McLean and Secretary, Department of Social Services (Social services second review)
[2015] AATA 940
•4 December 2015
McLean and Secretary, Department of Social Services (Social services second review) [2015] AATA 940 (5 November 2015)
Division
GENERAL DIVISION
File Number
2014/6176
Re
Christine McLean
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 5 November 2015 Date of written reasons 4 December 2015 Place Adelaide The decision under review is affirmed.
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Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Whether applicant had a severe impairment – Whether program of support requirements met – Applicant commenced program of support outside assessment period – Decision under review affirmed.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President K Bean
4 December 2015
The applicant, Ms McLean has a number of serious and chronic medical conditions which significantly impair her functioning. Accordingly, on 6 February 2014, she lodged a claim for Disability Support Pension (DSP).[1]
[1] Exhibit 1, T9/114.
That claim was rejected on 27 May 2014[2], and that decision was affirmed by an Authorised Review Officer (ARO) on 27 June 2014[3], and subsequently by the Social Security Appeals Tribunal (SSAT) on 31 October 2014[4].
[2] Exhibit 1, T12/199.
[3] Exhibit 1, T3/15.
[4] Exhibit 1, T2/3.
The main reason for each of these decisions rejecting Ms McLean’s claim was that, although she had impairments attracting 20 points under the Impairment Tables, she did not suffer from a “severe” impairment and did not meet the program of support requirements.
On 1 December 2014, Ms McLean requested review of the decision of the SSAT by this Tribunal, giving rise to these proceedings.[5]
[5] Exhibit 1, T1.
A hearing was held in the matter on 5 November 2015, and on that day I delivered my Decision and Reasons orally. On 11 November 2015, Ms McLean requested Reasons in writing and this written version of my Reasons has been produced in answer to that request.
LEGISLATION AND ISSUES
In broad terms the issue before me is whether Ms McLean was qualified for DSP as at the date of her claim on 6 February 2014 or within 13 weeks of that date (the “assessment period”).[6] The Tribunal is required to address the issue of qualification strictly by reference to the assessment period and the facts as they were during the assessment period.[7]
[6] Social Security (Administration) Act 1999, Schedule 2, clause 4.
[7] Secretary, Department of Social Services and Smith [2015] AATA 578.
Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act), which, at the relevant time, relevantly provided as follows:
94 Qualification for disability support pension
(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;
…
Continuing inability to work
(2)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)—the person has actively participated in a program of support within the meaning of subsection (3C); 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.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
Severe impairment
(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.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(3C)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.
…
work means work:
(a)that 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.
...
DID MS MCLEAN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
The Secretary does not dispute, and I accept, that during the assessment period, Ms McLean suffered from a number of physical impairments, including systemic lupus with inflammatory arthritis, forefoot and arch pain, a neck disorder and a skin disorder, and she therefore satisfied subs 94(1)(a) of the Act.
AT THE RELEVANT TIME, DID MS MCLEAN HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
There is also no dispute that, during the assessment period, Ms McLean suffered from a combination of impairments attracting at least 20 points under the Impairment Tables, as found by the SSAT. However, the Secretary contends that the SSAT was also correct to conclude that she did not suffer from a severe impairment of 20 points under any of the applicable Tables 1, 2, 3 or 4.
As I have already alluded to, this issue is important because if she did not have severe impairment, Ms McLean is required to have satisfied the program of support requirements.
AS AT THE ASSESSMENT PERIOD, DID MS MCLEAN HAVE A SEVERE IMPAIRMENT?
Having carefully considered this issue, I am satisfied that, as at the assessment period, Ms McLean did not have an impairment attracting 20 points under any of the applicable Tables.
At the hearing, I explored this issue with both Ms McLean herself, and her treating orthopaedic surgeon, Dr Brown.
It is clear the most relevant tables for assessing Ms McLean’s relevant impairments are Tables 1, 2, 3 and 4.
With respect to Tables 1 and 3, Ms McLean acknowledged that during the assessment period she could walk around a shopping centre or supermarket, albeit with the assistance of a trolley. She also acknowledged that she could walk from a car park into a shopping centre or supermarket, although she would often rely on the assistance of her Zimmer frame or walker. She further acknowledged being able to use public transport and perform light day to day household activities.
