David HAMPSON and Secretary, Department of Social Services
[2014] AATA 790
•27 October 2014
[2014] AATA 790
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2014/0525
Re
David HAMPSON
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member P W Taylor SC
Date 27 October 2014 Place Sydney The decision under review is affirmed.
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Senior Member P W Taylor SC
Catchwords - Social Security – disability support pension – hypertension – folate and vitamin D deficiency – diabetes – peripheral neuropathy – impairment ratings – whether a continuing inability to work – decision under review affirmed
Legislation
Social Security (Administration) Act 1999 Schedule 2 clause 4(1)
Social Security Act 1991 s 94
Cases
Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 [27]
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member P W Taylor SC
On 8 November 2013 a Centrelink review officer affirmed a decision to reject Mr Hampson's 26 April 2013 application for disability support pension. That decision was reviewed, and affirmed, by the Social Security Appeals Tribunal (SSAT) on 7 January 2014. Mr Hampson seeks to have the Tribunal review that latter decision.
The SSAT found, and the Secretary accepts, that Mr Hampson suffered from four relevant conditions at the time of his application:-
(a)hypertension
(b)folate and vitamin D deficiency
(c)diabetes
(d)peripheral neuropathy.
Peripheral neuropathy: The SSAT considered that Mr Hampson's peripheral neuropathy was associated with his diabetes. Mr Hampson is not himself totally convinced about that association. He recognises that he has suffered from diabetes for many years. But he attributes the onset of his neuropathic foot problems to events in the latter part of 2009. Those events followed a significant weight loss, the death of a close friend and some distressing skin conditions. Mr Hampson recollects his foot problems had a relatively sudden onset in about September 2009, and he doubts that they are sufficiently explained by his underlying diabetic condition, which goes back many years before 2009.
It is not necessary to determine the precise association, if any, between Mr Hampson’s diabetes and his peripheral neuropathy. The more important question is the impact of the condition rather than its precise cause. In that regard the SSAT found, and the Secretary again accepts, that Mr Hampson's peripheral neuropathy was "fully diagnosed, treated and stabilised" at the times relevant to the assessment of his June 2013 application. This acceptance is one of the critical steps in establishing disability support pension eligibility – because the rules that govern the application of the relevant Impairment Tables only permit a point score to be allocated to conditions that are “permanent”. In order to qualify for characterisation as “permanent” a condition must be at least fully diagnosed, treated and stabilised: see Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 rule 6(4). I note that this qualification requirement, along with all of the other relevant eligibility criteria must be satisfied as at the date of the relevant application, or within 13 weeks thereafter: see Social Security (Administration) Act 1999 Schedule 2 clause 4(1).
The SSAT also found that only Mr Hampson’s peripheral neuropathy involved any significant functional incapacity. Consequently only that condition could be allocated a point score rating under the relevant Impairment Tables. That rating was only five points - based on Mr Hampson’s evidence that, whilst he could not walk very far he could walk well enough to walk around the supermarket to do his shopping, travel by bus, use stairs without assistance (other than using handrails) and stand in a queue for half an hour (although with discomfort). The significance of this evidence, in terms of the point score rating to be derived from Table 3 of the Impairment Tables, can be readily seen from the following extract.
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
There may be some reason to question whether, in the light of Mr Hampson’s evidence, and the imprecision of the description “unable to walk far outside their home and needs to drive … or get other transport” (in the Descriptor for “moderate functional impact”) the appropriate Table 3 impairment point score should be 5 or 10. Mr Hampson told the SSAT, and he essentially repeated his evidence in the present hearing, that he caught a bus to the local supermarket, and preferred that to walking, because of the difficulty with his feet. The SSAT appears to have regarded Mr Hampson’s evidence of peripheral neuropathy as causing only mild impairment. On the other hand, it could reasonably be determined that Mr Hampson’s “preference” to bus to the local supermarket is really a recognition of his “need” to do so, because of the difficulties he has in such a walk. And, on that basis, a 10 point score, relating to “moderate” functional impairment, might be allocated. But it is not necessary to reach a concluded view on this point because, whatever debate there might be about the classification of Mr Hampson’s impairment as “mild” or “moderate”, there is no basis on which, having regard to the criteria in Table 3, and his confirmation of the accuracy of the information on which the SSAT relied, that he could warrant a score greater than 10 points.
