James Nairn and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 356
[2013] AATA 356
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4001
Re
James Nairn
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 30 May 2013 Place East Maitland, NSW The decision under review is affirmed.
............................[sgd]............................................
Mr S. Webb, Member
SOCIAL SECURITY – Disability Support Pension – arthritis, gastritis, psoriasis, Barmah Forest virus, depression and anxiety – not fully diagnosed, treated and stabilised or permanent – insufficient impairment points to qualify – work in private business – continuing inability to work not established – decision affirmed
Social Security Act 1991 (Cth), ss 94, Schedule 1B
Social Security (Administration) Act 1999 (Cth), Schedule 2
Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130
REASONS FOR DECISION
Mr S. Webb, Member
30 May 2013
Mr Nairn has a farm business in which he manages 100 acres of forest and a commercial quantity of bee hives, as well as breeding endangered parrots and fox-terrier dogs. The business was badly affected by drought and he fell into financial difficulty. Mr Nairn experienced family problems and his marriage broke down. He became unwell. His business suffered. He claimed Disability Support Pension, but Centrelink officers rejected his claim. The Social Security Appeals Tribunal (SSAT) decided to affirm this decision. Mr Nairn applied for review.
A hearing was conducted in East Maitland, after which both parties made written submissions. I have had regard to those submissions.
The facts of Mr Nairn’s case follow. Mr Nairn resides in a caravan on a 120-acre rural property that is substantially forest. He is a commercial apiarist, but his business was badly affected by drought over several years prior to 2008. He supplemented his income by selling forest products, including firewood, and by breeding parrots and dogs. Things did not go well.
In or about 2008, the marital relationship between Mr Nairn and his wife broke down. They are now divorced. Mr Nairn’s ex-wife and his son reside in a farm house on the property. His son has been through a difficult time. The family has been affected by issues of gambling, drug abuse, violence and mental disturbance.
Mr Nairn’s business has all but failed.
Mr Nairn suffers from a number of ailments, including gastritis, arthritis and psoriasis. In early 2009, he suffered from incapacitating symptoms that may have been associated with Barmah Forest Virus. He became stressed, anxious and depressed.
In 2009, Mr Nairn applied for Sickness Allowance, but his application was not successful and he was offered Newstart Allowance. In 2010, he applied for Disability Support Pension, but he was asked to provide further medical information and remained on Newstart Allowance. He obtained further evidence from his treating doctor, but this did not change the result. He underwent a number of Job Capacity Assessments and was found to have capacity to work 30 hours per week. Mr Nairn cavils with this.
He applied for review of the decision to reject his claim for DSP but, after an extensive delay, the decision was affirmed by an Authorised Review Officer. It was subsequently affirmed by the SSAT and Mr Nairn applied for review.
The issue to be decided is whether Mr Nairn qualified for DSP on the day he made claim or within 13 weeks thereafter. For this purpose, it is necessary to determine whether he suffers from any impairments that are permanent, that have been fully diagnosed, treated and stabilised, and that warrant 20 or more impairment points under the Impairment Tables set out in Schedule 1B of the Social Security Act 1991 (Cth) (the Social Security Act), and whether he has a continuing inability to work 15 or more hours per week as a result of those impairments.
In Mr Nairn’s submission, the impairments he suffers are primarily the result of Barmah Forest Virus. There are several reasons why he asserts that the impairments should be assessed as permanent for the purposes of the Impairment Tables. He maintains that there is no known treatment for Barmah Forest Virus and, as he has suffered from this condition since 2009, it should be treated as permanent. His depression, he says, should be treated as permanent because his treating doctor undertook no treatment of it over the past few years. Mr Nairn told me that he has suffered from psoriasis for many years, but this became extreme in 2010 because of stress and his mental state at that time. He conceded that the creams he uses to treat this ailment are effective, subject to his mental state. As to arthritis, Mr Nairn informed me that this is a minor ailment affecting his right foot that causes him to tire more quickly and causes his right leg to “cramp up” in the evening. Mr Nairn submitted that his gastritis is a long-standing condition over the last 20 years that is not amenable to further treatment – he took Nexium for 12 months, which was beneficial to begin with but the effects wore off and, ultimately, his doctor told him that he should not take it for more than 12 months, so he stopped. Mr Nairn gave evidence about an ear complaint he suffered when he was 20. He says this is a chronic condition that causes him to experience migraine headaches and earaches. This has been described as psoriasis ear.
