Syal and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 759 (5 October 2010)

Last Updated: 5 October 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 759

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4707

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Ms Dhriti Syal

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

Dr Amanda Frazer, Member

Date 5 October 2010

Place Perth

Decision

The Tribunal affirms the decision under review.

.......sgd A Frazer.........

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – residential qualification – whether qualified to receive disability support pension – when applicant first had a continuing inability to work – whether applicant satisfies s 94(1)(e)(i) of the Social Security Act 1991

LEGISLATION

Social Security Act 1991 s.94

CASES

Secretary, Department of Family and Community Services v Michael (2001) FCA 1811

REASONS FOR DECISION

5 October 2010

Dr Amanda Frazer, Member

1. This is an application by Miss Dhriti Syal for a review of a decision made by the Social Security Appeals Tribunal (SSAT) on 1 November 2009, which affirmed the decisions of an Authorised Review Officer (the ARO) on 3 June 2009 and a Centrelink delegate to the Secretary, Department of Families, Community Services and Indigenous Affairs dated 29 July 2008, to reject Miss Syal’s claim for Disability Support Pension (DSP).
2. At the hearing Miss Syal (Dhriti or the applicant) was represented by Ms Nicole Joseph, Sussex Street Community Law Service Inc. Ms Margaret Conlon represented the respondent. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents), as well as the Exhibits marked A1 and R1, R2, R3, R4 and R5. The applicant and the respondent filed Statements of Facts and Contentions with the Tribunal. The applicant’s mother, Ms Syal, gave oral evidence to the Tribunal and Dhriti did not attend the hearing.

BACKGROUND

3. The applicant was born in India on 12 July 1992. The applicant and her family moved to New Zealand in September 1994. The applicant was diagnosed with ataxia telangiectasia (AT) in July 2000 in New Zealand when she was 8 years old. AT is a rare neurodegenerative genetic disorder. The applicant and her family moved to Australia as permanent residents on 21 May 2001. Ms Syal (the applicant’s mother) lodged a Carer Allowance claim in regard to the applicant on 12 July 2001 which was granted. The applicant lodged a claim for DSP on 14 July 2008 (T4). The claim was rejected by a Centrelink delegate on 29 July 2008 (T9). This decision was affirmed by an ARO on 3 June 2009 (T23) and the SSAT on 1 November 2009 (T2).
4. The decisions to reject the application were on the grounds that the applicant failed to satisfy the requirements of s 94(1)(e)(i) of the Social Security Act 1991 (the Act). It is accepted that the applicant has AT, that it attracts an impairment rating of at least 20 points and that the applicant has a continuing inability to work. It is accepted that the applicant has not been an Australian resident for the required 10 year duration and so the issue to be determined is whether or not the applicant was an Australian resident when her continuing inability to work first occurred.