Such an impairment rating is less than the 20 point threshold eligibility point score. As a consequence Mr Hampson’s peripheral neuropathy impairment does not suffice to satisfy the eligibility requirements in s 94(1)(b) of the Social Security Act 1991.
Diabetes: Mr Hampson’s diabetes is reasonably well controlled. Its only currently significant symptom (subject to Mr Hampson’s causation reservation to which I have referred above) is his peripheral neuropathy. Indeed, in the present hearing Mr Hampson said that if he had only been suffering from diabetes, rather than his foot problems, he would not have even considered applying for disability support pension. Consequently, there is nothing to show that Mr Hampson’s diabetes affects his ability to function, and there is no basis for allocating a separate impairment point score for this condition.
Hypertension: The most significant evidence of Mr Hampson’s hypertension derives from a 26 April 2013 report of Dr Ahmed Elarif. But Dr Elarif describes it as a condition that is well managed and caused minimal impact on Mr Hampson’s activities. Mr Hampson confirmed that assessment in his evidence in the present hearing. He mainly attributed his hypertension to the period before his very significant weight loss (between 2005 and 2008). He said that hypertension was no longer a concern to him. In these circumstances there is no basis upon which Mr Hampson’s hypertension condition warrants any impairment point score rating.
Folate and vitamin D deficiency: Dr Elarif’s 26 April 2013 report also addresses these conditions. His report described them as well managed. In addition, Mr Hampson’s evidence was that he had no symptoms attributable to these conditions – despite expressing a mild lament in the course of the present hearing that if he had been more observant in continuing to take his vitamin D supplements he perhaps might not have recently (in August 2014) required hip surgery. In these circumstances, there is no basis upon which these two conditions warrant any impairment rating.
CONTINUING INABILITY TO WORK
Irrespective of any point score impairment rating, the Secretary submitted that Mr Hampson could not demonstrate he had a relevant inability to work. The Secretary’s submission was based on an 8 May 2013 Job Capacity Assessment Report. That report addressed the significance of Mr Hampson’s diabetic condition. It considered that he had a limited temporary work capacity (of 0 to 7 hours per week) because of the then current effects of his diabetes. However, the report also considered that Mr Hampson had a “baseline work capacity” of 8 to 14 hours per week attributable to the ongoing impacts of his diabetic condition. However, the report went on to further consider that “with additional assistance to address reported medical conditions as well as further help with vocational and non-vocational barriers” his work capacity was likely to increase to 15 to 22 hours per week within the next two years.
The Secretary relies on these assessments. A person’s prospective ability to work, notwithstanding their asserted disability, within the two years after their application, precludes any entitlement to disability support pension: see Social Security Act 1991 s 94 (2)(b). For the purposes of assessing ability to work the concept of “work” is defined to mean employment remunerated at least at the relevant minimum wage, for a period at least 15 hours per week. The assessment must be carried out without regard to the individual person’s particular preferences about what constitutes suitable or appropriate work: Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 [27].
Although there is no detailed reasoning underlying the 8 May 2013 Job Capacity Assessment Report’s distinctions between temporary, baseline and prospective work capacity, the limited degree of impairment associated with Mr Hampson’s peripheral neuropathy requires the conclusion that the evidence is insufficient to demonstrate that that impairment is of itself sufficient to prevent Mr Hampson from either undertaking a relevant training activity or working, independently of a programme of support, within the two years following his application. For those reasons, I am satisfied that Mr Hampson cannot demonstrate a continuing inability to work.
Mr Hampson participated effectively, helpfully and candidly in the review hearing. Nevertheless, his evidence does not establish that he is able to satisfy the relevant eligibility criteria for disability support pension.
DECISION
The decision under review is affirmed.
16. I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Taylor SC.
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Associate
Dated 27 October 2014
Date(s) of hearing 15 October 2014 Applicant Self-represented Solicitor for the Respondent Mr David McLaren, Solicitor
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