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

[2017] AATA 633

Farrell and Secretary, Department of Social Services (Social services second review) [2017] AATA 633 (9 May 2017)

Division:GENERAL DIVISION

File Number:  2016/5251

Re:Peter Farrell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Anna Burke

Date:9 May 2017

Place:Melbourne

The decision of the Respondent dated 27 May 2016 to cancel the Applicant’s Disability Support Pension is set aside and, in substitution therefor, the Tribunal decides that the Applicant did qualify for the Disability Support Pension at that date.

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

Member Anna Burke

SOCIAL SECURITY – disability support pension –– whether qualified – lumbar spine disorder fully diagnosed, treated and stabilised – depression not fully diagnosed, treated and stabilised – gout not fully treated and stabilised – impairment attracts rating of 20 points or more under impairment tables –– applicant has a continuing inability to work – decision set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975; s 37
Social Security (Administration) Act 1999; ss 63, 80 & 118(13)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; paras 5(2), 6(1), 6(3)(a), 6(4) & 6(8)
Social Security Act 1991; ss 26, 27(3), 94(1), 94(2), 94(3), 94(3A) & 94(5)

Social Security and Other Legislation Amendment Act 2011

CASES

Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635

Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180; [2013] AATA 558

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 218 FCR 274; [2010] FCA 360

REASONS FOR DECISION

Member Anna Burke

9 May 2017

INTRODUCTION

1. Centrelink cancelled Mr Farrell’s Disability Support Pension (DSP) on 27 May 2016 after a cancellation notice made pursuant to s 63 of the Social Security (Administration) Act 1999 (the Administration Act) was issued on 15 April 2016 and a resultant Job Capacity Assessment (JCA) on 25 May 2016. Centrelink is the service provider for the Department of Social Services (The Department).

2. The application for review was heard on 16 March 2017. Mr Farrell was self-represented and Ms Belinda Lewis, solicitor with the Department of Human Services, appeared for the Respondent. The Applicant gave evidence under affirmation by telephone and was cross-examined by Ms Lewis.

   THE ISSUES IN CONTENTION

3. The issues in contention are:

   a)whether Mr Farrell has a physical, intellectual or psychiatric impairment;

   b)whether that impairment or impairments attract 20 points or more under the Impairment Tables; and

   c)whether Mr Farrell has a continuing inability to work.

   BACKGROUND

4. Mr Farrell, who is now 58 years of age, was granted a DSP on 15 October 2008 on the basis of being assessed as having chronic lower back pain and depression. Mr Farrell’s back pain was a result of a workplace injury for which he had an accepted Workcover claim from 7 August 2003. He later took a redemption settlement as rehabilitation was proving fruitless, and then applied for a DSP.

5. On 15 April 2016 Mr Farrell was sent a notice under s 63 of the Administration Act. This had resulted as a follow-up to a phone tip off made to Centrelink that Mr Farrell was fraudulently claiming DSP. The claim was that Mr Farrell was working as a truck driver delivering firewood. Mr Farrell vigorously denied the allegation, testifying that he was physically incapable of driving a truck or carrying firewood. Centrelink did not pursue the allegation other than to instigate a review of his ongoing entitlement to DSP. This allegation was not raised by Centrelink at the hearing of this matter and no evidence was produced indicating that Mr Farrell was delivering firewood.

6. On 25 May 2016 Centrelink had a JCA conducted on Mr Farrell. The JCA report found that:

   (a)Spinal condition was fully diagnosed, treated, stabilised and assigned 10 points under Table 4;

   (b)Depression was not fully diagnosed, treated and stabilised;

   (c)Gout was not fully treated and stabilised; and

   (d)Mr Farrell was assessed as having a baseline work capacity of 8-14 hours per week and within two years (with intervention), of 15-22 hours per week.

