Keefe and Secretary, Department of Social Services (Social services second review)
[2020] AATA 5
•3 January 2020
Keefe and Secretary, Department of Social Services (Social services second review) [2020] AATA 5 (3 January 2020)
Division:GENERAL DIVISION
File Number: 2018/6773
Re:Craig Keefe
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:The Hon. S Parry, Member
Date:3 January 2020
Place:Hobart
The Tribunal affirms the decision under review.
............................[sgd].......................................The Hon. S Parry, Member
SOCIAL SECURITY – disability support pension – eligibility – whether applicant is qualified to be paid disability support pension – whether applicant has a continuing inability to work – whether the applicant’s impairments were fully diagnosed, treated and stabilised – whether the applicant’s impairments attract 20 points or more under the Impairments Table – Decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500, 501, 504
Younan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 111
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606, [14]; Hamal and Secretary, Department of Social Services [1993] AATA 283
Joukhador and Department of Family and Community Services [2000] AATA 1097
Tahtali and Secretary, Department of Family and Community Services [2004] AATA 320
Hamal and Secretary, Department of Social Services [1993] AATA 283
Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500, 501, 504.
Younan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 111
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
REASONS FOR DECISION
The Hon. S Parry, Member
3 January 2020
The decision under review is the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) of 30 October 2018 to affirm a decision of the Department to cancel the Applicant’s Disability Support Pension (DSP).
BACKGROUND
The Applicant was granted DSP from 31 January 2011. He continued to be paid DSP until the Department of Human Services (the Department) issued him with an assessment notice on 20 July 2017. Pursuant to this assessment notice, on 3 October 2017, a Job Capacity Assessor (JCA) conducted a review of the Applicant’s impairment and capacity to work.
On 6 July 2018 following the JCA’s assessment, the Department decided that the Applicant was no longer qualified and resolved to cancel his DSP with effect from 15 August 2018.
The Applicant applied for an internal review of the cancellation decision by an Authorised Review Officer (ARO). The ARO considered the Applicant’s conditions and their consequent impairments and made the following findings in relation to each:
Condition
Fully Diagnosed, Treated and Stabilised
Impairment Table
Impairment Rating
Chronic knee pain
Yes
3
0
Chronic elbow pain
Yes
2
0
Chronic obstructive pulmonary disease (COPD)
No
N/A
N/A
Hepatitis C
No
N/A
N/A
The ARO’s determination broadly accords with the findings of the JCA. It was further observed that, in any event, the Applicant could not be considered to have had a continuing inability to work at the time of the cancellation.
The Applicant applied to the AAT1 for review of the ARO’s decision. A hearing was conducted on 30 October 2018 before Member Gregory. The AAT1 affirmed the decision of the ARO on the same day.
On 15 November 2018, the Applicant applied for review by the General Division of the Administrative Appeals Tribunal (the Tribunal).
The application was heard on 13 August 2019 in Hobart. The Applicant appeared in person and was accompanied by Ms Oogjes. The Respondent was represented by Ms Edwards who appeared by telephone.
ISSUES
The issue to be decided in this matter is whether the Applicant was qualified for DSP on the date of cancellation, namely 6 July 2018. It should be noted that some discussion occurred during the hearing to ascertain the date of the decision and the date of effect. All parties agreed to the date of decision being the 6 of July and the 15 of August being the date of effect.
The Tribunal is required to consider whether the requirements set out in s 94(1) of the Social Security Act 1991 (the Act) were met; in particular, whether the Applicant had:
(a)a physical, intellectual or psychiatric impairment; and
(b)an impairment of 20 points or more under the Impairment Tables; and
(c)(i) a continuing inability to work (as defined in s 94(2)).
The Secretary concedes that the Applicant satisfied s 94(1)(a) of the Act, but argues the Applicant did not satisfy s 94(1)(b) or (c). In particular, on the day upon which the Applicant’s DSP was cancelled, the Secretary made the following arguments in their Statement of Facts, Issues and Contentions:
(a)The Applicant’s COPD was not fully diagnosed, treated and stabilised and the resultant impairments were unable to be assigned any impairment rating.
(b)Even if the Applicant’s COPD was fully diagnosed, treated and stabilised, no more than 10 points would be able to be assigned under the Determination.
(c)The Applicant’s Hepatitis C was not present as at the time of the cancellation. In any event, it was not fully diagnosed, treated and stabilised and any resultant impairment would be unable to be assigned an impairment rating.
(d)Even if the Applicant’s Hepatitis C was fully diagnosed, treated and stabilised, any resultant impairment would have been unable to be assigned an impairment rating.
