WDHR and Secretary, Department of Social Services (Social services second review)

WDHR and Secretary, Department of Social Services (Social services second review) [2021] AATA 1038 (28 April 2021)
Division:GENERAL DIVISION
File Number: 2020/0127
Re:WDHR
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:28 April 2021
Place:Perth

The Tribunal affirms the Reviewable Decision, being the decision of the AAT1 dated
27 November 2019, which affirmed an earlier decision of an Authorised Review Officer of Centrelink to reject the Applicant’s claim for carer allowance lodged on 1 October 2018.
...................[Sgd].....................................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
SOCIAL SECURITY – Carer Allowance – whether Applicant qualified for Carer Allowance at the time of claim – whether the Child’s conditions are listed in Schedule 3 to the DCLA Determination – whether the score for the professional questionnaire is greater than zero – whether the score for the ACL questionnaire is 85 or more – whether additional points can be added – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 29(7)
Social Security Act 1991 (Cth) – ss 38E, 953, 953(1)(a), 953(1)(b), 953(1)(d), 953(1)(e), 953(1)(f), 953(1)(g), 953(1)(e)(i), 953(1)(e)(ii)
Disability Care Load Assessment 2010 (Cth) – ss 7, 8, 10, 10(7), sch 3
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) 2 ALD 634
SECONDARY MATERIALS
Department of Social Services, Social Security Guide – version 1.281
REASONS FOR DECISION
Brigadier A G Warner, AM LVO (Retd), Member
28 April 2021
INTRODUCTION

The Applicant seeks review of a decision of the Social Services & Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) dated 27 November 2019, which affirmed an earlier decision of an authorised review officer (ARO) of Services Australia (Centrelink) to reject the Applicant’s claim for carer allowance lodged on 1 October 2018.
The hearing was conducted in Perth by telephone conference on 26 March 2021, and the Tribunal was assisted by an interpreter in the Arabic language. The Applicant was self-represented and gave evidence on affirmation.
Ms Laura Hinwood of Services Australia represented the Respondent.
BACKGROUND
The Applicant lodged a claim for carer allowance on 1 October 2018 with respect to her dependent child (the Child) (T8/114).
On 7 August 2018, Dr Sanjay Bhardwaj, general practitioner, completed a ‘Carer Allowance – Medical Report’ form in relation to the Applicant’s claim for carer allowance (T6/100).
On 15 November 2018, the Applicant’s claim for carer allowance was rejected because the condition of the child was ‘not at the level which would entitle [the Applicant] to payment of Carer Allowance’ (T9/119).
The Applicant completed a Care Needs Assessment on 17 May 2019 (T11/122–35).
On 14 June 2019, an ARO affirmed the decision to reject the Applicant’s claim for carer allowance (T17/145).
On 12 September 2019, the Applicant applied to the AAT1 for review of the ARO’s decision (T18/150), and in a decision dated 27 November 2019, the AAT1 affirmed the ARO’s decision (T2/6). Although the AAT1 found it appropriate to add 30 points to the qualifying rating score, as determined by the Care Needs Assessment questionnaire, the resultant score still fell short of that required for payment of carer allowance (T2/9).
On 9 January 2020, the Applicant applied to this Tribunal for review of the AAT1 decision (T1/1). As this application was made more than 28 days after the Applicant received notice of the AAT1 decision, she was required to seek an extension of time in accordance with

