Eftaxiadis and Department of Family and Community Services [1999] AATA 81 (12 February 1999)

Last Updated: 17 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 81

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S98/246

GENERAL ADMINISTRATIVE DIVISION )

Re SOPHIA EFTAXIADIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 12 February 1999

Place Adelaide

Decision The Tribunal, pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, sets aside the decision of the SSAT dated 1 May 1998 and in substitution thereof decides, pursuant to s.965 of the Social Security Act 1991, that the respondent is liable to pay child disability allowance to the applicant from the date of application to the respondent, namely 30 September 1997.

(Signed)

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - child disability allowance - attention deficit disorder - whether substantially more care needed

Social Security Act 1991 ss.952, 965

Re Secretary, Department of Social Security and Bosworth (1989) 18 ALD 373

Re Secretary, Department of Social Security and King (AAT 8179, 20 August 1992)

Re Corcoran and Secretary, Department of Social Security (AAT 9936, 3 January 1995)

Re Atkinson and Secretary, Department of Social Security (AAT 11386, 13 November 1996)

Re Sergi and Secretary, Department of Social Security (1986) 10 ALD 174

REASONS FOR DECISION

12 February 1999 Senior Member J.A. Kiosoglous MBE

1. This is an application by Mrs Sophia Eftaxiadis (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 1 May 1998 (T2) which affirmed a decision by a delegate of the Secretary, Department of Family and Community Services (the Department) of 30 October 1997 (T10), as affirmed by the authorised review officer on 25 March 1998 (T18), to reject an application for child disability allowance (CDA), in respect of her son, Emmanuel Eftaxiadis.

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T20) together with eight exhibits, seven lodged by the applicant (Exhibits A1-A7) and one by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant, Mrs Eftaxiadis. The applicant represented herself and Ms Lee-Anne Odgers, a departmental advocate, represented the respondent.

3. It was agreed between the parties, and the Tribunal being satisfied this to be the case so finds, that Emmanuel had a physical, intellectual or psychiatric disability (namely Attention Deficit/Hyperactivity Disorder (ADHD)) and that because of that disability he needed care and attention from the applicant on a daily basis. In issue for the Tribunal to determine is whether or not Emmanuel requires care and attention that is substantially more than that required by a young person of the same age without a physical, intellectual or psychiatric disability, pursuant to s.952(b)(ii) of the Social Security Act 1991.

4. The facts in this matter which are not in dispute, and which the Tribunal finds to be the case, are as follows:

(a) Emmanuel Eftaxiadis was diagnosed with attention deficit disorder and hyperactivity in August 1996 (T4). By way of treatment Emmanuel was prescribed dexamphetamine. On 30 September 1997 Mrs Eftaxiadis applied for CDA in respect of Emmanuel (T4). In a medical report provided by Dr T.S. Pouras dated 29 September 1997 (T4/36) he described the extra care requirements as being "substantially more" and detailed the requirements as "1. Care with morning and noon tablets, 2. Care with his special diet, 3. Supervision with his hyperactivity". The claim was rejected on the basis that Emmanuel's condition was being controlled with medication (T8).

(b) Mrs Eftaxiadis requested a review of the decision to reject her application, at which time Emmanuel underwent a psychological assessment by Health Services Australia (HSA) (T13). The psychologist, Samantha Williamson, stated therein that in her opinion Emmanuel did not require care and attention on a daily basis that would be more than that needed by a child of the same age without a disability. This report dated 21 January 1998 stated (inter alia):

"Emmanuel presented as inquisitive and polite throughout the interview and drew many pictures using the available paper and coloured markers. He searched the room and asked questions about the prevailing equipment. The behaviour during the interview does not reinforce the psychometric testing as Sofia reported that Emmanuel had attentional difficulties in compliance situations. Emmanuel presented as a 'Typical Eight-Year-Old', sociable, assertive, active and energetic.

The medication has significantly improved Emmanuel's behaviour at home and school. ...

In reference to the aforementioned information I believe that Emmanuel does not require care and attention from another person on a daily basis, that would be substantially more than that needed by a child of the same age who does not have a disability. This of course, is contingent upon Emmanuel continuing to respond effectively to his medication."

