Ian Ell and Secretary, Department of Social Services

[2015] AATA 14

[2015] AATA 14  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3017
Re	Ian Ell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	14 January 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – DSP – 20 points or more under the Impairment Tables – Decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth), s 13, Schedule 2

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Dr M Denovan, Member

14 January 2015

1. Mr Ian Ell is the applicant in these proceedings. He lodged a claim for Disability Support Pension (“DSP”) on 24 January 2013. On 16 April 2013, the Respondent decided to reject his claim. An Authorised Review Officer (“ARO”) affirmed that decision on

   
   

   6 March 2014 as did the Social Security Appeals Tribunal (“SSAT”) on 15 May 2014. The applicant applied to the Administrative Appeals Tribunal (“AAT”) on 13 June 2014.

2. Mr Ell reapplied for DSP. Although his application was rejected, on 5 December 2014 an ARO determined Mr Ell was eligible to receive DSP, with effect from 5 August 2014.

3. I must decide whether Mr Ell met the eligibility criteria for DSP on 24 January 2013, or within 13 weeks of that date (“the relevant period”). If so, Mr Ell will be entitled to DSP from the date he contacted the respondent and indicated his intention to claim on

   
   

   10 January 2013.

4. It is not in dispute that the applicant was suffering from a number of medical conditions within the relevant period. The respondent contends that the applicant can only be allocated a total of 15 points from the Impairment Tables (“Tables”), and therefore does not meet all of the legislative requirements necessary to qualify for DSP.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

5. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. To the extent that it is relevant for present purposes, s 94 of the Act provides that the applicant must:

   ·have a physical, intellectual or psychiatric impairment; and

   ·have an impairment rating of 20 points or more under the Tables;[1] and

   ·have a continuing inability to work.

   [1] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.

6. Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth)

   
   

   (“the Administration Act”), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within the relevant period. In this case the relevant period is from 24 January 2013 and 25 April 2013.

7. There are rules for applying the Tables, contained in those Tables, in deciding if a person qualifies for DSP. The Tables are functional based, not based on the diagnosis. Ratings are assigned to reflect the level of functional impact of impairment and conditions that have been accepted to be permanent, and fully diagnosed, fully treated and

   
   

   fully stabilised.

8. A person’s functional capacity rated under the Tables concerns their capacity to work. The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating can be assigned from the Tables.

9. A person is regarded as having a continuing inability to work under s 94 of the Act if the Secretary is satisfied that:

   ·they have an inability to work for 15 hours or more a week due to their accepted impairments; and

   ·they have actively participated in a program of support.

   This second requirement is not necessary if a person has a severe impairment of

   
   

   20 impairments or more under a single Table.

10. Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”),[2] it is necessary to determine whether Mr Ell’s conditions can be regarded as being permanent and the impairment resulting from those conditions is likely to persist for more than two years.[3] A condition will be considered permanent where it has been fully diagnosed, fully treated and fully stabilised.[4]

    [2] The Determination was made by the Minister pursuant to s 26(1) of the Act.

    [3] Subsection 6(3) of the Determination.

    [4] Subsection 6(4) of the Determination.

11. Mr Guthrie, for the respondent, accepts that Mr Ell suffers from the following conditions, and therefore satisfies s 94(1)(a) of the Act:

    ·Osteoarthritis of the left knee; and

    ·Degenerative disc disease in the lumbar and cervical spine.

12. The issues that I must determine are:

    ·Which, if any of Mr Ell’s conditions can be allocated an impairment rating; and

    ·If any can be rated, whether he has 20 impairment points or more; and if so whether he has a continuing inability to work.

    CONSIDERATION

    Does Mr Ell have any conditions that can be allocated a rating from the Tables?

13. Mr Ell gave evidence by telephone at the hearing. Mr Ell was able to add little to the information included in the exhibits. He recalled ‘”things were not good” at the time he lodged his claim for DSP, however he could not recall details of how his conditions affected his capacity to function at the time. As Mr Ell was unable to assist the Tribunal further, I relied on the contemporaneous material to make my decision in this matter.

14. The Respondent accepts that Mr Ell’s conditions of degenerative disease of the spine and osteoarthritis of the right knee have been fully diagnosed, fully treated and fully stabilised, and that the conditions could be allocated a rating for the purpose of assessing his claim for DSP. Mr Ell accepts that he did not consult a clinical psychologist or psychiatrist until he saw Dr Scott Jenkins in July 2013. As this was not within the

    
    

    13 week relevant period, his condition of depression cannot be regarded as

    
    

    fully diagnosed, fully treated and fully stabilised during the 13 week period that followed his claim. It can therefore not be given a rating from the Tables.

15. It is very difficult to determine the appropriate rating from the Tables for Mr Ell’s conditions of degenerative disc disease and osteoarthritis of the knee. During the relevant time, Mr Ell was awaiting review by specialist medical practitioners. The delay in the public hospital system is long, and it was anticipated that Mr Ell might need to wait for at least two years before he was seen by either specialist. His conditions were therefore regarded as fully diagnosed, fully treated and fully stabilised, for the purpose of allocating him a rating from the Tables.

16. Unfortunately the medical reports prepared for Mr Ell’s claim are brief and include very little information about the way the conditions impact on Mr Ell’s capacity to function. Most of the previous decision makers have put reliance on Mr Ell’s self reporting of symptoms and capacity when deciding the appropriate rating for both conditions. The respondent accepts the appropriate rating for Mr Ell’s degenerative spine condition to be 10. The SSAT allocated 10 impairment points for Mr Ell’s knee osteoarthritis; the respondent takes issue with this, and argues the appropriate rating is five. I am not going to disturb the decision of the SSAT on this point, as it makes no difference.

    CONCLUSION

17. Mr Ell does not satisfy other criteria set out in s 94 of the Act. Specifically, Mr Ell had not completed a program of support prior to lodging his application for DSP. The requirement is that he complete 18 months of a program of support, Mr Ell had completed only 12 months when he submitted his claim. Mr Ell does not satisfy any of the grounds that would exempt him form this requirement. Mr Ell did not have an incapacity to work, and does not satisfy s 94(1)(c). Mr Ell is therefore not eligible to receive DSP from the date he contacted the respondent and indicated his intention to claim on 10 January 2013.

    DECISION

18. The decision under review is affirmed.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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Associate

Dated 14 January 2015

Date of hearing	8 December 2014
Applicant	In person
Solicitors for the Respondent	Joe Guthrie, Department of Human Services