Colin Scrivener and Secretary, Department of Social Services
[2014] AATA 537
•6 August 2014
[2014] AATA 537
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1164
Re
Colin Scrivener
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 6 August 2014 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Applicant in receipt of disability support pension – Request for unlimited portability of disability support pension – Applicant not severely impaired – Applicant not prevented from working - Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 27, 94(1), 94(3B), 1218AAA
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Guide to Social Security Law
REASONS FOR DECISION
Mr R G Kenny, Senior Member
6 August 2014
THE APPLICATION FOR REVIEW
This matter is concerned with the disability support pension (“DSP”) which is payable under the Social Security Act 1991 (Cth) (“the Act”). Colin Scrivener (“the applicant”) has been in receipt of the DSP since 2005. On 22 March 2013, he advised Centrelink that he was considering travel overseas and was told that the maximum period for which his DSP would continue was six weeks unless he was granted DSP payment for an unlimited period.
On 26 March 2013, the applicant returned a questionnaire to Centrelink in which he provided details of his medical conditions and his work capacity. On 2 April 2013, the applicant’s treating doctor, Dr Kayley Baxter, completed a medical report relating to the applicant’s DSP. On 12 April 2013, a Job Capacity Assessment (“JCA”) was completed by D, an accredited exercise physiologist, who assessed the applicant as having an impairment of 10 points each for a spinal disorder and asthma and also that he had a baseline capacity to work for 8-14 hours per week. On 10 July 2013, a registered nurse with the Health Professional Advisory Unit[1] in the Department of Human Services completed a report which concluded that the applicant’s impairment was not sufficient for him to qualify for the DSP. On 12 July 2013, Centrelink advised the applicant that, on 11 July 2013, it had been decided that he did not qualify for the DSP and that it would be cancelled with effect from 22 July 2013. On 11 July 2013, Centrelink also decided that the applicant did not satisfy the requirements for unlimited portability of his DSP. On request by the applicant for a review of that decision, his DSP was continued pending the review. D completed a further JCA report on 26 July 2013 in which the same impairment ratings and work capacity were identified as in his previous JCA report. Then, on
1 August 2013, Centrelink decided that the applicant remained qualified for the DSP.
[1] For the role of the Health Professional Advisory Unit, see the Guide to Social Security Law at 1.1.H.60.
On 20 November 2013, an authorised review officer affirmed the decision of
11 July 2013 about indefinite portability. On 5 February 2014, the Social Security Appeals Tribunal affirmed that decision.
LEGISLATION AND ISSUES
The qualifications for the DSP are set out in s 94 of the Act. It is not in dispute that the applicant meets those requirements, one of which is that there be an impairment rating of 20 points or more which is calculated under the Impairment Tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011[2] (“the Determination”) as required by s 94(1)(b) of the Act. The applicant suffers from asthma and a spinal condition from which he experiences functional impairment. For these, a rating of 10, in each case, was allocated in the JCA report under Tables 1 and 4, respectively. The applicant also has other conditions which are controlled by medication and from which he does not suffer a functional incapacity.
[2] For the requirement to apply these Tables, which came into force on 1 January 2012, see ss 26 and 27(3) of the Act.
There are limits to the extent that the DSP is payable when the recipient is out of Australia. However, the Act allows for unlimited portability of the DSP when certain provisions of the Act apply. In so far as relevant in this matter, the provision reads:
1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
…
(3) The Secretary may revoke the determination if any of the qualifying
circumstances ceases to exist.
(4) A determination under subsection (1) is not a legislative instrument.
(5) In this section:
“work” means work:
(a) that is 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.
94 Qualification for disability support pension
…
(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.
The issue for determination is whether the applicant satisfied all of the requirements set out in s 1218AAA(1) of the Act. This must have been done the date on which he advised Centrelink that he was considering travel overseas. This was 22 March 2013
(“the relevant date”).
