Savage (Deceased) and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 744

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 744

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5524

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		Vicki Maree Savage (Deceased)

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Egon Fice, Senior Member

Date25 October 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review. 

..........[sgd] Egon Fice.............

Senior Member

SOCIAL SECURITY – Carer allowance – Adult Disability Assessment Tool – Minimum of 12 points – Cancellation of carer allowance – Bipolar Disorder

Administrative Appeals Tribunal Act 1975 (Cth) s 30(1)(A)

Social Security Act 1991 (Cth) ss 38C, 954

Social Security (Administration) Act 1999 (Cth) s 179

REASONS FOR DECISION

25 October 2011 Egon Fice, Senior Member           

1.Ms Vicki Maree Savage was receiving the Carer Allowance for care she provided for her partner, Mr Mark Savage.  Mr Savage suffered from bi-polar disorder.  On 1 December 2008 a Centrelink officer wrote to Ms Savage telling her that her Carer Allowance had been cancelled because the medical information it had received disclosed that Mr Savage’s condition was not at a level which would qualify her for the Carer Allowance.

2.Ms Savage sought review by an authorised review officer (ARO).  In a decision made on 9 July 2009 the ARO decided that the original decision was correct.  Dissatisfied with that decision, Ms Savage lodged an application for review with the Social Security Appeals Tribunal (SSAT).

3.On 22 September 2009 the SSAT affirmed the decision of the ARO.  On 18 November 2009 Ms Savage lodged an application with this Tribunal for review of the SSAT decision.  However, prior to that decision being reviewed, Ms Savage died on 2 May 2010.  Her cause of death is unascertained.

4.In about April 2011, Mr Michael John Young contacted the Tribunal and provided a Statutory Declaration in which he stated he was the birth son of Vicki Maree Savage. Mr Young is named as a child on Ms Savage’s Death Certificate. I am satisfied that Mr Young should be permitted to pursue Ms Savage’s application for a review of the decision of the SSAT refusing her the Carer Allowance in accordance with s 30(1A) of the Administrative Appeals Tribunal Act 1975.  He is plainly a person whose interests are affected by the decision and no opposition was voiced by the Secretary, Department of Family, Housing, Community Services and Indigenous Affairs (the Secretary) to that course being taken.

5.The only issue before me is whether Ms Savage, at the time of applying for the Carer Allowance, was qualified to receive that allowance.

QUALIFYING FOR THE CARER ALLOWANCE

6.Qualifications for the Carer Allowance for a disabled adult are set out in s 954 of the Social Security Act 1991 (the Act). Section 954(1), insofar as it is relevant, provides:

(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   ...

7.The difficulty confronted by Ms Savage with respect to qualifying for the Carer Allowance is the assessment under the Adult Disability Assessment Tool (ADAT) which requires a score of at least 12 to be given in respect of the person to whom the care will be provided. The ADAT is a Legislative Instrument and is provided for in s 38C of the Act, which states:

(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.

8.The Adult Disability Assessment Determination 1999 sets out the questionnaire which needs to be completed by a person claiming the Carer Allowance.  The rating method is set out in Schedule 2 of the Instrument. 

9.The assessment which led to the cancellation of Ms Savage’s Carer Allowance was made by Dr Robert Shepherd on 19 November 2008.  On that assessment, Mr Savage scored five points and plainly did not meet the requirement to establish a minimum of 12 points for Ms Savage to qualify for the Carer Allowance. 

10.Mr Savage was reviewed by Dr Shepherd on 17 December 2008 and he was again assessed using the ADAT.  On that occasion, he scored 8.5.  A further review was conducted by Dr Shepherd on 15 April 2009 which resulted in a score of 10.  Although Ms Savage lodged a new claim on 2 July 2009, I am not concerned with that claim because it was not reviewed by an authorised review officer and hence not the subject of the decision by the SSAT.  This Tribunal’s power to review decisions is limited to a decision which has been reviewed by the SSAT (s 179(1) of the Social Security (Administration) Act 1999).

11.While I also took into evidence statements made by two of Ms Savage’s daughters in which they described the verbal and emotional abuse Ms Savage experienced at the hands of her husband, the Act is plain in setting out the qualifying criteria for the Carer Allowance.  Without a score of at least 12, Ms Savage could not qualify for the Carer Allowance in respect of a disabled adult.  Therefore, despite what was said by Ms Savage’s daughters in the written statements provided to the Tribunal, I must find that Ms Savage did not qualify for the Carer Allowance as at 15 April 2009.

CONCLUSION

12.Having found that Ms Savage did not qualify for the Carer Allowance as at 15 April 2009, I must find that the decision made by the SSAT on 22 September 2009 was correct.  I affirm that decision.

I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, Senior Member

Signed: .........[sgd]....................................................................
  E. Montalto, Associate

Dates of Hearing  10 October 2011
Date of Decision  25 October 2011
Representative for the Applicant               Mr M Young

Representative for the Respondent          Ms A Bramley, Centrelink Program Litigation & Review Branch