Aird and Secretary, Department of Social Services (Social services second review)
[2020] AATA 153
•12 February 2020
Aird and Secretary, Department of Social Services (Social services second review) [2020] AATA 153 (12 February 2020)
Division:GENERAL DIVISION
File Number: 2018/7246
Re:Russell Aird
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Belinda Pola, Senior Member
Date:12 February 2020
Place:Brisbane
The Tribunal finds that the Applicant:
(a)did have impairments that attracted 20 points under the Impairment Tables and therefore did satisfy the requirements of s94(1)(b) of the Act; and
(b)did not have a continuing inability to work and did not satisfy the requirements of s94(1)(c) of the Act;
during the Qualification Period and therefore did not qualify for a Disability Support Pension.
The decision under review is affirmed.
..................................[SGD]......................................
Senior Member Belinda Pola
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – Whether medical conditions fully diagnosed, fully treated and fully stabilised – Whether 20 points or more under the Impairment Tables during the Qualification Period – Decision under review affirmed
LEGISLATION
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)Social Security Act 1991 (Cth)
CASES
Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 507
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fanning and Secretary, Department of Social Services [2014] AATA 447
Faulkner and Comcare [2007] AATA 1541
Hamal and Secretary, Department of Social Services [1993] AATA 283
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Joukhador and Department of Family and Community Services [2000] AATA 1097
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Tahtali and Secretary, Department of Family and Community Services [2004] AATA 320
Tey and Secretary, Department of Social Services [2013] AATA 753
VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 663
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846Younan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 111
REFERENCE MATERIAL
Social Security Guide, Version 1.260, released 2 January 2020
REASONS FOR DECISION
Belinda Pola, Senior Member
12 February 2020
BACKGROUND
On 23 January 2018[1] the Applicant, Mr Russell Aird, signed an Application for the Disability Support Pension (‘DSP’), which was received by the Department of Human Services (the ‘Department’).
[1] Exhibit 1, T23, pages 110 to 140.
On 5 March 2018[2], the Applicant was advised by the Department that their claim for the DSP was rejected. The decision to reject the Applicant’s claim for the DSP was again affirmed by an Authorised Review Officer (‘ARO’) after an internal review by the Department on 16 June 2018[3].
[2] Exhibit 1, T26, pages 152 and 153.
[3] Exhibit 1, T28, pages 155 to 160.
On 3 August 2018[4], the Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (the ‘Tribunal’) to review the Department’s decision to reject the claim for DSP. The SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for DSP on 7 November 2018[5].
[4] Exhibit 1, T29, pages 161 and 162.
[5] Exhibit 1, T2, pages 6 to 12.
The Applicant applied to the Tribunal for a second review of this decision on 8 December 2018[6].
[6] Exhibit 1, T1, pages 1 to 5.
JURISDICTION
This is an Application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP. The Tribunal notes that decision of 7 November 2018 from the SSCSD of the Tribunal sought to simultaneously review two applications for DSP from the Applicant with dates of claim on 16 October 2017 and 23 January 2018. The DSP claim for 16 October 2017 had not been reviewed by the Secretary of the Department of Social Services, the Chief Executive of Centrelink, or an Authorised Review Officer (‘ARO’) in accordance with s126 or s135 of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’). Therefore, there was no jurisdiction for the SSCSD of the Tribunal to review the Applicant’s DSP claim of 16 October 2017.
Given the Applicant’s claim of 23 January 2018 has been reviewed in accordance with s135 of the Administration Act by an ARO, and subsequently reviewed by the SSCSD of the Tribunal; in accordance with s179(1) of the Administration Act, the Tribunal has jurisdiction to hear the Applicant’s DSP claim of 23 January 2018.[7]
[7] The Applicant confirmed they did not wish to pursue the 16 October 2017 claim, Exhibit 2, Attachment A.
ISSUES
The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 23 January 2018, and ending 13 weeks later on 24 April 2018[8].
[8] The Qualification Period is discussed in later paragraphs of this Decision.
