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

[2016] AATA 17

Jongerdon; Secretary, Department of Social Services and (Social services second review) [2016] AATA 17 (20 January 2016)

Division	GENERAL DIVISION
File Number	2014/3009
Re	Secretary, Department of Social Services
APPLICANT
And	Jacyn Jongerdon
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	20 January 2016
Place	Adelaide

The reviewable decision of the Social Security Appeals Tribunal dated 6 May 2014 is set aside and, in substitution for that decision, it is decided that, during the assessment period, Mr Jongerdon did not meet the qualification requirements for payment of disability support pension contained in section 94 of the Social Security Act 1991.

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Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Whether respondent had a severe impairment during assessment period – Program of support requirements not met – Respondent not qualified for DSP during assessment period – Decision under review set aside.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, Schedule 2, clause 4

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

SECONDARY MATERIAL

Department of Social Services, Guide to Social Security Law (Version 1.218, released 4 January 2016) Section 3.6.3 (“Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension”)

REASONS FOR DECISION

Deputy President K Bean

20 January 2016

1. On Christmas Eve in 2005, the respondent, Mr Jongerdon (then a 33 year old spray painter) was riding a motorbike when he was struck by a dune buggy travelling at speed. He unfortunately sustained multiple serious injuries, including fractures of his spine, a pelvic fracture, and chest and knee injuries. He also suffered post-operative infections which complicated his recovery and in some cases caused additional problems. He has now been suffering the effects of these injuries for over a decade.

2. Mr Jongerdon was first granted disability support pension (DSP) on 24 April 2006.[1] However, his DSP was automatically cancelled on 17 November 2009[2], due to the imposition of a compensation preclusion period following his receipt of compensation for the injuries he sustained in the accident.

   [1]     Exhibit 1, T16/184.

   [2]     Exhibit 1, T16/184.

3. Mr Jongerdon lodged a fresh claim for DSP on 28 October 2013.[3] However, that claim was rejected on the basis that Mr Jongerdon did not have a “severe impairment” and did not meet the applicable program of support requirements.

   [3]     Exhibit 1, T10/124.

4. On 25 March 2014, that decision was affirmed by an Authorised Review Officer (ARO)[4], and on the day of the decision, Mr Jongerdon sought review of that decision by the Social Security Appeals Tribunal (the SSAT).

   [4]     Exhibit 1, T3/13.

5. The SSAT decided to set aside the decision to reject Mr Jongerdon’s claim, and in place of that decision, decided that Mr Jongerdon had satisfied the qualification requirements for payment of DSP from the date of his claim.[5]

   [5]     Exhibit 1, T2/4.

6. However, on 12 June 2014, the Secretary of the Department of Social Services (the Secretary) applied to this Tribunal for review of the SSAT decision, contending that the SSAT had made a number of errors in assessing Mr Jongerdon’s claim. In particular, the Secretary contended that the SSAT had erred in assessing Mr Jongerdon’s impairments, and should not have concluded that he suffered from a “severe impairment”.

7. I understand that Mr Jongerdon subsequently made a further claim for DSP in December 2014, which was received by Centrelink on 7 January 2015. That claim was granted by Centrelink on 24 February 2015. Accordingly, this application effectively relates to the “closed period” from 28 October 2013, when Mr Jongerdon lodged the DSP claim the subject of these proceedings, to the date from which he was ultimately granted DSP, presumably being 7 January 2015.

   STATUTORY FRAMEWORK AND ISSUES

8. The requirements which must be met before a person is qualified to receive DSP are contained in s 94 of the Social Security Act 1991 (the Act).

9. The key criteria imposed by s 94 are:

   (a)First, the person’s medical conditions must attract a total of 20 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables);

   (b)Second, the person’s permanent impairments must prevent them from working 15 hours per week or more independently of a program of support within the next two years; and

   (c)Third, if the person does not have a severe impairment (defined as a score of 20 points under a single Table) they must have actively participated in a program of support with respect to preparing for or gaining employment.

