S and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 113
•1 March 2013
[2013] AATA 113
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3091
Re
S
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Hon R J Groom AO (Deputy President)
Date 1 March 2013 Place Hobart The decision under review is affirmed.
........................................................................
Hon R J Groom AO (Deputy President)
CATCHWORDS
Social Security - Carer Allowance - child suffering developmental delay - whether there is present a qualifying rating of "intense" - whether score for assessment of care load is 85 or more - score of 70 - qualifying rating of "intense" not satisfied - decision under review affirmed
LEGISLATION
Social Security Act (1991) ss 38D, 38E, 395
Social Security (Administration) Act 1999 s 80
Disability Care Load Assessment (Child) Determination 2010
REASONS FOR DECISION
Hon R J Groom AO (Deputy President)
The question to be determined by this Tribunal is whether S was qualified, on the 6 March 2012, to continue to receive Carer’s Allowance (CA) for the care of her daughter. As the application concerns care provided to a child the applicant and her daughter are not identified in this decision.
The 10 years old child suffers from developmental delay as a result of her premature birth.
S was granted CA on the 13 October 2004 and continued to receive that allowance until 6 March 2012 when it was cancelled following a review by Centrelink.
The initial decision to cancel was reviewed and affirmed. That decision was found to be correct when further reviewed by an Authorised Review Officer. On the 24 May 2012 S asked the Social Security Appeals Tribunal (“SSAT”) to again review the decision. On the 27 June 2012 the SSAT affirmed the decision.
This Tribunal is now asked to conduct a merit review of the cancellation decision.
THE LEGISLATION
Section 953 of the Social Security Act (1991) sets out the qualification requirements for CA. It provides as follows :
“Section 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
(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 or 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 together with another person;
in a private home that is the residence of the person and the care receiver; and
(e) either of the following applies :
(i)the disability from which the care receiver is suffering is declared, under subsection 38E(3), to be a recognised disability for the purposes of this section;
(ii)the person has been given a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination for caring for the care receiver; and
(f) the person is an Australian resident.”
As can be seen above, section 953E (i) and (ii) require that the relevant disability is declared to be a “recognised disability” under section 38E (3) of the Act OR the person is given a qualifying rating of “intense” under the Disability Care Load Assessment (Child) Determination made under section 38D and Section 38E of the Act (“the DCLA”).
Schedule 3 of the DCLA lists the “recognised disabilities”. The child’s condition of developmental delay is not included in that list. Section 953 (1) (e) (i) therefore does not apply in this case.
The only remaining basis for entitlement to CA at the relevant date is if the person has a qualifying rating of “intense” at that time.
Clause 15 of part 3 of the DCLA provides that a qualifying rating of “intense” is achieved if the total score for the assessment of care load (ACL), as determined by calculating the score from the ACL questionnaire completed by the carer, is 85 or more and also the score from the “professional questionnaire” completed by the treating health professional is greater than 0.
The qualifying scores of 85 or above for the ACL and greater than 0 for the professional questionnaire are conjunctive. In other words both of those requirements must be satisfied.
Dr Barnes, the child’s treating medical practitioner, completed the “professional questionnaire” on the 31 January 2012. The total score compiled from the answers in that questionnaire was 4.82. That element of the requirement in section 395 of the Act is therefore satisfied.
The difficulty for the applicant arises when the total score from the ACL questionnaire is calculated.
Initially the total score for the ACL questionnaire was 54 (T13 p.127). This was obviously substantively below the requirement of 85 points. The SSAT reconsidered the score taking into account S’s belief that, on reflection, the answers that she had given to questions 14 and 55 should be amended. The SSAT accepted S’s explanations and calculated the correct score to be 60.
At the request of this Tribunal Mr Sparkes, who appeared at the hearing for the respondent, provided a detailed written explanation of exactly how the ACL score had been calculated (Exhibit R3). At Attachment 3 of that document is a further calculation of the ACL score following discussions with S on the 14 September 2012. According to Attachment 3 following those discussions Centrelink agreed that the answers to certain questions should be amended as follows :
“Q5 should be B not A
Q14 should be B not A
Q19 should be B not A
Q27 should be B not A
B and E at Q54 should be Y
A at Q55 should be Y”
According to this detailed written explanation of the ACL calculation, which the Tribunal determines to be correct, the ACL score is 70.
S explained at the hearing that she and her husband were most concerned that Centrelink had “changed their rules” and as a result the allowance was cancelled. At page 2 of her written submission of the 2 November 2012 (A1) S stated as follows :
”The carer’s allowance might only be a small amount of money to some people but it does really assist us. It affects us personally as money is tight and this money was used to help (our daughter) with any medical bills/orthotics/psychologist appointments/GP appointments. Knowing the money was there regularly when we needed it, rather than when (our daughter) having a withdrawn dark time or overloaded time we think we can’t afford any help this fortnight which personally puts under undue hardship. I also need to take unpaid leave as well when she unable to attend school, needs down time.
The bonus we receive around the end of financial year helps with large expenses such as new orthotics – close to $500 – this year we didn’t have this money to pay for orthotics and hadn’t budgeted for same as we rely on this bonus.
Both myself and my husband love (our daughter) so much we are willing to fight for her to set her up for the best success for the future. We constantly worry about the future and where we are going mental health wise in the future. We are not playing a different game, dealing with the same things day in day out – only the Government rules have changed – nothing in our family has.”
In the same submission of the 2 November 2012 S also said that she believed the answer to question 19 of the ACL questionnaire should be “C” and not “B”. She said that if the answer to that question was “C” the score would then be increased “by 8 points to 78”. The difficulty for the applicant is that even if the correct score was 78 it would still be less than the required rating of 85.
CONCLUSION
After considering all of the material before it the Tribunal concludes that the requirement that the person has a qualifying rating of “intense” as at 6 March 2012 is not satisfied.
As the applicant did not qualify for CA on that date then pursuant to section 80 of the Social Security (Administration) Act1999 the Secretary is obliged to cancel the allowance.
The Tribunal, of course, has no discretion to simply decide what it considers to be right or fair in the circumstances. It is required to apply the relevant law. It notes that S will be making a fresh application for CA. Any further entitlement to the allowance will again depend on the answers given to the ACL questionnaire and the resultant total ACL score.
DECISION
The decision under review is affirmed.
I certify that the preceding 23 paragraphs are a true copy of the reasons for the decision herein of ........................................................................
Administrative Assistant
Dated
Date(s) of hearing 14 December 2012 Applicant In person Solicitors for the Respondent Mr B Sparkes, Program Litigation and Review Branch
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