Stewart; Department of Family and Community Services - [2001] AATA 50

DECISION AND REASONS FOR DECISION [2001] AATA 50

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q00/415

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    SANDRA STEWART
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member Miss AM Brennan, Member

Date31 January 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and remits the matter to the applicant for reconsideration with the direction that a replacement professional questionnaire be obtained from a treating professional other than Dr S Jeaffreson.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
SOCIAL SECURITY - carer allowance - Child Disability Assessment Tool - correct review procedure - suitability of the form.

Social Security Act 1991 s 38D

REASONS FOR DECISION

31 January 2001 Deputy President DP Breen, Presidential Member Miss AM Brennan, Member

This is an appeal against a decision of the Social Security Appeal Tribunal dated 7 April 2000 which set aside a decision made by Centrelink to reject the claim for carer allowance lodged by Mrs Stewart on 22 December 1999 in relation to her son Jay.
The matter was heard by myself, as Presiding Member, and Miss AM Brennan, Member in Brisbane on 2 October 2000 and resumed in Nambour on 24 October 2000. Written submissions on the law were received from the applicant on 29 December 2000. Mr P Kanowski, Departmental Advocate, represented the applicant. Mrs Sandra Stewart, the respondent, represented herself.
Oral evidence was taken from Dr S Jeaffreson, Dr S Fletcher, Ms K Nelson-Smara and Mrs D Kajaski. The following documents were also placed into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Supplementary "T" Documents

Mrs Stewart's son Jay was born on 20 February 1991 and suffers from a number of psychological and behavioural problems. His psychological difficulties often manifest as physical conditions. On 22 December 1999 Mrs Stewart lodged a claim for carer's allowance, which, as required by the Child Disability Assessment Tool (CDAT), was accompanied by a professional questionnaire filling in by the family's General Practitioner, Dr Jeaffreson. This claim was rejected on the basis that, after completion of the form, Dr Jeaffreson scored Jay at –2.13. For carer's allowance to be granted the score must be at least 1.
Mrs Stewart appealed the decision to the Social Security Appeals Tribunal who also had before it a report of Dr S Fletcher, a Psychiatry Registrar. This report showed that Jay was in need of greater care than Dr Jeaffreson's report suggested as his problems were more extensive. The Social Security Appeals Tribunal decided that Dr Fletcher's report was to be preferred to Dr Jeaffreson's report. It set aside the decision to reject the claim and sent the matter back for reconsideration in accordance with instructions that Jay's rating on the CDAT be re-calculated having regard to Dr Fletcher's report.
Section 38D of the Social Security Act 1991 provides that the Secretary may, by determination in writing, devise a test for assessing and a method for rating the functional ability, behaviour and special care needs of a child. Under the determination in force at the time of the claim, if the Secretary was not satisfied that the professional questionnaire provided was an accurate reflection of the person's functioning ability, behaviour and special care needs, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional.
There is no option for the Secretary to simply select another existing report which they prefer. The Secretary must commission a new report. Therefore, as a matter of law, the Social Security Appeals Tribunal decision cannot stand.
The issue for this Tribunal is whether Dr Jeaffreson's report was an accurate reflection of Jay's functional ability, behaviour and special care needs.
In evidence, Dr Jeaffreson said that, although he had seen Jay some 50 times over the past few years, he mainly treated Jay's medical conditions and a Dr Finlay treated his behavioural problems. While he was aware that Jay did suffer from behavioural and psychological problems, he was not aware of the full extent of these. Dr Jeaffreson made it clear that, given the information which had come to his attention as a result of these proceedings, he would have assessed Jay quite differently. Dr Jeaffreson was also of the opinion that Jay's condition had deteriorated markedly since he filled in the questionnaire.
The Tribunal is of the view that Dr Jeaffreson's report should not be used for the purpose of this assessment as it does not provide an accurate reflection of Jay's condition.
Both Dr Jeaffreson and Dr Fletcher commented on the difficulty in completing the form so as to present the complete picture of a child's condition. This was particularly the case where there was a significant psychological overlay to the behaviour and learning difficulties. The form does not allow for a differentiation in behaviour and ability when considered in different contexts. For example, Jay's behaviour and ability was different depending on whether he was feeling stressed, whether he was at school or at home and the extent to which his psychological problems were impacting upon him. While he may have the motor skills to complete a task, he may not have the concentration to do so or, given his behavioural problems, may choose not to do so. Both doctors said that it was a very subjective choice as to which box to tick on certain questions as Jay may fit some, but not all, of the criteria in two boxes and a choice would have to be made as to which best described him.
Therefore, by attempting to place the child within a set box, considering physical ability separately from behaviour and not allowing for an explanation as to why a certain choice was made, the form itself will often prevent a health professional from presenting an accurate picture of the child's full condition. This is something which the Department really needs to consider. Psychological and behavioural problems, unlike a simple break or other physical injury, cannot be measured with precision or easily categorised. While the form may make the processing of claims easier for the Department, it does not necessarily provide a better method of assessment for the clients.
The evidence of the doctors, as well as the evidence of Ms Nelson-Smara, Jay's social worker, and Mrs Kajaski, a volunteer carer, made it clear that Jay is a very troubled little boy who requires a lot of time and attention. He has extensive behavioural and psychological problems which require ongoing treatment. All of the health care professionals were of the view that it was very important that Jay's mother is involved in the behavioural modification programmes Jay is undergoing and that her support for him was vital to his well-being. The Tribunal does not doubt that a questionnaire, which more accurately reflected Jay's condition, would clearly find that Mrs Stewart is entitled to carer allowance.
For the above reasons the Tribunal sets aside the decision under review and remits the matter to the applicant for reconsideration with the direction that a replacement professional questionnaire be obtained from a treating professional other than Dr Jeaffreson.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member and Miss AM Brennan, Member
Signed:         Denise Burton
  Secretary
Date/s of Hearing  2.10.00, 24.10.00
Written Submissions                29.12.00
Date of Decision  31.1.01
Solicitor for the Applicant         Mr P Kanowski, Departmental Advocate
Rep. for the Respondent         Respondent appeared in person