JUDGMENT No, L214 FY- CATCHWORDS ADMINISTRATIVE LAW - Appeal - Rehabilitation program approved for applicant - No finite term for program - Timetable for provision of tuition and treatment drawn up from time to time - Timetable providing for program to be completed by certain date - Applicant unsuccessfully requests extension of timetable - Review by officer holding relevant delegation - Decision that applicant be provided with assistance to complete program - Timetable drawn up for completion of program by extended date - Application for review by Administrative Appeals Tribunal - Matter proceeded before Tribunal on basis that program terminated under statutory provision - Question whether Tribunal correctly identified reviewable decision - Whether appropriate findings made to satisfy statutory provision. Administrative Appeals Tribunal Act 1975 (Cth), subs.44(1) Disability Services Act 1986 (Cth), ss.3, 20, 21A NICHOLAS MORPHETT DOOLEY v SECRETARY, DEPARTMENT OF HEALTH, HOUSING, LOCAL GOVERNMENT AND COMMUNITY SERVICES No. ACT G 128 of 1993 Neaves J. 22 December 1994 Canberra Seer sey beter rey IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION JUDGE MAKING ORDER DATE OF ORDER WHERE MADE ) ) No. ACT G 128 of 1993 ) ) ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: NICHOLAS MORPHETT DOOLEY Applicant é SECRETARY, DEPARTMENT OF HEALTH, HOUSING, LOCAL GOVERNMENT AND COMMUNITY SERVICES Respondent MINUTE OF ORDER Neaves J. 22 December 1994 Canberra THE COURT ORDERS THAT: Note: 1. 2. The decision of the Administrative Appeals Tribunal given on 30 November 1993 be set aside. The matter be remitted to the Administrative Appeals Tribunal with a direction that the matter be remitted to the respondent for re-assessment of the applicant's situation in relation to the uncompleted program of assistance approved under the Disability Services Act 1986 (Cth). The respondent pay the applicant's costs of and incidental to the application. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) rs ) No. ACT G 128 of 1993 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: NICHOLAS MORPHETT DOOLEY Applicant AND: SECRETARY, DEPARTMENT OF HEALTH, HOUSING, LOCAL GOVERNMENT AND COMMUNITY SERVICES Respondent Neaves J. \w]{s3] 22 December 1994 REASONS FOR JUDGMENT Nicholas Morphett Dooley ("the applicant") has applied to the Court pursuant to subs.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) by way of appeal from the decision of the Administrative Appeals Tribunal ("the Tribunal") given on 30 November 1993. That decision, in terms, affirmed the decision under review but there is a threshold question as to what that decision was. The relevant legislative provisions are contained in the Disability Services Act 1986 (Cth) ("the Act"), an Act relating to disabilities. "3, (a) (b) (c) (d) (e) (f) 2. the provision of services for persons with Section 3 provides: (1) The objects of this Act are: to replace provisions of the Handicapped Persons Assistance Act 1974, and of Part VIII of the Social Security Act 1947, with provisions that are more flexible and more responsive to the needs and aspirations of persons with disabilities; to assist persons with disabilities to receive services necessary to enable them to work towards full participation as members of the community; to promote services provided to persons with disabilities that: (i) assist persons with disabilities to integrate in the community, and complement services available generally to persons in the community; (ii) assist persons with disabilities to achieve positive outcomes, such as increased independence, employment opportunities and integration in the community; and (iii) are provided in ways that promote in the community a positive image of persons with disabilities and enhance their self-esteem; to ensure that the outcomes achieved by persons with disabilities by the provision of services for them are taken into account in the granting of financial assistance for the provision of such services; to encourage innovation in the provision of services for persons with disabilities; and to assist in achieving positive outcomes, such as increased independence, employment opportunities and integration in the community, for persons with disabilities who are of working age by the provision of comprehensive rehabilitation services. 3. (2) In construing the objects and in administering this Act, due regard must be had to: (a) the limited resources available to provide services and programs under this Act; and (b) the need to consider equity and merit in accessing those resources. Subsection 5(1) requires the Minister to formulate principles and objectives to be furthered and guidelines to be complied with in the administration of the Act. Part III of the Act, comprising ss.17- 30, is headed "Provision of Rehabilitation Services by the Commonwealth". Section 18 provides: "18. The target group for the purposes of this Part consists of persons who: (a) have attained 14 years of age but have not attained 65 years of age; and (b) have a disability that: (i) is attributable to an intellectual, psychiatric, sensory or physical impairment or a combination of such impairments; and (ii) results in a substantially reduced capacity of the person: (A) to obtain or retain unsupported paid employment; or (B) to live independently." It is common ground that the applicant falls within the target group as so defined. 