JYJF and Secretary, Department of Social Services
[2014] AATA 862
•20 November 2014
[2014] AATA 862
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/4160
Re
JYJF
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 20 November 2014 Place Brisbane The Tribunal affirms the decision under review.
................................[Sgd]........................................Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – Impairment points – Continuing inability to work did not exist at date of cancellation – Decision under review affirmed.
LEGISLATION
Social Security (Administration) Act 1999 (Cth), s 80
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5
Social Security Act 1991 (Cth), ss 26, 27, 94The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011(Cth), s 5
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
20 November 2014
INTRODUCTION
I have to determine whether the Applicant’s disability support pension (“DSP”) should have been cancelled. The Applicant is gainfully employed by as a school teacher. In these reasons which are a matter of public record I have decided not to disclose her name or the school where she works.
BACKGROUND
The Applicant was granted DSP with effect from 10 February 2010 in respect of a psychological condition. Her condition was reviewed in 2014. On 3 March 2014 the Applicant underwent a Job Capacity Assessment (“JCA”). The JCA assessor found that the Applicant had an impairment of five points under Table 5 - Mental Health Function (“Table 5”) of the Impairment Tables.[1] The assessor noted that the Applicant reported that she was working as a secondary school teacher in a “0.5 position, which is around 15hrs/week. These hours have fluctuated, up to fultime [sic], but [felt] that fultime [sic] work was too much for her to maintain”. The assessor evaluated the Applicant’s work capacity at 15-22 hours per week within two years of intervention. On 6 March 2014 a clinical psychologist from Centrelink’s Health Professional Advisory Unit concluded that the Applicant had a five point impairment rating under Table 5.
[1] The provision of a legislative instrument which contains the Impairment Tables, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), is provided for atOn 10 March 2014 (“the date of cancellation”) a delegate of the Respondent made a decision to cancel DSP. The delegate had found that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
The Applicant sought internal review of the decision. On 12 April 2014, an
Authorised Review Officer (“ARO”) affirmed the decision. On 29 July 2014 the
Social Security Appeals Tribunal (“SSAT”) affirmed the decision. The Applicant now seeks review of the decision by this Tribunal.
RELEVANT LEGISLATION
The qualifications for DSP are set out in s 94 of the Social Security Act 1991 (Cth) (the Act) which provides:
94 Qualification for disability support pension–continuing inability to work
(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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system ;
There are a number of Ministerial Determinations which have the force of law.[2] The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Disability Support Pension Determination”) came into force on 1 January 2012. The Disability Support Pension Determination contains the Impairment Tables which are function based and are intended to determine the level of functional impact of impairments (s 5 of the Disability Support Pension Determination). The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
(“the Active Participation Determination”) came into force on 3 September 2011.
Section 5 of the Active Participation Determination sets out the requirements for active participation.
[2] See ss 27, 94(3C) and 94(3E) of the Act.
The Secretary is authorised to cancel a payment under s 80 of the
Social Security (Administration) Act 1999(Cth) (the Administration Act) which provides:
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
ISSUES
The Secretary has quite properly conceded that the Applicant has impairments for the purposes of s 94(1)(a) of the Act.
I have to determine whether, as at 10 March 2014, the Applicant had:
·an impairment of 20 points, or more, under the Impairment Tables; and
·a “continuing inability to work” (s 94(1)(c)(i) of the Act).
CONSIDERATION
In issue is whether at the date of cancellation the Applicant had impairments of 20 points for the purposes of section 94(1)(b) of the Act.
Mental health condition
There is no issue that the Applicant had a fully diagnosed, fully treated and fully stabilised depression and anxiety condition, as at the date of cancellation, which has been appropriately rated under Table 5.
The Applicant sought a consultation with Dr Tucker, psychiatrist. On 22 April 2014
Dr Tucker diagnosed that the Applicant has a Posttraumatic Stress Disorder (“PTSD”) condition with a diagnosis date of 25 March 2014. This PTSD condition was not diagnosed before or at the time of the cancellation, and therefore any impairment resulting from the condition cannot be taken into account for the purpose of an assessment under Table 5.
The critical issue for determination by the Tribunal is therefore what the correct rating of the Applicant’s impairment was at the date of the cancellation which resulted from the anxiety and depression condition. The Applicant underwent a JCA on 3 March 2014 in which she reported that: she was able to manage her own household, care for her grandchild fulltime, “perform the usual chores necessary to do… such as mowing the lawns, shopping and managing her own finances”. The Applicant also reported that she was able to drive around locally, and also mentioned that she had supporting friends who helped her over the years and that was able to travel to Thailand for a holiday during October 2013. Whilst the Applicant reported having difficulty with organising and planning, she also reported being able to study undergraduate and post graduate degrees, a post graduate certificate and a ‘Cert II in IT’ since being granted DSP. The Applicant also reported being able to work as a part-time secondary school teacher in a part time capacity (up to 15 hours per week), with periods of full time work.