10. A person must meet all of these criteria at or within 13 weeks of the date of their claim to qualify for DSP. [6]

    [6] Social Security (Administration) Act 1999, Schedule 2, clause 4.

11. In this matter, there is no dispute that Mr Jongerdon did not meet the program of support requirements during the relevant 13-week period, being 28 October 2013 to 27 January 2014 (the assessment period). It follows that the issues for my determination are:

    (a)Whether, during the assessment period, Mr Jongerdon suffered from a “severe impairment” (in which case he did not need to meet the program of support requirements); and

    (b)If so, whether he also had a continuing inability to work for at least 15 hours per week.

    DURING THE ASSESSMENT PERIOD, WAS MR JONGERDON SUFFERING FROM A “SEVERE IMPAIRMENT”?

    Mr Jongerdon’s ongoing conditions

12. There is no dispute, and no doubt, that during the assessment period Mr Jongerdon was suffering from a number of serious ongoing medical conditions.

13. After the Secretary had sought review of the decision of the SSAT by this Tribunal, Mr Jongerdon was examined (at the request of the Secretary) on 4 November 2014 by Dr Grantley Tschirn, Consultant Occupational Physician.

14. In his report, Dr Tschirn recorded that Mr Jongerdon was continuing to suffer from the effects of fractures in his spine suffered in the accident and the surgery he had undergone to address these. Dr Tschirn also recorded that Mr Jongerdon continued to suffer from a debilitating left ankle condition, having undergone two procedures on his left ankle, the first of which was complicated by an infection. Dr Tschirn noted that:

    He has been left with persistent burning pain, punctuated by stabbing type pains both of which can be quite severe at times, worse with weight bearing … the left ankle and Achilles tendons swell.  The pain radiates down from his calf over the left ankle to the big toe. …[7]

    Dr Tschirn also noted that Mr Jongerdon had a “persistent foot drop affecting his right foot” together with “loss of sensation … over the outside of his right leg and down across the foot to his great toe …”. In addition, Mr Jongerdon had sustained a “fractured pelvis which was stabilised on the right hand side” but had “resulted in shortening of his leg”[8]. He noted that Mr Jongerdon had also sustained a “fracture to his left elbow” which had been treated surgically, however this was not causing significant ongoing difficulties.

    Application of the Impairment Tables

    [7]     Exhibit 4, p 3.

    [8]     Exhibit 4, p 3.

    The relevant Tables

15. Given the nature of those conditions, the Tables which are of most relevance in assessing Mr Jongerdon’s impairments are Tables 1, 3 and 4, relating to Physical Exertion and Stamina, Lower Limb Function, and Spinal Function respectively. As there is no dispute that Mr Jongerdon’s ongoing conditions have been fully diagnosed, treated and stabilised, there is no doubt that the requirements for assessing an impairment rating have been met. As I have already indicated, the issue in dispute is whether, during the assessment period, Mr Jongerdon’s impairments attracted 20 points under any one Table.

16. Accordingly, the most relevant parts of the applicable Tables are as follows:

    Table 1 – Functions requiring Physical Exertion and Stamina

Points

Descriptors

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)       is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)      is able to:

(i)       use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

  (ii)      perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

20

(i)       walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)       walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)      use public transport without assistance; or

(iv)      perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)      has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

Table 3 – Lower Limb Function

Points

Descriptors

5

There is mild functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)      the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)      the person has some difficulty climbing stairs; and

(2)      At least one of the following applies:

(a)      the person is unable to stand for more than 10 minutes;

(b)      the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

There is a moderate functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)      the person is unable to stand for more than 5 minutes; and

10

(2)      The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)      This impairment rating level includes a person who can:

(a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:     The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

20

There is a severe functional impact on activities using lower limbs.

(1)      The person:

(a)      is unable to do any of the following:

(i)       walk around a shopping centre or supermarket without assistance;

(ii)       walk from the carpark into a shopping centre or supermarket without assistance;

(iii)      stand up from a sitting position without assistance; and

(b)      requires assistance to use public transport.

