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

[2017] AATA 2284

Davis and Secretary, Department of Social Services (Social services second review) [2017] AATA 2284 (21 November 2017)

Division:GENERAL DIVISION

File Number(s):      2017/0086

Re:Julieann Davis

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms A F Cunningham, Senior Member

Date:21 November 2017

Place:Hobart

The decision under review is affirmed.

..............................[sgd].................................

Ms A F Cunningham, Senior Member

SOCIAL SECURITY – cancellation of disability support pension – qualification requirements – impairment rating – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 37

Employment and Workplace Relations Legislation Amendment Act (Welfare to Work and Other Measures) Act 2005 (No. 154) 2005 (Cth)
Social Security Act 1981 (Cth) – s 94(1)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2001 (Cth)

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

21 November 2017

1. The Applicant, Julieann Davis, was granted a disability support pension (DSP) in 1999. Following a review of her entitlement to DSP, a cancellation decision was made on 20 June 2016 on the basis that Ms Davis failed to meet the qualification requirement for a 20 point impairment rating. Centrelink’s decision was affirmed by an Authorised Review Officer (ARO) and by the Social Services and Child Support Division of the AAT (first tier review) on 29 November 2016. Ms Davis now appeals that decision to this Tribunal.

2. The hearing was held via videolink to Ms Davis. She gave oral evidence and called evidence from Karen Lewis, a registered nurse at the Launceston General Hospital. Ms Davis had provided care to Ms Lewis’ partner in her position as a support worker for a period of five years. Ms Davis also tendered written statements from herself; Ms Lewis; Dr Peter Golus, a consultant psychologist; Briony Patterson, Associate Genetic Counsellor; and Associate Professor Paul James, a Consultant Clinical Geneticist. The T documents were tendered pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

   Legislation

3. The relevant law is contained in the Social Security Act 1981 (the Act) and the Social Security(Administration) Act 1999 (the Administration Act). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2001 (the Determination) contains the Impairment Tables.

4. The qualification provisions for DSP are contained in s 94(1) of the Act. The requirements set out in s 94(1) are conjunctive and a failure to satisfy any one will result in a failure to qualify. Subsection 94(1)(b) requires a person’s impairment rating under the Impairment Tables to be 20 points or more. 

5. Subsection 94(1)(c) requires that a person must have a continuing inability to work (CITW) and have participated in a programme of support. The provisions requiring participation in a programme of support are not applicable in the current case as it involves the cancellation of DSP.

6. The law relating to CITW was changed in 2005 by the Employment and Workplace Relations Legislation Amendment Act (Welfare to Work and Other Measures) Act No. 154 2005. The principal change was to amend the definition of ‘work’ for the purposes of a CITW.  This change decreased the hours per week that a person could work from 30 hours to 15 hours. The transitional provisions in this Act provide that persons already in receipt of DSP on or before 10 May 2005 are not affected by the amendments. As Ms Davis was in receipt of DSP from 1999 until 2016, when the cancellation decision currently under review was made, the relevant number of hours she could work per week is 30 hours.

   Consideration and findings

7. Ms Davis’ DSP was cancelled on the basis that her impairments did not attract 20 points under the Impairment Tables. It is necessary for the Tribunal to firstly consider this issue. The Respondent conceded that Ms Davis satisfies the CITW provisions in that she is unable to work 30 hours each week. It is also accepted, and the Tribunal finds, that Ms Davis suffers from a number of medical conditions. Those accepted as being permanent within the meaning of the legislation such as to attract an impairment rating are breast cancer and spinal condition. Both of these conditions are accepted as having been fully diagnosed, fully treated and stabilised.

8. A report prepared by Ms Davis’ general practitioner, Dr Bowring, listed additional medical conditions which were generally well managed and caused minimal or limited impact on ability to function. These conditions were noted as post chemotherapy neurology, lap band and depression.

