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

[2016] AATA 942

Lennon and Secretary, Department of Social Services (Social services second review) [2016] AATA 942 (31 October 2016)

Division	GENERAL DIVISION
File Number	2015/1114
Re	Cassandra Lennon
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member N A Manetta
Date	31 October 2016
Date of written reasons	28 November 2016
Place	Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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

Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY- disability support pension- applicant found not to have 20 points arising from a single impairment table- applicant found not to have met program of support requirements – decision affirmed

LEGISLATION

Social Security Act 1991, s 94

CASES

Drake v The Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

SECONDARY MATERIALS

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

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member N A Manetta

28 November 2016

1. After delivery of my oral decision, I received a request for written reasons which I now publish.

2. This is an application by Ms Cassandra Lennon for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 30 January 2015.  By its decision, the SSAT affirmed decisions taken earlier in Centrelink that she was not eligible to receive a disability support pension (DSP) under the Social Security Act 1991 (the Act).  At the hearing before me, Ms Lennon represented herself and was assisted by her partner, Mr Street; Mr Burgess appeared for the respondent.

3. I note my task is to decide the matter afresh on the evidence before me and reach the preferable decision on the basis of that evidence, rather than review the SSAT’s decision for error.[1]

   [1] Drake v. The Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68.

4. In my opinion, Ms Lennon was not qualified for a DSP at the time she lodged a claim in November 2013 or in the 13 weeks following lodgement.  Accordingly, I must affirm the decision under review.  In so doing, I wish expressly to note how difficult the circumstances of Ms Lennon’s life have been.  She has undoubtedly suffered significant physical and psychological injuries in the course of her life.  As significant as the difficulties have been, I am unable to award her a pension because she has not met the stringent requirements for this benefit under the Act.

   BACKGROUND FACTS

5. I shall set out the salient background facts and then my reasons for affirming the decision under review.

6. Ms Lennon gave oral evidence and I accept that evidence.  Ms Lennon, who is 39 years of age, was born in rural South Australia.  She spent all of her early years in Maitland and undertook her early schooling there.  In 1990, at the age of 13, Ms Lennon suffered a haemorrhagic stroke whilst at school.  The incident was so severe that it left her comatose for two weeks, and she had to be flown to Adelaide for treatment where she convalesced in the Women’s and Children’s Hospital for a full month.  She was eventually discharged and returned to Maitland, but her recovery was hampered because of a lack of suitable therapeutic services in the country.

7. She returned to school but, although her teachers made allowances, her scholastic performance declined.  She had been an A-grade student in year 7, but, after her stroke, her marks progressively worsened, and she fell behind everyone else.

8. She finds walking particularly difficult.  For example, Ms Lennon gave evidence that when she walks her daughter to school, a ten-minute journey takes her twice as long.  She is even slower on the return leg and must periodically rest.  Generally speaking, she must, she says, double or triple the time others might allot to a task.  It will take all day to clean the bathroom, for example.

9. I return to her schooling.  In the mid-nineties, Ms Lennon entered Pembroke College in Adelaide.  Her evidence to me was that her parents, particularly her father, harboured great hopes for her career and future development.  In 1995, when she was 17 or 18 years of age, she left on a Rotary Exchange Program for Brazil.  Whilst in Brazil, Ms Lennon was subjected to serious sexual assaults.  She gave evidence to me that on her return to Australia, her father did not want those assaults spoken about and, indeed, compelled her to speak to a Rotary Exchange gathering about the value of the opportunities she had been given.  One can only imagine how immensely difficult and harmful the experiences in Brazil were, coupled with the inappropriate family response on her return to Australia.

10. On her return, Ms Lennon completed her Year 12 studies at Eynesbury College in 1996.  In 1997, she enrolled in a Bachelor of Early Childhood Education which she completed in 2003.

11. I now summarise Ms Lennon’s employment history.  In Term 1 of 2003, she worked at Rose Park Primary School in Adelaide for three hours a day on weekdays.  She then secured a full-time position as a teacher in Port Pirie.  She was alone at the time and was able to cope although the position was very taxing.  She was a casual relief teacher in Katherine in Term 4 of 2003 and thereafter continued to act as a relief teacher.  She fell pregnant and gave birth to a daughter in 2005.  In 2008, she was a volunteer childcare coordinator at a crèche.  From 2008 to mid-2010 she was busy looking after her daughter and received a single parent’s pension.  She believes she was referred to Workskill, a job services provider, in February 2012.

12. Workskill updated Ms Lennon’s curriculum vitae and assisted her in obtaining an interview with “Treetops”, a childcare centre.  She was immediately successful.  The position she won was full-time and required nine-hour days.  In the event, she felt forced to resign as she took too many days off and could not walk effectively.  The manager would not accept her as a part-time employee.

13. In June 2014 she started with Sureway, another job services provider.  Earlier, in November 2013, she had lodged her claim for a disability support pension.

    LEGAL REQUIREMENTS

14. The requirements for a DSP that are relevant to Ms Lennon’s case may be summarised as follows.  First, in respect of eligible conditions (namely, those that are fully diagnosed, treated and stabilised) she must have impairments totalling 20 points at least under the Impairment Tables.  Secondly, unless Ms Lennon has accrued 20 points from a single Impairment Table, she must have participated in a “program of support” in the three years preceding her application.  Her participation in a program of support had to be of 18 months’ duration at least unless the program was shorter than 18 months.  Thirdly, Ms Lennon must be unable to work 15 hours a week.  The test here refers to capacity, not availability of work.

15. I shall turn first to consider Ms Lennon’s participation in a program of support.  Ms Lennon applied for the DSP in November 2013, and her participation in a program of support must have occurred in the three years preceding that date and not after it.

