Lange and Secretary, Department of Social Services (Social services second review)
[2017] AATA 596
•3 May 2017
Lange and Secretary, Department of Social Services (Social services second review) [2017] AATA 596 (3 May 2017)
Division:GENERAL DIVISION
File Number: 2015/6544
Re:Robert Richard Lange
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Regina Perton, Member
Date:3 May 2017
Place:Melbourne
The Tribunal affirms the decision under review.
....................................[sgd]....................................
Regina Perton, Member
SOCIAL SECURITY - disability support pension – whether medical conditions fully diagnosed, treated and stabilised at time of claim or within 13 weeks of that date – impairment points to be allocated – where 20 points requirement satisfied - where applicant does not have a severe impairment - whether applicant has a continuing inability to work – requirement for program of support not satisfied - decision affirmed
Legislation
Social Security Act 1991 (Cth) ss 94(1)(a)-(c), 94(2)-(5)
Social Security (Administration) Act 1999 (Cth) sch 2 s 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 6, 8Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) ss 7(3)-(5)
REASONS FOR DECISION
Regina Perton, Member
3 May 2017
Robert Lange lodged a claim for disability support pension (DSP) with Centrelink on 13 March 2015. On 30 April 2015 a Centrelink officer rejected the claim (the original decision). Centrelink administers DSP for the Secretary, Department of Social Services (the respondent). Mr Lange sought a review of the original decision by a Centrelink authorised review officer (ARO). On 11 August 2015 the ARO affirmed the original decision.
Mr Lange lodged an application for review of the ARO's decision with the Social Services & Child Support Division of the Administrative Appeals Tribunal on 24 August 2015. On 11 November 2015 the Social Services & Child Support Division affirmed the ARO's decision on the basis that Mr Lange’s impairments did not attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) on 13 March 2015 or within 13 weeks of that date (the relevant period).
On 15 December 2015, Mr Lange lodged an application with the General Division of the Tribunal for review of the Social Services & Child Support Division’s decision.
ISSUE
The issue before the Tribunal is whether Mr Lange satisfied the requirements for DSP during the relevant period.
QUALIFICATION FOR DSP DURING THE RELEVANT PERIOD
Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP.
(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)the person has a continuing inability to work
…
When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of s 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) allows a person who does not qualify for DSP at the date of application to do so within 13 weeks of that date. The relevant period in this case is, therefore, 13 March 2015 to 12 June 2015.
DOES MR LANGE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
In his claim form Mr Lange provided a medical report from Dr G Ng, general practitioner, who said that Mr Lange had been his patient since 2005. Dr Ng stated that Mr Lange suffered from right lower limb injury sustained when he was struck by a motor vehicle in 2014, panic disorder, anxiety and depression, and a pulmonary embolism (blockage of an artery in the lungs).
Mr Lange also provided a report by Dr R Chau, consultant psychiatrist, dated 29 July 2015. Dr Chau had been Mr Lange’s treating psychiatrist since February 2010. He recorded a history including a diagnosis of chronic pain disorder and chronic depression. Dr Chau also noted stated that Mr Lange’s accident on 4 August 2014 had made his depression much worse.
The Tribunal accepts that Mr Lange suffered from a number of medical conditions during the relevant period. These were:
·right lower limb fractures;
·panic disorder;
·anxiety and depression;
·alcohol dependence;
·pulmonary embolism; and
·lumbar osteoarthritis.
Therefore, Mr Lange satisfies the requirements of s 94(1)(a) of the Act.
DOES MR LANGE HAVE AN IMPAIRMENT RATING OF 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLE?
The Tribunal must next decide whether Mr Lange’s medical conditions attract an impairment rating totalling 20 points, subject to satisfying the requirements under ss 6(3) and (4) of the Impairment Tables. The legislation only allows for impairment points to be assigned for a particular condition if that condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years (s 94(2) of the Act).
Section 6 of the Impairment Tables states that:
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.
…
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
…
(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.
…
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
…
(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.
(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.
…
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.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
…
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Section 8 of the Impairment Tables sets out factors which cannot be taken into account.
(1) ...
(2) Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
Right lower limb fractures
Mr Lange told the Tribunal that he was struck by a motor vehicle in August 2014 and fractured his right ankle, although he has no memory of the incident. He said that he has had internal fixation surgery on the ankle and suffers from pain and limited mobility. He has attended the pain and rehabilitation clinic at the Royal Melbourne Hospital and said that he has been told there is nothing more that can be done. His current medication is Tramal and Panadeine Forte.
In respect of mobility, Mr Lange explained that he can perform daily personal care tasks and uses a seat in the shower and hand rails in his home. He is able to walk for five to ten minutes before needing to rest, and can stand for five minutes. He uses a walking stick even at home. He said that he cannot drive a motor vehicle and cannot wear shoes because of the pain in his right leg.
