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

[2019] AATA 2117

Harland and Secretary, Department of Social Services (Social services second review) [2019] AATA 2117 (17 July 2019)

Division:GENERAL DIVISION

File Number:           2018/7667

Re:Gregory Harland

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Mr S Evans, Member 

Date:17 July 2019

Place:Sydney

The decision under review is affirmed.

.........................[sgd].........................

Mr S Evans, Member 

Catchwords

SOCIAL SECURITY – disability support pension – whether applicant qualifies for disability support pension pursuant to section 94 of the Social Security Act 1991 – permanent medical conditions – applicant’s impairments total twenty points under the Impairment Tables – whether applicant participated in a program of support in the three years prior to lodging his claim for DSP – whether applicant has a continuing inability to work – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014

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

REASONS FOR DECISION

Mr S Evans, Member 

17 July 2019

1. 1.        The Applicant, Mr Gregory Harland, seeks a review by this Tribunal of a decision made on 12 December 2018 by the Social Services and Child Support Division of this Tribunal (AAT1) to uphold a decision of the Secretary, Department of Social Services (the Respondent) to reject the Applicant’s claim for the Disability Support Pension (DSP).

2. 2.        Mr Harland’s claim for the DSP was lodged on 16 January 2018. The initial decision to reject that application was made on 20 April 2018 and affirmed by an authorised review officer (ARO) on 6 August 2018. 

3. 3.        Mr Harland appeared at the hearing on 4 June 2019 in person.  As he is unable to read or write he could not refer to documents. He was self-represented and provided what proved to be credible and accurate testimony from memory.

4. 4.        For the reasons that follow, the decision under review is affirmed. 

   BACKGROUND

5. 5.        Mr Harland left school at 14 years and 7 months of age. 

6. 6.        Mr Harland was injured in a workplace accident, and was in receipt of DSP from 15 August 1991 through to 25 January 2017 after Mr Harland began receiving periodic compensation payments. 

7. 7.        In an Australian Government Health Services Medical Officer report from 1996 the examining Medical Officer, Mr Bell, writes: 

   This [then] 42 year old man (Mr Harland) last worked in 1988 as a labourer in an abattoirs. He was retrenched when the company closed down. He has no other work experience or training and is illiterate. He has been on DSP since 1991.

   ….

   He remains unfit for all full time employment for the foreseeable future, but may be capable of some light, semi-sedentary part time work which does not require repeated bending, lifting, pushing or prolonged sitting and standing. He is unlikely to benefit from vocational rehabilitation.

8. 8.        Mr Harland has not worked since 1988 and remained in receipt of DSP until a preclusion period commenced as a consequence of ‘periodic compensation payments’. 

9. 9.        The preclusion period was the consequence of Mr Harland being in receipt of compensation payments which he attributes to ‘legislative changes to WorkCover in 2013’. 

10. 10.      During this period Mr Harland reports receiving regular ‘weekly wages’ which he was ‘only entitled to… until 31/12/17’.

11. 11.      Following the cessation of periodic compensation payments and the end of the resulting preclusion period Mr Harland sought to re-apply for DSP and submitted an application on 16 January 2018. 

12. 12.      It is this application for DSP which is being considered by the Tribunal. 

13. 13.      The application was rejected by Centrelink because Mr Harland had not participated in a program of support (POS) in the three years prior to the claim and he was also assessed to have a work capacity with interventions within two years of 15-22 hours per week. 

14. 14.      Mr Harland sought to have the decision reviewed by an authorised review officer who affirmed the decision, again because he had not participated in a POS. 

15. 15.      Mr Harland then sought to have the matter reviewed before the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) where the decision was again affirmed.

16. 16.      Mr Harland subsequently lodged this decision for review with the General Division of the Tribunal. 

    The Disability Support Pension

17. 17.      The application for DSP was made on 16 January 2018 and that triggers the assessment process to determine the eligibility of Mr Harland for the DSP which must take place as of the date of the claim or within 13 weeks thereafter (the qualification period).

18. 18. To qualify for DSP, Mr Harland must satisfy the criteria in section 94(1) of the Social Security Act 1991 (the Act), which requires him to show he has a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (the Impairment Tables Determination); and a continuing inability to work as defined in subsection 94(2)(aa) of the Act.

