Lokanc and Secretary, Department of Social Services (Social services second review)
[2016] AATA 195
•31 March 2016
Lokanc and Secretary, Department of Social Services (Social services second review) [2016] AATA 195 (22 March 2016)
Division
GENERAL DIVISION
File Number
2015/5004
Re
Franjo Lokanc
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date of decision 22 February 2016 Date of written reasons 31 March 2016 Place Melbourne For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
[sgd]........................................................................
Egon Fice, Senior Member
DISABILITY SUPPORT PENSION – continuing inability to work – severe impairment –impairment rating – applicant allocated 20 impairment points under two impairment tables – program of support – no active participation in program of support – decision under review affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Schedule 2 Clauses 3 and 4
Social Security (Active Participation for Disability Support Pension) Determination 2014 Clauses 5 and 7
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Clauses 5 and 6
REASONS FOR DECISION
Egon Fice, Senior Member
31 March 2016
On 16 March 2015 Mr Lokanc lodged an application with the Department of Human Services (Centrelink) for payment of the Disability Support Pension (DSP). In fact, Mr Lokanc first contacted Centrelink by telephone 2 February 2015 indicating his intention to claim the DSP. In a letter dated 11 February 2015, Centrelink informed Mr Lokanc that if he wished to receive his payment from the earliest possible date, he was required to return his claim on or before 16 February 2015. Clearly this did not occur. Therefore, the effective date of Mr Lokanc’s claim for the DSP is 16 March 2015.
On his claim form Mr Lokanc said he suffered from multilevel lumbar disc injury; major depression; gastritis; anaemia; and diabetes.
Mr Lokanc underwent a job capacity assessment conducted by a Job Capacity Assessor (JCA) who submitted a report dated 28 May 2015. The JCA determined that Mr Lokanc’s spinal disorder and depression had been fully diagnosed, fully treated and fully stabilised. She recommended a rating of 10 impairment points for each of those conditions. While the JCA noted that his gastroenterological condition was fully diagnosed, fully treated and fully stabilised, no impairment points were recommended because it resulted in no functional impact on Mr Lokanc. The JCA did not make an assessment of his anaemia or diabetes conditions.
On 2 June 2015 Centrelink informed Mr Lokanc that he was not eligible for the DSP. That was because he had not actively participated in a program of support (POS). Mr Lokanc sought review of that decision by an Authorised Review Officer (ARO).
In a decision dated 18 June 2015 the ARO determined that although Mr Lokanc had a total impairment rating of 20 points, he did not have a severe impairment which is defined in the Social Security Act 1991 (the Social Security Act) as an impairment which is rated at 20 points or more under a single table. Therefore, because he had not actively participated in a POS, he did not have a continuing inability to work 15 hours per week or more because of his impairment.
Mr Lokanc then lodged an application with the AAT, Social Services & Child Support Division (AAT 1) seeking review of the ARO decision. On 9 September 2015 AAT 1 affirmed the ARO’s decision. In the reasons given for decision, AAT 1 also found that Mr Lokanc did not suffer from a severe impairment and therefore he was required to complete a POS.
Mr Lokanc sought review of the AAT 1 decision by the AAT (Second Review) on 24 September 2015. I heard Mr Lokanc’s application on 22 February 2016 following which I affirmed the decision of AAT 1 and provided Mr Lokanc with oral reasons for my decision. In a letter received by the Tribunal 8 March 2016, Mr Lokanc requested that I provide him with written reasons for my decision. These are those reasons.
QUALIFICATION FOR DISABILITY SUPPORT PENSION
Section 94 of the Social Security Act sets out the eligibility criteria for payment of the DSP. In so far as it is relevant to Mr Lokanc’s claim, it provides:
94(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;…
There appeared to be no dispute about the fact that Mr Lokanc has a physical, intellectual or psychiatric impairment and that his impairment is of 20 points or more under the Impairment Tables. However what was in issue was whether he has a continuing inability to work. The expression continuing inability to work is explained in s 94(2) as follows:
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had no opportunity to participate in a program of support – 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.
