Talbot and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 979 (7 December 2010)

Last Updated: 19 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 979

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/3242

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CEDRIC TALBOT

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Dr J D Campbell, Member

Date 7 December 2010

Place Sydney

Decision

The decision under review is affirmed.

....................[sgd]........................
Dr J D Campbell
Member

CATCHWORDS

SOCIAL SECURITY- carer allowance- rated under child disability assessment tool as zero- functional ability, behaviour and special care needs assessed- decision AFFIRMED.

LEGISLATION

Social Security Act 1991; section 953

OTHER

Child Disability Assessment Determination 2001: Part 3

Disability Care Load Assessment (Child) Determination

REASONS FOR DECISION

7 December 2010

Dr J D Campbell, Member

1. Mr Talbot, the Applicant, has been in receipt of a carer allowance since 22 November 2006. He cares for his daughter, Joanne Costigan, who was born in April 2000.
2. As part of the review process of his carer allowance by the Secretary (the Respondent), Mr Talbot completed a claimant questionnaire on 22 March 2010, and provided to Centrelink a ‘Carer Allowance – Medical Report’ completed by Dr Maendel on 22 March 2010.
3. In Dr Maendel’s report of 22 March 2010, Miss Costigan is stated to be suffering from asthma, which is induced by exercise and associated with nocturnal symptoms. Miss Costigan is stated to need daily inhalers, has had a recent appendectomy and suffers from recurrent middle ear infections. Dr Maendel noted in his report that Miss Costigan did not suffer from any of the recognised disabilities and medical conditions as nominated in Part 3 of the Child Disability Assessment Determination 2001.
4. In his report, Dr Maendel stated Miss Costigan’s ability is age appropriate in relation to receptive and progressive language skills, feeding and mealtime skills, hygiene and grooming skills, dressing skills, social and community skills, fine motor skills, gross motor skills, as well as noting that she had no applicable behavioural issues and no special care needs.
5. This report was rated under the Child Disability Assessment Tool (CDAT), with a resultant health professional score calculated at zero. As a consequence, Mr Talbot’s carer allowance was cancelled on 27 April 2010, as a health professional score of at least one is required under the CDAT.
6. On 20 May 2010, Mr Talbot forwarded a further medical report from Dr Maendel dated 13 May 2010. This report was very similar to the earlier report, with a further comment that Mr Talbot was required to assist his daughter about three nights a week during asthma exacerbations or possibly just anxiety attacks. Dr Maendel also noted that spirometry was consistent with mild intermittent asthma attacks. This report was again assessed under CDAT, with a similar result of zero.
7. The decision to cancel the carer allowance was affirmed by an authorised review officer on 15 June 2010 and by the Social Security Appeals Tribunal on 14 July 2010.

FURTHER MATERIAL

8. In a telephone hearing Mr Talbot, assisted by Mr Moyle, described Miss Costigan’s health difficulties, which centred mainly on asthma, recurrent middle ear infection, a recent appendectomy and investigation of a thyroid disorder some two years earlier.
9. Mr Talbot detailed Miss Costigan’s satisfactory progress at school, her activity interests, with sport being disrupted by asthma on occasions, together with a need for him to assist his daughter on one or two nights a week because of asthma. This was said to be more prevalent in colder months and spring time. Mr Talbot also noted that there had recently been an acute episode of asthma which required hospital attention. Mr Talbot said that his daughter’s span of attention varied, using the example of simple cooking activities, he said she would often have to be reminded of tasks.

ISSUE

10. The issue before this Tribunal is whether Mr Talbot continued to be qualified for payment of carer allowance from 27 April 2010.

LEGISLATIVE FRAMEWORK

11. In order to qualify for carer allowance, a person who cares for a disabled child must satisfy subsection 953 of the Social Security Act 1991 (the Act), which states:

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

Single child

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

                     (a)  the 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.

12. The CDAT was devised in accordance with section 38D of the Act and is set out in the Child Disability Assessment Determination 2001 (the Determination).
13. There is no suggestion that Miss Costigan has a recognised disability for the purpose of section 953 of the Act, and it is therefore necessary for her to obtain a minimum score of 1 under the CDAT, being a greater score than 0 in the professional questionnaire, for Mr Talbot to qualify for carer allowance.

CONSIDERATION AND DETERMINATION

14. I have reviewed all the material before me and considered the oral and written material provided by Mr Talbot. I have considered whether the material provided in the professional questionnaires completed by Dr Maendel are an accurate reflection of Miss Costigan’s functional ability, behaviour and special care needs and I conclude that such is the case in terms of the Determination and the completed health professional questionnaire.
15. In such circumstances, Mr Talbot did not qualify for payment of carer allowance from 27 April 2010, as the rating calculated under the assessment tool for the health professional report was zero. As such, subsection 953(1)(c)(ii) of the Act has not been satisfied. The decision under review is affirmed.
16. I note that there have been legislative changes to section 953 of the Act since 1 July 2010, with the Disability Care Load Assessment (Child) Determination being used to determine qualification for carer allowance. This assessment considers the level of care required by the child and the level of care provided by the carer. I would suggest that Mr Talbot retest his eligibility for carer allowance under the Disability Case Load Assessment (Child) Determination and, in doing so, ensure that the particulars of his daughter’s level of care required and the level of care provided by him are fully detailed and documented.
    

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

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

Bhavana Dhanasar: Associate

Date of Hearing 25 November 2010

Date of Decision 7 December 2010

Representative for the Applicant Mr C Talbot (Self) with the assistance of Mr R Moyle

Solicitor for the Respondent Ms S Mantaring (Centrelink Legal Services)