Jeffrey Spelta and Secretary, Department of Social Services
[2014] AATA 754
•10 October 2014
[2014] AATA 754
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2595
Re
Jeffrey Spelta
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 10 October 2014 Date of written reasons 17 October 2014 Place Townsville The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – applicant refused disability support pension – whether applicant’s conditions warrant a rating of 20 points under the Impairment Tables – whether applicant has continuing inability to work – whether applicant participated in a program of support – whether applicant’s conditions warrant a rating of 20 points or more under a single impairment table – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President P E Hack SC
17 October 2014
This is an application by Mr Jeff Spelta for the review of a decision by the respondent, the Secretary, Department of Social Services, that he was not qualified for disability support pension. His application was made in June 2013 and it is thus at that time and within 13 weeks thereafter that the criteria for disability support pension must be satisfied. Those criteria are set out in s 94 of the Social Security Act 1991 (Cth). So far as is presently material, that section sets out three critical criteria. The person must have a physical, intellectual or psychiatric impairment, the impairment must be of 20 points or more under the Impairment Tables and the person must have a continuing inability to work.
There are two cumulative requirements of a continuing inability to work. It is enough to say that one of them, one that is not satisfied in the present case, applies if the person does not warrant an impairment rating of 20 points or more under a single impairment table in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. In such a case the person must have participated in a program of support over a period of 18 months in the previous
36 months. There is no dispute that Mr Spelta does not satisfy that criteria. The result is that the question turns on whether any of Mr Spelta’s significant individual ailments are of themselves sufficient to warrant an impairment rating of 20 points or more on a single.
His most significant condition, in terms of functional impairment, relates to the conditions of his knees. As I explained to him in the course of the hearing, the label of a condition does not itself matter since table 3, which deals with lower limb function, is to be used where an applicant has a permanent condition which results in functional impairment when performing activities requiring the use of legs or feet. Thus the precise nature of what ails Mr Spelta’s knees is not material. What is important is that the tables, which are a ministerial determination which binds Centrelink and the Tribunal, require that there be corroborating evidence of the person’s impairment, for example, a report from a treating doctor, a report from a medical specialist or other allied health professional, or the results of physical tests or assessments. Self reported symptoms alone, so the tables say, are insufficient.
There are three sources of evidence in the material before me. First there are the notes made by the job capacity assessor about Mr Spelta’s lower limb function. Mr Spelta puts in issue the correctness of the recording made by the job capacity assessor of the interview with him. As it transpires, nothing particularly turns on whether that is an accurate recounting of his symptoms or not, since what must be demonstrated is the level of his functional impairment. If it be the case that that job capacity assessor overstated his capabilities, that as it seems to me is not to the point.
The second piece of evidence is a fairly brief report from Mr Spelta’s general practitioner which simply refers to reduced exercise tolerance and such like. It does not by any stretch of the imagination demonstrate the severe functional impairment required for an assessment of 20 points. There is finally some evidence from Mr Spelta, and my own observations of him, which suggest that he does have some degree of functional impairment. However, as I say, the tables make it plain that self report of symptoms is insufficient to warrant the giving of a rating.
I have considerable sympathy for Mr Spelta, but as I also sought to explain, the present state of the evidence does not allow me to be satisfied of the things of which I must be satisfied and it would not assist him were I to ignore the requirements of the legislation to find in his favour.
I am troubled though that there appears not to have been undertaken a comprehensive assessment of the level of his functional impairment. Mr Spelta has a considerable range of disabilities, particularly orthopaedic injuries with some circulation difficulties and other physical conditions of lesser importance.
This is a case where I think Mr Spelta should again apply to test his eligibility, and if he were to do so I would recommend to the Secretary, in the strongest possible terms, that an assessment be made by an appropriately qualified person, perhaps an occupational therapist, of the level of Mr Spelta’s functional impairment, particularly from his lower limbs, but also from his upper limbs as well. It is unsatisfactory that there is at this stage inadequate evidence of these matters. It ought to be remedied with proper evidence, with proper assessment, so that the true position can be ascertained. In the circumstances though I am obliged by the evidence to affirm the decision under review.
I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC .....................[Sgd]...................................................
Associate
Dated 17 October 2014
Date of hearing 10 October 2014 Applicant In person Solicitors for the Respondent Department of Human Services
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