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

[2017] AATA 4

Jones and Secretary, Department of Social Services (Social services second review) [2017] AATA 4 (6 January 2017)

Division	GENERAL DIVISION
File Number	2015/1957
Re	Cherrie Jones
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal:Deputy President K Bean
Senior Member P Britten-Jones

Date:6 January 2017

Place:Adelaide

The decision under review is affirmed.

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Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Whether applicant actively participated in a program of support – Applicant enrolled in program but was exempted by a medical certificate – Consideration of Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 – Whether requirements for active participation in subs 5(1) are satisfied – Decision under review affirmed.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, Schedule 2, cl 4
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Deputy President K Bean
Senior Member P Britten-Jones

6 January 2017

1. On 22 July 2014 the applicant, Ms Jones, lodged a claim for disability support pension (DSP).  That claim was rejected both at first instance and upon review by a Centrelink authorised review officer.  The decision to reject the claim was affirmed by the Social Security Appeals Tribunal (SSAT) on 2 March 2015.

   ISSUE

2. The issue for determination is whether Ms Jones was qualified for DSP as at the date of her claim on 22 July 2014 or within 13 weeks of that date, that is by 21 October 2014 (the assessment period).[1]

   [1]     Social Security (Administration) Act 1999, Schedule 2, cl 4.

   LEGISLATION

3. Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act), which, at the relevant time, relevantly provided as follows:

   94     Qualification for disability support pension

   (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;

   …

   Continuing inability to work

   (2)A person has a continuing inability 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

   …

   Severe impairment

   (3B)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.

   Active participation in a program of support

   (3C)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.

   (3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).

   (3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

   …

   Other definitions

   (5)In this section:

   program of support means a program that:

   (a)is designed to assist persons to prepare for, find or maintain work; and

   (b)either:

   (i)is funded (wholly or partly) by the Commonwealth; or

   (ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

   …

4. The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Determination) made by the Minister on 23 August 2011 is the legislative instrument which pursuant to subs 94(3C) specifies the requirements for a person to have “actively participated” in a program of support.  The relevant provisions of the Determination are set out below.

   DID MS JONES HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT – subs 94(1)(a)?

5. There is no dispute between the parties that, during the assessment period, Ms Jones suffered from physical impairments including bursitis, which restricted movement of her hips and knees, and fibromyalgia affecting her back. She was also diagnosed with depression resulting in cognitive impairment, difficulty in concentrating and difficulty in keeping interpersonal relationships. Ms Jones therefore satisfied subs 94(1)(a) of the Act.

   DID MS JONES HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES – subs 94(1)(b)?

6. There is no dispute that Ms Jones suffers and suffered at the relevant time from impairments attracting 20 points under the Impairment Tables and that she therefore also satisfied subs 94(1)(b).

7. Specifically, the Secretary conceded that Ms Jones attracted 10 points under Table 3, 10 points under Table 5 for her depression and 5 points under Table 1 as a result of her spinal condition.

   DID MS JONES HAVE A CONTINUING INABILITY TO WORK – subs 94(1)(c)(i) and subs 94(2)?

8. In order to satisfy subs 94(1)(c) of the Act, Ms Jones’ conditions must prevent her from working at least 15 hours per week and, as she does not have a severe impairment within the meaning of subs 94(3B), Ms Jones must have actively participated in a program of support, so as to fulfil the requirements of subs 94(2)(aa).

9. As the parties spent more time addressing the question of whether Ms Jones had actively participated in a program of support and this issue is potentially determinative, we will address that question first.

   Did Ms Jones actively participate in a program of support – subs 94(2)(aa), subs 94(3C) of the Act and s 5 of the Determination?

   The Legal Framework

10. The Determination in Part 2 sets out the requirements which must be met in order for a person to be regarded as having actively participated in a program of support. Part 3 contains the Guidelines that the Secretary, or the Tribunal standing in the Secretary’s shoes, must comply with in deciding whether a person has actively participated in a program of support for the purposes of subs 94(2)(aa) of the Act.

11. Part 2 of the Determination, which sets out the requirements which must be met, relevantly provides that:

    5.      Requirements for active participation

    (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.

    (2)This subsection 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.

    (3)This subsection is satisfied in relation to a person and a program of support if:

    (a)the duration of the program of support was less than 18 months; and

    (b)the person completed the program.

    (4)This subsection is satisfied in relation to a person and a program of support if:

    (a)the program of support was terminated before the relevant date of claim; and

    (b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program.

    (5)This subsection is satisfied in relation to a person and a program of support if:

    (a)at the relevant date of the claim, the person is participating in the program of support; and

    (b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.

