Wednesday, 10 April 2019

Sweet Sixteen - Do You Still Have Your Disability?

There is a certain regularity to life with a disability in Australia. Some stories just hit the newspapers again and again, in a sad indictment of how entrenched disability discrimination is.

Here is one such story.


Yep, you read that right. The same happens to amputees, by the way, who have to show proof their missing limb hasn’t somehow grown back…

I hear you ask, how is this possible?

As the general manager of the Department of Human Services is quoted saying in the article, it’s all to do with legislation and “…we are not able to automatically transition people to adult payments…”

So, lets have a look at the legislation.

This issue comes up where a person receives carer allowance ($64.90 a week, payed as $129.80 fortnightly) when caring for a child with disability. Obviously, proof of the disability is required, as is proof that the child is actually being cared for by the carer receiving the allowance.

But all going well, said child one day turns 16. And suddenly, carer allowance is cancelled – despite the disability still being there, and the child receiving the very same care. (This change is presumably based on the notion that 16 year old kids with disability regularly move out of the house to pursue lucrative careers and are no longer needing care, but I digress…)

Being 16, the person with the disability is now able to apply to receive a Disability pension ($391 fortnightly). The parent is able to request carer allowance – but for a person 16 or over – and needs to basically re-apply. And yes, you guessed it, what means the whole rigmarole of paperwork again, including confirming the diagnosis of the young person. This literally leads to the absurd situation that a doctor’s appointment needs to be booked to confirmed that, yes, the leg is still amputated and has not miraculously grown back, and no, despite amazing medical progress in recent years, we have not yet been able to reverse paraplegia or Down Syndrome (CRISPR-CAS9 where are you when we need you??). And then, Centrelink needs convincing that the care is still given despite the magic 16th birthday having passed.

Of course, there are solid reasons why social security payments may require reviewing regularly. There are, after all, some people who will abuse the system. And yes, people may have transitioned to the NDIS, their living and support arrangements may have changed

Yet why a smooth transition cannot be managed here is incomprehensible.

Section 953 of the Social Security Act 1991 (Cth) outlines the requirements to receive carer allowance for a child or children with disability or medical condition aged under 16 years of age and where the income test requirements are met. T

Section 954 of the Social Security Act lists the necessary qualification for carer allowance-caring for a disabled adult in a private home of both the adult and the carer. It applies to z person who is aged 16 years or over, whose disability or medical condition substantially impairs his or her capacity to perform activities of daily living. In addition, eligibility is determined by the ADAT (Adult Disability Assessment Tool), which measures the level of disability and care required by the care receiver. The carer must also meet the $250,000 family income test to qualify for carer allowance (adult).

Section 954 is the section of interest. Let’s have a look at it:

Qualification for carer allowance--caring for a disabled adult in a private home of both the adult and the carer
             (1)  A person is qualified for carer allowance for a disabled adult (the care receiver ) if: 
                     (b)  the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and 
                     (c)  the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; 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 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; and 
                      (g)  the person satisfies the carer allowance income test under section 957A. 
Note 1:       For family member see subsection 23(1). For Australian resident see section 7. 
Note 2:       For qualification for carer allowance in circumstances of hospitalisation, see section 955. 
Note 4:       For the effect of temporary cessation of care and attention on carer allowance, see section 957. 
Note 5:       For the effect of 2 people being qualified for carer allowance, see sections 964 and 965. 

Disabled adult does not qualify for carer allowance for another disabled adult
             (2)  If a person is qualified for carer allowance for a disabled adult, the disabled adult is not able to qualify for carer allowance for another disabled adult
Person cannot qualify for more than 2 carer allowances 
             (3)  A person may qualify for carer allowance under this section and/or section 954A for 2, but no more than 2, disabled adults.

I have a number of issues with this (like, why could a disabled adult parent not receive carer allowance for a dependent adult disabled child living at home is beyond me) but lets stick to the issue of transitioning from section 953 to 954 i.e. hitting the magic birthday of 16.

The solution seems relatively simple to me.

Let’s add a subsection to this section that ensures it applies to those who previously received carer allowance (under s 953) and have a confirmed permanent condition, leaving the assessment to those with conditions that are not permanent. To tidy things up, we could then introduce a section 953B (mirroring s 953A) to enable the transition.

I am sure someone used to drafting legislation can find the right words to polish what I suggested here into a working amendment…

A small adjustment.

A big impact on families.

So, today I emailed a letter to Paul Fletcher MP, the Minister for Families and Social Services, to request ad amendment to  ss 953 – 954 of the Social Security Act 1991 (Cth) to make the transition smoother for those families where a child with a permanent disability reaches their 16th birthday.

