Howard Kelly and Secretary, Department of Social Services
[2014] AATA 441
•3 July 2014
[2014] AATA 441
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6601
Re
Howard Kelly
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 3 July 2014 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Applicant in receipt of disability support pension – Request for unlimited portability of disability support pension – Applicant not severely impaired – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 27, 94, 1218AAA
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
3 July 2014
THE APPLICATION FOR REVIEW
This matter is concerned with the disability support pension (“DSP”) which is payable under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act1999 (Cth). Howard Kelly (“the applicant”) has been in receipt of the DSP since 2010. On 12 April 2013, he lodged an undated form entitled “Disability Support Pension Review for Portability” which was completed by his treating doctor,
Dr Gurpreet Sodhi. On 28 June 2013, his claim was rejected by a Centrelink officer and that decision was affirmed, on 7 September 2013, by an authorised review officer and, on 13 November 2013, by the Social Security Appeals Tribunal.
BACKGROUND, LEGISLATION AND ISSUES
The applicant suffers from several conditions from which he experiences functional impairment. He described these as including his back, ankle, knee, hip, shoulder and elbow problems as well as sleep apnoea. Of those, he has two conditions which have been the subject of assessment for the applicant’s DSP. These are lower limb deficiencies and a right shoulder and upper arm disorder.
The qualifications for a DSP are set out in s 94 of the Act. It is not in dispute that the applicant meets those requirements, one of which, as at the date of the applicant’s claim, is that there be an impairment rating of 20 points or more which is calculated under the Impairment Tables[1] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011[2] (“the Determination”) as required by s 94(1)(b) of the Act. There are limits to the extent that the payment of DSP is payable when the recipient is out of Australia. However, the Act allows for unlimited portability of the DSP when certain provisions of the Act apply. In so far as relevant in this matter, the provision reads:
[1] See ss 26 and 27 of the Act.
[2] For the requirement to apply these Tables, which came into force on 1 January 2012, see ss 26 and 27(3) of the Act.
1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a) the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b) the person’s portability period for disability support pension had not ended at the time the event occurred.
(3) The Secretary may revoke the determination if any of the qualifying
circumstances ceases to exist.
(4) A determination under subsection (1) is not a legislative instrument.
(5) In this section:
“work” means work:
(a) that is on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
94 Qualification for disability support pension
…
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
The issue for determination is whether the applicant satisfies all of the requirements set out in s 1218AAA(1) of the Act.
SUBMISSIONS
Mr Nicholas Warren, for the respondent, submitted that the only conditions for which an impairment rating may be given in the applicant’s case are his right shoulder and upper arm disorder and his lower limb deficiencies. He submitted that the appropriate rating for each of those conditions was 10 points, respectively, under Tables 2 and 3 of the Determination. As each of those ratings is below the threshold of 20 points, he submitted that the applicant does not have a severe impairment and that, accordingly, he does not satisfy the requirements of s 1218AAA of the Act. He submitted that the decision under review ought be affirmed.
The applicant submitted that he experiences many limitations in relation to his daily activities. These include matters which involve sitting, standing or driving. The applicant described a limited mobility and submitted that he meets the criteria for severe impairment in the Act and should be granted unlimited transportability for his DSP.
EVIDENCE
The applicant lives in a house which also accommodates two friends who are staying with him. They provide assistance to him in relation to daily household chores such as cleaning and gardening. His house is high set with 13 steps and he is able to negotiate these without assistance. He leaves the house when he has to for such reasons as visiting his doctor or the pharmacy and he tries to use those occasions to visit shops for his household needs. He does this without assistance. He has a car which he rarely drives and, instead, he uses a motor scooter. This enables him to park close to where he wants to go and, thereby, reduce his need to walk longer distances.
The applicant uses a walking stick to assist him in bearing weight when he walks and does so with no other assistance. He spends much of a typical day lying down and is able to position himself so that he is able to use a computer. He is able to utilise its email capacity and can use a pen to write although not for a long period. He is able to rise from a seated position without assistance though he does experience difficulty in such transfers. The applicant does not need assistance with matters of self-care such as using the toilet. He prepares his own meals but limits cooking to once or twice per week. He finds reading to be a waste of time and experiences difficulty with it because of failing vision. The applicant has difficulty raising his right arm above his head, for example, when hanging washing, and he manages this by using his left arm to elevate his right arm.
