Towse; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 763

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 763

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2008/1574

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY  SERVICES AND INDIGENOUS AFFAIRS

Applicant

And LUALHATI TOWSE

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date29 August 2008

PlaceSydney

Decision

For the reasons below, I find that:

(i) Darren Towse is a profoundly disabled child within the meaning of section 197 of the Social Security Act 1991.

(ii) Mrs Towse is qualified for a carer payment as determined by the provisions in section 198 of the Social Security Act 1991.

(iii) The decision under review is affirmed.

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

Dr I Alexander

Member

CATCHWORDS

SOCIAL SECURITY – profoundly disabled child – repeatedly engages in dangerous behaviour – significant risk to the child’s health or safety – carer intervention – qualification for carer payment – continuous personal care – severely restrict the person’s capacity to undertake paid employment – held child profoundly disabled – held applicant qualified for carer payment  –  decision under review affirmed.

LEGISLATION

Social Security Act 1991; ss 197(2), (2AA), (2A); 198(10)

REASONS FOR DECISION

29 August 2008                    Dr I Alexander, Member

INTRODUCTION

1.         On 17 September 2007 Mrs Towse made a claim for carer payment in relation to care provided to her son Darren, aged 8 years old, who suffers from Autism.

2.          On 31 October 2007 the claim was rejected by Centrelink, both at first instance and on review, on the grounds that Darren did not meet the definition of a profoundly disabled child as set out in the Social Security Act 1991 (“the Act”).

3. On 14 March 2008 the Social Security Appeals Tribunal (“SSAT”) decided that Mrs Towse was eligible for carer payment under subsection 197(2AA) of the Act.

4. The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the Secretary”) seeks review of the decision of the SSAT dated 14 March 2008 on the grounds that Darren is not a profoundly disabled child within the meaning of the Act.

5. In particular, the Secretary contends that Darren’s behaviour does not satisfy the requirements of subsection 197(2AA) of the Act.

6. In addition, the Secretary contends that Mrs Towse does not qualify for carer payment on the grounds that she does not satisfy the requirements of subsection 198(10) of the Act. This issue was not considered by the SSAT.

ISSUES

Is Darren a profoundly disabled child within the meaning of the Act: Subsection 197(2AA)?

7. Subsections 197(2), (2AA) and (2A) of the Act contain the definitions of a profoundly disabled child. The relevant provision in this case is found in subsection 197(2AA) which provides:

(2AA)  A child is a profoundly disabled child if:

(a)  the child has either:

(i)  a severe intellectual, psychiatric or behavioural disability; or

(ii)a severe intellectual, psychiatric or behavioural medical condition; and

(b)  the child, because of the disability or condition, needs continuous personal care for:

(i)  6 months or more; or

(ii)  if the child's condition is terminal and the child's life expectancy is less than 6 months--the remainder of the child's life; and

(c)  the child is at least 6, and under 16, years of age; and

(d)  because of the child's disability or condition, the child does one or more of the following:

(i)  repeatedly engages in dangerous behaviour that is, or that gives rise to, a significant risk (whether immediate or long‑term) to the child's health or safety and that, without carer intervention, would result in the child suffering sustained tissue or bodily damage, or death;

(ii)  repeatedly engages in aggressive or violent behaviour that is, or that gives rise to, a significant risk to the health or safety of others, or that results in significant property damage, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities;

(iii)  repeatedly engages in severe sexually deviant or sexually inappropriate behaviour, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities.

8. The Secretary conceded that Darren satisfied the criteria set out in paragraphs 197(2AA)(a), (b) and (c), therefore, the only issue in dispute is whether Darren’s behaviour satisfies the requirements of paragraph 197(2AA)(d) of the Act.

Mrs Towse’s Evidence

9.      Mrs Towse gave oral evidence, by telephone on 8 August 2008. She lives with her husband and 8 year old son Darren, on a 300 acre property in Quirindi. The property is (approximately) 10 kilometres from the town centre and as Mrs Towse does not drive a car, she relies on her husband, the one taxi in town and, the school bus for transport.