19. 19. For Mr Harland to qualify for DSP, he needed to satisfy these criteria during the qualification period commencing from when he applied for disability support pension on 16 January 2018 or within the following 13 weeks in accordance with section 42 of Schedule 2 to the Social Security (Administration) Act 1999 (the claim period). 

    Rules for assigning impairment ratings:

20. 20.      The Impairment Tables are found in the Impairment Tables Determination of the Act.

21. 21.      The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

22. 22.      An impairment rating can only be assigned to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4) of the Impairment Tables Determination.

23. 23.      When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the  Impairment Tables Determination.

24. 24.      Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.

25. 25. The Secretary concedes, and based on the information before it the Tribunal agrees, that Mr Harland suffers medical conditions that cause impairment and therefore he satisfied section 94(1)(a) of the Act during the qualification period.

    CONSIDERATION

26. 26.      Medical reports in the T-documents confirm that Mr Harland has a spinal disorder, neck disorder, lower limb disorder, shoulder and upper arm disorder and anxiety. 

27. 27.      With the exception of anxiety, all these conditions are accepted by the Secretary as permanent, having been fully diagnosed, treated and stabilised, likely to continue for at least two years and unlikely there will be any significant functional improvement within that time.

28. 28.      I will consider each condition in order to determine the key questions before the Tribunal.  Specifically: 

    i.(i)        Are Mr Harland’s impairment(s) capable of being assigned 20 points or more under the Impairment Tables during the relevant period? 

    ii.(ii)       If Mr Harland’s impairment(s) is/are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table making it a severe impairment? 

    iii.(iii)       If Mr Harland did not have a severe impairment during the qualification period, but his impairment(s) nevertheless attract a rating of 20 points or more, does he have a continuing inability to work or has he participated in a POS?

    Anxiety and mental health conditions

1. 29.       There is sparse evidence about Mr Harland’s mental health for the Tribunal to consider. 

2. 30.      A report by psychiatrist Dr Graham George provides a comprehensive analysis of Mr Harland’s mental state based on an assessment conducted on 6 December 2016. 

3. 31.      This report is oriented towards work related psychiatric injuries, but nonetheless Dr George does not diagnose Mr Harland with any psychiatric disorder, noting only that he may have alcohol use disorder which manifests through binge drinking on weekends and as a consequence of excessive drinking in the past.

4. 32.      Mr Harland was seen by a psychiatrist, Dr Andy Ang, on 2 March 2018 who made specific recommendations to treat Mr Harland’s anxiety.

   Psychologist to work with him on basic techniques of anxiety management including Mindfulness based therapy… SSRI such as Sertraline to reduce the intensity of his anxiety.

5. 33.      I note that this was within the qualification period. 

6. 34.      Mr Harland, however, had not commenced any treatment in relation to his mental health during the qualification period. The Secretary contends, and the Tribunal agrees, that consequently Mr Harland’s anxiety cannot be found to be fully diagnosed, treated and stabilised.

7. 35.      This being the case, Mr Harland’s anxiety and mental health disorders are not eligible to be assigned an impairment rating. 

   Spinal condition, neck disorder, lower limb condition and shoulder condition

8. 36.      Whilst these are separate conditions, the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which a rating may be assigned. It is the functional capacity which must be assessed – the impairment of a person must be assessed on the basis of what the person can, or could do in accordance with subsection 6(1) of the Impairment Tables Determination.

9. 37.      I will consider each condition and its functional impact on Mr Harland and appropriate impairment rating. 

   Spinal condition

10. 38.      Mr Harland has a work related lower back injury dating back from 1988. The JCA Report states the diagnosis as:

    Documented as lower back injury and has dorsal kyphosis on the Medical Report (MR) … Documented on CT lumbosacral spine 912/4/2016) as vertebral alignment essentially normal.  Low level facet joint degenerative change present at all levels.  


11. 39.      It describes the symptoms as:

    Chronic back pain and stiffness, with limited range of movement of the spine, sitting is reduced to no more than 30-45 minutes, requiring frequent posture changes, has difficulty with bending to knee level, and he can self-care (dress and shower) independently.

