Smith and Secretary, Department of Family and Community Services

[2003] AATA 784

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 784

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/18

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HELEN SMITH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President Don Muller

Date11 August 2003

PlaceBrisbane

Decision The Tribunal affirms the decision to cancel the carer allowance paid to Helen Smith on and from 3 July 2001.

.............(Signed).................................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

SOCIAL SECURITY – Carer Allowance – child disability assessment tool – whether Tribunal should go behind assessment of medical professional

Social Security Act 1991: s38D, 952, 953

Child Disability Assessment Determination 1999

REASONS FOR DECISION

11 August 2003 Deputy President Don Muller       

1.      This is an application to review a decision made on 3 July 2001, to cancel the Carer Allowance paid to the Applicant, Helen Smith, in respect of her daughter, Susan.

2.      Susan was born on 25 July 1991.  She was nearly ten years of age when the decision was made to cancel the carer allowance.

3.      Susan exhibits extreme ranges of behaviour.  She can often be polite and well-mannered but at other times her behaviour can be appalling.  She has been known to become violent, abusive, sullen, unco-operative, destructive and to make trouble for other children.  She has been diagnosed as having Attention Deficit Disorder (ADD).

4.      Mrs. Helen Smith was first granted Child Disability Allowance in respect of care provided for Susan from 23 October 1997.  This payment was changed to a Carer Allowance from 1 July 1998.

5. The relevant legislation is contained in sections 38D, 952 and 953 of the Social Security Act 1991 and in the “Child Disability Assessment Determination 1999” which provides as follows:

Social Security Act 1991:

SECTION 38D  CHILD DISABILITY ASSESSMENT TOOL

38D(1)  [Secretary may devise test]  The Secretary may, by determining in writing:

(a) devise a test for assessing the functional ability, behaviour and special care needs of a person aged under 16;  and

(b)  provide a method of 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).

38D(2)  [Scale]  The scale referred to in subsection (1) is a scale that provides for a range of negative and positive scores and under which:

(a)  a negative score indicates an absence of a physical, intellectual or psychiatric disability at a significant level;  and

(b)  a positive score indicates the presence of a physical, intellectual or psychiatric disability at a significant level.

38D(3)  [Recognised disability] The determination may, in addition, declare that a physical, intellectual or psychiatric disability specified in the determination is a recognised disability for the purposes of section 953.

38D(4)  [Determination]  The determination, in so far as it provides (in accordance with subsections (1) and (2)) for a test for assessing, and a method of rating, the functional ability, behaviour and special care needs of a person aged under 16 is, in this Act, referred to as the Child Disability Assessment Tool.

SECTION 952  CARER ALLOWANCE DEFINITIONS

952  In this Part, unless the contrary intention appears:

….

Care receiver has the meaning given by subsections 953(1) and (2) and 954(1).

Child Disability Assessment Tool has the meaning given by subsection 38D(4).

Disabled child means a person aged under 16 who:

(a)       has a physical, intellectual or psychiatric disability;  and

(b)       is likely to suffer from that disability permanently or for an extended period.

SECTION 953  QUALIFICATION FOR CARER ALLOWANCE – CARING FOR EITHER 1 OR 2 DISABLED CHILDREN

953(1)  Single child.  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

(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, and been given a positive score of not less than 1, under the Child 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:

(i) ….

(ii)if the person is not a member of a couple – 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.”

CHILD DISABILITY ASSESSMENT DETERMINATION 1999

PART 2 CHILD DISABILITY ASSESSMENT TOOL

2.1      Questionnaires

(1)  Part 1 of Schedule 1 sets out a questionnaire (the claimant questionnaire) about the functional ability, behaviour and special care needs of a person aged under 16.

(2)  The claimant questionnaire may be completed only by a person (the claimant) wishing:

(a)to claim a carer allowance under the Act for the care of a person aged under 16;  or

(b)to continue to be qualified for receiving a carer allowance under the Act, for the care of a person aged under 16.

