TH and Secretary, Department of Social Services (Social services second review)
[2016] AATA 1024
•14 December 2016
TH and Secretary, Department of Social Services (Social services second review) [2016] AATA 1024 (14 December 2016)
Division
GENERAL DIVISION
File Number
2016/2571
Re
TH
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 14 December 2016 Place Sydney The decision under review is set aside and remitted with the following directions:
- TH’s Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder first became manifest on or about 29 August 2013; and
- TH’s continuing inability to work first became manifest in the period from February to May 2015.
........................[sgd]................................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – residency requirements – onset of impairment – onset of continuing inability to work – whether the continuing inability to work arose before applicant became an Australian resident – decision set aside and remitted
LEGISLATION
Social Security Act 1991 (Cth), s 94(1)(e)(i)
Social Security (Administration) Act 1999 (Cth)
CASES
Carroll and Secretary, Department of Social Services (Social services second review) [2015] AATA 982
Fallah and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 344
Secretary, Department of Family and Community Services v Michael [2001] FCA 1811Syal and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 759
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Professor R McCallum AO, Member
14 December 2016
INTRODUCTION
The Applicant, TH was born in the United Kingdom in 1999. He moved to Australia with his Mother, Step-Father and two younger half-sisters in 2009. His Step-Father was granted a subclass 457 visa.
TH and his family became permanent residents of Australia on 17 April 2014 when TH’s Step-Father was granted a subclass 186 visa. TH and his family also acquired subclass 186 visas as dependents.
On 29 August 2013, Dr Mark Selikowitz diagnosed TH as having Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder.
On 3 June 2015, TH lodged an application for Disability Support Pension (DSP).
On 14 July 2015, TH underwent a Job Capacity Assessment (JCA).
The assessor concluded that TH’s Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder were fully diagnosed, treated and stabilised. These impairments were assessed under Table 7 which is titled “Brain Function”. Table 7 is contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the impairment tables).
The assessor assessed TH’s Autism Spectrum Disorder at 20 points under Table 7 of the impairment tables. To avoid double counting, TH’s Attention Deficit Hyperactivity Disorder was assessed at 0 points under Table 7.
TH’s baseline capacity to undertake work was assessed as 0-7 hours per week, increasing to 8-14 hours per week within two years with intervention.
A Government Contracted Doctor completed a Disability Medical Assessment on 28 July 2015 for TH, and the doctor agreed with the findings of the JCA.
On 1 October 2015, a second JCA was written and this report also agreed with the earlier JCA and with the disability medical assessment.
On 20 October 2015, the Department of Human Services which is better known as Centrelink, refused TH’s claim for DSP because he did not satisfy the residency requirements. TH sought review from an Authorised Review Officer, but to no avail.
TH then sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is an AAT first review (AAT1). While the AAT1 affirmed the original decision, it did so for differing reasons. Briefly put, the AAT1 held that TH did not have a continuing inability to work because he was studying at a secondary school for more than 15 hours per week.
TH now appeals to the General Division of the AAT which is an AAT second review (AAT2).
THE LEGISLATION
The legislation governing most aspects of DSP is the Social Security Act 1991 (Cth) (the SS Act). The qualifications for DSP are set out in section 94 of the SS Act. Subsection 94(1) relevantly provides as follows:
94 Qualification for disability support pension
(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;
…
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; and
…
The phrase “continuing inability to work” is defined in subsection 94(2) of the SS Act. At the date of TH’s application, subsection 94(2) was as follows:
Continuing inability to work
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) in all cases--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
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) 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 within the next 2 years.
“Work” is defined in subsection 94(5) as follows:
“work” means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
The relevant time period in which to assess TH’s claim for DSP is prescribed by subclause 4(1) of schedule 2 of the Social Security (Administration) Act 1999 (Cth). It is not necessary to set out this subclause. It is sufficient to write that the period in which to assess the claim of TH is 13 weeks from when the claim was made on 3 June 2015 to 2 September 2015 which is known as the claim period.
