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

[2020] AATA 4799

Woolley  and Secretary, Department of Social Services (Social services second review) [2020] AATA 4799 (27 November 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1244

Re:Chantelle Woolley  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Ms L Rieper, Member

Date:27 November 2020

Place:Hobart

The Tribunal affirms the decision under review.

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

Ms L Rieper, Member 

SOCIAL SECURITY – carer allowance – rejection – qualification – medical – caring for child with disability – did child meet qualifying rating at time of application – no discretion – decision affirmed.

Legislation

Social Security Act 1991

Disability Care Load Assessment (Child) Determination 2010

REASONS FOR DECISION

Ms L Rieper, Member
27 November 2020

1. Miss Woolley seeks a review of a decision made by the Social Security and Child Support Division of this Tribunal on 19 February 2020.

2. The issue to be determined is whether Miss Woolley was qualified for carer payment following the claim she made on 31 July 2019.

3. A hearing was held by telephone on 18 November 2020.  Miss Woolley represented herself and the Respondent was represented by Mr Sheedy of Services Australia.

   QUALIFICATION FOR CARER PAYMENT

4. Carer payment is an income support payment for people who provide care, including for a child with a disability.

5. The relevant qualifications for carer payment are set out in section 197B of the Social Security Act 1991 (“the Act”).  These include, that a person must be personally providing constant care to a child under the age of 16 with a severe disability or severe medical condition.

6. There is no dispute that at the time of her claim Miss Woolley was providing constant care to her young son who was born with birth defects.  At the time of the claim he was approximately three months old.

7. The only issue in dispute is whether her son met the qualifying rating which is required under the Disability Care Load Assessment (Child) Determination 2010 (“the Determination”),[1] which was in force at the time of the claim.

   [1] See paragraph 197B(1)(b) of the Act.

8. The Determination requires two questionnaires to be completed. One of the questionnaires is to be completed by the person making the claim. That questionnaire is not in dispute in this matter.

9. The other questionnaire is a professional questionnaire in respect of the functional ability, behaviour and special care needs of the child. The questions are set out in Schedule 1 of the Determination. The professional questionnaire must be completed by a treating health professional. A qualifying rating is achieved if a rating of intense is achieved and that requires the score on the professional questionnaire to be greater than zero.

10. The Secretary, or delegate, must be satisfied that the completed professional questionnaire is an accurate reflection of the functional ability, behaviour and special care needs of the child to whom it relates.[2]  If the Secretary, or delegate, is not so satisfied, a replacement professional questionnaire may be requested from a different treating health professional.

    [2] Subsection 11(4) of the Determination.

11. No other discretion is provided with respect to the requirement that the professional questionnaire rating must be greater than zero.

    CONSIDERATION

12. Miss Woolley has submitted three professional questionnaires:

    ·The first professional questionnaire was completed by Dr Pupala, an NPICU consultant, on 3 July 2019.[3]

    ·The second professional questionnaire was completed by Dr Forsdick, a surgical registrar, on 26 November 2019.[4]

    ·The third professional questionnaire was completed by Ms Taranto, a clinical nurse consultant, on 10 April 2020.[5]

    [3] T5, T Documents, pp 78-90.

    [4] T9, T Documents, pp 102-114.

    [5] Exhibit R2.

13. All three of the professional questionnaires contain a score of zero.

14. During the hearing Miss Woolley accepted that the professional questionnaires had been completed by health professionals who were familiar with her son’s needs.

15. There is nothing in the evidence before the Tribunal which indicates that the professional questionnaires do not accurately reflect the functional ability, behaviour and special care needs of Miss Woolley’s son as at 31 July 2019.  The Tribunal is therefore not satisfied that there is any basis for requesting a replacement professional questionnaire.

16. That means that a rating of intense has not been achieved and as a result Miss Woolley was not qualified for carer payment at the time of the claim and the reviewable decision must be affirmed.

17. The Tribunal acknowledges that Miss Woolley feels that this is an unfair result because her son’s functioning has never been age-appropriate and because she has lost her job as she was unable to place him in childcare and return to work.  Unfortunately, there is nothing in the legislation which allows the Tribunal to make any other decision in this matter.

18. The Tribunal affirms the decision under review.

19.     I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Ms Lynette Rieper, Member.

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

Associate

Dated: 27 November 2020

Date of hearing:   18 November 2020

Applicant:   Self-represented, by phone

Solicitor for the Respondent:             Mr Sheedy, Services Australia