 2000, Mrs Neville largely confirmed the contents of her earlier questionnaires, save that a varied score could be ascribed to the question 5 at Section A and question 6 at Section C. With respect to the HPA, a variation should occur with respect to Part A, where Dr Waldron has not recorded an "intellectual disability" under the sub-heading of "neurological" when she in fact did record an intellectual disability in question 1 Part A. The answer to question 3 of Section C should also be varied.
Nonetheless, even on the most current application, whilst it would appear that accepting entirely the applicant's evidence this morning, and accepting also that Dr Waldron would be prepared to vary her earlier comments the overall score would amount to 32.75 yet only 10 points could be ascribed to the Treating Health Professional's assessment. That latter assessment remains below the threshold necessary (refer above) and the application, even if assessed on the most recent questionnaire, would again be unsuccessful.
Mrs Neville was concerned that the ADAT was deficient because, in her view, it tended to concentrate on persons with physical injury rather than mental or intellectual injury. Additionally, it was her view that the questionnaire did not recognise the inability of a person with an acquired brain injury to live unsupervised or alone, nor were questions asked of the ability of such a person to manage monies, or a budget, or to prepare meals.
Mr Lazich submitted that the concept of a "brain injury" was very broadly interpreted and often disguised the extent of disability.
Mr Perdon submitted that the Carer's Pension was a supplementary payment to persons who care for adults. He said it was introduced following interviews in focus groups of 2,400 persons. Whilst he acknowledged that only 36 of those persons had an acquired brain injury during the trial period prior to introduction on 1 July 1999, only one person with an acquired brain injury would not have qualified under the existing questionnaire. Nonetheless, the Government has apparently undertaken to review the questionnaires after 12 months of operation and the review is presently underway.
CONCLUSION
As I foreshadowed to Mrs Neville and to Mr Lazich during the hearing the Tribunal was bound to apply the legislation and the questionnaires annexed to the amendments to the legislation effective from 1 July 1999. The Tribunal cannot determine these proceedings by sentiment or imposing its own view as to entitlement.
Mrs Neville is undertaking a valiant and herculian task in the care of her son. She is to be applauded for the commitment and dedication to the care of Ralph.
There were issues which emerged during the hearing of this application which could be useful in the review of the present questionnaire – for example the absence of questions concerning ability to prepare meals and the question at Section C of the HPA where, in the present case, Ralph has consumed antidepressant medication for many years yet, he apparently, does not "show signs of depression". It is to be queried whether questions of this type are to be determined by reference to the disabled person's behaviour, with or without the effects of medication.
Nonetheless, and for the reasons given above and discussed during the hearing Mrs Neville is unable to achieve the requisite points under the ADAT as it is presently devised.
There is no impediment for making a further application with or without any amended ADAT, however entitlement would only commence at the date of the new application.
For the reasons given above the decision under review must be affirmed.

I certify that the twenty one (21) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Linda Nemeth    ............................................
                 Secretary
Date of Hearing  18 July 2000
Date of Decision  25 July 2000
Counsel for the Applicant        Not Represented
Solicitor for the Applicant
Counsel for the Respondent    Mr D Perdon
Solicitor for the Respondent