(e)The Applicant’s chronic elbow pain was fully diagnosed, treated and stabilised, however the resultant impairment was unable to be assigned an impairment rating of more than 0 under either Table 2.
(f)The Applicant’s chronic knee pain was fully diagnosed, treated and stabilised, however the resultant impairment was unable to be assigned an impairment rating of more than 0 under either Table 3.
(g)The Applicant did not have a continuing inability to work.
The Secretary asserts that at the time of the cancellation the Applicant’s impairments attracted a total of 0 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) and he did not have a continuing inability to work. He therefore did not satisfy either s 94(1)(b) or (c) of the Act. The Secretary therefore indicated that the cancellation decision was correct.
The Tribunal is required to assess the Applicant’s qualification for DSP as at the date upon which the decision to cancel it came into effect, namely, 15 August 2018. This date may be referred to as the Cancellation Day.
SECTION 94(1)(A) – A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT
Legal Framework
The Determination contains Impairment Tables (made pursuant to s 26(1) of the Act and found at Part 3 of the Determination), which are to be used in the assessment of a person’s impairment. The Determination also contains (at Part 2) rules for the application of the Impairment Tables. These rules are determined under the power conferred by s 26(3) of the Act.
The Impairment Tables are function based rather than diagnosis based[1] and describe functional activities, abilities, symptoms and limitations. They are designed to determine the level of functional impact of impairments and not to assess conditions themselves.[2] Impairment is defined to mean a loss of functional capacity as a result of their condition that affects their ability to work. [3]
[1] Section 5(2)(b) of the Determination.
[2] Section 5(2)(d) of the Determination.
[3] Section 3 of the Determination.
Section 6(3) of the Determination provides that an impairment rating can only be assigned for an impairment that arises from a permanent condition. Under s 6(4) of the Determination, a condition may be considered as “permanent” for the purposes of s 6(3) 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.
Section 6(5) of the Determination provides that, in assessing whether a condition is fully diagnosed and fully treated for the purposes of ss 6(4)(a) and (b), the following must 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.
In accordance with s 6(6) of the Determination, a condition is fully stabilised for the purposes of s 6(4)(c) 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 two years; or
(b)The person has not undertaken reasonable treatment for the condition and either:
(i)Significant functional improvement to a level enabling the person to undertake work in the next two 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 (subsections 6(5) and 6(6) of the Rules).
Once a condition has been established as being permanent, it becomes necessary to determine the type and severity of the resultant functional impairment. This exercise must be conducted by reference to the Impairment Tables. It is necessary, however, to have prior regard to the following relevant rules for applying these Impairment Tables:
(a)An impairment must be assessed on the basis of what a person can or could do. It is not to be assessed on the basis of what a person chooses to do or what others do for the person.[4]
(b)Symptoms and functional impairments reported by a person in relation to their condition can only be taken into account where there is corroborative evidence.[5]
(c)Unless required by a specific Impairment Table, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[6]
(d)A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.[7]
(e)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Impairment Table.[8]
(f)If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[9]
(g)When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[10]
(h)When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.[11]
[4] Section 6(1) of the Determination.
[5] Section 8(1) of the Determination.
[6] Section 8(2) of the Determination.
[7] Section 9 of the Determination.
[8] Section 10(5) of the Determination.
[9] Section 11(1)(c) of the Determination.
[10] Section 11(3) of the Determination.
[11] Section 11(4) of the Determination.
Chronic Obstructive Pulmonary Disease (COPD)
The ARO found that the Applicant’s COPD was not fully diagnosed, treated and stabilised. The AAT1 disagreed, finding that the condition was fully diagnosed, treated and stabilised and that the consequent impairment should attract 10 points under Table 1 of the Impairment Tables. The Tribunal agrees with the submission by the Secretary and does not award any points under Table 1.
Dr Neuberger’s report sets out that, as at 5 May 2018, there had been an attempt to give up smoking. However, as can be seen from the “Future/planned treatment” segment of that report, the Applicant was yet to do so successfully.[12] Indeed, as can be seen from the report of Dr Daniel Gavaghan provided on 31 January 2019, the Applicant was, at that time, still smoking between five and 10 cigarettes per day.[13]
It was only on 31 January 2019 that the Applicant first saw a specialist about his COPD. On this occasion, the respiratory registrar Dr Gavaghan lamented the fact that the Applicant had had poor education in the use of his inhaler and that this had resulted in poor adherence to proper inhaler practices.[14] Dr Gavaghan further observed that the Applicant had failed to comply with his prescription for tiotropium “because he did not feel that this was of much benefit to him”. Dr Gavaghan recommended that the Applicant should return to compliance with his medical regime as prescribed.
