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

[2021] AATA 928

Howlett and Secretary, Department of Social Services (Social services second review) [2021] AATA 928 (21 April 2021)

Division:GENERAL DIVISION

File Number(s):      2019/7258

Re:Mark Howlett

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:21 April 2021

Place:Adelaide

The Tribunal affirms the decision under review.

...........................[Sgnd]................................

Senior Member Dr N A Manetta

Catchwords

SOCIAL SECURITY – applicant injured in car accident and suffers back pain – applicant paid disability support pension – disability support pension cancelled by delegate - whether an impairment rating of 20 points or more exists under Impairment Table 4 – applicant does not attract 20 points - decision under review affirmed

Legislation

Social Security Act 1991 (Cth).

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

REASONS FOR DECISION

Senior Member Dr N A Manetta

21 April 2021

1. This is an application by Mr Mark Howlett seeking a review of a Level 1 decision of this Tribunal dated 11 October 2019. By its decision, the Level 1 Tribunal affirmed an earlier decision taken by a delegate in the respondent’s department on 11 July 2019 to cancel Mr Howlett’s disability support pension under s 80 of the Social Security Act, 1991 (“the Act”).  The delegate, who had reviewed Mr Howlett’s eligibility, decided to cancel the pension because he or she formed the view that Mr Howlett was no longer eligible to receive it.  I understand the review took place because Mr Howlett had made inquiries concerning the “portability” of his pension rights were he to travel overseas. The Level 1 Tribunal agreed with the delegate’s conclusion. 

   TRIBUNAL’S TASK

2. I must determine whether or not Mr Howlett’s dealer’s disability support pension should be cancelled because of a lack of eligibility. Technically, the hearing before me is known as a de novo hearing on the merits.  This means that, hearing the matter afresh on the evidence adduced before me, I may set aside the Level 1 decision under review if that is the correct or preferable decision to reach on the evidence before me, even though there may be no error in the Tribunal’s reasons. Equally, I may affirm the decision under review if that is the correct or preferable decision on the evidence before me notwithstanding the presence of an error in the Tribunal’s reasons. At the hearing before me, Mr Howlett represented himself; Mr Bishop the respondent.

   STATEMENT OF CONCLUSION

3. I have decided to affirm the decision under review. I set out the background facts and my reasons for this decision.

   BACKGROUND FACTS

4. Mr Howlett gave evidence before the Tribunal and called his mother as a witness.  She corroborated the substance of Mr Howlett’s evidence to me.

5. Mr Howlett was born in 1965, which made him 55 at the time of the hearing before me. He did his early schooling in Port Lincoln in South Australia. At the age of 15, he left school and joined his father fishing.  After his father retired, Mr Howlett worked with a friend of his father’s until 1990. He described it as “tough work” in his evidence before me.

6. In 1990, through no fault of his own, Mr Howlett was injured in a car accident. He had stopped his car at an intersection, and it was rear-ended by another vehicle. Mr Howlett said he suffered a hairline spinal fracture and whiplash. I infer this injury led to a successful WorkCover claim.  Mr Howlett found that his work capacity was diminished as a result of the accident; but he also said that he did end up finding work on tuna boats.  I need not set out his work on these boats. It is sufficient to note that he said he spent some seven years with the Lukins, a family well known as a tuna-boat operator in Port Lincoln, and after those seven years, he worked with another company called SEKOL.  Mr Howlett said in his evidence that he was dismissed from SEKOL on 6 June 2006.  He said he tried to find work after that but everyone in the town knew that he had what he called a “dodgy back”.  They were reluctant to employ him.  He resumed WorkCover benefits.

7. Mr Howlett said he received a lump-sum payment from WorkCover in August 2008, which I understand terminated WorkCover’s obligations to him from that point on.  Mr Howlett said he had to wait some 72 weeks after receipt of his lump sum before he could claim a social security benefit.

8. In 2010, Mr Howlett said he registered for unemployment benefit, and then applied for and received a disability support pension. He applied for that that pension on the recommendation of a social security officer, he said.

9. So far as his personal circumstances are concerned, Mr Howlett now lives in Moonta, South Australia. He lives there with his mother who has sold up her Adelaide residence. His mother is now 80 years of age, he said.  Mr Howlett’s father died in 2018.

10.  As I understand his evidence, in 2018 Mr Howlett took a trip to the Philippines and met his life partner there. They have a strong relationship and are planning to marry. He has travelled to and from the Philippines with her.  He has made that air-trip three or four times he said. He said his partner has been obliged to leave Australia periodically given her visa conditions.

11.  Mr Howlett gave evidence that he has driven to Darwin from Moonta in recent times to escape the cold winter months. His partner does not drive, and the trip from Moonta to Darwin takes Mr Howlett some three days. He said that after the trip he must take a large number of painkillers for up to 10 days.

12.  So far as his life in Moonta is concerned, Mr Howlett gave evidence that he assists his mother as best he can. He waters the garden and assists in the shopping. The drive to the local supermarkets takes him some 14 minutes, he says.  He shops in Kadina, which is some 17 km away.  Mr Howlett indicated that he does have the capacity to put his arm above his head, but he does not like to. He said in his evidence that he cannot bend forward but that he does have some strength in his arms as he can lift shopping bags. He is used to loading bags into the car with one hand while leaning on the trolley. Each bag might weigh between three and four kilograms, he said. He can also wheel out the rubbish bin at home.  Mr Howlett said he is able to walk around the block at home, and walk along the beach provided the sand is firm.

13.  Mr Howlett says he finds the winter weather affects him greatly and he becomes more dependent on painkillers to control his back pain. He said he can walk for 30 minutes on a good day. If the family is visiting the city, he will usually sit at a stall while they go and do some shopping.

