DERRYN BURNS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2009] AATA 220
•3 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 220
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/00428
GENERAL ADMINISTRATIVE DIVISION ) Re DERRYN BURNS Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Isenberg Date3 April 2009
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant was entitled to DSP from 20 January 2003, the date of his 16th birthday. ...................[sgd]......................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment – entitlements – lodgement of application on behalf of son – claim for payment – inability to work – carer payment – Guide to the Social Security Law
LEGISLATION
Social Security Act 1991 – Schedule 1B, s 94
Social Security (Administration) Act 1999 – ss 11, 16
Social Security Act 1947CASE LAW
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 2 ALD 60
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82; 29 ALD 656
Formosa v Secretary, Department of Family and Community Services [2002] AATA 303
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13
Hudson and Department of Family and Community Services [2000] AATA 502
Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467
Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249
Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517
Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56REASONS FOR DECISION
3 April 2009 Ms N Isenberg, Senior Member BACKGROUND
1. From an early age, Derryn Burns (“Derryn”) suffered severe behavioural problems. His mother, Tracey Burns, was paid Child Disability Allowance (“CDA”) from 1993 – from the time Derryn was aged 6. Derryn’s condition was reviewed over the years and CDA was paid continuously to Ms Burns.
2. In late 2002, as Derryn approached his 16th birthday on 20 January 2003, his mother was invited to apply for Disability Support Pension (“DSP”) for him in his own right, i.e. not as her dependent child. At the same time, Ms Burns was invited to apply for payment as carer for Derryn.
3. On 17 January 2003, a claim for DSP was lodged with Centrelink at Moree. The claim form was in the name of Mrs Tracey Burns. It contained all her personal details and was signed by her. The only reference to Derryn was on the page about dependent students. Centrelink rejected Derryn’s claim for DSP. That decision was affirmed on internal review and by the Social Security Appeals Tribunal.
4. In November 2004, Ms Burns lodged a further claim form for Derryn and, as a result, DSP was granted from that time.
ISSUES
5. The relevant issues that must be considered are as follows:
·Was the document lodged on 17 January 2003 a claim made by Derryn, or made on his behalf, for DSP?
·Was Derryn qualified to receive DSP on 17 January 2003 or within 13 weeks after that date? This turns on whether as at 17 January 2003 Derryn had a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”); and, if so, whether he had a continuing inability to work as a result of the impairment because:
othe impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next two years; and either
othe impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next two years; or
osuch training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years.
LEGISLATION
6. A person who wishes to be granted a social security payment must make a claim under s 11 of the Social Security (Administration) Act 1999 (“the SSA Act”).
7. A claim must be in writing or ‘in accordance with a form approved by the Secretary’: s 16 of the SSA Act. The Guide to the Social Security Law at Ch. 8.1.1.20 sets out the requirements for a valid claim.
8. The criteria for eligibility for DSP, so far as are relevant, are set out in s 94 of the Act and are as follows:
94 Qualification for disability support pension
94(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;
…
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
…
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on‑the‑job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on‑the‑job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
CONSIDERATION OF THE EVIDENCE
Was the document lodged on 17 January 2003 a claim made by Derryn or made on his behalf for DSP?
9. The submission on behalf of the Applicant was to the effect that in lodging the form on 17 January 2003 Ms Burns intended to make a claim for DSP on Derryn’s behalf, that Centrelink was aware that the form was in relation to Derryn’s claim for DSP having regard to the context in which it was lodged and that Centrelink accepted it as such, having regard to the subsequent communications between Centrelink and Ms Burns.
10. Counsel for Derryn referred me to entries in Derryn’s Centrelink file referring to Derryn’s application, for example:
·‘[Derryn] claiming DSP’: 13 January 2003
·‘claim for DSP lodged by client’s mother’: 17 January 2003
·[enquiry by Ms Burns] regarding ‘her son’s DSP claim’: 23 April 2003
11. Ms Burns’ own Centrelink file referred to her making enquiries about her son’s entitlement to DSP; for example, on 17 December 2002. On 23 December 2002, her file records note that Centrelink sent her an application for Derryn’s possible DSP claim and a claim for carer payment for herself.
