Williams and Secretary, Department of Family and Community Servic Es

[2003] AATA 286

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 286

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1262 

GENERAL ADMINISTRATIVE DIVISION		)
Re		Sheena WILLIAMS

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal  Ms N Isenberg, Member

Date28 March 2003

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[SGD] Member

CATCHWORDS

SOCIAL SECURITY - carer allowance – Child Disability Assessment Tool - Applicant’s child suffers from allergic reactions to foods, eczema and allergic urticaria - relevant CDAT score - unable to meet criteria - decision affirmed

LEGISLATION

Social Security Act 1991 - ss. 38D, 953

Child Disability Assessment Determination 1999

Department of Family and Community Services and Stewart [2001] AATA 50

REASONS FOR DECISION

28 March 2003 Ms N Isenberg, Member

DECISION UNDER REVIEW

1.      The decision under review before the Administrative Appeals Tribunals (“the Tribunal") was the decision of the Respondent, the Secretary, Department of Family and Community Services ("the Department") dated 29 November 2001 as affirmed by the Authorised Review Officer on 12 March 2002 (T20) and the Social Security Appeals Tribunal (“the SSAT") on 1 May 2002 (T2), to refuse the Applicant’s claim for a carer allowance in respect of her son Dion Green.

BACKGROUND

2.      The Applicant’s son, Dion suffers from allergic reactions to foods, eczema and allergic urticaria and he lives with his mother who cares for him.  On 29 November 2001 (T8) she applied for a carer allowance.

ISSUE BEFORE THE TRIBUNAL

3.      Whether the decision to reject Ms Williams’ claim for carer allowance in respect of care she provides to her son, Dion was correct. More specifically, whether Dion, as care receiver, has been correctly assessed and rated under the Child Disability Assessment Tool (CDAT).

APPEARANCES

4.      A hearing was held before the Tribunal on 21 February 2003 at which the Applicant appeared without representation and the Respondent was represented by Andrea Garcia, an advocate from the Advocacy and Administrative Law Team at Centrelink.

LEGISLATION

5.      The Assistance for Carers Legislation Amendment Act No 13 of 1999 introduced a new social security payment from 1 July 1999, carer allowance, which replaced child disability allowance (previously in the family and community services portfolio) payable to carers of children with disabilities, and domiciliary nursing care benefit (previously in the health and aged care portfolio) payable to carers of adults who would be eligible for entry to a nursing home. A person may be paid carer allowance in respect of care they provide to either a child or an adult, providing the appropriate care receiver criteria are met.

Section 953 Social Security Act 1991

Qualification for carer allowance—caring for either 1 or 2 disabled children

953(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

(c) either of the following applies:

(i) the disability from which the care receiver is suffering is declared, under subsection 38D(3), to be a recognised disability for the purposes of this section;

(ii) the care receiver has been assessed and rated, and been given a positive score of not less than 1, under the Child Disability Assessment Tool; 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

(f) the person is an Australian resident.

6.      The Child Disability Assessment Determination 1999 provides the rating method for determining a person’s qualification for carer allowance under section 953 (1) (c) by means of the CDAT.

Section 38D Social Security Act 1991

Child Disability Assessment Tool

38D(1) The Secretary may, by determination in writing:

(a) devise a test for assessing the functional ability, behaviour and special care needs of a person aged under 16; and

(b) provide a method for rating the 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).

38D(2) The scale referred to in subsection (1) is a scale that provides for a range of negative and positive scores and under which:

(a) a negative score indicates an absence of a physical, intellectual or psychiatric disability at a significant level; and

(b) a positive score indicates the presence of a physical, intellectual or psychiatric disability at a significant level.

38D(3) The determination may, in addition, declare that a physical, intellectual or psychiatric disability specified in the determination is a recognised disability for the purposes of section 953.

38D(4) The determination, in so far as it provides (in accordance with subsections (1) and (2)) for a test for assessing, and a method for rating, the functional ability, behaviour and special care needs of a person aged under 16 is, in this Act, referred to as the Child Disability Assessment Tool.

38D(5) The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

7.      Part 2 of the Determination provides for two questionnaires; a claimant questionnaire and a professional questionnaire may be completed by the carer allowance claimant and the professional questionnaire may be completed only by a treating health professional. Section 2.2 provides that the test for assessing a person’s disability is the assessment of the answers given in relation to the person in the claimant questionnaire and the professional questionnaire.

8.      Paragraph 2.2(3)(a) provides that the Secretary must be satisfied that the completed professional questionnaire is an accurate reflection of the functional ability of the person concerned.

