Kara and Secretary, Department of Social Services (Social services second review)
[2020] AATA 393
•5 March 2020
Kara and Secretary, Department of Social Services (Social services second review) [2020] AATA 393 (5 March 2020)
Division:GENERAL DIVISION
File Number(s): 2018/6679
Re:Emine Kara
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:5 March 2020
Place:Sydney
The decision under review is set aside. The Tribunal remits the matter to the Chief Executive Officer – Centrelink:
(a)with findings that the Applicant satisfies section 94(a) and (b) of the Social Security Act 1991 (Cth);
(b)in view of those findings, to determine whether the program of support requirements have been met in the light of the Applicant’s status as a DSP recipient during the period 29 December 2013 to 30 December 2016; and
(c)if so, the Applicant’s claim for disability support pension is successful from the date it was made.
..........................[sgd]..........................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during qualification period – whether conditions fully diagnosed, treated and stabilised – lumbar spine condition – knee and shoulder conditions – diabetes – migraine –hypertension – morbid obesity/thyroid – whether impairments attracts 20 points or more under the Impairment Tables – continuing inability to work – whether applicant completed a Program of Support – POS Determination – whether applicant covered by a participation exemption – decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Social Security Act 1991 (Cth) ss 26, 94, 94A, 94F
Social Security (Administration Act) 1999 (Cth) s 42, Sch 2Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act 2012 (Cth)
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Crossland and Secretary, Department of Families and Community Services [2004] AATA 864
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov v Centrelink [2003] FCAFC 133
Galbraith and Secretary, Department of Social Services [2015] AATA 950
Jess v Scott and Others (1986) 70 ALR 185
Kumar and Secretary, Department of Social Services [2014] AATA 442
Rekic and Secretary, Department of Social Services [2015] AATA 369
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Secretary, Department of Social Services and Hamcho [2016] AATA 361
Secretary, Department of Social Services and Pusnjak (1999) 56 ALD 444
Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569
Summers and Secretary, Department of Social Services [2014] AATA 165Woodiwiss and Secretary, Department of Families and Community Services [2003] AATA 846
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Active Participation for Disability Support Pension) Determination 2014 s 7
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 6, Tables 3, 4 & 12
Social Security (Active Participation for Disability Support Pension) Determination 2014 ss 5, 7REASONS FOR DECISION
Chris Puplick AM, Senior Member
5 March 2020
A case where compliance is demanded and that compliance does not appear to have been possible
Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) lays upon this Tribunal (inter alia) an obligation to:
Pursue the objective of providing a mechanism of review that is ….fair, just, economical, informal and quick….
It is the review mechanism which is to be “fair” and “just” but hopefully so will be the outcomes of that review mechanism. The search for a fair and just outcome for the Applicant in this case is far from easy because, as explained below, she is caught in a “Catch-22” situation in which she was required to do something which she was not capable of doing. That is neither fair nor just.
Background
This is an application to the Tribunal to review a decision made by the Social Security and Child Support Division of this Tribunal (AAT1) on 15 October 2018.
The Applicant is Mrs Emine Kara and in these proceedings the Respondent is the Secretary, Department of Social Services (the Department).
History of proceedings
On 30 December 2016 the Applicant lodged an application for the Disability Support Pension (DSP). That claim was assessed by the Respondent and on 27 March 2017 was rejected. That rejection decision was reviewed by an Authorised Review Officer (ARO) of the Department who affirmed it on 31 May 2018.
The Applicant sought to have that decision reviewed by the AAT1 which on 15 October 2018 affirmed it. The Applicant then applied, on 13 November 2018, to have that decision reviewed by this Tribunal. The hearing of that application took place on 21 February 2020.
Before considering the matters raised in the application it is necessary to set out in some detail the legislative scheme and operational requirements related to the DSP.
The Disability Support Pension Scheme
In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act1991 (Cth) (the Act). Section 94 has three distinct limbs:
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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;…
In essence, these requirements or criteria amount to this:
·the person has a physical, intellectual or psychiatric condition;
·the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria, set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment). Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;
·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;
·the person has turned 16; and
·the person is an eligible citizen or qualifying resident.