For the purposes of this Application and the evidence submitted and provided orally to the Tribunal, it is clear the Applicant had impairments during the Qualification Period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’). Indeed, the Respondent accepted that the Applicant had impairments for the purposes of s94(1)(a)[9].
[9] Exhibit 2, pages 8 and 9, paragraphs 51 and 52.
The issue for the Tribunal to resolve in respect of the Applicant’s claim for DSP is:
(i)whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) within the Qualification Period; and
(ii)if so, did the Applicant have a continuing inability to work?
RELEVANT LEGISLATIVE PROVISIONS
The medical qualification criteria regarding eligibility for DSP are set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act:
94 Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.
Section 26(1) of the Act provides that “the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.
It is the Tribunal’s role to stand in the shoes of the original decision-maker[10] and determine whether the decision was the correct or preferable one on the material before the Tribunal[11]. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.
[10] Faulkner and Comcare [2007] AATA 1541 [27].
[11] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.
Section 6 of the Determination provides that “the impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[12]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[13].
[12] Section 6(1) of the Determination.
[13] Section 6(2) of the Determination.
An impairment rating may only be assigned to an impairment if[14]:
(a)the person’s condition causing the impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.
[14] Section 6(3) of the Determination.
Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[15]:
·be fully diagnosed by an appropriately qualified medical practitioner; and
·be fully treated; and
·be fully stabilised; and
·be more likely than not, in light of available evidence, to persist for more than 2 years.
[15] Section 6(4) of the Determination.
When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[16]:
(c)whether there is corroborating evidence of the condition; and
(d)what treatment or rehabilitation has occurred in relation to the condition; and
(e)whether treatment is continuing or is planned in the next 2 years.
[16] Section 6(5) of the Determination.
A condition is considered fully stabilised if[17]:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[17] Section 6(6) of the Determination.
Reasonable treatment is a treatment that[18]:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
[18] Section 6(7) of the Determination.
Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.
Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.
In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.
While s11(1)(c) of the Determination provides that in assigning an impairment rating “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.
Continuing inability to work
As previously detailed in paragraph 10 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a “continuing inability to work”. Section 94(2) of the Act requires that:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A severe impairment is defined in s94(3B) of the Act:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Section 94(3C) of the Act states that:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘PoS’).
QUALIFICATION PERIOD
Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[19].
[19] Part 2, clause 4(1)(d) of the Administration Act.
For the purposes of this decision, the day which the Applicant’s claim for DSP was registered with Centrelink was 23 January 2018[20], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 24 April 2018.
[20] Exhibit 1, T23, pages 110 to 140.
This means that for a claim to be successful, the person must be qualified for DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[21].
[21] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [1]; Fanning and Secretary, Department of Social Services [2014] AATA 447 [31].
CONSIDERATION
The Application was heard in Brisbane on 28 January 2020, with the Applicant appearing in person, and the Respondent represented in person by Ms Jasmine Forsyth of Mills Oakley. The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).
The Tribunal notes that the Applicant has submitted evidence (including medical reports) for consideration by the Tribunal which postdate the Qualification Period for this Application. The Tribunal also notes that the Health Professional Advisory Unit (HPAU) report of 8 April 2019[22], relies on medical reports submitted outside the Qualification Period ending on 24 April 2018, with examples including:
·An audiology report by Mr Alan Fort, Senior Audiometrist, undertaken on 7 August 2018[23]; and
·A specialist report from Dr Evan Matthews (Earn, Nose and Throat) of 17 December 2018[24], regarding a consultation which occurred on 28 November 2018.
[22] Exhibit 2, Attachment B.
[23] Exhibit 2, Attachment D.
[24] Exhibit 2, Attachment D.
The Tribunal is only able to consider the situation as it was, and the evidence that was available at the time the application for DSP was made, and the subsequent 13 weeks. As previously stated, further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[25].
[25] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [1]; Fanning and Secretary, Department of Social Services [2014] AATA 447 [31].
