Re Allison Oellering and Department of Health Housing and Community Services [1992] AATA 234 (3 August 1992)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: ALLISON OELLERING
And: DEPARTMENT OF HEALTH HOUSING AND COMMUNITY SERVICES
No. V91/1084
AAT No. 8143
Rehabilitation Services

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
B.M. Forrest(1) (Deputy President), Mr W. McLean(1) (Member) and Mr B. Pascoe(1) (Member)

CATCHWORDS

Rehabilitation Services - whether there was a rehabilitation program for the purposes of the Disability Services Act 1986 - applicant a disabled student - whether an integration aide can be provided for the purposes of a rehabilitation program - decision under review set aside.

Disability Services Act 1986 s.20, s.20(1), s.20(5)(a), s.26(6), s.17, s.3, s.19

Freedom of Information Act 1982 s.3

The News Corporation Limited v National Companies and Securities Commission (1984) 1 FCR 64

HEARING

MELBOURNE
3:8:1992

ORDER

The Tribunal sets aside the decision under review and in substitution therefor decides that the applicant be provided with appropriate services, including those of an integration aide, to enable the applicant to undertake tertiary studies at a tertiary institution, for the purposes of section 20 of the Disability Services Act 1986.

DECISION

This is an application for review of a decision of a delegate of the Secretary of the Department of Community Services and Health affirming a decision not to provide the applicant Allison Oellering with a rehabilitation program.

2. The primary issue before the Tribunal in this application is whether the applicant's request for an 'integration aide' similar to the one provided for her at secondary school is a rehabilitation program for the purposes of s.20 of the Disability Services Act 1986, "the Act".

3. The jurisdiction of the Tribunal arises pursuant to s.26(6) of the Act.

4. The Tribunal heard evidence from the applicant and from her parents, Ms Turner (Occupational Therapist), Ms Ford (Manager of Barwon Independent Living Inc. an organisation which assists persons with disabilities), Mr Breen (Principal Ballarat Secondary College), Ms Townsend (an adviser to disabled students at Deakin University), Mr Stark (Regional Manager Commonwealth Rehabilitation Service), Ms Vickers (psychologist) and Ms Wheatley (department legal officer).

5. The applicant, Allison Oellering is 20 years of age. She suffers from Werdnig-Hoffmann disease which has led to severe deformities in her spine and she is confined to a wheel chair. She also has limited lung capacity and some speech impairment. At age 9, she had major spinal surgery. Because of her physical disability, intense personal care is required. The applicant commenced her schooling at age 12 on a part-time basis at a school for disabled children. She began full-time schooling at Year 7 level, at Ballarat Secondary College. She completed her secondary education in 1991 and obtained her Victorian Certificate of Education "VCE". An integration aide was provided by the Victorian Education Department to enable her to complete her VCE studies. The applicant estimates having missed about half of her secondary schooling through ill health. In her VCE year, she was absent for about three weeks each term. She did not ask for any special consideration for her VCE examinations. The only consideration given was an extra 10 minutes per hour in examination time. Her VCE score of 209, was insufficient to gain entry to the Bachelor of Arts (Child Psychology) degree course at Deakin University, her preferred option. In 1992, she is undertaking a personnel management course at Gordon Institute and is hopeful of gaining entry to the Arts Faculty at Deakin in 1993.

6. Section 20(1) of the Act provides:
"20(1) Subject to section 21, where the Secretary

is satisfied that the provision of a rehabilitation
program for a person in the target group would result
in a substantially increased capacity of the person -
(a) to obtain or retain paid employment (whether or
not the employment would be unsupported); or
(b) to live independently,
the Secretary may, on behalf of the Commonwealth,
approve the provision of the rehabilitation program for
the person, together with any follow-up program that
the Secretary considers necessary or desirable."

7. The Act does not define rehabilitation program. It says simply that 'rehabilitation program' means a rehabilitation program under this part and except in s.20, includes a follow-up program under this part: s.17 of the Act.

8. Black's Law Dictionary, 6th edition 1991, defines rehabilitation at p 1287:

"Rehabilitation....Restoration of individual to his
greatest potential, whether physically, mentally,
socially, or vocationally."

9. The Macquarie Dictionary defines program as:

"1. a plan or policy to be followed.
2. a list of things to be done; agenda."

10. To determine whether there is a plan, policy, list or agenda which was formulated for the purpose of restoring the applicant to her greatest potential physically, mentally, socially and vocationally, the evidence of considerable weight is the interview of 11 July 1991 during which the applicant sought and was given assistance. On that day the applicant and her mother visited the Geelong Rehabilitation Unit and had a 3 hour interview with Ms Gail Horsley. A written record was made of the interview by Ms Horsley (Document T3). A history was taken of the applicant's disability, her education and her family situation. These details and the testimony of those who gave evidence in this matter on behalf of the applicant establish quite clearly that she is a highly motivated individual who has proven her ability to overcome enormous odds time and again.

11. A list was drawn up of the things that the applicant and her parents needed to address in order to enable her to make a smooth transition from Ballarat, where she was living with her mother, to Geelong, where her family would be reunited. The "agenda" for the rest of the interview was recorded in writing and the issues dealt with accordingly.

12. Under the heading 'Goals' there are three points noted:

"1. Alison wants to complete her yr 12
2. She then wants to do a BA through the school of
s.sciences at Deakin majoring in psychology, with a
view to working as an educational or clinical
psychologist.
3. She hopes to increase her independence by
eventually living in a granny flat in the family home".

13. There is no dispute that these are the applicant's goals. As such they were apparently accepted by Ms Horsley who then proceeded to address what action needed to be taken to bring these to fruition. There is no indication that the applicant was advised that these were inappropriate goals or that they were in any way beyond her potential.

14. Under the heading 'Action/Issues Discussed' Ms Horsley addressed the obstacles the applicant and her family needed to overcome. These included the continuation of attendant care, the provision of an integration aide and the availability of suitable housing in the Geelong district. At the commencement of the interview the applicant did not merely seek the provision of a single service. She sought professional assistance in solving the problems which were preventing her from reaching her physical potential. Inappropriate housing would limit her freedom of movement and her independence within the family home. The discontinuation of support services by way of attendant care would prevent her from reaching her social and mental potential. It is in this context that the provision of an integration aide arose, and it is clearly needed for her to reach her vocational potential. Enquiries were made accordingly and at the close of the interview the outstanding issues were whether the applicant's current attendant care was transferable, and provision of an integration aide. Notes relating to the interview were provided to the applicant and her mother, and a future course of conduct decided upon.

15. Mr Stark, Regional Manager Geelong, when determining whether or not there was a rehabilitation program which should be provided to the applicant stated (Document T7) that:

"...the applicant is not seeking the provision by
the CRS of a 'rehabilitation program' for the purposes
of Section 20 of the DSA, but purely financial
assistance to enable her to continue her education."

16. Having so found he refused "to provide legitimacy to any claim that (the applicant) is seeking a rehabilitation program" and so would not consider the applicant's capacity to undertake the course at Deakin.

17. Mr Huttner for the respondent contended that there is no rehabilitation program. It was his submission that when the applicant approached the Commonwealth Rehabilitation Service ("CRS") she had already decided what she wanted to do. Further he contended that she did not seek CRS expertise in developing a "program" consisting of a plan, targets, goals, monitoring, and assistance along the way. He emphasised the concept of "mutually agreed" goals and in his submission there is no "program" because the applicant had already planned her future direction around a particular course of study at a particular institution.

18. The argument that there were no mutually agreed goals and therefore no rehabilitation program must fail. CRS clearly accepted the applicant's goals and then refused to work with the applicant to achieve them because to do so was to acknowledge that there was a rehabilitation program which needed development or modification. The evidence does not support the contention that the applicant would not have modified her goals if so advised. Further the proposal that the applicant should consolidate her studies by completing the VCE psychology course before commencing tertiary studies only arose after proceedings had already commenced, as noted in response to a question from the Tribunal. Throughout the course of the interview with Ms Horsley notes were taken, plans of action outlined and modified, advice given and received, and a list of things outstanding drawn up. On these facts and a common sense interpretation of the words used in the Act, there was a "program" which needed to be implemented.

19. In evidence, Mr Stark outlined the process by which a rehabilitation program is usually entered into and the way in which it is monitored. Clearly there is no written contract, but this is not required under the Act and there is enough documentation of the goals and aspirations of the applicant for there to be certainty as to the purpose of the program. Monitoring of the program would normally be by 3 monthly reviews, but in response to questions from the Tribunal it was indicated that CRS would have a role in the progress of the applicant in that if she did not attend Deakin on any one day then the aide would not be provided on that day. Funding would therefore be controlled on a daily basis and the applicant's successful participation in the course monitored accordingly. Mr Huttner also indicated that there are statutory obligations to monitor a program under the Audit Act. An argument based on a lack of continuing control and input into the program must also fail.

20. Mr Stark focused on the role of Deakin University in referring the applicant to the CRS, and highlighted the unwillingness of another organisation to provide the service which is required by the applicant to enable her to pursue her aspirations and achieve her maximum potential. The availability of funding for services from other bodies is not a relevant consideration under the Act, nor does it further the aims and objectives of the Act. In so limiting his approach to this application, Mr Stark did not take into account the process by which issues were clarified and resolved, and the degree of assistance which was afforded to the applicant.

21. The Tribunal is not prepared to be drawn into a demarcation dispute between the CRS and Deakin University over who is responsible for enabling disabled students to obtain tertiary qualifications. The Tribunal is limited to considering the provisions of the Act, which empowers the Secretary to approve rehabilitation programs for the disabled who fall within the target group. It is not in issue that the applicant falls within the target group defined in section 18, and section 20(5)(a) specifically anticipates the provision of educational courses and programs for the purposes of a rehabilitation program.

22. Section 20(5) provides:

"Without limiting the generality of sub-section
(4), the Secretary may, for the purposes of a
rehabilitation program (including any follow up
program), provide, or arrange for the provision of -
(a) employment and vocational training, educational
courses and programs, and mobility and other
independent living training;
(b) diagnostic and assessment services, medical
services, occupational therapy, physiotherapy, speech
therapy, and counselling and social work services;
(c) accommodation, transportation and personal
support services;
---
(g) any other goods and services the Secretary
considers necessary or desirable."

23. Mr Butler, Area Manager West, in affirming Mr Stark's decision not to provide a rehabilitation program stated:

"In regard to your need for an aide or personal
support, this seems to be your only request of CRS. Mr
Stark considered that this was a request for an
isolated service and that, in itself, did not
constitute a rehabilitation program. He also
considered that the completion of tertiary studies, by
itself did not constitute a rehabilitation program."

24. Although it is clear from the evidence of the applicant and her mother that the applicant was seeking an integration aide to assist her with her studies, the applicant sought assistance on three points when she first approached CRS. Fortunately two of these were satisfactorily resolved with CRS assistance but without CRS funding.

25. Accordingly Mr Huttner's submission that the applicant simply requested the approval of a single aid or service and as such never sought a rehabilitation program at all also cannot succeed. That being so reliance on the CRS manual which addresses administrative problems which may arise in situations where only a single aid or service is requested is not an answer.

26. A further argument raised by Mr Huttner is that the Tribunal should reject the adoption of a "leaning position" or a more generous interpretation by referring to the objects clause when interpreting a particular provision. As Mr Huttner pointed out, such an approach was rejected in interpreting s.3 of the Freedom of Information Act 1982 in The News Corporation Limited v National Companies and Securities Commission (1984) 1 FCR 64. Bowen C.J. and Fisher J. said at 66:

"In construing our Act we do not favour the
adoption of a leaning position. The rights of access
and the exemptions are designed to give a correct
balance of the competing public interests involved.
Each is to be interpreted according to the words used,
bearing in mind the stated object of the Act."

27. It was not in effect part of the applicant's case that the Tribunal should adopt a leaning position. It is not an issue the Tribunal need consider but is mentioned simply in response to Mr Huttner's submission. What News Corporation made clear is that an objects clause like s.3 (FOI Act) is an aide to interpretation but that it cannot override the plain meaning of the statute.

28. Under the Act the provision of services must be in harmony with the objects of the Act; see ss 3 and 19.

29. Section 19 reads:

"The Secretary shall not exercise a power conferred
by sub-section 20(1) or 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."

30. Section 3 reads:

"The objects of the Act are -
(a) 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;
(b) to ensure that persons with disabilities receive
the services necessary to enable them to achieve their
maximum potential as members of the community;
(c) to ensure that services provided to persons with
disabilities-
(i) further the integration of persons with
disabilities in the community, and complement services
available generally to persons in the community;
(ii) enable 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;
(d) 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;
(e) to encourage innovation in the provision of
services for persons with disabilities; and
(f) to achieve 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,
and this Act shall be construed and administered
accordingly."

31. Clearly it is in furtherance of these aims and objects for the applicant to be assisted by the provision of a rehabilitation program which will assist her to pursue tertiary qualifications, qualifications which will enable the applicant to achieve her maximum potential as a member of the community.

32. Having found that there is a rehabilitation program, the Tribunal needs to decide whether it ought to be approved under sub-section 20(1) and then to determine whether the provision of an integration aide or note-taker is in line with the purposes of that rehabilitation program. We note at this point that the question of the applicant living independently is not part of the applicant's case: see s.20(1)(b).

33. We are in no doubt that the effect of the applicant attaining tertiary qualifications will substantially enhance her employment prospects. That may seem to be simply stating the obvious, but quite apart from that while acknowledging her employment prospects are minimal at present because of her disability, there was evidence from Ms Turner, which we accept, that Ms Turner's employer, the Spastic Society would be especially interested in employing a child psychologist with the applicant's background.

34. Finally the Tribunal must decide whether to authorise the provision of an "educational course" for the purpose of this rehabilitation program. The Tribunal need go no further than s.20(5)(a) of the Act which empowers it to provide or arrange for the provision of educational courses.

35. In our opinion, there is a rehabilitation program for the purposes of s.20 of the Act. The program is one of assisting the applicant to achieve her maximum potential and enhance her positive image whilst allowing her to integrate now and potentially in the future, initially by participating in a tertiary institution with a view to specialisation in a field for which she could foreseeably develop an expertise. The restorative element of this program is that the applicant will progress beyond the limitations previously imposed upon her by a severely disabling medical condition, to a position whereby she has reached her maximum potential and can make a positive contribution to society. Access to a tertiary institution by way of relocating to Geelong, continuing personal support by way of attendant care, and assistance in participating in campus life by way of provision of an integration aide are all aspects of this overall program.

36. The decision under review will be set aside. The Tribunal therefor decides that the applicant be provided with appropriate services, including those of an integration aide, to enable the applicant to undertake tertiary studies at a tertiary institution, for the purposes of section 20 of the Act.