s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal granted an extension of time on 17 January 2020 (T20/160).
The Applicant claims the decision under review is wrong because (T1/5):
[The Child] is a child with so many health problems. She require so much attention and must be looked after 24/7. That means she need to looked after day and night. She has severe asthma, eczema, severe allergies, constipation which require 10 to 12 changing of nappies sometimes more than that. She must be washed every time I change her since she is allergic to baby wipes (causing severe rash and eczema). She needs special baby wipes (water wipes) used at night. I believe [the Child] deserve to be paid carer allowance as any other child suffering health problems. Since birth [the Child] suffered these health problems and she never had any day without antihistamine, without buffer, without creams, without crying every 1 to 2 hours from constipation that is so painful. What else could a child go through.
ISSUES
The Tribunal must decide whether the Applicant was qualified for carer allowance in relation to the Child at the time she lodged her claim on 1 October 2018. This requires consideration of whether, as at 1 October 2018, the Applicant had a ‘qualifying rating of intense’ within the meaning of s 953(1)(e)(ii) of the Social Security Act1991 (Cth) (the Act). In particular, the Tribunal is required to determine whether the Applicant had a score of 85 or more for her assessment of care load under the Disability Care Load Assessment (Child) Determination 2010 (Cth) (DCLA Determination).
LEGISLATIVE FRAMEWORK
The Act and the DCLA Determination contain the legislation relevant to this matter.
The Tribunal notes that the DCLA Determination was repealed on 15 September 2021 and was replaced by a new determination. However, as the decision under review is concerned with accrued rights at an anterior date, the determination in force as at that date has to be considered.
Relevant policy is contained in the Social Security Guide (the Guide). To ensure consistency in decision-making, the Tribunal should follow the relevant policy unless there is a cogent reason to depart from its application (see Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645).
Section 953 of the Act sets out the qualification criteria for carer allowance:
953 Qualification for carer allowance—caring for either 1 or 2 disabled children
Single child
(1)A person is qualified for carer allowance for a disabled child (the care receiver) if:
(a)the care receiver is a dependent child (disregarding subsection 5(3)) of the person; and
(b)the care receiver is an Australian resident; and
(d)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from:
(i)     if the person is a member of a couple—the person, the person’s partner or the person together with another person (whether or not the person’s partner); or
(ii)     if the person is not a member of a couple—the person or the person together with another person;
in a private home that is the residence of the person and the care receiver; and
(e)either of the following applies:
(i)     the disability from which the care receiver is suffering is declared, under subsection 38E(3), to be a recognised disability for the purposes of this section;
(ii) the person has been given a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination for caring for the care receiver; and
(f)the person is an Australian resident; and
(g)the person satisfies the carer allowance income test under section 957A.
(Original emphasis.)
Section 38E of the Act states:
(1)The Secretary may, by legislative instrument (the Disability Care Load Assessment (Child) Determination):
(a)devise a test for assessing the functional ability, behaviour and special care needs of a person aged under 16 (the child), that includes an assessment that must be completed only by a treating health professional; and
(b)provide a method for rating the care needs of the child; and
(c)provide a method for giving a qualifying rating to a person (the carer) who is caring for the child that takes into account:
(i) the care provided for the child by the carer; and
(ii) the assessment completed by the treating health professional.
(Original emphasis.)
The DCLA Determination was made under s 38E of the Act on 1 July 2010.
Section 8 of the DCLA Determination provides that for the purposes of a claim for carer allowance two questionnaires must be completed assessing the functional ability, behaviour and special care needs of a child:
(1)Part 1 of Schedule 1 sets out a questionnaire (the ACL questionnaire) about the functional ability, behaviour and special care needs of a child.
(2)The ACL questionnaire must only be completed by a person seeking to claim:
(a)a carer payment under the Act for the care of a child; or
(b)a carer allowance under the Act for the care of a disabled child.
Note Subsection 10(6) allows the Secretary to amend a completed ACL questionnaire in certain circumstances.
(3)Part 2 of Schedule 1 sets out another questionnaire (the professional questionnaire) about the functional ability, behaviour and special care needs of a child.
(4)The professional questionnaire must only be completed by a treating health professional.
(Original emphasis.)
Section 3.6.12.10 of the Guide provides that a carer for a single child with a disability receives a qualifying rating of ‘intense’ if the total score for the assessment of care load (ACL) questionnaire is a qualifying score of 85 or more, and the score on the professional questionnaire is a qualifying score greater than zero.
Schedule 3 to the DCLA Determination includes a list of ‘Recognised Disabilities’ (in Part 1) and ‘Medical Conditions’ (in Part 2) for the purposes of s 953(1)(e)(i) (s 7 of the DCLA Determination).
Section 10 of the DCLA Determination states, in part:
Secretary to be satisfied
(5)The Secretary must be satisfied that a completed ACL questionnaire is an accurate reflection of the functional ability, behaviour and special care needs of the child to whom it relates.
(6)If the Secretary is not satisfied that the completed ACL questionnaire is an accurate reflection of the child’s functional ability, behaviour and special care needs, the Secretary may amend the scores for any of the domains if a question is deemed to have been missed or misinterpreted.
(7)Additional points may only be added by the Secretary to the scores for any of the domains to reflect unaccounted for care load that is not presently recognised by the ACL questionnaire.
EVIDENCE
The Tribunal had before it the following evidence:
·the ‘T-Documents’ (T1–T22, pp 1-186);
·Applicant’s Statement, filed with the Tribunal 23 June 2020 (Exhibit A1);
·Centrelink Carer Allowance Medical Report signed by Dr Sanjay Bhardwaj, filed with the Tribunal 25 September 2020 (Exhibit A2);
·medical appointment letters for the Child, from 1 January 2020 to 10 September 2020, filed with the Tribunal 25 September 2020 (Exhibit A3);
·letter from Dr Leena Patel dated 1 February 2021, attaching Carer Allowance – Medical Report (Exhibit A4);
·Secretary’s Statement of Issues, Facts & Contentions dated 27 October 2020 (Exhibit R1); and
·the oral evidence of the Applicant.
CONSIDERATION
The Respondent accepts that the criteria in ss 953(1)(a), (b), (d), (f), and (g) of the Act are all met in relation to the claim for carer allowance lodged by the Applicant on