(3)  Part 2 of Schedule 1 sets out another questionnaire (the professional questionnaire) about the functional ability, behaviour and special care needs of a person aged under 16.

(4)   The professional questionnaire may be completed only by a treating health professional.

2.2 Testing method

(1)  The test for assessing a person’s functional ability, behaviour and special care needs is the assessment, under this Part, of the answers given in relation to the person in the 2 questionnaires mentioned in section 2.1.

(2)  The following steps are carried out for the test:

(a)  the Secretary must be satisfied that a completed professional questionnaire is an accurate reflection of the functional ability, behaviour and special care needs of the person concerned;

(b)       a score must be calculated;

(i)        using the rating method mentioned in section 2.3;  and

(ii)       on the basis of the answers given in the questionnaire.

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

(4)  If the score calculated in paragraph (2)(b) is not greater than 0, the test is taken to be completed.

(5)  If the score calculated in paragraph (2)(b) is greater than 0, the test is taken to be completed only if a claimant questionnaire is completed.

(6)  If the score calculated under paragraph (2)(b) is greater than 0 and a claimant questionnaire has been completed, a score must be calculated on the basis of the answers given in that questionnaire using the rating method mentioned in section 2.3.

2.3  Rating method

(1)  Steps 1 to 12 in Schedule 2 set out the method for rating a person, on the basis of the answers given in each questionnaire completed in relation to the person.

(2)  The method gives the person a score:

(a)  in accordance with the scale mentioned in subsection 38D(2) of the Act;  and

(b) that determines whether the person is a care receiver to which subparagraph 953(1)(c)(ii) or paragraph 953(2)(c) of the Act applies.

(3)  For all calculations in Schedule 2, numbers extending to more than 2 decimal places are to be rounded to 2 decimal places.

Part 3 Recognised disability

3.1  Recognised disabilities

For section 953 of the Act, the physical, intellectual and psychiatric disabilities set out in Schedule 3 are recognised disabilities.

Note See subpara 953(1)(c)(i) of the Act for the application of this determination.”

6.      Schedule 3 does not contain ADD, and therefore, ADD is not a “recognised disability” for the purposes of subparagraph 953(1)(c)(i) of the Act.

7.      In June 2001, Centrelink conducted a medical review of Susan’s eligibility.

8.      Susan was assessed by Dr. Downs on 21 June 2001.  The resulting “score” using the above “tool”, was –0.66.  This was less than +1 and consequently meant that Susan did not qualify pursuant to subparagraph 953(1)(c)(ii) of the Act (set out above).

9.      The carer payment was cancelled from 3 July 2001.

10.     Dr. Downs performed the exercise again on 20 September 2001.  He recorded a “score” of –0.16.  This meant that the decision to cancel the carer payment stood.

11.     The material placed before the Tribunal by the Applicant and her husband was to the effect that Susan continued to make life very difficult for them and that she had not improved over the years.  They said that Susan’s behaviour was variable and that on some days she may appear to act within the normal range of behaviour, but that on most days she did not.  They suggested that when Dr. Downs saw Susan she may have appeared to be better than she really was.

12.     There was no challenge to the way in which Dr. Downs used the “tool”, nor to the interpretation of the legislation by Centrelink or the SSAT.

13.     The legislation was introduced to provide a more objective means of assessing eligibility by a treating medical professional.  The previous legislation allowed for assessments which were subjective, included the opinions of lay persons and produced inconsistencies.  The perception was growing that children with disabilities that were relatively easily managed were being put into the same category as very disabled children.

14.     The Tribunal can see no justification in this case for going behind the assessments of Dr. Downs.

15.     Consequently, the decision to cancel the carer allowance on 3 July 2001 is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................
C. O’Donovan, Associate

Date/s of Hearing  18 February 2003
Date of Decision  11 August 2003
Applicant  Mr and Mrs Smith
Counsel for the Respondent     Mr. R. McQuinlan, departmental advocate