Re Anthony and Department of Transport and Regional Services

[2005] AATA 543

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 543

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/565

GENERAL ADMINISTRATIVE  DIVISION

Re:         CINDY ELIZABETH DALE

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             8 June 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review. 

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ carer allowance ‑ child suffering from attention deficit disorder and other conditions ‑ 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

8 June 2005  Regina Perton, Member

1.      This is an application by Cindy Elizabeth Dale (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 26 March 2004.  The SSAT affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 21 July 2003 to cancel carer allowance in respect of the applicant’s daughter, Charmaine Louise Dale (Charmaine).

2.      At the hearing on 16 February 2005, the applicant represented herself.  Ms Elizabeth King, 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‑T30), as well as further documents concerning Charmaine’s condition exchanged between the parties between October 2004 and December 2004. 

BACKGROUND

4.      The applicant is the mother of four children, including Charmaine, who was born on 6 June 1993.  As a young child, Charmaine suffered from severe asthma, ear problems and other medical conditions.  The applicant received child disability allowance (CDA) payments on account of Charmaine’s condition as from 8 May 1994.  She was subsequently diagnosed with Attention Deficit Disorder (ADD).  Centrelink undertook reviews of Charmaine’s condition in 1996 and 1998; and maintained payments to the applicant. 

5.      Legislative amendments in 1998 changed the name and the criteria for payment of the CDA.  The CDA became carer allowance and the methodology used to determine if a carer qualified changed with the introduction of the Child Disability Assessment Tool (CDAT) and the introduction of prescribed conditions.  If a child is not suffering from a prescribed condition, she or he is assessed pursuant to the CDAT and must achieve a particular score, depending on the level of the disability. The assessment is based on a questionnaire completed by the child’s doctor and her/his carer.  There was a moratorium from 1998 until 2003 on the reassessment of children whose carers had qualified under the pre‑1998 rules and who still required care.   

6.      On 21 July 2003, following a review of Charmaine’s condition which included Centrelink obtaining the applicant’s and a doctor’s response to questionnaires, Centrelink cancelled the applicant’s carer allowance.  The cancellation was on the basis that Charmaine’s condition did not meet the required score on CDAT nor was it was one of the prescribed conditions.   

7.      On 21 August 2003, the applicant sought review of the decision, stating:

Charmaine is our second child with ADD you currently have paid my sons Disability for ADD.  As you know ADD Medication is not on the National Health Scheme, so therefore buying suitable Medication for my Daughter would not be possible without Disability Payment.  Charmaine is unable to function as a normal child without Medication i.e.: dressing, eating, schooling, learning etc.  She has been on Medication since she was two (2) years old and is also very hard to manage in-between tablet time with anger, frustration, yelling and hitting, she is currently seeing Doctor Richard McNeill at Mountain Gate, Ferntree Gully.

8.      On 29 September 2003, an authorised review officer (ARO) affirmed the decision to cancel carer allowance.

9.      On 7 January 2004, the applicant sought review of the ARO’s decision by the SSAT.  The SSAT affirmed the decision on 26 March 2004.  Following the SSAT decision, the applicant lodged an application with the Tribunal on 10 May 2004. 

10.     The issue before the Tribunal is whether the applicant qualifies for carer allowance, on the basis of Charmaine’s disability, using the CDAT.

EVIDENCE

11.     The written documentation before the Tribunal included two CDAT assessments and the questionnaires on which they were based.  On 21 July 2003, Centrelink calculated a total score of -1.27 based on questionnaires completed a few days earlier by the applicant and a general practitioner, Dr R. Rasalam (T16 -T17).  On 27 October 2004 Victoria Legal Aid (VLA), which was then representing the applicant, provided the Tribunal with original questionnaires completed by the applicant, dated 4 October 2004, and by Dr R. B McNeil, Charmaine’s treating doctor since 1997, dated 30 August 2004.  A calculation of the CDAT score by an unknown person, based on those questionnaires, was also provided, showing a total score of ‑0.78.  On 8 December 2004, Centrelink provided the Tribunal with a copy of a letter sent to VLA based on the questionnaires completed by the applicant in October 2004 and Dr McNeil in August 2004.  In that letter Centrelink’s calculation of the CDAT score was zero, based on a professional score of ‑0.43 and claimant score of 0.43. 

12.     The applicant told the Tribunal that Dr Rasalam, who provided the report on Charmaine that led to the cancellation of carer allowance, is not Charmaine’s usual doctor.  She expressed disappointment that the most recent questionnaire did not reach the CDAT score required, given the level of care she provided to Charmaine.   The applicant said that she received carer allowance for her son Daniel, who requires less attention than Charmaine, despite his disabilities being classified as more serious.  She said that the objective analysis of the disability did not equate to the level of care that she needed to provide.  The applicant said that Charmaine, one of four children, was often extremely violent, assaulting her younger siblings and threatening to stab her brother and sisters.  She said that Charmaine’s school work is fine, but she does not mix well with other children.  While some of Charmaine’s physical ailments, such as her ear problems and asthma, have caused fewer problems as she has grown, her behaviour has deteriorated.  The applicant described various incidents that have occurred, the difficulties in raising four children with various ailments and the expenses she incurs in her attempts to improve their condition through diet and medication.

CONSIDERATION OF THE ISSUES

13. 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 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.

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). 

14.     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).

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

16.     On the basis of the medical evidence the Tribunal finds that Charmaine suffers from Attention Deficit Disorder (ADD) as the primary condition, with secondary diagnoses of intercurrent infectious middle ear disease and asthma. None of these diseases is a recognised disability under Schedule 3 of the CDAD (s 953(1)(c)(i) of the Act). Therefore, Charmaine must be assessed using the CDAT.

17. The Tribunal notes that Dr McNeil has had close contact with the applicant and Charmaine since 1997. The most recent assessment of Charmaine’s condition by Centrelink was based on the questionnaires provided by Dr McNeil and the applicant; and shows a CDAT rating of zero. The assessment based on the questionnaires completed by the applicant and Dr Rasalam also scored less than the requisite points. The Tribunal finds that Charmaine (the care receiver) does not satisfy s 953(1)(c)(ii) of the Act.

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

DECISION

19.     The Tribunal affirms the decision under review.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  16 February 2005
Date of decision:  8 June 2005
Advocate for applicant:                Nil‑ Self‑represented
Advocate for respondent:            Ms E. King, Centrelink