"VZO" and Department of Family and Community Service - [2000] AATA 311

DECISION AND REASONS FOR DECISION [2000] AATA 311

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V99/682
GENERAL ADMINISTRATIVE DIVISION)
           Re:     "VZO"
  Applicant
           And:    SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICE
  Respondent

DECISION

Tribunal: Mrs H.E. Hallowes, Senior Member

Date:20 April 2000
Place:Melbourne

Decision: The decision under review is affirmed.

(sgd) H.E. Hallowes
Senior Member
SOCIAL SECURITY — child disability allowance — asthma — rated under Child Disability Assessment Tool — whether positive score of not less than +1 — whether behaviour and special care needs functional domains provide for non-violent behaviour impacting on special care needs

Administrative Appeals Tribunal Act 1975 ss.35, 37
Social Security Act 1991 ss.952, 952A, 953, 954
Child Disability Assessment Determination 1998

Re Gibbons and Secretary, Department of Family and Community Services [1999] AATA 994

REASONS FOR DECISION

20 April 2000 Mrs H.E. Hallowes, Senior Member

These are the reasons why the Tribunal will affirm the decision of the Social Security Appeals Tribunal ("the SSAT"), made on 21 April 1999. The SSAT affirmed a decision of a Centrelink officer, who is a delegate of the Secretary to the Department of Family and Community Services ("the Secretary"), rejecting the applicant's claim for child disability allowance in respect of one of her four children. When the applicant lodged her claim for child disability allowance on 3 March 1999, the child had been diagnosed with asthma which is not one of the recognised disabilities under the Child Disability Assessment Determination 1998, made by the Secretary under s.952A of the Social Security Act 1991 ("the Act") and which was in effect when the applicant lodged her claim and the child was assessed under the Child Disability Assessment Tool ("the Tool"), devised by the Secretary under s.952A(1).
At the hearing the Tribunal was advised that the child has now been diagnosed with a further medical condition. It was suggested to the applicant that she lodge a further claim for child disability allowance in respect of the child. She is paid child disability allowance in respect of an older child, apparently granted before the Tool came into effect. The Tribunal observes that s.954(2) of the Act provides:
954(2) If:
(a) a person has 2 dependent children each of whom:
(i)has a physical, intellectual or psychiatric disability; and
(ii)is likely to suffer from the disability permanently or for an extended period; and
(b)each of the children has been given under the Child Disability Assessment Tool a positive score of less than 1 but, if their scores were aggregated, the aggregate score would be a positive score of not less than 1; and
(c)family allowance is, or would (but for a provision of this Act, or a reason, referred to in paragraph 953(b)) be, payable to the person for the disabled children; and
(d)because of the disability from which he or she is suffering, each of the disabled children receives care and attention on a daily basis:
(i)if the person is a member of a couple — from the person or the person's partner; or
(ii)if the person is not a member of a couple — from the person;
in a private home that is the residence of the person and the dependent children;
the person is qualified for a child disability allowance for the 2 children as if the person had only one CDA child.

It may assist claimants for child disability allowance if advice with respect to s.954(2) was provided to them when appropriate.

The relevant legislation under Division 2 of Part 2.19 of the Act provides for qualification and payability of child disability allowance. Sections 952 and 952A provide, so far as relevant:
952                  Subject to subsection 953, a young person is a disabled child if:
(a)the young person:
(i)has a physical, intellectual or psychiatric disability; and
(ii)is likely to suffer from the disability permanently or for an extended period; and
(b)a determination of the Secretary under section 952A is in force and one of the following conditions applies:
(i)under the determination, the disability is declared to be a recognised disability for the purposes of this section;
(ii)the young person has been assessed and rated under the Child Disability Assessment Tool and has been given a positive score of not less that 1.
952A(1)           The Secretary may, by determination in writing:
(a)devise a test for assessing a young person's functional ability, emotional state, behaviour and special care needs; and
(b)provide a method for rating the young 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).
952A(2)           . . .
952A(3) The determination may, in addition, declare that a physical, recognised intellectual or psychiatric disability specified in the determination is a recognised disability for the purposes of section 952.
. . .