(2)      This impairment rating level includes a person who requires assistance to:

(a)      move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)      move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

Table 4 – Spinal Function

Points

Descriptors

5

There is a mild functional impact on activities involving spinal function.

(1)      The person has some difficulty in:

(a)     activities over head height (e.g. activities requiring the person to look upwards); or

(b)     bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or 

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(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 (if not independently mobile in a wheelchair).  

20

There is a severe functional impact on activities involving spinal function.

(1)      The person is unable to:

(a)       perform any overhead activities; or

(b)       turn their head, or bend their neck, without moving their trunk; or

(c)       bend forward to pick up a light object from a desk or table; or

(d)       remain seated for at least 10 minutes.

The evidence

Mr Jongerdon

1. During his evidence at the hearing, Mr Jongerdon was asked about the impact of his conditions on his day-to-day activities, both now and during the assessment period. He indicated that currently he could only stand for 10 minutes “max”.  He also explained that he had moved to Riverton about four months before the hearing, and was now able to walk to his mailbox, which was 10 metres from the front door. He said when he lived at Saddleworth (as he did from February 2010 until he moved), the mailbox was 30 metres from his front door and, as he could not walk that far, he would have to wait for visitors to bring his mail in.

2. As to how he obtained groceries, he said he was able to go to the local supermarket to get some milk or another single item. In order to do this he would drive to the supermarket, park out the front and walk to the required aisle. However, if he needed to get a few things, he would have to order these online and have them delivered. He mentioned he had a fall recently, having tripped on a step, commenting “that’s why I don’t catch buses”, and explained he had disability vouchers for taxis. He said his ex-partner came over to his place once per week and did the housework, including washing of any dirty dishes. He said that there had been no real change in his restrictions or activities since 2010, and whilst he was living at Saddleworth he was also getting assistance from his ex-partner and a friend.

   Dr Tschirn

3. In his report of 4 November 2014, Dr Tschirn concluded that Mr Jongerdon was suffering from lower limb impairments attracting 10 points under Table 3, and a spinal impairment attracting 10 points under Table 4, resulting in an overall rating of 20 impairment points. This opinion was modified in his subsequent supplementary report of 25 February 2015[9], where he indicated that having considered the criteria more closely, he no longer considered that Mr Jongerdon met the criteria for a 10 point rating under Table 4.  Rather he only met the requirements for a 5 point rating, resulting in an overall rating of 15 points.

   [9]     Exhibit 8, p 2.

4. Dr Tschirn also gave oral evidence at the hearing, in the course of which he confirmed his opinion that, during the assessment period, Mr Jongerdon met the requirements for a 5 point rating under Table 4, but did not meet the criteria for a 10 point rating. This was partly because the applicable “Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension” (the Guidelines) defined “assistance” as meaning assistance “from another person, rather than any aides, equipment or assistive technology the person has and usually uses”. It was Dr Tschirn’s opinion that, at the relevant time, Mr Jongerdon did not need assistance from another person to get up out of a chair, as opposed to relying on a crutch or other support.

5. Dr Tschirn also modified his opinion with respect to Mr Jongerdon’s degree of impairment under Table 3. He confirmed that it had been his understanding that at the relevant time, Mr Jongerdon could not stand for more than five minutes. However, he indicated that if Mr Jongerdon had in fact been able to stand for 10 minutes or more (as he had indicated in his oral evidence), that would alter his opinion and, if that was the case, his impairment would only attract 5 points under Table 3. Dr Tschirn also acknowledged in the course of his evidence that in order to manage his pain, Mr Jongerdon was taking sedating medications and had been for some time. He indicated that it may accordingly be appropriate to also assess him as suffering from an impairment attracting a rating under Table 7, relating to brain function.

6. In the course of his oral evidence, Dr Tschirn also addressed the possible application of Table 1. He indicated that in his opinion, Table 1 was not the applicable Table for assessing Mr Jongerdon’s impairments as he was not suffering from a generalised pain condition, and it was therefore more appropriate to assess his impairments by reference to the particular body parts which were affected.

