Cindy Haakman and Secretary, Department of Social Services
[2014] AATA 624
[2014] AATA 624
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1236
Re
Cindy Haakman
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 2 September 2014 Place Brisbane The Tribunal affirms the decision under review.
.............................[Sgd]...........................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether continuing inability to work – Applicant did not participate in Program of Support – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 94
Social Security (Administration) Act 1999 (Cth) ss 13, 14, 42, Sch 2 cls 3
CASES
Tey and Secretary, Department of Social Services [2013] AATA 753
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
2 September 2014
INTRODUCTION
I have to determine whether Ms Haakman (“the applicant”) is entitled to disability support pension (“DSP”).
PRIOR DECISIONS
On 9 April 2013 the applicant lodged a claim for DSP. On 6 May 2013 this claim was rejected. On 13 September 2013 an authorised review officer affirmed that decision. On 11 February 2014 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision to reject the claim. On 11 March 2014 the applicant made an application to this Tribunal for review of the decision to reject the claim for DSP. I should note that on
11 June 2013 the applicant made a further claim for DSP; however, that claim was not reviewed by the SSAT and cannot be reviewed on this application.
RELEVANT LEGISLATION
The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
Section 94 of the Act provides that in order to be qualified to receive DSP the applicant must have:
·a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act);
·an impairment rating of at least 20 points (s 94(1)(b) of the Act); and
·a continuing inability to work (s 94(1)(c) of the Act).
The Administration Act provides that the start day for a claimant who qualifies to receive DSP is the date on which they contact the Department regarding the payment, the deemed date of claim (ss 13, 41, 42, Sch 2 cl 3 of the Administration Act). The applicant will be entitled to receive DSP if she was qualified to receive that benefit as at the deemed date of the claim. If she was not qualified to receive DSP on that date she will nevertheless be entitled to receive DSP if she becomes qualified within thirteen weeks of lodging a claim. In that event, the start-day is the day that she becomes qualified to receive the social security benefit (Sch 2 cl 4(1) of the Administration Act).
There are a number of Ministerial Determinations which have to be considered.[1] The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Disability Support Pension Determination”) came into force on 1 January 2012. The Disability Support Pension Determination contains the Impairment Tables which are function based and are intended to determine the level of functional impact of impairments (s 5 of the Disability Support Pension Determination). The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the Active Participation Determination”) came into force on 3 September 2011. Section 5 of the Active Participation Determination sets out the requirements for active participation. Both of these Determinations are in evidence.
[1] See s 26 of the Act.
ASSESSMENT PERIOD
On 9 April 2013 the applicant lodged her claim for DSP. I am required to determine whether the applicant became qualified at any time within the thirteen week period from lodgement date which concluded on 9 July 2013 (“the relevant period”).
ISSUES FOR DETERMINATION
I have to determine:
·whether the applicant, as at the date of the claim (or within 13 weeks of that date), had a physical, intellectual or psychiatric impairment; and
·whether the applicant had an impairment rating of at least 20 points or more under the Impairment Tables; and
·whether the applicant had a continuing inability to work
WHETHER THE APPLICANT HAS AN IMPAIRMENT
I find that within the relevant period the applicant had a physical, intellectual or psychiatric impairment as required by s 94(a)(1) of the Act. To make this finding I rely upon the medical report dated 3 July 2013 in which Dr Jayawardena reported that the applicant had ischaemic heart disease, diabetes and fibromyalgia. The Secretary has quite properly conceded that the applicant suffers from these impairments.
ASSESSMENT OF IMPAIRMENTS
I am required to consider whether within the relevant period the impairments of the applicant can be assigned an impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act.
Heart condition
There is no issue that the applicant has an ischaemic heart disease condition.
Dr Jayawardena, in her medical report dated 3 July 2013, has reported that the onset of this condition was from 27 March 2013. Dr Jayawardena has noted that the applicant was still awaiting review by a cardiologist for appropriate treatment. Having regard to this evidence I cannot be satisfied that the condition has been the condition has been fully diagnosed by medical practitioner, fully treated and fully stabilised as required by s 6(4) of the Disability Support Pension Determination. In these circumstances I am prevented by s 6(3)(a) of the Disability Support Pension Determination from assigning an impairment rating to the heart condition of the applicant.
Diabetes condition
There is no issue that the applicant has a diabetes condition which Dr Harlow has reported was diagnosed in 2009. However, there is a difference of medical opinion as to whether the applicant has been compliant with her treatment. Dr Hayman in his report dated 11 June 2013 has reported that the applicant has been usually compliant. However, Dr Jayawardena in the medical report dated 3 July 2013 has stated that the applicant is “on insulin” but is a “poor complier ”. Dr Jayawardena had then been treating the applicant for more than one year. The applicant in giving evidence has confirmed that she has not regularly taken her insulin medication and had regular blood tests. Having regard to this evidence I cannot be satisfied that the condition has been fully treated.
