Plant and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1807
•27 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1807
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2007/74
GENERAL ADMINISTRATIVE DIVISION ) No 2007/1332
| Re MELISSA PLANT | |
| Applicant |
And SECRETARY, DEPARTMENT of FAMILIES, COMMUNITY SERVICES and INDIGENOUS AFFAIRS
Respondent
DECISION
| Tribunal | Mr RG Kenny, Member |
Date27 September 2007
PlaceBrisbane
| Decision | Q2007/1332 The Tribunal sets aside the decision under review and substitutes its decision that carer allowance is payable with effect from 16 October 2006. Q2007/74 The Tribunal affirms the decision under review. |
...................[Sgd]...........................
RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY – cancellation of carer allowance – medical evidence establishing a score of at least +1 on the Child Disability Assessment Tool – cancellation decision incorrectly made – decision set aside
Decision to reinstate carer allowance – backdated for maximum period of 12 weeks – decision affirmed
Applicant precluded from receiving a “one-off” payment of carer allowance – decision affirmed
Social Security Act 1991 (Cth) ss 38D, 953, 992T
Child Disability Assessment Determination 2001
Social Security (Administration) Act 1999 (Cth) ss 11, 13, 42, 152, Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Secretary, Department of Employment and Workplace Relations v Mitchell (2006) 92 ALD 201
REASONS FOR DECISION
| 27 September 2007 | Mr RG Kenny, Member |
Application
Since 1994, Melissa Plant (the applicant) had been in receipt of carer allowance, a form of income support payable in accordance with the Social Security Act 1991 (the Act). It related to the needs of her son, Jake, who was born in 1992 and who suffers from insulin dependent (type 1) diabetes mellitus. In February 2005, Centrelink advised Mrs Plant that a review was to be undertaken in relation to the payment of carer allowance. As a result of that review process, Centrelink cancelled Mrs Plant’s carer allowance with effect from 13 May 2005. That decision was affirmed by an authorised review officer on 21 June 2005 and, in turn, by the Social Security Appeals Tribunal (the SSAT) on 15 November 2006.
On 26 July 2006, Mrs Plant lodged with Centrelink a further claim for carer allowance. This was granted with effect from 25 April 2006. That decision was affirmed by an authorised review officer on 5 December 2006 and then by the SSAT on 22 January 2007.
Mrs Plant now seeks review of those decisions by the Administrative Appeals Tribunal (the Tribunal).
Issues and Legislation
The qualifying criteria for payment of carer allowance in the case of a disabled child, described as the “care receiver”, are set out in s 953 of the Act. The only element of those criteria which is in dispute in relation to Jake's diabetes is that provided for in s 953(1)(c)(ii) of the Act that:
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.
The Child Disability Assessment Tool (CDAT) is a test devised by the respondent through the making of the Child Disability Assessment Determination 2001 (the Determination) in accordance with s 38D of the Act. The procedures for applying the CDAT are set out in the Determination and expanded upon in Part 3 of the Guide to Social Security Law (the Guide). Part 1 of the Guide describes the CDAT procedure:
[It] measures the severity of disability by assessing whether the child functions according to standards appropriate to their age. The child's ability is measured in a series of functional categories: language, self-care, social and community, and fine and gross motor. Additionally, behaviour is taken into account where it is significantly affected by the disability, along with special care needs. The CDAT is designed to provide equal access to CA (child) by carers of children with similar levels of disability, even where the cause and type of disability differ.
The score is calculated on the basis of the responses given in questionnaires completed by the person claiming the allowance and by a treating health professional (THP). The first issue for determination is whether the questionnaire responses completed in Jake's case reached the score threshold requirement as required by s 953(1)(c)(ii) of the Act and whether, accordingly, carer allowance was appropriately cancelled.
The reinstatement of the carer allowance took effect from 25 April 2006. The second issue for determination is whether it is payable to Mrs Plant from an earlier date. This raises for consideration ss 11, 13, 42 and schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act). A third issue is whether a “one-off” carer payment may be made to Mrs Plant in accordance with s 992T of the Act.
Applicant’s Case
Initially, Mrs Plant was advised that the cancellation of Jake's allowance was based upon his having attained the age of 13 years rather than on any medical assessment of his condition. Subsequently, she learned that there was no such age barrier.
