Re Crossland and Secretary, Department of Family and Community Services
[2004] AATA 864
•18 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 864
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/107
GENERAL ADMINISTRATIVE DIVISION ) Re JENNIFER LEANNE CROSSLAND Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Dr P A Staer, MemberDate18 August 2004
PlacePerth
Decision The Tribunal affirms the decision under review. .............(sgd S D Hotop).....................
Deputy President
CATCHWORDS
SOCIAL SECURITY – disability support pension (DSP) – applicant suffers from profound congenital deafness – applicant granted DSP in 1996 when 16 years of age – applicant’s DSP cancelled on 7 November 2002 – applicant has physical impairment of 60 points under Impairment Tables – applicant’s impairment of itself insufficient to prevent her from doing any work within next 2 years – applicant does not have continuing inability to work – decision affirmed.
Social Security Act 1991 (Cth), s 94
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Re Secretary, Department of Social Security and Chin (1998) 52 ALD 337
Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572
REASONS FOR DECISION
18 August 2004 Associate Professor S D Hotop, Deputy President
Dr P A Staer, MemberIntroduction
1. Jennifer Leanne Crossland (“the applicant”) has applied to this Tribunal for review of a decision of the Social Security Appeals Tribunal (“SSAT”), dated 14 February 2003, which affirmed a decision of an Authorised Review Officer (“ARO”) of Centrelink which had, in turn, affirmed a decision of an officer of Centrelink that the applicant’s Disability Support Pension (“DSP”) be cancelled, with effect from 19 December 2002.
2. At the hearing the applicant was represented by Ms G Archer, Principal Counsel, Legal Aid WA, and the Secretary to the Department of Family and Community Services (“the respondent”) was represented by Ms R Bradley, a Centrelink advocate. The Tribunal had before it the documents (“T documents”, T1-T16) lodged on behalf of the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and the following exhibits tendered in evidence by the applicant (A1-A9) and by the respondent (R1-R2):
A1: report of Dr Anthony Barr, dated 12 March 2004;
A2: report of Dr Harry Blackmore, dated 20 March 2004;
A3: report of Dr Carmela Connor, dated 23 February 2004;
A4: report of Ms Kym Elliott, dated 8 March 2004;
A5: letter from Ms Sally Vaughan, dated 10 February 2004;
A6: report of Ms Nichola Webb, dated 2 February 2004;
A7: statement of James Leslie Crossland, dated 23 March 2004;
A8: statement of the applicant, dated 23 March 2004;
A9:academic record of the applicant in the Bachelor of Communications degree course at Edith Cowan University, dated 20 April 2004;
R1:report of Dr A L Barr, dated 2 May 2003;
R2:Second Reading Speech in the House of Representatives by the Hon Janice Crosio MP, Parliamentary Secretary to the Minister for Social Security, representing the Minister for Social Security, in relation to the Social Security Legislation Amendment Bill (No 1) 1995.
The applicant gave oral evidence. Ms Nola Officer, a notetaker, was also in attendance for the purpose of making a written record of the proceedings for the information of the applicant.
The Factual Background
3. The relevant background facts, which are not in dispute and which are found by the Tribunal on the basis of the T documents, are as follows.
4. The applicant, who was born on 16 February 1980, suffers from profound congenital deafness.
5. The applicant was granted DSP in 1996, when she was aged 16 years, and continued to received DSP until 19 December 2002.
6. On 13 August 2002 a DSP Medical Review form was issued by Centrelink to the applicant for completion by her (Section A) and by her treating doctor (Section B). Section B of that form was completed by Dr Anthony Barr on 27 August 2002. Dr Barr confirmed that the applicant, whom he had been treating since 1985, has suffered since her birth from congenital deafness and that that condition is long term, stable and constant. In answer to the question, “When is the patient likely to be able to return to any kind of full time work for at least 30 hours per week?”, Dr Barr marked the box specifying the longest period, namely, “more than 2 years”. In answer to the question, “Is the patient likely to be able to do any work for at least 8 hours per week within the next two years?”, Dr Barr marked the “No” box. Finally, in answer to the question, “Is the patient likely to benefit from training, education or rehabilitation to the extent of being able to work at least 8 hours per week within the next two years?”, Dr Barr marked the “Yes” box and added “at university”. (T7)
7. On 1 October 2002 the applicant was referred by Centrelink to Dr N Street of Health Services Australia Ltd (“HSA”) for a medical assessment for the purpose of a DSP review. Dr Street examined the applicant on 25 October 2002 and completed a Centrelink Medical Assessment Report form in which he confirmed that the applicant was suffering from congenital deafness and that that condition was permanent. He assessed the applicant’s work-related impairment rating as 60 points in accordance with tables 9 and 12 of the Impairment Tables in Schedule 1B to the Social Security Act 1991 (Cth) (“the Act”). Dr Street noted that the applicant was presently a full-time student and opined that she was presently fit for full-time work or study. In answer to questions regarding training, Dr Street opined that:
·the applicant’s medical condition did not prevent her from undertaking or attending any training;
·the applicant could benefit from educational training because “her long-term employment prospects would be best served by completion of her tertiary studies”.
Dr Street attached a report as follows:
“Whole Person Assessment
Ms Crossland is a 22 year old single woman who lives with her parents. She has been on the DSP since she turned 16. Her medical problem is that of congenital deafness. She had a cochlear implant into her right ear in 1990. She now hears reasonably well with the assistance of a hearing aid but relies on lip reading to a certain extent. She has an associated mild speech impairment which causes some diminution in communication speed.
In relation to her work ability, she would not manage jobs which require high communication demands or public contact but could work in open employment in a range of occupations. She is currently studying on a full time basis and is in the 3rd Year of a university course (Bachelor of Communications). Her long term employment prospects would be best served by completion of her tertiary studies. She is concerned that if her DSP is discontinued, she would be unable to afford Australian Hearing Services expenses.”
(T8)
8. By letter dated 7 November 2002 the applicant was notified by a Centrelink officer that her DSP had been cancelled, with effect from the payday on 19 December 2002, on the ground that she was no longer qualified for it because the HSA medical assessment of 25 October 2002 showed that she was presently able to work full time for at least 30 hours per week. (T9)
9. On 19 November 2002 the applicant requested Centrelink to review the officer’s decision of 7 November 2002. In support of that request she provided a report from Dr Barr, dated 15 November 2002, as follows:
“I have been approached by Mr James Crossland, Jennifer’s father and acting as her advocate, to comment on her medical history/condition in order to provide detail necessary to resolve issues relating to Jennifer’s Disability Support Pension.
Jennifer suffers with profound congenital deafness. The condition was diagnosed at age one and the audiogram produced by the then National Acoustics Laboratory (NAL), now known as the Australian Hearing Centre, in Wollongong NSW showed typical ‘corner audiogram’ level of profound condition at the extreme end of the range. Jennifer, as a one year old, showed nil response to auditory signals of at least 110db range delivered by headphones.
She was immediately fitted with hearing aids, binaural, of the most powerful available at the time by NAL and commenced intense auditory training at the Shepherd Centre in Sydney NSW from age 13 months. Her parents report that this training, whilst beneficial and with good progress, left them with no doubt that Jennifer’s speech and language development would be seriously delayed at best but more likely, highly deficient. Jennifer’s reading age now would be that of a twelve year old child albeit that she manages to operate in the adult range to a limited extent.
At age 10, Jennifer was fitted with a Cochlear Implant after extensive testing for suitability at Curtin University Speech and Hearing Department under Dr Ron Wilde. She was considered a marginal success risk due to her age but, due to the extreme level of her deafness, the procedure was carried out in the hope of improved gross auditory responses typical of environmental sound such as traffic, door knocking, dog barking etc. In brief, better to have some auditory responses than none at all.
A long period of processor setting, (part of the implant equipment), followed at Curtin. This was followed up with continued training through the Speech and Hearing Centre for Deaf Children at Wembley. Jennifer has received high levels of intervention in the form of specialised teachers and note takers right through her schooling years including High School where she received weekly visits by a Teacher of the Deaf as well as having note takers in most classes. Jennifer is now at Edith Cowan University where she continues to receive support in the form of note takers in lectures and is closely monitored by the Equity Officer, Marie Kormondy.
The Cochlear Implant has been very helpful in providing gross auditory input as described above, however, it must be emphasised that Jennifer’s ability to process auditory stimuli is still seriously less than normal and will not improve. This is evidenced by the fact that she still requires note takers at university where sitting in the front row would probably suffice if she could manage without help. Jennifer is able to carry out a face to face conversation to a limited extent. This is aided by her excellent lip reading skills and by contextual insertion which she has developed to something of an art form. Accurate communicative transfer at all times is out of the question.
I have read the letter Jennifer has received from … Centrelink … where she has been notified of the intention to stop her Disability Support Pension. In my opinion, this will cause considerable hardship to Jennifer and seriously impair the probability of success at University. Jennifer’s parents have suggested to me that her tertiary training gives her, by far, the highest likelihood of full time employment. I agree with this assumption. With the exception of menial work such as encountered in a sheltered workshop, I do not agree with [Centrelink’s] suggestion that Jennifer could work full-time now. Jennifer has been registered with DeafNet employment agency for some time for part-time work to support herself through University but with nil success.
Jennifer would not be able to carry out normal expected duties such as answering the telephone, with the exception of a TTY. She would achieve limited success with face to face situations but most certainly would experience a high level of misinterpretation. She differs from normal hearing students in that she is unable to get part-time work at all the normal venues and therefore is disadvantaged by this. At present, she used the pension to buy petrol for the vehicle her parents provide, buys her own text books and other costs associated with the University as well as her personal and social needs such as clothing. In addition, without a pension and health card, she would have to start buying her own batteries for her Cochlear Implant, which has a high battery requirement. These batteries are presently supplied by Australian Hearing Services.
