Desmond Flatley and Secretary, Department of Social Services
[2014] AATA 84
•21 February 2014
[2014] AATA 84
Division General Administrative Division File Number
2013/5151
Re
Desmond Flatley
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 21 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 – 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
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
21 February 2014
INTRODUCTION
I have to determine whether Mr Desmond Flatley (“the applicant”) is entitled to disability support pension (“DSP”).
PRIOR DECISIONS
On 13 February 2013 the applicant lodged a claim for DSP. On 8 April 2013 this claim was rejected. On 2 July 2013 an authorised review officer affirmed that decision. On 17 September 2013 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision to reject the claim for DSP. On 8 October 2013 the applicant made an application to this Tribunal for review of the decision to reject his claim for DSP.
RELEVANT LEGISLATION
The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
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 (s 94(1)(a) of the Act);
·an impairment rating of at least 20 points (s 94(1)(b) of the Act); and
·a continuing inability to work (s 94(1)(c) of the Act).
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 he was qualified to receive that benefit as at the deemed date of the claim. If he was not qualified to receive DSP on that date he will nevertheless be entitled to receive DSP if he becomes qualified within thirteen weeks of lodging a claim. In that event, the start-day is the day that he becomes qualified to receive the social security benefit (Sch 2 cl 4(1) of the Administration Act).
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
On 13 February 2013 the applicant lodged his 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
15 May 2013 (“the relevant period”).
ISSUES FOR DETERMINATION
I have to determine:
·whether the applicant, as at the date of his 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 least 20 points or more under the Impairment Tables; and
·whether the applicant had a continuing inability to work
WHETHER THE APPLICANT HAS AN IMPAIRMENT
I find that within the relevant period the applicant had 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 report of Dr Cooper dated 13 February 2013 in which Dr Cooper reported that the applicant had type 2 diabetes with peripheral neuropathy and hyperlipidemia, as well as cervical spondylosis. The Secretary has quite properly conceded that the applicant suffers from a number of impairments.
ASSESSMENT OF IMPAIRMENTS
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.
Cervical spondylosis
There is no issue that an impairment rating can be assigned to the cervical spondylosis condition of the applicant. Dr Cooper in his report dated 13 February 2013 reported that the applicant had constant neck and shoulder pain as well as reduced endurance and poor sleep. Dr Cooper confirmed that the applicant had spondylosis at the C5/6 and C6/7 levels. The spondylosis condition was also outlined in a report of Dr Robertson, MBBS FRANZCR dated 2 July 2012 that is in evidence.
Dr Cooper was questioned whether the applicant would be able to perform any overhead activities: he stated that he believed that the applicant would be able to lift a 5 kg weight overhead. An accredited exercise physiologist reported on 4 April 2013 that the applicant did not have a full range of movement around the neck. Having considered the various descriptions in Table 4 of the Disability Support Pension Determination, I would not disturb the 10 point rating of the cervical spondylosis condition that was given by the accredited exercise physiologist.
There is no cogent evidence before me which would satisfy me that the cervical spondylosis condition should be assigned a higher rating of 20 points. To achieve such a rating it would be sufficient if the applicant was unable to perform any of the activities which evidence a severe functional impact. During his final argument the applicant who gave telephone evidence asserted that he could not remain seated for 10 minutes but there is no corroboration of such an assertion. The Introduction to Table 4 precludes any reliance upon the self-report by an applicant of symptoms. The Introduction also provides that one example of corroborating evidence is a report from a medical specialist. The applicant stated that he has never had any assessment of his condition by an orthopaedic specialist. I also mention that s 11(1) of the Disability Support Pension Determination prevents a rating between 10 and 20 points being assigned to the condition.
Depression
Dr Cooper in his report dated 13 February 2013 reported that the applicant had a depression condition. The Introduction to Table 5 of the Disability Support Pension Determination, which relates to Mental Health Function, provides:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
The condition has not been confirmed by a psychiatrist or clinical psychologist. In any event, even if it was possible to assign a rating, the condition would probably be assigned a rating of 0 points as Dr Cooper has reported that the condition causes a minimal or limited effect on the ability of the applicant to function.
Hernia
The applicant has an umbilical hernia condition. During the relevant period the applicant was awaiting surgical treatment for the condition. I am therefore satisfied that during the relevant period the condition was not fully treated. 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) of the Disability Support Pension Determination provides that a condition is permanent if the condition has been fully treated. Having regard to these requirements I am prevented from assigning an impairment rating to the condition.