4. Section 19 provides: "19, The Secretary shall not exercise a power conferred by sub-section 20(1) ox 22(3) or section 24 unless the Secretary is satisfied that the exercise of the power would: (a) further the objects of this Act set out in section 3 and the principles and objectives formulated under section 5; and (b) comply with the guidelines formulated under section 5 that are applicable to the exercise of the power." Sections 20, 21 and 21A relevantly provide: . "20. (1) Subject to section 21, if the Secretary is satisfied that the provision of a rehabilitation program for a person in the target group would: (a) result in the person having a substantially increased capacity to: (i) obtain or retain paid employment (whether or not the employment would be unsupported); or (ii) live independently; and (b) comply with guidelines (if any) formulated under section 5 that relate to this section; the Secretary may, on the Commonwealth's behalf, approve the provision of the rehabilitation program for the person, together with any follow-up program that the Secretary considers necessary or desirable. (2) see. (3) «ee (4) Where the Secretary approves the provision of a rehabilitation program (including any follow-up program) for a person, the Secretary may, on behalf of the Commonwealth, take such measures, and enter into such arrangements, as the Secretary considers necessary or desirable to ensure that the rehabilitation program is provided for the person. (5) see (6) .... 21. A rehabilitation program shall not be provided for a person unless the person is: (a) an Australian citizen; or (b) a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or under a law of the Commonwealth. 21A. (1) Provision of a rehabilitation program to a person must end: (a) after that person requests the Secretary, in writing, to stop the provision of the program; or (b) after the Secretary determines that' the continued provision of a rehabilitation program to the person would not further increase the person's capacity to: (i) obtain or retain paid employment (whether or not the employment would be unsupported); or (ii) live independently; or (c) after the Secretary determines that the person receiving the rehabilitation program is not making reasonable progress towards having a substantially increased capacity to: (i) obtain or retain paid employment (whether or not the employment would be unsupported); or (ili) live independently. (2) In making a determination the Secretary must comply with guidelines (if any) formulated under section 5 that relate to this section. (3) The Secretary must cause a copy of the determination to be provided to the person within 14 days of the Secretary making the determination." The expression "unsupported" in relation to the paid employment of a person means unsupported by services provided 6. to assist persons with disabilities to retain paid employment (s.17). Section 26 provides: "26. (1) In this section, "reviewable decision' means a decision (within the meaning of the Administrative Appeals Tribunal Act 1975) of the Secretary, or a delegate of the Secretary, under this Part. (2) A person affected by a reviewable decision who is dissatisfied with the decision may, by notice in writing given to the Secretary within 30 days after the day on which the decision first comes to the notice of the person, or within such further period as_ the Secretary allows, request the Secretary to reconsider the decision. (3) There shall be set out in the request the reasons for making the request. (4) Upon receipt of the request, the Secretary shall reconsider the decision and may affirm or revoke the decision or vary the decision in such manner as the Secretary thinks fit. (5) Where the Secretary affirms, revokes or varies a decision, the Secretary shall, by notice in writing served on the person who made the request, inform the person of the result of the reconsideration of the decision and the reasons for affirming, revoking or varying the decision, as the case may be. (6) Applications may be made to the Administrative Appeals Tribunal for review of reviewable decisions that have been affirmed or varied under subsection (4)." It should be said that the legislative provisions set out above reflect the amendments made to the Principal Act by Part 2 of the Health, Housing and Community Services Legislation Amendment Act 1992 (Cth), a Part which did not come into operation until 30 June 1992. 7. On or about 4 December 1991 the applicant presented what the Tribunal referred to as "a well thought out and detailed application to the Commonwealth Rehabilitation Service which argued for assistance and training enabling him to pursue a career as a singer, song writer and guitar player." By letter dated 17 January 1992, tha applicant was informed: "T am pleased to advise you that the Commonwealth Rehabilitation Service will sponsor your musicianship training and physiotherapy programme. Sponsorship is reviewed periodically and its renewal depends upon satisfactory progress being made. Letters will be sent to the tutors/practitioners involved, authorizing payment for their services through this department. I am also pleased to inform you that an additional Training Allowance of $40 per fortnight will be paid to you through DSS, again subject to review." The letter was signed by Ms Christine Tognetti who described herself as "Case Manager". It appears that what was referred to as "sponsorship" of the application was approved, subject to review, on 7 January 1992. A document described as an "Activity Plan" was completed. It bears the signatures of the applicant and the Case Manager. It provided for tuition in guitar skills, vocal tuition and the attendance of the applicant for physiotherapy. The document showed 1 January 1993 as the "Expected End Date of program" but otherwise gave no details of when the tuition was to be given or the physiotherapy was to take place. It is clear from the applicant's application dated 4 December 1991 8. that he was by no means certain that the program could be completed within 12 months. That, in fact, proved to be the case. The Tribunal found that the Commonwealth Rehabilitation Service agreed to assist the applicant by the provision of the following: "1. 