Gilbert and Department of Family and Community Services [2000] AATA 859 (26 September 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 859

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº V99/1287

GENERAL ADMINISTRATIVE DIVISION)

Re: MARY GILBERT

Applicant

And: SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal: Mrs H.E. Hallowes, Senior Member

Date: 26 September 2000

Place: Melbourne

Decision: The decision under review is affirmed.

(sgd) H.E. Hallowes

Senior MemberSOCIAL SECURITY -- child disability allowance -- juvenile diabetes -- rated under Child Disability Assessment Tool -- whether a positive score of not less than 1

Social Security Act 1991 ss.952, 952A, 953, 954

Child Disability Assessment Determination 1998

Re Brammer and Secretary to the Department of Family and Community Services

[2000] AATA 310

Re Gibbons and Secretary, Department of Family and Community Services [1999] AATA 994

Re Maddern and Repatriation Commission [1999] AATA 493

REASONS FOR DECISION

26 September 2000 Mrs H.E. Hallowes, Senior Member

1. In lodging her application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 4 October 1999, which affirmed a decision to reject her claim for child disability allowance in respect of her son Garth, born 4 August 1989, Mrs Gilbert provided the Tribunal with a considerable amount of supporting material which was included in the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), none of which is in dispute. However, the Tribunal can do no more than consider the facts of the application and apply the legislation which came into effect on 1 July 1998, so far as relevant providing under the Social Security Act 1991 ("the Act"): Subject to subsection 953, a young person is a disabled child if:

(a) the young person:

(i) has a physical, intellectual or psychiatric disability; and

(ii) is likely to suffer from the disability permanently or 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.

952A.(1) The Secretary may, by determination in writing:

(a) devise a test for assessing a young person's functional ability, emotional state, behaviour and special care needs; and

(b) provide a method for rating the young 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).

. . .

953. A disabled child is a CDA child of a person if:

(a) family allowance is payable to the person for the disabled child; or

(b) . . .

954.(1) A person is qualified for child disability allowance for a young person if:

(a) the young person is a CDA child of the person; and

(b) because of the disability from which he or she is suffering, the young person receives care and attention on a daily basis from:

(i) if a person is a member of a couple -- the person or the person's partner; or

(ii) if the person is not a member of a couple -- the person;

in a private home that is the residence of the person and the young person.

. . .

The Tribunal notes that the relevant legislation has now been repealed and new provisions substituted.

2. Mrs M. Gilbert represented herself at the hearing. The Secretary was represented by Mr T. Baker, an advocate with Centrelink, at the hearing. There is in force a determination of the Secretary under section 952A of the Act, a copy of which was included in the documents. The determination includes a Child Disability Assessment Tool ("the Tool"), including two questionnaires to be completed, in the first instance a questionnaire to be completed by the treating health professional and also a questionnaire to be completed by a claimant, in this application Mrs Gilbert. The Child Disability Assessment Determination relevant to this application has been replaced by the Child Disability Assessment Determination 1999.

3. The Secretary, and on review this Tribunal, must be satisfied that the questionnaire completed by the treating health professional is an accurate reflection of the child's functional ability, emotional state, behaviour and special care needs. The Tribunal has already had occasion to comment on that aspect of the Tool, in Re Gibbons and Secretary, Department of Family and Community Services [1999] AATA 994. The Tribunal had this to say, noting the Explanatory Memorandum to the Social Security Amendment (Parenting and Other Measures) Bill 1997 which introduced amendments to the Act relating to child disability allowance into the House and extracts from the Second Reading Speech, as follows:

Mr Speaker, the Bill contains amendments that introduce significant reforms in the area of child disability allowance. A simpler assessment process, involving a Child Disability Assessment Tool, will be introduced for use in relation to all new claims for child disability allowance from July 1 1998. The Assessment Tool will measure the impact of a child's disability on his/her functional ability in communication, mobility, self-care and community living skills against developmental milestones. It will also assess a child's behaviour, emotional state and special care needs.

The use of the Assessment Tool will provide a simpler, more objective means of assessing eligibility for child disability allowance than the current criterion of "substantially more care and attention". It will provide a more objective method of assessment for parents and treating medical professionals, will minimise the subjectivity and inconsistency in the current criteria, will reduce the number of reviews and appeals, and will increase the level of understanding of the program by staff, parents and the medical profession. Parents with very disabled children have been concerned that the child disability allowance payment has been seriously compromised over recent years.

The Tribunal in Re Gibbons went on to say:

. . .

