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

[2018] AATA 4046

Fenton and Secretary, Department of Social Services (Social services second review) [2018] AATA 4046 (19 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1256

Re:Wayne Fenton

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms S Taglieri SC, Member

Date:19 October 2018

Date of written reasons:        29 October 2018

Place:Hobart

For the reasons given orally at the conclusion of the hearing, the decision under review is affirmed.

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

Ms S Taglieri SC, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether fully diagnosed, treated and stabilised – whether 20 points or more under the impairment tables – whether continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 94(1)(b), 94(2)(a), 94(2)(b)

Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6, Table 2, Table 4

CASES

Fuller and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 883

Hansen and Secretary, Department of Social Services [2014] AATA 538

WRITTEN REASONS FOR ORAL DECISION

Ms S Taglieri SC, Member

29 October 2018

1. At the conclusion of the hearing of this matter on 19 October 2018, the Tribunal decided to affirm the decision under review. It agreed with the reviewable decision of the Social Services and Child Support Division (the SSCSD) that Mr Fenton was not eligible for a disability support pension within the 13 week qualification period from the date of his claim, 12 May 2017.

2. The reasons for reaching that conclusion are as follows. The Tribunal has adopted different reasoning to the SSCSD of this Tribunal, largely because during the hearing before it on 19 October 2018 it received additional evidence as to what had been considered previously. The Respondent’s position had also altered somewhat due to the additional evidence relied upon by the Applicant. These reasons hopefully may assist the Respondent in dealing with any future claims by the Applicant for disability support pension.

3. The Tribunal considered the T documents filed by the Respondent and additional documents tendered by the Applicant, being medical certificates of Professor Einoder and Dr McGinty, and reports of Professor Einoder, Dr Markos and Dr McGinty.[1] It also heard oral evidence on affirmation from the Applicant and he was cross-examined.

   [1] See Exhibits A1-A6.

4. At the hearing the Respondent indicated that it now accepted, based on the contents of the report of Professor Einoder dated 18 September 2018, that the spinal disorder was such that during the qualification period it was fully diagnosed, treated and stabilised.

5. The Tribunal is satisfied that within the qualification period the Applicant suffered from two medical conditions that are to be regarded as permanent within the meaning of the social security law, namely, that they are fully diagnosed, fully treated and are stabilised.[2]

   [2] Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination), s 6.

6. The two conditions considered to be permanent are the degenerative spinal condition and the left thumb amputation. It was contended by the Applicant that a third condition could be regarded as permanent, being emphysema or what is alternatively described as chronic obstructive pulmonary disease (COPD).

7. Although the Tribunal accepts all of the evidence given by the Applicant generally and considers him to be credible, the Tribunal had to determine whether within the 13 week period from making his claim on 12 May 2017, the condition of COPD had been fully treated such that it could be regarded as fully stabilised.

8. There was some ambiguity about the evidence concerning when the Applicant ceased smoking.[3] In particular, evidence had been given to the Member in the SSCSD that the cessation of smoking had only been three months prior to the hearing on the first tier review. As the hearing of the first tier review was on 20 February 2018, the effect of this evidence is that he ceased smoking around November or December 2017. That date was well outside the 13 week qualification period. In evidence before this Tribunal, the Applicant stated that he had received the diagnosis of COPD and given up smoking soon after that but was not specific about the date when smoking had completely ceased.

   [3] A relevant consideration because ceasing smoking is recognised as ‘treatment’, see, for example, Fuller and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 883 which was subsequently applied in Hansen and Secretary, Department of Social Services [2014] AATA 538.

9. On the balance of the evidence received, the Tribunal is satisfied that the Applicant did not completely cease smoking until after the 13 week qualification period. The Tribunal considers the evidence the Applicant gave to the SSCSD more likely to be reliable as it was given at a time more proximate to the events of giving up smoking. Further, the Applicant did not give a date or approximate date when giving evidence on 19 October 2018.

10. The Tribunal finds that the Applicant probably ceased smoking towards the end of 2017, outside of the qualification period. Regrettably for the Applicant, that means that during the qualification period the condition of COPD cannot be taken at law to be fully treated, and for that reason the Tribunal is not persuaded that the condition is permanent for the purpose of his claim of 12 May 2017.

11. Despite not being satisfied that the condition of COPD attracted impairment points under the applicable impairment Table, on the basis of the Applicant’s evidence and the opinion of Professor Einoder, the Tribunal considers that impairment points should be assigned with respect to the spinal condition, found to be permanent.

12. Having listened to the Applicant’s evidence carefully, the Tribunal accepts, based on the totality of what he stated on affirmation and the medical evidence received, that during the qualification period his spinal condition attracted 10 impairment points under Table 4 of the Impairment Determination.[4] This was consistent with the Respondent’s counsel’s closing submissions.

    [4] See footnote 2 above.

13. The Applicant did not give any particular evidence about his functional impairment from the thumb amputation. Further, he did not specifically dispute the five points of impairment allowed by the SSCSD under Table 2 of the Impairment Determination. This Tribunal agrees that five points should be assigned for this impairment and is mindful that the Member below had medical expertise.

14. The Tribunal’s conclusion, therefore, is that within the qualification period the Applicant had a total of 15 impairment points. That means he did not attain 20 points pursuant to the Tables in the Impairment Determination as required by s 94(1)(b) of the Social Security Act 1991. This alone means that he does not satisfy the requirements for an entitlement to receive disability support pension.

15. However, if wrong as to that conclusion at [14], the Tribunal has considered whether the Applicant would meet other legal requirements entitling him to receive disability support pension. Namely that he has demonstrated a continuing inability to work as required by s 94(2)(a) and (b) of the Social Security Act 1991.

16. In summary, these statutory provisions require an applicant to demonstrate that he cannot do any work independently of a program of support within a two year period, which requires evidence of participation in a program of support for 18 months prior to claiming disability support pension.

17. The evidence the Tribunal received was that the Applicant had only participated in a program of support for a period of 15 months prior to the lodgement of his claim. The Applicant did not dispute this. Accordingly, the Tribunal is not satisfied as a matter of law that the Applicant meets the requirements of a continuing inability to work.

18. The Tribunal was told that the Applicant has continued to participate in programs of support after lodgement of his claim in May 2017. He ceased smoking after the qualification period for his May 2017 claim ended. This suggests, though the Tribunal does not make any findings because it does not have jurisdiction to do so, that if the Applicant made a new claim now then he may qualify for disability support pension. This will likely depend on whether he can demonstrate that at least five impairment points are attributable to the condition of COPD, which may now be permanent.

19. The observations in the preceding paragraph are general comment and may assist the Applicant in directing himself to the evidence he will need to provide to the Respondent if he makes another claim. It may also assist the Respondent in evaluating any further claims.

20. For the purposes of this application, the Tribunal affirms the decision under review.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member

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

Associate

Dated: 29 October 2018

Date(s) of hearing:	25 September & 19 October 2018
Applicant:	By phone
Counsel for the Respondent:	Mr B Sparkes, FOI and Litigation Branch, Department of Human Services