Keast and Secretary, Department of Social Services (Social services second review)
[2016] AATA 246
•19 April 2016
Keast and Secretary, Department of Social Services (Social services second review) [2016] AATA 246 (19 April 2016)
Division
GENERAL DIVISION
File Number
2015/0019
Re
Glenys Keast
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 19 April 2016 Place Adelaide The Tribunal affirms the decision under review.
........... [Sgd ]......................................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether impairment rating of 20 points or more existed under the Impairment Tables – reports of medical practitioner and psychologist considered – Job Capacity Assessment report considered – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), cl 4(1) of Schedule 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member R W Dunne
19 April 2016
INTRODUCTION
The applicant in this case is Glenys Keast. A claim for disability support pension (“DSP”) was lodged on 30 August 2013. When an employee of the respondent decided to reject the claim, an authorised review officer (“ARO”) affirmed the decision.
The applicant then applied to the Social Security Appeals Tribunal (“SSAT”) for review. The applicant has applied to this Tribunal for further review of the decision of the SSAT.
At the hearing, Ms Keast represented herself and the respondent was represented by Mr A Hay (from the FOI & Litigation Branch, Department of Human Services). I admitted into evidence the T-documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act, 1975.[1]
[1] Exhibit R1.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal, in relevantly considering s 94 of the Social Security Act 1991 (“Act”), is whether on the date of her claim for DSP (or within 13 weeks of that date) the applicant had an impairment rating of at least 20 points under the Impairment Tables.
LEGISLATION
The legislation relating to claims for DSP and the reference to the Impairment Tables is set out in the provisions of s 94 of the Social Security Act 1991 (“Act”), which relevantly read:
“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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i) the person is under 35 years of age;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii) if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
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
(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.
Note: For work see subsection (5).
(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.
(3A) If:
(a) a person is receiving disability support pension; and
(b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
then paragraph (2)(aa) of this section does not apply in relation to that assessment.
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.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
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).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
Other definitions
(5) In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find and 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.
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
work means 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.
…”
Also relevant in these proceedings is cl 4(1) of Schedule 2 to the Social Security (Administration) Act, 1999 (“Administration Act”), which reads:
“4 Start day—early claim
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.”
SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“Determination”)
The Impairment Tables were previously set out in Schedule 1B to the Act. They are now contained in the Determination, which relevantly reads:
“6. Applying the Tables
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note:For additional information that must be taken into account in applying the Tables see section 7.
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
Note: For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
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
Note:For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(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.
Note:For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
…”
SOCIAL SECURITY (REQUIREMENTS AND GUIDELINES – ACTIVE PARTICIPATION FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“REQUIREMENTS AND GUIDELINES”)
The Requirements and Guidelines set out what must be taken into account in determining whether a person has actively participated in a program of support for the purposes of determining whether the person is qualified for DSP. The Requirements and Guidelines relevantly read:
“Part 1 Preliminary
…
3. Interpretation
In this Determination:
Act means the Social Security Act 1991.
designated provider means any of the following:
(a)a Job Services Australia provider;
(b)a Disability Employment Service;
(c)an Australian Disability Enterprise;
(d)a provider authorised by a State or Territory government to conduct a transition to work program;
(e)a provider authorised by the relevant workers’ compensation authority of the Commonwealth, or of a State or Territory, as a result of a claim made under the relevant legislation of the Commonwealth, State or Territory;
(f)a provider authorised by an insurer as a result of a claim under a contract of insurance for an accident (including a motor vehicle accident), sickness or other trauma;
(g)a provider that provides a program that satisfies paragraph (a) and subparagraph (b)(ii) of the definition of program of support in subsection 94(5) of the Act.
Part 2 Requirements for active participation
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 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.
Part 3 Guidelines
6. Program of support
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:
(a) was provided by a designated provider; and
(b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and
(c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment (including self-employment); and
(d)includes at least one of the following activities;
(i)job search;
(ii)job preparation;
(iii)education and training;
(iv)work experience;
(v)employment;
(vi)return to work;
(vii)vocational or occupational rehabilitation;
(viii)injury management;
(ix)an activity designed to assist the person to return to, maintain or obtain employment.