MS SYAL’S EVIDENCE

5. Ms Syal, the applicant’s mother, gave the following evidence to the Tribunal about her daughter, Dhriti.
6. Ms Syal said that Dhriti is now 18 years old and lives at home and is dependent on her family for care. She has AT and uses a wheelchair for mobility. Dhriti suffers from frequent myoclonic jerks and has difficulty eating and swallowing. Dhitri is now down to about 21 kg in weight. Dhriti suffers from frequent chest infections because coughing and clearing her chest is difficult. Dhriti is on antibiotics and requires some ventilatory assistance at night. Whenever possible Dhriti attends the local school and is a capable student academically however often she is too sick to attend.
7. Dhriti was born in India and was a normal baby however was “weak” and suffered from many colds and episodes of vomiting and diarrhoea. Ms Syal said that she and her husband thought that Dhriti was a little delayed in her development. At around 18 months Dhriti could pull herself up to stand and started to talk around age 2.
8. The family then moved to New Zealand when Dhriti was 2. Initially, Dhriti seemed a little better with less infections. However, Ms Syal said that Dhriti was still weak and her gait was not normal. The Syals took Dhriti to see many doctors and a specialist at the Starship Hospital. Initially the doctors reassured them however over the following few years the doctors stated that Dhriti had some delayed development. At that time Dhriti had some physiotherapy support in the form of exercises. Ms Syal said that although her writing then was a bit slow Dhriti has always been a capable student academically.
9. Ms Syal said Dhriti caught the chickenpox in July 2000 and required admission to hospital as she developed chicken pox pneumonia. During the admission, following special testing, Dhriti was diagnosed with AT. Dhriti was very sick with the chicken pox and Ms Syal said that Dhriti was weaker after the illness and did not recover well and that her condition worsened quickly in New Zealand. Ms Syal said that Dhriti suffered more colds and that rather than recovering she seemed to be “attacked more”.
10. Ms Syal said that over the few months after the chicken pox she noticed that Dhriti’s gait was becoming slower and that she would be swaying all the time. Dhriti also suffered from an increasing number of sudden falls. Ms Syal said that because of this she would supervise Dhriti closely to try and stop her falling. Ms Syal said that occasionally Dhriti would have some bruising from her falls. Around this time the teachers at school became increasingly concerned about Dhriti’s safety because of her falls and requested that Dhriti use a wheelchair. However, Dhriti and her family did not like using the wheelchair and Ms Syal said that she did not want Dhriti to become dependent on it. Ms Syal said she would often carry Dhriti on her back to or from school.
11. Ms Syal said that in New Zealand she would often not send Dhriti to school because she would pick up infections and become sick.
12. Ms Syal said that because of the sudden falls she needed to take Dhriti to the toilet and supervise her toileting to provide support in case she fell.
13. Ms Syal said that Dhriti was a slow eater as a child and that she has always been underweight. Dhriti would eat the same food as the family as a child but Ms Syal said she preferred softer food. Dhriti did choke on 2 occasions when she was eating nuts.

THE RESPONDENT’S CASE

14. The respondent accepts that the applicant suffers from AT and that the applicant has an impairment rating of at least 20 points and that she has a continuing inability to work. (R5 SS Guide 3.6.2.30 Manifest Grants & Continuing inability to work (DSP))
15. The respondent submits that on 11 August 2000 when Dhriti was 8 years old she was assessed by a physiotherapist (R1). The physiotherapist notes that Dhriti’s gait is “wide-based, uneven and unsteady.” She occasionally “swayed” into walls. Dhriti displayed “an intention tremor with effort, obvious in the hands with fine motor tasks”. Another problem was “significant overshoot when quick contraction was required ie catching a beanbag and this significantly affected functional ability.”
16. The respondent submits that on 20 February 2001, when Dhriti was 9 years old, she was assessed by a school teacher (R2). The teacher states:

“Is able to write – but with great difficulty. Walking and is able to move around. But, again with great difficulty. Dhriti is very unstable. Lacks balance. Body sway. Concerns for Dhriti’s safety. A wheelchair and walker is required to ensure safety and increase her mobility.”

17. The respondent submits that on 8 May 2001, when Dhriti was 9 years old, she was assessed by a teacher at Northern Hospital School (R3). The teacher states:

“Dhriti is ORS funded with High Needs. She has difficulty mobilising independently ... and safety is an issue.”. “Her small motor skills have regressed, and small tasks prove difficult. All output is slow, and Dhriti tires very easily. Dhriti needs to be supervised eating to make sure she does not choke. A suitable wheelchair has been requested for use at school (for safety). This will be an imperative before she is able to attend school. She requires a shower chair for home as well as a toilet modification.”

18. The respondent submits that on 12 July 2001 Ms Syal lodged an application for Carer Allowance for Dhriti (R4) At this time, the family had just moved to Perth, Western Australia, 2 months earlier. Dr Mudhar, the treating doctor, ticks that Dhriti has a “severe” condition that requires extra care and attention for 14 hours or more a week. Dr Mudha ticks that Dhriti “can drink from a modified cup when the cup is held by an adult” and that Dhriti “requires full assistance with toileting.” Ms Syal also confirms in the application that Dhriti “drinks from a modified cup when it is held “ and “requires full assistance with toileting”.