Failure to meet any one of these requirements is fatal to an applicant’s claim for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:
·fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These important terms are defined in the Impairment Tables[1] as follows:
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) section 6.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.
A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:
(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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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.
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
Generally the Tribunal is required to make its findings on the evidence which is before it at the time of its final decision-making. This is not the case when considering DSP applications. In these cases the Tribunal must have regard to the applicant’s status at the time when they made the application and in the 13 week period thereafter.[2]
[2] Social Security (Administration Act) 1999 (Cth) (Administration Act) section 42 and Schedule 2.
In this instance that means a period from 30 December 2016 to 31 March 2017 which is referred to as the “qualifying period”.
The Applicant’s impairments
During the qualifying period the Applicant had reported various impairments:
(d)“unable to bend knees + pain/aches”;
(e)back pain (lower + slipped disc);
(f)hypertension/headaches/dizziness;
(g)diabetes;
(h)anxiety;
(i)overactive thyroid;
(j)depression;
(k)left eye vision impairment; and
(l)carpal tunnel.
The Respondent subsequently accepted for consideration under the Act the following conditions:
(a)osteoarthritis (knees);
(b)lumbar spine condition;
(c)diabetes mellitus (including diabetic retinopathy);
(d)migraine;
(e)bilateral shoulder condition;
(f)hypertension;
(g)morbid obesity; and
(h)thyroid condition.
AAT1 Impairment Ratings
In its consideration of these conditions, the AAT1 was prepared to award impairment points only to one of these conditions, namely the diabetes. This condition manifests itself in the Applicant suffering a degree of vision impairment (diabetic retinopathy) to which the AAT1 ascribed a rating of five (5) points.[3] The Tribunal found that the other conditions, while fully diagnosed were not fully stabilised and treated.
[3] Section 37 Tribunal Documents at [6].
It gave the Applicant no further points on the Impairment Tables and, as a result, with the Applicant not reaching the threshold level of 20 points, it found it unnecessary to give any consideration to the third limb of section 94, the work test.[4]
[4] Ibid at [8].
Respondent Impairment Ratings
Between the decision of the AAT1 and the Respondent’s preparation of submissions for the hearing at this Tribunal the Respondent has had occasion to review the findings of the AAT1 itself.
What it has found is that the conditions of osteoarthritis (knees) and lumbar spine condition were in fact fully diagnosed, treated and stabilised as at 30 December 2016 and as such, should have been assigned an impairment rating.
The Respondent maintains that the other remaining conditions of migraines, bilateral shoulder condition, hypertension, morbid obesity and thyroid condition were fully diagnosed on 30 December 2016, but not fully treated and stabilised during the qualification period.
The Respondent then examined the medical and testimonial evidence presented by the Applicant in relation to these two additional conditions and found that in respect of the osteoarthritis (knees), when assessed against the criteria in Impairment Table 3 (Lower Limb Function) an impairment rating of 10 (ten) points was justified.
In relation to the lumbar spine condition, by considering the ratings schedule in Impairment Table 4 (Spinal Function), the Respondent assessed that the Applicant qualified for a rating of 5 (five) points.
The Respondent agreed with the AAT1 in relation to the five (5) point rating for the diabetic retinopathy assessed under Impairment Table 12 (Visual Function).
As a result of these revisions, the Respondent accepts that the Applicant has reached the 20 point threshold (10+5+5) established under section 94(1)(b).[5]
[5] Respondent’s Statement of Facts, Issues and Contentions at [7.2].
Tribunal Impairment Ratings
It is not appropriate for the Tribunal simply to accept the assessments of the Respondent which are obviously at odds with those of the AAT1. It has a responsibility to make its own assessment on the facts before it.
However, it should be noted that even were the Tribunal to find that any of the impairment ratings should be higher than those assessed by the Respondent, unless it were to find that any one of them (on its own) rated 20 points, then arriving at a score above 20 points would have no practical effect in relation to the further assessment for DSP eligibility.