The applicant has a friend who lives in Thailand and he has stayed with him there for periods of a month at a time. He would like to be able to visit there more often and for longer periods and it is for that reason that he seeks unlimited transportability for his DSP.
CONSIDERATION
The Tables relevant to assessing the applicant’ impairment read:
Table 2 – Upper Limb Function
Introduction to Table 2
· Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
- a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
- results of diagnostic tests (e.g. X-Rays or other imagery);
- results of physical tests or assessments.
· For the purposes of this Table upper limbs extend from the shoulder to the fingers.
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
30
There is an extreme functional impact on activities using hands or arms.
(1) The person is unable to perform any activities requiring the use of both hands or both arms.
Table 3 – Lower Limb Function
Introduction to Table 3
· Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
- a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
- results of diagnostic tests (e.g. X-Rays or other imagery);
- results of physical tests or assessments.
· For the purposes of this Table lower limbs extend from the hips to the toes.
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
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), that is, 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.
30
There is an extreme functional impact on activities using lower limbs.
(1) The person is unable to mobilise independently.
The applicant has been assessed several times in Job Capacity Assessment (“JCA”) reports. The most recent is dated 15 May 2014. In that report, reliance was placed on medical reports from treating doctors Dr Sohdi and Dr Rodney Catton as well as orthopaedic surgeon, Dr Michael Mansfield. In his report, dated 23 April 2014, Dr Catton wrote that the applicant had difficulty getting up out of a chair, walked with a limp and hobbled with a walking stick. On 3 October 2013, Dr Mansfield reported that the applicant was disabled for any employment and that he had difficulty caring for himself. On 20 June 2014, Dr Mansfield described a range of conditions which have not been separately assessed because they have not been fully diagnosed, treated and stabilised.[3] These included medial meniscal tear in the right knee, a hallux rigidus of the right big toe, a peroneal tendinopathy, a medial malleolar impinging osteophytes, Morton’s neuromas of the right foot along with an ulnar nerve lesion and a symptomatic right hip. While not individually assessed, their consequences to the applicant’s upper and lower limb functions are indirectly assessed under Tables 2 and 3, respectively. The
JCA assessor took into account the opinions expressed by Dr Mansfield and Dr Catton in their reports which predated the assessor’s report on 15 May 2014. Having done so, the JCA assessor considered that the appropriate ratings were 10 points under Table 2 and 10 points under Table 3.
[3] As required by Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Part 2 – “Rules for applying the Impairment Tables”
The applicant’s evidence in respect of his functional capacity demonstrates that he: does not have limited movement or coordination in both arms or both hands; does have some but not severe difficulty handling, moving or carrying most objects; does not have difficulty using a computer keyboard; does not have severe difficulty using a pen or pencil; and does not have severe difficulty turning the pages of a book. Those are the descriptors that appear at the 20 point level in Table 2. I am satisfied that the applicant does not satisfy the criteria for 20 points under that Table.
The applicant’s evidence in relation to his lower limbs is that he is not unable: to walk around a shopping centre or supermarket without assistance; to walk from the car park into a shopping centre or supermarket without assistance; or to stand up from a sitting position without assistance. The applicant admitted to experiencing difficulty with those activities but does not need assistance. He does not use public transport, use a wheelchair to move around in, or need personal care assistance to use a toilet. Those are the descriptors that appear at the 20 point level in Table 3. I am satisfied that he does not satisfy the criteria for 20 points under that Table.
I am satisfied that the applicant experiences a moderate functional impact on activities using his upper and his lower limbs such that an impairment rating of 10 points is applicable to him under Tables 2 and 3, respectively. It follows that I am satisfied that he does not meet the descriptors at the 20 points level in either of those Tables.
The requirements in s 1218AAA of the Act are expressed cumulatively so that all elements must be met. The applicant does not meet the terms of s 1218AAA(1)(b) of the Act and does not qualify for unlimited portability of his disability support pension.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
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Associate
Dated 3 July 2014
Date of hearing 23 June 2014 Applicant In person Solicitors for the Respondent Mr Nicholas Warren, Department of Human Services
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