14.  In cross-examination, Mr Howlett conceded that he can wash his hair with one hand. He also conceded that he takes the shopping bags inside the house after visits to the supermarket.

REASONS

15.  As Mr Howlett is self-represented, I shall express my reasons for my conclusion as plainly and concisely as I can.

16.  In order to maintain eligibility to receive ongoing payments, a disability support pensioner must have a level of impairment that attracts 20 points from one disability table, or 20 points in total from a combination of tables.  This requirement is specified in s 94(1)(b) of the Act. The relevant disability tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. 

17.  Mr Howlett complains of a severe back condition.  His treating doctor at the time, Dr Gray, noted in 2019 that Mr Howlett suffers from “chronic lower back pain” and an ”L5-S1 disc bulge [with] nerve root compromise”: see Ex R 1, p 179.

18.  The impairments associated with this condition require the application of Table 4, which concerns spinal function. On the evidence before me, no other table is relevant.  I note that the disability support pension is not paid simply because a person suffers from a particular medical condition or conditions.  The pension is payable only when the impairment or impairments resulting from the medical condition or conditions reach a certain level. 

19.  It is critical for Mr Howlett to reach the 20-point threshold; otherwise, he is ineligible to be paid the pension.  The following is stipulated in respect of the 20-points qualification under Table 4:

“The person is unable to:

(a)perform any overhead activities; or

(b)turn their head or bend their neck, without moving their trunk; or

(c)bend forward to pick up a light object from a desk or table; or

(d)remain seated for at least 10 minutes.”

This is described as “a severe functional impact of activities involving spinal function”.

20.  Mr Howlett’s own evidence to the Tribunal is that he is able to remove objects from a shelf in a supermarket and place them into a trolley and, furthermore, that he is able to wash his hair (albeit with one hand).  Paragraph (a) is not, therefore, satisfied. 

21.  Mr Howlett’s evidence is that he lifts shopping bags from the trolley into the boot of the car and takes them from the boot into the house. I infer from this that he is clearly able to pick up a light object from a desk or table.  Paragraph (c) is not therefore satisfied. 

22.  Mr Howlett accepts he has undertaken long trips in cars (to Darwin) and by air (to the Philippines). I conclude that he is able to remain seated for at least 10 minutes. I do not doubt that a three-day road trip would leave Mr Howlett in some degree of pain, as he indicated, but I do not accept that he is unable to sit for 10 minutes at a stretch.  I note also that he says that when he accompanies his family to Adelaide, he will sit at a food stall while they do the shopping, and that he drives regularly to the supermarket in Kadina (a 14-minute trip on his evidence).  Paragraph (d) is not therefore satisfied.

23.  These conclusions are consistent, I note, with the job capacity assessor’s report in Exhibit R1 at page187ff.

24.  I did not hear evidence from Mr Howlett in relation to his ability to turn his head or bend his neck without moving his trunk.   I do note, however, the job capacity assessor’s observations (Ex R1 at p189) that indicate that Mr Howlett was able “to flex and extend his neck with a full range of movement and had slight reduction of ROM for sideways rotation of the neck.” At Exhibit R1, page 190, the assessor further notes that Mr Howlett “reports he is able to move his head in all directions; assessor observed Mr Howlett was able to achieve this task.”  In my opinion, paragraph (b) is not satisfied on the evidence before me.

Conclusion in respect of 20-point threshold

25.  In all the circumstances, I find that Mr Howlett is not prevented from doing any of the things that are mentioned in paragraphs (a) to (d) alongside the 20-point qualification in Table 4.  He falls well short of the 20-point threshold in my opinion. I do not need to assess whether Mr Howlett meets the 10-point category because, as I have noted, he needs 20 points as a minimum in order to continue to qualify for the disability support pension.

26.  I accept fully that Mr Howlett is presently residing in a town where employment opportunities may well be limited. The disability support pension is, however, intended to support those who lack capacity to work (whether the source of that impairment is physical or mental). As I have said, I think Mr Howlett falls short of 20 points. I do not doubt that his back gives him trouble, but he does not meet the 20-point threshold under Table 4.

27.  I also accept that Mr Howlett feels a strong sense of injustice.  In one way, this is understandable.  An innocent inquiry about the portability of his social security rights has led to a reassessment of his eligibility and ultimately to the cancellation of the pension.  Nevertheless, in my opinion, no matter how the review came about, the pension was properly cancelled.

28.  I note that there are further criteria that need to be met before a disability support pension remains payable. In particular, I would have to be satisfied that Mr Howlett remained unable to work for a prescribed number of hours. That question was not explored in evidence before me. I need not address that issue, however, given my conclusion that Mr Howlett is not eligible to receive a pension because of a lack of points.

Medical evidence

29.  As I have indicated earlier, the critical question is what degree of impairment Mr Howlett suffers, rather than his precise medical condition.  I note in passing, however, as did the Level 1 Tribunal, that Dr Gray’s medical opinion that Mr Howlett suffers from an “L5-S1 disc bulge [with] nerve root compromise” appears not to be supported by the specialist radiological opinions.  That, however, does not matter.  On the assumption that Dr Gray is correct, the level of impairment Mr Howlett suffers as a result of his spinal condition or conditions does not reach the 20-point threshold for the reasons I have given.

FORMAL DECISION

30.  The Tribunal’s formal decision will be to affirm the decision under review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

............[Sgnd]...............
Administrative Assistant Legal

Dated: 21 April 2021

Date of hearing:  6 August 2020
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Mr Christopher Bishop, Mills Oakley Lawyers