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

Birch and Secretary, Department of Social Services (Social services second review) [2015] AATA 881 (17 November 2015)

Division

GENERAL DIVISION

File Number

2014/5790

Re

Cameron Birch

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member R W Dunne

Date 17 November 2015

Place Adelaide
The Tribunal affirms the decision under review.

........................................................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether impairment rating of 20 points or more existed under the Impairment Tables – whether there was a “continuing inability to work” – reports of medical practitioners considered – Job Capacity Assessment conducted – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 42, Schedule 2, clauses 3 and 4(1)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member R W Dunne
17 November 2015
INTRODUCTION

The applicant in this case is Mr Cameron Birch. On 5 November 2014, the Social Security Appeals Tribunal (“SSAT”) affirmed an earlier decision made by an Authorised Review Officer (“ARO”) of the respondent on 10 September 2014 to reject the claim for disability support (“DSP”) lodged by the applicant on 22 July 2014. The applicant has applied to this Tribunal for review of the decision of the SSAT.
At the hearing, Mr Birch was self-represented and the respondent was represented by Mr A Hay (from the Program Litigation and Review Branch, Department of Human Services). I admitted into evidence the T-documents[1], pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
[1] Exhibit R1.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal, in relevantly considering s 94 of the Social Security Act 1991 (“Act”), are:
(a)whether Mr Birch was qualified to received DSP on the date of his claim, being 22 July 2014, or within 13 weeks thereafter, that is by 21 October 2014 (“Relevant Period”); and if so
(b)whether Mr Birch had a continuing inability to work and, in particular, whether he had actively participated in a Program of Support.
In respect of the Relevant Period, the respondent accepted that Mr Birch suffered from impairments arising from the following conditions, and therefore satisfied s 94(1)(a) of the Act:
(a)a spinal condition; and
(b)a lower limb condition.
The respondent did not accept:
(a)that the impairments in paragraph 4 together attracted an Impairment Rating of at least 20 points under s 94(1)(b) of the Act; and
(b)that Mr Birch had a “continuing inability to work”, because of the impairments, within the meaning of s 94(1)(c) of the Act.
LEGISLATION
The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:
“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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i)    the person is under 35 years of age;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii)if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i)    the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2:    For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(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
(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.
Note: For work see subsection (5).
(3)   In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)    the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
(3A) If:
(a)a person is receiving disability support pension; and
(b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
then paragraph (2)(aa) of this section does not apply in relation to that assessment.
Severe impairment
(3B)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.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(3C)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.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
Other definitions
(5)In this section:
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either;
(i)is funded(wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
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).
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.
…”
Also relevant in these proceedings is s 42, and clauses 3 and 4(1) of Schedule 2 to, the Social Security (Administration) Act 1999 (“Administration Act”). Where a person makes a claim for DSP, clause 3 in Schedule 2 provides the general rule for a start date as the day on which the claim is made. Otherwise, a person’s qualification for DSP is to be considered during the ensuing 13 weeks from the date when the claim is made, in accordance with clause 4(1) in Schedule 2 to the Administration Act. Clause 4(1) reads:
“4 Start day—early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
…”
As already said in paragraph 3(a) above, the Relevant Period for assessing Mr Birch’s entitlement to DSP for the purpose of these proceedings is the 13 week period from 22 July 2014 to 21 October 2014.
SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“Determination”)
The Impairment Tables relating to the assessment of work-related impairment for DSP were previously set out in Schedule 1B to the Act. The Determination, under s 26(1) of the Act, commenced on 1 January 2012. In the Determination the Rules for applying the Tables relevantly read:
“6.        Applying the Tables
Assessing functional capacity
(1)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 choses to do or what others do for the person.
Applying the Tables
(2)The Tables 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.
Note:For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note:    For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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.
Note:For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(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.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
…
8   Information that must be not be taken into account in applying the Tables
(1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
9   Use of aids, equipment and assistive technology
A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
10 Selecting the applicable Table and assessing impairments
Selection steps
(1)   Table selection is to be made by applying the following steps:
(a) identify the loss of function; then
(b) refer to the Table related to the function affected; then
(c) identify the correct impairment rating.
(2)The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
11 Assigning an impairment rating
(1)   In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c) 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; and
(d) a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
Descriptors involving performing activities
(3)When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
Episodic and fluctuating conditions
(4)When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
No impairment resulting from a condition
(5)To avoid doubt, where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.”
BACKGROUND

