Springford and Secretary, Department of Social Services (Social security)

[2025] ARTA 1288

Springford and Secretary, Department of Social Services (Social security) [2025] ARTA 1288 (24 February 2025)

Applicant:  Mr Springford

Respondent:  Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number:   2024/M190758

Tribunal:Member O Sarrinikolaou

Place:Melbourne

Date:24 February 2025

Decision:The Tribunal sets aside the decision under review and remits the matter to the Secretary with the direction that [Mr Springford] satisfied the residence requirements in subparagraph 94(1)(e)(i) of the Social Security Act 1991 when he lodged his claim for disability support pension on 14 February 2023 and his claim should be reassessed on that basis.

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Australian residence requirements – time when the actual impairment was identified – identified disability preceded academic achievements – impact of the COVID-19 pandemic and lockdowns – behavioural deterioration – decision under review set aside and remitted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

1. [Mr Springford], now aged [age], applied to the Administrative Appeals Tribunal (AAT) for review of a decision made by Services Australia (Centrelink) to refuse his claim for the disability support pension (DSP).

2. [Mr Springford] lodged a claim for DSP on 14 February 2023 on the basis that he suffers from autism spectrum disorder (level 2), mild intellectual disability and anxiety which prevent him from working.

3. On 23 February 2023, a Centrelink employee decided that [Mr Springford] was not qualified for DSP because he did not meet the Australian residence requirements for DSP and the claim was refused.

4. [Mr Springford] requested an internal review of Centrelink’s decision, and on 18 June 2023, an authorised review officer decided to affirm the decision.

5. On 4 September 2024, [Mr Springford] made an application to the Tribunal for an independent review of Centrelink’s decision.

6. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

7. The Tribunal hearing proceeded on 11 December 2024 via MS Teams audio. [Mr Springford] did not attend the hearing.  He was represented by his nominee and father, [Father A], who gave evidence to the Tribunal on affirmation. The Tribunal had before it the documents provided by Centrelink (folios 1 to 53) and documents provided by [Father A] prior to the hearing (A1 to A189). At the conclusion of the hearing, [Father A] requested time to provide further evidence in support of [Mr Springford’s] case and the Tribunal granted the request.  [Father A] provided additional documents which the Tribunal had before it (A190 to A289).

ISSUES

1. The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination), which was the instrument in force when [Mr Springford] made his claim on 14 February 2023.

2. The only issue before the Tribunal is whether [Mr Springford] satisfied the residence requirements for DSP when he lodged his claim on 14 February 2023. In determining this issue, the questions that arise are:

   ·When did [Mr Springford] first satisfy paragraph 94(1)(c) of the Act? and

   ·Was [Mr Springford] an Australian resident when he first satisfied paragraph 94(1)(c)?

CONSIDERATION

When did [Mr Springford] first satisfy paragraph 94(1)(c) of the Act?

1. In addition to the medical requirements, subsection 94(1) of the Act provides that a person will qualify for the DSP if they satisfy the age and residence requirements.  Paragraph 94(1)(e) sets out the residence requirements for DSP.

2. The Tribunal considered whether [Mr Springford] satisfies subparagraph 94(1)(e)(i) of the Act which requires that the person is an Australian resident when they first satisfy paragraph 94(1)(c).  An Australian resident is defined in subsection 7(2) and requires that the person resides in Australia and is either an Australian citizen, a permanent visa holder or a special category visa holder.  Paragraph 94(1)(c) of the Act provides that a person either has a continuing inability to work or is participating in a supported wage system program administered by the Commonwealth.  Subsection 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if:

   ·The person has participated in a program of support unless the person has a severe impairment; and

   ·The impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   ·Either the impairment is of itself sufficient to prevent the person undertaking a training activity during the next 2 years, or if the impairment does not prevent the person from undertaking a training activity, such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support in the next 2 years.

3. Subsection 95(5) of the Act defines training activity as education, pre-vocational training, vocational training, vocational rehabilitation, or work-related/on-the-job training.  Work is defined as at least 15 hours per week on wages that are at or above the relevant minimum wage, and that exists in Australia, even if not within the person’s locally accessible labour market.