Evidence submitted to the Tribunal confirmed the Applicant was previously employed by Queensland Ambulance Service (‘QAS’), but was deemed medically unfit to continue in their role, and no other roles were deemed suitable. This lead to a termination of the Applicant’s employment on medical grounds effective from 8 January 2002[26]. The Applicant had been in receipt of a salary in continuance, which ceased from the date the Applicant turned 60, on 4 October 2017[27].
[26] Exhibit 1, T7, page 47; and Exhibit 1, T8, page 48.
[27] Exhibit 1, T15, page 92.
Section 94(1)(a) of the Act (physical, intellectual or psychiatric impairment)
In the Applicant’s claim for the DSP signed on 23 January 2018, the following impairments were listed in the medical details section[28]:
·“HEARING – SEVERE HEARING IMPAIRMENT TO RIGHT AND LEFT EARS – TINNITUS”; and
·“LOWER BACK CONDITION – SCHEUERMANN’S DISEASE ADVANCED DEFENERATIVE CHANGES TO LUMBAR SPINE – DISCOGENIC BACK SYNDROME”.
[28] Exhibit 1, T23, page 134.
The Tribunal is satisfied after review of the evidence before it that the applicant suffered impairments during the Qualification Period in terms of s94(1)(a) of the Act, a point which was accepted by the Respondent[29]. The Tribunal finds the following impairments relevant to this Application:
(a)Spinal condition; and
(b)Hearing condition.
Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)
[29] Exhibit 2, paragraphs 51 and 52, pages 8 and 9.
The Tribunal will consider each impairment identified in paragraph 36 in accordance with s94(1)(b) of the Act, in particular whether they meet the relevant provisions contained within the Determination.
(a) Spinal condition
The Tribunal finds, based on submitted evidence, that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised prior to the Qualification Period in accordance with the Determination with reference to the following evidence:
(a)An original diagnosis from Dr Malcolm Wallace, Orthopaedic Surgeon of 31 May 2001, stating[30]:
[30] Exhibit 1, T5, page 45.
“I reviewed Russell’s [the Applicant] plain X-rays of the lumbar spine today. These reveal degenerative changes at L3/4 which are advanced. I think he has a discogenic back pain syndrome and my comments regarding his suitability for the various jobs in the QAS is contained within the body of my previous report.”
(b)Confirmation of diagnosis in an X-ray of the Applicant’s Lumbosacral Spine undertaken by Dr Richard Budge in a Medical Report of 12 March 2012, stating[31]:
“There is severe degenerative change throughout the lumbar spine with marked disc space narrowing right side L2/3, left side L3/4 and generalised narrowing of L1/2 and L4/5. There is posterior slip of L2 on 3 and L3 on L4. There is multi level marginal osteophytosis and there are Schmorl’s nodes in the end plates of L2 and L3. Spina bifida occulta noted L5 and there is a right sided transverse process of L5 showing a small pseudo articulation with the sacral alar. Moderate severity facet arthropathy at L3/4 to L5/S1 levels. No destructive bony lesion.”
(c)Confirmation of diagnosis in an X-ray of the Applicant’s Lumbosacral Spine by Dr Piyoosh Kotecha of 22 December 2017, stating[32]:
“Clinical History: Low back pain with disabolith. Past history of Scheuermann’s disease. X-RAY LUMBOSACRAL SPINE, Degenerative changes are present in the lower thoracic and lumber spine with disc space narrowing and subchondral sclerosis and spur formation. These changes are most marked at L2/3. Associated facet joint arthritis. Minor degenerative changes in the sacroiliac joints…”
(d)A letter from Dr Michael Allen, General Practitioner, of 28 December 2017, stating[33]:
“This is to state that I have known this man professionally since 2011 and that he has been attending this Practice since 2004. Prior to attending tis Practice he was diagnosed by the Orthopaedic Specialist Dr Malcolm Wallace as having discogenic back pain and I note his past history of Scheuermann’s disease. This would be consistent with his history of back pain as a teenager. He began to slow down at work as a result of back pain and disability in 2012 and he eventually had to cease work altogether. He experiences back pain with most physical activities and he notes he has to be extremely careful with all back movements in anticipation of pain and disability. Morning back stiffness is particularly evident in his case. I estimate that the range of motion in his back is lessened by about half with most activities and that he cannot stand for more than 15 minutes and sit for more than 30 minutes without necessitating a change of position. I note that treatment has included chiropractic / acupuncture/ exercises – including walking and swimming / dieting to lose weight / spinal injections / oral Celebrex and oral Endep.”
