Pan and Secretary, Department of Family and Community Services

[2005] AATA 665

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 665

ADMINISTRATIVE APPEALS TRIBUNAL         Nº V2004/1126

GENERAL ADMINISTRATIVE  DIVISION

Re:JUNE PAN

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:              12 July 2005

Place:             Melbourne

Decision:The Tribunal affirms the decision under review

(sgd) Regina Perton

Member

SOCIAL SECURITY – carer allowance – two children suffering from eczema – whether a recognised disability – rating under Child Disability Assessment Tool – decision under review affirmed.

Social Security Act 1991 ss 952, 953(1)

REASONS FOR DECISION

12 July 2005  Regina Perton, Member

1.       This is an application by June Pan (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 8 September 2004.  The SSAT affirmed decisions of a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 10 August 2004 to cancel carer allowance in respect of her daughter, Joyce Pan and to refuse carer allowance for her daughter, Sandy Pan.  

2.       At the hearing on 21 March 2005, the applicant represented herself.  She was accompanied by Ms Lorraine Armstrong, a social worker.  Mr Sean Meehan, a Centrelink advocate, represented the respondent. 

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T26) as well as further documents provided by the applicant at the hearing (A1-A2).  

BACKGROUND

4.       The applicant is the mother of two daughters, Joyce Pan born on 19 February 1997 and Sandy Pan, born on 10 February 1999.  The applicant first claimed carer allowance for her two daughters in June 2000.   Both suffer from severe eczema.  On 22 June 2000, the applicant was granted carer allowance for Joyce only, and advised that Sandy’s condition was not at a level that allowed for carer allowance to be paid in relation to her care.  The applicant received carer payments on account of Joyce’s condition from 22 June 2000 until 25 September 2001.  On 5 October 2001, the respondent cancelled carer allowance for Joyce after a review of her eligibility was undertaken.  Ms Pan lodged another claim for carer allowance for both children on 26 February 2003.  Her claim for carer allowance for Sandy was rejected on 5 March 2003.  She was granted carer allowance in relation to Joyce on 22 April 2003 with back payments to 22 February 2002.

5.       On 4 June 2004, the applicant lodged a fresh claim for carer allowance in relation to Joyce and Sandy although she was still in receipt of carer allowance for Joyce at that time.  She also lodged treating doctor’s reports for both girls which are required to accompany applications for carer allowance.  On 4 June 2004, the delegate cancelled carer allowance in relation to Joyce and rejected the claim for carer allowance in relation to Sandy on the basis that the girls’ medical conditions did not meet the required score on the Child Disability Assessment Tool (CDAT) nor were their conditions, prescribed conditions.    The applicant was also advised that the children were entitled to a Health Care Card.  

6.       On 10 August 2004, an authorised review officer (ARO) affirmed the delegate’s decision.   On 16 August 2004, the applicant sought review of the ARO’s decision by the SSAT.  On 8 September 2004, the SSAT affirmed the decision.  Following the SSAT decision, the applicant lodged an application with the Tribunal on 29 September 2004. 

7.       The issue before the Tribunal is whether the applicant qualifies for carer allowance on the basis of her children’s medical conditions and/or their qualifying score using the CDAT.

EVIDENCE

8.       At the start of the hearing, the applicant tendered a written submission to the Tribunal (A1) in which she summarised many of the points she subsequently gave as oral evidence.  The applicant indicated that she was experiencing financial difficulties because the cost of the natural therapy treatment that was effective in treating her daughters’ medical conditions, was not reimbursed through Medicare and/or the Health Care Cards which her daughters held.  In her statement, she stated:

…Especially Sandy is still using natural remedy daily and Papaw Oinment [sic] for skin 200g, ($24.50), and lasting up to two weeks.  She is on and off taken eczema herbal formula ($15) 200 tablets, it lasts twelve days, Zinc and LactoBac, each cost $25 to $35 a bottle in between, and each lasts about two months.

Joyce and Sandy need to take the following supplement daily, Vitamin C 500 mg, 300 tablets ($20) lasting three months, Tissue salts-Calc Fluor, 100 tablets ($7), lasting seven weeks, Cod Liver Oil 500ml ($12), lasting seven weeks,. The remedies for allergy, food intolerant and illness etc..,Vitamin supplements for internal absorbing.  These natural remedies treat internally, the result takes longer than drugs, but the skin has been improving slowly.

