Mark Mewton and Secretary, Department of Social Services

[2015] AATA 200

[2015] AATA 200  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/0855
Re	Mark Mewton
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	31 March 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – DSP – whether applicant had relevant impairment – whether impairment rating of at least 20 points – whether applicant had continued inability to work – where applicant could work 15 hours per week – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 94

Social Security (Administration) Act 1999 (Cth) sch 2, ss 13, 41-42

CASES

Reilly and Secretary, Department of Social Security [1987] AATA 291

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 5, 6

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) s 5 (repealed)

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

31 March 2015

INTRODUCTION

1. I have to determine whether Mr Mewton (“the applicant”) is entitled to Disability Support Pension (“DSP”).

   PRIOR DECISIONS

2. On 2 October 2013 the applicant lodged a claim for Disability Support Pension (“DSP”). On 29 October 2013 his claim was rejected. On 10 January 2014 an Authorised Review Officer affirmed that decision. On 11 February 2014 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision to reject the claim. On 17 February 2014 the applicant made an application to this Tribunal for review of the decision to reject the claim for DSP.

   RELEVANT LEGISLATION

3. The legislation that I have to consider and apply is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

4. Section 94 of the Act provides that in order to be qualified to receive DSP the applicant must have:

   ·a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act);

   ·an impairment rating of at least 20 points or more under the Impairment Tables (s 94(1)(b) of the Act); and

   ·a continuing inability to work (s 94(1)(c)(i) of the Act).

5. The Administration Act provides that the start day for a claimant who qualifies to receive DSP is the date on which they contact the Department regarding the payment, which is considered the deemed date of claim (ss 13, 41, 42, Sch 2 cl 3 of the Administration Act). The applicant will be entitled to receive DSP if he was qualified to receive that benefit as at the deemed date of the claim. If he was not qualified to receive DSP on that date he will nevertheless be entitled to receive DSP if he becomes qualified within 13 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).

   MINISTERIAL DETERMINATIONS

6. I am required under s 26 of the Act to apply a number of Ministerial Determinations. 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, and ceased 3 January 2015. The Active Participation Determination was in force at, and during, the claim and appeal process and will therefore be applied in accordance with the long-standing practice of this Tribunal[1] during the review of this application. Section 5 of the Active Participation Determination sets out the requirements for active participation. Both of these Determinations are in evidence.[2]

   [1] Reilly and Secretary, Department of Social Security [1987] AATA 291.

   [2] Exhibit A, pp 98-132.

   ASSESSMENT PERIOD

7. On 2 October 2013 the applicant lodged his claim for DSP. I am required to determine whether the applicant became qualified at any time within the 13 week period from lodgement date which concluded on 1 January 2014 (“the relevant period”).

   ISSUES FOR DETERMINATION

8. I have to determine:

   ·whether the applicant, as at the date of the claim (or within 13 weeks of that date), had a physical, intellectual or psychiatric impairment; and

   ·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

9. I find that within the relevant period the applicant had a physical, intellectual or psychiatric impairment as required by s 94(1)(a) of the Act. To make this finding I rely upon the medical report dated 1 October 2013 in which Dr Richardson reported that the applicant suffers from deafness and depression.[3] The Secretary has quite properly conceded that the applicant has impairments.

   [3] Exhibit A, p 176.

   ASSESSMENT OF IMPAIRMENTS

10. I am required to consider whether within the relevant period the impairments of the applicant 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.

    Deafness

11. Dr Richardson has reported that the applicant had been deaf since birth and that the condition has impacted on the applicant’s endurance, communication and behaviour and caused frustration.[4] There is also a report from Ms R Bull, audiologist, dated 6 October 1993 that certifies that the applicant has severe to profound bilateral sensorineural losses.[5] This audiological report was provided by the respondent after the Tribunal requested the production of any available supporting evidence from an audiologist or an Ear, Nose and Throat (ENT) specialist as required by the Introduction to Table 11 of the Disability Support Pension Determination. No such report was in the T-Documents. The audiological report was admitted into evidence without objection as Exhibit G pursuant to a direction dated 13 March 2015.

    [4] Ibid p 177.

    [5] Exhibit G.

12. Having regard to the report of Dr Richardson I am satisfied that the condition has been fully diagnosed by medical practitioner, fully treated and fully stabilised as required by s 6(4) of the Disability Support Pension Determination. There is also supporting evidence from an audiologist as stipulated by the Introduction to Table 11. In these circumstances, I am able to assign an impairment rating to the deafness condition of the applicant.

13. On the available medical evidence I consider that the deafness condition of the applicant should be assigned a total of 5 points under Table 11 “Hearing and other Functions of the Ear” of the Disability Support Pension Determination.

14. To be assigned a rating of 10 points under Table 11 a person must have “difficulty hearing a conversation at average volume in a room with no background noise”. The report from Ms Bull states “Mr Mewton uses a behind-the-ear aid fitted to the left ear. This together with speech reading skills allows him to communicate orally”. Ms Bull also reported “his ability to discriminate speech would deteriorate markedly in the presence of background noise”. The fact that the applicant has difficulty hearing when there is background noise meets the requirement in the description for 5 points which refers to a person who “has some difficulty hearing a conversation at an average volume in a room with background noise”.

15. The report from Ms Bull also refers to the applicant as using “speech reading skills”, this could meet the description for 10 points, which refers to where a person “is partially reliant on lip-reading”. However, to be assigned a rating of 10 points a person must satisfy sub-paragraphs (a), (b) and (c) in paragraph (1) of the description for 10 points.