Her disability is still profound deafness. She is unable to compete on an equal basis with other people her age and the prognosis for the rest of her life is little or no change including with expected improvements in technology. I wondered whether she would qualify for a TPI pension but this is not her intention. She prefers to look forward to self sufficiency.
…”
(T11, pp 51-52)
10. On 26 November 2002 Dr N Street of HSA provided a further report as follows:
“Whole Person Assessment
Ms Crossland is a 22 year old single woman who lives with her parents. She has been on the DSP since she turned 16. Her medical problem is that of congenital deafness. She has had a cochlear implant into her right ear in 1990. I previously examined her on 05.10.02 (sic). Please refer to my previous report. She has subsequently submitted a further report from her GP (Dr A Barr). There is a report on file from Dr Barr dated 15.11.02. Having read Dr Barr’s report I see no reason to alter my previously assigned impairment rating or work ability recommendations. I would however strongly reiterate my previous statement ‘her long term employment prospects would be best served by completion of her tertiary studies’. I hope this situation can be satisfactorily resolved.”
(T11, p49) In an accompanying Centrelink Medical Assessment Report form dated 26 November 2002, Dr Street indicated that the applicant was presently capable of doing work “without any intervention programs” (such as vocational or educational training) for at least 30 hours per week and he recorded his suggestion of suitable work in this category as follows:
“office cleaner – could do this with minimal training”.
Dr Street has also indicated that the applicant would, within 6 months, have the capacity to do work “with educational training, vocational training or on-the-job training” for at least 30 hours per week and he recorded his suggestion of suitable work in this category as follows:
“clerical (no public contact) – would require a period of training for this (would have better employment prospects following completion of uni studies)”.
(T11, p58)
11. By letter dated 10 December 2002 the applicant was notified by a Centrelink officer that the decision to cancel her DSP had been reviewed and had been found to be correct under s 94(2) of the Act. (T13)
12. On the same date that decision was, at the applicant’s request, referred to an ARO within Centrelink for review. By letter dated 11 December 2002, an ARO notified the applicant that, after careful consideration of the relevant evidence, law and policy guidelines, the “decision to stop payment” of her DSP had been found to be correct. (T15).
13. On 14 February 2003 the SSAT affirmed the Centrelink officer’s decision of 7 November 2002 as affirmed by the ARO on 11 December 2002. (T2)
14. On 17 March 2003 the applicant lodged with this Tribunal an application for review of the SSAT’s decision of 14 February 2003. (T1)
The Applicant’s Evidence
15. The applicant confirmed that she had signed a witness statement, dated 23 March 2004, for the purposes of this proceeding, and that its contents are true. The contents of that statement are as follows:
“1.I was born on 16 February 1980 in Sydney.
2. My parents are JAMES LESLIE CROSSLAND (‘DAD’) and JACQUELINE MARY CROSSLAND (‘MUM’). I also have a sister VICTORIA LOUISE CROSSLAND (‘VIKKl’), who is 19. I live with my parents and sister.
EARLY CHILDHOOD
3. My MUM told me that she and DAD discovered that I was profoundly deaf just before my first Christmas. My grandmother (‘NANNY’) had been playing with
me and discovered that I was not responding to noise, so MUM and DAD had me tested. I got a hearing aid then.
4.I went to the Speech and Hearing Centre in Wembley between the ages of 4 and 8.
PRIMARY SCHOOL
5. In the year I turned 9 years old, I went to St Luke's Primary School. It was a big change. At the Speech and Hearing Centre there were lots of classes with a small number of people. At St Luke's, the classes were big and they all had students who could hear.
6. I was put in Year 2 when I started at St Luke's. I did the same work as the other kids, but I had speech classes in a different room set aside for the Speech and Hearing Unit once a week.
7. I was one of 3 deaf kids - the other two were my friends, BRIANA SOMMER and LISA WESTWOOD.
8. BRIANA was my best friend until half way through primary school when she took up with some hearing friends. After then, I was a bit of a loner at primary school.
COCHLEAR IMPLANT
9. I remember the operation to get my cochlear implant. It was the October that I was 10. Once or twice every year since then, I get the processor in my implant remapped. They hook the processor up to a computer and fiddle with channels and adjust the sound levels, so that it is comfortable and I can continue to hear different sounds.
HIGH SCHOOL
10. I started Year 8 at Mercedes College when I was 15. When the students discovered I was 15, they were shocked I was not 12 or 13. Mercedes was very traditional. St Luke's was a brand new school with new, modern equipment, but Mercedes had old rooms, old air-conditioning and old computers.
11. I did mainstream Maths and English in Years 8 -10, and then studied for my TEE in Year 12. I did Senior English, Biology, Discrete Maths, Information Systems and Art.
12.I didn't have many friends at high school. I was friends with a hearing kid called DENAE LONG, but we lost track after high school. I haven't seen her since my 21st birthday party.
GOALS
13. Nobody told me that I needed to have a goal until I got into Year 11 and I did an assignment on genetic modification of food. It was a big issue at the time in the media, and I thought that maybe biology was for me. MUM helped me a lot with the information for the project and encouraged my interest.
14. My true aspiration is with computers and that’s why I was drawn to my current communications degree. I first started using computers when I was 5 years old. We had a Commodore 64 with the very first Word application. I learned all about MS DOS on that and the architecture of computers. When I went to primary school, MUM and DAD got an IBM computer. It was in high school though that I got serious about computer issues. In about 1994, I started to realise there was a whole other world out there through the internet.
UNIVERSITY
15.In 2001, I commenced a biology course at Edith Cowan University. I transferred to a Communications degree in 2002.
16. The Communications degree is all about advertising, multimedia, cultural studies, public relations - not necessarily talking to people. At the moment, I am working on making programs for websites, and putting company information onto CDs and DVDs.
17. I didn't do so well last year. I failed 2 units, ‘Authoring 1’ and ‘Interface Design and Issues’.
18. I am only doing one unit this semester called, ‘Authoring 1’, which is all about interactive programs.
19. I like going to university. I like the idea that everyone is sitting in a lecture theatre talking about a topic, and I like feeling the response from the audience.
EDUCATIONAL SUPPORT
20. Throughout high school I had a speech teacher that visited me and plucked me out of class to talk to me and help me catch up with school.
21. I had a note-taker named MARILYN GROSSER from Year 10-12 at Mercedes and use note-takers now at university. Some of them have to do a TAFE course in note-taking. Those ones are really good. The others are just untrained people that the university employs to take notes. I will meet with the note-takers 15 minutes prior to each lecture and tell them what I'm looking for in the notes. I then sit next to them during the lectures. Often, there are big gaps in the notes where they stop writing to try and understand the lecturer. I feel like leaning over and saying, ‘keep writing.’
22. After the lecture, I skim through the notes and make sure I haven't missed anything. I usually make a point to tell them about stuff that's not quite right. The bad ones don't stick to what I ask them to. I don't want to sound like a crazy person and insist that they take the notes in a certain way.
23. I know I can report any troubles I have to SALLY VAUGHAN, the Equity Officer at uni. I have told her about previous bad note-takers from when I was studying science, but I don't want to have to keep insisting.
SOCIAL ACTIVITIES
24. I mingle once a month with my friends from TNG (‘The Next Generation’), a youth group organised through the WA Deaf Society. We organise outings, and at the moment we are arranging a trip to Rottnest for April.
25. I don't really meet up with people outside social groups. I don't like mixing in groups that can hardly understand me, and I avoid things I don't understand. I like going to the library and I like horse-riding at the Claremont Therapeutic School.
26. I like doing website design at the moment because it allows me to express what I think about the world. I am creating my own personal website where I can list my hobbies and other details about myself. Creating this has made me unload some of the things about myself instead of keeping it in my head. When I meet someone, they could look on my website to save me having to explain everything about myself.
27. I also like taking my dog SASHA for walks every day. She is a Maltese Poodle Cross and I got her for Christmas 2 years ago. I've always grown up with dogs.
COPING WITH DEAFNESS
28. As a result of my cochlear implant, I can hear certain sounds. To communicate, I need to hear and lip read at the same time. I need to see the mouth to confirm the words.
29. I could hear a fire alarm if I knew what it was. One went off in the uni library. I was in a corner reading away intensely. A man came up and tapped my desk. He told me the fire alarm had gone off, but I hadn't recognised it because it wasn't an aggressive sound. It was just a quiet beep that faded into the background of my consciousness.
30.On another occasion when I was at the train station, there was an announcement over the PA, but I didn't pick it up. The station had shifted my train to a different platform. I missed my train and consequently missed one of my appointments.
PSYCHOLOGICAL ISSUES
31. I’ve been seeing a counsellor at uni, DR NICHOLA WEBB, for 1 or 2 hours every fortnight. She gives me tips on how to organise my timetable, exercise and meetings with my friends. It's hard to work out how I feel about being deaf. When I'm avoiding things, I need to talk to a counsellor. I don't know if I am kidding myself. I am deaf and smart - it's a strange combination.
32. When I make choices, my parents have always been involved. It's very hard for me to make my own choices. I am never sure what I really want.
33. My sister VIKKI is very social. She’s had boyfriends and a job at Miss Maud’s, and has gone through the teenage trials. I haven't. I kind of envy her for that, but at the same time I don't. She has social problems associated with her age, such as going out and getting drunk. I have arguments with MUM and DAD occasionally, but not about social issues. They say I should get out more.
CENTRELINK
34. My MUM and DAD got the Family Disability Support, but as soon as I turned 16, they lost it, and it became my own Disability Support Pension (‘DSP’). Since I was put onto the DSP, I have had to have this periodical test where I go and see a doctor who decides if I have a disability or can work.
