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

[2016] AATA 60

Lee and Secretary, Department of Social Services (Social services second review) [2016] AATA 60 (8 February 2016)

Division	GENERAL DIVISION
File Number	2015/3751
Re	John Lee
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	8 February 2016
Place	Brisbane

The decision under review is affirmed.

..........................[Sgd]..............................................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – unlimited portability – whether severe impairment – value of medical evidence – future work capacity – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss, 94, 1212, 1217, 1218AAA

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

CASES

Scrivener and Secretary, Department of Social Services [2014] AATA 537

Morton and Secretary, Department of Social Services [2014] AATA 949

WMKR and Secretary, Department of Social Services [2015] AATA 483

Glinster and Secretary, Department of Social Services [2015] AATA 800

Kelly and Secretary, Department of Social Services [2015] AATA 810

Shi v Migration Agents Registration Authority [2008] 235 CLR 286

REASONS FOR DECISION

Senior Member A C Cotter

8 February 2016

INTRODUCTION

1. Mr John Lee has been in receipt of Disability Support Pension (“DSP”) since July 2007.

2. On 28 January 2015, Mr Lee contacted the Department of Human Services about making a claim for unlimited portability of his DSP.[1]

   [1] Exhibit 1, T Documents, T 15, page 102, file note dated 28 January 2015.

3. In support of his claim, Mr Lee completed a form titled “Medical Report Disability Support Pension Review of Portability”, in which he listed his disabilities as back injury, disc degeneration, general depression and right shoulder problem.[2]

   [2] Exhibit 1, T Documents, T 7, page 61, Mr Lee’s Medical Report DSP Review of Portability form, undated.

4. A medical report was also provided by Mr Lee’s general practitioner, Dr Paul Fisher. He described the conditions having a significant impact on Mr Lee’s ability to function as back degeneration and depression. Mr Lee’s right shoulder condition was listed as being generally well managed and having minimal or limited impact on his ability to function.[3]

   [3] Exhibit 1, T documents, T 8, pages 63-72, medical report of Dr Paul Fisher dated 10 November 2014.

5. Mr Lee subsequently attended a Job Capacity Assessment (“JCA”) in February 2015. The assessor recommended that an impairment rating of 20 points be assigned in respect of Mr Lee’s spinal disorder and that five points be assigned in respect of his depression. No impairment points were recommended in relation to the shoulder condition as the assessor believed there was insufficient evidence available to consider the condition to be fully diagnosed, treated and stabilised. No further information was sought in relation to that condition as it was thought it would unlikely have any significant impact on the outcome of the assessment. Mr Lee’s baseline work capacity was assessed at between zero and seven hours per week; his capacity to work within two years with intervention was assessed at between eight and 14 hours per week.[4]

   [4] Exhibit 1, T Documents, T 9, pages 73-78, JCA report dated 6 March 2015.

6. On 20 March 2015, Mr Lee’s claim for unlimited portability was rejected on the ground that as he had not been assessed as having “no future work capacity”, he was ineligible for indefinite portability.[5]

   [5] Exhibit 1, T Documents, T 10, pages 79-80, letter from Department of Human Services to Mr Lee dated 20 March 2015.

7. Reviews, first by an Authorised Review Officer[6] and later by the then Social Security Appeals Tribunal (“SSAT”),[7] confirmed the decision. Still dissatisfied with the outcome, Mr Lee has applied to this Tribunal for a review of the SSAT’s decision.

   [6] Exhibit 1, T Documents, T 11, pages 81-85, Authorised Review Officer’s decision and letter to Mr Lee dated 7 May 2015.

   [7] The SSAT amalgamated with the Administrative Appeals Tribunal (“AAT”) from 1 July 2015 and became the Social Services and Child Support Division of the Tribunal. The SSAT’s decision was made on 24 June 2015. Under the transitional provisions of the relevant legislation, the application was taken to be an application for AAT first review and the SSAT’s decisions and reasons are formally a decision and reasons of the AAT on first review. The SSAT’s decision and reasons for decision dated 24 June 2015 are found at Exhibit 1, T Documents, T 2, pages 5-7. 

8. Before considering the issues raised by this application, it is timely to reflect on the key legislative provisions.

   THE LEGISLATIVE FRAMEWORK

9. The starting point for considering the relevant legislative provisions is s 1217 of the Social Security Act 1991 (Cth) (“Act”). Its effect is that, generally, a DSP recipient may travel outside Australia for any purpose for a total of 28 days within a 12 month period. However, it goes on to provide for a number of instances where the recipient may travel outside Australia for extended periods. Relevantly, item 2A of the table appearing in the section provides that DSP is portable for an unlimited period if the DSP recipient is a “severely impaired disability support pensioner”. That expression is defined in s 1212 as being “a person in respect of whom the Secretary has made a determination under subsection 1218AAA(1)”.

