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

[2017] AATA 1272

Logue and Secretary, Department of Social Services (Social services second review) [2017] AATA 1272 (11 August 2017)

Division:GENERAL DIVISION

File Number:           2017/0054

Re:Glenn Logue

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms N Isenberg, Senior Member

Date:11 August 2017

Place:Sydney

The decision under review is affirmed.

..................................[sgd]......................................

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – multiple impairments – whether applicant’s medical conditions rated at 20 points or more under Impairment Tables – whether applicant had a continuing inability to work – Table 1 Functions requiring Physical Exertion and Stamina – Table 2 Upper Limb Function – Table 3 Lower Limb Function – Table 4 Spinal Function – Table 7 Brain Function – Table 14 Functions of the Skin – decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

CASES

Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 507

Crossland and Secretary, Department of Family and Community Services (2004) AATA 864
Freeman v Department of Social Security (1988) 15 ALD 671
Kumar v Secretary, Department of Social Services [2017] FCA 158
O'Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277
Redmond and Secretary, Department of Employment and Workplace Relations [2007] AATA 1066
Re Malcolm and Secretary, Department of Social Services [2016] AATA 440 
Re Mongan and Secretary, Department of Social Services [2016] AATA 344

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Ms N Isenberg, Senior Member

11 August 2017

BACKGROUND

1. The Applicant, Glenn Logue, commenced proceedings in this Tribunal for a review of a decision to refuse his application for the Disability Support Pension (DSP).  That decision had been affirmed on internal review, and by Administrative Appeal Tribunal, Social Services and Child Support Division (AAT1).  

   ISSUES

2. The issue to be decided is whether the Applicant was qualified for DSP at the date of his claim, namely 11 March 2016, or within 13 weeks thereafter. This requires consideration of whether the requirements set out in section 94 of the Social Security Act 1991 (Cth) (the Act) were met during this period, in particular, whether the Applicant had:

   ·     a physical, intellectual or psychiatric condition(s); and

   ·     condition(s) that were fully diagnosed, treated and stabilised and attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011; and

   ·     a continuing inability to work.

   CONSIDERATION

3. The first question is whether Mr Logue had a physical, intellectual or psychiatric condition: section 94(1)(a). The Respondent accepted that Mr Logue satisfied that criterion during the relevant period, he having suffered a right middle cerebral artery stroke (stroke) on 9 February 2016.  The Applicant also suffers hypertension and has had skin cancers removed.

4. Before an allocation of impairment points for his conditions can occur, I must be satisfied that each impairment is fully diagnosed, fully treated, and fully stabilised; otherwise no impairment points can be assigned to the condition and it can be regarded as a permanent condition.  There was clear evidence that his hypertension, although labile, is permanent and his skin cancers are ongoing and I accept these were permanent conditions at the relevant date.  While Centrelink accepted that the Applicant’s stroke was fully diagnosed during the relevant period, it asserted that it was not fully treated and stabilised at that time. 

5. The Applicant suffered a stroke at home on 9 February 2016 and was transported by ambulance to Liverpool Hospital.  After about a week, some of which was in intensive care, he was admitted to Braeside Hospital for rehabilitation where he remained for about a month, learning how to cope with his condition and how to undertake basic functions such as learning to walk.  The Applicant made a claim for DSP on 11 March 2016, on the advice of a social worker at the hospital.  

6. Centrelink contended that at the time of claim, the Applicant was still undertaking rehabilitation because the rehabilitation specialist, Dr Xu, recommended that rehabilitation continue for a further six months.  In April 2016, the Applicant told a Job Capacity Assessment (JCA) assessor that his condition had improved after treatment in China which had assisted his fine motor skills, although the JCA assessor recorded that, at that time, Mr Logue was having difficulties with most tasks requiring fine motor skills.  He was found to have had no sensation in his left hand and forearm, and reduced left upper limb dexterity, control and co-ordination.  He was considered to be able to perform self-care activities, albeit with difficulties.  He was said to be able to walk “long distances” although at a slow pace. 

7. On 30 August 2016, Dr Griffiths, the Applicant’s treating neurologist, noted that the Applicant showed significant improvement since the date of the stroke.  Centrelink therefore contended that during the relevant period, it was too early to conclude that further functional improvement was unlikely to result, and therefore the condition should not be regarded as having been fully treated and fully stabilised at that time.

