Linda Hill and Secretary, Department of Social Services
[2013] AATA 816
[2013] AATA 816
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5866
Re
Linda Hill
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 18 November 2013 Place Brisbane (heard in Hervey Bay) The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits, and allowances – Disability support pension – Number of impairment points – Impairments properly diagnosed treated and stabilised during assessment period – Participation in Programs of Support – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
REASONS FOR DECISION
Senior Member Bernard J McCabe
The applicant applied for a Disability Support Pension (DSP). She needs to satisfy a number of criteria in order to be eligible, including the medical criteria in s 94 of the Social Security Act 1991 (the Act).
The first requirement is that she must have an impairment. Ms Hill suffers from at least two – and perhaps three – conditions: Sjogren’s syndrome, which affects her eyes but also gives her a rash and has other effects on her body; depression and anxiety, which has recently (i.e. after the 13 week assessment period) been formally diagnosed with a date of onset around 2008; and PTSD, albeit that this diagnosis appears to be tentative.
The second requirement is an award of at least 20 points on the Impairment Tables. The job capacity assessor assigned a total of ten points (5 points under the table relating to eyes and 5 points under the bodily disability table). That is not enough, but I have some concerns about the Job Capacity Assessment (JCA) report. The assessor did not accurately record the diagnosis, and there must be some doubt whether she took into account all of the challenges posed by the condition. I note she did not refer to some of the complaints (e.g. the effect of the condition on the applicant’s glands) and it was suggested the applicant could work if she was not outside or in direct sunlight. That appears to understate the extent of the problem: the applicant clearly has difficulty coping with bright lights and air-conditioning. I also note the general practitioner has given categorical advice about the applicant’s inability to work. I considered remitting the matter to the respondent so that a further JCA could be completed after contact with the general practitioner. It is certainly possible that the applicant is entitled to receive a higher impairment rating, and may as a consequence have at least 20 points over the two tables. I shall return to this issue.
What of the psychiatric conditions? I will say at once that the diagnosis of PTSD appears tentative, and there is no information about how it is (or was) treated or the prognosis. It could not be said to be “fully diagnosed, treated and stabilised” during the assessment period which is a precondition for allocating points under the Impairment Tables. It follows that PTSD – if that is what it is – cannot be taken into account for the purposes of the exercise. But what of the applicant’s depression/anxiety condition? Mr Guthrie, for the Secretary, said it was inappropriate to take this condition into account because the diagnosis was not available (although it looks as if it could have been made, given the date of onset was 2008) during the assessment period. He argued a diagnosis that was offered after the period of assessment but which purported to explain the condition during the period should not to be accepted. I do not ultimately need to express a view on that question because the condition was not treated and stabilised during the period under review. It follows that even on the most favourable view of the evidence about the psychiatric condition, the condition does not attract an impairment rating.
I will assume for now a re-think of the JCA report would attract more than 10 points on the Impairment Tables. Let us assume the applicant is given a total of 20 points under the eye and bodily disability Impairment Tables. She must then satisfy the third limb of s 94 which says the applicant must experience a continuing inability to work during the assessment period. There are several components to that requirement. The applicant must not be able to work for a minimum number of hours each week, and she must have undertaken a Program of Support lasting 18 months in the three years before the assessment period.
I will assume for present purposes that a re-worked JCA report concluded the applicant was unable to work the minimum number of hours. There is still the requirement that the applicant demonstrate she participated in a Program of Support of the required duration. That requirement will not apply if the applicant suffers from a severe impairment, which is a rating of 20 or more points awarded under one Impairment Table. While I have questioned aspects of the JCA report, the shortcomings I identified are not so great that I would be entitled to expect or even suspect the applicant would get 20 points under a single table during the assessment period (even if it is easy enough to imagine her receiving 20 or more points spread across several tables – and even if her position is deteriorating to the point where she may attract 20 points under the one table if she were examined today). That means the Program of Support requirement remains, and must be satisfied even if every other criterion is met.
There is evidence suggesting Ms Hill undertook some activities as part of a Program of Support in the period before and after the rejection decision and the assessment period. Unfortunately, the details of what was done, how long it had been going on or the circumstances in which Ms Hill came to conclude her involvement in the program was not clear at the hearing. Attempts were made during a brief adjournment to contact the service provider, but nothing came of the inquiries. In those circumstances, I decided to adjourn the hearing so further inquiries could be made. It was agreed the hearing would resume by telephone after that information was obtained.
The hearing resumed on 4 October 2013. Mr Burgess represented the Secretary in place of Mr Guthrie. Both parties appeared by telephone. Mr Burgess confirmed he had been in contact with the service provider who had provided the Program of Support to Ms Hill. He said a careful analysis of the dates suggested Ms Hill had not undertaken the program for a full 18 months over the three years before the assessment period. In his written submissions, he noted there were extended periods during which the applicant was exempted from the Program of Support – which means the applicant was not actively participating in the program. It seemed she may have actively participated for around 8 months during the relevant period, but certainly less than 18 months. That is not enough to satisfy the requirement in the legislation.
CONCLUSION
Ms Hill is experiencing serious and debilitating health problems. She cannot work. She is only eligible to receive the DSP if she met a number of criteria during the assessment period. Those criteria have been tightened in the last few years. Her biggest obstacle to succeeding in this claim is the fact she had not undertaken a Program of Support of sufficient duration in the three years before the assessment period began. There are also question marks over the precise number of points that should be awarded to her under the Impairment Tables, although I suspect a more rigorous assessment would have awarded her more points in the relevant period once the full implications of her various conditions were understood.
This process requires that I look backward and make an assessment of what happened during the assessment period, and (at least in relation to the Program of Support) what happened before. A fresh application for DSP may well have a different outcome given Ms Hill said her condition has deteriorated. But that application is not before me. I must deal with current application which relates to the earlier period. Given the rules, it cannot succeed. The decision under review must therefore be affirmed.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ...................[Sgd]................................................
Associate
Dated 18 November 2013
Dates of hearing 8 August and 4 October 2013 Date final submissions received 18 September 2013 Applicant In person Solicitors for the Respondent Department of Human Services
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