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Blackwell; Secretary, Department of Family and Community Services [2005] AATA 847 (2 September 2005)

Last Updated: 2 September 2005

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 847

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2004/525

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And

WENDY BLACKWELL

Respondent

DECISION

Tribunal

Mr RG Kenny, Member
Dr KP Kennedy, Member

Date 2 September 2005
Place Brisbane

Decision

The Tribunal sets aside the decision under review and substitutes its decision that Wendy Blackwell does not meet the qualification requirements for disability support pension under section 94 of the Social Security Act 1991.

.....................[Sgd]....................
RG Kenny
Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – intellectual impairment – measurement of IQ - impairment rating less than 20 points – relevant time-frame for qualification – no continuing inability to work.
Social Security Act 1991 s 94, Schedule1B

Social Security (Administration) Act 1991 Schedule 2

REASONS FOR DECISION

2 September 2005	Mr RG Kenny, Member Dr K Kennedy, Member

BACKGROUND

1. On 22 December 2003, Wendy Blackwell (the respondent) lodged a claim with Centrelink, a statutory authority within the portfolio of the Department of Family and Community Services (the applicant), for payment of disability support pension in respect of the effects upon her of "anorexia/intellectual impairment". On 22 January 2004, a delegate of Centrelink rejected her claim. That decision was affirmed by an authorised review officer on 2 April 2004. After review by the Social Security Appeals Tribunal (SSAT) on 3 June 2004, that decision was set aside and Wendy was determined to be qualified for the disability support pension from 7 January 2004 which was the date of her 16^th birthday. On 8 July 2004, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

HEARING

2. Wendy attended the hearing in the company of her parents. She was represented by Mr S Hamlyn-Harris of counsel. The applicant was represented by Ms M Brennan of counsel.

3. At the hearing, the following material was taken into evidence;
 exhibit 1 documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975(the T documents – T1 to T18)
 exhibit 2 a statement, dated 21 May 2005, by Anna Stallard;
 exhibit 3 a statement, dated 7 April 2005, by Emma Hassall;
 exhibit 4 a statement, dated 5 May 2005, by Annette Smith;
 exhibit 5 a resume of Emma Hassall;
 exhibit 6 a medical report, dated 17 March 2005, by psychologist Peter Perros;
 exhibits 7&8 medical reports, dated 1 September 2004 and 23 May 2005, respectively, by Dr J T Doneley;
 exhibits 9,10 &11 medical reports, dated 12 October 2004, 1 March 2005 and 23 May 2005, respectively, by psychiatrist Dr H D Eastwell;
 exhibit 12 an Interpretive Report of WISC-III testing;
 exhibit 13 a WAIS-III and WMS-III Summary Report, dated 17 March 2005, by psychologist Peter Perros;
 exhibit 14 a WAIS-III and WMS-III Summary Report, dated 24 May 2005, from Centrelink;
 exhibit 15 a statement, dated 8 August 2005, by Charles Blackwell; and
 exhibit 16 clinical notes from Dr Eastwell.

ISSUES AND LEGISLATION

4. The issue in this matter is whether or not Wendy is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Social Security Act 1991 (the Act). Relevantly, it reads:

"Qualification for disability support pension-continuing inability to work
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) ..........; and

(d) the person has turned 16; and

(e) ..........

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.

5. In accordance with that provision, the Tribunal must determine:
 whether Wendy has a physical, intellectual or psychiatric impairment;
 whether she has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act;
 whether she has a continuing inability to work; and
 on what date she reached 16 years of age.
6. To qualify for a disability support pension, all of those requirements must be met. It is not disputed that Wendy suffers intellectual impairment or that she celebrated her 16^th birthday on 7 January 2004. In assessing the other requirements for qualification, consideration is to be given to her circumstances in the period of 13 weeks starting on her 16^th birthday. In the event that she meets those requirements during that period, the disability support pension is payable to her from the date of her 16^th birthday. That is the effect of clauses 3 and 4 of Schedule 2 of the Social Security (Administration ) Act 1999.
7. The component of Schedule 1B of the Act which is relevant in this matter is Table 10 which relates to intellectual impairment. To allocate an impairment rating, three key criteria are assessed. The first of these is IQ as calculated using the Weschler Adult Intelligence Scale (WAIS). The instrument referred to in that Table is WAIS-R but it was common ground between the parties that this has been superseded by WAIS-III. Under Table 10, if IQ is measured at 80 or more, no score is attributed and, for an IQ in the 70-79 range, a score of 3 is attributed. The other criteria are aspects of social functioning and the Table provides that a score can only be assigned for those two criteria if a score has been assigned for a low IQ. The aspects of social functioning are adaptive behaviour and capacity for independent living. For these, Table 10 reads:

ADAPTIVE BEHAVIOUR	SCORE
No or only mild behavioural problems	0
Moderate to severe behavioural problems	3

CAPACITY FOR INDEPENDENT LIVING	SCORE
Self-sufficient	0
Needs supervision* of daily activities and routine financial transactions eg. needs to be reminded to perform routine tasks/personal care*	3
Needs regular* help with daily activities and routine financial transactions*	4
Needs major* help with daily activities and routine financial transactions*	5
Totally dependent	6

8. Table 10 then requires the three scores to be added and that final figure is converted to a work-related impairment rating using the following Table:

SCORE	RATING
3	TEN
5	TWENTY
6	TWENTY FIVE
7	THIRTY
8	THIRTY FIVE
9 or above	FORTY

SUBMISSIONS

9. Mr Hamlyn-Harris submitted that Wendy’s IQ should be assessed at below 80 and that, therefore, she should be allocated a score of 3 for IQ under Table 10. For aspects of social functioning, he submitted that a score of either 0 or 3 be used for adaptive behaviour and that a score of 3 be adopted for capacity for independent living. Accordingly, he submitted that the overall score was either 6 or 9 and that the appropriate rating was at least 25.
10. Mr Hamlyn-Harris noted the evidence given for the applicant in this matter by psychologists employed by Centrelink, Emma Hassall and Anna Stallard. They conducted a psychological assessment of Wendy in January 2004 through the application of a WAIS–III test which revealed an IQ score of 81. However, Mr Hamlyn-Harris referred to the evidence of psychologist Peter Perros who conducted a WAIS-III test in March 2005. This revealed an IQ rating of 72 and Mr Hamlyn-Harris submitted that this lower rating should be adopted by the Tribunal. He described this lower rating as being consistent with an earlier test result from a WISC-III test which relates to assessment of a child’s IQ. This gave an IQ reading of 64. He submitted that it was also consistent with the medical evidence given by Wendy’s treating doctor, Dr Doneley, and by psychiatrist, Dr Eastwell, as well as the evidence given by Wendy’s parents. He referred to the consensus reached by the psychologists that the WAIS-III instrument was accurate to 95% and that this meant that a measure of 82 really represented an IQ band from 77 to 85. He also submitted that the test conducted by Mr Perros was more thorough than that of the Centrelink psychologists and should be preferred. Mr Hamlyn-Harris conceded that Wendy suffered the effects of other conditions including an eating disorder but, nonetheless, he submitted that all of her difficulties were inter-related and that, therefore, any detriment in the aspects of her social functioning should be attributed to her intellectual impairment under Table 10.
11. Ms Brennan submitted that test results obtained by Ms Hassall and Ms Stallard were accurate and should be applied for the purposes of allocating an IQ rating under Table 10. She noted that Mr Perros had conceded that the methodology utilised by them was appropriate and she referred to Mr Perros’ evidence that some change must have occurred in the 12 months or so between their test and his and that this may have effected a change to her cognitive ability. Ms Brennan submitted that there had been events that occurred in the time-frame between the tests which impacted on Wendy’s achievement levels but not on her underlying capacity which was measured by her IQ rating. In particular, Ms Brennan nominated the death of family members as meeting that description and the changes in performance at school as being illustrative of a reduced achievement level. Alternatively, she submitted that, if there had been some change to Wendy’s underlying capacity by March 2005, this was outside of the relevant period for consideration which was the 13 weeks after her 16^th birthday. Ms Brennan also submitted that the circumstances in which the WAIS-III instrument was applied differed significantly and that those applicable to the Centrelink testing were more conducive to an accurate outcome than those in which Mr Perros conducted his test. Ms Brennan noted the 1998 IQ test result, but submitted that no regard should be had to it because the instrument used was the WISC-III which was designed specifically for measurement of IQ in a child.
12. Ms Brennan submitted that intellectual impairment may not be the only condition which impacted on aspects of Wendy’s social functioning. She noted that anorexia nervosa had been referred to by both Dr Doneley and Dr Eastwell and that Dr Eastwell also referred to Wendy’s pathological dependency on her mother. Ms Brennan submitted that no specific diagnosis had been made for these conditions and that the effects of them could not be considered under Table 10 or any other table in the Schedule because, to do so, the condition must have been fully documented, diagnosed, investigated, treated and stabilised.

EVIDENCE

13. The WAIS-III instrument was administered by psychologists Anna Stallard in January 2004 and Peter Perros in March 2005. Both gave evidence as did Emma Hassall who was Ms Stallard’s supervisor when the test was done. Evidence was also given by Wendy’s treating doctor, Dr T Doneley, and by psychiatrist, Dr H Eastwell, who had seen her on five occasions after she had been referred to him by Dr Doneley.

Dr Doneley – treating doctor

14. Dr Doneley has been Wendy’s treating doctor since she was born. He described her as having a life-long intellectual disability which rendered her permanently impaired in respect of any prospect of gaining or maintaining permanent or casual employment. Dr Doneley said that the diagnosis of anorexia nervosa was appropriate for Wendy and he said there had been times when she was grossly underweight. He was aware that she was now pregnant and he said that her mother plays an important role in her life in that Wendy defers to her most of the time. He expected that Mrs Blackwell would need to assist her during her pregnancy. Dr Doneley considered that her IQ would be very close to the 81 level as revealed on assessment though he said that there was not great variation between the ratings 72 in March 2005 and a rating of 62 in 1998. He described them all as low and consistent with his own observations.

Dr H Eastwell - psychiatrist

15. Dr Eastwell described Wendy as having intellectual impairment such that it would impact significantly on her capacity for independent living. He was familiar with the tests that had been conducted on Wendy to measure her IQ and he thought that the rating of 81 was higher than he would have considered for her.
16. Dr Eastwell also described Wendy as being a sufferer of anorexia nervosa and said that she had always had problems with her food consumption. He said that the condition did not occur often together with intellectual impairment. He said that it fluctuated in severity but that she was not in danger at this stage. He considered that, in part, this was because she is pregnant and has been motivated to eat more. He said that she is treated with Zyprexa tablets which is a tranquiliser and which has a secondary purpose of stimulating appetite. He said that this medication would have side effects of drowsiness and lowered response levels although this would be reduced if the medication was taken, as was the case with Wendy, at night.
17. Dr Eastwell said that Wendy was pathologically dependent upon her mother and would have difficulty functioning without her mother being present. He also believed that it would be extremely difficult for her to find a job and even more difficult for her to retain work and that the main problem which incapacitated her for work was this pathological attachment. However, he also said that this was a state with which Wendy’s mother could help Wendy greatly.

