Gash and Secretary, Department Of Families, Housing, Community Services And Indigenous Affairs
[2013] AATA 515
•20 June 2013
[2013] AATA 515
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3602
Re
Martin Gash
APPLICANT
And
Secretary, Department Of Families, Housing, Community Services And Indigenous Affairs
RESPONDENT
REASONS FOR DECISION
Tribunal Dr Roderick McRae, Member
Date of decision 20 June 2013
Date of written reasons
Place
23 July 2013
Melbourne
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
...............[sgd].........................................................
Dr Roderick McRae, Member
SOCIAL SECURITY – disability support pension – morbid obesity – non-insulin requiring diabetes mellitus – hypertension – continuing inability to work – decision affirmed
Legislation
Social Security Act 1991 section 94(1) and (5), Schedule 1B
REASONS FOR DECISION
Dr Roderick McRae, Member
23 July 2013
Mr Martin Gash (the Applicant) sought a review of a decision by the Social Security Appeals Tribunal (SSAT) dated 19 July 2012. On 17 November 2011, the Applicant lodged a claim for disability support pension (DSP) with Centrelink. On 19 December 2011 a Centrelink officer rejected the Applicant’s claim for DSP. The Applicant sought a review of that decision. An authorised review officer (ARO) affirmed the Centrelink officer’s decision on 19 March 2012. The Applicant then applied to the SSAT for review of the ARO’s decision. The SSAT affirmed the ARO’s decision. Centrelink acts as the service delivery agency for the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent).
On 21 August 2012 the Applicant lodged an application for review of the SSAT’s decision by this Tribunal. The Tribunal heard the application on 20 June 2013. At the Tribunal hearing, the Applicant was self-represented. The Respondent was represented by Mr Tim de Uray, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
The issue for the Tribunal was whether the Applicant was entitled to DSP according to the requirements of s 94 of the Social Security Act 1991 (the Act) at the time of his claim on 17 November 2011, or within the following 13 weeks (ending on 16 February 2012) (the qualifying period).
At the conclusion of the hearing, the Tribunal decided to affirm the decision under review and provided oral reasons. By request from the Applicant, the Tribunal’s written reasons for his decision on 20 June 2013 are outlined below.
BACKGROUND
The Applicant is 55 years old and resides with his mother. He completed Year 12, and possesses a Certificate IV in Workplace Training and Assessment. He worked as an occupational therapist assistant in a public hospital until January 2010, when he resigned. He has had weight difficulty for the majority of his life, with obesity and then morbid obesity (a body mass index of 51 has been documented) being continuously present. The Applicant has noticed increasing symptoms all of which are based upon his morbid obesity. He is awaiting surgical management of his obesity.
The Applicant lodged his claim for DSP on 17 November 2011. The application was accompanied by a medical report by his then general practitioner, Dr D Wong dated 10 October 2011. Dr Wong had managed the Applicant from 19 May 2005 but is no longer the Applicant’s treating doctor. The medical report indicated that the Applicant has a confirmed diagnosis of morbid obesity and that he is awaiting obesity management surgery. In the section headed Impact on ability to function, Dr Wong indicated that the Applicant has difficulty with standing/sitting for extended periods. Dr Wong considered that within the next two years the effect of the condition on the Applicant’s ability to function will significantly improve if treatment is accepted. However, the Applicant has declined to consider very low calorie diets as recommended.
The medical report also recorded that the Applicant has a confirmed diagnosis of Type 2 Diabetes with nil currently impact on the Applicant’s ability to function. Dr Wong indicated that the current impact of the condition on the Applicant’s ability to function will remain unchanged within the next two years. However, Dr Wong supplemented that the condition will deteriorate if non compliant with the recommended treatment planned.
Dr Wong also listed [h]ypertension as a condition that is generally well managed and cause minimal or limited impact on ability to function. Under Treatment she indicated medication.
The Applicant underwent a Job Capacity Assessment (JCA) on 24 November 2011. Subsequently, a JCA assessor prepared a report summarising the findings of the JCA. The report contemplated the diagnoses of morbid obesity, hypertension, respiratory disorder (other), musculo-skeletal disorder (other), non-insulin dependent diabetes mellitus and the related medical advice. The report found that the Applicant had:
reduced baseline work capacity of 15 – 22 hours of work per week due to … morbid obesity. However with surgical intervention …awaiting, … anticipated … able to work 30+ hours of work per week within the next 24 months.
The Applicant has received a copy of the SSAT’s decision. His grounds for application for review of the SSAT’s decision were I think the decision was wrong.
There is no dispute that the Applicant has a physical, intellectual or psychiatric impairment satisfying s 94(1)(a) of the Act. The issue before the Tribunal is whether the Applicant satisfies s 94(1)(b) and s 94(1)(c) of the Act.
APPLICANT’S SUBMISSION
The Applicant presented no additional objective evidence to the Tribunal that had not been presented to the SSAT. He opined that it was up to the Respondent to obtain additional information on his behalf from the Austin Hospital as he had signed a consent form at Centrelink [for this purpose].