COMMON GROUND
It was common ground between the Applicant and the Respondent that during the claim period, TH satisfied subsection 94(1) paragraphs (a), (b), (c) and (d). Under paragraph (a), TH suffers from the impairments of Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. His Autism Spectrum Disorder has been assessed at 20 points under the impairment tables, thus satisfying paragraph (b). The parties accept that TH complies with paragraph (c) as he has a continuing inability to work, and as he was sixteen when he claimed DSP, TH satisfies paragraph (d).
THE ISSUE BEFORE THE TRIBUNAL
The issue which I am required to decide as I stand in the shoes of the Secretary, is whether or not TH satisfies the residency requirements as set out in subsection 94(1) paragraph (e). If I find in his favour, then TH is entitled to DSP. However, if I find that TH does not satisfy the residency requirements I shall affirm the decision under review.
THE HEARING
TH’s Step-Father and his Mother attended the hearing. TH did not attend. TH’s Step-Father gave sworn evidence, and TH’s Mother gave evidence by affirmation. In my view, they both did their best to assist this Tribunal.
TH and his family were represented by Mr Turton, and Dr Thompson represented the Respondent. I take this opportunity to thank Mr Turton and Dr Thompson for their helpful submissions.
INTERPRETING PARAGRAPH (E)
The first task which I must undertake is to interpret paragraph (e) of subsection 94(1) of the SS Act which I have set out above.
It is clear that TH does not satisfy subparagraphs (e) (ii) and (e) (iii). TH does not have 10 years qualifying Australian residence; or a qualifying residence exemption; and although TH was born outside Australia, he was not a dependent child of an Australian resident parent at the time he contracted the impairment, and then subsequently entered Australia while still a dependent child.
The question before me is whether TH satisfies subparagraph (e)(i) of subsection 94(1) of the SS Act. TH will satisfy subparagraph (e)(i) if he “ … is an Australian resident at the time when … [he] satisfies paragraph (c)” of subsection 94(1) of the SS Act.
The leading decision on the scope of subparagraph (e)(i) of subsection 94(1) is Secretary, Department of Family and Community ServicesvMichael [2001] FCA 1811 (Michael’s Case) which was handed down by a full court of the Federal Court of Australia in 2001.
Justice Drummond commented on paragraph (e) of subsection 94(1) in the following passage:
[4] … It is plain that para (e) of the sub-section was intended by Parliament to ensure that a non-Australian resident who enters Australia with an impairment that is sufficient to satisfy s 94(1)(c)(i) will not be entitled to a disability support pension until the person has resided in Australia for the substantial period of time sufficient to amount to "10 years qualifying Australian residence" within s 94(1)(e)(ii) (unless the person, though a non-Australian resident at the time, contracted that impairment while the dependent child of an Australian resident parent and subsequently entered Australia while still so dependent: see s 94(1)(e)(iii)).
[5] Section 94(1)(e)(i) should therefore be read as requiring the pension applicant to be an Australian resident when the person first suffers the particular impairment which is found, as at the date of determination of the pension claim, to be sufficient to prevent the person from doing any work within the two years immediately following that date.
A more nuanced approach to paragraph (e) was enunciated in the joint judgment of Kiefel and Dowsett JJ. The below passage from their Honours reasons is lengthy, but given the centrality of this issue in the matter before me, it is necessary to clearly comprehend the approach of their Honours to subparagraph (e) (i). Kiefel and Dowsett JJ wrote as follows:
[21] It is clear from the above and from the terms of the Act that the expression "continuing inability to work" does not imply permanent incapacity. The Act recognizes that a person may be unable to work at one point in time but may not necessarily be permanently incapacitated. It is easy to identify a number of factors which may operate to remove the incapacity. His or her condition may improve. He or she may adapt to the incapacity and so recover capacity to work. New developments in technology, knowledge or skills may assist the relevant person to work. New jobs may become available for which he or she is suited notwithstanding the relevant incapacity.
