CZBN; Secretary, Department of Social Services and (Social services second review)

[2022] AATA 51

CZBN; Secretary, Department of Social Services and (Social services second review) [2022] AATA 51 (19 January 2022)

Division:GENERAL DIVISION 

File Number:          2020/4025

Re:Secretary, Department of Social Services

APPLICANT

CZBNAnd  

RESPONDENT

DECISION

Tribunal:Member M East

Date:19 January 2022

Place:Perth

The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 4 June 2020, which set aside an earlier decision made by the Applicant’s delegate on 5 March 2020 to reject the Respondent’s claim for disability support pension, is affirmed.

...................[Sgd].....................................................

Member M East

CATCHWORDS

SOCIAL SECURITY – disability support pension – continuing inability to work – whether continuing inability first arose before becoming Australian resident – autism spectrum disorder – conflicting opinion of clinical psychologists – Reviewable Decision affirmed

LEGISLATION

Social Security Act 1991(Cth) – ss 7, 94, 94(1)(c), 94(1)(e)(i), 94(5)

Social Security (Administration) Act 1999 (Cth)

CASES

Carroll and Secretary, Department of Social Services [2015] AATA 982

Perich and Secretary, Department of Social Services [2018] AATA 963

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secretary, Department of Family and Community Services v Michael (2001) 67 ALD 321

SECONDARY MATERIALS

Department of Social Services, Guide to Social Policy Law: Social Security Guide

REASONS FOR DECISION

Member M East

19 January 2022

INTRODUCTION

1. The decision under review is a decision of Social Service & Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 4 June 2020 (the Reviewable Decision). The Reviewable Decision set aside an earlier decision made by an authorised review officer (ARO) of Services Australia (Centrelink) dated 5 March 2020 (ARO Decision), which rejected the Respondent’s claim for disability support pension (DSP) lodged on 27 May 2019.

   BACKGROUND

2. The Applicant summarised the relevant facts in the amended Statement of Issues, Facts and Contentions dated 31 August 2021.

   5. On 12 January 2015, the Respondent became a permanent resident of Australia. He was granted Australian citizenship on 25 May 2016 (Attachment A).

   6.… the Respondent lodged a claim for DSP with reference to autism spectrum disorder (ASD) (T10/132).

   7.On 22 June 2019, the Respondent’s claim for DSP was rejected. The Respondent sought review of this decision.

   8. In a decision dated 5 March 2020, an ARO affirmed the decision to reject the Respondent’s claim for DSP (T18/188). The ARO concluded that the Respondent did not meet the residency requirement for DSP (i.e., that the Respondent was not an Australian resident at the time his continuing inability to work (CITW) first occurred).

   9.On 20 April 2020, the Respondent applied to the AAT1 for review of the ARO’s decision (T19/195).

   10.The AAT1 considered the matter and issued a decision dated 4 June 2020 (T2/10). The AAT1 decided to set aside the ARO’s decision and remit the Respondent’s DSP claim to the Agency for reconsideration in accordance with the direction that the Respondent did not have a CITW when he became an Australian resident (i.e. that his CITW arose after the Respondent became an Australian resident).

   11. On 6 July 2020, the Secretary lodged an application for review of the AAT1’s decision with this Tribunal (T1/1).

   (Original emphasis.)

   TRIBUNAL PROCEEDINGS

3. The hearing was held on 1 September 2021. The Applicant was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers and the Respondent was represented by his father. The Respondent’s mother was also present during the hearing. The Respondent was provided with representation by Legal Aid for the purposes of providing submissions to the Tribunal. The Tribunal requested the parties to provide further submissions after the hearing. These were provided by the Applicant on 30 September 2021 and by the Respondent on 29 October 2021.

4. The Tribunal had the following material before it:

   ·the “T-Documents” consisting of T1-T21; pages 1-208 (Exhibit A1);

   ·the Applicant's Amended Statement of Issues, Facts and Contentions, dated 31 August 2021, along with Attachments A and B (Exhibit A2);

   ·the Respondent’s response dated 21 January 2021 (Exhibit R1);

   ·medical report by Mr Exell dated 31 July 2021 (Exhibit R2);

   ·medical report by Dr Parker dated 21 April 2021 (Exhibit R3);

   ·medical report of Mr Exell dated 15 December 2020 (Exhibit R4).