SUBMISSIONS
Mr Rick McQuinlan, for the respondent, submitted that the only conditions for which an impairment rating may be given in the applicant’s case are his asthma and a spinal condition. He submitted that the appropriate rating for each of those conditions was
10 points under Tables 1 and 4, respectively, of the Determination. As each of those ratings is below the threshold of 20 points, he submitted that the applicant does not have a severe impairment and that, accordingly, he does not satisfy the requirements of
s 1218AAA(1)(b) of the Act. Mr McQuinlan also submitted that, on the basis of the JCA reports, particularly the one dated 12 April 2013 shortly after the relevant date, he had the capacity to work for 8 to 14 hours per week. He submitted that the decision under review ought be affirmed.
The applicant submitted that he experiences many limitations in relation to his daily activities. These include matters which involve sitting, standing or driving. He described limited mobility and submitted that he meets the criteria for severe impairment in the Act in relation to his spinal condition. He submitted that Dr Baxter had not seen him much before she completed her report and that she did not have a full understanding of his health problems. He also submitted that his health problems made it impossible for him to return to work and that he should be granted unlimited portability for his DSP.
EVIDENCE
The applicant
The applicant was motivated to travel abroad by an offer from an Australian friend to pay his airfare to and to provide accommodation for him in Portugal. The offer was made early in 2013 and, since then, his friend has decided to return to Australia. Nonetheless, the applicant wished to continue with his request for unlimited portability of his DSP because he believes that he will again be invited to go to Portugal when his friend returns there.
On being advised that the applicant intended to leave Australia for more than six weeks, Centrelink requested that he complete a Work Capacity questionnaire. In his response, dated 26 March 2013, the applicant advised that he had worked as a bricklayer until 1998 when he stopped for “family reasons”. He listed his disabilities as “damaged vertebrae, leaking valve in heart, emphysaema [sic], high blood pressure, (heart fibrilation [sic]), Barratt’s oasophageos [sic], prone to gout, and recurring renal colic - (kidney stones)”. He also described “hearing problems” as well as worsening arthritis in his shoulders, wrists, elbows and knees. He nominated Dr Baxter as the doctor whom he usually sees about his disabilities, illnesses and injuries.
In a further document completed by the applicant, he listed his disabilities as “back pain” and “breathing problems” and declared that these “sometimes” made it difficult to sit, stand or walk and that he had “no problem” with driving a car, using public transport, operating every day appliances, reading, writing, speaking, interacting with others, understanding or following instructions, managing his personal affairs or caring for himself.
In various letters written to the Tribunal, the applicant has described himself as being severely limited in his mobility, mainly because of his back condition and its associated sciatica. He described his asthma as being controlled but said that he had been suffering from a heart condition which required a recent period of hospitalisation. He agreed that other conditions identified by him in the questionnaire he completed on 26 March 2013 were controlled and presenting little difficulty.
At the hearing, the applicant appeared by telephone and gave the following evidence. He lives alone in the underneath part of another person’s house. They share the upstairs kitchen, bathroom and toilet facilities. He prepares his own meals and keeps his living area tidy but relies on the other person to perform tasks such as cleaning the floors. He does his own washing and relies on a dryer rather than the outside clothes line. He has a four wheel drive Land Cruiser vehicle which he is able to drive, stating that he has no problems in that regard for about 15 minutes. He agreed that he is able to move his head from side to side to look for other traffic on the road. He agreed that he had driven for
30 minutes to attend an assessment session with the JCA assessor in April 2013. He also drives a short distance several times a week to his local swimming centre where he does exercise walking in the pool for about 15 to 20 minutes or so and then settles down to a game of chess with friends before driving home. He described his hobbies as doing cross word and Sudoku puzzles and he also conducts chess coaching sessions at the local high and primary schools.
The applicant drives to the local shopping centre where he is able to access a disabled parking space adjacent to the store entry. This limits the amount of walking he needs to do. His shopping is carried out with a trolley which he uses for his support as well as for holding his purchases. He transfers items into the trolley and he agreed that he is able to bend forward to pick up a light object from a table. He also said that he is able to lift his arms above his head but that he chooses not to do so because of a painful right shoulder. He described difficulty in accessing vehicles and has had occasions when he has been unable to enter a maxi taxi. In his own vehicle, he has a handle on the inside above the door and he enters and leaves by reaching up to this and pulling himself up and then sliding into or out of the seat. The applicant described a recent period of hospitalisation in Cairns. On discharge, he returned to his home in Atherton by taxi to the Cairns bus station, by bus to Atherton and then by taxi to his home.