10.       Mrs Towse first noticed that Darren had a problem when he went to pre-school in 2004, and it became obvious that, compared to his peers, he was developmentally delayed. In 2005, the local paediatrician diagnosed Autism and subsequently, Darren was placed in a special class at school.

11.       In January 2007, Darren was referred to The Royal Far West Children’s Health Scheme, in Sydney where he was reviewed by Dr J Brennan, Child & Adolescent Psychiatrist, as well as several allied health professionals. He was, again, assessed in April 2008.

12.       Currently, Darren attends school daily from Monday to Friday. He has been placed in a special class of six children with two teachers. He is taken to school (by the school bus) at about 8.30am and returns home (on the school bus), at about 4pm each day. Mrs Towse is required to be at home, when Darren returns from school.

13.       Mrs Towse described various examples, of behaviour, which she felt demonstrated Darren’s need for constant supervision. When Darren is frustrated, which is quite often, he may bang his head repeatedly against the wall, throw himself to the floor or throw things, such as pillows and toys, around the room. On some occasions, he has thrown toys at his mother causing her mild bruising. These “tantrums” occur regularly, at least two to three times per week and, sometimes more often. As yet, Darren has not suffered any serious injury.

14.       Mrs Towse also described other behaviour such as touching a hot iron, repeatedly, opening and shutting the door of the wood heater and, turning on the hot water tap allowing the water to flood onto the floor. On one occasion, in February 2008, she noticed that Darren had an unexplained cut on his scalp that required medical attention but no stitches.

15.       Mrs Towse described an episode at school, where Darren became frustrated and broke a girl’s plastic water bottle. Another episode, occurred, in the playground where, in response to some of Darren’s unusual behaviour, a boy through a rock at his head and caused a laceration.

16.       I note that in her evidence to the SSAT, Mrs Towse said that she was required to go to the school at least every two weeks and sometime more often when Darren’s behaviour was uncontrollable. However, in her oral evidence to the Tribunal, she agreed that Darren had never been sent home or excluded from school because of his behaviour.

Medical Evidence

17.       In a report of 9 April 2008, Dr J Brennan, confirmed that Darren suffered from a “pervasive developmental disorder with Autism being the diagnosis” and noted that; “information from school indicated continuing worries and concerns about his social development, language, focus and attention.”

18.       Dr J Brennan, in his report, commented, that although, Darren had some significant problems in the development of social skills, oppositional behaviour was not a feature and that parenting was currently not a major issue. He also commented; that Darren’s main problem at home was that, occasionally he would become distressed and upset if things didn’t go his way and, when he is asked not to do something. However, he also indicated that Darren’s behaviour problems were kept at a minimum, as a result of excellent local interventions through the school and, his mother’s continued “intensive involvement and attention.”

19.       There was no mention of dangerous or aggressive behaviour. Dr J Brennan did note, however, that Mrs Towse complained of Darren becoming more demanding before and after school and, commented that “children with Autism frequently have more behavioural difficulties between the ages of 5 and 10 and parents are often tied down and unable to work.”

20.       Dr J Brennan also indicated that, Darren’s deficits were quite severe and, was of the opinion that his mother needed a ‘carer’s pension’ on the grounds that any reduction in social or emotional support and a lack of routine could cause a substantial increase in behavioural difficulties and jeopardise Darren’s development.

Consideration

21.       It is clear from the evidence before me, that Darren is a significantly disabled child and that the nature of his condition is such that he requires constant care and attention.

22. There is no evidence before me, that he repeatedly engages in aggressive or violent behaviour, that gives rise to a significant risk to the health and safety of others or that he repeatedly engages in severe sexually deviant or sexually inappropriate behaviour. Therefore, he does not satisfy the requirements of subsections 197(2AA)(d)(ii) or 197(2AA)(d)(iii) of the Act.