Joyce suffers the severe eczema from when she was about six months old onward (1997).  It was beginning with G.P’s prescription of a mild then to strong cortisone cream, next visiting several paediatricians. However the condition got worse, until maternal nurse Ann Pace recommended me to homeopath Megan Pilkington in Montmorency mid 1998.  Joyce was eighteen months old.  Her condition was improving but I still need to monitor her food very carefully to minimus [sic]  the cause of flaring up the eczema.

Sandy also used the remedy but her case was severe and shocking, who was covered up from head to foot.  Basically she is allergic to everything.  Such as egg, nuts, preservative, chemical, artificial colour, artificial sweeten, any meats, most high citrus fruits and night vegetables.

It was year 2000, the family doctor in Diamond Creek Clinic; Dr Winnie Kwan transferred Sandy to Dr Bronwyn Francis, a consultant paediatrician, then Dr Francis recommended DR Ho in Royal Children’s Hospital (April 2000), a skin allergy specialist as an out patient.  Sandy was also admitted three days in hospital for eczema.

She had been examined by a few skin specialists and Dermatology; she was bandaged for over a year to prevent skin wicking and breeding, every four hours and needing to reapply the bandages to keep the skin in moist condition, but the condition remained the same.  Nothing was improving.  The remedy could only minimus [sic]  the condition.  Both girls still visited Dr Francis regularly until December 2001, as we have moved to Corio.

Both girls were still taking remedy from Megan Pilkington.  February 2002 she recommended Steven Mouratidis in Essendon.  He is a Natural therapy, specialising in allergy elimination. It was a major improvement after about four months’ treatment plus daily medications from him.  Sandy’s digestion has improved a lot…but she still need medication aid.  The condition may be worst dual [sic] to her illness or over tiredness.  The last visiting Steven was in Oct 2004.  the medication has been run out since Dec 2004, her condition was getting worse from then.

Chiropractor Vicki Ryan was recommended…in July 2004.  Both girls have several treatments since then.  Chiropractic improves the blood circulation, relief the nerves and spinal stress etc…

9.       The applicant told the Tribunal about the difficulties the girls encountered at school and kindergarten because of their condition.  She described the monitoring that was needed to ensure the children did not eat the wrong foods and the need for the teachers to ensure that they drank water during the day.  The applicant told the Tribunal about the expensive organic food she had to buy and described how she had to apply cream on Sandy’s skin many times a day.  She said Joyce was improving but still suffered some symptoms.  She also showed the Tribunal photographs of the severe impact of the condition on the girls’ skin. 

10.     The applicant said that she had separated from the children’s father about 5 years ago when the children were both young.  She said that she was born in Vietnam and came to Australia as a teenager.  She married at the age of twenty-nine and she and her husband bought a house in Diamond Creek.  The applicant said that as a baby, Joyce cried almost continuously until she was about 18 months old and that she visited the doctor nearly every day.  Eventually, Joyce was referred to a specialist and put on medication.  The applicant said that Sandy’s condition was even worse.  She said that the marriage did not survive the difficulties of having two children who were unwell.   The applicant moved from Diamond Creek and bought a house in Corio.  The applicant has now returned to study and is doing some Year 12 subjects whilst caring for the children on her own. 

11.     The applicant stressed that prescription drugs have been tried and failed to improve her daughters’ condition.  She said that the ongoing complementary therapies are working but the cost is not covered by Medicare or pharmaceutical benefits.  She described how difficult it is to manage on her income with the high cost of the treatment and the more expensive foods she needed to buy.  There was also the problem of being unable to buy cheaper synthetic clothes as the children needed to wear natural fabrics and long sleeves.  The applicant stated that the girls needed to keep out of the sun.  Long sleeves were required even in hot weather not because of the girls’ embarrassment but because the dust and heat would affect the skin.    The applicant confirmed that the girls are able to dress and feed themselves but that they still needed a lot of care, particularly Sandy.    

12.     Ms Armstrong gave evidence confirming the difficulties experienced by the applicant in looking after the girls.  She said that Sandy’s eczema was the worst case that had ever been seen at the family day care centre.  She said that Sandy’s skin would bleed if the cream was not regularly applied.  She expressed her concern at the applicant’s financial circumstances due to her inability to get any assistance in reimbursing the costs of the girls’ treatment.