The expression severe impairment is explained in s 94(3B) as follows:
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.
Example 1…
Example 2…
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under two separate Impairment Tables. The person does not have a severe impairment.
As a general rule, when a person makes a claim for a social security payment, if the person is qualified for the payment on the day on which the claim was made, the person’s start day in relation to the payment is the day on which the claim was made (Social Security (Administration) Act 1999 Schedule 2 clause 3(1)). However, if the person making the claim is not qualified for the social security payment on the day on which the claim was made, that person effectively has 13 weeks after the day on which the claim was made to establish his or her qualification for the payment. That is because clause 4(1) relevantly provides:
4 Start date – early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the date on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the Social Security payment.
As Mr Lokanc is not a detained person, which means a person who is in jail or is undergoing psychiatric confinement because they have been charged with an offence, payment in respect of his claim can only be made by Centrelink if Mr Lokanc was qualified to receive the DSP in the 13 week period following the making of the claim. If he did not qualify within that period, his claim cannot be considered and he must lodge a new claim if he is of the view that his circumstances have changed and he now meets the qualifying criteria for payment of the DSP. As Mr Lokanc lodged his claim for the DSP on 16 March 2015, his qualifying period ends on 15 June 2015.
DOES MR LOKANC QUALIFY FOR THE DSP?
There was no issue about the fact Mr Lokanc suffered a workplace injury in December 2007. He suffered a multilevel lumbar disc injury. Mr Lokanc was subsequently diagnosed with major depression and anxiety. He was also successful in a WorkCover claim which resulted in him receiving a lump sum payment of $458,276. He was granted consent to pursue a common law claim and issued with a Serious Injury Certificate by the Victorian WorkCover Authority on 19 July 2006. The WorkCover Authority was satisfied that his injury was a serious injury within the meaning of s 134AB(37) of the Accident Compensation Act 1985 (Vic).
On 11 May 2015, Mr Lokanc underwent a job capacity assessment which was conducted face to face by a registered psychologist. The JCA’s role is to determine the degree of impairment experienced by an applicant for the DSP. That is because one of the qualifying criteria set out in s 94 of the Social Security Act is that the person’s impairment is of 20 points or more under the Impairment Tables. In making the assessment the JCA takes into account all of the medical reports which have been provided by an applicant and determines whether the medical condition or conditions can properly be described as having been fully diagnosed, treated and stabilised. It is only after this is established that an impairment rating can be recommended.
Although Mr Lokanc, at the hearing of the matter, repeatedly referred to the medical reports which indicated the seriousness of his medical conditions, establishing the correct impairment rating requires a focus on the effect of those medical conditions on a person’s ability to function. This is explained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The purpose and general design principles of the Impairment Tables is set out in clause 5(2) which provides:
Purpose and general design principles
(2) The Tables:
(a) unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b) are function-based rather than diagnosis base; and
(c) describe functional activities, abilities, symptoms and limitations; and
(d) are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Note: impairment is defined in section 3 to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The Impairment Tables make it clear that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years (clause 6(3)). Clause 6(4) describes when a condition is to be regarded as permanent. It includes the fact that the condition has been fully diagnosed by an appropriately qualified medical practitioner and has been fully treated and stabilised, and is more likely than not, in light of available evidence, to persist for more than 2 years.
Mr Lokanc appeared to be of the view that because his conditions were accepted by WorkCover, they should be accepted for the purposes of the DSP. That is, because he had a successful common-law claim, he must meet the qualifying criteria for payment of the DSP set out in s 94 of the Social Security Act. However, unlike his WorkCover claim, acceptance for the purposes of the DSP is based on an applicant’s capacity to work, and not the seriousness of his diagnosed condition or conditions.
