Murphy and Secretary, Department of Family and Community Services
[2004] AATA 1248
•5 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1248
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/518
GENERAL ADMINISTRATIVE DIVISION ) Re Miss Erin Murphy Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Ms Linda Savage Davis, Member Date 5 November 2004
Place Perth
Decision The Tribunal affirms the decision under review .
.........(sgd L Savage Davis).................
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – residential qualification – whether qualified to receive disability support pension – when applicant first had a continuing inability to work – whether applicant satisfies s 94(1)(e)(i) of the Social Security Act 1991
Social Security Act 1991 s.94
Secretary, Department of Family and Community Services v Michael (2001) FCA 1811
REASONS FOR DECISION
5 November 2004 Ms Linda Savage Davis, Member
1. This is an application by Miss Erin Murphy for a review of a decision made by the Social Security Appeals Tribunal (SSAT) on 21 November 2003, which affirmed the decisions of an Authorised Review Officer (the ARO) on 7 October 2003 and a Centrelink delegate to the Secretary, Department of Family and Community Services dated 5 June 2003, to reject Miss Murphy’s claim for Disability Support Pension (DSP).
2. At the hearing Miss Murphy (the applicant) was represented by her mother Ms Cherelyn Fowler. Mr Aaron Holt, an advocate with Centrelink represented the respondent. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents), as well as the exhibits marked A1 and A2. The respondent filed its Statement of Facts and Contentions with the Tribunal on 8 June 2004. The hearing took place on 28 June 2004 and resumed on 1 November 2004.
Background
3. The applicant was born in the United States of America on 22 April 1987. She was diagnosed with Diastrophic Dwarfism at birth. She was granted Australian citizenship by descent on 24 December 2001 and arrived in Australia on 1 January 2002. On 16 April 2003 she applied for the DSP. The claim was rejected by a Centrelink delegate on 5 June 2003 (T18/63-66). This decision was affirmed by an ARO on 7 October 2003 (T31,T32/87-95) and the SSAT on 21 November 2003 (T2/3-6). The decisions to reject the application were on the grounds that she failed to satisfy the requirements of s 94(1)(e) of the Social Security Act 1991 (the Act).
Ms Fowler
4. On behalf of the applicant Ms Fowler told the Tribunal that from the time Miss Erin Murphy (Erin) was born with Diastrophic Dwarfism, Dr Copis in the United States had told her, and she believed, that her daughter could aspire to and would be able to work. He encouraged all his patients to believe they could do anything they wanted to. Since arriving in Australia in 2002 Erin had done one and a half semesters at year 6 level, third semester 2002 in the education support unit at Armadale High School and then the final semester in Year 10 in the mainstream at Wanborough High School. She commenced Year 11 but only did about 3 weeks because she was told she could not attend mainstream classes. Whilst at Armadale High School Erin did work experience firstly in the library and front office for two weeks and also at a sheltered type workshop in Canning Vale. This was organised by the educational support unit at the school. The latter was one day a week for 4 weeks and then a few days fulltime which she did not complete due to ill health. Erin had difficulty with the latter placement because it involved stretching that hurt her back.
5. Ms Fowler said that although Erin could never hold down a job without assistance because she can not toilet, drive or defend herself she did, until seeing Mr Lannigan, an Ear, Nose and Throat surgeon in 2003, believe she would be able to undertake some work and move to a more normal life. Mr Lannigan has told them that the tracheostomy Erin has had since shortly after she was born cannot be removed. The tracheostomy requires a constant carer in case it blocks up. Without the tracheostomy Ms Fowler believes Erin could do more everyday things for herself. She indicated that perhaps Erin could go into an unassisted workplace in some capacity if the tracheostomy could be removed. She also told the Tribunal that Erin would always need some level of assistance and would need to work in some type of workplace that catered for people with disabilities.
6. Ms Fowler said Erin had been seen by Ms Denise Clarke, a Disability Officer at Centrelink.
7. In response to questions from the respondent Ms Fowler said Erin had been born with Diastrophic Dwarfism. Dr Copis in America had described Erin as the most severe case of Diastrophic Dwarfism that he had seen where the person had survived. Dr Copis had told them it may be possible to remove the tracheostomy. Investigation when Erin was 6 years old indicated it could not be removed at that time. When Erin saw Mr Lannigan in 2003 they were told it could not be removed. Mrs Fowler told the Tribunal Mr Lannigan has said he cannot testify except about his findings when he did the bronchoscopy and found the tracheostomy could not be removed. Even without the tracheostomy Ms Fowler said Erin’s ability to work was limited by her inability to toilet herself. This was because she had short arms and they were unable at this time to get any equipment to assist her. Ms Fowler said Erin has told her that now she would like to take up painting at home and attend some TAFE course. She accepts that it will be too difficult to hold down a job and get about in the community.
