Tamer and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 556

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 556

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2006/86

GENERAL ADMINISTRATIVE DIVISION )

Re SUSAN TAMER

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr I. Alexander, Member

Date14 June 2006 

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal sets aside the decision under review and in substitution decides that at 23 September 2005, the Applicant was qualified for carer payment.

[SGD] Dr I. Alexander

Member

CATCHWORDS

SOCIAL SECURITY - qualification for carer payment for two children – a level of care that is at least equivalent to level of care required by a profoundly disabled child - circumstances in section 197(2) of the Social Security Act 1991 not exclusive – special needs and total care required by each child on whole of the evidence – decision set aside

Social Security Act 1991 – sections 197, 198

REASONS FOR DECISION

Dr I. Alexander, Member

1.      At the hearing of the above matter the terms of the decision and the reasons for that decision were stated orally. Following the delivery of the decision, the parties requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service. Although the oral reasons given may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of Dr I. Alexander, Member.

Signed:         A. Garcia
          ..................................................................................………………………

Associate

Date of Hearing  13 June 2006

Date of Decision  14 June 2006

Representative of the Applicant                 self represented

Representative of the Respondent           Mr A. Zhang

O/N 25395
  [9.10am]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/86
By MR I. ALEXANDER, Member
TAMER and SECRETARY, DEPARTMENT OF FAMILY
AND COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
SYDNEY, WEDNESDAY, 14 JUNE 2006

1.          HIS HONOUR:   This is an oral decision of the Administrative Appeals Tribunal, matter number N2006/86.  The applicant, Mrs Susan Tamer; respondent Secretary, Department of Family, Community Services and Indigenous Affairs.  The matter before me is an appeal against a decision by Centrelink on 23 September 2005 to cancel Mrs Tamer's carer payment in respect of the care she provided to her daughters, Nessren, and Manal, as affirmed by the Social Security Appeals Tribunal (“SSAT”) on 10 January 2006.

2. At the time of the decision, Nessren was aged 15 years four months, and I note that since 11 May 2006, following Nessren's 16th birthday, the carer payment was recommenced, suggesting that Nessren has now been assessed as a disabled adult requiring constant care. The issue I must decide is whether on 23 September, Mrs Tamer met the qualification requirements for a carer payment as determined by section 198 of the Social Security Act 1991 (“the Act”). Particularly, whether she qualified for payment in the period from 23 September 2005 to 10 May 2006.

3. Section 198(2)(c) of the Act determines that to qualify for a carer payment, a person must personally provide constant care for two or more disabled children (the care receivers) aged under 16. Section 198(8) determines the level of care requirement for two or more disabled children and states:

“… that the Secretary must be of the opinion that the children require a level of care that is at least equivalent to the level of care required by a profoundly disabled child.”

4. Section 197(2) of the Act determines that a child is ‘profoundly disabled’ if:

“(a) the child has either:

(i)a severe multiple disability; or

(ii)a severe medical condition;  and

(b) the child, because of that disability or condition, needs continuos personal      care for:
           (i) six months or more; 
           … and
(c) the child's disability or condition includes three or more of the following         circumstances:
           (i) the child receives all food and fluid by nasogastric or    percutaneous enterogastric tube;

(ii) the child has a tracheostomy;

(iii) the child must use a ventilator for at least eight hours each day;          (iv) the child has:

(A)   faecal incontinence day and night; and

…

(v) the child:
            (A) cannot stand without support; and
           …
(vi) a medical practitioner has certified in writing that the child has a terminal condition for which palliative care has replaced active treatment;
(vii) the child:
           (A) requires personal care on two or more occasions between 10 pm and 6 am each day; and
…”

5. It is not in dispute that both daughters, Nessren and Manal, have multiple severe disabilities and are in need of continuous personal care for more than six months, thus satisfying sections 197(2)(a) and (b) of the Act. The dispute is with reference to the circumstances listed in section 197(2)(c) of the Act. With reference to this section, the department's policy requires that:

“If two or more children with disabilities are seen as requiring the same level of care as a child with a profound disability… AT LEAST three of the [circumstances listed in section 197(2)(c)] must apply [between the children].”

