Elmir Elmir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 533
[2013] AATA 533
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4450
Re
Elmir Elmir
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 31 July 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – impairment tables – applicant does not meet impairment rating requirement – - program of support - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2
REASONS FOR DECISION
Ms N Bell, Senior Member
Mr Elmir claimed disability support pension in January 2012, a few days after the introduction of the new Tables. Mr Elmir had previously received disability support pension until 2005 when it was cancelled. Since then he has not received any social security payment. He suffers from degenerative arthritis in his knees, degenerative spine disorder, depression, asthma and hearing loss.
Section 94 of the Social Security Act 1991 provides for the following requirements for eligibility to receive disability support pension:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the impairment tables; and
(c)either the person has a continuing inability to work or the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d)in a case where not one of the person’s impairments attracts an impairment rating of 20 points, the person has actively participated in a program of support.
Mr Elmir’s 2012 claim for disability support pension was rejected initially because he was found to have less than 20 points under the impairment tables. The Social Security Appeals Tribunal found that he had even fewer points under those tables. However, after a further Job Capacity Assessment was conducted following the Social Security Appeals Tribunal’s (SSAT) decision, and prior to the hearing before this Tribunal, Mr Elmir was assessed at 20 points – 10 for spinal function, 5 for bilateral lower limb function and 5 for depression. The Secretary has adopted this assessment and does not dispute that Mr Elmir has 20 points under the impairment tables.
However, Mr Elmir, who has not been in receipt of income support for 7 years, has not participated in a program of support as required by section 94 of the Social Security Act. The only way to avoid this requirement, which it is not in dispute Mr Elmir failed to meet, is for at least one of Mr Elmir’s impairments to attract, on its own, 20 points under the impairment tables.
Mr Elmir says that the impairments that have the most impact on him are his right knee impairment and his lower back condition. I look to these impairments to assess whether any one of them on its own attracts a rating of 20 points, thereby relieving Mr Elmir of the requirement for participation in a program of support.
Mr Elmir was assessed by a job capacity assessor as having a five point rating in respect of his bilateral lower limb function. Mr Elmir said he walked to the Tribunal from Town Hall Station on the morning of the hearing, but found it very hard and had to stop three times. He also said that when he drives his wife to the shopping centre he will get out of the car and walk into the shopping centre and wait at a café or a bench for her to finish the shopping. He also said he will help her load the bags into the car from the trolley. He uses a walking stick sometimes, generally when he first gets up in the morning. He said he does not use a wheelchair and mentioned no other walking aids.
I am satisfied, on the basis of this evidence, that Mr Elmir has a mild functional impact in respect of his lower limbs in accordance with Table 3 as follows:
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
He does not have an impairment rating of 20 points under Table 3. That Table requires the following impairment features, not present in Mr Elmir:
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
In relation to his spinal function, Mr Elmir sat in a chair in the hearing for up to 50 minutes at a time, although he shifted in his seat frequently. He said that he is sometimes unable to bend to pick something up, but his evidence was vague on this point. He said he has no difficulty in raising his arms above his head or with turning his neck from side to side. I observed him rise to a standing position swiftly and without assistance.
Mr Elmir was assessed by the job capacity assessor as having a 10 point impairment rating under Table 4 – a moderate degree of impairment as follows:
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
I consider the job capacity assessor’s assessment to be a generous one, given Mr Elmir’s evidence, but in view of the Secretary’s concurrence I am content to leave it undisturbed.
I am also mindful of Mr Elmir’s evidence that he has travelled overseas 5 times since his disability support pension was cancelled in 2005. He said he went to Lebanon last year, staying in Bangkok for 5 days on the way, and has just returned from another trip to Lebanon. He said he travels economy class and finds the long flight very difficult, alternating between sleeping, sitting and walking throughout. He said he travels with a friend. He agreed that he is required to walk around the airport after he has checked into his flight and said he does not require a wheelchair to move around the airport. He said he spent the entire 5 days in Bangkok in his hotel room. He later said that he walked across the road on occasion to go to restaurants.
He clearly does not have the degree of functional impairment required for a rating of 20 points:
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
Mr Elmir said he is able to feed himself, needs assistance with dressing sometimes, wash himself, can drive a car, travel. He said he goes to the mosque to pray once or twice per week. He said he goes out with his friends. He said he would love to work.
In light of this evidence, I considered Mr Elmir’s depression against Table 5. The job capacity assessor assessed him as having five points under the table:
5
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
Given the Secretary’s concurrence, I am content to leave this assessment undisturbed. However, Mr Elmir clearly does not attract a rating of 20 points under this table:
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Mr Elmir also suffers from asthma and hearing loss. He was diagnosed with asthma shortly after arriving to Australia in 1987. The job capacity assessor assigned a rating of nil under Table 1, the table relevant to ‘Functions requiring Physical Exertion and Stamina’. There is no indication on the evidence and by Mr Elmir’s own account that his asthma has any functional impact on his daily living.
Similarly Mr Elmir has been diagnosed with hearing loss since arriving in Australia. The first job capacity assessment in January 2012 did not consider that his condition was permanent. The second job capacity assessment considered his condition as permanent but assigned it a nil rating under Table 11, relevant to ‘Hearing and Other Functions of the Ear’. Both the SSAT and the assessor noted that Mr Elmir did not display difficulty hearing during the interview and the hearing. In the hearing before this Tribunal, there was no indication that Mr Elmir found problems communicating because of his hearing. I do not consider that Mr Elmir’s hearing has any functional impact on his daily activities and assign a nil rating under Table 11.
It follows that Mr Elmir remains subject to the requirement to participate in a program of support. He has not done so. This means that even though he has been found to have physical impairments and that those impairments attract a total rating of 20 points under the impairment tables, he is not eligible to be paid disability support pension because he has not participated in a program of support and none of his individual impairments attracts an impairment rating of 20 points.
Mr Elmir has not received income support payments for some seven years. I was advised by the representative of the Secretary that programs of support are generally provided in association with a Centrelink payment such as Newstart allowance.
I urge Mr Elmir to claim Newstart allowance so that he may receive any income support he is entitled to and so that he may avail himself of a program of support.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. .....[Sgd]...................................................................
Associate
Dated 31 July 2013
Date of hearing 31 May 2013 Applicant In person Solicitors for the Respondent G Lozynsky, DHS Program Litigation Review Branch
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