ROBERT KOEVOETS and SECRETARY, DEPARTMENT OF FAMILIES,HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 738

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 738

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1741

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT KOEVOETS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES,HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal MS N BELL, Senior Member

Date25 September 2009

Place Sydney

Decision  The decisions under review are affirmed

.........................SGD.....................

Ms N Bell, Senior Member  

CATCHWORDS

Social Security – Whether Applicant is eligible to receive carer payment and carer allowance – adult disability assessment tool – decisions under review are affirmed.

Social Security Act 1991

REASONS FOR DECISION

25  September 2009 MS N BELL, Senior Member        

1.      Mr Koevoets applied for carer payment and carer allowance in respect of Mr Norman Schmidt in 2007.  His claims were rejected by the Centrelink delegate of the Secretary, initially on the basis that Mr Koevoets had provided no proof of permanent residence or identity.  When Mr Koevoets sought review by an Authorised Review Officer in January 2009, and provided further medical information for that purpose, the rejection of the claims was affirmed on the basis that Mr Koevoets did not achieve the scores under the Adult Disability Assessment Tool (ADAT), contained in the Adult Disability Determination 1999, required for eligibility for each of the payments.

2.      Mr Koevoets was disturbed by the initial reason for rejection of his claims, but it became clear at the hearing of this application that his permanent resident status and his identity are no longer questioned by Centrelink and do not arise as issues in this application.

issues

3. The relevant legislation is sections 38C, 198 and 954 of the Social Security Act 1991 (the Act) and the Adult Disability Assessment Determination 1999

4. Section 38C of the Act provides as follows:

38C  Adult Disability Assessment Tool

(1)       The Secretary may, by legislative instrument (the determination):

(a)       devise a test for assessing the disability, emotional state, behaviour and special care needs of a person aged 16 or more; 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).

(2)       The scale referred to in subsection (1) is a scale that provides for a range of scores that indicate the different levels of physical, intellectual or psychiatric disability of persons.

(3)       The determination is, in this Act, referred to as the Adult Disability Assessment Tool.

5. The Adult Disability Assessment Determination 1999 provides that the ADAT will involve the completion of two questionnaires, namely the claimant questionnaire and the professional questionnaire, with the latter being completed by a treating health professional. Further, pursuant to Step 5(d) contained within Schedule 2 (Rating Method) a professional questionnaire score of 12 is the minimum score permitted if an individual is to qualify for payments of carer allowance pursuant to subsection 954(1)(c) of the Act. Step 5(a) requires that a score of 10 on the professional questionnaire must be achieved in order for the Applicant to qualify for carer payment pursuant to subsection 198(2)(a)(i) of the Act.

6. Section 954 of the Act provides relevantly:

"Qualification for carer allowance—caring for a disabled adult

954(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, and been given a score of not less than 30, under the Adult Disability Assessment Tool; 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."

7. Section 198 of the Act provides relevantly:

" 198 Qualification for carer payment

(1) A person is qualified for a carer payment if the requirements of this section are met.

…

Constant care of disabled etc. persons

….

198 (2)           The person must personally provide constant care for:

(a)       either:

(i)        if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10;…”

8.      In addition, I note that paragraph 3 of Part 2.2 of the ADAT provides:

"(3) If the Secretary is not satisfied that the professional questionnaire is an accurate reflection of the person’s disability, emotional state, behaviour and special care needs, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional."

9.      From these provisions, the following issues emerge for consideration:

i)         in relation to carer payment, whether Mr Schmidt has been assessed and given an ADAT score of at least 25, including a rating from the health professional questionnaire of at least 10; and

ii)        in relation to carer allowance, whether Mr Schmidt has been assessed and given an ADAT score of at least 30, including a rating from the health professional questionnaire of at least 12.

consideration

10.     Dr Cholakyan is Mr Schmidt’s general practitioner and, according to Mr Koevoets, has treated Mr Schmidt for many years.  Dr Cholakyan provided two professional questionnaires – one in November 2007 and another in January 2009.  In the first questionnaire, Dr Cholakyan gave a score of 8.5 and in the second he gave a score of nil.

11.     Mr Koevoets said that Mr Schmidt has a lot of problems, including a heart condition, but Dr Cholakyan doesn’t really know him even though he has been treating him for many years.  He said Mr Schmidt always puts on a smiling face when he sees Dr Cholakyan.  Mr Koevoets said he considers Mr Schmidt to be mentally ill and described him as sometimes violent and abusive.  However, he said he is not aware of him ever having been treated for any psychiatric condition or of there being any such diagnosis.  He also said Mr Schmidt has a problem with alcohol  and, under his care has reduced his consumption from seven bottles of brandy per week to one glass per night.  He said it is very hard to control Mr Schmidt because he bahaves “abnormally and contrarily”.

12.     Mr Koevoets said he tried, with the assistance of a Centrelink social worker, to have Mr Schmidt assessed by doctors at North Shore Hospital, but Mr Schmidt would not co-operate.

13.     I note that the professional questionnaires completed by Dr Cholakyan make no mention of a psychiatric condition and detail only Mr Schmidt’s congestive cardiac failure and severe eczema.

14.     I also note that, while there is some discrepancey between the answers given, in relation to questions such as mobility, continence, cognitive function and behaviour by Dr Cholakyan on the professional questionnaires and those given by Mr Koevoets, the distance between them is not significant.

15.     I have no option but to conclude that, because Mr Schmidt does not have the required scores under the ADAT, Mr Koevoets is not qualified to be paid carer allowance or carer payment.

16.     I note that Mr Koevoets considers that Mr Schmidt suffers from an as yet undiagnosed psychiatric condition.  In the absence of any medical report or professional questionnaire dealing with this possible condition, and in the absence of any willingness on the part of Mr Schmidt to have it investigated, there is little that a decision maker can do to assist Mr Koevoets or Mr Schmidt.

decision

17.     The decisions under review are affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Snr Member Bell

Signed:         .........................SGD............................................................
  Associate: Felicia Daniele

Date/s of Hearing  1 September 2009
Date of Decision   25 September 2009
Solicitor for the Applicant           Self-represented
Solicitor for the Respondent      Mr D Buchanan, Centrelink Legal Services Officer