24 hours of vogal tuition with Anna McCrossin-Owen in Melbourne; 2. 3 hours of vocal master class with Graham Clarke in Melbourne; 3. 12 sessions of physiotherapy with Karen Whelan at the Sarah Key Centre in Sydney; 4. 12 hours of guitar tuition with Stephen Berry in Sydney (later in Byron Bay); 5. 12 hours of guitar tuition with Andrew Clermont in Tamworth; 6. Modifications to his guitar; 7. Payment of travel expenses to enable him to attend lessons and physiotherapy." It appears from the material that was before the Tribunal that, in writing to each of the persons who was to provide tuition or physiotherapy, no period was fixed within which the tuition or treatment was to be given. The correspondence, which is dated 9 January 1992, provided for the services to be provided "at mutually convenient times." It 1s clear that, in accordance with the objective of flexibility referred to in subs. 3(1) of the Act, the 9. rehabilitation program approved by the delegate of the Secretary pursuant to subs. 20(1) did not incorporate any finite period within which the program was to be completed. It was, no doubt, envisaged that a timetable would be adopted as a guide to ensure, as far as possible, an orderly progression of the provision of the tuition and treatment for which the program provided and that the timetable would be amended from time to time as occasion required. This appears to have occurred. It was, however, never a condition of the provision of the assistance that, if the timetable was not adhered to, the program was to be regarded as no longer continuing. Until the coming into operation of s.21A of the Act on 30 June 1992, there was no statutory provision concerning the termination of an approved program. Consistently with that approach, the program continued after the date nominated in the "Activity Plan" as the "Expected End Date of program", viz 1 January 1993. What appears to have happened is that, at some time prior to 8 April 1993, a new timetable was set which, if followed, would have seen the program completed by the end of June 1993. The applicant unsuccessfully sought to have the timetable extended. At the applicant's request, the matter was reviewed by Mrs Kerry Pearmain who was the Manager of the Commonwealth Rehabilitation Service in the Australian Capital Territory and a delegate of the Secretary. 10. On 19 April 1993, Mrs Pearmain signed a document described as "Review, as Delegate, of Decision to Cease Mr N. Dooley's Rehabilitation Program as at end June 1993." The document made some reference to the history of the matter, noting that no rehabilitation plan was on the file and that the applicant had not signed any document that related to the scope of his rehabilitation plan. The document continued: "Mr Dooley has stated throughout the duration of his program that more time may be needed. There is no correspondence on file which advises Mr Dooley that the program had a finite duration." Under the sub-heading "Decision by Canberra Unit to end Program", the document stated: "There is no written correspondence with Mr Dooley to indicate that the Unit has plans to end the program. Casemanager file notes indicate that Mr Dooley was advised by phone that program would not be extended. Reasons for decision are not documented on file. File note indicates treating Dr recommends that lessons should be spaced over longer period. Reports from teachers indicate that Mr Dooley is making good progress although progress has been slower that anticipated." The document also contained the following: "Decision It is my view, in the absence of an agreed rehabilitation plan, that Mr Dooley be provided with assistance to complete the program. However, as the scope of the program remains unclear to both Mr Dooley and as evidence on file, Mr Dooley and his 11. casemanager should devise a new rehabilitation plan, with agreed costs, to cover the remaining lessons relating to flat picking and voice. The casemanager should explore with Mr Dooley the possibility of completing these lessons in Canberra as a means of minimising cost. Costs should not extend beyond those relating to the outstanding lessons. Reasons for Decision - No agreed and signed plan - Client has expectation that program duration can be altered to meet his disability needs (client refers to such needs in his original submission)." It appears that the Case Manager devised a new timetable which, if followed, would have resulted in the remaining tuition and treatment provided for in the program to be completed by 31 October 1993. Although the material before the Tribunal was to the effect that Mrs Pearmain, as the delegate of the Secretary, considered that the period between 19 April 1993 and 31 October 1993 was an appropriate period within which the program might be completed, there is no evidence of a decision to that effect being made by Mrs Pearmain and conveyed to the applicant. It is equally clear that the document signed by Mrs Pearmain on 19 April 1993 does not record any decision in terms of subs. 21A(1) of the Act or make any findings which would support a determination under either par.