I am prevented by s 6(3)(a) of the Disability Support Pension Determination from assigning an impairment rating to the diabetes condition of the applicant. Section 6(3) of this Determination provides that an impairment rating can only be assigned if the condition causing that impairment is permanent. Section 6(4) of the Disability Support Pension Determination provides that a condition is permanent if the condition has been fully diagnosed by medical practitioner, fully treated and fully stabilised. Having regard to these requirement that a condition be “fully treated”, I cannot assign an impairment rating to the diabetes condition.
I also comment that there is no medical evidence of the functional impact of the condition. Dr Jayawardena in the medical report dated 3 July 2013 has reported that the diabetes condition is generally well managed and has a minimal or limited impact on the ability of the applicant to function.
Depression
The depression condition of the applicant was mentioned by Dr Jennings in his report dated 13 December 2013 in which it was stated that the applicant had not seen a psychologist. The Introduction to Table 5 of the Disability Support Pension Determination, which relates to Mental Health Function, provides:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
The diagnosis of the condition has not been made by a psychiatrist or clinical psychologist. In these circumstances, it is not possible to assign a rating.
Fibromyalgia
Dr Hayman in his report dated 11 June 2013 has indicated that the applicant has a fibromyalgia condition which has a minimal or limited impact on the ability of the applicant to function. Dr Jennings in his report dated 16 July 2013 by referring to “fibromyalgia” appears to have given a provisional diagnosis to the condition, although in his report dated 13 December 2013 has mentioned that the condition was diagnosed by another general practitioner in 2010.
I do not consider that the condition can be assigned a rating. This is because the condition was not fully diagnosed, treated and stabilised during the relevant period. It was not until well after the relevant period, in January 2014, that the applicant was able to see a specialist rheumatologist who has arranged further testing.
Asthma
Dr Hayman in his medical report of 11 June 2013 lists the condition of asthma as one that is generally well managed and that causes minimal or limited impact on the applicant’s ability to function. Dr Jayawardena in the medical report dated 3 July 2013 does not mention the condition. The applicant informed the authorised review officer that the asthma condition is “under control”.
In the circumstances I assign a rating of 0 points for the asthma condition where there is no medical evidence of functional impact.
I have concluded that the applicant does not satisfy s 94(1)(b) of the Act as she has been assigned zero points for the impairments.
CONTINUING INABILITY TO WORK
I will also consider whether the applicant can be regarded as having a continuing inability to work as required by s 94(1)(c)(i) of the Act. In all strictness it is not necessary for me to consider this matter as the applicant does not satisfy s 94(1)(b) of the Act. However, I will outline my observations on this matter for the benefit of the applicant.
In considering whether the applicant can be regarded as having a continuing inability to work, I mention that this is not a case where the applicant has been found to have a severe impairment which attracts 20 points or more under a single Impairment Table (s 94(3B) of the Act).
The Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied they have actively participated in a program of support as well as satisfying the other requirements of s 94(2) of the Act. The Act also provides that a person has activity 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 s 94(3C).
Section 5 of the Active Participation Determination provides that a person has actively participated in a program of support if the person has complied with the requirements of the program of support and participated in a program of support during the 36 months ending immediately before the relevant date of claim (s 5(1)). It is also necessary that the person must have participated in the program of support for at least 18 months within the three years prior to the date of claim (s 5(2)). There are exceptions to this requirement which are not material to this application (ss 5(3)-(5)). A person must advise the Secretary of the program of support they have undertaken (s 5(6) of the Active Participation Determination). While the applicant has undertaken some undergraduate studies she has not participated in a program of support.
Part III of the Active Participation Determination sets out the guidelines that the Secretary must comply with in deciding whether he or she is satisfied that, in a case where a person’s impairment is not a severe impairment, the person has actively participated in a program of support within the meaning of s 94(3C) of the Act. There is no basis in this case for dispensing with the requirement of the applicant to undertake a program of support. There is a Presidential decision of this Tribunal in which it has been pointed out that the Parliament has determined that, with some limited exceptions, those who seek disability support pension must undertake such a program.[2]
[2] Tey and Secretary, Department of Social Services [2013] AATA 753, [12] (Hack DP).
The applicant does not have a continuing inability to work as she does not satisfy s 94(2)(aa) of the Act as she has not actively participated in a program of support within the meaning of s 94(3C) of the Act. Her claim for DSP must fail on that ground alone.
I accordingly find that the applicant does not satisfy s 94(1)(c) of the Act.
CONCLUSION
The applicant is not eligible to receive DSP.
DECISION
I affirm the decision under review.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member ..............................[Sgd]..........................................
Associate
Dated 2 September 2014
Date of hearing 19 August 2014 Applicant In person Solicitors for the Respondent Mr Rick McQuinlan, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Support Pension
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Continuing Inability to Work
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Impairment Rating
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1
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