The applicant agreed with the summary provided in the JCA report in relation to his spinal and asthma conditions in April 2013 but said that these conditions have worsened since then. In his evidence, the applicant said that he remained sitting for the duration of the hearing which lasted for 1 hour and 45 minutes.
Medical and JCA reports
Dr Baxter completed a report on 2 April 2013. She treated the applicant since
1 March 2013 but was clearly aware of the medical history as demonstrated by her reference to a CT scan completed in October 2012. She diagnosed “prolapsed disc – L5 possible irritation of post foraminal right L5 nerve” and wrote that treatment was with analgesics since 2010 and physiotherapy since March 2013 after a period of hospitalisation in February 2013. She noted that the applicant was awaiting a neurosurgical appointment at the Cairns Base Hospital. Dr Baxter wrote that the condition decreased the applicant’s mobility in respect of “walking, sitting, standing and lifting”. She also described other conditions in the applicant but which are generally well managed and which cause him minimal or limited impact on ability to function.
In the JCA report, dated 12 April 2013, D allocated the following impairment ratings from the Impairment Tables.
Table Condition Rating 4 – Spinal Function Spinal Disorder - Other 10 1 – Functions requiring Physical Exertion and Stamina Asthma 10 Gout 0 Circulatory System (vasculitis) 0 Hypertension 0 Kidney Disorder 0 10 – Digestive and Reproductive Function Gastroenterological condition 0
The comment provided by D in relation to the spinal condition reads:
Functional impact: Customer has reduced range of movement, chronic pain, limited lift/carry and sit/stand tolerances through his lower back.
Supporting Reasons: Upon clinical observations within assessment, customer had no major difficulties in sustaining 30 minutes of sitting. En route to the assessment, customer had to endure 30 minutes of driving. Due to chronic pain, weight bearing difficulties and reduced movement through his lower back he is unable to successfully with efficiency and without symptomatic changes produce forward trunk flexion to pick up an object at knee height. Upon repetition, this may be likely to worsen.
For asthma, the assessor wrote:
Functional impact: Customer is easily susceptible to mobility limitations, SOB, wheezing, coughing and fatigue.
Supporting Reasons: Customer has frequent symptoms (above) which result in being unable to walk far outside the home and to local facilities which increases reliance on transportation. He is able to transport and transfer himself independently. He is also independent in daily activities, however has intermittent reliance on housemates for heavier domestic tasks i.e. floor cleaning.
D also concluded that the applicant had a baseline work capacity of “8-14 hours per week” in light less-skilled work such as that of a storeman.
The JCA completed by D on 26 July 2013 recommended the same impairment ratings and described the functional impact of the applicant’s back condition and asthma in terms similar to those listed above in the previous JCA. The same baseline work capacity for light less-skilled work such as “light farm work” was identified.
Dr Andrew Herborn, from the Tully Hospital, completed a report on 28 August 2013.
He wrote that he had known the applicant for 10 years. He noted the presence in the applicant of the various conditions referred to above. He concluded that the applicant, at aged 61 years was “essentially unemployable”.
Dr Gawie Roux provided a report on 4 September 2013. He has treated the applicant since 2003. Dr Roux identified “Emphysema (COTD)”, “osteoarthritis both knees” and “lumbar spine”. For the COTD, he described the applicant as gasping for breath all the time and walking up 6 stairs as being his maximum performance. He also wrote that any exertion by the applicant caused shortness of breath. For the applicant’s back condition, Dr Roux described “pain + +” with an inability to sit, stand, or lie down for any length of time. Dr Roux reported that the applicant was on a waiting list for consultation for his orthopaedic conditions. He also noted that the conditions referred to were deteriorating.
