Worthing and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 246
•16 April 2009
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/6045
General Administrative Division )
Re: Peter Worthing
Applicant
And: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RespondentDIRECTION
TRIBUNAL: Ms Robin Hunt, Senior Member
DATE: 17 April 2009
PLACE: Sydney
Pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs the Registrar to alter the text of the decision in this application, dated 16 April 2009, as follows:
- The second sentence in paragraph 1 of the reasons for decision should read, “He seeks earlier payment of the allowance, which he has been receiving since 18 January 2008, according to a computer generated record being attachment B of the Secretary’s Statement of Facts and Contentions lodged with the tribunal”.
- The third sentence in paragraph 1 of the reasons for decision should read, “Mr Worthing contends that his mother was suffering from the same condition in March 2007 as Centrelink accepted that she was suffering on the basis of a report dated 21 December 2007”.
...................[Sgd]...................
Ms Robin Hunt
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 246
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6045
GENERAL ADMINISTRATIVE DIVISION ) Re PETER WORTHING Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date16 April 2009
Place of Hearing Kempsey
Place of Decision Sydney
Decision The decision under review is affirmed.
...................[Sgd]...................
Ms Robin Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – carer allowance – adult disability assessment tool – consideration of medical information supplied – decision under review affirmed.
Social Security Act 1991 ss 38C, 954
Re Bieman and Secretary, Department of Family and Community Services [2005] AATA 615
Re Cankulovski and Secretary, Department of Family and Community Services [2001] AATA 1034
Re Cronin and Secretary, Department of Family and Community Services [2001] AATA 859
Re Duck and Secretary, Department of Family and Community Services [2005] AATA 1037
Re Fairhall and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1323
Re Foley and Secretary, Department of Family and Community Services [2003] AATA 488
REASONS FOR DECISION
16 April 2009 Ms Robin Hunt, Senior Member
introduction
1. Peter Worthing is the carer of his mother, Heather Worthing, born 11 August 1924, and receives carer allowance for his mother’s care. He seeks earlier payment of the allowance, which he has been receiving since 18 January 2008, according to a computer generated record being attachment B of the Secretary’s Statement of Facts and Contentions lodged with the tribunal. Mr Worthing contends that his mother was suffering from the same condition in March 2007 as Centrelink accepted that she was suffering on the basis of a report dated 21 December 2007. As he has not furnished a health professional’s report in support of his claim, as at the date he seeks the allowance, being on or about 20 March 2007, I must affirm the reviewable decision of the Social Security Appeals Tribunal (‘the SSAT’) that he is not entitled to receive the carer allowance from 20 March 2007. This means Mr Worthing’s appeal has not been successful.
decision under review
2. The decision reviewed by the tribunal is that made by the SSAT on 14 November 2007, which affirmed a decision made by an authorised review officer (‘ARO’) of Centrelink on 5 June 2007 to reject Mr Worthing’s claim for carer allowance lodged on 20 March 2007.
issue
3. The issue for the tribunal to determine is whether Mr Worthing qualified for carer allowance in respect of the care he provided to his mother from 20 March 2007 in accordance with the Social Security Act 1991 (‘the Act’).
background
4. On 20 March 2007, Mr Worthing lodged a claim for carer allowance. In connection with this claim, on 26 April 2007, Centrelink received in the mail a Carer Allowance Health Professional Assessment form completed by Dr Harry Johnson, a heart specialist, dated 21 April 2007. A Centrelink officer took the information on the Carer Allowance Health Professional Assessment form completed by Dr Johnson and applied it to the Adult Disability Assessment Tool (‘ADAT’). The resulting health professional score was 5.5 points. As a health professional score of 12 points is required, Mr Worthing’s claim for carer allowance was rejected.
5. On 8 May 2007, Centrelink sent Mr Worthing a letter advising him of the rejection of his claim for carer allowance. Mr Worthing sought review and, on 5 June 2007, an ARO also rejected Mr Worthing’s claim. Mr Worthing sought a further review and, on 14 November 2007, the SSAT affirmed the decision to reject Mr Worthing’s claim.
6. On 10 December 2007, Mr Worthing lodged an application for review with the Administrative Appeals Tribunal. Mr Worthing, in connection with review by the tribunal, provided a further Carer Allowance Health Professional Assessment form completed by Narelle Nash, Registered Nurse, at Port Macquarie Base Hospital, on 21 December 2007. This Health Professional Assessment form was provided to Centrelink for a new determination of an ADAT score. Based on the new information, Centrelink calculated a health professional score of 25 points. This score being over the required 12 points, Mr Worthing’s claim for carer allowance was granted and paid on or about the date of the assessment.
