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

[2016] AATA 471

Kubbere and Secretary, Department of Social Services (Social services second review) [2016] AATA 471 (4 July 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6629
Re	Amanda Kubbere
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date of written reasons	4 July 2016
Place	Canberra

The decision under review is affirmed.

.............................[sgd]...........................................

Deputy President Gary Humphries

Catchwords

SOCIAL SECURITY – disability support pension – whether impairments fully diagnosed, fully treated and fully stabilised – rating of impairments – continuing inability to work – program of support requirements not met – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Deputy President Gary Humphries

4 July 2016

Background

1. Ms Kubbere, the applicant, is 49 years of age. At 18 years of age she was the pillion passenger in a motorbike accident. The injuries she sustained have required ongoing treatment and multiple surgeries. On 28 May 2015 Ms Kubbere applied for the disability support pension (DSP). On 3 December 2015, the Social Services and Child Support Division of the Administrative Appeals Tribunal affirmed the department’s decision to reject her claim for DSP. Ms Kubbere appealed that decision. She appeared at the hearing via videolink from Lithgow.

   Legislative framework

2. The relevant legislation is the Social Security Act 1991 (SS Act), the Social Security (Administration) Act 1999, the Impairment Tables and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011. 

3. Section 94(1) of the SS Act requires that in order to qualify for the DSP Ms Kubbere must have a physical, intellectual or psychiatric impairment equating to 20 or more points under the Impairment Tables, and a continuing inability to work.

4. The Social Security (Administration) Act 1999 provides that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim or within 13 weeks of that claim being lodged. Therefore, the relevant period for determining whether Ms Kubbere qualified for DSP is between 28 May 2015 to 27 August 2015.

   The medical evidence

5. Before the Tribunal were numerous medical reports. Further evidence including photographs and letters were provided to the Tribunal, by the applicant, on the morning of the hearing.

6. Ms Kubbere told the Tribunal that her condition had not improved at all since she made her application for DSP in May 2015. A number of conditions were put to the Tribunal as being relevant to her claim.  These were considered in turn.

   Lower limb condition

7. This condition was accepted by the Secretary as fully diagnosed, fully treated and fully stabilised during the relevant period. The parties agreed that the condition should attract 10 points under the relevant Impairment Table. The Tribunal agrees with that assessment. Accordingly it is appropriately assigned a rating of 10 points under Table 3.

   Upper limb condition

8. There was disagreement before the parties as to how many points, if any, should be assigned to the applicant’s upper limb condition. The Secretary contended that the applicant’s condition was fully diagnosed, fully treated and fully stabilised and should be assigned 5 points under Table 2. Having examined the evidence before it and the terms of the Impairment Table, the Tribunal finds that this condition should be assigned a rating of 10 points.

   Other conditions

9. Other conditions were raised before the Tribunal and the evidence in relation to those is uncertain. It was accepted by the Secretary that the applicant has impairments arising from high cholesterol, urinary incontinence, synovitis, tenosynovitis, occupational overuse syndrome and also chronic lower back pain. There was some evidence of most of those conditions in the medical reports available to the Tribunal. However, it was not clear that any one of those conditions is fully treated and fully stabilised. For example, the lower back pain condition is fully diagnosed but whether further treatment and stabilisation of the condition may be possible is not apparent from the medical evidence. The Tribunal therefore decides that allocation of points under an Impairment Table is not, at this point in time, possible.

   Continuing inability to work

10. Even if the conditions from which Ms Kubbere suffers attract a minimum of 20 points under the relevant tables, the Tribunal finds that she does not satisfy the test provided in s 94(1)(c) of the SS Act. The applicant cannot demonstrate, in accordance with the various parts of legislation and guidelines, that she has successfully undertaken a program of support for the period of 18 months prior to the lodging of her DSP claim. The evidence presented to the Tribunal from a person responsible for a program of support in Mudgee/Lithgow is that the applicant has been undertaking that program in the period between October 2014 and to date, but that much of that program has been undertaken since the lodging of her application in May 2015. The period between November 2014 and May 2015 is obviously a period that is shorter than 18 months. Therefore, the applicant cannot satisfy the requirements of s 94(1)(c).

11. The Tribunal notes that the applicant could avoid the need for completion of a program of support if she attracted 20 points under any single Impairment Table but in the opinion of the Tribunal she does not meet that requirement.

    Conclusion

12. Accordingly, the Tribunal finds that Ms Kubbere, at this stage, does not satisfy the test for Disability Support Pension and therefore affirms the decision made by the first tier of the Administrative Appeals Tribunal on 3 December 2015.

13. The Tribunal would encourage Ms Kubbere to consider taking up the invitation made by the Secretary’s representative to lodge a further application for Disability Support Pension after the point at which the 18 months on the program of support has been completed. At this point in time it would appear more likely that she may be successful in obtaining the Disability Support Pension.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

..............................[sgd]..........................................

Associate

Dated 4 July 2016

Date of hearing	13 May 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services