Rigney and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 1172
•15 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1172
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1240
GENERAL ADMINISTRATIVE DIVISION ) Re BELINDA JANE RIGNEY Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date15 October 2008
PlaceAdelaide
Decision For the reasons given orally at the hearing of this matter, the Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Carer Allowance for a disabled child – disabilities of asthma, multiple allergies, fructose malabsorption and migraine headaches – insufficient score under Child Disability Assessment Tool – no discretion to grant Carer Allowance in the circumstances – decision affirmed
Social Security Act 1991 ss 38D, 953
Social Security (Administration) Act 1999
REASONS FOR DECISION
15 October 2008 Senior Member L Hastwell 1. This matter was heard by the Tribunal on 15 October 2008. On that date the Tribunal affirmed the decision under review and now delivers reasons for that decision.
background
2. Ms Belinda Rigney has two children. Her child, Benjamin, who is 9 years of age, has been diagnosed with chronic moderately severe asthma, multiple allergies, fructose malabsorption and recurrent migraine headaches.
3. Ms Rigney submitted her claim for Carer Allowance on 29 June 2007. That claim was rejected by a Centrelink officer. Upon review, an Authorised Review Officer affirmed that decision.
4. The Social Security Appeals Tribunal (SSAT) also affirmed the decision and Ms Rigney applied for review to this Tribunal.
relevant legislation
5. Carer Allowance is provided for the in Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
6. Section 953 of the Act sets out the requirements that must be satisfied for a person to qualify for a Carer Allowance in respect of a child. It provides as follows:
“953 Qualification for carer allowance—caring for either 1 or 2 disabled children
Single child
(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.”
7. The Child Disability Assessment Tool (CDAT) as referred to in s 953(c)(ii) is defined in s 38D of the Act as follows:
“38D Child Disability Assessment Tool
(1) The Secretary may, by legislative instrument (the determination):
(a)devise a test for assessing the functional ability, behaviour and special care needs of a person aged under 16; and
(b)provide a method for rating the person by giving him or her, on the basis of the results of the test, a score in accordance with a scale of the kind described in subsection (2).
…
(4)The determination, in so far as it provides (in accordance with subsections (1) and (2)) for a test for assessing, and a method for rating, the functional ability, behaviour and special care needs of a person aged under 16 is, in this Act, referred to as the Child Disability Assessment Tool.”
8. On 28 November 2001, the Acting Secretary of the Department of Family and Community Services made a Child Disability Assessment Determination under this provision which is referred to as the Child Disability Assessment Determination and Part 2 of that Determination sets out the content of the questionnaire. The schedule to that questionnaire provides for the values to be assigned against answers.
issues
9. It is acknowledged that Ms Rigney satisfies the provisions of s 953(1)(a), (b), (d) and (f) of the Act. The sole issue to determine is whether s 953(1)(c) is satisfied, in other words:
·does Benjamin have a recognised disability for the purposes of the Act; or
·has Ms Rigney been assessed and rated under the CDAT and given a positive score of not less than 1?
does benjamin have a “recognised disability”?
10. The recognised disabilities are set out in Schedule 3 to the legislative instrument. It is common ground that Benjamin does not suffer from any of the disabilities or chronic medical conditions set out in that instrument. He therefore does not satisfy s 953(1)(c)(i) of the Act.
has ms rigney been assessed and rated under cdat and given a positive score of not less than 1?
11. The respondent (the Department) does not dispute that Benjamin suffers from a number of diagnosed conditions as set out in paragraph 2 (supra).
12. The treating doctor’s report that accompanied the application was prepared by Dr Chris Lamb (T6).
13. In response to question 6 of Part B of the treating doctor’s report, Dr Lamb indicated that Benjamin’s medical conditions required extra care and attention for 14 hours or more per week, that the conditions were severe and that he would be affected by the conditions for 52 or more days per year (T6/80).
14. In Part 3 of his report, which comprised the professional questionnaire referred to in s 953(1)(c)(ii) of the Act, indicated that none of the special care needs listed applied to Benjamin (T6/85).
15. Applying the CDAT, the Department then assessed and rated Benjamin’s medical condition and that resulted in a score of -1.12 for the professional questionnaire and of 0.00 for the carer assessment with a resulting total score of 1.12.
16. Because the score did not reach the level required under the relevant legislation, Carer Allowance was not granted.
17. Ms Rigney presented her case to the Tribunal. She thought it was most unjust that she is not granted Carer Allowance with respect to Benjamin.
18. She told the Tribunal that Benjamin had commenced a course of immunisation with respect to his allergies, but he has a complex and unusual condition which results in him having time off school because of asthma, headaches or allergies. He has a special diet because of his particular allergy to foods. She has a younger child who has none of these problems and the difference in the time taken to care for these two children is significant. There are trips to doctors involved, preparation of a special diet, which is a time consuming process, and the need for one of the parents to take time off work when he is unwell. A lot of the medications that Benjamin is required to take are not provided for under the Pharmaceutical Benefit Scheme and so there is additional cost involved, not just in his special diet, but also the cost of medication.
19. She expressed her frustration at the law as it currently stands. She knows of other parents who receive Carer Allowance for children that are less disabled than Benjamin. She feels that the CDAT does not produce a fair and accurate outcome in her case and is flawed.
consideration and application of the law
20. The Tribunal has no hesitation in accepting Ms Rigney’s evidence that Benjamin requires a significant amount of extra care than her other child who does not suffer from multiple health problems. She clearly has to commit extra time, energy and expense towards caring for him.
21. The Government has chosen to use the assessment done under the CDAT by the treating doctor as one of the determinants of eligibility for this allowance. If the various responses result in a score of less than 1, then there is no discretion to grant Carer Allowance.
22. Dr Lamb has completed the assessment undoubtedly to the best of his ability and the resulting score is less than 1. In the circumstances, the Tribunal is left with no discretion to grant a Carer Allowance, even though the Tribunal acknowledges that Benjamin would require significantly more care and attention that a child who does not suffer from multiple disabilities.
23. The CDAT may well be flawed and review of it may be required, but that is a matter for Government. The legislation as it stands is binding on the Tribunal and there is no discretion to go behind the CDAT score. In this case the score is insufficient for a grant of Carer Allowance.
24. If Ms Rigney considers the CDAT to be flawed, in that it fails to recognise some situations where a person should be recognised as providing sufficient extra care for a care receiver, then she should make submission to the appropriate lobby group or politician. Such instruments are reviewed from time to time by Government and are capable of being altered or amended by legislative instrument.
25. In the circumstances, the Tribunal has no choice but to affirm the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member
L HastwellSigned: .....................................................................................
AssociateDate of Hearing 15 October 2008
Date of Decision 15 October 2008
Advocate for the Applicant Self-representedAdvocate for the Respondent Ms L Giaretto
Centrelink Legal Services and Procurement Branch
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