Syron and Secretary, Department of Family and Community Services

[2006] AATA 236

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 236

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1182

GENERAL ADMINISTRATIVE DIVISION		)
Re		LYNETTE SYRON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date9 March 2006

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides that Mrs Syron’s start day in relation to carer allowance should be the first day of the period of 26 weeks ending immediately before the day on which the claim was made.

..................[sgd]................

Ms N Bell,
  Senior Member

SOCIAL SECURITY – Carer Allowance – Eligibility Not In Dispute – Payment Start Date – Question of Acute Onset – Congenital and Osteoarthritic Conditions – Tribunal Found Congenital Condition Could Not Meet Acute Onset Criteria – Tribunal Found That Osteoarthritic Condition Came Sharply To A Crisis Following an Accident At Work – Decision Under Review Set Aside

Social Security (Administration) Act 1999

REASONS FOR DECISION

9 March 2006 Ms N Bell, Senior Member

1.      Mrs Lynette Syron looks after her husband Dennis Syron and receives a Carer Allowance from Centrelink.  Mr Syron is troubled by a number of conditions, including osteoarthritis in his right knee, hips and shoulder.  Mrs Syron qualified to receive the allowance on 20 May 2005, but contends that she is eligible to receive a back payment of carer allowance because, among other things, she had made an application on 6 August 2004, and this claim was refused by Centrelink.  The issue that I must determine is whether Mrs Syron ought to receive a back payment of Carer Allowance and, if so, to what past date she ought to be paid.

2. Ordinarily, the start date for payment of carer allowance is the date on which the claim is made, in this case 20 May 2005 (clause 3, Schedule 2 of the Social Security (Administration) Act 1999 (the Act)). However, an exception is provided for in clause 17 of Schedule 2 of the Act as follows:

Carer allowance for disabled adult

If:

(1)       a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; and

the person makes a claim for carer allowance within 26 weeks after the day on which the person became qualified for the allowance in the circumstances mentioned in paragraph (a);

the person's start day in relation to the allowance is the day on which the person became qualified for carer allowance in the circumstances mentioned in paragraph (a).

If:

a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; and

the person makes a claim for carer allowance more than 26 weeks after the day on which the person became qualified for the allowance in the circumstances mentioned in paragraph (a);

the person's start day in relation to the allowance is the first day of the period of 26 weeks ending immediately before the day on which the claim was made.

3.      Therefore, in order for arrears to be paid, the disability affecting Mr Syron must be “due to an acute onset”.  While there is no definition of this term in the Act, the Centrelink guide to the Act, at paragraph 1.1.A.52, states:

Definition    

For the purpose of CA (adult), acute onset means:

·         a disability or medical condition acquired suddenly or over a short period of time (see example 1), including psychological/psychiatric conditions following a traumatic event, OR

·         a situation in which a pre-existing disability or condition comes sharply to a crisis (see example 2).

Example 1:

·         a person has a car accident and acquires a brain injury as a result of the car accident,

·         or has a heart attack or suffers a stroke. The resulting disability can be directly attibuted to the date when the heart attack or stroke occurred,

·         a person develops a psychological/psychiatric condition over a very short period of time due to a triggering/trauma event such as the Vietnam War.

Example 2:

·         a person with HIV suddenly develops a disabling infection,

·         a person with a heart condition suffers a major heart attack.

A pre-existing condition that gradually becomes worse over time CANNOT be an acute onset.

Examples:

·         a person with rheumatoid arthritis whose movement is restricted over time,

·         a person with vision impairment whose sight becomes progressively worse over time,

·         a person with progressive dementia.

A congenital condition CANNOT be attributed to an acute onset.

Example: Birth with an intellectual disability cannot be considered to be attributable to an acute onset.

However, if the condition originates during, or at some time following birth, and its onset can be directly attributed to a specific event or intervention, then the condition can be said to have met acute onset criteria. It would be necessary for such an event to be formally documented as being the primary cause for the condition.

Example: A documented case where developmental impairment is directly attributable to a specific event or medical intervention during or shortly following the birth.

Act reference: SS(Admin)Act schedule 2 clause 16 Carer allowance for disabled child or children, schedule 2 clause 17 Carer allowance for disabled adult

4.      The central issue in this application is therefore whether the disability affecting Mr Syron is due to an acute onset.

mr syron’s disabilities

5.      Mr Syron suffers from osteoarthritis in his right knee, hips and shoulder, among other, less debilitating conditions.  Mr Syron had an accident at work in October 2000 in which he fell, injuring his right knee.  Mr Syron said he had surgery on his knee very soon after the accident and then went back to work.  He said that his hip then began to hurt him some months after the accident and his right shoulder began to hurt about two years ago.  He said the period between his knee injury and the development of his shoulder pain was about 18 months. Mrs Syron made the comment that Mr Syron stopped work because of his knee and then his hip became bad.  She said his shoulder problem developed out of his bad hip and his need to lift himself out of chairs.

6.      Mr Syron said that with his knee and hip he has good days and bad days but that his shoulder is still very bad.  He also said that he is on a waiting list for surgery for his other hip.

