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

[2019] AATA 409

Larcombe and Secretary, Department of Social Services (Social services second review) [2019] AATA 409 (13 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3844

Re:Garth Larcombe

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:13 February 2019

Date of written reasons:        14 March 2019

Place:Melbourne

The Tribunal affirms the decision under review, to cancel Mr Garth Larcombe’s Disability Support Pension on 23 August 2007.

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

Senior Member D. J. Morris

Catchwords

SOCIAL SERVICES – disability support pension – decision to cancel pension in 2007 – provisions of s 94 of Social Security Act 1991 – Respondent concedes impairments – question of impairment ratings to satisfy legislative provisions – consideration of repealed instrument then in force – applicant does not satisfy legislative requirement – decision affirmed – oral decision – written reasons requested

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 43
Social Security Act 1991 (Cth), s 94
Social Security Act 1991 – Schedule 1B – Tables for the Assessment of Work-Related Impairment for Disability Support Pension (1997) (rep)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
G v Minister for Immigration and Border Protection [2018] FCA 1229
Negri v Secretary, Department of Social Services (2016) 70 AAR 103

Secondary materials

A Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (Department publication, undated)

REASONS FOR DECISION

Senior Member D. J. Morris

14 March 2019

Background

1. Mr Garth Larcombe was granted a Disability Support Pension (DSP) on 12 September 2000 after a job capacity assessment (JCA) recommended, under the rules applying at that time, that he should be allocated at least 20 impairment points for his spinal condition under the statutory tables used to assess a person’s impairment.

2. In August 2007, the Department of Human Services (the Department) commenced a review of Mr Larcombe’s eligibility for the DSP. He underwent a JCA on 23 August 2007. That JCA concluded that Mr Larcombe had two medical impairments and consequently that he satisfied section 94(1)(a) of the Social Security Act 1991 (the Act).  The two impairments identified were a spinal condition and depression.  The JCA also recommended that Mr Larcombe would have a work capacity of more than 30 hours a week within 24 months.

3. On 29 August 2007, an officer of the Department determined that Mr Larcombe’s impairment no longer attracted 20 impairment points, and consequently that he was no longer eligible to receive a DSP.  Mr Larcombe sought review of that original decision by an authorised review officer (ARO), an officer of the Department not involved in the original decision.  The ARO reviewed the decision and affirmed it.  The ARO found that Mr Larcombe’s condition of lower back pain could be considered a permanent condition at the date of cancellation but could only be assigned 5 impairment points under the impairment tables that have been used to assess impairment for DSP since 1 January 2012, namely the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

4. Mr Larcombe sought a review by the Social Services and Child Support Division of this Tribunal (the tier-one review).  On 22 May 2018, the Tribunal conducted a review and on 25 May 2018 affirmed the original decision.

5. Mr Larcombe sought a review of the tier-one decision by the General Division of the Tribunal, as he has the right to do.  The hearing took place by telephone on 13 February 2019.  Mr Larcombe represented himself, made submissions and gave evidence under affirmation.  The Respondent was represented by Mr James Henderson, a legal officer of the Department.

6. At the conclusion of the hearing, the Tribunal affirmed the decision under review and gave oral reasons for its decision, as permitted under section 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Mr Larcombe sought a statement in writing of the reasons for the decision under section 43(2A) of the AAT Act. The Tribunal therefore provides reasons in writing for the decision which, in accordance with section 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

7. In accordance with the Federal Court decision in Negri v Secretary, Department of Social Services (2016) 70 AAR 103, these written reasons are consistent with the oral decision given and do not contain altered or new reasoning, but it is hoped that they explain in a fuller way the reasons why the Tribunal decided to affirm the original decision to cancel Mr Larcombe’s DSP in 2007.

   Legislative requirements for eligibility for DSP

8. In order to qualify for the DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. It must be established that:

   (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)one of the following applies:

   (i)     the person has a continuing inability to work;

   (ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

   (d)…

9. The Respondent, in her written Statement of Facts, Issues and Contentions, dated 30 November 2018 and lodged with the Tribunal, did not dispute that Mr Larcombe had impairments which affected his ability to function on the date of cancellation, and accepted Mr Larcombe satisfied section 94(1)(a) of the Act.

10. As the Tribunal is reviewing the decision to cancel Mr Larcombe’s DSP on 29 August 2007, the correct legislative provision to use when assessing his impairment is the one that was in force at the date of cancellation. The legislative provision in force at the relevant time was Schedule 1B of the Act and intituled Tables for the Assessment of Work-Related Impairment for Disability Support Pension (1997).  This Schedule was repealed on 1 January 2012 when a new Determination came into force, but that is not relevant in this review.  The Tribunal must look at the law as it applied at the date of cancellation.