6.          Extensive medical evidence in the form of a list of documents which had been before the SSAT was unable to be lodged with the AAT and was not available at the time of the hearing.  There was no explanation as to why the documents had not been placed in the Centrelink file.  In order to prevent a significant delay in this matter, I have decided to adopt the relevant findings of the SSAT, particularly with reference to the medical evidence. 

7.          Manal Tamer is a 12-year-old girl who has autism, severe developmental delay and epilepsy.  She is unable to care for herself, particularly toileting, and needs to wear a nappy at all times.

8.          Manal requires constant supervision, has limited speech, with no understanding, and does not respond normally to people, including her mother.  The level of care she requires is equivalent to that of an infant. 

9.          Nessren Tamer, who was aged 15 years and four months at the relevant time, suffers from leukaemia that requires regular specialist supervision.  She is profoundly deaf and uses sign language to communicate.  She has bilateral avascular necrosis of both her hips, which causes her frequent pain and requires treatment that includes anti-inflammatory medication.  She has had an operation on one hip and is scheduled for a further operation later in 2006.

10.       At the hearing, Mrs Tamer was unrepresented and required the assistance of an Arabic interpreter.  It was clear that she was anxious and that the proceedings were causing her some distress.  Mrs Tamer gave limited oral evidence with the assistance of the interpreter.  She indicated that her life was very difficult in caring for two handicapped children, and stated that Manal requires constant care and attention, and although she can stand without support and is able to walk freely, she must be supervised by an adult at all times.  Manal is unable to feed herself and always requires spoon feedings with soft foods.  Manal wears a nappy at all times and wakes frequently at night, particularly for nappy changes.

11.       With regard to Nessren, Mrs Tamer indicated that although Nessren is able to attend to many of her own needs, the nature of her various problems makes her very demanding and that she needs a lot of attention.  She goes to a special school during the day, and when she arrives home she is always very tired and demands to be fed immediately.  She goes to bed at about 5 pm but usually wakes at about 9 pm when she requires further food and drink.  Mrs Tamer leaves food and drink by the bedside.  Nessren sometimes wakes during the night, but generally if she is asleep by midnight then she sleeps until the morning.

12. It is not disputed that two of the circumstances in the relevant section of the Act apply to Manal; namely sections 197(2)(c)(iv) and (vii) in that she has faecal incontinence day and night and requires personal care on at least two occasions between 10 pm and 6 am. On the evidence before me, none of the circumstances listed in section 197(2)(c) of the Act apply to Nessren. Therefore, we are left with a situation where two of the three circumstances required to meet the definition of a profoundly disabled child apply between the two children. If I were to decide this matter by following department policy, Mrs Tamer would not qualify for a carer payment.

13.       I am not satisfied that the department's policy is the correct or preferable method that should be used to assess the equivalence of level of care.  The approach taken by the department does not allow for any evaluation of the particular circumstances of the individual children and the combined effect of their multiple disabilities on the carer.  In the case before me, the method used by the department has the effect that the total care required by Nessren is equivalent to only one of the circumstances that applied to the care of a profoundly disabled child.  I am not satisfied that this is the correct result.

14. In my view, the preferable approach would be to consider the particular circumstances of both children and then to make an assessment of the total impact of their disabilities and medical conditions on the carer. In making such an assessment, the circumstances listed in section 197(2) of the Act are relevant but not exclusive.

15. I accept the evidence of Mrs Tamer as to the level of care that she provides to her two disabled children. Further, on considering the whole of the evidence before me, with particular reference to the special needs and total care required by each child. It is my view that the total care needed by Nessren is greater than a single circumstance listed in section 197(2) of the Act. And as it is not disputed that two of the circumstances in section 197(2) apply to Manal, it follows that I am satisfied as a matter of fact that the care provided by Mrs Tamer to her two severely disabled children was at least equivalent to the level of care required by a profoundly disabled child. Therefore, I find that Mrs Tamer was qualified for a carer payment in accordance with section 198 of the Act.

16.       In passing, I note that eight months after the carer payment for both children was stopped, Nessren was apparently assessed, albeit by a different method, as being sufficiently disabled to again qualify Mrs Tamer for a carer payment with no apparent reference to the significant care requirements of Manal.  There was no evidence that Nessren had significantly deteriorated during that eight-month period. 

17.       For the aforesaid reasons, I set aside the decision under review and substitute a decision that at 23 September 2005, Mrs Tamer (the applicant) was qualified for a carer payment.  That is the end of the decision.