Kok Yong Tey and Secretary, Department of Social Services

[2013] AATA 753

[2013] AATA 753 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5338
Re	Kok Yong Tey
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	22 October 2013
Place	Brisbane (heard in Perth)

The decision under review is affirmed.

...(Sgd) P E Hack................

Deputy President PE Hack SC

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant has continuing inability to work – whether applicant has “severe impairment” – whether applicant actively participated in program of support – decision affirmed

LEGISLATION

Social Security Act 1991, s 94(2), Sch 1B

REASONS FOR DECISION

Deputy President PE Hack SC

22 October 2013

1. On 18 October 2011 the applicant, Mrs Kok Yong Tey, made a claim for the payment of disability support pension.  It is of significance to note that the claim was accompanied by a report dated 11 August 2011 from Mrs Tey’s general practitioner, Dr Gabor Balint.  The claim was rejected by Centrelink.  That decision was affirmed on internal review and by the Social Security Appeals Tribunal on 19 October 2012.  Mrs Tey seeks a review of the decision of the Social Security Appeals Tribunal.

2. Section 94 of the Social Security Act 1991 (Cth) sets out the criteria for qualification for payment of disability support pension. It is a sufficient description of those criteria for present purposes to say that the applicant must have a physical, intellectual or psychiatric impairment, the impairment must warrant a rating of 20 points or more on the Impairment Tables that, at the time of Mrs Tey’s application, formed part of the Act, and the person must have "a continuing inability to work". There are age and residence qualifications but they are not in issue in the present case.

3. The Social Security Appeals Tribunal was satisfied, and the Secretary concedes in these proceedings, that Mrs Tey suffered from three impairments described as a lower limb condition (spontaneous osteonecrosis of the right knee and left knee osteoarthritis), an upper limb condition (right shoulder supraspinatus tendon tear with chronic pain) and a back condition (not otherwise described).  That Tribunal concluded, and again the Secretary concedes, that each of the lower limb and upper limb conditions warranted a rating of 10 points on the Impairment Tables thus satisfying s 94(1)(b) of the Act.

4. What has been found against Mrs Tey to date is the requirement for a continuing inability to work.  That term is defined in s 94(2) of the Act in this way:

   (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).

   A "severe impairment" is one where the impairment is of 20 points or more, of which 20 points or more are under a single Impairment Table[1].  The Secretary contents that none of Mrs Tey’s impairments warrant a rating of 20 points or more and thus her impairment is not a severe impairment.  The Secretary contends that Mrs Tey has not actively participated in a programme of support with the result that s 94(2)(aa) of the Act cannot be satisfied.

   [1] See s 94(3B), Social Security Act.

5. Additionally the Secretary says that, on the evidence, I should be satisfied that Mrs Tey does have a residual capacity for work and that her impairments do not prevent her from doing any work or undertaking at training activity within two years with the result, on the Secretary's case, that ss 94(2)(a) and (b) are not satisfied.  For that further reason, the Secretary contends that Mrs Tey does not have a continuing inability to work.

6. In the context of this case it is important to note that in 2011 there were two relevant amendments made to the Act so far as it concerns the qualification for disability support pension. First, s 94(2)(aa) of the Act, the requirement for an applicant to have “actively participated in a program of support”, was inserted by Item 3 of Schedule 3 to the Family Assistance and Other Legislation Amendment Act 2011 (Cth)[2]. By virtue of Item 12 of that Schedule the amendment applies to claims made on or after the commencement of the Item which was 3 September 2011. Then, by the Social Security and Other Legislation Amendment Act 2011 (Cth)[3], Schedule 1B to the Act, which contained the Impairment Tables, was repealed[4] and s 26 inserted[5] to allow the Minister to determine tables for the assessment of work-related impairment for disability support pension. By Item 5(1) of Schedule 3 to the amending Act the amendments applied for the purposes of working out qualification for disability support pension on or after 1 January 2012.

   [2]No. 52, 2011.

   [3]           No, 145, 2011.

   [4]Item 4 of Schedule 3 to the Social Security and Other Legislation Amendment Act.

   [5]Item 2 of Schedule 3 to the Social Security and Other Legislation Amendment Act.

7. The effect of these amendments is that Mrs Tey’s claim falls to be determined by reference to the Act incorporating the requirements for active participation in a program of support but by reference to the now repealed Impairment Tables in Schedule 1B to the Act.

