Debbie Chambers and Secretary, Department of Social Services

[2014] AATA 94

[2014] AATA 94

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1046
Re	Debbie Chambers
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	25 February 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 – Applicant is New Zealand citizen - Whether applicant ‘severely disabled’ in order to qualify for disability support pension – Whether 20 impairment points – Whether continuing inability to work – Applicant did not participate in Program of Support – Decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94

Social Security (Administration) Act 1999 (Cth) ss 13, 14, 42, Sch 2 cls 3, 4

Social Security (International Agreements) Act 1999 (Cth) Sch 3 art 1.1, Sch 3 art 5.1, Sch 3

art 2.2

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

25 February 2014

INTRODUCTION

1. I have to determine whether Mrs D Chambers (the applicant) is entitled to disability support pension (DSP).

   PRIOR DECISIONS

2. On 28 May 2012 the applicant lodged a claim for DSP. On 10 July 2012 this claim was rejected. On 2 January 2013 an authorised review officer affirmed the decision to reject the claim. On 7 February 2013 the Social Security Appeals Tribunal (SSAT) also affirmed the decision to reject the claim. On 6 March 2013 the applicant made an application to this Tribunal for review of the decision to reject the claim for DSP.

   RELEVANT LEGISLATION

3. The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) and the Social Security (International Agreements) Act 1999 (Cth) (“the Agreements Act”).

   ELIGIBILITY FOR DISABILITY SUPPORT PENSION

4. The applicant is a New Zealand citizen who remains in Australia under a visa subclass 444 which is neither a permanent visa nor a protected special category visa. The applicant does not qualify as an Australian resident under the Act because s 7(2) of the Act defines an 'Australian resident' as an Australian citizen or the holder of a permanent visa or protected special category visa. As the applicant is not an Australian resident she does not meet the residency requirement of s 94(1)(e) of the Act which has to be satisfied in order to be qualified to receive DSP. However, New Zealand citizens may qualify for DSP under Sch 3 of the Agreements Act.

5. Article 5.1 of Sch 3 of the Agreements Act provides that a New Zealand citizen who is not the holder of an Australian permanent visa but who is lawfully residing in Australia is an Australian resident for the purposes of the Australian social security law. The applicant is a New Zealand citizen lawfully residing in Australia and therefore is an Australian resident for the purposes of art 5.1 of Sch 3 of the Agreements Act. The applicant will therefore qualify for DSP providing that she satisfies s 94 of the Act with the exception of the residency requirement in s 94(1)(e) of the Act, and art 2 of Sch 3 of the Agreements Act.

6. Article 2.2 of Sch 3 of the Agreements Act provides that New Zealand citizens must be 'severely disabled' before they qualify for DSP. Article 1.1 of Sch 3 of the Agreements Act defines a severely disabled person as one who:

   (i)     has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:

   (aa)          to work for at least the next 2 years; and

   (bb)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

   (ii)       is permanently blind;

7. 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 (section 94(1)(a) of the Act);

   ·an impairment rating of at least 20 points (section 94(1)(b) of the Act); and

   ·a continuing inability to work (section 94(1)(c) of the Act).

8. 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 the applicant becomes qualified to receive the social security benefit (Sch 2 cl 4(1) of the Administration Act).

9. 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

10. On 28 May 2012 the applicant lodged her claim for DSP. I am therefore required to review the evidence before me to determine whether the applicant became qualified at any time within the thirteen week period from that date which concluded on 27 August 2012 (“the relevant period”).

    ISSUES FOR DETERMINATION

11. I have to determine a number of matters including:

    ·whether the applicant, as at the date of her 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 20 points or more under the Impairment Tables; and

    ·whether the applicant had a continuing inability to work; and

    ·whether the applicant was “severely disabled” within the meaning of art 1.1 of Sch 3 of the Agreements Act.

    WHETHER THE APPLICANT HAS AN IMPAIRMENT

12. I find that the applicant had within the relevant period 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 evidence which states that the applicant had a bilateral carpel tunnel syndrome and chronic back pain associated with osteoarthritis of the spine. The Secretary has quite properly conceded that the applicant suffers from these impairments.

    ASSESSMENT OF IMPAIRMENTS

13. I am next 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.

    Carpal tunnel syndrome

14. The applicant underwent a surgical procedure for the carpal tunnel syndrome condition in September 2012; this was after the end of the relevant period. At the time of the SSAT hearing the applicant was still recovering from this procedure. I am therefore satisfied that during the relevant period the carpel tunnel syndrome condition of the applicant was not fully treated and fully stabilised. Section 6(3) of the Disability Support Pension Determination provides that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent. Section 6(4) provides that a condition is permanent if it has been fully treated and fully stabilised. Having regard to these requirements I cannot assign an impairment rating to the carpel tunnel syndrome condition.