From 1994 until 2003, Jake’s treating doctor was Dr Michael Vuocolo. Since then, it has been Dr Mark Anderson. In order to calculate the relevant CDAT score, questionnaires were was sent to Dr Vuocolo and Dr Anderson. Prior to this, a questionnaire was completed, on 28 April 2005, by Dr Darryl Finch who has not treated Jake. Dr Vuocolo and Dr Anderson completed questionnaires on 1 June 2005 and 25 July 2006, respectively. Dr Anderson completed a further questionnaire on 23 April 2007. The initial decision to cancel the carer allowance was based upon the report of Dr Finch. The authorised review officer’s affirmation of that decision was based upon the report of Dr Vuocolo. Both of those medical reports yielded a CDAT score less than zero and, accordingly, below the relevant threshold. Indeed, Dr Vuocolo’s questionnaire revealed a score of -2.62. The subsequent decision to grant the carer allowance was based upon Dr Anderson’s first report which resulted in a score of +2.45.
Mrs Plant contended that the information in the questionnaire completed by Dr Anderson in 2006 should be relied upon in considering the issue of cancellation of the carer allowance in 2005. She considered that there had been no change in the presentation of the effects of Jake's health condition over that time-frame and contended that arrears of carer allowance should be paid from the date of its cancellation.
Respondent’s Case
Mr Amundsen submitted that the report of Dr Vuocolo should provide the basis for calculating Jake’s CDAT score because it was completed at the time of the carer allowance review. He also submitted that Dr Anderson had conceded that certain changes should be made to his responses on his questionnaires and that this had the effect of lowering the CDAT score which had been calculated in accordance with his responses. Mr Amundsen also submitted that, even if it were determined that Dr Anderson’s responses were relied upon and a CDAT score above the relevant threshold was allocated to Jake, there could be no additional arrears of carer allowance to Mrs Plant. This was because the application for review of the original cancellation decision was lodged outside of the time-frame which would enable such arrears to be paid. He also submitted that the earliest date from which the carer allowance could be paid to Mrs Plant was the date determined by the respondent. Finally, he submitted that Mrs Plant’s circumstances did not fall within the terms of the provision which would enable a “one-off” payment to be made to her.
Consideration
Cancellation
Clause 2.2 of the Determination requires that the decision-maker be satisfied that the completed professional questionnaire is an accurate reflection of the functional ability, behavior and special care needs of the child under consideration. Subclause 2.2(3) provides:
If the Secretary is not satisfied that the professional questionnaire is an accurate reflection of the person’s functional ability, behaviour and special care needs, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional.
Subclause 2.2(4) provides that, if the score is not greater than zero, the test is taken to be completed. In this case, the threshold was not met on the analysis of the reports of either Dr Finch or Dr Vuocolo. On the basis of the information in Dr Anderson’s questionnaire, a score above zero was realized and this, along with the data provided by Mrs Plant, led to the reinstatement of carer allowance. The questionnaires completed by the medical practitioners include, in Part C, separate categories of functional assessment. These are Receptive language skills, Expressive language skills, Feeding and mealtime skills, Hygiene and grooming skills, Dressing skills, Social and community skills, Mobility – fine motor skills and Mobility – gross motor skills. Each category has a series of statements about the skill level of the person being assessed. As one progresses through the statements, they describe a diminishing skill level. However, in each case, the final entry is that the “child’s ability is age appropriate”. The statements selected by Dr Vuocolo reflected a higher skill level than did those selected by Dr Anderson. In his evidence, Dr Anderson conceded that, with some of the categories, he could have used the “age-appropriate” description. The responses given by Dr Anderson in his 2007 report were identical to those provided in his 2006 report. He said that, in completing the later report, he had not had the earlier report before him. Dr Anderson agreed with Mrs Plant that Jake’s condition had remained the same throughout and that its presentation in 2005 was the same as he indicated in his 2006 and 2007 reports.
I am satisfied that the report of Dr Vuocolo is not an accurate reflection of Jake’s functional ability in 2005. Dr Anderson was his treating doctor in 2005 and he completed two questionnaires with almost identical assessments of Jake’s condition. I am satisfied that the functional ability is accurately reflected in the reports of Dr Anderson. On that basis, the carer allowance should not have been cancelled.
Where an adverse decision is made by the respondent concerning, in this case, carer allowance, an application to review that decision must be made within a limited statutory time-frame. In this case, the decision was made by the authorised review officer on 21 June 2005. The application for review by the SSAT of that decision was made on 16 October 2006. In the event that a favorable decision had been made by the SSAT, the date of effect of that decision is provided for in s 152(4) of the Administration Act which reads:
152 Date of effect of SSAT decisions (other than Activity Agreement decisions)
(4) If:
(a) a person is given written notice of a decision under the social security law; and
(b) the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and
(c) the SSAT varies the decision or sets the decision aside and substitutes a new decision; and
(d) the effect of the decision of the SSAT is:
(i) to grant the person’s claim for a social security payment or a concession card; or
(ii) to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii) to increase the rate of the person’s social security payment;
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.
