Nugent and Department of Family and Community Services [2000] AATA 869 (2 October 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 869

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/943

GENERAL ADMINISTRATIVE DIVISION )

Re TANIA NUGENT

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Miss A M Brennan AM (Member)

Date 2 October 2000

Place Brisbane

Decision The decision under review is affirmed.

Decision No. 869/2000 (Sgd) K L Beddoe

Senior Member

CATCHWORDS

SOCIAL SECURITY : Child Disability Allowance - Carer Allowance - Child Disability Assessment Determination, Child Disability Assessment Tool

Social Security Act 1991 - s5(1B), s952, s952A, s953, s954(1)

REASONS FOR DECISION

2 October 2000 Mr K L Beddoe (Senior Member) Miss A M Brennan AM (Member)

1. By letter dated 28 June 1999 an Authorised Review Officer notified the applicant that a decision to refuse a claim made on 21 May 1999 for Child Disability Allowance was affirmed. On further review the Social Security Appeals Tribunal again affirmed that decision and the applicant sought review in this Tribunal.

2. In October 1999 the applicant made a further claim and payment of Carer Allowance was approved with effect from 6 October 1999. This Tribunal is therefore reviewing the refusal to pay allowance for the period 21 May 1999 to 5 October 1999 i.e. for five fortnights because the respondent refused to back-date the date of effect to the date of the previous application.

3. Section 954(1) of the Social Security Act 1991 ("the Act") relevantly provides that a person is qualified for a child disability allowance if:

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

(b) because of the disability from which he is suffering, the young person receives care and attention on a daily basis from that person in the residence of that person.

4. Whether a child is a CDA child is determined by section 952 and 953 of the Act. Section 952 provides that a young person is a disabled child if:

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

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

(b) a determination of the respondent 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 section 952 (Clause 3.1 of the Determination refers);

(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 one.

5. Section 952A of the Act provides for the making of the Child Disability Assessment Determination ("the Determination") which is a disallowable instrument made by the respondent on 25 March 1998 (T3).

6. The Determination has a number of aspects but at its central point it sets out criteria to be established before it is accepted that a young person (defined to include a young person under 16 years of age (s5(1B)) is a disabled child within the terms of section 952. That is determined by application of the Child Disability Assessment Tool ("the Tool") as set out in the Determination.

7. The Tool depends for its operation on two questionnaires which are set out in Parts 1 and 2 of Schedule 1 of the Determination. The first questionnaire is to be completed by the claimant and the second questionnaire is to be completed by a treating health professional. Clause 1.5 of the Determination says that the respondent may approve a person as a treating health professional or may approve a class of persons as treating health professionals.

8. The respondent has an overriding power in relation to the report by a treating health professional because clause 2.2(3) provides that the following steps are carried out in respect of the test for assessing a young person's functional ability, emotional state, behaviour and special care needs:

(a) the respondent must be satisfied that a questionnaire completed by a treating health professional is an accurate reflection of the young person's functional ability, emotional state, behaviour and special care needs;

(b) a score must be calculated:

(i) using the rating method mentioned in section 2.3; and

(ii) on the basis of the results of the questionnaire.

If the Secretary is not satisfied that the questionnaire completed by the treating health professional is an accurate reflection of the young person's functional ability, emotional state, behaviour and special care needs, the Secretary must ask for a replacement questionnaire to be completed by another treating health professional.

Consideration of the Evidence

9. The applicant's son was born 3 August 1997.

10. Document T4 is a claim for Child Disability Allowance lodged on 28 October 1998. The claim is not in dispute before us but we have considered the information in the claim with particular reference to the Treating Doctor's Report (T5). The report is dated 28 October 1998, and signed by Dr Calabrese who provided primary and secondary diagnoses as follows:

Primary Diagnosis : Mild to Moderate Asthma

Recurrent Tonsillitis /-

O(titis) Media

Secondary Diagnosis : As above

Recent Giardia Lamblia

The primary diagnosis was said to have commenced more than 12 months ago and expected to be present for at least 12 months.