The present legislation may provide a more objective method of assessment for parents and treating medical professionals but whether it reduces the number of reviews remains to be seen. Certainly the level of understanding of the program by parents and carers will not be increased unless the application of the Child Disability Assessment Tool ("the CDA Tool") devised for assessing a young person's functional ability, emotional state, behaviour and special care needs is spelt out so that a parent or carer may understand how a treating health professional's responses and their responses to the questionnaires in the CDA Tool are translated into a score. It appears that this is done with the aid of a computer program. In Re Maddern and Repatriation Commission [1999] AATA 493, decided 10 May 1999, the Tribunal said, when commenting on a factor relied on by Mr Maddern under a Statement of Principles relevant to the determination as to whether his solar skin damage was war-caused the factor providing that a value be obtained applying a formula by using a computer program:

9. It is not hard to imagine the circumstances why there would be difficulty associated with comprehending the SoPs when a relevant factor can only be understood by access to a computer program over which there were apparent licensing difficulties prohibiting access to it. Alternatively, whilst the relevant formula is defined by the SoPs, the components of the formula and the Mathematics required to calculate a solar UV damage factor ratio of at least 1.2 would approach those deserving of a Nobel Laureate. Clearly a regime which requires Veterans to satisfy SoPs of this type is inappropriate and monstrously unfair. It is absent of any semblance of a beneficial approach to Repatriation benefits for Veterans and - insofar as many Veterans are unrepresented - assumes that they are either computer literate and/or have access to computer facilities - even assuming that they could obtain access to the computer program.

4. Mrs Gilbert is not alone in her concerns with respect to juvenile diabetes. In Re Brammer and Secretary to the Department of Family and Community Services [2000] AATA 310 the Tribunal had this say:

7. The starting point in this application is whether Ashlee has a physical disability for which she is likely to suffer from permanently (section 952(a)) and whether Ashlee has been assessed and rated under the Tool and has been given a positive score of not less than one (section 952(b)(ii)). Ashlee is not a disabled child under the Act under the other entitling provision (section 952(b)(i)) which provides that the Secretary, in determining a CDA entitlement, may declare a disability as a recognised disability for the purposes of section 952. In Schedule 3 of the Tool the recognised disabilities are recorded as Severe Disabilities under Part 1 and as Chronic Medical Conditions under Part 2 (T25). It concerns Mrs Brammer that juvenile diabetes has not been included as a recognised disability under Schedule 3 and she wonders what further must be done to persuade the legislature that juvenile diabetes is a chronic medical condition. She has approached her local federal Member of Parliament and obtained a letter which was amongst the documents. Her local member wrote, amongst other things:

. . .

I encourage you to reconsider this application, as I believe it should be in the automatic category of Child Disability Allowance qualification. Ashlee can no longer lead the life of a normal child her age without the substantial care and attention of her parents, because of this disability. (T22)

The Secretary, and on review this Tribunal, must apply the legislation as it provides at the relevant time. It is the legislature which is in a position to amend that legislation. As well as the letter from the Member of Parliament, the documents include letters of support for Mrs Brammer's claim from Dr Garrick dated 8 December 1998 (T11); and Ms J. Wilkinson, paediatric diabetes educator, 1 December 1998 (T10) and Ms G. Pack, chairperson of the Juvenile Diabetes Foundation Australia Education Division, undated (T23).

5. As well as the documents, the Tribunal had before it a further treating health professional's report completed by Dr P. Goss, paediatrician, dated 10 January 2000. Two earlier reports from Dr Goss were amongst the documents, together with an advice from Dr B. Harries, senior medical advisor, Health Services Australia, dated 15 June 2000, provided by the Secretary with respect to one of Dr Goss's earlier reports. After the hearing had been completed, the Tribunal was provided with a further advice from Dr Goss, which it agreed to take into evidence with the consent of the parties.

6. Turning to the treating health professional's questionnaire, completed by Dr Goss on 16 February 1999, he did not tick any of the boxes with respect to questions relating to behaviour and special care needs, indicating that none of those responses apply to Garth. The steps under the rating method under the Tool have been applied to those responses, a score of -1.66 was arrived at and Garth could not be found to be a disabled child under paragraph 952(b)(ii) of the Act. Mrs Gilbert was advised of that decision on 24 February 1999. She then provided the respondent with a short written report from Dr Goss dated 9 March 1999 in which he advised:

. . . The impact on this family is significant and the effect on the family of his disability is certainly at a level which is major and well beyond that of any other child who did not have the disability.

. . .

7. In asking for the decision to be review by an authorised review officer ("the ARO") Mrs Gilbert wrote to Centrelink on 10 May 1999 expressing her appreciation of being provided with a health care card, but noting that the card does not address many of the associated problems of caring and attending to the extra needs of a child with diabetes. The Tribunal is satisfied that these problems are particularly acute for isolated parents and for a child in a remote community where there may be no other children with the same condition. The Gilberts must travel a considerable distance to obtain any medical help. There is no pharmacy in their local town.

8. Mrs Gilbert told the Tribunal about the diagnosis of Garth's diabetes and his erratic behaviour and mood swings when his blood sugars are high. Dr Goss had only seen Garth on a couple of occasions before he completed the treating health professional's questionnaire. He had asked her questions about Garth's functional ability. The Tribunal took Mrs Gilbert through Dr Goss's responses to the questionnaire and she did not dispute that Garth had the functional abilities subscribed to him by Dr Goss. She described Garth's frustration and his desire not to draw attention to himself and his reluctance to stay with others so they do not become aware of his tests and needles. It was her understanding that Dr Goss had not ticked any of the boxes in question 15 - Behaviour - because those responses related to children with attention deficit disorder or other behavioural problems. Similarly, question 16 - Special care needs - appears to relate to equipment but not the needles Garth needs, and in her opinion there is no appropriate box for a treating health professional to tick although Garth's disease is life threatening. It surprises Mrs Gilbert that responses are provided, for example, with respect to a child who may need a wheelchair but there is no response to tick if a child's condition is life threatening.