7. On 27 May 2016 Centrelink notified Mr Farrell that his DSP had been cancelled because he did not have a rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

8. On 20 June 2016, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink decision finding that:

   (a)There was no recent medical evidence of ongoing pain management;

   (b)That current symptoms were lower back pain, limping, restricted bending and limited range of movement;

   (c)Mr Farrell had advised the JCA that he experienced pain every day which is exacerbated with increased movement; he has a maximum sitting tolerance of 60 minutes; that once every two months he drives for 40 minutes and he does not rest during the drive; he is unable to sustain overhead activities such as hanging clothes on the line for any more than four minutes; he has difficulty turning his head over his shoulder when driving and he tends to rely on his side mirrors; and he is able to pick up items at knee height but has difficulty then standing upright. Based on the available evidence, a rating of 10 points was assigned under Impairment Table 4 (report reads Table 10 which is an obvious typographical error) regarding spinal function;

   (d)The condition of gout was fully diagnosed but not fully treated or stabilised so no impairment rating was assigned for this condition; and

   (e)As there was no evidence to indicate that depression had been diagnosed by either a clinical psychologist or a psychiatrist an impairment rating could not be assigned under Impairment Table 5.

9. On 16 August 2016 the Social Services and Child Support Division of the Tribunal (AAT1) affirmed the decision.

10. On 23 September 2016 Mr Farrell sought a second review of the AAT1 decision by the General Division of the Tribunal.

    RELEVANT LEGISLATION

11. The power to cancel Mr Farrell’s DSP is provided by s 80 of the Administration Act which provides that if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment “the Secretary is to determine that the payment is to be cancelled or suspended”.

12. The decision to cancel Mr Farrell’s DSP is an “adverse determination” within the meaning of s 118(13) of the Administration Act which provides that such a decision takes effect “on the day on which it is made”.

13. It follows that in order to qualify for DSP Mr Farrell must satisfy the requirements of s 94 of the Social Security Act 1991 (the SS Act) as at 27 May 2016, the date on which Centrelink cancelled his DSP (time of cancellation).

14. As the Applicant received an “assessment notice” within the meaning of s 27(3) of the SS Act which initiated the review of his entitlement, when determining this application the Tribunal must apply the instrument in force under s 26 of the SS Act on 7 August 2012.

15. On 7 August 2012, changes effected by the Social Security and other Legislation Amendment Act2011 and the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 had commenced. The Applicant’s qualification for DSP after it was cancelled must therefore be determined according to the Impairment Tables.

16. Section 94(1) of the SS Act relevantly provides that a person is qualified for DSP if:

    (a)the person has a physical, intellectual or psychiatric impairment;

    (b)the person’s impairment or impairments attract a rating of 20 points or more under the Impairment Tables; and

    (c)the person has a continuing inability to work as defined by the SS Act.

17. It is agreed that, at the time of cancellation, Mr Farrell suffered from a number of medical conditions that caused impairment and he therefore satisfied s 94(1)(a) of the SS Act.

18. The Impairment Tables require that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent”.[1]

    [1] Impairment Tables; para 6(3)(a)

19. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    (a)fully diagnosed by an appropriately qualified medical practitioner;

    (b)fully treated;

    (c)fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.[2]

    [2] Impairment Tables; para 6(4)

20. The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

21. Also, the introduction to Table 5 of the Impairment Tables, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that 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)”.

22. The Secretary contends that, at the time of cancellation, Mr Farrell’s depression had not been diagnosed by either a clinical psychologist or a psychiatrist and therefore could not be assigned an impairment rating under Impairment Table 5.

23. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.[3]

    [3] Impairment Tables; para 5(2)

24. Paragraph 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

25. The Impairment Tables Rules also provide, at paragraph 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

26. It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.

    THE TRIBUNAL’S CONSIDERATION AND FINDINGS

    Evidence before the Tribunal

27. The evidence before the Tribunal included the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the applicant’s application for review.

    Does Mr Farrell have a physical, intellectual or psychiatric impairment?

28. Section 94(1)(a) of the SS Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.

29. The parties accept that Mr Farrell meets this requirement and that he is suffering from chronic back pain, depression and gout. Accordingly the Tribunal finds that Mr Farrell is suffering from these conditions and meets the requirements of 94(1)(a) of the SS Act.

    Does Mr Farrell have medical conditions that can be rated at 20 points or more under the Impairment Tables?

30. Section 94(1)(b) of the SS Act states that the second requirement to qualify for DSP is that Mr Farrell’s impairments rate 20 points or more under the Impairment Tables.

