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

[2018] AATA 887

Meaney and Secretary, Department of Social Services (Social services second review) [2018] AATA 887 (27 February 2018)

Division:GENERAL DIVISION

File Number:           2017/2720

Re:Diane Meaney

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Britten-Jones

Date:27 February 2018

Date of written reasons:        16 April 2018

Place:Adelaide

The Tribunal affirms the decision under review.

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Senior Member Britten-Jones

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – whether applicant had a severe impairment during the assessment period – whether Program of Support requirements met – whether applicant qualified for disability support pension during assessment period – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act

SECONDARY MATERIALS

Social Security Requirements and Guidelines (Active Participation for Disability Support Pension) Determination 2011

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

REASONS FOR DECISION

Senior Member Britten-Jones

16 April 2018

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by EPIQ Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following  paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

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Administrative Assistant

Dated: 16 April 2018

Date(s) of hearing:	27 February 2018
Applicant:	In person
Advocate for the Respondent:	Ms J Edwards
Solicitors for the Respondent:	Department of Human Services

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. The applicant, Ms Meaney, lodged a claim for disability support pension on 4 April 2016, and listed her conditions as chronic low back pain due to a spinal canal stenosis, osteoarthritis, depression, anxiety, and tinnitus. 

2. There was a Job Capacity Assessment taken on 4 August 2016.  Later in November 2016, the applicant was referred for a Disability Medical Assessment, and the effect of that assessment was to allocate a total of 30 points under three tables, namely an allocation of ten points under Table 3 for lower limb function, a further ten points under Table 4 for spinal disorder, and a further ten points under Table 5 for the major depressive disorder.

3. The issue for the Tribunal is whether or not the applicant was qualified for disability support pension, as at the date of her claim on 4 April 2016 or within 13 weeks of that date, and that is the assessment period. The relevant legislation is contained in s 94 of the Social Security Act 1991, and I also make reference to the Social Security Requirements and Guidelines (Active Participation for Disability Support Pension) Determination 2011, which is the legislative instrument which pursuant to section 94(3C) specifies the requirements for a person to have actively participated in a program of support.

4. In terms of section 94, there is no issue that section 94(1)(a) is satisfied, namely, that the applicant suffers from an appropriate impairment. Section 94(1)(b) requires there to be an impairment attracting 20 points or more under the Impairment Tables. In this case, there are points totalling 30 under the Impairment Tables, and I will come to the reason why in a moment but the Tribunal considers that the allocation of 30 points by the Disability Medical Assessment back in November 2016 is the correct allocation. But what that means for the applicant is that she has not attracted 20 points or more under one table, and therefore does not have a severe impairment within the meaning of subsection 94(3B) and is therefore required to have actively participated in a program of support.

5. The applicant gave evidence today and I accept her evidence.  She suffered an injury whilst helping her husband with fencing and loading posts and strainers back in 2008.  That injury was to her back and it was further aggravated when she was pushing horses into a starting gate and the horse pushed back on her.  The applicant owns a farm just 7 kilometres outside of Clare. 

6. Back in 2008 at the time of the accident she was operating a fencing business and training race horses with her husband.  She also did part time work for the council in Clare for about three years, and worked at the visitor centre in Clare, which was work that she really enjoyed, and she was very disappointed that she was unable to keep up the work at the visitor centre.  She tried to rehabilitate herself through Beckmann’s, and by pursuing other activities, but she never came good, even though she always thought that she would.

7. The applicant received WorkCover benefits for about three years, and that was up until about 2014.  As at April 2016 during the assessment period, the applicant was having great difficulty working and looking after the farm.  Her daughter lives next door, and she assists her with operating the farm.  She was able to drive to the supermarket by herself, a 7 kilometre trip to Clare, and to go around the supermarket, but she would use the trolley as support.  Once a week she visited a massage therapist, Kerry Laughton, in Clare, and that provided great comfort to her and she would normally do the shopping on the same day.  It could take her up to half an hour to do the shopping, but that would involve constant stopping every five minutes or so.

8. The applicant does not have any assistance around the house.  Her husband has left her some years ago.  They have been separated for four years, and that has contributed significantly to her depression, which she no doubt suffers and which has got worse over time.  She is able to shower and dress on her own and change the sheets on her bed.  She has difficulty bending over, and therefore does not have any utensils and items in the bottom cupboards, but she is okay with the cupboards above the bench.  She said that bending, standing and walking gives her most pain.  Once a week she would go to the heated pool.  Again, she would do that on her own.

9. She has been seeing a physio at Hackney by the name of Robin Day once a month.  Normally her friend would drive her down from Clare, which is a two hour trip, and she would normally stop at Mallala after about three quarters of an hour, but she was able to do at least three quarters of an hour without stopping, sitting in the vehicle.