(b) or par.(c) of that subsection. Indeed, the decision that the applicant "be provided with assistance to complete the program" is inconsistent with any such decision. In his application to the Administrative Appeals Tribunal for the review of the decision of 19 April 1993, the 12. applicant described it as a decision to "Extend time of study but only to end of October (date not given in letter)". The reference to the letter is a reference to a letter dated 19 April 1993 sent to the applicant by Mrs Pearmain. That letter relevantly read: "I refer to your request to me at our meeting on 13 April 1993 for review of the Canberra Unit's decision to cease your rehabilitation program at end June 1993. I have considered the facts relating to your request and have decided that you should be given the opportunity to complete your rehabilitation program. The reasons for this decision relate to - lack of original rehabilitation plan - your statements at the commencement of the program that additional time may be required. However, I am concerned about increasing costs and therefore ask that a new rehabilitation plan be devised between yourself and the casemanager which clearly indicates the length of time and costs relating to completing the program with us. Your casemanager will be in touch with you shortly to arrange a suitable time. I ask also that you explore the possibility of completing the program here in Canberra. Research has shown that rehabilitation is best undertaken in the community where people live. Reasonable grounds will of course be considered should this not be possible." The matter proceeded before the Tribunal on the basis that the decision under review of 19 April 1993 was not a decision that, as recorded in the documents to which I have referred, the applicant be provided with assistance to complete the program, but a decision, in terms of subs.21A(1) of the Act, that the program end on 31 October 1993. To justify that approach, it was necessary for the respondent to show that, on 19 April 1993, the delegate of the Secretary 13. had, in terms of par.21A(1)(b), determined that the continued provision of a rehabilitation program to the applicant would not further increase the applicant's capacity to obtain paid employment or live independently or had, in terms of par.21A(1)(c), determined that the applicant was not making reasonable progress towards having a substantially increased capacity to obtain paid employment or live independently. I am unable to regard any of the material before the Tribunal as showing that on 19 April 1993 the delegate of the Secretary made any such determination. Further, if the decision under review by the Tribunal is to be regarded as a decision under subs.21A(1), the Tribunal failed to make a determination in terms of par.(b) or par.(c) of that subsection. In that connection, it is to be noted that the Tribunal put it no higher than that it was doubtful whether the program would achieve its main purpose, namely that of returning the applicant to the workforce, but made a positive finding that the applicant had made progress as a result of the program. By reason of the matters to which I have referred I am of opinion that the applicant is entitled to have the decision of the Tribunal set aside. I should add that there is a further ground on which the Court should intervene. The applicant appeared in person before the Tribunal. He placed documentary material before the Tribunal, gave evidence himself and called a number of witnesses. The respondent then called a number of witnesses. 14. At the conclusion of that evidence, the applicant indicated that he wished "to present a bit more evidence". The transcript of the proceedings before the Tribunal records that, without inquiring into the nature of that evidence or whether the need to adduce it arose out of the oral evidence given on behalf of the respondent, the applicant was informed: "I am sorry, you have had your chance and that is it." In my opinion, the Tribunal erred in proceeding in that way without at least inquiring into the matters to which I have referred. The matter to which I have last adverted would require that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal (differently constituted) for further hearing and determination. However, in the light of the view I have formed that the matter proceeded before the 'Tribunal on a false basis, the appropriate course seems to me to be to set aside the decision of the Tribunal and to remit the matter to the Tribunal with a direction that the matter be remitted to the respondent for a re-assessment of the applicant's situation in relation to the uncompleted program of assistance to him. That re~assessment should be made in the light of the history of the matter and with due regard to the diversion from the completion of the rehabilitation program resulting from the necessity on the part of the applicant to devote his efforts to preparing his case for hearing before the Tribunal and this Court. I so order. i5. It is appropriate, in all the circumstances, that the respondent pay the applicant's costs of and incidental to the application. I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Neaves \\\ Dated: 22 December 1994 The applicant appeared in person. Counsel for the respondent Solicitor for the respondent Dates of hearing Date of judgment Mrs J. Bonsey Australian Government Solicitor 30 November 1994 and 1 December 1994 22 December 1994