   ISSUES FOR DETERMINATION

5. The issue for consideration, in the current application, by the Tribunal is whether the Respondent was qualified for DSP when he lodged his claim on 27 May 2019, or within 13 weeks thereafter. This includes the assessment of whether the Respondent suffered from a physical, intellectual or psychiatric impairment or impairments; if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and whether the Respondent had ‘a continuing inability to work’ (CITW).[1]

   [1] Social Security Act 1991(Cth), s 94.

6. The issue, more precisely, is when the Respondent’s CITW first arose. That is, whether it arose before or after he became an Australian resident on 12 January 2015.

   RELEVANT LEGISLATION

7. The Tribunal is required to consider the provisions of the Social Security Act 1991(Cth) (the Act); and the Social Security (Administration) Act 1999 (Cth) (the Administration Act). The Tribunal is also able to have regard to the relevant policy contained in the Guide to the Social Security Law (the Guide).

8. The Tribunal, as a decision maker, will generally apply the guidance contained in the Guide unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, (644–5)).

9. Section 94 of the Act contained the qualification criteria for DSP and states in part:

   94 Qualification for disability support pension

   (1) A person is qualified for disability support pension if:

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

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)one of the following applies:

   (i)     the person has a continuing inability to work;

   (ii)      the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

   (d)the person has turned 16; and

   (da)in a case where the following apply:

   (i)     the person is under 35 years of age or is a reviewed 2008‑2011 DSP starter;

   (ii)    the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

   (iii)   if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e)the person either:

   (i)     is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)     has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)     is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)  is not an Australian resident; and

   (B)  is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea)one of the following applies:

   (i)     the person is an Australian resident;

   (ia)    the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)     the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

   (b)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (c)in all cases—either:

   (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)    if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   (Original emphasis; notes omitted.)

10. ‘Work’ is defined under s 94(5) of the Act as follows:

    work means work:

    (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)that exists in Australia, even if not within the person’s locally accessible labour market.

    (Original emphasis; notes omitted.)

11. Section 7 of the Act defines the ‘Australian Resident’ and ‘10 years qualifying residence’ as follows:

    (2)An Australian resident is a person who:

    (a)resides in Australia; and

    (b)is one of the following:

    (i)     an Australian citizen;

    (ii)      the holder of a permanent visa;

    (iii)   a special category visa holder who is a protected SCV holder.

    (5)A person has 10 years qualifying Australian residence if and only if:

    (a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or

    (b)the person has been an Australian resident during more than one period and:

    (i)     at least one of those periods is 5 years or more; and

    (ii)     the aggregate of those periods exceeds 10 years.

    (Original emphasis; notes omitted.)

12. In Secretary, Department of Family and Community Services v Michael (2001) 67 ALD 321, (Michael) the Federal Court examined the operation of s 94(1)(e)(i) of the Act, and stated that:

    [4].The literal reading of the provision gives it no work to do. It is plain that para (e) of the subsection was intended by parliament to ensure that a non-Australian resident who enters Australia with an impairment that is sufficient to satisfy s 94(1)(c)(i) will not be entitled to a disability support pension until the person has resided in Australia for the substantial period of time sufficient to amount to “10 years qualifying Australian residence” within s 94(1)(e)(ii) (unless the person, though a non-Australian resident at the time, contracted that impairment while the dependent child of an Australian resident parent and subsequently entered Australia while still so dependent (see s 94(1)(e)(iii)).

    [5].Section 94(1)(e)(i) should therefore be read as requiring the pension applicant to be an Australian resident when the person first suffers the particular impairment which is found, as at the date of determination of the pension claim, to be sufficient to prevent the person from doing any work within the 2 years immediately following that date.

    [26].The former approach may also involve an anomaly. A particular claimant may have had an impairment causing a relevant inability to work immediately prior to his or her becoming an Australian resident, but subsequently manage to obtain work as the result of one or more of the variable factors to which we have referred. He or she may then again become incapacitated by some other condition. We doubt whether parliament intended that such a person be disqualified from receiving the pension. It is not an outcome which is clearly dictated by the terms of the section. The applicant’s submission overlooks the policy of the legislation as outlined in the second reading speech, namely to encourage disabled people to overcome their incapacities.