8. The Applicant’s evidence was that, following his in-patient rehabilitation, there had been no improvement in his condition and that he had learnt to manage his condition.  By the date of Dr Griffith’s report of 30 August 2016, he was reported to continue to experience numbness of the left jaw, hand, wrist and left knee.  He could write with a special pen but was slow.  Dr Griffith said he could use a computer, but the Applicant said he had purchased voice recognition software because he was unable to manage a keyboard; he had no feeling in his left hand and consequently had no control over the keys when pressed.  I consider that the evidence of Dr Griffith is consistent with the Applicant’s evidence that his condition did not further improve beyond the time of his rehabilitation.  Any progress was because the Applicant learned to manage his condition, rather than improvement in the condition per se. 

9. I therefore consider that all of the Applicant’s conditions referred to above were permanent, at least by the end of the relevant period.     

10. The next question is whether Mr Logue is able to be allocated at least 20 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination). 

    Upper Limb Function

11. Centrelink accepted that the Applicant has reduced sensation on the left side of his body impacting on his upper limb function.  The Respondent submitted that it is appropriate to assign the Applicant’s upper limb functional impairment 5 points under Table 2 of the Impairment Tables.

12. Mr Logue, who is left-handed, gave evidence that, as a consequence of the stroke, he has weakness of his left arm and has lost feeling in his left hand.  He told AAT1 how he had cut his left hand but did not feel it.  He has reduced strength in his left hand and is only able to lift light items in his left hand after manoeuvring them into place. 

13. Mr Logue gave evidence of difficulty toileting and that he has trouble reaching his head to shave it.  Because his jaw is numb, he has cut himself when shaving.  He is able to dress himself but is unable to do up buttons and has difficulties with zippers.  He has pull-on pants and utilises Velcro.  He wears slip-on shoes.  Mr Logue‘s evidence was that he was able to cook and care for himself albeit with some difficulty and at a much slower pace due to limitations of his left side impairment.  He had trouble using a knife and fork for eating, and is unable to manage a sandwich because the filling falls out.  It is difficult for him to unscrew the cap of a bottle.  He is able to take a carton of milk out of the refrigerator, albeit using his right hand.  Mr Logue has some difficulty with handling very small objects, such as coins, in his left hand.  He has a bag with compartments which he wears across his body to the right side so he can access his wallet, medication and phone.  Otherwise, he is unable to manage those items if required to handle more than one at a time.  By placing them in the same location in the bag he is able, for example, to answer his phone before it rings out.  He has difficulty using an ATM, and has left money behind because he did not register that he had not picked it all up because of the lack of feeling in his hand.  In relation to lifting heavier objects, Mr Logue said he has difficulty carrying objects that require both hands, especially if they are awkwardly shaped, as his left arm is numb and he cannot rely on it to carry objects.  He said he hangs his clothes on a clothes dryer.  He is taken shopping by his landlord or a neighbour but only makes small purchases as he is unable to carry more than a light bag. 

14. Mr Logue gave evidence that he is able to write slowly, with a modified pen.  He is able to use a computer, although he mostly uses voice-recognition software. 

15. Because everything takes him much longer to do, he gets up an hour earlier to prepare.  From his evidence, he gave a firm impression of frustration and humiliation because of his limitations. 

16. Dr Arun Maram, rehabilitation registrar, noted in a report dated 8 March 2016 that Mr Logue had lost dexterity and mobility and fine motor skills which limited his capacity to work.  Dr Fatemeh Sarmast, rehabilitation registrar, reported on 5 August 2016 that at the time of discharge from Braeside, Mr Logue was independent with self-care, activities of daily living and mobility.  He had “residual neurological deficits to the left side of his body, reduced dexterity, control and coordination of his left hand and persistent paraesthesia to the left side of his body.”  On 6 April 2016, Dr Griffith reported that Mr Logue was struggling with numbness and weakness in the left hand that causes him to drop and lose objects.  In his report of 30 August 2016, Dr Griffith confirmed Mr Logue’s reduced left hand grip strength.  He reported that while Mr Logue had significantly improved, he had difficulties with folding and ironing clothes.  The Applicant also provided a letter from Dr Driessen dated 28 February 2017 which corroborates the other medical evidence about the Applicant’s functional impairments. 