Mr Lange stated that he is able to do his own shopping, although he needs to rest periodically. He said that he does not use public transport because of a fear of falling. He explained that he is a qualified electrician and worked at Bunnings stores for several years until February 2014, and as a sales representative.
The moderate and severe descriptors of Table 3 Lower Limb Function state:
Points
Descriptors
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid
Dr Ng stated in his report dated 12 March 2015 that Mr Lange is not able to stand or walk for long periods because of the right lower limb injury, and was unable to lift heavy weights. He recommended referral to a foot specialist and noted non-union of the fibular fracture. On 2 September 2015 Dr Ng indicated that the right lower limb attracted a rating of 10 points under Table 3.
On 30 April 2015 a Job Capacity Assessment (JCA) report was prepared by an assessor who was a qualified as a social worker and as an exercise physiologist after a face-to-face assessment of Mr Lange. The report stated:
Medical report confirms that client has been referred to foot specialist for further opinion/treatment as at Feb 2015. Discussion with treating GP indicated that other specialists have indicated there is nothing further they can do for client’s condition. GP indicated that it is unlikely any further treatment will occur or any significant improvement. As such, given specialist treatment, condition is considered fully diagnosed, treated or stabilised for assessment purposes.
The assessor recommended an impairment rating of 10 points be allocated under Table 3 because Mr Lange was able to walk from a motor vehicle to a shopping centre without assistance and could stand from a seated position without assistance. The report noted that Mr Lange could dress independently, apart from an inability to put on socks. He could climb 1-2 steps with the use of handrails and could stand with a walking stick for about 5-10 minutes.
Dr R Young, general practitioner, noted in a report dated 28 July 2015 that the lower limb injuries were tibia and fibula fractures with neuropathic pain. He referred to Probable further surgery for fibular fracture. Dr Young opined that the effect on ability to function was expected to remain unchanged within the next two years, with the comment Consider further surgery.
Dr C Minogue, specialist occupational physician, produced a report dated 14 July 2016 after analysing the medical documents and contacted the relevant practitioners at the request of the Respondent. Dr Minogue noted that Dr Ng had referred Mr Lange to an orthopaedic surgeon in February 2015. In March 2015 Dr Ng reported that approval from the Transport Accident Commission was awaited for orthopaedic referrals. Dr Minogue stated that it was reasonable for Dr Ng to make the referrals for specialist advice in view of the fibula fracture non-union, and for that reason Dr Minogue concluded that the lower limb condition was not fully treated and stabilised during the relevant period. Dr Minogue said:
It is not unusual for active treatment of more complex fractures, including recurrent surgical treatment, to be required over many months until an optimal outcome is achieved. If it later transpired that further surgery was ruled out (and the available medical evidence does not clarify this issue) this could not have been reliably predicted during the application period, in my opinion.
In a further report dated 19 July 2016, Dr Minogue stated that he had requested additional information from Dr Ng. Dr Minogue noted that on 22 October 2015 Dr M Bassett of the Pain Clinic of the Royal Melbourne Hospital referred Mr Lange for orthopaedic review for an opinion on whether any further surgical intervention would assist with Mr Lange’s persistent pain.
Dr Minogue also referred to a letter dated 11 February 2016 from Dr A Vaska of the Pain Clinic to Dr Ng, in which Dr Vaska noted recent orthopaedic review with CT scans of both ankles, and further orthopaedic review scheduled for 18 February 2016. Dr Vaska had stated that Mr Lange …will see what they suggest at that time.
Dr Minogue stated in his further report that the additional information from Dr Ng reinforced his original view that the lower limb condition was not fully treated and stabilised during the relevant period. This was because in October 2015 specialists from the Pain Clinic suggested physiotherapy and hydrotherapy, and in February 2016 were awaiting definitive orthopaedic advice on further procedural intervention of other treatment.
The Tribunal prefers the evidence of Dr Minogue, a specialist occupational physician, to that of Dr Ng and the JCAs. The additional information shows that Dr Ng had referred Mr Lange to an orthopaedic surgeon in February 2015, and in March 2015 approval had not been received from the Transport Accident Commission for the referral. The Tribunal also takes into account that in October 2015 practitioners at the pain clinic had considered other treatment, and in February 2016 specialist orthopaedic advice had not been received. Dr Young’s report also referred to possible further surgery.
For these reasons the Tribunal finds that during the relevant period Mr Lange’s right lower limb condition was not fully treated and stabilised. Therefore the condition does not attract an impairment rating.
Panic disorder, anxiety and depression
The preamble at the start of Table 5 Mental Health Function states:
Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-report of symptoms alone is insufficient.