10. Section 1218AAA(1) of the Act in turn provides that the Secretary may make a written determination that a person’s maximum portability period for DSP is an unlimited period if all of the following circumstances exist:

    (a)the person is receiving DSP;

    (b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of s 94(3B)) of the Act;

    (c)the Secretary is satisfied that the person will have that severe impairment for at least the next five years; and

    (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent them from performing any work independently of a program of support (within the meaning of s 94(4)) within the next five years.

11. The term “severe impairment” is defined in s 94(3B) in the following way:

    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.

    ISSUES FOR THE TRIBUNAL

12. The issue I have to determine is whether Mr Lee qualified for unlimited portability for his DSP.

13. There being no dispute that he was receiving DSP at the time of his request, the remaining specific questions I have to address are:

    (a)Whether any of Mr Lee’s impairments were a “severe impairment”;

    (b)If so, whether he would have that impairment for at least five years; and

    (c)Whether, if Mr Lee were in Australia, the severe impairment would have prevented him from performing any work independently of a program of support within the following five years.

14. Before I deal with those questions, there is a threshold issue which I need to address, as to the date at which eligibility for unlimited portability is to be determined. In recent times in particular, there has been some inconsistency in approach within the Tribunal on that question.

15. In Scrivener and Secretary, Department of Social Services, it was said that the issue of whether all the requirements in s 1218AAA are met is to be determined as at the date the applicant advises Centrelink that he or she is considering travelling overseas.[8] However, in a matter decided a few months later, Morton and Secretary, Department of Social Services, the presiding member disagreed with that approach and concluded that the task of the Tribunal is “to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision”.[9]

    [8] [2014] AATA 537, at [6].

    [9] [2014] AATA 949, at [48].

16. The matter was further considered in WMKR and Secretary, Department of Social Services[10] (“WMKR”). In that matter, the presiding member considered that the question of eligibility must be determined at the date of claim, applying the legislation then in force, and subsequently as circumstances demand:

    There is no barrier to the Tribunal considering a claimant’s eligibility for indefinite portability of DSP from the date of the claim or request that commenced the decision-making process leading to the application for review by the Tribunal up to the present, and to do so on the materials placed before it, whether or not those materials were before the original or intermediate decision makers.

    [33]…As with many kinds of income support decisions concerning qualification, entitlement or payability, an assessment should be made at the time of claim, or such date as the legislation requires (or allows)- see s 11 of the Social Security (Administration) Act 1999 and related provisions of this Act dealing with start dates.[11]

    [10] [2015] AATA 483, at [24] to [35].

    [11] [2015] AATA 483, [31] and [33].

17. I am inclined to favour, as I have done in similar matters,[12] the approach in WMKR, which I believe to be consistent with that adopted in determining qualification for a claim for social security (such as DSP), and with the decision of the High Court in Shi v Migration Agents Registration Authority.[13]

    [12] See Glinster and Secretary, Department of Social Services [2015] AATA 800 and Kelly and Secretary, Department of Social Services [2015] AATA 810.

    [13] (2008) 235 CLR 286.

18. In those circumstances, I consider that the relevant date to consider Mr Lee’s request for unlimited portability is 28 January 2015, being the date on which he contacted the Department about his request.

19. That threshold issue having been addressed, I turn to the specific issues that need to be considered under s 1218AAA(1).

    CONSIDERATION

    Were any of Mr Lee’s impairments “severe”?

20. The Secretary accepts that Mr Lee’s back degeneration condition was fully diagnosed, treated and stabilised, such that it could attract impairment points.[14] Given that the condition is long standing (it having been diagnosed in June 2004),[15] the fact that it has been treated conservatively over many years[16] and that it is unable to be treated operatively,[17] I believe that concession was appropriate. I therefore accept that the condition is permanent for the purpose of considering Table 4 (Spinal Function).[18]

    [14] See Exhibit 1, T Documents, T 8, pages 65-66, medical report of Dr Paul Fisher dated 10 November 2014 and T9, pages 73-74, JCA report dated 6 March 2015

    [15] Exhibit 1, T Documents, T 8, page 65, medical report of Dr Paul Fisher dated 10 November 2014.

    [16] See Exhibit 1, T Documents, T 8, pages 65-66, medical report of Dr Paul Fisher dated 10 November 2014 and T9, pages 73-74, JCA report dated 6 March 2015.

    [17]See Exhibit 1, T Documents, T 4, pages 43-44, medical report of Dr Paul Mednis dated 13 September 2006.

    [18] See Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(Cth).