I think two relatively simple amendments are required:



1)    Amend section 954


 Current version                                                 Suggested amendment, in italics

SOCIAL SECURITY ACT 1991 - SECT 954
Qualification for carer allowance--caring for a disabled adult in a private home of both the adult and the carer
             (1)  A person is qualified for carer allowance for a disabled adult (the care receiver ) if: 
                     (a)  the care receiver is an Australian resident; and 
                     (b)  the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and 
                     (c)  the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; 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 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; and 
                     (g)  the person satisfies the carer allowance income test under section 957A. 

SOCIAL SECURITY ACT 1991 - SECT 954
Qualification for carer allowance--caring for a disabled adult in a private home of both the adult and the carer
             (1)  A person is qualified for carer allowance for a disabled adult (the care receiver ) if: 
                     (a)  the care receiver is an Australian resident; and 
                     (b)  the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and 
                     (c)  the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; or
                   (cc) the person previously received carer allowance by virtue of compliance to requirements under section 953 for the care of the same care receivers, and the disability of the care receivers has been confirmed as a permanent condition; 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 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; and 
                     (g)  the person satisfies the carer allowance income test under section 957A. 



2) – Introduce section 953B to mirror 954A


Current version                                                Suggested amendment, in italics

SOCIAL SECURITY ACT 1991 - SECT 953A
Remaining qualified for carer allowance up to 3 months after child turns 16, where child has non-permanent disability
        (1)  If: 
                (a)  a person is qualified for carer allowance under subsection 953(1) for a disabled child; and 
                (b)  the child turns 16; and 
                (c)  apart from the child turning 16, the person would remain qualified for carer allowance under that subsection for that child




then the person remains qualified for carer allowance under that subsection for that child until: 
                (d)  if the child is assessed and rated and given a score under the Adult Disability Assessment Tool before the end of the period of 3 months beginning on the day the child turned 16--the end of the day before the day the child is given that score; or 
               (e)  otherwise--the end of the period of 3 months beginning on the day the child turned 16.

Two children
        (2)  If: 
                (a)  a person is qualified for carer allowance under subsection 953(2) for 2 disabled children; and 
                (b)  on a particular day (the relevant day ), either or both of those children turn 16; and 
                (c)  apart from either or both of those children turning 16, the person would remain qualified for carer allowance under that subsection for those children






then the person remains qualified for carer allowance under that subsection for those children until: 
                (d)  if either or both of those children are assessed and rated and given a score under the Adult Disability Assessment Tool before the end of the period of 3 months beginning on the relevant day--the end of the day before the day the first such score is given to one of those children; or 
                (e)  otherwise--the end of the period of 3 months beginning on the relevant day. 

        (3)  Subsection (2) can apply only once in relation to the same 2 disabled children.


SOCIAL SECURITY ACT 1991 - SECT 953B
Remaining qualified for carer allowance after child turns 16 for care receivers of adult children with permanent disability
             (1)  If: 
                     (a)  a person is qualified for carer allowance under subsection 953(1) for a disabled child; and 
                     (b)  the child turns 16; and 
                     (c)  apart from the child turning 16, the person would remain qualified for carer allowance under that subsection for that childand
                     (d)  the disability of the child has been established as a permanent disability;

then the person remains qualified for carer allowance under that subsection for that child.


[original subsection (d) deleted]
[subsection (e) deleted]






Two children
        (2)  If: 
                (a)  a person is qualified for carer allowance under subsection 953(2) for 2 disabled children; and 
                (b)  on a particular day (the relevant day ), either or both of those children turn 16; and 
                (c)  apart from either or both of those children turning 16, the person would remain qualified for carer allowance under that subsection for those childrenand
              (d)  the disability of the children has been established as a permanent disability;
then the person remains qualified for carer allowance under subsection 954 for those children;

then the person remains qualified for carer allowance under that subsection for those children.
               


[original subsection (d) deleted
[subsection (e) deleted]





        (3)  Subsection (2) can apply only once in relation to the same 2 disabled children




Let’s see if the Minister takes this change upon himself…

Monday, 31 July 2017

It's our bridge too - the Sydney Harbour Bridge belongs to everyone

Tis the winter of our discontent, I think.

This morning, just a few weeks after the Ticketek saga, I filed another disability discrimination complaint with the Human Rights Commission, this time against the NSW Government Minister for Roads, Maritime and Freight, the Chief Executive of Roads and Maritime Services, the Chief Executive Officer Property NSW (previously the Sydney Harbour Foreshore Authority) and the Mayor, North Sydney Council.

