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

[2018] AATA 2893

Connor and Secretary, Department of Social Services (Social services second review) [2018] AATA 2893 (13 August 2018)

Division:GENERAL DIVISION

File Number(s):      2017/6810

Re:Peter Connor

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President Ian Hanger AM QC

Date:  13 August 2018

Place:Canberra

The Tribunal affirms the decision under review.

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Deputy President Ian Hanger AM QC

Catchwords

SOCIAL SECURITY – disability support pension - impairment tables – qualification period – fully diagnosed, treated and stabilised – continuing inability to work – wrist condition – knee condition – back condition – psychiatric condition – post-traumatic stress disorder - disability discrimination – human rights

Legislation

Commonwealth of Australia Constitution Act
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009
Social Security Act 1991

Social Security (Administration) Act 1999

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA [34]
Harris v Secretary, Department of Employment and Workplace Relations (2007) 97 ALD 534
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253

Secondary Materials

International Covenant on Civil and Political Rights

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Universal Declaration of Human Rights

REASONS FOR DECISION

Deputy President Ian Hanger AM QC

13 August 2018

1. It is understandably difficult for a lay person to comprehend the complexities of the Social Security Act 1991, the Social Security (Administration) Act 1999, Impairment Tables and such like but I have no choice but to apply the relevant provisions.  The issue in this matter for me to decide is whether the applicant was qualified to receive the disability support pension (DSP) on the day of his claim, 16 November 2016 or became qualified during the 13 week period starting that day and which ended on 16 February 2017 (the qualification period).

2. For me to find in favour of the applicant I must be satisfied that during the qualification period he had [1]:    

   (a) a physical, intellectual, or psychiatric impairment;

   (b) an impairment of at least 20 points assessed under Impairment Tables[2]; and

   (c) a continuing inability to work.

   [1] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253. On appeal [2007] FCAFC 130; 97 ALD 534. Bobera and Secretary, Department of Families, Housing, Community Services and  Indigenous Affairs [2012] AATA [34]

   [2] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

3. There is little doubt that he suffers from a physical, intellectual or psychiatric impairment. The next question therefore is whether he has an impairment of at least 20 points assessed under the impairment tables during the qualification period.

4. The applicant was born in 1977 and has had a sad life. His father murdered his mother, was violent to Mr Connor and doubtless caused post-traumatic stress disorder (PTSD) in Mr Connor.  Mr Connor also worked on a farm and suffered injuries in the course of his employment.

5. During the qualification period, on 28 February 2017 a Job Capacity Assessment Report on his conditions was undertaken and reported that:

   ·A psychiatric condition was not fully diagnosed, treated and stabilised.

   ·A wrist condition was fully diagnosed but not treated and stabilised.

   ·A knee condition was fully diagnosed but not treated and stabilised.

   ·A back condition was not fully diagnosed, treated and stabilised.

   ·His capacity for work within two years, with intervention, was held to be 30 hours per week or more.

6. In order to be allocated points under the impairment tables it is necessary for the particular condition to be fully diagnosed, treated and stabilised and if that prerequisite is satisfied it is necessary to decide whether the applicant has a continuing inability to work. The report asserts that he did have that ability to work. Therefore the applicant’s claim for DSP was rejected.

   The applicant’s wrist condition

7. His wrist condition was diagnosed by Dr Jayasinghe on 30 August 2016 and he wrote to the applicant’s GP confirming “bilateral median neuropathy at the wrist. It is greatly severe on the right and mild-to-moderate on the left”. The applicant had surgery on the right wrist but he did not follow up with the surgeon after the surgery and removed the stitches himself. He has not been reviewed by the surgeon and was not sure whether he would proceed with the recommended surgery to the left wrist. This appears to be the basis for the conclusion that the wrist condition while fully diagnosed has not been fully treated and stabilised. An ultrasound conducted on the right wrist in December 2017 notes soft tissue changes at carpal tunnel level. On 10 January 2018 he received a cortisone injection to the right wrist. Under the circumstances I am unable to conclude that during the qualification period his wrist condition in either arm had been fully treated or stabilised.

   The applicant’s knee condition

8. In May 2016 he was diagnosed with osteoarthritis in the knees. He was advised to lose weight before undergoing surgery. On 1 November 2017 he was referred by his GP to a specialist for opinion and management of advanced osteoarthritis of both knees and possible arthroscopy. That is a year after his application and it is clear that at that point in time his condition, while being fully diagnosed, could not be said to be treated or stabilised.

   The applicant’s back condition

9. In August 2016 he was diagnosed with a disc bulge at the level of S1. He did not receive treatment for the condition at the time but applied pain relieving medication. In December 2017 a CT scan of the spine was performed and an osteophyte noted at the nerve root at the level of L5. L5 and S1 are adjoining a vertebra in the spinal column. There is no evidence of whether this condition is treatable or whether it can be said to be stable now, or more importantly for present purposes, whether it was stable during the qualification period.

   The applicant’s psychiatric condition

10. Doubtless owing to his unfortunate upbringing, the applicant has suffered from various psychiatric difficulties during most of his life. In 1998 Dr Mulholland diagnosed him as suffering from PTSD which had for the most part resolved. He was referred to an accredited mental health social worker in October 2016 just prior to the qualification period and that gentleman reported that the applicant would benefit from continuing psychological intervention. He said that the aim of further sessions would be to focus on the implementation of his plan to treat trauma. The applicant moved to New South Wales on 26 December 2016 and said that he had not seen the social worker since that date.

11. In September 2017 his GP referred him to Dr Wilson for opinion and management of “bipolar disorder, PTSD and generalised anxiety and depression disorder… He stopped all of the medications and feels very low”.

12. On 23 March 2018 his psychiatrist wrote that the applicant had been “feeling well for the past nine months… He had benefited from the addition of valproate and this needs to be increased… I will see him again in six weeks when he is stable and stationary to complete the disability support pension application paperwork”.

13. On 6 May 2018, after seeing the applicant, the same psychiatrist reported that there had been an improvement in his mood and that the applicant was now “stable and stationary”.

14. This is good news for the applicant but it is clear that his condition at the time of the qualification period was not treated and stabilised.

15. From all the above I am forced to conclude that the applicant does not have an impairment of at least 20 points during the qualification period.

    Relevance of Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (the Disability Act) and Universal Declaration of Human Rights (the Universal Declaration)

16. Mr Connor submitted that he is being discriminated against contrary to the provisions of the Disability Act and the Universal Declaration.

17. The Disability Act legislates against discrimination in respect of employment, education, access to premises, provision of goods and services and facilities, accommodation, administration of The Commonwealth Government laws and programs.

18. The Universal Declaration in article 7 prohibits discrimination, as does article 26 of the International Covenant on Civil and Political Rights, but it is a matter for individual signatories as to how the commitments are implemented.  Australia complied with its commitments by enacting the beneficial Social Security legislation pursuant to subsections 51(xxiii) & (xxiiiA) of the Commonwealth of Australia Constitution Act.

19. The Disability Act contains a specific exemption in relation to the Social Security Act 1991 in subsection 51(1)(d). The Disability Act does not apply to Mr Connor’s situation. Section 94 of the Social Security Act does.

20. The decision under review is affirmed.

21.     I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of  Deputy President Ian Hanger AM QC

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Associate

Dated: 15 August 2018

Date(s) of hearing:	13 August 2018
Applicant:	By phone
Solicitors for the Respondent:	Department of Human Services