1 October 2018 (there is no s 953(1)(c) in the Act), and that the only issue for the Tribunal’s consideration is therefore whether s 953(1)(e) is met (Exhibit R1, para 20). Having regard to the material before it, the Tribunal agrees with the Respondent’s submission in this regard.
The medical evidence is, and the Respondent accepts, that the Child has been diagnosed with various severe allergies, asthma, and constipation (Exhibit R1, para 22). However as none of these conditions are recognised in sch 3 to the DCLA Determination (T3/76–9),

s 953(1)(e)(i) of the Act is not satisfied. Accordingly, the Applicant’s claim for carer allowance can only then succeed if she achieves a qualifying rating of ‘intense’ under the DCLA Determination (s 953(1)(e)(ii) of the Act).
To achieve a rating of ‘intense’ for the purposes of s 953(1)(e)(ii) of the Act, the total score for the ACL questionnaire must be 85 or more, and the score on the professional questionnaire must be greater than zero.
The Carer Allowance – Medical Report completed by Dr Sanjay Bhardwaj, general practitioner, on 7 August 2018 (T6/100–111) is a professional questionnaire for the purposes of the DCLA Determination and was scored at 1.09. The Respondent accepts that the score for the professional questionnaire completed by Dr Bhardwaj was greater than zero (Exhibit R1, para 26). Accordingly, the Tribunal is satisfied that the criterion in relation to the professional questionnaire is met.
The Tribunal notes that on 24 September 2020, Dr Bhardwaj completed a further professional questionnaire (Exhibit A4, attachment). In a letter to Centrelink regarding the Child dated 1 February 2021, Dr Leena Patel, general practitioner, stated (Exhibit A4):
I am writing regarding the above named patient who is a registered patient at our practice and normally sees Dr Sanjay Bhardwaj who is currently away on medical leave. I have been asked to fill out a carer allowance form but Dr Bhardwaj only just completed one in September 2020 and I do not see a reason why another one needs to be filled out as nothing has changed in her clinical condition and it hasn’t even been a year since that form was filled out. I have attached a copy of the form Dr Bhardwaj filled out. …
The ‘Carer Payment and/or Carer Allowance Care Needs Assessment’ form completed by the Applicant on 17 May 2019 (T11/122–35) is an ACL questionnaire for the purposes of the DCLA Determination. However, the Respondent contends that the Applicant’s claim for carer allowance cannot succeed because this ACL questionnaire completed by the Applicant attracted a total score of 28 points, which is less than the necessary 85 points (Exhibit R1, para 27).
The Applicant’s oral evidence regarding the Child’s condition-related care demands was consistent with the written material before the Tribunal. The Applicant told the Tribunal that the Child does not have a life like normal healthy kids (Transcript p4), and that she needs more help and support with medication, bedding, clothing and other necessities (Transcript p5). The Applicant said that the Child required more care and time from her because the Child was constantly sick (Transcript p9).
In evidence before the AAT1, the Applicant confirmed that the ACL questionnaire she had completed in May 2019 was filled in correctly (T2/8). Before this Tribunal, the Applicant did not change her position, stating: ‘[y]es, I answered the questions, I chose one of the answers provided for each question’ (Transcript p10). There is no evidence before the Tribunal to suggest that the ACL questionnaire completed by the Applicant in May 2019 was not an accurate reflection of the functional ability, behaviour and special care needs of the Child as at 1 October 2018, or that the questionnaire was scored incorrectly. The Tribunal is satisfied that the total score for the ACL questionnaire was 28 points, which is significantly below the required threshold of 85.
