Roe; Secretary, Department of Family and Community Services [2000] AATA 17 (19 January 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 17

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/1163

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And INGE ROE

Respondent

DECISION

Tribunal Senior Member JA Kiosoglous MBE

Date 19 January 2000

Place Brisbane

Decision The Tribunal affirms the decision under review, namely that of the Social Security Appeals Tribunal dated 22 September 1999.

(Sgd) JA Kiosoglous

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY - Child Disability Allowance - cystic fibrosis not an accepted disability - whether child required constant care and attention

Social Security Act 1991 - ss 952, 952A

Child Disability Assessment Determination 1998

Re Mrs M and Director - General of Social Security (1983) 5 ALD N365

REASONS FOR DECISION

19 January 2000 Senior Member JA Kiosoglous MBE

1. The applicant, the Secretary of the Department of Family and Community Services, seeks review of a decision of the Social Security Appeals Tribunal (SSAT) of 22 September 1999 (T2/2) that the respondent is qualified to receive child disability allowance. This decision set aside the decision of a delegate of the applicant of 30 June 1999 (T7/72) and of an Authorised Review Officer (ARO) of 11 August 1999 (T13/86), respectively.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T16), together with the exhibits tendered by the parties, 3 being lodged by the applicant (A1 to A3) and 2 being lodged by the respondent (R1 to R2). A Departmental Advocate, Mr Paul Kanowski, represented the applicant. The respondent appeared unrepresented and gave oral evidence. Mr Roe was also present as was Megan, the respondent's daughter and subject of the application.

3. The issue before the Tribunal is whether the respondent is entitled to receive a child disability allowance for her daughter Megan, who was born with cystic fibrosis on 8 May 1999.

4. The respondent applied for child disability allowance for Megan on 15 June 1999 (T4/51). On 7 June 1999 Dr Claire Wainwright completed a treating doctor's report and a functional assessment of Megan (T5/58). Megan achieved a score of negative 0.5 on the basis of Dr Wainwright's functional assessment (T6/70). A letter from the Department dated 30 June 1999 (T8/73) informed the respondent that she was being issued with a Health Care Card for Megan. By a separate letter also dated 30 June 1999 (T9/76), the respondent was informed that she could not be paid a child disability allowance for Megan as the effect of her medical condition on the family was not at the level which would entitle her to such a payment. The respondent applied for review of this decision to reject her application for child disability allowance by way of a letter, which was received at the Centrelink Caboolture office on 15 July 1999 (T10/78). An ARO informed the respondent that her application for review had been unsuccessful by way of a letter dated 11 August 1999 (T14/87). The respondent applied for review by the SSAT on 13 August 1999 (T15/90). On 22 September 1999 the SSAT overturned the decision of the ARO and found that the respondent was entitled to a child disability allowance for Megan (T2/2).

5. Child disability allowance entitlement is governed by section 952 of the Social Security Act 1991(the Act), which provides:

"Subject to section 953, a young person is a disabled child if:

(a) the young person:

(i) has a physical, intellectual of psychiatric disability: and

(ii) is likely to suffer from the disability permanently of for an extended period; and

(b) a determination of the Secretary under section 952A is in force and one of the following conditions applies:

(i) under the determination, the disability is declared to be a recognised disability for the purposes of this section;

(ii) the young person has been assessed and rated under the Child Disability Assessment Tool and has been given a positive score of not less than 1."

6. Mr Kanowski submitted that section 952A of the Act provides that the Secretary may make a determination that provides a test for assessing young people with disabilities and a method for rating them. He further stated that such a determination is in force and is known as the Child Disability Assessment Determination 1998, which commenced on 1 July 1998 (T3/15). He then referred the Tribunal to sub-paragraphs (7) and (8) of 1.6 of Part 1 of the determination pertaining to child disability assessment. Sub-paragraph (7) states that pursuant to subsection 952A(3) of the Act the Secretary's determination may declare that a specified physical, intellectual or psychiatric disability is a recognised disability for section 952 of the Act. Sub-paragraph (8) states that Part 3 of the determination deals with the recognised disabilities. Mr Kanowski stated that when one refers to Part 3 of the determination one is then referred to Schedule 3 of the determination (T3/47). Mr Kanowski stated that if a child has one of these 20 recognised disabilities, which are divided into two categories of 10, severe and chronic, then they are regarded as disabled for the purposes of the Act. He further stated that it is then unnecessary for a child to be assessed under the Child Disability Assessment Tool. If a child does not have a recognised disability they must achieve a score of 1 or more under the Child Disability Assessment Tool (Part 2, Schedules 1 & 2) to be recognised as having a disability for the purposes of section 952 of the Act. Mr Kanowski stated that the same questions are asked for every child under this Tool and the child's age is taken into account. He also stated that the method of assessment compares the functioning of the child to that of their age peers. Pursuant to section 952A(2) of the Act a negative score indicates the absence of a disability at a significant level and a positive score indicates the presence of a disability. Mr Kanowski submitted that Dr Wainwright's assessment of Megan under the Child Disability Assessment Tool had yielded a rating of negative 0.5 (T6/70), while an assessment of Dr N Woolfield yielded a rating of negative 0.75 (exhibit A3).