17. I consider the medical evidence to be consistent with the Applicant’s account. 

18. The relevant portion of the applicable Table provides as follows:

5

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

(1)      The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)      picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)      handling very small objects (e.g. coins);

(c)      doing up buttons;

(d)      reaching up or out to pick up objects.

10

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

(1)      The person has difficulty with most of the following:

(a)      picking up a 1 litre carton full of liquid;

(b)      picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)      holding and using a pen or pencil;

(d)      doing up buttons or tying shoelaces;

(e)      using a standard computer keyboard;

(f)       unscrewing a lid on a soft-drink bottle.

1. It is clear that the Applicant meets the criteria for at least mild functional impairment.  I consider there is also evidence of a moderate functional impact on activities using hands and arms, in particular, that there was evidence the Applicant would have difficulty picking up a one litre carton full of liquid in his dominant left hand, picking up a light but bulky object requiring the use of two hands, holding and using a regular pen, doing up buttons and tying shoelaces, using a standard computer keyboard other than with using his right hand or without voice-recognition software, or unscrewing a lid on a bottle.

2. I therefore find that the Applicant’s upper arm condition attracts a rating of 10 points under Table 2.

   Lower Limb Function

3. Centrelink accepted that the Applicant has ‘paraesthesia to left ... lower limbs’ and that this included ‘ongoing numbness of the... left knee’.  While the AAT1 assigned 5 points under Table 3, Centrelink contended that the Applicant should be assigned 0 points under Table 3.

4. Mr Logue gave evidence that he had enjoyed walking with a view to losing weight.  Although he was walking eight kilometres a day in August 2016, he has significantly reduced that because, in favouring his left leg, this has created arthritic problems in his right foot.  He can walk three blocks to get to the bus stop.  He said that he has difficulty in negotiating stairs but he can do so at a slow pace one step at a time, providing there is a handrail.  He said that he lost his left shoe twice because he did not feel it come off his foot, and had lost his wallet or his phone because he could not feel it fall out of his left pocket.  He said that when it came to queuing, for example at Centrelink where a huge queue might form, after a few minutes a Centrelink officer invites him to sit down and wait until called.

5. In his Medical Attendant’s Statement, dated 8 March 2016, Dr Maram reported that the Applicant suffered from ‘left body weakness, reduced sensation, and impaired mobility’ and that the Applicant ‘can’t walk for long distance, can’t stand for a long time’.

6. Dr Griffith wrote in his report of 6 April 2016, that, on one occasion, the Applicant went for a walk and ‘didn’t realise he had lost his left shoe from his foot due to the lack of sensation in his left foot’.  At that time the Applicant reportedly had had no falls, but since that time has reported falling a number of times.  He ‘walked unaided with a slight limp’.  

7. On 5 August 2016, Dr Sarmast added that the Applicant remained ‘independent with mobility (without using walking aid) as well as his personal care and activity of daily living.  

8. Dr Griffith, on 30 August 2016, reported the Applicant’s ‘mild left sided hemiparesis with a slight limp and a slightly positive Romberg’s test’ (re balance).

9. Centrelink submitted that the Applicant’s difficulties with stairs are a self-reported symptom that is uncorroborated by the medical evidence.  I reject this contention.  The Applicant’s paraesthesia to left lower limb, which was conceded by Centrelink, is well-documented.  Difficulty with stairs is entirely consistent.  In addition, Centrelink contended, there was no medical evidence that he is unable to stand for more than 10 minutes, and noting that the Applicant does not use a prosthesis or walking stick.  On the other hand, there is the Applicant’s evidence about being invited to sit to avoid enduring the Centrelink queue, and I accept this is consistent with the medical evidence of his paraesthesia to left lower limb. 

10. The relevant portion of the applicable Table provides:

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.

29.I find that an impairment rating of 5 points under Table 3 is appropriate for this impairment as the evidence is that while Mr Logue has significantly improved since his stroke and has adapted well to his lower limb deficiencies, he still has some difficulty negotiating stairs. 