E Hassall, A Stallard and P Perros - psychologists

18. It was common ground among the psychologists that the WAIS-III is a very reliable instrument which had been used for many years to provide a valid means of measuring adult IQ to 95% degree of accuracy. However, there was consensus that, with regular use, a person’s score can improve and, for that reason, it was inappropriate for a test to be redone within a two year period. Ms Hassall said that a test conducted on Wendy about 13 months after her own test would be unreliable. Mr Perros considered that the period between the 2004 and 2005 tests was long enough to overcome this "practice effect" and noted that, in any event, Wendy’s score had worsened rather than improved. There was also common ground among the psychologists that it was possible for the person being tested to falsify the results by deliberately answering questions incorrectly or slowly. However, they said this form of malingering would be picked up by an experienced psychologist and that, in any event, there were built-in checks within the WAIS-III instrument itself which would reveal inconsistent scores if a person was malingering in that way.
19. The Centrelink test was actually administered by Anna Stallard under Ms Hassall’s supervision and, when the test was complete, Ms Hassall double-checked all of the entries to ensure that the calculations were correct. This was confirmed by Ms Stallard. Ms Hassall agreed that Ms Stallard was less experienced than she was in the administration of tests but she said that, at the time, Ms Stallard was at the end of her Masters degree studies. Ms Hassall said that she had no doubt about Ms Stallard’s competency and she said this was reflected by the fact that, subsequently, she was employed full-time as a psychologist by Centrelink. On the basis of the measurements obtained, Wendy achieved a rating of 81. Ms Hassall said that the score of 81 was consistent with her reading of Wendy’s educational records. When asked about the 95% level of accuracy, Ms Hassall and Ms Stallard agreed that this would mean that the rating was within the range of 77 to 85.
20. Ms Hassall stated that, if a person was feeling anxious or was not settled during the testing procedure, this may result in a lower score. However, in Wendy’s procedures, she said that this had not happened. She had seen her on 2 separate occasions and the test was completed in the second session. She described Mrs Blackwell as dominating the conversation in the first session. In the second session, she said that Wendy responded appropriately to questions, was able to maintain eye contact and, at times, initiated conversation by volunteering information, unassisted by her mother, about her experiences at school and in a work placement that she had at a hardware store.
21. Ms Hassall said that, when she completed her report, she had not been aware of a WISC-III result, obtained in October 1998, which gave an IQ reading of 64. She described the WISC-III instrument as one designed specifically for measurement of IQ in a child. She noted that Wendy was 10 years of age when that test was completed and she said that there was not necessarily a high correlation between the scores from that test and one under WAIS-III. Ms Hassall described the components of the tests as involving calculations of ratings of FSIQ (full scale IQ), VIQ (verbal IQ) and PIQ (performance IQ) and that the results in January 2004 were 81, 81 and 85, respectively. She said that the high level of consistency attained supported the validity of the final IQ score of 81. In contrast, she noted that the WISC-III ratings in 1998 were FSIQ (62), VIQ (57) and PIQ (72) and said that this meant that the result should be treated with caution.
22. Mr Perros conducted a WAIS-III test on Wendy in March 2005 and this revealed an IQ score of 72. He said that he had taken the opportunity to look at the data recorded by Ms Stallard in her tests and said that, effectively, there was very little difference between them. He described both Centrelink and his test as valid. Mr Perros said he had conducted more sub-tests than had Ms Stallard in applying the WAIS-III although he agreed that the range of tests conducted by Ms Stallard was sufficient to meet the requirements for calculating the IQ. Nevertheless, he considered that the additional tests that he gave provided a better analysis of Wendy’s capacities because they also measured her processing speed, which he described as the capacity to process information. He said that this was very low in her case so that any aspect of the testing that involved timing was performed poorly. He said that he considered his overall result to be accurate and he thought that some change had occurred in the 12 months or so between the two tests which affected her processing skills and changed her cognitive ability. For the purposes of giving his evidence on the matter, Mr Perros said that he conducted a Medline search to find a cause for the change in result. He noted that, with anorexia, processing speed can be affected. He said that he thought this might be a factor in Wendy’s case.
23. Mr Perros recalled that Wendy had been anxious about the interview with him. She had been with her mother and said hardly anything for the first 10 to 15 minutes. He said that he tried to have a conversation but could see that he was not getting anywhere. He described himself as having an enormous workload and so expediency dictated that he get background information about Wendy from her mother. Subsequently, he obtained further details from Mrs Blackwell by telephone. He said that he was not aware that Wendy was pregnant when he interviewed her or that she had learned of this four days before the interview. Mr Perros said that he interviewed Mrs Blackwell in order to make an assessment of Wendy’s adaptive behaviour and capacity for independent living. He said that Mrs Blackwell had described herself as being at her wits end in getting her to eat and that she had difficulty in getting her to carry out tasks in the household.
24. Mr Perros described the WISC-III test as being a very reliable testing instrument at the time when it was used although he said that it had since been refined. He said that it was appropriate for a consideration of the overall assessment of Wendy’s IQ to take the 1998 WISC-III reading into account.

Annette Smith – disability officer with Centrelink

25. Annette Smith has been a disability officer with Centrelink for more than six years and she provides specialised services for customers with disabilities. She described personal support programs, vocational rehabilitation services, disability employment assistance and job network services as being within the range of matters that she considers. She said that her experience had been that, with the appropriate interventions provided by the disability employment assistance providers, a customer with intellectual and behavioural disabilities is quickly able to progress to full time work. She said that the work options may be low skilled and repetitive in nature initially but that, with the building of confidence, people can often progress to a job which requires a higher skill level and which provides variety and incentive to achieve. She said that she had not had any dealings directly with Wendy but believed that these kinds of services would be available to her.