The Secretary submitted that a person who has failed to comply with their prescribed medical regime cannot be said to have had their condition fully treated.
Hepatitis C
The Secretary contends that, as at the Cancellation Day, there was no impairment present in respect of the Applicant’s liver function. It follows that there is no cause to consider whether the underlying condition of Hepatitis C was fully diagnosed, treated and stabilised.
The condition was not listed in Dr Neuberger’s medical report and, although it was mentioned by Dr Neuberger in a telephone discussion with the Department, the Applicant’s only symptoms were side-effects of the medication.[15] There is no corroborative evidence of any form of functional impairment whatsoever.
[15] T10, p 165, T documents.
The Tribunal agrees with the view of the Secretary in relation to Hepatitis C.
Chronic knee pain
The Secretary accepted that this condition is fully diagnosed, treated and stabilised and it is therefore necessary to consider the functional impairment that it causes.
The Applicant has provided a number of self-reports in respect of the impairment caused by this condition. Dr Neuberger has provided no indication as to the impact that this condition has on the Applicant’s ability to function, simply indicating that he has prescribed Celebrex to assist.
The Applicant stated in evidence that he could walk 500 metres, negotiate stairs and that he was generally ambulant.
Chronic elbow pain
The Secretary accepts that the Applicant’s chronic elbow pain is fully diagnosed, treated and stabilised and that it was appropriate to assess the consequent impairment against Table 2. The Secretary further asserts that a zero rating under Table 2 is appropriate.
The Applicant demonstrated that he could raise his hands and that in July of 2018 he could lift a two-litre carton of liquid. Whilst his condition may have worsened since then, the Tribunal agrees with the Secretary’s submission that no points should be awarded under Table 2.
Continuing Inability to Work
The Secretary submitted that the Applicant did not have a continuing inability to work as at the Cancellation Day. He therefore did not satisfy s 94(1)(c) of the Social Security Act 1991 (the Act).
The term “continuing inability to work” is defined in s 94(2) of the Act, which states:
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 Applicant’s Capacity to Work
Since this is a matter dealing with cancellation, it is unnecessary for the Tribunal to consider the requirements of a program of support (POS). It nonetheless remains to determine whether the Applicant had a residual continuing inability to work.
For the purposes of this assessment, “work” s defined at s 94(5) of the Act to be work that exists in Australia, even if not within the person’s locally accessible labour market and that is for 15 hours per week on wages that are at or above minimum wage.
In the process of determining whether a person has a continuing inability to work, the decision maker must disregard a number of factors, including:
(a)the availability of work in the person’s locally accessible labour market ;[16]
(b)the availability to the person of a training activity;[17]
(c)any impairments that have not been assigned a rating under the Determination;[18]
(d)the person’s motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment;[19]
(e)the person’s preferences regarding the type of work or training;[20]
(f)the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities;[21]
(g)the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered;[22] and
(h)a person’s difficulty with language, numeracy or literacy that is not directly attributable to a medical condition.[23]
[16] Section 94(3)(b) of the Act.
[17] Section 94(3)(a) of the Act.
[18] Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500, 501, 504; Younan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 111, [34].
[19] Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451.
[20] Crossland and Secretary, Department of Family and Community Services [2004] AATA 864, [34].
[21] Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846.
[22] Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606, [14]; Hamal and Secretary, Department of Social Services [1993] AATA 283, [42].
[23] Joukhador and Department of Family and Community Services [2000] AATA 1097, [20]; Tahtali and Secretary, Department of Family and Community Services [2004] AATA 320, [52]. Cf. Hamal and Secretary, Department of Social Services [1993] AATA 283, [39].
The person with the fullest knowledge of the Applicant’s history was Dr Neuberger, who was his treating general practitioner at the time of and prior to the cancellation. On 8 September 2017, Dr Neuberger reported that the Applicant’s impairments would prevent him from engaging in his former line of work (concreting), but would not prevent him from engaging in lighter forms of work. He commented that he could undertake light activity “without difficulty”.[24]
[24] T10, p 165, T documents.
The JCA indicated that with appropriate re-training, there appears little barrier to the Applicant engaging in light, less skilled work for 15–22 hours per week.
The Tribunal finds that the Applicant did, at the time, have an ability to work for 15 hours or more per week.
DECISION
I affirm the decision under review
33.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of The Hon. S Parry, Senior Member
..............................[sgd].......................................Associate
Dated: 3 January 2020
Date of hearing: 13 August 2019 Advocate for the Applicant: Ms Melinda Oogjes, SpeakOut Advocacy Counsel for the Respondent: Ms Julie Edwards, Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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