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

[2016] AATA 1009

Anderson and Secretary, Department of Social Services (Social services second review) [2016] AATA 1009 (9 December 2016)

Division	GENERAL DIVISION
File Number	2016/1560
Re	Joseph Anderson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member P Nolan
Date	9 December 2016
Place	Brisbane

The decision under review is affirmed.

...........................[Sgd].............................................

Senior Member P Nolan

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension - DSP – whether fully diagnosed, fully treated and fully stabilised – whether impairment severe - whether 20 points accumulated – whether continuing inability to work - program of support – relevant period - decision affirmed under review

LEGISLATION

Social Security Act 1991 (Cth) (“the Act”);

Social Security (Administration) Act 1999 (Cth) (“the Administration Act”);

Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”);

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (“the Participation Determination”).

CASES

Bobera v Secretary, Department of Families (2012) AATA 922

REASONS FOR DECISION

Senior Member P Nolan

9 December 2016

BACKGROUND

1. On 24 June 2015 Mr Joseph Anderson (“the Applicant”) lodged a claim for a Disability Support Pension (“DSP”) with the Department of Social Services (“the Department”).[1] In that claim, under ‘Medical Details’ the Applicant listed “lifting, bending, sitting, grasping, standing, operation on C6/C7 disc bugling disc’s in lower back [sic]” as the “disabilities, illnesses or injuries” that he had.[2] That application for DSP was rejected by the Department.

   [1] Exhibit 1, T Documents, T14, Claim for Disability Support Pension dated 22.06.2015, page 137

   [2] Exhibit 1, T Documents, T14, Claim for Disability Support Pension dated 22.06.2015, page 150

2. The decision was subsequently affirmed by the Department’s authorised review officer (“ARO”) on 11 November 2015.

3. That decision was reviewed by the Administrative Appeals Tribunal’s Social Services and Child Support Division (the “SSCSD”) on 1 March 2016.[3] The SSCSD affirmed the decision on the basis that while it could be found that the Applicant’s conditions did attract 20 impairment points, he did not meet the program of support (“PoS”) requirements. This is a review of the Secretary’s decision.

   [3] Exhibit 1, T Documents, T21, Authorised Review Officer Decision, pages 208-214, and Exhibit 1, T2, Decision of the Social Services & Child Support Division, pages 3-9

   THE LEGISLATIVE FRAMEWORK

4. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP.

5. The requirements that I must consider are whether the Applicant has:

   (a)a physical, intellectual or psychiatric condition; and

   (b)condition(s) that are fully diagnosed and stabilised that attract an impairment rating of at least 20 points under the Social Security (Tables) for the Assessment of Work-Related Impairment for Disability Support Pension (Determination) Act 2011 (“the Determination”); and

   (c)a continuing inability to work (“CITW”).

6. Qualification for DSP is to be determined as at the date of claim, although a person who “becomes qualified” within 13 weeks of lodging the claim may still be eligible.[4] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 24 June 2015 and 23 September 2015 (“the Relevant Period”). The Applicant needs to have qualified for DSP within that Relevant Period.

   [4] See ss 41 and 42, and cl 3 and s 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

7. The Impairment Tables are contained in the Determination. This is a legislative instrument made pursuant to the Act.[5] The tables are function rather than diagnostic based and describe functional activity such as ability, symptoms and limitations. This legislation is designed to assign ratings to the functional impact of an impairment after the condition has been fully diagnosed, fully treated and fully stabilised. The impairment at first is to be assessed on the basis of what the Applicant can or could do and not on what the Applicant chooses to do or what others do for them.[6] 

   [5] Social Security Act 1991 (Cth) s 26(1)

   [6] Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 61-63

8. To determine whether the condition has been fully diagnosed by a qualified medical practitioner and whether it has been fully treated, there are a number of factors to be considered. I have to look to whether there is any corroborative evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or planned in the next two years.[7]

   [7] Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Cth) s 65

9. A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to render a significant functional improvement to a level to enable a person to undertake work in the next two years.

10. Alternatively, if the person has not undertaken reasonable treatment for the condition and:

    1significant functional improvement, to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or

    2there is a medical or another compelling reason for the person to not undertake such reasonable treatment;

    3then the conditions will be considered fully stabilised.[8]

    [8] Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(6)

11. Reasonable treatment, in essence, is treatment that is available at a location readily accessible to the person. 

12. An impairment rating can only be assigned in accordance with the points in each table. If an impairment is considered to fall between two ratings the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment is satisfied.[9]

    [9] Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Cth) s 11(1)

13. The requirement for the Applicant to have a CITW means all of the factors outlined in section 94(2) of the Act need to be satisfied. In this instance, the Applicant must:

    (i)have actively participated in a program of support (if he or she does not have a severe impairment as defined in Section 94(3B);

    (ii)be unable to work for at least 15 hours a week independently of a program of support; and

    (iii)be able to participate in a training activity or if the impairment does not prevent the Applicant from undertaking a training activity such activity is likely (because of the impairment) to enable him or her to do any work independently of a program of support within two years.