35. In November 2002, Centrelink told me that the doctor had recommended that I didn't need the DSP. DAD told me to ask again, so I did. We then appealed to the SSAT. We thought that it went well, but it didn't. DAD applied to Legal Aid 3 times before they finally accepted our application for aid. I feel frustrated because we shouldn't have to work this hard, or have it take this long. At the moment, I am barely surviving on the $50 per week that MUM and DAD give me. When I was on the DSP, I was getting $200 per week.
36. I would be frustrated if I had to work as a cleaner. It would be good to have the money if I worked in a good job, so that I can afford transport and get computer equipment. But a cleaner's job will not cover all the things that I need. I have to keep learning about things, because if I don't I think I might go crazy.”
(Exhibit A8)
16. In her oral evidence the applicant provided details of her studies in the Bachelor of Communications degree course at Edith Cowan University. She confirmed that she commenced that course in 2002 and that she initially undertook a full-time study load but subsequently found that to be “too hard” and is now studying part time. She was unsure when she would complete that course (a 3-year full-time course) but estimated that she would do so within a further 3-4 years. She provided a summary of her academic record in that course which indicates that:
·in 1st semester, 2002 she undertook 4 units and failed in all of them;
·in 2nd semester, 2002 she undertook 4 units and achieved 2 Credit grades and 2 Pass grades;
·in 1st semester, 2003 she enrolled in 3 units but subsequently withdrew from 1 unit and completed the other 2 units, achieving a Credit grade and a Pass Grade;
·in 2nd semester, 2003 she undertook 3 units and achieved a Pass grade in 1 unit but failed in the other 2 units;
·in 1st semester, 2004 she is undertaking 1 unit.
(Exhibit A9). She acknowledged that she was able to cope with a full-time study load in 2nd semester, 2002 and managed successfully to complete all units undertaken by her in that semester. Asked how she had managed to do that, the applicant said that she was able to do so if she tried “very hard” and did not “procrastinate”. She added that she had “made [herself] do it”. She said that she receives help with lectures from notetakers and is allowed extra time when sitting examinations. She said that she has had numerous discussions with university counsellors regarding her study problems, including “procrastination”.
17. The applicant also confirmed that she:
·is able to use a computer and spends 5-7 hours per day using her computer;
·is able to type “reasonably well”;
·is learning Web design as part of her Bachelor of Communications studies and has been organising her own Website;
·uses the university library but studies more at home because she does most of her research on the internet;
·has had a driver’s licence since she was 20 years of age;
·drives herself to university and to other places, but sometimes catches the bus instead.
Additional Evidence Tendered By The Applicant
Statement of James Leslie Crossland
18. A signed statement of James Leslie Crossland, the applicant’s father, was tendered in evidence. The contents of that statement are as follows:
“…
2. I am married to JACQUELINE MARY CROSSLAND (‘JAKI’) and have two daughters, JENNIFER LEANNE CROSSLAND (‘JENNIFER’) born 16 February 1980 and VICTORIA LOUISE CROSSLAND (‘VIKKI’) born 28 February 1985. Both of my daughters live with JAKI and I at our home in Churchlands.
…
JENNIFER' S DEAFNESS
4. JAKI and I were living in Sydney when JENNIFER was born. I was working there as an air traffic controller. When JENNIFER was 11 months old, she was diagnosed as being profoundly deaf, at the worst end of profound. She had continually failed the hearing tests at the baby health clinic, so JAKI and I took her to the National Acoustic Laboratory, which is now called the Australian Hearing Centre. The doctors there confirmed that JENNIFER was profoundly deaf and recommended a number of options to us.
COCHLEAR IMPLANT
5. When JENNIFER was 10, a representative from the Australian Hearing Services (‘AHS’) came to the Centre to talk about developments in hearing aids and cochlear implants. We had fitted JENNIFER with a hearing aid provided to us by the AHS since she was diagnosed at age 1, but it was useless to her despite it being the most powerful aid available. Rather than hearing actual sound, she only received vibration.
6. Following this visit from the AHS, JAKI and I began to think seriously about the possibility of getting a cochlear implant for JENNIFER. We had considered a cochlear implant at the time of JENNIFER'S diagnosis, but at that time the implants were only in the early stages of development.
7.By the time JENNIFER had reached 10, it had become evident to JAKI and I, after discussion with KAREN VENARD, that JENNIFER'S communication skills needed to be improved. JENNIFER understood us, and had the language and vocabulary of a two-year old, but poor speech. We took JENNIFER to be assessed by DR RON WILDE at the Speech and Hearing Department at Curtin University.
8. It was not an easy decision to get a cochlear implant, as it was a serious operation and would interfere with her physical being. The effect of the operation would be to grind out a section of the mastoid bone in her ear to implant the receiver, which then contained a rat’s tail of 22 electrodes for insertion into the cochlear. There were normal risks associated with major surgery, a risk that the facial nerve could be severed, and a risk that after the procedure was done, there would be a failure of the system to operate.
9.After the operation, JENNIFER was required to participate in a lengthy program to test the implant’s success. It involved a 4 hour session once a week for 10 weeks, in which the processor in JENNIFER'S ear would be plugged into computer diagnostic equipment. The processor would then be turned onto 22 channels as they tried to fine-tune JENNIFER'S ability to pick up certain sounds.
10. When JENNIFER heard sound for the first time, it was quite moving. She was excited and we were excited for her. She started hearing things like the fridge motor and the reticulation. She could hear gross sounds like a door knocking or dogs barking. It was reasonably evident early on that she could sense a higher level of auditory input than she had before.
SCHOOLING
11.At 10 years old going on 11, JENNIFER was hugely deficient in speech and language for her age. She had the speech level of a 4 or 5 year old at age 11. She was unintelligible to most people, but not to us.
12. We encouraged her to read. She loved to read, and is an avid reader now. At the age of 11, she would read simple children's books like those Little Golden Books over and over. She appeared to read quite a lot but KAREN VENARD pointed out to us that deaf kids read a lot but interpret the story quite differently because their language skills are so poor. We began to worry that JENNIFER was developing a habit of putting a different interpretation on what she was reading, so we looked at putting her into formal schooling to try and improve her language skills.
13. We discovered that the Catholic schooling system had a number of schools with facilities for deaf children - specialised deaf units with an in-house teacher or a visiting teacher of the deaf.
14. When JENNIFER was 11, we enrolled her at St Luke's Primary School in Woodvale. It was difficult to manage because we lived in Churchlands and had to make a trip out to Woodvale twice a day. JENNIFER was 2 years behind her age when she started there.
15. When she was 15, we enrolled her at Mercedes College in Perth. We were attracted to the high ideals and ethics of the school, and the sophisticated pastoral care program. JENNIFER was integrated with the mainstream school population in some classes, whereas others were spent in the Special Education Unit. She received regular visits from a teacher of the deaf.
16.From my perspective, her whole high school years were very lonely. She had some well-meaning friends, but there were too many problems for them in maintaining the friendship. It is extremely difficult for JENNIFER to pick up the ‘this and that’ chat.
HOBBIES
17.JENNIFER was involved in gymnastics and horseriding from the age of about 8 or 9 at Claremont Riding for the Disabled, which is now known as the Claremont Therapeutic Riding Centre. She is still involved with horse-riding - she goes and helps them out for a couple of hours twice a week in her holidays.
18. She developed an association with the WA Deaf Society about 5 years ago. She is now one of the leaders in a group called TNG, which stands for ‘The Next Generation’. She and some others in the group organise outings for deaf kids. She interacts well with the signing deaf community. She can understand sign language, but doesn't use it. We tried to keep her away from it because of its limitations.
EMPLOYMENT FOR JENNIFER
19. I always thought JENNIFER'S best option for employment was to have a degree. It certainly helps, for anyone. My hope was that she would go down the maths road. The finance and commerce areas are big employers.
20. I knew that JENNIFER had no limitations intellectually. We had had her IQ tested throughout her life and she is very clever. She did a test at the WA Institute for Deaf Education (‘WAIDE’) in Cottesloe and scored so high on the spatial orientation test, that they told us that they thought they may have to adjust the test.
21. It was also encouraging to hear about deaf people who had been successful in employment. I remember hearing a talk given at the Centre by DR JOHN BYRNE who is profoundly deaf. DR BYRNE managed the Finance Department at CALM, but because of his communication difficulties, had an off-sider who accompanied him to meetings and worked with him. I found him to be a perfect example of how a profoundly deaf person could achieve a high-powered position of employment.
22. JENNIFER had note-takers in Year 11 and 12 at Mercedes and while she has been at university.
UNIVERSITY
23. Following her graduation from high school, JENNIFER took a year off. Our family went to visit JAKI’S relatives in England and we talked with JENNIFER about what she wanted to do. She had a keen interest in Biology and has a huge succulent collection of about 300 or 400 items.
24.In 2001, JENNIFER enrolled in a Bachelor of Science at ECU, majoring in Biology. I was never happy about it, as I took the view that jobs in biology are few and far between. JENNIFER did OK in her classes, and quite liked it, but at the end of 2001 she decided to transfer to a course with more employment options.
25. She was always keen on computers so she decided to change to a Communications degree majoring in web design.
MOTIVATION
26. JENNIFER has problems with motivation. Deaf people get disappointed so much in their lives. I think she gets depressed quite often. She is an introvert and will isolate herself in her bedroom, on her computer. I tell her to get out of the house and do something, but she doesn't do it. She hardly ever goes out except to go to the TNG meetings, or to horse-riding for 2 hours twice a week. Sometimes she goes to the odd movie by herself if it has subtitles. If she could get more motivated, I think she would be happier.
