Riley and Secretary, Department of Social Services (Social services second review)

[2021] AATA 1919

Riley and Secretary, Department of Social Services (Social services second review) [2021] AATA 1919 (25 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/7024

Re:Melissa Riley

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:L RIEPER, MEMBER

Date:25 June 2021

Place:Hobart

The professional questionnaire score used to assess Miss Riley’s eligibility for carer allowance is less than the minimum required score. The Tribunal accepts this assessment, and notes there is no viable replacement questionnaire available. The Tribunal affirms the decision under review.

………[sgd]…………………
L Rieper, Member

SOCIAL SECURITY – carer allowance – adult disability assessment tool – consideration of medical information supplied – decision under review is affirmed.

Legislation

Social Security Act 1991 (Cth)

Adult Disability Assessment Determination 2018

Cases

Worthing and Secretary, Department of Families, Housing, Community services and Indigenous Affairs [2009] AATA 246

REASONS FOR DECISION

L Rieper, Member

25 June 2021

INTRODUCTION

1. Miss Riley seeks a review of a decision made by the Social Security and Child Support Division of this Tribunal (SSCSD) on 13 October 2020.

2. The issue to be determined is whether Miss Riley qualified for carer allowance following the claim she made on 8 January 2020.

3. The General Division held a hearing by telephone on 10 June 2021.  Miss Riley represented herself and the Secretary was represented by Ms Edwards of Services Australia.

   QUALIFICATION FOR CARER ALLOWANCE

4. The qualifications for carer allowance in the case of a carer who lives in the same home as the care receiver are set out in s 954 of the Social Security Act 1991 (the Act).  Relevantly, sub-s 954(1) states:

   (1)  A person is qualified for carer allowance for a disabled adult (the care receiver) if:

   (a)  the care receiver is an Australian resident; and

   (b)  the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

   (c)  the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; 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 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; and …

5. The Secretary concedes that sub-ss 954(1)(a), (b), (d) and (f) are satisfied; and so only satisfaction of sub-s (c) is in issue.

6. Definitions for carer allowance are contained in s 952 of the Act.  “Disabled adult” is defined as:

   disabled adult means a person aged 16 or more who:

   (a) has a physical, intellectual or psychiatric disability; and

   (b) is likely to suffer from that disability permanently or for an extended period.

7. There is no dispute that at the relevant time the care receiver was a disabled adult.

8. There is also no dispute that Miss Riley provided care.  It was apparent from her evidence, which was not challenged, that she provided considerable assistance to the care receiver in the period he was in her care.  Miss Riley could not recall the exact period, given the passage of time, but her recollection was that she provided care from late November or early December 2020 to about March 2021.

9. The Adult Disability Assessment Tool (ADAT) comprises a questionnaire to be completed by the claimant and a professional questionnaire to be completed by the care receiver’s treating health professional.  The ADAT assesses the care receiver’s level of disability, emotional state, behaviour, and special care needs.

10. The ADAT is contained in the Adult Disability Assessment Determination 2018 (the ADAT Determination) (made under s 38C of the Act). Schedule 1 to the ADAT Determination contains the questionnaires and sch 2 contains the rating method.

    EVIDENCE AND CONSIDERATION

11. On 9 January 2020 Miss Riley submitted medical evidence to Centrelink in support of her claim.  The evidence took the form of a professional questionnaire form which was completed by Dr Parry, a general practitioner.  Dr Parry’s responses to the questionnaire translated to a score of 10.5 points, which is less than the 12 points required by sub-s 954(1)(c).

12. In light of the professional questionnaire completed by Dr Parry, Ms Riley’s claim for carer allowance was rejected by Centrelink on 27 March 2020; and that decision was affirmed by an authorised review officer on 26 August 2020.  As already noted, Miss Riley was also unsuccessful in her application to the SSCSD.

13. Section 2.2 of the ADAT Determination states that if the decision-maker is not satisfied that the professional questionnaire is an accurate reflection of the person’s disability, emotional state, behaviour and special care needs, the decision-maker must ask for a replacement professional questionnaire to be completed by another treating health professional. The SSCSD considered whether to request the Secretary to provide a replacement professional questionnaire but decided not to because by that time the care receiver had left Miss Riley’s care.

14. Dr Parry made some amendments to the professional questionnaire on 23 June 2020, but the score did not change.  Miss Riley submitted the amended form on 24 June 2020.

15. Prior to the hearing Miss Riley contacted Dr Parry regarding the professional questionnaire.  He declined to amend the form and signed a note to that effect, which is in evidence before the Tribunal. 

16. Dr Parry also gave evidence to the Tribunal.  He said that he consulted with the care receiver on three occasions.  It was on the first occasion that he completed the professional questionnaire.  Miss Riley disagrees with two of the answers that Dr Parry gave in the professional questionnaire relating to the care receiver’s day-to-day care.  The first is in respect of feeding and the second is in respect of grooming.  Miss Riley’s evidence was that the care receiver could not feed himself and that if left alone he would eat with his hands.  Miss Riley also said that he required assistance with grooming.

17. Dr Parry declined to change the answer to either question.  In respect of his recollection of the consultation, Dr Parry recalled taking a history from the care receiver and talking through the questions.  His evidence was that he “would have” ticked the boxes in the professional questionnaire based on what the care receiver said but also “to some extent” what Miss Riley said.

18. Whilst the Tribunal accepts that Miss Riley genuinely believes that the questions should have been answered differently, the Tribunal is satisfied that the answers reflect the professional opinion of Dr Parry at the time he consulted with the care receiver and Miss Riley and completed the professional questionnaire.  Further, the Tribunal notes that it has long been settled that the Tribunal cannot go behind the answers to the professional questionnaire.[1]

    [1] See, for example, Worthing and Secretary, Department of Families, Housing, Community services and Indigenous Affairs [2009] AATA 246 at [12]

19. The Tribunal therefore accepts Dr Parry’s assessment as set out in the professional questionnaire.

20. The Tribunal notes that in the professional questionnaire completed by Dr Parry he initially indicated that the care receiver’s medical condition was temporary and likely to continue for less than six months.  He noted that the care receiver only needed care until he found public housing.  On 23 June 2020 he amended the form to indicate that he considered it permanent.

21. It is now well over 12 months since Dr Perry completed the professional questionnaire. A replacement professional questionnaire obtained from another treating health professional now is unlikely to be of any assistance in assessing the care receiver’s need for care at the time of the claim.  There also remains the problem that Miss Riley is no longer in touch with the care receiver and so he is not readily available for an assessment or to identify his treating health professional/s.  That means that the Tribunal is left with Dr Parry’s contemporaneous assessment, and that assessment is insufficient for Miss Riley to qualify for carer allowance. 

22. In light of the evidence before it, the Tribunal has no alternative but to affirm the decision under review.

23. For completeness, the Tribunal notes that Miss Riley made contact with the Tribunal via email after the conclusion of the hearing raising issues regarding Dr Parry’s evidence which were not raised with Dr Parry when Miss Riley was given the opportunity to ask him questions.  A copy of Miss Riley’s email was provided to the Secretary’s legal representative.  The contents of Miss Riley’s email do not change the Tribunal’s decision.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of L Rieper, Member.

................[sgd].................................

Associate

Dated: 25 June 2021

Date(s) of hearing:	10 June 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Ms Julie Edwards, Services Australia