7. Mr Kanowski stated that the applicant accepts that Megan has a physical disability and is likely to suffer the disability permanently. However, Mr Kanowski contended that as Megan has not scored 1 or more under the Child Disability Assessment Tool the question is whether or not her disability is recognised for the purposes of section 952 of the Act. He submitted that, in accordance with Schedule 3 of the Child Disability Assessment Determination 1998, Megan's cystic fibrosis is not a "severe multiple or physical disability (including uncontrolled seizures) requiring constant care and attention where the young person is less than 6 months of age" (T3/49). This is disability number 9 in the class of severe recognised disabilities of Schedule 3 of the Child Disability Assessment Determination 1998. Mr Kanowski contended that the evidence does not support a finding that Megan suffers a disability of this type.

8. To this end Mr Kanowski submitted that Dr Wainwright, while acknowledging that the condition was likely to worsen at some point in the future, was not of the view that Megan's condition met the description of recognised disability number 9, whereas Dr N Woolfield indicated in his initial report that the condition did meet this description. Dr N Woolfield is the Director of Paediatrics at the Caboolture Hospital whilst Dr C Wainwright is with the Department of Respiratory Medicine at the Royal Children's Hospital. Mr Kanowski further submitted that later in his report Dr Woolfield described Megan's condition as mild, not moderate or severe. In the light of this Mr Kanowski contended that the indication by Dr Woolfield that Megan has a recognised disability cannot be accepted as one requiring constant care and attention. He further stated that this is supported by a report by Dr Woolfield of 2 November 1999 (exhibit A2), which stated that Megan had only moderate overall disease. Mr Kanowski also contended that the extra 2 hours care per day Megan requires as compared to a normal girl her age, as indicated by Dr Woolfield in the report of 2 November 1999, does not meet the requirement of constant care and attention. He referred the Tribunal to the case of Re Mrs M and Director-General of Social Security, (1983) 5 ALD N365, to help define the phrase "constant care and attention". He submitted that in the current matter regard must be had to the context to interpret the expression "constant care and attention" required of a child up to 6 months of age. He further contended that at this age all children require constant supervision and recurring care and for a child to require the constant care and attention of disability number 9 of Schedule 3 a high level of recurrent additional care and attention would be required. Mr Kanowski contended that additional care in the vicinity of 2 hours per day would not meet the description of "constant". For these reasons Mr Kanowski contends that the decision of the SSAT should be set aside and a decision substituted that the respondent's claim for child disability allowance be rejected.

9. Whilst Mrs Roe gave oral evidence the Tribunal is satisfied that her case is summarised in a letter dated 15 July 1999 (T10/78) which she sent to the Department applying for review by an ARO. This provides (i.a.) as follows:

"I am writing to appeal the decision made by Centrelink not to pay Child Disability Allowance for my daughter Megan Roe. I feel that the decision is unfair based on the fact that Megan's disability is not only causing added cost but has greatly changed our lifestyle.

Although the Health Care Card is a great help there is still the added cost of driving to Brisbane Hospital every fortnight, the cost of parking there, the $3.20 for antibiotics every time she gets a sniffle and the $3.20 for each of the following: glucolyte, pancrease, pentavite, Vitamin K, micel - e and polyjoule (all of which are administered on a daily basis). Apart from the cost the extra time taken for a C.F. child has a great impact on the whole family.