16. Subsection 11(1)(c) provides that a rating cannot be assigned between consecutive impairment ratings such that a rating cannot be assigned between 5 and 10 points.

    Depression

17. Dr Richardson, general practitioner, in his report of 1 October 2013 has indicated that the applicant has a condition of “on/off depression”. The applicant attended psychologist Dr Louise Munro for six sessions in April and July 2013. In her report dated 1 October 2013 Dr Munro notes that the applicant had experienced a relationship breakdown at that time.[6] The report of Dr Munro did not contain a diagnosis of any mental condition.

    [6] Exhibit A, p 183.

18. The Introduction to Table 5 – Mental Health Function of the Disability Support Pension Determination, which relates to Mental Health Function, provides:

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

19. The diagnosis of the condition of the applicant has not been made by a psychiatrist or clinical psychologist. In these circumstances, it is not possible for me to assign a rating. I am prevented by the Disability Support Pension Determination from assigning a rating to the condition unless the condition can be regarded as fully treated and fully stabilised. I note that the applicant informed the SSAT that his condition is improving.

    Spinal condition

20. Dr Richardson, general practitioner, in his report of 1 October 2013 has indicated that the applicant has “back problems & neck problems” that are generally well-managed and cause minimal or limited impact on ability to function. The applicant informed the SSAT that his back pain has improved since he had spinal surgery. Dr Richard Kahler, FRACS in his report dated 15 July 2014 discussed the condition of the applicant who has cervical brachialgia from a spinal cord cavernoma.[7] Dr Kahler reports that the condition causes a moderate functional impact on activities using hands or arms. As Dr Kahler formed his opinion with reference to Table 2 – Upper Limb Function and I consider that it is fair to assign 10 points under this Table. Dr Kahler reported that the condition was fully treated and fully stabilised so that a rating can be assigned to the condition.

    [7] Exhibit D.

21. I have concluded that the applicant does not satisfy s 94(1)(b) of the Act as he had a total impairment rating of 15 points under the Impairment Tables.

    CONTINUING INABILITY TO WORK

22. It is not necessary to consider whether the applicant can be regarded as having a continuing inability to work as required by s 94(1)(c)(i) of the Act, however I will make some observations upon this issue which was argued before the Tribunal. The term “work” is defined at s 94(5) of the Act to mean work that:

    (a)is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)that exists in Australia, even if not within the person's locally accessible labour market.

23. In considering whether the applicant can be regarded as having a continuing inability to work, there is no evidence which warrants the applicant as being found to have a severe impairment which attracts 20 points or more under a single Impairment Table (s 94(3B) of the Act).

24. The Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied they have actively participated in a program of support as well as satisfying the other requirements of s 94(2) of the Act. The Act also provides that a person has activity 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 s 94(3C) of the Act.

25. Section 5 of the Active Participation Determination provides that a person has actively participated in a program of support if the person has complied with the requirements of the program of support and participated in a program of support during the 36 months ending immediately before the relevant date of claim (s 5(1) of the Active Participation Determination). It is also necessary that the person must have participated in the program of support for at least 18 months within the three years prior to the date of claim (s 5(2) of the Active Participation Determination). There are exceptions to this requirement which are not material to this application (ss 5(3)-(5) of the Active Participation Determination). A person must advise the Secretary of the program of support they have undertaken (s 5(6) of the Active Participation Determination).

26. Part 3 of the Active Participation Determination sets out the guidelines that the Secretary must comply with in deciding whether he or she is satisfied that, in a case where a person’s impairment is not a severe impairment, the person has actively participated in a program of support within the meaning of s 94(2)(aa) of the Act. There is no basis in this application for dispensing with the requirement of the applicant to undertake a program of support.

27. The applicant has actively participated in a program of support within the meaning of s 94(3C) of the Act.

28. There is evidence that within the relevant period the applicant has worked for more than 15 hours in a week.[8] In some weeks he worked for more than 44 hours a week. Within the relevant period it is sufficient to refer to the fact that in the week ended 16 October 2013 he worked for 37.75 hours.[9] The payroll advice that is in evidence discloses the hourly rate that the applicant has been paid as a cabinetmaker which is above the current national minimum wage.

    [8] Exhibit A, p 188.

    [9] Exhibit C, p 5.

29. The reasons of the SSAT included the statement that the applicant “would like to receive DSP and work 15 hours per week”. The applicant believes that the SSAT misunderstood his evidence that was relayed through an interpreter. However, the applicant made a similar statement before this Tribunal when he remarked that he did not have any issue with the interpretation of his signs. In any event whether or not the applicant made such a statement is not to the point as the evidence before me is that the applicant was able to work for more than 15 hours per week throughout the relevant period and for 12 months from the date of claim.[10]

    [10] Exhibit C.

30. I accordingly find that the applicant does not satisfy s 94(1)(c) of the Act as during the relevant period he had a continuing ability to work for 15 hours per week on wages that were at or above the relevant minimum wage. In view of this finding I decided that it would be nugatory to obtain a more recent audiological assessment of the applicant as one requirement to be eligible for DSP is that he would need to satisfy s 94(1)(c) of the Act.

    CONCLUSION

31. The applicant is not eligible to receive DSP. I wish to make the comment that the applicant to his credit has always sought to be gainfully employed and should be afforded every assistance in the form of training to assist him for future employment.

    DECISION

32. I affirm the decision under review.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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Associate

Dated 31 March 2015

Date(s) of hearing	9 December 2014
Date final submissions received	23 March 2015
Solicitors for the Applicant	Susan Moriarty & Associates
Solicitors for the Respondent	Mr N Warren, Department of Human Services