    [27].We favour the construction of s 94(1)(e)(i) which requires the decision-maker to determine when the actual impairment identified for the purposes of s 94(1)(a), (b) and (c) was first such as to prevent the claimant from doing any work within the 2 year period identified for the purposes of s 94(1)(c). It is true that such an exercise will sometimes be difficult to perform. As was recognized by the Full Court in Raizenberg, any exercise of this kind will pose problems. However, in most cases, the decision-maker will have only to determine whether or not the impairment as it is at the relevant time was present at the time at which the claimant became an Australian resident. It is only where the condition has become more or less acute, or where one of the other variable factors to which we have referred has come into operation that the matter will become more difficult…

13. The Federal Court’s reasoning in Michael was followed by the Tribunal in Carroll and Secretary, Department of Social Services [2015] AATA 982 where the Tribunal relevantly stated at [16] that ‘to satisfy s 94(1)(e)(i) – during the relevant period, or at any time – Mr Carroll must have been an Australian resident at the time when he first satisfied s 94(1)(c)’.

    CONSIDERATION

14. The Applicant, in the closing submissions dated 30 September 2021, stated that the Respondent has the following permanent conditions:[2]

    The Respondent’s permanent conditions, namely those that are fully diagnosed, fully treated and fully stabilised, are autism spectrum disorder, with an accompanying intellectual impairment and attention deficit hyperactivity disorder. These conditions result in a rating of 30 points under Impairment Table 7 – Brain Function.

    [2] Secretary’s Closing Submissions dated 30 September 2021, [2.2(b)].

15. The key issue in dispute, as outlined above, is whether the Respondent’s CITW arose prior to him becoming an Australian resident and in particular, whether it arose during his formative years. Ms Jones-Bolla confirmed that was the issue in her opening statements and confirmed the correct test to apply was as described by the Tribunal as follows:[3]

    So, can I just clarify, for my purposes, that the test to satisfy the legislation is not the time of clinical onset, or clinical diagnosis, but – as you said – the time at which the level of functional impairment, caused by the medical condition, reaches the required threshold as defined by the Act.

    [3] Transcript, 11.

16. Ms Jones-Bolla agreed with that summary and referred the Tribunal to Michael’s case.

17. To further clarify, the issue in dispute in this matter is when the Respondent’s level of functional impairment reached the threshold level of functional impairment. This is a question that largely rests on the medical evidence as well as the probative value of the evidence provided.

    The medical evidence

18. Ms Baldacchino prepared a report dated 22 September 2020, which was admitted into evidence.[4]

    [4] Exhibit A2, Attachment B.

19. Ms Baldacchino is a Clinical Psychologist with the Health Professional Advisory Unit (HPAU). She has held a position as psychologist with the Commonwealth Public Service since 2000.[5] In her oral evidence she elaborated further:[6]

    I’m registered with the Australian Health Practitioner Regulation Agency – I’m a clinical endorsement. I’m also a member of the Australian Psychological Society, and a clinical college member there. I’ve worked, for over 21 years, for the Commonwealth public service, as a psychologist, identifying barriers to employment and recommending programs. I’ve also undertaken hundreds of IQ assessments, measure of adaptive functioning, to assist people with their claims for DSP. I’m also a member of the psychology specialist assessment interest group, which provides advice to assessment services staff, regarding test interpretation and the need for appropriate testing, particularly in relation to IQ and adaptive functioning. And I currently sit with the Health Professional Advisory Unit – the HPAU. As well as undertaking private practise work.

    [5] Ibid.

    [6] Transcript, 14.

20. Ms Baldacchino stated that based on the available evidence the Respondent presented with a CITW prior to becoming an Australian resident on 12 January 2015. She said he had been diagnosed with severe neurodevelopmental conditions which were both evidenced and diagnosed prior to him getting the Australian residency. She further said, ‘his daily support needs, comorbidities and support requirements throughout his secondary schooling clearly indicated that [the Respondent] has had a CITW for most of his life and that it was unlikely to ever change’.[7]

    [7] Exhibit A2, Attachment B.