Diabetes
The applicant has type 2 diabetes with peripheral neuropathy and hypertension. The applicant informed the SSAT that most of the time his blood sugar tests “are pretty good”. The onset of the diabetes condition has been variously reported to be in 2009 or in 2010. There is no medical evidence of how the functional vision of the applicant has been affected by the diabetes condition. There is no evidence that the condition has any functional impact and if it was possible to assign a rating, a rating of 0 would be appropriate. However, I am not satisfied that it is appropriate to assign a rating having regard to the evidence of Dr Cooper: that the applicant had not always been taking his medication. I cannot therefore be satisfied that during the relevant period the diabetes condition could be regarded as fully treated. 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) of the Disability Support Pension Determination provides that a condition is permanent if the condition has been fully treated and fully stabilised. Having regard to these requirements I cannot assign an impairment rating to the diabetes condition.
Left Foot Condition
Dr Cooper in his report of 13 February 2013 refers to the left foot condition of the applicant as causing a "reduced sensation of feet with neuropathic pain". The SSAT has recorded the views of the applicant:
His numb left foot is the result of a vascular operation in 2011. The doctor cut a nerve. It is not a consequence of his diabetes. He doesn't have any problem with feeling in his right foot. He has problems climbing stairs and standing in the one spot for more than 10 minutes.
I am not prepared to accept that the left foot condition was fully diagnosed, treated and stabilised during the relevant period and should be assigned a rating under Table 3 of the Disability Support Pension Determination - Lower Limb Condition. In assigning a rating I am bound by the Introduction to Table 3 which provides that self-report of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment. While the applicant asserts that the he has problems climbing stairs and standing for more than 10 minutes, his assertion is not supported by the medical evidence. Dr Cooper in his report of 4 July 2012 states that the “numb left foot” condition causes a minimal or limited impact on ability to function. The evidence is not consistent as to the cause of the left foot condition of the applicant. The medical report to be completed by the treating doctor requires conditions to be separately listed. In the report of 4 July 2012, the condition is said to be a consequence of vein surgery. In the later report by Dr Cooper of 13 February 2013, the condition appears to be a condition associated with diabetes. In the circumstances I cannot assign a rating as I do not consider that the condition can be regarded as fully investigated. Even if it were possible to assign a rating to this condition, a rating of 0 points is appropriate where a condition causes a minimal or limited impact on ability to function. There is no evidence before me that the functional impact of the condition has changed since Dr Cooper wrote his initial report.
Asthma
The medical report of 4 July 2012 lists the condition of asthma as one that is generally well managed and that causes minimal or limited impact. Its impact on function is reported as "short of breath on exertion". The applicant informed the SSAT:
He attempts to control his asthma with use of a puffer twice a day. The condition was first picked up in 2010. He is affected by changes in weather and smoke from burning off. It causes him coughing and breathing difficulties. He has stopped smoking. He had to cut back to buy food for his daughter. He has been off smokes for two weeks.
Dr Cooper in his report of 4 July 2012 stated that the “asthma” condition causes a minimal or limited impact on ability to function. While this report was made before the relevant period, the condition is not mentioned in his later report of 13 February 2013. There is no evidence that the functional impact of the condition has changed. Indeed the applicant quite properly conceded that the condition had improved since he stopped smoking. In the circumstances I assign a rating of 0 points for the asthma condition.
Other Conditions
The treating doctor in his report of 4 July 2012 states that the hypertension and skin cancer conditions cause a minimal or limited impact on ability to function. While this report was made before the relevant period, there is nothing in his later report of 13 February 2013 which attributes any functional disability to the hypertension and skin cancer conditions. In the circumstances I assign a rating of 0 points for these conditions.
I have concluded that the applicant cannot be assigned 20 points for his impairments and he therefore does not satisfy s 94(1)(b) of the Act.
CONTINUING INABILITY TO WORK
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.
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).
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 activity 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).
Section 5 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 (s 5(1)). 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(2)). There are exceptions to this requirement which are not material to this application (ss 5(3)-(5)). 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.
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 evidence that the applicant has met this requirement. The applicant has provided evidence in the Form SA437 which does not disclose that he has actively participated in a program of support within the previous 3 years. 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).
The applicant does not have a continuing inability to work as he does not satisfy s 94(2)(aa) of the Act as he has not actively participated in a program of support within the meaning of s 94(3C) of the Act. His claim for DSP must fail on that ground alone.
I accordingly find that the applicant does not satisfy s 94(1)(c) of the Act.
The applicant appears to live in an isolated location. He has valuable experience in assisting disadvantaged members of the community. I note that during the hearing the respondent stated that a social worker would be assigned to assist the applicant who indicated that he wanted to work.
DECISION
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 21 February 2014
Date of hearing 31 January 2014 Applicant By telephone Solicitors for the Respondent Joe Guthrie, Departmental Advocate
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Support Pension
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Impairment Rating
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Continuing Inability to Work
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