RESPONDENT’S SUBMISSION
The Respondent conceded that the Applicant has a physical impairment, comprising obesity, diabetes, sleep apnoea and hypertension, and a psychiatric impairment of depression. The Respondent submitted that all the Applicant’s conditions, separately or cumulatively, fail to achieve the required 20 points or more under the Tables for the assessment of work-related impairment for disability support pension in Schedule 1B of the Act (the Impairment Tables) during the qualifying period. The Respondent further submitted that the Applicant did not have a continuing inability to work 30 or more hours per week during the qualifying period. The Applicant’s conditions would not prevent him from undertaking educational or vocational training. The Respondent submitted it was for the Applicant to obtain information in his own interests, and specifically was not the Respondent’s responsibility.
LEGISLATION
The relevant legislation includes s 94 of the Act and the Impairment Tables
Section 94(1) of the Act provides:
94(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;
…
Section 94(5) of the Act relevantly provides:
(5) In this section:
…
"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.
Chapter 1 of A Guide To The Tables For The Assessment Of Work-Related Impairment For Disability Support Pension provides:
…
(B) DEFINITION OF WORK – (PARAGRAPH 1)
What is considered “work” for disability support pension purposes.
Work is defined in section 94(5) of the Social Security Act 1991. For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.
…
In considering a person’s capacity for “work” as defined, it would be reasonable to expect that they must be capable of reliably performing such work on a sustainable basis, that is, for a reasonable period of time without requiring excessive leave or work absences. A reasonable period of time is taken to be 26 weeks. Further, it would be expected that such work is in open, unsupported employment and that the person does not require excessive support (ie more than what is usually considered reasonable adjustments and/or normal supervision) to perform the work. It is considered that the Tables refer to work in this context with regard to the assessment of work-related impairment. …
The Introduction to the Impairment Tables provides that:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years. ...
FINDINGS
The Applicant claimed DSP on 17 November 2011.
Dr Wong has performed a reasonably contemporaneous medical assessment, having managed the Applicant for some years. The Applicant’s primary condition of morbid obesity is awaiting surgical management. The Applicant’s other conditions mentioned are at the mild end of the potential illness spectrum, with nil to minimal impact on the Applicant’s ability to function.
There is no new objective medical evidence before the Tribunal to support the Applicant’s DSP claim from that which was contemplated by the SSAT.
It is uncertain if the Applicant’s morbid obesity is permanent as the medical evidence indicate that it may improve over the next two years. The Tribunal considers that this condition is not fully treated or stabilised and therefore cannot contemplate any associated rating under the Impairment Tables.
The Applicant has non-insulin dependent diabetes mellitus, from February 2008, managed with oral hypoglycaemic medications and dietary management recommendations. At the time of the Applicant’s claim, the condition was diagnosed, treated and stabilised, and there was no evidence of complications. The Tribunal therefore allocates a rating of nil points under Table 19: Endocrine Disorders of the Impairment Tables.
The Applicant has obstructive sleep apnoea from about 2006, following which he has benefitted from the use of a continuous positive airway pressure device. At the time of his claim, the condition was diagnosed, treated and stabilised, and there was no evidence of complications. The Tribunal therefore allocates a rating of nil points under Table 20: Miscellaneous – Malignancy, Hypertension, HIV Infection, Morbid Obesity (i.e. BMI >40), Heart/Liver/Kidney Transplants, Miscellaneous Ear/Nose/Throat Conditions & Chronic Fatigue or Pain of the Impairment Tables.
The Applicant has hypertension, which has been difficult to control on medications. At the time of the Applicant’s claim, the hypertension was not stabilised. The Tribunal is therefore unable to contemplate any associated rating under the Impairment Tables for this condition.
Other medical conditions were mentioned in the SSAT’s decision. However, the Tribunal was not taken to any medical evidence related to those other conditions. Therefore, the Tribunal is unable to consider these additional medical conditions.
CONCLUSION
The Applicant satisfies s 94(1)(a) of the Act in that he has morbid obesity, non-insulin diabetes mellitus, hypertension, obstructive sleep apnoea and depression. These conditions do not attract 20 impairment points under the Impairment Tables as required by s 94(1)(b) of the Act, therefore the Applicant’s claim must fail. As the Applicant fails to satisfy s 94(1)(b) of the Act, there is no requirement for the Tribunal to examine if the Applicant has a continuing inability to work in accordance with s 94(1)(c) of the Act.
The Tribunal concludes that at the time of his claim for DSP and in the following 13 weeks, the Applicant did not satisfy the requirements necessary to qualify for DSP.
Accordingly, for the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Roderick McRae, Member. ............[sgd]............................................................
Associate
Dated 23 July 2013
Date of hearing 20 June 2013 Applicant In person Advocate for the Respondent Tim de Uray, Centrelink Program Review and Litigation Branch
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