7.      Mrs Syron said that when Mr Syron first injured his knee she was doing everything for him.  She said that, in addition to his physical problems, he became depressed and increased his drinking. Ms Cynthia Coomb, a social worker who has known Mr and Mrs Syron personally and professionally for approximately three years said that she had observed that the level of care provided by Mrs Syron to Mr Syron since she first met them has been constant.

the onset of mr syron’s disability

8.      Dr A Habashy has been Mr Syron’s treating general practitioner for at least 15 years.  Dr Habashy completed two treating health practitioner’s reports that accompanied Mrs Syron’s carer allowance claims, the first made on 6 August 2004 and the second, successful claim made on 20 May 2005.  Mrs Syron’s fist claim was refused because Dr Habashy’s report yielded a score, under the Adult Disability Assessment Tool of less than the score required for qualification. However Dr Habashy’s second report qualified Mrs Syron for receipt of carer allowance.

9.      Dr A Habashy said the osteoarthritis in Mr Syron’s hips was caused by hip dysplasia which is a congenital condition.  He said Mr Syron has been putting up with the pain in his hips for many years.  Dr Habashy said he had seen Mr Syron in relation to his hip and back prior to his knee injury in October 2000.  Dr Habashy added, however that Mr Syron’s knee condition arose in 2001 and accelerated the osteoarthritis he has in that joint.  Mr Syron also has osteoarthritis in his shoulder and this was not brought on by any trauma.

10.     Dr Habashy said that Mr Syron’s worst problem is his hips, followed by his knee and then his shoulder.  He described Mr Syron’s disability as long-standing but characterised by ups and downs.

11.     When asked by the Tribunal why there are differences in his 2004 treating health professional assessment and the one completed by him in 2005, he said that Mr Syron’s condition became worse and as his disease progresses he feels dependent and this depresses him.  By way of clarification Dr Habashy said that Mr Syron has chronic osteoarthritis and his knee injury caused an acute flare-up and onset of osteoarthritis in his knee.  He also said that the injury to Mr Syron’s knee brought on a flare-up of his hip osteoarthritis, through altered gait.

consideration

12.     Mr Chris Moore, a social worker assisting Mr and Mrs Syron, submitted that Mr Syron’s accident in October 2000 was the catalyst that gave rise to an “acute onset” of Mr Syron’s disability.  Mr Larcombe, for the Respondent, submitted that onset simply means “commencement” and Mr Syron’s disability had commenced many years before the accident in 2000.

13.     I note the words of the Centrelink Guide which, in relation to acute onset, refer to a condition acquired suddenly, or over a short period, or in which a pre-existing disability comes sharply to a crisis.

14.     In the face of Dr Habashy’s evidence that Mr Syron had suffered from pain and osteoarthritis in his hips for many years arising out of congenital hip dysplasia, I cannot find that his osteoarthritis in his hips was acquired suddenly.  Nor can I find, given Dr Habashy’s evidence of existing osteoarthritis in Mr Syron’s knee, that his knee osteoarthritis was acquired suddenly.

15.     Dr Habashy’s evidence that Mr Syron’s osteoarthritis in his shoulder was not brought on by trauma but was pre-existing takes that condition beyond any definition of acute onset.

16.     The question remains whether Mr Syron’s knee and hip osteoarthritis came sharply to a crisis.  Mr and Mrs Syron were not precise historians, but I gathered, from their evidence, that although Mr Syron eventually returned to work after his accident, it was his knee that most troubled him and he required surgery soon after the accident.  His hip became worse some months after the accident.  While it could be argued that his knee came sharply to a crisis after the accident, the same cannot be said about his hip.  Dr Habashy had treated Mr Syron for his hip prior to the accident but there was no evidence he had ever treated him for his knee.  I am mindful of the indication by Dr Habashy in the assessments made by him that Mr Syron’s disability was not due to acute onset.  However, in light of the evidence given by him after he considered the explanatory material in the Centrelink Guide, I am satisfied that Mr Syron’s knee osteoarthritis came sharply to a crisis following his accident.

17.     The provision refers to the disability affecting the adult.  Mr Syron’s disability is comprised of a number of conditions including multiple sites of osteoarthritis and, according to Dr Habashy, the second worst of those is his knee.  However, Dr Habashy also said that Mr Syron’s hip, his worst condition, flared up as a result of his altered gait following his knee injury.  These two conditions are sufficiently determinative of the disability affecting Mr Syron as to constitute, for the purposes of the application of clause 17, the disability affecting Mr Syron.  This is a matter of balance and commonsense.  It would be absurd if I was required to find that each and every minor condition contributing to Mr Syron’s disability was due to acute onset.

18.     The only question that remains is when Mrs Syron became qualified to receive carer allowance, that is, when a score under the Adult Disability Assessment Tool sufficient to qualify her could have been given in respect of Mr Syron.

19.     When I asked Dr Habashy to explain the difference in the assessments he made of Mr Syron in August 2004 and in May 2005, he said his condition deteriorated and as his disease progressed, Mr Syron became depressed.  This makes it difficult to pinpoint the date of qualification.  However, Dr Habashy also pointed, in his evidence, to Mr Syron’s disability being subject to “ups and downs”.  In the face of this evidence, it is sensible to regard Mrs Syron as having been qualified to receive carer allowance 6 months prior to her second and successful claim.

20.     For these reasons, Mrs Syron’s start day in relation to carer allowance should be the first day of the period of 26 weeks ending immediately before the day on which the claim was made.

decision

21.     The decision under review is set aside and instead the Tribunal decides that Mrs Syron’s start day in relation to carer allowance should be the first day of the period of 26 weeks ending immediately before the day on which the claim was made.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ..........[Linda Blue].........................
  Associate

Date of Hearing  2 February 2006
Date of Decision  9 March 2006
Solicitor for the Respondent     Centrelink, Legal Services