21. Ms Baldacchino recited the medical history in her report, noting that the Respondent was diagnosed in 2012 by a multidisciplinary team of a paediatrician, speech pathologist and clinical psychologist. He had also presented with selective mutism and Attention Deficit Hyperactivity Disorder.[8]

    [8] Ibid.

22. After reviewing the medical and other reports available, Ms Baldacchino makes the following conclusion:[9]

    The DSM5 indicates that only a minority of individuals with ASD live and work independently in adulthood; those who do tend to have superior language and intellectual abilities and are able to find a niche that matches their special interests and skills. In general, individuals with lower levels of impairment may be better able to function independently. However, even these individuals may remain socially naïve and vulnerable, having difficulties organizing practical demands without aid, and are prone to anxiety and depression.

    Unfortunately [the Respondent] did not have the ‘superior language and intellectual abilities’ to fall into this minority.

    It would be unrealistically optimistic to consider that a child requiring such intensive care on a daily basis at home and at school would have had any expectation to perform independently in a work setting. One would not need to wait for such setting before confirming that [the Respondent] had a CITW.

    [9] ibid.

23. In her oral evidence, Ms Baldacchino stated that the Respondent had presented with his symptoms from his early development as a child. She went on to say:[10]

    Also, and then reviewing the information, there was nothing to indicate that he had experienced any significant - you know, clinically significant deterioration, or any other condition which would’ve - you know, significantly impacted on his adaptive functioning.

    [10] Transcript, 16.

24. Her conclusion was that the Respondent had significant adaptive functioning difficulties, both prior to and after his diagnosis, and psychological intervention. Therefore, his level of long term support requirements were ‘quite clear to be limited, long before he entered the workforce or workplace so that assessment could be made’.[11]

    [11] Ibid.

25. Finally, she described the conditions as neurodevelopmental which have an early onset but remain relatively stable. She said as a child becomes older, their skill does not become worse, but the discrepancy becomes higher (for instance, a three-year old’s ability to get dressed versus a 15-year old’s ability).[12]

    [12] Ibid 17.

26. Robyn Weinstein, speech pathologist, provided a report dated 17 April 2012. The Respondent’s mother had consulted her for the Respondent’s assessment due to her concerns regarding his lack of comprehension and expressive language, lack of socialisation, stereotypic behaviours and his selective mutism. His mother thought he was showing symptoms of Autism Spectrum Disorder. Ms Weinstein reported that the Respondent goes to school, appears to get on well with other children and demonstrates some empathy for others. He started talking around the age of 18 months and stopped talking when he was 2½ years old. He started talking again at age 3½ years after speech therapy intervention although his speech is not clear, and he mumbles. He refused to speak at kindy and would only speak at home.[13]

    [13] Exhibit A1, 111–116.

1. Further, Ms Weinstein reported that conversational skills were an area of difficulty for the Respondent, particularly with topic initiation and maintenance, eye contact and turn-taking skills. She also reported him as having a delay in the development of spoken language, not compensated for by the use of gestures, a marked impairment of the ability to initiate and sustain conversation, stereotyped and repetitive use of language/idiosyncratic language and a lack of varied, spontaneous make-believe play or social imaginative play appropriate to developmental level.[14]

   [14] Ibid.

2. On the basis of assessments conducted by Ms Weinstein, speech pathologist; Martin Exell, clinical psychologist; and Dr Parker, paediatrician, the Respondent was diagnosed with Autistic Disorder in May 2012.[15]

   [15] Ibid 117.

3. Mr Exell has treated the Respondent since 2010. In a report dated 18 September 2014, he refers to the ‘Vineland Adaptive Behaviour Scales 2’ in which the Respondent scored a composite score of 68, which is regarded as low. This was based on his parents’ reporting of his adaptive behaviour.[16]

   [16] Ibid 118.

4. Mr Exell concluded in his report that, based on his score, the Respondent has low adaptive behaviour. He reported further:[17]

   He was slightly better in his ability to engage in everyday activities but he has difficulty with socialisation. His overall score does suggest that he has delays in adaptive behaviour in addition to his diagnosis of autism and selective mutism. This is not uncommon in my experience as children with autism often have some delays in adaptive functioning although this can improve over time. I do note that he has made positive progress over the years that I have known him. He is not a behaviour problem at home or school generally and is mostly cooperative with people he is close to.