16. I do not believe Ms Lennon has participated in a program of support that meets the statutory criteria.  A qualifying program of support is, generally speaking, a program run by a recognised provider.  The program must be tailored to the particular needs of the disabled person to assist him or her to find work.  I note Ms Lennon has participated in the “Doorways Program” at the Salvation Army and had been doing so for some 3½ years as of January 2014.

17. The program is described in the “T” documents at page 166 as “about supporting clients through their lives at the time and working through issues, learning life skills with the intention of self-improvement”.  I do not think this program qualifies for the purposes of the Act as a program of support.  I have no evidence before me that the Salvation Army is a designated provider, but, in any event, there is no evidence that the Doorways Program involved a specially tailored program designed to secure Ms Lennon employment in light of her disabilities.  Undoubtedly valuable though it is, the program really involves moral support and counselling for those experiencing severe difficulties in their lives.  It assists them to address the issues that are of particular concern to them, but is not directed specifically towards employment opportunities.

18. I do not believe Ms Lennon’s very short engagement with Workskill in 2012 satisfies the program of support requirements.  The program was of a very limited duration.  It terminated because Ms Lennon secured a job at “Treetops”.  It does not in my opinion satisfy the prescribed requirements.

19. I accept Ms Lennon’s evidence that she has faithfully complied with all Centrelink’s requirements as far as she understood them to be.  I accept that there was some confusion over whether she was, or was not, required to attend a program run by Jobs Statewide apparently fixed to commence in January 2013.  I am prepared to accept that there is no fault to be ascribed to Ms Lennon in her failure to participate in that program; but the fact remains that there was no participation in the Jobs Statewide program.  I also note that it would only have lasted 10 months before November 2013 in any event had Ms Lennon participated actively in it.

20. Given this conclusion, Ms Lennon must have impairments totalling 20 points from a single table arising from eligible conditions if she is to receive a DSP.  There are three conditions I shall assume for the moment are eligible to be considered: first, Ms Lennon’s stroke and the ongoing consequences of it; secondly, chronic depression arising from her ongoing difficulties, both physical and psychological; and, thirdly, irritable bowel syndrome.

21. The irritable bowel syndrome is, on the evidence before me, well under control and does not give rise to a rating of 20 points.  The stroke and its consequences have led, physically, to impairments in upper-limb and lower-limb functioning.  Each of these has a separate table.  I do not find that 20 points can be awarded in respect of upper limb function under Table 2.  Twenty points can only be awarded under Table 2 in the following circumstances:

Points

Descriptors

20

There is a severe functional impact on activities using hands or arms.

(1)     Most of the following apply to the person:

(a)     the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

(b)     the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

(c)     the person has difficulty using a computer keyboard despite appropriate adaptations;

(d)     the person has severe difficulty using a pen or pencil; 

(e)     the person has severe difficulty turning the pages of a book without assistance. 

I do not find on the evidence that any of these paragraphs is satisfied.

1. I cannot award 20 points in respect of lower limb function under Tables 3.  The criteria are as follows:-

Points

Descriptors

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 incudes 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.

I do not find paragraph (1)(a) or (b) is satisfied.

1. So far as Ms Lennon’s depression is concerned, 20 points can only be awarded if the following criteria under Table 5 are met:

Points

Descriptors

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.

In my opinion, these criteria are not satisfied.  The very brief report in this respect before the Tribunal (Exhibit A2) does not support a rating of 20 points.

1. This conclusion makes it unnecessary for me to decide whether Ms Lennon’s depression has been fully diagnosed, treated and stabilised, and therefore eligible to be considered.  It also means I need not assign points to Ms Lennon’s various impairments as she cannot be awarded a pension even if she has an aggregate total of 20 points.

2. I would note, however, that I do not believe Ms Lennon’s depression was fully diagnosed, treated, and stabilised as at November 2013 or within 13 weeks of that date.  Ms Lennon has suffered the most severe life circumstances including the severe physical trauma of her stroke and the enormous impact of the events that befell her in Brazil.  She is now completely estranged from her parents, who disapprove of her relationship with her present partner.  She must now deal with his injuries following an accident when he was hit by a runaway trailer.  All these events have impacted Ms Lennon’s mental health considerably, but there is no evidence before me of engagement on a continuing basis with a psychologist or psychiatrist in the period leading up to November 2013 when she lodged her pension application.  In the circumstances, I do not believe her depression was fully diagnosed, stabilised, and treated as at that date (or within 13 weeks thereafter).  If that conclusion is correct, Ms Lennon would be eligible to receive no points at all in respect of her depression.

3. In all the circumstances, it is not necessary for me to consider Ms Lennon’s capacity for work and in particular whether she is capable of working 15 hours per week.

4. I wish to say expressly that if there were some discretionary basis on which I could award Ms Lennon a DSP based on the circumstances she has very bravely endured so far in her life, I would do so.  I have no such discretion, however.  She gave her evidence honestly and appropriately to the Tribunal.  I commend her for that.  There are occasions when one feels compelled as a member of this Tribunal to acknowledge the respect and admiration one feels for people who face adversity with perseverance and honesty.  This is one such occasion.

5. Given the very stringent legal requirements, however, I must find Ms Lennon does not qualify for a DSP.

   FORMAL ORDER

6. The order of the Tribunal will be to affirm the decision under review.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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Administrative Assistant

Dated 28 November 2016

Date(s) of hearing	8 July 2016 and 31 October 2016
Applicant	In person
Advocate for the Respondent	Mr A Burgess
Solicitors for the Respondent	Sparke Helmore