    (6)This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following in relation to the program of support:

    (a)the details of the designated provider of the program;

    (b)the dates when the person began the program and, if applicable, ceased the program;

    (c)the reason for ceasing the program (if any);

    (d)any period of non-participation in the program including exemptions, reliefs, or suspensions from the program;

    (e)the reason for any period of non-participation in the program;

    (f)the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;

    (g)the terms with which the person had to comply in order to satisfy the program requirements and the level of compliance with those terms;

    (h)the vocational, rehabilitation or employment activities the person participated in as a part of the program;

    (i)the frequency of contact that the person had with the designated provider of the program.

12. It is apparent from the legislative scheme that Ms Jones will have actively participated in a program of support if:

    (a)she has complied with the requirements of the program of support;

    (b)she participated in a program of support during the three year period commencing 22 July 2011 and ending 21 July 2014;

    (c)any of subss 5(2), (3), (4) or (5) are satisfied; and

    (d)subsection 5(6) is satisfied.

13. Ms Clark, who appeared for Ms Jones at the hearing, contended that Ms Jones satisfied subs 5(5).  It is not in dispute that she did not satisfy subs 5(2), (3) or (4).

14. It was not contended by the Secretary that Ms Jones failed to satisfy subs 5(6) which relates to the provision of certain information in relation to the program of support to the Secretary.  We find that subs 5(6) of the Determination is satisfied. 

15. However, the Secretary did contend that Ms Jones had not complied with the requirements of the program of support[2].  Accordingly that is the first issue we must address.

    [2]     Further Submissions of the Secretary dated 26 August 2016.

    Did Ms Jones comply with the requirements of the program of support?

16. The Employment Pathway Plan signed by Ms Jones on 6 June 2014[3] contained the following Compliance Activities:

    [3]     Exhibit 6.

I agree to participate in work preparation activities with Axis Employment for 1 hours per fortnight. I will commence by 06/06/2014 and complete by 05/09/2014

I agree to participate in work preparation with Axis Employment during our fortnightly appointments. Ongoing 06-06-14

Compulsory

1. The evidence before us is that on 6 June 2014 Ms Jones attended Axis and discussed the activities needed to assist her in finding a job.  She completed the Employment Pathways Plan (the Plan) referred to above and we accept her evidence that during the 6 June 2014 appointment, she was told that she was in no condition to work and should get a medical certificate, which she did.  She then obtained a medical certificate from Dr Jayakody from Mount Gambier who gave his opinion that Ms Jones was unfit for work for the period 6 June to 6 September 2014.  Axis has provided a letter advising that Ms Jones was “Suspended by Centrelink 13/6/14 – 5/9/14”. 

2. Ms Jones gave evidence that Axis later sent her a letter saying that she needed another “exemption” in September.  We note that Dr Han provided a further certificate on 1 September 2014 for the period from 5 September up to 5 December 2014.  The Axis letter also confirmed that Ms Jones was “Suspended by Centrelink 24/9/14 – 5/12/14”.

3. Although there is no record before us of a medical exemption for the period from 6 September – 23 September 2014, it is clear that Dr Han had certified her unfit for work or study for that period[4].

   [4]     Exhibit 1, T22/353.

4. It is our understanding of the evidence therefore that, although she attended some appointments, by reason of her medical incapacity, Ms Jones did not perform the activities referred to in her Employment Pathway Plan, in accordance with that Plan, at any time during the assessment period.  It follows in our view that she did not at any relevant time comply with the requirements of the program of support, and therefore she did not satisfy subs (1)(a)(i) of the Determination.

5. We acknowledge that after the hearing we sought and received submissions from both parties addressing issues relating to construction of the Determination, and the interaction between the Determination and Schedule 2, clause 4 of the Social Security (Administration) Act 1999.  However in view of the conclusion we have reached with respect to Ms Jones’ non-compliance with subs 5(1)(a)(i) of the Determination, in the event it is unnecessary for us to resolve those issues.

6. In light of our conclusion that at the relevant time, Ms Jones had not actively participated in a program of support and therefore did not satisfy subs 94(2)(aa) and did not qualify for disability support pension, we are obliged to affirm the decision under review.

   DECISION

7. The decision under review is affirmed.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean, Senior Member P Britten-Jones

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Administrative Assistant

Dated:  6 January 2017

Date of hearing:	4 May 2016
Date final submissions received:	12 September 2016
Solicitors for the Applicant:	Ms S Clarke South East Community Legal Services
Solicitors for the Respondent:	Mr A Parker Department of Human Services, FOI and Litigation Branch