Dr Michael Ruscoe completed a report on 25 November 2013. He diagnosed
L5 prolapsed disc which is treated with paracetamol. He also diagnosed an ankle fracture which occurred in 1989 and which causes pain and limits his ability to wear shoes. The only other condition identified by Dr Ruscoe was arthritis in the right shoulder which, he wrote, had minimal impact.
CONSIDERATION
For any of the range of conditions from which the applicant suffers to be allocated a rating under the Impairment Tables, it must be permanent in the sense that it has been fully diagnosed, treated and stabilised.[3] It is not in dispute and I am satisfied that the only conditions which satisfy those requirements are those identified in the JCA reports and that, of those, the only conditions that attract a rating under the Impairment Tables are the applicant’s spinal condition and his asthma. Tables 1 and 4 are of relevance in this matter. The relevant components of those Tables read:
Table 1 - Functions requiring Physical Exertion and Stamina
[3] See ss 6(3) and (4) of the Determination.
Points Descriptors 10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
Table 4 – Spinal Function
Points
Descriptors
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
In the JCA completed in April 2013, the applicant was assessed at 10 points for his asthma under Table 1 and at 10 points for his spinal condition under Table 4 of the Impairment Tables. The assessor relied upon the report of Dr Baxter and I have noted the applicant’s contention that she had limited experience of his complaints. In her report, she noted that she had treated the applicant for only a short time. Nevertheless, I am satisfied that Dr Baxter was aware of the applicant’s medical history and I note that she referred to a CT Scan completed in October 2012 in giving her opinion. I am satisfied that her evidence is reliable and of significance because of its proximity to the relevant date. Subsequent medical reports are less reliable because of the evidence that his conditions are deteriorating.
In relation to his asthma, the applicant experiences symptoms such as shortness of breath but not to the extent that he is unable to walk around a shopping centre or supermarket or walk from the carpark into a shopping centre or supermarket without assistance, apart from the trolley. Clearly, he is able to walk to the trolley bay before entering the centre. Also, his evidence was that he is able to use public transport without assistance as demonstrated with his recent return journey by bus from Cairns to Atherton. He lives alone and is self-sufficient in the lighter household activities. He described his hobbies as involving tasks of concentration such as puzzles and regular chess sessions with friends. He also conducts chess coaching sessions at local schools and I am satisfied that is consistent with being able to do work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours. On that analysis, none of the criteria at the 20 points level in Table 1 for asthma is met.
For the applicant’s spinal condition, his evidence is that he is able to perform some overhead activities. He said that he is able to raise his arms above his head and that is demonstrated by using the handle above his seated position in his car to effect entry to and egress from his vehicle. He is able to turn his head by bending his neck in order to drive his vehicle with awareness of other traffic around him. He agreed that he can bend forward to pick up a light object from a desk or table and that is consistent with his ability to complete his shopping duties in a supermarket and prepare his own meals. He is able to remain seated for longer than 10 minutes as identified by his driving for at least 30 minutes and by doing so during his Tribunal hearing. Again, on that analysis, none of the criteria at the 20 points level in Table 4 for his back condition is met.
I am satisfied that the applicant does not have severe functional impact in activities requiring physical exertion or stamina because of his asthma or severe functional impact in activities involving spinal function because of his back condition. It follows that he does not satisfy the requirements above a rating of 10 under Table 1 or Table 4 of the Impairment Tables. That is consistent with ratings recommended in each of the JCA reports. I have noted Dr Herborn’s report that the applicant was “essentially unemployable”. His report is dated some five months after the relevant date and there is evidence that the applicant’s conditions had deteriorated during that period. I accept the evidence in the JCA reports that, as at the relevant date, the applicant had capacity to undertake light less-skilled work.
The requirements in s 1218AAA(1) of the Act are expressed cumulatively so that all elements must be met. The applicant does not meet the terms of ss 1218AAA(1)(b) or (d) of the Act and does not qualify for unlimited portability of his DSP.
DECISION
The Tribunal affirms 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 Mr R G Kenny, Senior Member ...........................[Sgd].........................................
Associate
Dated 6 August 2014
Date of hearing 18 July 2014 Applicant In person Advocate for the Respondent Mr R J McQuinlan, Department of Human Services
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