Furthermore, he asserts that the impairments prevent him from working 15 or more hours per week. Even though he may spend more than 15 hours per week tending his farm and his animals, Mr Nairn maintains that this is not work, but rather, it is therapy for him. He makes the point that keeping his business ticking over is necessary in order to enable him to start it up again, when he is well; but doing so is not ‘work’ in any meaningful sense, and it does not generate much income. Furthermore, in his submission, he is only capable of undertaking ‘work’ for less than eight hours per week.
Mr Nairn maintains that his impairments and the restriction they place upon his work capability are sufficient to satisfy the legislation and to justify the grant of DSP.
I do not agree.
For Mr Nairn to succeed in his claim, it must be established that the essential criteria set out in s 94 of the Act are met. It is accepted that Mr Nairn satisfies the criteria set out in ss 94(1)(a), (d), (e) and (f). The remaining essential qualifying criteria set out in ss 94(1) (b) and (c) are in contest. These requirements are that the claimant suffers from a physical, intellectual or psychiatric impairment that warrants an impairment rating of 20 or more points under the Impairment Tables, which are set out in Schedule 1B to the Act, and that gives rise to a continuing inability to work at least 15 hours per week[1].
[1] Social Security Act 1991 (Cth), ss 94(2), (3), (4) and (5).
Under the Social Security (Administration) Act 1999 (Cth) (the Administration Act) a DSP claimant must either qualify on the day the claim is made or within the period of 13 weeks thereafter (the qualification period) for DSP to be payable[2]. Thus, the period for consideration in respect of Mr Nairn’s DSP claim that is the subject of these proceedings commences on 3 November 2010 and concludes 13 weeks thereafter on 3 February 2011 (the qualification period).
[2] Social Security (Administration) Act 1999 (Cth), Schedule 2, cl 4.
Mr Nairn cavils with Centrelink’s reliance on evidence outside the 13 week qualification period. In conducting this review, I am not confined to evidence during that period. If evidence is adduced from outside the qualification period, it may be relied upon to the extent that it is relevant to the assessment of Mr Nairn’s impairments during that period.
It is not disputed that Mr Nairn satisfies the first qualification criterion for DSP at section 94(1)(a) of the Act. Considering the present evidence, that is correct. It may be accepted that he suffered from physical and psychiatric impairments that affected his ability to function at the date of his claim for DSP and within the qualification period. These impairments include psychological symptoms of insomnia, low mood, acopia, lethargy, difficulty concentrating for extended periods, and panic attacks, as well as epigastric pain, painful feet and psoriasis, although the precise location and extent of psoriasis that was florid on the date of claim or during the qualification period is not clear.
The second qualification criterion for DSP under s 94(1)(b) requires that the impairments warrant a rating of 20 or more points under the Impairment Tables set out at Schedule 1B of the Act. The Impairment Tables are “system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance”[3]. As can be seen, the Tables set out empirical criteria quantifying the effect of a person’s impairments on his or her ability to do work – the impairments to be assessed are functional impairments resulting from conditions that have been fully documented and diagnosed[4]. Furthermore, as the preamble to the Impairment Tables makes clear, an impairment rating may only be assigned in respect of a fully documented, diagnosed condition which has been investigated, treated and stabilised, where further reasonable treatment is not likely to result in improvement within two years and the impairment is considered to be permanent: it is likely to continue for more than two years with or without reasonable treatment.
[3] Social Security Act 1991 (Cth), Schedule 1B, cl 2.
[4] See Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606 at [7]-[10].
Thus, the first question for the purposes of s 94(1)(b) is whether Mr Nairn’s medical ailments or conditions have been fully documented and diagnosed, investigated, treated and stabilised and are likely to continue for more than two years for the purposes of assessment under the Impairment Tables. When determining whether a condition has been fully diagnosed, treated and stabilised it is necessary to consider treatment that has been obtained or that is planned, and whether any further reasonable medical treatment is likely to lead to significant functional improvement within two years. Further reasonable medical treatment includes treatment that is feasible and accessible at a reasonable cost, where a substantial improvement can reliably be expected.
There is evidence that Mr Nairn was thought to be suffering from possible ischaemic heart disease in March 2009[5]. On evidence adduced by Mr Nairn, it appears that on 12 March 2009 he attended the Emergency Department of the Manning Rural Referral Hospital in Taree, complaining of a 12 month history of intermittent chest pain and a two week history of dizzy episodes[6]. A number of investigations were undertaken, including an electrocardiogram, all of which returned normal results. There is no evidence that ischaemic heart disease was documented or diagnosed. I am reasonably satisfied that it was not.
