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

[2023] AATA 390

Taverner and Secretary, Department of Social Services (Social services second review) [2023] AATA 390 (15 March 2023)

Division:General Division 

File Number(s):      2021/7960

Re:Ellouise Taverner  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member R Bellamy

Date:15 March 2023

Place:Brisbane

The decision under review is set aside and substituted with a decision that the matter be remitted to the Respondent for reconsideration with directions that:

a) the Applicant satisfied the requirements of subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 as at the date of claim, being 18 January 2017; and

b)    subject to the Applicant satisfying any other requirements as to qualification for, or entitlement to payment of, Disability Support Pension, her application of 18 January 2017 is to be granted.

........................[SGD]..........................

Senior Member R Bellamy

1.     

Catchwords

Social Security – Disability Support Pension – Where Respondent concedes but Applicant reluctant to accept terms of settlement.

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member R Bellamy

15 March 2023

1. On 22 May 2019, the Social Services and Child Support Division of this Tribunal (“SSCSD”) affirmed a decision of Services Australia to reject Ms Ellouise Taverner’s application for Disability Support Pension (“DSP”). Her mother, Mrs Taverner, sought a review of that decision in the General division of the Tribunal on her behalf. The General division is able to review the SSCSD decision pursuant to s 179 of the Social Security (Administration) Act 1999. Ellouise Taverner is the Applicant in this proceeding. When I refer to her having done something, that includes her mother having done something on her behalf. 

2. The Applicant lodged a claim for DSP on 18 January 2017.

3. Section 94(1) of the Social Security Act 1991 (“the Act”) Act relevantly provides that:

   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

   …;               

4. The issue for determination is whether, at that time of her application or within thirteen weeks thereafter, being 18 January 2017 to 19 April 2017, (“the qualification period”), the Applicant satisfied s 94(1) of the Act. That is, did she have:

   ·a physical, intellectual or psychiatric impairment(s);

   ·arising from a fully diagnosed, treated and stabilised medical condition(s) that attract an impairment rating of at least 20 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and

   ·A continuing inability to work (“CITW”).

5. To attract a rating under the Impairment Tables, the relevant condition must be permanent, and it must be more likely than not that the resulting impairment will persist for more than two years.[1]

   [1] Section 6(3) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

   Brief history of the claim

6. The Applicant was born in 1998.

7. On 18 January 2017 the Applicant lodged her claim for DSP, advising that her ability to work is affected by the following conditions: separation anxiety, panic attacks, generalised anxiety disorder, depression, mild intellectual disability, learning and social difficulties, difficulties in attention and executive functioning, autism spectrum disorder (“ASD”) and Asperger’s.

8. On 20 February 2017, the Respondent completed a Job Capacity Assessment Report in respect of the Applicant. In that assessment, an accredited exercise physiologist and a registered psychologist advised that her condition was not fully treated and stabilised because she had treatment pending with a psychologist who specialised in ASD, and they opined that with ongoing intervention, improvement in functioning was “anticipated”.

9. On 2 September 2017 the Respondent rejected the Applicant’s claim for DSP. On 28 November 2017, the Applicant requested review of that decision. On 12 February 2019 an Authorised Review Officer (“ARO”) decided that:

   ·the Applicant’s ASD was not fully treated and stabilised;

   ·the Applicant’s depression and anxiety were not fully treated and stabilised;

   ·the Applicant’s learning disorder was not fully treated and stabilised.

10. The ARO affirmed the decision. On 1 March 2019 the Applicant requested a review of the ARO’s decision in the SSCSD. On 22 May 2019, the SSCSD conducted a hearing and one that same day affirmed the ARO’s decision. The SSCSD made findings that:

    ·the Applicant’s ASD was fully diagnosed, treated and stabilised in the qualification period, attracting an impairment rating of 10 points under Table 7 of the impairment tables;

    ·the Applicant’s learning difficulties were fully diagnosed, fully treated and fully stabilised, attracting an impairment rating of 0 points under Table 8 of the impairment tables; and

    ·the Applicant’s mental health condition was not fully treated and stabilised and could not be assigned an impairment rating.

11. On 26 October 2021, the Applicant applied to the General division of the Tribunal for review of the SSCSD decision. The matter went through two alternative despite resolution conferences but resolution was not reached.

12. On 17 October 2022 the Respondent filed a Statement of Facts and Contentions. The Respondent advises that in the meantime, the applicant had made a fresh application for DSP on 21 September 2021 and in support of that application she provided additional evidence from her General Practitioner that is pertinent to the qualification period. That evidence was lodged in the Tribunal on 25 October 2022, and on 22 November 2022, the applicant lodged further evidence that included a January 2017 report from Ros Mulcahy.