Velder and John Blackwell – Wendy’s parents

26. Mrs Blackwell said that Wendy, the sixth of her seven children, began to demonstrate developmental difficulties when she was in about grade 3 at school. She then attended special schools and this continued until the beginning of her grade 10 year. Mrs Blackwell said Wendy achieved reasonable results in the special unit at Cavendish Road State High School in grades 8 and 9 in 2001 and 2002. She also said that Wendy demonstrated athletic ability in year 9 by winning a trophy for running. Mrs Blackwell said that Wendy’s grandmother died in early 2003 and that this greatly affected Wendy. She said that Wendy was not able to attend school in the early part of her grade 10 year and experienced increased behavioural difficulties and so was approved to have education at home. Mrs Blackwell said that this lasted for about five months and ended when the school deregistered her.
27. Mrs Blackwell said she and her family were living in Brisbane at that time but then moved to an acreage property near Tara in country Queensland. She said that their family doctor in Brisbane had always been Dr Doneley from the Cavendish Road Clinic and she said that Wendy continued to see him from time to time. She also said that she was seeing psychiatrist Dr Eastwell. Mrs Blackwell said that Wendy is now pregnant and that her partner, Dale, lives with Wendy.
28. In describing a typical day for Wendy when they lived on the property, Mrs Blackwell said that she played with some young pups and also helped her young nephew, who lived there, after school. Mrs Blackwell takes her on shopping trips and Wendy occasionally does some cooking although she is not responsible in that regard. However, she said that Wendy had done some cooking in the past and did so when she was doing well at school. Mrs Blackwell said Wendy is very stubborn and not willing to provide much assistance in the doing of chores around the house. She said Wendy spends a lot of time with her and she supervises Wendy’s activities. She has to get her out of bed in the mornings and helps her to get things ready for each day such as her clothing and her meals. Mrs Blackwell said that Wendy’s eating habits had been with her since she was two or three years of age. She takes food into her mouth but invariably spits it out into a tissue and often throws it on to the floor. Mrs Blackwell said that Wendy’s weight was around 50kgs and that the doctor was not worried about her in that regard. She said that her eating had improved to some extent since she became pregnant and began taking vitamin tablets on a daily basis.
29. Mrs Blackwell said that she was aware of the testing that had been done in January 2004 by Ms Hassall and Ms Stallard and also of the subsequent testing that had been done by Mr Perros in March 2005. She said that, in between those two times in September 2004, Wendy’s brother died. She said that this had been a great shock for Wendy because they had been very close. She said that Wendy went into major withdrawal with a great loss of weight and needed hospital treatment. She said that her condition deteriorated to a point where she and Mr Blackwell thought that they "had lost her".
30. Mr Blackwell said that, in the period since the matter first came before the Tribunal, the family had moved from Tara and was now living in a caravan park in Nanango. He said that he, his wife and youngest son are in one van and Wendy and Dale in another. He said that he and Mrs Blackwell have encouraged Wendy and Dale to be more independent and to look after themselves. He also said that his wife monitors what they do in the van, especially in relation to keeping it clean and tidy. He said that Dale helps Wendy with many of the chores. He expected that they would all be staying in the park until his son finishes school and that they would be there after the baby is born in October. He said that Mrs Blackwell has been accompanying Wendy and Dale on her regular visits to the Toowoomba hospital where the baby will be born. He also said that they are working towards a time when they will be able to go unaccompanied to the hospital by bus.
31. Mr Blackwell confirmed that Wendy coped reasonably well at school until Year 10. He described a major change to her after her grandmother died in that year. Mr Blackwell also said that Wendy had recently obtained a learner’s permit to enable her to get a driving licence. He said that she had failed the test on the first occasion but then passed on the second attempt. He was not aware of whether or not she had been provided a rule book for the purposes of the test and thought that she had learned the various road rules through the explanations given to her by his wife and himself whenever they were out in the car.

Other evidence

32. In evidence were Wendy’s progress reports from the special education unit at Cavendish Road State High School for 2002 when she was in year 9. They read:

TERM 1 - 2002
subject	progress/ achievement	industry/ work output	conduct/ behaviour	attitude
english	B	A	A	A
mathematics	C	B	A	A
science	B	A	A	A
social science	A	A	A	A
healthy lifestyle education	A	A	A	A
art	B	A	A	A
home economics/ food	NA	A	A	A
computer word processing	B	A	A	A
TERM 3 - 2002
subject	progress/ achievement	industry/ work output	conduct/ behaviour	attitude
English	B	A	A	A
mathematics	C	B	A	A
science	B	A	A	A
social science	A	A	A	A
healthy lifestyle education	B	A	A	A
art	B	A	A	A
home economics/ food	NA	A	A	A
computer word processing	C	A	A	A

33. The interpretation code for the various ratings was A - very good; B – good; C satisfactory; and NA – not assessed. For term 2 of 2002, a different format was used in the report and the following comments were made:

"Subject: ART
Comments
Wendy displays some imagination in her approach to the art medium and attempts to experiment with materials and techniques. She is competent in handling art materials and techniques. Wendy demonstrates a sound knowledge of related art theory and history. She is a valued member of the class and is a responsible student who can work independently.
Wendy also displays a responsible approach to all aspects of the work.

Subject: COMPUTER WORD PROCESSING & PUBLISHING
AREAS OF SUBJECT ASSESSED
ACCURACY C
DISPLAY AND PRESENTATION C+
Comments
Wendy produces work with a satisfactory degree of accuracy and can apply display techniques to produce routine tasks. Wendy is working well in class and she is well-behaved and courteous at all times. She demonstrates a positive attitude in class.

Subject: HEALTHY LIFESTYLE EDUCATION
AREAS OF SUBJECT ASSESSED
THEORY B
SKILL B
PARTICIPATION A
Comments
Wendy shows good knowledge of theoretical concepts and their application. Through hard work and in response to teacher feedback she achieves a good standard in practical skills. Wendy shows a sound knowledge of theoretical concepts and their application. She shows considerable interest in being a member of the class.
Wendy is a co-operative and hard-working student who is well-behaved and courteous at all times. She has genuine interest in this subject and is a conscientious student.

Subject: HOME ECONOMICS – FOOD
AREAS OF SUBJECT ASSESSED
KNOWLEDGE C
HANDLING INFORMATION C
MANAGEMENT C
PRACTICAL SKILLS B
Comments
This semester’s achievement level is based on all results for the year. Wendy understood some key concepts. She applied information to form coherent pieces of work. Wendy made simple choices with some guidance and independently managed materials to prepare good products in some complex situations.
Wendy has worked consistently throughout the semester. She is always pleasant and co-operative. Wendy demonstrates a positive attitude in class.

Subject: HUMAN RELATIONSHIPS EDUCATION NOT ASSESSED
Comments
Peer Support lessons (Period One each Friday) interrelate the elements of values, self-concept, communication, relationships and gender identity into the educational areas of Religion, Careers, Health and Sexual Harassment. Wendy has attended all lessons this semester and was always punctual to class.

Subject: MATHEMATICS
AREAS OF SUBJECT ASSESSED
COMMUNICATION B
ESSENTIAL CORE 75%
ADDITIONAL CORE 37%
EXTENSION 1%
Comments
Wendy communicates clearly, generally adhering to the conventions of language and Mathematics. She is highly competent in the application of basic facts and has adequate knowledge of the more difficult concepts and their applications. She experiences difficulties in extension topics.
Wendy shows considerable interest in being a member of the class. She has worked consistently throughout the semester and she is well behaved and courteous at all times. She demonstrates commitment and persistence and she makes a significant effort to complete all work."

