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

[2019] AATA 1770

Cheatham and Secretary, Department of Social Services (Social services second review) [2019] AATA 1770 (9 July 2019)

Division:GENERAL DIVISION

File Number(s):      2017/7542

Re:Gregory Cheatham

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:9 July 2019

Place:Sydney

The decision of the AAT1 is affirmed.

..........................[SGD]..............................................

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether impairments are fully diagnosed, treated and stabilised – whether applicant’s impairments attracts 20 points or more under the Impairment Tables – emphysema – lower limb condition – back condition –  program of support – decision affirmed 

LEGISLATION

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

9 July 2019

BACKGROUND

1. On 6 February 2017 the applicant made a claim for a disability support pension (DSP) which was rejected and after going through all the relevant avenues for review, he appealed to this tribunal.

2. The appeal was heard on 14 December 2018 and again on 16 January 2019 when the applicant's doctor was available to give evidence. Subsequent to that further evidence was produced by the respondent that showed that as at the relevant time, the applicant had satisfied the requirements of participation in a program of support

3. The applicant is 57 years old. He left school in year eight and after working in Liverpool for a couple of years went to Wee Waa at the age of 16 to work there as a labourer on the cotton farms. He continued in that line of farm work until about eight years ago when, because of a combination of the mechanisation of work practices in the cotton industry and general wear and tear on his body, he had to cease full time work on the cotton farms in the district. The work was physical and he was a very diligent, hard worker.

4. Over the last eight years he has only been able to do limited casual work. In the last three years due to his health that has become very difficult except for some work filing in as a carer for an old friend when that friend's nephews are away. He has family who live 30 minutes’ drive away, as well as family in Sydney.

5. The applicant lives by himself with his little dog Boss (aged five) in a one bedroom flat a couple of blocks from the main street in Wee Waa. He manages with some difficulty to look after himself and can walk to his local shops about two blocks away if he rests in the park along the way.

6. Both the tribunal and the solicitor for the respondent complimented the applicant on his frank, open and honest self-appraisal of what he could and could not do as at the claim period, and as at January 2019.

   THE LAW

7. To qualify for DSP the applicant, as at the claim period (namely 6 February 2017 to 8 May 2017) had to:

   (a)have a physical, intellectual or psychiatric impairment (this was not disputed);

   (b)the impairment/s had to attract at least 20 points under the Impairment Tables; and

   (c)the applicant had to have a continuing inability to work, as defined in s 94(2) of the Social Security Act 1991 (Cth) (the Act), for the purpose of s 94(1)(c) of the Act.

8. If the applicant did not receive 20 points under a single impairment table, they would be required to have ‘actively participated’ in a program of support (POS). A failure to do so would mean the applicant could not be found to have a continuing ability to work under s 94(2)(aa).

   THE FACTS AND FINDINGS ON THE EVIDENCE GIVEN

9. Apart from hearing from the applicant on oath, the tribunal also had the benefit of hearing from his doctor of 15 years Dr Sivanathan (who in recent years sees the applicant about once a month) and also from Mr Shepherdson from BEST Employment which is a disability support provider.

10. During the course of the hearing it became quite evident that the applicant's breathing difficulties had not been diagnosed until 15 June 2017: that is, after the claim period, and therefore could not be allocated points for the purposes of this appeal. The applicant's doctor gave detailed evidence that this condition would worsen with time, even if the applicant stopped smoking. If he didn't he would need an oxygen unit sooner rather than later. The doctor indicated he would give between 5 and 10 points for that condition had it been diagnosed at the time of the claim.

11. It was also apparent on the evidence of the doctor that he felt as at the claim period, provided the applicant's back stabilised (he was at that time contemplating a possible operation on it) and he (the applicant) stopped smoking, there was a possibility he could work again. The doctor went on to say that as it turned out the applicant did not stop smoking, his back had stabilised and would not get better (i.e. there was to be no operation) and concluded (line 25 page 84 transcript of 16 January 2019) "looking at it overall, I can't see him getting any better...physical capacity, with the lung and the back and the hip…final recommendation, me (sic) would be saying, no he's not fit for employment”.

