Patrus and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 943

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 943

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/635

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAFFA PATRUS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal N BELL, Senior Member
DR J Campbell, Member
DR T BAKER, Member

Date              6 November 2006

PlaceSydney

Decision The decision under review is affirmed

..............................................

Senior Member
  Ms N Bell

CARER PAYMENT – Profoundly Disabled Child – Severe Medical Condition - Fragile X Syndrome - Attention Deficit Hyperactivity Disorder – Does Not Have Three or More Conditional Requirements  - The Decision Under Review is Affirmed

Social Security Act 1991

REASONS FOR DECISION

1.      Mr Patrus has a son, Adrian, born on 16 September 2000.  Adrian has Fragile X syndrome, a genetic disorder causing intellectual impairment and a tendency towards violent outbursts.  As a result of his Fragile X syndrome, Adrian has cognitive and behavioural difficulties.  It has also been suggested that Adrian has Attention Deficit Hyperactivity Disorder. In addition, Adrian had an adenotonsillectomy in 2003, to alleviate obstructive sleep apnoea and his congenital hip dysplasia was corrected by surgery in 2002.   Adrian lives at home with his father, mother and two sisters.

2. Mr Patrus claimed carer payment for Adrian in November 2005 when Adrian was five years old. His claim was rejected on the basis that Adrian did not meet the definition of a “profoundly disabled child” in section 197(2) of the Social Security Act 1991. The decision was affirmed by an authorised review officer and by the social Security Appeals Tribunal.

issues

3.      To be eligible to receive carer payment, Mr Patrus must personally provide care for a “profoundly disabled child” (section 198(2) of the Act).

4. The term "profoundly disabled child" is defined in section 197(2). There is no dispute that Adrian satisfies the definition to the extent that he has a severe medical condition and, because of that condition, needs continuous personal care for six months or more. The third requirement of the definition is:

“… (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 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."

5. The issue for us to consider is, therefore, whether Adrian has three or more of the features set out in section 197(2)(c).

consideration

6. Mr Patrus said Adrian has faecal incontinence day and night and that he requires personal care on two or more occasions between 10.00 pm and 6.00 am each day. We accept that evidence and note that it shows that Adrian satisfies two of the three features required to be present by section 197(2)(c). We also accept Mr Patrus’ evidence about the difficulties and distress caused by Adrian’s behavioural problems.

7.      However, Mr Patrus said Adrian does not require a tube for feeding, has no tracheostomy and does not use a ventilator.  Nor does he require support to stand or have a terminal condition.

8.      On this basis, Adrian does not conform to the definition, in the Act, of a “profoundly disabled child”.  It follows that Mr Patrus is not eligible to receive carer payment.

9.      We have no doubt that the range of disabilities that Adrian suffers requires an extraordinary level of care from Mr Patrus and his wife.   Nor do we doubt the enormous impact of Adrian’s condition on all the members of his family.  We understand that to say that Adrian is not a profoundly disabled child, even in the face of his severe disability and all its effects, must sound as cruel and hollow logic to Mr Patrus.   However, we are bound by the legislation and must apply it to the very difficult circumstances of caring for Adrian.

decision

10.     The decision under review is affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed          .................. [ Sanjiv Shah ]………………
  Associate

Date of Hearing  5 October 2006
Date of Decision  6 November 2006

Representative for the Respondent        Pankaj Sharma