The Tribunal agrees with the assessment of 5 points in relation to the condition of diabetic retinopathy based upon the assessments provided by the ophthalmologist Dr Stephen Ong noting poor vision in the left eye and slightly reduced vision in the right.[6]
[6] Section 37 Tribunal Documents at [309].
Similarly it agrees with the 5 point assessment related to the lumbar spine condition which is based on the evidence given to the AAT1[7] and to the second Job Capacity Assessor, especially in relation to her (then) capacity to lift items due to limitations on bending forward.[8]
[7] Ibid at [6]-[7].
[8] Ibid at [339].
The Tribunal also notes that in the ten years prior to lodging her DSP claim the Applicant was able to make 9 visits to Turkey[9] of 3 to 7 months duration and on 2 December 2016 (less than a month before claim lodgement) she returned from Turkey. It is thus clear that she had, at the qualifying time, a capacity to endure the rigours of the approximately 19 hour flight from Turkey without a compromise of her ability to sit for prolonged periods.
[9] Ibid at [401].
In evidence to the Tribunal the Applicant stated that on these flights she had the assistance of her husband. Although the couple were “separated” at the time[10] they nevertheless travelled together to and from Turkey on this occasion and he provided assistance to her at the airport (assisting her with the use of wheelchair and at check-in arrangements). The presence of her husband on these occasions was not something which was evident at the time of the initial assessment of her capacities to undertake these long flights, for example the Job Capacity Assessor recording, on 7 March 2017 that, “The client reported she recently travelled overseas independently…”.[11]
[10] Ibid at [268].
[11] Ibid at [311].
It was evident to the Tribunal that the Applicant’s osteoarthritis (knees) impairment was somewhat greater than as simply set out for the 10 point level of Impairment Table 3.
This view was reinforced by the significant and helpful evidence given to the Tribunal in oral evidence by Dr Esin D Ozme. This complemented her written submissions.[12] Dr Ozme has been the Applicant’s general practitioner for well over ten years and was in a position to comment both on her current conditions and on her condition during the qualifying period.
[12] Ibid at [245]-[253] and particularly Dr Ozme’s reports dated 27 May 2019 & 18 September 2019.
It was her evidence that the Applicant “requires assistance by another person from 30.12.6 (sic) onwards” because of her “knee OA (and) TKR”[13] (that is her right knee osteoarthritis and total knee replacement). The doctor’s evidence was that during the qualifying period the Applicant had severe motor limitations and impediments and that she was generally unable to move about, even with the use of two walking sticks without further human assistance. She stated that the Applicant needed assistance and had to “hold onto someone to walk along” because she had a very limited sense of balance.
[13] Dr Ozme’s report dated 18 September 2019.
Whereas the AAT1 recorded that: “Moving her head from side to side and up and down to see what is ahead when driving exacerbates the pain”,[14] both the Applicant and her daughters attested that she had never held a driver’s license.
[14] Section 37 Tribunal Documents at [6].
The doctor’s reference to “assistance from another person” is particularly significant in that the Tribunal has held that the term “assistance” as used in the Impairment Tables refers to assistance from another person and not merely the assistance of mechanical devices such as wheelchairs, walking sticks or frame etc.[15]
[15] Summers and Secretary, Department of Social Services [2014] AATA 165 at [17].
It is to those Tables that the Tribunal now turns. Table 3 (Lower Limb Function) outlines the 10 point impairment level as follows:
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
(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).
The next step on the Table is the 20 point assessment:
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.
Where a person falls somewhere between any two levels on the Tables, section 11(c) of the Tables comes into effect. It provides:
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
Judicial authority on this point indicates that where a rating is regarded as “severe” it requires that “assistance” is required in relation to all of the described activities[16] and further, that that assistance must need to be provided by a person and not by some object, physical aid or mechanical device.[17]
[16] Secretary, Department of Social Services and Hamcho [2016] AATA 361 at [42].
[17] Summers and Secretary, Department of Social Services [2014] AATA 165 at [17].