I am satisfied that the application for review by the SSAT was made more than 13 weeks after Mrs Plant was given notice of the adverse decision. Under s 43(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Tribunal may exercise all powers and discretions that are conferred on the person who made the decision under review which, in this case, is the SSAT. Under s 43(6) of the AAT Act, the Tribunal’s decision is deemed to be that of the person who made the reviewable decision and the provision also gives the Tribunal discretion to back-date the effect of that deemed decision. It reads:
43 Tribunal’s decision taken to be decision of decision‑maker
(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
The effect of that provision was considered in Secretary, Department of Employment and Workplace Relations v Mitchell (2006) 92 ALD 201. There (at paragraphs 59-62), Deputy President Jarvis determined that the specific constraint in s 152(4) of the Administration Act should prevail over the general discretion to enable the decision to have retrospective effect under s 43(6) of the AAT Act. Mr Amundsen submitted that I should follow that decision and I accede to his submission in that regard. This means that the earliest date which can be set for the favourable decision concerning carer allowance is 16 October 2006. Unfortunately, this does not assist Mrs Plant because, as noted above and referred to below, the subsequent claim by Mrs Plant for carer allowance was granted with effect from 25 April 2006. Nevertheless, I set aside the decision of the SSAT and determine that the carer allowance is payable to Mrs Plant with effect from 16 October 2006.
Reinstatement
Section 11 of the Administration Act requires a claim to be made in order for a person to be granted a social security payment and this case was done by Mrs Plant on 26 July 2006. Section 42 of the Administration Act makes provision for determining the start day of the carer allowance. That provision refers to clause 3(1) Part 2 of Schedule 2 of the Administration Act which gives the general rule. It reads:
3(1) If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made.
An earlier date may be set in accordance with other provisions of the Administration Act. Thus, s 13(1) of the Administration Act reads:
13(1) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
In this case, Mrs Plant registered her intention to claim carer allowance on 18 July 2006 and lodged her application within the 14 day time-frame set out in s 13 of the Administration Act. This entitles her to be considered as having lodged her claim on 18 July 2006 and this has not been disputed by the respondent.
Backdating of the start day may also be achieved through the operation of subclauses 16(1) and (2) Part 3 of Schedule 2 of the Administration Act. They read:
16(1) If:
(a) a person is qualified for carer allowance for a care receiver who is a disabled child or for 2 care receivers who are disabled children; and
(b) the person makes a claim for carer allowance within 12 weeks after the day on which the person became qualified for the allowance;
the person's start day in relation to the allowance is the day on which the person became qualified for carer allowance.
16.(2) If:
(a) a person is qualified for carer allowance for a care receiver who is a disabled child or for 2 care receivers who are disabled children; and
(b) the person makes a claim for carer allowance more than 12 weeks after the day on which the person became qualified for the allowance;
the person's start day in relation to the allowance is the first day of the period of 12 weeks ending immediately before the day on which the claim was made.
Those provisions enable carer allowance to be backdated for a maximum of 12 weeks. This is not disputed by the respondent and, indeed, that period of backdating was extended to Mrs Plant by enabling the start day to be 25 April 2006. Those backdating provisions commenced operation on 1 July 2006 and are binding on the Tribunal. It follows that no earlier date may be set for the commencement of the resumption of carer allowance to Mrs Plant in 2006.
“One-off” payment
There is provision under the Act for a "one-off" payment to a recipient of carer allowance in certain cases. To that end, s 992T of the Act reads:
992T(1) A person (the qualified person) is qualified for a 2006 one‑off payment to carers (carer allowance related) if the following conditions are satisfied in relation to one or more instalments of carer allowance that have been paid to the person:
(a) the instalment was in respect of a period that includes 9 May 2006;
(b) the reason why that instalment covered 9 May 2006 was not only because of clause 16 or 17 of Schedule 2 to the Administration Act;
(c) the person was paid that instalment because of a claim the person made on or before 9 May 2006.
In Mrs Plant’s case, carer allowance was paid to her in a period which included 9 May 2006. However, this was because of the operation of the backdating effect of clause 16 of schedule 2 to the Administration Act. This means that the "one-off" payment referred to in s 992T(1) of the Act can not be made to her.
Decision:
Q2007/1332
The Tribunal sets aside the decision under review and substitutes its decision that carer allowance is payable with effect from 16 October 2006.
Q2007/74
The Tribunal affirms the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .....................................................................................
F. Kamst, Legal Research Officer
Date of Hearing 6 August 2007
Date of Decision 27 September 2007
The Applicant was not represented
For the Respondent Mr M Amundsen, departmental advocate
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