4. The interpretation and application of subparagraph 94(1)(e)(i) of the Act has been considered by the Federal Court and the Tribunal on many occasions and in circumstances where a person arrives in Australia having been born overseas with a disability. In Secretary Department of Family and Community Services v Michael [2001] FCA 1811 at [27], the Full Court of the Federal Court said:

   We favour the construction of subpar 94(1)(e)(i) which requires the decision-maker to determine when the actual impairment identified for the purposes of pars 94(1)(a), (b) and (c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of par 94(1)(c). It is true that such an exercise will sometimes be difficult to perform. As was recognized by the Full Court in Raizenberg, any exercise of this kind will pose problems. However, in most cases, the decision-maker will have only to determine whether or not the impairment as it is at the relevant time was present at the time at which the claimant became an Australian resident.

5. The Tribunal first identified the impairment sought to be relied on by [Mr Springford] in his claim for DSP. Paragraph 94(1)(a) of the Act provides that a person must have a physical, intellectual or psychiatric impairment. Section 3 of the Determination defines impairment as a loss of functional capacity affecting a person’s ability to work that results from the person’s condition. The documentary evidence before the Tribunal confirms that [Mr Springford] has been diagnosed with autism spectrum disorder level 2, mild intellectual disability and anxiety. [Mr Springford] has demonstrated reduced learning capacity, communication difficulties, antisocial behaviour and behaviours of concern, including violent outbursts posing a risk to himself and others.  On the available evidence, the Tribunal is satisfied that [Mr Springford] has an intellectual and psychiatric impairment resulting from his diagnosed conditions. 

6. The next question for the Tribunal is to determine when [Mr Springford’s] impairments were such as to prevent him from doing any work independently of a program of support within the next 2 years in accordance with subsection 94(2) of the Act.

7. [Father A] gave evidence that [Mr Springford] attended mainstream school in [Country 1] and Australia. [Mr Springford] was assessed for autism at the age of 3 in [Country 1] because he was demonstrating odd behaviours, such as not wanting to mingle or to go outside to play with other children. As a child, [Mr Springford] preferred to stay home. Whilst growing up, [Mr Springford] consulted a paediatrician and received behavioural therapy.  Despite his challenges, he completed [grade] in [Country 1] prior to moving to Australia in 2018.  [Mr Springford] did not demonstrate any alarming behaviours and neither [Father A] nor his wife had reason to be concerned. [Mr Springford] also demonstrated some difficulty with learning and following instructions which caused his teachers to organise an assessment in 2017 that revealed his intellectual disability. However, he attended and was active in school, he participated in sports and was an average student as confirmed by the academic transcript from the [relevant state] Examination Board dated May 2018.[1] 

   [1] A209

8. After the hearing, [Father A] provided copies of certificates of achievement and confirmation of the various training courses [Mr Springford] completed in [Country 1] and Australia.  [Mr Springford] received a certificate of achievement for his participation in a community project in 2018,[2] he came first in a spelling competition in 2018,[3] he received a sports award from [an Australian sport agency] in 2018 for outstanding sportsmanship and accomplishments,[4] and he completed a [Qualification 1] in 2020 for which he was marked competent in all modules.[5]

   [2] A198

   [3] A205

   [4] A206

   [5] A193

9. [Father A] told the Tribunal that [Mr Springford’s] mental health and functioning declined significantly after the COVID-19 pandemic and lockdowns in 2020. [Father A] first witnessed aggressive behaviours from his son in 2021. At about that time, there was also a change to [Mr Springford’s] routine.  He was previously attending high school 5 days per week, and in [grade], [Mr Springford] commenced vocational training through the VCAL program rather than VCE.  The VCAL program required 2 days of classroom time and 3 days of vocational training onsite.  [Mr Springford] struggled with the onsite work component because of the noise and people speaking loudly which [Mr Springford] perceived as aggression towards him. [Father A] told the Tribunal that [Mr Springford’s] mental health declined significantly, and he had no choice but to take [Mr Springford] to the hospital where he was admitted for the first time in 2021.  

10. The Tribunal does not have the benefit of medical reports or assessment from [Country 1].  However, the documentary evidence prepared in Australia provides a useful chronology of [Mr Springford’s] functional capacity since his arrival in 2018.

