ROSS Applicant And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITIY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 280

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 280

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/2719

GENERAL ADMINISTRATIVE DIVISION		)
Re		AUDREY ROSS

Applicant

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

Respondent

DECISION

Tribunal Ms L R Tovey, Member

Date20 April 2010

PlacePerth

Decision The Tribunal affirms the decision under review.

........(sgd) Ms L R Tovey.................

Member

CATCHWORDS

SOCIAL SECURITY – carer allowance – whether qualified – whether suffering from declared disability – failure to obtain treating doctor's report – whether psychiatrist's diagnosis can operate retrospectively

Social Security Act 1991 ss. 38D, 952, 953

REASONS FOR DECISION

20 April 2010 Ms LR Tovey, Member

1.      The Applicant seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") made on 10 June 2008, which affirmed the decision of the Respondent's Authorised Review Officer ("ARO") of 5 March 2008 to cancel the Applicant's carer allowance in respect of her son Aiden.

Factual Background

2.      The following facts, which I find from the Section 37 Documents, other documents tendered at the hearing and the Applicant's oral evidence, explain the manner in which the Applicant's carer allowance was cancelled.

3.      In 2007 the Applicant was receiving a carer allowance in respect of her son Aiden.  The basis on which the Applicant had been assessed as eligible for that allowance does not clearly appear from the documents made available to me.

4.      On 4 June 2007 a delegate of the Respondent wrote to the Applicant attaching two forms.  The first was a functional assessment report which was to be completed by the Applicant.  The second form was a treating doctor's report, which was to be completed by a doctor or specialist who attends the child.  The letter indicated that the forms needed to be completed and sent back to Centrelink within 21 days of the Applicant receiving the letter.

5.      On 12 June 2007 the Applicant signed a completed functional assessment form.  She returned that form to Centrelink at about that time.  At the beginning of the form she noted that:

"TDR cannot be completed until we see Paediatrician in Sept (4 referral) and wait for Pschy' = 3-6 months.  Paed' has to refer us onto Pschy'" (sic)

6.      A file note indicates that a Centrelink officer spoke to the Applicant on 20 June 2007 and was told by the Applicant that the Applicant could not get the treating doctor's report completed until December when she was to see a psychiatrist.  The Applicant was recorded as explaining that the paediatrician was unable to see Aiden until September and would not ethically be able to complete the treating doctor's form.  As a result the Applicant was recorded as indicating that the treating doctor's report would need to wait until after Aiden had seen a psychiatrist, and the Applicant didn’t know when this would be.  The Centrelink officer noted that the Applicant was told that the paediatrician could complete the treating doctor's report, and that if the report was not completed by December then the Applicant's carer allowance would be cancelled.

7.      The Applicant's account of the discussion on 20 June 2007 before me is generally consistent with that file note.  The Applicant indicated to me that she did not actually have an appointment with her paediatrician, Dr Johnston, at that time but was on the wait list and hoped to see her.

8.      On 10 December 2007 a Centrelink file note records that the Applicant spoke to a Centrelink social worker, and advised that she "was not able to get review completed by psychiatrist as he felt he could not complete it given the length of time since he last assessed Aiden.  The Applicant advised that Warwick CAMHS would also not assist".  The Applicant was recording as advising that Aiden's next paediatric appointment was on 28 April 2007 (although this must be a typographical error, and I proceed on the basis that the intended reference was to 28 April 2008).  The social worker suggested that the Applicant speak to her GP about the completion of the treating doctor's form.  The Applicant was recorded as having expressed concern that the GP was not supportive of a diagnosis of ADHD.  However, it appears to have been agreed that the social worker would pass on to the relevant Centrelink officers that the Applicant would be seeking to have the medical review completed by her GP.

9.      In her evidence before me the Applicant explained that she had tried to contact Dr Hudman from Warwick Child and Adolescent Mental Health Service at this time, but that since he had not seen Aiden for some time he was unable to help with the treating doctor's form.

10.     On 14 December 2007 a Centrelink officer wrote to the Applicant noting the advice from the social worker that the Applicant was going to be getting a medical report for Aiden's review completed by her GP.  The letter advised:

"We are able to grant you an extension until 31 January 2008 to get this form completed and returned to Centrelink before your Carer Allowance for Aiden is suspended.  As it has been more than 6  months since you returned the functional assessment form, I am enclosing a second form so that the review, when it is completed, is as current as possible.  Please return these review forms together by 31 January 2008."

11.     The letter also advised:

"Section 192 of the Social Security Administration Act 1999 ["the Administration Act'] allows the Secretary or delegate to require any person to give information relevant to Centrelink customers receiving their correct entitlement. This is a notice requesting information under Division 1 of Part 5 of the [Administration Act] and given to you under s. 196 of that Act."

12.     The Applicant was contacted by Centrelink officers on 4 January 2008.  The telephone conversations were recorded as being heated.  The Applicant was advised that she had until the end of January 2008 to complete the forms.

