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

[2022] AATA 2132

Brown and Secretary, Department of Social Services (Social services second review) [2022] AATA 2132 (4 July 2022)

Division: GENERAL DIVISION      

File Number(s):      2020/6520          

Re:Peter Brown  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:4 July 2022

Place:Melbourne

The Tribunal affirms the decision under review.

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Dr Damien Cremean, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – several conditions including chronic low back pain; depression; right foot pain; left total knee joint replacement and right knee pain; right shoulder condition; right sensorineural hearing loss; ichthyosis; right hip condition; and alcohol abuse – whether fully diagnosed, treated and stabilised – whether Applicant’s conditions attract an impairment rating of at least 20 points – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

4 July 2022

INTRODUCTION

1. This is an application by the Applicant, Mr Peter Brown, to review a decision of the Social Services & Child Support Division (‘Tier 1’) of this Tribunal made on 8 October 2020. That decision affirmed Services Australia’s decision to reject the Applicant’s claim for Disability Support Pension (‘DSP’), provision for which is made by the Social Security Act 1991 (Cth) (‘Act’).

2. Promulgated under the Act are the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘Tables’).

3. The Applicant has several claimed conditions, including chronic low back pain; depression; right foot pain; left total knee joint replacement and right knee pain; right shoulder condition; right sensorineural hearing loss; ichthyosis; right hip condition; and alcohol abuse.

4. The hearing was conducted on several resumed occasions to ensure that the Applicant was given the best opportunity of having his case presented and considered.

5. At the hearing, the Applicant gave affirmed evidence and was represented by Mr Derek Amos, a non-legal advocate of Barrier Breakers Inc.

6. The Respondent was represented by Ms Maleah Underhill, a solicitor of Services Australia on each occasion.

   LEGISLATION

7. Section 94(1) of the Act governs DSP and 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;

   (ii)   the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; …

   ISSUES AND CONTENTIONS

8. The Applicant, via Mr Amos, contends that the decision under review should be set aside.

9. In a carefully prepared document by Victoria Legal Aid, the Applicant argued that he satisfies s 94(1)(a) of the Act and he argues that he also satisfies s 94(1)(b). As regards the latter, it is pointed out that he was previously awarded 20 impairment points under the Tables, and paid DSP in 2007 for his chronic pain. But all the rules have changed significantly since that time.

10. Further, as regards s 94(1)(b), he claims severe impairment under the Tables in respect of several of his conditions, including most significantly, depression.

11. It is then contended by him that he satisfies s 94(1)(c) of the Act and has a continuing inability to work.

12. The Respondent raises the issue as to whether, as at the date of the claim (29 November 2019) or within 13 weeks thereafter, the Applicant satisfied s 94(1)(a).

13. If so, the Respondent raises the issue as to whether the Applicant’s conditions were fully diagnosed, treated and stabilised as required by the Tables, and whether he is entitled to be awarded 20 impairment points as required by s 94(1)(b).

14. Should this be so, the Respondent raises the issue as to whether the Applicant has a continuing inability to work within s 94(1)(c) of the Act.

    EVIDENCE

15. The evidence of the Applicant was brief and almost reluctantly given.

16. To some extent, it was supplemented by matters raised by Mr Amos.

17. It appears, though, that the origin of many of the Applicant’s medical problems is to be found in a motor vehicle collision in 2003, when his car, in which he was the passenger, ran off the road and he was injured.

18. The Applicant is 60 years old and is married but separated, with no children; and living in a rural location in Victoria.

19. It was my view, listening to his evidence very carefully, that he plainly does not have a good recollection of the various events which have taken place over the years since the collision. This includes — with few exceptions — all the various medical practitioners (and there are many) he has seen during that time, and the reason or reasons for which he saw each one.

20. It was very clear to me, though, that the Applicant was not given to exaggeration; and he stated his evidence truthfully, to the best of his ability and recollection.

21. It appears for various reasons that he does not do a lot with his day, and basically may just sit around enjoying his environs.

22. I would agree with the medical reports on file that he has a number of serious and discomforting or painful conditions, and that he suffers significant depression.

23. I would agree he is in poor health.

    CONSIDERATION

24. The Applicant was very fortunate in having Mr Amos present his case for him. I could not conceive of him doing so by himself.