[22] Obviously enough, subs 94(2) is intended to define the expression "continuing inability to work" for the purposes of para 94(1)(c). It is of interest that the expression defined in subs 94(2) is "a continuing inability to work because of an impairment". Impairment is referred to in para 94(1)(a) and para (b) but not in conjunction with the expression "a continuing inability to work" in para 94(1)(c). Its presence in subs 94(2) demonstrates that the continuing inability referred to in subpara 94(1)(c)(i) must be the result of the impairment referred to in para 94(1)(a) and para 94(1)(b).
…
[23] In determining whether or not a person satisfies para 94(1)(c), it is therefore necessary to ask whether or not he or she has a continuing inability to work because of an impairment which is of itself sufficient to prevent him or her from doing any work within the next two years, that is for the two year period commencing upon the date on which the relevant claim is under consideration. … If the relevant person is relevantly impaired as to be unable to work for that period, and otherwise satisfies the requirements of subs 94(1)(a) to para 94(1)(d), then the next question is whether or not he or she satisfies para 94(1)(e) and in particular, for present purposes, subpara 94(1)(e)(i). As we understand it the applicant's [the Department’s] submission is that one simply looks to see whether or not the relevant claimant has, at some time prior to becoming an Australian resident, satisfied subs (c) in the sense that he or she has been so impaired as to be unable to work for two years, presumably from the time at which the impairment was diagnosed or perhaps, first arose. The respondent's [the person applying for the pension] submission, on the other hand, is that as the respondent would not have worked, or perhaps could not legally have worked, until his sixteenth birthday, he had no continuing inability to work until that event, by which time he was an Australian resident.
[24] We find no support in the text of the section for the respondent's submission. The approach to construction taken by the AAT in upholding that submission is, in our view, somewhat contrived and artificial. As to the applicant's submission, it fails to recognize the importance of the identified two year period in the operation of the section. The expression "first satisfies paragraph (c)" may refer either to:
· the first occasion on which a claimant is impaired from any cause so as to be unable to work for any two year period; or
· the time at which he or she first suffers the actual impairment which causes the continuing inability to work for the identified two-year period.
[25] Although there is a degree of artificiality surrounding both approaches, the former is the less satisfactory. It would require that the decision-maker enquire into other conditions which may have previously caused inability to work, going back over many years. The latter approach focuses only upon the impairment relevant for the purposes of para 94(1)(c) and its effect during the identified period. We concede that there is an anomaly in this approach. A person who suffered from an impairment which caused a relevant continuing inability immediately prior to his or her becoming an Australian citizen might, without recovering the capacity to work, suffer another impairment, by itself causing a relevant inability. It is arguable that the second impairment would entitle the person to a pension, notwithstanding his or her inability to work even apart from the relevant impairment. It is not necessary that we decide whether or not that is the case, but assuming that it is, we make two observations:
· Such an event will be very rare; if there is an anomaly, it is not of great significance.
· It is quite possible that relevant policy considerations would favour such a result.
[26] The former approach may also involve an anomaly. A particular claimant may have had an impairment causing a relevant inability to work immediately prior to his or her becoming an Australian resident, but subsequently manage to obtain work as the result of one or more of the variable factors to which we have referred. He or she may then again become incapacitated by some other condition. We doubt whether Parliament intended that such a person be disqualified from receiving the pension. It is not an outcome which is clearly dictated by the terms of the section. The applicant's submission overlooks the policy of the legislation as outlined in the Second Reading Speech, namely to encourage disabled people to overcome their incapacities.
[27] We favour the construction of subpara 94(1)(e)(i) which requires the decision-maker to determine when the actual impairment identified for the purposes of para 94(1)(a), para 94(1)(b) and para 94(1)(c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of para 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 [Secretary, Department of Social Security v Raizenberg [1993] FCA 629], 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. It is only where the condition has become more or less acute, or where one of the other variable factors to which we have referred has come into operation that the matter will become more difficult.
For Drummond J, the test requires the applicant for DSP “ … to be an Australian resident when the person first suffers the particular impairment which is found, as at the date of determination of the pension claim, to be sufficient to prevent the person from doing any work within the two years immediately following that date.”