(c) On 5 February 1998, Mrs Eftaxiadis provided another psychological assessment by Dr Jeffrey Bollard (T12). Dr Bollard noted that the medication had resulted in improvement to his attention and concentration in the classroom and resultant school progress. Dr Bollard suspected a specific language disorder at this stage, and also recommended Central Auditory Processing (CAP) testing and alternative management techniques. The information in that assessment was referred to the HSA psychologist who advised on 11 February 1998 that it did not change her opinion (T15).

(d) On 25 March 1998 the authorised review officer affirmed the decision to reject the application (T18).

(e) On 3 April 1998 (T20) the applicant applied to the SSAT for review of the decision. In a decision of 1 May 1998, the SSAT affirmed the decision of 30 October 1997 to reject the application for CDA (T2). In reaching its decision, the SSAT found that Emmanuel does suffer ADHD as diagnosed in August 1996, has difficulties at school and requires extra attention from his mother at home in assisting with daily activities as a result. Emmanuel has been prescribed medication, which does have the effect of controlling his behaviour, and enabling him to act in a more responsive and focused manner, which has reduced the erratic behaviour, associated with ADHD. The SSAT found that the medical and psychological reports in conjunction with school reports indicated that Emmanuel was not significantly different from many other children and that there may be other reasons for the behaviour that he displayed. The SSAT found that his condition was more controlled whilst Emmanuel was on medication, and the level of extra care provided by Mrs Eftaxiadis is not substantially more than that needed for a young person of the same age without ADHD.

applicant's case

5. The applicant, in support of her claim, made submissions which are summarised as follows:

(a) Mrs Eftaxiadis is the mother of five children, two girls aged 22 and 17, and three boys aged 10, 5 and Emmanuel aged 9 (dob 13/7/89) who is the subject of this application. Given her experience in raising children, Mrs Eftaxiadis considered herself to be in a strong position to judge the degree of care and attention required for a child of Emmanuel's age without his condition. Mrs Eftaxiadis stated that she has not had to give a similar degree of care and attention to her other children. Mrs Eftaxiadis stated that her oldest child is living away from home due to a need for privacy, and being unable to cope with the additional burden placed on the family in looking after Emmanuel.

(b) Emmanuel was not born with any problems and they only became evident when he attended kindergarten at age four. He stayed at kindergarten for approximately four months, but had to be removed after being unable to cope with going and interacting with the other children. At one stage he had to be forcefully held down by a male employee during an incident where he had a tantrum.

(c) The applicant submitted that when Emmanuel was in grade one, she noticed that the teachers could not get Emmanuel to concentrate, and that he often faced the other direction to other children. Emmanuel attended Rostrevor College in 1997 and 1998, undertaking the third and fourth grades. During this time, he has received extra attention from the adaptive education teacher for three lessons a week in a "special small group withdrawal situation to support him in the area of language" (Exhibit A6) and another mother who talks to Emmanuel outside the classroom. The applicant states that the teachers prior to his placement at Rostrevor College would not accept that Emmanuel had ADHD because they were reluctant to say anything negative about a child of that age. The applicant states that the school reports (T3) are not an accurate reflection of the development of Emmanuel and the degree of care and attention that he needs. The applicant stated in support of this contention that Emmanuel is repeating the fourth grade in 1999. Dr J. Bollard confirmed this in his report dated 3 November 1998 (Exhibit A7).

(d) Dr Bollard in his report (Exhibit A7) agreed that Emmanuel's condition is such that he demands more attention than an average child who does not have ADHD. Furthermore, Emmanuel has started to receive Retalin tablets. Mrs Eftaxiadis stated that the tablets are not a cure and only help with Emmanuel's problem. She stated that Emmanuel was supposed to receive the medication twice per day, but the school refused to give Emmanuel tablets and if he received them in the afternoon (after school), he was unable to sleep that evening. Emmanuel has therefore been receiving tablets in the morning, but none later in the day. Mrs Eftaxiadis is also reluctant to keep her son on medication at all times, and he therefore does not receive medication on weekends or holiday periods. She also stated that as a result of this course of medication, Emmanuel was more controllable at school, but at all times prior to and after school, which are the times he is in need of care and attention from her and the family, Emmanuel's condition is not in fact being controlled by medication as stated in the SSAT decision.

