Leon Clements and Secretary, Department of Social Services
[2014] AATA 243
[2014] AATA 243
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6491
Re
Leon Clements
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 28 April 2014 Place Brisbane The Tribunal affirms the decision under review.
……………………Sgd………………………….
Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether continuing inability to work – Applicant has not completed a Program of Support – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 13, 14, 42, Sch 2 cls 3, 4
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
Dr P McDermott RFD, Senior Member
28 April 2014
INTRODUCTION
I have to determine whether Mr Leon Clements (“the applicant”) is entitled to disability support pension (“DSP”).
PRIOR DECISIONS
On 4 July 2013 the applicant lodged a claim for DSP. On 19 August 2013 this claim was rejected. On 15 October 2013 an authorised review officer affirmed that decision. On 21 November 2013 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision to reject the claim for DSP. On 6 December 2013 the applicant lodged an application to this Tribunal for review of the decision to reject his claim for DSP.
RELEVANT LEGISLATION
The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
Section 94 of the Act provides that in order to be qualified to receive DSP the applicant must have:
oa physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act);
oan impairment rating of at least 20 points (s 94(1)(b) of the Act); and
oa continuing inability to work (s 94(1)(c) of the Act).
The Administration Act provides that the start day for a claimant who qualifies to receive DSP is the date on which he contacts the Department regarding the payment (ss 13, 41, 42, Sch 2 cl 3 of the Administration Act) if he is then qualified to receive DSP. If the applicant was not qualified to receive DSP on that date he will nevertheless be entitled to receive DSP if he becomes qualified within thirteen weeks of lodging a claim. In that event, the start-day is the day that he becomes qualified to receive the social security benefit (Sch 2 cl 4(1) of the Administration Act).
There are a number of Ministerial Determinations which have the force of law.[1] The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Disability Support Pension Determination”) came into force on 1 January 2012. The Disability Support Pension Determination contains the Impairment Tables which are function based and are intended to determine the level of functional impact of impairments (s 5 of the Disability Support Pension Determination). The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the Active Participation Determination”) came into force on 3 September 2011. Section 5 of the Active Participation Determination sets out the requirements for active participation. Both of these Determinations are in evidence.
[1] See ss 27, 94(3C) and 94(3E) of the Act.
ASSESSMENT PERIOD
On 4 July 2013 the applicant lodged his claim for DSP. I am required to determine whether the applicant became qualified at any time within the thirteen week period from that date to 3 October 2013 (“the relevant period”).
ISSUES FOR DETERMINATION
I have to determine:
·whether the applicant, as at the date of his claim (or within 13 weeks of that date), had a physical, intellectual or psychiatric impairment;
·whether the applicant had an impairment rating of at least 20 points or more under the Impairment Tables; and
·whether the applicant had a continuing inability to work
WHETHER THE APPLICANT HAS AN IMPAIRMENT
I have to determine whether the applicant had within the relevant period a physical, intellectual or psychiatric impairment as required by s 94(1)(a) of the Act. There is evidence before me that the applicant has a spinal condition, an upper limb condition, obesity and sleep apnoea. The Secretary has quite properly conceded that the applicant suffers from these impairments. I therefore find that the applicant satisfies s 94(1)(a) of the Act.
ASSESSMENT OF IMPAIRMENTS
I am next required to consider whether within the relevant period the applicant’s impairments can be assigned an impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act. I will discuss below the impairments of the applicant.
Upper limb condition
In 2008 the applicant injured the rotator cuff of his right shoulder in a motor vehicle accident. The applicant has undertaken medical procedures in the form of open subacromial decompression as well as rotator cuff surgery. There is some variance in the treating doctor’s reports as to the severity of this condition. The treating doctor’s medical report, dated 2 May 2012, by Dr Chatroodi does not mention the shoulder condition. However, a later treating doctor’s report, dated 4 July 2013 by Dr Farragher, reported that the right shoulder condition was then the condition with the most impact. In the later report it is stated that the restriction of movement is caused by pain. There is, however, no indication that the applicant has undertaken any pain management regime.