    Chronic Lower Back Pain

31. Mr Farrell’s original JCA report of 7 August 2007 awarded 20 points under the spinal function of the impairment tables as his condition was considered to be permanent, diagnosed, optimally treated and interfered with most physical activities.[4]

    [4] T-documents; T7 at 38

32. A subsequent JCA report of 10 October 2007 awarded 20 points for spinal function on the basis of: restricted physical activity; inability to lift more than 5 kilos; inability to sit, stand or walk for prolonged periods; and a constant need to rotate/change posture.[5]

    [5] T-documents; T9 at 54

33. The most recent JCA report of 25 May 2016, which was conducted by telephone, awarded 10 points under Impairment Table 4 – Spinal Function. It found that there was a moderate functional impact on activities involving spinal function. The report noted Mr Farrell reported he:

    (a)could sit and drive for at least 30 minutes;

    (b)had a maximum sitting capacity for 60 minutes but rarely sits that long;

    (c)is unable to sustain overhead activities, such as hanging clothes on a clothes line above his head, for more than four minutes;

    (d)has difficulty turning his head over his shoulder and when driving mainly relies on his side mirrors; and

    (e)can bend forward and pick up a light object at knee height but will then have difficulty standing upright.[6]

    [6] T-documents; T14 at 102

34. Dr Dowell, Mr Farrell’s GP at the time, provided a medical report for the original DSP claim on 31 July 2007 and a further medical report on 27 September 2007. He indicated that Mr Farrell had chronic lower back pain, with multiple tears in three discs and a slight disc bulge which is causing restricted physical activities; lifting restrictions (unable to lift more than 5kg); an inability to sit, stand or walk for prolonged periods; and the need to constantly rotate his posture. He stated that Mr Farrell’s condition would not improve in 2 years’ time. He also stated that Mr Farrell was suffering depression as a result of constant pain.[7]  

    [7] T-documents; T6 and T8

35. Dr Taheri, Mr Farrell’s current GP, provided an amended medical report on 4 July 2016 which indicated lumbar spinal discopathy and some narrowing of the spinal canal (resulting in chronic lower back pain); degeneration of vertebral discs confirmed by MRI in 2004 causing restriction of movement; that he limps; has restricted bending; referred pain, numbness and tingling of the lower limbs; and an inability to work. He also reported that Mr Farrell’s condition requires pain management medication. Dr Taheri also opined that Mr Farrell was severely depressed because of his constant pain.[8]

    [8] T-documents; T18

36. The cancellation decision, the ARO decision and the decision of the AAT1 all found that Mr Farrell should be awarded 10 points under the Impairment Tables as he can manage objects at table height and can remain seated for 10 minutes.

37. On assessing all the evidence before the Tribunal a decision has to be reached about whether Mr Farrell has an accepted diagnosis of lumbar spinal discopathy resulting in chronic lower back pain which meets the required 20 points under Impairment Table 4 as at 27 May 2016. This would require Mr Farrell’s condition to have a severe functional impact on activities involving spinal function. Impairment Table 4 requires that, in order for the spinal condition to have a severe functional impact:

    (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.

38. While giving evidence at the hearing and under cross examination, Mr Farrell was at a loss to understand how his condition had gone from being accepted and meeting the requirements for a DSP in 2007 to not meeting the DSP requirements now. He stated that, if anything, his condition has deteriorated over time, and that at no stage of the review process has he had a face to face assessment with Centrelink staff. All the evidence ascertained in respect of his condition, and subsequent appeals of decisions, were based on evidence that had been gathered over the phone. Mr Farrell stated that this has made the process difficult to comprehend and he believes this process had unfairly affected his situation.

39. Deputy President Forgie has been cited on numerous occasions for her opinion in Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[9] (Eid) as to how a JCA report should be considered. Her decision provides a cautionary note that JCA Reports are summaries and analyses which are used by the Secretary or his delegate in making decisions. She states that:

    There is a further danger and it arises if the opinions expressed in JCA Reports are necessarily treated as evidence ... it arises when opinions expressed by JCA Assessors on medical issues are treated as evidence of the sort found in reports of treating medical practitioners and those of allied health professionals and specialists reporting on a patient in areas of their expertise.

