Case Q21

Judges: MB Hogan Ch

P Gerber M
GW Beck M

Court:
No. 3 Board of Review

Judgment date: 31 March 1983.

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Dr. P. Gerber (Member)

It is common knowledge that milk allergy in infants is one of the hereditary autosomal recessive metabolic disorders. Yet the Commissioner submits that the condition is not an ``illness'' within the meaning of sec. 159P, which provides for a rebate for ``medical expenses''. These are defined to include, inter alia, payments made to a ``legally qualified chemist [sic] in respect of an illness''. In this reference, the taxpayer alleges that one of his children suffers from acute milk allergy and that another has the same condition in a more attenuated form. In the year now under review, taxpayer spent, in all, some $304 on ISOMIL, a proprietary product only available at pharmacies and formulated to provide a nutritional equivalence for dairy protein. Although freely available, taxpayer asserts that each can was obtained on prescription. The child for which the product was prescribed was then four years of age. ISOMIL may be obtained as a Pharmaceutical Benefit for children under the age of two years after obtaining the requisite authority from the Health Department (Cth.). It attracts no benefit beyond two years, presumably because other dietary alternatives to milk are available which do not involve a soya protein isolate formula. In my opinion, nothing turns on this.

2. The only explanation I can think of why this matter was referred to a Board of Review is that the Commissioner wants a published decision, arrived at at the highest level in the administrative tier. It is therefore surprising that the Crown eschewed legal representation and neither side called evidence, factors which ensured that the Board received the minimum of assistance. Whilst a Board of Review is not strictly bound by the rules of evidence, it is unfortunate that in this case we are

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ATC 79

compelled to reach our decision aided by nothing more than common knowledge and common sense.

3. ``Illness'' is not defined in the Act. However, I do not accept that it is a term of art. Adopting a purposive construction, I find the term includes any condition marked by a pronounced deviation from the normal healthy state. If this is the correct view, ``illness'' must include any disorder of body function or systems. Indeed, for purposes of this section, I can find no substantive distinction between illness and disease. Milk allergies are well-known and not uncommon. The condition must be seen as one of the many inborn errors of metabolism, which can range from mild evocation of altered reactivity upon re-exposure to a specific protein allergant (as in this case), to such serious diseases as galactosemia and phenylketonuria (PKU). In the case of PKU, special dietary foods low in phenylalamine are available to affected babies under N.H.S., just as ISOMIL and similar products are available to affected children up to the age of two years (originally, there was no age limit, then it was reduced to eighteen months, to be raised in turn to two years after a strong objection from medical practitioners). If PKU is an ``illness'' for purposes of sec. 159P (and I have no doubt that it is), it seems to me that a milk allergy is merely a spectrum variance of the same group of disorders.

4. In this case, the Commissioner did not challenge that the child did, in fact, suffer from a milk allergy. Nor was it submitted that, at age four, the ``choice'' principle should apply on the basis that ISOMIL was no longer an essential ingredient in the child's diet. If my view of the law is correct, this would have availed the Commissioner nothing. Under subsec. (a), all a taxpayer needs to establish is that he made a payment to a pharmacist in respect of an illness. Having obtained the product at pharmacies on prescription, a Board of Review will not go behind those prescriptions and embark on a frolic of its own.

5. In fairness to the Commissioner, he relied in the main on subsec. (d) (``for therapeutic treatment administered by direction of a legally qualified medical practitioner''). It was submitted that, in order to qualify for rebate, the treatment must be ``therapeutic'', i.e. contain an element of cure. With unfeigned respect for those who maintain that view, I must confess that I am singularly unimpressed by it. If that is indeed the purpose of the subsection, the ``treatment'' of diabetes with insulin would be disqualified from rebate. That cannot be right. If one interpretation of a section leads to a nonsensical result, it must be rejected.

6. For the above reasons, I am satisfied that the taxpayer's objection should be upheld.