There is no issue that the upper limb condition was fully diagnosed, treated and stabilised during the relevant period. I can therefore assign a rating to the condition. I am required to assess the evidence before me in making a finding and I am not bound by any concession of any party. Having regard to the observations of Brennan J in Bushell v Repatriation Commission,[2] my duty in arriving at what is often referred to as the "correct or preferable decision" is to base that decision on evidence that is before me. I assign a rating of 5 points for the upper limb condition. The applicant informed the SSAT that he can pick up a 2 litre carton of milk, and he has no problem handling coins. He can reach for objects with his left arm and can hang out washing using his left arm. I appreciate that he has a reduced ability to do up buttons and a reduced reaching capacity with his right arm. I would not assign a rating of 10 points for the condition under Table 2 of the Impairment Tables. The applicant advised that he can perform some of the tasks outlined in the descriptors for 10 points under Table 2. He can use a pen or pencil without difficulty and can pick up a 2 litre carton of milk. The SSAT observed the applicant unscrewing the cap of his water bottle.
[2] (1992) 175 CLR 408 at 425.
The evidence before me does not warrant the upper limb condition being assigned a rating of 20 points under Table 2 of the Impairment Tables. I comment that the applicant in cross-examination asserted that he has limited movement or coordination in both arms or both hands. However, there is no medical evidence which corroborates this assertion. The introduction to Table 2 precludes the reliance on self-reporting of symptoms by an applicant and states that there must be corroborating evidence of a person’s impairment. The medical report of Dr Farragher, dated 4 July 2013, reports that the restrictions of the applicant’s arm are caused by “right shoulder pain and limitation of movement due to persistent pain”. There is no suggestion in this report that the applicant has any restriction in the movement of his left hand. The applicant informed the SSAT that he is able to hang washing out using his left arm however he has a reduced reaching capacity with his right arm. I have earlier mentioned that the applicant informed the SSAT that was able to use a pen or pencil without difficulty.
The spinal condition
There is no issue that the spinal condition of the applicant was fully diagnosed, treated and stabilised during the relevant period. This condition can therefore be assigned a rating. The SSAT assigned a rating of 5 points under Table 4 of the Impairment Tables for the spinal condition. Since then there has been a detailed assessment of the spinal condition by Dr Kanagaratnam. On the basis of this assessment I would assign a rating of 10 points for the condition under Table 4 of the Impairment Tables. The evidence which would support this finding is the report of Dr Kanagaratnam that the Applicant has difficulty in moving his head to look in all directions and is unable to bend forward to pick up a light object placed at knee height. There are inconsistencies between the reports of Dr Kanagaratnam and Dr Ramaloo who reports that the applicant has “trouble picking up objects off the floor or even putting his shoes on”. The applicant informed the SSAT that he is able to bend forward to the knee without problems but experiences difficulties bending to mid-shin. He also informed the SSAT that he can drive for 40 minutes.
There is not any evidence which warrants the spinal condition of the applicant being assigned a rating of 20 points under Table 4 of the Impairment Tables. There is no evidence that the applicant is unable to perform any overhead activities. The applicant informed the SSAT that he is able to use his left arm to hang out washing. I have earlier mentioned that the applicant also informed the SSAT that he can drive for around 40 minutes. Before this Tribunal he modified that statement by stating that he takes 40 minutes to drive from his residence to Ipswich; this trip takes about 40 minutes with the applicant taking breaks.
The obesity and sleep apnoea conditions
There is no evidence that the obesity and sleep apnoea conditions were fully treated and stabilised during the relevant period. I cannot assign a rating to these conditions which have not been subject to any appropriate treatment. Although the applicant has received a referral for the obesity condition, he does not appear to have consulted a health professional about the condition. The applicant confirmed during the hearing that he has not undertaken a sleep study. The respondent confirmed that assistance would be provided to the applicant to ensure that he is able to find treatment for the conditions.
I find that during the relevant period, the impairments of the applicant can be assigned a total of 15 points under the Impairment Tables. The applicant accordingly does not satisfy s 94(1)(b) of the Act.