For Kiefel and Dowsett JJ, the test is for the decision-maker “ … to determine when the actual impairment identified for the purposes of para 94(1)(a), para 94(1)(b) and para 94(1)(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).”
In my view, if there is any difference in the tests proposed by Drummond J, on the one hand, and Kiefel and Dowsett JJ, on the other hand, it is more about emphasis than substance. In my respectful view, the wording of the test proposed by Kiefel and Dowsett JJ is more apt to enunciate the application of subparagraph (e)(i) of subsection 94(1) of the SS Act, and I am content to adopt their Honours test.
Several decisions of this Tribunal have examined issues which are broadly similar to those before me in the instant matter. However, none of the decisions which I shall now examine are on all fours with TH’s situation.
In Syal and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 759, when the Applicant was eight years old in 2000 and was living in New Zealand, she was diagnosed with ataxia telangiectasia which is a neurodegenerative genetic disorder. In 2008, she applied for DSP, and the sole issue before the Tribunal was whether she was an Australian resident when her continuing inability to work first occurred.
Dr Fraser, Member, quoted the test as enunciated by Kiefel and Dowsett JJ in Michael’s Case. Dr Fraser’s decision is encapsulated in paragraph 26 of her reasons as follows:
[26] In accordance with Michael (supra) the Tribunal must identify for the purposes of s. 94 (1)(a)(b)&(c) of the Act when the actual impairments that resulted in the applicant’s continuing inability to work arose and more specifically whether it was present at the time at which the applicant became an Australian resident. Therefore, whilst AT is a genetic disorder and the genetic abnormality is present at birth, it is relevant to determine with respect to the applicant when the actual impairments associated with the genetic disorder become apparent. The effects these impairments have on the level of functioning of the applicant and therefore her ability to work must be assessed. In the applicant’s case, it is the balance impairments associated with AT which most significantly contribute to her continuing inability to work. The Tribunal considers that when the applicant was around 9 years old in New Zealand her balance impairments were severe enough to cause her to have a continuing inability to work because she required constant supervising for her own safety with respect to toileting and eating. Therefore, the balance impairment which caused the applicant’s inability to work was present before the applicant became an Australian resident. The applicant therefore does not satisfy s 94(1)(e)(i) of the Act.
In Fallah and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 344, the Applicant applied for DSP. Here also, the only issue before the Tribunal was whether the Applicant complied with subparagraph (e)(i) of s 94(1) of the SS Act.
The Applicant who was born in Lebanon had several periods of residence in Australia. She suffered from rheumatoid arthritis which had developed over many years. Dr Alexander, Member, dismissed her claim. He stated as follows:
50. The test to satisfy section 94(1)(c) is not the time of clinical onset of a medical condition but the time at which the level of functional impairment caused by medical condition reaches the required threshold as defined by the Act.
51. In this case there is no reliable evidence to indicate when Mrs Fallah first had a continuing inability to work thereby first satisfying section 94(1)(c).
52. Furthermore, in the context of a chronic medical condition that has evolved over more than 25 years the contention that she had a continuing inability to work, as defined in the Act, shortly after the clinical onset of her rheumatoid arthritis is, in my view, not sustainable without reliable evidence to support that contention. In this application for review there is no such reliable evidence before the Tribunal.
53. Therefore I am not satisfied that Mrs Fallah first had a continuing inability to work during her first period of residence in Australia which means that the requirements of section 94(1)(e)(i) cannot be satisfied.
In paragraph 50 of his reasons which I have quoted above, Dr Alexander recognises that the onset of an impairment and a continuing inability to work may not always occur at the same time. On occasions, the evidence may show that a continuing inability to work has occurred at some time after the diagnosis of an impairment.