27. She’s had so many knock-backs in her life – everything’s an effort. She’s had knock-backs from friends who don’t come around to the house any more. JAKI and I think she is fantastic and we try to impress this on her.
CENTRELINK
28. JAKI and I used to get the Handicapped Child Allowance when JENNIFER was a child. It is not means-tested, you just get it. When JENNIFER turned 16, the allowance was transferred to her in terms of a personal Disability Support Pension (‘DSP’).
29. In 2002, Centrelink cancelled JENNIFER'S DSP because they determined that she could work as a cleaner or in a clerical job. I do not think it is fair that she should even have to entertain the idea of being relegated to these kinds of jobs. It is saying that her best lot in life would be to do something at that level when she is capable of so much more.”
(Exhibit A7)
Report of Dr Anthony Barr, dated 12 March 2004
19. Dr Barr’s report states as follows:
“…
The degree of deafness suffered by Jennifer being, to all intents and purposes, total, she is unable to work, for the following reasons:
1. Jennifer scores 60 points on the impairment tables for pension qualification, which is indicative of the degree of disability especially when the requirement is 20 points. Jennifer scores 40 points under table 12, ‘Loss of Hearing Function’, which relates to a 95-100% disability in this area and the condition will persist for the rest of her life.
2. 99% of all work would not be available to Jennifer due to her inability to access normal modes of communication such as telephone and ‘face to face’ exchanges. This point is not in dispute. The impairment tables describe and confirm these circumstances under the 20 point allocation in table 9 assigned to Jennifer.
3. The remaining percentage of available work such as cleaning and other menial tasks would impose an unacceptable level of risk to Jennifer’s safety due to her inability to always be aware of dangerous situations around her including unable to adequately hear fire alarms, smoke alarms, closing and other safety announcements made via P.A., vehicular traffic out of her sight and people with dangerous and malicious intent who may act upon the knowledge that Jennifer is deaf.
4. The unlikelihood of most employers being prepared to accept the cost of installing appropriate mechanisms to ensure Jennifer’s safety in regard to point 3 above, or the acceptance of responsibility, if such an event were to take place.
5. The irrefutable evidence that profoundly deaf people have extreme levels of difficulty obtaining any meaningful employment at all, due to the restrictions placed on them by their disability, and the added irrefutable evidence that the vast majority of employers do discriminate on the grounds of disabilities because of perceived problems as mentioned in point 4 above.
6. Her attendance at university has only been made possible with high levels of intervention, such as note takers at all lectures and other considerations in exams. Such intervention could not be expected to be available in the workplace.
7. Jennifer has been the recipient of the disability support pension for 6 years and her disability has not changed.
She is currently studying for a tertiary degree, under severe physical and emotional pressures - which have delayed her progress. She is behind in her study progress. She requires the support of external readers and lecture takers (sic) to be able to fully assimilate her new knowledge. This process in itself causes a lowering of self esteem and self worth.
Jennifer is intellectually very bright, and to reach her intellectual ability she will need to continue with, and complete her tertiary studies. With her educational standards she will have a greater - yet still severely limited - ability to return to the community that has supported her effective and productive employment related skills. These skills will be limited in many ways, by restriction to a hearing impaired community, by use in welfare work, by employment in a limited self-employed consultancy or by work in an advocacy role.
The battles Jennifer will need to fight to express her true intellectual and social skills will impinge on her emotional stamina and will at times cause bouts of anxiety, frustration, anger and possible reactive depression.
Jennifer is intelligent and needs - like all Australians - to be given every social support to achieve her true potential so that she and her community can be adequately enriched.
Jennifer will never be considered occupationally fit for menial manual tasks such as office cleaner or clerical work as her hearing impairment renders her a workplace hazard as pointed out in 3. above.
Jennifer will never be able to work in the fulltime open employment market for similar reasons.
Jennifer has proven to herself and her peers that she has the intellectual capacity and ability to set and achieve a high target goal, and as such if she is denied her chance of applying this inherent natural ability, she would suffer longstanding psychological and emotional problems. If she is denied the disability support services (sic) she would be prone to loss of self esteem and self worth, she would lose faith in the social concepts of equality for all individuals, would be unable to face up to relating to other disabled persons within the community as she would perceive herself as a failure and a ‘social experiment that failed’. I WOULD HAVE GRAVE CONCERNS REGARDING THE DEVELOPMENT OF A SEVERE DEPRESSIVE ILLNESS WITH THE IMPLIED RISKS OF SELF HARM AND SUICIDE. At least she would become totally dependent on disability support without giving anything back to her community - A true natural disaster!!
If Jennifer were to be restricted to only being able to achieve menial tasks, she, her family, the community and natural justice would be struck a mortal blow.
Please could consideration be given to continuation of Jennifer’s Disability Support Pension.” (original emphasis)
(Exhibit A1)
Report of Dr Harry Blackmore, dated 20 March 2004
20. Dr Blackmore’s report states as follows:
“Thank you for inviting me to offer my opinion on the likely psychological effect on Ms Crossland following Centrelink’s decision to cancel her Disability Support Pension. She has been enabled to pursue a tertiary study course at Edith Cowan University through this financial support without which such study would cease. From your letter, I understand that the decision to cancel this support was based on the view that Ms Crossland is able to work in full time paid employment in the open market place, and that this decision was upheld in the Social Security Appeals Tribunal on the basis that it was found she was able to do ‘menial’ work.
Thank you also for the copies of relevant reports by professional health colleagues which are intended to be filed with the AAT for the appeal. These were most helpful in forming my own opinion supported by my personal qualifications to do so:
Relevant Personal Qualifications
Apart from my science and specialist medical qualifications (consultant psychiatrist), my familiarity with the Australian deaf community (and my fluency in its sign language) derives from my family background - hearing firstborn to profoundly deaf parents of whose six sons three are also deaf. Consequently I have had a lifelong and close involvement with the deaf community in Australia. In addition, I have been a member for some thirty years of the Boards of Management of the Western Australian Deaf Society (adult deaf) and of the Western Australian Foundation for Deaf Children. I am also Patron of Better Hearing WA (later acquired hearing loss) and Life Member of Deafness Forum of Australia (peak body). I am accredited by the National Accreditation Authority tor Translators and Interpreters (NAATI) as a professional interpreter and examiner in Auslan (Australian Deaf Sign Language) and, also, I have been employed as a lecturer in Deafness Studies for many years in the Centre for Auslan and Deaf Studies at Central TAFE. Over many years, my psychiatric practice has, for obvious reasons, included many deaf adults and children for consultations including mental state assessment and therapy.
Review of Professional Reports
I have had the opportunity to read the reports of the following professional colleagues:
i) Dr Anthony Barr - Senior Lecturer Occupational Health (ECU) -12.03.04
ii)Ms Carmela Connor - Senior Clinical Psychologist (Mental Health Services) - 23.02.04
iii) Ms Nichola Webb - Clinical Psychologist & ECU Counsellor - 02.02.04
iv) Ms Kym Elliott - Senior Speech Pathologist (Neurosciences Unit) -08.03.04
I am impressed by the concurrent conclusions reached independently by each specialist and by the careful direct assessment procedures used to make such judgements. From my own knowledge of and experience with deaf people over many years, I strongly support these specialists' conclusions and pleas to withdraw the decision to cancel Jennifer Crossland’s Disability Support Pension.
Because the clinical observations in these reports are comprehensively detailed, I don’t think it is necessary for me to see Ms Crossland personally -her story is very familiar to me, and I can comment on the general experience of deaf people within the wider hearing world and apply it to her present situation.
General Comment
Most deaf people, profoundly deaf from infancy, do not acquire the level of comprehension and usage of the spoken language equal to that of hearing people. This fact highlights the very great importance unhindered hearing has in personal development. At the same time, the range of intelligence levels of deaf people is much the same as that of their hearing peers. Deaf people are accustomed to being demeaned and dismissed by many hearing people - they are constantly told they cannot do this or that because they are deaf (and, by inference, also dull and incapable!). The question often asked (with sceptical intonation) is, ‘Can deaf people drive cars?’ Thus deaf people accept unskilled and semiskilled work because they have been made to believe these low-level occupations are all they are good for - little consideration or encouragement is given to high intelligence, good aptitude and excellent potential to advance to higher learning and to skilled professional work. Few deaf people have striven to breakout and establish their independence academically and vocationally. Even fewer receive adequate support, morally and financially, to succeed. Centrelink’s decision to cancel Ms Crossland’s Disability Support Pension follows the established pattern and is no surprise, though disappointing, for a government department promoting social security for all citizens.
Social Security Act Section 94(1)
Section 94 of the Social Security Act 1991 lists the qualifications for disability support pension. In regard to these qualifications I understand Ms Crossland’s situation satisfies all. With particular reference to qualification s94 (1)( c) ‘continuing inability to work’, I note and agree with the following conclusions made by the specialists in their reports:
Dr Anthony Barr: ‘The battles Jennifer will need to fight to express her true intellectual and social skills will impinge on her emotional stamina and will at times cause bouts of anxiety, frustration, anger and possible reactive depression.’
Ms Carmela Connor: ‘In my opinion, attempts to restrict Ms Crossland’s employment options to an unskilled, non-stimulating or socially isolating work environment would have a detrimental effect on her self esteem, intellectual and emotional functioning, particularly as she is already suffering from fairly high levels of depression, social isolation and stress. Given her superior intelligence it is likely that she would find such work unchallenging, demeaning and demoralising.’
Ms Nichola Webb: ‘It is my opinion that her (Ms Crossland’s) anxieties are likely to increase significantly if she is required to pursue fulltime work at this point in either a skilled or unskilled employment setting.’
Ms Kym Elliott: ‘I believe any attempts to restrict Jennifer’s employment options to more menial (less academically or linguistically demanding) occupations would have a highly detrimental effect upon her psychosocially and financially.’
