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

[2016] AATA 497

Ashard and Secretary, Department of Social Services (Social services second review) [2016] AATA 497 (15 July 2016)

Division	GENERAL DIVISION
File Numbers	2015/6011 and 2015/6012
Re	Wanda Ashard
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member Mr D J Morris, Member
Date	15 July 2016
Place	Perth

The Tribunal affirms the decisions under review.

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Ms A F Cunningham, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – cancellation – portability beyond 28 days – absence from Australia triggers medical review – whether impairments attract 20 points or more under Impairment Tables – reviewable decisions affirmed

LEGISLATION

Social Security Act 1991 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(3B) – s 1212A – s 1217 – s 1218C – s 1218C(1) – s 1218C(2) – s 1218AAA – s 1218AAA(1)

Social Security (Administration) Act 1999 – Schedule 2 Cl 4(1)

CASES

Scott v Secretary, Department of Social Security; Scott and Another v Handley and Another (1999) 57 ALD 627; [1999] FCA 1774

SECONDARY MATERIALS

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

REASONS FOR DECISION

Ms A F Cunningham, Senior Member
Mr D J Morris, Member

15 July 2016

BACKGROUND

1. Mrs Kay Ashard seeks a review of two decisions of the Social Services and Child Support Division of the Tribunal (AAT1). The first is a decision to cancel her Disability Support Pension (DSP). The second is a decision which refused the extension of the portability limit of the DSP of 28 days.

2. The two applications were heard together.  This is a decision with respect to both applications for review.

3. The hearing was held on 17 May 2015. Mrs Ashard represented herself and was assisted at the hearing by a friend, Mr Marchant. The respondent was represented by Ms Katherine Whittemore. Mrs Ashard gave evidence under affirmation and was cross-examined by counsel for the respondent.

4. The respondent tendered the T-documents under section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act).

   FACTS

5. Mrs Ashard is a 62 year old woman who was granted the DSP on 8 January 2004.

6. On 16 March 2015 Mrs Ashard left Australia to visit family in New Zealand. On 13 April 2015, her DSP was suspended as she had been absent from Australia for more than 28 days.

7. On 1 May 2015, Mrs Ashard provided the completed review form to Centrelink relating to a request that the portability period be extended and claiming nerve damage to her left wrist and arm.

8. On 29 May 2015, a Health Professional Advisory Unit Opinion was conducted in relation to Mrs Ashard.

9. On 24 June 2015, a Job Capacity Assessment (JCA) was conducted.

10. On 24 June 2015, the Department of Social Services decided not to extend the portability period for Ms Ashard’s DSP. Mrs Ashard requested a review of the portability decision by an Authorised Review Officer.

11. On 25 June 2015, the Department wrote to Mrs Ashard informing her that, as a result of the medical review, she had been found to have an impairment rating of 15 points under the Impairment Tables, and no longer qualified for the DSP.

12. Mrs Ashard sought a review of the Department’s decision to cancel the DSP by an Authorised Review Officer.

13. On 15 July 2015, the Authorised Review Officer affirmed the Department’s decision to cancel the DSP. The following day, 16 July 2015, the Authorised Review Officer affirmed the decision that Mrs Ashard’s portability period was limited to 28 days.

14. On 30 July 2015, Mrs Ashard applied to AAT1 for review of both the portability decision and the decision to cancel the DSP.

15. On 13 October 2015, AAT1 affirmed two decisions: the decision to cancel Mrs Ashard’s DSP was affirmed, and the decision that Mrs Ashard’s portability period could not be extended was affirmed.

16. AAT1 also found that the applicant could not be granted unlimited portability because that determination had not been made before she left Australia and there was no evidence that the applicant had been unable to return to Australia on account of a serious accident or hospitalisation as required in the Social Security Act 1991 (the Act).

17. On 17 November 2015, the applicant requested a review of the two decisions of AAT1 before this Tribunal.

    QUESTIONS

    Was the applicant qualified to receive the DSP on 25 June 2015, that being the date on which it was cancelled?

    Was the decision not to extend portability beyond 28 days correct?

    Qualification for DSP under the Act

18. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has:

    (i)a physical, psychological or mental impairment;

    (ii)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (iii)a continuing inability to work.

19. As Mrs Ashard was granted DSP on 8 January 2004 and as the medical review took place after 1 January 2012, the Impairment Tables implemented from 1 January 2012 and set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (2011 Determination) are applicable.

20. As Mrs Ashard was granted DSP before 1 June 2006, the “continuing inability to work” standard to be applied is 30+ hours per week.

21. In accordance with subclause 4(1) of Schedule to the Social Security (Administration) Act 1999, the Tribunal must determine Mrs Ashard’s eligibility for DSP on 25 June 2015, being the date that the DSP was cancelled.

    Does the applicant have a physical, intellectual or psychiatric impairment?

