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

Case [2016] AATA 398

Neasham and Secretary, Department of Social Services (Social services second review) [2016] AATA 398 (17 June 2016)

Division

GENERAL DIVISION

File Number(s)

2015/5373

Re

Scott Neasham

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal

Brigadier AG Warner, Member
Date 17 June 2016
Place Perth

The Tribunal affirms the decision under review.

..........[Sgd]..............................................................

Brigadier AG Warner, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant’s impairments attract 20 points under the Impairment Tables – whether applicant has severe impairment – continuing inability to work – program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(1)(c)(i) – s 94(2)

Social Security (Administration) Act 1999 – Schedule 2

CASES

Augustynski and Secretary, FaHCSIA [2013] AATA 507

Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158

Tey and Secretary, Department of Social Services [2013] AATA 753

VMXC and Secretary, FaHCSIA [2013] AATA 663

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Table 1 – Table 3 – Table 4 – Table 11

Social Security (Requirement and Guideline – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Brigadier AG Warner, Member

17 June 2016

INTRODUCTION

  1. On 25 September 2015, the Administrative Appeals Tribunal Social Services and Child Support Division (AAT1) affirmed a Centrelink decision to reject a claim for Disability Support Pension (DSP) lodged by Mr Neasham on 18 March 2015.

  2. Mr Neasham lodged an appeal with this Tribunal on 12 October 2015 (T1/1-4).

    BACKGROUND

  3. Mr Neasham was born in June 1967.

  4. In his DSP claim dated 18 March 2015, Mr Neasham identified his medical conditions as “osteoarthritis, ankylosing spondylitis (sic), vertigo, fibromyalgia (sic)” (T35/226).

  5. Mr Neasham provided a medical report by Dr Simon Torvaldsen, general practitioner, dated 12 March 2015 (T34/203-213).  Dr Torvaldsen records that Mr Neasham suffers from fibromyalgia and inflammatory arthritis – probably ankylosing spondylitis.  He also mentions that Mr Neasham has sleep apnoea and vertigo, and that these conditions are well managed and cause minimal impact on the ability to function (T34/212).

  6. Mr Neasham attended a Job Capacity Assessment (JCA) on 22 April 2015.  The JCA report recommended a total impairment rating of 30 points – 10 points for spinal disorder under Table 4, 10 points for tinnitus under Table 11 and 10 points for fibromyalgia under Table 1.  The JCA also assessed Mr Neasham as having a baseline future work capacity within two years with intervention of 8 – 14 hours per week (T37/246-252).

  7. Mr Neasham’s DSP claim was rejected on 3 May 2015 on the basis that he had not participated in a Program of Support (POS) (T38/253-254).

  8. On 2 June 2015, an Authorised Review Officer (ARO) affirmed the decision to reject Mr Neasham’s claim for DSP (T40/256-240).

  9. On 25 September 2015, AAT1 – the first tier reviewer – affirmed the ARO decision (T2/5-27).

    ISSUE

  10. The…

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Neasham and Secretary, Department of Social Services (Social services second review) [2016] AATA 398
Case
[2016] AATA 398
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Neasham against the Secretary of the Department of Social Services regarding his claim for a Disability Support Pension (DSP). The central dispute revolved around whether Mr Neasham's various medical impairments met the threshold for receiving a DSP. The case was heard by Brigadier AG Warner, Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine three key issues: firstly, whether Mr Neasham possessed any physical, intellectual, or psychiatric impairments as defined by section 94(1)(a) of the *Social Security Act 1991* (the Act); secondly, if such impairments existed, whether they collectively attracted an impairment rating of at least 20 points under the *Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2001* (the Impairment Tables) as required by section 94(1)(b) of the Act; and thirdly, whether Mr Neasham had a continuing inability to work due to these impairments, pursuant to section 94(1)(c)(i) of the Act.