7. Mr Worthing’s entitlement, however, was not backdated to the time of his earlier claim. Mr Worthing requested the allowance be backdated to 20 March 2007. In order for this claim to be substantiated, Mr Worthing was required to establish that his mother’s medical ailments warranted an assessment of 12 points or more on 20 March 2007.
consideration
8. After hearing Mr Worthing’s oral evidence and his account of his mother’s ailments at the time of his application for the carer allowance, I adjourned the matter so that Mr Worthing might have an opportunity to obtain a further assessment from a health professional who had seen Mrs Worthing around the time of the March 2007 claim regarding health problems additional to her heart condition. The heart condition was the only ailment for which Dr Johnson had treated and assessed Mrs Worthing.
9. Centrelink had previously investigated the situation on his behalf. Centrelink wrote to Nurse Narelle Nash asking if she were able to provide a supplementary report to the effect that the information on the Health Professional Assessment form dated 21 December 2007 was also true and correct as at 20 March 2007. On 18 March 2008, Nurse Narelle Nash replied that the “information is as stated on assessment sheet for that time.” In other words, she continued to give an assessment only at the date originally stated.
Qualification for carer allowance
10. The criteria for qualification of carer allowance for an adult with a disability is set out in section 954 of the Act. This section provides (relevantly) as follows:
954(1) A person is qualified for carer allowance for a disabled adult (the care receiver) if:
…
(c) the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12;
…
11. Section 38C of the Act allows a means of assessing a person’s disability, emotional state, behaviour and special care needs for a score to indicate the different levels of physical, intellectual or psychiatric disability of that person. This is known as the Adult Disability Assessment Tool. The ADAT measures care needs in terms of how much assistance an adult requires with basic activities. It takes account of the adult’s physical, cognitive and/or behavioural disabilities. The ADAT is effective regardless of the types of disability or medical condition an adult may have. Section 38C enables the Secretary to devise the assessment tool as follows:
Adult Disability Assessment Tool
38C(1) The Secretary may, by legislative instrument (the determination):
(a) devise a test for assessing the disability, emotional state, behaviour and special care needs of a person aged 16 or more; 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).
38C(2) The scale referred to in subsection (1) is a scale that provides for a range of scores that indicate the different levels of physical, intellectual or psychiatric disability of persons.
38C(3) The determination is, in this Act, referred to as the Adult Disability Assessment Tool .
12. The professional questionnaire score of “12” referred to in subparagraph 954(1)(c) relates to the score calculated using the medical information provided by a person’s treating health professional and by applying that information to the ADAT. The legislation does not permit a decision-maker, including a member of the tribunal, to go behind the answers to the questionnaire. I have before me no information from a treating health professional that enables me to come to any conclusion other than that reached by previous decision-makers in Mr Worthing’s case. This means the decision under review must be affirmed.
13. This approach has been consistently adopted in decisions of the Administrative Appeals Tribunal. See, for example, Re Cronin and Secretary, Department of Family and Community Services [2001] AATA 859, Re Cankulovski and Secretary, Department of Family and Community Services [2001] AATA 1034, Re Foley and Secretary, Department of Family and Community Services [2003] AATA 488, Re Bieman and Secretary, Department of Family and Community Services [2005] AATA 615, Re Duck and Secretary, Department of Family and Community Services [2005] AATA 1037, Re Fairhall and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1323.
14. Although Mr Worthing gave oral evidence that his mother’s condition was the same in March 2007 as in December 2007, I have no medical support for his claim to this effect. On the basis of the Health Professional Assessments and calculation of the health professional scores under the ADAT, as required under the Act, Mr Worthing did not qualify for carer allowance on 20 March 2007. The new information on the Health Professional Assessment form completed by Nurse Narelle Nash on 21 December 2007 does not assist any other conclusion as at 20 March 2007.
decision
15. The decision under review is affirmed.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member
Signed: .........................[Sgd]...........................
Jennifer Wong, AssociateDate of Hearing 15 August 2008
Date of Decision 16 April 2009
Appearance for the Applicant Self-representedAppearance for the Respondent Ms S Mantaring, Centrelink Legal Services and Procurement Branch
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