The final decision is Carroll and Secretary, Department of Social Services (Social services second review) [2015] AATA 982. In 2014, the Applicant lodged a Claim for DSP. He was born in the United Kingdom, but in 2010 he became a permanent resident. Again, the question was whether or not his continuing inability to work had arisen before he became an Australian resident. In other words, did he comply with subparagraph (e)(i) of the SS Act? Senior Member Dr Popple wrote as follows:
15. Each of Mr Carroll’s impairments was a severe impairment for the purposes of s 94(3B); each was of itself sufficient to prevent him from working 15 hours or more a week independently of a program of support within the next 2 years; and each was of itself sufficient to prevent him from undertaking a training activity during the next 2 years. Accordingly, because of s 94(2), he had a continuing inability to work because of his impairments from no later than 1996 (for the ankylosing spondylitis) and no later than 2000 (for the mental health condition).
16. Mr Carroll does not dispute that he had a continuing inability to work before he became an Australian resident. But he argues that he did not satisfy s 94(1)(c) at the time that he became an Australian resident. He says that his conditions were both in remission for a period, including the period leading up to him being granted a permanent visa. That may be true: it is possible that he did not satisfy s 94(1)(c) at the time that he became an Australian resident, and it is possible that he later satisfied s 94(1)(c) during the relevant period. But to satisfy s 94(1)(e)(i)—during the relevant period, or at any time—Mr Carroll must have been an Australian resident at the time when he first satisfied s 94(1)(c).
Senior Member Dr Popple quoted the test as enunciated by Drummond J in Michael’s Case and held that the Applicant’s claim for DSP be refused. Dr Popple did not need to turn his mind to a situation where the onset of an impairment and a continuing inability to work did not occur at the same time.
CONSIDERATION
The issue before the Tribunal is whether or not TH satisfies the residents requirements as set out in subparagraph (e)(i) of subsection 94(1) of the SS Act. In resolving this issue, I shall pose two questions.
First, when did TH’s Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder first become manifest?
The second question is, when did TH’s continuing inability to work first become manifest?
TH’s Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder
TH did have some behavioural problems when in primary school in the United Kingdom. In his written statement dated 30 September 2016, TH’s Step-Father wrote as follows:
2. [TH] was a constant problem at school in the UK. He always had behavioural problems. Every day after school the teachers would tell us of his misconduct during the day. Teachers in the UK are not allowed to say “there is something wrong with your child” as this is discriminatory. So we were left to our own devices.
3. [TH] has always been a physically healthy child so there was no real need to take him to the doctor that often.
4. We thought [TH] would grow out of it. We never took him to the doctor for testing as we thought he was just young and a bit silly….
In his evidence, TH’s Step-Father explained that the family underwent medical examinations before they immigrated to Australia in 2009. The doctor did not ask any questions about the mental health of nine year old TH.
In his 30 September 2016 written statement, TH’s Step-Father wrote the following about the schooling of TH in Australia:
5. We migrated to Australia in 2009 and [TH] was enrolled in Year 5 in Beaumont Hills Primary School, where the behavioural issues continued. He had a male teacher who controlled his conduct in class. To the best of my recollection he had the same teacher in Year 6. [TH] was always close to the bottom of the class throughout his schooling.
6. [TH] initially [sic] Rouse Hill High School in 2011. I recall a phone call from Deputy Principal of this school during 2012 in which she said I have a diary in which 64 accounts of his misconduct have been recorded. I recall talking with [TH’s Mother] about this and we reached the conclusion that they were keeping a record of these things in order to expel him from the school. Having reached this conclusion we then decided to look for another school.
7. In Term 4 of 2012 we transferred him to Terra Sancta College Schofields. This school is now called John Paul II Catholic College. I recall receiving a telephone call on the first day of his enrolment at this school in which a teacher [sic] his misconduct. This was a refreshing change to the “secret diary” of Rouse Hill.
8. At this point we decided that he wasn’t growing out of it so we took him to Rouse Hill Medical Centre and he was referred to the Sydney Developmental Clinic where he first saw Dr Selikowitz. There is a six month waiting list to see this doctor so it was a long wait. He first saw the doctor on or about July 2013.
In his evidence, TH’s Step-Father said that two behavioural incidents towards the close of 2012 propelled he and TH’s Mother to take TH for further medical examinations. These incidents were, first, instead of coming through the class-room door, TH climbed in through the window. Second, it appears that TH was found hiding in a science cupboard.
