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

[2022] AATA 9

Hodgkinson and Secretary, Department of Social Services (Social services second review) [2022] AATA 9 (6 January 2022)

Division:GENERAL DIVISION

File Number(s):      2020/4889

Re:Gary Hodgkinson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:6 January 2022

Place:Sydney

The Tribunal decides that the decision of the ATT1, dated 6 July 2020, is affirmed.

.............................[SGD]...........................................

Senior Member M Griffin QC

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the Applicant met eligibility requirement for disability support pension – whether the applicant's impairments attract 20 points or more on any one relevant Impairment Table – whether the applicant's impairments constitute a continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth): s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIAL

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

Guide to Social Security Law
Social Security (Tables for the Assessment of Work-Related Impairment for Disability

Support Pension) Determination 2011: Table 1, 10, 12, 14

REASONS FOR DECISION

Senior Member M Griffin QC

6 January 2022

1. The Applicant lodged a claim for Disability Support Pension (‘DSP’) on 23 December 2019. The Applicant’s claim was rejected and ultimately that rejection was affirmed by the Administrative Appeals Tribunal (Social Services and Child Support Division) (‘AAT1’) on 6 July 2020. The Applicant seeks review of the AAT1 decision.

2. The issue in this matter is whether the Applicant was entitled to the Disability Support Pension as at the date of his claim on 23 December 2019, or during the period which was from 23 December 2019 until 23 March 2020.

3. Section 94 of the Social Security Act 1991 (Cth) (‘the Act’) sets out the qualification criteria for DSP.

4. The Applicant is required to show that:

   ·there was a physical, intellectual or psychiatric impairment arising from a fully diagnosed, treated and stabilised medical condition;

   ·an impairment rating of at least 20 points under the Impairment Tables; and

   ·a continuing inability to work including whether the Applicant has actively participated in a program of support prior to lodgement of his claim.

5. The Tribunal is not bound to accept any findings from the original AAT1 hearing and, in fact, this Tribunal will investigate and consider the matter afresh.

   LEGISLATION

6. The relevant legislation is the:

   ·Social Security Act 1991 (Cth);

   ·Social Security (Administration) Act 1999 (Cth)(‘the Administration Act’);

   ·Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’); and

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the POS Determination’).

7. The Guide to Social Security Law (‘the Guide’) sets out Government policy relevant to such claims and it is commonly accepted that the Guide should be applied in the absence of cogent reasons not to follow such policy.

   BACKGROUND

8. The Applicant was 62 years of age at the time of hearing. The Applicant ceased employment due to health reasons in August of 2019.

9. In April 2020, a job capacity assessment was made of the Applicant which detailed a number of health issues. Those health issues eventually became the subject of consideration by AAT1 and are those matters which are considered by this Tribunal.

10. On 9 June 2020, an Authorised Review Officer (‘ARO’) considered the Applicant’s disabilities and assigned 20 points in total to those disabilities but considered that the impairment was not a severe impairment or impairments and did not meet the relevant requirements and therefore, the Applicant did not have a continuing inability to work.

11. The Applicant appealed to the AAT1 on 9 June 2020 and on 6 July 2020 the AAT1, although affirming the decision under review, varied its approach to the consideration of the Applicant’s disabilities. The following is a summary of the findings in relation to the Applicant’s disabilities by AAT1:

    ·Kidney Disorder; Type 2 diabetes – 5 points (Table 1);

    ·Gastrointestinal problems – 5 points (Table 10);

    ·Skin allergies, skin lesions, and dermatitis – 5 points (Table 14);

    ·Diabetic retinopathy and muscular oedema – 0 points (Table 12); and

    ·Sciatica, right knee arthritis and deep vein thrombosis – not fully diagnosed, treated and stabilised.

12. The period during which this Tribunal must consider the Applicant’s conditions and symptoms is from 23 December 2019 to 23 March 2020 (‘the Qualification Period’).

13. The Applicant gave evidence at the hearing (in the course of making submissions which the Tribunal treated as his evidence).

14. The Applicant in these proceedings was unrepresented and during the course of the hearing, conducted himself commendably. The Tribunal required the Respondent to present its case in a comprehensible and non-legalistic way in order for the Applicant to understand the entirety of the Respondent’s position. In the Tribunal’s opinion, there was some apparent reluctance on the part of the Respondent’s representative, evidenced by a combative attitude to the Tribunal, to follow this direction.

