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

[2015] AATA 683

Kilpatrick and Secretary, Department of Social Services (Social services second review) [2015] AATA  683 (27 August 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2330
Re	Ian Kilpatrick
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	27 August 2015
Date of written reasons	08 September 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

Catchwords

SOCIAL SECURITY – disability support pension – allocation of impairment points –applicant’s conditions fully diagnosed, fully treated and fully stabilised – continuing inability to work – whether formally exited from program of support – decision under review affirmed.

Legislation

Social Security Act 1991 (Cth), s 94

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, sub-ss 5(4), (5)

REASONS FOR DECISION

Senior Member Bernard J McCabe

08 September 2015

1. The applicant commenced proceedings in the Tribunal. A decision was made and oral reasons were provided at the end of the hearing on 27 August 2015. The reasons below were distilled from the transcript of that hearing.

2. Mr Kilpatrick, the applicant, made an application for the disability support pension (DSP) which he lodged on 10 October 2014 (the date of claim). On 8 January 2015 Centrelink rejected his claim and Mr Kilpatrick sought review by the Social Security Appeals Tribunal. The Social Security Appeals Tribunal subsequently found the applicant had an aggregate total of 30 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). However, while the applicant reached 30 impairment points in total, he was not assigned 20 points under one table, and was found not to have met the program of support requirement.

3. The Tribunal is required to consider how Mr Kilpatrick was from the date of claim and in the 13 week period that followed that date.

4. I must consider whether Mr Kilpatrick satisfies the so-called medical impairment criteria in section 94(1) of the Social Security Act 1991 (Cth) (the Act).

5. The first of those criteria is that the applicant has a physical, intellectual or psychiatric impairment. The evidence before the Tribunal indicates clearly that Mr Kilpatrick is suffering from osteoarthritis throughout his body; in particular in the lower limbs, hands and at least one of his shoulders.  Mr Kilpatrick also has a lower back condition and a hearing impairment. It is possible Mr Kilpatrick has other conditions, but I will confine my focus to those conditions which were the subject of evidence at the hearing.

6. The second requirement is that the person is allocated 20 points or more under the Impairment Tables.  There are 15 impairment tables covering different functional aspects of the body.  Those impairment tables do not measure how sick a person is, they focus on how the condition, or conditions, impact on the person’s functional ability. Each table gives descriptors that identify particular activities. Impairment points are then assigned by weighing the person’s functional ability against the descriptors identified under the Impairment Tables.

7. Before impairment points can be assigned the decision maker needs to be satisfied the condition leading to the impairment has been fully diagnosed, fully treated and fully stabilised.  All the conditions, save potentially one referred to above, are conceded as fully diagnosed, fully treated and fully stabilised; and in my view that concession is proper. 

8. There is some doubt, however, in relation to Mr Kilpatrick’s shoulder condition.  Mr Kilpatrick is anticipating undergoing surgery on his shoulder which may result in some improvement. The difficulty is that Mr Kilpatrick has been living in a regional area and accessing shoulder surgery has proven difficult.  One of the challenges for people living in regional areas is the availability of services and the resulting waiting lists for those services.  There is enough evidence before the Tribunal, in the form of the correspondence from the various hospitals, to demonstrate that from the date of claim Mr Kilpatrick is unlikely to receive shoulder surgery within a reasonable timeframe (ie within two years of the date of claim).  In those circumstances, I accept the applicant’s shoulder condition as fully diagnosed, fully treated and fully stabilised, and accept Mr Kilpatrick has undergone all reasonable treatment that is available to him within a reasonable timeframe.

9. The question then becomes how many impairment points should be allocated. There is no doubt Mr Kilpatrick has a total of more than 20 points under the various tables. The question is whether he reaches 20 points under any one of those impairment tables. That is an issue because of the third requirement in section 94(1). This requirement provides that a person must have a continuing inability to work.  One usual component of that requirement is that a person must have participated in a program of support for the minimum period of time. 

10. A person can be effectively excused from the requirement if they are allocated more than 20 points under any one of the impairment tables, or if they are formally exited from a program of support in advance of an application. I note Epic Assist, an Employment Support Service provider, recommended that he be exited from a program of support on 15 July 2015 – but that was some time after the period under review. The Secretary’s representative pointed out section 5(4) of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Program of Support Determination), requires the program of support be terminated before the relevant date of claim.  That means this particular exception will not apply to Mr Kilpatrick’s claim.

11. I return to the question of whether Mr Kilpatrick reaches the requisite 20 points under any one impairment table. It is clear from the evidence before me that while Mr Kilpatrick approaches 20 impairment points under some of those tables, he also honestly disclosed that he can in fact move around a shopping centre, albeit using a walking aid or trolley to assist. Furthermore, Mr Kilpatrick gave evidence that he could travel in a vehicle (although it should be acknowledged Mr Kilpatrick does have trouble standing up from a sitting position without assistance).

12. Given that evidence, it is appropriate that Mr Kilpatrick’s osteoarthritis condition in the lower limbs receives 10 points, which falls short of the 20 required under Table 3.  As for osteoarthritis of the hands and the shoulder which gets assessed under Table 2, once again it seems that Mr Kilpatrick would receive 5 points, and if the shoulder was included perhaps 10 points. Either way those conditions do not quite meet the required 20 points.

13. However, Mr Kilpatrick certainly meets some of the descriptors under Table 2.  For example, he identified some difficulty in using a computer keyboard and pen or pencil; but could turn pages in a book, even if he has difficulty holding it up. Those functional impairments are consistent with a moderate functional impact, which attract 10 points under Table 2.

14. Once again, Mr Kilpatrick’s hearing impairment meets some of the descriptors under Table 11. That impairment is suggestive of a moderate, and perhaps a severe functional impact. But when read with the observations made in the Job Capacity Assessment Report (exhibit 1, p.104), it seems to fit more consistently with the descriptors provided under the moderate functional impact section, which allocates 10 points.

15. On the evidence before the Tribunal Mr Kilpatrick’s lower back condition, assessed under Table 4, only reaches the mild functional impact criterion and therefore receives 5 impairment points. 

16. In summary, Mr Kilpatrick comfortably exceeds the 20 impairment point threshold, but because he does not make 20 points under any one of the impairment tables, he is still restricted by the program of support requirement. Since he does not satisfy that requirement and could not be excused from it, it follows he is unable to satisfy the requirement in section 94(1)(c). That means the decision to reject his claim must be affirmed.

17. There is no reason why a further application for the DSP should not be processed quickly.  I assume the recommendation from the disability services provider has led to the applicant being formally exited from the program of support. (If he has not been exited, it is possible the Tribunal would be satisfied section 5(5) of the Program of Support Determination applied. That means the requirement would be effectively waived given the recommendation from the service provider.) While I appreciate the process is frustrating for Mr Kilpatrick, I cannot take the matter any further.   

18.     I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 8 September 2015

Date of hearing	27 August 2015
Applicant	Ian Kilpatrick
Advocate for the Respondent	Donna Smith, Department of Human Services