Evidence from Dr Ozme, from the Applicant and from her daughters who represented her at the hearing, was all to the effect that the Applicant has significant limitations on her mobility and that generally she needs the assistance of another person to assist with such things as shopping, walking around a supermarket or walking from a car to appointments at the doctor’s or similar places. This is generally in line with the assessments reported by the Job Capacity Assessors.[18]
[18] E.g. Section 37 Tribunal Documents at [311].
The Applicant does not use public transport. She has never held a driver’s licence and is totally dependent on others to travel any distance from her home.
When travelling on the various overseas flights which she has taken the Applicant reported that she needs assistance at the airport (see above) but once on the aircraft she is able to leverage herself out of her seat and move to the toilets by holding onto the backs of the chairs in each row as she moves along. She does not need physical help from others once in the bathroom or with toileting arrangements.
In relation to the criteria set out for 20 points, the Tribunal is satisfied that the Applicant meets those described in sections 1(a)(i) and (ii) and sections (1)(b) and (2)(b).
However it cannot be satisfied that the criteria in (1)(a)(iii) and (2)(a) are met. The Applicant can meet these conditions, albeit with difficulty and in pain. The Table is specific in stating that an Applicant must be unable to undertake any of the prescribed activities and the Applicant can undertake some. In this respect the Applicant is in the same position as was described in Galbraith[19] where it was found that where some of the functions could be managed, the Applicant was not able to meet the 20 point threshold. Although this Applicant’s condition is significantly worse than the 10 point threshold it fails to achieve the level of being “severe” and thus attracting 20 points.
[19] Galbraith and Secretary, Department of Social Services [2015] AATA 950 at [41]-[48].
The Applicant thus has a rating of 10 (ten) Points on the Lower Limb Function table (in relation to her condition of osteoarthritis (knees)) and a cumulative score of 20 (twenty) points.
Continuing inability to work (CITW)
Having satisfied the first two limbs of section 94 – having an impairment and reaching the 20 point threshold, an Applicant must also satisfy the third limb which relates to a continuing inability to work (CITW). The definition of a CITW is set out above.
“Work” itself is defined in subsection 94(5) of the Act, as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and that exists in Australia, even if not within the person's locally accessible labour market.
A “severe impairment” (subsection 94(3B)) is an impairment that achieves 20 points or more under a single Impairment Table.
A training activity means education, pre-vocational training, vocational training, vocational rehabilitation or work related training (including on-the-job training) whether or not that activity is designed specifically for people with impairments (section 94(5)).
Section 94(3) of the Act then starts to set out the factors which are not to be taken into account when determining if a person has a CITW:
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
In addition the courts have held that other factors which are not to be considered or are not relevant unless they are directly related to or caused by the relevant impediment, include:
·the person’s motivation to work[20]
·the persons’ preference for types of work[21]
·the potential attractiveness of the person to an employer[22]
·difficulties with language, literacy or numeracy.[23]
[20] Secretary, Department of Social Services and Pusnjak (1999) 56 ALD 444.
[21] Crossland and Secretary, Department of Families and Community Services [2004] AATA 864.
[22] Woodiwiss and Secretary, Department of Families and Community Services [2003] AATA 846.
[23] Guide to Social Security Law at 3.6.2.112.
Section 94(5) of the Act defines what constitutes a program of support (POS):
“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.
It is then necessary to have reference to what is called the POS Determination which is made as a legislative instrument under section 94(3C) of the Act and establishes the “rules” for the operation of the POS scheme.
The POS Determination provides, in essence, that a person must participate in a Program of Support for at least 18 months during the 36 months ending immediately before the relevant date of claim before they can be taken to have actively participated in a program of support.[24]
[24] Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) sections 5(1) and 7(2).
There are exceptions to this requirement as set out in sections 7(3), 7(4) and 7(5) of the POS Determination:
(a)the person has completed a program that ran for a period of less than 18 months;
(b)the person was participating in a program that was terminated before the person claimed the pension, because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation; or
(c)the person is participating in the program at the time of their claim but is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation.
It does not appear that the Applicant ever participated in, or attempted to participate in a POS during the three year period prior to lodging her claim on 30 December 2016. That, and not the qualifying period, is the period of time in which POS activity is required to have taken place.[25] The Applicant did not apply for an exemption from this requirement which, if granted on medical grounds, would have allowed her to avoid being covered by its provisions.[26]
[25] Rekic and Secretary, Department of Social Services [2015] AATA 369.