   He will continue to need extra support in a school setting and may need further support when he is older in relation to employment services.

   (Emphasis added).

   [17] Ibid.

5. In a National Disability Insurance Scheme Access Request Form dated 8 January 2018, Dr Parker, paediatrician, states that early intervention supports such as psychology, educational assistance and social training will likely benefit the Respondent by reducing the need for future support. Dr Parker identified the Respondent as requiring assistance with self-care such as showering, eating, toileting and dressing.[18]

   [18] Ibid 119–124.

6. Mr Exell provided an updated assessment report on 10 July 2019. An assessment of the Respondent’s adaptive behaviour was done by interviewing his mother. There was a reduction in his score from 68 in 2014 to 40 in 2019. Mr Exell said this is not surprising as the demands for independent functioning increases with age.[19]

   [19] Ibid 168–170

7. Mr Exell reported the Respondent as having major difficulties with communication not having developed independent verbal communication skills, nor was he able to use written communication and reading to understand and communicate with others. Mr Exell further stated that the Respondent is unable to self-care or understand how to be safe around other people. He had developed obsessive behaviours more recently with a need for routine. A break in routine would cause significant distress to him. He reported that the Respondent had basic social and relationship skills but is heavily dependent on his parents.[20]

   [20] Ibid.

8. Mr Exell concluded as follows:[21]

   [The Respondent] has severe difficulty with self care, independent living, being able to independently socialise or engage in recreational activities, has very limited social relationships outside of his family, has a significant impairment in concentration ability unless he has assistance, has unusual thinking patterns characterised by obsessive thinking patterns and high anxiety particularly if he is not in a familiar environment. This is also related to his need for order and routine. He has very limited ability to work independently. These problems reflect his severe impairment in everyday functioning.

   [21] Ibid 170.

9. A comparison of Mr Exell’s two reports reflects a deterioration in his assessment of the Respondent’s condition and future prospects between September 2014 and 2019.

10. The Job Capacity Assessor (JCA) conducted a face-to-face assessment of the Respondent on 11 December 2019. The JCA concluded the condition of Autism was fully diagnosed, treated and stabilised during the claim period of 27 May 2019 to 25 August 2019. Despite the Respondent having a CITW, the JCA said the CITW did not arise in Australia because the ‘conditions are neurodevelopmental, ie they relate to the development of his nervous system’.[22]

    [22] Ibid 173–179.

11. With all due respect to the JCA, the Tribunal considers this to be an over-simplified conclusion not supported by any medical evidence. The reports of Mr Exell and Dr Parker demonstrate the Respondent’s condition has not been static over the years, rather one that has gradually worsened particularly in the years between 2014 and 2019. Whilst the diagnosis of the condition was in 2012 and the Respondent was displaying behaviours consistent with the diagnosis from early childhood, that is quite separate to the consideration of the level of his functional impairment and when the CITW arose.

12. In this matter the Tribunal must consider when the impairment, from the Respondent’s accepted conditions, was first such as to prevent him from doing any work within a two year period. ‘Work’ for these purposes is defined under s 94(5) of the Act as at least 15 hours per week at award wages or above which exists anywhere in Australia.

13. The Applicant has referred to Mr Exell’s response when asked about the definition of work when he said, ‘work would be an activity that’s either paid or unpaid where somebody goes along and undertakes some duties for another person or works for themselves’ and said that is not the relevant test.[23] It is correct that Mr Exell did not give the precise definition of CITW because he was not asked to define ‘Work’ as per the Act. Ms Jones-Bolla’s question for Mr Exell was ‘Could you very briefly tell the tribunal what your understanding is of the term work’.[24]

    [23] Applicant’s Closing Submissions, 4 [3.10].

    [24] Transcript, 23.

14. Mr Exell answered that question correctly – the fact that he did not give a precise definition of the legislative term is not a basis upon which the Tribunal might lessen the weight it gives to his opinion.