    …

    … That does not mean they cannot play a role but it means that, unless they have particular qualifications in assessing a person’s capacity for work or particular professional qualifications relating to the conditions, their reports should not be treated as evidence… They can only be used as an aid in assessing the evidence.[10]

    [9] (2013) 138 ALD 180; [2013] AATA 558

    [10] Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180; [2013] AATA 558 at 198-199, 202; [61], [71]

40. I agree with the view of the Deputy President. JCA reports are important, especially when they are conducted face to face, because the assessors have familiarity with the SS Act and the Impairment Tables and with assessing functional capacity. But sight must not be lost that the JCA report is just one of the several pieces of information that the decision-maker must consider, and that where a treating medical practitioner (especially one with a history of treating a person over time) has a different professional opinion, their opinion must be given more weight than an opinion contained in a JCA recommendation unless there is manifestly no basis for the doctor’s opinion based on the available facts.

41. I further note that, in Eid, the Deputy President expressed her concern on relying on a JCA report where the professional discipline of the JCA assessor is not relevant to the condition being assessed.[11] In this case, the professional discipline of the assessor is registered psychologist, with the professional discipline of the contributing assessor being accredited rehabilitation counsellor (ARC). Whilst a registered psychologist may be useful for the purpose of assessing a person’s depression under the Impairment Tables[12], it is difficult to envisage a situation where a psychologist can provide a useful assessment of spinal function. Indeed, the non-exhaustive examples of corroborating evidence provided in the Introduction to Table 4 indicate that such an assessment is best conducted by a medical practitioner, a physiotherapist or some other rehabilitation practitioner.

    [11] Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180; [2013] AATA 558 at 199; [62]-[63]

    [12] Though only if the registered psychologist is also a clinical psychologist (or a psychiatrist)

42. An accredited rehabilitation counsellor is perhaps a better assessor than a psychologist for the purposes of assessing spinal impairment. The JCA Report makes specific mention of the ARC’s role in assessing Mr Farrell’s spinal condition, stating that:

    “A Contributing Assessor (Rehabilitation counsellor) was consulted and advised to assign an impairment rating of 10 points under Table 4 of the Impairment Tables based on the medical information provided and client reported information.”[13]

    No further elaboration is provided regarding the ARC’s reasons for reaching this conclusion other than it being based on the medical information provided and client reported information.

    [13] T-documents; T14 at 102

1. The medical evidence as outlined in paragraphs [34]–[35] provides evidence that Mr Farrell is greatly restricted in his movement and function which makes him unable to bend, sit for long periods, lift objects and turn his neck and head.

2. Mr Farrell testified at the hearing that he does not sit for long periods, as to do so causes him great pain. However, if he does sit for long, it is in a specially designed modified recliner that he was provided as part of his workers compensation claim. At the hearing Mr Farrell was asked:

   Can you sit in other chairs for at least 10 minutes?

   Mr Farrell: Oh yeah. Like at a kitchen table. I sit on the edge, not back in it. If I get too far in I can’t get up.

3. Mr Farrell did not accept that he can bend forward to lift a light object from a table as put to him by the Respondent at the hearing. He stated that he must squat to pick up a light object from a table and that he has great difficulty getting back up. He cannot put on his shoes, so he has to wear slip-on foot wear and would not be able to put on a pair of work boots and certainly could not tie up his shoe laces.

4. Mr Farrell stated that he has a great deal of difficulty turning his head and disputed the Respondents’ contention that he turns his head to look out for blind spots whilst driving. Mr Farrell stated at the hearing that he does not drive great distances anymore and he relies on his mirrors to see around him as he has great difficulty turning his head. He reports that he is in constant pain whilst driving but just “gets on with it” and should not be punished for trying to cope with his situation. He stated at the hearing:

   “I could drive to Hamilton or Mt Gambier but I’d get there in pain. How do I get back?”

5. Mr Farrell stated that he cannot perform overhead activities and has modified his clothes line so he can lower it to put clothes on. He also stated that he is able to self-care but relies on other people to assist with heavy chores around the house. His house has also been modified to accommodate his restricted mobility.

6. I cannot find that Mr Farrell is unable to remain seated for at least 10 minutes. In Dr Dowell’s report dated 27 September 2007, it was noted that Mr Farrell has an inability to sit for a prolonged period.[14] Dr Taheri has provided no comment on Mr Farrell’s ability or inability to sit. At the hearing, Mr Farrell stated that he is able to sit on a chair, albeit on the edge of the chair so that he could ensure he could get up. He further noted that he could drive to Hamilton or Mt Gambier but that he would be in pain. Although I do not doubt that sitting for long periods is painful for Mr Farrell, it is clear on the evidence before the Tribunal that he is able to sit for at least 10 minutes.