CONSIDERATION

34. Clearly, the calculation of Wendy’s IQ score is a very significant element in this matter. Table 10 requires a WAIS score to be determined. In evidence are the results of two such tests with resultant scores of 81 and 72, as assessed by Ms Stallard and Mr Perros, respectively. The evidence of Mr Perros was that each of these scores was calculated through an appropriate application of the WAIS-III instrument and that each was accurate. He said that the main difference between his test and that of Ms Stallard was that he measured additional parameters which related to processing speed and it was this aspect of Wendy’s responses which were reflected in the lower reading.
35. The evidence of Mr Perros was that he was concerned about the differences in the ratings because the WAIS-III instrument is a robust one and should remain consistent over the 14 month time frame within which the two tests were conducted. The difference was of such concern to Mr Perros that he implemented a Medline search in an attempt to find a cause. Mr Perros noted from this search that the presence of anorexia nervosa can affect processing speed. He thought that might be a factor in Wendy’s case and he believed that there must have been some underlying change in her cognitive ability during the period between the test results. During that time, Wendy experienced substantial trauma as a result of the death of her brother and this had a substantial impact upon her. While she had suffered from an eating disorder for many years, this became more marked at that time and she lost further weight and required hospital treatment.
36. We have noted Ms Brennan’s submission concerning the circumstances in which the WAIS-III tests were conducted. There is evidence that heightened anxiety levels can affect an outcome of a WAIS-III test and we accept Ms Brennan’s submission that the circumstances in which Mr Perros conducted the test were more conducive to anxiety effects than was the case with Ms Hassall. She was able to engage Wendy in conversation, at times initiated by Wendy, whereas Mr Perros felt constrained by time limitations and his attempts to converse with Wendy were unsuccessful. There was also evidence that Wendy had discovered that she was pregnant only a few days before her testing procedure with Mr Perros.
37. In this matter, it may well be the case that both WAIS-III tests provided a correct measure of Wendy’s IQ at the time when they were conducted and that the lower result obtained by Mr Perros reflected a decreased cognitive ability due to some intervening factor such as the impact on Wendy of the death of her brother. Nevertheless, we prefer the test result obtained by Ms Hassall to that obtained by Mr Perros due to the circumstances under which they were conducted and because the latter test was conducted well outside the time-frame which is relevant in this case. As noted above, the relevant period is 13 weeks following Wendy’s 16^th birthday in January 2004. It was in that time-frame that Mrs Stallard conducted her test.
38. For the respondent, it was contended that, because the WAIS-III instrument has an accuracy level at 95%, the end score of 81 should be treated as being in the middle of a range of scores which represent the IQ of Wendy. We do not accept that contention. The Introduction to Schedule 1B of the Act includes the following paragraph:

"1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. Work is defined in section 94(5) of the Social Security Act 1991. The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following a medical assessment is termed work-related impairment and this term is used throughout this document."

39. The empirical process required by Table 10 of Schedule 1B is the utilisation of the WAIS-III instrument. It is designed to give a particular score. We are satisfied that the outcome of applying the WAIS-III procedures, in this case, is the score of 81 rather than somewhere in the range between 77 and 85. We have noted the submission that a lower IQ is consistent with the WISC-III test completed in 1998. Whilst Mr Perros described this as also being a reliable testing instrument, we accept the evidence of Ms Hassall that there is no necessary correlation between the results of that test and that of the WAIS-III instrument. We are also satisfied that the IQ score assessed by Ms Hassall is more consistent with the very sound education performance of Wendy in 2002, as revealed by her school progress reports, and also her capacity to obtain a learner’s permit in relation to the driving licence. We have also noted the evidence of Dr Doneley who considered that the various scores attributed to Wendy reflected no great variation and that his understanding of her IQ was that it would be very close to the 81 level. Dr Eastwell gave the opinion that her IQ may be lower than the measured 81 but that was not based on any empirical data. We are satisfied that Wendy’s IQ for the purposes of applying section 94 of the Act is 81.
40. Where an IQ measures 81 under Table 10, no further ratings are applied to the social functioning criteria of adaptive behaviour and capacity for independent living. However, even if such allocations could be made, the proper application of Table 10 would require that these social functioning effects be related to Wendy’s intellectual disability. The evidence is that there are other contributing conditions in her case. We have noted the respondent’s submission that all of her disabilities should be treated as inter-related and as relevant for the purposes of assessing adaptive behaviour and capacity for independent living. However, the effects of anorexia nervosa and/or pathological dependence cannot be taken into account because neither of those conditions meets the requirement in paragraph 4 of the introduction to Schedule 1B that, to attract a rating, a condition must be "a fully documented, diagnosed condition which has been investigated, treated and stabilised". In any event, there is no evidence that Wendy’s anorexia nervosa is related to her intellectual impairment. Indeed, Dr Eastwell described them as not often occurring together in an individual. He also described Wendy as having a pathological dependence on her mother and said that this was the major factor which would impact upon her capacity to obtain employment. Accordingly, even if the proper IQ rating under the WAIS–III was less than 80, the effects would have no role in assessing Wendy’s adaptive behaviour and capacity for independent living which are the aspects of social functioning relevant under Table 10.

DECISION

41. The Tribunal sets aside the decision under review and substitutes its decision that Wendy Blackwell does not meet the qualification requirements for disability support pension under section 94 of the Act.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member and Dr KP Kennedy, Member

Signed: Jeff Mills
Legal Research Officer

Date/s of Hearing 25 May 2005 and 8 August 2005
Date of Decision 2 September 2005
Counsel for the Applicant Ms M Brennan
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Ms S Hamlyn-Harris
Solicitor for the Respondent: Legal Aid

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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2005/847.html

3.	At the hearing, the following material was taken into evidence;
	exhibit 1 documents prepared in accordance with section 37 of the *Administrative Appeals Tribunal Act 1975*(the T documents – T1 to T18)
	exhibit 2 a statement, dated 21 May 2005, by Anna Stallard;
	exhibit 3 a statement, dated 7 April 2005, by Emma Hassall;
	exhibit 4 a statement, dated 5 May 2005, by Annette Smith;
	exhibit 5 a resume of Emma Hassall;
	exhibit 6 a medical report, dated 17 March 2005, by psychologist Peter Perros;
	exhibits 7&8 medical reports, dated 1 September 2004 and 23 May 2005, respectively, by Dr J T Doneley;
	exhibits 9,10 &11 medical reports, dated 12 October 2004, 1 March 2005 and 23 May 2005, respectively, by psychiatrist Dr H D Eastwell;
	exhibit 12 an Interpretive Report of WISC-III testing;
	exhibit 13 a WAIS-III and WMS-III Summary Report, dated 17 March 2005, by psychologist Peter Perros;
	exhibit 14 a WAIS-III and WMS-III Summary Report, dated 24 May 2005, from Centrelink;
	exhibit 15 a statement, dated 8 August 2005, by Charles Blackwell; and
	exhibit 16 clinical notes from Dr Eastwell.