Section 953 provides that a disabled child is a CDA child if, amongst other things, a person is paid family allowance in respect of the disabled child.

953 A disabled child is a CDA child of a person if:
(a)family allowance is payable to the person for the disabled child; or
(b)family allowance would be payable to the person for the disabled child but for:
(i)section 832 (prescribed student child cannot be FA child); or
(ia)section 833 (child over 16 cannot be FA child); or
(ib)section 834 (child is not FA child if approved care organisation is qualified for family allowance); or
(ii)(Omitted)
(iia)paragraph 838(1)(d) (assets test); or
(iii)Submodule 3 of Module H of the Family Allowance Rate Calculator (family allowance income test); or
(iiia)the child receiving youth allowance; or
(iv)the child receiving income in excess of $107.70 per week; or
(v)a proper claim not having been made.

The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the documents) ("the AAT Act") which include the treating health professional's and the applicant's, as claimant, answers to questionnaires, which are provided under Schedule 1 of the Tool (T4, T6). Part 2 of the Tool provides:
Part 2—Child Disability Assessment Tool
2.1Questionnaires
(1)Part 1 of Schedule 1 sets out a questionnaire about the functional ability, emotional state, behaviour and special care needs of a young person.
(2)The questionnaire may be completed only by a person (the claimant) wishing:
(a)to claim child disability allowance under the Act for the young person; or
(b)to continue to be qualified for child disability allowance under the Act for the young person.
(3)Part 2 of Schedule 1 sets out another questionnaire about the functional ability, emotional state, behaviour and special care needs of a young person.
(4)The questionnaire may be completed only by a treating health professional.
2.2Testing method
(1)The test for assessing a young person's functional ability, emotional state, behaviour and special care needs is set out in this section.
(2)The test consists of the 2 questionnaires mentioned in section 2.1.
(3)The following steps are carried out for the test:
(a)the Secretary must be satisfied that a questionnaire set out in Part 2 of Schedule 1 completed by a treating health professional is an accurate reflection of the young person's functional ability, emotional state, behaviour and special care needs;
(b)a score must be calculated:
(i)using the rating method mentioned in section 2.3; and
(ii)on the basis of the results of the questionnaire.
(4)If the Secretary is not satisfied that the questionnaire completed by the treating health professional is an accurate reflection of the young person's functional ability, emotional state, behaviour and special care needs, the Secretary must ask for a replacement questionnaire to be completed by another treating health professional.
(5)If the score calculated in paragraph (3) (b) is not greater than 0, the test is completed.
(6)If the score calculated in paragraph (3) (b) is greater than 0, the test is completed only if a questionnaire set out in Part 1 of Schedule 1 is completed by the claimant.
(7)If the score calculated in paragraph (3) (b) is greater than 0 and a questionnaire set out in Part 1 of Schedule 1 has been completed by the claimant, a score must be calculated on the basis of the results of the questionnaire using the rating method mentioned in section 2.3.
2.3Rating method
(1)Steps 1 to 12 in Schedule 2 set out the method for rating a young person, on the basis of the results of each questionnaire completed about the young person.
(2)The method gives the young person a score that:
(a)is in accordance with the scale mentioned in subsection 952A (2) of the Act; and
(b)determines whether the young person meets the condition in subparagraph 952 (b) (ii) of the Act.
(3)For all calculations in Schedule 2, numbers are to be rounded to 2 decimal places.

The documents also include a copy of the scored responses of the treating health professional (T5) and the scored responses of the applicant (T3), completed by a Centrelink officer (T7).