11. The Respondent provided a file of papers as required under section 37 of the AAT Act (the ‘T’ documents). Mr Larcombe made a written submission received on 27 November 2018, which was admitted as Exhibit A1. These documents were taken into account by the Tribunal.

    Evidence and consideration

12. It would seem from the evidence, including the medical report of Dr Linda Thompson, the Applicant’s treating general practitioner, dated 21 May 2015 (T30, p 139), that there was a diagnosed spinal condition at the date of cancellation.  The report diagnoses degenerative changes to Mr Larcombe’s lower spine with a date of onset of 1997 and records that there is a corroborative diagnosis from Mr Peter Wilde, an orthopaedic surgeon (reports at T5, p 22 and p 23).  The report also states that Mr Larcombe had difficulties in squatting, climbing ladders and lifting weights of more than 10 kilograms and had pain exacerbation through flare ups.

13. Mr Henderson drew the Tribunal’s attention to what Mr Larcombe told the assessor on 23 August 2007 – that he lived independently and was able to maintain a house inside and out; that he did all his own cooking, dishwashing, vacuuming and laundry (including carrying a basket and hanging out his clothes); that he mowed his grass; that he could not do long hours of manual labour but could work in short bursts provided that work did not include twisting or lifting heavy objects; that he had one-quarter loss of movement; and that he worked two part-time jobs, with 3 hours as a hardware shop cashier on Saturday mornings and 2 hours as a barman on Saturday nights (T13, p 91).

14. Mr Larcombe gave evidence at this hearing consistent with the evidence he provided during the JCA and the tier-one review. This evidence was that at the time of cancellation (and indeed since) he lived alone, was able to undertake the usual range of household chores, including mowing his lawn, and was independent in the activities of daily living.  Under cross-examination, Mr Larcombe said he did cart wood at the time of cancellation but did it more as ‘a social thing’ and that he estimated that he stopped doing that in 2009 at the same time his doctor changed his medication from panadeine forte to panadol-osteo. 

15. Mr Larcombe told the Tribunal that he undertakes periodic physiotherapy when his back pain flares up, but he last saw a physiotherapist some five years ago, in 2014.  Mr Larcombe told the Tribunal that in 2007 he could travel for a maximum of 30 minutes in a car before he needed a break.  He also gave evidence that at the time of cancellation he was working Saturday mornings in a joinery, mainly undertaking counter work but occasionally cutting up timber for customers and performing other light duties.  He said that when an apprentice completed his apprenticeship and left the joinery, he was required to undertake heavier duties, which he found he could not do with his spinal condition.

16. The Tribunal considered the criteria in Table 5.2 – Thoraco-lumbar-sacral spine.  It concluded that the preferable decision at the time of cancellation of the DSP was that Mr Larcombe had a loss of one-quarter of the normal range of movement as well as back pain associated with sitting or driving for about an hour and other physical activities.  It was not entirely clear from the evidence whether he was required at the time to stand for more than 30 minutes as part of his work at the joinery. Mr Henderson rightly, in the Tribunal’s view, on behalf of the Respondent conceded that the Secretary accepts that Mr Larcombe was not, at the time, working full-time. 

17. The Tribunal, after careful consideration, concluded that the preferable interpretation of the medical and oral evidence is that 10 impairment points should be assigned at the date of cancellation for Mr Larcombe’s spinal condition.  A higher rating of 20 points is not warranted because, on Mr Larcombe’s own evidence, he could stand for more than 15 minutes without pain, which is a mandatory requirement for that part of Table 5.2.

18. Mr Larcombe asked the Tribunal in its consideration to also examine Table 20 in regard to pain.  Table 20 was a miscellaneous impairment table encompassing several conditions, namely Malignancy, Hypertension, HIV Infection, Morbid Obesity (ie BMI >40), Heart/Liver/Kidney Transplants, Miscellaneous Ear/Nose/Throat Conditions & Chronic Fatigue or Pain.

19. At the time of the cancellation, Department officers used a publication to aid them in assessing applications for DSPs.  That publication was A Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Guide).  This Guide provides useful assistance and, while the Tribunal is not bound to apply policy guidelines, it will usually do so unless the policy is unlawful or there are cogent reasons to the contrary..  This is particularly germane when undertaking an assessment as to whether a decision taken some eleven years ago to cancel Mr Larcombe’s DSP was, at the time, the correct decision in law, and the preferable decision where a discretionary power is exercised.  The often quoted authority for looking to relevant policy guides used by decision makers is a decision of Brennan J, then President of the Tribunal, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. However, the Tribunal emphasises that policy, unless it has a statutory basis, is a consideration, and not something that must be strictly adhered to (noting the comments of Mortimer J in G v Minister for Immigration and Border Protection [2018] FCA 1229, at [164]).