11. [Mr Springford] was assessed by [Psychologist A] on 30 October 2018 at the request of [Mr Springford’s] teachers who were concerned about “his lack of progress in learning and poor social skills”.[6] [Psychologist A] administered the Wechsler Nonverbal Scale of Ability, and [Mr Springford] obtained a score of 58 which placed him in the extremely low classification.  [Psychologist A] concluded that the results indicate that [Mr Springford] presents with a “mild intellectual disability”.

    [6] A237

12. In a report dated 21 February 2019, [Psychologist B] agreed with [Psychologist A]. Relevantly, [Psychologist B] reported that [Mr Springford’s] behaviour varied from being withdrawn and disengaged to being disruptive and that he presents with additional safety concerns and requires additional support and supervision during excursions.[7]

    [7] A250

13. [Speech Pathologist A] assessed [Mr Springford] in March 2019 and prepared a report on 2 May 2019.[8]  [Speech Pathologist A] reported that [Mr Springford] presented as happy to engage. His performance on the various assessments revealed very low receptive and expressive language abilities, as well as very low social communication/pragmatic skills when compared to other students of his age.

    [8] A254

14. [Mr Springford] was assessed by developmental and clinical psychologist, [Psychologist C], in March and April 2019.[9]  [Psychologist C] reported that [Mr Springford] obtained a score of 53 on the Vineland Adaptive Behaviour Scale which places him in the low category for overall adaptive behaviour. [Psychologist C] concluded that on autism assessment, [Mr Springford’s] scores indicated that he satisfies the diagnostic criteria for autism and his symptoms are severe.  [Psychologist C] reported that [Mr Springford] displays “persistent deficits in social communication and social interaction across multiple contexts” and “stereotyped and repetitive patterns of behaviour and restricted interest”.

    [9] A284

15. In a letter dated 7 February 2025,[10] [Mr A], [College 1] team leader, reported that he was the Community VCAL Coordinator for [Agency 1] and worked closely with [Mr Springford] in 2021 when he was a student in the VCAL program. [Mr A] reported:

    During the 2021 school year [Mr Springford] was able to engage with our learning program initially but due to challenges with his mental health we saw a significant decline in his engagement and ability to participate in the program. [Mr Springford] was unable to attend the course and disengaged due to mental health and subsequent hospitalisation and medical interventions.

    [10] A289

16. [Mr A] confirmed that he met with the family to discuss possible pathways to re‑engage with the program but due to the severity and impact of [Mr Springford’s] conditions he was unable to re-engage. 

17. [Mr Springford] has been engaged with [Health Service 1], [Unit 1] since approximately 2021. In a letter dated 1 April 2021, [Doctor A], senior medical officer, confirmed that [Mr Springford] suffers anxiety associated with autism and intellectual disability which can result in behaviours of concern.  [Doctor A] reported that [Mr Springford] had recently started medication to ease his anxiety.[11]

    [11] A219

18. [Doctor B], developmental disability medical specialist, prepared a report dated 15 December 2022.  Current medication was listed as fluoxetine, aripiprazole and amlodipine.  Previous medication was listed as escitalopram, risperidone and metoprolol. Relevantly, [Doctor B] reported that [Mr Springford] was discharged from hospital in March 2021 and on the recommendation of the psychiatrist returned to [Country 1] for a short stay to see his grandparents.  However, this did not go well. [Mr Springford’s] behaviours got worse and he was admitted to a psychiatric hospital in [Country 1] for one month.  [Mr Springford’s] behaviours did not improve since he returned to Australia in July 2022.  He screams loudly and is physically aggressive, scratching faces and damaging property.  [Mr Springford] refuses to engage in activities during the day. [Doctor B] expressed concern about the impact of [Mr Springford’s] disability on his mother’s physical and mental wellbeing.