Why, you may wonder. Well, I believe Billie has been directly discriminated against because of her disability pursuant to s 5 (1) and (2) of the Disability Discrimination Act 1992 (Cth) and indirectly discriminated against as per s 6 of the Disability Discrimination Act 1992 (Cth). As a wheelchair user, and with steps on the northern end being the only way to access the pedestrian walkway over the Sydney Harbour Bridge, she is unfairly denied access (or required to climb or crawl up the stairs, a requirement she cannot comply with).

Hang on, I hear you say, wasn’t there a lift coming? Yeah, that’s what we thought too.

This is what happened.

In March 2016, Billie and I tried to access the pedestrian walk over the Sydney Harbour Bridge on the northern end, near Kirribilli. The only access is via a set of stairs of about 60 steps.

The Sydney Harbour Bridge is one of our city’s icons; it should really have been made accessible in readiness for the 2000 Sydney Olympics and Paralympics. People in Sydney – those with disabilities, those with prams or elderly residents and visitors – have been waiting far too long to be able to access this. The NSW government knows this, and has been discussing and planning increased access for some years. Agencies involved are the NSW Office of the Minister for Roads, Maritime and Freight, Roads and Maritime Services, Property NSW (formerly the Sydney Foreshore Authority) and North Sydney Council.

I was in contact with the Physical Disability Council of NSW (PDCN), and I told them of my intention to submit a complaint of disability discrimination under the Disability Discrimination Act 1992 (Cth). However, some days later I was contacted by PDCN and informed that an announcement by the NSW government to install a lift was imminent so I held off.

On 24 July 2016, Roads Minister Duncan Gay and Minister John Ajaka stood at the bottom of the stairs in Kirribilli and announced the building of a lift. [http://www.smh.com.au/nsw/lifts-and-maybe-ramps-coming-to-the-sydney-harbour-bridge-20160724-gqcjdw.html]. Minister Ajaka said ‘Everyone, including people with disability should be able to enjoy everything NSW has to offer’. Local residents were informed about the project and geotechnical investigative work was undertaken (between 20 February 2017). [http://www.rms.nsw.gov.au/projects/sydney-inner/sydney-harbour-bridge/access-projects/access-lifts.html]

However, exactly a year later, on 24 July 2017, we were notified by the Office of the Minister for Roads, Maritime and Freight, that the Sydney Harbour Bridge project never had specific funding allocated and the project did not make it as a funded for the 2017-18 financial year. [http://www.abc.net.au/news/2017-07-25/Sydney-harbour-bridge-lift-access-not-funded-by-government/8739250?pfmredir=sm]

People with disability and their families have waited more than 10 years for access. We have waited long enough.

Despite various commitments to creating an inclusive society expressed in Disability Inclusion Plans prepared by a variety of government levels and agencies, stairs are currently the only means of access to the pedestrian walkway over our iconic Sydney Harbour Bridge.

This constitutes ongoing discrimination of people with disability and their associates.

For example, the Destination NSW Disability Inclusion plan 2016-2018 identified  ‘making buildings and facilities physically accessible’ as one of the core targets to create liveable communities. In its foreword, the Hon. John Ajaka, Minister for Disability Services, is quoted as saying ‘inclusion is not a choice – it is a right’ and stated the plan ‘maps out a path to a fully inclusive society for all people in NSW. It also has the full support and ongoing commitment of the NSW Government.’  The plan specifically noted the need for actions to increase accessibility and inclusion within the community, including ‘increasing the accessibility of public spaces including bus stops, outdoor paths of travel and footpaths, ramps, stairs, curb ramps, rest areas and accessible pedestrian signals.’

Of course, this issue does not just affect people with disability. The day Billie and I were at the bridge, there was a Korean family visiting. One of their party was an elderly lady who could not walk up the steps, so one of the men piggy backed her up the bridge. I was utterly ashamed of our city.

So a lift we need. A lift we were promised. A lift we shall get.

Because it’s our bridge too.

#EverybodysBridge
#ItsOurBridgeToo
#WeHaveWaitedLongEnough
#AcessibleHarbourBridgeNow



Photograph © John Slaytor, May 2016


Photograph (c) Heike Fabig, May 2016



UPDATE 2019

And I am pleased to announce that there is now lift access on both northern and southern side of the bridge. A wonderful result!