(e) In relation to the degree of care and attention Emmanuel requires, Mrs Eftaxiadis' submissions are summarised as follows:

(i) Emmanuel requires supervision while he gets out of bed in the morning, showers and uses the bathroom;

(ii) Considerable time is involved because Emmanuel eats extremely slowly and makes an enormous mess. He cannot be taken out to eat because he cannot follow instructions to sit;

(iii) Emmanuel requires constant supervision when going to and from school or when near roads, due to the fact that he cannot appreciate danger;

(iv) Emmanuel requires constant supervision when outside the house due to lack of appreciation of danger, in (for example) climbing onto the roof;

(v) Emmanuel requires monitoring of his food and beverage intake due to the need to exclude sweets, soft drinks, cordials and any food with additives from his diet;

(vi) Emmanuel requires constant supervision when doing his homework. Mrs Eftaxiadis stated that Emmanuel does approximately two to three hours of homework per night when an child without his condition might take approximately one hour. She further stated that he needs constant supervision to complete this task. If he is not being watched, he will stop work and sit still with his pen, having forgotten what he is doing;

(vii) He requires supervision of activities in going to bed; and

(viii) Mrs Eftaxiadis is constantly breaking up fights between Emmanuel and his brothers which result from Emmanuel forgetting things, and blaming his brothers. She stated that she is always trying to stop the "constant shouting and screaming" Emmanuel displays.

(f) Mrs Eftaxiadis stated that at the time of the HSA assessment (T13) Emmanuel was on both morning and afternoon tablets, and was therefore more controllable than usual. Mrs Eftaxiadis disputed the methodology of the psychological assessment, as it involved no interview with Emmanuel, and only consisted of questioning of herself. Mrs Eftaxiadis stated that the behaviour described where "he searched the room and asked questions about the prevailing equipment" (T13) did not in fact "reinforce the psychometric testing as Sofia reported that Emmanuel had attentional difficulties in compliance situations" but evidenced the problems Mrs Eftaxiadis had in getting Emmanuel to follow instructions, as he had been instructed to sit, but could not comply with this request by Mrs Eftaxiadis.

(g) Mrs Eftaxiadis stated that she has not investigated the behavioural management help suggested in several of the medical reports, because she believes they will suggest things she is already doing, and she had already sought assistance from two doctors, and arranged for Emmanuel to receive private tutoring (which has now ceased) as well as the extra care given at school. Mrs Eftaxiadis stated that she did not believe having someone attend the home for one hour per week would be beneficial, as she would still have to deal with the problem continuously twenty-four hours per day. Furthermore the applicant stated that Dr Bollard had in fact visited the school and spoken to the headmaster and teachers concerning Emmanuel's behaviour where he had explained to them the nature of the problem and suggested possible techniques that could assist in the child's management.

additional medical evidence

6. The applicant, in support of her application, presented five further medical reports. In the first of these dated 9 October 1998 (Exhibit A2), Dr Pouras stated (inter alia):

"Emmanuel has proven Attention Deficit and Hyperactivity Disorder and is on treatment with stimulant therapy. He has tablets twice per day, his behaviour and activity must be closely supervised and he needs extra tuition after school hours. ... Emmanuel cannot be left unsupervised and this means his mother's attention may be given to his needs virtually 24 hours per day, and this means that she needs to exclude herself from her other children. Emmanuel's Attention Deficit and Hyperactivity Disorder will be a long-term problem and therefore his supervision will also be sustained. It has been recommended that Emmanuel repeat Grade 4 next year as he performed so badly this year and this is a reflection of his Attention Deficit Disorder. ... His condition is such that he needs more attention than an average child who does not have his specific disorder."

7. A second report by Dr Pouras dated 21 January 1999 (Exhibit A3) stated:

"Emmanuel has Attention Deficit and Hyperactivity Disorder. He also has an associated audiological deficiency which impairs his hearing and comprehension. Both conditions are related and have been present from birth. Although the AD/HD and hearing/comprehension difficulties were identified recently, they have been present from birth. He needs extra attention, supervision, medical therapy and extra school tuition. Far above the needs of an 'average' child without AD/HD and hearing/comprehension impairment."

8. A report by Dr Bollard dated 3 November 1998 (Exhibit A7) noted that Emmanuel exhibited features of a specific language disorder that was bound up with a Central Auditory Discrimination problem. The report stated (inter alia):

"Mrs Eftaxiadis is highly motivated to give Emmanuel all the help he needs but this is at significant cost in terms of her time. She reports that Emmanuel needs constant supervision for activities for daily living (e.g. dressing, getting ready for school, meals, getting off to bed etc), as well as her one to one supervision of homework and co-curricular activities.