19. On 14 February 2023, [Doctor C], [Mr Springford’s] general practitioner since 2019, certified that [Mr Springford] is unable to work and will likely never be able to.[12] 

    [12] A100

20. In a report dated 16 February 2023, [Doctor B] described incidents that occurred in January 2023 as reported by [Mr Springford’s] parents.  [Mr Springford] went swimming and started pushing his support worker when he became agitated.  There was an incident involving the police when [Mr Springford] was at a [location] with two support workers.  He became agitated and pushed an unknown lady and she fell.  No charges were laid.  [Doctor B] recommended that [Mr Springford] have two support workers with him while out in the community and one worker while at home. She also recommended that [Mr Springford] reside in specialist disability accommodation and that his parents be appointed his guardians for financial and medical decision-making.

21. A discharge summary from [Health Service 1] – [Unit 2], prepared by [Doctor D], confirms that [Mr Springford] was admitted on 16 March 2023 and discharged on 14 April 2023.[13] While in the unit he assaulted nurses without provocation and punched another patient.  [Mr Springford] presented because his behaviours had increased in the last 2 years, and he is currently unmanageable in a community setting. The summary states that he was previously admitted in February 2021 due to ongoing agitated behaviours at home and that across the past 4 years, there has been a significant decline in function, increased rigidity and the emergence of physical aggression BOC. On original presentation in 2020, it was felt that his deterioration related to anxiety in the setting of cultural change and shifts in expectations and therefore BOCs in keeping with ASD. [Doctor D] opined that the level of deterioration is indicative of deterioration in cognitive function and there may be a psychotic process.

    [13] A95

22. [Mr Springford] was assessed by [Occupational Therapist A] in February and March 2024. [Occupational Therapist A] prepared a report dated 8 March 2024,[14] and although the assessment postdates the qualification period for DSP, [Occupational Therapist A] sets out [Mr Springford’s] history and background which is relevant to the Tribunal’s considerations. Much of the history reported by [Occupational Therapist A] is consistent with the evidence from [Father A] before the Tribunal. [Occupational Therapist A] reported that [Mr Springford’s] previous therapist observed classroom photos, and certificates of achievement dated up until 2020. She reported that [Mr Springford] was engaged with one support worker from August 2022, and since January 2023, [Mr Springford] required two support workers for community access due to safety concerns. [Occupational Therapist A] reported that [Mr Springford] successfully completed [specified grades] at [School 1] where he was supported into the VCAL program to complete [grade] as his behaviours began to develop, which is consistent with the Victorian lockdown in 2020. She stated that [Mr Springford] did not complete [grade], often not attending school, as his behaviours continued to exacerbate to the point that he was removed from school.

    [14] A16

23. [Occupational Therapist A] reported that on 17 January 2023, [Mr Springford] began residing in a supported residential service, however, the service could not support him because of his aggression and [Mr Springford] was admitted to the psychiatric unit in March 2023. When discharged, he returned home with his parents.  However, [Mr Springford’s] aggressive behaviours escalated, and he assaulted his parents who required medical attention. [Mr Springford] was moved into short-term accommodation. In addressing [Mr Springford’s] functional decline, [Occupational Therapist A] reported that prior to 2020, [Mr Springford] was independent with showering, was able to prepare light meals and could attend to grocery shopping with his parents. [Mr Springford] would previously advise when his toothbrush needed replacing.  [Mr Springford] could not complete any of these tasks during the assessment in 2024 with [Occupational Therapist A].

24. The evidence before the Tribunal confirms that [Mr Springford] was diagnosed with autism and an intellectual disability as a child in [Country 1]. The evidence also shows that [Mr Springford’s] capacity to function was affected by his diagnosed conditions – he was experiencing learning difficulties and demonstrating antisocial behaviours.  However, he was able to remain in mainstream school and achieve satisfactory results which is confirmed by his academic transcript from the [relevant state] Examination Board. Whilst in [Country 1], [Mr Springford] lived with his mother and grandparents, and although he was engaged with a paediatrician and received behavioural therapy, his conditions did not cause significant concern to his parents.  Upon his arrival in Australia in 2018, [Mr Springford] resided with both parents and continued his studies at [School 1], in mainstream education. [Mr Springford] was able to complete [specified grades].

1. The psychological reports completed by [Psychologist A] and [Psychologist B] referred to learning difficulties and poor social skills, as well as a need for additional support and supervision on excursions.  There was no evidence of violent behaviours or that he posed a risk to staff and students.  [Speech Pathologist A] reported that [Mr Springford] was happy to engage in the speech assessment.