12. From the outset, though, Centrelink had some concerns about the purported application. According to Centrelink records, on 20 January 2003, there were three phone calls between Ms Burns and Centrelink officers which included discussions about the form being in her name, instead of Derryn’s, and signed by her. Ms Burns said she did not believe Derryn had the capacity to understand the forms; a view that Ms Burns confirmed in her evidence. She said she had been told by a Centrelink officer that in completing the form it was essential that the name of the claimant be the same as the signatory, and as she could not get Derryn to sign the form, she could make the application herself. This evidence was unchallenged.
13. Further, on 30 January 2003, Vicki Goodsell, Centrelink Psychologist, attended the Burns' home and attempted to assess Derryn, noting that it was in connection with the DSP claim recently submitted on his behalf by his mother.
14. Meanwhile, Ms Burns was communicating regularly and separately with Centrelink about her own claim for a Carer Allowance.
15. It was not entirely clear why Centrelink rejected the claim for DSP. The rejection letter simply stated that "We cannot pay you a disability support pension because we have not received a reply to the letter/s we sent you", but it is unclear to what this referred. In the telephone conversation of 23 April 2003, Centrelink recorded that Ms Burns was told that the rejection had most likely occurred due to the difficulties in obtaining a treating doctor’s report for Derryn. Ms Burns could not get Derryn to attend a doctor for assessment and the psychological assessment on 30 January 2003 which had been arranged by Centrelink was inconclusive. Later, Ms Burns was advised of the ‘legal requirement for a signature of [Derryn] on the claim form’. It would appear that a further six letters were sent by Centrelink that proceeded on the basis that a claim was on foot. The outstanding issues related to both obtaining medical evidence and a signature on the claim form. The letters were not reproduced in the T-documents.
16. Evidence was given by Dr Seaton, a clinical psychologist, who saw Derryn and his mother on 14 November 2008. Dr Seaton had also provided a very detailed report dated 17 February 2009, which is discussed in more detail below. Dr Seaton said that Derryn would speak with her only very briefly. To furnish a report, she wanted to consult with his mother, aunt and brother, who had accompanied him to the appointment. She furnished Derryn with a ‘consent form’. She explained it to him and he signed it – with a cross. The advocate for the Respondent suggested that this indicated that Derryn was capable of understanding and signing forms, and therefore could have submitted a claim for DSP in his own name. I do not accept this to be the case. There was a significant amount of evidence referred to in Dr Seaton’s report going back over many years which make this proposition unlikely. Of special note in this context is that Derryn had left school at age 10, had learning difficulties in all areas - especially reading - and has an IQ of 90. In any event, at the time of the consultation with Dr Seaton, he was aged nearly 22, and had, according to his mother, shown some marginal improvement in recent times. In 2003, he was a difficult and troubled 16 year-old.
17. Section 16 requires a claim to be in writing. In elaboration, the Guide sets out, as a general rule, that a claim for a payment must be:
·in writing;
·on an approved form;
·completed (preferably in ink);
·signed by the customer and, if relevant, their partner; and
·delivered to a place and/or person approved by the Secretary; or
·made in any other manner approved by the Secretary.
It also sets out that customers unable to complete a claim form because of a disability may have the form completed on their behalf by a responsible person, preferably a relative or friend, who knows of their circumstances. If a customer is unable to sign the claim form they should make a mark which is witnessed or provide verification from a medical practitioner or health professional that they are unable to sign. If another person has completed a claim, nominee arrangements should be considered.
18. Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 2 ALD 60), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86; 29 ALD 656 at 659-660.