In summary I agree with Dr. Pouras that Emmanuel's condition is such that he demands more attention than an average child who does not have his specific disorder and therefore I support the application for the Child Disability Allowance."

9. The other reports concerned the CAP testing. A CAP screening report by Ms Carol Cornwall, Senior Speech Pathologist, dated 8 October 1998 (Exhibit A4) stated that there were significant difficulties in one or more of the areas tested. The report by Ms Linnett Sanchez, Senior Lecturer in Audiology, Flinders University of South Australia dated 2 December 1998 (Exhibit A5) was prepared as a result of Emmanuel being assessed. It stated (inter alia):

"Emmanuel's auditory difficulties do not meet the criterion used here for diagnosis of a separate, co-morbid, CAP disorder, but I think are largely accounted for by his ADD. CAP disorder and ADD share many features. The relationship between the two disorders is clearly close but remains poorly understood. There is no doubt that Emmanuel has specific significant weaknesses related to his auditory system and these will have wide ranging effects on his capacity to learn and potentially also on his behaviour. ... His access to auditory information is effectively reduced and when he does not get a message or gets a degraded or confusing message it will be less likely that he will be able to remember it well. This lack of 'quality' input usually becomes very frustrating and unrewarding and it is not surprising that the effort of sustaining attention becomes too great and the child opts out of listening and many learning situations."

respondent's case

10. The submissions by Ms Odgers, on behalf of the respondent, are summarised as follows:

(a) the only condition that can be assessed is that diagnosed at the time of the date of claim, namely the ADHD. She stated that the care needed is that only associated with the behavioural problems, and cannot include care needed in association with the auditory problems or any other problem. She further stated submitted that before the 2 December 1998 diagnosis, these other problems could have been another condition or no condition, and their effect cannot be considered in the assessment of the problem as at the date and time of the claim;

(b) throughout the history of the claim, the ADHD has been controlled by the medication as evidenced by the medical reports;

(c) there is no evidence of any poor school performance, and in fact the school reports are positive; and

(d) the applicant has been disinclined to avail herself of the behavioural management experts suggested by three doctors.

discussion and findings

11. The Tribunal is satisfied that in assessing the degree of care and supervision required of Emmanuel, it can include any care and supervision that is required as a result of his auditory problems which were not fully diagnosed until 2 December 1998. The Tribunal is satisfied and finds, on the basis of the Audiology Report (Exhibit A5) and the medical report by Dr Pouras dated 21 January 1999 (Exhibit A3), which were not challenged by the respondent, that the auditory problems were present at the date of claim and were not a separate condition, but formed an associated deficiency which aggravated the effects and severity of the ADHD, resulting in the need for a greater level of supervision as a result of the ADHD associated problems.

12. The Tribunal is further satisfied that the ADHD is effectively controlled by the prescribed medication, and that whilst on the medication, Emmanuel requires no substantially greater degree of care and supervision as a result of his condition. Notwithstanding this, the Tribunal is satisfied and so finds, that during the periods of time in which Mrs Eftaxiadis is responsible for Emmanuel's care and supervision, being outside of school hours, Emmanuel's condition is not being effectively managed by the prescribed medication. The Tribunal is also satisfied that Emmanuel does not receive medication on weekends and during holiday periods, the medication he receives in the morning before school does not assist in before school management, and that the medication has effectively worn off by the time Emmanuel returns home from school and is under the care and supervision of Mrs Eftaxiadis.

13. The Tribunal is of the opinion that in assessing the amount of care and supervision required of Emmanuel it must consider the fact that during the relevant times when Emmanuel is under Mrs Eftaxiadis' care and supervision, Emmanuel's condition is not being effectively controlled by medication. The Tribunal finds that it must consider the report and conclusion of Ms Samantha Williamson (T13) in respect of this finding, and finds that Emmanuel's condition at the time of assessment satisfies the contingency placed on her conclusion namely that

"Emmanuel does not require care and attention from another person on a daily basis, that would be substantially more than that needed by a child of the same age who does not have a disability. This of course, is contingent upon Emmanuel continuing to respond effectively to his medication".

