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

[2016] AATA 309

Grundy and Secretary, Department of Social Services (Social services second review) [2016] AATA 309 (10 May 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6215
Re	Maxwell Grundy
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

ORAL DECISION

Tribunal	Senior Member Cunningham
Date	10 May 2016
Place	Hobart

The decision under review is affirmed.

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Senior Member Cunningham

CATCHWORDS

Social Security - disability support pension - failure to meet programme of support requirement - decision under review affirmed

LEGISLATION

Social Security Act 1991 (s. 94)

Administrative Appeals Tribunal Act 1975 (s.37)

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014 ss. 7(2), (3) (4), (5)

REASONS FOR DECISION

Senior Member Cunningham

WRITTEN  REASONS FOR ORAL DECISION

1. The applicant, Maxwell Grundy has sought the review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 7 October 2015 which affirmed a decision of Centrelink not to grant his claim for disability support pension on the basis that he failed to meet the qualification requirements.

2. Mr Grundy’s application was heard by way of video link to the Devonport Magistrates Court. He appeared on his own behalf with the assistance of Mary-Anne Glynn, his psychologist. Brian Sparkes appeared on behalf of the respondent. Mr Grundy gave oral evidence to the Tribunal and the T documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act1975.

3. The issue for this Tribunal to determine is whether Mr Grundy meets the qualification requirements for a DSP in accordance with section 94 of the Social Security Act 1991 during the qualification period. Mr Grundy’s application for DSP was refused on the basis that he failed to meet the requirement that he participate in a program of support for at least 18 months within three years of claiming DSP. Mr Sparkes submitted that whilst Mr Grundy meets the qualification requirement for an impairment rating of 20 points and has a work capacity of less than 15 hours per week, the evidence is that he has not completed a program of support as required by the legislation. He contended that the decision under review should be affirmed.

4. Mr Grundy claimed DSP on 30 April 2015 in which he listed his disabilities as epilepsy, scoliosis, asthma, migraines, high blood pressure, sleep apnoea, dyslexia, functional heart murmur and depression. The conditions listed in the accompanying medical report completed by Dr John Gray on 24 April 2015 reported on Mr Grundy’s epilepsy and depression as having the most impact on Mr Grundy’s ability to function. Migraine, asthma and back pain were listed as other medical conditions that are generally well managed and cause minimal or limited impact on ability to function. There was no confirmation of the diagnosis of depression by a clinical psychologist at the time of the claim or within the qualification period.

5. On the 16 July 2015 a Job Capacity Assessor assessed Mr Grundy as having a total impairment rating of 20 points being 10 points under Table 7 – brain function and 10 points under Table 15 – functions of consciousness both being moderate functional impact from learning disability and epilepsy. The Job Capacity Assessor found that Mr Grundy’s depression was not fully diagnosed treated and stabilised at the relevant time such as to attract an impairment rating. Nor is an impairment rating assessed for Mr Grundy’s conditions of migraine asthma and spinal disorder on the basis that Dr Gray had reported they cause minimal or limited impact on ability to function.

6. The JCA concluded that Mr Grundy did not meet the criteria for an impairment rating of 20 points under Table 15 as he does not experience involuntary loss of consciousness at least once each month (during waking hours) which requires first aid or emergency treatment and he does not experience altered state of consciousness at least once per week. The JCA did not consider that Mr Grundy met the criteria for an impairment rating of 20 points under Table 7 on the basis that he does not require assistance and supervision on a daily basis, he remembers regular routines and tasks, he can concentrate for more than 10 minutes and is not easily distracted from a task.

7. Mr Grundy’s work capacity was assessed by the JCA as between 8 to 14 hours per week which would remain unchanged with intervention. The JCA concluded that Mr Grundy does not meet the program of support requirements as he has not participated in a program of support for at least 18 months within the past three years.

8. The Tribunal heard further evidence from Mr Grundy regarding the impact of his conditions on his ability to function but is not able to conclude that the impacts satisfy the criteria for a severe functional impact under either Table 7 or Table 15. The Tribunal does not agree that there is evidence under Table 15, for a severe functional impact on activities, that Mr Grundy satisfies the criteria under sub-paragraphs (1)(a) (i) or (ii). Whilst the evidence was that Mr Grundy does not hold a driver’s licence due to medical grounds and is unable to attend work for at least 15 hours per week, his evidence confirmed that he is able to perform most activities of daily living between seizure episodes. His main concern is that his food is often burnt because he has forgotten that he has left something on the stove.

9. In the absence of a finding of severe functional impact, Mr Grundy must meet the qualification requirement of having participated in a program of support as required by sub-section 94(3)(c) of the Social Security Act. This subsection refers to the Social Security (Active Participation for Disability Support Pension) Determination 2014. The documentary evidence relating to Mr Grundy’s participation in a program of support is contained at T3 pages 14 – 19. This record indicates that he had two temporary medical incapacity exemptions within the relevant period being from 31 May 2010 to 17 July 2013  and between 10 September 2014 and 18 February 2015..

10. The relevant period is stated in section 5 of the Determination as the period of 36 months ending immediately before the day on which the claim for disability support pension is made. Sub-section 7(2) requires the person to have participated in a program of support for at least 18 months during the relevant period. There is no evidence that Mr Grundy satisfies the exemption provisions of sub sections (3), (4) or (5) in that there is no evidence that he either completed an entire program which was less than 18 months during the relevant period, or that the program of support was terminated before the end of the relevant period because he was solely unable because of his impairment to improve his capacity to prepare for, find or maintain work through continued participation in the program or that at the end of the relevant period, Mr Grundy was prevented, solely because of his impairment from improving his capacity to prepare for, find or maintain work through continued participation in the program. Mr Grundy has not produced any evidence that would satisfy either of the three exemption provisions.

11. It was Mr Grundy’s evidence that he terminated the program of support with Wise Employment Ltd at their suggestion because he intended to undertake education courses and enrol with Abstudy. It is notable that the Determination includes education and training as a relevant matter to be taken into account in assessing the compliance of a program of support.

12. Section 8 states however, that any period during which the person does not participate in the program of support for any reason including any exemption, relief or suspension is not to be counted in determining the 18 month period. After taking account of the periods during which Mr Grundy was temporarily exempted from participation in the program of support, the remaining period that is between 18 July 2013 and 9 September 2014, which is a period of less than 14 months and 18 February 2015, and 30 April 2015 a period of just over two months, together totalling 16 months, is less than the total period of 18 months which is required for program of support participation as provided in section 7 (2) of the determination.

13. On the basis of this evidence it appears that Mr Grundy fails to meet the program of support requirements under the legislation by a period of just some two months which means that he does not meet all of the qualification requirements for DSP under section 94 of the Social Security Act. This is a most unfortunate outcome for Mr Grundy and whilst I am sympathetic to his circumstances, the legislation does not allow me to arrive at any other outcome other than to affirm the decision under review.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Cunningham

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Administrative Assistant

Dated

Date(s) of hearing	10 May 2016
Applicant	In person (Mary-Ann Glynn – Advocate)
Solicitors for the Respondent	Mr Brian Sparkes, Dept of Human Services, FOI and Litigation Branch