The JCA assessor calculated the Applicant’s impairment to be a five point rating under Table 5. On 6 March 2014 this assessment was confirmed by a clinical psychologist.
Dr Tucker in his report of 30 May 2014 opined that the Applicant suffered from a ten point impairment rating as a result of her psychological conditions. I consider that it is fair to accept that unchallenged assessment from a senior specialist. I therefore consider that the Applicant should be assigned a rating of 10 points under Table 5.
Orthopaedic conditions
Prior to the date of cancellation there is no evidence of any impairment from the orthopaedic conditions of the Applicant. The Applicant’s general practitioner provided a DSP medical report on 28 January 2014,[3] and in that report there is no mention of any orthopaedic condition that was causing impairment to the Applicant. Centrelink had requested the Applicant to provide an assessment of her medical conditions. On 29 January 2014[4] the Applicant remarked that she suffered from “chronic depression; anxiety; panic attacks”, however she did not mention any impairment caused by her orthopaedic conditions. The statement made by the Applicant after the date of cancellation is consistent with her not having any physical impairment. In her statement of 14 April 2014, the Applicant stated that “my mental illness is not a ‘brain injury’, nor am I physically handicapped”.[5] In that statement she also remarked: “Whenever I perform a physical task such as mowing the lawn I have to do it in stages due to constantly feeling irritated and anxious”.[6]
[3] Exhibit 1, T 16, page 120.
[4] Exhibit 1, T17, page 127.
[5] Exhibit 1, T 25, page 153.
[6] Exhibit 1, T 25, page 153.
There is specialist evidence in the form of a report from orthopaedic surgeon Dr Watson that the Applicant suffered from a C7 nerve root compression. In a DSP medical report dated 19 May 2014, Dr Watson advised that the Applicant had been diagnosed with
“L C7 nerve root compression with radiculopathy” and “cervical and lumbar neuralgia and tendonitis of L hip”.[7] Dr Watson advised that the date of onset of these conditions was mid-April 2014, that the nerve root compression condition was first diagnosed on
1 May 2014 and that the neuralgia condition was first diagnosed in 2011.
[7] Exhibit 1, T 32, page 183.
The C7 nerve root compression occurred after the date of the cancellation. As at the date of cancellation, there is no evidence before me to enable me to assign an impairment rating other than zero points for the cervical and lumbar neuralgia under Table 4. There is no evidence of any functional impact caused by the osteoarthritis of the left hip condition.
Combined impairment rating
I find that the Applicant had a combined impairment rating of 10 points as at the date of cancellation and did not satisfy s 94(1)(b) of the Act and was therefore not qualified for DSP.
Continuing inability to work
I will now consider whether the Applicant had a continuing inability to work.
The term “continuing inability to work” is defined in subsection 94(2) of the Act, which provides:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
...
(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.
The term “work” is defined in subsection 94(5) of the Act, as work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
Prior to the hearing the statement of facts, issues and contentions provided by the Respondent contained the submission that the Applicant did not have a continuing inability to work at the date of cancellation. During the hearing the Respondent made a concession that the Applicant did have a continuing inability to work at the date of cancellation. The concession had not been communicated to the Tribunal prior to the hearing, and the respondent did not provide me with any information as to why this concession was made. I stated during the hearing that the Tribunal was not bound by a concession where no reasons were provided for the concession. In the hearing I stated that I could not accept such a concession where there was evidence before the tribunal that the Applicant was being paid for more than 15 hours a week.
The case for the Applicant was essentially that her hours of class contact amounted to less than 15 hours a week. I accept that in some weeks she may have less than 10 hours class contact. However, her work as a teacher also included work outside the class room such as preparation and marking. The payslips for the period 12 December 2013 to
12 March 2014 indicate that the Applicant was paid for 38 hours of work per fortnight. This was the rate of payment as at the date of cancellation
I find that at the date of cancellation the Applicant did not have a continuing inability to work and did not satisfy s 94(1)(c) of the Act.
DECISION
I affirm the decision under review.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member. ..........................[Sgd]..............................................
Associate
Dated 20 November 2014
Date of hearing 3 October 2014 Applicant In person Solicitors for the Respondent Nick Warren, Department of Human Services
s 26 of the Act.
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