8. It is then necessary to consider the impairment rating for each of Mrs Tey’s accepted impairments. That task is to be performed at the date of Mrs Tey’s claim or within 13 weeks of it.  As I have said, the Secretary accepts that the lower limb and upper limb conditions each warrant an impairment of 10 points[6]. The Secretary contends, by reference to the Introduction to the Impairment Tables, that the back condition does not warrant a rating because it does not satisfy the requirements of the Introduction that it be "a fully documented, diagnosed condition which has been investigated, treated and stabilised."

   [6]Exhibit 8, paragraphs 4.20 & 4.24.

9. The Impairment Tables for upper limb function provide as follows:

   TABLE 3. UPPER LIMB FUNCTION

   All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.

   Rating Criteria

   NIL Can use dominant limb effectively and/or

   Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

   FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes moderate interference with hand function or manual handling.

   TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

   FIFTEENDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes significant interference with hand function or manual handling.

   TWENTYDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or

   Unable to use non‑dominant upper limb at all.

   THIRTY Unable to use dominant upper limb at all.

   Dr Balint described[7] Mrs Tey’s arm symptoms as "pain and discomfort on and off".  He also described it as giving her limited use of the arm and reducing her work endurance.  On the basis of that description a rating of 10 points only is warranted. There is no demonstrable evidence of symptoms causing significant interference with her hand function or manual handling and, as I was able to observe in the course of the hearing, Mrs Tey was quite able to use her (dominant) right hand.

   [7]Exhibit 7, pages 47-8.

10. The Impairment Tables for lower limb function are in these terms:

    TABLE 4. FUNCTION OF THE LOWER LIMBS

    Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.

    RatingCriteria

    NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.

    TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

    Pain or claudication restricts walking to 250‑500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.

    TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

    Pain or claudication restricts walking (4km/h) to 50‑250m or less at a time. Can walk further after resting or

    Unable to walk or stand but independently mobile using a self‑propelled wheelchair.

    THIRTY Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:

    requires quad stick, crutches or similar walking aid, or

    is unable to transfer without assistance.

    FORTY Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.

    Dr Balint’s report described Mrs Tey’s symptoms in this way[8]:

    Ongoing knee pain and discomfort with difficulties walking, especially on uneven surfaces and steps.  Requires regular painkillers.

    The report indicates that Mrs Tey cannot stand or walk over a longer period of time and has low endurance for any physical work. That description demonstrates that a rating of 10 points is appropriate.  There was no evidence that Mrs Tey was experiencing major interference with walking or any of the other activities that would warrant a rating of 20 points.

    [8]Exhibit 7, page 45.

11. The evidence regarding Mrs Tey’s back condition is sparse. Dr Balint did not provide a diagnosis but listed it in a section devoted to "other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function".  He referred to limitations in bending and lifting.  The Introduction to the Impairment Tables includes the following:

    4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

    5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

    In my view the Social Security Appeals Tribunal was right to conclude that there was insufficient evidence to determine that the back condition had been fully diagnosed, treated and stabilised.  That being so it is not capable of being given a rating under the Impairment Tables.

12. The result is that Mrs Tey does not have a severe impairment because neither of her impairments warrants an individual rating of 20 points. There is no evidence that Mrs Tey had actively participated in a program of support. On the contrary, Mrs Tey said in her claim[9] and told Centrelink’s job capacity assessor[10] that she had not. It is not to the point that Mrs Tey was not aware, nor made aware, of the requirement to undertake a program of support. The Parliament has determined that, with some limited exceptions, those who seek disability support pension must undertake such a program. Mrs Tey has not done so. It follows that Mrs Tey does not satisfy s 94(2)(aa) of the Act and thus does not have a continuing inability to work.

    [9]           Exhibit 7, page 30.

    [10]         Exhibit 7, page 69.

13. Accordingly the decision made was correct and should be affirmed.

14. After the hearing, and with leave granted at the conclusion of the hearing, Mrs Tey lodged written submissions. Only one matter in those submissions warrants further comment. Mrs Tey points to the date of the report of Dr Balint, a date which preceded the introduction of the requirement to have participated in a program of support. Had she made her claim immediately after she had obtained the report, or, in fact, at any time prior to 3 September 2011, she would not have had to satisfy that requirement. But the fact remains that she did not lodge her claim prior to that date; it was not lodged until October 2011 and it is the date of the claim that determines the law to be applied, not the date of the doctor’s report.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

...(Sgd) T Freeman.........................

Associate

Dated        22 October 2013

Date(s) of hearing	26 September 2013
Date final submissions received	4 October 2013
Applicant	In person
Solicitors for the Respondent	Sparke Helmore