It will be generally accepted that the ‘work’ referred to in s94(1)(c) should not be interpreted to mean any kind of work, such as that which is illegal, unsafe or indecent. Nor should it be a threat to a person’s mental and emotional wellbeing, as it will be for Ms Crossland in the opinion of these specialists who have examined her and expressed their deep concerns with which I strongly agree.
The rigid interpretation of ‘the letter of the Law’ is no acceptable substitute for empathy, compassion and understanding. The Social Security Act seems not to take into consideration the unique circumstances in which the profoundly deaf person is found in the world at large. Where else may that person turn for the appropriate support and encouragement to realise his or her full potential in an uncomprehending society?
Conclusion
The view that Ms Crossland is able to work in fulltime paid employment in the open market place is not supported by the experience of WA Deaf Society employment advisers specifically aiding deaf people with work placements -considerable guidance and training are necessary for deaf clients and also for prospective employers to ensure that the conditions in the proposed workplace meet the special needs of deaf people, and that there will be mutual satisfaction with the performance required of the deaf worker.
Finally, as indicated above, the concerns expressed by my professional colleagues regarding Ms Crossland’s likely psychological reaction to having her Disability Support Pension cancelled and being told to do ‘menial’ work are very real. At the least she will be extremely disappointed and at worst she could suffer extreme reactive depression requiring psychiatric intervention.” (original emphasis)
(Exhibit A2)
Report of Dr Carmela Connor, dated 23 February 2004
21. Dr Carmela Connor holds the positions of Manager and Senior Clinical Psychologist in the North Metropolitan Health Service, Department of Health, Western Australia. Dr Connor’s report states as follows:
“Thank you for referring this 23 year old University student for a neuropsychological assessment. Ms Crossland attended here for this purpose on 5 and 9 February 2004. She also attended a feedback session with myself and Speech Pathologist, Kym Elliott, on 17 February 2004.
Reason for referral
Ms Crossland has experienced profound hearing impairment from infancy and has had binaural hearing aids since the age of 13 months. I understand Jennifer received a cochlear implant in 1990, at the age of 10 years. You state in your referral letter that Ms Crossland is appealing the decision of the Social Security Appeals Tribunal to affirm the cancellation of her Disability Support Pension on the grounds that she does not have a ‘continuing inability to work’ as required by the Social Security Act. (I understand the phrase ‘a continuing inability to work’ means that the impairment Itself prevents the person doing any work or being retrained for any work within two years). There is also a question regarding Ms Crossland’s cognitive functioning and the potential impact of nonstimulating and socially isolated employment on her psychological state.
Documents Reviewed
1. Medical Assessment Report completed by Dr N Street dated 26/11/02
2.. Report of Dr N Street undated of examination completed 25/10/02
3. Medical Review form completed by Jennifer Crossland dated 23/8/2002
4. Treating Doctor's Report completed by Dr Barr dated 27/8/02
5. Letter from Dr Barr dated 15/11/02
6. Report from Kym Elliott, Speech Pathologist, dated 13/2/04
…
Presenting Problems
Ms Crossland reports that she is easily distracted, and believes that she has ‘slowed thought processes’ with occasional episodes of ‘blankness’. For example, she finds that she may be working on her computer at home and then suddenly forgets what she was specifically working on. In addition, Ms Crossland reports mild memory problems, for example forgetting homework tasks at University and assignment deadlines. In addition, Ms Crossland acknowledges language difficulties, particularly if rushed, tired, or when anxious. Ms Crossland also reports having difficulties comprehending what other people are saying. In terms of her mood, she reported feeling quite anxious and depressed, and admitted being under considerable stress because of a number of financial, educational and social concerns. I understand that she is regularly seeing a psychologist at Edith Cowan University to address these issues.
Clinical Presentation
Ms Crossland presented as a quiet, polite, cooperative young lady who was concerned about her current situation. She was neatly dressed and behaved appropriately. Ms Crossland drove herself to all appointments, although was late on the three occasions she attended here. Ms Crossland was able to lip read throughout the assessment, so all tests were administered in a standardised mode without modification. The only exception to this was a verbal memory test (WMS-III logical memory) where the stories were presented in written form rather than orally. She did not approach tests in a confident manner and reported being surprised that she had found most tasks relatively easy. Overall, Ms Crossland appeared to try to the best of her ability. This observation is supported by normal scores on formal tests of effort (TOMM & WMT).
Tests Administered
1. Wechsler Memory Scale -Third Edition (WMS-III): selected subtests
2. Wechsler Adult Intelligence Scale -Third Edition (WAIS-III)
3. Wechsler Individual Achievement Test - Second Edition (WIAT-II): Written Expression
4. Delis-Kaplan Executive Function System (D-KEFS): selected subtests
5. Californian Verbal Learning Test - Second Edition (CVLT - 2)
6. Test of Memory Malingering (TOMM)
7. Word Memory Test (WMT)
8. Personality Assessment Inventory”
[Dr Connor’s report then sets out the Test Results and a Personality Assessment, and continues:]
“Summary / Conclusions / Recommendations
In conclusion, Ms Crossland is a young woman of superior intelligence with better non-verbal than verbal abilities. Despite having significant speech and language difficulties (see Kym Elliott, Speech Pathologist’s report for further information), formal testing revealed intact memory, attention/concentration and executive functioning processes. Indeed it is remarkable that Ms Crossland performed so well on tests of verbal memory, given her longstanding hearing disability. While Ms Crossland’s memory is normal, it is likely that her comprehension difficulties will impede her ability to recall what people are saying to her, particularly if the information is complex.
In conclusion, these results suggest that Ms Crossland has the cognitive capacity to cope with post-graduate education providing she has access to ongoing support to compensate for her hearing disability. It will also be important that Ms Crossland receives ongoing support for her emotional and social difficulties, as I believe she is at risk of developing a more serious psychiatric condition. In my opinion, attempts to restrict Ms Crossland's employment options to an unskilled, non-stimulating or socially isolating work environment would have a detrimental effect on her self esteem, intellectual and emotional functioning, particularly as she is already suffering from fairly high levels of depression, social isolation and stress. Given her superior intelligence it is also likely that she would find such work unchallenging, demeaning and demoralising.
…”
(Exhibit A3)
Report of Ms Kym Elliott, dated 8 March 2004
22. Ms Kym Elliott is a Senior Speech Pathologist, Neurosciences Unit, Department of Health, Western Australia. Ms Elliott’s comprehensive Speech Pathology Assessment Report concludes as follows:
“Summary/ Interpretation
In summary, Jennifer presents with an interesting profile of language function, which is characterised by overt strengths and ‘islands’ of difficulty. It is important to note that Jennifer’s strengths lie in the areas of:
·Spoken narrative discourse generation (reflecting inferential thought and high degrees of specificity and organisation).
·Formal sentence formulation (syntactically and semantically accurate sentence forms).
· Semantic fluency.
· Use of formal literate language terms (i.e. conjunction and transition targets).
· Receptive vocabulary.
· Identification of semantic relationships between words.
· Comprehension of semantic relationships within statements.
· Single word decoding.
· Written paragraph comprehension.
It is important to note that Jennifer achieved scores below the average range expected for her age on tests evaluating:
·Recall of spoken statements of increased length and linguistic complexity (no opportunity for repetition or written cues).
·Sentence assembly (using a series of written phrases to generate syntactically and semantically accurate sentences).
· Word retrieval (high preponderance of innovative verbs).
·Comprehending figurative language (written statements only - no paralinguistic cues available).
·Comprehension of spoken instructions of increased length and linguistic complexity (no repetition or written cues available). Errors primarily reflected auditory discrimination deficits.
This profile indicates that Jennifer exhibits strong language development in many respects - with a range of skills falling at or above the level expected for her age. Of additional note are the scores that fall outside the range for Jennifer’s age, which appear to be in most part, a function of the test administration limitations rather than deficits in Jennifer’s language function per se (ie. tests did not allow repetition / clarification of spoken targets or provide written cues to supplement spoken stimuli). The only test results that could not be explained in this way were those pertaining to the TAWF (single word retrieval), TOWK figurative usage (identification of meaning of abstract language) and CELF-3 sentence assembly (semantically incorrect statements produced). These difficulties may serve to underlying (sic) or sustain Jennifer’s difficulties engaging in social communication and producing formal written essays for university. Further evaluation of Jennifer’s social communicative competence and written language production would be beneficial in identifying the factors contributing to functional deficits and strategies to enhance social and literate language use.
Regardless of the outcome of further assessment I believe that, overall, Jennifer exhibits a strong profile of expressive and receptive language function and that these skills would be sufficient to achieve high levels of academic and vocational performance in the future (provided she has access to ongoing support to compensate for her hearing impairment and ensure complete access to verbally presented teaching material). Her potential for vocational success in her chosen career does not appear to be limited by her current level of language function and I believe any attempts to restrict Jennifer's employment options to more menial (less academically or linguistically demanding) occupations would have a highly detrimental effect upon her psychosocially and financially.
…”
(Exhibit A4)
Report of Ms Nichola Webb, dated 2 February 2004
23. The report of Ms Nichola Webb, Clinical psychologist and a Counsellor at Edith Cowan University, states as follows:
“…
Presenting Issues
Ms Crossland initially presented to the Counselling Service at Edith Cowan University in 2001 at which time she was seen by another member of the Counselling staff for 2 months in relation to academic procrastination problems. At such time she was assisted to develop positive study processes.
Contact with Ms Crossland and Assessment of Psychological Adjustment
Ms Crossland contacted the Counselling Service again in 2002 and has been seen for 9 sessions to date. The nature of this counselling has been to once more address her academic procrastination which has grown to include more socially avoidant and anxiety based behaviours.
