Editors --- "Carer payment: profoundly disabled child" [2008] SocSecRpr 50; (2008) 10(4) Social Security Reporter, Article 16

• TOWSE and SECRETARY TO THE DFHCSIA
• Background
• The issues
• The law
• Discussion
• Formal decision

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Carer payment: profoundly disabled child

TOWSE and SECRETARY TO THE DFHCSIA

(2008/763)

Decided: 29th August 2008 by I. Alexander

Background

Towse made a claim for carer payment in relation to her son, aged 8 years old, who suffers from Autism. The claim was rejected by Centrelink both at first instance and on review, on the grounds that he did not meet the definition of a ‘profoundly disabled child’ as set out in the Social Security Act 1991 (the Act).

The SSAT decided that Towse was eligible for carer payment under s.197(2AA) of the Act. The Secretary to the DFHCSIA appealed the decision on the grounds that the child was not a ‘profoundly disabled child’ within the meaning of the Act. The DFHCSIA also contended that Towse did not qualify for carer payment on the grounds that she did not satisfy the requirements of s.198(10)of the Act.

The issues

The relevant issues in this matter were:

whether the child was a profoundly disabled child within the meaning of the Act, in particular whether the child repeatedly engaged in dangerous behaviour that was, or that gave rise to, a significant risk (whether immediate or longterm) to the child’s health or safety and that, without carer intervention, would result in the child suffering sustained tissue or bodily damage, or death; and

whether Towse provided continuous personal care to her child that severely restricted her ability to undertake paid employment.

The law

Section 197(2AA) provides:

197.(2AA) A child is a profoundly disabled child if:

the child has either:

a severe intellectual, psychiatric or behavioural disability; or

a severe intellectual, psychiatric or behavioural medical condition; and

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

6 months or more; or

if the child’s condition is terminal and the child’s life expectancy is less than 6 months–the remainder of the child’s life; and

the child is at least 6, and under 16, years of age; and

because of the child’s disability or condition, the child does one or more of the following:

repeatedly engages in dangerous behaviour that is, or that gives rise to, a significant risk (whether immediate or longterm) to the child’s health or safety and that, without carer intervention, would result in the child suffering sustained tissue or bodily damage, or death;

repeatedly engages in aggressive or violent behaviour that is, or that gives rise to, a significant risk to the health or safety of others, or that results in significant property damage, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities;

repeatedly engages in severe sexually deviant or sexually inappropriate behaviour, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities.

Section 198(10) of the Act provides that:

198.(10) If the care receiver is a profoundly disabled child within the meaning of subsection197(2AA):

the person must provide continuous personal care for the child within the meaning of paragraph (b) of that subsection; and

the provision of that care by the person must severely restrict the person’s capacity to undertake paid employment.

Discussion

The DFHCSIA conceded that the child satisfied the criteria set out in paragraphs 197(2AA)(a),(b), and (c), therefore the only issue in dispute was whether his behaviour satisfied the requirements in paragraphs197(2AA)(d) of the Act.

Towse gave evidence that her child was diagnosed with Autism when he first went to preschool and it became obvious that compared to his peers, he was developmentally delayed. He attended school daily from Monday to Friday and was placed in a special class of six children with two teachers. The evidence was that he was taken to school by school bus at 8.30am and returned home at about 4pm each day. Towse was required to be at home before school and when he returned home from school.

Towse described various examples of behaviour which she felt demonstrated her child’s need for constant supervision. She gave evidence of episodes in which he banged his head repeatedly against the wall, threw himself to the floor or threw things such as pillows and toys around the room. These episodes occurred particularly when he became frustrated, which typically occurred at least two or three times per week. Towse also gave evidence of episodes in which he touched a hot iron, opened and shut the door of a heater, and turned on the hot water tap allowing the water to flood. Towse also explained that episodes also occurred at school, and she was required to attend the school at least every two weeks and sometimes more often when his behaviour was out of control.

A child and adolescent psychiatrist also gave evidence of the child’s behaviour and diagnosis and stated that any reduction in social or emotional support and a lack of routine could cause a substantial increase in behavioural difficulties and jeopardise his development.

The AAT decided that the child was a significantly disabled child and the nature of the condition was such that he required constant care and attention. The AAT then had to consider whether he repeatedly engaged in behaviour that gave rise to a significant risk to his health or safety, thus satisfying s.197(2AA)(d)(i) of the Act.

On this question, the AAT decided that the child’s behaviour would expose him to significant risk to his health and safety without the immediate intervention of a carer, rejecting the submissions by the DFHCSIA, that the behaviour and described incidents were normal childhood behaviour. The AAT held that these submissions failed to acknowledge the nature and severity of the child’s condition, and the inherent risk of serious physical damage to a developmentally disabled child, in the context of these kinds of situations, if immediate carer intervention were not possible.

In addition, the AAT held that it would be a perverse reading of the legislation to infer that assistance was only provided to a carer after a disabled child has been damaged as a result of his behaviour. The AAT stated that there was no need for evidence of actual damage. The fact that the child had not yet sustained any significant damage was evidence of the excellent care provided by both his mother and the teachers at the school.

For the above reasons, the AAT held that the provisions in s.197(2AA) were satisfied.

The AAT next considered the provisions in s.198(10)of the Act. The AAT held that Towse provided continuous personal care. The fact that the child attended school every day was not a hindrance to the continuous care requirement. The AAT held that the assumption that the caregiver must provide personal care ‘around the clock without respite and without an opportunity to attend to necessary personal and domestic activities ‘was untenable. Furthermore, the AAT held that the child’s attendance at school was part of his therapeutic intervention and necessary for his development. Thus it could not be said that in order to qualify for carer payment, the carer must continue to provide care during this period.

The AAT held that the Act does not define ‘continuous personal care’ and the correct approach should be to identify the principal carer and then consider their role in the context of the total care situation. If the principal carer provides continuous care, for the majority of the time, and the circumstances of the total care situation are such that the primary carer continues to be the responsible guardian during periods of care provided by other people, the Act is satisfied.

In this case, the AAT held that the care that Towse provided restricted her capacity to undertake paid employment. The AAT did not agree with the submission of DFHCSIA, that she would be able to undertake paid employment while her child was at school. The AAT defined the question as not whether the carer was able to undertake employment, but whether the care she provided severely restricted her capacity to undertake paid employment.

Towse gave evidence of the fact that she was not able to complete a TAFE course because of her child’s increasing care needs, in addition to the domestic and home chores she was predominantly responsible for. The AAT put weight on the medical evidence, which showed that it was essential that the child had adequate support before and after school, otherwise behavioural difficulties could increase and his development may be jeopardised, as well as result in an increased burden of care in the future.

Formal decision

The AAT affirmed the decision of the SSAT and decided that Towse qualified for carer payment under the provisions in s.198 of the Act, and made a determination that her child was a profoundly disabled child within the meaning of s.197 of the Act.

[M.L.]