The material facts in this case are not in dispute and are largely extracted from the respondent’s statement of facts and contentions.
When lodging his claim for DSP, the applicant also lodged a Medical Report form completed by his GP Dr Lovell and signed on 18 July 2014. This report indicated that the applicant suffered from chronic back pain and chronic knee pain. A Job Capacity Assessment was conducted on 31 July 2014 to assess the applicant’s qualification for DSP. The assessor, a registered psychologist, assessed the applicant’s conditions as “Spinal Disorder – Other” and “Lower Limb Deficiencies”. The assessor found that the applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised and it was rated 10 points under Table 4 of the Impairment Tables. The assessor also found that the applicant’s lower limb deficiency (knee condition) was fully diagnosed, fully treated and fully stabilised and it was rated 5 points under Table 3 of the Impairment Tables.
Mr Birch was born in 1978. Between 2009 and 2011, he was employed as a storeman and sales person for an Adelaide clutch services company. In May 2010, he suffered a back injury lifting heavy boxes of truck clutches. He continued on at work for about two months, but his back pain became progressively worse and he was certified unfit for work. His employment was terminated in January 2011 within the Workers Rehabilitation and Compensation Act 1986 (SA). He commenced receiving WorkCover benefits in respect of his injury. It appears he continued to receive 80% of his notional weekly earnings as income maintenance, but he had not received any lump sum settlement for non-economic loss. His WorkCover benefits were terminated on 13 May 2012 as a result of DVD surveillance evidence and certification that he was fit to return to unrestricted work.
In the Job Capacity Assessment report, the applicant reported to the assessor that he is unable to bend or lift, to find it difficult to put on shoes and is unable to sit or stand for long periods. He said that he can manage driving for 30 minutes, but not every day. He can reach things and manage tasks at bench or table height, but he cannot reach/bend down to knee height. In relation to his lower limb function, he said he can stand for up to 30 minutes, but that moving around helps to ease the pain to allow for this. He uses a walking stick and will lean on this as he stands at home to watch TV. He said that he will avoid stairs when he can as these are a struggle, and he does not visit his brother as there is a flight of stairs leading up to his home.
Before the SSAT, the evidence of the applicant was that he had great difficulty with stairs, to the extent that he avoids them. He said walking up stairs is difficult and uncomfortable, placing an extra load on his knees, but walking down stairs causes pain and instability in his knees, such that he is very afraid of falling down the stairs. He uses a handrail, but does not use a stick or walking aid. The SSAT member noted that the medical reports indicated pain and restriction with mobility in relation to the knee condition, but there was no medical verification of inability to use stairs. In the absence of corroborating evidence, the SSAT could not find that the applicant was unable to use stairs. The SSAT member also noted that the applicant usually walked without any walking aids, indicating that his mobility impairment is not to the extent envisaged in the descriptors for a moderate functional impact in Table 3 of the Impairment Tables. The member found that there is a mild, not moderate, functional impact on lower limb function and the impairment rating assigned is 5 points. The SSAT member noted that ARO had found that the applicant has a moderate functional impact on spinal function, with an impairment rating of 10 points under Table 4. The member agreed with that rate assigned.
It follows that the SSAT found that the total impairment rating for the applicant’s conditions in the Relevant Period was 15 points under Table 3 and Table 4 of the Impairment Tables.
The Applicant’s Evidence
It was the applicant’s evidence initially that he had met with Dr Henri Becker and he had forwarded a report dated 10 November 2014 from Dr Becker to the Tribunal. The report related to the applicant’s ability to manage going up and down stairs. It had been obtained because the SSAT had found that there was no medical verification of the applicant’s inability to use stairs, and symptoms relating to a person’s medical condition could only be taken into account when there was corroborating evidence. The applicant said that Dr Becker did not want to appear before the Tribunal to give evidence and there were also no other doctors available to do so. The applicant asserted that, even though the report was dated outside the Relevant Period, it was still applicable to his DSP claim. Although the report did not refer to an impairment rating, the applicant also asserted that an inability to do stairs was “moderate” under the Impairment Tables. He said again that he avoided using stairs because his leg would buckle under the load. He then argued that he had a total of 20 points under the Impairment Tables, comprising 10 points under Table 3 and 10 points under Table 4. In relation to compliance with the program of support requirement, the applicant said that he had engaged with several job search providers over 18 months prior to his DSP claim.