   [14] T-documents; T8 at 46

7. I do find, however, that Mr Farrell is unable to perform any overhead activities. Dr Taheri and Dr Dowell both reported that Mr Farrell, as a result of his spinal disorder, has reduced endurance and restricted movement of the spine. Mr Farrell reported to the JCA and stated at the hearing that he was unable to sustain overhead activities.

8. I further find that Mr Farrell is unable to turn his head or bend his neck without moving his trunk. Dr Taheri and Dr Dowell both reported that Mr Farrell. as a result of his spinal disorder, has reduced endurance and restricted movement of the spine. Mr Farrell reported to the JCA that he has difficulty turning his head over his shoulder whilst driving and mainly relies on his side mirrors. At the hearing, he testified that he could not understand how anyone had reported that he manages to safely check blindspots while driving. He confirmed that he is unable to turn to check blindspots and that he relies upon his mirrors.

9. Finally, I find that Mr Farrell is unable to bend forward and pick up a light object from a desk or table. Dr Taheri reported that Mr Farrell has restricted bending and decreased range of movement of the spine. Mr Farrell was adamant at the hearing that he is unable to bend to pick up a light object from a table and that he must instead squat with great difficulty getting back up.

10. Having found that Mr Farrell is unable to perform any overhead activities, turn his head or bend his neck without moving his trunk or bend forward to pick up a light object from a table, it follows that his impairment has a severe functional impact and attracts 20 points under Table 4 of the Impairment Tables.

    Depression

11. Mr Farrell’s depression arose as a result of his work place injury. It has been exacerbated by the chronic pain he suffers and has been adversely affected by the cancellation of his DSP. This condition was previously assigned 10 points in the JCA Report of 10 October 2007 and in the Departmental decision granting Mr Farrell his DSP in 2008.[15] However, I note that the requirements for assigning a rating for this condition have changed since 2008 and that Mr Farrell’s condition must be considered with reference to the Impairment Tables.

    [15] T-documents; T9 and T12

12. Dr Dowell’s report of 31 July 2007 in support of Mr Farrell’s claim for DSP notes that Mr Farrell is suffering depression as a result of constant pain from his work injury.[16]

    [16] T-documents; T6 at 31

13. Dr Taheri’s amended report of 4 July 2016 notes depression as a result of chronic pain, but that it is well managed with anti-depressant medication.[17]

    [17] T-documents; T18

14. Under Impairment Table 5 – Mental Health Function the diagnosis of the condition must be by either a clinical psychologist or a psychiatrist. As there is no evidence before the Tribunal of Mr Farrell’s condition being diagnosed by either a clinical psychologist or a psychiatrist, there cannot be an impairment rating assigned.

    Gout

15. Dr Taheri’s amended medical report of 4 July 2016 notes Mr Farrell is suffering from gout which is causing restriction of movement and is currently controlled with medication. Mr Farrell is most affected when he has an attack of gout which causes excessive pain in both ankles and results in loss of endurance and greatly restricts his mobility. The diagnosis of gout was supported by pathology examination and Dr Taheri opined that it may need preventative medication if the attacks persist for the next 3 – 4 years.[18]

    [18] T-Documents; T18 at 123-125

16. Mr Farrell’s gout appeared to be well managed with medication and tends to flare up if Mr Farrell ceases to take his medication. I find that the condition of gout is fully diagnosed but not fully treated or stabilised as Mr Farrell is at times non-compliant with his medication. Therefore no points can be awarded under the Impairment Tables for this condition.

    Conclusion

17. As I have found that Mr Farrell’s chronic lower back pain attracts 20 points under Table 4 of the Impairment Tables, it follows that he has satisfied s94(1)(b) of the SS Act.

    Does Mr Farrell have a continuing inability to work?

18. The final DSP requirement in contention for this matter is found within s94(1)(c)(i) of the SS Act, which requires that Mr Farrell must have a “continuing inability to work”.