9. Dr Goss provided a further treating health professional's questionnaire to the Secretary on 18 January 2000 in which he ticked the box stating "End stage organ failure where the child is awaiting transplant" under Part A "Recognised Disabilities". Under paragraph 952(b)(i), a young person is a disabled child if they have a Recognised Disability. The Tool provides for Recognised Disabilities under subsection 952A(3) of the Act. A list of those Recognised Disabilities is included in the documents. One of the Recognised Disabilities under Schedule 3 Part 2 Chronic Medical Conditions is ". . . 2. End stage organ failure where the young person is awaiting transplant . . .". Having received the further treating health professional's questionnaire from Dr Goss, the Secretary asked Dr Harries to express an opinion whether Garth satisfied that provision. On 15 June 2000 Dr Harries advised that he had spoken to Dr Goss who had stated that, as he was unable to find an appropriate box to tick on the form he had to complete, he used "poetic licence in an attempt to indicate to Centrelink that this child has a significant disability"; that Garth does not have end stage organ failure nor is he awaiting a transplant. In his further letter placed before the Tribunal dated 7 August 2000, Dr Goss advised:

. . .

There is no question that Garth has a significant permanent disability. It is also correct that the Centrelink form does not have an appropriate box to describe the degree of disability that it causes. The correct reason that I indicated on the form "best fits" organ failure is that in essence his endocrine pancreas has failed. At the present time he is receiving Insulin via subcutaneous injection, but it is a matter of fact that the cure for diabetes will be islet cell transplantation. This is currently in the experimental phase but it is not false to suggest that he is waiting an islet cell transplant.

This may be a matter of semantics to some, but given that there is no where else in the Centrelink form to accurately depict the medical condition of this child I stand by my report. If you wish to define on your form more specifically which organs you consider, when they fail to be appropriate for Child Disability Allowance, please do so. If you wish to relate a time span to when the organ transplant will occur, please do so. Otherwise Garth still requires sufficient daily care and attention to receive the disability allowance and he still fits into the category of end organ failure, awaiting a transplant.

. . .

10. Section 954 of the Act provides qualification for child disability allowance. There can be no dispute that Garth receives care and attention on a daily basis from his parents in their home (para 954(1)(b)). However, applying the Tool the Tribunal finds that Garth is not a disabled child as he has not been given a positive score of "not less than 1" (section 952(b)(ii)) and he is therefore not a "CDA child" under section 953 and Mrs Gilbert does not satisfy paragraph 954(1)(a) of the Act. By looking at the questionnaire completed by Dr Goss; the scoring of his responses at T5 of the documents, and by using those scores in the steps outlined in the Rating method under the Tool, Mrs Gilbert can follow how the score of -1.66 is arrived at, the Tribunal being satisfied that that score is correct. The Tribunal must apply the test provided under the Tool. Dr Goss has been approved as a treating health professional. Having considered all the evidence, the Tribunal is satisfied that the questionnaire he completed is an accurate reflection of Garth's functional ability, emotional state, behaviour and special care needs. There is no provision under the relevant legislation to reflect a parent's concerns. The legislation does not provide for those concerns to be taken into account other than under paragraph 954(1)(b) of the Act. Even if paragraph 954(1)(b) is satisfied, a young person must also be a "CDA child".

11. Dr Goss has expressed his frustration with the Tool. The answers a treating health professional gives to a questionnaire are fundamental to the application of the Tool. Treating health professionals may have little knowledge of a child's functional abilities other than that they obtain from questioning a parent in order to complete the questionnaire. In the Tribunal's opinion the Tool reflects little understanding of the demands care and attention place on parents, particularly those who are remote from medical services and who are placed under considerable stress for, if they are not careful, a life threatening or a permanently disabling situation may arise. The provision of a health care card does not compensate a parent, particularly ones in remote areas for the considerable additional expense involved in maintaining their child in optimum health despite their disease.

12. The Tribunal is aware that the Tool is regularly evaluated and that the list of Recognised Disabilities is to be reviewed every three years. Submissions have been received with respect to the chronic diseases juvenile diabetes and asthma but the Tool has not been amended to date. The qualification for pensions and allowances under the Act are a matter for the legislature and the Tribunal can do no more than apply the law as it is at the relevant time.

13. It is for these reasons that the Tribunal will affirm the decision under review.

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of

Mrs H.E. Hallowes, Senior Member

(sgd) Catherine Thomas

Personal Assistant

Date of Hearing: 05.07.00

Date of Decision: 26.09.00

Solicitor for the Applicant: IN PERSON

Solicitor for the Respondent: Mr T. Baker, Departmental Advocate