21. Turning to Table 4, the Secretary concedes that Mr Lee’s spinal condition warrants a rating of 20 points.[19] Having regard to:

    (a)Dr Fisher’s medical report (in which he describes Mr Lee’s pain as severe, which is worse with “any activity”),[20]

    (b)Mr Lee’s self-report in the Work Capacity form (where he stated that he cannot sit in the same position or stand for more than 10 minutes, and that he cannot bend and has difficulty standing up),[21] and

    (c)the assessment of the JCA assessor (who described Mr Lee’s inability to perform overhead activities without exacerbated severe pain that requires him to take stronger analgesics, and who observed his significantly limited range of movement for bending forwards, extension and rotation).[22]

    I also consider that concession to be appropriate. I therefore accept that 20 points should be assigned to Mr Lee’s impairment as a result of his back condition.

    [19] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 21 December 2015, paragraph [45].

    [20] Exhibit 1, T Documents, T 8, page 67, medical report of Dr Paul Fisher dated 10 November 2014.

    [21] Exhibit 1, T Documents, T 6, page 53, Work Capacity form, undated.

    [22] Exhibit 1, T Documents, T 9, page 75, JCA report dated 6 March 2015.

22. It follows from what I have said that at the time of claiming for unlimited portability, Mr Lee satisfied the requirement that he had a “severe impairment” in respect of his back condition, as that term is understood under s 94(3B) of the Act. In view of that finding, it is unnecessary to consider what, if any, impairment points should have been assigned in respect of his depressive condition and his shoulder condition.

    Is Mr Lee’s severe impairment likely to persist for at least the next five years?

23. The Secretary concedes that Mr Lee’s back degeneration condition is likely to persist for more than five years.[23] Again, I think that is an appropriate concession, having regard to the opinion of Dr Fisher that the impact of the condition was not only expected to persist for more than five years, it was expected to deteriorate; he noted that there would be “progressively more severe deterioration”.[24] I therefore accept that Mr Lee’s severe impairment would be likely to persist for at least five years.

    Would Mr Lee’s severe impairment prevent him from performing any work independently of a program of support within the next five years?

    [23] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 21 December 2015, paragraph [54].

    [24] Exhibit 1, T Documents, T 8, page 67, medical report of Dr Paul Fisher dated 10 November 2014.

24. Section 94(4) of the Act provides that 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 is unlikely to need a program of support, or is likely to need a program of support that is provided occasionally or that is not ongoing.

25. To provide guidance to those making decisions under s 1218AAA, the Secretary laid down policy in the Centrelink E-reference Guide, which was later replaced by Centrelink’s Operational Blueprint. Although it is an internal policy and not binding on me, I note that in both documents, the notion of “no future work capacity” is described by reference to the person’s capacity to work less than two hours per week.

26. In support of Mr Lee’s application, Dr Fisher provided a letter in May 2015, stating that Mr Lee was, and would be, “unfit to do any type of work (full or part-time) over the next 2 years because of severe back degeneration & Anxiety & Depression illness”.[25]

    [25] Exhibit 1, T Documents, T 12, page 87, letter from Dr Paul Fisher to Centrelink dated 25 May 2015.

27. As mentioned earlier, the JCA assessor (a physiotherapist) who conducted the assessment in February 2015, assessed Mr Lee as having a baseline work capacity of zero to seven hours per week, with future work capacity with intervention of eight to 14 hours per week.[26]

    [26] Exhibit 1, T Documents, T 9, pages 76-77, JCA report dated 6 March 2015.

28. A further JCA was conducted by another assessor (an occupational therapist) from a file assessment in December 2015.While that assessor’s views of Mr Lee’s baseline and  work capacity with intervention were the same as the earlier assessment, her further inquiries and observations are particularly relevant:

    The client’s With Intervention work capacity is expected to increase to 8-14 hours per week. Disability specific intervention in the form of workplace modifications, ergonomic equipment, vocational assessment to identify a sedentary job goal, retraining to gain skills/qualifications, work experience to gain recent skills, assistance with job seeking and post placement support to monitor management of condition is likely to result in the client achieving this work capacity within 24 months. Although Dr Fisher in a letter dated 25/05/15 indicates Mr Lee is unable to do any work over the next 2 years, Mr Lee has demonstrated an ability to independently travel overseas (3x since 2007), remains independent with household tasks and confirmed an ability to travel independently using public transport to friend’s [sic.] houses, therefore demonstrating a capacity to function. Additionally in a “Separated under one roof” document dated 13/05/14 Mr Lee confirms he is able to independently complete grocery shopping ( very rarely completed together with his ex-partner), is able to clean the house once a fortnight and is independent in completing his own washing. In a phone conversation with Dr Fisher on the 15/12/15, Dr Fisher confirmed Mr Lee remains independent with most day to day activities. Dr Fisher confirmed he is able to manage vacuuming and other indoor tasks, however could not manage gardening or chopping wood. Dr Fisher in the phone conversation also confirmed that Mr Lee is able to travel to Turkey independently and confirmed Mr Lee attends GP appointments alone and without support. Therefore it is anticipated Mr Lee has a capacity to perform work for 2 hours or more per week independently of a program of support and this work capacity is likely to remain sustainable for at least 5 years.[27]

    Based on that assessment, the assessor thought that Mr Lee would be capable of undertaking light, less skilled work, such as in a call centre, customer service or interpreting services.[28]

    [27] Exhibit 2 (c), JCA report, undated, pages 9-10/12.

