Editors --- "Carer payment: level of care required for two disabled children" [2006] SocSecRpr 34; (2006) 8(3) Social Security Reporter, Article 11

• TAMER and SECRETARY TO THE DFACS
• Background
• The issue
• The law
• The evidence
• Discussion
• Formal decision

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Carer payment: level of care required for two disabled children

TAMER and SECRETARY TO THE DFACS

Decided: 14th June 2006 by I. Alexander

Background

Tamer received carer payment in respect of the care she provided to her daughters, M and N. On 10 January 2006 the SSAT affirmed a decision by Centrelink, made on 23 September 2005, to cancel Tamer’s carer payment. Following N’s 16thbirthday, Tamer’s carer payment was recommenced on 11 May 2006, suggesting that N was reassessed as a disabled adult requiring constant care.

The issue

This issue considered by the AAT was whether Tamer was eligible for carer payment, as determined by section 198 of theSocial Security Act 1991 (the Act), for the period from 23 September 2005 to 10 May 2006.

The law

The relevant sections of the Act, considered by the AAT, included s.198(2)(c) which states that to qualify for a carer payment, a person must personally provide constant care for two or more disabled children aged under 16. Section 198(8) determines the level of care requirement for two or more disabled children and states:

...that the Secretary must be of the opinion that the children require a level of care that is at least equivalent to the level of care required by a profoundly disabled child.

Central to Tamer’s case was whether the level of care requirement was satisfied in view of s.197(2) of the Act which states that a child is ‘profoundly disabled’ if:

(a) the child has either:

(i) a severe multiple disability; or

(ii) a severe medical condition; and

(b) the child, because of that disability or condition, needs continuous personal care for:

(i) six months or more;

...and

(c) the child’s disability or condition includes three or more of the following circumstances:

(i) the child receives all food and fluid by nasogastric or percutaneous enterogastric tube;

(ii) the child has a tracheostomy;

(iii) the child must use a ventilator for at least eight hours each day;

(iv)the child has:

(A) faecal incontinence day and night; and...

(v)the child:

(A) cannot stand without support; and...

(vi) a medical practitioner has certified in writing that the child has a terminal condition for which palliative care has replaced active treatment;

(vii) the child:

(A) requires personal care on two or more occasions between 10pm and 6am each day; and...

With reference to this section, the department’s policy requires that:

If two or more children with disabilities are seen as requiring the same level of care as a child with a profound disability... AT LEAST three of the [circumstances listed in section 197(2)(c)] must apply [between the children].

The evidence

Tamer submitted that s.197(2) of the Act was indeed satisfied given that medical evidence suggested that:

· M, a 12-year-old girl with autism, severe developmental delay and epilepsy was unable to care for herself. Additionally M required constant supervision, had limited speech, and did not respond normally to people including her mother.

· N, a 15-year-old girl suffering from leukaemia required specialist supervision. N was profoundly deaf and used sign language to communicate. N also suffered with bilateral avascular necrosis of both hips resulting in frequent pain requiring treatment including anti-inflammatory medication.

Discussion

Upon reviewing the evidence, the AAT noted that it was presented with a situation where two of three circumstances required to meet the definition of a profoundly disabled child applied between two children. As a result, the AAT noted that if departmental policy was followed strictly, Tamer would not qualify for a carer payment since the test of ‘profoundly disabled child’ was not satisfied between the two children.

The AAT commented that, in their view, the department’s policy was not necessarily the correct or preferable method to assess the equivalence of level of care. Rather, the preferable approach would be to consider the particular circumstances of both children and then to make an assessment of the total impact of their disabilities and medical conditions on the carer. In making such an assessment, the circumstances listed in s.197(2) of the Act are relevant but not exclusive (Reasons, para.14).

The AAT held that after considering ‘the whole of the evidence’ the total care provided by Tamer to her two severely disabled children was at least equivalent to the level of care required by a profoundly disabled child.

Formal decision

The AAT set aside the decision under review and substituted a decision that at 23 September 2005, Tamer was qualified for a carer payment in accordance with s.198 of the Act.

[I.T.]