[5] T4 folio 75.
[6] Exhibit 4, Hospital Discharge Letter, , 12 March 2009.
Subsequently, on 17 April 2009, Dr Hussain listed diagnoses of “psoarsis [sp] ear” and “arthritis”[7]. On 16 July 2009, Dr Hebbard recorded diagnoses of “ear pain”, which she noted was chronic, and “headaches”. She recorded that both conditions commenced “12 months ago” and each was associated with “chronic pain”[8]. A CT scan of Mr Nairn’s brain was undertaken on 8 October 2009, and no abnormality was reported[9], although “moderate mucosal thickening… in both maxillary sinuses” was noted.
[7] T6 folio 81.
[8] T7 folio 82.
[9] Exhibit 3, CT Brain and Temporal Bone Scan, 8 October 2009.
It is difficult to know what to make of this evidence about ear pain and Mr Nairn’s assertions in respect of his DSP claim. Mr Nairn gave a history of an ear infection he says he contracted many years ago, swimming in dirty water. The medical evidence proximate to the qualification period does not record any complaint of ear pain. It may well be that Mr Nairn suffered an ear infection and that from time to time this causes ear pain and other symptoms, as he contends. But there is not sufficient evidence before me to conclude that any such condition was present or fully documented or diagnosed prior to or during the qualification period. I am reasonably satisfied that it was not, and so find.
Mr Nairn staunchly believes that he suffered from Barmah Forest virus and that many of the symptoms of which he complains are attributable to this cause. In support of this proposition he relies on an undated Arbovirus Serology report in Exhibit 3. This report records no positive results in respect of Ross River virus IgG and IgM, with a low positive result in respect of Barmah Forest virus IgG, but not for IgM. The report includes the words “Suggests past exposure to Barmah Forest Virus”. Mr Nairn informed me that he was told that a second test should be undertaken to confirm the presence of the virus, and to clarify whether it was still active. There is no other evidence on this point, although by Mr Nairn’s own account he has not undergone a second test, despite asking his treating doctors to make the appropriate referral.
To my mind, this evidence is not sufficient to establish that an infection with Barmah Forest virus has occurred, or that any such infection has been fully diagnosed, or investigated, treated and stabilised prior to or during the qualification period, if it was present at all. Even if it is accepted that Mr Nairn suffered from Barmah Forest virus infection in the past, it is not established when that may have occurred or that any symptoms he complained of immediately prior to or during the qualification period were attributable to this cause. By his own account, further medical testing is required to establish the presence of the virus. Even if the symptoms of which he complains are related to a Barmah Forest virus infection in the past, the present evidence does not establish, on the balance of probabilities, that an infection of this kind, or its after effects, had been fully diagnosed, treated and stabilised on the day Mr Nairn claimed DSP or during the qualification period. I am reasonably satisfied that it was not, and so find.
Dr Hebbard completed a Medical Report for Mr Nairn’s DSP claim on 22 October 2010 in which she reported diagnoses of depression, anxiety and gastritis[10]. The report does not refer to the presence of chronic ear pain, headaches, Barmah Forest virus, psoriasis or arthritis.
[10] T8 folios 84, 86 and 88.
The Doctor nominated 2008 as the date of onset of depression and anxiety, and she stated that these conditions were likely to fluctuate and persist for three to 24 months, suggesting that she did not consider these conditions to be permanent, as defined in the Social Security Act, at the time. The (then) current treatment for these conditions was reported to be counselling, with future treatment being counselling and antidepressant medications. Precisely what form the counselling treatment took is not clear. On Mr Nairn’s evidence, it was not with a psychologist or a psychiatrist. As Dr Hebbard was not called, this aspect of her evidence could not be investigated or clarified. Nevertheless, it appears that treatment in the form of antidepressant medication had not commenced at the time Dr Hebbard completed the report, 10 days before Mr Nairn lodged his claim for DSP.
In a Medical Report dated 4 March 2011, four weeks after the qualification period, Dr Hebbard set out diagnoses of depression (with onset in 2007) and chronic gastritis (with onset in 2008)[11]. There is no reference in this report to an anxiety condition or to Barmah Forest virus, chronic ear pain, headaches, psoriasis or arthritis. I note that in a medical certificate dated 7 June 2011, Dr Hebbard recorded that date, 7 June 2011, as the date of onset of Mr Nairn’s anxiety condition[12].
