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

[2016] AATA 302

Dunn; Secretary, Department of Social Services and (Social services second review) [2016] AATA 302 (12 May 2016)

Division	GENERAL DIVISION
File Number	2014/2446
Re	Secretary, Department of Social Services
APPLICANT
And	Tim Dunn
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	12 May 2016
Place	Adelaide

The decision under review is set aside and in substitution for that decision, it is decided that Mr Dunn was not qualified for disability support pension as at the date of his claim on 2 April 2013 or within 13 weeks of that date.

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Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Continuing inability to work – Whether respondent had actively participated in a program of support – Decision under review set aside and substituted.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, Schedule 2, cl 4

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Deputy President K Bean

12 May 2016

1. The respondent in this matter, Mr Dunn, has a number of medical conditions, many of which he has had for a number of years.  As some of these conditions affect his ability to work, on 2 April 2013 he lodged a claim for Disability Support Pension (DSP).  That claim was rejected by Centrelink, both initially[1] and upon review by an Authorised Review Officer (ARO) on 31 January 2014.[2]

   [1]     Exhibit 1, T33/268.

   [2]     Exhibit 1, T29/187.

2. On 18 February 2014, Mr Dunn requested a review of the decision of the ARO by the Social Security Appeals Tribunal (SSAT) and on 4 April 2014, the SSAT set aside the decision of the ARO and substituted a decision that as at his date of claim, Mr Dunn qualified for DSP.[3]

   [3]     Exhibit 1, T2/10.

3. However, on 14 May 2014, the applicant, the Secretary, Department of Social Services (the Secretary), applied to this Tribunal for review of the decision of the SSAT[4], giving rise to these proceedings.

   [4]     Exhibit 1, T1/4.

   LEGISLATIVE FRAMEWORK AND ISSUES

4. It follows that, in broad terms, the issue before me is whether Mr Dunn was qualified for DSP as at the date of his claim on 2 April 2013 or within 13 weeks of that date, by 2 July 2013 (the assessment period).[5]

   [5]     Social Security (Administration) Act 1999, Schedule 2, cl 4.

5. Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act) and in order to qualify for DSP, Mr Dunn must establish that, as at the assessment period:

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

   (b)That impairment rated at least 20 points under the Impairment Tables; and

   (c)He had a continuing inability to work within the meaning of s 94 because of the impairment.

6. The Secretary does not dispute, and I also accept, that during the assessment period Mr Dunn had a number of impairments and that his impairments rated at least 20 points under the Impairment Tables. The SSAT concluded that Mr Dunn’s impairments attracted 10 points under Table 4, 5 points under Table 1 and 5 points under Table 2, and both parties accept the accuracy of that assessment. Accordingly, it is not necessary for me to consider those issues further. However, the Secretary does dispute that Mr Dunn satisfied the requirements of s 94 relating to “continuing inability to work”.  Accordingly, I will set out those requirements in more detail, before addressing the question of whether Mr Dunn met the applicable requirements.

7. At the relevant time (during the assessment period), s 94 of the Act relevantly required as follows:

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)in all cases—either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:For work see subsection (5).

   …

   Severe impairment

   (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   …

   Active participation in a program of support

   (3C)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 this subsection.

   …

   (5)     In this section:

   program of support means a program that:

   (a)     is designed to assist persons to prepare for, find or maintain work; and

   (b)     either:

   (i)    is funded (wholly or partly) by the Commonwealth; or

   (ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

8. The legislative instrument for the purposes of subs 94(3C) is the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (POS Determination).  The parts of the POS Determination which are relevant to this matter are as follows:

   Part 2  Requirements for active participation

   5.        Requirements for active participation

   (1)   A person has actively participated in a program of support if:

   (a)     the person has:

   (i)    complied with the requirements of the program of support; and

   (ii)participated in a program of support during the 36 months ending immediately before the relevant date of claim; and

   (b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and

   (c)subsection (6) is satisfied in relation to the person and the program of support.

   (2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.

   (3)This subsection is satisfied in relation to a person and a program of support if:

   (a)the duration of the program of support was less than 18 months; and

   (b)the person completed the program.

   (4)This subsection is satisfied in relation to a person and a program of support if:

   (a)the program of support was terminated before the relevant date of claim; and

   (b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program.

   (5)This subsection is satisfied in relation to a person and a program of support if:

   (a)at the relevant date of claim, the person is participating in the program of support; and

   (b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.

   (6)This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following in relation to the program of support:

   (a)the details of the designated provider of the program;

   (b)the dates when the person began the program and, if applicable, ceased the program;

   (c)the reason for ceasing the program (if any);

   (d)any period of non-participation in the program including exemptions, reliefs, or suspensions from the program;

   (e)the reason for any period of non-participation in the program;

   (f)the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;

   (g)the terms with which the person had to comply in order to satisfy the program requirements and the level of compliance with those terms;

   (h)the vocational, rehabilitation or employment activities the person participated in as a part of the program;

   (i)the frequency of contact that the person had with the designated provider of the program.