13.     By letter dated 1 February 2008 a delegate of the Respondent cancelled the Applicants carer allowance "because we have not received the information we requested".  That decision was confirmed by the ARO on 5 March 2008.  The ARO found that the Applicant had not returned the treating doctor's report as requested.  The ARO said:

"I do not find it reasonable that you have not returned the form because you are awaiting a specialist report.  The information requested could have been provided by Aiden's treating general practitioner.  Without the required medical information Centrelink is unable to ascertain whether you qualify for Carer Allowance".

14.     The Applicant sought a review of the decision of the ARO by the SSAT.  After a hearing on 13 May 2009 the SSAT adjourned to enable the Applicant to submit a treating doctor's report.  A report completed by Aiden's paediatrician, Dr Kay Johnston, was submitted to the SSAT on 6 June 2008.  That report indicated that Aiden did not suffer from any declared disability.  The functional assessment component of the report indicated that Aiden's ability was age appropriate for receptive language skills, expressive language skills, feeding and mealtime skills, hygiene and grooming skills, dressing skills, social and community skills and fine and gross motor skills.  The behaviour section of the form was left blank.  Under "special care needs" Dr Johnston indicated that "child is over five years and has persistent difficulties with memory, concentration, planning and organisation".

15.     The SSAT noted that the professional questionnaire score was "0", and that therefore the Applicant was not qualified for carer allowance in respect of the care she provides Aiden.  For that reason the SSAT found that the Centrelink correctly cancelled the Applicant's carer allowance.

16.     The Applicant now seeks a review by this Tribunal of the decision of the SSAT.

Qualification Criteria

17. The qualification criteria for carer's allowance for a carer caring for either 1 or 2 disabled children are specified in s. 953 of the Act. The only contentious criterion in this case is that provided for by s. 953(2)(c) of the Act, as being:

"(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"

18.     The Child Disability Assessment Determination 2001 ("the Determination") relevantly declares the following to be a recognised disability for the purposes of s. 953 of the Act:

"The following conditions diagnosed by a psychiatrist using the current DSM:

…(b) Major depression of childhood …"

19.     The current DSM is DSM-IV-TR, which does not refer to "major depression of childhood", although there are criteria for a "major depressive episode" which apply to children and adolescents as well as adults.

20. The Determination also establishes the child disability assessment tool for the purposes of s. 953 of the Act.

was the applicant qualified to receive the carer allowance

21.     I understood it to be common ground that the Aiden's score under the Disability Assessment Tool calculated on the basis of a professional questionnaire score was not greater than zero.  Nor is there any evidence before me which shows a professional questionnaire score of greater than zero.  In those circumstances the Applicant will only be qualified for carer allowance as at the date to cancellation of 1 February 2008 if Aiden suffered major depression of childhood diagnosed by a psychiatrist using the current DMS.

22.     For that purpose the Applicant relies on the reports of Dr S Law, a consultant psychiatrist.  In a treating doctor's report dated 8 May 2009 Dr Law indicates that Aiden suffers a major depression of childhood diagnosed by a psychiatrist using the current DSM.  In a letter to the Applicant's solicitors dated 4 June 2009 Dr Law expressed his view that Aiden had been diagnosed and treated for a major depression of childhood from 2004 until his review by Dr Law in May 2009.

23. While Dr Law was not called to give oral evidence before the Tribunal I am prepared to proceed on the basis, indicated in his report, that Aiden was suffering from a major depression of childhood from 2004. However, the Determination requires not only that this condition be suffered by the child but also that it be diagnosed by a psychiatrist using the current DSM.

24.     Further, the question to be assessed by me is whether the Applicant was qualified to receive carer allowance on the cancellation date of 1 February 2008 and not some later time.  The Applicant will be qualified only if, at that time, Aiden was suffering from a major depression of childhood diagnosed by a psychiatrist using the current DSM.  In my view both the diagnosis and the condition must exist for the Applicant to be qualified to receive carers allowance.  If the condition existed but was undiagnosed on 1 February 2008 then the Applicant would not be qualified at that time.

25.     Having reviewed the evidence before me I am unable to conclude that there was any relevant diagnosis by a psychiatrist at or prior to 1 February 2008.  Dr Law did not see Aiden at or prior to that time.

26.     In that regard I note that Dr E De Jong, a consultant psychiatrist, signed treating doctor's reports on 23 December 2005 and 6 January 2004 in which he indicated that Aiden was not suffering from any declared disability.  At that time Aiden's primary diagnosis was indentified as oppositional defiance disorder with a secondary diagnosis of attention deficit hyperactivity disorder.  The treating doctor's report of Dr Johnston dated 21 May 2008 also indicated that Aiden did not suffer from a declared disability, and identified a primary diagnosis of ADHD and other disabilities of depression and oppositional defiance disorder/condition. 