The mild, moderate, and severe descriptors of Table 5 state:
Points
Descriptors
5 There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10 There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20 There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Mr Lange told the Tribunal that he has attended Dr Chau since 2010 and has suffered from low moods, anxiety, poor concentration and lack of motivation. He said that he has suffered from panic attacks and depression for more than ten years. Mr Lange explained that since the motor vehicle injury in August 2014 he has been living with his mother and stepfather. He said that he has little motivation and does not socialise often.
Mr Lange agreed that his evidence to the Social Services & Child Support Division of the Tribunal was accurately summarised in that decision as:
He will watch a film to the end of [sic] he is interested… He will have a shower on his own volition. He can sit at the computer for an hour at a time… He belongs to a club and will go to the club occasionally, to see his friends. Occasionally, his friends will visit him.
As noted above, Dr Chau stated in a report dated 29 July 2015 that Mr Lange suffers from chronic panic disorder and chronic depression, and that the motor vehicle accident on 4 August 2014 has made his depression much worse. Dr Chau said that Mr Lange has no capacity for work and minimal prospect of retraining.
In a further report dated 11 September 2015 Dr Chau stated that Mr Lange has suffered from panic disorder and depression for many years. He said that Mr Lange cannot do shopping and cannot do much cooking without assistance. He said that Mr Lange gets upset easily, has lost all his friends, hardly socialises with people and will not be able to travel to unfamiliar places. Dr Chau added that Mr Lange has a limited concentration span and cannot plan for tasks that are slightly complicated. He concluded that Mr Lange has no work capacity and cannot be trained for any employment, and said that the conditions attract an impairment rating of 20 points.
In a further report dated 14 June 2016 Dr Chau acknowledged that the respondent had forwarded to him a copy of Mr Lange‘s evidence to the Social Services & Child Support Division of the Tribunal as specified in [30] above, and had asked whether Dr Chau maintained his opinion that the mental health conditions attracted an impairment rating of 20 points using each of the descriptors under Table 5. Dr Chau stated that he remained of the view that an impairment rating of 20 points was appropriate, although he did not elaborate or refer to the descriptors.
In the JCA report the assessors noted the following:
Medical report indicates diagnosis of panic disorder, anxiety and depression prior to 2008. Medical report indicates has seen [p]sychiatrist Dr Chau since 2009… Medical report indicates condition is likely to remain unchanged and is considered fully diagnosed, treated and stabilised for assessment purposes given long term psychiatric oversight.
The assessors stated that Mr Lange had no difficulty with self-care and independent living, and had maintained contact with friends. The assessors also noted that Mr Lange had difficulty with concentration but was able to focus on computer games and was able to work on a regular basis since the onset of the conditions. The assessors allocated 5 impairment points.
Dr Ng recorded on 12 March 2015 that Mr Lange had no enjoyment of life, and that the effect of the conditions on ability to function were expected to remain unchanged for the next two years.
Dr Minogue stated in his report of 14 July 2016 that he discussed with Dr Chau the descriptors in Table 5 and Dr Chau’s assessment of an impairment rating of 20 points. He noted that Dr Chau commented that Mr Lange resides with his mother and stepfather and would need ongoing support from them; he would not go to unfamiliar places; he shops only for small items; interpersonal relationships are very limited; he displays a volatile temperament if under stress; his concentration and task completion are quite limited; and he is not capable of any work.
Dr Minogue expressed the view that the functional capacity prognosis for the mental health conditions was probably unclear during the relevant period, due to the lack of clarity surrounding the prognosis for the lower limb condition. He suggested that if Mr Lange could resume past enjoyable activities, significant improvement in his depressive condition is a reasonable possibility. Dr Minogue concluded: As a result I find it somewhat difficult to accept that this condition was fully stabilised during the application period.
The Tribunal accepts Dr Chau’s evidence that the mental health conditions are longstanding and chronic, and that they were fully stabilised during the relevant period. The Tribunal also takes into account Mr Lange’s evidence at the hearing and to the Social Services & Child Support Division and recorded in the JCA report that he maintains a degree of independent living and is able to carry out most of the daily activities of self‑care.
Mr Lange has some difficulty when attending social/recreational activities or travel. He has some difficulty with interpersonal relationships, and he has moderate difficulty with concentration and task completion, although he appears to be able to focus on computer games. The Tribunal finds that the mental health conditions do not satisfy the descriptors of a severe functional impact on activities involving mental health functions. For these reasons the Tribunal does not accept the allocation of 20 points as found by Dr Chau. Instead the Tribunal concludes that the level of impairment is moderate, and attracts an impairment rating of 10 points.
Alcohol dependence
The mild descriptors for Table 6 Functioning relating to Alcohol, Drug and Other Substance Use state:
Points Descriptors 5 There is mild functional impact from alcohol, drugs or other harmful substance use.