13.     Debbie Elea, Co-ordinator of Family Day Care in the City of Greater Geelong, provided a statement in support dated 9 March 2005 (Exhibit A2).  She described the extra care and supervision that Sandy needed which included applying cream regularly, keeping her indoors in hot weather, ensuring she did not play in the sandpit as the sand irritates her skin, ensuring that her fluid intake is maintained and that she does not eat food other than her own.

CONSIDERATION OF THE ISSUES

14. Section 952 of the Social Security Act 1991 (the Act) defines a disabled child as a child under 16 years who has a physical, intellectual or psychiatric disability and is likely to suffer from that disability permanently or for an extended period of time.  Section 953 of the Act sets out the criteria for carer allowance:

953(1)     A person is qualified for carer allowance for a disabled child (the care receiver) if:

(a)the care receiver is a dependent child (disregarding subsection 5(3)) of the person; and

(b)the care receiver is an Australian resident; and

(c)either of the following applies:

(i)the disability from which the care receiver is suffering is declared, under subsection 38D(3), to be a recognised disability for the purposes of this section;

(ii)the care receiver has been assessed and rated under the Child Disability Assessment Tool and given a positive score under that assessment tool not less than 1, being a score calculated on the basis of a professional questionnaire score greater than 0; and

(d)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from:

(i)if the person is a member of a couple—the person, the person’s partner or the person together with another person (whether or not the person’s partner); or

(ii)if the person is not a member of a couple—the person or the person together with another person;

in a private home that is the residence of the person and the care receiver; and

(f)       the person is an Australian resident.

953(2)     A person is qualified for carer allowance for 2 disabled children (the care receivers ) if:

(a)each care receiver is a dependent child (disregarding subsection 5(3)) of the person; and

(b)each care receiver is an Australian resident; and

(c)each care receiver has been assessed and rated under the Child Disability Assessment Tool and given a positive score under that assessment tool less than 1, being a score calculated on the basis of a professional questionnaire score greater than 0; and

(ca)the sum of the scores of the care receivers under the Child Disability Assessment Tool is positive and not less than 1; and

(d)because of the disability from which each care receiver is suffering, each care receiver receives care and attention on a daily basis from:

(i)if the person is a member of a couple—the person, the person's partner or the person together with another person (whether or not the person's partner); or

(ii)if the person is not a member of a couple—the person or the person together with another person;

in a private home that is the residence of the person and each care receiver; and

(f)the person is an Australian resident.

15.     The term recognised disability is a physical, intellectual or psychiatric disability specified in Schedule 3 of the Child Disability Assessment Determination 2001 (as amended by the Child Disability Assessment Determination 2003) (the CDAD). 

16.     If the child in respect of whom carer allowance is being claimed does not have a recognised disability, the child must be assessed using the CDAT as described in Part 2 of the CDAD and given a score of not less than 1.00; being a score calculated on the basis of a Treating Health Professional questionnaire score greater than 0.00 (s 953(1)(c)(ii) of the Act).  There is also provision for looking at a combined score where there is more than one child involved in subsection 953(2).

17.     In reaching its decision, the Tribunal takes into account the oral and written evidence and submissions made at the hearing.

18.     On the basis of the medical evidence, the Tribunal finds that both Joyce and Sandy suffer from moderately severe atopic eczema which is not a recognised disability under Schedule 3 of the CDAD (s 953(1)(c)(i) of the Act).

19. Based on the applicant’s carer assessments and the medical assessments of Dr Darling, provided to the respondent in June 2004, Joyce and Sandy each received a CDAT score of 0.00 for the medical practitioner’s assessment and +1.00 for carer assessment. As the medical practitioner’s score was 0.00, they do not meet the requirements of s 953(1)(c)(ii) or s 953(2)(c). They therefore did not meet the requisite points individually or in combination.

20.     For these reasons, the Tribunal finds that the applicant does not satisfy the criteria for carer allowance.

21.     Whilst the Tribunal sympathises with the applicant’s plight and recognises that complementary therapies can be effective tools in treatment of certain conditions, it does not have discretion to overlook legislative requirements in determining whether the applicant is able to be paid carer allowance.

DECISION

22.     The Tribunal affirms the decision under review.

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Nathaniel Wills

Administrative Assistant (Legal)

Date of hearing:  21 March 2005

Date of decision:  12 July 2005
Advocate for applicant:                 Self-represented
Advocate for respondent:             Mr S. Meehan, Centrelink