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

[2017] AATA 473

East and Secretary, Department of Social Services (Social services second review) [2017] AATA 473 (12 April 2017)

Division:GENERAL DIVISION

File Number:           2016/3823

Re:Jeffrey East

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P Nolan

Date:12 April 2017

Place:Brisbane

The Tribunal affirms the decision under review.

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

Senior Member P Nolan

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of pension - spinal condition - lower limb condition – requirement that a person’s impairment rating is of 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 27, 94

Social Security (Administration) Act 1999 (Cth) s 80

CASES

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Summers and Secretary, Department of Social Services [2014] AATA 165

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

Guide to Social Security Law, version 1.227, released 7 November 2016

REASONS FOR DECISION

Senior Member P Nolan

12 April 2017

INTRODUCTION

1. This is an application made by Mr Jeffrey East (“The Applicant”) for a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) dated 11 July 2016.[1] The matter came before the Tribunal as a result of a decision made by the Department of Social Services (“the Respondent”) on 29 February 2016 to cancel the Applicant’s Disability Support Pension (“DSP”).[2]

   [1] Exhibit 1, T Documents, T2, Decision and Reasons for Decision of the Social Services and Child Support Division, pp 4-9.

   [2] Exhibit 1, T Documents, T23, Notice of Cancellation of Disability Support Pension dated 29 February 2016, pp 155-156.

2. The basis of the Respondent’s decision made on 29 February 2016 was that the Applicant did not obtain a total impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Impairment Tables”).

3. On 5 April 2016, an Authorised Review Officer affirmed the decision to cancel the Applicant’s DSP on the basis that the Applicant did not have an impairment rating of 20 points despite noting that the Applicant nevertheless had a continuing inability to work in that he could not work for more than 30 hours per week.[3]

   [3] Exhibit 1, T Documents, T25, Decision of the Authorised Review Officer dated 5 April 2016, pp 159-160.

4. The Applicant had been in receipt of DSP since 19 November 1992. However, upon review of his entitlement to DSP under current legislation he was found not to have met the DSP requirements.

5. On 18 April 2016, the Applicant applied to AAT1 for review of the matter which was heard on 29 June 2016. AAT1 granted the Applicant 5 points under Table 3 in relation to lower limb function and 10 points under Table 4 for spinal function. It was not contested at the hearing of this matter that the rating of the spinal condition was in any way incorrect and the Applicant agreed that he felt the 10 points under Table 4 was a correct assessment.

   ISSUES

6. The issue to be considered by the Tribunal is whether the Applicant was qualified to continue receiving DSP as at the date of cancellation, 29 February 2016 (“the relevant date”). In order for the Tribunal to determine this issue, I must consider with reference to the relevant date:

   (a)whether the Applicant had a physical, intellectual or psychiatric condition/s;

   (b)whether the Applicant’s condition/s were fully diagnosed, treated and stabilised such that that the Applicant’s condition/s attracted a rating of 20 points or more under the Impairment Tables;

   (c)whether the Applicant had a continuing inability to work.[4]

   [4] Social Security Act 1991 (Cth) s 94.

   LEGISLATIVE FRAMEWORK

7. Section 80(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) states that where the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for that payment, the Secretary is to determine that the payment be cancelled or suspended. The relevant date with which the person should be assessed as qualified or not is the day on which the cancellation occurs.[5] The date of cancellation in this case is 29 February 2016.

   [5] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

8. The relevant criteria by which to assess whether a person qualifies for DSP or not is contained in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94(1)(a) of the Act requires that the Applicant has a physical, intellectual and/or psychiatric impairment at the relevant time. Section 94(1)(b) of the Act requires that the Applicant’s impairment is of 20 points or more under the Impairment Tables. To be given an impairment rating, the condition must be considered ‘permanent’. Section 6(4) of the Impairment Tables provides that a ‘permanent’ condition is a condition that is fully diagnosed, treated and stabilised, and must be more likely than not to persist for more than two years. Section 94(1)(c) of the Act requires that the Applicant has a continuing inability to work.

9. Section 27 of the Act states that if a person receiving DSP is assessed by the Secretary, then the Secretary must apply the instrument as in force under s 26 of the Act on the day the notice of review was given. As this Applicant was given notice advising of the review on 5 November 2015, the Impairment Tables should be applied.

   CONSIDERATION

10. To understand the problem fully it needs to be pointed out that the Applicant suffered a serious injury in 1980 which has had lasting effects on him. The medical evidence before the Tribunal shows that the Applicant has a longstanding history of persistent lower and thoracic back pain and right leg pain. I am therefore satisfied that the Applicant has a physical impairment as required by s 94(1)(a) of the Act.