14. A person’s impairment is a “severe impairment” if their impairment is 20 points or more under a single Impairment Table.[10]

    [10] Social Security (Administration) Act 1999 (Cth) s 94(3B)

    ISSUE TO CONSIDER

15. Based on the medical evidence provided, there is no dispute the Applicant suffers from a number of medical conditions. The Applicant has neck, back and psychological conditions. As such the Applicant has physical and psychiatric impairments satisfying section 94(1) of the Act.

16. The issues before me are, whether at the Relevant Period the Applicant’s impairments can attract 20 impairment points or more under the relevant Impairment Tables, and if so whether the Applicant had a CITW.

    CONSIDERATION

17. The decision of the SSCSD concluded that the Applicant had a rating of 20 points under the Impairment Tables. Points were assigned in relation to functional impact on activities including:

    (i)Spinal function, a rating of 10 points under Table 4.

    (ii)Using hands or arms, a rating of 5 points under Table 2.

    (iii)Using lower limbs, a rating of 5 points under Table 3.

    (iv)Mental health function, a rating of 0 points under Table 5.[11]

    [11] Exhibit 1, T Documents, T2, pages 3-9, Decision of the Social Services & Child Support Division

18. The SSCSD found, however, the Applicant did not meet the CITW requirements set out in s 94(2) of the Act, having not been assigned a severe impairment nor actively participated in a Program of Support (“PoS”).

19. I must therefore consider the allocation of impairment points in relation to the Applicant’s conditions to firstly ascertain whether participation in a PoS is required.

20. At the hearing the Applicant appeared by telephone. His main complaint was he had no understanding of the fact he had to participate in a PoS as required by the Act.

21. The Applicant tendered a report from his treating doctor Dr Valena. The report is dated 7 June 2016. Although outside the Relevant Period, I allowed it to be tendered as it may have been relevant if it pointed back to the Applicant’s condition and functional impairments during the Relevant Period.[12]

    [12] Bobera v Secretary, Department of Families (2012) AATA 922

22. The Applicant was questioned by the Respondent in relation to this report, however, based on his responses and my review of the report it did not provide any assistance to the Applicant’s claim.

23. The report indicated the Applicant had a limited range of movement of his cervical spine without moving his trunk, as opposed to no range whatsoever and he has difficulty sitting for 10 minutes as opposed to not being able to sit for 10 minutes. Further, when asked about this, the Applicant was not able to provide any assistance with respect to these points. As such I am satisfied that the impairment rating of 10 points in relation to spinal function under Table 4 is correct. 

24. After further consideration of the available medical evidence provided in Exhibit 1, it is clear to me the Applicant has a number of conditions which cause great pain. This was supported by evidence provided by Mrs Taylor who retold an event in which she had seen the Applicant in pain and that he had to be transported to the Mackay Base hospital. She recalled the Applicant was unable to move properly without assistance from the ambulance officers. In response to questions asked by the Respondent it transpired many of Mrs Taylor’s observations were unable to be properly allocated to a date but she thought it was around the period of April 2016. As Mrs Taylor’s evidence relates to a timeframe outside the Relevant Period it is not of assistance to the Applicant’s present claim.

25. Based on all material before the Tribunal I am satisfied the impairment ratings assigned by the SSCSD are appropriate. Outside of the discussion above there was no new material applicable to the Relevant Period. As the medical evidence was discussed at length in the SSCSD decision I do not propose to go through the medical evidence in such detail here.[13]

    [13] Exhibit 1, T Documents, T2, Decision of the Social Services & Child Support Division, page 9

26. In order to be granted the DSP the Applicant must also meet the CITW requirements. As the Applicant was not assigned an impairment rating of 20 points under a single table he does not have a severe impairment and as such is required to have completed a PoS. During the hearing the Applicant indicated he had provided medical certificates, however, he clearly conceded he had not participated in this mandatory requirement.

27. The requirements of completing a PoS are met if a person has participated in, and complied with a PoS for at least 18 months during the three years before the claim was made.[14]

    [14] Social Security Act 1991 (Cth) s 94(2)(aa) and Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) s9

28. The evidence shows the Applicant commenced a PoS with the Program Community Solutions Disability Employment Service on 5 May 2015. However, as at 1 July 2015 he was suspended from participation on the basis of his health, as supported by a medical certificate. His participation in the program remains current.

29. During the Relevant Period, the Applicant needs to have actively participated in a PoS for at least 18 months in the 36 months prior to that period. According to the Applicant’s PoS referral printout the Applicant had not participated any longer than 51 days in the 36 month period prior to his claim, or at any stage within the Relevant Period.[15]

    [15] Exhibit 1, T Documents, T28, Program of support referrals printout, page 258

30. There is no evidence to suggest that the Applicant had been exited from the program on the basis that his work capacity cannot be improved with participation. Therefore, the Applicant cannot be found to have a CITW and does not satisfy the last requirement in s 94(1).

    CONCLUSION

31. As the Applicant has not met the Program of Support requirement, and has not achieved 20 points under a single table, the claim must be rejected.

32. The decision under review is affirmed.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Nolan

...........................[Sgd].............................................

Associate

Dated 9 December 2016

Date of hearing	26 September 2016
Applicant	By phone
Solicitors for the Respondent	Department of Human Services