15. It is essential in cases where an applicant is unrepresented for the respondent to present its case in a non-legalistic way, using lay terms in order to communicate its position to the unrepresented applicant. This is merely a function of ensuring that the applicant is given a fair hearing. Those who represent respondents in matters where an applicant is unrepresented would do well to remember this. The presentation of the case in simple terms is for the applicant’s benefit, and not for the benefit or edification of the Tribunal.

16. The Applicant confirmed that the evidence which he gave to AAT1 was correct and truthful and added some further aspects to his evidence.

17. The Applicant endured a renal transplant and a condition of Type 2 diabetes, which is relevant to consider during the period under review.

18. Amongst a volume of medical evidence and reports before the Tribunal, the Tribunal notes and takes account of the wide-ranging report of Dr Vucak-Dzumhur, dated 12 December 2019. This is a relevant contemporary report, prepared approximately one week prior to the Applicant’s claim. The Tribunal notes that this report suggests a rapid health decline, although this hearing can only, according to the legislation, be concerned with the qualifying period, from 23 December 2019 to 23 March 2020.

19. The Tribunal will deal with each of the identified disabilities claimed by the Applicant in turn.

    Kidney Disorder; Type 2 diabetes

20. There is a wealth of evidence from a variety of doctors and medical reports confirming the kidney disorder, a kidney transplant, and related diabetes. Furthermore, the Applicant clearly suffers ongoing impairment from these two co-related conditions, the combined effect of which appropriately should be rated together under Table 1. Before the AAT1 on 6 July 2020, it is recorded that the Applicant told that hearing that his condition was ‘well under control’ and that he was able to perform household tasks, use public transport, and walk distances, including attending rugby league matches. On this basis, it is appropriate to consider the impairment a mild impairment, that should attract a rating of 5 points. The condition has been fully diagnosed, treated and stabilised. The ongoing treatment appears to be satisfactory.

    Gastrointestinal symptoms

21. On the evidence, this condition was fully diagnosed, treated and stabilised.

22. The degree of impairment assigned on the evidence is 5 points and the Tribunal considers, according to Table 10, and based upon all of the evidence available, that this is the appropriate rating.

    Skin problems including lesions, dermatitis and allergies

23. The Tribunal considers that this condition, on the evidence, was fully diagnosed, treated and stabilised. On the medical evidence and all other evidence, this condition, which continues to be problematic for the Applicant, was diagnosed under Table 14 with an impairment rating of 5 points. There is no independent specialist dermatologist who has provided evidence of this condition but it is appropriate, the Tribunal considers, that the evidence, such as it is and as described by the Applicant at this hearing, should be assigned an impairment rating of 5 points. There is nothing on the evidence to suggest that any impairment greater than at a level of 5 points should be awarded for this condition.

    Diabetic retinopathy and muscular oedema.

24. This condition, described by the specialist Dr Jabbour in July 2019, together with the other evidence in the hearing, suggests that this condition should not attract any rating other than zero and that the condition, the Tribunal considers, was fully diagnosed, treated and stabilised at the qualification period.

    Sciatica, right knee arthritis and deep vein thrombosis

25. There is a variety of appropriate medical reports provided by practitioners and other evidence of medical imaging X-rays. The Applicant also spoke of this condition relevantly during the qualification period timeframe.

26. It is evident from the material that during the qualification period, these conditions were not fully diagnosed, treated and stabilised.

    Other conditions

27. There are no other relevant medical conditions which this Tribunal considers should be the subject of review, however, the Tribunal notes there was reference to obesity in the material, and referred to by the Applicant during this hearing. It is apparent that this is not a matter which is relevant now to this hearing.

    CONCLUSION

28. In respect of each disability catalogued by the Applicant during the relevant qualifying period, the Tribunal is satisfied that the disabilities cannot receive any more than 15 points in total and therefore the Applicant does not qualify under the legislation and rules for a Disability Support Pension, pursuant to section 94 of the Act.

29. It is therefore not necessary to consider whether the Applicant has a continuing inability to work, pursuant to section 94(1)(c) of the Act. The Tribunal notes that there is insufficient evidence to support the Applicant’s case under section 94(1)(c) in any event.

    DECISION

30. The decision of the ATT1, dated 6 July 2020, is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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Associate

Dated: 6 January 2022

Date of hearing:	8 December 2021
Applicant:	Mr G Hodgkinson
Solicitors for the Respondent:	Mr G Lozynsky, Services NSW