PKDK and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 221
[2013] AATA 221
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2977
Re
PKDK
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 12 April 2013 Place Sydney Decision Summary
The decision under review is affirmed.
.......................[SGD].................................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY — Allowances — Carer allowance — Whether child has recognised disability — Whether intense care was provided — Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) - ss38E(3); 953
SECONDARY MATERIALS
Disability Care Load Assessment (Child) Determination 2010 – Part 3 s 15(2)(a)
REASONS FOR DECISION
Senior Member A K Britton
12 April 2013
The applicant has applied for review of the decision made by the Secretary and affirmed by the Social Security Appeals Tribunal (SSAT), to cancel her carer allowance received in respect of her son who is now five years of age. So as to not to disclose the identity of the child, in these reasons I will refer to the applicant by the pseudonym PKDK.
The applicant was granted carer allowance in respect of her son in June 2009. Centrelink decided that the applicant was no longer qualified to receive carer allowance and stopped payment in January 2012, following the conduct of a review. The stated reason for that decision was that the applicant did not meet the criteria for qualification for carer allowance.
In October 2012 the child sustained a serious leg injury requiring surgery and a lengthy period of hospitalisation. The allowance was reinstated on 14 October 2012 and continues to be paid to the applicant.
The question I must decide is whether the decision to cancel the applicant’s carer allowance in January 2012 was the correct and preferable decision. That question is to be answered by reference to the child’s health and the nature of the care he was provided at the time of the cancellation decision and not by reference to any subsequent deterioration in his health.
Criteria to qualify for carer allowance
To qualify for a carer allowance in respect of a disabled child under 16, a person must satisfy the criteria in s 953 of the Social Security Act 1991 (Cth) (the Act).
A disabled child means a person under 16 who has a physical, intellectual or psychiatric disability, and is likely to suffer from that disability permanently or for an extended period (s 952).
A person claiming carer allowance must provide care and attention on a daily basis to the child in a private home in which they both live, and either:
(i)the child’s disability must be one which is declared, under s 38E(3) of the Act, to be a recognised disability for the purposes of s 953; or
(ii)the care provided to the child must be given a qualifying rating of intense according to the Disability Care Load Assessment (Child) Determination (the Determination).
There are other criteria, none of which is in dispute in this case.
Was the child’s disability a “recognised disability”?
The applicant will qualify for a carer allowance at the date of the cancellation decision if, at that time, the child had been diagnosed as suffering from a condition declared to be a “recognised disability” (ss 953 and 38E(3) of the Act). Schedule 3 of the Determination lists a number of conditions declared to be “recognised disabilities”.
General practitioner Dr K Ismail, in a report dated 24 December 2012, listed the child’s “primary disability or medical condition[s]” as: enuresis, bronchial asthma, recurrent upper respiratory tracts infections and hyperactivity. When questioned in these proceedings about whether the child suffers from any other conditions the applicant stated that he has suffered from “panic attacks” since birth.
None of the conditions for which the child has been diagnosed is listed as a “recognised disability” by the Determination. Panic attacks is not listed as a recognised disability.
Therefore the first criterion for qualification for carer allowance is not met.
Did the applicant provide “intense” care to the child?
The Secretary does not dispute that the applicant provided care and attention on a daily basis to her son but contends that that care does not attract a rating of “intense” according to the Determination.
The Determination rates the care provided to a child according to scores determined on the basis of questionnaires completed by the carer (the Assessment of Care Load questionnaire) and by the child’s doctor (the professional questionnaire). To achieve a qualifying rating of intense, a minimum score must be achieved on both. The minimum score for the Assessment of Care Load questionnaire (the ACL questionnaire) and the professional questionnaire is 85 and zero, respectively (s 15(2) of the Determination).
It is agreed that the minimum score for the professional questionnaire was achieved. Dr Ismail completed the professional questionnaire in December 2012, rating the applicant’s score as +0.31.
The Secretary however contends that the applicant did not achieve the minimum score for the ACL questionnaire. The applicant cannot read or speak English. She completed the questionnaire with the assistance of a friend on two occasions: 1 February 2012 and 27 March 2012. A score of 42 was achieved on the first occasion and 23 on the second.
In June 2012 the SSAT administered a third questionnaire. In its reasons for decision ([PKDK] and Secretary and Chief Executive Centrelink (Unreported, Social Security Appeals Tribunal, R Taylor, Member, 20 June 2012)) the Tribunal recorded at [14]:
The Tribunal went through the questionnaire with [the applicant] with the assistance of an interpreter. The answer to each question was thoroughly explored. Following the hearing the questionnaire was rescored and a score of 37 obtained… This is less than the required 85 points …
The applicant has now completed the ACL questionnaire on three separate occasions. On each occasion the score fell well short of the requisite 85 points. While there is little evidence about the circumstances in which the first two questionaries were completed, I am satisfied that the applicant was given a fair and reasonable opportunity to complete the questionnaire at the SSAT hearing.
Because the applicant has not achieved a score of at least 85 points in any of the ACL questionnaires completed, she has not achieved a qualifying rating of “intense” and therefore does not meet the second criteria for qualification for carer allowance.
Was the decision to cancel the allowance the correct decision?
There is no doubt that in early 2012 the applicant’s son was suffering from a number of significant medical conditions. It is also plain that at that time the applicant was providing her son with a great deal of daily care and attention. Nonetheless, as the child was not suffering from a recognised disability and the care he was provided did not achieve a rating of intense under the Determination, the applicant did not qualify for payment of carer allowance and the decision to cancel her allowance must be affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ..............[SGD]..........................................................
Associate
Dated 12 April 2013
Date(s) of hearing 8 April 2013 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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