Gatley; Secretary, Department of Social Services and (Social services second review)
[2021] AATA 4096
•9 November 2021
Gatley; Secretary, Department of Social Services and (Social services second review) [2021] AATA 4096 (9 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8102
Re:Secretary, Department of Social Services
APPLICANT
AndJohn Gatley
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:9 November 2021
Place:Sydney
The decision under review is set aside and substituted with a decision that the Respondent (Mr Gatley) was not eligible for the Disability Support Pension in relation to the claim made on 21 March 2019.
.....................................[sgd]...................................
Chris Puplick AM, Senior Member
Catchwords
SOCIAL SECURITY – where the Secretary is the Applicant – entitlement to disability support pension – whether conditions fully diagnosed, treated and stabilised during the qualification period – whether impairments amounted to 20 points – whether there is a continuing inability to work – whether the program of supports requirements are satisfied – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 41
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Rekic and Secretary, Department of Social Services [2015] AATA 369
Summers and Secretary, Department of Social Services [2014] AATA 165
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
9 November 2021
In these proceedings the Secretary, Department of Social Services (the Secretary), is seeking a review of the decision made on 2 November 2020 by the Social Services and Child Support Division of the Tribunal (AAT1). That decision set aside a determination by an Authorised Review Officer (ARO) of the Department confirming an earlier decision by a delegate of the Secretary to reject the claim for Disability Support Pension (DSP) made by Mr John Gatley (the Respondent). In setting aside the ARO decision, the AAT1 remitted the matter to the Secretary for reconsideration in the light of its findings, which were to the effect that the Respondent was eligible for payment of the DSP as of the date of his original claim.
On 7 December 2020 the Secretary lodged an appeal against the AAT1 decision and sought a Stay Order, which was granted by the Tribunal on 10 December 2021, effectively putting on hold any action on the Respondent’s claim until the matter had been heard further and finally determined.[1] The matter was heard in this Tribunal on 25 October 2021 with the Respondent (assisted by his wife, Ms Kervin) appearing by telephone and the Secretary’s representative using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols.
[1] Administrative Appeals Tribunal Act 1975 (Cth) s 41(2).
TIMELINE OF EVENTS
The Respondent made an online claim for the DSP on 21 March 2019 and attended a meeting with a Job Capacity Assessor (JCA) on 24 September 2019. A delegate of the Secretary considered the medical information supplied by the Respondent and the report of the JCA and, on 3 October 2019 rejected the Respondent’s claim. On 30 April 2020 this decision was reviewed and affirmed by the ARO whose decision was then set aside by the AAT1 on 2 November 2020.
THE DISABILITY SUPPORT PENSION SCHEME
In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act1991 (Cth) (the Act). Section 94 has three distinct limbs:
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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
In essence, these requirements or criteria amount to this:
·the person has a physical, intellectual or psychiatric condition;
·the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria, set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment). Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;
·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;
·the person has turned 16; and
·the person is an eligible citizen or qualifying resident.
Failure to meet any one of these requirements is fatal to application claim for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:
·fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These important terms are defined in the Impairment Tables[2] as follows:
[2] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) s 6. Notes and examples omitted.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) 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.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.
A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:
(a) … doing any work independently of a program of support within the next 2 years; and
(b) … 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.
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
Finally, the DSP scheme has a temporal element to it in that any claim must be assessed with reference to a specific time framework. The Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that a claim must be assessed taking as a starting point, the day upon which the DSP application was made and considering the applicant’s eligibility from that date forward within a 13-week period thereafter. This is referred to as the “qualification period”. Only evidence which relates to the applicant’s condition during this period can be taken into account by the Tribunal and any evidence which post-dates the period must, to be accepted, relate specifically to that period.[3]
[3] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
In this instance, the qualifying period commences on the day which the Applicant lodged their application, 21 March 2019 and concludes on 20 June 2019.
THE RESPONDENT’S MEDICAL CONDITIONS: CONSIDERATIONS
The Respondent has identified three significant medical conditions or impairments in his DSP claim on 21 March 2019:[4]
(a)“gout inflammatory arthritis sarcoidosis”, with a date of onset of approximately 1 January 2015;
(b)“necrotising fasciitis”, with a date of onset of approximately 20 February 2019;
(c)“hip replacement”, with a date of onset of approximately 5 June 2018.
[4] Tribunal documents (T-documents) at 123-128.
In addition, the Respondent suffers from problems with gastro-oesophageal reflux and diabetes mellitus. It is convenient to consider these two conditions before assessing other parts of the Respondent’s claim.
The gastro-oesophageal reflux condition was fully diagnosed, treated and stabilised (FDTS) during the qualification period and is being managed by an effective regime of treatment. Both the JCA and the independent review by Dr Dias (see below) concluded that this condition did not impact sufficiently upon the Respondent for it to be rated above NIL points on the relevant Impairment Table and the Tribunal accepts this ratting as correct.[5]
[5] Impairment Tables at Table 10 – Digestive and reproductive Function; T-documents at 159-160; Medical Report by Dr Uthum Dias dated 12 April 2021 (Dr Dias Report) at 11.
There is no evidence before the Tribunal to suggest that the condition of diabetes mellitus was FDTS during the qualification period. This was the conclusion of both Dr Dias and the AAT1[6] and this Tribunal agrees with their conclusion. In the absence of any such diagnosis it is not possible to assign any impairment rating to this condition on either of the possibly relevant tables.[7]
[6] Dr Dias report at 11; T-documents at 7, AAT1 decision at [17].
[7] Impairment Tables at Table 1 – Functions requiring Physical Exertion or Stamina or Table 15 – Functions of Consciousness.
In his oral evidence to the Tribunal the Respondent advised that the issues with necrotising fasciitis had been resolved through treatment, including a period spent by the Respondent in the Campbelltown Hospital. This condition was diagnosed in a report by Dr Lim (dated 22 March 2019)[8] prior to the qualification period and was treated and stabilised throughout. The ARO in their notes recorded:
“PROGNOSIS: Dr Vu indicated that this condition is expected to be temporary with a good prognosis of 12 months. Condition is considered temporary given that the condition is unlikely to persist for 24 months or longer. Expected duration from: 24/09/2019 to 24/12/2019.”[9]
[8] T-documents at 129.
[9] Ibid at 176.
As the condition is not a permanent condition and, having responded to treatment, it cannot be considered as an ongoing impairment and consequently cannot be progressed for consideration on any of the Impairment Tables.
The Respondent told the Tribunal that his conditions related to his respiratory system (“sarcoidosis and emphysema”) and those arising from and associated with his hip replacement (“seronegative arthritis and bilateral hip pain”) persisted. He gave evidence that the former had worsened slightly over the past 2+ years while the latter had stabilised.
This means in effect that the Tribunal must consider each of the two conditions (or suite of related conditions) and assign them appropriate rating on the relevant Impairment Table.
Table 1 - Functions requiring Physical Exertion and Stamina
Turning first to the respiratory conditions, the Tribunal notes that the evidence of Dr Barakat (respiratory specialist) and Dr Vu (general practitioner) establish that the conditions of sarcoidosis[10] and emphysema were FDTS during the qualification period.[11]
[10] An inflammatory disease of the lings in which nodules form – aetiology unknown.
[11] T-documents at 138 and 146.
The relevant Impairment Table for these conditions is Table 1 (Functions requiring Physical Exertion and Stamina) which provides:
Points
Descriptors
0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion).
Here, a preliminary matter must be noted. The Introduction to all the relevant Tables makes it clear that, inter alia:
·the diagnosis of the condition must be made by an appropriately qualified medical practitioner;[12]
·self-report of symptoms alone is insufficient; and
·there must be corroborating evidence of the person’s impairment.
[12] This is satisfied by the evidence of Dr Barakat. T-documents at 138-141.
In rating this impairment, the Secretary allocates 5 points, explaining that he does so “consistent with Professor Pile’s report dated 4 March 2021”.[13]
[13] Secretary’s Statement of Facts, Issues and Contentions (SFIC) at 5.2(a) footnote [19].
However, Professor Pile is a “Staff Specialist Rheumatologist” and not an expert in respiratory medicine. In his assessment of the Respondent he has noted,
“Table 1: He [the Respondent) has mild impact from activities requiring exertion such as washing a car, undertaking household activities.”[14]
[14] Medical Report by Professor Kevin Pile dated 4 March 2021 (Professor Pile Report) at 2.
By contrast, Dr Dias, a Consultant Occupational Physician, who was asked by the Secretary to review all of the Respondent’s medical reports. He concluded:
“With respect to Mr Gatley’s conditions of sarcoidosis and emphysema, in my opinion, Mr Gatley qualifies for 10 points, under Table 1 of the impairment tables (Social Security Act 1991). Mr Gatley’s condition of emphysema in particular, causes frequent shortness of breath and fatigue whilst performing day to day activities and impacts upon day to day household activities and prolonged walking. He is able to use public transport and walk without the assistance of another person (but with the assistance of a walking stick) and would be able to perform work related tasks of a clerical, sedentary or stationary nature, in relation to his diagnosed conditions of sarcoidosis and emphysema. As these conditions are fully diagnosed, treated and stabilised during the qualification period, in my opinion, Mr Gatley’s conditions of sarcoidosis and emphysema qualify for 10 points under the impairment tables.”[15]
[15] Dr Dias Report at 11. Emphasis in original.
At the other end of the scale, the JCA determined that the appropriate rating for this condition was NIL because “objective evidence of the degree of Mr Gately’s impairment was not available for the current assessment”.[16]
[16] T-documents at 157.
The evidence available in the Tribunal documents and as presented to the Tribunal allowed it to be more than satisfied that the Respondent:
·experiences frequent shortness of breath and/or fatigue when performing day to day activities around the house;
·is unable to walk “far” outside the house and needs to drive or get other transport to local shops;
·is able to use public transport (e.g. board a train using a walking ramp);
·can walk around a supermarket (for a short time);
·can perform work-related tasks of a sedentary nature;
·can perform light day to day household activities (washing dishes, folding laundry); and
·walk short distances, e.g. from a car to the entrance of a shopping centre.
As such, the Respondent qualifies for an impairment rating of 10 points and the expert opinion of Dr Dias, commissioned by the Secretary to undertake such an evaluation, should be accepted in preference to any other. Because the Respondent can undertake some of the activities listed in the 20-point scale, his level of impairment does not reach beyond 10 points.
Table 3 – Lower Limb Function
The Tribunal turns to consideration of the issues related to the Respondent’s mobility and the lower limb conditions of seronegative arthritis and bilateral hip pain. These impairments apparently go back to approximately 5 June 2018 when the Respondent underwent a hip-replacement operation which, rather than give him relief apparently resulted in damage to his sciatic nerve and thereafter considerable pain and distress.
Impairments in this area are to be assessed on Table 3 – Lower Limb Function which provides:
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame) i.e. the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
It should be noted by this Tribunal that the reference to “without assistance” in the above Table means without assistance from a human being. Assessment in this regard does not consider the use of equipment or assistive technologies.[17]
[17] Summers and Secretary, Department of Social Services [2014] AATA 165 at [16]-[17].
Again, there is disagreement among the various medical practitioners and assessors as to the correct impairment rating to be assigned:
·the JCA was satisfied, after considering both matters of self-reporting and the evidence from Drs Barakat and Vu that the appropriate rating was 10 points;[18]
[18] T-documents at 157.
·Professor Pile noted in relation to Table 3 that the Respondent “has a left total hip replacement with mild impact on activities such as walking to local facilities or around shopping malls” which the Secretary interprets as meaning only 5 points should be awarded for this impairment.[19]
[19] Secretary’s SFIC at 6.25.
·Dr Dias, commissioned by the Secretary, assigns a total of 10 points after finding that:
oMr Gatley says he is unable to walk far outside of his home and is unable to stand for more than two to three minutes;
ohe requires a walking stick if he has to walk for more than five minutes;
ohe can move around independently using a walking stick;
ohe is capable of standing up from a sitting position without assistance from someone;
ohe can use public transport with a walking stick without assistance from someone.[20]
·The AAT1 considered evidence given by the Respondent together with reports from the JCA and Drs Barakat and Vu. It concluded:
23. The tribunal then assessed Mr Gatley’s functional capacity. During the hearing Mr Gatley reported he has difficulty bending at the hip due to pain in his left leg. He reports needing assistance to get in and out of a chair or a car. He reports needing to keep his left leg straight while sitting and usually stays in bed due to pain. Mr Gatley told the hearing he has had seronegative arthritis for many years and has required a total hip replacement at a young age (48 years old) due to severe arthritis.
24. Mr Gatley told the hearing his whole leg seizes up when he is resting or sitting down and he has electric shock pain from his toes and muscle twitching when he tries to walk far or when he stands up from sitting.
25. The tribunal is satisfied this condition was fully diagnosed, fully treated and fully stabilised at the date of claim. Mr Gatley’s seronegative arthritis, bilateral hip pain and THR have affected his overall independence in the activities of daily living. They have caused significant impairment of his lower limb function and these symptoms cause an overall effect of severely reduced mobility. The appropriate table is thus Table 3 – Lower Limb Function – and the appropriate impairment level is severe and 20 impairment points are assigned.[21]
[20] Dr Dias Report at 11.
[21] T-documents at 7-8.
The Secretary contends that the assessment made by the AAT1 is flawed because it relied on “self-reported functional impact and overlooked the need for corroborative evidence of functional impact.” [22]
[22] Secretary’s SFIC at 6.28.
The evidence given before this Tribunal was to the effect that the Respondent can undertake some of the activities which are listed in the 20-point Table such as walking around a shopping centre, walking from a car park or standing up from a sitting position. The Tribunal accepts that these activities may involve some pain or discomfort to the Respondent, but they are not activities which he is actually incapable of performing.
As such, the Tribunal finds that, consistent with the report of Dr Dias and on the basis of the evidence before it, the correct rating for the respondent on Table 3 is 10 points.
The Tribunal thus concludes that the Respondent rates 20 points, cumulatively, on the Impairment Tables. The requirements of paragraphs 94(1)(a) and (b) are thus met.
CONTINUING INABILITY TO WORK
The third limb of subsection 94(1) requires that an applicant who has been assessed with 20 points on the impairment tables – where those 20 points have been achieved cumulatively (and not on one single table which would cause them to be rated as a “severe” impediment)[23] must demonstrate that they have a “continuing inability to work”.
[23] Social Security Act1991 (Cth) (Act) s 94(3B).
The term continuing inability to work is defined in subsection 94(2) of the Act as follows:
(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)—the person has actively participated in a program of support within the meaning of subsection (3C); 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.
The term “work” is defined in subsection 94(5) of the Act, as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and that exists in Australia, even if not within the person's locally accessible labour market.
Dr Dias was commissioned by the Secretary to undertake an assessment of the Respondent for the specific purpose of assessing his eligibility for the DSP. The formal Brief to Dr Dias posed a series of questions, numbered from (a) to (m) in paragraph 32 of the brief. Two of the questions were posed in the following terms:
“(l) Do Mr Gatley’s functional impairments, arising solely from conditions that were FDTS, prevent him from:
(i) undertaking work of at least 15 hours per week within the next 2 years
from the end of the qualification period? or
(ii) undertaking a training activity?
(m) Assuming Mr Gatley is not prevented from undertaking a training activity, would such training activity equip him to work at least 15 hours per week in any job available in Australia, within the next 2 years from the end of the qualification period, having regard only to the impairments arising from his physical condition/s?
For the purposes of this question please note:
“Work” means work of at least 15 hours per week at or above award wages, available anywhere in Australia, even it not available in the person’s local labour market; and
“Training activity” means education, pre-vocational training, vocational training, vocational rehabilitation or work-related training (including on-the-job training) whether or not it is specifically designed for people with physical, intellectual or psychiatric impairments.
Please also note that when assessing Mr Gatley’s capacity to undertake “work” (within the meaning of that special definition in the Social Security Act 1991) or a training activity, only the impact of impairments arising from his FDTS conditions may be considered.”[24]
[24] Brief to Dr Dias from Litigation and Information Release Branch, Legal Services Division, Services Australia dated 19 February 2021.
Dr Dias’ report in response states:[25]
“Therefore, based on my assessment of Mr Gatley on 7 April 2021, and after appraisal of the available evidence, in my opinion, in the context of the qualification period (21 March 2019 till 20 June 2019) Mr Gatley has a total impairment rating of 20 points in the context of his application for the Disability Support Pension.
With respect to Mr Gatley’s continuing inability to work, in my opinion, Mr Gatley does qualify, as a result of his claim conditions, for a continuing inability to work during the qualification period and thereafter. Mr Gatley has reported chronic symptoms of pain, stiffness and discomfort, affecting his right and left hips, chronic postoperative leftsided sciatica and chronic shortness of breath on exertion. From a functional perspective, he struggles with any tasks that involve prolonged walking, prolonged standing, prolonged sitting or prolonged driving. He would struggle with any tasks involving bending and twisting of the torso, kneeling and squatting, or any task involving physical exertion. In my opinion, Mr Gatley’s chronic symptomatology, reduced functional tolerances and reliance on heavy analgesia, would preclude him from being able to work 15 hours per week, or take part in an educational or training activity leading to independent employment. Mr Gatley’s conditions leading to his permanent impairment are chronic, with a poor prognosis for improvement and therefore, in my opinion, Mr Gatley does qualify for a continuing inability to work, as per the Social Security Act 1991.”
[25] Dr Dias Report at 12 and 14-15. Emphasis in original.
With reference specifically to questions (l) and (m) he opines:
“(l) Do Mr Gatley's functional impairments, arising solely from conditions that were FDTS, prevent him from:
(i) undertaking work of at least 15 hours per week within the next 2 years from the end of the qualification period? or
(ii) undertaking a training activity?
Yes, in my opinion Mr Gatley’s functional impairments arising solely from conditions that were FDTS do prevent him from undertaking work of at least 15 hours per week within the next two years from the end of the qualification period or undertaking a training activity. Please refer to my answer to the question above, relating to Mr Gatley’s continuing inability to work during and after the qualification period.
(m) Assuming Mr Gatley is not prevented from undertaking a training activity, would such training activity equip him to work at least 15 hours per week in any job available in Australia, within the next 2 years from the end of the qualification period, having regard only to the impairments arising from his physical condition/s?
…
In my opinion, Mr Gatley’s FDTS conditions have prevented him from undertaking training activities that would equip him to work 15 hours per week in any job role available within Australia within two years from the end of the qualification period. Mr Gatley’s chronic symptomatology, reduced functional tolerances and reliance on heavy analgesia would, in my opinion, preclude his ability to sustainably undertake training activities, that would lead to his employment on the open labour market as outlined above.
Dr Dias is the Secretary’s appointed expert witness, briefed by him and focussed upon the specific questions posed by him. The Secretary cannot be allowed to crab-walk away from the findings of its own appointed expert. Indeed, the Secretary himself concedes that Dr Dias’ findings mean that the Respondent satisfies the requirements of paragraphs 94(2)(a) and 92(2)(b) of the Act.[26]
[26] Secretary’s SFIC at 7.21 and 7.22.
The problem for the Respondent arises from the intervening operation of paragraph 94(2)(aa) which requires active participation in a Programme of Support, itself defined as one as set out in a “legislative instrument” made by the Minister for such a purpose (paragraph 92(3C)).
In this instance, that is the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination). It relevantly provides:
7 Requirements for active participation
(1) A person has actively participated in a program of support if the person satisfies the following requirements:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
(b) subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c) subsection (6) is satisfied in relation to the person and the program of support.
Requirements for period of participation in program of support
(2) This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note: A period during which a person does not participate in a program of support is not to be counted (see section 8).
(3) This subsection is satisfied in relation to a person and a program of support if:
(a) the duration of the program of support was less than 18 months; and
(b) the person completed the entire program during the relevant period.
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the end of the relevant period, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
The relevant starting period for any form of programme activity is taken to be from the date of the initial DSP application[27] (21 March 2019) and hence stretching back to 21 March 2016.
[27] Act s 5(5). Rekic and Secretary, Department of Social Services [2015] AATA 369 at [31]-[32].
The records of the Department of Employment, Skills, Small and Family Business disclose that, during that period (or indeed, any period) the Respondent has not participated in any programme of activity.[28]
[28] T-documents at 209-210.
There are some exceptions regarding the POS requirements set out in subsections 7(3), 7(4) and 7(5) of the POS Determination, however none of them applies to the circumstances of this Respondent.
The Tribunal also notes that both the Respondent and Ms Kervin who the Tribunal accepts were witness of complete honesty and reliability, gave sworn testimony to the fact that:
(a)when they had attended at the Centrelink office in order to lodge the initial online DSP application they were never informed about, or had drawn to their attention, any matters related to any Programme of Support or related requirements; and
(b)for a period of some two years, while the Respondent was in receipt of Jobseeker payments had, every three months, supplied to the Department, medical certificates attesting to his inability to work.
The Social Security Guide (at 3.6.2.112) states:
“Impairment rating & CITW
To qualify for DSP a person must have an impairment rating of at least 20 points and have a CITW. Both aspects are of equal importance.
Explanation: People who have an impairment rating of 20 points or more, including those with severe impairments, are not necessarily incapable of working. Their medical impairment/s may cause difficulties in many work situations, but depending on their individual circumstances, coping mechanisms, training, and reasonable adjustments, they may be able to undertake work of 15 hours or more per week, within the next 2 years.”
Dr Dias’ report suggests clearly that the Respondent is not capable of undertaking 15 hours of work or more per week within the next two years (supra).
Nevertheless, the fatal impact of paragraph 94(2)(aa) looms over the Respondent.
SUBSEQUENT EVENTS
During the course of the hearing the Respondent advised that he had subsequently made a further application for the DSP and that this had been granted, effective from 12 September 2021.
The Tribunal sought further information on this matter and expresses its appreciation for the efforts made by the Secretary’s representative to facilitate the provision of this information.
What that disclosed was that the Respondent had in fact made a new DSP application and had been assessed once again by a Job Capacity Assessor and another independent medical practitioner. Both the JCA and the doctor assessed the Respondent as achieving an impairment rating of 10 points on each of Tables 1 and 3, for a cumulative assessment of 20 points.
The JCA then noted that the Respondent had, since the date of his first DSP application, been enrolled in a POS where he had only completed 329 days of active engagement. This is, of course, well short of the “18 months” required by subsection 7(2) of the POS Determination. However, the JCA notes that:
“Although Mr Gatley has only completed 329 days in a Program Of Support, Dr Dias (13.04.2021) reported Mr Gatley has a continuing inability to work; he struggles with any tasks that involve prolonged walking, standing, sitting or driving. He would struggle with any tasks involving bending and twisting of torso, kneeling and squatting, or any tasks involving physical exertion. With his reliance on heavy analgesia he would be precluded from working 15 hours per week.”[29]
[29] Job Capacity Assessment Report dated 21 August 2021 at 12.
On this basis the JCA determined that “[a]ctive participation in a program of support criteria are met.”[30]
[30] Ibid.
On the basis of that determination the Respondent was granted DSP, with the departmental evidence indicating that it was paid effectively from 12 June 2021, the date of the (new) claim lodgement.
It is ironic that both the second JCA and the second independent medical examiner concluded that the Respondent qualified for 20 (cumulative) points on the Impairment Tables relying, as each did, essentially on exactly the same medical information which was available at the time of the first application.
It is equally ironic that the second JCA relied upon exactly the same assessment provided by Dr Dias, as to the Respondent’s effective incapacity to work, to specifically waive a large part of the POS requirement.
In other words, it appears, pima facie, that the Respondent was as qualified for the DSP in March 2019 as he was in June 2021, save for the fact that he was not enrolled (regardless of actual participation/completion) in a POS.
This fact alone proves fatal to the application for any payment of DSP back to the 21 March 2019 claim because of the paragraph 94(2)(aa) requirement of the Act.
Once again, the strict liability provisions of the Act trump any sense of justice or fairness and there is (properly) no capacity for the Tribunal to ignore them.
DECISION
The decision under review is set aside and substituted with a decision that the Respondent (Mr Gatley) was not eligible for the Disability Support Pension in relation to the claim made on 21 March 2019.
I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.....................................[sgd]...................................
Associate
Dated: 9 November 2021
Date(s) of hearing: 25 October 2021 Solicitors for the Applicant: Dr S Thompson, Sparke Helmore
0
4
0