12. It was clear from documents supplied by the respondent after 16 January 2019 that the applicant had completed, from 5 February 2014 until 5 February 2017, 883 days in a POS (376 in Jobactive and 507 in Stream Services) thus well and truly satisfying that requirement (18 months in the last 3 years or 546 days). The documents also showed that he had completed, between 16 January 2016 to 16 January 2019, 386 days in a POS (namely 386 days in Jobactive). The latter may well mean that the applicant may need to ensure he re-enrols in an appropriate program to get his days up the required 18 months (546) in the last three years.

13. It was also clear from the evidence, and accepted by all parties that as at the claim period, provided the back condition could be said to be fully stabilised and treated (there was no dispute that it was fully diagnosed), then an award of 10 points under Table 4 – Spinal Function of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) was warranted. The tribunal notes the evidence of the doctor which indicated that as at the claim period there was still an issue as to whether the back condition had stabilised completely but notes this related solely to the issue of whether an operation was warranted. It was subsequently decided that an operation on the back may well only worsen the situation and so there was no operation.

14. As a result of the above it was the tribunal’s view that the back condition had been fully stabilised as at the claim period and I accordingly awarded 10 points for that under Table 4 in accordance with the evidence.

15. All parties accepted that the evidence showed that in relation to the lower limb condition 5 points should be awarded under Table 3 – Lower Limb Function.

16. Accordingly as at the claim period I award 15 points. The tribunal did advise the applicant that it appeared most likely that he could only be awarded 15 points and pointed out to him that he needed 20 to be successful, either in total or under several tables (provided he satisfied the POS requirements which he did) or 20 points for any one table whereby he did not need to worry about the POS requirements. The tribunal pointed out to him that as a result of his breathing problems not being diagnosed until after the claim period he would most likely not reach the requisite 20 points to qualify for DSP, assuming he satisfied the POS requirements.

17. As a result of the respondent's solicitor supplying the applicant's doctor with the Impairment Tables and walking the doctor through Tables 1, 3 and 4, the applicant's doctor is now in a position to assess him in future against the Impairment Tables. The tribunal commends the respondent for being a model litigant as a result of the assistance given to this self-represented applicant.

18. The tribunal also noted evidence given at the hearing that indicates that the applicant had attended BEST Employment from 6 February 2014 to 3 May 2018 in what seemed to be a POS. The reason for this is that from the evidence given before the tribunal it seems common ground that if the applicant was to be assessed for a claim as at January 2019 he would have three ailments all fully diagnosed, treated and stabilised, clear evidence from his doctor that he could not work again (not only within the next twoyears, but ever again it seems) and (depending on the outcome of the status of his current POS situation) quite likely satisfy the POS requirements again. He would have 5 to 10 points for Table 1, 5 points for Table 3 and 10 points for Table 4 - giving him a minimum of 20 points and possibly 25. He would, on that basis qualify for a DSP.

19. Accordingly, he, or someone on his behalf does need to clarify his current POS status.

20. The tribunal appreciates the frustration of the applicant of having to constantly keep re- applying for a DSP and then being told to appeal the decision when he gets rejected. It also appreciates the frustration of medical practitioners who are unaware of the points system and the Impairment Tables and who see their patients who they know to have disabilities refused a DSP. However the legislation and the rules surrounding that legislation were made deliberately strict by the Federal Parliament when it enacted the current regime in 2011.

21. The applicant's doctor now has the tables and an understanding of what is required and at the end of the day, providing the applicant satisfies the criteria, it is just a case of his treating doctor applying the tables to his situation and dotting the "i's" and crossing the "t's". The legislation, whilst strict, does provide for a person to make as many applications for a DSP as he or she wishes.

22. However, in relation to the current appeal, for the reasons given above, the decision of the AAT1 is affirmed.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

................................[SGD]........................................

Associate

Dated: 9 July 2019

Date(s) of hearing:	14 December 2018, 16 January 2019
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services