Visuospatial awareness

30.Dr Griffith, in his report of 30 August 2016, wrote that he ‘did not feel it was safe for [the Applicant] to work in jobs requiring significant visuospatial awareness’.  Dr Griffith also wrote in his report of 26 May 2017 about the Applicant’s unsteadiness.  He referred to the Applicant’s visuospatial deficits.  The Applicant also gave evidence of being unsteady on his feet which is consistent with Dr Griffith’s observations.  He said too that he had lost confidence and, despite regaining his licence, no longer felt able to drive as he did previously.  Also, he said he had to concentrate hard on tasks formerly undertaken with ease, such as maintaining his blood pressure spreadsheet, and his personal grooming.  It takes him much longer than previously to undertake many everyday tasks.

31.Dr Griffith’s report of 30 August 2016 that Mr Logue had a slightly positive Romberg’s test, suggests some problems with his balance.  Dr Griffith also referred to “unsteadiness” in his report of 29 May 2017.  Mr Logue gave evidence of unsteadiness on his feet because of loss of sensation.  

32.Dr Griffith also referred to the Applicant having memory issues.  At the hearing, the Applicant repeated some of his evidence, apparently having forgotten that he had already addressed the matters being discussed.  From time to time, he lost track of the conversation, especially as the hearing progressed and he became fatigued and/or distressed.  

33.Dr Griffith also wrote in his report of 29 May 2017 that the Applicant had been unable to keep track of his medication and it was then being dispensed in a Webster (blister) pack. 

34.Table 7 – Brain function provides, relevantly, as follows:

Points

Descriptors

0

There is no functional impact resulting from a neurological or cognitive condition.

(1)      The person has no significant problems with memory, attention, concentration, problem solving, visuo-spatial function, planning, decision making, comprehension, self awareness or behavioural regulation.

5

There is a mild functional impact resulting from a neurological or cognitive condition.

(1)      The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:

(a)    memory;

Example: The person occasionally forgets to complete a regular task or sometimes   misplaces important items.

  (b)    attention and concentration;

Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.

Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.

(c)    problem solving;

Example 1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.

Example 2: The person shows a lack of awareness of problems in some situations.

(d)    planning;

Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).

(e)    decision making;

Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.

(f)     comprehension.

Example: The person has some difficulty in understanding complex instructions involving multiple steps.

10

There is a moderate functional impact resulting from a neurological or cognitive condition.

(1)        The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:

(a)    memory;

Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.

Example 2: The person often misplaces items.

Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.

(b)    attention and concentration;

Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.

Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.

(c)    problem solving;

Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.

(d)    planning;

Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).

(e)    decision making;

Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.

(f)     comprehension;

Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.

(g)    visuo-spatial function;

Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.

(h)    behavioural regulation;

Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).

(j)     self awareness.

Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.

20

There is a severe functional impact resulting from a neurological or cognitive condition.

(1)      The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:

(a)    memory;

Example 1: The person is unable to remember routines, regular tasks and instructions.

Example 2: The person has difficulty recalling events of the past few days.

Example 3: The person gets easily lost in unfamiliar places.

(b)    attention and concentration;

Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes.

Example 2: The person is easily distracted from any task.

(c)    problem solving;

Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice.

(d)    planning;

Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip).

(e)    decision making;

Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.

(f)     comprehension;

Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks.

(g)    visuo-spatial function;

Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects).

(h)    behavioural regulation;

Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.

(j)     self awareness.

Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.

1. It is curious that the descriptors for 0, 10 and 20 impairment points all refer to the effects of visuo-spatial function, whereas the descriptor for 5 impairment points is silent about that functionality.  The descriptors, in my view, should not be regarded as a complete check list.  While the descriptors in the Tables purport to address common activities, they are not exclusive of other functional impairments.  Having said that, even if I were limited to the available descriptors, I consider a rating of 5 points to apply to the Applicant having regard to his mild difficulties with memory issues, and his need for concentrating on mundane tasks. 

   Spinal function

2. The Applicant gave evidence that he has difficulty moving his neck, and manages by swivelling his whole body around.  He does this, including in order to be able to drive.  Dr Griffith noted that the numbness in the Applicant’s upper limbs extended to his jaw and his whole left side.  

3. The relevant portion of Table 4 – Spinal Function provides:

0

There is no functional impact on activities involving spinal function.

(1)      The person can:

(a)      bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)      turn their trunk from side to side; and

(c)      turn their head to look to the sides or upwards.