With respect to Table 2, Ms McLean acknowledged that at the relevant time, she could move, handle and carry ordinary household items, use a pen or pencil, and turn the pages of a book. With respect to Table 4, she also acknowledged that she could perform some overhead activities, turn her head to some extent while sitting in a car, bend forward to pick up a light object from a desk or table, and remain seated for at least 10 minutes.
Dr Brown’s evidence was consistent with that of Ms McLean in relation to these matters.
For completeness, I note that Ms McLean also has a number of conditions I have not already referred to, including chronic obstructive pulmonary disease, and depression. It is not clear on the material before me that these conditions were fully diagnosed, treated and stabilised as at the assessment period. However, even assuming they were, I am satisfied that there is nothing before me which would support a 20 point rating under any Impairment Table other than those I have already referred to.
DID MS MCLEAN MEET THE PROGRAM OF SUPPORT REQUIREMENTS?
As I have already mentioned, because she did not have a severe impairment during the assessment period, Ms McLean was required to meet the program of support requirements.
The main difficulty for her in this context is that, on the limited material before me, I am satisfied that she did not actually commence what could properly be regarded as a “program of support” for the purposes of the legislation, until 2 June 2014, which was outside the 13 week assessment period.
I hasten to add, this was not due to any fault or failure on her part. Having been made redundant on 17 January 2014, she approached Centrelink on 23 January 2014, and did everything she was asked or advised to do thereafter. She was initially referred to an organisation called Workskil Incorporated, where it appears she was given basic job seeking assistance. She attended appointments with them as required.
Once it was identified that she needed more intensive assistance, she was referred back to Centrelink, Modbury, and then to an organisation called Sureway Employment and Training, who she saw for the first time on 2 June 2014. On the limited information before me, it appears that it was when she was referred to Sureway that something which could properly be regarded as a “program of support” was put in place.[8]
[8] See Exhibit 2.
Unfortunately, through no fault of Ms McLean’s, it follows that she was not engaged in a ‘program of support’ prior to that date, because she was working until 17 January, and in the period after that she was not offered a program of support, and was not aware of the requirement that she participate in one. As Mr Hay, who appeared for the Secretary, observed during the hearing, it is likely that the need for this would have become apparent earlier if Ms McLean had not been subject to an income maintenance period, and had actually been in receipt of Newstart Allowance.
In any event, this has the consequence that, as she was not participating in a program of support at the date of her claim or within the assessment period, it is not possible for Ms McLean to meet the program of support requirements with respect to her claim lodged on 6 February 2014. This in turn has the consequence that Ms McLean was not qualified for DSP when she lodged her claim or during the assessment period, and I am therefore obliged to affirm the decision under review.
AS AT THE ASSESSMENT PERIOD, DID MS MCLEAN HAVE A CONTINUING INABILITY TO WORK 15 HOURS A WEEK?
In light of this conclusion, it is unnecessary for me to determine this issue. I will observe that on the basis of Dr Brown’s evidence, it was not clear that Ms McLean necessarily met this requirement during the assessment period, as she may have retained some capacity for sedentary work and/or training. However, it appears that, unfortunately, Ms McLean’s conditions have worsened and her capacity for work has reduced since the assessment period.
CONCLUSION
For the reasons I have given, I have concluded that I am obliged to affirm the decision under review, notwithstanding Ms McLean’s serious impairments and incapacity.
As discussed at the hearing, as she has now engaged in a program of support, and her conditions have worsened, some of the impediments to the success of this application would not necessarily be impediments to a future claim by Ms McLean for DSP. It is possible that Ms McLean may currently be suffering from a severe impairment, or that she may be able to satisfy the program of support requirements, either by obtaining an exemption, or demonstrating that she has participated in a program of support for 18 months. However, those matters can only be determined in the context of a further claim.
DECISION
The decision under review is affirmed.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean .........[ Sgd] ............................................
Associate
Dated 4 December 2015
Date of hearing 5 November 2015 Applicant In person Advocate for the Respondent Mr A Hay Solicitors for the Respondent Department of Human Services
Program Litigation and Review Branch
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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