    [28] Exhibit 2(c), JCA report undated, page 10/12.

29. The divergence in views of Dr Fisher and the JCA assessors can perhaps be partly explained by the fact that Dr Fisher appears to have been focussing on Mr Lee’s work capacity over the following two years, while the assessors based their assessments on a five year timeframe, as required by s 1218AAA(1)(d).

30. I also note that there appears to be some inconsistency in the assessments and opinions provided by Dr Fisher at various times during the life of this claim. Although his letter of May 2015 contained definitive statements as to Mr Lee’s incapacity to work, it did not provide a detailed basis for that assessment. However, in his later phone call with the JCA assessor, he made a number of concessions concerning Mr Lee’s ability to travel independently, be it overseas or on local public transport. He confirmed that Mr Lee could undertake, without assistance, many of the activities of daily life and could go shopping and attend appointments without assistance. Further, Dr Fisher’s May letter is to be compared with what he told the then SSAT some four weeks later, that Mr Lee “should be capable of three or four hours light work per week”.[29] His letter also contrasts with what he told the JCA assessor in December 2015, that Mr Lee’s depression and anxiety “comes and goes” and that Mr Lee’s work impairment is a result only of his spinal condition.[30]

    [29] Exhibit 1, T Documents, T 2, page 7, SSAT’s decision and reasons for decision dated 24 June 2015, paragraph [11].

    [30] Exhibit 2(c), JCA report, undated, page 11/12.

31. I am also conscious of the fact that the most recent JCA assessment was conducted by a qualified occupational therapist who has the requisite skill and expertise to make such assessments as to work capacity and job suitability.

32. For those reasons, I am inclined to favour the assessment of the JCA assessors over the opinion of Dr Fisher on the issue of whether Mr Lee’s severe impairment would prevent him from performing any work for the following five years.

33. Mr Lee also relied on a recent progress report prepared for Dr Fisher by his psychologist, Pierre Bonnett.[31] That understandably focussed on Mr Lee’s mental health. However, Dr Fisher conceded that condition “comes and goes” and did not impact on Mr Lee’s work capacity. In any event, the relevant consideration under s 1218AAA(1)(d) is the effect on work capacity by the “severe impairment”, namely the back degeneration. For that reason also, I do not think that Mr Bonnett’s evidence takes the matter very far.

    [31] Exhibit 3(b), progress notes of Pierre Bonnett dated 5 January 2016.

1. In light of the above matters, I am not satisfied that the impairment from Mr Lee’s back degeneration would prevent him from performing any work independently of a program of support within five years. It therefore follows that he did not satisfy the requirement in s 1218AAA(1)(d) of the Act in order to qualify as a “severely impaired disability support pensioner”.

2. At the hearing, Mr Lee told me that he wants to work, but is not sure of what “light duties” he could perform, and whether such jobs are available. He went on to explain that he suffers from insomnia, which he described as the most important issue for him. Apart from a brief passing reference in Mr Bonnett’s most recent progress note,[32] there was no medical evidence before me relating to that condition; certainly, there was insufficient evidence to suggest that condition would have a significant impact on Mr Lee’s capacity to perform any work over the next five years. Of course, it remains open to Mr Lee to make a fresh claim for unlimited portability on that basis, if he chooses.

   [32] Ibid.

3. Quite separately from the determination of the issues in the present proceeding, the Secretary’s representative kindly offered to contact the appropriate officers within the Department who might be able to assist Mr Lee as regards identifying potential “light duties” jobs that he may be able to perform. That is consistent with the most recent JCA report, which noted that although a referral to DES-Employment Support Service was recommended, Mr Lee had not provided his consent for the actioning of that referral pending this review.[33] There would appear to be no reason why that initiative could not now proceed, if it has not already commenced.

   [33] Exhibit 2(c), JCA report ,undated, page 11/12

   CONCLUSION

4. For the reasons outlined above, I do not consider that Mr Lee satisfied the requirements of being a severely impaired disability pensioner, in that his severe impairment would not prevent him from performing any work independently of a program of support within the next five years. As a result, he did not qualify for unlimited portability of his DSP at the relevant time.

5. Accordingly, the decision under review is affirmed.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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Associate

Dated   8 February 2016

Date of hearing	22 January 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services