15. Ms Jones-Bolla referred Mr Exell to his report of 15 December 2020[25] where he states, ‘there has been a more significant deterioration in his [the Respondent’s] functioning’. She asks if that is a result of the demands increasing on him as he becomes older. Mr Exell responded as follows:[26]

    That is probably fairly difficult to make a judgement on, because it could be a combination of the demands on the person, but also how they’ve actually developed over a period of time, in this case being over a five-year period. So I can’t be clear on that point.

    [25] Exhibit R4.

    [26] Transcript, 25.

16. In response to questioning by the Tribunal Mr Exell said he had consulted with the Respondent at least once per month, as a minimum, since he started treating him. He further stated that he is a clinical psychologist who deals mostly with children with disability, most of which have autism.[27]

    [27] Ibid 27.

17. Mr Exell explained to the Tribunal that there was no way of predicting how a child would be in the long term based on their level of functioning as a child. He further elaborated on the statement and said that some young children are completely non-verbal and needing intensive intervention over a long time and then will significantly improve because of those multiple interventions and support provided. On the contrary, other children with similar interventions will only improve a small amount and therefore, predicting a three-year old’s outcome is ‘incredibly difficult’.[28]

    [28] Ibid 26.

18. Mr Exell also stated that some patients will improve dramatically over the time, but others may progress and then ‘flatline’ because the demands on the patient are too great for what they are capable of. He described autism as a ‘heterogenous condition’ because not everybody meets the same criteria.[29]

    [29] Ibid.

19. Mr Exell said that in this case he could not have predicted what the Respondent’s long-term employability would be. Specifically, he said:[30]

    So he could have actually gone the other way and he could have improved, but in this case he didn’t. And we can’t pinpoint the reasons why, but some people will continue to improve and others will find it much more difficult. That’s, you know, what has occurred with [the Respondent].

    [30] Ibid.

20. The Tribunal concludes, based on Mr Exell’s evidence both written and oral, that the Respondent has had a long-term condition requiring significant intervention. With the benefit of hindsight, it is possible to make a finding that he had a CITW any time after September 2014. This, however, is a flawed conclusion. The question is whether the Respondent’s CITW arose before or after he became a permanent resident.

21. Neither Ms Baldacchino nor Mr Exell were able to specifically state when the Respondent’s CITW first arose. It was present at the time of claim so as to entitle him to payment of the benefit but for his residency requirements.

22. The Tribunal acknowledges Ms Baldacchino’s experience in the legislative scheme and her familiarity with its requirements. The Tribunal does not accept however that it should give more weight to her opinion solely on this basis. The Tribunal sees no reason to discount Mr Exell’s opinion because he works solely in a clinical setting. Nor does it accept that his opinion may be coloured by the fact that he has treated the Respondent for a number of years and could have become his advocate. Mr Exell gave no indication of being unduly involved in his client’s case such that it could affect the credibility of his opinion.

23. When questioned by both Ms Jones-Bolla and the Tribunal, Mr Exell gave clear and concise evidence supported by his clinical notes and intimate knowledge of the Respondent who he has treated regularly for many years. He stated that it was extremely difficult to ascertain when the Respondent’s CITW arose and was only able to say so with the benefit of hindsight. Having said that, he was still unable to pinpoint exactly when that time was.

24. The Applicant’s representative provided closing submissions dated 30 September 2021 in which they refer to Perich and Secretary, Department of Social Services [2018] AATA 963 which considers the relative weight of different medical opinions. In that case the two competing opinions were of a General Practitioner and Specialist Occupational Physician. The two specialties are obviously quite different. As noted by the representative, the opinion of the General Practitioner was also discounted because of possible self-reporting by the patient and minimal consultations.

25. This matter is very different in that both specialists are clinical psychologists, with Mr Exell specialising in childhood autism. Ms Baldacchino is obviously well qualified to form her opinion, however Mr Exell has the added advantage of having treated the Respondent for many years, both prior to and after his condition became permanent and he had a CITW.

26. Even though Ms Baldacchino has worked for HPAU for many years, that alone does not entitle her opinion to have more weight. The Tribunal must carefully consider the factual basis for the opinions and consider the conclusions drawn.