Mr D. Perdon, of Centrelink, who appeared for the Secretary at the hearing, had provided the applicant and the Tribunal with a statement which showed the steps used under the Rating method in the Tool to calculate both the treating health professional's score and the claimant's score (disclosed in the documents at T5 and T7), together with a statement of the Secretary's case. The applicant appeared for herself at the hearing which was conducted over a loudspeaker telephone. Mr Perdon did not dispute that the child satisfies s.952(a)(i) and (ii) (paragraph 3 above) and that the child receives care and attention on a daily basis from the applicant in their private home, the applicant therefore satisfying s.954(1)(b) of the Act, which provides:
954(1)             A person is qualified for a child disability allowance for a young person if:
(a)the young person is a CDA child of the person; and
(b)because of the disability from which he or she is suffering, the young person receives care and attention on a daily basis from:
(i)if a person is a member of a couple — the person or the person's partner; or
(ii)if the person is not a member of a couple — the person;
in a private home that is the residence of the person and the young person.
Note 1:for "young person" see section 5.
Note 2:for "CDA child" see sections 952 and 953.
Note 3:a person may continue to be qualified for child disability allowance even if paragraph (b) is not satisfied — see section 955.
Note 4:If the young is absent during part of a day but is otherwise being cared for by the person, the person receives the full rate of allowance.   If the person does not provide care to the young person because the young person is away receiving education, training or treatment (but not in hospital), the person may remain qualified for the allowance (see subsection 955(4) but the person's rate will be reduced under section 967.
Note 5:CDA may be payable to a person who is living overseas.   This is because section 953 provides that a child is a CDA child of a person if the person is getting family allowance for the child and section 840 provides that family allowance may be payable overseas for up to 3 years for temporary absences.   The child must, however, be an inhabitant of Australia or living with one (see section 835).

However, Mr Perdon contended in his statement that:

. . .
d        The CDAD specifies a number of conditions known as "recognised disabilities" which give rise to CDA qualification.   Asthma is not one of those "recognised disabilities" (T20pp81-83);
e        In respect of conditions which are not "recognised disabilities," the CDAD provides for a numerical assessment by rating the responses to the TDR and to the carer's questionnaire (T20p59).   If the score calculated in respect of the TDR is not greater than zero, the CDAD test is completed (T20p59).   If the TDR score is greater than zero, as in the present application, a score is also calculated for the carer questionnaire and the two scores averaged, combined and validated to provide a CDAD score (T20pp59, 70-80);
f         In the present application, as the combined CDAD score is less than +1.00, the CDAD assessment is complete and the applicant is not qualified for CDA.

At the commencement of the hearing the applicant expressed concern that, having been provided with a copy of the Tribunal's Decision and Reasons for Decision in Re Gibbons and Secretary, Department of Family and Community Services [1999] AATA 994, her circumstances and those of her child could be disclosed to the world at large, including other families in her provincial community, more particularly, parents of children attending the same school as her child. She wishes to keep their circumstances private. In light of her concerns, to ensure that she felt able to disclose all relevant circumstances to the Tribunal, and to allay her fears that they may become public knowledge through the availability of Tribunal decisions and reasons for decision on the Internet, the Tribunal made an Order under sub-section 35(2) of the AAT Act, prohibiting disclosure of her and her child's names.
Mr Perdon took the Tribunal and the applicant through the Rating method under the Tool. The treating health professional was not called to give evidence with respect to the steps he carried out to form his opinion with respect to the statement which best described the child's ability in each category in the questionnaire which he completed. The applicant did not take issue with the treating health professional's responses and she gave evidence that, although the child is also under the care of a specialist paediatrician, the treating health professional, who is the family's general practitioner, was, in her opinion, in the best position to respond to the questionnaire. He assists her with a managed plan with respect to the child, who has now developed convulsions.
The applicant noted the difficulties for her in responding to the claimant's questionnaire as the child, who was born on 6 May 1998, was below the age of 12 months when the questionnaire was completed. Mr Perdon explained that a child who is functioning at his or her chronological age would score zero under the tables used to calculate a score for a child. If the child is functioning below his or her chronological age, the child would score in the positive, depending on the deviation from the norm. If the child is functioning above his or her chronological age, he or she would score in the negative. The first eight sections in each questionnaire are descriptive of the developmental sequence used to determine the relationship between a child's functional age and his or her chronological age. The treating health professional and the claimant are asked to mark the statement which describes the best ability of a child in each functional domain. The two other functional domains in both questionnaires are with respect to a child's behaviour and special care needs. All statements describing a child's behaviour or special care needs are to be marked, as follows:

Behaviour

Behaviour Read the list and tick ALL statements that apply to your child   The child is only taken into community settings when unavoidable because of the child's extreme anti-social behaviour        c9a
          Child purposefully injures himself or herself through head banging, hand biting or other forms of self abuse. c-9b
          Child displays explosive and unpredictable violent behaviour towards other people or property at least once a month. c-9c
          Child is aged five years or older and has poor awareness of danger (e.g. runs into traffic or jumps into water without being able to swim).     c-9d
          Child continually runs away.   Child requires constant supervision and house and other care settings must be locked.        c-9e
          Child is extremely active and is unable to concentre on a task for more than 30 seconds. c-9f
          Child's behaviour is such that the child cannot be left with anyone other than the parents or outside the parent's home.     c-9g
          Child displays obsessional, repetitive behaviours (e.g. obsession with particular objects or twirling or spinning objects for extended periods of time).        c-9h
          Child is obsessed with following specific routines and becomes extremely upset and disturbed if regular routine is disrupted.    c-9i
Special care needs
Special care needs: Read the list and tick ALL statements that apply to your child.        Child receives all food and fluids by nasogastric, gastrostomy tube or percutaneous entero gastric tube (PEG).          c10a
          Child has a tracheostomy.     c-10b
          Child is aged over four years and is incontinent (i.e. wets or soils his or her pants or nappies) both day and night        c-10c
          Child is aged over three years and cannot stand without support.    c-10d
          Child requires a wheelchair and needs assistance to propel the wheelchair.         c-10e
          Child requires a wheelchair, quad sticks, crutches or walking frame but can move around with little assistance using this equipment        c-10f
          Child uses an electric wheelchair.     c-10g

Child requires urinary catheterisation several times each day.        c-10h
          Child requires specialised equipment, prosthesis, or technology to communicate (e.g. a computerised communicator, telephone typewriter (TTY), voice synthesiser, cochlear implant, hearing aids or adaptations to a standard computer).       c-10i
          Child is aged over five years and requires care provided by parents more than twice each night between the hours of 10pm and 6am.          c-10j
          Child is aged over five years and has persistent difficulties with memory, concentration, planning and organisation.   c-10k

The Tribunal observed at the hearing that a child, who may be in advance of its peers with respect to the first eight functional domains but whose behaviour is not anti-social or violent, but rather lacking in response which may be due to, for example breathing difficulties, and thus require the child to be under constant observation for a period to determine whether it should be hospitalised to alleviate airway distress, does not seem to be provided for under the behavioural and special care needs statements. Those children may not be left with others (statement C-9g), not due to their behaviour but due to the severity of their symptoms and the refusal of others to take responsibility for them and their treatment. A carer of an asthmatic child may have to spend considerable time with the child administering medication over time or observing whether airways obstruction is alleviated by medication available in the home, particularly during the night. Medication may be prescribed and administered but still not alleviate symptoms.
In giving evidence to the Tribunal the applicant outlined a normal day for her at home which involves trying to keep her house as dust free as possible and supervising her child so that infections are avoided. She said that her child was diagnosed with asthma at 8 weeks of age, when she was hospitalised for 1 week. Mr Perdon pointed out the difficulty in constructing a questionnaire with statements which are applicable to children from birth until they turn 16 years of age. Mr Perdon noted that the treating health professional's responses were the same as the carer's responses, which points to the validity of both their responses to their questionnaires. The applicant said that the treating health professional had asked her questions before completing his questionnaire.

