Michael Dowling and Secretary, Department of Social Services
[2015] AATA 196
•31 March 2015
[2015] AATA 196
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/4569
Re
Michael Dowling
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 31 March 2015 Place Brisbane The decision under review is affirmed.
........................................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether continuing inability to work – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Schedule 2
SECONDARY MATERIALS
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) s 5
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
31 March 2015
INTRODUCTION
On 18 June 2013, Mr Michael Dowling (“the applicant”) made a claim for
disability support pension (“DSP”). I have to decide whether his claim should be granted.
PRIOR DECISIONS
On 4 July 2013, Centrelink made a decision to reject the claim for DSP. The applicant sought an internal review of that decision and provided a further medical report from
Dr Whish dated 18 September 2013. On 23 June 2014, an Authorised Review Officer affirmed the decision to reject the claim for DSP. On 5 August 2014, the Social Security Appeals Tribunal (SSAT) affirmed the decision. The applicant now seeks review of the decision by this Tribunal.
LEGISLATION
Qualification for Disability Support Pension
To qualify for DSP, the applicant must satisfy the requirements contained in s 94(1) of the Social Security Act 1991 (Cth) (“the Act”), prior to amendments made subsequent to the applicant’s claim. Section 94(1) relevantly provided:
(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;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system[.]
Impairment Tables
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) which commenced operation on 1 January 2012. An impairment rating can only be assigned if an impairment is permanent; that is, if it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than 2 years.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3)-(7).
Relevant period for qualification
Clause 4(1) of Sch 2 of the Social Security (Administration) Act 1999 (Cth) provides:
(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 day 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.
The claim for DSP must be assessed as at the date of the claim or within 13 weeks of that date. There is no issue that this period is from 18 June 2013 until 17 September 2013 (“the relevant period”). If the applicant qualifies for DSP at any time within the relevant period, he will be entitled to payment of DSP from 13 June 2013 – which, according to the respondent, is the day when he advised Centrelink of his intention to claim DSP.
CONSIDERATION
I am satisfied that the applicant has impairments for the purposes of
s 94(1)(a) of the Act. These impairments are outlined in the report of Dr Whish dated
18 September 2013 and include PTSD and a spinal disc prolapse.
I will next consider whether the applicant’s impairments attracted 20 points or more under the Impairment Tables at the relevant time.
I have reviewed the evidence concerning the PTSD condition of the applicant. In his report dated 18 September 2013, Dr Whish has confirmed that the PTSD condition was first diagnosed by Dr Lawford, psychiatrist, in 2001. Dr Whish has also confirmed that the future treatment of the applicant involves counselling. I consider that this condition could be regarded as being fully diagnosed, fully treated and fully stabilised in the relevant period to enable an impairment rating to be assigned in respect of the condition.
Dr Whish in his report has outlined that the functional impacts of the condition are cognitive dysfunction, poor concentration and reduced learning ability. Dr Whish also confirms that the applicant has experienced depression, anger, frustration, and dyscontrol daily. The applicant has stated that he cannot talk to people if he is angry. The applicant confirmed at the hearing before the SSAT that he was, at that time, able to attend to his self-care, socialise occasionally and concentrate enough to watch a TV program or read a newspaper. The applicant advised that he likes to keep occupied. The applicant, who has valuable experience in the automobile industry, was employed until December 2011.
The applicant confirmed that as an “old boy” of a football club he visited the club until recently. The applicant also advised that he cares for four children since separating from his wife.
I consider that the PTSD condition of the applicant should be assigned a rating of
5 points under Table 5 – Mental Health Function. This is because the functional impairments that have been discussed would meet the requirements of a mild functional impairment. The applicant does not satisfy most of the descriptors for a moderate functional impairment. The Determination does not permit an intermediate rating between 5 points and 10 points (s 5). I also note that the condition has not warranted any recent psychiatric referral.
I have reviewed the evidence concerning the spinal condition of the applicant. Dr Whish has confirmed that the applicant has a L4/5 and L5/S1 disc prolapse. Dr Musgrave reported on 20 June 2006 that a CT scan of the applicant shows that the L3/4 disc appeared normal but that there is a disc protrusion at the L4/5 level. Dr Musgrave reported there was no compromise of the emerging L4 nerve root on either side.