10. She said that the remedial massage provided her best relief.  She had seen a chiropractor for about 12 months, but that did not provide much relief.  She said that her depression has got worse over time, in particular since the marriage was over, and that she feels overwhelmed with day to day life these days.  She said she really finds it difficult to manage the farm.  Having said that, she does try to achieve something each day such as watering the garden or cleaning a window.  She normally watches TV and the midday movie in particular, and then she would look after her chooks, her cat and her galah by feeding and watering them.

11. Her daughter comes over most days from next door to help.  She has been living in Clare for 20 years and has made friends in that time.  In more recent times, she has felt a burden on her friends and has not socialised as much as she did in earlier days.

12. Under cross-examination, the applicant said that the back condition and her mental feelings have definitely got worse since 2016.  She explained that her friend and her drove down to the Tribunal today.  They stopped at Gawler, and then again at McDonalds on Main North Road. 

13. With respect to the program of support, an unfortunate series of events appear to have occurred based on the evidence from the applicant, namely that she had great difficulty getting the right assistance from Centrelink persons.  That was very frustrating at the time and remains a source of great frustration to her.  At certain times when contacting Centrelink, she was told that because she was receiving Newstart, that she did not need to participate in a program of support.

14. It is clear that in the period 2013 to 2016, that there was no participation in a program of support.  Since that time, and indeed since about July of 2017, the applicant has been seeing a disability employment service by the name of WISE in Clare, but the first time she saw them was last year.  Prior to 2016, the applicant gave evidence that she was not linked to any job network provider, and that Beckmann’s, who provided some rehabilitation, had closed up in Clare years before 2013.

15. In recent times, some medical evidence has been provided, in particular from Dr Tod Owen by way of a report dated 3 October 2017.  He is a registered medical practitioner who has been working as a rural GP in Clare since about 2003, and he has been the applicant's primary regular treating general practitioner for some nine years, namely from about 2009, and indeed 2008 when she consulted him with respect to the work injury in February/March of 2008.

16. I note from the report that he does say that prior to 2008, he had seen the applicant sporadically between 2004 and 2008.  In his report dated 3 October 2017, he says that Diane's mental health issues emerged in 2009, and it has been an ongoing issue since that time.  The primary issue that triggered her mental health problems, specifically major depression, was the accident at work in 2008 which has left her without the physical ability to work or undertake some simple activities of daily living.

17. Dr Owen referred to the dysfunctional relationship with the applicant's husband at the time, and her anxious nature which fed into the depressive illness, and the stresses created by WorkCover and Centrelink has worsened the situation.  He considers that the applicant will never be completely free of major depression, and that she will require ongoing medical and psychological therapies in the future.

18. Dr Owen gives his opinion that as at October 2017, he considered that the applicant would attract 20 points for the mental health function under the relevant tables, namely having a severe functional impact on her.  He said that this includes specifically her worsening withdrawal from social and recreational contact and avoidance of all but a small number of trusted family friends, and her worsening relationships with friends and family in part due to a temper and short fuse.

19. He said in his report that he remains of the opinion that Ms Meaney is not fit to be able to function in a workplace for any significant period of time.  I note that his report makes it clear that the applicant's condition with respect to mental health has deteriorated significantly since the assessment period in 2016, and despite the report, I remain of the view that ten points is the appropriate allocation under the table dealing with the mental health function.

20. The other recent report comes from Dr Bonita Lloyd, a consultant psychiatrist.  It is dated 21 February 2018, and she gives her view that as at February 2018, she considered that the applicant suffered from major depression and social anxiety, having a severe functional impact on activities involving mental health functions, and that as a result, the applicant's level of functional impairment currently responds to 20 impairment points, and she gives details of the difficulties she is facing.

21. As to the question of the assessment period, Dr Lloyd states that she was not involved with the applicant's care in the period April to July of 2016, and notes that there has been a progressive worsening of symptoms in the context of a divorce settlement, and the DSP claims appeal process, and that there has been what she describes as a further deterioration in function since the period April to July of 2016.  Once again, there is nothing in that report that changes my opinion that the correct allocation is ten points under that mental health function.

22. I will not go through the details of the requirements for active participation set out by Part 2 of the Determination because it is apparent that the applicant has not participated in the three year period prior to making the application for a disability support pension, and that she therefore does not satisfy the requirements of the Act. That does not prevent the applicant from trying again for a disability support pension in the future, but I am left to conclude that the applicant has not activated in a program of support as required by the POS determination, and therefore does not satisfy section 94(2)(aa) of the Act.

23. In those circumstances, the decision to reject the application for disability support pension is affirmed.  Thank you for appearing today, Ms Meaney.  I wish you all the best with respect to any further applications that you may wish to make.  Thank you for your assistance (indistinct).

    END OF ORAL DECISION