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

Jackson and Secretary, Department of Social Services (Social services second review) [2020] AATA 4265 (20 October 2020)
Division:GENERAL DIVISION
File Number:2019/8704
Re:David Jackson
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:20 October 2020
Place:Perth

The Reviewable Decision, being the decision of the Administrative Appeals Tribunal, Social Services and Child Support Division dated 18 December 2019 under review,
is affirmed.
...................................[SGD].............................
Member S Barton
CATCHWORDS
DISABILITY SUPPORT PENSION – DSP – Impairment Tables – applicant does not meet impairment rating requirement –– decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999 (Cth) – ss 80, 179
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – paras 5, 6(1), 6(5), 6(6)
REASONS FOR DECISION
Member S Barton
20 October 2020
BACKGROUND

This is a review of a decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division (the AAT1) dated 18 December 2019 (Reviewable decision) that affirmed a decision made by an Authorised Review Officer (ARO) of the Department of Human Services (the Agency), to cancel the Applicant’s disability support pension (DSP).
FACTS
Mr David Jackson (the Applicant) is 45 years of age and was granted the DSP from
8 June 2011 for impairments resulting from motor vehicle accidents dating back to 2006.
On 2 July 2019, the Agency initiated a review of his entitlement to the DSP and was referred for a Job Capacity Assessment (JCA) and, on 17 September 2019, his ability to work was assessed.
The JCA Assessor found a total impairment rating of 15 points and a baseline capacity for future work within two years as 15-22 hours per week.
On 1 October 2019, a decision was made to cancel the Applicant’s DSP on the basis that he did not have an impairment rating of 20 or more under the Impairment Tables.
The Applicant sought a review and on 14 October 2019 an ARO from the Agency affirmed the decision on 1 November 2019.
The Applicant sought a review of the decision by AAT1 on 4 November 2019, which affirmed the decision of ARO on 18 December 2019. On 27 December 2019, the Applicant applied for a second review by the Tribunal.
JURISDICTION
The application for review is made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth). Therefore, the Tribunal is satisfied that that it has jurisdiction to review the Reviewable decision.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Monday 17 August 2020. The Applicant appeared via teleconference and was self-represented.
The Applicant gave oral evidence.
The Respondent was represented by Ms L Hinwood, who via teleconference.
The Administrative Appeals Tribunal (Tribunal) admitted the following documents into evidence at the hearing:
(a)Psychological Assessment Report dated 5 May 2020, inclusive of Appendix 1 & 2 (Exhibit A1);
(b)
Medical Evidence including letter from Dr Gerhard Beukes, GP Mental Health Care Plan Patient Assessment and a letter from Dr Gerhard Beukes to

Mrs Kim Weatherston dated 19 March 2020 (Exhibit A2);
(c)Letter from Theatres - Geraldton Hospital dated 10 March 2020 (Exhibit A3);
(d)Medical Certificate dated 12 February 2020 (Exhibit A4);
(e)Respondent’s Statement of Facts, Issues and Contentions, dated 29 May 2020 (Exhibit R1); and
(f)Section 37 documents (T documents) numbered T1 to T32, comprising 246 pages, dated 25 February 2020 (Exhibit R2).
ISSUES
The issues before the Tribunal is whether the Applicant, on day their DSP was cancelled, had:
(a)a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Social Security Act 1991 (Cth) (the Act);
(b)an impairment rating of at least 20 points under the Impairment Tables; and
(c)a continuing inability to work for the purposes of s 94(1)(c) of the Act.
QUALIFYING PERIOD FOR THE DSP
Section 80 of the Social Security (Administration) Act 1999 (Cth) (Administration Act) provides that where the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended. The relevant period for consideration of the Applicant’s qualification for the DSP is the day on which it was cancelled, which was

1 October 2019.
The qualification requirements for the DSP are set out in s 94 of the Act:
(1) A person is qualified for disability support pension if:
(a)   the person has a physical, intellectual or psychiatric impairment; and
(b)   the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)   one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system.
A successful applicant for the DSP must meet each requirement; they must have an impairment, it must be of 20 points or more under the Impairment Tables and they must have a continuing inability to work. If an applicant does not have 20 or more points under the Impairment Tables it is not necessary for the Tribunal to consider s 94(1)(c) of the Act.
Section 26(1) of the Act allows the Minister, by legislative instrument, to determine the Impairment Tables referred to in s 94(1)(b) and the rules for applying them.

The Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) provides those Tables and the rules for their use.
The purpose and general design principles of the Impairment Tables are set out in Paragraph 5. The tables describe the functional activities, symptoms and limitations and assigns ratings to determine the level of functional impact of the impairment on an applicant.
Paragraph 6(1) of the Determination states that ‘[t]he impairment of the person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do’ (emphasis added). An impairment rating can only be assigned if the condition is permanent, which is, for the purposes of the Tables, if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated and stabilised; and it is more likely than not, in light of available evidence, to persist for more than two years.
Paragraph 6(5) of the Determination states that when determining ‘whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated’ consideration must be given to the following:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment and rehabilitation has occurred; and
(c)whether treatment is continuing or is planned in the next two years.
Paragraph 6(6) states that a condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further treatment is unlikely to result in significant functional improvement enabling a person to undertake work in the next two years.
A condition is also deemed to be full stabilised if the person has not undertaken reasonable treatment for the condition and significant functional improvement enabling work is not expected in the next two years, even if the person undertook reasonable treatment.