22. Mrs Ashard gave evidence to the Tribunal that she had a car accident in 2011 and lost some use of her left hand. The Tribunal has before it a medical report dated 11 May 2015 from Dr Adam Nuttall, which reports a diagnosis of Chronic Regional Pain Syndrome (CRPS) since 2011, with ongoing chronic pain in her left hand.

23. Dr Nuttall reported that the applicant has difficulty, in relation to her left hand, with handling, manipulating and using objects in daily life, including lifting small objects such as coins, doing up buttons, lifting a 1 litre carton of liquid or using a standard keyboard without difficulty.

24. Dr Nuttall also reported that Mrs Ashard was right-handed, that she could use a pen without difficulty and could, if using both hands, pick up light objects.  Dr Nuttall did not report any other medical conditions.

25. Mrs Ashard told the Tribunal that she agreed with Dr Nuttall’s report.

26. The Health Professional Advisory Unit (HPAU) of the Department did an Opinion on 29 May 2015 which accepted that the applicant suffered from CRPS affecting her arm, and noted that this had been exacerbated by a fall in late 2014.  Dr Nuttall stated that the applicant did not have a separate diagnosis of depression and also advised the HPAU that the applicant did not have a separate psychiatric condition that required treatment.

27. Ms Georgia Timms, clinical psychologist, saw the applicant on 13 August 2015 and wrote a report dated 4 October 2015 diagnosing PTSD. Ms Timms asserted that the condition ‘has existed since 2011’ (the date of the applicant’s car accident), but the Tribunal was given no other corroborating evidence to support this date of diagnosis. The diagnosis appears to have been based on the reporting of symptoms by the applicant.

28. The HPAU said that there was no current evidence that Mrs Ashard suffered from any psychological condition requiring treatment. Mrs Ashard gave evidence that she did not have any cognitive difficulties.

29. The Tribunal therefore finds no relevant mental health condition applicable to Mrs Ashard.

30. The Tribunal finds that Mrs Ashard does have a physical, intellectual or psychiatric impairment as required under section 94(1)(a) of the Act, namely CRPS.

    What is the correct rating under the Impairment Tables?

31. The HPAU was of the opinion that the CRPS condition was fully diagnosed, fully treated and fully stabilised and that it had a ‘moderate’ functional impact under Table 2 (Upper Limb Function) of the Impairment Tables, and a ‘mild’ functional impact under Table 7 (Brain Function). The HPAU was of the opinion that Mrs Ashard had a future work capacity of 15 – 22 hours per week, with intervention.

32. On 24 June 2015, a JCA was conducted on the documents. The JCA agreed with the HPAU about the CRPS condition being fully diagnosed, fully treated and fully stabilised. The assessor found that the condition had a ‘moderate’ functional impact under Table 2 (10 points) and a ‘mild’ functional impact under Table 7 (5 points) and that the applicant had the capacity to work between 15 and 22 hours per week within two years with intervention.

33. Mrs Ashard in her evidence to the Tribunal did not take issue with these conclusions except she believed that it was “arguable” that her condition merited a ‘moderate’ functional impact under Table 7 (Brain Function).

34. On 13 October 2015, Mrs Ashard submitted a report from Dr Peter Hales, orthopaedic surgeon, dated 8 October 2015. In his report, Dr Hales said that Mrs Ashard had suffered from CRPS since 2011 with pain, stiffness and difficulty in using her left arm with loss of dexterity and in his opinion would not be able to work as a personal assistant or secretary.

35. On 13 October 2015, Dr Adam Nuttall submitted a further report indicating that Mrs Ashard’s medication helped with pain and could cause dizziness and problems with concentration and that, while ongoing pain could cause depressive symptoms, depression was not a separate diagnosis.

36. Ms Georgia Timms, a clinical psychologist, provided a report dated 4 October 2015 in which she diagnosed the applicant with PTSD.  As mentioned above, Ms Timms recorded that the condition had been present since 2011, but there is no other corroborating medical evidence of this diagnosis.  Ms Timms said that Mrs Ashard only became overwhelmed with PTSD after DSP was cancelled.  Mrs Ashard herself said she was not receiving treatment for any mental health condition at the time of cancellation, although she has since commenced counselling.  Even if the Tribunal were to consider Ms Timms’ diagnosis as robust, the diagnosis of PTSD was not proffered before the date of the cancellation of DSP and it is not “fully treated” nor “fully stabilised”.

37. Mrs Ashard advised the Tribunal that she had no problem reading, concentrating or interacting with others. She lives on her own and manages day to day tasks. The applicant said that she had travelled by herself to New Zealand to stay with family and see her frail and aged mother.

38. The Tribunal finds, on this evidence, that the allocation of an impairment rating of 5 points under Table 7 is correct. The Tribunal also finds, on the oral evidence given and the medical evidence provided, that the allocation of an impairment rating of 10 points under Table 2 is also correct.

39. As the Tribunal has found that the applicant is correctly allocated a total of 15 points, the requirements of section 94(1)(b) of the Act are not satisfied. Mrs Ashard was not qualified for DSP on the relevant date, 25 June 2015.