[11] T12 folios 127 and 129.
[12] T13 folio 134.
In her March 2011 report, the Doctor records “Lexapro 10mg”, an antidepressant medication, as the current treatment for depression, with future treatment being continued counselling. It is not clear when treatment with Lexapro commenced. Dr Hebbard suggests that Mr Nairn was very compliant with the recommended treatment[13]. This stands in stark contrast to Mr Nairn’s account of not tolerating the medication. His evidence is that the medication caused problems for him – he “felt like dying” and experienced pixelated vision. In the result, he stopped taking Lexapro soon after commencing that treatment and obtained no further treatment, as psychological treatment was too expensive and it was too difficult for him to leave home in circumstances where he feared that harm would be done to his animals by other family members with whom he was in conflict.
[13] Ibid, folio 128.
As I have said, it is not clear what Dr Hebbard was referring to in respect of ‘counselling’ treatment. Conceivably, she was referring to counselling she provided. There is no evidence that Mr Nairn’s depression and anxiety has been investigated or treated by a psychologist or by a psychiatrist. Mr Nairn informed me that he informally consulted someone who was treating his son, but he could not recall if this person was a psychologist or a psychiatrist. He could not recall when this took place; nor could he recall when he ceased taking Lexapro and whether this occurred before, during or after the qualification period.
In March 2011, Dr Hebbard reported that the depression was likely to persist for more than 24 months, but it was expected to “somewhat improve” with medication. What caused the Doctor to change her earlier reported opinion in October 2010, that Mr Nairn’s depression would not persist for more than 24 months, is not clear. Once again, as the Doctor was not called, these aspects of her evidence could not be clarified.
On balance, the present evidence is sufficient to establish that depression or anxiety conditions were diagnosed by Dr Hebbard in October 2010, but I am reasonably satisfied on Dr Hebbard’s evidence, that neither condition was fully treated and stabilised, or considered likely to persist indefinitely or for more than 24 months, during the qualification period. It follows that Mr Nairn’s depression and anxiety are not impairments that can be assessed under the Impairment Tables.
In her 22 October 2010 report, Dr Hebbard recorded that Mr Nairn suffered from gastritis that was being treated with Nexium, but this caused minimal or limited impact on his ability to function[14]. In March 2011, Dr Hebbard reported that Mr Nairn’s chronic gastritis commenced in 2008 and was likely to persist without change for more than 24 months. She recorded that Mr Nairn’s gastritis was characterised by “chronic epigastric pain”[15]. Current treatment at that time was noted to be “nexium 40mg” and future treatment included a gastroscopy and review by a surgeon. What occurred from 22 October 2010 to 4 March 2011 to change Dr Hebbard’s opinion about the functional impact of Mr Nairn’s gastritis and the need for further investigations is not clear. Mr Nairn says that the Nexium treatment was very effective, but the effectiveness reduced over time, necessitating an increase in the dosage rate, and ultimately, after 12 months treatment, Dr Hebbard advised him to stop taking Nexium, as it could only be used for limited periods. Mr Nairn has not yet undergone a gastroscopy and review by a surgeon.
[14] T8 folio 88.
[15] Ibid, folio 129.
Considering this evidence, even though it may be accepted that Mr Nairn may have experienced symptoms of epigastric pain from time to time over a long period that was diagnosed as gastritis, and that he obtained treatment in the form of Nexium prescribed by Dr Hebbard prior to, during and after the qualification period, it appears that further investigations in the form of a gastroscopy and review by a surgeon were considered to be necessary, as recommended by Dr Hebbard. To my mind these are relevant investigations that may be necessary to fully diagnose Mr Nairn’s epigastric condition and to determine the nature of any further medical treatment that may be required. On Mr Nairn’s evidence, Nexium was a treatment option of limited duration. If one accepts that Nexium treatment may be applied for a limited period only, it is necessary, then, to consider whether other forms of reasonable medical treatment may result in significant functional improvement within two years. The present evidence establishes that Dr Hebbard recommended that further investigations be undertaken in order to more clearly assess Mr Nairn’s epigastric problem and, presumably, to identify the most appropriate treatment. But this had not been done by the end of the qualification period, and it has not yet been done.