[sic]
(e)A Job Capacity Assessment Report by a Registered Occupational Therapist of 5 March 2018, which states[34]:
“Based on available information, the condition is considered permanent and fully diagnosed (as per Dr Allen and Dr Kotecha). The condition is considered fully treated (appropriate treatment to date) and stable (further treatment is unlikely to significantly improve his symptoms within the next 24 months).”
[31] Exhibit 1, T10, page 52.
[32] Exhibit 1, T21, pages 107 and 108.
[33] Exhibit 1, T22 page 109.
[34] Exhibit 1, T25, page 144.
The Tribunal is required to determine an Impairment Rating for the Applicant’s spinal condition. The relevant Impairment Table within the Determination is Table 4 – Spinal Function[35].
[35] The Determination, pages 20 and 21.
The Applicant gave evidence to the Tribunal that they:
·lived alone and kept fit by walking (with rests) and swimming at the beach;
·cleaned their own home (and undertook tasks such as washing and vacuuming);
·were able to pick up items from a dining table;
·were able to tend to their own self-care (including, for example, washing their own hair);
·did their own grocery shopping (but would seek assistance for items that were above head height);
·they were able to drive and get in and out of a car (with a support handle and step, as their car was a ute); and
·were able to stand for 10 to 15 minutes in one position, and able to walk for 30 minutes.
The Applicant’s evidence regarding their ability to exercise, stand, sit and walk corroborates with the letter of Dr Allen dated 28 December 2017, mentioned in the earlier paragraphs of this Decision.
Based on the evidence presented to the Tribunal, it is clear that the Applicant does not meet the descriptor for a “severe” Impairment Rating in Table 4 – Spinal Function within the Determination, as the evidence before the Tribunal has not established that the Applicant is:
(a)unable to perform any overhead activities; or
(b)unable to turn their head, or bend their neck, without moving their trunk; or
(c)unable to bend forward to pick up a light object from a desk or table; or
(d)unable to remain seated for at least 10 minutes.
The Tribunal considered the descriptor for a “moderate” Impairment Rating in Table 4 – Spinal Function within the Determination, which has been included below for ease of reference:
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items overhead height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
The Applicant gave evidence to the Tribunal that they were able to drive (for limited periods whilst adjusting their back during that time). Given this, the Applicant would meet the requirement of (1) as outlined in the table above. To meet the remaining requirements of this descriptor, the Applicant would need to meet one of the four remaining requirements outlined in (a) to (d).
As previously outlined in this Decision, evidence before the Tribunal in the form of a letter from Dr Allen of 28 December 2017 was that he estimated, “that the range of motion in his back is lessened by about half with most activities”[36]. This corroborates with evidence from the Applicant that they are unable to bend over or lift items (at coffee table height) as they are concerned they may put their back out. Based on this, and the evidence presented to the Tribunal (and outlined in the Exhibit List[37]), the Tribunal is satisfied that the Applicant has met the descriptor in 1(c) for a “moderate” Impairment Rating in Table 4 – Spinal Function within the Determination in the Qualification Period for this Application. Accordingly, the Applicant is assigned 10 points.
[36] Exhibit 1, T22, page 109.
[37] Refer to Annexure 1 of this Decision.