7. Material to be taken into account
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary may take into account any material or document that:
(a) relates to the person’s participation in a program of support; and
(b)relates to a program of support undertaken in the 36 months prior to the relevant date of claim.
…”
MATERIAL FACTS
The material facts in this case are largely not in dispute. For the most part they have been extracted from the respondent’s Statement of Facts and Contentions.
When Ms Keast’s claim for DSP was lodged, part of the claim included a “Medical Report – Disability Support Pension” form completed by Dr Retnaraja and signed on 24 August 2012.[2] The report indicated that the applicant suffered from severe depression, but Dr Retnaraja was uncertain about its onset and date of diagnosis.
[2] Exhibit R1, pp 301 - 308.
Also as part of the claim for DSP, a further “Medical Report – Disability Support Pension” form completed by Dr Retnaraja was lodged. This was signed on 19 August 2013.[3] This second report indicated that the applicant suffered from depression which was onset on 7 February 2011. This diagnosis was confirmed by a psychologist, Ms Sarah Sutton, but the date of diagnosis was unknown.
[3] Exhibit R1, pp 312 - 322.
A Job Capacity Assessment was conducted on 20 August 2013 by a clinical psychologist to assess the applicant’s qualification for DSP.[4] That assessment assessed the applicant’s condition as depression. The assessment found that the applicant’s depression was fully diagnosed, but was not considered fully treated and stabilised. Thus, an impairment rating arising from that condition could not be assigned under Table 5 of the Impairment Tables.
[4] Exhibit R1, pp 281 - 285.
By reference to cl 4(1) of Schedule 2 to the Administration Act, the applicant’s qualification for DSP is to be solely determined during the 13 week period between 30 August 2013 and 29 November 2013 (“Claim Period”). The Impairment Tables contain rules for their application (“Rules”). The Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments. They are not designed to assess conditions.
The Impairment Tables may only be applied after the person’s (here, the applicant’s) medical history has been considered, where the condition causing the impairment is permanent, and where the impairment is likely to persist for more than two years (subsections 6(2)-(3) of the Rules). A condition is permanent if it is fully diagnosed, treated and stabilised and likely to persist for more than two years (subsections 6(3)-(7) of the Rules).
On 5 December 2014, the SSAT conducted a review of the ARO’s decision to reject the applicant’s claim for DSP. The applicant was represented by Welfare Rights Centre (SA) Inc. and she was supported by a Support Facilitator from Partners in Recovery, Uniting Care Wesley. The SSAT Member (Ms Bakas) was satisfied that the applicant had a mental health condition of depression and hence a “physical, intellectual or psychiatric impairment”. She therefore satisfied the requirements of subsection 94(1)(a) of the Act.
Ms Bakas noted that the ARO did not allocate any points under the Impairment Tables as the applicant’s depression was considered not to be fully treated and stabilised. This appeared to be due to her general practitioner, Dr Retnaraja, not stating a date of diagnosis. Ms Bakas also noted that the Job Capacity assessor reported that the applicant had a history of not attending psychology appointments, of adjusting her medication dosage as needed and being unreliable in taking her medication. Further, Dr Retnaraja had referred the applicant to a psychiatrist, but there was no medical evidence that she had made an appointment.
Ms Bakas agreed that an Impairment Rating could not be assigned, for the following reasons:
(1)The report of Dr Retnaraja dated 24 August 2012 stated that the applicant’s diagnosis was severe depression, but he was uncertain of its onset and date of diagnosis. The applicant’s past treatment was in taking Zoloft and future/planned treatment was ongoing psychologist review with Ms Sarah Sutton, psychologist, and the Anxiety and Depression Centre. Ms Bakas noted that a report from Ms Sutton dated 4 April 2011 indicated that she treated the applicant in 2011 for workplace stress. There was no evidence of treatment since 2011.
(2)The later report of Dr Retnaraja dated 19 August 2013 detailed the date of onset of the condition of depression was 7 February 2011 and that this diagnosis was confirmed by psychologist, Ms S Sutton. The future/planned treatment was detailed as ongoing review by a psychologist. The impact of the condition on the applicant’s ability to function was expected to persist for 13 to 24 months. Given that the impact of the applicant’s condition was not expected to persist for more than 24 months, the condition could not be considered permanent.
