Kolta and Department of Family and Community Services [1999] AATA 100 (24 February 1999)

Last Updated: 25 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 100

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/969

GENERAL ADMINISTRATIVE DIVISION )

Re ZEZAF KOLTA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member

Date 24 February 1999

Place Melbourne

Decision 1. The Tribunal sets aside the reviewable decision of the Social Security Appeals Tribunal dated 21 July 1998. 2. The Tribunal finds that during the relevant period the applicant was entitled to receipt of the Child Disability Allowance in respect of her daughter.

(Sgd.) E.A. Shanahan

Member

CATCHWORDS

SOCIAL SECURITY - Child Disability Allowance - disabled child - care and attention required being substantially more than for a child of the same age who does not have a disability - whether need for care and attention is permanent or for an extended period - effect of co-existent diseases

Social Security Act 1991 - s.952, s953, s954(1)

Amendment of s952 of the Social Security Act 1991 as of 1 July 1998 by Clause 40 of Schedule 2 of the Social Security Legislation Amendment (Parenting Allowance and other measures) Act 1997 not applicable

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

Re Houghton and Secretary, Department of Social Security (19 ) 33 ALD 289

Re Goktas and Secretary, Department of Social Security (AAT 9498, 27 May 1994, unreported)

REASONS FOR DECISION

24 February 1999 Miss E.A. Shanahan, Member

1. The applicant, Mrs Zezaf Kolta, seeks review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 21 July 1998 which affirmed the decision of a delegate of the Secretary to the Department of Family & Community Services (formerly the Department of Social Security) ("the Department") made on 1 May 1998 that the applicant was not eligible for Child Disability Allowance ("CDA"). This decision of the delegate was confirmed by an Authorised Review Officer ("ARO") on 29 May 1998. The applicant was advised on 29 May 1998 that her CDA was cancelled.

2. At the hearing before this Tribunal the applicant was self-represented and Mr Terry Baker of Centrelink represented the Department. In addition to the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), the Tribunal also took into evidence four further documents provided by the applicant. These consisted of a diary of menus and activities performed by the applicant in the care of her daughter, Chrystin (Ex. A1); a letter from Professor E. Janus of the Royal Children's Hospital dated 24 August 1998 (Ex.A2); a letter from Professor Janus of the Royal Children's Hospital dated 21 January 1999 (Ex. A3) and a letter from Dr Vanessa Morgan, Dermatology Registrar of the Royal Children's Hospital dated 5 November 1998 (Ex. A4).

3. The applicant had been in receipt of CDA for approximately five years following the diagnosis of her daughter Chrystin's diabetes mellitus in May 1993. Chrystin has required daily insulin injections since the diagnosis of her condition. On 13 March 1998 the applicant completed a CDA review form. In response to this, and in accordance with the Centrelink guidelines to the Act which state "that a child with diabetes who is 12 years of age or older is generally considered as having the capacity of managing their diabetes with minimal parental assistance, thus not requiring substantially more care and attention than a child of the same age who does not have a disability", the delegate to the Department notified Mrs Kolta of the cancellation of her CDA.

4. The applicant appealed this decision after its confirmation by the ARO, to the SSAT. The SSAT considered Chrystin's medical history but appears to have considered only the existence of diabetes and was not made aware of other health problems nor Chrystin's changed attitude to her diabetes during the past two years.

5. The applicant gave evidence to the Tribunal that Chrystin had been diagnosed as diabetic at the age of 8½. She had required insulin injections since that time and currently has two injections a day, three or occasionally four blood tests a day and one urine test a day. Mrs Kolta performs these tests and gives the insulin, although Chrystin has been taught to self-administer insulin and perform the necessary tests. She has, and will, perform these necessary tests and administer her insulin if she is absent from home overnight. However, from the age of 12 she has become increasingly unco-operative and non-compliant in controlling her diabetes. Currently Chrystin does not want her peer group or anyone to know she suffers from diabetes and whilst she can recognise when she is hypoglycaemic and self-treat, she is unaware of hyperglycaemia as she has few symptoms. Mrs Kolta states that, at times, Chyrstin's blood sugar has measured 30. The treating doctors at the Royal Children's Hospital had recommended referral to a psychiatrist but Chrystin refused to keep the appointment.