23. The question that remains therefore, is whether Darren repeatedly engages in behaviour that is or gives rise to a significant risk to his health or safety, thus, satisfying the requirements of subsection 197(2AA)(d)(iii) of the Act.

24.       Mrs Towe’s evidence, clearly, demonstrated that Darren does repeatedly engage in behaviour that, in my opinion, would expose him to significant risk to his health and safety without the immediate intervention of a carer. In particular, I note his recurrent head banging and the incidents with the hot iron and the hot water.

25.       The Secretary submitted, that the behaviour described by Mrs Towse is not at a level to pose a significant risk and, that the described incidents are normal childhood behaviour.

26.       I do not agree with the Secretary’s submission, as, in my view, it fails to address the nature and severity of Darren’s condition. It also fails, to acknowledge the inherent risk of serious physical damage to a developmentally disabled child, in the context of the kinds of situations described by Mrs Towse, if immediate carer intervention were not possible.

27. Furthermore, in my opinion, the intent of subsection 197(2AA)(i) of the Act, is clearly directed at the risk of physical damage to the child and the capacity of the carer to intervene and not at whether there is evidence of actual damage. It would be strange legislation, indeed, that provided assistance for a carer only after a disabled child had been damaged as a result of his behaviour and precluded such assistance for a carer to intervene and prevent such physical damage.

28.       The fact that Darren has not yet, sustained any significant damage is in my opinion, evidence of the excellent care provided by both his mother and the teachers at his school. This view is supported by comments made by Dr J Brennan in his report.

29. For the above reasons, I find that the there is sufficient evidence to satisfy me that Darren’s behaviour does satisfy the requirements of subsection 197(2AA)(d)(i) of the Act and, therefore, he is a profoundly disabled child within the meaning of the Act.

Does Mrs Towse meet the requirements Subsection 198(10) of the Act?

30. Section 198 of the Act contains the provisions for qualification for carer payment. The relevant provision in this case is subsection 198(10) of the Act, which provides:

(10)If the care receiver is a profoundly disabled child within the meaning of subsection 197(2AA):

(a)the person must provide continuous personal care for the child within the meaning of paragraph (b) of that subsection; and

(b)the provision of that care by the person must severely restrict the person’s capacity to undertake paid employment.

Evidence

31.       In Mrs Towse oral evidence, she described how in 2006 she successfully completed two TAFE certificates in Community Service and Aged Care. She described going to TAFE, three times per week and using the school bus for transport and, that sometimes she had to miss classes, in order to deal with some of Darren’s needs. As part of the course, she was required to undertake about 50 hours of work experience at a local nursing home, two shifts per weeks from 6.30 am to 3.00pm over a period of about six weeks. During this time, Darren’s father had to care for him in the morning and, his mother came home with him on the school bus in the afternoon. Despite difficulties, Mrs Towse indicated that the family coped because the time period was relatively short.

32.       In 2007, Mrs Towse enrolled in a TAFE business course but gave up during the first semester because of increasing demands in caring for Darren.

33.       Mrs Towse indicated that as well as caring for Darren, she was responsible for most of the domestic duties at home such as cooking, cleaning and washing. She went shopping once a week with her husband and also helped with maintenance on the property as well as all the bookkeeping. Most of these activities were done while Darren was at school.

Consideration

34. The Secretary submitted that Mrs Towse did not satisfy the requirements of subsection 198(10) because Darren attends school every day and travels to and from school (on the school bus) and that therefore she was not providing Darren with continuous personal care while he was a school. It was also submitted, that as she was not caring for Darren while he was at school, she would be able to undertake employment during that time.

35.       I have significant difficulty with this submission, as it appears to be based on a presumption, that ‘continuous personal care’ means care for 24 hours a day, seven days a week, a presumption that in my view is clearly unreasonable.