Megan requires physio twice a day for 20 minutes each session (this is increased whenever she has a runny nose), she also requires enzymes before each feed (this takes extra time for preparation and administration). She is given glucolyte 2 to 3 times a day and is given pentavite and Vitamin E each day. She is given Prepulsid3 times a day and Vitamin K twice a week. Each time Megan gets a runny nose she is required to see a doctor and start anti-biotics straight away regardless of the time day or night. I will not be able to return to work for quite some time as neither of my children will be able to attend day-care because of the risk of infection and because Megan requires the special care that day-care staff are not trained in. Without all this extra time taken to care for her Megan's life span would be greatly reduced. This treatment will apply for every day of Megan's life for the rest of her life.

Cystic Fibrosis also takes its toll on the rest of the family. For example we went to a child's birthday party only to discover two children there had colds so we had to leave straight away. This meant we had prepared ourselves for this day (which takes a lot longer when taking medications) and taken our two year old only to have to leave after wasting time and causing distress to our son who doesn't understand the meaning behind this.

Jordan (our son) misses out on more time from us because of the extra time taken to care for Megan. He also misses out on playing with other children at times such as mentioned. My husband has each Monday off and on every second one we have to attend C.F. clinic at Royal Children's Hospital. We leave home at 11:00am and get home about 5pm. This leaves one day every fortnight that we have to spend as a family. C.F. babies are also very hungry and they suffer a lot of wind which takes more time again with extra feeds and time taken to soothe pains which they experience.

On top of this although statistics say she should live to around to around 30 years the fact is there is no guarantee and Megan may not make it to adulthood. This is a fatal condition that she will die from and her life will never be completely normal.

I hope this has given you some idea of the extra time, cost and the huge impact that Megan's condition has on our whole family."

10. The report dated 2 November 1999 (Exhibit A2) from Dr Woolfield provided by Mrs Roe to the applicant stated (i.a.) as follows:

"Megan Roe has cystic fibrosis which is a serious medical condition. At the current time, while this is a serious multi-organ system disease, she has only moderate overall disease and that her lung condition is stable and the nutritional management including enzyme supplements and appropriate diet is allowing her to grow and develop normally.

As far as her lung condition is concerned it is the ongoing intensive physiotherapy and medications which assist in minimising the requirement for hospital admissions and the requirement for intravenous antibiotic treatments.

The additional involvement in Megan's care by her parents is at least 2 hours a day in addition to that which would normally be required by a child of the same age and sex."

11. The Tribunal also notes the completion by Dr Woolfield of a treating doctor's report and a functional assessment dated 5 October 1999 (T16/91). In his report, Dr Woolfield indicated that Megan suffers from a recognised disability, namely a "severe multiple or physical disability (including uncontrolled seizures), requiring constant care and attention where the young person is less than 6 months of age" (T16/95).

12. At the hearing Mrs Roe stated that Megan started taking medication at 6 days of age. She also stated that she only now understood that her claim could only be considered up until Megan turned 6 months. Mrs Roe stated that Megan was on a range of medication and informed the Tribunal of what was taken and for what reasons. To help her absorb fat Megan took Pancreatic Enzymes. These were administered four times a day by breaking open capsules and putting them in baby jelly. Megan also needed a salt replacement formula, Glucolyte, to be administered via a bottle up to 5 times daily. Mrs Roe stated that she would make up 600ml of the Glucolyte formula at a time and keep this on hand to be given to Megan as required. Megan also required half a sodium chloride tablet daily, with 2 quarters of the tablet sprinkled onto her solid food at different feed times during the day. This was stated to be a necessity as Megan sweats a lot more than a normal baby does. Mrs Roe also stated that Megan took a half tablet of Vitamin K twice a week. This tablet was mixed in with her enzymes and jelly. Megan also took Zantac for reflux, a complication, Mrs Roe stated, of cystic fibrosis babies as they sometimes bring parts of their lungs up. Mrs Roe further stated that Zantac stops the effects of excess acid and helps the enzymes administered do their work on the food that Megan eats. Megan also took Prepulisn Pentavite and Vitamin E every day. Megan also took antibiotics as required and by the time she was 6 months of age Mrs Roe stated that she had been on 10 courses. A course consisted of the antibiotics Flucloxacillin and Amoxycillin, these being administered 4 and 3 times a day, respectively. Mrs Roe stated that all of this medication went everywhere with her and Megan and a lot of it had to be kept refrigerated in special packs, especially the antibiotics.

