Lindsay Ryan and Secretary, Department of Social Services
[2013] AATA 863
[2013] AATA 863
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1206
Re
Lindsay Ryan
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Amanda Frazer, Member
Date 2 December 2013 Place Perth Decision Summary
The decision under review is affirmed.
...(Sgd) Dr A Frazer.........................
Dr Amanda Frazer, Member
CATCHWORDS
Social Security – disability support pension – qualification requirements – applicant has impairments – impairment rating less than 20 points – applicant not qualified for disability support pension – decision under review
LEGISLATION
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Amanda Frazer, Member
2 December 2013
INTRODUCTION
Mr Lindsay Ryan, (“the applicant”) applied for Disability Support Pension (DSP) on 30 May 2012 in respect of a stroke condition.
On 7 June 2012, Centrelink decided to reject the applicant’s claim for DSP, as the applicant’s impairments did not attract a rating of at least 20 points under the Impairment Tables.
On 9 November 2012, a Centrelink Authorised Review Officer (ARO) affirmed the original decision.
On 25 February 2013, the SSAT affirmed the decision to reject the applicant’s claim for DSP.
The applicant applied for a review to this Tribunal on 15 March 2013.
THE LEGISLATIVE FRAMEWORK
The conditions which must be satisfied before a person is qualified for DSP are set out in s 94 of the Social Security Act 1991 (Act). The section relevantly provides:
(1) A person is qualified for disability support pension if:
(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;
…
The impairment tables referred to in s 94(1)(b) are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (IT Determination).
Table 1 of the IT Determination provides in part:
Points
Descriptors
0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
Table 3 of the IT Determination provides in part:
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
THE EVIDENCE
The evidence before the Tribunal comprised:
(a)The T Documents lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);‘
Oral evidence from the applicant by telephone
The applicant’s evidence
The applicant said he lives in a flat in Carnarvon. He can look after himself at home however Silver Chain will visit in the morning for his medication. He usually gets around Carnarvon by walking.
The applicant said he had a stroke in May 2012 and was in Carnarvon Hospital. He said he doesn’t think he can now work as he used to which involved heavy manual labour. The applicant said however that his eating and drinking is normal and he thinks the nerve function to his face is getting better. He does not think his speech is affected.
The applicant said he also has a heart problem however there is no surgery to replace the valve planned.
The applicant said he has also had a problem with his right leg since childhood. He is able though to walk wherever he needs to go.
Medical evidence
The Tribunal has considered several medical reports in making its decision.
Report by Dr Naidu, dated 22 August 2012.
Dr Naidu states the applicant has had a right cerebral artery cerebrovascular accident with an associated left upper motor neurone 7th nerve palsy. Dr Naidu recommends medication and weight reduction, a healthy diet, increased exercise and cessation of alcohol and cigarettes. The applicant has wasting of the right leg due to childhood polio. The applicant walks everywhere however he is unable to run.
Report by Dr Lee, dated 13 June 2012.
Dr Lee confirms the applicant suffers from moderate to severe mitral regurgitation from past rheumatic fever. Dr Lee notes it is not necessary at this stage to consider a valve replacement.
Report by Dr Brice, dated 19 July 2012.
Dr Brice notes the applicant had no chest pain or shortness of breath and had a good exercise tolerance. Dr Brice found that the applicant was in stable atrial fibrillation. The applicant would only need to undergo mitral valve replacement if his symptoms deteriorated.
ANALYSIS
It is common ground that the applicant has had a past stroke, has mitral valve regurgitation and childhood polio. These are impairments within the meaning of para (a) of s94(1) of the Act.
The Tribunal finds that the applicant’s heart condition attracts an impairment rating of 5 points under Table 1.
The Tribunal finds that the applicant’s lower limb muscle wasting following childhood polio causes an impairment rating of 5 points under Table 3.
The Tribunal finds that the applicant has an Impairment Rating of 10 points.
The applicant therefore does not satisfy s 94(1)(b) of the Act.
Decision
The decision under review is affirmed.
I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of ..(Sgd) T Freeman...................
Associate
Dated 2 December 2013
Date(s) of hearing 11 October 2013 Applicant By telephone Representative for the Respondent Ms L Gallagher Solicitors for the Respondent Sparke Helmore
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