During the course of counselling I have determined that Ms Crossland’s procrastination and anxieties appear to originate in a significant fear of failure for her studies and her self consciousness as an inexperienced person in the workforce. Ms Crossland appears to equate work and study achievement with a certain measure of her own self worth and as such she holds a perception that others may judge her negatively as an unskilled employee and a hearing impaired individual.
Her fears have affected her studies which reflect a mixture of grades. Counselling has been working to challenge Jennifer’s negative perceptions about her abilities and deconstruct her maladaptive beliefs while offering new cognitions and behaviours.
ØMs Crossland’s work ability in a FT open market employment setting
ØMs Crossland’s work ability as an office cleaner or clerical worker without public contact.
Ms Crossland has undertaken a brief volunteer position in 2001. As a hearing impaired individual Ms Crossland has demonstrated an ability to study without significant difficulty and has additionally proven herself to be able to assist in coordinating Deaf Society Activities for 18-30 year old members which requires a certain measure of organisational and professional skill. Psychologically, Ms Crossland has demonstrated an ability to maintain tertiary studies although with some difficulties as outlined above.
It is my opinion that her anxieties are likely to increase significantly if she is required to pursue fulltime work at this point in either a skilled or unskilled employment setting. She is likely to perform satisfactorily in a part time capacity as an office cleaner or clerical person with minimal public contact provided she is well supported in acquiring the skills initially and that the part time hours allow her a gradual increase in confidence.
Summary
In my opinion Ms Crossland is currently best suited for part time options such as study, unskilled paid or voluntary work given that full time employment (skilled or otherwise) at this point would be likely to negatively challenge Ms Crossland’s ability to psychologically cope under such sudden expectation. Should Ms Crossland be permitted to remain on her DSP she would be able to pursue part time options and be gradually supported as she acquires new skills, thereby increasing her confidence in accordance with her abilities over time. “
(Exhibit A6)
Letter from Ms Sally Vaughan, dated 10 February 2004
24. The letter from Ms Sally Vaughan, Equity and Diversity Officer (Students), Edith Cowan University, states as follows:
Jennifer Crossland is an enrolled student at Edith Cowan University who is registered as a student with a disability. Jennifer is a high support needs student who requires a notetaker for lectures and tutorials, and is granted extra allocation of 20 minutes per hour working time in her exams.
These resources are provided as a part of the Edith Cowan University Disability Action Plan in order to give students equal access to the learning environment. Jennifer has to devote a great deal more time to her studies due to her disability than most other students and as the (sic) result has a reduced workload.
In the 2003 Academic year Jennifer was supported in 105.5 hours of notetaking.”
(Exhibit A5)
Evidence Tendered by the Respondent
25. The respondent tendered in evidence a report of Dr A Barr, dated 2 May 2003 (Exhibit R1). That report does not add significantly to the other reports of Dr Barr referred to above, and it is unnecessary to set out that report here.
26. The respondent also tendered in evidence the Second Reading Speech in the House of representatives by the Hon Janice Crosio MP, Parliamentary Secretary to the Minister for Social Security, representing the Minister for Social Security, in relation to the Social Security Legislation Amendment Bill (No 1) 1995. Extracts from that speech are set out in paragraph 30 (below).
The Relevant Legislation
27. Qualification for DSP is the subject of s 94 of the Act which relevantly provides:
“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.
Note 1: for ‘Australian resident’, ‘qualifying Australian residence’ and ‘qualifying residence exemption’ see section 7.
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
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.
Note: for ‘work’ see subsection (5).
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(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.
…”.
The Issue
28. It is common ground that the applicant, at the material time, satisfied the qualification criteria specified in paras (a), (b), (d) and (e) of s 94(1) of the Act. The sole issue for the Tribunal’s consideration and determination is, therefore, whether the applicant, at the material time, satisfied the qualification criterion specified in para (c) – more specifically, subpara (c)(i) – of s94(1) of the Act. It is also common ground that the material time, as at which that issue is to be determined, is the date of cancellation of the applicant’s DSP – namely, 7 November 2002: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342.
The Submissions
The Applicant
29. Ms Archer (for the applicant) made extensive oral and written submissions whose essence may be summarised as follows;
· the applicant is unable to work in the open market place because her safety would, by reason of her disability, thereby be put at risk – reliance was placed principally on Dr Barr’s report of 12 March 2004 (Exhibit A1 – see paragraph 19 above), especially reasons 3 and 4 stated therein; the applicant’s witness statement (Exhibit A8 – see paragraph 15 above), at para 29; and various decisions of the Tribunal, in particular, Re Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472 at paras 54,56;
· the applicant is unable to work in the open market place owing to communications problems caused by her disability – reliance was placed principally on the applicant’s witness statement (Exhibit A8), at paras 20-23, 28; Ms Elliott’s report of 8 March 2004 (Exhibit A4 – see paragraph 22 above); Dr Connor’s report of 23 February 2004 (Exhibit A3 – see paragraph 21 above); Ms Vaughan’s letter of 10 February 2004 (Exhibit A5 – see paragraph 24 above); Ms Webb’s report of 2 February 2004 (Exhibit A6 – see paragraph 23 above); and Dr Barr’s report of 12 March 2004 (Exhibit A1);
· the expression “any work” in s94(2) of the Act must be qualified so as to exclude, for example, work which is unlawful or inherently dangerous; and there is also necessarily implied in that expression a notion of suitable work “that takes into account not only the person’s disabilities but also their abilities and the impact of that employment on their physical and psychological health and wellbeing”: Re Secretary, Department of Social Security and Chin (1998) 52 ALD 337 at 343; that interpretation is in accordance with the beneficial nature of the Act and with international instruments to which Australia is a party, namely, the United Nations Declaration on the Rights of Disabled Persons (1975) and the International Covenant on Economic, Social and Cultural Rights (1976);
· unskilled work is not suitable work in the applicant’s case because such work would be likely to undermine her psychological health; reliance was placed principally on Dr Connor’s report (Exhibit A3), Ms Elliott’s report (Exhibit A4), Ms Webb’s report (Exhibit A6), Dr Blackmore’s report of 20 March 2004 (Exhibit A2 – see paragraph 20 above), Dr Barr’s report of 12 March 2004 (Exhibit A1), and the applicant’s witness statement (Exhibit A8), at para 36;
· having regard to the abovementioned considerations, the applicant has a “continuing inability to work”, as defined in s94(2) of the Act, because, by reason of her disability, she will never be able to do any work, including unskilled work, on a full-time basis in the open market place.
The Respondent
30. Ms Bradley (for the respondent) submitted that, as at 7 November 2002 (the date of cancellation of the applicant’s DSP), the applicant did not have a “continuing inability to work”, for the purposes of s94(1)(c) of the Act. She submitted that, as at that date, the applicant did not have a “continuing inability to work” (as defined in s 94(2) of the Act) because her impairment was not of itself sufficient to prevent her from doing “any work” within the period of 2 years from that date. She further submitted that the applicant’s impairment was not of itself sufficient to prevent her from undertaking educational, vocational or on-the-job training during that 2-year period; nor was such training unlikely (because of her impairment) to enable her to do “any work” within that period. In support of those submissions Ms Bradley referred to:
· the applicant’s high intelligence and her university studies – in particular, her successful completion of 4 units in the second semester of 2002 (Exhibit 9 – see paragraph 16 above) during which period the decision to cancel her DSP was made;
· Dr Street’s reports of 25 October 2002 (T8) and 26 November 2002 (T11) (see paragraphs 7 and 10 above) in which he opined that, although the applicant “would not manage jobs which require high communication demands or public contact”, she “could work in open employment in a range of occupations”, but that her “long term employment prospects would be best served by completion of her tertiary studies”;
· the applicant’s own evidence that she, inter alia, can use a computer, has keyboard skills, can design Websites and conduct research on the internet, can drive a car and holds a driver’s licence.
Ms Bradley also referred to the Second Reading Speech of the Hon Janice Crosio MP, Parliamentary Secretary to the Minister for Social Security, representing the Minister for Social Security, in relation to the Social Security Legislation Amendment Bill (No 1) 1995 which inserted into the Act the present s94(2) which sets out the meaning of the phrase “continuing inability to work”. In the course of that Speech the Parliamentary Secretary said:
“The Bill also modifies the meaning of the term ‘continuing inability to work’ which is one of the qualification criteria for disability support pension and disability wage supplement. In response to the unanticipated outcome in the AAT case of Loknar, the amendment puts beyond doubt that the necessary assessment must be whether the person is fit for any work, whether skilled or unskilled, that he or she could do without needing preparatory training. Alternatively, if such training were necessary, it would have to be likely to equip the person to do the job within two years.
In a further amendment affecting disability support pension and disability wage supplement, the qualification provisions will address a trend emanating from several recent SSAT and AAT decisions. The amendment will make sure that the person’s continuing inability to work is directly caused by an impairment of 20 per cent or more under the Act’s Impairment Tables. Factors that are consequences of the impairment such as attitude and lack of motivation to work, may not be taken into account.” (original emphasis)
(Exhibit R2)
31. Ms Bradley submitted that, having regard to the applicant’s skills, the kinds of work that she is able to do include clerical work and occupations such as computer operator, data processor and courier. She did, however, concede that the expression “any work” in s94(2) of the Act should be qualified so as to exclude work which is unlawful or which involves a contravention of occupational health and safety legislation. She nevertheless submitted that that expression should not be interpreted so as to be confined to any suitable work, and that the approach taken by the Tribunal in Re Secretary, Department of Social Security and Chin (1998) 52 ALD 337 should not be followed. She cited, in particular, Re Rowbottom and Secretary, Department of Family and Community Services [1999] AATA 553 and Re Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846. Finally, Ms Bradley submitted that, in terms of s94(2)(a) of the Act, the relevant impairment must of itself be sufficient to prevent the person from doing any work before it can be said that that person has a “continuing inability to work” because of that impairment, within the meaning of s 94(2). In the present case, she submitted, the applicant’s profound deafness is, of itself, insufficient to prevent her from doing any work, and, for that reason also, s94(1)(c)(i) and s94(2) of the Act are not satisfied in this case.