(b) Hearing condition
The Tribunal finds, based on submitted evidence, the Applicant’s hearing condition was fully diagnosed, fully treated and fully stabilised prior to the Qualification Period in accordance with the Determination with reference to the following evidence:
(a)An audiology report undertaken by Mr John Pearcy, Audiologist, on 28 September 2013, which states[38]:
“At your assessment you have been fitted with a Lyric2 extended wear hearing aid on the right…”
(b)An audiology report by Ms Genevieve Lusher, Audiologist, for testing which was undertaken on 4 September 2017 and 16 October 2017, which states: “Speech discrimination testing using words in quiet was consistent with the audiogram in both ears and indicates good performance with amplified speech bilaterally. However when I retested the right ear on 16th October the speech discrimination in the right had declined to 70%... The most obvious concern is that he cannot hear clearly. Speech sounds distorted through the hearing aids and he can only tolerate wearing one hearing aid…” and “The attached graphs indicate Mr Russell Aird,s marked hearing loss in right and left ears. His hearing loss is nearly 60% and it has declined since his first visit to me in Sept 2017 as compared to a previous graph from 2013 .Despite numerous attempts at trialling and using hearing aids and devices his hearing will continue to decline and cannot be treated or cured. He also has marked tinnitus which also contributes to his loss of hearing and also affects his balance and therefore co-ordination.”[39]
(c)A medical certificate of 24 October 2017 by Dr Allen, which states a diagnosis of, “Major industrial deafness”, and that the condition is[40]:
“Permanent (likely to persist for 2 years or more)”, with a prognosis that the condition would last, “more than 24 months.”
(d)A Job Capacity Assessment Report by a Registered Occupational Therapist of 5 March 2018, which states[41]:
“Diagnostically, the condition is confirmed in a report (4/9/17) by Ms. Genevieve Lusher, Audiologist, indicating the Recipient experiences mild to moderate sloping sensorineural hearing loss. She indicates the Recipient cannot hear clearly. She notes he experiences distortion through hearing aids and therefore can only tolerate wearing one at a time… The Recipient reported he has been prescribed bilateral hearing aids, however, primarily wears only the right side due to reported feedback issues. The Recipient has difficulty discriminating conversations when in noisy environments, however, is able to hear emergency signals. He reported he has no other assistive devices such as a T-Switches and he typically does not answer the telephone due to hearing difficulties. The Recipient reported he does not lip reads or utilise sign language to assist with communication. Based on available information, the condition is considered permanent (long standing condition) and fully diagnosed (as per Dr Allen and Ms Lusher). The condition has been appropriately treated to date with the provision of hearing aids and is stable (unlikely to regain lost hearing) for the purposes of this report.”
[sic]
[38] Exhibit 1, T11, page 53.
[39] Exhibit 1, T12, page 55; Exhibit 1, T14, page 58.
[40] Exhibit 1, T17, page 97.
[41] Exhibit 1, T25, page 145.
The Tribunal is required to determine an Impairment Rating for the Applicant’s hearing condition. The relevant Impairment Table within the Determination is Table 11 – Hearing and other Functions of the Ear[42].
[42] The Determination, pages 46 to 48.
The Applicant gave evidence to the Tribunal that:
·their Tinnitus distorts what they can hear even with a hearing aid (with the Applicant stating that they only wear one hearing aid to minimise the distortion);
·they are sensitive to loud noises when in public as they get picked up by the hearing aid, and that they sometimes remove the hearing aid because of this;
·they are able to have a conversation when facing a person in a quiet setting;
·they can conduct conversations when a person is facing them in a quiet setting;
·they are unable to hear the TV or radio;
·they rely on the use of text messages via mobile phone, and email to communicate;
·they do not use sign language to communicate;
·they are unable to hear a smoke alarm at night (as they do not sleep with a hearing aid); and
·they do not suffer from dizziness.
The Tribunal notes that the Applicant relied on a hearing loop to participate in the hearing.
Based on the evidence presented to the Tribunal, it is clear that the Applicant does not meet the descriptor for a “severe” Impairment Rating in Table 11 – Hearing and other Functions of the Ear within the Determination, as the evidence before the Tribunal is that the Applicant does not rely on a recognised sign language (e.g. Auslan), lip reading, or other nonverbal communication method (e.g. note taking) to converse with others in all situations.
