Applicant 1439 of 2013 and Secretary, Department of Social Services
[2013] AATA 821
•19 November 2013
[2013] AATA 821
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1439
Re
Applicant 1439 of 2013
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Amanda Frazer, Member
Date 19 November 2013 Place Perth Decision Summary
The Tribunal affirms the decision under review.
....(Sgd) Dr Amanda Frazer.....................
Dr Amanda Frazer, Member
CATCHWORDS
Social Security - disability support pension – qualification requirements – applicant has impairments- impairments not considered sufficient rating – applicant not qualified for disability support pension – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Amanda Frazer, Member
19 November 2013
INTRODUCTION
The Applicant in this application has requested an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth). The Respondent agreed with this request. The Applicant is referred to as Applicant 1439 of 2013 (the applicant) throughout this decision.
The applicant suffered a crush injury to her left ankle in 1982 which resulted in a fixed deformity of the left hind foot and ankle. The applicant was granted invalid pension in 1997 and has been in receipt of DSP ongoing.
On 18 October 2012 a Centrelink employee decided the applicant was no longer qualified for DSP as her impairment did not attract a rating of 20 points under the Impairment Tables. The applicant requested a review of this decision and a Centrelink authorised review officer (ARO) affirmed this decision on 22 November 2012.
On 22 November 2012 the applicant applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision.
On 11 March 2013, the SSAT affirmed the decision to cancel the applicant’s DSP. On 28 March 2013, the applicant applied to this Tribunal for a review of the SSAT decision.
THE RELEVANT LEGISLATION
The conditions which must be satisfied for a person to be qualified for DSP are set out in s 94 of the Social Security Act 1991 (Cth) (Act). The section relevantly provides:
(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;
…
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 independently of a program of support within the next 2 years; and
(b) 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 impairment tables referred to in s 94(1)(b) are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (IT Determination).
Section 80(1) of the Social Security Administration Act 1999 (Cth) (Administration Act) provides that a social security payment is to be cancelled if the recipient is no longer qualified for the payment.
THE EVIDENCE
The evidence before the Tribunal consisted of:
·The T Documents lodged by the Respondent.
·Written medical evidence provided by the Applicant and Respondent
·The oral evidence of the Applicant.
THE APPLICANT’S EVIDENCE
The applicant, who is 49 years of age, told the Tribunal she lives with her 12 year old son. The applicant said she had a motorbike accident in 1982 and sustained a significant injury to her left foot and ankle.
The applicant said that despite intensive surgery and treatments since the accident she still has a significant deformity of the left foot and ankle. The applicant is unable to place her whole left foot on the ground to stand or walk as the left ankle is permanently fixed in a certain position. This affects her standing up, walking and also her balance. The applicant said she can only stand for about 5 minutes because of her left foot and poor balance and then needs to sit down.
The applicant said she has to lean on benchtops or desks with her arms to push herself up from the sitting position. She relies on her young son for physical assistance. The applicant said she goes shopping with her son who brings a shopping trolley to the car for her so that she may lean on it while she walks into the supermarket. If her son is not with her, the applicant leans on other cars until she can get to a shopping trolley. When in the supermarket, the applicant uses her shopping trolley for support and relies on her son to collect items for her. The applicant said has had several falls while in shopping centres. The applicant is helped with going shopping as her ACROD Disabled Parking sticker lets her park closer to the shops.
The applicant told the Tribunal she does not currently have any rails installed in her bathroom as she is only renting. She said she has had rails in previous houses and has found them to be very helpful. The applicant relies on rails to get in and out of her motor home.
The applicant gave evidence that she has had falls while on public transport. The applicant has a fear of holding the bus up while she departs the bus and has a fear of falling, and falling on other people.
THE MEDICAL EVIDENCE
Report by Dr Ozone, dated 21 August 2013, Occupational Physician.
·Dr Ozone reviewed the applicant on 3 occasions. Dr Ozone states the applicant suffers from a permanent left ankle and foot impairment which will persist indefinitely and deteriorate. To prevent falls the applicant employs assistance from her son, rails, furniture and other fixed objects. The applicant requires assistance from her son to maintain balance and walk on sand, uneven surfaces, inclines and to negotiate stairs
Report by Dr Caroline Ng, dated July 2013.
·Dr Ng notes that the Applicant has seen several specialists since 1982 and found that no further treatment will lead to a significant improvement in the applicant’s condition. Dr Ng states Applicant has fallen whilst using public transport and as a result finds the prospect of using public transport unsafe, which is why she rarely does so.
Report by Dr Gig Pisano, Orthopaedic Surgeon, dated 21 June 2013.
·The applicant has a “left foot and ankle fixed hindfoot equinus at 30 – 40 degrees fixation. She walks through the left leg and forefoot given the marked hindfoot equinus”. Dr Pisano states “I have suggested routine use of a suitable crutch or walking stick or similar aid.”
Job Capacity Assessment Report dated 17 October 2012. The Assessment recommends that the applicant’s lower limb condition attract 10 points under the impairment tables. The applicant’s baseline work capacity was assessed at 8-14 hours per week, increasing to 15-22 hours within 2 years given appropriate intervention.
Letter from Dr Catherine Moore, of Health Professional Advisory Unit of Human Services, to Dr Caroline Ng, 10 October 2012, asking several questions relating to the applicant’s condition. Dr Ng, replied stating that:
·The applicant does not require a walking aid to walk
·The applicant would be able to walk around a supermarket without assistance, but uses a shopping trolley for support and relies on the help of her son
·The applicant could walk from the car park to a supermarket without assistance
·The applicant ‘sometimes’ requires assistance to use public transport, as she has problems with steps and queues
ANALYSIS
Impairments
It is common ground that, at all material times, the applicant has a left foot and ankle deformity from a previous accident. This is an impairment within the meaning of para (a) of s 94(1) of the Act.
The first matter for the Tribunal’s determination is whether, the applicant, when her DSP was cancelled in October 2012, had a total impairment, by reason of her impairments, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.
The Tribunal notes that the applicant leant on the table when demonstrating her standing and walking to the Tribunal. The Tribunal notes the significant flexion deformity of the left ankle and that the applicant walks with a limp and slow gait.
The Tribunal accepts the applicant’s evidence that she relies on external supports, such as rails, the shopping trolley, parking using her ACROD sticker and reliance on her son to mobilise for any distance.
The Tribunal accepts the medical evidence of Dr Pisano, Consultant Orthopaedic Surgeon, who recommends the applicant routinely use a type of walking aid and Dr Ozone, Rehabilitation Physician, who states that to prevent falls the applicant requires assistance of her son and other external objects.
The Tribunal considers Table 3, Lower Limb Function, is the appropriate Table for functional assessment. The Tribunal notes the specific requirements of Table 3. The Tribunal considers that, on balance, the applicant’s impairment rating is 10 points under Table 3. The applicant is able to stand and walk independently although it is accepted that the applicant is relying on external supports when available.
Therefore, the Tribunal finds the applicant’s fixed flexion deformity of the left ankle attracts 10 points under the Impairment Tables. The applicant therefore does not satisfy s94(1)(b) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 27 ( twenty seven) paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member ....(Sgd) T Freeman........................
Associate
Dated 19 November 2013
Date(s) of hearing 30 August 2013 Applicant In person Representative for the Respondent Ms L Gallagher Solicitors for the Respondent Sparke Helmore
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