CONTINUING INABILITY TO WORK
It is not strictly necessary for me to consider whether the applicant has continuing inability to work. However, I will express my views on this issue, as required by s 94(1)(c), as submissions were made on this issue.
The applicant does not have a severe impairment which is of 20 points or more under a single Impairment Table (s 94(3B) of the Act). I also do not consider that he has actively participated in a program of support (s 94(2)(aa) of the Act). The applicant will be regarded as having actively participated in a program of support if he satisfies the requirements in the Active Participation Determination. In particular, ss 5(1) and (2) of the Active Participation Determination provide that a person has actively participated in a program of support if they have undertaken a program of support for at least 18 months within the 36 months prior to the date of claim, have complied with the requirements of the program and provided the Secretary with details of the program of support they have undertaken.
The applicant has provided Centrelink with a copy of an 'Information about participation in a program of support' form completed on 18 September 2013 by Max Employment, a Disability Employment Services Provider. In that report it is stated that the applicant had been unwilling to accept referrals to jobs that were suitable to his disability and that the applicant was not prepared to undertake any activities to gain or remain in employment. The applicant has asserted that the information in the certificate was incorrect because the work that he was offered as a truck driver was unsuitable having regard to his disabilities. He has requested this Tribunal to summons the material from Max Employment which would verify that he was offered unsuitable work. I am prepared to determine this application by accepting the assertion of the applicant. However, there is a difficulty even if this assertion was accepted because the applicant was not actively participating in a program of support for the required period of at least 18 months before his claim. This is because the report records that he started the program on 10 May 2012 and he lodged his claim for DSP on 4 July 2013. On this basis the applicant cannot be regarded as having a continuing inability to work. The applicant has not provided Centrelink with any other evidence of undertaking a program of support.
Because the applicant has not participated in a program of support for the required period of at least 18 months, I have also considered ss 5(3), (4) and (5) of the Active Participation Determination, which provides that a person can participate in a program of support for less than 18 months and still satisfy the requirement to have actively participated in a program of support. These exceptions include:
·The person has completed a program that ran for a shorter period than 18 months;
·The program was terminated early, before the person claimed the pension, because the person was unable, solely because of his or her impairment, to improve his or her work capacity; and
·The person is participating in the program at the time of their claim but is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment, through continued participation.
There is no evidence before me that these exceptions of the Active Participation Determination apply to the applicant. I appreciate that the applicant has tendered a recent medical certificate dated 4 March 2014 which states that he is unable to participate in a program of support.[3] However, there are also no reasons provided in that certificate.
[3] Exhibit B (certificate dated 1 April 2014).
It is also necessary that the applicant’s impairment itself is sufficient to prevent the applicant from doing any work independently of a program of support, within the next 2 years (s 94(2)(a) of the Act). The term “work” is defined in s 94(5) of the Act as being work that exists in Australia that is for at least 15 hours a week on wages at or above the relevant minimum wage. I accept the assessment of Dr Kanagaratnam that the applicant would be unable to work for more than 15 hours per week in the next two years.
I am also required to consider whether the applicant’s impairment itself is sufficient to prevent the applicant from undertaking a training activity within the next two years or, where able to undertake training, such training is unlikely (because of his impairment) to enable him to work independently of a program of support within the next two years (s 94 (2)(b) of the Act). There is no evidence before me upon which I could make a finding that the applicant would be prevented, solely because of his impairments, from improving his capacity to find, gain or remain in employment through participation in a training activity. There is a comprehensive work capacity assessment that assessed the applicant as having a baseline work capacity of 8–14 hours per week which would indicate that the applicant would be capable of undertaking a training activity.
Accordingly, as the applicant does not satisfy the requirements of the Active Participation Determination, he does not satisfy the requirements of s 94(1)(c) of the Act.
DECISION
I affirm the decision under review.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member .............................Sgd........................................
Associate
Dated 28 April 2014
Date of hearing 3 April 2014 Applicant In person Solicitors for the Respondent Nicholas Warren, Department of Human Services
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