It appears to me that the cause of the epigastric pain Mr Nairn complained of has not been fully documented and diagnosed, or investigated. The treatment Mr Nairn obtained from Dr Hebbard during the qualification period provided symptomatic relief but it did not stabilize the epigastric condition. Without a clearer understanding and diagnosis of his epigastric condition, appropriate medical treatment cannot be determined. For these reasons, I am unable to conclude that Mr Nairn’s gastritis had been fully diagnosed, treated and stabilised on the date of his claim or within the qualification period even though it was considered likely to persist for more than 24 months.
I note in passing that even if Mr Nairn’s gastritis is taken to have been fully diagnosed, treated and stabilised, it would not assist his case. Impairments resulting from gastritis would be assessed under Table 11.1. The evidence is that Mr Nairn experienced mild symptoms despite optimal treatment with Nexium during the qualification period. This would result in a Nil rating.
Mr Nairn claimed to be suffering from psoriasis and arthritis in his feet. A Job Capacity Assessment in March 2009[16] and a medical certificate of Dr Hussain dated 17 April 2009[17] refer to arthritis, but these documents do not specify which part of Mr Nairn’s body was affected. Dr Hebbard made no reference to psoriasis or arthritis in her Medical Report on 22 October 2010 but does refer to Mr Nairn’s inability to wear work boots “due to painful feet”. The Job Capacity Assessment Report dated 17 December 2010 makes reference to painful feet with possible diagnoses of psoriasis and arthritis[18]. In her March 2011 Medical Report, Dr Hebbard does not refer to either of these conditions, or to any issue affecting Mr Nairn’s feet, but on 7 June 2011 she provided a referral in respect of “severe psoriasis of hands and feet”, noting a history from 16 May 2005[19].
[16] T5.
[17] T6 folio 81.
[18] T10 folio 122.
[19] T14 folio 135.
Mr Nairn’s evidence is that he has suffered from psoriasis affecting his hands and feet for many years and that the topical creams he uses to treat this condition are effective, subject to his mental state: the greater the stress, the greater the symptoms. By his own account, this is a fluctuating condition. He informed me that the psoriasis and arthritis is worse in his right foot and causes burning and aching pain, as well as swelling. These symptoms, he says, make it difficult for him to wear boots that are necessary when undertaking work on his property, and they adversely affect his ability to do many things, including walking, crouching and standing for long periods.
There is very scant evidence in respect of psoriasis and arthritis in Mr Nairn’s feet, or in his hands. Dr Hebbard made no reference to these conditions or to any symptoms of pain or swelling in Mr Nairn’s feet in the medical reports she prepared in October 2010 and in March 2011. There is not sufficient evidence to establish that the symptoms Mr Nairn complains of in his feet, especially on the right, are attributable to psoriasis or to arthritis, although those possibilities lie open. Mr Nairn informed me that his treating doctor wanted him to undergo a specialist assessment in respect of his arthritis, but this had not yet been done. On Dr Hebbard’s evidence, it appears that a referral was made in June 2011 in respect of “severe psoriasis” affecting Mr Nairn’s hands and feet, although the purpose of the referral and to whom it was made is not apparent.
Thus, even though it may be accepted that Mr Nairn has suffered from psoriasis and he has obtained treatment for it in the form of topical creams over many years, and that arthritis been diagnosed in 2009, the present evidence is not sufficient to establish that Mr Nairn’s psoriasis and arthritis were fully investigated, treated and stabilised on the day he claimed DSP or during the qualification period. It appears that further investigations or assessments of these conditions were recommended by Dr Hebbard, but these had not been carried out prior to or during the qualification period, or subsequently. Furthermore, on the present evidence, it is not established that the symptoms and functional impairments Mr Nairn complained of in respect of his feet during the Job Capacity Assessment in November 2010 are attributable to psoriasis or to arthritis, or to some other cause. This may explain why Dr Hebbard considered that further investigations were necessary. On balance, I am reasonably satisfied that Mr Nairn’s complaints in respect of his feet, which may be attributable to psoriasis or arthritis, had not been fully diagnosed, treated or stabilised prior to or during the qualification period.
Even if I were to accept that Mr Nairn’s psoriasis was permanent, it would not assist his case for two reasons. Firstly, it is not presently established that the psoriasis gave rise to the functional impairments Mr Nairn contends for in respect of his feet. Secondly, the impairments would be assessed under Table 4 in relation to lower limb function and Table 18 in relation to skin disorder, or alternatively under Table 21 as an intermittent condition. On the present evidence, the alleged impairments might warrant a rating of Nil points under Table 4 and 10 points under Table 18, although I make no such finding. There is not sufficient evidence to make a firm assessment under Table 21, although a rating of between nil and 10 points may be indicated, depending on the severity and frequency of episodes. Thus, even if one assumes that the functional impairments affecting Mr Nairn’s feet were permanent and attributable to psoriasis, a rating of no more than 10 points would be obtained under the Impairment Tables, and this, alone, is not sufficient to satisfy the requirements of s 94(1)(b).
