Patricia Taylor and Secretary, Department of Social Services
[2014] AATA 842
•10 November 2014
[2014] AATA 842
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/5313
Re
Patricia Taylor
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 10 November 2014 Place Sydney The Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review.
......................[SGD]..................................................
Ms N Isenberg, Senior Member
CATCHWORDS
INTERLOCUTORY APPLICATION – Application for extension of time to lodge application – Whether it is reasonable in all the circumstances to extend time – Reasons for delay – Merits of the application – Extension application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 29(7)
Social Security Act 1991 – ss 94; 94(2)(aa); 94(3B)
Social Security (Administration) Act 1999 – Schedule 2
CASES
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Secretary, Department of Social Security and Vonhoff (1998) 54 ALD 22
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
SECONDARY MATERIALS
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms N Isenberg, Senior Member
10 November 2014
On 25 July 2014 the Social Security Appeals Tribunal made its decision about Ms Patricia Taylor’s disability support pension. Ms Taylor disagreed with the decision and applied for review by this Tribunal. Applications for review to this Tribunal must be lodged within 28 days of receipt of the decision about which review is sought. Ms Taylor should have filed her application for review with this Tribunal by about 2 September 2014, but the application was not filed until 14 October 2014. Under s.29(7) of the Administrative Appeals Tribunal Act 1975 the Tribunal has the power to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”.
At the hearing to consider the extension of time application submissions were made by the applicant’s parents on her behalf.
Generally, to extend time the Tribunal must consider that there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305.
In deciding if it is reasonable in all the circumstances to extend time, all factors relevant to a case must be considered: per Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451.
In summary, I am required to take into account:
·The reasons for the delay.
·Whether any action other than the making of the application has been undertaken by the applicant putting the decision-maker on notice that the decision sought to be reviewed remains under contest.
·Whether there is any prejudice to the respondent by the delay.
·Whether any established practices or other persons will be unsettled by extending the time to lodge the application.
·Considerations of fairness between applicants and other similar persons.
·Whether the application has merit.
The reasons for the delay
The SSAT posted its decision to the applicant on 30 July 2014, and it was received by her on about 5 August 2014. Her application to the Tribunal was received on 14 October 2014 and consequently was about six weeks out of time.
The SSAT's covering letter informed the applicant of her right to seek a review by the AAT and clearly states: An application for review to the AAT must be lodged within 28 days of receipt of the SSAT decision. The applicant was, or should have been, aware of the 28-day time limit in lodging her application for review. The applicant’s mother said that they had read the material they received from the SSAT together.
The applicant wrote in her application as to the reason for applying for the extension of time: the decision paperwork went missing for about a month as it was required to fill in the form, we are lucky it showed up.
The applicant’s mother explained that after the SSAT’s decision had been received they were talking about appealing. They took the decision to show the applicant’s psychologist. She checked her diary and confirmed that that had occurred on 14 August 2014. That afternoon, according to the applicant’s mother’s diary, she had been called urgently to her son’s school, and it appears, the decision was forgotten. She then thought her daughter might have ‘filed’ it as things frequently go missing in their household.
The applicant’s mother said she recalled that the application for review had to be filed in 28 days and, on about the last day, phoned the Centrelink Authorised Review Officer, whose number she had retained, in a ‘blind panic’ about what to do. She left a phone message but her call was not returned.
The SSAT’s decision was located in about mid-September, wedged between the seats of the car, and she then recalled that it had last been seen when they went to the psychologist. She rang the number – presumably the Tribunal’s – and a registry staff member mailed her the relevant forms.
As to what had been done between mid-September and the lodgement date about a month later, the applicant’s mother said they had gone on holidays and taken it with them and she had hoped her daughter would complete the form then, but she did not do so. She said she wanted her daughter to personally fill out the form so the Tribunal could see the difficulty her daughter had completing such a task. Her daughter was depressed by the rejection and it may have taken her a week to complete the form. The applicant’s father doubted his daughter would go through the process of completing a fresh application and wanted to continue with the present matter instead.
I consider the explanation does not adequately address the delay. No action was taken in respect of the application for review in the fortnight before the decision was misplaced. There is no evidence that the applicant or her parents sought to obtain further copies of the 'decision paperwork' from the SSAT. Even after the decision was located there continued to be a delay in lodging the application for review. I do not accept that the applicant’s unwillingness or inability to complete the form explains the delay in lodgement in circumstances where her mother, on her behalf, was keen to have the psychologist comment, attempted to contact the ARO, and obtained the forms from the Tribunal. Her mother was well aware of the time constraints.
Was any action other than the making of the application undertaken by the applicant, putting the decision-maker on notice that the decision sought to be reviewed remains under contest?
I accept that the applicant’s mother, if she attempted to contact the ARO, may be said to have taken steps to inform Centrelink that the decision was disputed. However, I observe that this did not occur until, according to the applicant’s mother, the last day the application could be filed.
What are the merits of the applicant’s case?
I must consider whether the applicant’s case has prospects of success: per Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121.
