Gary Judd and Secretary, Department of Social Services

[2015] AATA 418

[2015] AATA 418 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4974
Re	Gary Judd
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	12 June 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – cancellation – insufficient points under impairment tables to satisfy criteria – no entitlement at time of cancellation – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94(1)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 7, 8

REASONS FOR DECISION

Senior Member Bernard J McCabe

12 June 2015

1. Gary Judd has a bad back and skin cancer. He was granted the disability support pension (DSP) from 31 July 2009 but the DSP was cancelled following a review under the new impairment tables with effect from 26 June 2014. (The Secretary continued to pay
   Mr Judd until 21 August 2014 when the Social Security Appeals Tribunal (“the SSAT”) affirmed the cancellation decision.) Mr Judd has asked this Tribunal to revisit the question.

2. My task is to decide whether Mr Judd was entitled to the DSP on the date of cancellation. If he was qualified at that date, he is entitled to have the payments restored and be paid a further amount in respect of arrears.

3. My decision turns on the interpretation and application of the so-called “medical criteria” in s 94 of the Social Security Act 1991 (“the Act”). Section 94(1) sets out three principal requirements that must be satisfied before a person is eligible to be paid the DSP.
   The first requirement (in s 94(1)(a)) is that the individual must experience a physical, intellectual or psychiatric impairment. That requirement is satisfied here: as I have already pointed out, Mr Judd has a bad back and skin cancer.

4. The second requirement – in s 94(1)(b) of the Act – requires that I apply the impairment tables which are published in an instrument called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”). Mr Judd’s claim for DSP in 2009 was assessed with reference to an earlier version of these tables; most commentators would say the current version is more demanding.

5. Mr Judd needs at least 20 points allocated under one or more of the impairment tables. There is a separate table referring to each aspect of an individual’s functionality.
   The tables do not measure how sick a person may be; they measure the impact on his or her ability to function, which is assessed by reference to descriptors in the table.
   The decision-maker must consider whether an applicant can undertake the activities referred to as examples in each table, and work out from that an appropriate impairment rating.

6. The decision-maker is required to keep several limitations in mind when undertaking the assessment required under s 94(1)(b) of the Act. Those limits are referred to in the Determination. Firstly, s 7 says the decision-maker must have regard to the evidence from health professionals and other work capacity information. Section 8 says the decision-maker cannot rely on the applicant’s own report of symptoms unless that evidence is corroborated (i.e. confirmed by something or someone else). It follows that the evidence from the doctors and the job capacity assessors is particularly important. The second limitation is that each condition must be permanent before impairment points can be allocated: s 6(3) of the Determination. A condition is not permanent unless the decision-maker is satisfied the condition has been fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised: s 6(4) of the Determination.

7. As it happens, both of the applicant’s conditions have been fully diagnosed, fully treated and fully stabilised. It follows there is no obstacle to assigning impairment points.

8. The third requirement, in s 94(1)(c) of the Act, is that there be a continuing inability to work. I will return to this issue below.

   Assigning impairment points

9. The applicant’s back condition is assessed with reference to Table 4 in the impairment tables. That table deals with spinal function. The Centrelink job capacity assessor concluded Mr Judd was entitled to 5 points under this table. That rating assumes
   a mild functional impact on activities involving spinal function. After hearing Mr Judd’s description of his limitations in the course of giving evidence, I am uncomfortable describing the functional impact as mild: if I did not refer to the specific descriptors in the table, I would have said his level of impairment was moderate, at least. But of course I cannot do that: I must make a decision having regard to the descriptors. The evidence provided to the job capacity assessor suggested the applicant was not prevented from doing the things that would indicate he was entitled to 10 points. Mr Judd’s oral evidence was consistent with that conclusion.

10. There is nothing in the medical evidence that would suggest a different conclusion should be reached in relation to the descriptors in the table. I note Dr Harding-Smith, the applicant’s treating general practitioner, opined in a letter dated 2 January 2015 that the functional impact was mild to moderate, depending on the time of the day. Dr Harding-Smith said the applicant experienced more significant impairment early in the morning. This evidence tends to suggest the lower impairment rating is appropriate.[1]

    [1] Section 11(1)(c) of the Determination says if an impairment is considered as falling between two impairment ratings, the lower of the two ratings must be assigned. The higher rating cannot be assigned unless all of the descriptors for that impairment rating are satisfied.

11. Mr Judd pointed out what he regards as a flaw in the table: he said he was able to undertake many tasks, including some of the tasks referred to in the table, but there was no account taken of the fact he might experience debilitating pain afterwards – pain that prevented him from repeating the tasks. There is therefore a level of artificiality to the tests. Sadly, while acknowledging the point, I am not in a position to rewrite the descriptors. He is only entitled to 5 points under Table 4.

12. I am satisfied Mr Judd should be assigned a higher rating than he has been given under Table 14, which deals with “functions of the skin”. The job capacity assessor said
    Mr Judd experienced a mild functional impact as a consequence of the skin cancers on his face. But the evidence provided by his treating doctor and referred to in the job capacity assessor’s report suggests Mr Judd does experience a moderate functional impact because he experiences heightened sensitivity to sunlight as a consequence of a history of skin cancers. He is therefore required to take additional precautions to avoid exposure to sunlight, which includes limiting the time spent outside. In the circumstances, I would assign 10 points under Table 14.

    CONCLUSION

13. Mr Judd can only be allocated a total of 15 points under the impairment tables that apply to his conditions. That means he falls just short of the 20 points required to
    satisfy s 94(1)(b) of the Act. It is therefore unnecessary to consider whether he experiences a continuing inability to work (as would otherwise be required
    under s 94(1)(c) of the Act). I note the Secretary says Mr Judd would not satisfy that requirement even if 20 points could be allocated to his conditions, although the evidence Mr Judd gave at the hearing would call that conclusion into question.

14. Mr Judd feels discouraged by the process. I wish I had better news for him: he says
    (and I accept) he experiences significant difficulty as a consequence of his health conditions. His doctor says the back condition, in particular, is likely to deteriorate, which rather suggests Mr Judd may qualify for the DSP at some point after the cancellation date. But that is a question for another day, and it is up to Mr Judd if he wishes to make a further claim. The decision under review must be affirmed.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated  12 June 2015

Date of hearing	22 May 2015
Applicant	By telephone
Advocate for the Respondent	Mr R McQuinlan Department of Human Services