After consideration of all of the medical evidence, the JCA accepted that Mr Lokanc’s spinal disorder was fully diagnosed, treated and stabilised, as was his depression. Therefore, it was appropriate to apply an impairment rating to both of those conditions based on his capacity to function. The JCA recommended that Mr Lokanc be given 10 points for his spinal disorder and 10 points for his depression under the relevant tables. The JCA’s recommended ratings were based on what she was told by Mr Lokanc in the course of the interview and from observing him. Her reasons are set out in the Job Capacity Assessment Report. In summary, the JCA said there was a moderate functional impact on activities involving Mr Lokanc’s spinal function and also a moderate functional impact on activities involving his mental health function. The JCA did not allocate any impairment points for Mr Lokanc’s gastroenterological condition because there was no functional impact reported or supported by the medical evidence.
There was no dispute that Mr Lokanc had a total of 20 impairment points under the Impairment Tables and therefore he satisfied the qualifying criterion set out in s 94(1)(b). However, that is not the end of the matter. Because Mr Lokanc does not have an impairment rating of 20 points or more under a single Impairment Table, he does not have a severe impairment as that expression is defined in s 94(3B). Therefore, to satisfy the final criterion in s 94(1)(c)(i), which requires an applicant to have a continuing inability to work, Mr Lokanc must have actively participated in a program of support. Section 94(3C) describes the requirement to have actively participated in a program of support as follows:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The legislative instrument referred to in s 94(3C) is titled Social Security (Active Participation for Disability Support Pension) Determination 2014. Clause 7 refers to the requirements for active participation which, relevantly, provides:
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a)the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support.
(2) This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
The expression relevant period is defined in clause 5. Insofar as it applies to Mr Lokanc, it provides:
(a)in relation to a person (other than reviewed 2008-2011 DSP starter) whose impairment is not a severe impairment – the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person; or…
The consequences of the program of support qualification requirement is that where a person does not have a severe impairment, before lodging a claim for the DSP and within the three-year period prior to lodgement of that claim, the applicant must have actively participated in a program of support for a period of at least 18 months in that three-year period.
Question number 94 on the application form for the DSP, asks the applicant whether in the last three years they had participated in any programs to help them find work, stay in a job, return to work, manage their injury or to help with vocational rehabilitation, gaining new skills, work experience or training. In answer to that question, Mr Lokanc ticked the No box. Furthermore, in his oral evidence given at the hearing, Mr Lokanc confirmed he had not completed a program of support prior to lodging his application. It is for this reason that I found that Mr Lokanc does not qualify for payment of the DSP. It is a mandatory requirement for qualification and, unless the applicant has a severe impairment, it cannot be ignored.
As I explained at the hearing of this matter, Mr Lokanc’s medical conditions may have worsened since the JCA conducted her assessment and if so, it may be that in fact he should be allocated more impairment points under a single table for one or both of his medical conditions. If that is the case, I suggested to Mr Lokanc that he could lodge a fresh application for the DSP but that he would need current medical reports to support his claim. That is because, as I have indicated above, that claim must be assessed between the date it is made and the following 13 weeks only. Alternatively, Mr Lokanc could enrol in a program of support and actively participate in that program for 18 months before lodging a fresh claim.
CONCLUSION
Mr Lokanc does not satisfy the qualifying criterion set out in s 94 of the Social Security Act which requires a person to have a continuing inability to work. Mr Lokanc can only satisfy that criterion if he has at least 20 impairment points allocated under one of the Impairment Tables, or he has actively participated in a program of support for 18 months in the three-year period prior to lodging an application for the DSP. As at the date of hearing this matter, Mr Lokanc did not satisfy that qualifying criterion.
The decision made by AAT1 (Social Services & Child Support Division) on 9 September 2015 was the correct decision. I affirm that decision.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Senior Member[sgd].......................................................................
Administrative Assistant
Dated 31 March 2016
Date of hearing 22 February 2016 Applicant In person Advocate for the Respondent Mr Tim de Uray, Program Litigation and Review Branch, Department of Human Services
Key Legal Topics
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Administrative Law
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Statutory Interpretation
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Appeal
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Judicial Review
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Procedural Fairness
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Standing
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