Or, if there was a medical or other compelling reason for the person not to undertake reasonable treatment.
DOES THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
In the Medical Report prepared for the Applicant’s DSP review by his general practitioner, Dr Gerhard Beukes, the following conditions were listed (Exhibit R2, p 179-182):
(a)chronic neck condition; and
(b)hearing loss.
NECK CONDITION
The Applicant’s neck was injured in a motor vehicle accident on 7 January 2006,
which resulted in the fracture of the C3 and C4 (Exhibit R2, p 113). The Applicant also stated that he broke his shoulder blade in 2004 following a motorcycle accident, which he said adds to the discomfort in his neck. In 2011, the Applicant fractured C5 and C6 in another motor vehicle accident (Exhibit R2, p 154, 179).
The Tribunal accepts that, for the purpose of s 94(1)(a) of the Act, the Applicant suffered from a physical impairment relating to his chronic neck condition on the day his DSP was cancelled. The Tribunal accepts the condition has been fully diagnosed, fully treated,
fully stabilised and, on the basis of the available evidence, likely to persist for more than two years. The Tribunal notes this is not disputed by the Respondent, who accepts that the Applicant meets the criteria of s 94(1)(a).
In the Applicant’s JCA, submitted on 19 September 2019, the assessor examined the Applicant’s impairment against Table Four - Spinal Function in the Determination, ascribing a moderate functional impact on his activities with 10 impairment points.
Table Four is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving the back, trunk or neck. There is a moderate functional impact when a person is able to sit in or drive a car for 30 minutes and at least one of the following applies:
(a)the person is unable to sustain overhead activities;
(b)the person has difficulty moving their head to look in all directions;
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair.
In his medical report, Dr Beukes stated that the Applicant, in addition to the chronic pain, had limited head movement from side to side and up and down, by about 50% (Exhibit R2, 180). He also reported that the Applicant had poor endurance and pain when working with his arms above shoulder height and headaches when looking up frequently.
This is consistent with moderate function impairment.
In the Applicant’s Job Capacity Assessment, it was also noted that (Exhibit R2, p 197),
Client reports walk: 3/4 kilometres or about 1 hour duration, sit: 30 minute duration: stand 2 hours, bend: demonstrated to mid shin height…
During the hearing, when questioned about his ability to perform overhead activities in October 2019, the Applicant stated, ‘Yes, it causes me discomfort.’
The Applicant was asked by the solicitor acting for the Respondent,
So back in October 2019 you would’ve been able to move your neck although it was limited in how much you could move it, is that right?
To which the Applicant answered, ‘Yes, that’s correct.’
The Tribunal is satisfied that, on the day the DSP was cancelled, the Applicant’s chronic neck condition resulted in moderate functional impairment with 10 impairment points.
HEARING LOSS
The Applicant has a hearing impairment, first experienced as a child in 1989 (Exhibit R2, p 158, 182). Dr Beukes noted that the Applicant was ‘very hard of hearing’ (Exhibit R2, p 184).
In his JCA, the Assessor recommended an impairment rating of five in Table 11 - Hearing and other Functions of the Ear, stating ‘there is mild functional impact of activities involving hearing (communication) function or other functions of the ear’ (Exhibit R2, p 198).
In the hearing, the Applicant stated that he agreed with an impairment rating of five points for his hearing loss.
The Tribunal is satisfied there is a mild functional impact resulting from this condition and notes it is not disputed by the Applicant.
OTHER CONDITIONS
Dr Beukes also noted the Applicant suffered from hypothyroidism, hypercholesterolaemia and bipolar disorder (Exhibit R2, p 185). There is no evidence before the Tribunal of the former conditions resulting in a functional impairment.
With respect to the bipolar disorder, the Tribunal does not have any evidence this condition has been diagnosed by a psychiatrist or a clinical psychologist, as is required to assess the condition against Table 5 of the Impairment Tables. The Tribunal accepts the Applicant may be suffering from some underlying mental health conditions, however on 1 October 2019, this condition could not be described as fully diagnosed, fully treated or fully stabilised.
The Applicant provided a psychological assessment report by a registered psychologist (Exhibit A1). However, this report was dated 5 May 2020 and is not useful in understanding the Applicant’s impairments on 1 October 2019. Moreover, as stated above, for the purposes of the DSP, the Applicant requires a diagnosis by a psychiatrist or a clinical psychologist.
The Applicant stated during the hearing that many of his conditions had worsened since October 2019 and there may now be a fuller understanding of his intellectual and psychiatric impairments, however this not relevant to the Tribunal’s consideration of his impairments as they were on 1 October 2019. Of course, this does not prevent the Applicant from lodging another DSP application at any time.
CONCLUSION
The Tribunal finds that the Applicant had a total impairment rating of 15 points across two Impairment Tables at the date of cancellation and therefore did not satisfy paragraph 94(1)(b) of the Act.
The Reviewable Decision, being the decision of the AAT1 dated 18 December 2019 is affirmed.

I certify that the preceding 43 (forty three) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

................................[SGD]................................
Associate
Dated: 20 October 2020

Date of hearing:

17 August 2020

Applicant:

Counsel for the Respondent:

Self-represented

Ms L Hinwood

Solicitor for the Respondent:

Services Australia

[2020] AATA 4265

20 October 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Statutory Construction

Jurisdiction