19. Section 94(2) of the SS Act relevantly provides that a person has a continuing inability to work because of an impairment if:

    (1)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

    (2)Either:

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

    (b)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.[19]

    [19] By virtue of s 94(3A) of the SS Act, it is not necessary for me to consider whether Mr Farrell has participated in a program of support.

20. The terms work and training are defined in s 94(5) of the SS Act as follows:

    training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

    (a)       education;

    (b)       pre‑vocational training;

    (c)       vocational training;

    (d)       vocational rehabilitation;

    (e)       work‑related training (including on‑the‑job training).

    work means work:

    (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)that exists in Australia, even if not within the person’s locally accessible labour market.

21. In determining whether Mr Farrell has a continuing inability to work because of his impairment, I am not to have regard to the availability of a training activity or the availability of work in Mr Farrell’s locally accessible labour market.[20] I must also consider whether the impairment prevents Mr Farrell from doing any work and not merely a class of work in which he has previous experience, training or which he prefers.[21] The Tribunal accepts that work opportunities for Mr Farrell are limited by his lack of education and training, as well as his remote location and the actual job opportunities in his area. However, these matters are not to be considered in the determination.

    [20] SS Act 1991; s 94(3)

    [21] Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at [27]; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 218 FCR 274; [2010] FCA 360 at 291; [70]-[71]

22. Dr Taheri’s report dated 4 July 2016 provided that Mr Farrell’s chronic lower back pain stopped him from continuing working.[22]

    [22] T-Documents; T18 at 119

23. The JCA report of 25 May 2016 found Mr Farrell had a baseline work capacity of 8 to 14 hours per week and a capacity to work 15 to 22 hours per week within two years of intervention. It noted that in addition to some light domestic chores, Mr Farrell had been undertaking light voluntary work. The voluntary work has since ceased due to the stress, both financial and emotional, that has occurred as a result of the cancellation of his DSP. The report states that ‘light less skilled’ work is suitable for Mr Farrell within 2 years if intervention occurred and that ‘driver/courier’ is a viable example of such work.[23] Noting Mr Farrell’s difficulty moving his neck and sitting, that particular example does not seem feasible.

    [23] T-Documents; T14 at 103-104

24. It is unclear whether the assessment of work capacity in the JCA report was conducted by the JCA assessor (the registered psychologist) or the contributing assessor (the accredited rehabilitation counsellor). The JCA report notes that the contributing assessor provided comment on work capacity but does not state what that comment is or whether they made the work capacity assessment.[24]

    [24] T-Documents; T14 at 105

25. In the Respondent’s statement of facts, issues and contentions, it was stated that, when assessing whether an applicant has a continuing inability to work, “the expert opinion of the job capacity assessor is to be preferred [to that of a medical practitioner] as the assessor has specialist knowledge and experience in identifying barriers to employment, interventions (such as DES), available programs and suitable occupations and is qualified to determine a person’s work capacity.”

26. I note that there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred for the purpose of assessing continuing inability to work. I do not think an absolute preference should be expressed for either report, rather, the preference should be made on a case by case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report writer’s relationship with the person who is the subject of the report and the reliability and depth of the analysis within the report.

27. In Mr Farrell’s circumstances, the JCA was conducted via telephone and it is unclear on the documents before the Tribunal whether the conclusions on work capacity were made by an accredited rehabilitation counsellor or a registered psychologist. Conversely, Dr Taheri has been Mr Farrell’s general practitioner since March 2010. He has provided an in-depth report and I have no reason to doubt the reliability of his conclusions.

28. I prefer the views expressed by Dr Taheri and find that Mr Farrell is not able to work 15 hours a week independently of a program of support within the next 2 years. I further find that, although his impairment does not prevent him from undertaking a training activity, that activity is unlikely to enable him to work 15 hours a week independently of a program of support within the next 2 years. As such, Mr Farrell has a continuing inability to work and satisfies s 94(1)(c) of the SS Act.

    DECISION

29. The decision under review is set aside and, in substitution therefor, the Tribunal decides that the Applicant did qualify for the Disability Support Pension.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

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

Associate

Dated: 9 May 2017

Date of hearing:

16 March 2017

Applicant:

Self-represented

Solicitor for the Respondent:

Ms Belinda Lewis

Department of Human Services