John Richardson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 220
[2013] AATA 220
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4853
Re
John Richardson
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Date 12 April 2013 Place Hobart Decision Summary
The decision under review is affirmed.
........................................................................
Deputy President
CATCHWORDS
Social Security - disability support pension - whether applicant has a continuing inability to work - whether actively participated in program of support - decision under review affirmed
LEGISLATION
Social Security Act 1991 section 94
Social Security Act (Administration) Act 1999 ss 41, 42
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
INTRODUCTION
The applicant has applied to this Tribunal for a review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on the 3 October 2012. That decision affirmed an earlier decision by Centrelink rejecting Mr Richardson’s claim for a Disability Support Pension (“DSP”).
Mr Richardson is now aged 63 years. He is presently receiving New Start Allowance. He claimed DSP on 15 March 2012.
The law relating to the application is set out in the Social Security Act 1991 (“the Act”), the Social Security (Administration) Act 1999 (“the Administration Act”) and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the Determination”).
The requirements for DSP are described in section 94 of the Act.
The Administration Act provides that the qualification for DSP must be determined as at the date of the claim or within 13 weeks of that date. The “qualification period” is therefore 15 March 2012 to 14 June 2012. (See sections 41 and 42 of the Administration Act).
Impairment
In order to qualify for DSP the person must have a physical, intellectual or psychiatric impairment. The Tribunal is satisfied on the evidence that Mr Richardson suffers from osteoarthritis of the left wrist, thumb, shoulder and also both ankles as well as industrial deafness. Mr Richardson has several impairments and therefore satisfies section 94 (1) (a) of the Act.
Section 94 (1) (b) of the Act also provides that to qualify for DSP a person must have a total impairment rating of 20 points or more under the Impairment Tables.
It is conceded by the respondent that Mr Richardson does have an impairment rating of 20 points.
After considering all of the material before it the Tribunal concludes that the appropriate impairment rating for osteoarthritis of the left thumb, wrist and shoulder is 5 points, for osteoarthritis of the ankles 10 points and for the hearing impairment the appropriate rating is 5 points. The Tribunal finds that the applicant therefore has a combined impairment rating of 20 points.
Continuing Inability to Work
The question of whether or not Mr Richardson has a continuing inability to work is the principal issue in these proceedings.
Section 94 (1) (c) of the Act provides that to qualify for DSP a person must have a “continuing inability to work”.
Section 94 (2) of the Act provides as follows :
“A person has a continuing ability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases – either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years”.
Section 94 (3B) states as follows :
“A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table”.
In this case none of Mr Richardson’s impairments is a “severe impairment”. The highest impairment rating is 10 points under a single Impairment Table.
As his impairments are not severe impairments it follows that Mr Richardson must have actively participated in a program of support “… within the meaning of subsection (3C)”.
Subsection (3C) of section 94 provides :
“A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection”.
The relevant Legislative Instrument made for the purpose of subsection (3C) is the Social Security (Requirements and Guidelines – Active Participation for DisabilitySupport Pension) Determination 2011 (“the Determination”). The Determination is included as Annexure C to the respondent’s Statement of Facts and Contentions.
Part 2, subsection 5 (1) of the Determination provides :
“(1) A person has actively participated in a program of support if:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii)participated in a program of support during the 36 months ending immediately before the relevant date of claim; and
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and
(c)subsection (6) is satisfied in relation to the person and the program of support”.
Under subsection 5 (1) of the Determination a person is required to have complied with the requirements of a program of support and have participated in the program of support in the 36 months period prior to the date of the person’s claim for DSP. It is also necessary to satisfy subsection (2) (3) (4) or (5) of Part 2 as well as subsection (6).
Part 2, subsection 5 (2) provides
“(2)This sub-section is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.”
THE EVIDENCE
The evidence is that Mr Richardson undertook a program of support with Wise Employment commencing on the 5 August 2011. Mr Richardson’s claim for DSP was made on the 15 March 2012. At the date of the claim he had therefore participated in the program of support for a period of less than 8 months.
At certain times during that 8 month period Mr Richardson was given an exemption from participating in the program because of his medical conditions. Any such periods of exemption do not count towards the required period of active participation in the program. In any event the 18 month participation requirement is not satisfied.
It is therefore clear on the evidence that Mr Richardson has not participated in the program of support for “at least 18 months” as required by subsection 5 (2). The Tribunal also concludes that he had not completed a program of support (see subsection 5 (3)).
The essential elements of subsections (4) (5) and (6) are also not satisfied on the material before the Tribunal. There is an absence of sufficient information to satisfy the Tribunal that the requirements of any of those subsections have been met.
It is noted that in the letter dated 23 August 2012 from Mr Adam Clarke, who was Mr Richardson’s case manager, it is recognised that Mr Richardson may have been able to develop suitable skills “… to compete for employment in the open market” but by the time he gained those skills he would have attained aged pension age. In the circumstances Mr Clarke believed that the costs involved in retraining Mr Richardson could not be justified. It is therefore not a case where the impairments themselves were preventing Mr Richardson from undertaking a relevant program of support (see section 94 (2) of the Act).
CONCLUSION
It is a requirement for DSP that the claimant has properly undertaken a program of support to assist the person into suitable employment having regard to their particular impairments. On the evidence before it the Tribunal is satisfied that Mr Richardson has not actively participated in a program of support. He therefore did not have at the relevant time a continuing inability to work as required by section 94 (1) (c) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 27 (twenty seven) paragraphs are a true copy of the reasons for the decision herein of ........................................................................
Administrative Assistant
Dated
Date(s) of hearing 15 February 2013 Applicant In person Solicitors for the Respondent Mr Brian Sparkes, Program Litigation and Review Branch
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