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

[2020] AATA 4181

Gainsford and Secretary, Department of Social Services (Social services second review) [2020] AATA 4181 (20 October 2020)

Division:GENERAL DIVISION

File Number(s):      2018/7062

Re:Glen James Gainsford

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:20 October 2020

Place:Sydney

The Tribunal sets aside the reviewable decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 12 June 2018 to cancel the applicant’s Disability Support Pension, and in substitution decides that at the date of cancellation the applicant satisfied the criteria under section 94 of the Social Security Act 1991 (Cth).

.........................[SGD]...............................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation - reviewable decision set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Social Security (Administration) Act 1999 (Cth) ss 80, 118

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

20 October 2020

INTRODUCTION

1. The applicant received a Disability Support Pension (DSP) from 16 May 2003.[1] Following some budget tightening in the 2016-2017 Federal Budget, his file was selected as one of many for a medical eligibility review. On 12 June 2018, Centrelink (now known as Services Australia) made a decision to cancel his DSP, which would cease to be payable from 24 July 2018.[2] This decision was affirmed by an Authorised Review Officer (ARO) on 16 June 2018.[3]

   [1] Section 37 documents (‘T-documents’), T33, p. 236.

   [2] T22, p. 163.

   [3] T25, pp. 168-171 .

2. On 21 November 2018, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the ARO decision.[4] The applicant was represented by Legal Aid at the AAT1 hearing.[5] On 29 November 2018, the applicant filed an application for review of the AAT1’s decision before the General Division of the Administrative Appeals Tribunal (the Tribunal).

   [4] T2, pp. 5-12.

   [5] T31, p.181.

   HEARING AND EVIDENCE

3. The application was heard by telephone on 23 June 2020. The applicant was self-represented, but was assisted by Mr Grant Murray, a disability advocate.

4. The applicant’s evidence consisted of:

   (a)A statement by the applicant regarding his use of Tegretol, dated 30 September 2019;

   (b)A psychological report by Mr Robert Curtis dated 17 December 2019;

   (c)Two letters by physiotherapist Mr Tim Jones dated 3 February 2020;

   (d)Optometrist Report by Mr Winston Foung, dated 9 March 2020;

   (e)Letter from Mr Matthew Ding (Specsavers), dated 19 June 2020.

5. The respondent filed:

   (a)a Statement of Facts, Issues and Contentions (RSFIC) dated 5 June 2020,

   (b)Job Capacity Assessment (JCA) reports dated 6 March 2019 and 21 May 2020.

   (c)The ‘T documents’, filed on 13 December 2018 pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

6. The applicant gave evidence at hearing and was cross-examined by the respondent. His evidence can be summarised as follows:

   (a)At the time of cancellation, in June 2018, he was suffering from back problems, epilepsy and was blind in his left eye with some deterioration in his right eye.

   (b)His back caused him considerable discomfort. He was able to sit in a car and, if necessary, drive as a passenger for periods in excess of an hour. He and his wife had made two trips to Poland in 2016 and 2018 to visit friends. These trips were broken into two segments, the longest of which was nine hours. He was able to place hand luggage in the overhead compartment. During these visits they drove by car (him as a passenger) to various cities, the longest drive being some 4.5 hours. They travelled with their Polish hosts, who were elderly, so there were lots of stops along the way.

   (c)He was relatively self-sufficient in terms of bodily hygiene and personal needs. He was able to dress and wash himself and sometimes helped his wife with household chores, such as the laundry. Mostly, he relied on his wife to attend to domestic house tasks. For example, his wife always made the bed. He was, however, able to assist with shopping and sometimes carried the groceries. He was able to take down items from the supermarket shelf. Sometimes they went to a restaurant. He was taking Nurofen and Mobic for his back pain.  He had never been hospitalised for his back.

   (d)He worked three to four hours per week in his lawn-mowing business, which he had been doing since 2008. His wife also worked in the business. He used a whipper snipper with a strap and she used the self-propelled lawnmower. They worked together to lift the machinery onto the work trailer.

   (e)He was blind in his left eye. He played competitive darts on Monday nights. He was able to see the board and the various sections as well as the bullseye with his right eye. He referred to a darts player well known to the darts playing community who is blind in one eye.

   (f)At home, he spent some time on the computer each day, probably no more than 20 minutes per day. He had a desktop with a 24 inch screen. He wore transition lenses in his spectacles to reduce glare. He spent a great deal of time in the house.

   (g)He suffered from epilepsy from birth but had not experienced a seizure for some time and never on a plane. He had occasional turns during which he would lie down for 30 minutes or so. He was on Tegratol (an anticonvulsant medication) for many years but went off it in 2013 because he feared the damage it would do to his eyes.

   LEGISLATION

7. Section 94 of the Social Security Act 1991 (Cth) (the SSA) sets out the qualification criteria for payment of DSP. The extracts relevant to this application are set out below:

   94  Qualification for disability support pension

   (1)  A person is qualified for disability support pension if:

   (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)  one of the following applies:

   (i)  the person has a continuing inability to work

   …

   Continuing inability to work

   (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) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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).

   (3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)  the availability to the person of a training activity; or

   (b)  the availability to the person of work in the person’s locally accessible labour market.

   (3A) If:

   (a) a person is receiving disability support pension; and

   (b) the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension; and

   (c) the person is not a reviewed 2008‑2011 DSP starter;

   then paragraph (2)(aa) of this section does not apply in relation to that assessment.

   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.

   …

   Other definitions

   (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.

   ….

   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.

8. Paragraph 6(3) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) provides, relevantly:

   An impairment rating can only be assigned to an impairment if:

   (a)the person’s condition causing that impairment is permanent;

   …

9. Paragraph 6(4) of the Impairment Tables provides that:

   For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a)  the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)  the condition has been fully treated; and

   …

   (c)   the condition has been fully stabilised; and

   …

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

   CONSIDERATION

10. The power to cancel the applicant’s DSP is provided by section 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). A cancellation decision is an adverse determination which takes effect on the day on which it is made.[6]

    [6] Administration Act, s 118(13).

11. The applicant’s eligibility for DSP must be assessed as at the date of cancellation, in this case 12 June 2018. Information contained in reports made after the cancellation date may be relevant but only to the extent that it casts light on the subject’s condition at the cancellation date.

12. The applicant’s DSP was granted on the basis of medical ailments including osteoarthritis lumbar spine, visual impairment in the left eye, and epilepsy. The respondent concedes that on the date of cancellation the applicant was suffering from a ‘physical, intellectual or psychiatric impairment’ within section 94(1)(a); but contends that he did not satisfy section 94(1)(b) of the SSA, which requires an impairment rating of not less than 20 points to be assigned under the Impairment Tables. The ARO and AAT1 both found that the applicant attracted only 10 points under the Impairment Tables. His spinal condition and eye disorder were each assessed at five points under Table 4 (Spinal Function) and 12 (Visual Function) respectively. The applicant’s epilepsy did not attract any points under Table 15 (Functions of Consciousness) because whilst the condition was fully diagnosed, it was not fully treated or stabilised.

    Spinal disorder (Table 4)

13. It was accepted in these proceedings that the applicant’s spinal condition was fully diagnosed, treated and stabilised at the time his DSP was cancelled. In submissions to the AAT1, the applicant did not contest the Secretary’s assessment of an impairment rating of five points for spinal disorder. I think this is a fair assessment based both on the medical reports and the applicant’s own evidence. He has a mild functional impairment involving some difficulty with activities over head height, bending and twisting. There is no evidence to support a finding that in June 2018 he was unable to perform activities such as bending to pick up a light object, accessing items overhead, looking around or getting out of a chair. He was able to travel long distances by air, place luggage in the overhead locker, and sit in a car for periods exceeding an hour. I note that the applicant has continued to operate his lawn mowing business throughout this period. This includes manipulating and sometimes lifting lawn-mowing equipment.

14. I note that in May 2020 the JCA report supported a finding of five points for spinal disorder.

15. I find that the applicant’s spinal condition is fully diagnosed, treated and stabilised, and has a functional impairment of five points under Impairment Table 4.

    Vision impairment (Table 12)

16. I am satisfied that the applicant’s visual impairment is fully diagnosed, treated and stabilised. He has functional vision in his right eye only. As a result, he has mild difficulty seeing things at a distance or close up when wearing glasses or contact lenses. Blindness in one eye does not automatically result in a finding of moderate of severe functional impact.

17. In October 2016, the applicant was assessed by Dr Jimmy George (ophthalmologist) as having good vision in his right eye, but with poor central vision and blind in his left eye.[7]  On 22 June 2018, Dr George noted some deterioration in his good right eye, due to the development of cataracts and glaucoma.[8] On 7 August 2018, Dr George commented further upon the situation, noting that the applicant was experiencing further blurring and occasional uniocular double vision. The visual acuity in his good eye was 6/12 and hand movements only in the left eye. His right eye was showing early sclerotic cataract. Dr George noted that his field of vision was restricted. He recommended monitoring the situation. It was too soon for cataract surgery on the applicant’s remaining good eye.[9]

    [7] T20, at p. 143. See JCA Report: T20, p.154-5.

    [8] T27, p. 174.

    [9] T29, p. 177

18. At the time his DSP was cancelled, the applicant played competitive darts to a high standard.

19. The applicant does not use vision aids or assistive devices. His glasses have transition lenses, which filter glare by darkening according to the prevailing light intensity. In March 2020, Mr Winston Foung, optometrist, opined that the impairment was moderate (as opposed to mild). He diagnosed unaided vision right eye 6/48 and for the left eye hand movements only at one metre. With correction he achieved 6/12 in the right eye with no improvement in the left eye. Mr Foung noted

    He requires not only single vision glasses for distant tasks but also transition lenses which auto tint in the sun and are essential for glaucoma and cataracts … to:

    Reduce glare;

    Provide ultraviolet light protection to his eyes from the sun;

    To reduce light scatter and to improve his contrast when outdoors and

    To reduce epiphora[10] when outdoors.

    [10] Watering eyes.

20. I was not referred to any authority suggesting transition lenses placed in ordinary spectacles amount to a ‘vision aid’ in the relevant sense. A moderate functional impairment attracting 10 points requires the use of vision aids or assistive devices other than spectacles. I proceed on the basis that ordinary spectacles with transition lenses do not constitute a ‘vision aid’ in the relevant sense.

21. Taking account of the loss of vision in his left eye, and the state of his right eye, I find that the Applicant had a mild functional impairment, attracting five points under Impairment Table 12 (Visual Functions).

    Epilepsy (Table 15)

22. There is ample medical evidence before the Tribunal that the applicant suffers from epilepsy and that he has suffered from this condition since birth.[11]

    [11] RSFIC at [74]

23. In a letter dated 3 November 2016, the applicant stated that he had numerous blackouts/seizures since the age of six years old, with his latest seizure in May 2016 when he fell and hit his head on the kitchen bench at home.[12] In August 2018, he experienced a grand mal episode but he was not hospitalised.[13]

    [12] See JCA Report, dated 21 May 2020, p. 3.

    [13] RSFIC, p 14, 2^nd dot point.

24. His treating doctor, Dr Palmer diagnosed the applicant with petit mal from birth.[14]

    [14] Medical Report 1 May 2003: T7, p. 93.

25. Between 2016 and 2018, the applicant was seen on three occasions by Dr Nimeshan Geevasinga, consultant neurologist and neurophysiologist. His reports are dated 18 November 2016,[15] 16 June 2018,[16] and 20 June 2019.[17] In his 2018 report, Dr Geevasinga commented:

    Epilepsy is a lifelong diagnosis and is a chronic condition. He will need to be on medication lifelong. This will subsequently adversely affect his ability to function independently.[18]

    [15] T19, p. 151.

    [16] T23, p. 166.

    [17] The Tribunal was not provided with an original copy of Dr Geevasinga’s 2019 report. See JCA report, 21 May 2020, at p. 3.

    [18] T23, p. 166.

26. In his 2019 report, Dr Geevasinga commented that the applicant’s epilepsy had been stable, and that he had not had any generalised seizures although he may experience some aura events.[19]

    [19] See JCA Report dated 21 May 2020, p. 3.

27. I agree that the evidence supports a finding that the applicant suffered from epilepsy at the time of cancellation. The diagnosis is supported by an appropriately qualified medical practitioner and corroborated by reports from the applicant’s treating physician.

28. There was some consideration at the hearing as to whether the applicant’s discontinuance of the drug Tegretol in 2013 without medical advice meant that the condition was not fully stabilised. The applicant’s Legal Aid lawyer addressed this issue in a detailed submission to the AAT1, dated 20 November 2018.[20] The applicant also addressed this issue to the Tribunal in a separate memorandum dated 30 September 2019. I note that the respondent accepts, in light of all the medical evidence, including the later 2019 report by Dr Geevasinga, that the applicant’s epilepsy was fully diagnosed, treated and stabilised at the time of cancellation.[21]  I think this concession is well made.

    [20] T31, p 200.

    [21] RSFIC at [86].

29. I find that the applicant’s epilepsy was, at the time of cancellation, fully diagnosed, fully treated and fully stabilised.

30. The respondent supports a finding of mild functional impairment from epilepsy, attracting five points under Table 15.[22] A mild functional impact involves infrequent episodes of involuntary loss of, or altered states of, consciousness, not usually requiring hospitalisation. Infrequent is not more than twice a year.[23] A mild impact assumes that a person is able to perform most activities of daily living between episodes and may have restrictions on a driver’s licence due to the medical condition.

    [22] RSFIC at [87].

    [23] T3, 78.

31. In June 2018, the applicant’s driver’s licence was suspended to its expiry date by the NSW Transport Roads and Maritime Services on medical grounds relating to his epilepsy. He was invited to reapply, after 30 May 2019, and provide medical evidence that he was fit to drive. The lifting of the suspension was contingent upon an absence of seizures for at least 12 months, and the applicant complying with medical advice.[24]  At the time of hearing, 23 June 2020, he had not sought to reactivate his licence.

    [24] T26, at p. 172-173.

32. A moderate functional impact requires four conditions. The first condition relates to the frequency of episodes of loss of, or altered state, consciousness, to which I will return. As to the remaining three conditions: the applicant is able to perform many activities of daily living between episodes; he is unlikely to be granted a driver’s licence; and is not able to attend work, education or training activities on a full-time basis, and is restricted due to safety issues in the work-related activities that he can undertake.

33. As to the frequency of episodes, there are two alternate limbs, one of which needs to be satisfied in order to attract a moderate impairment rating. The first limb relates to episodes of involuntary loss of consciousness requiring the person to receive first aid measures and occasionally emergency medication or hospitalisation. This does not apply to the applicant, for according to his evidence, he has not had a major seizure requiring hospitalisation since at least 1995.

1. In terms of the alternative limb which refers to involuntary altered states of consciousness, the required frequency is at least once per month, less than 30 minute in duration during which the person’s functional abilities are affected.

2. In a letter dated 6 June 2018, Dr Saing Thu Ya opined that the applicant’s epilepsy had a moderate functional impact attracting an impairment rating of 10 points.[25] The Legal Aid submission to AAT1 notes that Dr Ya’s opinion is in accordance with all previous assessments prior to the JCA in 2017. I note that the JCA Report dated 6 March 2019 did not assign a functional impairment rating, having found that the condition was not fully treated or stabilised. The Report contains the following comment:

   Over the last month he has not experienced seizures where he loses consciousness.  His most recent grand mal seizure occurred Aug 2018. This was witnessed by his wife. He is unsure how long this lasted. About 6-10 times per month he does not feel well and would lie down on cold tiles. This may last about 10-30 minutes at a time, he would feel a bit fuzzy and then be back to normal afterwards. This occurred twice last week.

   The last time ambulance/medical services were involved when he experienced a seizure was around 1992-1994.  He has asked his wife not to call medical services and she assists/watches over him when he has seizures.[26]

   [25] T21, p. 162..

   [26] JCA Report, dated 6 March 2019, p. 3.

3. The JCA Report dated 21 May 2020 differed from the previous 2019 JCA report in finding that the condition was fully treated and fully stabilised. The 2020 reviewer assigned a moderate functional impact rating of 10 impairment points.

4. On the basis of the evidence presented to the Tribunal, I am satisfied that at the date of cancellation the applicant suffered from a moderate functional impact from epilepsy attracting an impairment rating of 10 points under Table 15.

   Overall impairment rating

5. I find that, as at the date of cancellation, the degree of functional impairment was as follows:

   (h)Spinal disorder – five points (Table 4);

   (i)Visual impairment – five points (Table 12)

   (j)Epilepsy – 10 points (Table 15);

6. The applicant’s impairment rating under the Impairment Tables is 20 points, and therefore, section 94(1)(b) of the SSA is satisfied.

   Continuing inability to work

7. The applicant was granted DSP on 16 May 2003. Centrelink wrote to the Applicant on 10 August 2016 notifying him that they were reviewing his eligibility for DSP and requesting current medical evidence from him. He is not a reviewed 2008 2011 DSP starter. He therefore satisfies the conditions of section 94(3A) of the SSA, according to which he is not required to have participated in a program of support.

8. Moreover, because of the start date of his pension, he is not subject to the current work test standard of 15 hours per week.[27] He is subject to the less stringent requirement of 30 hours per week.

   [27] The 15 hour per week work test came into effect through amendments under the Employment and Workplace Relationships Legislation Amendment (Welfare to Work and Other Measures) Act 2005. Under the amending legislation, DSP claims made prior to 1 July 2006 will continue to be considered under the SSA as if the amendments had not been made.

9. The respondent contends that despite his medical conditions, the applicant is not prevented from working.[28] Various activities are referred to, such as travelling by train to Sydney and by air to Poland, as evidence of his fitness to work. Nevertheless, the respondent conceded that he is not capable of working for 30 hours per week.[29]

   [28] RSFIC at [98]-[101].

   [29] T31, pp. 202-203.

10. Under the work test standard applicable to the applicant, I find that he has a continuing inability to work.

11. I find that, as of 12 June 2018, the date of cancellation, the applicant was suffering from a physical, intellectual or psychiatric impairment; and that his impairment was of 20 points under the Impairment Tables; and that he had a continuing inability to work. He therefore, at that time, satisfied the eligibility requirements for DSP under section 94 of the SSA.

    DECISION

12. The Tribunal sets aside the reviewable decision of the AAT1 dated 12 June 2018 to cancel the applicant’s Disability Support Pension, and in substitution decides that at the date of cancellation the Applicant satisfied the criteria under section 94 of the Social Security Act 1991 (Cth).

I certify that the preceding 45 (forty five) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate

Dated: 20 October 2020

Date(s) of hearing:

23 June 2020

Applicant:

In person (by video conference)

Applicant’s advocate:

Solicitor for the Respondent:

Mr G Murray

Mr G Lozynsky, Services Australia