The applicant's evidence was directed towards the care she provides for her child, but the Tribunal, in applying the Tool, must only consider the child's abilities, behaviour and special care needs. It was not in dispute that the applicant provides care and attention on a daily basis for the child in their home. Having considered the scoring under the Tool provided by Mr Perdon, which the Tribunal is satisfied accurately reflects the treating health professional's and the applicant's responses to their questionnaires and, being satisfied that the steps required under the Tool have been correctly applied, those steps, having been outlined during the course of the hearing, the Tribunal will not set them out as it did in Re Gibbons, the applicant having access to the reasons for decision in that matter. Although oral evidence was not given by the treating health professional to the Tribunal, the applicant's evidence and the consistency in the responses to the questionnaires satisfies the Tribunal that the responses of the treating health professional are an accurate reflection of the young person's functional ability. It could have been of some concern to the Tribunal that the treating health professional had asked the applicant questions before completing his questionnaire, but the Tribunal has decided on the balance of probabilities and, relying on the applicant's evidence with respect to the treating health professional's involvement with her child, that the treating health professional was doing no more than confirming his observations and testing of the child when asking questions.
The treating health professional's score under steps 2, 3, 4, 5 and 7 is +0.43. The Testing method provides under 2.2(5) that, if the score calculated with respect to the treating health professional is not greater than 0, the test is completed. In this application the score is greater than 0. The applicant has completed a questionnaire and the score for the applicant is also +0.43, applying steps 2, 3, 4, 5 and 6 (see Testing method 2.2(6)). Step 8 is not relevant in this application as the child is under 12 years of age. Step 9 provides for the adding together of "the interim" claimant's total score from step 6 and "the interim" treating health professional's total score from step 7. The Tribunal in Re Gibbons commented on the use of the word "interim" (para 11). The total score under step 9 is +.86. Step 9(2) and (3) provide:
. . .
(2)If the score mentioned in paragraph (b) of the table is not greater than 0, or the total score mentioned in the table is less than +1, go to step 10.
(3)If the score mentioned in paragraph (b) is of the table is greater than 0 and less than +1, and the total score mentioned in the table is not less than +1, go to step 11.
. . .

In this application the score mentioned in paragraph 9(1)(b) is greater than 0 and the total score is less than +1, being .86. Step 9(2) is not relevant. The decision-maker does not go to step 10. Under step 9(3), as the score of the interim treating health professional is greater than 0 but less than +1, but the total score is less than +1, the decision-maker is not required to go to step 11. There are no more steps. The child has been assessed and rated under the Tool, and has not been given a score of not less than +1. The child is therefore not a disabled child under s.952 (see paragraph 3 above) and the applicant is not qualified for child disability allowance under s.954 (see paragraph 5 above).

Under the Tool, Schedule 2 provides for the scoring of the claimant's and treating health professional's questionnaires with respect to all functional domains other than hygiene and grooming skills (4), and body movement (8). Step 3 provides for the calculation of a score with respect to the claimant and the treating health professional's questionnaires with respect to hygiene and grooming. Step 4 provides the calculation of a score with respect to body movement. Step 5 provides the calculation of a score with respect to behaviour and special care needs. The Testing method (2.2) provides that the test is complete once a score has been calculated with respect to the treating health professional's questionnaire which is not greater than 0 (2.2(5)). It appears that it is only after a score has been calculated that is greater than 0 that the statements ticked by a claimant in the claimant's questionnaire must be considered. Yet in applying the Rating method (2.3) under 2.2(3)(b)(i) to the treating health professional's responses to his or her questionnaire a claimant's score is also calculated and both scores are divided by 2. If the treating health professional's score is calculated as greater than 0, then the Testing method 2.2(7) provides that the Rating method 2.3 is again used.
Having considered the Testing method provided under Part 1 Preliminary of the Child Disability Assessment Determination, the Testing method suggests that it is only the treating health professional's questionnaire which is scored and the test is complete if the score is not greater than 0. It is only if the treating health professional's score is greater than 0 that the claimant's score appears to come into contention. Yet the Rating method provides otherwise.
It is regrettable for the applicant, but having applied the relevant provisions to her circumstances, the decision under review will be affirmed for these reasons.
I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
(sgd)    Catherine Thomas
          Personal Assistant
Date of Hearing:  09.02.2000
Date of Decision:  20.04.2000
Solicitor for the Applicant:           IN PERSON
Solicitor for the Respondent:       Mr D. Perdon, Officer of Centrelink

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"VZO" and Department of Family and Community Service [2000] AATA 311

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