[26] Kumar and Secretary, Department of Social Services [2014] AATA 442.
Applicant’s DSP history
It is necessary to examine the Applicant’s previous history of payment of the DSP.
The Applicant was first awarded the DSP on 28 January 1993 when she was rated with a score of 20 points using the previous Impairment Tables.[27] She was then on and off the DSP until it was cancelled on 2 August 2016. During this period there were cancellations and suspensions of the DSP – in each case because the Applicant travelled overseas for longer than the allowed portability period of 4 weeks.[28]
[27] As per the previous Schedule 1B of the Act.
[28] Guide to Social Security Law at 7.1.2.20.
The Applicant was paid the DSP as follows:[29]
(a)28 January 1993 to 4 June 2000
(b)20 February 2001 to 25 June 2009
(c)24 September 2009 to 20 September 2102
(d)26 November 2012 to 26 October 2014
(e)1 January 2015 to 2 August 2016.
[29] Section 37 Tribunal Documents at [399].
The Applicant applied for renewal or restoration of the DSP on 30 December 2016. Hence the requirement to participate in the POS commenced on 29 December 2013.[30] During this period the Applicant was not in receipt of the DSP only from 26 October 2014 to 1 January 2015, a period of approximately 9 weeks. Furthermore, in this period she was actually overseas.[31]
[30] Respondent’s Statement of Facts, Issues and Contentions at [8.14].
[31] Section 37 Tribunal Documents at [401].
In submissions to the Tribunal, the Applicant’s daughters told the Tribunal that they had attended the Centrelink offices prior to the lodging of the DSP application on 30 December 2016 and had been advised that, rather than apply for the pension restoration it would be easier to lodge a new application. It appears that had they not taken this course of action, but rather had appealed its cancellation, the question of the POS might never have arisen. This however is only a matter of speculation.
Considerations
The particular circumstances of this case have thrown up some unusual matters for the Tribunal’s consideration given the intersections of the AAT1 initial determination; the Secretary’s acceptance of the Applicant’s 20 point qualification and the Applicant’s previous DSP history.
“Catch 22”
In 1961 Joseph Heller published a novel which is now regarded as something of classic: Catch 22. A Catch-22 is a paradoxical situation from which an individual cannot escape because of contradictory rules or limitations. The paradox is set out as follows:
"You mean there's a catch?"
"Sure there's a catch," Doc Daneeka replied. "Catch-22. Anyone who wants to get out of combat duty isn't really crazy."
There was only one catch and that was Catch-22, which specified that a concern for one's own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane, he had to fly them. If he flew them, he was crazy and didn't have to; but if he didn't want to, he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
“That’s some catch, that Catch-22”, he observed.
“It’s the best there is”, Doc Daneeka agreed.[32]
[32] Joseph Heller: Catch 22 (Corgi Books, London, 1970 edition) page [54].
Here is the Applicant’s “Catch 22”. The Secretary asserts that she cannot be awarded the DSP because, in the period 29 December 2013 to 30 December 2016 she did not attempt a POS, let alone complete 18 months as required.
The reason she did not attempt a POS was that she was on the DSP.
The Applicant has not met the requirements because she could not meet the requirements.
As the distinguished American Judge Richard Posner once stated: “Go figure”.[33]
[33] Baskin et al v Bogan et al, United States Court of Appeal for the Seventh Circuit, Nos. 14-2386 to 14-2388, decided 4 September 2014 at page [20].
In attempting to “figure”, the Tribunal has sought a fair and just outcome for all parties within the obscure crevices of the Act itself.
It would have been relatively easy to simply determine that the Applicant scored 20 points on the one impairment (the Lower Limb Function) and thus avoid the entanglement of the whole POS requirement. However, that would have required, on the part of the Tribunal, an act of impermissible creativity.