Consideration and Findings
32. As previously indicated, the respondent concedes that the applicant, at the material time, satisfied the DSP qualification criteria specified in paras (a),(b),(d) and (e) of s 94(1) of the Act. On the basis of the material before it, the Tribunal finds that that concession was rightly made. The critical matter for the Tribunal’s consideration and determination is whether the applicant, at the material time, namely, 7 November 2002 (being the date of cancellation of her DSP), satisfied the qualification criterion specified in para (c) – more specifically, subpara (c)(i) – of s94(1) of the Act, namely, a “continuing inability to work” (as defined in s 94(2) of the Act).
33. The leading case on the interpretation of s94(2) of the Act is Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572. In that case the Federal Court of Australia (Drummond J) said (at p576):
“[16] Section 15AB of the Acts Interpretation Act 1901 (Cth) permits the court
to have regard to material extraneous to the text of a statute, including an explanatory memorandum accompanying the Bill for the Act and the second reading speech on that Bill to determine the meaning of a provision of an Act when:
(i) The provision is ambiguous or obscure; or
(ii) The ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
[17] See ss 15AB(1)(b) and (2)(e) and (f). I consider it clear from ss 15AB(1) and (2) that the legislative history of s 94 is also material to which the court can have regard in such circumstances.”
His Honour considered that it was appropriate to have regard to such extraneous materials in order to determine the meaning of s94(2) of the Act, and continued (at pp577-580):
“[19] Reference to relevant extraneous material reveals, clearly enough, the
legislative intent or purpose of s 94(2).[20] Prior to the amendments made by the Social Security (Disability and Sickness Support) Amendment Act 1991 (Cth), No 141 of 1991, Pt 2.3 of the Social Security Act 1991 (Cth) made provision for an invalid pension; the eligibility criteria for that pension were quite different from those for the disability support pension. Those provisions were repealed and replaced by Act No 141 of 1991, which introduced the disability support pension in place of the invalid pension and which, by s 94(1), prescribed the eligibility requirements. In addition to age and residence requirements, a person was qualified for the disability support pension if:
‘(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20% or more under the Impairment Tables; and
(c) the person has a continuing inability to work; ...’
[21] Although those particular criteria were framed in terms similar to the corresponding criteria in s 94(1)(a), (b) and (c)(i) in the form in which s 94 now takes, s94(2) of the 1991 provisions contained a definition of ‘continuing inability to work’ materially different from that found in the current s 94(2). The earlier provision provided:
‘(2) A person has a continuing inability to work if the Secretary is satisfied that:
(a) the person’s impairment is of itself sufficient to prevent the person from doing:
(i) the person’s usual work; and
(ii) work for which the person is currently skilled; for at least 2 years; and
(b) either:
(i) the person’s impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years; or
(ii) the person's impairment does not prevent the person from undertaking educational or vocational training but such training is not likely to equip the person, within the next 2 years, to do work for which the person is currently unskilled.’
[22] Section 94(3), (4) and (5) in the 1991 Act were similar to, but not identical with, the corresponding subsections in the current s 94.
[23] It might be thought obvious enough that the 1991 version of s 94(2), read with s 94(3) and (5), required the Secretary, in determining whether a pension claimant had a continuing inability to work, to ask whether there was any category of work available in Australia which that particular claimant could perform, being work for which he was fitted by his existing work experience and skills. This is confirmed by the explanatory memorandum that accompanied the Bill for Act No 141 of 1991. The section dealing with s 94 concluded:
‘The operation of these provisions will be in accord with several principles:
·First, paragraph 94(2)(a) will have the result that where a person could, despite the impairment, do work for which he or she is currently skilled he or she will not qualify for disability support pension. There will then be no need to test the person against paragraph 94(2)(b).
·Secondly, paragraph 94(2)(b) is then applied to test the person's capacity to do work for which he or she could become skilled if trained.’
[24] Section 94 as it appeared in the 1991 Act was replaced by the current form of that provision in 1995.
[25] In the explanatory memorandum to the Bill for the Social Security Legislation Amendment Act (No 1) 1995 (Cth), the following appears in relation to what is now s 94:
‘Several recent Social Security Appeals Tribunal (SSAT) cases and an Administrative Appeals Tribunal (AAT) case have provided a more liberal interpretation of the words in s 94(2) than was intended when the provision was originally inserted.
(a) The requirement in s 94(2)(a)(ii) that the person’s impairment is of itself sufficient to prevent the person from doing work for which the person is currently skilled.
In the case of Loknar (No 92/101), the AAT concluded that the fact that s 94(2)(a)(ii) refers to work for which the person is ‘currently skilled’ rather than ‘any other work’ implied that a person's skill levels are relevant when determining a continuing inability to work and that it was not appropriate to consider unskilled work. The AAT concluded that it was not relevant to consider whether Mr Loknar’s impairment prevented Mr Loknar from performing work of a light nature as long as it precluded him from performing his skilled job (as a carpenter).
Amendments are made that ensure that a person will not qualify for DSP under s 94(2)(a) if the person is fit for any work (whether skilled or unskilled) that the person could do without the need for preparatory education or training.
Secondly, and as a consequence of the above amendment, s 94(2)(b) is amended to ensure that a person will not qualify for DSP if the person's impairment does not prevent the person from undertaking educational, vocational or on the job training unless such training would be unlikely (because of the impairment) to enable the person to do any work within 2 years.
(b) The person’s continuing inability to work must result from the person’s physical, intellectual or psychiatric impairment.
When DSP was introduced in November 1991, it was the intention that DSP be restricted to only those people whose medical condition or illness by itself prevented the person from working.
…
Several recent SSAT and AAT decisions have shown a trend to take factors into account that are a consequence of the person’s impairment such as the person’s attitude and lack of motivation when determining whether the person has a continuing inability to work.
Accordingly, amendments are made to the DSP qualification provisions to ensure that the Secretary must be satisfied that a person’s continuing inability to work is directly caused by a person’s impairment that has been assigned a rating of 20% or more under s 94(1)(b). Conversely, factors that are consequential upon the person’s impairment, such as attitude and lack of motivation to work, are not to be taken into account in determining a person’s continuing inability to work under s 94(2).’
[26] It is difficult to accept that the decision in Re Loknar (1993) 30 ALD 412 was correct in placing the interpretation it did on s 94(2). But it can be seen clearly enough that the intention of the current s 94(2) is that the question of a disability support pension applicant’s continuing inability to work because of his impairment is to be determined by reference, first, to whether his impairment is sufficient to prevent him engaging in any of the necessarily limited range of work for which he has the requisite skills and experience and then by reference to whether there is training available to him of a kind that should fit him, within a two year period, for work which he cannot now do, but would be able to do, given his actual capacities. In making his decision on the second of these issues, the only circumstance peculiar to the particular claimant that the Secretary can take into account is whether the claimant’s impairment itself may prevent him from completing what would ordinarily be no more than a two year retraining course in that time.
[27] It is also clear from the extraneous material that the legislature intended that the Secretary, in applying this test, should disregard attitudinal factors peculiar to the applicant, such as a lack of motivation to work. Hence the ‘of itself’ qualification to 'impairment’ in s 94(2). But this does not mean that the term ‘impairment’ in s 94(1)(a) is a narrow concept: a psychiatric condition caused by a physical injury can be as much part of ‘the impairment’ within s 94(2)(a) as is the physical injury itself. Section 94(1)(a) prevents the Secretary in applying s 94(2) to disregard such a disabling psychiatric consequence of physical injury.
[28] But s 94(2) involves no departure from the intent of the 1991 version of the section: the necessarily limited range of work activities for which the particular claimant is fitted by his actual skills and experience is not to be ignored, in determining his eligibility for this pension. .
[29] Section 94(3), properly understood, shows that this is the way it was intended s 94(2)(a) would operate. The expression ‘any work’ in s 94(2)(a) is not accompanied by any words of qualification. So, prima facie, the Secretary is required to have regard to work of any kind that may be available anywhere in making the determination required by s 94(2)(a). The definition of ‘work’ in s 94(5) requires the expression ‘any work’ to be read as limited, but only to any work that exists anywhere in Australia. Section 94(3)(b) reinforces the Secretary's obligation, in applying s 94(2)(a) to a particular pension claimant, to have regard to any work available anywhere in Australia.
[30] However, s 94(3)(a) imposes a significant qualification on the scope of the inquiry the Secretary is to make in determining whether an applicant meets the requirements of s 94(2)(a). It directs the Secretary to ignore the availability to the pension applicant of occupational retraining. If the expression ‘any work’ in s 94(2) has the unqualified meaning urged by the Secretary, the direction in s 94(3)(a) would be entirely unnecessary. Section 94(3)(a) suggests that the draftsman, sensibly enough, intended s 94(2)(a) to focus the decision-maker’s attention on whether the impairment by itself might prevent the particular pension applicant from doing any kind of work for which that person was already fitted by reason of his actual work skills and work experience, that is, work of the kind he was (the impairment apart) capable of doing without the need for any retraining.
[31] If, as I think it should be, s 94(2)(a) directs the Secretary to confine his determination to whether the impairment of itself is sufficient to prevent the person from doing any work that may be available anywhere in Australia, being work for which that particular person is already fitted without first requiring some form of occupational retraining, s 94(2)(b) then, logically enough, moves on to identifying what impact the availability of occupational retraining is to have on the eligibility of the particular applicant for a disability support pension who surmounts the first hurdle of s 94(2)(a).