2. The documentary evidence shows a stark contrast in [Mr Springford’s] behaviour and functioning from 2021, commencing with his inability to continue in the VCAL program, multiple admissions to the [Health Service 1] psychiatry unit, an increase in aggressive and violent behaviour towards his parents, often requiring medical attention, and towards members of the public requiring police involvement. [Mr Springford’s] behaviours escalated to the point where it was no longer safe for him to live at home with his parents.  Although [Mr Springford] became a participant of the National Disability Insurance Scheme in 2020, on the evidence of [Father A], [Mr Springford] did not access most of the approved supports.  However, by August 2022, he needed one support worker, and from January 2023, [Mr Springford] required two support workers when out in the community and at least one while at home.

3. There is no evidence before the Tribunal that [Mr Springford] ever attempted to work or that his capacity to work was ever assessed which makes the task difficult as acknowledged by the Full Court in Michael. The only evidence addressing work capacity is the certificate from [Doctor C] dated 14 February 2023 in which the doctor reported that [Mr Springford] is unable to work and will likely never be able to work.

4. Having regard to the trajectory of [Mr Springford’s] functioning as reported by his doctors and allied health professionals from 2018 to 2023, the Tribunal is satisfied that his continuing inability to work first arose when he stopped the VCAL program in early 2021 which also coincided with his first admission to the [Health Service 1] psychiatric unit on 18 February 2021. There is no evidence of any improvement in [Mr Springford’s] condition from February 2021 despite four lengthy hospital admissions, regular consultations with his treating practitioners at [Health Service 1] and allied health care team, and trialling various medications, including antipsychotics. The Tribunal finds that [Mr Springford] first satisfied paragraph 94(1)(c) of the Act on 18 February 2021.

Was [Mr Springford] an Australian resident when he first satisfied paragraph 94(1)(c)?

1. The Tribunal found that [Mr Springford] first satisfied paragraph 94(1)(c) of the Act on 18 February 2021, meaning that as at that date, [Mr Springford’s] psychiatric and cognitive impairments prevented him from doing any work of at least 15 hours per week independently of a program of support within the next 2 years.  The Tribunal then considered whether [Mr Springford] was an Australian resident as defined in subsection 7(2) of the Act on 18 February 2021.

2. [Mr Springford] arrived in Australia with his mother on 28 July 2018 on a visa Subclass 100 and is, therefore, a permanent resident visa holder. He moved to Australia in 2018 to be with his father, [Father A], who has been living and working in Australia for 18 years and is an Australian citizen. [Mr Springford] travelled back to [Country 1] with his parents on 10 April 2021 on the advice of his psychiatrist at [Health Service 1] who suggested that [Mr Springford’s] behaviours may improve when he reunited with his grandparents which is consistent with the documentary evidence before the Tribunal.  [Mr Springford] did not return to Australia until [July] 2022.  [Father A] told the Tribunal that they were unable to return earlier because of the border closures during the pandemic and the Tribunal accepts this evidence. [Mr Springford] has not returned to [Country 1] since then.  [Father A] and his wife work full‑time in Australia and live in rental property in [Suburb 1].  There does not appear to be any suggestion by Centrelink that [Mr Springford] was not residing in Australia.  The reason his claim was refused was that he did not have 10 years qualifying residence. On the available evidence, the Tribunal finds that [Mr Springford] was residing in Australia and was a permanent visa holder and, therefore, an Australian resident as defined when he first satisfied paragraph 94(1)(c) of the Act.

3. It follows that when [Mr Springford] lodged his claim for DSP on 14 February 2023, he satisfied the residence requirement in subparagraph 94(1)(e)(i) of the Act.

DECISION

The Tribunal sets aside the decision under review and remits the matter to the Secretary with the direction that [Mr Springford] satisfied the residence requirements in subparagraph 94(1)(e)(i) of the Social Security Act 1991 when he lodged his claim for disability support pension on 14 February 2023 and his claim should be reassessed on that basis.

Date of hearing:	11 December 2024
Representative for the Applicant:	[Name]