CONSIDERATION OF THE ISSUES AND FINDINGS

19. The issue before the Tribunal is whether the applicant qualifies for DSP. In reaching the correct and preferable decision the Tribunal has taken into account the evidence, submissions, case law and relevant legislation. Section 94 of the Social Security Act 1991 (the Act) provides as follows;

“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.
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.
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(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely 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.”

20. It is not in dispute that the applicant satisfies subsections 94(1)(a)(b)(c) and (d) of the Act. In addition a person must satisfy either s 94(1)(e)(i),(ii) or (iii) of the Act. It is not in dispute that the applicant does not satisfy s 94(1)(e)(ii) or (iii) of the Act. Therefore, the sole issue to be determined is whether the applicant satisfies s 94(1)(e)(i). The leading authority is Secretary, Department of Family and Community Services v Michael (2001) FCA 1811. In that case a claim for DSP had been lodged by a person who had, prior to his arrival in Australia and becoming a permanent resident, been diagnosed with autism, significant intellectual impairment, epilepsy and nocturnal enuresis. The conditions, it was submitted, that resulted in his impairment and his continuing inability to work, had therefore for the purposes of s 94(1)(c) of the Act arisen when the diagnosis was made, that is, before he was an Australian resident. Therefore he could not satisfy s 94(1)(e)(i) of the Act and his claim for DSP was rejected. This decision was set aside by the Administrative Appeals Tribunal (Michael and Secretary, Department of Family and Community Services [2001] AATA 560). On appeal to the Federal Court they summarised the submissions put as follows at paragraph 23:

“As we understand it the applicant’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 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 has no continuing inability to work until that event, by which time he was an Australian resident.”

21. In their reasons for judgement Kiefel and Dowsett JJ found no support for the respondent’s position. In regard to the applicant’s submission it pointed to the need to recognize the importance of the two year period as an element of a ‘continuing inability to work’. In allowing an appeal against that decision they said at paragraph 27:

“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.....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..”

22. Dhriti suffers from the rare progressive neurodegenerative genetic disorder, Ataxia Telangiectasia. It is accepted that individuals with AT may show various clinical signs of varying severity and that the prognosis also varies among affected individuals. One of the hall marks of the disorder is ataxia or poor balance. Many individuals with AT also have problems with immunity and suffer repeated respiratory tract infections.
23. Dhriti’s AT was first diagnosed in New Zealand when she was 8 years old. Ms Syal gave evidence that her daughter may have demonstrated some developmental delay prior to this time commencing in early infancy. The Tribunal notes that this may be clinically consistent with AT however there is no medical evidence to confirm this in Dhriti’s case. The Tribunal accepts Ms Syal’s evidence that her daughter’s clinical impairments due to her AT and her level of function worsened quickly after she contracted chicken pox pneumonia at the age of 8.
24. In particular, the Tribunal accepts that soon after the chicken pox Dhriti became significantly affected by her worsening balance to the extent that her mother had concerns for her safety due to her sudden falls from her swaying and unsteady gait. At this time, Dhriti required supervision and assistance with toileting due to her balance problems. When Dhriti was 9 years old the school insisted she use a wheelchair for her own safety and also to aid her mobility. The school had concerns about her safety with eating and also noted she required toileting assistance. Following the chicken pox pneumonia Ms Syal also stated that Dhriti was much weaker and predisposed to catching colds. Ms Syal gave evidence that she would keep Dhriti home from school so that she would not catch infections.
25. The Tribunal also notes that the claim for Carer Allowance was completed only 2 months after Dhriti became an Australian resident. In the claim both the treating doctor and Ms Syal note that Dhriti has a severe condition and requires extra assistance and supervision in drinking and toileting.
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.
27. Accordingly pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member

Signed: ...........................E Jordan.............................

Associate

Date of Hearing 15 September 2010

Date of Decision 5 October 2010

Counsel for the Applicant Ms Nicole Joseph

Counsel for the Respondent Ms Margaret Conlon