7. The Tribunal nevertheless sought Dr Tschirn’s opinion as to what rating may potentially be applicable under Table 1. Dr Tschirn was also asked to assume for this purpose that Mr Jongerdon’s oral evidence as to his restrictions and activities during the assessment period was accurate. Dr Tschirn was accordingly asked to assume that during that time Mr Jongerdon’s restrictions and activities were very similar to what they are now, namely that he did very little during the day, did not walk to local shops or around the supermarket and that he would only make short journeys in his car. Dr Tschirn was also asked to assume that Mr Jongerdon did no household activities of any significance for himself, and that his ex-partner would do things like changing sheets, washing dishes and cleaning.  Dr Tschirn was also asked to assume that Mr Jongerdon would spend the bulk of the day lying down, and that he would use a computer ‘tablet’ whilst lying on the bed rather than sitting at a computer.

8. Assuming that it was open to him to apply Table 1, and also assuming the correctness of Mr Jongerdon’s evidence as to his activities and restrictions during the relevant period, Dr Tschirn indicated that, during the assessment period, Mr Jongerdon probably would have met the criteria for a 20 point rating under Table 1.

   Contemporaneous evidence

9. At the hearing, Ms Riley, who appeared as advocate for Mr Jongerdon, essentially conceded that there was no evidence to justify a 20 point rating during the assessment period under any Table other than Table 1. However, based on Mr Jongerdon’s evidence, the evidence of Dr Tschirn, the content of the Guidelines, and the decision of the SSAT, Ms Riley contended that as at the assessment period, Mr Jongerdon’s impairments did attract a rating of 20 points under Table 1. In support of that position, she urged me to accept Mr Jongerdon’s evidence that his activities and restrictions during the assessment period were essentially the same as they are now.

1. However, one of the difficulties for Mr Jongerdon’s case is that his account at the hearing of what his restrictions were during the assessment period is not entirely consistent with the more contemporaneous records.

2. For example, Mr Jongerdon signed a form on 15 May 2013 (about 5 months before the start of the assessment period) which he gave to Centrelink and in which he stated with respect to his household arrangements “I do all the h/w” and “I do my own shopping”.[10] With respect to what the arrangements were for undertaking household tasks, such as cleaning, washing, gardening and general maintenance, he stated that he and his ex-partner did these things “separately”.[11] In a later form given to Centrelink on 28 October 2013, he also stated that the address of his former partner was “unknown”[12], suggesting he was not in contact with her at that time.

   [10]    Exhibit 1, T9/119.

   [11]    Exhibit 1, T9/119.

   [12]    Exhibit 1, T10/127.

3. In addition, Mr Jongerdon participated in a Job Capacity Assessment (JCA) on 14 November 2013 (during the assessment period). The assessor relevantly recorded the following:

   He reported that he avoids stairs and steps, but can manage 1-2 steps and stated that he is able to stand for about 10 minutes before needing to sit down. He stated that he shops locally and stated that he is able to walk to his local shops and carry a basket to shop. The client stated that he takes high levels of pain medication to manage tasks. … The client advised that he is able to tolerate driving to Adelaide which takes 2 hours if he rests after 1 and a quarter hours. He stated that bending and lifting and twisting are too difficult to sustain due to back pain. The client stated that he is able to bend forward to reach a light item, stating that he can load the dryer with clothes at home. …[13]

   Later in the report, the job capacity assessor also recorded the following:

   On a daily basis the client stated that he sleeps poorly; he advised that after taking pain relief he gets his breakfast and then completes the lighter housework. The client describes this as sweeping the floor with an automated sweeper and tidying. He stated that he then sits on the computer, then feeds his dogs and walks the dogs, ankle pain permitting. He advised that he watches TV, reads and socialises with neighbours, his ex-partner and step children.

   The client stated that he lives near his ex-partner and she visits regularly and assists with housework. He stated that standing is too difficult for him to cook, and he is assisted with this task. In relation to lower limb he reports pain and limitations as detailed in the conditions tab of this report. …[14]

   [13]    Exhibit 1, T36/340.

