Yassine and Secretary, Department of Family and Community Services

[2004] AATA 619

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 619

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1841

GENERAL ADMINISTRATIVE  DIVISION		)
Re		OUSSAMA YASSINE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Member

Date18 June 2004

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] N Bell
  Member

CATCHWORDS

SOCIAL SECURITY – carer allowance – dependent child suffers from asthma and epilepsy – dependent child assessed and rated and given a score less than one under the Child Disability Assessment Tool (CDAT) – Applicant ineligible for carer allowance – decision affirmed  

Social Security Act 1991 s38D, 953

REASONS FOR DECISION

18 June 2004   Ms N Bell, Member

1.      This is an application for review lodged by Oussama Yassine (“the Applicant”) of the decision to cancel her carer allowance in respect of her son, Ahmed.

2.      The Applicant had been in receipt of carer allowance in respect of Ahmed since 1998.  In June 2003, a review of the Applicant’s eligibility under new provisions of the legislation was undertaken and, after obtaining a treating doctor’s report from Dr Noussair, a decision was made by a Centrelink delegate of the Secretary, Department of Family and Community Services (“the Respondent”) to cancel the payment (T3). 

3.      A further treating doctor’s report was completed by Dr A Selim (T7) and a reassessment was undertaken by Centrelink in light of Dr Selim’s report but no change was made to the original decision to cancel the payment.  An authorised review officer reviewed and affirmed the decision on 1 September 2003 and the decision was ultimately affirmed by the Social Security Appeals Tribunal on 17 October 2003.

4.      There is no dispute that Ahmed suffers from asthma and epilepsy, that he is the dependent child of the Applicant and that she cares for him.

5. Eligibility for carer allowance turns on the application of the system provided by sections 953 and 38D of the Social Security Act 1991 (“the Act”):

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

Single child

953(1)A person is qualified for carer allowance for a disabled child (the care receiver) if:

(a)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 under the Child Disability Assessment Tool and given a positive score under that assessment tool not less than 1, being a score calculated on the basis of a professional questionnaire score greater than 0; 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.

2 children

953(2)A person is qualified for carer allowance for 2 disabled children (the care receivers) if:

(a)each care receiver is a dependent child (disregarding subsection 5(3)) of the person; and

(b)       each care receiver is an Australian resident; and

(c)each care receiver has been assessed and rated under the Child Disability Assessment Tool and given a positive score under that assessment tool less than 1, being a score calculated on the basis of a professional questionnaire score greater than 0; and

(ca)the sum of the scores of the care receivers under the Child Disability Assessment Tool is positive and not less than 1; and

(d)because of the disability from which each care receiver is suffering, each 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 each care receiver; and

(f)        the person is an Australian resident.

38D  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.”

6.      Part 2 of the Determination provides for two questionnaires; one to be completed by the carer allowance claimant and the other to be completed by a treating health professional.

7. Under section 38D (2) provision is made for negative and positive scores. A negative score is an indicator that a certain level of physical, intellectual or psychiatric disability is not met, and a positive score indicates disability at a significant level. This then forms part of the test that is provided for in the qualification provision for carer allowance, namely section 953 of the Act.

8. The issue in this application is whether the care receiver, Ahmed, had been assessed, rated and given a positive score not less than one under the Child Disability Assessment Tool (CDAT) as required by section 953 (1) (c) (ii) of the Act.

9.      The Applicant confirmed the responses she had given in the form completed by her to the effect that Ahmed, while very distracted and sometimes aggressive, can understand and take part in conversation, is capable of toileting and personal hygiene, can largely dress himself, is content to be left at school by the Applicant, can use a pen and paint brush and play with a ball.  The Applicant describes some self destructive behaviour such as banging his head on a wall and throwing his body on the floor and said that his behaviour is sometimes explosive and unpredictable. 

10.     I note that there are three treating doctor’s reports that have been obtained by the Applicant.  The first, by Dr Noussair, was used in order to initially make the assessment under the CDAT.  The re-assessment was undertaken using Dr Selim’s report.  A further assessment has recently been undertaken using a treating doctor’s report from Dr Macdessi (Exhibit A1).   That assessment again yielded a negative score.

11.     The Applicant’s evidence was that in large part the difficulties experienced by Ahmed and by the Applicant arise out of a psychological condition suffered by him.  She described Ahmed as hyperactive and distracted and prone to aggressive outbursts.  She said that Dr Macdessi has expressed an opinion about Ahmed’s behavioural problems to the effect that they stem from her separation from her husband.  I note however, the absence of any formal diagnosis of a psychological condition and I also note that even on the basis of Dr Macdessi’s treating doctor’s report a negative score under the CDAT was still assessed.

12. I note the Applicant’s evidence that she struggles alone with three children all of whom have, to varying degrees, a disability. I accept the Applicant’s evidence of the difficulties she experiences in caring for Ahmed. However, the application of the provisions of sections 953 and 38D of the Act result in the Applicant’s ineligibility for carer allowance and I have no discretion in that regard.

DECISION

13.     The decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed: A. Krilis
  Associate

Date/s of Hearing  4 June 2004
Date of Decision  18 June 2004
Applicant  self-represented   
Solicitor for the Respondent     Mr G Lozynsky