19. These Guidelines do not, in my view, preclude an application such as was lodged on Derryn’s behalf by his mother, being a proper claim. The final criterion provides a discretion as to the manner of lodgement, providing of course, that the legislative requirements for a valid claim are met. That discretion is available to me, standing in the shoes of the decision-maker. A written application was made in accordance with s 16(1): see Formosa v Secretary, Department of Family and Community Services [2002] AATA 303. Centrelink’s submission was that the form did not even correctly record the claimant and that this was a minimum requirement. However, I accept Ms Burns’ evidence that she filled out the form in her own name because she had been told to complete it in that fashion, and that in lodging the form on 17 January 2003, she intended to make a claim for DSP on Derryn’s behalf. The form was not immediately rejected out of hand, nor was it processed as an application by Ms Burns for herself. Further, Centrelink was aware that the form was in relation to Derryn’s claim for DSP, it having invited the application in anticipation of his 16th birthday. Centrelink accepted the claim as being in respect of Derryn, as evidenced by the correspondence and discussions about it. Derryn’s learning and behavioural problems over a long period of time were well known to Centrelink and it is appropriate that the application is regarded as a valid claim notwithstanding that Derryn had failed to complete the form or sign it himself. I also accept that his limitations are likely to have prevented him completing a ‘nominee form’ appointing his mother to act on his behalf vis-à-vis Centrelink. In coming to this view, I note that in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13, albeit in respect of the Social Security Act 1947, the requirement that a claim be in writing can only work, under social security legislation, if it is accepted that a written claim may be made on behalf of a person by someone else, not necessarily having a power of attorney or other legal authority.
Did Derryn have a physical, intellectual or psychiatric impairment of 20 points or more?
20. Pursuant to s 94(1)(b) of the Act, a DSP claimant’s functional impairment point rating must be determined under the Impairment Tables. The Introduction to the Impairment Tables (“the Introduction”), in Schedule 1B of the Act, governs the way the Tables are to be applied. Paragraphs 4, 5 and 6 of the Introduction explain the extent to which adequacy of treatment and the stability of a claimant’s condition are particularly relevant considerations in the application of the Impairment Tables. According to paragraphs 4 and 6 of the Introduction, for an impairment rating to be assigned, “the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.” Assessment that a condition has been fully treated involves consideration of past, continuing, planned and “further reasonable medical treatment”: paragraph 6.
21. Centrelink contended, correctly, that Derryn did not automatically qualify for disability support pension on reaching 16 years of age (the minimum qualifying age). The submission went further: while Derryn had behavioural problems during his childhood and adolescent years, that on reaching 16 years of age, or within 13 weeks from that date, he did not have a condition which was fully diagnosed, treated and stabilised.
22. Centrelink referred to Ms Goodsell’s report of 30 January 2003. Ms Goodsell thought Derryn’s behaviour was not normal, but could be explained by a broad range of factors including: depression, Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder, Asperger’s Syndrome, Oppositional Defiant Disorder, or perhaps the result of a dysfunctional family environment.