40. As each part of section 94(1) of the Act must be satisfied for a person to be qualified for DSP, it is not necessary for the Tribunal to go on to consider whether the applicant has a continuing inability to work.

    Portability of the DSP beyond 28 days

41. The second decision that the Tribunal is asked to review is the decision of 13 October 2015 by the Respondent not to grant portability of the DSP beyond a period of 28 days.

42. The provisions relating to portability of DSP are set out in Chapter 4 of the Act, relating to International Agreements and portability.

43. Section 1217 of the Act provides that a person’s DSP is portable for temporary absence for a total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months. The Act goes on to provide for specific exceptions to this general rule: to seek eligible medical treatment; to attend to an acute family crisis or for a humanitarian purpose.

44. The Secretary of the Department of Social Services may extend a person’s portability period if satisfied that the person is unable to return to Australia because of a number of identified events, including, relevantly, the serious illness of the person or family member of the person, or the hospitalisation of the person or a family member of the person (section 1218C(1) of the Act). However, the Secretary must not extend the portability period unless the event occurred or began during the period of absence (section 1218C(2) of the Act).

    Evidence of Mrs Ashard about absence from Australia

45. Mrs Ashard gave evidence to the Tribunal that she travelled to New Zealand to visit her aged and frail mother who had suffered a stroke. A family member had contacted her and offered to pay for the cost of the airline ticket. Before she went to New Zealand her mother had been released from hospital and was being cared for at home.

46. Mrs Ashard said that she attended the Mandurah office of Centrelink on 10 March 2015 before leaving for New Zealand to inform Centrelink about her travel plans.  She thought that it was possible to be absent for a period of up to three months but said she had not been told that the portability rules had changed and that she could only be away for 28 days.

47. In her statutory declaration dated 5 January 2016 and provided to the Tribunal, Mrs Ashard said that she told counter staff at Centrelink of her travel plans and said “…I only have three months, don’t I, so I will be back within that time.”  Mrs Ashard said “there was not much response…”

48. The respondent did not accept this evidence, and contended that, in any event, any failure on the part of the Department to advise Mrs Ashard of the change in portability rules does not change the fact that Mrs Ashard does not meet the requirements for unlimited portability set out in section 1218AAA of the Act, or extended portability set out in section 1218C of the Act.

49. The Tribunal notes that Mrs Ashard did not say that she had been given positively wrong advice by Centrelink staff. She only says that she stated her travel intention and did not get “much response”.

50. As a matter of general principle, ignorance of the law is no excuse for a person’s failure to comply with it. In addition, there is no obligation on the Secretary or any government department to advise benefit recipients or potential claimants of changes in the law which may adversely affect them.  (See Scott v Secretary, Department of Social Security, Scott and Another v Handley and Another (1999) (FCA) 1774.)

51. Mrs Ashard explained that, when in New Zealand, she attended on her mother and also participated with other family members in plans for the medical care of another relative, a great aunt, who took ill while she was visiting New Zealand.  She provided no other specific details in relation to this other relative before the hearing.

52. The Tribunal does not dispute this evidence. However, the difficulty for the applicant is that, under section 1218C of the Act, consideration for extended portability can only take place if the event occurred or began during the period of absence.

53. Mrs Ashard’s own evidence was that her mother’s stroke (which was the reason for the visit), occurred before she departed Australia. Mrs Ashard told the Tribunal she had not seen her mother for six years. Owing to her mother’s frailty, she said she may not see her again. Understandably, she made this visit. However, it cannot be said that her mother’s illness fulfils the criteria of an “acute family crisis” as set out in section 1212A of the Act. Mrs Ashard’s mother was not hospitalised or “critically ill”; she had suffered an unfortunate medical event and had left hospital, being cared for at home by other family members.

54. The oral evidence relating to the great aunt was not dwelt on by the Tribunal but it was noted that being involved in the medical care plan for this other relative did not have the effect of preventing the applicant from returning to Australia, as is a stipulated requirement under section 1218C(1) of the Act.

55. During the hearing, Mrs Ashard accepted that it was open to the Secretary to initiate a review of qualification by a person for DSP at any time.  However, she concentrated her arguments on the basis that she felt she had not been given the right information by Centrelink about the length of time she was able to be absent from Australia.

56. Mrs Ashard made no other submissions about other provisions relating to the portability provisions in the Act. Section 1218AAA(1) of the Act provides that a person may be granted unlimited portability if the Secretary is satisfied that the person has a severe impairment under section 94(3B) of the Act. Mrs Ashard does not satisfy that provision. For the above reasons, the Tribunal finds that the decision not to grant portability was correct.

    DECISION

57. The Tribunal affirms the decisions under review.

I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member, Mr D J Morris, Member

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Administrative Assistant

Dated 15 July 2016

Date of hearing	17 May 2016
Representative for the Applicant	Mr T Marchant
Representative for the Respondent	Ms K Whittemore
Solicitors for the Respondent	Mills Oakley Lawyers