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

[2015] AATA 562

Capa and Secretary, Department of Social Services (Social services second review) [2015] AATA 562 (4 August 2015)

Division	GENERAL DIVISION
File Number(s)	2014/3970
Re	RAMAZAN CAPA
APPLICANT
And	SECRETARY, DEPARTMENT OF SOCIAL SERVICES
RESPONDENT

DECISION

Tribunal	Dr Gordon Hughes, Member
Date	4 August 2015
Place	Melbourne

The Tribunal affirms the decision under review.

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SOCIAL SECURITY

Disability support pension – requirement to demonstrate 20 points or more under the Impairment Tables − back injury assessed at 10 impairment points – condition not stabilised – no evidence of active participation in a program of support

Legislation

Social Security Act 1991 section 94

Social Security (Administration) Act 1999, Schedule 2

Social Security (Tables for the Assessment of Work Related Impairment for Disability Support) Determination 2011  

Secondary Materials

Social Security (Requirements and Guidelines – Active participation for Disability Support Pension) Determination 2011, Part 2, paragraph 5

REASONS FOR DECISION 

1. The applicant was seeking a review of a decision by the Social Security Appeals Tribunal (SSAT) on 26 June 2014 that affirmed a decision made by an authorised review officer (ARO) of the respondent to reject a claim for disability support pension (DSP). 

2. Specifically, the issue was whether the applicant was qualified to receive DSP in respect of the period 8 November 2013 to 7 February 2014.

3. The applicant was not represented at the hearing which was conducted by telephone.  He used the services of an Albanian interpreter.

   Legislation

4. Section 94 of the Social Security Act 1991 (the Act) 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…

   (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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support−the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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.

…

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 a program of support provided occasionally; or

(c)       is likely to need 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.

1. Part  2 subclause (4)(1) of Schedule 2 of the Social Security (Administration) Act 1999 provides:

   (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.

2. Part 2 of the Social Security (Requirements and Guidelines – Active participation for Disability Support Pension) Determination 2011, paragraph 5, provides:

   (1)       A person has actively participated in a program of support if:

   (a)       the person has:

   (i)        complied with the requirements of the program of support; and

   (ii)       participated in a program of support during the 36 months ending immediately before the relevant date of claim; and

   (b)       subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and

   (c)       subsection (6) is satisfied in relation to the person and the program of support.

   (2)       This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.

   (3)       This subsection is satisfied in relation to a person and a program of support if:

   (a)       the duration of the program of support was less than 18 months; and

   (b)       the person completed the program.

   Discussion

3. The applicant lodged a claim for DSP on 8 November 2013.  Pursuant to Schedule 2 subclause 4(1) of the Social Security (Administration) Act 1999, the applicant's qualification for disability support pension is to be determined from the date of claim and 13 weeks thereafter, being the period 8 November 2013 to 7 February 2014.

4. The applicant has received DSP since 30 April 2014.

5. Section 94 of the Act provides, in short, that a person is qualified for DSP if he or she has a physical, intellectual or psychiatric impairment equating to 20 points or more under the Impairment Tables and, relevantly with regard to this claim, has a continuing inability to work.

6. The respondent did not dispute that the applicant suffered from physical impairments relating to his back and hip, together with hypertension, which had an impact on his ability to function during the period in question.  The respondent disputed, however, that the applicant had a rating of at least 20 points under the Impairment Tables, meaning that he would not, at the relevant time, have had a severe impairment within the meaning of subsection 94(3)(B) of the Act.

7. It followed that, on the respondent's contention, the applicant would be required to satisfy section 94(2)(aa) of the Act in order to qualify for disability support pension. This meant that, subject to certain exceptions, he would have to demonstrate participation in a program of support for at least 18 months within the three years before the date of claim. The respondent disputed that the applicant had participated in a program of support and that, in these circumstances, the applicant could not demonstrate a continuing inability to work.

8. The applicant gave evidence via telephone regarding the extent of his current disability.  The Tribunal also took account of various medical reports on file. These include letters from two treating doctors, orthopaedic surgeon Mr David de la Harpe dated 24 February 2003, and Dr Kirily Adam of Cedar Court Private Rehabilitation Hospital dated 8 July and 2 September 2004, as well as a medico-legal report obtained by the applicant's solicitors from Mr M A Khan dated 10 April 2008.

9. It emerges from the medical reports that the applicant suffers back pain attributable to a lower lumbar disc prolapse with right sciatica pain, attributable to workplace injury on   18 January 2001.  He also suffers hypertension and has experienced a degree of depression.  It could not be concluded on the basis of these medical reports, however, that the condition had stabilised or that the impairment rating attributable to the back condition is 20 points or more according to Impairment Table 4.

10. The respondent conceded at the hearing that the applicant has suffered a long-standing back condition which had previously been assessed by the SSAT as amounting to only 10 impairment points.  The respondent was content to rely upon this conclusion.

11. In relation to the applicant's hip condition, the respondent asserted that as at the time of the claim, the applicant was awaiting a hip replacement and his treating doctor had estimated a 13-24 month recovery period. On this basis, the condition could not be regarded as fully stabilised on the date of the claim. The applicant conceded that his main complaint related to his back rather than his hip.

12. With respect to the applicant's hypertension, the respondent contended that on all the evidence, this was well controlled and did not contribute in a material way to any impairment.  The applicant did not contest this assertion.

13. The parties were not in agreement regarding the applicant's psychiatric condition. The respondent alluded to evidence that the applicant had visited a psychiatrist between 2001 and 2008, but had not visited a psychiatrist or psychologist since then.  On         27 September 2014, a multi-disciplinary team at Cedar Court found that the applicant experiences significant levels of anxiety and depression.

14. It was noted that the applicant was taking anti-depressants as at the date of his claim, but the relevant Impairment Table, table 5, requires more than this – it requires that the condition be diagnosed by a psychiatrist or psychologist, and there was no indication that this had occurred. The applicant's response was that his general practitioner had in effect been performing the role of a psychiatrist in this regard by prescribing medication, but this is insufficient to comply with the Impairment Table requirements.

15. It follows that for the applicant to succeed under section 94(1) of the Act, he would have to demonstrate an impairment rating of 20 points or more for his back condition. Unfortunately for the applicant, the medical evidence before the Tribunal does not support this level of impairment. The basis upon which the SSAT initially determined a rating of 10 impairment points was, in the Tribunal's opinion, soundly based on the evidence before it and it remains valid. There is no subsequent medical evidence before the Tribunal to alter this conclusion.

16. This being the case, it would be necessary for the applicant to demonstrate active participation in a program of support for the purposes of section 94(2)(aa) of the Act. The applicant does not satisfy this requirement. There is evidence that he was referred to Salvation Army Employment Plus on 7 November 2014 but has not attended any appointments to date.

    Decision

17. For the above reasons, the Tribunal affirms the decision under review.

22.     I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member Gordon Hughes.

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Associate

Dated 4 August 2015

Date(s) of hearing	15 July 2015
Applicant	In person
Advocate for the Respondent	Ailsa Bramley