Thus, having regard to all of the ailments and impairments Mr Nairn has raised, I am reasonably satisfied that the ailments and impairments were not fully diagnosed, treated or stabilised on the day he lodged his DSP claim or during the qualification period. This means that the ailments and impairments cannot be assessed under the Impairment Tables. Even if his gastritis and psoriasis are taken to be fully diagnosed, treated, stabilised and permanent, and that these conditions were productive of impairments as Mr Nairn alleges, assessment of those impairments under the relevant Impairment Tables would produce a rating of no greater than 10 points.
It follows that the threshold requirement of 20 or more impairment points under s 94(1)(b) is not satisfied and Mr Nairn’s claim cannot succeed.
That being so, it is not necessary to determine whether Mr Nairn meets the third essential criterion to qualify for DSP in respect of a continuing inability to work under s 94(1)(c). On this point, having regard to ss 94(2), (3), (4) and (5), I simply observe that the present evidence indicates that Mr Nairn did not have a continuing inability to work at least 15 hours per week. By his own account, he is able to work more than 15 hours per week tending his animals and maintaining his business at a low level, even though he contends that this is not ‘work’ as his business is effectively in abeyance and it is not productive of any substantial income. As the case turns on other points, it is not necessary to decisively address these issues, or Mr Nairn’s contentions regarding other alleged impediments affecting his ability to work, or to obtain work on the open market.
In closing, it is appropriate to note that Mr Nairn’s assertions about the cost and accessibility to him of medical treatments in respect of his impairments are not persuasive. It appears that Mr Nairn is reluctant to obtain medical treatments of various kinds, preferring to resort to natural therapies, or to obtain no treatment at all while he resides on his property, tending his animals in the forest environment. This, he says, is suitable treatment for him. The assessment of his impairments under s 94 and Schedule 1B must proceed, however, on the assumption that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment.
Mr Nairn’s assertion that he cannot afford treatment is not supported by evidence, although it may be accepted that he is in straitened financial circumstances. The proposition that he cannot leave his property for fear of harm being done to his animals is also not supported by evidence.
Mr Nairn’s assertion that his efforts to obtain further investigations of the Barmah Forest virus infection were in vain does not alter the result. I must proceed on the present evidence without resorting to speculation about what may or may not occur if further investigations were to be conducted[20].
[20] Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130 at [34].
Mr Nairn complained about delays in Centrelink dealing with his claim. This is not a matter for me, as it does not bear upon the matters I must consider. That notwithstanding, it is clear that there have been extensive delays in addressing and determining Mr Nairn’s claim and his request for review by an Authorised Review Officer. Delays of this kind may give rise to prejudice and may render the task of making the correct or preferable decision more difficult. This is especially so in a case involving a claim for DSP, where the claimant must qualify on the day of the claim or within 13 weeks thereafter, and where the claimant is struggling financially and grappling with difficult family issues, high stress and ill-health. The greater the delay, the more drawn out the proceedings to address a claim and the longer the period in which the claimant must deal with the uncertainty and stress of attending to the proceedings, prior to finalisation.
Finally, it is desirable to briefly address Mr Nairn’s submission that his qualification for DSP is underscored by his qualification for sickness benefits over an 18 month period. It appears that Mr Nairn was not required to comply with the Newstart Allowance activity test for an extended period on grounds of ill-health and incapacity. This does not mean that his DSP claim should be granted or that he qualified for a DSP, and I do not accept Mr Nairn’s assertions to the contrary. The tests applying to exemption from the Newstart Allowance activity test on health grounds, even over a long period, are not the same as the tests applying to qualification for DSP. Nonetheless, the delay between Mr Nairn lodging his DSP claim on 3 November 2010 (which was determined on 5 January 2011) and the finalisation of a review by an Authorised Review Officer on 2 April 2012 is troubling. But these are matters for the Secretary.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member .......................[sgd].................................................
Associate
Dated 30 May 2013
Date of hearing 12 April 2013 Date final submissions received 24 May 2013 Applicant In person Advocate for the Respondent Mr G. Lozynsky Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
0
2
0