    Back condition

15. The applicant has osteoarthritis of the spine as well as chronic back pain. This condition has been treated by a number of surgical procedures. In 1992 the applicant underwent a laminectomy and discectomy. The applicant also had Lumbosacral fusions in 1993 and 1994. No further surgery is planned. The physical specialist assessment report confirms the diagnosis of chronic back pain and osteoarthritis of the spine and that the impairment will persist for more than 24 months and will deteriorate. The report was compiled after a discussion with Dr Sotade. I am therefore satisfied that the back condition had been fully diagnosed, treated and stabilised. Section 6(3) of the Disability Support Pension Determination provides that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent. Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed, fully treated and fully stabilised. Having regard to these requirements I consider that I can assign an impairment rating to the back condition.

16. Dr Sotade in his report dated 5 June 2012 discussed the chronic back pain and osteoarthritis condition of the applicant. Dr Sotade reported that the applicant has pain which is recurrent and severe. The applicant is unable to stand or sit for long periods. Dr Sodate was of the opinion that the pain is likely to persist for more than 24 months and it is likely to cause the applicant's functional ability to deteriorate.

17. The report of Dr Sotade was relied upon by the accredited exercise physiologist who completed a job capacity assessment report on 4 July 2012. The report contains an assessment that the applicant's impairment should be assigned an impairment rating of 10 points under Table 4 of the Impairment Tables on the basis of moderate functional impact. This assessment was based upon comments made by the applicant as to her functional abilities. The accredited exercise physiologist considered that the baseline work capacity of the applicant was 8‑14 hours per week and that there would be a work capacity of 15-22 hours within 2 years based upon restrictions caused by the applicant's chronic pain and limited physical abilities. Another job capacity assessment report was completed on 20 December 2012 and was made after a physical specialist assessment report was made on 11 December 2012.

18. The physical specialist assessment report contains the observations that the applicant suffered a moderate functional impact on activities involving spinal function and had an impairment rating of 10 points pursuant to Table 4 of the Impairment Tables, as well as that the applicant suffered a moderate functional impact on activities involving physical exertion or stamina and had an impairment rating of 10 points pursuant to Table 1 of the Impairment Tables. It was also recommended that the applicant had a current and future work capacity of 0-7 hours per week within the next 2 years excluding the impact of her hands. These recommendations were incorporated into the later job capacity assessment report dated 20 December 2012.

19. One issue which arose is whether it is permissible for an impairment rating to be assigned under both Tables 1 and 4 of the Impairment Tables.  I consider that an impairment rating for pain should be assigned using only the table relevant to the area of function affected.  Section 6(9)(b) of the Disability Support Pension Determination provides:

    Chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected.

20. In this case, it is necessary to consult Table 4 where there is pain which is related to the spinal function. I should also mention that s 10(4) of the Disability Support Pension Determination precludes double counting. That provision contains a directive that:

    When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.

    As the applicant has pain from movement of the spine, any functional impairment caused by pain should be assessed under Table 4.

21. The unchallenged evidence before me is that the applicant has a sitting tolerance of between 15 to 30 minutes; she could pick up a light object from a desk or table; she has slight restrictions on her neck movement when looking left or upwards; and that she was unable to sustain overhead activities. This evidence does not satisfy any of the descriptors in Table 4 which would enable a rating of 20 points to be assigned to the back condition. I would not disturb the impairment rating of 10 points which has been assigned to the back condition.

22. I have concluded that the applicant cannot be assigned 20 points for her impairments and she therefore does not satisfy s 94(1)(b) of the Act.

    CONTINUING INABILITY TO WORK

23. 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.

24. 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).

25. 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 actively 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).

26. Section 5(1) 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. 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(1)-(2) of the Active Participation Determination). There are exceptions to this requirement which are not material to this application (s 5(3)-(5) of the Active Participation Determination). A person must advise the Secretary of the program of support they have undertaken (s 5(6) of the Active Participation Determination). The applicant has not participated in a program of support.

27. 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).

28. The applicant is therefore unable to satisfy s 94(2) of the Act as she has not actively participated in a program of support. In my opinion her claim for DSP must fail on that ground alone.

29. I accordingly find that the applicant does not satisfy section 94(1)(c) of the Act.

    SEVERE IMPAIRMENT

30. I have earlier mentioned that art 2 of Sch 3 of the Agreements Act provides that New Zealand citizens must be 'severely disabled' before they qualify for DSP. Article 1.1 of Sch 3 of the Agreements Act defines a severely disabled person as one who has an impairment which makes the person, without taking into account any other factor, totally unable to work for at least the next 2 years. I cannot make a finding that the applicant is 'severely disabled' having regard to the opinion of Dr Sotade that the applicant does have some work capacity, even if it is not greater than 7 hours per week. Having regard to this medical evidence, I cannot be satisfied that the applicant is totally unable to work for at least the next 2 years.

    DECISION

31. I affirm the decision under review.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of
Dr P McDermott RFD, Senior Member

.........................Sgd...........................................

Associate

Dated 25 February 2014

Date of hearing	31/01/2014
Date final submissions received	11/02/2014
Applicant	In person
Solicitors for the Respondent	Christopher Bishop, Department of Human Services