In her evidence, TH’s Mother said that when they referred TH for further medical examinations she did not suspect that he was suffering from Autism. She said that she had no prior experience of Autism.
TH’s Mother took TH to see Dr Mark Selikowitz who is a consultant developmental paediatrician at the Sydney Developmental Clinic. She explained in her evidence that there was an eight month waiting list, but that she was able to obtain a visit after six months as she took up an appointment which had been cancelled.
Dr Selikowitz wrote a report on TH which is dated 29 August 2013. In reaching my decision in this matter, I have had regard to this report in its entirety. For the purposes of these reasons, I reproduce below several extracts from this report. Dr Selikowitz wrote as follows:
He has experienced difficulties at school where he has been rude to teachers and engaged in disruptive behaviour in the classroom. The latter includes climbing through the window and climbing into a cupboard. He has also refused to do the school work.
He has had a change of school as a result of his behaviour and he is now at Terra Sancta College in Year 9.
He experiences difficulties socially because he behaves in an impulsive way towards his peers.
He used to play tennis but was then defiant with the coach and reacted badly to any positive feedback.
He was taken to a counsellor when he was in primary school but would not speak to the counsellor.
He does not do his homework.
He can be low in his mood. He tends to suffer performance anxiety.
He requires direction and promoting to carry out all kinds of routine tasks.
He makes poor eye contact.
He tends to be literal in his understanding and has difficulty catching jokes. He does not seem to understand other people’s feelings.
He will wear the same clothing which will not necessarily be appropriate for the weather.
He is not keen to be with other children.
He seems to expect other people to know his thoughts.
He often seems to be unaware of social convention.
He does not have precision in his expression of his emotions.
He is quite indifferent to peer-pressure.
He does not engage in good reciprocal conversation.
He has a tendency to rock when excited or distressed.
…
Difficulties with his behaviour were noticed when he was a toddler. He was already restless and was not keen to carry out tasks that required concentration. He tended to be quite physical at that stage.
He has not had any significant illnesses in his life. He does not have any allergies. He has never had an operation. He is not on any regular medication. He does not have any motor or vocal tics.
He sleeps well.
He has a normal appetite.
His hearing and vision seem to be good in every-day situations.
…
Physical examination revealed a well looking but very surly boy who was not cooperative in the examination. His height was 169.5cm and his weight 50.6kg. His height was on the 75th centile and his weight just below the 50th centile. I could not fault him on physical or neurological examination. His blood pressure was 100/60.
Psychometric testing showed [TH] to be very unmotivated and defiant. The results will not truly reflect his ability.
On the WISC –IV Test of Intelligence he was in the average range of perceptual reasoning but in the borderline range for verbal comprehension, working memory, and processing speed. Full scale IQ was in the borderline range but general abilities index was in the low average range.
Index scores were as follows (normal population mean = 100); verbal comprehension 79, perceptual reasoning 90, working memory 74, and processing speed 73. Full scale IQ was 74 and general abilities index 84.
Scale subtest scores were as follows (normal population mean = 10):
Verbal comprehension
Similarities 8, vocabulary 7, and comprehension 4.
Working memory
Digit span 3 and letter-number sequencing 8.
Perceptual reasoning
Block design 7, picture concepts 9 and matrix reasoning 9.
Processing speed
Coding 4 and symbol search 6.
He refused to do the Neale Analysis of Reading Ability or the South Australian spelling test. He also refused to do the WRAT-4 Arithmetic test and the Detroit Test of Auditory Attention Span.
Neurophysiological profile showed excess beta activity which is a marker for attention-deficit/hyperactivity disorder.
In summary, [TH] is a boy of at least average intelligence (poor compliance would have lead to an underestimate of his abilities) who has Autistic Spectrum disorder (previously known as Asperger’s disorder) as well as attention-deficit/hyperactivity disorder.