   [14]    Exhibit 1, T36/343.

4. The difficulty of reconciling the inconsistencies between these contemporaneous records and Mr Jongerdon’s oral evidence is compounded by the fact that, unfortunately, due to pain caused by his conditions and the effects of the medications needed to manage this, Mr Jongerdon left the hearing before completing his evidence. Whilst consideration was given to adjourning the hearing, ultimately both parties submitted that the hearing should be completed in Mr Jongerdon’s absence, noting that scheduled hearing dates had been vacated once previously, and I accepted that the hearing should proceed to completion. Ms Riley expressly acknowledged that to the extent this resulted in less weight being given to Mr Jongerdon’s evidence, because he had not been fully cross-examined, she accepted that consequence.

   Consideration

5. In these somewhat unusual circumstances, I have ultimately concluded that I am not satisfied on the evidence that, during the assessment period, Mr Jongerdon’s restrictions were as great as they are now. I accept that currently, Mr Jongerdon is severely restricted in his daily activities and, due to his impairments, he is not able to walk around a shopping centre or supermarket without assistance, use public transport without assistance, or perform light day-to-day household activities. However, noting that the assessment period was almost two years ago now, and having regard to the contemporaneous evidence, I am not satisfied that Mr Jongerdon was unable to do those things then.

6. In particular, noting the contents of the JCA report which refers to Mr Jongerdon walking to his local shops and also walking his dogs “ankle pain permitting”, I am not satisfied that during the assessment period, Mr Jongerdon was unable to walk around a shopping centre or supermarket, walk from the carpark into a shopping centre or supermarket, use public transport without assistance, or perform light day-to-day household activities.

7. I note that Mr Jongerdon was critical of the JCA report and claimed that there were significant inaccuracies in this. Clearly, it is possible that some aspects of this report are inaccurate. However, I note that Mr Jongerdon was also adamant during his evidence that he had not provided the form referred to above to Centrelink in May 2013, despite this having been signed and dated by him, and stamped as received by the Department of Human Services at Clare on 15 May 2013.

8. It is possible that further oral evidence from Mr Jongerdon may have assisted in explaining and reconciling some of the inconsistencies I have referred to. However, doing the best I can on the evidence I have, I have ultimately concluded that Mr Jongerdon’s recollection of his degree of impairment during the assessment period is to some degree inaccurate, and he was less restricted then than he is now.

9. That being the case, I have also concluded that, even assuming Mr Jongerdon’s impairments could appropriately be assessed under Table 1, during the assessment period, he would not have met the criteria for a 20 point rating under Table 1.

10. In these circumstances, it is unnecessary for me to formally determine the question of whether Mr Jongerdon’s impairments can appropriately be assessed under Table 1. That is because, as there is no evidence to support the allocation of a 20 point rating under any other Table, and I am not satisfied on the evidence that it would be open to allocate a rating of 20 points under Table 1, it follows that, during the assessment period, Mr Jongerdon did not have a “severe impairment”. As he also did not meet the program of support requirements during the assessment period, he therefore did not qualify for DSP at that time. In light of that conclusion, it is also unnecessary for me to address the question of whether, during the assessment period, Mr Jongerdon had a continuing inability to work.

11. As I have concluded that Mr Jongerdon did not qualify for DSP during the assessment period, I am obliged to set aside the decision of the SSAT of 6 May 2014 and substitute a decision that, during the assessment period, Mr Jongerdon did not qualify for DSP.

    DECISION

12. The reviewable decision of the SSAT dated 6 May 2014 is set aside and, in substitution for that decision, it is decided that, during the assessment period, Mr Jongerdon did not meet the qualification requirements for payment of DSP contained in s 94 of the Act.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Associate

Dated 20 January 2016

Dates of hearing	16 and 17 September 2015
Solicitors for the Applicant	Mr A Schatz Australian Government Solicitor
Solicitors for the Respondent	Ms M Riley Welfare Rights Centre (SA) Inc.