O'Brien and Department of Family and Community Services

[2001] AATA 230

DECISION AND REASONS FOR DECISION [2001] AATA 230

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N1999/1640

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      WENDY O'BRIEN  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member            

Date23 March 2001

PlaceSydney

Decision      The decision under review is affirmed. 
  [Sgd] JD Campbell
  Member 
CATCHWORDS
Social Security – child disability allowance – type one diabetes – family issues

Social Security Act 1991 – ss 38, 952, 953, 954

REASONS FOR DECISION

Dr J D Campbell                 

1. In this application, Ms O'Brien ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 27 September 1999, which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 30 April 1999, to reject the Applicant's claim for child disability allowance for her daughter, Kodi. This latter decision had been reviewed by an authorised review officer and affirmed in a decision dated 14 May 1999.

2. A hearing was held before the Tribunal at Tamworth on 2 November 2000 at which the self-represented Applicant was assisted by Ms Forde of Tamworth Family Support. The Respondent was represented by Mr Lozynsky, a solicitor from the Administrative Law Section at Centrelink.

3. The following material was placed into evidence before the Tribunal:
   Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-19 pp 1-52
   Letter to Ms Wendy Meredith from Ms Gilks dated 5 September 2000         Exhibit A1     
   Letter to Ms Gilks from Dr McDonald dated 11 October 2000 Exhibit A2     
   Respondent's Statement of Facts and Contentions dated 28 February 2000          Exhibit R1     

ISSUES

1. The relevant issue in this matter is whether Ms O'Brien is entitled to the payment of a child disability allowance for her daughter, Kodi.
   LEGISLATION

2. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 38, 952, 953 and 954.
   BACKGROUND

3. Kodi was born on 31 December 1990. Her mother is Ms O'Brien. On 23 April 1999 Kodi was diagnosed as having Type One (Insulin Dependent) diabetes. On 30 April 1999 a claim was lodged by Ms O'Brien for child disability allowance. A treating doctor's report was completed by Dr McDonald on 28 April 1999 and lodged with the claim for child disability allowance. The treating doctor's report nominated the diagnosis as Type One diabetes but did not indicate that the child had one of the list of recognised disabilities. Dr McDonald indicated that the child required extra care and attention for 14 hours or more per week and completed a functional assessment of the child (T5). The Applicant also completed a functional assessment concerning the child's abilities on 30 April 1999 (T6).

4. The claim for child disability allowance was rejected on 30 April 1999 (T9) and again following a reconsideration on 4 May 1999 (T10). The Applicant submitted that she was providing extra care and attention for Kodi in relation to food preparation, diet, insulin injections, testing of blood sugar etc, and that the new method of assessment did not take this into consideration (T12). The authorised review officer, in noting that child disability allowance was changed from 1 July 1998 with the determination now being made on the level of severity of the child's disability, rather than the level of care and attention the child requires, affirmed the decision to reject the claim on 14 May 1999 (T16). The decision was further reviewed and affirmed by the SSAT in a decision dated 27 September 1999 (T2).
   EVIDENCE

5. Ms O'Brien indicated to the Tribunal her concern that the new method of assessment did not recognise the extra care and attention that she had to give to Kodi, and that this would continue for at least the next few years. She further considered the adoption of the new assessment approach has caused unfairness, in that there are others at Kodi's school who receive such an allowance for the same condition and continue to do so after review. The Applicant stated that she had completed a functional assessment report for her daughter, and found that the report in no way addressed the issues involved in the care and attention of a newly diagnosed juvenile insulin dependent diabetic.
   CONSIDERATION AND FINDINGS

6. The Tribunal, in considering this matter notes the following statutory framework which detail the qualifications for child disability allowance:

   "952 Disabled child
   Subject to subsection 953, a young person is a disabled child if:

   (a) the young person:

   (i)        has a physical, intellectual or psychiatric disability;

   (ii)is likely to suffer from the disability permanently or for an extended period; and

   (b) a determination of the Secretary under section 952A is in force and one of the following conditions applies:

   (i)under the determination the disability is declared to be a recognised disability for the purposes of this section;

   (ii)the young person has been assessed and rated under the Child Disability Assessment Tool and has been given a positive score of not less than 1.

   952A Secretary's determination relating to young person's disability
   952A(1) The Secretary may, by determination in writing:

   (a) devise a test for assessing a young person's functional ability, emotional state, behaviour and special care needs; and
   (b) provide a method for rating the young 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).