13. Mrs Roe also addressed the requirement that Megan require "constant care and attention" for the purposes of the Act. She referred to the applicant's reference to the case of Re Mrs M and in particular to its definition of "constant", "denoting more regularity or periodicity than 'spasmodic'", and stated that Megan's condition was not spasmodic. Whenever she was required to feed Megan Mrs Roe stated that she had to make sure she was providing a high fat, high protein meal, which took time to prepare; she was not able to simply grab a jar of baby food. Megan's medication had to be administered before a feed, as did her enzymes, which also required preparation. Mrs Roe also stated that Megan required physiotherapy first thing in the morning, and once more during the day. The timing of this physiotherapy was crucial, Mrs Roe stated, as it had to be given a certain amount of time after feeding otherwise it could aggravate her reflux. Syringes were required to administer medication and they had to be sterilised and dried completely before each use. It was important to make sure the syringes were dry, as, Mrs Roe stated, still water harbours bugs that could cause infection. For the same reason, Mrs Roe stated that it was important to make sure all of Megan's face washers were cleaned after one use. If one of the members of the family had a cold Mrs Roe stated that a lot of disinfecting had to be done around the house so as to ensure that Megan did not suffer from an infection which could worsen her condition. As a further example in regard protecting Megan from infection Mrs Roe stated that if Jordan caught a cold she would not allow him to have any contact with Megan, which was very hard to explain to Jordan. Mrs Roe further stated that whenever she went shopping she could not allow other people to touch Megan for risk of infection. Mrs Roe stated that she may be perceived as an over paranoid mother as a result of this behaviour but she could not afford not to be because of Megan's condition.

14. Whenever she went shopping Mrs Roe stated that she had to check that food she bought for Megan was high in fat content. She did this by referring to a Calorie Counter. Mrs Roe stated that this lengthened the time of her shopping trips by 10 to 15 minutes. She further stated that she would shop for groceries three times a week. It was important to know, Mrs Roe stated, what Megan's coughing patterns were like so that her doctors would have an idea of what was going on in her lungs. As such, these had to be monitored closely. Mrs Roe also stated that Megan, after she was born, was not doing well on breast milk and so had to be put on a milk formula; this formula took time to prepare. Mrs Roe further stated that in the first 6 months Megan also had Polyjoule added to her bottle in order to help her bulk up. As a result of cystic fibrosis Mrs Roe stated that babies are very hungry, and in the first 2 months she carried Megan with her everywhere. When Megan woke at night Mrs Roe stated that she gave her Glucolyte. Mrs Roe further stated that Megan was with her 24 hours a day. She also stated that she did not take Megan to childcare or to anyone else's home to be looked after, as she could not trust them to take proper care of Megan. She further stated that Megan also gets bad "bellyaches" and screams until she has a bowel motion.

15. Mrs Roe compared the first 6 months of Megan's life with that of her son Jordan. She stated that all she had to do with Jordan was give him a bottle, bathe and feed him and change his nappies. She also stated that she was not concerned when Jordan played with other children who may have had a runny nose. As soon as Megan got a sniffle, Mrs Roe stated she had to go the doctor to be prescribed antibiotics. This, she stated, was markedly different from the care Jordan required.

16. Mrs Roe stated that she was out of a job until Megan was old enough to go to school. She also stated that her husband had to recently turn down a very good job as he heard through the grapevine that his prospective employer was not as understanding as his current employer when it came to taking time off for Megan's sake. Mrs Roe also stated that shortly after Megan was diagnosed with cystic fibrosis her husband lost his job and she felt this was due to all the time he was taking off in order to travel to hospital and help care for Megan.

17. Mrs Roe referred to the report of Dr Woolfield (T16/91). She stated that the doctor, having indicated that Megan suffered from a disability, was not actually required to complete the functional assessment that followed. Dr Wainwright's assessment of Megan's condition was, the applicant stated, a difference of opinion. She also stated that Dr Wainwright, as recorded in the decision of the SSAT, disagreed with the wording of disability number 9 and feels that cystic fibrosis is a medical condition rather than a disability. Mrs Roe then referred to the part of Dr Wainwright's assessment of Megan where she indicated that Megan was comforted when picked up. Mrs Roe stated that there were occasions where Megan could not be comforted when she was picked up. She also stated that Megan was sometimes disruptive when she was being given treatment.