(1) At least one of the following applies:
(a) the person engages in alcohol or illicit drug use and experiences some physical or cognitive effects that carry over into working hours (e.g. poor concentration, lethargy, irritability); or
(b) the person has occasional difficulties in reliably attending work, education or training sessions or appointments or completing duties or assigned tasks; or
(c) the person is sometimes absent from work, education or training activities due to the effects of alcohol, drugs or other harmful substance use.
Dr Ng stated in his report dated 12 March 2015: Had past history alcoholism problem started anxiety & panic. On 2 September 2015 Dr Ng stated that the impairment rating under Table 6 was 5 points. Dr G Nastasi, Psychiatry Registrar, Royal Melbourne Hospital, referred to alcohol dependence in a report dated 20 May 2014, and Dr Minogue agreed that a rating of 5 points was appropriate.
The Tribunal accepts the opinions of Dr Ng and Dr Minogue and finds that the condition attracts an impairment rating of 5 points under Table 6.
Pulmonary Embolism
Table 1 Functions requiring Physical Exertion and Stamina states:
Points Descriptors 0 There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
Mr Lange told the Tribunal that he was admitted to hospital on 24 October 2014 with pulmonary embolism and wound infection. He was treated with anticoagulants and on discharge was prescribed a number of medications including warfarin.
Dr Ng stated in his report dated 12 March 2015 that the condition was generally well managed and caused minimal or limited impact on Mr Lange’s ability to function. Dr Minogue agreed that an impairment rating of 0 points is justifiable.
The Tribunal accepts the opinions of Dr Ng and Dr Minogue and finds that as this condition had limited functional impact during the relevant period, an impairment rating of 0 points under Table 1 is appropriate.
Lumbar Osteoarthritis
The mild descriptors for Table 4 Spinal Function state:
Points Descriptors 5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
Mr Lange stated that he has suffered from intermittent back pain for some time. In his clinical notes Dr Ng referred to …a thoracic spine kyphoscoliosis, reduced L4/5 disc height and osteoarthritis in both of these spinal regions. In his report of 2 September 2015 Dr Ng expressed the view that the spinal condition attracted an impairment rating of 5 points. Dr Minogue agreed with Dr Ng.
The Tribunal accepts the opinions of Dr Ng and Dr Minogue and finds that the condition attracts an impairment rating of 5 points under Table 4.
CONCLUSION
The Tribunal finds that during the relevant period the total impairment rating for the accepted conditions is 20 points. Therefore Mr Lange satisfies s 94(1)(b) of the Act.
DID MR LANGE HAVE AN INABILITY TO WORK UNDER S 94(1)(C) OF THE ACT?
The Tribunal must also consider whether Mr Lange has a continuing inability to work under s 94(1)(c) of the Act. The relevant provisions are set out in ss 94(2) to (5) of the Act:
(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.
(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) …
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.
…
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.
…
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 a program of support provided occasionally; or
(c)is likely to need 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 or 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.
[Emphasis in original]
…
In addition to sections from the Act cited above, s 94(3C) of the Act stipulates the need to concurrently consider a Determination made by the Minister entitled Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the POS Determination). Section 5 of the POS Determination states that the person must have participated in a Government-funded program for at least 18 months in the 36 months prior to the lodgement of the claim to meet the legislative requirements.
Mr Lange does not have a severe impairment as defined in the Act. Therefore the Tribunal must decide whether he has actively participated in the POS as set out in the Participation Guidelines.
The Referral Placement List for Mr Lange prepared by the respondent shows that in the 36 months prior to lodging his application for DSP Mr Lange participated in a POS during the period 8 June 2012 to 22 June 2012. Therefore the requirement for active participation is not satisfied in this case.
Sections 7(3)-(5) of the Participation Determination list a number of exceptions to the general requirement of 18 months’ participation:
…
(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 entire program during the relevant period.
(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 end of the relevant period; 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 prepare for, find or maintain work 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 end of the relevant period, 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 prepare for, find or maintain work through continued participation in the program.
The Tribunal is satisfied that ss 7(3) and (4) do not apply. In respect of s 7(5), Mr Lange was not participating in the POS at the end of the relevant period. As he was not enrolled in a POS at any time during the 36 months ending immediately before the day on which the claim for DSP was made or was taken to have been made and was not participating in a POS at the date of the claim, Mr Lange cannot satisfy any of the exceptions in ss 7(3)‑(5).
For these reasons the Tribunal finds that Mr Lange does not satisfy s 94(2)(aa) of the Act and does not have a continuing inability to work, so he does not satisfy s 94(1)(c) of the Act . He cannot satisfy all the requirements of s 94(1) of the Act and therefore cannot succeed in his application.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 59 (fifty‑nine) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
............................[sgd]...............................
Associate
Dated 3 May 2017
Date of hearing 27 July 2016 Applicant In person Advocate for the Respondent Mr T Noonan Solicitors for the Respondent Department of Human Services,
Freedom of Information and Litigation Branch
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Remedies
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Procedural Fairness
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