The Tribunal considered the requirements of a “moderate” Impairment Rating as outlined in in Table 11 – Hearing and other Functions of the Ear within the Determination, which has been included below for ease of reference.
10
There is a moderate functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device; or sign language interpreting is required.
(1) The person:
(a) has difficulty hearing a conversation at average volume in a room with no background noise; and
(b) the person has to use a telephone with a T switch and has occasional difficulty with some words ; and
(c) is partially reliant on lip-reading or a recognised sign language (e.g. Auslan), that is, the person needs to lip-read or watch a sign language interpreter in some situations where background noise is present or needs to have parts of conversations clarified or repeated using lip-reading or recognised sign language; or
(2) The person has more frequent difficulty with balance (e.g. has to sit down or hold on to a solid object) or ringing in the ears which interferes with communication ability or routine activities, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
The Applicant must satisfy requirement (1) or (2) of the above descriptor in order to be eligible for the “moderate” Impairment Rating as outlined in Table 11 – Hearing and other Functions of the Ear.
Based on the evidence presented to the Tribunal, the Applicant does not rely on a T switch phone as required by 1(b); and is not partially reliant on lip-reading or a recognised sign language as required by 1(c). As the Applicant does not meet 1(b) or 1(c), as required for a “moderate” Impairment Rating, the Tribunal examined the evidence presented in reference to the requirement outlined in (2).
The Applicant’s evidence to the Tribunal is that their Tinnitus distorts their hearing and impacts their ability to hear and communicate. Medical evidence presented to the Tribunal and previously outlined in this Decision confirmed that the Applicant had “marked tinnitus which also contributes to his loss of hearing and also affects his balance and therefore co-ordination” [43].
[43] Exhibit 1, T14, page 58.
Based on the evidence presented to the Tribunal, the Applicant has met the criteria for a “moderate” Impairment Rating as per the description outlined in Table 11 – Hearing and other Functions of the Ear in the Determination prior to the Qualification Period. Accordingly, the Applicant is assigned 10 points.
As the Tribunal has assigned a total of 20 points on review of the Applicant’s impairments, the Applicant meets s94(1)(b) of the Act.
Section 94(1)(c) of the Act (Continuing inability to work)
The Tribunal must now examine whether the Applicant met the requirements regarding s94(1)(c) of the Act, which provides:
…
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
…
A person has a “continuing inability to work” if the Secretary is satisfied they have “actively participated in a program of support” and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking of a training activity, within the next two years. The Tribunal refers to s94(2) (aa) of the Act, which provides:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) - the person has actively participated in a program of support within the meaning of subsection (3C); and
…
As the Applicant did not attract 20 points under the Impairment Tables for a “severe impairment”, in accordance with 94(3B) of the Act, the Applicant is required to have participated in a Program of Support (‘PoS’) within the meaning of s94(3C) of the Act prior to the Applicant applying for the DSP.
Whether an Applicant has actively participated in a support program is determined by whether they meet the test set out in the Participation Determination. Part 2, section 7 of the Participation Determination sets out the requirements for “active participation” in a PoS.
In general terms, an Applicant is required to participate in a support program for 18 months in the 36 months prior to the date of the claim for DSP.
The PoS Qualification Period for this application is 22 January 2015 to 22 January 2018, with the Applicant needing to demonstrate that they actively participated in the PoS for at least 18 months[44].
[44] Part 2, s7(2) of the Participation Determination.
The evidence before the Tribunal is that the Applicant first participated with a designated provider in accordance with the Participation Determination on 16 March 2018[45]. This postdates the date of claim for this Application, being 23 January 2018. Given this, the Applicant does not meet the requirements of the Participation Determination set out in Part 2, s7(1)(a)(ii); s7(1)(b); s7(2); s7(3); s7(4) and s7(5).
[45] Exhibit 1, T33, page 199; Exhibit 2, Attachment C.