Thursday, 1 June 2017

Ticketek

To: Cameron Hoy, Managing Director Ticketek Australia

Dear Cameron,

I am writing to you to complain about your current system to book accessible tickets. I have three children, two of which are wheelchair users and keen Ed Sheeran fans We have been through a particularly rough time recently – so I thought tickets would be something wonderful for all of us to look forward to. Soon Wednesday 17 May, I tried, like half of Australia, to pre-book tickets for the upcoming 2018 Ed Sheeran concert at ANZ Stadium, Sydney.

Unlike the rest of Australia though, I stood very little chance.

I believe the system is discriminatory to people with disability and I intend to make a formal complaint of disability discrimination subject to s 5, 7, 8, and 24 of the Disability Discrimination Act 1992 (Cth) (‘DDA’)to the Human Rights Commissions unless you can provide with satisfactory changes to the following points by the first of July (01/07/2017).

1. The booking process

1.1. Your internet booking does not allow for the booking in the wheelchair accessible area. This is direct discrimination as per s 5 of the DDA. Depending on the venue, I can book various other specified areas online (eg standing, sitting, alcohol free) by way of a simple drop-down selection box

1.2. You have argued (on your website and most recently your Facebook page) that the reason to disallow online purchases of accessible tickets is to make sure they remain for the exclusive use of patrons with mobility issues. While I appreciate your intention to safeguard these tickets, your argument does not add up. Firstly, there is no way to verify that a caller to the Special Needs Hotline is genuinely in need of accessible tickets. Secondly, software can accommodate a tickbox in which people confirm they are in genuine need of an accessible ticket (just like agreements to terms and conditions, or age restrictions). Anyone found presenting on the day with accessible tickets and no need, can be refused entry and issued a fine. And finally, it would be relatively straightforward to configure people’s Ticketek account (which has to be created to buy tickets online) to unlock accessible tickets.

1.3. Reasonable adjustments (as outlined in s 5(2) of the DDA) have not been made Since there are no inherent difficulties to allowing the online reservation of accessible tickets, there is no possible defence as allowed under s 45 DDA (see s 45(2)(a)). The online booking needs of people with disabilities are relatively easy to accommodate with technological fixes, as other comparable services (such as online movie ticket bookings or booking in other countries) allow. Thus, any defence of “unjustifiable hardship” (as permitted under s 11 DDA) does not apply.

2. Your “Special Needs” Hotline is inherently discriminatory towards people with disabilities in general and towards people with mobility issues in particular

2.1. Apart from the hideous name, people with disabilities that have disabilities other than mobility issues do not need to use the “Special Needs” Hotline and can simply book online (in fact, deaf wheelchair users cant even access the ‘Special Needs” hotline, there is no TTY number)Most people with disability (say, vision impaired, intellectual disability) have no particular need for “special” bookings and can simply book online or using the general phone number. What you actually provide is an “accessibility hotline” which forces people who use wheelchairs for mobility into special and highly limited seating areas and booking arrangements. 

2.2. In addition, having one accessibility hotline for almost all venues and covering all States means that at peak times, the hotline is virtually impossible to contact. I rang 120 times (yes, hundred and twenty. I took a screenshot as proof) on one day when the Ed Sheeran tickets went on pre-sale, and I never got through to the endless waiting! I know many of our friends all around Australia had the same experience, and either never got through or spend more than an hour on hold and waiting. While probably unintentional, this amounts to discrimination towards wheelchair users as per s 5(1) and s 5(2) of the DDA.




3. Special seating. (I accept this issue is joint responsibility between Ticketek and the various venues, which is why I am contacting ANZ Stadium directly on this issue.)

3.1. In almost all venues, the accessible areas are separate areas. This is a form of ‘apartheid’ that would never be acceptable if applied to people of different race, gender or sexual orientation. We do not want to be segregated into special holding pens. It really is not that difficult to engineer removable the aisle seats in all the various seating areas so wheelchair users can sit in any area they please on accessible levels, be they in the case of ANZ Stadium, Category A, B, or C grandstand, or alcohol free areas.

3.2. Ticket purchases are limited to one wheelchair user and one companion. This forces people with mobility issues to separate from their friends and family, not only physically (since they have to sit in their “special” area) but also socially. In the case of our family, we have two children that are wheelchair users and one who is notMy joy at finally scoring some Ed Sheeran tickets is tempered by the sad knowledge that we cannot attend the concert as a family; one of us would either have to attend the concert on their own, seated separately from the rest of the family, or stay at home. 
This is discrimination towards people with disability (s 5 DDA) and their companions (8 and 9 DDA). Again, if there were removable aisle seats throughout venues, this could be rectified without minor adjustments.

I look forward to hearing from you before the first of July,

Heike Fabig