The Applicant made her claim for DSP on 31 May 2013. Her claim is considered as at that date and in the 13 weeks following the application, i.e. until 29 August 2013 (‘the relevant period’): Schedule 2 subclause 4(1) of the Social Security (Administration) Act 1999.
The qualification criteria for DSP are set out in s.94 of the Social Security Act 1991. In order to qualify for DSP the Applicant needed to meet the following criteria during the relevant period:
·a physical, intellectual or psychiatric impairment: s.94(1)(a);
·her impairment must have been of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the ‘Impairment Tables’): s.94(1 )(b); and
·she must have had a continuing inability to work: s.94(1)(c).
Dr Marilyn Dyson, the applicant’s GP, reported that the Applicant had the following impairments: Asperger's disorder, Attention Deficit Hyperactivity Disorder (ADHD), motor delays, visual perception delays, auditory processing delays, allergic rhinitis, food intolerance and constipation.
The Respondent accepted, and I agree, that the Applicant suffered from the above impairments during the relevant period and thus satisfied s.94(1)(a) of the Act.
Dr Dyson reported the applicant’s conditions (other than allergic rhinitis, food intolerance and constipation) could together constitute a single diagnosis of Autism Spectrum Disorder (ASD). On the basis of Dr Dyson’s report dated 31 May 2013 I accept that all the ASD conditions have a common on the Applicant's ability to function, and thus pursuant to paragraphs 10(5) and 10(6) of the Impairment Tables, should be assessed under a single Table .
The applicant’s ASD is assessed under Table 7 (brain function). The Introduction to Table 7 reads "a person with Autism Spectrum Disorder who does not have a low IQ should be assessed under this Table". There is no evidence that the applicant is of low IQ. In fact she is studying at TAFE, and has worked at McDonalds for four years, as well as voluntary work at a preschool and with scouts. I agree Table 7 is the appropriate table.
The SSAT found that the ASD should be rated at 5 points under Table 7, which means the condition has a mild functional impact on the Applicant. That Table provides:
Introduction to Table 7
· Table 7 is to be used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
o a report from a specialist health practitioner (e.g. neurologist, rehabilitation physician, psychiatrist or neuropsychologist) supporting the diagnosis of conditions associated with neurological or cognitive impairment (e.g. acquired brain injury, stroke (cerebrovascular accident (CVA)), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders, chronic pain);
o results of diagnostic tests (e.g. Magnetic Resonance Imagery (MRI), Computerised (Axial) Tomography (CT) scans, Electroencephalograph (EEG));
o results of cognitive function assessments.
· The signs and symptoms of neurological or cognitive impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
· For neurological or cognitive conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
· A person with Autism Spectrum Disorder who does not have a low IQ should be assessed under this Table.
· Table 7 should not be used when a person has an impairment of intellectual function already assessed under Table 9, unless the person has an additional condition affecting neurological or cognitive function
Points Descriptors 0 23. There is no functional impact resulting from a neurological or cognitive condition.
24.
(1) The person has no significant problems with memory, attention, concentration, problem solving, visuo-spatial function, planning, decision making, comprehension, self awareness or behavioural regulation.
5 25. There is a mild functional impact resulting from a neurological or cognitive condition.
26.
(1) The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:
(a) memory;
Example: The person occasionally forgets to complete a regular task or sometimes misplaces important items.
(b) attention and concentration;
Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.
Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby
(c) problem solving;
Example 1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.
Example 2: The person shows a lack of awareness of problems in some situations.
(d) planning;
Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).
(e) decision making;
Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.
(f) comprehension.
Example: The person has some difficulty in understanding complex instructions involving multiple steps.
10 27. There is a moderate functional impact resulting from a neurological or cognitive condition.
28.
(1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(a) memory;
Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
(b) attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
(c) problem solving;
Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
(d) planning;
Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
(e) decision making;
Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.
(g) visuo-spatial function;
Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
(h) behavioural regulation;
Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
(i) self awareness.
Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
20 29. There is a severe functional impact resulting from a neurological or cognitive condition.
30.
(1) The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:
(a) memory;
Example 1: The person is unable to remember routines, regular tasks and instructions.
Example 2: The person has difficulty recalling events of the past few days.
Example 3: The person gets easily lost in unfamiliar places.
(b) attention and concentration;
Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes.
Example 2: The person is easily distracted from any task.
(c) problem solving;
Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice.
(d) planning;
Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip).
(e) decision making;
Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks.
(g) visuo-spatial function;
Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects).
(h) behavioural regulation;
Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.
(j) self awareness.
Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.
30 31. There is an extreme functional impact resulting from a neurological or cognitive condition.
32.
(1) The person needs continual assistance and supervision and has extreme difficulties in at least one of the following:
(a) memory;
Example 1: The person needs constant prompts and reminders to remember routine tasks, familiar people and places and may get lost even in familiar places if not accompanied.
Example 2: The person has difficulties remembering events that happened earlier in the day (such as what the person ate for breakfast).