6. In answer to a question from the Tribunal, the applicant indicated that her daughter, Chrystin, had refused to attend the diabetic camps organised by the Royal Children's Hospital on an annual basis and that in the past one to two years it has been difficult to persuade her to keep her Royal Children's Hospital out-patient appointments.

7. In 1997 Chrystin was admitted to the Royal Children's Hospital for a period of two weeks for control of her blood sugar levels. She has not had any problem keeping up at school and in 1997 probably did not miss more than half a day at a time from school. In 1998 the applicant's evidence was that Chrystin had missed more than ten days of schooling. In the past twelve months Chrystin had attended the emergency department at the Royal Children's Hospital for attention to infected nails on both hands. She had not required admission or emergency department attendance for her diabetes. Chrystin attends the Royal Children's Hospital Endocrinology and Diabetes Clinic at three monthly intervals, and sees her general practitioner once a month.

8. Since birth Chrystin has had abnormalities of the growth of her fingernails and the deformity so produced has required increasing attention. She attends the Dermatology Out-patient Clinic at the Royal Children's Hospital for treatment of onycholysis of the nails. Chrystin's older sister has a similar nail problem but of lesser severity. Mrs Kolta gave evidence that she is required to "sand" the nails twice a week, and that this procedure takes one to two hours on each occasion. In addition, Chrystin attends the Royal Children's Hospital at least once a month where her nails are "sanded" using a special machine for this purpose.

9. Chrystin has suffered from pain in the right knee and occasionally the left knee for many years and up until 1996 attended the Royal Children's Hospital for physiotherapy on a regular basis. The symptoms improved but over the last six months pain in the right knee has recurred and she has been attending the Royal Children's Hospital every Monday for physiotherapy with benefit. The physiotherapy attendances have been suspended over the annual school holidays as the out-patient physiotherapy clinic is closed during that long break. Chrystin is to resume her physiotherapy in February 1999. The applicant indicated that the joint pains have been investigated and that there are radiological abnormalities in both knees. She did not know the name of the condition.

10. Chrystin also suffers from severe dental abnormalities and attends a "special dentist" at the Royal Children's Hospital. Commencing in February 1999 she has weekly appointments with the dentist for a period of six weeks. Mrs Kolta described these abnormalities as the teeth growing in the wrong direction and protruding.

11. The applicant has kept a diary of menus and activities undertaken between 31 August 1998 and 6 September 1998. These indicate that she performs the necessary blood and urine tests and administers the insulin injections on a regular basis. These activities take in the order of 45 minutes per day. The majority of time spent is in preparing meals throughout the day and supervising Chrystin's exercise program. The applicant supervises the exercise program because of the risk of her daughter becoming hypoglycaemic. This diary does not detail attendance at the Royal Children's Hospital diabetes, dental, nail care and physiotherapy departments.

12. Professor Janus' reports dated 24 August 1998 and 21 January 1999 document that Chrystin has diabetes mellitus, dystrophic nails, painful joints and severe dental abnormalities. He is of the opinion that Chrystin's diabetes control is fair rather than good. He also indicates that control of the diabetes is more difficult as a result of hormonal changes associated with puberty and that this effect does not level out until the late teens. He states "this will require gradual adjustments to her insulin dose and diet over this time period". The letter dated 5 November 1998 from Dr Vanessa Morgan, Dermatology Registrar at the Royal Children's Hospital, describes the nail abnormalities as onycholysis and that the nails are easily traumatised and lift off the nail bed. There had been a recent episode of paranychia on the right middle finger. The dermatologists at the Royal Children's Hospital were having difficulty classifying these widespread nail changes. Chrystin had been referred to the nail clinic.

13. On the basis of the applicant's evidence and the reports of the treating doctors, Chrystin Kolta suffers from insulin dependent diabetes mellitus, which is only fairly controlled, onycholysis of the nails requiring constant attention, both at the Royal Children's Hospital and at home, chronic knee pain requiring regular physiotherapy, and dental abnormalities requiring extensive dental work. Chrystin sees her general treating practitioner once a month, the diabetic clinic at the Royal Children's Hospital at least once every three months, has attended the Royal Children's Hospital on a weekly basis for physiotherapy for the past six months and, commencing in February 1999, will attend the dental clinic at the Royal Children's Hospital on a weekly basis for six weeks. In addition, having entered adolescence and following the onset of puberty she has also entered a phase of denial with respect to her diabetes and is becoming increasingly unco-operative in the management of her diabetes. This lack of co-operation is coinciding with the period when her treating doctor, Professor Janus, is of the opinion that her diabetes is likely to become more unstable.