In cross-examination by Mr Hay, the applicant acknowledged that his lower limb condition was not “severe” under Table 3. He sometimes wore a hinged knee brace, but could cope without it. He could also cope without a walking stick most of the time. It depended on the day. He did not need the brace when he saw Dr Becker. He said he walked his german shepherd dog 27 kilometres, 5 times per week. He drove to outer Adelaide for the hearing and his mother then drove the rest of the way. During the day, he would stand and watch TV and then lie down. His farm at Brownlow produced lucerne hay and he had help to take it to the local store in his trailer. He could only sit for 30 minutes, and could only drive for 45 – 60 minutes maximum a day.
When Mr Hay referred him to the report of Dr Byok dated 17 November 2011, which mentioned his taking of marijuana and of drinking alcohol, he said the drinking of alcohol was not the case now. He said he had done that because he thought WorkCover “sucked”, and the drugs were for his back pain. When asked why he had not called any of his medical practitioners to give evidence to support his DSP claim, the applicant said:
(a)“Dr Becker was understaffed and he was still getting up to speed with the applicant’s medical conditions after taking over from Dr Lovell”; and
(b)“Dr Lovell said her knowledge was not up-to-date and the applicant needed to see a specialist.”
When the applicant was also referred by Mr Hay to the medical report of Dr Thoo dated 18 March 2013, he did not agree with it – he said it was “crap”. The report had indicated that the applicant was fit to return to unrestricted work. However, Dr Thorpe thought it would be inappropriate to do this, given his injury.
CONSIDERATION
Was the applicant qualified to receive DSP on the date of his claim, being 22 July 2014, or within 13 weeks thereafter, that is, by 21 October 2014?
In order to qualify for DSP, Mr Birch must satisfy the relevant requirements of s 94(1) of the Act. In other words, he must be qualified for DSP on the date of his claim or within the period of 13 weeks following. Thus, the primary question is whether he satisfied the relevant criteria in s 94 at any time during the Relevant Period, rather than whether he currently or subsequently satisfied those criteria.
One of the relevant entitlement criteria for DSP is whether a person (who is the claimant) suffers an impairment (or impairments in combination) which attract(s) an impairment rating of 20 points or more under the Impairment Tables (see s 94(1)(b) of the Act). In this regard, the rules for applying the Impairment Tables in Part 2 of the Determination are relevant. Section 6(3) to 6(6) of Part 2 relevantly require that:
(a)the person’s condition causing the impairment is permanent;
(b)the condition has been fully diagnosed by an appropriately qualified medical practitioner, it has been fully treated and is fully stabilised, and the condition is more likely than not to persist for more than two years; and
(c)a condition is fully stabilised if 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 two years.
When Mr Birch lodged his DSP claim, he also lodged a medical report completed by Dr Lovell which set out that he suffered from chronic back pain and chronic knee pain. In a Job Capacity Assessment conducted on 31 July 2014 the assessor assessed the applicant’s conditions as “spinal disorder” and “lower limb deficiencies”. Under the Impairment Tables, the assessor rated the applicant’s spinal function as having 10 points under Table 4 and rated the lower limb function as having 5 points under Table 3. The ARO had previously found that these ratings applied to the applicant’s medical conditions. The assessor and the ARO considered that both conditions were fully diagnosed, treated and stabilised during the Relevant Period and that these ratings under Table 3 and Table 4 were correct. On the evidence, the SSAT agreed that these ratings were appropriate.
In giving his evidence, Mr Birch accepted that a rating of 10 points under Table 4 was appropriate for his spinal function. However, he argued that his lower limb condition also rated 10 points under Table 3. In this regard, I note that the descriptors for 5 points (mild functional impact) and 10 points (moderate functional impact) under Table 3 are as follows:

Points Descriptors

5
There is mild functional impact on activities using the lower limbs.

(1)     At least one of the following applies:

(a)     the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)    the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)    the person has some difficulty climbing stairs; and

(2)     At least one of the following applies:

(a)    the person is unable to stand for more than 10 minutes;

(b)    the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

.

10
There is moderate functional impact on activities using the lower limbs.

(1)   At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)    the person is unable to use stairs or steps without assistance; or

(c)    the person is unable to stand for more than 5 minutes; and

(2)     The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)     This impairment rating level includes a person who can:

(a)    move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)    move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:   The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

On the material before me, it appears that after his employment was terminated in January 2011 the applicant was receiving WorkCover benefits. However, as can be seen from the report of Dr Thoo, which the applicant said he did not agree with, the benefits were terminated on 13 May 2012 as a result of DVD surveillance evidence. (It seems Dr Thoo’s report was an independent medical examination obtained by Duncan Basheer Hannon, Lawyers. The purpose of or need for the examination is unclear.) Later, in the report on page 3 in referring to the applicant’s employment status, Dr Thoo said:
“He also reports that he was encouraged by his various treating practitioners to remain active and to lead as normal as (sic) life as possible which is what he was doing when he was under surveillance and feels extremely aggrieved that his WorkCover benefits have been stopped and he has been certified fit to return to unrestricted work by his treating general practitioner as he was following their advice.”
In his assessment of the applicant, Dr Thoo then says (on page 4 of his report):
“I have viewed the DVD surveillance which you have provided which was taken on 14 September, 22 September, 24 September, 26 September and 28 September 2011. The subject of the surveillance was noted to be moving freely, going shopping, was doing gardening and appeared to be weeding the garden, sweeping, bending, pulling a rubbish bin and scrapping bark of a tree trunk with a rake.
On 14 September the subject was noted to be able to squat behind a car with a trailer, reversing the trailer and appears to fill the trailer up to its brim by himself, driving to a dump, unloading the contents of the trailer into the dump, climbing in, bending without any apparent distress. He then drives home and reloads the trailer with recyclable rubbish taking it to the recycling depot, again all these activities performed without any seemingly difficulty or distress.
Whilst Mr Birch does have objective evidence of a disc lesion which has improved, his reported level of pain and disability is not consistent with the activities observed in the DVD surveillance and from the surveillance it would appear that he has little, if any, significant impairment or capacity.”
On the documentary evidence available and in listening to what the applicant said in giving his oral evidence, it is clear that he was indeed extremely aggrieved with the situation that he found himself in, certainly in 2012/2013 and even now. It seems apparent that once his WorkCover benefits were stopped, as a result of the DVD surveillance evidence, he became unwilling to engage in activities that required his attendance or involvement. In hearing the way he spoke, he seemed to become angry and resentful of the system and those who administered it. He became frustrated because he had been trying to get work, but his employment now was unrestricted and he found it difficult to compete with other workers and he had not been successful in his dealings with employment service providers.
In analysing the descriptors in Table 3 of the Impairment Tables, Mr Hay submitted that the applicant did not satisfy the 10 point rating. He is able to walk distances outside his home, he is able to use stairs and he is able to stand for more than 5 minutes at a time. However, there is no evidence that the applicant is unable to use stairs without assistance. In this regard, Mr Hay referred to the Social Security Guide at 3.6.3.30 which indicates that “assistance” in the Act means “assistance from another person”, rather than assistance from an object, such as a walking stick or a hand rail. Mr Hay contended that, on the medical evidence, the applicant does not have a moderate functional impact on activities using lower limbs as he does not satisfy any of the descriptors at paragraph (1) for a 10 point rating and, in particular, he does not satisfy the descriptor in paragraph (1)(b) in that he is unable to use stairs or steps without assistance from another person. Even though it was unclear whether the applicant satisfied the descriptors in paragraph (2) and paragraph (3) of the 10 point table, he did not satisfy the descriptor in paragraph (1)(b) and, on this basis, his total impairment rating during the Relevant Period was no more than 15 points under Table 3 and Table 4. I agree with these contentions.