EVIDENCE: Documents

9.      The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.

10.     In addition, the following documents were tendered:

Exhibit	Description	Date
R1	Respondent’s Statement of Facts and Contentions	3 December 2002
R2	Respondent’s further Statement of Facts and Contentions	20 February 2003

Applicant’s evidence and submission

11.     The Applicant gave evidence and was asked questions by the Tribunal.

12.     The Applicant elaborated upon her statement to the Social Security Appeals Tribunal (T22) and told the Tribunal about the relentless stress of having to care for her son.  She must be continually vigilant as to not only what food he eats, but what food is eaten by those around him.  She has twice been refused day care because of the added responsibilities which he would impose on carers.  As a consequence she is unable to work.  To leave him even for a short time is difficult as she must be completely confident that any carer knows precisely what he must not be exposed to, and if in the event he were to go into anaphylactic shock, knows how to administer the life-saving adrenaline injection.

13.     As to the questionnaire she had completed in support of her claim (T10) she said that the answers accurately reflected her son’s developmental progress at the time.  He was, and remains, completely normal for his age, meeting all the ‘milestones’. She also had no dispute with the responses provided by Dr Le in the Treating Doctor’s Report (T9).

14.     Her position, simply put, is that the questions asked just do not apply to her family’s circumstances.

Respondent’s submission

15.     There was no issue that the Applicant provides care for Dion, however the legislation mandates that a score of positive 1 must be obtained under the CDAT for carer allowance to be payable. Furthermore, it was submitted, the purpose of the CDAT is to measure the impact on the child and the family in terms of the child’s ability to function in key areas, but not the care and attention required by the child.

16.     However, Dion’s score is negative1.79.

17. The Respondent contended that the CDAT total score of negative 1.79 was correctly calculated by applying the Child Disability Assessment Tool to the answers provided in the health professional’s questionnaire and the carer’s questionnaire. It was submitted that there was no evidence to support a view that the forms were not an accurate reflection of Dion’s disabilities, emotional state, behaviour and special care needs at the time of the claim. As this score is less than that required under the terms of the legislation, the Respondent contended that the decision to reject the Applicant’s claim for carer allowance under section 953(1)(c)(ii) of the Social Security Act 1991 was correct.

CONSIDERATION AND FINDINGS

18.     In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.

19.     At the outset of the hearing it was made clear to the Applicant that eligibility for carer allowance turned on the application of the ‘points system’ determined by the legislation.  ‘Points’ are allocated by the decision-maker in accordance with the rating method outlined.

20.     The Tribunal then turned to the Applicant’s responses to the questions asked of her in her carer application.  At the hearing she adopted all responses in the application form and agreed with the responses provided by Dr Le.

21.     The Tribunal undertook the complicated process of calculating the score given to the Applicant as a result of her responses and those of Dr Le.  The outcome was compared to the scores calculated in Exhibit R2.  All scores had been calculated correctly, in the Tribunal’s view, except that in Functional Domain 4 – question 10 in the treating doctor report which had been scored at negative1 when in fact the answer attracted a score of 0.  The impact upon the final score was to change it from negative1.79 to negative1.15.

22.     The legislation is quite specific.  A child who does not have one of the very serious conditions (‘recognised disabilities’) set out at question 3 of the Treating Doctor’s Report, must meet the relevant CDAT score in order for his carer to receive carer allowance.  For Dion, a child aged between six months and one year at the time of claim, the required score is not less than positive1.  The Applicant therefore cannot meet the criteria for the carer allowance.

23.     The Tribunal agrees with the Applicant that the level of care she provides to her child is extensive and that the family’s lifestyle is significantly affected by the continual level of vigilance to ensure Dion is not inadvertently exposed to some life-threatening allergen.  However the legislation provides the means by which eligibility to carer allowance must be assessed.  There is no alternative. 

24.     In Department of Family and Community Services and Stewart [2001] AATA 50 at par 12, the Tribunal observed:

“…

While the form may make the processing of claims easier for the Department, it does not necessarily provide a better method of assessment for the clients.

…”

25.     Apparently since that time the form has been amended in recent times.  Hopefully it will facilitate applications by carers in the position of Ms Williams.

DECISION

26.     The Administrative Appeals Tribunal therefore affirms the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         L Bonouvrie
  Associate

Date of Decision  28 March 2003
Date of Hearing  21 February 2003
Advocate for the Applicant       Self-represented
Advocate for the Respondent   Ms M Buckley