(3)Ms Bakas noted that the Public Trustee was administering the applicant’s affairs under the provisions of the Guardianship and Administration Act, 1993 (“GA Act”). The Guardianship Board was satisfied that the applicant had a “mental incapacity” within the meaning of the GA Act and an administration order was made on 6 August 2013. However, the applicant had this order lifted in 2014.
As Ms Bakas could not assign any impairment points for the condition of depression, she said that she was not required to consider the applicant’s work capacity, as her impairment did not attract the necessary 20 impairment points, and so she could not qualify for a DSP, no matter what the findings were.
For the applicant’s benefit, Ms Bakas further noted that any favourable determination by the SSAT was limited if any applicant sought review of a decision more than 13 weeks following an ARO decision. This was pursuant to s 152 of the Administration Act. The effect of not requesting a review within the 13 week period was that any favourable decision took effect on the day on which the application was made to the SSAT for review of that decision, which in the applicant’s case was 20 October 2014.
EVIDENCE OF APPLICANT
It was the applicant’s evidence that she was not well and she could not understand why Centrelink had rejected her claim for DSP. She said she had been prescribed and was taking Zoloft, an antidepressant medication. When it was suggested that she was unreliable in taking her medication, she said this was because her niece’s name was Georgia Keast and her name had been confused with the name of her niece. She had been seeing a psychologist (Sarah Sutton) in the past and her GP (Dr Retnaraja) had recommended that she see a psychiatrist. In 2013 and 2014, she had also had meetings with a psychologist, Voula Antoniadis. She said she had been residing in a share house, but when she lost her family home and Public Trustee was appointed under an administration order she was forced to start squatting in the home. When Public Trustee became involved in 2013, they required all the applicant’s pension benefits to be paid directly to them. This affected her ability to see psychologists and psychiatrists because of the costs involved.
When she appeared before the SSAT she was represented by the Welfare Rights Centre. However, in the present hearing she was representing herself. In cross-examination by Mr Hay, she said she had been actively seeking help, but her health had not improved. She had been arrested and had appeared at Holden Hill court.
CONSIDERATION
On the date of her claim for disability support pension (or within 13 weeks of that date) did the applicant have an impairment rating of at least 20 points under the Impairment Tables?
In order to qualify for DSP, Ms Keast must satisfy the relevant requirements of s 94 of the Act. In other words, she must be qualified for DSP on the date of her claim or within the period of 13 weeks following. Thus, the primary question is whether she satisfied the relevant criteria in s 94 at any time during the Claim Period, that is, the period between 30 August 2013 and 29 November 2013, rather than whether she currently satisfies those criteria.
One of the relevant criteria for DSP is whether an applicant suffered an impairment (or impairments in combination) which attracted an impairment rating of 20 points or more under the Impairment Tables (see subsection 94(1)(b) of the Act).
In this regard, the Rules for applying the Impairment Tables in Part 2 of the Determination are relevant. Section 6(3) to s 6(6) of Part 2 relevantly require that:
(a)the person’s condition causing that impairment is permanent;
(b)the condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and has been fully stabilised and the condition is more likely than not to persist for more than two years; and
(c)a condition is fully stabilised if 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 two years.
When Ms Keast’s claim for DSP was lodged, which was prepared by Public Trustee on her behalf under an administration order, it was claimed that she was suffering from depression and anxiety. In a medical report of Dr Retnaraja dated 24 August 2012, he said that the applicant suffered from severe depression, but that both the date of onset and the date of diagnosis were uncertain. In a further medical report of Dr Retnaraja dated 19 August 2013 he said that the applicant suffered from depression and the date of onset was 7 February 2011. This diagnosis was confirmed by a psychologist, Ms Sarah Sutton, but the date of diagnosis was unknown.