23. Dr Seaton, assessing Derryn in 2008, considered him to be a troubled young adult with significant difficulties on a background of a history of domestic violence, a strong family history of mental health concerns, expressive language difficulties and little formal education. However, she considered his developmental, social, emotional and cognitive profile was more consistent with that of Asperger's Syndrome, with a possible secondary diagnosis of Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder and strong anger issues. Further, she was of the view that Derryn's functioning in 2003, and currently, indicates a ‘continuity of experience and functional difficulties’ through lifetime. I note too that Dr Seaton had come to her view after considering a number of reports which were also before me, that mapped Derryn’s ongoing complex condition since he was aged 5:
·Report of B Liddle (1/4/1992)
·Report of H Johnson (9/9/1993)
·Report of C Scott (6/9/1995)
·Report of A Yates (11/6/1998)
·Report of R Cracknell (16/6/1998)
·Report of V Goodseli (30/1/2003)
·Report of J Reilly (12/2/2004)
·Report of J Reilly (12/3/2004)
·Report of Dr P Mahoney (16/9/2004)
·Report of Dr L Woollard (9/12/2004)
·Report of Dr G Rolls (17/1/2005)
24. Those reports consistently paint the picture of a severely troubled child, and later, young man. There was ongoing information about extreme difficulties in social interaction, developmental problems, severe communication difficulties and anti-social behaviour. There was much evidence directed at endeavouring to precisely diagnose Derryn’s condition, which was, it seems, attributed for some time to plain bad behaviour. Ms Goodell, a psychologist who attempted to assess Derryn at the relevant time, included Asperger’s Syndrome as a possible diagnosis. Dr Seaton, who I accept from her evidence, is an expert in the diagnosis and treatment of Asperger’s syndrome, was firmly of the view that Derryn suffers from the condition. Because it is a neurological condition, he ‘was born with it’ and, as with all sufferers, his presentation can vary depending on the environment, according to Dr Seaton.
25. Even if this were not the case, I took the view that the precise ‘label’ of his condition at the relevant date was immaterial, once the full extent of his symptoms was canvassed: see Hudson and Department of Family and Community Services [2000] AATA 502. From the long history of his symptoms available in the papers, little if anything, has changed since he was a small child, although his mother thought there may currently be some marginal improvement.
26. Centrelink also contended that Derryn’s condition could not be considered to be permanent because it had not been fully treated. Dr Seaton commented on advances in research into Asperger’s Syndrome, but it remains an area of some impenetrability. She recommended some very specialised treatment: a review of medication by a psychiatrist familiar with Asperger's Syndrome in adults to assist with reducing Derryn's anxiety and anger which should also improve Derryn's ability to engage with psychotherapy; psychological assistance focused on psychoeducation regarding Asperger's Syndrome, particularly in adults; emotion management skills training (particularly anger management); training in recognizing facial and body language; and social skills and communication skills training. She also suggested a speech and language assessment and intervention to improve verbal expression, and independent living skills training, including handling money. Such intervention is very unlikely to be available near his home and he has no means of transport. There was evidence from his mother of a failed attempt to live elsewhere. Such intervention would also likely be very expensive. I do not consider Dr Seaton’s recommendations to be appropriately described as ‘treatment’, in what is a congenital neurological condition, but are more properly characterized as ‘coping mechanisms’ to minimize symptomatology.
27. Paragraph 6 of the Introduction permits a conclusion that a condition has not been fully treated if the proposed treatment is feasible and accessible and provides a reliable expectation of significant functional improvement, even if that reliable expectation is not based on a positive belief in the actual probability of the desired outcome. Such an approach has been taken in previous decisions of the Tribunal: see Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 at [31].
28. Previous decisions of the Tribunal have held that a claimant’s failure to follow treatment recommendations made by their treating medical advisers can preclude a finding that their condition has been "fully treated": Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467 (failure to take migraine medication); Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249 (failure to use contact lenses to correct vision); Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 (failure to attend recommended pain management treatment). However, so far as I can ascertain, there was no recommended treatment at all at the time of the claim, and it cannot therefore be said that Derryn had failed to undertake any treatment.
29. Because Derryn has a long history of non-compliance and distrust of doctors as a feature of his condition, it is far from clear that he would comply with optimal recommended intervention in any event. In Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358, the Federal Court stated at paragraph 23 that:
… “generally” persons will wish to pursue reasonable treatment but, exceptionally, there may be circumstance when such persons do not, ie where (i) significant functional improvement is not expected, (ii) there is a medical reason for the person not undergoing further treatment, or (iii) there is “other compelling reason” for the person not undergoing medical treatment.
30. Heerey J continued at paragraph 24 that it is not necessary for a person to show “some reason or fact external to his or her decision not to undergo the treatment in question” but that the “emphasis is on subjective good faith … in the person’s decision, however irrational it may seem.” This is an apt description of Derryn’s circumstances.
31. In Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938, this Tribunal discussed the concept of permanence under the Act and said (at [22]):
The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.
32. I find that Derryn’s condition should be considered permanent at the date of claim.
33. Dr Seaton was of the view that Derryn's anti-social behaviour alone in 2003 would meet the criteria under Table 6: Psychiatric Impairment for 20 points:
…
TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti‑social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work. …
34. In addition, she considered that in 2003 his condition would attract a rating of 20 points under Table 8: Neurological Function: Memory, problem solving, decision making abilities and comprehension criteria:
…
TWENTY Can understand speech face‑to‑face, but confusion or fatigue occurs rapidly in any group. Is unable to cope with rapid change in topic, or with complex topics and is unable to understand a series of work instructions from a supervisor or
Moderate impairment of memory: has frequent difficulty in recalling details of recent experiences; frequently misplaces objects; fails to follow through with intentions or obligations; tends to get lost more easily in unfamiliar areas. Compensation through use of aids, eg, lists or diaries is normally adequate. If restricted to familiar schedules, activities, procedures and areas, is largely independent or
Moderate impairment of problem‑solving ability and ability to concentrate: relies on accumulated knowledge. Suffers significant disadvantage in circumstances requiring complex decision‑making or non‑routine activities, ie, when past decision‑making is not directly relevant. Has reduced initiative/spontaneity, reduced ability to concentrate and/or reduced capacity for abstract thinking or
Significant perceptual problems (visual, space or time) making learning and complying with work tasks very difficult.
35. The application of either Table results in an impairment rating of 20 impairment points.
36. I therefore turn to the remaining question:
Does Derryn have a continuing inability to work because of the impairment?
37. In Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 at 525, the Tribunal described the realities of the modern workplace and the need to consider the issue of work in its context:
"When considering the issue of work in this context, the tribunal is of the view that it is the “normal” workplace against which a person's abilities are to be judged, not the workplace of the “benign employer”".
38. Relying on Hamal, the Tribunal in Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56 interpreted ‘work’ to be work that is carried out in the "open workplace" and not work that is insulated from dynamic and unpredictable demands.
39. In fact, there was no evidence whatsoever that Derryn could work at least 30 hours per week. The only evidence of any possible work-related activity was his obsessive restoration of a motor cycle, but there was no evidence that this had any application in the workplace.
40. Centrelink noted that Dr Seaton had observed that it would also be highly beneficial if Derryn could do a modified mechanical apprentice training program (preferably motorbike mechanic) once all of the identified ‘treatments’ had been completed. Such a program was thought to offer assistance in giving Derryn the opportunity to ‘practice newly learned coping strategies and skills, and to build on his natural mechanical interests and talents, which will in turn improve his self-esteem and confidence.’ This carefully modified training was to follow the detailed but highly problematic therapy the doctor had recommended. There was no evidence that such training would have been available at the relevant date. On the basis of the available medical evidence I do not consider that Derryn’s condition would, at the relevant time, have permitted his undertaking educational or vocational training or on the job training.
41. In coming to the view that Derryn was neither able to work nor able to undertake training at the relevant time, I note that, when a later claim was made for DSP in November 2004, there was no issue that Derryn met this criterion.
42. I therefore find that Derryn was, at the relevant date, qualified for DSP because he had an impairment, which is properly rated at at least 20 points under the Impairment Tables. I also find that because of the impairment, he had a continuing inability to undertake any work for at least 30 hours per week in the following two years.
DECISION
43. The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant was entitled to DSP from 20 January 2003, the date of his 16th birthday.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: .........................................[sgd].......................................
AssociateDate of Hearing 25 February 2009
Date of Decision 3 April 2009
Solicitor for the Applicant Owen Munn, Stuart Percy & Associates
Counsel for the Applicant Ms M McCarthy
Advocate for the Respondent Ken Bullock, Centrelink Legal Services
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