27. The Tribunal notes that Ms Baldacchino did not interview the Respondent or his parents. Her opinion was formed solely on a consideration and detailed analysis of the referenced documents. It does not appear that she consulted with any of the Respondent’s treating professionals.

28. Medico-legal opinions are commonly used in litigation involving physical and/or mental conditions. They are frequently prepared without interviewing or examining the claimant.  That does not lessen their evidentiary value, but it can put context to an opinion.

29. In weighing up the two opinions, the Tribunal places more weight on Mr Exell’s evidence. He has treated the Respondent regularly for many years. He presented as a well-reasoned, concise witness who gave an objective opinion. He, in no way, appeared to advocate for his patient and was very frank in describing the difficulty of precisely diagnosing when the Respondent had a CITW.

30. With the benefit of hindsight, it is clear that the Respondent’s condition did deteriorate at some point after September 2014 and before 2019. However, it was not clear from the clinical evidence in September 2014 that improvement was not possible. Mr Exell was very persuasive in his evidence that the prognosis could have gone either way with two patients having similar clinical presentations and similar interventions and treatments and then having totally different outcomes.

31. The Tribunal accepts that the Respondent’s condition had impacted his ability to function in the areas of communication, social interaction and relationship skills for many years. Ms Baldacchino has stated in her opinion that because of the Respondent’s ‘daily support needs, comorbidities and support requirements throughout his secondary schooling’, his CITW was clearly evident throughout most of his life, and this was unlikely to ever change.  She refers to his anxiety symptoms presenting as selective mutism and obsessive- compulsive disorder which have varied in intensity over the years but states that the primary autism spectrum disorder condition is so severe that it caused a CITW even without the symptoms associated with his anxiety.

32. The Tribunal is unable to draw the conclusion from Mr Exell’s reports (which have the benefit of being contemporaneous with his treatment over the years) that the Respondent had no prospect of working for the purposes of having a CITW from before he was a teenager. In fact, in 2014 Mr Exell noted the Respondent had actually improved over the years he had been seeing him. His language in his reports and also in his oral evidence gave a very clear indication that this was not a question which could be answered at that age. He agreed that looking backwards that was what happened but again, could not state when the CITW actually arose.

33. The report of 2014 says he may need support in his future employment prospects, whereas in 2019 Mr Exell clearly states the Respondent has a CITW. His oral evidence was consistent with these statements and the Tribunal is sufficiently persuaded.

34. The Applicant has also raised the argument that autism is to be treated as a ‘severe congenital abnormality’ and therefore should be treated as being present from birth. This is in accordance with the Guide where at Part 3.6.2.150 it states this is so regardless of when the disability is diagnosed.

35. The Applicant changed this submission later by email dated 31 August 2021 to read it as a ‘neurodevelopmental conditions which had its onset during the Respondent’s developmental years’. They further changed their submission to state that it impacted on his ability to function ‘well prior to the Respondent becoming an Australian resident in January 2015’.[31]

    [31] Exhibit A2, 6.

36. As this submission effectively discards the ‘severe congenital defect’ argument, the Tribunal does not think it is necessary to address it.

    CONCLUSION

37. The Tribunal is satisfied, based on the documentary and oral evidence provided in this matter that the Respondent had a CITW which arose at some time after he became a permanent resident on 12 January 2015. Whilst it is not clear when the CITW first arose, it was not present in September 2014 but was present at the date of his claim for DSP.

38. The Tribunal would also like to note in its reasons that the Respondent’s parents are clearly deeply involved in their son’s care and have done everything possible to help him assimilate into school and society. They presented as caring, hard-working parents and the Tribunal was greatly assisted by their evidence and submissions at the hearing.

39. By affirming the decision under review, it means that the decision of AAT1 stands and the Respondent is entitled to receive his DSP.

    DECISION

40. The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 4 June 2020, which set aside an earlier decision made by the Applicant’s delegate on 5 March 2020 to reject the Respondent’s claim for disability support pension, is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member M East

....................[Sgd]....................................................

Associate

Dated: 19 January 2022

Date of hearing:	01 September 2021
Counsel for the Applicant:	Ms Daphne Jones-Bolla
Advocate for the Respondent:	Respondent’s father