(b) attention and concentration;
Example: The person is unable to concentrate on any task for more than a few minutes.
(c) problem solving;
Example: The person is unable to solve even the most basic problems (such as what to do if the kettle is empty) and needs complete assistance with problem solving.
(d) planning;
Example: The person is unable to plan and organise daily activities and needs complete assistance to organise daily routine.
(e) decision making;
Example: The person is unable to prioritise and make simple decisions and needs a guardian or other delegate to make decisions or give consent on the person’s behalf.
(f) comprehension;
Example: The person is unable to understand even simple, single step instructions and needs assistance to complete most tasks.
(g) visuo-spatial function;
Example 1: The person is unable to perform even basic visuo-spatial functions, is unable to follow spatial directions (such as ‘turn left at the corner’), or is unable to judge distance or depth which severely limits mobility.
Example 2: The person has left or right-sided neglect, that is, they are not aware of objects, people or body parts in the left or right field of vision. This means that even though the person’s eyes can see an object, the person’s brain does not register its presence.
(h) behavioural regulation;
Example: The person is frequently (every day) unable to control behaviour in a range of day to day situations and this interferes with participation in activities outside the home and requires supervision and possibly restriction to a home or institutional environment.
(j) self awareness.
Example: The person has very poor or no awareness of own limitations resulting in frequent and serious risks to self or others.
I have read the available medical evidence, particularly that of the applicant’s clinical psychologist Ms Patricia Kiely who reported on 16 June 2014 that the Applicant's presentation of ASD is in the mild range (commonly called high functioning)... I consider that the medical evidence does not indicate a rating higher than 5 points.
The available evidence was to the effect that her allergic rhinitis, food intolerance and constipation do not affect her ability to function. While Ms Kiely reported that the Applicant suffers depression, anxiety and stress, this was reported about 10 months after the expiry of the relevant period. Ms Kiely initially saw the Applicant on 20 February 2014 and the applicant’s mother asserted that this was when the diagnosis was made. There are no references to depression in the other medical evidence. Even if the diagnosis were made as early as February 2014 those additional conditions cannot be taken into account because there was no diagnosis before or during the relevant period. For a condition can be considered it must have been fully diagnosed, fully treated and stabilised, during the relevant period.
Therefore I make a preliminary finding that the applicant’s overall impairment rating is 5 impairment points. This falls short of the 20 points or more required under s.94(1)(b) of the Act for eligibility to receive DSP. Failure to meet just one of the requirements results in a failure to qualify for that pension. It is therefore not necessary for me to consider whether she has a continuing inability to work.
For completeness, I observe that pursuant to s.94(2)(aa) of the Act, where a person has not been assigned 20 points under a single impairment table, and therefore does not have a severe impairment (as defined in subsection 94(3B)), the person will be required to have actively participated in a program of support. If they have not done so, they cannot be found to have a continuing inability to work. Generally, a person must complete an 18 month program before they can be taken to have actively participated in a program of support: s.5(2) of the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011.
Centrelink’s records show that the Applicant had not participated in a program of support prior to lodging her claim for DSP. However, the evidence was that the applicant has undertaken a NSW government transition to work program which she commenced in March 2014 and which she continues to attend once a week, and this is likely to be a type of program which amounts to a program of support. However the applicant has not undertaken the program for the required 18 months, and began the program after making her claim for DSP. As the Applicant has not participated in a program of support for a period of at least 18 months in the three years prior to her claim, she does not satisfy s.94(2)(aa) of the Act and therefore does not have a continuing inability to work. Therefore, the Applicant does not satisfy s.94(1)(c) of the Act.
The evidence as to whether the Applicant had the capacity to work for at least 15 hours per week during the relevant period was equivocal. "Work" means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia, even if not within the person's locally accessible labour market: s.94(5) of the Act. The applicant has undertaken a child care course at TAFE, albeit with some difficulty which may require her repeating the subject. She has worked casually at McDonalds for four years, but her shifts have been steadily reducing such that she may only be rostered once a month, and her role is limited to cleaning. She has been doing voluntary work at a preschool, but the placement ended unsatisfactorily. She is a volunteer with cubs and scouts. Such evidence may be consistent with a finding that the applicant had a continuing inability to work for at least 15 hours per week. Her inability to work full time was acknowledged by the JCA.
I therefore conclude that as the applicant does not meet s. 94(1)(b), s.94(1)(c) or 94(2)(aa) of the Act, she cannot be successful in the substantive application.
Other considerations
The respondent made no submissions as to whether there is any prejudice to the respondent by the delay, or whether any established practices or other persons will be unsettled by extending the time to lodge the application, or as to considerations of fairness between applicants and other similar persons. These considerations weigh neither in favour nor against granting an extension of time.
CONCLUSION
Having regard to my findings above, especially in relation to the merits of the application for review, I have decided not to grant an extension of time.
DECISION
The Administrative Appeals Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ...............[SGD].........................................................
Associate
Dated 10 November 2014
Date(s) of hearing 4 November 2014 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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