20. The Introduction to the Guide used by Department officers when applying Schedule 1B directs decision-makers, in assessing a spinal condition, to apply either Table 5.2 or Table 20.  The Tribunal also notes that in the introduction to Table 20 decision-makers are reminded “[w]hen applying this table, care must be taken to avoid double counting of the same functional loss, particularly if there is a choice of other tables that may be used to assign ratings or if there is overlap in the symptoms caused by multiple conditions.”

21. The Guide also refers in Table 20, to the use of that table in regard to pain when the pain is “chronic entrenched pain or fatigue”, which does not describe the pain Mr Larcombe reported at the time of cancellation (or indeed since), which he described and which his medical advisers reported as pain which ‘flares up’.  The Tribunal reviewed Table 20 but concluded that the medical evidence in relation to Mr Larcombe’s spinal condition is more robust and provides a better basis for the assessment of his work-related impairment than Table 20 does.

22. In terms of Mr Larcombe’s depressive condition, the correct table at the date of cancellation was Table 6 – Psychiatric Conditions.  The Guide in relation to Table 6 states:

    In determining whether the psychiatric disorder has been fully treated and stabilised, one should consider whether the person has received optimal and “reasonable” psychiatric treatment and whether with or without such treatment, the person’s level of function will improve within two years. If for example, specialist advice is that a person would benefit from treatment with long-term psychotherapy but that significant functional improvement is not expected to occur for many years, then the psychiatric impairment may be considered permanent and rated accordingly.

    The introduction to Table 6 in Schedule 1B states, among other things: Table 6 is used for permanent psychiatric disorders only.  If there is insufficient clinical information available, a current or recent specialist report should be obtained.

23. Mr Larcombe said he did see two psychiatrists around 1998 but his evidence is that he did not see such a specialist after that time, or a clinical psychologist.  There was no recent specialist assessment.  The Tribunal notes a contemporary medical report by Dr Kim Tan (T12, p 747), who examined Mr Larcombe on 3 January 2007 and reported at that time that in his opinion significant improvement in Mr Larcombe’s depressive condition was expected and this condition had minimal impact on his ability to function. 

24. Mr Larcombe told the JCA on 23 August 2007 that he was “currently symptom free with no disturbance of mood, appetite or sleep.  He occasionally has down days that do not impact significantly on his day to day functioning.  He is currently on long term antidepressant therapy.”

25. The Tribunal found that the Mr Larcombe’s depressive condition was not fully diagnosed at the time of cancellation because it does not satisfy the parameters of Schedule 1B.  If the Tribunal is wrong in this conclusion, it would appear nonetheless from the medical evidence from Dr Tan that the condition was not stabilised at the time of cancellation.  In any event, the condition, of itself, from what Mr Larcombe himself told the job capacity assessor, did not have a significant impact on Mr Larcombe’s ability to function.

26. The Tribunal noted that there is reference in Dr Thompson’s medical report of a right shoulder condition, but the date of onset appears in her assessment to be 2013; so it is not relevant to this review of the 2007 cancellation decision.

    Conclusion

27. The result, in relation to the cancellation of Mr Larcombe’s DSP, is that the Tribunal affirms the decision of 23 August 2007 because he did not satisfy the requirements at the date of cancellation of having 20 impairment points and therefore did not satisfy section 94(1)(b) of the Act. The requirements of section 94(1) are conjunctive; that means to be eligible for DSP a person must satisfy all parts of that subsection. As the Tribunal finds that Mr Larcombe did not satisfy section 94(1)(b), it was not necessary for the Tribunal to go on to consider whether the he had an inability to work. However, relevant to this is Mr Larcombe’s evidence that, at the relevant time, he was undertaking some work at the joinery (about 3 hours on Saturday mornings) and doing some evening bar work (around 2 hours per night), in total he estimated between 10 and 12 hours per week at the time his DSP was cancelled.

28. In his evidence to this hearing and in the papers before the Tribunal, Mr Larcombe has referred to more recent deterioration in his spinal condition, in particular in regard to the development of pain.  That cannot be considered by the Tribunal in this review, because it post-dates the cancellation of Mr Larcombe’s DSP.  However, it is open to Mr Larcombe to test his eligibility for DSP by lodging a fresh claim, noting of course that any such fresh claim must be considered under the law applying at the time it is made, including the impairment tables in force at the time.

29. The Tribunal closes with an observation that Mr Larcombe did not appear to exaggerate his spinal condition.  He has taken account of it in avoiding heavier lifting activities and appears to have been open with prospective employers about limitations on what he can and cannot do.  This is to his credit, but the Tribunal accepts that the ultimate situation is that he is living with a condition which causes him difficulties, especially with flaring pain.

    DECISION

30. The Tribunal affirms the decision under review, to cancel Mr Garth Larcombe’s Disability Support Pension on 23 August 2007.

31.     I certify that the preceding 30 (thirty) paragraphs are a true copy of the written reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 14 March 2019

Date(s) of hearing:	13 February 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Mr James Henderson