In the Job Capacity Assessment report dated 12 September 2013, following a face-to-face assessment on 20 August 2013, the assessor assessed the applicant’s condition as depression and found that the condition was fully diagnosed, but was not considered fully treated and stabilised. An impairment rating could not be assigned under Table 5 of the Impairment Tables. After the applicant applied to Centrelink for internal review, an ARO affirmed the original decision. The ARO said that the applicant was not medically qualified to be paid DSP because her medical conditions were not fully diagnosed, fully treated and fully stabilised. She did not have an impairment rating of at least 20 points under the Impairment Tables.
In the SSAT, Ms Bakas (the Member) noted that the ARO did not allocate any points under the Impairment Tables as the applicant’s depression was considered not to be fully treated and stabilised. She said that this appeared to be due to Dr Retnaraja not stating a date of diagnosis. Moreover, she observed that the Job Capacity assessor reported that the applicant had a history of not attending psychology appointments, of adjusting her medication dosage as needed, and of being unreliable in taking her medication. Further, Ms Bakas noted that Dr Retnaraja had referred the applicant to a psychiatrist, but there was no medical evidence that the applicant had made an appointment. She agreed that an impairment rating could not be assigned under the Impairment Tables because:
(a)the report of Dr Retnaraja dated 24 August 2012 stated that the applicant’s diagnosis was severe depression, but he was uncertain of its onset and date of diagnosis;
(b)the report of Dr Retnaraja dated 19 August 2013 detailed the date of onset of the condition of depression as 7 February 2011 and that diagnosis was confirmed by psychologist, Ms S Sutton. The future treatment was detailed as ongoing review by a psychologist. The impact of the condition on the applicant’s ability to function was expected to persist for 13 to 24 months;
(c)given the impact of the applicant’s condition was not expected to persist for more than 24 months, the condition could not be considered permanent;
(d)Public Trustee was administering the applicant’s affairs under the Guardianship and Administration Act 1993. The Guardianship Board was satisfied that she had a mental incapacity within the meaning of that Act and an administration order was made on 6 August 2013. However, the applicant had had the order lifted.
As Ms Bakas could not assign any impairment points for the applicant’s condition of depression, she noted that her impairment did not attract the necessary 20 impairment points and so the applicant could not qualify for DSP, no matter what the findings were. In my view, in saying this, she found that the applicant’s impairment was not a “severe impairment” under subsection 94(3B) of the Act. Although I would agree with this finding, it is not necessary, in my view, in any event because the applicant’s impairment rating does not reach the threshold of 20 points or more under the Impairment Tables and hence does not satisfy subsection 94(1)(b) of the Act.
As the requirements of subsections 94(1)(b) and 94(1)(c) must cumulatively apply for a person to qualify for DSP, it is strictly not necessary for me to consider whether the applicant has a continuing inability to work. She simply does not satisfy both of those provisions.
As the applicant does not have a “severe impairment”, this means that she must have actively participated in a program of support within the meaning of subsection 94(3C) of the Act prior to the date her DSP claim was made. Under subparagraph 5(1)(a)(ii) and subsection 5(2) of Part 2 of the Requirements and Guidelines, this means the applicant must have actively participated in a program of support for at least 18 months of the three years prior to the date of the DSP claim. It appears the applicant was referred to a program of support with Jobs Statewide from 7 October 2011. However, there is no evidence to show that she did, in fact, actively participate in a program of support.
CONCLUSION
As the claim for her DSP does not satisfy the provisions of both subsections 94(1)(b) and 94(1)(c), and as she did not actively participate in a program of support as required in the Requirements and Guidelines prior to the date it was made, the DSP claim for Ms Keast cannot succeed.
It is possible for the applicant to make another claim for DSP, provided she is able to actively participate in a program of support before making the claim. She must also ensure that all the other requirements of s 94 of the Act are complied with.
DECISION
The Tribunal affirms the decision under Review.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne ........ [Sgd] .............................................
Admin Assistant
Dated 19 April 2016
Date of hearing 21 January 2016 Applicant In person Solicitors for the Respondent Mr A Hay
Department of Human Services
FOI & Litigation Branch
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Benefits and Allowances
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Disability Support Pension
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Impairment Rating
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Claim for DSP
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Medical Report
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Fully Diagnosed
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Fully Treated and Stabilised
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