13. As a result of that evidence, the Respondent now contends that as at the time of her claim for DSP the Applicant:

    (a)had a severe (20 point) impairment arising from her fully diagnosed, fully treated and fully stabilised Autism (ASD) condition; and

    (b)had a continuing inability to work 15 hours per week.

14. The reasons for these concessions are set out in the Respondent’s supplementary Statement of Facts and Contentions which is exhibited to this decision.

15. The Respondent made an offer to settle the application on the basis that effectively meant the Applicant succeeded in her Tribunal application. That is, that she satisfied the criteria in s. 94(1)(a), (b) and (c) of the Act 1991 as at the date of her claim and that, subject to her satisfying any other criteria, her claim was to be granted.

16. Mrs Taverner was hesitant to agree to these terms on behalf of her daughter because of the reference to her having to satisfy other requirements. Section 94 of the Act contains other criteria, for example a claimant must be at least 16 years old and an Australian resident. Mrs Taverner, not knowing what all the criteria were, was afraid that her daughter’s application could be rejected for another reason and they would have to go through this process all over again.

17. As the reviewable decision was based on the applicant’s failure to satisfy the requirements in s94(1) of the Act, the Tribunal is confined to determining whether she satisfied those requirements in the qualification period. The Tribunal cannot make determinations about the other criteria or require the Respondent to indicate whether the applicant satisfied those criteria. However, I note that the applicant’s 21 September 2021 application was accepted which indicates that she satisfied the other criteria at that date, which in turn may indicate that there will be no further rejection of the 2017 application.

18. Section 34J of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal may review a decision without holding a hearing if it appears the issues can be adequately determined in the absence of the parties and the parties consent to the review being determined without a hearing. Given the concessions made by the Respondent, the applicant must succeed in her application unless I do not accept those concessions. I have no reason not to accept them, having read the Respondent’s submissions and the medical evidence referred to in this decision. To be clear, had the Tribunal held a hearing, the applicant could not have achieved a better result than what the Respondent offered.

19. Accordingly, in the interests of efficiency, I have made a decision in the applicant’s favour without holding a hearing. I foreshadowed this in a telephone directions hearing (“TFH”) with the parties and there was no objection from either party. Since that TDH, Mr Harvey for the Respondent provided the Tribunal and Mrs Taverner with the supplementary Statement of Facts and Contentions explaining the Respondent’s change in position. I am grateful to Mr Harvey for doing that so Mrs Taverner has a clear, written explanation of why her daughter’s application was rejected and why it has now been accepted as far as level of impairment and inability to work goes.       

20. The decision under review is set aside and substituted with a decision that the matter be remitted to the Respondent for reconsideration with directions that:

    c)    the Applicant satisfied the requirements of subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 as at the date of claim, being 18 January 2017; and

    d)    subject to the Applicant satisfying any other requirements as to qualification for, or entitlement to payment of, Disability Support Pension, her application of 18 January 2017 is to be granted.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

.......................[SGD]........................

Associate

Dated: 15 March 2023

EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	Section 37 T-Documents (375 pages)	R	-	10 December 2021
2	Respondent’s Statement of Facts, Issues and Contentions (20 pages)	R	17 October 2022	17 October 2022
3	Applicant’s bundle of supporting documents (4 pages)	A	Various	10 May 2022
4	Applicant’s further bundle of supporting documents (27 pages)	A	Various	27 September 2022
5	Applicant’s second further bundle of supporting documents (32 pages)	A	Various	25 October 2022
6	Applicant’s submissions and final bundle of supporting of supporting documents (35 pages)	A	Various	22 November 2022
7	Respondent’s email to Tribunal advising of offer to settle (2 pages)	R	19 January 2023	19 January 2023
8	Unsigned settlement terms proposed to the Applicant by the Respondent (1 page)	R	19 January 2023	19 January 2023
9	Respondent’s supplementary Statement of Facts, Issues and Contentions (31 pages) including: -       Attachment A – Letter from Ros Mulcahy (Autism Spectrum Australia) -       Attachment B – Questionnaire completed by Dr Peter McMillan GP dated 4 April 2022 -       Attachment C – Questionnaire completed by Dr Peter McMillan GP dated 1 September 2022 -       Attachment D – Questionnaire completed by Dr Peter McMillan GP dated 15 September 2022 -       Attachment E – Questionnaire completed by Dr Peter McMillan GP dated 6 October 2022	R	17 February 2023	17 February 2023