12. 40.      At the hearing Mr Harland testified that his lower back pain causes him difficulty sleeping.

    Neck Condition

13. 41.      Mr Harland also has a neck condition which was sustained in a road traffic accident in 1995 and a further neck injury in 2004, again as a result of a motor vehicle accident. 

14. 42.      The JCA report states: 

    The client reported the following symptoms: neck pain and stiffness, with limited range of movement in all directions (unable to look over shoulder) and inability to sustain overhead activities.

    Shoulder condition

15. 43.      Mr Harland injured his right shoulder in a workplace accident in 1987 and as of 2016 it was noted that Mr Harland was restricted in moving this shoulder. Dr Jeyaprakash writes that Mr Harland’s ‘right shoulder … has mild functional impact on activities using hands or arms’.

16. 44.      The JCA report states: 

    The client reported the following symptoms: constant right shoulder pain and weakness with limited range of movement (unable to lift to shoulder head or height), difficulty with carrying weights of more than 2 kilograms able to self-care (dress and shower) independently. 

    Lower limb condition

17. 45.      Mr Harland has a total right knee replacement and a left hip condition. 

18. 46.      At the hearing Mr Harland provided further details about this condition. He had a full knee replacement in November 2017, which required further hospitalisation and continues to cause pain when, for example, stepping up gutters and ramps.  He is able to walk around a shopping mall or supermarket using a walking stick. 

19. 47.      The JCA report states: 

    The client reported the following symptoms: chronic right knee and left hip pain, walking is reduced requiring frequent rest breaks, standing is limited to 5 minutes, has difficulty with using stairs requires assistance, and uses a walking stick when walking independently.

    The client was observed to walk at a slow pace from the foyer of Centrelink to the interviewing room using his walking stick.  He frequently changed postures in the assessment reporting discomfort and pain if seated for long periods.

20. 48.      The Centrelink letter to Mr Harland, ‘Your Review Outcome’, dated 6 August 2018, details clearly the Secretary’s impairment rating for each eligible condition and the reasoning behind the allocation of points for each applicable table.  

    According to medical evidence provided by Dr Jeyaprakash on 13 April 2018, the functional impacts of your lower back injury are chronic back and neck pain with a limited range of movement of your head.  You also have difficulty bending to knee level and are unable to sit in one position for more than 30-45 minutes.

    You advised the Job Capacity Assessor that you experience constant neck and back pain and have difficulty bending to knee level due to back and pain stiffness.  You also disclosed you experience difficulty turning your head to look over your shoulder and moving your head in all directions.  You advised that you are able to sit in or drive a car for at least thirty minutes. 

    A moderate impairment rating has been assigned and I have decided that a rating of 10 points is appropriate under Impairment Table 4 which relates to Spinal Function.

21. 49.      In relation to the Lower Limb injury, the same report concludes: 

    In relation to your right knee injury, the report by Dr Ali Gursel on 12 March 2018, indicates the functional impacts of your condition include chronic right knee and left hip pain and weakness.  You require frequent rest breaks when walking, can only stand up for up to 5 minutes and use a walking stick for stability, requiring assistance with using stairs…

    A moderate impairment rating has been assigned and I have decided that a rating of 10 points is appropriate under Impairment Table 3 which relates to Lower Limb Function. 

22. 50.      The Tribunal considered the application of Impairment Table 2 to Mr Harland’s shoulder condition. It is the case that Mr Harland is able to do up buttons and handle coins which means he fails to meet criteria (b) and (c) and hence does not meet the requisite three of four descriptors required to be eligible for a 5 point rating. 

23. 51.      This being the case, Mr Harland’s total impairment rating is 20 points, that being 10 for the Lower Back Injury and 10 for Lower Limb Function.

24. 52.      Mr Harland’s conditions are long standing and have been corroborated in detail by different doctors’ and specialist reports which have been consistent in explaining his conditions and how they impair his functionality.

25. 53.      Dr Andrew Jordan, a Consultant Rheumatologist, who has been treating Mr Harland since 2014, writes on 4 June 2018: 

    In terms of functional impairment, he [Mr Harland], scores 10 points for spinal function as he is unable to sustain overhead activities and has difficulty turning his head.  He scores 10 points for lower limb function as he cannot walk far out of the house but can use public transport.