9. A Job Capacity Assessment report (JCA) was prepared on 10 June 2016. The assessor, a rehabilitation counsellor, considered that Ms Davis’ breast cancer and spinal disorder conditions were fully diagnosed, treated and stabilised and that the spinal disorder attracted an impairment rating of 5 points. The assessor found that Ms Davis’ depression could not be considered fully diagnosed treated or stabilised because she had not commenced treatment/counselling with specialist intervention from a clinical psychologist or psychiatrist. 

10. On the basis that there is no evidence of a diagnosis by either a psychiatrist or clinical psychologist (as required by the Introduction Provisions of Table 5 – Mental Health Function) it is the Tribunal’s finding that Ms Davis’ depression cannot be considered permanent such as to attract an impairment rating under this Table.

11. The Tribunal must consider evidence of the functional impacts of the Applicant’s accepted conditions of breast cancer and spinal disorder as at the date of cancellation on 20 June 2016. Ms Davis gave evidence that the impacts of these conditions have not materially changed since that time and have, to some extent, become worse.  Under cross-examination, Ms Davis agreed that she is able to pick up a 1 litre carton of milk or light but bulky objects from a table and to hold and use a pen or pencil. However she stated that she is only able to do up buttons and tie shoelaces or use a computer with a mouse for extended periods of time with difficulty. All of these descriptors relate to a 10 point impairment rating under Impairment Table 2 - Upper Limb Function.  The Tribunal therefore accepts that a 5 point impairment rating is appropriate.

12. With respect to impacts from the spinal condition under Table 4, Ms Davis agreed that whilst she is unable to sustain overhead activities, she is able to drive a car and sit for at least 30 minutes as demonstrated at the hearing. She also agreed that she does not have difficulty moving her head to look in all directions and is able to bend forward to pick up a light object from a table. She does not need assistance to get out of a chair. The Tribunal finds that the evidence supports a 5 point impairment rating for her spinal condition but not a 10 point rating.

13. Ms Davis’ evidence was that she receives a carer’s allowance for her 15 year old intellectually disabled son, her 17 year old daughter and her ex-husband who also resides in the same residence but occupies a separate bedroom. In addition, she receives a mobility allowance and a pension education supplement to assist with her studies for a disability care certificate. Ms Davis also gave evidence that she assists her son to shower, undertakes the washing and ironing, prepares some meals and does the household cleaning without assistance.

14. Ms Davis has worked as a support worker for a number of years. At the time of the first-tier review hearing, Ms Davis said that she had five clients and worked 28 hours per fortnight. Her work involves showering, toileting, dressing and brushing the teeth of her clients, as well as heating their meals and taking them shopping. Ms Lewis described the care that Ms Davis provided for her former partner as arduous work which included showering, sponging, washing her hair, cooking, brushing her teeth, attending to general hygiene needs and taking her shopping. She said that Ms Davis would also remove washing from the washing machine but was not able to hang it on the line due to her restricted arm movement above shoulder height.

15. Ms Davis submitted that the cancellation of her DSP made her feel as if she was being punished for her efforts in trying to assist people who are in a similar situation to herself. She said that she cannot explain how she manages to maintain her activities and support work, just that she ‘works through the pain’ in her back and arms. The Tribunal found Ms Davis to be a credible witness and has no difficulty in accepting the evidence regarding her difficulties and restrictions as a result of the pain from her accepted conditions. Ms Davis exhibits an admirable attitude of desiring to help others who are also suffering and the Tribunal accepts that these activities cause her considerable pain from time to time.

16. The Tribunal however is required to consider the decision to cancel Ms Davis’s DSP in accordance with the applicable legislation and the qualification requirements. One of those mandatory requirements is that her accepted impairments attract an impairment rating of 20 points or more under the Impairment Tables.

    Conclusion

17. For the reasons outlined above, the functional impact of Ms Davis’ breast cancer and spinal condition each attract an impairment rating of 5 points under Tables 2 and 4. This results in a total of 10 points and is less than the 20 points required by the legislation. For these reasons the Tribunal must affirm the decision under review.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

...............................[sgd].................................

Administrative Assistant

Dated:  21 November 2017

Date(s) of hearing:	8 November 2017
Applicant:	In person
Solicitors for the Respondent:	Mr Brian Sparkes, FOI and Litigation Branch, Department of Human Services