Editors --- "Disability support pension: whether the claim made on behalf of applicant; whether qualified at date of claim or within 13 weeks" [2009] SocSecRpr 14; (2009) 11(2) Social Security Reporter, Article 3

• BURNS and SECRETARY TO THE DFHCSIA
• Background
• The issues
• The legislation
• Consideration of the evidence
• Formal decision

---

Disability support pension: whether the claim made on behalf of applicant; whether qualified at date of claim or within 13 weeks

BURNS and SECRETARY TO THE DFHCSIA

(2009/220)

Decided: 3rd April 2009 by N. Isenberg

Background

Burns suffered severe behavioural problems and his mother, Ms Burns, was paid child disability allowance (CDA) from 1993 when Burns was aged 6. In late 2002 Ms Burns was invited to apply for disability support pension (DSP) for Burns in anticipation of his 16th birthday on 20 January 2003. On 17 January 2003, a claim for DSP was lodged with Centrelink. The claim form was in the name of Ms Burns. It contained all her personal details and was signed by her. The only reference to Burns was on the page about dependent students. Centrelink rejected Burns’ claim for DSP. That decision was affirmed on internal review and by the SSAT. In November 2004, Ms Burns lodged a further claim for DSP for Burns and he was granted DSP from that time.

The issues

The relevant issues were:

• Was the document lodged on 17 January 2003 a claim made by or on behalf of Burns for DSP?

• Was Burns qualified to receive DSP on 17 January 2003 or within 13 weeks after that date?

The legislation

A person who wishes to be granted a social security payment must make a claim under section 11 of the Social Security (Administration) Act 1999 (the SSA Act). Section 16 of the SSA Act provides that a claim must be in writing or ‘in accordance with a form approved by the Secretary’. The Guide to the Social Security Law (the Guide) at Ch. 8.1.1.20 sets out the requirements for a valid claim.

The criteria for eligibility for DSP are set out in s.94 of the Social Security Act 1991 (the Act):

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;

...

(d) the person has turned 16; and

(e) the person ...: (i)is an Australian resident at the time when the person first satisfies paragraph (c);

...

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 onthejob training during the next 2 years;

...

Consideration of the evidence

The Tribunal first considered whether the document lodged on 17 January 2003 was a claim made by or on behalf of Burns for DSP. On behalf of Burns it was submitted that Ms Burns intended to make a claim for DSP on his behalf, Centrelink was aware of this and accepted it as such. Entries in Burns’ Centrelink file and Ms Burns’ Centrelink file referred to the claim as Burns’ claim and Ms Burns' unchallenged evidence was that she had been told by a Centrelink officer that the name of the claimant on the form must be the same as the signatory and as she couldn’t get Burns to sign the form she could make the application herself. The Tribunal noted that Centrelink accepted the claim as being in respect of Burns, as evidenced by the correspondence and discussions about it. The Tribunal noted that it was not clear why the claim was rejected although there was a record that Ms Burns was advised on 23 April 2003 that it was most likely due to the difficulties in obtaining a treating doctor’s report for Burns.

The Tribunal did not accept the respondent’s submission that Burns was capable of understanding and signing forms and could have submitted a claim for DSP in his own name.

The Tribunal then noted that the relevant part of the Guide provides that as a general rule a claim must be:

• in writing;

• on an approved form;

• completed (preferably in ink);

• signed by the customer and, if relevant, their partner; and

• delivered to a place and/or person approved by the Secretary; or

• made in any other manner approved by the Secretary.

It also sets out the circumstances in which a form can be completed for the customer by a responsible person, preferably a relative or friend, who knows of their circumstances.

The Tribunal noted that the final criterion provided the Tribunal, standing in the shoes of the decisionmaker, with a discretion as to the manner of lodgement and concluded that the claim was a valid claim.

The Tribunal then considered whether Burns had an impairment of 20 points or more under the impairment tables.

It noted that the Introduction to the Impairment Tables in Schedule 1B of the Act, governs the way the Tables are to be applied. Paragraphs 4, 5 and 6 of the Introduction explain the extent to which adequacy of treatment and the stability of a claimant’s condition are particularly relevant considerations in the application of the Impairment Tables. For an impairment rating to be assigned, ‘the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised’. Assessment that a condition has been fully treated involves consideration of past, continuing, planned and ‘further reasonable medical treatment’.

The Department argued that while Burns had behavioural problems during his childhood and adolescent years, that on reaching 16 years of age, or within 13 weeks from that date, he did not have a condition which was fully diagnosed, treated and stabilised. The Tribunal rejected this submission based on the evidence before it. It accepted the evidence of Dr Seaton (set out in a report). She considered his developmental, social, emotional and cognitive profile was consistent with that of Asperger’s Syndrome, with a possible secondary diagnosis of ADD/ADHD and strong anger issues. She was of the view that his functioning in 2003, and at the time the report was written, indicated a ‘continuity of experience and functional difficulties’ through his lifetime. The Tribunal noted that Dr Seaton had come to her view after considering 11 reports (which were before the Tribunal) that mapped Burns’ ongoing complex condition since he was aged 5. The Tribunal accepted that Dr Seaton was an expert in the diagnosis and treatment of Asperger’s syndrome. As it is a neurological condition, he ‘was born with it’.

Even if this were not the case, the Tribunal took the view that the precise ‘label’ of his condition at the relevant date was immaterial, once the full extent of his symptoms was canvassed: see Hudson and Department of Family and Community Services [2000] AATA 502. From the long history of his symptoms available in the papers, the Tribunal concluded that little if anything, had changed since he was a small child.

The respondent contended that Burns’ condition could not be considered to be permanent because it had not been fully treated. The Tribunal noted that Dr Seaton had recommended some very specialised treatment which in the Tribunal’s view was very unlikely to be available near his home (and he had no means of transport), was likely to be very expensive and further was not appropriately described as ‘treatment’ but rather ‘coping mechanisms’ to minimize symptomatology.

The Tribunal concluded that there was no recommended treatment at the time of the claim, and so it could not be said that Burns had failed to undertake any treatment. The Tribunal found that Burns’ condition should be considered permanent at the date of claim.

The Tribunal then considered whether his condition met the criteria of an impairment of 20 points or more. It accepted Dr Seaton’s view that in 2003 Burns’ antisocial behaviour met the criteria under Table 6: Psychiatric Impairment for 20 points and that his condition would also have attracted a rating of 20 points under Table 8: Neurological Function. The Tribunal concluded that the application of either Table resulted in an impairment rating of 20 impairment points.

The Tribunal finally considered whether Burns had a continuing inability to work because of the impairment. It noted that there was no evidence that Burns could work at least 30 hours per week. The Tribunal rejected the respondent’s submission proposing that a highly modified training program following on from the suggested interventions (which the Tribunal had considered to be unlikely to be available and/or affordable) may have been valuable for Burns, was evidence of a capacity to work. The Tribunal noted that, when a later claim was made for DSP in November 2004 Centrelink had accepted that Burns had a continuing inability to work.

Formal decision

The decision under review was set aside and the Tribunal substituted a decision that Burns was entitled to DSP from 20 January 2003, the date of his 16th birthday

[C.E]