9. As both parties accept that Mr Dunn did not have a “severe impairment” at the relevant time, it follows that the particular issues for my determination are:

   (a)Whether, as at the assessment period, Mr Dunn had actively participated in a program of support so as to satisfy the requirements of subss 94(2)(aa) and (3C) of the Act; and

   (b)If so, whether he had a “continuing inability to work” within the meaning of subs 94(2)(a) and (b).

   AS AT THE ASSESSMENT PERIOD, HAD MR DUNN ACTIVELY PARTICIPATED IN A PROGRAM OF SUPPORT?

10. Having regard to his periods of exemption from the Newstart Activity Test and the fact that he was involved in injury management during those periods, the SSAT concluded that Mr Dunn had been actively involved in a program of support for at least 18 months of the three years prior to the date of his claim.

11. At the hearing before me, however, Ms Tsoundarou, who appeared for Mr Dunn, conceded that Mr Dunn had not participated in a program of support for 18 months of the three years prior to his date of claim, so as to satisfy subs 5(2) of the POS Determination.  Nevertheless, she contended that subss 5(3) and (4) of the POS Determination were potentially applicable, with subs (4) being the most relevant.  In other words, she contended that it was open to the Tribunal to conclude either that Mr Dunn had been participating in a program of support with a duration of less than 18 months and he completed that program, or that he was participating in a program of support which was terminated before the date of his claim, and the program was terminated because he was unable, solely because of his impairment, to improve his capacity to find, gain or remain in employment through continued participation in the program.  Ms Tsoundarou did not contend that Mr Dunn satisfied subs 5(5).

12. Noting that in order to satisfy the terms of the POS Determination, a person must satisfy subs 5(2), (3), (4) or (5), I will next consider whether Mr Dunn satisfied subs 5(3) or (4).

    Did Mr Dunn complete a program of support (subs 5(3))?

13. In Mr Dunn’s Statement of Facts, Issues and Contentions, Ms Tsoundarou contended that Mr Dunn completed a program of support with an employment services provider, Campbell Page, and “sought a referral to a Disability Employment Service Provider”.[6]

    [6] At [44].

14. I acknowledge that the material before me indicates that Mr Dunn was obtaining employment assistance from “Campbell Page, Noarlunga Centre” during 2009, and for various periods in 2012 and 2013, with his exit from a program provided by Campbell Page on 5 May 2013 (after the date of his claim) being apparently due to a “Change in Stream”.[7]  However, the material does not indicate that Mr Dunn completed any program of support provided by Campbell Page, or any other program.

    [7]     Exhibit 1, T31/203.

15. Having regard to the material before me, I am accordingly not satisfied that within the three year period prior to his date of claim, Mr Dunn participated in a program of support which was of less than 18 months’ duration and that he completed the program.

    Was Mr Dunn participating in a program of support which was terminated (subs 5(4))?

16. I am also not satisfied that within the three year period prior to his date of claim, Mr Dunn was participating in a program of support which was terminated.  As I have indicated, the evidence shows that Mr Dunn exited a program of support with Campbell Page on 5 May 2013 due to a “Change in Stream”, having commenced that program on 17 September 2012.  Prior to that program, he appears to have been undertaking a program of support with Campbell Page between 6 October 2009 and 17 September 2012, albeit this was a “Stream 3” program, whereas the program between 17 September 2012 and 5 May 2013 was a “Stream 2” program.  From the other material provided, I understand the “Stream 2” program was a Disability Employment Services Program.[8]

    [8]     Exhibit 4.

17. However, although Mr Dunn was transferred from Stream 3 to Stream 2 in September 2012, there is nothing to suggest that his program of support was terminated at that time.  With respect to this issue, I accept the Secretary’s submission that:

    Mr Dunn, while perhaps exited from a particular stream, was not exited from a POS. Furthermore, the purpose of exiting Mr Dunn from a particular stream was to refer him to a different stream which would provide him with a more appropriate level of support better suited to his impairments, with the view to seeing if that further support would increase his work capacity.[9]

    [9]     Secretary’s Statement of Facts, Issues and Contentions dated 15 April 2015, p 12 at [10.14].

    Conclusion

18. It accordingly follows that as at his date of claim, Mr Dunn did not satisfy subss 5(2), (3), (4) or (5) of the POS Determination.  He therefore did not satisfy subs 5(1)(b) of the Determination, or subss 94(2)(aa) and 94(3C) of the Act, and did not qualify for DSP during the assessment period.  It is unnecessary in these circumstances for me to address the question of whether he had a “continuing inability to work” within the meaning of subs 94(2)(a) and (b) of the Act.

19. In light of my conclusions, I am obliged to set aside the decision under review and substitute a decision that Mr Dunn was not qualified for DSP as at the date of his claim on 2 April 2013 or within 13 weeks of that date.

    DECISION

20. The decision under review is set aside and in substitution for that decision, it is decided that Mr Dunn was not qualified for DSP as at the date of his claim on 2 April 2013 or within 13 weeks of that date.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Associate

Dated 12 May 2016

Date of hearing	26 November 2015
Advocate for the Applicant	Mr A Burgess
Solicitors for the Applicant	Sparke Helmore Lawyers
Advocate for the Respondent	Ms A Tsoundarou
Solicitors for the Applicant	Welfare Rights Centre (SA) Inc.