25. Having said that though, I think Mr Amos displayed more hope of a favourable outcome than was justified.

26. The fact is, and the law is, that to qualify for DSP all the statutory requirements must be satisfied — and satisfied exactly as required and not left to vague inference or to broad comment.

27. Mr Amos, through no fault of his own was, I consider, simply unfamiliar with the way in which to run a difficult proceeding of this nature — and I am sorry to say, it showed. Hence one reason why there were several resumptions of hearing over the months.

    Section 94(1)(a)

28. Despite what the Respondent argues or raises as an issue, I am satisfied it would be right to concede that the Applicant does suffer the various conditions he claims. 

29. I do not include alcohol abuse. But I certainly do include depression — and indeed in the end, that became the focus of the hearing.

    Section 94(1)(b)

30. In order to qualify for DSP, it is critical that the Applicant satisfy s 94(1)(b).

31. Unless an applicant has engaged in a program of support for the requisite period, an applicant must achieve 20 impairment points under one of the tables in the Tables.

32. The Applicant has not undertaken a program of support.

33. That means, in respect of any condition specified in the Tables from which he claims to suffer, the Applicant must experience severe functional impact.

34. It is not easy to achieve that high threshold. It is not a matter of how ill or of how much pain or of how sad a person feels. The Tables relate to functional impact — what is a person prevented from doing by a condition? And that does not include what a person does not feel they want to do, or what they cannot be bothered doing.

35. Paragraph 6(3)(a) of the Impairment Tables specifies that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. To be permanent, a person’s condition must be fully diagnosed, fully treated and fully stabilised, as per paragraph 6(4).

36. This must be determined within a very short period — 13 weeks from (and including) 29 November 2019 (‘qualification period’).

37. None of the evidence given to me by the Applicant was at all a help in this regard. He simply could not recollect dates, as I have said.

38. Furthermore, Mr Amos did not assist by saying it is common knowledge that someone of the Applicant’s age and with the Applicant’s numerous health conditions would not get better with time — of course that is likely so — but would get worse (physically) with arthritis setting in.

39. Even if I accept that he is right in this, all it means is that the Applicant’s conditions are in fact worsening and not stabilising. This, in turn, defeats the requirement that a condition must be fully stabilised during the qualification period. Further, it adds another dimension: should the Applicant be claiming now for an additional condition, arthritis, as well? If so, there is no evidence it has ever actually been diagnosed. I simply cannot rely on the opinion of Mr Amos as he has no medical expertise.

40. I have examined carefully all the medical opinions on file (including those referred to by Tier 1) and I am unable to find any medical opinion which clearly supports a view that any of the Applicant’s claimed conditions were fully diagnosed, fully treated and fully stabilised during the qualification period.

41. I have also carefully examined the Reasons for Decision given by Tier 1.

42. As regards the Applicant’s depression, I have also noted carefully the case sought to be advanced by Victoria Legal Aid on his behalf, but it does not enable me to reach any state of satisfaction that during the qualification period his condition had been fully diagnosed, treated and stabilised. Indeed, a variety of facts subsequent to the expiration of that period — which is now well over two years ago — would indicate that his depression was far from being fully stabilised during the qualification period. The facts suggest that the Applicant’s depression was probably worsening.

43. The Applicant, in my view, does not even arrive at a point where his assessment for impairment points under the Tables arises for consideration.

44. I would add that looking at the Tables I could not see the Applicant — if at all within them and I make no finding that he is — as meeting a requirement for severe impairment in respect of any one of his conditions. Possibly he is in the range of mild to moderate, but I do not need to decide this.

45. Also, I would add, it is not a matter of an applicant claiming severe impairment under three or four of the Tables in the hope that the Tribunal will be bound to agree with at least one of them. The Tribunal does not function that way.

46. In all the circumstances, I am not satisfied the Applicant satisfies s 94(1)(b) of the Act.

    Section 94(1)(c)

47. Having found as I do with respect to s 94(1)(b) of the Act, no question can arise for me with respect to s 94(1)(c) of the Act.

    CONCLUSION

48. For the reasons I have given, the decision under review is affirmed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

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Associate

Dated: 4 July 2022

Dates of hearing:	13 October 2021, 26 November 2021 and 21 January 2022
Advocate for the Applicant:	Mr Derek Amos
Advocate for the Respondent:	Ms Maleah Underhill
Solicitor for the Respondent:	Services Australia