14. In relation to whether Mrs Eftaxiadis has availed herself of possible expert help in relation to behavioural management, the Tribunal considers that there is a question remaining as to whether accessing this help would reduce the level of care and supervision required of Emmanuel. The Tribunal notes that Mrs Eftaxiadis has gone to considerable lengths to seek assistance for Emmanuel in the form of doctors, school assistance and private tutoring, and notes her submission that she does not believe that behavioural management experts could tell her to do anything she is not already doing. Whilst the Tribunal does not accept that this would be the case, neither is the Tribunal satisfied, in the absence of any positive evidence from the respondent to this effect, that the provision of such assistance would result in a significant reduction of the degree of care and supervision required. The Tribunal is satisfied, on the evidence before it, that it can draw no positive or negative conclusions from the applicant's failure to seek out the help of behavioural management experts.

15. The Tribunal considers that the school reports (T3) alone cannot be considered as evidencing the lack of a need for care and supervision. The Tribunal notes that the reports do not cover grades three and four, in which Emmanuel has been receiving special attention following the diagnosis and visits to the school by Dr Bollard. The Tribunal notes the applicant's submissions in relation to these reports that the teachers were reluctant to identify any negative aspects to a child of that age, and that only after the visit by Dr Bollard were the teachers in a position to understand the degree of care and supervision required by the condition. The Tribunal is satisfied that these reports cannot be considered over and above the medical evidence before it and which evidences the care and supervision required. The Tribunal also considers that it is not assessing the degree of care and supervision required at school, but rather the amount of care and supervision required outside of school hours.

16. In assessing whether the amount of care and supervision required is substantially more than that required of a child without Emmanuel's condition, the Tribunal considers the discussion of "substantially more" in Re Secretary, Department of Social Security and Bosworth (1989) 18 ALD 373. The Tribunal in that matter dealt with the concept 'substantially more' and considered that in the context of this legislation it was used in a comparative sense, and was taken to mean 'considerably' or 'significantly' more care and attention on a daily basis than for a child who does not suffer from a physical, intellectual or psychiatric disability. The Tribunal in Re Secretary, Department of Social Security and King (AAT 8179, 20 August 192) also accepted this interpretation. Similarly in Re Corcoran and Secretary, Department of Social Security (AAT 9936, 3 January 1995) the Tribunal agreed with the interpretation in Re Bosworth. Likewise, the Tribunal in the current matter agrees with this interpretation, and in addressing the Tribunal's need for consistency in its decision-making, is satisfied that it should be followed in this present application.

17. The Tribunal is of the view that another issue relevant in this case is the objectivity of the test to be applied in considering whether the care and attention required by the child is substantially more than for a child of Emmanuel's age without such a disability. The applicant's view of the level of care and attention needed by the child is not determinative of the test (Re King, Re Bosworth and Re Corcoran) and it needs to be determined objectively. In making this assessment, the Tribunal considers the evidence of the applicant in association with the medical evidence, including inter alia, the two to three hours per day spent supervising homework, in association with the other requisite supervision of outside activities, meals and basic daily tasks. The Tribunal considers the approach taken in determining "care and attention" and assessment of "substantially more" to be consistent with the approach taken in previous decisions, and in particular refers to Re Atkinson and Secretary, Department of Social Security (AAT 11386, 13 November 1996) and Re Sergi and Secretary, Department of Social Security (1986) 10 ALD 174 as evidencing the approach taken to "care and attention" and "substantially more" in circumstances which bear some relation to the present matter. The Tribunal is satisfied that this level of care is substantially more than that which is required for a child of Emmanuel's age without a disability and so finds.

18. In making such a finding, the Tribunal considers this assessment is made on the basis of Emmanuel's care and attention requirements given his age and medication status. Should his condition change over time as he matures or becomes stabilised by medication during the periods outside of school hours, then obviously the amount of care and attention required would have to be reassessed given the change in circumstance. The Tribunal finds that Emmanuel requires care and attention that is substantially more than that required by a young person of the same age without a physical, intellectual or psychiatric disability, pursuant to s.952(b)(ii) of the Social Security Act 1991.

decision

19. Accordingly, the Tribunal, pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, sets aside the decision of the SSAT dated 1 May 1998 and in substitution thereof decides, pursuant to s.965 of the Social Security Act 1991, that the respondent is liable to pay child disability allowance to the applicant from the date of application to the respondent, namely 30 September 1997.

I certify that this and the thirteen (13) preceding pages are a true copy of the decision and reasons for decision herein of Senior Member J.A. Kiosoglous MBE

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 29 January 1999

Date of Decision 12 February 1999

Counsel for the Applicant In person

Solicitor for Applicant -

Counsel for the Respondent Ms L. Odgers

Solicitor for the Respondent Centrelink