Recommendations:
1. Unfortunately, [TH] is not a good candidate for counselling because he is not cooperative. It is possible that the school counsellor might be able to help him but I am not certain that he will cooperate.
2. [TH] would benefit from appropriate medication and I have recommended that he return for computerised medication testing. This will enable us to see whether he responds to the medication and for me to discuss the medication with his mother.
Dr Thompson put to me the Respondent’s position that TH’s impairments of Autism Spectrum Disorder and Attention Deficit Hyperactivity had manifested themselves at the close of 2012 because TH’s behaviour led his Step-Father and Mother to seek medical advice. However, at that time, these impairments had not been named or diagnosed.
Having regard to the evidence before me, I find that TH first manifested his impairments of Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder when they were named and diagnosed by Dr Selikowitz on or about 29 August 2013.
In any event, it is clear that these impairments first manifested themselves well before TH became a permanent resident on 17 April 2014.
Continuing inability to work
Subsection 94(2) of the SS Act defines “continuing inability to work” as occurring when “… [I]n all cases - 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”.
However, paragraph (a) of the definition of “work” in subsection 94(5) makes it clear that “work” means work “that is for at least 15 hours per week”.
It is common ground that TH has a continuing inability to work because his impairments prevent him from doing any work for at least fifteen hours a week for the next two years. Thus, even if TH could work for three hours a week for the next two years, he would still have a continuing inability to work pursuant to subparagraph(c)(i) of subsection 94(1) of the SS Act and its attendant provisions.
There is nothing in Dr Selikowitz’s report of 29 August 2013 concerning TH’s capacity to undertake work. This is hardly surprising for TH was only fourteen and was in year nine at school. In any event, Dr Selikowitz did recommend for TH to take medication to lessen the effects of his impairments.
On 17 April 2014, TH became a permanent resident when he was granted a subclass 186 visa. I note that this is a visa subclass that in 2014 included Public Interest Criteria 4007 which allowed the Minister for Immigration and Border Protection to waive the health rules if the Minister was satisfied that the granting of the visa would be unlikely to result in:
(i) undue cost to the Australian community; or
(ii) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.
In her evidence, TH’s Mother said she is sure she gave the examining GP the report from Dr Selikowitz of 29 August 2013.
In any event, in being granted this visa, TH obviously passed the rather stringent health rules made pursuant to the Migration Act 1958 (Cth). I surmise that it is probable that the Department of Immigration and Border Protection had no concerns about TH requiring social security assistance. However, without any further evidence, the grant of this subclass 186 visa does not assist me in determining when TH’s continuing inability to work became manifest.
After TH was diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder on 29 August 2013, St John Paul II Catholic College gave him special assistance.
In a letter dated 16 August 2016 which was written by the school’s learning support teacher, the specialist assistance is described as follows:
I wish to confirm that above student is full time at the following school: St John Paul 2 Catholic College and currently completing year:12, 2016 and we confirm that this student is funded under the: Autistic disorder for the following identified disability: autistic spectrum disorder. [TH] received the following support: disability provisions, in class support, assessment assistance, adjustments to instruction, assessments, adjustments to facilitate understanding and verbal expression, and had access to a teacher mentor at all times. This support has been ongoing since [TH] was in year 9 in 2013.
In her evidence, TH’s Mother said that over the last two years, the assistance to TH has been “ramped up”. These days, many students with disabilities receive special assistance in secondary schools and in universities and in other tertiary institutions. Special assistance of itself cannot be equated to a continuing inability to work. After all, many students with disabilities who receive assistance at school or university enter the labour market and undertake remunerative work.
TH did obtain part time work at Big W for several three hour shifts a week commencing in November 2014. In his written statement dated 30 September 2016, TH’s Step-father wrote as follows:
13. A lot of [TH’s] friends were applying for jobs and I knew the Manager at Big W Rouse Hill as he was a neighbour. I visited his shop and asked where [sic] they employing any staff. He said yes and [TH] was given an interview and got the job. He started work in November 2014.