   952A(2) The scale referred to in subsection (1) is a scale that provides for a range of
              negative and positive scores and under which:

   (a) a negative score indicates an absence of a physical, intellectual or psychiatric disability at a significant level; and
   (b) a positive score indicates the presence of a physical, intellectual or psychiatric disability at a significant level.

   952A(3) The determination may, in addition, declare that a physical, intellectual or psychiatric disability specified in the determination is a recognised disability for the purposes of section 952.
   952A(4) The determination, in so far as it provides (in accordance with subsections (1) and (2)) for a test for assessing, and a method for rating, a young person's functional ability, emotional state, behaviour and special care needs is, in this Act, referred to as a Child's Disability Assessment Tool.
   952A(5) The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901

   953 CDA Child status – family payment requirement
   A disabled child is a CDA child of a person if:
             (a) family allowance is payable to the person for the disabled child;
   …
   954 Qualifications for child disability allowance
   954(1) A person is qualified for a child disability allowance for a young person if:
             (a) the young person is a CDA child of the person; and

   (b) because of the disability from which he or she is suffering, the young person receives care and attention on a daily basis from:

   (i)if a person is a member of a couple – the person or the person's partner; or

   (ii)       if the person is not a member of a couple – the person;
   in a private home that is the residence of the person and the young person."

The Child Disability Tool is provided under section 38D of the Act which states:

"38D Child Disability Assessment Tool
38D(1) The Secretary may, by determination in writing:

(a) devise a test for assessing the functional ability, behaviour and special care needs of a person aged under 16; 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).

38D(2) The scale referred to in subsection (1) is a scale that provides for a range of negative and positive scores and under which:

(a) a negative score indicates an absence of a physical, intellectual or psychiatric disability at a significant level; and
(b) a positive score indicates the presence of a physical, intellectual or psychiatric disability at a significant level.

38D(3) The determination may, in addition, declare that a physical, intellectual or psychiatric disability specified in the determination is a recognised disability for the purposes of section 953.
38D(4) The determination, in so far as it provides (in accordance with subsections (1) and (2)) for a test of assessing, and a method for rating, the functional ability, behaviour and special care needs of a person aged under 16 is, in this Act, referred to as the Child Disability Assessment Tool.
38D(5) The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

1. In working through the various elements of the statutory framework, the Tribunal makes the following comments and comes to the following conclusions:

(a) in relation to subsection 952(a) of the Act the Tribunal, in noting that Kodi is an insulin dependent diabetic and that this condition will continue indefinitely, concludes that Kodi satisfies this subsection;

(b) in relation to subection 952(b) of the Act, the Tribunal notes that the condition of insulin dependent diabetes mellitus is not a disability declared to be a recognised disability for the purposes of this section. As such it is necessary for Kodi to be assessed and rated under the Child Disability Assessment Tool and receive a score of not less that one (subsection 952(b)(ii));

(c)  section 952(A) and its various subsections provide the Secretary with the necessary statutory base to devise a test for assessing a young person's functional ability, emotional state, behaviour and special care needs. Under this section the Secretary may provide a method of rating, and on the basis of the results of the test provide a score, which if negative indicates an absence of physical, intellectual or psychiatric disability at a significant level, or if positive the presence of such a disability at a significant level. This test is referred to as the Child Disability Assessment Tool;

(d) the Child Disability Assessment Tool completed in relation to Kodi in April 1999, was assessed and a rating of negative 4.73 was given for the health professional's report. It is evident that Kodi does not satisfy subsection 952(b)(ii) of the Act, and the Tribunal so finds. As a consequence subsection 952(b) of the Act is not satisfied. The Tribunal concludes that as a result of Kodi failing to satisfy subsection 952(b), Kodi is not considered to be a disabled child; and

(e) in relation to sections 953 and 954 of the Act, the Tribunal, while observing that a family allowance is payable to Ms O'Brien in relation to Kodi, and noting that Kodi receives care and attention on a daily basis from Ms O'Brien, the Applicant's claim must fail as Kodi is not considered to be a disabled child. As such the Applicant fails to meet all the qualifications for child disability allowance.

1. In summary, the Tribunal concludes that in accordance with the current statutory framework outlined earlier in this decision, the Applicant's claim has been considered and correctly rejected.
   DETERMINATION

2. The Tribunal determines that the decision under review be affirmed.

   I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell

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

   Date/s of Hearing  2 November 2000
   Date of Decision  23 March 2001
   Solicitor for the Respondent    George Lozynsky
   Representative for Applicant   Self-represented