    Thoracic Back Injury

11. The material before the Tribunal supports a finding that the Applicant experiences a ‘moderate functional impact’ from this condition. There is no challenge to the grading of the 10 points for the effect of the thoracic back condition which fits under Table 4 – Spinal Function. I therefore accept that the correct rating for the Applicant’s spinal condition is 10 points.

    Right leg pain

12. The next point concerns the condition of his right leg and whether it can attract any points under the Impairment Tables. This is described in Impairment Table 3 as ‘Lower Limb Function’ and the initial decision maker, evidenced in the JCA report, gave him no points for his right leg condition.[6] AAT1 granted 5 points to the Applicant for the right leg condition, an impairment which is vaguely referred to in the medical reports. I note Dr Hounslow, General Practitioner, in a 1991 report[7] makes reference to ‘right sciatica’ possibly caused by an L4/5 disc protrusion and later Dr Gerich-McGregor, Rehabilitation Specialist, makes reference to ‘transferred pain into his right leg’ resulting from his right sacroiliac joint in a report dated 12 February 2016.[8]

    [6] Exhibit 1, T Documents, T22, Job Capacity Assessment Report dated 26 February 2016, pp 149-154.

    [7] Exhibit 1, T Documents, T6, Letter from Dr Hounslow dated 26 February 1991, pp 60-63.

    [8] Exhibit 1, T Documents, T20, Report of Dr Gerich-McGregor dated 12 February 2016, pp 145-147.

13. However, to succeed in this application, the Applicant would need to attract 10 points under the Impairment Tables for his leg condition and it is clear from the applicable test in Table 3 that the Applicant would need to be able to show either:

    (a)that he is unable to walk far outside his home and needs to drive or get transport to local shops or community facilities; or

    (b)that he is unable to use stairs or steps without assistance; or

    (c)he is unable to stand for more than five minutes.[9]

    [9] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), Table 3 Lower Limb Function.

14. The closest the Applicant comes to succeeding in any of these three points concerns the criteria of being unable to use stairs or steps without assistance. At the hearing the Applicant indicated that the assistance he requires for stairs or steps is to pull himself up using the railing. “Assistance” is not defined in the tables or in the Act. However, I note the Guide to Social Security Law suggests assistance means assistance from another person, rather than with any aids or equipment the person has and usually uses, including the use of a handrail.[10] As such, it is clear that the legislation does not consider the Applicant’s use of a railing to be a relevant type of assistance.

    [10] See also, Summers and Secretary, Department of Social Services [2014] AATA 165 at [16-17].

15. Also required by the Impairment Tables under Table 3 to satisfy a ‘moderate functional impact’ is that the Applicant can:

    (a)move around independently using a wheelchair and can independently transfer to and from a wheelchair…; or

    (b)move around independently using walking aids (e.g. quad stick, crutches or walking frame).

16. Material before the Tribunal suggests the Applicant does not use a wheelchair or a walking aid. The difficulty with fitting the Applicant into any of the points that are concerned with moderate functional impact on his activities using lower limbs is that there is no direct evidence either from any of the doctors about his condition with respect to that nor is there very much from the Applicant himself. He can clearly stand for more than five minutes and from what he said in evidence he is, on some occasions, able to walk distances outside his home without having to drive.

17. The difficulty with this particular matter is that the evidence does not disclose sufficient particulars either from the Applicant himself or doctors who could assist or, for that matter, a person who has observed him and his disabilities such as his wife. There is a lack of evidence that I can attribute anything to to give him a 10 point rating.

    CONCLUSION

18. As I have said above, the problem in this matter is that there is a lack of available evidence to support the finding needed for the Applicant to succeed. It seems on my reading of the medical reports that the Applicant has gone out of his way to cope with and look after his injuries without complaining to doctors. I can readily understand this because there is virtually nothing they can do. Unfortunately though it leaves a complete gap in the evidence that a fact finder or decision maker could attribute to make a finding in his favour. As illustrated above, Dr Houndslow in a 1991 report made passing reference to lower limb issues and this was then reiterated by Dr Gerich-McGregor. However neither of them went into detail. It is open to the Applicant to seek further medical evidence and reapply for the DSP.

19. Based on the evidence before me, I do not consider that the Applicant had 20 points or more under the Impairment Tables as at the date of cancellation: 29 February 2016. As the Applicant does not satisfy s 94(1)(b) of the Act, is not necessary for me to consider if he had a continuing ability to work.

20. I affirm the decision under review.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Nolan

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

Associate

Dated: 12 April 2017

Date of hearing:	27 February 2017
Applicant:	In person
Advocate for the Respondent:	Ms J Forsyth
Solicitors for the Respondent:	Department of Human Services