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

Grover and Secretary, Department of Social Services (Social services second review) [2020] AATA 794 (14 April 2020)
Division:GENERAL DIVISION
File Number: 2019/4549
Re:Rijul Grover
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:14 April 2020
Place:Sydney

The decision under review is affirmed.
..............................[SGD]..........................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – eligibility – residence requirements – where applicant satisfied medical requirements – whether the applicant was an Australian resident at the time he first satisfied the criteria for continuing inability to work – applicant satisfied criteria at the date of his birth – residence requirements not met – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 7, 23, 94
Social Security (Administration) Act 1999 (Cth) s 42
Social Security (International Agreements) Act 1999 (Cth) s 15
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIAL
Guide to Social Policy Law, Social Security Guide, April 2020
REASONS FOR DECISION
Dr L Bygrave, Member
14 April 2020
INTRODUCTION

The applicant, Mr Rijul Grover, was born in Australia. He departed Australia at the age of nine years; he is now aged 23 years and lives in the United States of America (the USA).
On 2 July 2018, Mr Grover’s father and legal guardian, Mr Sanjeev Grover (Mr S Grover) completed a Centrelink form, ‘Claim for Australian Pension: Social Security Agreement between Australia and the USA’, for the payment of disability support pension to Mr Grover. The claim was received by Centrelink on 4 July 2018, which is the relevant date of claim. Mr S Grover also completed and signed an ‘Application for Benefits under a U.S. International Social Security Agreement’ on 6 August 2018. In this form, Mr S Grover remarked:
Rijul is a 21 year old highly autistic adult. He came to US as a 9 year old child. Due to his high disability he cannot work. Rijul does not have any income or asset.[1]
[1] Exhibit T-T6, page 154.
Centrelink, both initially and on review, rejected Mr Grover’s claim on the basis that he did not satisfy the residency requirements for disability support pension in the Social Security Act 1991 (Cth) (the Act). Mr S Grover applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 19 June 2019, the SSCSD affirmed the decision made by Centrelink.
On 26 July 2019, Mr S Grover applied for review to the General Division of the Tribunal.
The application was heard by the Tribunal on 21 February 2020. Mr S Grover and his wife, Ms Simmi Dua (Mr Grover’s mother), attended the hearing from the USA by teleconference and provided oral evidence and submissions.
RELEVANT LEGISLATION AND ISSUE
Statutory provisions relevant to this application are set out in the Act, the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Social Security (International Agreements) Act 1999 (Cth) (the International Agreements Act) and Schedule 13 to the International Agreements Act, the Agreement between the Government of Australia and the Government of the United States of America on Social Security (the Agreement).
I also have regard to the Social Security Guide, which is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]
[2] [1979] AATA 179; (1979) 2 ALD 634.
The issue for determination by the Tribunal is whether Mr Grover is eligible for disability support pension in accordance with the legislation and, in particular, whether he was an Australian resident when his continuing inability to work due to an impairment commenced.
CONSIDERATION
Qualification for disability support pension – medical requirements
To qualify for disability support pension, Mr Grover must satisfy the medical requirements in subsection 94(1) of the Act, which requires him to show he has:
(a)a physical, intellectual or psychiatric impairment; and
(b)an impairment rating of 20 or more points according to the Impairment Tables; and
(c)a continuing inability to work.
Article 2(1)(b)(i)(B) of the Agreement further provides, as regards Australia, social security law applies to disability support pension for the ‘severely disabled’. Subsection 23(4B) of the Act states that a person is ‘severely disabled’ if:
(a) a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:
(i) to work for at least the next 2 years; and
(ii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b) the person is permanently blind.
Mr Grover must satisfy these criteria on 4 July 2018 when he applied for disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Administration Act.
The Social Security Guide states that a ‘claimant whose medical evidence clearly indicates that they have an IQ of less than 70 is accepted as manifestly qualified for DSP’.[3]
[3] See section 3.6.2.20.
A clinical report by Ms Emily Strausbaugh (psychologist) dated 6 August 2018 assessed Mr Grover’s full scale IQ as 40.[4] Dr Todd Barron (paediatric neurologist) reported on 29 May 2018 that Mr Grover is unable to work due to intellectual disability and autism spectrum disorder with or without intervention.[5]
[4] Exhibit T-T11, page 247.
[5] Exhibit T-T11, page 226.
In written submissions, the Secretary conceded that Mr Grover met the qualification criteria for disability support pension in paragraphs 94(1)(a), (b) and (c) of the Act. Based on the medical evidence, I am also satisfied Mr Grover met the medical requirements for disability support pension in paragraphs 94(1)(a), (b) and (c) of the Act at the date of his claim.
Australian residence requirements for disability support pension
Mr Grover must also satisfy Australian residence requirements to qualify for disability support pension. The Social Security Guide states that ‘claimants are considered to be manifestly…qualified, when they clearly and obviously meet all the qualification criteria in [the Act] section 94’.[6] [emphasis added]
[6] See section 3.6.2.20.
Relevantly, paragraph 94(1)(e) of the Act requires that a person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c) [a continuing inability to work]; or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside of 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.
‘Australian resident’ is defined in subsection 7(2) of the Act as a person who:
(a)resides in Australia; and
(b)is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanentvisa;
(iii) a special category visaholder who is a protected SCV holder.
Note: for holder and permanent visa see subsection (1). [emphasis in original]
Immigration records show that at the date of his birth in Australia, Mr Grover was neither a permanent resident nor an Australian citizen. On 24 March 1998, Mr Grover became a permanent Australian resident when he and his parents were granted permanent (subclass 126) visas. Mr Grover subsequently became an Australian citizen on 16 October 2002. I therefore find that Mr Grover satisfies subparagraph 7(2)(b)(i) of the Act.
I now consider whether Mr Grover meets the requirements in paragraph 94(1)(e) of the Act.
Subparagraph 94(1)(e)(i) – Was Mr Grover an Australian resident at the time he first satisfied paragraph 94(1)(c)?
The medical evidence before the Tribunal is as follows:
·NSW Midwifes Data Collection discharge notes dated 6 December 1996 show Mr Grover was born at 40 weeks gestation and had an ‘Apgar (1 min) 09’ and ‘Apgar (5 min) 10’.[7]
·A report by Dr Maurice Gett (consultant paediatrician) on 6 May 1998 stated ‘Rijul is causing some concern about continued delay in his developmental milestones’.[8]
·A report by Dr Con James (consultant paediatric physician) dated 29 October 1998 recorded that he saw Mr Grover when he was 10 months of age and ‘was concerned about his gross motor developmental delay’; on review at 23 months of age, Mr Grover ‘appears to have mild global developmental delay with gross motor delay and speech delay’.[9]
·A medical and psychological report by Dr Hamda Saleh (paediatric registrar) and Ms Soraya Motala (psychologist) on 21 September 1999 summarised Mr Grover as a ‘2 years 9 months old boy who was assessed today as functioning within the borderline range of development’.[10]
·In a report dated 14 February 2000, Dr Jacqueline Small (developmental paediatrician) diagnosed Mr Grover with autism spectrum disorder, noting that he ‘continues to display features consistent with [this] diagnosis’.[11]
·A treating doctor’s report by Dr Barron on 29 May 2018 provided a diagnosis of ‘Partial idiopathic epilepsy with seizures of localised onset, not intractable, without status epilepticus…Intellectual disability…Autistic disorder’.[12] This report further noted that ‘Rijul has life-long disabilities’ and was ‘Born w/ autism and intellectual disabilities. Developed seizure disorder in 2015.’[13]
·A report by Dr Barron dated 7 May 2019 noted Mr Grover is currently under his care and has ‘a history of Autism spectrum disorder, intellectual disabilities, severe epileptic convulsions and migraine headaches.’[14]
[7] Exhibit T-T13, page 268.
[8] Exhibit T-T13, page 269.
[9] Exhibit T-T13, page 265.
[10] Exhibit T-T13, page 274.
[11] Exhibit T-T13, page 267.
[12] Exhibit T-T11, page 199.
[13] Exhibit T-T11, pages 199 and 202.
[14] Exhibit T-T14, page 278.
In a Centrelink ‘Work capacity – Customer Information’ form completed by Mr S Grover on 10 June 2018, he answered the question ‘When did these disabilities, illnesses or injuries start to make it difficult for you to work or study full-time?’ as follows:
01 / 2015 Epilepsy
Or I have had had my disabilities or illnesses since birth [box marked X] (Autism, Intellectual Disabi [sic].[15]
[15] Exhibit T-T11, page 231.
At the Tribunal hearing, Mr S Grover and Ms Dua provided extensive oral submissions, primarily relying on Mr Grover’s Apgar scores at birth, that Mr Grover was not born with autism and an intellectual disability. They further contended that it was not until 14 February 2000 that Dr Small diagnosed Mr Grover with autism spectrum disorder and this meant that, as Mr Grover was granted a permanent visa on 24 March 1998, he met the requirement of being an Australian resident at the time he first had a continuing inability to work.
I make the following findings about these submissions. First, they are contrary to the written declaration of Mr S Grover on 10 June 2018 that Mr Grover was born with autism and an intellectual disability. Second, the report of Dr Barron on 29 May 2018 also declared Mr Grover has life-long disabilities and was born with autism and intellectual disabilities. Third, weighing all the medical evidence, it is clear – particularly from Dr James’ report dated 29 October 1998 – that Mr Grover was displaying behaviour from at least 10 months of age that raised concern about his gross motor developmental delay.
Based on the extensive medical evidence, I am satisfied that it is more likely than not that Mr Grover was born with autism and intellectual disabilities. For this reason, Mr Grover first met the criteria for continuing inability to work at the date of his birth and, as he was not an Australian resident at that time, I find that he does not satisfy subparagraph 94(1)(e)(i) of the Act.
Subparagraph 94(1)(e)(ii) – Did Mr Grover have 10 years qualifying Australian residence, or a qualifying residence exemption for a disability support pension?
Mr Grover became an Australian resident on 24 March 1998, when he and his parents were granted permanent visas. Mr Grover departed Australia when he was nine years old on 8 July 2006 and has not resided in Australian since that date. He therefore does not have 10 years qualifying Australian residence.
I am also satisfied that Mr Grover does not meet the requirements for qualifying residence exemption because he does not reside in Australia and is not a refugee or a former refugee: subsection 7(6) of the Act.
I find Mr Grover does not satisfy subparagraph 94(1)(e)(ii) of the Act.
Subparagraph 94(1)(e)(iii) – Was Mr Grover born outside Australia…?
Mr Grover was born in Australia and therefore does not satisfy subparagraph 94(1)(e)(iii) of the Act.
I am satisfied Mr Grover does not satisfy the residence requirements in accordance with paragraph 94(1)(e) of the Act.
‘Payability’ of disability support pension under the Agreement
Article 9 of the Agreement provides that where a person has claimed disability support pension under the Agreement and has accumulated a period as an Australian resident that is less than the period required to qualify the person for disability support pension under the laws of Australia, providing the person has a period of ‘working life residence’ in Australia that is 12 months (of which at least six months must be continuous), any USA coverage shall be deemed only for the purposes of meeting any minimum qualifying periods for disability support pension under the laws of Australia to be a period as an Australian resident.
Section 15 of the International Agreements Act states that a person’s working life residence begins when they turn 16 years old and ends when they reach pension age.
Mr Grover departed Australia at the age of nine years and so has no working life residence in Australia. Mr S Grover further confirmed to the Tribunal that his son has never worked in the USA.
For these reasons, I find that Mr Grover is not eligible for disability support pension in accordance with the requirements in the Act or the International Agreements Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 34 (thirty- four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.................................[SGD].......................................
Associate
Dated: 14 April 2020

Date(s) of hearing: 21 February 2020

Advocate for the Applicant: S Grover

Solicitors for the Respondent: B Salaji, Services Australia

[2020] AATA 794

14 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Standing

Date(s) of hearing:	21 February 2020
Advocate for the Applicant:	S Grover
Solicitors for the Respondent:	B Salaji, Services Australia