Ian Menzies and Secretary, Department of Social Services

[2014] AATA 689

[2014] AATA  689

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4837
Re	Ian Menzies
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	1 August 2014
Date of written reasons	22 September 2014
Place	Sydney

The decision of the Social Security Appeals Tribunal dated 16 August 2013 is affirmed.

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

Senior Member A K Britton

CATCHWORDS

SOCIAL SECUIRTY — Disability Support Pension — Whether the Applicant’s conditions were permanent — Whether the Applicant suffers a “severe impairment” — Whether the Applicant has undertaken a program of support — Decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 94(1)(b); 94(1)(c)(i); 94(2)(aa)

Social Security (Administration) Act 1999 (Cth) - ss 13, 42; cl 4(1) of Sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A K Britton

22 September 2014

1. Mr Ian Menzies applies to the Administrative Appeals Tribunal for review of the decision made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal (SSAT), to reject his claim for disability support pension (DSP).

2. To qualify for DSP Mr Menzies must demonstrate that he has:

   an impairment of 20points or more (s94(1)(b) of the Social Security Act 1991 (Cth) (the Act)), and

   a “continuing inability to work” because of the impairment (s94(1)(c)(i) of the Act), and

   undertaken a “program of support” unless found to have a “severe impairment” (s 94(2)(aa) of the Act).

3. There is no argument that Mr Menzies suffers from a number of impairments and has not undertaken a program of support. For the reasons that I will explain below, his claim for DSP cannot succeed because he does not have a “severe impairment”, namely, an impairment totalling at least 20 points under a single impairment table under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Tables).

   Assigning an impairment rating

4. Mr Menzies’ claim for DSP was based on the following conditions:

   ·kidney disease with hypertension

   ·intervertebral disc disorder

   ·gout

   ·depression

5. The appropriate rating to be assigned to each condition must be assessed by reference to the 13-week period, starting from the day Mr Menzies made his claim for DSP, that is, 10 May 2012 to 9 August 2012 (ss 13, 42 and cl 4(1) of Sch 2 of the Social Security (Administration) Act 1999 (Cth)). I will refer to this period as “the claim period”.

6. In proceedings before the SSAT, Mr Menzies asked that his “right hand injury” be taken into account. That injury occurred after the claim period and therefore cannot be taken into account, in determining his eligibility for DSP.

7. A precondition to assigning an impairment rating under the Tables, is that the claimed condition be permanent, that is, diagnosed and fully treated and stabilised and more likely than not, in light of the available evidence, to persist for more than…