18. Mrs Roe also referred to Dr Woolfield's statement that Megan required at least 2 hours a day more care than that of a normal child of the same age and sex. She stated that the extra care required actually went well above 2 hours. She also stated that when Dr Woolfield described Megan's condition as being mild he was referring to the state of her lungs at the time and to the fact that she did not yet have severe lung damage. Mrs Roe also stated that in the first 2 months of Megan's life it was necessary to take her to the Royal Children's Hospital at Herston at least once a month. After the first 2 months they were only required to take her to hospital an average of once every 3 weeks. Mrs Roe stated that as they had to travel to Brisbane from Bribie Island a hospital visit would see the family leave home at about 10:30am and return at 4:30pm. She stated that the time spent in the hospital consulting with doctors, dietitians and physiotherapists was generally 2 to 3 hours.

19. During cross-examination Mr Kanowski asked Mrs Roe what kind of syringes she used. She stated that they were normal 3ml syringes and they were used to administer Prepulsin. Mr Kanowski also asked Mrs Roe if she had considered leaving Megan with her mother or at a childcare facility. Mrs Roe said that she had but she would probably have to spend a week with her mother in order to show her how things were done. She also stated that her leaving Megan at a childcare centre would depend on whether or not she trusted the people at the facility. In considering this, the Tribunal is mindful that the period in question is the first six months of Megan's life.

20. The Tribunal in arriving at its decision takes into account the evidence as a whole. As Megan did not achieve a score of one or more under the Child Disability Assessment Tool it is necessary to determine whether she has a recognised disability under Schedule 3 of the Child Disability Assessment Determination 1998. The only disability Megan could possibly be classified as having is disability number 9 of the severe category of disabilities: "severe multiple or physical disability (including uncontrolled seizures), requiring constant care and attention where the young person is less than 6 months of age". Given that the applicant concedes that Megan has a severe physical disability, the issue for the Tribunal to determine is whether Megan's cystic fibrosis can be seen to require constant care and attention. The period in question, since the disability applies only to children of 6 months of age or younger, is from 15 June 1999, the date of application, to 8 November 1999, the day Megan turned 6 months.

21. The case of Re Mrs M provides some guidance. This case was to do with the grant of handicapped child allowance, where one of the prerequisites for being a handicapped child for the purposes of the Act was that the child requires "constant care and attention". Mr Kanowski referred the Tribunal to various parts of the reasons for decision. At page 4 there is a Random House Dictionary definition of "constant":

"2. continuing without pause or let up; unceasing: constant noise. 3. Regularly recurrent; continual; persistent: He found it impossible to work with constant interruption."

At page 6:

"The expression "constant care and attention" is not a technical expression and the word "constant" is not a word having a medical or other relevant technical meaning. In the context in which that expression appears in Part VIB we think that "constant care and attention" encompasses care and attention which is continually recurring. Nevertheless, "constant" denotes more regularity or periodicity than "spasmodic".

22. From the evidence of the respondent and the documentary evidence before the Tribunal it is clear that Megan requires an amount of care and attention that is significantly above that required by a child of the same age. On the evidence before it the Tribunal accepts that the assertion by Dr Woolfield that Megan requires 2 hours more care than a child of the same age and sex is a conservative estimate. The requirement of disability number 9 in Schedule 3 that care and attention be constant is obviously not meant to be taken so literally as to mean every second of the day. As indicated in the case of Re Mrs M "constant" denotes more regularity or periodicity than "spasmodic". Mrs Roe had to attend to Megan and her needs, up until she turned 6 months, with a frequency that could be described as regular, one might even say routine, and significantly over and above the norm. On the evidence that Mrs Roe gave in regard to how she cared for Jordan as compared to Megan the Tribunal does not find that Mrs Roe is over protective of Megan. One has to remember that Megan suffers from a life threatening illness and that her life can be extended through her proper care. In such a situation the care Mrs Roe gives to Megan would be the same as any other loving mother in a similar situation. For these reasons the Tribunal finds that the requirements for a child disability allowance pursuant to section 952 of the Act are satisfied.

23. Accordingly, the Tribunal affirms the decision of the SSAT of 22 September 1999 in so far as it was found that Mrs Roe was qualified for child disability allowance from the date of claim, 15 June 1999, up until Megan turned 6 months on 8 November 1999.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member JA Kiosoglous MBE

Signed: Liam Cusack

Associate

Date/s of Hearing 7 January 2000

Date of Decision 19 January 2000

Counsel for the Applicant Mr Paul Kanowski

Representative for respondent Respondent appeared in person