The Applicable Legislation

14. The relevant sections of the Social Security Act 1991 ("the Act") are as follows:

"PART 2.19 - CHILD DISABILITY ALLOWANCE

Division 1 - CDA child status

Disabled Child

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

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

(b) because of that disability:

(i) the young person needs care and attention from another person on a daily basis; and

(ii) the care and attention needed by the young person is substantially more than that needed by a young person of the same age who does not have a physical, intellectual or psychiatric disability; and

(c) the young person is likely to need that care and attention permanently or for an extended period.

CDA child status - family payment requirement

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

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

.....

Note: for family payment see Part 2.17.

Division 2 - Qualification for and payability of child disability allowance

Subdivision A - Qualification

Qualification for child disability allowance

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

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

(b) 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.

Note1: for "young person" see section 5.

Note2: for "CDA child" see sections 952 and 953

Note 3: a person may continue to be qualified for child disability allowance even if paragraph (b) is not satisfied - see section 955

Note 4: If the young person is absent during part of a day but is otherwise being cared for by the person, the person receives the full rate of allowance. If the person does not provide care to the young person because the young person is away receiving education, training or treatment (but not in hospital), the person may remain qualified for the allowance (see subsection 955(4)) but the person's rate may be reduced under section 967.

Note 5: CDA may be payable to a person who is living overseas. This is because section 953 provides that a child is a CDA child of a person if the person is getting family payment for the child and section 840 provides that family payment may be payable overseas for up to 3 years for temporary absences. The child must, however, be an inhabitant of Australia or living with one (see section 835)."

15. Section 952 of the Act was amended by the Social Security Legislation Amendment (Parenting Allowance and Other Measures) Act 1997, the amendments coming into effect on 1 July 1998. The applicant's CDA was cancelled 1 May 1998 and this decision was appealed to the SSAT on 29 May 1998. Clause 40 of Schedule 2 of the Social Security Legislation Amendment (Parenting Allowance and Other Measures) Act 1997 provided that the new definition of a disabled child was not to apply to a young person in respect of whom a CDA was payable on 30 June 1998. As the applicant sought review of this decision prior to that date, the amending Act does not apply.

Application of the Act to the facts before the Tribunal

16. The respondent conceded that Chrystin Kolta is a young person who has a physical, intellectual or psychiatric disability, namely diabetes mellitus. Prior to the hearing the respondent had been unaware of the severity of the co-existent onycholysis, dental abnormalities, and joint pains. Evidence had not previously been received regarding alteration in Chrystin's attitude to her diabetes mellitus over the past two years, rejection of the need that she co-operate in managing her disease and the need for her to attend different out-patient clinics at the Royal Children's Hospital for treatment of her various disease processes.

17. On the basis of the evidence before the Tribunal, Chrystin requires substantially more care and attention than that required by a child of the same age who does not have the disabilities described and she is likely to require that care and attention for an extended period. The fact that Chrystin is non-compliant with the management of her diabetes, that her diabetes control is only fair and that Professor Janus is of the opinion that the pubertal effects are likely to make control more difficult, in combination with the requirement of the applicant to "sand" Chrystin's nails for 2-4 hours per week, as well as the need to accompany her to numerous out-patient appointments at the Royal Children's Hospital, necessitates considerably more care and attention provided to Chrystin by the applicant.

18. For these reasons, the Tribunal finds that the applicant has remained eligible for CDA since the lodgment of the review document on 13 March 1998, and that as eligibility is based on the requirement for substantially more care and attention than a child of the same age who does not have the disability, she is likely to require that care and attention for an extended period of time.

I certify that this and the seven (7) preceding pages are a true copy of the decision and reasons for decision herein of Miss E.A. Shanahan, Member

Signed: Judith Holt, Associate

Date of Hearing 28 January 1999

Date of Decision 24 February 1999

Applicant Self-represented

Respondent Mr T. Baker, Centrelink