Weerasekera and Secretary to the Department of Family and Community Services - [2002] AATA 956

DECISION AND REASONS FOR DECISION [2002] AATA 956

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/332
GENERAL ADMINISTRATIVE DIVISION
  Re:         CHANDIMA WEERASEKERA
  Applicant

And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             21 October 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
SOCIAL SECURITY - carer payment - disabled child - meaning of profoundly disabled child
Social Security Act 1991 ss197(2), 198(2)

REASONS FOR DECISION

21 October 2002 G.D. Friedman, Member

This is an application by Chandima Weerasekera (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 4 March 2002, which affirmed a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent) that the applicant was not eligible for carer payment in respect of her disabled son.
At the hearing of this matter on 11 October 2002 the applicant attended by telephone and represented herself and Mr T. Baker, Centrelink advocate, represented the respondent.
BACKGROUND
Dhahan Peshala Weerasekera (the child), son of the applicant, was born on 25 April 1994. According to medical reports the child suffers from a number of conditions including autism, epilepsy and intellectual disability. He lives at home with his parents.
On 25 October 2001 the applicant lodged an application with Centrelink for carer payment. On 22 November 2001 the application was refused on the grounds that the child did not meet the definition of profoundly disabled child under the Social Security Act 1991 (the Act). On 17 December 2001 an authorised review officer affirmed the decision and on 5 February 2002 the applicant applied to the SSAT for review of the decision. In affirming the decision the SSAT found that child did not meet the definition.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T20).
EVIDENCE
The applicant gave oral evidence by telephone and told the Tribunal that the disabilities suffered by the child are significant and permanent. He is an active child who can walk unaided. He has faecal incontinence and requires personal care at least twice each night. The applicant said that she and her husband provide this care. The applicant explained that the child has a profound intellectual disability and suffers from epilepsy. She stated that his behaviour is becoming more difficult to control and requires a different medication.
The Tribunal was told that the applicant and her husband have become emotionally and physically exhausted by the demands of the child, and they are now unable to continue their employment. They have two other young children in their care.
CONSIDERATION OF THE ISSUES
Section 198(2) of the Act sets out eligibility for carer payment:
(2)          The person must personally provide constant care for:
(a)       either:
(i)if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated, and given a score of at least 25, under the Adult Disability Assessment Tool; or
(ii)if not—a disabled adult (the care receiver) who has been assessed and rated, and given a score of at least 80, under the Adult Disability Assessment Tool; or
(b)a profoundly disabled child (the care receiver) aged under 16; or
(c)2 or more disabled children (the care receivers) aged under 16; or
(d)a disabled adult and a dependent child of the adult (the care receivers), where:
(i)the disabled adult has been assessed and rated, and given a score of at least 20, under the Adult Disability Assessment Tool; and
(ii)       the child is aged under 16; and
(iii)if the child is aged 6 or more—carer allowance is payable for the child.
The term profoundly disabled child is defined in s197(2):
(2)          A child is a profoundly disabled child 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 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's disability or condition includes 3 or more of the following circumstances:
(i)the child receives all food and fluids by nasogastric or percutaneous enterogastric tube;
(ii)the child has a tracheostomy;
(iii)the child must use a ventilator for at least 8 hours each day;
(iv)the child:
(A)       has faecal incontinence day and night; and
(B)if under 3 years of age, is expected to have faecal incontinence day and night at the age of 3;
(v)the child:
(A)cannot stand without support; and
(B)if under 2 years of age, is expected to be unable to stand without support at the age of 2;
(vi)a medical practitioner has certified that the child has a terminal condition for which palliative care has replaced active treatment;
(vii)the child:
(A)requires personal care on 2 or more occasions between 10 pm and 6 am each day; and
(B)if under 6 months of age, is expected to require care as described in sub-subparagraph (A) at the age of 6 months.
In a written report dated 16 January 2002 Dr P. Graves, pediatrician, stated that since 1999 the child has been increasingly difficult to manage, and now presents a major management challenge. He added that the strain on the family of caring for the child is enormous.
In a written report dated 19 February 2002 Ms E. Sadujko, Family Services Coordinator, Windermere Child & Family Services, stated that the child requires constant attention and the family struggles financially. She noted that the applicant and her husband have two other young children and the responsibility for providing care for the child places the family under endless stress.
Mr Baker submitted that as the child's condition satisfies two circumstances of the seven listed in s197(2)(c) he does not satisfy s197(2) and therefore does not meet the definition of profoundly disabled child.
In applying the legislation to the facts in this case the Tribunal finds that the child has a severe multiple disability and, because of that disability, needs continuous personal care for six months or more. Therefore the child satisfies s197(2)(a) and s197(2)(b).
In relation to s197(2)(c), the Tribunal finds that the child has faecal incontinence day and night (s197(2)(c)(iv)(A)) and requires personal care on two or more occasions between 10:00 p.m. and 6:00 a.m. each day (s197(2)(c)(vii)(A)). However, there is no evidence that the child's disabilities include any other matter specified in s197(2)(c). The Tribunal finds that the child's disability does not include three or more of the circumstances set out in s197(2)(c) and consequently the child does not come within the definition of profoundly disabled child.
For these reasons the Tribunal finds that the applicant does not satisfy the criteria in s198(2) for the grant of carer payment.
DECISION
The Tribunal affirms the decision under review.
I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  11 October 2002
Date of decision:  21 October 2002
Advocate for applicant:               Self-represented
Advocate for respondent:            Mr T. Baker, Centrelink