5

There is a mild functional impact on activities involving spinal function.

(1)      The person has some difficulty in:

(a)      activities over head height (e.g. activities requiring the person to look upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

1. I am satisfied that the Applicant’s impairment with respect to his neck attracts a rating of 5 points.    

   Hypertension

2. Centrelink conceded that the Applicant’s hypertension is fully diagnosed, treated and stabilised but submitted that it causes minimal functional impact. 

3. Mr Logue’s evidence was that he takes medication daily and maintains a spread sheet of his blood pressure readings.  He provided the Tribunal with a record of his blood pressure in the relevant period.  The condition was noted by Dr Sarmast in a letter dated 5 August 2016.  Dr Griffith, in his report of 30 August 2016, recorded that Mr Logue had been undertaking treatment for hypertension and was endeavouring to lose weight.  On 15 August 2016, Dr David Taylor, cardiologist, reported that Mr Logue’s resting blood pressure was 130/80 rising to 190/90 and that an exercise test was stopped because of fatigue. 

4. I find that the condition is fully diagnosed, fully treated and fully stabilised but that it causes minimal functional impact with reference to Table 1 – Functions requiring Physical Exertion and Stamina.  Centrelink contended, and I agree, that the Applicant’s hypertension attracts no points.

   Skin cancer

5. Mr Logue gave evidence he had several basal cell carcinomas excised and he provided a histopathology report to that effect.  He made no contention of any functional impairment associated with his skin condition.  Accordingly I assign no impairment points under Table 14 – Functions of the Skin.

   TOTAL IMPAIRMENT RATING

6. Therefore, I find that that at the date of claim, or within 13 weeks thereafter, the Applicant’s conditions attract a total of 25 points under the Impairment Tables and he thereby satisfies section 94(1)(b) of the Act.

   CONTINUING INABILITY TO WORK

7. Having come to the view that the Applicant meets the requirement of 20 or more impairment points, I turn to consider if he had, for the purposes of section 94(1)(c)(i) of the Act, a continuing inability to work. Centrelink contended that the Applicant did not have a continuing inability to work during the relevant period.

8. Continuing inability to work is defined in section 94(2) of the Act, and relevantly provides:

   (2) A person has a continuing inability to work because of an impairment if [Centrelink or the Tribunal on review] is satisfied that:

   (aa)  in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) … the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

   (a)   in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)    in all cases—either:

   (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years. (Tribunal’s emphasis)

9. Severe impairment is defined in section 94(3B) of the Act as follows:

   (3B) 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. (Emphasis added)

10. As Mr Logue has a combined impairment of 20 or more points, he cannot be said to have a severe impairment.  Consequently, in order to be found to have had a continuing inability to work, he must have actively participated in a program of support within the meaning of section 94(3C). That subsection provides that a person has actively participated in a program of support where they satisfy the requirements of a relevant legislative instrument made by the Minister for the purpose of that section: section 94(3C). That subsection provides that a person has actively participated in a program of support where they satisfy the requirements of a relevant legislative instrument made by the Minister for the purpose of that section: Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination 2014). (See also sections 94(3D) and 94(3E)). Importantly, clause 7 of the POS Determination requires that a person has participated in a program of support for at least 18 months in the 36 months ending immediately before the date of claim.

11. There was limited available evidence about Mr Logue and a program of support. From the evidence, it appeared that he was referred to a service provider on 9 August 2016. This, one might think, is consistent with his having a stroke in February, completed in-patient rehabilitation in March/April, and having been granted some exemptions for medical treatment and overseas travel for therapeutic reasons. However, the operation of the Act is such that, without 18 months participation in a program of support prior to the date of his claim, Mr Logue, while his condition cannot be regarded as ‘severe’ as defined, cannot be eligible for the DSP. As I observed above, the requirements of section 94(2) are cumulative.

12. There are some limited circumstances where a person may be excused from continued participation, but these do not apply to Mr Logue: see O'Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277, Re Malcolm and Secretary, Department of Social Services [2016] AATA 440and Re Mongan and Secretary, Department of Social Services [2016] AATA 344.

13. For completeness, the next issue I considered is whether, as required by section 94(2)(a), Mr Logue’s impairment is of itself sufficient to prevent him from doing any work independently of a program of support during the next two years.