Certain changes were made to the Act by passage of the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act 2012 (Cth). That Act introduced several new sections into section 94 of the Act, one of which, section 94F, allowed for a temporary exemption from the POS requirements in “special circumstances”. It provides:
94F Special circumstances
A person is covered by a participation exemption for a period determined by the Secretary if:
(a) the Secretary is satisfied that special circumstances, beyond the person's control, exist; and
(b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to meet the participation requirements for that period.
This exemption is qualified by the provision that the exemption period may not be longer than 13 weeks (section 94F(2)) and that the new arrangements apply to situations as of 1 July 2012.
As with so many key concepts in the Act, the term “special circumstances” is not given any precise definition. Without going into extensive detail, it can be said that the courts have identified a number of factors which go to establishing whether or not “special circumstance” exist. They must be:
·Something more than ordinary or usual[34]
·Markedly different from the usual run of cases – not necessarily unique but having a particular quality of unusualness[35]
·Somehow distinguishing from usual cases of an analogous nature[36]
·Attuned to the individual circumstances of each case[37]
·Not so rigidly applied as to risk harsh or unreasonable outcomes[38]
·Supportive of the overall integrity of the social security system and recognising the public interest in ensuring that public moneys are recovered where they can and should be.[39]
[34] Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25; Jess v Scott and Others (1986) 70 ALR 185.
[35] Re Beadle and Director General of Social Security (1984) 6 ALD 1 at [3].
[36] Dranichnikov v Centrelink [2003] FCAFC 133.
[37] Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114.
[38] Secretary, Department of Social Security v Hales (1998) 82 FCR 154.
[39] Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569; Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, Secretary, Department of Social Security v Hales (1998) 82 FCR 154.
The Tribunal accepts that there are “special circumstances” in this case. It is unusual that a POS requirement is imposed upon an individual who, during the relevant period, was already in receipt of the DSP. There do not appear to be any immediately analogous cases. The individual circumstances of the Applicant’s lengthy period of DSP receipt (since 2000 interrupted only by portability issues) take it out of the realm of the ordinary or usual. Not to apply special circumstances here would risk an unreasonable outcome.
It must be obvious that it is unreasonable to expect the Applicant to meet the participation requirements for the period of either the time that she was already in receipt of the DSP or the period in which it was suspended or cancelled due to her absence overseas.
Those 2012 amendments outlined above, also provided, in the new section 94B that:
“(1) If a participation plan is not in force in relation to the person, the Secretary may require the person to enter into a participation plan under this section.” (emphasis added)
In other words, there are also circumstances in which the Secretary has, at least in relation to certain, and maybe all, DSP recipients, a discretion not to require a POS to be undertaken.
This lengthy digression has been undertaken simply to illustrate that there are mechanisms under the Act which allow for special circumstances to be taken into account and for the Secretary to exercise discretion in relation to the suite of POS requirements.
The extent to which any of them apply directly to the Applicant is unclear on all the material before the Tribunal.
Similarly, the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides:
7 Requirements for active participation
(1) A person has actively participated in a program of support if the person satisfies the following requirements:
……..
(c) subsection (6) is satisfied in relation to the person and the program of support.
and
Information required to be provided to the Secretary
(6) This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following information in relation to the program of support:
……….
(e) the reason for any period during which the person did not participate in the program;
There appears here to be some sort of recognition that it may be possible that there are circumstances in which an Applicant is unable to participate in a POS and these reasons are to be taken into consideration by the Secretary when determining whether or not that person has “actively participated” in a POS.
DECISION
The decision under review is set aside.
The Tribunal remits the matter to the Chief Executive Officer – Centrelink:
(a)with findings that the Applicant satisfies section 94(a) and (b) of the Social Security Act 1991 (Cth);
(b)in view of those findings, to determine whether the program of support requirements have been met in the light of the Applicant’s status as a DSP recipient during the period 29 December 2013 to 30 December 2016; and
(c)if so, the Applicant’s claim for disability support pension is successful from the date it was made.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
............................[sgd]........................................
Associate
Dated: 5 March 2020
Date of hearing: 21 February 2020 Advocates for the Applicant: Ms D Kara & Ms T Ozturk Solicitors for the Respondent: Ms C Hammerton, Department of Human Services
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