However, it was Mr Hay’s further contention that the applicant does not have a mild functional impact on activities using lower limbs. He argued that none of the 5 point descriptors in Table 3 applied. With respect, I am unable to agree with this further contention. If I am wrong in this view, it does not affect the applicant’s 15 point total impairment rating during the Relevant Period that I have agreed under Table 3.
Mr Birch argued that, even though Dr Becker’s letter date 10 November 2014 was outside the Relevant Period, it was still applicable to his DSP claim. I do not accept this argument. He said he was unable to provide it earlier because specialist doctors were not available in applying medical conditions to the Impairment Tables. In my view, the contents of Dr Becker’s letter provide no assistance in analysing the descriptors in the Impairment Tables. Dr Becker’s comment that the applicant has severe difficulties managing stairs up or down is, in itself, not sufficient to enable a descriptor in Table 3 to apply.
In a recent decision of the Federal Court in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, Besanko J referred to s 94 of the Act and to cases that involved claims for DSP. He said:
“26. In Harris v Secretary, Department of Employment and Workplace Relations[2007] FCA 404; (2007) 158 FCR 252, Gyles J said at 253 [1]:
‘This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions or the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.’
(On appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.)
27.In Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 64 AAT 466, Deputy President Handley said at 473 [31]:
‘In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.’
28. I respectfully agree with the approach taken in those cases. The approach to be taken in this case was dictated by the terms of the legislation (Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 300 [44] per Kirby J; at 315 [99] per Hayne and Heydon JJ.”
As can be seen from what Besanko J confirms in Gallacher, a claimant’s entitlement to the DSP must be considered during the claim period, being the date of claim and within the period of 13 weeks that follows. Any medical reports that come into being after the claim period are only relevant to the extent to which they are referrable to the claimant’s specific medical conditions as they existed during the claim period.
CONCLUSION
I am satisfied that the conditions from which Mr Birch suffers which give rise to impairment ratings under the Impairment Tables during the Relevant Period are the spinal condition and the lower limb condition. I confirm that the applicable rating for the spinal condition is 10 points and the applicable rating for the lower limb condition is 5 points, resulting in a total of 15 points during the Relevant Period. It follows that Mr Birch did not have an impairment or a combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the Relevant Period, and was therefore did not entitled to receive the DSP.
Did Mr Birch have a continuing inability to work, and in particular whether he had actively participated in a Program of Support?

As I am not satisfied that Mr Birch had an impairment or a combination of impairments attracting a rating of at least 20 points under the Impairment Tables, it is not necessary for me to consider whether or not he had a “continuing inability to work” within the meaning of s 94(1)(c) of the Act. In these circumstances, it is unnecessary for me to consider whether he had actively participated in a Program of Support. Although Mr Hay questioned the applicant extensively about his work capacity and Program of Support requirement, the evidence not necessary for me to reach a decision in the present case.
DECISION
For the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
.......................[Sgd].................................................
Administrative Assistant
Dated 17 November 2015

Date(s) of hearing 18 August 2015

Applicant In person

Advocate for the Respondent Mr A Hay

Solicitors for the Respondent Department of Human Services

[2015] AATA 881

17 November 2015

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Division	GENERAL DIVISION
File Number	2014/5790
Re	Cameron Birch
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member R W Dunne
Date	17 November 2015
Place	Adelaide

Date(s) of hearing	18 August 2015
Applicant	In person
Advocate for the Respondent	Mr A Hay
Solicitors for the Respondent	Department of Human Services