26. 54.      Dr Jordan’s report is after the qualification period, but I place significant weight on it as he has been treating Mr Harland for four years and considers each of Mr Harland’s conditions. 

27. 55.      Dr Jordan assigns the same impairment ratings as the Secretary – 10 points for Table 4 (Spinal Function) and 10 points for Table 3 (Lower Limb Function). 

28. 56.      Given the evidence presented, I agree with the Secretary’s determination that Mr Harland’s impairments attract 20 points across two Impairment Tables and meets the requirements of subsection 94(1)(b) of the Act. 

    Issue 2 – Does Mr Harland have a continuing inability to work?

29. 57.      As Mr Harland has a total impairment rating of 20 points, the Tribunal is required to consider whether he has a continuing inability to work during the qualification period. 

30. 58.      As defined in subsection 94(3B) of the Act, an individual has a ‘severe impairment if the person’s impairment is of 20 points or more under a single Impairment Table’.

31. 59.      Because none of Mr Harland’s impairments warrants an individual rating of 20 points, he is deemed not to have a ‘severe impairment’ during the qualification period. 

32. 60.      Consequently, Mr Harland is required to undertake a program of support (POS) in the 36 months prior to his claim for DSP, that being 15 January 2015 to 15 January 2018. Mr Harland has not done so within the relevant period and consequently does not satisfy subsection 94(2)(aa) of the Act and therefore cannot be determined to have a continuing inability to work. 

33. 61.      Based on Mr Harland’s testimony, it is my understanding that Mr Harland had not commenced a POS prior to the application as it was his expectation that he would again be eligible for the DSP when the preclusion period ended. 

34. 62.      It may also be the case that he was unaware that he was required to undertake such a program. 

35. 63.      Given that Mr Harland had been the recipient of the DSP for most of his adult life, that he is illiterate, that he has not worked since 1988 and is physically impaired, Mr Harland’s assumption that he was not required to participate in a program of support was not an unreasonable assumption on his part. I have considerable sympathy for his current circumstances. 

36. 64.      During the hearing, Mr Harland made references to receiving inaccurate or unhelpful advice from some Centrelink staff.  He testified that some staff had indicated he would be eligible for DSP. He has provided the Tribunal with correspondence written on his behalf to the Social Services and Child Support Division of the Tribunal: 

    At no time was I advised of Centrelink Consultants that I would need to reapply for the DSP.  At no time was I advised of needing to participate in any program of support to be eligible.  I have been un-fit for work since 1988 and all medical documentation reports this (both past and current)…. I was given assurances by numerous Centrelink Consultants that my eligibility to the DSP was not going to be an issue.

37. 65.      Beyond Mr Harland’s testimony, and as noted at paragraph 3 above, he proved a reliable witness, there is nothing to suggest that any advice was provided by Centrelink which may have had a material impact on his eligibility for DSP in relation to this application. 

38. 66.      The law is clear that in order to receive DSP in Mr Harland’s current circumstances, he is required to have undertaken a POS during the relevant period. Mr Harland first commenced participation in an eligible program on 22 August 2018, a considerable time after the relevant period.

39. 67.      As there is no doubt that Mr Harland fails to satisfy subparagraph 7(1)(a)(ii) of the POS Determination and the issue is not in contention, Mr Harland also fails to satisfy  subsection 94(1)(c) of the Act, and consequently it cannot be determined that Mr Harland has a continuing inability to work. 

    CONCLUSION

1. 68.      For the reasons set out above, I am satisfied that Mr Harland did not meet the requirements of subsection 94(1)(b) of the Act during the claim period because, even though his impairments were rated 20 points under the Impairment Tables, Mr Harland has not completed a Program of Support.

   DECISION

2. 69.      The decision under review is affirmed.

3. 70.      Nothing in this decision prevents Mr Harland from applying again for DSP and I note he has done so on 8 March 2019.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

...........................[sgd]..........................

Associate

Dated: 17 July 2019

Date of hearing:	4 June 2019
Applicant:	In person
Solicitors for the Respondent:	Mr D McLaren, Department of Human Services