5.	In accordance with that provision, the Tribunal must determine:
	whether Wendy has a physical, intellectual or psychiatric impairment;
	whether she has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act;
	whether she has a continuing inability to work; and
	on what date she reached 16 years of age.
6.	To qualify for a disability support pension, all of those requirements must be met. It is not disputed that Wendy suffers intellectual impairment or that she celebrated her 16^th birthday on 7 January 2004. In assessing the other requirements for qualification, consideration is to be given to her circumstances in the period of 13 weeks starting on her 16^th birthday. In the event that she meets those requirements during that period, the disability support pension is payable to her from the date of her 16^th birthday. That is the effect of clauses 3 and 4 of Schedule 2 of the *Social Security (Administration ) Act 1999*.
7.	The component of Schedule 1B of the Act which is relevant in this matter is Table 10 which relates to intellectual impairment. To allocate an impairment rating, three key criteria are assessed. The first of these is IQ as calculated using the Weschler Adult Intelligence Scale (WAIS). The instrument referred to in that Table is WAIS-R but it was common ground between the parties that this has been superseded by WAIS-III. Under Table 10, if IQ is measured at 80 or more, no score is attributed and, for an IQ in the 70-79 range, a score of 3 is attributed. The other criteria are aspects of social functioning and the Table provides that a score can only be assigned for those two criteria if a score has been assigned for a low IQ. The aspects of social functioning are adaptive behaviour and capacity for independent living. For these, Table 10 reads:

9.	Mr Hamlyn-Harris submitted that Wendy’s IQ should be assessed at below 80 and that, therefore, she should be allocated a score of 3 for IQ under Table 10. For aspects of social functioning, he submitted that a score of either 0 or 3 be used for adaptive behaviour and that a score of 3 be adopted for capacity for independent living. Accordingly, he submitted that the overall score was either 6 or 9 and that the appropriate rating was at least 25.
10.	Mr Hamlyn-Harris noted the evidence given for the applicant in this matter by psychologists employed by Centrelink, Emma Hassall and Anna Stallard. They conducted a psychological assessment of Wendy in January 2004 through the application of a WAIS–III test which revealed an IQ score of 81. However, Mr Hamlyn-Harris referred to the evidence of psychologist Peter Perros who conducted a WAIS-III test in March 2005. This revealed an IQ rating of 72 and Mr Hamlyn-Harris submitted that this lower rating should be adopted by the Tribunal. He described this lower rating as being consistent with an earlier test result from a WISC-III test which relates to assessment of a child’s IQ. This gave an IQ reading of 64. He submitted that it was also consistent with the medical evidence given by Wendy’s treating doctor, Dr Doneley, and by psychiatrist, Dr Eastwell, as well as the evidence given by Wendy’s parents. He referred to the consensus reached by the psychologists that the WAIS-III instrument was accurate to 95% and that this meant that a measure of 82 really represented an IQ band from 77 to 85. He also submitted that the test conducted by Mr Perros was more thorough than that of the Centrelink psychologists and should be preferred. Mr Hamlyn-Harris conceded that Wendy suffered the effects of other conditions including an eating disorder but, nonetheless, he submitted that all of her difficulties were inter-related and that, therefore, any detriment in the aspects of her social functioning should be attributed to her intellectual impairment under Table 10.
11.	Ms Brennan submitted that test results obtained by Ms Hassall and Ms Stallard were accurate and should be applied for the purposes of allocating an IQ rating under Table 10. She noted that Mr Perros had conceded that the methodology utilised by them was appropriate and she referred to Mr Perros’ evidence that some change must have occurred in the 12 months or so between their test and his and that this may have effected a change to her cognitive ability. Ms Brennan submitted that there had been events that occurred in the time-frame between the tests which impacted on Wendy’s achievement levels but not on her underlying capacity which was measured by her IQ rating. In particular, Ms Brennan nominated the death of family members as meeting that description and the changes in performance at school as being illustrative of a reduced achievement level. Alternatively, she submitted that, if there had been some change to Wendy’s underlying capacity by March 2005, this was outside of the relevant period for consideration which was the 13 weeks after her 16^th birthday. Ms Brennan also submitted that the circumstances in which the WAIS-III instrument was applied differed significantly and that those applicable to the Centrelink testing were more conducive to an accurate outcome than those in which Mr Perros conducted his test. Ms Brennan noted the 1998 IQ test result, but submitted that no regard should be had to it because the instrument used was the WISC-III which was designed specifically for measurement of IQ in a child.
12.	Ms Brennan submitted that intellectual impairment may not be the only condition which impacted on aspects of Wendy’s social functioning. She noted that anorexia nervosa had been referred to by both Dr Doneley and Dr Eastwell and that Dr Eastwell also referred to Wendy’s pathological dependency on her mother. Ms Brennan submitted that no specific diagnosis had been made for these conditions and that the effects of them could not be considered under Table 10 or any other table in the Schedule because, to do so, the condition must have been fully documented, diagnosed, investigated, treated and stabilised.