In its decision dated 27 November 2019, the AAT1 found that additional points could be added pursuant to s 10(7) of the DCLA Determination because the ACL questionnaire did not completely capture the nature of the Child’s conditions and the impact of these conditions upon the Applicant. The AAT1 noted (T2/9):
However in the tribunal’s view the maximum additional points that could be added would be 30, to reflect the additional time needed with cleaning and food preparation to protect [the Child] from allergens, and the need to apply moisturizer a number of times a day. This brings the score to 58 which is still well short of the required 85 for carer allowance to be paid.
This review is of course de novo, and in considering the discretion available under s 10(7) of the DCLA Determination, the Tribunal has careful and sympathetic regard to the Applicant’s evidence relevant to the completion of the ACL questionnaire, the age of the Child at 1 October 2018, the Respondent’s contention that ‘it is to be expected any child of such a young age would require a significant amount of care’ (Exhibit R1, para 30), and that questions nine to 20 on the ACL questionnaire are excluded for children under three years of age (and therefore cannot attract points). The Tribunal is not satisfied that additional points should be added and accepts the total rating of the ACL questionnaire as 28.
Even if the Tribunal concurred with the AAT1 decision to add additional points in accordance with s 10(7) of the DCLA Determination, no more than 30 points can be added. In other words, the maximum score the Applicant could achieve under the ACL questionnaire would be 58 points, meaning that nothing would turn on the addition of points in any event.
Ms Hinwood expressed the Respondent’s sympathy for the Applicant and the Child, and helpfully commented on the exclusion of certain questions on the ACL questionnaire. The Applicant confirmed that she understood the comment, which follows (Transcript p6):
Now, the reason why particular aspects of the questionnaire are excluded for younger children is because there is an expectation that children under particular ages require a significant amount of care. If WDRH were to lodge a fresh claim for Carer Allowance and re-complete this ACL questionnaire, because [the Child] is now four years of age, all of the questions can be answered and that may lead to a higher score which may ultimately lead to the claim being successful. I can’t of course comment on that, but I just wanted to point out that issue.
CONCLUSION
As the Applicant’s score on the ACL questionnaire was less than 85 points, she does not have a rating of ‘intense’ and does not meet the criteria in s 953(1)(e)(ii) of the Act. It follows that the Applicant does not meet the qualification criteria for carer allowance with respect to the claim lodged on 1 October 2018. Accordingly, that claim must be rejected.
DECISION
The Tribunal affirms the Reviewable Decision, being the decision of the AAT1 dated

27 November 2019, which affirmed an earlier decision of an Authorised Review Officer of Centrelink to reject the Applicant’s claim for carer allowance lodged on 1 October 2018.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, AM LVO (Retd), Member

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Associate
Dated: 28 April 2021

Date of hearing: 26 March 2021

Applicant: Self-represented

Solicitors for the Respondent: Ms L Hinwood, Services Australia

[2021] AATA 1038

28 April 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	26 March 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Ms L Hinwood, Services Australia