11. Document T6 is a further Treating Doctor's Report lodged with Centrelink on 9 November 1998 by Dr Chan. That report provides a primary diagnosis of Asthma with a secondary diagnosis of recurrent otitis media. The primary diagnosis was again said to have commenced more than 12 months ago and expected to be present for at least 12 months.

12. By letter dated 23 November 1998 the respondent notified rejection of the claim which was subsequently affirmed by an Authorised Review Officer (T13).

13. On 21 May 1999 the applicant lodged the claim for Child Disability Allowance which is the relevant claim in these proceedings. The applicant described her son's medial condition as "Asthmatic, Reflux, Allergy (contact) exma (sic)". This contrasts with the claim made in October 1998 which described "asthma" only.

14. The Treating Doctor's Report dated 21 May 1999 by Dr Young diagnosed the following conditions:

Primary Diagnosis : Severe behavioural disturbances

including insomnia

Secondary Diagnosis : Asthma

Gastro Oesophageal Reflux

The primary diagnosis was said to have commenced more than 12 months ago - "as infant" and was expected to be present for at least 12 months. Dr Young certified that the applicant's son had none of the prescribed disabilities set out in Schedule 3 of the Determination.

15. In answering questions on the form report Dr Young indicated that the applicant's child required extra care and attention for 14 hours or more per week and suffered a moderately severe condition requiring attention 52 or more days per year.

16. In relation to functional assessment Dr Young ticked the following (the child was 21 months at the time of the report):

Receptive Language Skills

Child recognises pictures of common objects.

Expressive Language Skills

Child can clearly say or sign more that 20 words and can use two words in combination.

Feeding and Mealtime Skills

Child can drink from a modified cup when the cup is held by an adult.

Hygiene and Grooming Skills

Child requires full assistance with toileting.

Dressing Skills

Child lifts arms to be picked up.

Social and Community Skills

Child responds to affection from familiar people. Child recognises the difference between strangers and familiar people.

Mobility - fine motor skills

Child can manipulate larger objects and toys. Child can copy a straight vertical line.

Mobility - gross motor skills

Child can walk and can run a few steps. Child can walk up and down stairs.

17. We are satisfied that in coming to the above assessments Dr Young followed the instructions on the form and gave a response which indicated the child's best ability under each heading.

18. In relation to questions about behaviour Dr Young made the following positive response:

"Child displays aggressive behaviour or violence towards other people or property in the treatment or assessment setting."

19. In relation to Special Care Needs Dr Young did not tick any items under the heading.

20. Document T16 is the applicant's functional assessment. This is similar but not the same as Dr Young's functional assessment. In that context we have noted that the questions asked in the parents functional assessment are not the same as the questions asked in the Treating Doctor's Report. Unlike Dr Young the applicant gave positive answers to five questions in relation to Behaviour. Like Dr Young the applicant did not give a positive response to any of the questions as to Special Care Needs.

21. Dr Young referred the applicant's son to Dr Prado, General Paediatrician. In a report to Dr Young dated 29 March 1999 (T17) Dr Prado identified behaviour problems and a breakdown in family management strategies to deal with the behaviour problems. Dr Prado noted that the son's behaviour problems manifested at home but not at daycare which he attended two days per week. Dr Prado also identified a number of possible medical conditions. He prescribed Pulmicort to be taken by nebuliser (in association with Ventalin) and recommended further investigation with particular reference to Reflux, Celiac disease and Giardia infection.

22. Apparently in a response to a request from Centrelink Dr Prado also completed a Treating Doctor's Report dated 18 June 1999 (T18). Dr Prado gave as his primary diagnosis "Significant Behaviour Disorder" and as his secondary diagnosis "Asthma" and "Recurrent Allergies". Although he said the condition commenced more than 12 months ago he did not answer as to the prognosis. He said the child did not have any of the Schedule 3 disabilities. He said the child required extra care and attention for 14 hours or more per week with severity of the condition being moderate.

