Robinson and Department of Family and Community Services

[2005] AATA 242

DECISION AND REASONS FOR DECISION [2005] AATA 242

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/818

GENERAL ADMINISTRATIVE DIVISION		)
Re		Fiona Robinson

Applicant

And Department of Family and Community Services

Respondent

DECISION

Tribunal Dr Ion Alexander, Member

Date17 March 2005

Place Sydney  

Decision The decision under review is affirmed.

[Sgd]  Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY- qualification for carer allowance – disabled children - Child Disability Assessment Tool –special care needs – specialised equipment – decision under review is affirmed.

LEGISLATION

Social Security Act 1991 - section 953

REASONS FOR DECISION

17 March 2005  Dr Ion Alexander, Member

1.      This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 1 June 2004 that affirmed a decision of an authorised review officer (“ARO”) of Centrelink to reject Miss Fiona Robinson’s claim for Carer Allowance dated 22 January 2004.

2.      At a hearing before the Administrative Appeals Tribunal on 8 December 2004, Miss Robinson was self represented. Ms Jane Green, an advocate from the Administrative Law section of Centrelink, appeared for the Secretary, Department of Family and Community Services (“the Respondent”).

3. The Tribunal took into evidence the documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (TD1), an e-mail from Marcia Kingston dated 7 December 2004 (R1), a document dated 21 October 2004 pertaining to a new list of recognised conditions (R2) and the Child Disability Assessment Amendment Determination 2003 (R3).

BACKGROUND

4.      Miss Fiona Robinson, the Applicant, is a single mother who has a 12 year-year old son called Joshua. Joshua suffers from a condition called Idiopathic Anaphylaxis. This condition makes Joshua prone to acute allergic-type reactions that can have a number of consequences including difficulty with breathing. The cause for these reactions is unknown and they can occur with little warning.  He also has asthma.

5.      Joshua is on regular medication and often requires additional acute treatment which may include the injection of adrenaline. He is frequently required to attend Westmead Children’s Hospital Emergency and must at all times be under the care and supervision of an adult who is familiar with his condition and who has been trained to use an Epipen. In general the supervision is provided by Miss Robinson herself although other family members, and teachers at Joshua’s school, are also involved. This degree of supervision places a considerable burden on Miss Robinson.

6.      The Epipen is an automatic injector containing adrenaline which has an expiry date and requires regular renewal. The Epipen has been prescribed since 2001 and Joshua is required to carry one with him at all times. In addition his school also keeps one available. Since 2001 Joshua has needed approximately 10 adrenaline injections per year with an Epipen being used approximately three times per year.

LEGISLATION AND CONSIDERATION OF EVIDENCE

7. Section 953 of the Social Security Act 1991 (“the Act”) sets out the conditions for a person to qualify for a carer allowance for a disabled child.

8.      Joshua’s condition is not a recognised disability (section 953(1)(c)(i)) and therefore for Miss Robinson to qualify for a carer’s allowance Joshua needed to be ”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”  (section 953(1)(c)(ii)).

9.      The assessment is made from information which is provided by the treating doctor in a questionnaire entitled “Carer Allowance Treating Doctors Report” (“TDR”) and by the carer in another questionnaire entitled “Functional Assessment for a child–under 16 years”.

10.     On the 24^th of January 2004 Miss Robinson applied for a Carer’s Allowance. She applied  for the fortnightly payment as she already had a Health Care Card. This application was not successful on the grounds that the score calculated from the Treating Doctor’s Report was not greater than 0. The affirmation of this decision by the SSAT being the grounds for the current appeal.

11.     At the hearing it was agreed by both parties that the key issue remaining in dispute was question 16M-10i of Part C (Special Care Needs) of the functional assessment by the treating doctor and the identical question in the claimant questionnaire 10C-10i.

12.     The question asks whether the “Child requires specialised equipment, prosthesis  or technology to communicate (e.g computerised communicator, telephone typewriter (TTY), voice synthesiser, cochlear implant ,hearing aids or adaptations to a standard computer)”.

13.     Miss Robinson’s submission was that 16M-10i should have been accepted as a positive response on the grounds that an Epipen is specialised equipment and that the question should be read as referring to three alternative options, that is, specialised equipment or a prosthesis or technology to communicate.  

14.     Ms. Green for the respondent indicated that the specialised equipment refers only to equipment for communication but conceded that the question could be seen as ambiguous.

15.     The consequence of a positive response to this question was not clear. In order to progress the matter Ms Green agreed that the respondent would provide a written submission with regard to the meaning of question 16M-10i and also arrange for a dummy Child Disability Assessment Tool (“CDAT”) score based on the assumption of a positive response to question 16M-10i of the TDR.

16.     Additional written submissions were provided by both parties.

17.     A dummy CDAT score with the agreed amended response and adjustment to Joshua’s age, at the time of the original claim, resulted in a TDR score of +1 and a total CDAT score of +3.

18.     It follows that if I were to accept Miss Robinson’s submission she would be eligible for a carer’s allowance.

19.     Therefore, in order to settle this matter I must decide the meaning of the words in question 16M-10i.

20.     In deciding I have considered the submission of the respondent that the intention of the question is that “specialised equipment” relates only to equipment to communicate. To support this contention the respondent argues that all the questions In the Special Care Needs category are related to a particular functional area. Review of these questions supports this contention. Further support lies in the fact that that the question itself specifies a number of examples of equipment which are clearly for the purpose of communication.

21.     Although the grammatical meaning of the question in dispute could be seen as ambiguous I am persuaded that the legal meaning of the question is such that specialised equipment is equipment to communicate.

22.     It follows that the professional questionnaire score could not be greater than 0 and that Miss Robinson is not eligible for a Carer’s Allowance.

23.     In deciding this matter in favour of the respondent I acknowledge that Miss Robinson faces a difficult task as a carer for a child with a rare and complex medical problem and would be a worthy recipient of some financial support.

DECISION

24.     The decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         Neil Glaser
  Associate

Date of Hearing  8 December 2004 
Date of Decision  17 March 2005 
Representative for the Applicant               Miss Fiona Robinson   
Advocate for the Respondent                    Ms Jane Green