Dr Musgrave also confirmed that there is a disc protrusion at the L5/S1 level, with the L5 nerve roots exiting normally and no compromise of the S1 roots in the lateral recesses.
A further report from Dr Sidhu dated 31 October 2012 confirms there has been further degeneration of the spinal discs.
The job capacity assessment reports of 29 May 2013 and 11 October 2013 confirm that the applicant advised that he was able to bend forward to pick up a light object at knee height, sit for 30 minutes and attend to light household duties. The applicant is also able to drive a car. It is fair to say that there are some differences between what the applicant advised the SSAT and what has been reported to the assessor. The applicant advised the SSAT that he was unable to sit for more than 15-20 minutes and was unable to bend further than knee level. The SSAT also observed that the applicant was able to get out of a chair without assistance.
In assigning a rating to the spinal condition, I have taken account of the evidence concerning the functional limitations of the applicant. The applicant does not have any limitation in neck movement; nor does he have any restriction in overhead activities. However, Dr Whish reports that the applicant has poor endurance and mobility.
I consider that the spinal condition of the applicant should be assigned a rating of
5 points under Table 4 – Spinal Function, on the basis that the applicant satisfies descriptor (b) for a 5 point rating.
There are some other conditions that must be considered. Whilst the applicant suffers from hypertension and a heart condition, there is no evidence of either of those conditions causing any functional impact during the relevant period. In his report dated 18 September 2013, Dr Whish has reported that these conditions are generally
well-managed and cause minimal or limited impact. These conditions could not be assigned a rating of more than 0 points on the appropriate Table.
Dr Whish has stated that the applicant has a sleep apnoea condition. Although the applicant has undergone sleep studies, he has not yet been given a prescription for a sleep machine. The condition cannot be assigned a rating because it has not been fully treated. I have made a recommendation later in these reasons that the applicant should be afforded assistance to obtain a sleep machine.
I consider that the impairments can be rated a total of 10 points under the Impairment Tables. The applicant was not qualified for DSP because during the relevant period he did not satisfy s 94(1)(b) of the Act. On this basis alone the applicant is not eligible for DSP.
Continuing inability to work
Although it is not strictly necessary, I will also consider whether the applicant had a continuing inability to work during the relevant period because this is a matter of concern to the applicant.
The term “continuing inability to work” is defined in s 94(2) of the Act:
(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. (Emphasis in original)
The term “severe impairment” is defined in s 94(3B) of the Act:
(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 in original)
There is no medical evidence to warrant an impairment being assigned a rating of
20 points or more under a single Impairment Table. Therefore, it is necessary that the applicant have actively participated in a program of support before he can be regarded as having a continuing inability to work within the meaning of s 94(2) of the Act.
The applicant will be taken to have actively participated in a program of support if he meets the requirements set out in the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
(“the Determination”) that was in force during the relevant period. The Determination required a person to participate in a program of support for at least 18 months in the
36 months prior to the date of the relevant claim for DSP.[2] There are some exceptions in s 5(3)-(5) of the Determination which are not material to this application.
[2] Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) s 5(1)-(2).
The applicant, to his credit, had participated in a program of support for 16 months
(at most) in the 36 months prior to his claim for DSP. However, as the applicant had not actively participated in any program of support for at least 18 months in the 36 months prior to his claim for DSP, he did not satisfy s 94(2)(aa) and 94(1)(c) of the Act.
CONCLUSION
During the relevant period the applicant did not qualify for the payment of DSP.
The applicant should be afforded the assistance of a social worker so that he can be advised of what community supports are available to him as a member of the indigenous community. In particular, the applicant should be afforded assistance in obtaining a sleep machine.
DECISION
The decision under review is affirmed.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of
Dr P McDermott RFD, Senior Member.........................................................................
Associate
Dated 31 March 2015
Date of hearing 9 March 2015 Applicant In person Advocate for the Respondent Department of Human Services
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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Statutory Construction
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Procedural Fairness
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Standing
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