14. At the JCA of April 2016, Mr Logue’s work capacity was temporarily assessed at 0-7 hours per week (until 19 July 2016).  It was expected that his permanent condition would have a significant impact on his endurance, concentration, confidence, ability to cope with stressors and ability to perform physical tasks.  For that reason, a baseline work capacity of 8-14 hours per week was nominated such that he could then undertake 3-4 hour shifts per week undertaking light skilled office work.  Within two years, with intervention, he was expected to be about to increase light skilled office work to 15-22 hours per week.  The Respondent relied on the JCA Report.   

15. The Applicant provided medical reports from Dr Griffith, his treating neurologist.  Dr Griffith’s assessment of the applicant’s work capacity in August 2016 was that the applicant ‘could work in an office environment’ but he did not 'feel it was safe for him to work in jobs requiring significant visuospatial awareness’.  In his report of 29 May 2017, Dr Griffith confirmed that the applicant has a ‘permanent numbness affecting the left half of his body with unsteadiness’.  Dr Griffith also commented on the current functional impact of the condition and stated that the applicant is 'unfit for his previous employment or gainful employment that would involve more than 15 hours per week given his deficits’.  Although the report was made some 11 months after the end of the relevant period, it serves to demonstrate actually, rather than hypothetically, the applicant’s level of improvement following the relevant period.

16. Mr Logue had worked as a terminal manager and safety protection officer for Great Southern Rail for six years and in the last few years, took a second job in customer service for Sydney Light Rail until he had the stroke.  Mr Logue’s evidence was that he wants to return to work and has been trying to get a job with Rail Corp.  He has been assessed for “Category 2” and while he passed the breathing, hearing and eye test, because he struggled with climbing a step ladder and lifting, he was found unfit to return to work.  There was no evidence that the Applicant lacks motivation to work; on the contrary, the Applicant gave evidence, which I accept, of being keen to return to work.  He said he had applied for many jobs but has never received even one interview.

17. On the basis of all the available medical evidence, I find that Mr Logue’s impairment is of itself sufficient to prevent him from doing any work independently of a program of support during the next two years. I am therefore satisfied that the requirement in section 94(2)(a) is met.

18. Next, I considered whether, Mr Logue’s impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years (section 94(2)(b)(i)); or whether because of his impairment, any training activity is unlikely to enable him to do any work independently of a program of support within the next two years (section 94(b)(ii)).

19. On the basis of all the available medical evidence, I find that Mr Logue’s impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years and that any training activity is unlikely to enable Mr Logue to do any work independently of a program of support during the next two years. I am therefore satisfied that the requirement in section 94(2)(b) is met.

20. In my view, the legislative scheme has worked unfairly for Mr Logue.  I have found that by the end of the relevant period, the effects of his stroke were permanent and his condition was not going to improve.  His whole left side was affected.  Fortuitously for him, no one part of his body was so functionally impaired that that functionality was ‘severe’; instead, multiple aspects of his functionality were permanently affected.  That means that he must undertake a program of support.  The effect of the requirement to have completed an 18 month program of support effectively bars all DSP claimants from making that claim for a minimum of 18 months after a catastrophic event – such as Mr Logue’s stroke – that has had multiple significant effects on his functionality.  Whether such a program would actually assist him is unknown. 

21. Were it not for the obligation in relation to a program of support I would have found that Mr Logue has a continuing inability to work as required by section 94(1)(c) of the Act. In Kumar v Secretary, Department of Social Services [2017] FCA 158, Reeves J at [46] discussed the effect of sections 94(1)(c)(i) and 94(2)(aa), that active participation in a program of support was a necessary qualification for the grant of a disability support pension. Further, there is no power to dispense with the operation of section 94(2)(aa) of the Act: Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 507.

22. I therefore must find that Mr Logue did not, during the relevant period, have a continuing inability to work as required by section 94(1)(c) of the Act. As he is unable to meet all the criteria for the DSP, the application for review must be affirmed.

23. Nothing about this decision prevents Mr Logue applying for the DSP again.

    DECISION

24. The decision under review is affirmed.

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

...................................[sgd].....................................

Associate

Dated: 11 August 2017

Date(s) of hearing:	24 July 2017
Applicant:	In person
Solicitors for the Respondent:	Mr L Dennis, Department of Human Services