23. In response to the functional assessment questions Dr Prado's responses were generally in line with Dr Young. As to behaviour and special care needs Dr Prado identified two applicable responses:

(a) Child is consistently uncooperative and disruptive during treatment or assessment episodes.

(b) Child is extremely active and is unable to concentrate on a task for more than 30 seconds.

Dr Prado did not identify any special care needs.

24. Apparently acting on the basis of one of the treating doctors' reports Centrelink (not the respondent) notified the applicant on 21 June 1999 that the claim for Child Disability Allowance was, in effect, refused. No explanation as to how the decision was made was given to the applicant. The applicant sought review by an authorised review officer who subsequently affirmed the decision not to pay the allowance.

25. Dr Young made a medical report, to whom it may concern, dated 21 July 1999 (T21) i.e. immediately before the hearing in the Social Security Appeals Tribunal. He diagnosed:

(a) recurrent tonsillitis and otitis media;

(b) chronic diarrhoea with evidence of giardiasis in the past;

(c) nappy rash/candidiasis;

(d) gastro oesophageal reflux;

(e) asthma;

(f) disturbed sleep patterns; and

(g) behavioural disturbances on a regular daily ongoing pattern.

26. Dr Young made a further Treating Doctor's Report dated 4 October 1999 in relation to the applicant's successful claim in October 1999. In this report Dr Young found that five of the questions under Behaviour were applicable to which he added his own comments. The overall picture is one of undisciplined rebellious behaviour with attention seeking behaviour.

27. In her oral evidence the applicant described a situation not inconsistent with but more extreme than the circumstances reported by the medical practitioners. She said the problems associated with tonsillitis were resolved following removal of the tonsils in August 1999. She also said that her son's behaviour is not so bad if he is stimulated but he reacts adversely when bored and then becomes "adventurous". She said that while behaviour at childcare had not been a problem he is now exhibiting behaviour problems at kindergarten. She described her son as more intelligent than his siblings but we are not able to make any relative assessment from this evidence. We were left with the impression that the applicant sought to be frank in her evidence but there was an emotional overlay leading to a tendency to exaggerate.

28. We have made an assessment under the Determination based on the applicant's functional assessment (T16) and Dr Prado's functional assessment (T8). We have chosen Dr Prado's report because we have taken into account the claimed under-reporting by Dr Young and also because we have concluded that Dr Prado has made a more objective report basing this on the fact that he is a paediatrician less likely to be influenced by emotional overlay in any history given by the applicant. That there is such emotional overlay was indicated to us by the applicant's evidence and our observation of her giving that evidence. None of that is to criticise the applicant. We also came to the conclusion that the applicant is very concerned for her son's welfare and the fact that he is difficult to manage.

29. Our assessment, without the aid of a computerised program, resulted in negative scores in relation to the applicant's son. We found the scoring criteria confusing and, we would suggest, beyond the capacity of most claimants to understand. That in itself is sufficient to suggest that the Determination needs to be revised into a more transparent form so that the citizen can understand how the law operates.

30. However, we noted document T19 which was ignored during the hearing but is clearly Centrelink's record of its assessment. That shows a scoring of treating doctor's report of -0.16 which is not inconsistent with our scoring of Dr Prado's report at -0.1.

Consideration

31. Because we cannot be satisfied that the applicant's son has been assessed and rated under the Tool in the Determination at a positive score of not less than one we cannot be satisfied that the applicant's son is a disabled child within the terms of section 952.

32. The legislation does not confer a discretion to override the operation of section 952.

33. Because the applicant's son is not a disabled child within the terms of section 952 he cannot be a CDA child within the terms of section 953 so that paragraph 954(1)(a) cannot be satisfied.

34. It follows that the applicant is not qualified for a Child Disability Allowance in respect of her son.

35. For these reasons the decision under review is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member) and Miss A M Brennan AM (Member)

Signed:

T G Lowther

Associate

Date of Hearing 23 May 2000

Date of Decision 2 October 2000

Representative for the Applicant In person

Representative for the Respondent An Officer of the Department