36. The Secretary had conceded, that Darren meets the requirements of subsection 197(2AA)(b) of the Act, that because of his disability, he needs continuous personal care for six months or more.

37.       To suggest that in order to be eligible for carer payment, Mrs Towse is expected to provide continuous personal care around the clock, without respite and without an opportunity to attend to necessary personal and domestic activities, in my view, would, be untenable. Furthermore, it is clear from the medical evidence, that Darren’s attendance at school is part of his therapeutic program and is necessary to ensure the best outcome for his future development. Also, the suggestion that in order to be eligible for carer payment, the carer must continue to provide care during the course of professional therapeutic intervention, I find unacceptable. In any case, there is evidence that Mrs Towse is frequently required to assist with Darren’s care while he is at school.

38. The Act does not define ‘continuous personal care’ and, in my opinion the correct approach should be to identify the principal carer and then consider their role in the context of the total care situation. If the principal carer provides, continuous care, for the majority of the time and the circumstances of the total care situation are such that the primary carer continues to be the responsible guardian during periods of care provided by other people, then, in my view, the requirements of the Act should be satisfied.

39. In this case, it cannot be disputed that Mrs Towse is Darren’s principal carer and, I am satisfied, that the evidence before me clearly supports a conclusion, that she provides continuous personal care for a majority of the time and, that she is also the responsible guardian while Darren is at school. Therefore, I find that the requirements of subsection 198(10)(a) of the Act have been satisfied.

40. This leaves the final question as to whether the care that Mrs Towse provides severely, restricts her capacity to undertake paid employment as required by subsection 198(10)(b) of the Act.

41. In my opinion, the Secretary’s submission, that because Mrs Towse was not providing care while Darren is at school, she would be able to undertake employment fails to address the question posed by subsection 198(10)(b) of the Act.

42.       The question is not whether she is able to undertake employment, but whether the care that she provides, severely restricts her capacity to undertake paid employment.

43.       I have already decided that Darren is a profoundly disabled child and, it is clear from the evidence, that Mrs Towse is the principal carer and is required to provide continuous personal care, while Darren is not at school. Frequently, at unpredicted times, she is also required to attend school in order to assist with Darren’s care.

44.       In my view, the evidence supports a conclusion that, Mrs Towse provides an excellent level of care, in that Darren appears to be making good progress within the limits of his disorder and, despite his frequent difficult behaviour; he has been managed without significant adverse consequences.

45.       Mrs Towse is clearly a resourceful and capable woman, as demonstrated by the fact that despite the various demands on her time, she was able to complete some TAFE certificates. Eventually, however, as a result of Darren’s increasing needs, she was unable to continue which is not surprising when one considers that she was also responsible for most of the domestic home chores and, provided additional assistance in the management of the family’s 300 acre property.

46.       Also, in deciding this issue, I am mindful of the comments of Dr J Brennan, in his report, that it is essential that Darren has adequate support before and after school, otherwise, behavioural difficulties could increase and his development be jeopardised. After having considered the evidence, I have no doubt that any deterioration in Darren’s condition would result in a significantly increased burden of care, an outcome that would clearly be undesirable.

47. For these reasons, I find that the care provided by Mrs Towse to her son, Darren, does severely restrict her capacity to undertake paid employment and therefore the requirements of subsection 198(10)(b) of the Act are satisfied.

DECISION

48.       For the above reasons, I find that:

(i) Darren Towse is a profoundly disabled child within the meaning of section 197 of the Social Security Act 1991.

(ii)Mrs Towse is qualified for a carer payment as determined by the provisions in section 198 of the Social Security Act 1991.

(iii) The decision under review is affirmed.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.

Signed:         ............................[SGD]...............................................
  Associate:

Date of Hearing:  8 August 2008
Date of Decision:  29 August 2008
Appearance for the Applicant:  Mr J Larcombe, Legal Services and
  Procurement, Centrelink
Solicitor for the Respondent:     Self-Represented