[32] Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s 94(2):
As to s 94(2)(a) Does the impairment of itself, that is, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? If so:
As to s 94(2)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, that is, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work. If not, the Secretary must proceed to consider s 94(2)(b)(ii) and ask:
As to s 94(2)(b)(ii) If there is available training of a kind capable of fitting the claimant within a two year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within two years?
If so, the applicant will not be eligible for the pension. But if there is a two year retraining course available to the claimant but his impairment is sufficient by itself to prevent him completing that course within that two year period, he will qualify for the pension. Training that necessarily takes an able bodied person longer than two years to complete is not training of the kind covered by this provision.
[33] The question is whether it is permissible to read s 94(2) in this way.
[34] If the court concludes that the literal meaning of a statutory provision does not conform to the legislative purpose, as ascertained from the statute as a whole, including the policy that may be discerned from its provisions, the court is entitled to give effect to that purpose by addition to, omission from, or clarification of the particular provision: see s 15AA and Saraswati v R (1991) 172 CLR 1 at 22; 100 ALR 193 and Whittaker v Comcare (1998) 28 AAR 55 at 67. On this basis, the court can read s 94(2) in the way suggested, by way of clarification, particularly in view of the support for this reading provided by s 94(1)(b) and (3)(a).
[35] Moreover, where the statutory text is obscure or where the ordinary meaning conveyed by the text, taking into account its context in the Act and the purpose underlying the Act, leads to an absurd or unreasonable result, ss 15AA and 15AB permit the court, by resort to extraneous material of the kinds to which I have referred, to give the provision the meaning which it considers reflects the legislative intent or purpose, even though this may depart from the ordinary meaning of the text: see Saraswati at CLR 22-3; Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1 at 6-7. The only limitation on the court's power conferred by ss 15AA and 15AB to do this is that the court must be able to identify the legislative intent or purpose of the troublesome text: see Whittaker v Comcare at 67. On this basis also, s 94(2) can be read as suggested.”
34. The Tribunal turns to the first of the questions posed by Drummond J in Pusnjak (above), at para [32]. For the purpose of addressing that question the Tribunal notes that, in accordance with the definition of the word “work” in s 94(5) of the Act, the relevant work must be “for at least 30 hours per week at award wages or above”. The Tribunal also notes, and accepts, the respondent’s concession that the expression “any work” in s94(2) of the Act should be qualified so as to exclude work which is unlawful or which involves a contravention of occupational health and safety legislation. Apart from that qualification, and the qualifications necessarily implied in s94(3), and expressed in the definition of “work” in s94(5), of the Act as discussed by Drummond J in Pusnjak, at paras [29]-[30], the Tribunal does not accept that the expression “any work” in s94(2) of the Act admits of any other qualification. In particular, the Tribunal does not accept that the expression “any work” in s94(2) of the Act should be interpreted so as to mean any suitable work in the sense adopted by the Tribunal in Re Secretary, Department of Social Security and Chin (1998) 52 ALD 337 at 343. Such a qualified interpretation would be inconsistent with the literal words of s94(2) of the Act and would, in the Tribunal’s opinion, be contrary to the intention of the legislature when enacting that provision. The Tribunal is fortified in that opinion by a comparison between s94(2) of the Act, on the one hand, and ss541(1), 541D, 601(1) and 601(2A) of the Act, on the other. Whereas the latter provisions expressly refer to “unsuitable” work in the context of qualification for Youth Allowance and Newstart Allowance, s94(2) of the Act refers generally to “any work” and contains no express reference to suitable/unsuitable work. The explanation for that distinction is clear. Sections 541(1), 541D, 601(1) and 601(2A) are concerned with a requirement that the person is actively seeking, and is willing to undertake, work and, in that context, the suitability/unsuitability of that work is, appropriately enough, expressly made a decisive consideration. By contrast, s94(2)(a) of the Act is concerned with the person’s incapacity, by reason of physical or mental impairment, to do “any work”, rather than with the particular kinds of work that the person’s impairment prevents them from doing.
35. Having regard to the whole of the evidence before it, the Tribunal finds that, at the material time, the applicant’s impairment – namely, her profound congenital deafness – was, of itself, not sufficient to prevent her from doing any work (as defined in s94(5) of the Act) within the next 2 years, within the meaning of s94(2)(a) of the Act. The Tribunal bases that finding on the following evidence and material before it:
· the applicant’s undertaking, and successfully completing, 4 units (which the Tribunal understands to be a full-time study load) in the Bachelor of Communications degree course at Edith Cowan University in the second semester of 2002 (Exhibit A9);
· Dr Street’s reports of 25 October 2002 (T8) and 26 November 2002 (T11) in which he opined that the applicant was able to work full-time (for at least 30 hours per week) in open employment in a range of occupations, eg office cleaner ( with minimal training), clerical work (no public contact) (after a period of training);
· the applicant’s evidence that she has computer and keyboard skills, can conduct research on the internet, and can drive a car (having held a driver’s licence since 2000).
36. As regards Dr Barr’s reports, the Tribunal:
· does not accept the opinion expressed in Dr Barr’s treating doctor’s report of 27 August 2002 (T7) that it would be more than 2 years before the applicant was likely to be able to return to any kind of full-time work for at least 30 hours per week – that opinion was merely asserted in a Centrelink form without any elaboration;
· notes that Dr Barr, in his report of 15 November 2002 (T11, pp 51-52), impliedly accepted that the applicant was presently capable of doing “menial work” full-time;
· derives little assistance from Dr Barr’s report of 12 March 2004 (Exhibit A1) because it does not address the critical issue for the purposes of s94(1)(c)(i) and s94(2)(a) of the Act, namely, whether the applicant’s severe hearing impairment is “of itself sufficient to prevent [her] from doing any work within the next 2 years”, but rather addresses irrelevant or peripheral matters such as the unavailability of work, the unsuitability of available work, and the possible, or even probable, adverse effects on the applicant’s emotional and psychological condition were she to be denied DSP.
The Tribunal would add that, in its respectful opinion, Dr Barr, in his report of 12 March 2004, appears to be assuming the role of an advocate for the applicant’s cause in seeking to retain DSP.
37. Likewise, the other reports tendered in evidence by the applicant, namely, the reports of Dr Blackmore (Exhibit A2), Dr Connor (Exhibit A3), Ms Elliott (Exhibit A4) and Ms Webb (Exhibit A6), do not address the abovementioned critical issue for the purposes of s94(1)(c)(i) and s94(2)(a) of the Act, but rather address irrelevant or peripheral matters such as the unavailability of work, the unsuitability of available work, and the possible, or even probable, adverse effects on the applicant’s emotional and psychological condition were she to be denied DSP. Those reports, furthermore, appear to assume, for the purpose of assessing the likely impact of denying the applicant DSP on her emotional and psychological condition, that she would thereby be required to do menial or unskilled work or be restricted to doing that kind of work, and that her emotional and psychological condition would thereby be adversely affected. That assumption is, in the Tribunal’s opinion, unwarranted and, in any event, is beside the point for the purpose of determining whether the applicant is qualified for DSP. The point, for the purpose of determining whether the applicant satisfies the “continuing inability to work” qualification criterion specified in s 94 (1)(c)(i) of the Act, is not whether or not the applicant would be required to, or should, do menial work or unskilled work, but rather whether or not the applicant’s impairment is of itself sufficient to prevent her from doing any work (as defined in s94(5)) within the next 2 years. Accordingly, the Tribunal has derived little assistance from those reports in this case.
38. The Tribunal’s abovementioned finding that the applicant, at the material time, did not satisfy s 94(2)(a) of the Act makes it unnecessary for the Tribunal to make a finding regarding s 94(2)(b) of the Act. Were it necessary for it to do so, the Tribunal would find, on the whole of the evidence and material before it, that at the material time, having regard in particular to the applicant’s successful progress in her university studies in the second semester of 2002, her impairment was, of itself, not sufficient to prevent her from undertaking educational or vocational training or on-the-job training during the next 2 years, and that such training was not unlikely (because of her impairment) to enable her to do any work (as defined in s 94(5)) within the next 2 years, within the meaning of s 94(2)(b) of the Act.
39. Accordingly, the Tribunal finds that, as at the date of cancellation of the applicant’s DSP, namely, 7 November 2002, the applicant did not have a “continuing inability to work” (as defined in s 94(2) of the Act) and that, therefore, she did not satisfy the qualification criterion for DSP specified in s94(1)(c)(i) of the Act. It follows that the applicant was not qualified for DSP under s 94(1) of the Act at that time.
Conclusion
40. There is general agreement in this case that it would clearly be in the applicant’s best interests, including her future career prospects, for her to complete her Bachelor of Communications degree course, and that her retaining DSP would greatly facilitate her accomplishing this. That, however, is not a valid reason for her to continue to receive DSP in circumstances where, as the Tribunal has found, she does not satisfy all of the statutory qualification criteria for DSP.
41. The Tribunal was very impressed by the applicant’s strength of character, her positive attitude and her determination to succeed in spite of her disability, and agrees that it would clearly be in her best interests for her to complete her university degree course. It may be that a particular social security payment is available to her to facilitate her achieving that goal but, as the law presently stands, in her circumstances that social security payment is not DSP.
Decision
42. For the above reasons the Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and Dr P A Staer, Member
Signed: .............(sgd V Wong)..........................................
AssociateDate/s of Hearing 21 April 2004
Date of Last Submissions 12 May 2004
Date of Decision 18 August 2004
Counsel for the Applicant Ms G Archer
Solicitor for the Applicant Legal Aid WACounsel for the Respondent Ms R Bradley
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