14. Work was a problem right from the start. [TH] would come home and say “everyone is against me”. He hated his supervisor and did not understand his sense of humour because he finds it difficult to relate to others and does not have the usual sense of humour of a child of his age because of his Asperger’s.
15. I noticed that he was being given less shifts over the periods of his work. We had moved away from Beaumont Hills while the manager whom we knew moved to a different store shortly after [TH] started so he was no longer “protected” by his boss.
16. Things reached a point that [TH] was making excuses not to go to work. He would ask me to ring in sick and it was clear that he was not coping. I recall trying to speak to his supervisor but he was not available on weekends when I could see him. [TH] was unable to explain what was going on because he is not good at reporting his problems. He just complains about others and their mistreatment of him.
17. In the end [TH] refused to attend on week in May 2015 when he was offered a shift. He sent them an email saying he was ceasing work. [TH] has not worked since.
18. [TH] has been for an interview at McDonalds twice without getting jobs. He finds it hard to make and sustain eye contact with others and looks away. His challenging of decisions and directions also does not help.
In her evidence before me, TH’s Mother explained that initially TH was given one shift in the first week to see if he could do the work. Then Big W bought his uniform. Shifts were for three hours and were usually from 6:00pm to 9:00pm.
Initially, said TH’s Mother, he liked the work and built up to three shifts a week before Christmas. However, when he undertook those three shifts and he was still at school he struggled and struggled to switch off.
In January, he did two shifts a week, and continued with two shifts when he started school again.
TH’s Mother said that the manager was accommodating to TH’s mental health. He gave TH appropriate tasks like shelf stacking which she described as “scaffolding tasks”. TH was allowed to leave the shop floor more than were other employees, so that he could have a break and get a drink.
TH’s Mother said that she discussed TH’s work with Dr Selikowitz who congratulated TH on getting a job. Dr Selikowitz said that it was important to explain to the Manager TH’s disability as he would need support.
TH’s Mother said that when the Manager left and was replaced by a new Manager, TH found it difficult to cope. She said he could not cope with school and with a new Manager. He ceased work altogether in May 2015.
From the evidence before me, it is clear that TH did attempt to undertake work from November 2014 to May 2015. From the evidence of TH’s Mother, he never worked more than three shifts a week, and really only did so in the period before Christmas 2014. At most, he worked for nine hours a week, but before Christmas he was also at school.
TH’s Mother said that she had spoken to Dr Selikowitz about TH’s job, however, there is no evidence before me from Dr Selikowitz, other than his report of 29 August 2013.
As I have written above, it is agreed that TH has a continuing inability to work. From the evidence, I have found it to be a difficult issue to determine the actual date on which his continuing inability to work first became manifest. As Kiefel and Dowsett JJ put it in Michael’s Case after they set out their test, “[i]t is true that such an exercise will sometimes be difficult to perform.” The impairments of Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder are not static and of course vary from one person to another. Until TH attempted employment in November 2014, I find there was no direct evidence of his capacity or lack of capacity to undertake work. At the time he was a secondary school student.
I find that TH’s continuing inability to work first became manifest after he commenced school in early 2015 when he was not coping with the two shifts a week and with the new Manager at Big W.
As this time was after TH had become a permanent resident in April 2014, I need not fasten on an exact date. I am content to find that TH’s continuing inability to work first manifested itself in the period from February to May 2015.
CONCLUSION
For the reasons which I have set out above, I make the two following findings.
First, I find that TH’s Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder first became manifest when they were named and diagnosed by Dr Selikowitz on or about 29 August 2013.
Second, I find that TH’s continuing inability to work first became manifest in the period from February to May 2015.
DECISION
The decision under review is set aside and remitted with the following directions, TH’s Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder first became manifest on or about 29 August 2013 and TH’s continuing inability to work first became manifest in the period from February to May 2015.
I certify that the preceding 77 (seventy -seven) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member
..........................[sgd]..............................................
Associate
Dated 14 December 2016
Date of hearing 28 November 2016 Solicitors for the Applicant Mr I Turton, Welfare Rights Centre Solicitors for the Respondent Dr S Thompson, Department of Human Services
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