8. Ms Fowler said approaches to organisations like Para quad and Rocky Bay had been unsuccessful because Erin was not eligible for a carer to assist her with toileting. Ms Fowler said a carer would also be needed for the care of the tracheostomy and would need to know CPR and mouth-to-mouth resuscitation. Ms Fowler said she recently applied to the Post School Options Programme and Erin has subsequently been granted $11,300 from that programme.
9. Ms Fowler told the Tribunal she believes it is unfair that her daughter is unable to get the assistance the DSP would provide. This assistance would improve her quality of life and enable her to participate in the world to some extent like other teenage girls.
Ms Denise Clarke (by telephone)
10. Ms Denise Clarke, a Disability Officer from Centrelink, Rockingham, spoke to the Tribunal by telephone. She told the Tribunal that in March 2003 she provided information to the applicant and her mother about post school options and the disability support pension. She said at that time Erin was motivated to work and hopeful that they would get funding to assist her to do so. On Erin’s behalf she contacted a number of agencies including Good Samaritans, Rocky Bay and Para quad, all of which provided work placements for disabled people. After speaking with them she was told that because of Erin’s inability to toilet herself they would not be able to assist her unless she could provide her own carer. In May 2004 Ms Fowler told Ms Clarke that Erin was not eligible for a carer to assist with toileting. It was then decided to write formally to these organisations and having received no reply eventually Ms Fowler contacted them. She was told again that without a carer to assist with toileting they would not be able to help Erin. Ms Clarke said that the issue of Erin’s tracheostomy had not arisen. They had not even been able to get past the first issue of toileting. That alone meant that there would be no opportunities for her even in a disability supported employment situation without a carer. Apart from the disability support employers they also contacted Soundworks, which deals in placements in the open competitive workplace but with the support. Without a carer again Ms Clarke felt it was very unlikely they would be able to help.
Final Submissions
11. Ms Fowler said that Erin had always been encouraged to believe that she could anything she wanted to. In the belief she could get a job Erin had done work experience at High School. After she left school she went to Centrelink to get help with employment but that has not worked out. Ms Fowler said she accepts that the law prevents Erin from receiving the DSP but she believes it is unfair as although Erin was not born in Australia, Ms Fowler was born in Australia and grew up here before moving to America to marry. Ms Fowler said that she believed non-Australians who moved to Australia could get assistance and it seems grossly unfair to her that her daughter cannot.
12. Ms Fowler submitted that dwarfism in itself does not prevent a person from working. Many dwarfs do work. She said her daughter would be able work if she had a carer. Ms Fowler submitted that until they saw Mr Lannigan in 2003 they did not realise the tracheostomy could not be removed as a result of the scar tissue that had developed. Even so Ms Fowler said her daughter continued to believe she would be able to work up until she saw Ms Clarke. In addition Erin was too young to work prior to entering Australia. While society says it can not employ her, her daughter would still like to be employed. Ms Fowler said her dwarfism did not prevent Erin from working.
13. Mr Holt on behalf of the respondent submitted that the applicant satisfies section 94 (1) (a), (b), (c) and (d) but not subsection (e). Mr Holt referred the Tribunal to the Federal Court decision of SDFaCS v Michael (2001) FCA 1811 and in particular Drummond, J at paragraph 3 and 4. He submitted that Miss Murphy’s impairments were listed at T18/64 and it was those impairments, that is the dwarfism and tracheostomy which she had as a result of the dwarfism, which meant that Miss Murphy could not undertake 30 hours on the job training work or vocational training. He said that it was the dwarfism that caused the continuing inability to work not the tracheostomy. He said that even if the tracheostomy could be removed she would still be unable to satisfy paragraph (e) because of the dwarfism. Mr Holt submitted that no subsequent impairment had occurred since the applicant had entered Australia.
Consideration of the Issues and Findings
14. The issue before the Tribunal is whether the applicant qualifies for DSP. In reaching the correct and preferable decision I have taken into account the evidence, submissions, case law and relevant legislation. Section 94 of the Social Security Act 1991 (the Act) provides as follows;
“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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(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
(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.
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.
94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training; or
(b) if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.
94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
work means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.”
15. It is not in dispute that the applicant satisfies subsections 94(1)(a)(b)(c) and (d) of the Act. In addition a person must satisfy either s 94(1)(e)(i),(ii) or (ii) of the Act. The leading authority is Secretary, Department of Family and Community Services v Michael (2001) FCA 1811. In that case a claim for DSP had been lodged by a person who had, prior to his arrival in Australia and becoming a permanent resident, been diagnosed with autism, significant intellectual impairment, epilepsy and nocturnal enuresis. The conditions, it was submitted, that resulted in his impairment and his continuing inability to work, had therefore for the purposes of s 94(1)(c) of the Act arisen when the diagnosis was made, that is, before he was an Australian resident. Therefore he could not satisfy s 94(1)(e)(i) of the Act and his claim for DSP was rejected. This decision was set aside by the Administrative Appeals Tribunal (Michael and Secretary, Department of Family and Community Services [2001] AATA 560). On appeal to the Federal Court they summarised the submissions put as follows at paragraph 23;
“As we understand it the applicant’s submission is that one simply looks to see whether or not the relevant claimant has, at some time prior to becoming an Australian resident, satisfied subs (c) in the sense that he or she has been so impaired as to be unable to work for two years, presumably from the time at which the impairment was diagnosed or perhaps, first arose. The respondent’s submission, on the other hand , is that as the respondent would not have worked, or perhaps could not legally have worked, until his sixteenth birthday, he has no continuing inability to work until that event, by which time he was an Australian resident.”