15.	Dr Eastwell described Wendy as having intellectual impairment such that it would impact significantly on her capacity for independent living. He was familiar with the tests that had been conducted on Wendy to measure her IQ and he thought that the rating of 81 was higher than he would have considered for her.
16.	Dr Eastwell also described Wendy as being a sufferer of anorexia nervosa and said that she had always had problems with her food consumption. He said that the condition did not occur often together with intellectual impairment. He said that it fluctuated in severity but that she was not in danger at this stage. He considered that, in part, this was because she is pregnant and has been motivated to eat more. He said that she is treated with Zyprexa tablets which is a tranquiliser and which has a secondary purpose of stimulating appetite. He said that this medication would have side effects of drowsiness and lowered response levels although this would be reduced if the medication was taken, as was the case with Wendy, at night.
17.	Dr Eastwell said that Wendy was pathologically dependent upon her mother and would have difficulty functioning without her mother being present. He also believed that it would be extremely difficult for her to find a job and even more difficult for her to retain work and that the main problem which incapacitated her for work was this pathological attachment. However, he also said that this was a state with which Wendy’s mother could help Wendy greatly.

18.	It was common ground among the psychologists that the WAIS-III is a very reliable instrument which had been used for many years to provide a valid means of measuring adult IQ to 95% degree of accuracy. However, there was consensus that, with regular use, a person’s score can improve and, for that reason, it was inappropriate for a test to be redone within a two year period. Ms Hassall said that a test conducted on Wendy about 13 months after her own test would be unreliable. Mr Perros considered that the period between the 2004 and 2005 tests was long enough to overcome this "practice effect" and noted that, in any event, Wendy’s score had worsened rather than improved. There was also common ground among the psychologists that it was possible for the person being tested to falsify the results by deliberately answering questions incorrectly or slowly. However, they said this form of malingering would be picked up by an experienced psychologist and that, in any event, there were built-in checks within the WAIS-III instrument itself which would reveal inconsistent scores if a person was malingering in that way.
19.	The Centrelink test was actually administered by Anna Stallard under Ms Hassall’s supervision and, when the test was complete, Ms Hassall double-checked all of the entries to ensure that the calculations were correct. This was confirmed by Ms Stallard. Ms Hassall agreed that Ms Stallard was less experienced than she was in the administration of tests but she said that, at the time, Ms Stallard was at the end of her Masters degree studies. Ms Hassall said that she had no doubt about Ms Stallard’s competency and she said this was reflected by the fact that, subsequently, she was employed full-time as a psychologist by Centrelink. On the basis of the measurements obtained, Wendy achieved a rating of 81. Ms Hassall said that the score of 81 was consistent with her reading of Wendy’s educational records. When asked about the 95% level of accuracy, Ms Hassall and Ms Stallard agreed that this would mean that the rating was within the range of 77 to 85.
20.	Ms Hassall stated that, if a person was feeling anxious or was not settled during the testing procedure, this may result in a lower score. However, in Wendy’s procedures, she said that this had not happened. She had seen her on 2 separate occasions and the test was completed in the second session. She described Mrs Blackwell as dominating the conversation in the first session. In the second session, she said that Wendy responded appropriately to questions, was able to maintain eye contact and, at times, initiated conversation by volunteering information, unassisted by her mother, about her experiences at school and in a work placement that she had at a hardware store.
21.	Ms Hassall said that, when she completed her report, she had not been aware of a WISC-III result, obtained in October 1998, which gave an IQ reading of 64. She described the WISC-III instrument as one designed specifically for measurement of IQ in a child. She noted that Wendy was 10 years of age when that test was completed and she said that there was not necessarily a high correlation between the scores from that test and one under WAIS-III. Ms Hassall described the components of the tests as involving calculations of ratings of FSIQ (full scale IQ), VIQ (verbal IQ) and PIQ (performance IQ) and that the results in January 2004 were 81, 81 and 85, respectively. She said that the high level of consistency attained supported the validity of the final IQ score of 81. In contrast, she noted that the WISC-III ratings in 1998 were FSIQ (62), VIQ (57) and PIQ (72) and said that this meant that the result should be treated with caution.
22.	Mr Perros conducted a WAIS-III test on Wendy in March 2005 and this revealed an IQ score of 72. He said that he had taken the opportunity to look at the data recorded by Ms Stallard in her tests and said that, effectively, there was very little difference between them. He described both Centrelink and his test as valid. Mr Perros said he had conducted more sub-tests than had Ms Stallard in applying the WAIS-III although he agreed that the range of tests conducted by Ms Stallard was sufficient to meet the requirements for calculating the IQ. Nevertheless, he considered that the additional tests that he gave provided a better analysis of Wendy’s capacities because they also measured her processing speed, which he described as the capacity to process information. He said that this was very low in her case so that any aspect of the testing that involved timing was performed poorly. He said that he considered his overall result to be accurate and he thought that some change had occurred in the 12 months or so between the two tests which affected her processing skills and changed her cognitive ability. For the purposes of giving his evidence on the matter, Mr Perros said that he conducted a Medline search to find a cause for the change in result. He noted that, with anorexia, processing speed can be affected. He said that he thought this might be a factor in Wendy’s case.
23.	Mr Perros recalled that Wendy had been anxious about the interview with him. She had been with her mother and said hardly anything for the first 10 to 15 minutes. He said that he tried to have a conversation but could see that he was not getting anywhere. He described himself as having an enormous workload and so expediency dictated that he get background information about Wendy from her mother. Subsequently, he obtained further details from Mrs Blackwell by telephone. He said that he was not aware that Wendy was pregnant when he interviewed her or that she had learned of this four days before the interview. Mr Perros said that he interviewed Mrs Blackwell in order to make an assessment of Wendy’s adaptive behaviour and capacity for independent living. He said that Mrs Blackwell had described herself as being at her wits end in getting her to eat and that she had difficulty in getting her to carry out tasks in the household.
24.	Mr Perros described the WISC-III test as being a very reliable testing instrument at the time when it was used although he said that it had since been refined. He said that it was appropriate for a consideration of the overall assessment of Wendy’s IQ to take the 1998 WISC-III reading into account.

