Alcock and Secretary, Department of Social Services (Social services second review)

[2015] AATA 775

Alcock and Secretary, Department of Social Services (Social services second review) [2015] AATA 775 (6 October 2015)

Division	GENERAL DIVISION
File Number	2015/2220
Re	Patricia Ann Alcock
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	6 October 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant had a severe impairment of 20 points or more under a single table at the relevant time – whether continuing inability to work – no program of support completed - decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).

REASONS FOR DECISION

Senior Member Bernard J McCabe

6 October 2015

1. Ms Patricia Alcock has been in poor health for some time. Between 2000 and 2014, she was in receipt of the disability support pension (DSP) but she managed to do part-time work. Early in 2014 she began to do longer shifts in a café. That resulted in her going off the DSP. Things went well for a while, but by September 2014 Ms Alcock had begun to reduce her workload because of her health and she re-applied for the DSP. The claim was rejected, and Ms Alcock has now asked this Tribunal to reconsider her situation.

2. Unfortunately, Ms Alcock was not eligible to claim the DSP when she lodged her claim on 20 October 2014 or in the 13-week period that followed. I explain my reasons below.

   The legislation

3. A person claiming the DSP must satisfy the so-called ‘medical criteria’ in s 94(1) of the Social Security Act1991 (Cth) (the Act) when the application is lodged, or within the 13 week period that follows. Those criteria impose more onerous requirements on claimants than those which previously applied.

4. The first of the criteria, in s 94(1)(a), requires that the applicant have a physical, intellectual or psychiatric impairment. Ms Alcock is clearly able to satisfy this requirement. She suffers from:

   ·severe obstructive lung disease, which causes breathlessness and fatigue,

   ·osteoporosis, which results in pain in deteriorating bones and joints, most obviously in her hip; and

   ·problems with her digestive system which have led to the malabsorption of nutrients.

5. Ms Alcock says her respiratory condition is the biggest problem.

6. The second criterion, in s 94(1)(b), requires that an applicant must have at least 20 points awarded under one or more of the impairment tables published in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The instructions included in the Determination explain that points may not be awarded under a table in respect of a condition that is not fully diagnosed, fully treated and fully stabilised. That is not a problem in this case: the Secretary conceded points could potentially be allocated. I will come back to the allocation of points below.

7. The third criterion, in s 94(1)(c), requires that the decision-maker be satisfied there is a continuing inability to work. There are several components to this requirement. Firstly, the decision-maker must be satisfied the applicant is unable to (or will be unable to) work for at least 15 hours per week. Most applicants must also demonstrate they have actively participated in a program of support for at least 18 months over the preceding three years – although there are circumstances where an applicant might be released from that obligation, or where the requirement does not apply because the person has a severe impairment. A severe impairment is an impairment that results in the allocation of 20 points or more under a single impairment table.

8. Ms Alcock has not participated in a program of support: she had no reason to do so prior to early 2014 because she was already receiving the DSP, and thereafter she was working. It is possible a program of support would prove to be of limited value, but there is no evidence about that before me. It follows her application will not succeed unless I can be satisfied she had a severe impairment at the relevant time (i.e. when she lodged her claim on 20 October 2014 or in the 13 week period that followed).

   Did Ms Alcock have a severe impairment within the meaning of the Act?

9. While it is accepted Ms Alcock might be allocated at least (or even more than) 20 points under several tables in the Determination, I need to focus on whether she can be awarded 20 points under a single table so that she can be said to experience a severe impairment. The only table where she comes close to 20 points is table one, which deals with the impairment of functions requiring physical exertion and stamina. That makes sense in light of Ms Alcock’s evidence that her respiratory condition is the biggest problem.

10. The Secretary concedes the evidence establishes Ms Alcock is able to meet at least some of the descriptors set out in table one that indicate a severe functional impact on activities requiring physical exertion or stamina. There is ample evidence provided by Ms Alcock and corroborated by her father (and, to a significant extent, by her doctors) which suggest she has difficulties with walking and performing light day-to-day household activities. But there is a further requirement. The relevant table also requires that the person:

    has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours.

11. This additional requirement is an insuperable obstacle for Ms Alcock. Her evidence clearly established that, at the relevant time, she was able to work a four or five hour shift at the café with a limited regulation break. It follows she cannot meet the descriptors associated with an allocation of 20 points. In those circumstances, I must conclude she should have been allocated a maximum of ten impairment points under table one at the relevant time. That means she does not have a severe impairment, and she is not therefore excused from the requirement that she actively engage in a program of support.

    Conclusion

12. Ms Alcock was not eligible for the DSP when she lodged her claim in October 2014. In the circumstances, I have no alternative but to affirm the decision under review.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated 6 October 2015

Date of hearing	24 September 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services