The Tribunal has no power to dispense with the requirement for compliance with s94(2)(aa) of the Act. It is applied strictly, and it is irrelevant whether an Applicant is aware of the requirement or not[46].
[46] Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 507; Re VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 663; Tey and Secretary, Department of Social Services [2013] AATA 753.
As the Applicant has not met the requirements of s94(2)(aa) of the Act during the PoS Qualification Period for this application (22 January 2015 to 22 January 2018), the Tribunal finds that the Applicant does not have a continuing inability to work in accordance with s94(1)(c) of the Act.
Work capacity
The Tribunal is also required to review whether the Applicant met the “continuing inability to work” criteria in sections 94(2)(a) and (b) of the Social Security Act, which provides:
…
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
…
The Tribunal is required to assess the Applicant’s work capacity. Section 94(5) of the Act defines “work” as:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
The Social Security Guide[47] lists factors which the Tribunal should disregard when determining whether a person has a continuing inability to work. The Tribunal has given consideration to these factors, along with relevant precedents, outlined below:
[47] Social Security Guide, Version 1.260, released 2 January 2020 (
(a)the availability of the person's usual work in the locally accessible labour market[48];
(b)the availability of any work the person could do or be trained for, within the locally accessible labour market[49];
(c)the availability to the person of any kind of transport (public or private) to travel to and from work;
(d)the person's motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment, e.g. psychiatric disability[50];
(e)difficulties with literacy, numeracy or language which are not directly attributable to a medical condition[51];
(f)the person's preferences regarding the type of work or training[52];
(g)the person's potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that may exist in the open labour market[53];
(h)any impairments that have not been assigned a rating under the Determination[54]; and
(i)the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered[55].
[48] Section 94(3)(b) of the Act.
[49] Section 94(3)(a) of the Act.
[50] Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451.
[51] Joukhador and Department of Family and Community Services [2000] AATA 1097 [20]; Tahtali and Secretary, Department of Family and Community Services [2004] AATA 320 [52]. Cf. Hamal and Secretary, Department of Social Services [1993] AATA 283 [39].
[52] Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 [34].
[53] Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846.
[54] Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500, 501 and 504; Younan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 111 [34].
[55] Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606 [14]; Hamal and Secretary, Department of Social Services [1993] AATA 283 [42].
The Tribunal notes limited medical evidence has been submitted regarding the Applicant’s capacity to engage in employment.
In regard to the Applicant’s ability to work, the Tribunal refers to the following submitted evidence:
(a)An Employment Services Assessment Report of 15 November 2017, which states[56]:
“The recipient’s [Applicant’s] baseline work capacity is assessed as being between 8-14 hours per week due to the impact of his spinal and hearing conditions which may cause them to experience chronic pain and impacts negatively on endurance, manual handling, mobility, capacity to sit and stand for prolonged periods, and their ability to persist with physical tasks for prolonged periods in the workplace. Additionally, the recipient [Applicant] may have communication and hearing related difficulties. The recipient [Applicant] may be capable of engaging in light duties or sedentary work. With interventions from a GP, secondary rehabilitation and Disability Employment Services (DES) - Employment Support Services (ESS) the recipient’s [Applicant’s] work capacity may improve. The recipient [Applicant] is expected to benefit from vocational counselling and assessment to assist in reviewing transferable skills in relation to his presenting symptoms, in order to determine suitable vocational goals. The recipient [Applicant] may also require workplace assessment and modifications (including consideration of equipment, work hours and work duties) in addition to a period of post-placement support to support him to undertake, sustain his working hours to 15-22 hours per week.”
(b)A Job Capacity Assessment Report of 5 March 2018, which states[57]:
“… a reduced work capacity of 8-14 hours is recommended to reflect the impact on overall function. However, the Recipient [Applicant] continues to reside alone and live independently. With optimal medical management and engagement in services from a DES - ESS provider, the Recipient’s [Applicant’s] work capacity may increase to 15-22 hours a week within the next 24 months, in suitable forms of work. Prospective employment will need to consider his [Applicant’s] need to frequently change positions to prevent static work postures (likely to increase his pain), in addition to a suitable workplace environment commensurate with his [Applicant] communication needs. …completed school to grade 10 and had no identified literacy or numeracy issues. He [Applicant] reported he [Applicant] had completed further studies including a Trade Qualification as a Cabinet Maker, and an Associate Diploma of Applied Science (Paramedic).”
[56] Exhibit 1, T19, pages 100 to 104.
[57] Exhibit 1, T25, pages 143 to 151.
The Tribunal notes the views of the assessors[58] in the Employment Services Assessment Report of 15 November 2017 and the Job Capacity Assessment Report of 5 March 2018; with each assessor coming to the view that the baseline work capacity of the Applicant is assessed at 8-14 hours per week, which may increase to 15-22 hours a week within the next 24 months with appropriate interventions.
[58] Assessors are considered to have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations in determining a person’s work capacity.
Evidence presented to the Tribunal regarding the Applicant’s impairment, suggests that the Applicant has a diminished work capacity, but it is not such that the Applicant is an individual with no work capacity.
Having reviewed the evidence before it, the Tribunal finds that the Applicant does have an ability to work, as noted in the Employment Services Assessment Report of 15 November 2017 and the Job Capacity Assessment Report of 5 March 2018.
Accordingly, the Tribunal finds that the Applicant did not satisfy s94(2)(a) of the Act.
In relation to s94(2)(b) of the Act, the Tribunal refers to the definition of ‘training activity’ in accordance with s94(5) of the Act, which provides:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre-vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work-related training (including on-the-job training).
There is limited evidence before the Tribunal to find that the Applicant’s impairments prevent them from undertaking training activities in accordance with the definition in s94(5) of the Act.
Accordingly, the Tribunal finds that the Applicant does not satisfy s94(2)(b).
The Tribunal finds that the Applicant does not satisfy s94(2)(a) and s94(2)(b) of the Act and therefore finds that the Applicant did not have a continuing inability to work during the Qualification Period and therefore did not satisfy the requirements of s94(1)(c).
As the Tribunal has found that the Applicant did not satisfy s94(1)(c) of the Act, the Applicant does not qualify for the DSP.
DECISION
The Tribunal finds that the Applicant:
(c)did have impairments that attracted 20 points under the Impairment Tables and therefore did satisfy the requirements of s94(1)(b) of the Act; and
(d)did not have a continuing inability to work and did not satisfy the requirements of s94(1)(c) of the Act;
during the Qualification Period and therefore did not qualify for a DSP.
The decision under review is affirmed.
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola
……………[SGD]………………
Associate
Dated: 12 February 2020
Date of hearing: 28 January 2020
Applicant: In person
Solicitor for Respondent: Ms Jasmine Forsyth, Mills Oakley
“ANNEXURE 1 – EXHIBIT REGISTER”
Exhibit
Number
Description
1
Section 37 T Documents, pages 1 to 202, received 21 December 2018.
2
Respondent’s Statement of Facts, Issues and Contentions, including attachments A to D, received 19 November 2019.
3
HPAU Medical Report, received 11 April 2019.
4
Email Correspondence between Respondent and Applicant, dated and received on 26 September 2019.
5
Email Correspondence between Respondent and Applicant, dated and received on 5 October 2019.
6
Email from Respondent, dated and received 25 November 2019.
7
Medical Report by Dr Matthews dated 17 December 2018, received 18 December 2018.
8
Audiology Report dated 7 August 2018, received 18 December 2018.
9
Email from Applicant to Tribunal dated 26 April 2019, received 26 April 2019.
10
Email from Applicant to Respondent, dated and received 26 September 2019.
11
Email from Applicant to Tribunal dated 12 October 2019 and correspondence between Applicant and Respondent dated 20 November 2019.
12
Email Correspondence from Applicant to Respondent dated 8 November 2019.
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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