26.	Mrs Blackwell said that Wendy, the sixth of her seven children, began to demonstrate developmental difficulties when she was in about grade 3 at school. She then attended special schools and this continued until the beginning of her grade 10 year. Mrs Blackwell said Wendy achieved reasonable results in the special unit at Cavendish Road State High School in grades 8 and 9 in 2001 and 2002. She also said that Wendy demonstrated athletic ability in year 9 by winning a trophy for running. Mrs Blackwell said that Wendy’s grandmother died in early 2003 and that this greatly affected Wendy. She said that Wendy was not able to attend school in the early part of her grade 10 year and experienced increased behavioural difficulties and so was approved to have education at home. Mrs Blackwell said that this lasted for about five months and ended when the school deregistered her.
27.	Mrs Blackwell said she and her family were living in Brisbane at that time but then moved to an acreage property near Tara in country Queensland. She said that their family doctor in Brisbane had always been Dr Doneley from the Cavendish Road Clinic and she said that Wendy continued to see him from time to time. She also said that she was seeing psychiatrist Dr Eastwell. Mrs Blackwell said that Wendy is now pregnant and that her partner, Dale, lives with Wendy.
28.	In describing a typical day for Wendy when they lived on the property, Mrs Blackwell said that she played with some young pups and also helped her young nephew, who lived there, after school. Mrs Blackwell takes her on shopping trips and Wendy occasionally does some cooking although she is not responsible in that regard. However, she said that Wendy had done some cooking in the past and did so when she was doing well at school. Mrs Blackwell said Wendy is very stubborn and not willing to provide much assistance in the doing of chores around the house. She said Wendy spends a lot of time with her and she supervises Wendy’s activities. She has to get her out of bed in the mornings and helps her to get things ready for each day such as her clothing and her meals. Mrs Blackwell said that Wendy’s eating habits had been with her since she was two or three years of age. She takes food into her mouth but invariably spits it out into a tissue and often throws it on to the floor. Mrs Blackwell said that Wendy’s weight was around 50kgs and that the doctor was not worried about her in that regard. She said that her eating had improved to some extent since she became pregnant and began taking vitamin tablets on a daily basis.
29.	Mrs Blackwell said that she was aware of the testing that had been done in January 2004 by Ms Hassall and Ms Stallard and also of the subsequent testing that had been done by Mr Perros in March 2005. She said that, in between those two times in September 2004, Wendy’s brother died. She said that this had been a great shock for Wendy because they had been very close. She said that Wendy went into major withdrawal with a great loss of weight and needed hospital treatment. She said that her condition deteriorated to a point where she and Mr Blackwell thought that they "had lost her".
30.	Mr Blackwell said that, in the period since the matter first came before the Tribunal, the family had moved from Tara and was now living in a caravan park in Nanango. He said that he, his wife and youngest son are in one van and Wendy and Dale in another. He said that he and Mrs Blackwell have encouraged Wendy and Dale to be more independent and to look after themselves. He also said that his wife monitors what they do in the van, especially in relation to keeping it clean and tidy. He said that Dale helps Wendy with many of the chores. He expected that they would all be staying in the park until his son finishes school and that they would be there after the baby is born in October. He said that Mrs Blackwell has been accompanying Wendy and Dale on her regular visits to the Toowoomba hospital where the baby will be born. He also said that they are working towards a time when they will be able to go unaccompanied to the hospital by bus.
31.	Mr Blackwell confirmed that Wendy coped reasonably well at school until Year 10. He described a major change to her after her grandmother died in that year. Mr Blackwell also said that Wendy had recently obtained a learner’s permit to enable her to get a driving licence. He said that she had failed the test on the first occasion but then passed on the second attempt. He was not aware of whether or not she had been provided a rule book for the purposes of the test and thought that she had learned the various road rules through the explanations given to her by his wife and himself whenever they were out in the car.

34.	Clearly, the calculation of Wendy’s IQ score is a very significant element in this matter. Table 10 requires a WAIS score to be determined. In evidence are the results of two such tests with resultant scores of 81 and 72, as assessed by Ms Stallard and Mr Perros, respectively. The evidence of Mr Perros was that each of these scores was calculated through an appropriate application of the WAIS-III instrument and that each was accurate. He said that the main difference between his test and that of Ms Stallard was that he measured additional parameters which related to processing speed and it was this aspect of Wendy’s responses which were reflected in the lower reading.
35.	The evidence of Mr Perros was that he was concerned about the differences in the ratings because the WAIS-III instrument is a robust one and should remain consistent over the 14 month time frame within which the two tests were conducted. The difference was of such concern to Mr Perros that he implemented a Medline search in an attempt to find a cause. Mr Perros noted from this search that the presence of anorexia nervosa can affect processing speed. He thought that might be a factor in Wendy’s case and he believed that there must have been some underlying change in her cognitive ability during the period between the test results. During that time, Wendy experienced substantial trauma as a result of the death of her brother and this had a substantial impact upon her. While she had suffered from an eating disorder for many years, this became more marked at that time and she lost further weight and required hospital treatment.
36.	We have noted Ms Brennan’s submission concerning the circumstances in which the WAIS-III tests were conducted. There is evidence that heightened anxiety levels can affect an outcome of a WAIS-III test and we accept Ms Brennan’s submission that the circumstances in which Mr Perros conducted the test were more conducive to anxiety effects than was the case with Ms Hassall. She was able to engage Wendy in conversation, at times initiated by Wendy, whereas Mr Perros felt constrained by time limitations and his attempts to converse with Wendy were unsuccessful. There was also evidence that Wendy had discovered that she was pregnant only a few days before her testing procedure with Mr Perros.
37.	In this matter, it may well be the case that both WAIS-III tests provided a correct measure of Wendy’s IQ at the time when they were conducted and that the lower result obtained by Mr Perros reflected a decreased cognitive ability due to some intervening factor such as the impact on Wendy of the death of her brother. Nevertheless, we prefer the test result obtained by Ms Hassall to that obtained by Mr Perros due to the circumstances under which they were conducted and because the latter test was conducted well outside the time-frame which is relevant in this case. As noted above, the relevant period is 13 weeks following Wendy’s 16^th birthday in January 2004. It was in that time-frame that Mrs Stallard conducted her test.
38.	For the respondent, it was contended that, because the WAIS-III instrument has an accuracy level at 95%, the end score of 81 should be treated as being in the middle of a range of scores which represent the IQ of Wendy. We do not accept that contention. The Introduction to Schedule 1B of the Act includes the following paragraph: