Geoffrey Jenkins and Secretary, Department of Social Services

[2015] AATA 212

[2015] AATA  212

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/6337
Re	Geoffrey Jenkins
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms S Taglieri, Member
Date	31 March 2015
Place	Hobart

For the reasons given orally at the conclusion of the hearing of this matter, The Tribunal affirms the decision under review and the application is dismissed.

........................................................................

Ms S Taglieri, Member

CATCHWORDS

Disability support pension; whether conditions in the spine result in 20 points impairment; 20 points found; whether continuing inability to work satisfied; not satisfied as requirement for participation in a program of support not met.

LEGISLATION

Social Security Act 1991, sections 94(1)(a),(b),(c),(d),(e), 94(2)(b)

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

WRITTEN REASONS FOR ORAL DECISION

Ms S Taglieri, Member

10 April 2015

1. Mr Jenkins applied for a Disability Support Pension on 24 April 2014. The Respondent refused the application on the grounds that he did not meet the requirements of the Social Security laws. Namely, that his medical conditions did not comprise of 20 impairment points under the 2011 Impairment Tables and the Continuing Inability to Work test.

2. An application to review was made to the Social Security Appeals Tribunal by Mr Jenkins and that was dismissed, it finding that Mr Jenkins medical conditions did not meet the 20 impairment point requirement or the Continuing Inability to Work test.  Mr Jenkins has now applied to this Tribunal seeking further review of the decision to refuse his application for Disability Support Pension. The only ground stated in his application filed on 8 December 2014 is that he is "not happy with the decision made".

3. It is not surprising that Mr Jenkins was not happy with the refusal of his application or the decision of the Social Security Appeals Tribunal, given the evidence about his conditions and the effect they have on his capacity for work and activities generally. The law concerning entitlement to Disability Support Pension however has strict requirements and must be applied.

4. The documents and evidence before the Tribunal demonstrate that at the time he applied to the Respondent for the pension, he had four medical conditions, which significantly limited his work capacity. They were and are:

   A lumbar spine condition

   A cervical spine condition

   Carpel tunnel syndrome

   Depression, apparently diagnosed by his GP, but not verified by a psychologist.

5. Section 94 of the Social Security Act 1991 provides the eligibility requirements for Disability Support Pension. The Respondent's central argument is that Mr Jenkins does not meet the requirement of section 94(1)(b), that he have 20 points or more under the Impairment Tables 2011. Therefore, it argues that the decision to refuse Disability Support Pension was correct.

6. The first issue I must therefore consider is whether Mr Jenkins does or does not meet the 20 points requirement for the medical conditions he had when he applied for the disability support pension in April 2014.  If he does not, despite his difficult circumstances resulting from the medical conditions, this application must fail.

   DO THE MEDICAL CONDITIONS SUFFERED BY MR JENKINS ATTRACT 20 POINTS UNDER THE IMPAIRMENT TABLES?

7. I have carefully considered the evidence contained in the reports of Dr Barnes which are before the Tribunal and also the evidence given by Mr Jenkins. I found Mr Jenkins to be an honest witness and I accept his evidence as reliable.

8. I am satisfied that the conditions relating to the lumbar spine and cervical spine are medical conditions that must be taken into account for the purpose of assigning impairment points under the 2011 tables, as they are fully diagnosed, fully treated and fully stabilised. The relevant table for assigning impairment points to these conditions is Table 4, relating to spinal function. The evidence before the Tribunal warrants a finding that Mr Jenkin's lumbar and spinal conditions attract 10 points.  The evidence relating to the activities he can perform and those he cannot perform, simply do not permit allocation of 20 points, which is the next available number of points to allocate.  The evidence about Mr Jenkins' conditions do not correspond to the degree of severity of functional impairment described in Table 4, for 20 points.

9. The tables do not permit me to allocate points to the lumbar and cervical spine conditions separately. However, if the conditions in the spine cause impairment in the upper or lower limbs, it is permissible to allocate impairment points under Table 3 and Table 2.

10. There is evidence that the lumbar spinal condition interferes with lower limb function. Dr Barnes and Mr Jenkins both gave evidence to the SSAT about that and in particular that he had difficulty walking over 1km and that Mr Jenkins had a standing tolerance of about 10 minutes. This evidence appears to conflict with the content of the Job Capacity Assessor's report dated 19 June 2014 at page 62 of the T Documents. However, I accept the oral evidence given by Mr Jenkins that the Job Capacity Assessor took his statements out of context and misunderstood what he had told him.  I therefore agree that 5 impairment points ought to be allocated under Table 3, for lower limb impairment.

11. The Social Security Appeals Tribunal did not consider or allocate impairment points under Table 2 for upper limb impairment.  I am satisfied on the evidence given by Mr Jenkins, which is sufficiently corroborated by Dr Barnes's report of 27 May 2014 (pages 56 and 57 of the T documents), that 5 points should be allocated to Mr Jenkins for upper limb impairment.

12. The materials before the Tribunal also refer to a carpel tunnel condition. As admitted by Mr Jenkins, this condition was not fully treated and stabilised when he applied for the Disability Support Pension in April 2014. As such, I cannot allocate any impairment points for it as at that time, by virtue of what is prescribed in the Rules applicable to the Impairment tables.

13. The medical condition of Depression is diagnosed by Dr Barnes, but there is no other medical or psychologists opinion about it.  Table 5 of the Impairment tables relating to mental function, provides that a diagnosis of depression can only attract impairment points if the diagnosis is by either a psychiatrist, or another doctor and a psychologist.  This requirement is not satisfied in Mr Jenkins' case as the evidence before the Tribunal is that Dr Barnes alone had made the diagnosis around the time Mr Jenkins applied for the Disability Support Pension in 2014. I am unable to assign any impairment points for this condition.  Even if were able to, I would not do so, as the evidence does not satisfy the criteria for allocation of the minimum points for a mild functional impact on activities.

    CONCLUSION

14. In conclusion, the evidence warrants allocation of a further 5 impairment points, in addition to the 10 points for the spine and 5 points for the lower limbs. I find that Mr Jenkins has a total of 20 impairment points for the medical conditions of lumbar spine injury and cervical spondylosis, He therefore does meet the requirements of section 94(1)(b) of the Social Security Act.

15. Despite this conclusion, eligibility for the Disability Support Pension also requires section 94(1)(c) of the Social Security Act 1991 to be satisfied. In particular, on the facts of this case, what is required is that Mr Jenkins must have a demonstrated continuing inability to work.

16. Section 94(2) of the Social Security Act 1991 provides for what must exist for a person to satisfy the Continuing inability to Work requirement. Because Mr Jenkins does not have a severe impairment (meaning 20 impairment points under a single Table), he must have participated in a program of support for 18 months during the three years prior to applying for the Disability Support Pension.

17. Mr Jenkins frankly admitted that he had not participated in a program of support for 18 months prior to applying for the pension. While he did not know that he had to do so, this is not a consideration I can take into account.  As such, Mr Jenkins is not a person who has satisfied the Continuing inability to work requirement.

18. The correct and preferable decision according to law is that the decision to refuse his application for Disability Support Pension was the right decision. Whilst this may seem unfair to Mr Jenkins because he suffers from genuine medical conditions that I accept have a marked effect his life and activities, I must apply the law and that unfortunately means that the decision under review must be affirmed.

19. The application is dismissed and the decision under review affirmed.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member

........................................................................

Administrative Assistant

Dated 10 April 2015

Date(s) of hearing	31 March 2015
Applicant	In person
Solicitors for the Respondent	Mr Brian Sparkes, Program Litigation and Review Branch