16. In their reasons for judgement Kiefel and Dowsett JJ found no support for the respondent’s position. In regard to the applicant’s submission it pointed to the need to recognize the importance of the two year period as an element of a ‘continuing inability to work’. In allowing an appeal against that decision they said at paragraph 27;
“We favour the construction of subpar 94(1)(e)(i) which requires the decision maker to determine when the actual impairment identified for the purposes of pars 94(1)(a),(b) and (c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of par 94(1)(c). It is true that such an exercise will sometimes be difficult to perform…..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.”
17. Other possible scenarios referred to included a situation where a person suffering a continuing inability to work immediately prior to becoming an Australian resident, might, without recovering the capacity to work, suffer another impairment that by itself could be said to cause a continuing inability to work.
18. The applicant’s impairment Diastrophic Dwarfism was present at the time she became an Australian resident. The applicant’s treating doctor’s report lists the diagnosis as Diastrophic Dwarfism and the date of onset 22 April 1987. The treating doctor, Dr Alex Morse, in his report dated April 2004 describes the tracheostomy as permanent. In the section headed “impact on Ability to Function” he states “limited ability to self care; need high level of support” (T10, p47). The tracheostomy was done within 2 to 3 weeks after the applicant’s birth. Mr Lannigan advised the tracheostomy could not be removed. Mr Lannigan saw the applicant in April 2003. In his letter dated 11 March 2004 (Exhibit A1) he wrote the applicant “… has a long term tracheostomy, which at this stage there is no prospect of removing”. Dr Alex Morse in his report of April 2001, under current treatment notes “Permanent Tracheostomy” (T.10/47). Ms Fowler’s evidence was that Erin’s doctor in America said it may be possible to remove the tracheostomy. The last investigation was when Erin was 6 years old when it was decided it could not be removed. I accept that the applicant and her mother have retained the hope that the tracheostomy may one day be able to be removed. This was encouraged no doubt by Dr Copis who treated Erin in America and encouraged all his patients to believe they could do anything they wanted. That hope and philosophy of Dr Copis does not however diminish the reality of the situation in the light of the evidence. The applicant was born with the condition of diastrophic dwarfism. Her impairments that are a consequence of this condition include her shorter than normal arms and her inability to breathe with out a tracheostomy. To date it cannot be removed. There is no medical evidence that a point has ever been reached where its removal was contemplated. In addition Ms Fowler’s evidence is that Erin could not hold down a job without assistance because she cannot toilet herself or drive or defend herself.
19. In accordance with Michael (supra) I must identify for the purposes of s. 94 (1)(a)(b)&(c) of the Act when the actual impairments that resulted in the applicant’s continuing inability to work arose and more specifically whether it was present at the time at which the applicant became an Australian resident. The condition of diastrophic dwarfism, and in particular the need for the tracheostomy, was present since shortly after the applicant’s birth. It is the impairment requiring the tracheostomy that causes the applicant to have a continuing inability to work. There is no evidence that anything has changed in this regard since the applicant became an Australian resident despite the understandable hopes of both the applicant and Ms Fowler. The applicant has suffered no other impairment since becoming an Australian resident. The applicant therefore does not satisfy s 94(1)(e)(i) of the Act.
20. The applicant is also unable to satisfy s 94(1)(e) (ii) of the Act as she neither 10 years qualifying residence or an exemption. Finally the applicant could satisfy s94(1)(e)(iii) of the Act if she was born outside Australia, and at the time she first satisfied s94(1)(c) of the Act was not an Australian resident and was the dependent child of an Australian resident and became an Australian resident whilst a dependent child of an Australian resident. The applicant was born outside Australia and when she first satisfied the continuing inability to work criteria was not an Australian resident. Having found that her continuing inability to work occurred at birth her mother must have been an Australian resident at that time. Section 7(2) of the Act defines an Australian resident as being someone who resides in Australia. In forming an opinion about whether a person resides in Australia regard must be had to s 7(3) of the Act. I am satisfied that Ms Fowler was not residing in Australia as required by the Act, and so the applicant does not satisfy s 94(1)(e)(iii) of the Act.
21. Accordingly pursuant to s 43 of the Administrative Appeals Tribunal Act1975, the Tribunal affirms the decision under review.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms L Savage Davis, Member
Signed: ..............(sgd V Wong).................................
AssociateDate/s of Hearing 28 June, 1 November 2004
Date of Decision 5 November 2004
Counsel for the Applicant In person
Counsel for the Respondent Mr A Holt
Solicitor for the Respondent Service Recovery Team, Centrelink
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