27.     A report of the Applicant's general practitioner, Dr G Gild, dated 27 January 2009, indicated that Aiden did suffer major depression of childhood diagnosed by a psychiatrist using the current DSM.  Against that part of the form there is a note "Diagnostic DSM 4/5.  ODD + ADHD comes under this".  However, DSM IV does not classify ODD or ADHD as a major depressive disorder.  Rather it notes that in children and adolescents major depressive episodes "occur more frequently in conjunction with other mental disorders (especially Disruptive Behaviour Disorders, Attention Deficit Disorders …)".  That is, the DSM appears to draw a distinction between major depressive episodes and other mental disorders such as ADHD and ODD.  I am therefore not prepared to conclude from the note on the form completed by Dr Gild that Aiden had been diagnosed by a psychiatrist with a major depression of childhood either at the date of his report or some earlier time.

28.     A subsequent report of Dr Gild dated 16 March 2009 suggests that Aiden was diagnosed with depression by Princess Margaret Hospital after an incident on August 2008.  However, when asked by Centrelink to provide copies of the psychiatric report diagnosing Aiden as suffering major depression of childhood under the current DSM, Dr Gild provided only a series of reports from Dr Johnston.

29.     I have also been provided with documents relating to Aiden's review by the Child and Adolescent Health Service at Princess Margaret Hospital after an incident in June 2008.  The preliminary diagnosis indicated in those documents is a likely major depressive episode, with a note of previous diagnosis of ODD/ADHD.  It is not clear whether this assessment was completed by a psychiatrist, and I note that the covering letter from the Hospital refers to the report as a "psychological report".  The Applicant's evidence before me was that she did not think that Aiden was seen by a psychiatrist at this time.  In any event, this attendance occurred after the date of the cancellation of the Applicant's carer allowance.

30.     The Applicant also gave evidence of Aiden having seen Dr Hudman on one, or perhaps two, occasions in 2004.  Aiden saw Dr Hudman with his brothers and sisters at that time.  The Applicant believed that Dr Hudman reached a diagnosis of oppositional defiance disorder at this time.  Subsequent attendances at Warwick CAMHS did not result in Aiden seeing a psychiatrist.

31.     In cross-examination it was put to the Applicant that Aiden had not seen a psychiatrist between seeing Dr Hudman in 2004 and 2007.  While the Applicant said that she considered that there was no need for Aiden to see a psychiatrist, who would in any event have been financially unavailable to the Applicant, she also said that she could not definitely recall whether or not Aiden saw a psychiatrist at that time.  The Applicant at least had no positive recollection of Aiden seeing a psychiatrist during this period.

32.     From the above evidence I find that the first occasion on which a psychiatrist diagnosed Aiden as suffering from major depression of childhood was when Dr Law saw Aiden in May 2009.  I find that Aiden had not received that diagnosis from any psychiatrist at the time of the decision to cancel the Applicant's carer allowance on 1 February 2008.

33.     It follows that, in my view, the Applicant was not qualified to receive carer allowance at the date of cancellation of that allowance.  While the reports of Dr Law support a fresh application for carer allowance from a date following his diagnosis, in my view the decision of the Respondent's delegate must be affirmed.

Absence of Discretion

34.     I reach the above view with considerable reluctance.  As well as finding the Applicant to be an honest and credible witness, I found myself in considerable sympathy with the Applicant's position.  The Applicant is a single mother with the care of a number of children, including Aiden and another child who suffers from Downs syndrome.  She is in difficult financial circumstances, and is clearly trying to do the very best for her children.  She does not seek the carer allowance for her own benefit.  Rather she seeks the financial assistance to enable her to access services for Aiden which would otherwise be beyond her financial reach.  Her efforts to promote the best interests of her children can only be commended.

35.     Further, in 2007 the Applicant was involved in a motor vehicle accident which I am told by her representative resulted in her suffering from chronic severe pain, of which the Applicant gave evidence, post traumatic stress disorder and depression.  These medical conditions of the Applicant affected her ability to arrange a psychiatric diagnosis for Aiden.  In these circumstances the Applicant's representative seeks to have me exercise any discretion which I have to treat Dr Law's diagnosis as having retrospective effect for the purpose of determining the Applicant's eligibility for carer allowance.

36. If I had any discretion in this matter I would have exercised it in favour of the Applicant. However, having carefully considered the provisions of the Act I have come to the view that I do not have such a discretion. In my view the results of the functional assessment before me are such that the Applicant would only have been entitled to carer allowance at the date of cancellation if, at that time, Aiden had been diagnosed by a psychiatrist with a major depression of childhood using the current DSM. The eligibility criteria are set out in the Act and Determination in such a way that the Applicant was not qualified to receive carer allowance on the cancellation date, and I am unfortunately not given any discretion to vary that outcome.

DECISION

37.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member

Signed:…………(sgd) Ms L Huynh..........................................
  Associate

Date of Hearing  23 October 2009
Date of Decision  20 April 2010

Representative for the Applicant              Mr S Cohen
  Leonard Cohen Legal

Representatives for the Respondent       Mr P Maishman with Ms M Conlon

Centrelink Legal Services