In its reasoning, the Tribunal acknowledged that previous assessments of Mr Neasham's impairment ratings had varied. The Tribunal ultimately found that Mr Neasham's fibromyalgia, inflammatory arthritis, and vertigo, when considered together, attracted a combined impairment rating of 25 points. However, despite meeting the impairment rating threshold, the Tribunal concluded that Mr Neasham did not qualify for the DSP because he failed to satisfy the requirement of a continuing inability to work. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Mr Neasham lodged an appeal with this Tribunal on 12 October 2015 (T1/1-4).BACKGROUND Mr Neasham was born in June 1967. In his DSP claim dated 18 March 2015, Mr Neasham identified his medical conditions as “osteoarthritis, ankylosing spondylitis (sic), vertigo, fibromyalgia (sic)” (T35/226). Mr Neasham provided a medical report by Dr Simon Torvaldsen, general practitioner, dated 12 March 2015 (T34/203-213). Dr Torvaldsen records that Mr Neasham suffers from fibromyalgia and inflammatory arthritis – probably ankylosing spondylitis. He also mentions that Mr Neasham has sleep apnoea and vertigo, and that these conditions are well managed and cause minimal impact on the ability to function (T34/212). Mr Neasham attended a Job Capacity Assessment (JCA) on 22 April 2015. The JCA report recommended a total impairment rating of 30 points – 10 points for spinal disorder under Table 4, 10 points for tinnitus under Table 11 and 10 points for fibromyalgia under Table 1. The JCA also assessed Mr Neasham as having a baseline future work capacity within two years with intervention of 8 – 14 hours per week (T37/246-252). Mr Neasham’s DSP claim was rejected on 3 May 2015 on the basis that he had not participated in a Program of Support (POS) (T38/253-254). On 2 June 2015, an Authorised Review Officer (ARO) affirmed the decision to reject Mr Neasham’s claim for DSP (T40/256-240). On 25 September 2015, AAT1 – the first tier reviewer – affirmed the ARO decision (T2/5-27).ISSUE The Tribunal must decide whether Mr Neasham was qualified to receive DSP at the time of lodging his claim on 18 March 2015 or within 13 weeks thereafter. This depends on: a)Whether Mr Neasham had any physical, intellectual or psychiatric impairments pursuant to section 94(1)(a) of the Social Security Act 1991 (the Act); and b)If so, whether any such impairments had a combined rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2001 (Impairment Tables) pursuant to section 94(1)(b)of the Act; and c)If so, whether Mr Neasham had a continuing inability to work pursuant to section 94(1)(c)(i) of the Act because of any such impairment. RELEVANT LEGISLATION Section 94 of the Act sets out the qualification criteria for DSP. It provides that a person is qualified for the DSP if: a)They have a physical, intellectual or psychiatric impairment (s 94(1)(a)), and b)That impairment (or impairments in combination) attracts an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)), and c)The person has a continuing inability to work (s 94(1)(c)). The Impairment Tables contain rules (the Rules) for their use when deciding if a person is qualified for DSP. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations and are designed to determine the level of functional impact of impairments.

Evidence

Evidence Before The Court

A POS means a program set up to assist a DSP applicant with preparation for job seeking, as well as finding and maintaining employment. To be eligible for DSP an applicant must have:·actively participated in a POS for at least 18 months in the preceding 3 years; or·completed a POS; or·been with a POS which had to be terminated because the applicant’s medical conditions alone meant that continuing would not improve the applicant’s capacity to work; or·been undertaking a POS at the time of the DSP claim but continuing it would not improve the applicant’s chances of obtaining and maintaining employment.EVIDENCE The evidence before the Tribunal comprised: ·The “T Documents” (T1-49, pp 1-351) (Exhibit R1)·Secretary’s Statement of Issues, Facts and Contentions, dated19 February 2016 (Exhibit R2)·Photograph of Mr Neasham (Exhibit R3)·“Wedding DJ Packages” advertisement (Exhibit R4)·Applicant’s Response to the Secretary’s Statement of Issues, Facts and Contentions, dated 17 March 2016 (Exhibit A1)·Mr Neasham email dated 23 November 2015, 6 pages (Exhibit A2)·Additional Information to Exhibit A1, under cover of email dated 13 April 2016 (Exhibit A3)·Mr Neasham email dated 18 March 2016 including Annexes A – P (Exhibit A4)CONSIDERATIONGeneral The Tribunal notes that the previous assessments of Mr Neasham’s impairment rating in relation to the present claim have produced different results:·The JCA report on 30 April 2015 recommended a combined impairment rating of 30 points – 10 points for spinal disorder under Table 4, 10 points for tinnitus under Table 11, and 10 points for fibromyalgia under Table 1 (T37/250).·The ARO on 2 June 2015 determined an impairment rating of 30 points – 10 points for fibromyalgia under Table 1, 10 points for inflammatory arthritis under Table 4, and 10 points for tinnitus under Table 11 (T40/257). ·AAT1 on 25 September 2015 assigned an impairment rating of 20 points – 10 points for lumbar spine arthritis under Table 4, 5 points for lower limb impairment (arthritis right ankle, contribution from fibromyalgia, back condition and vertigo) under Table 3, and 5 points for vertigo and tinnitus under Table 11 (T2/9-14).·The respondent contends in the present proceedings that Mr Neasham has a total impairment rating of 20 points – 10 points for inflammatory arthritis under Table 4 and 10 points for fibromyalgia under Table 1 (Exhibit R2 pp 7-11). In relation to impairment of Mr Neasham’s hearing and functions of the ear, the respondent stated:If, contrary to these submissions, the Tribunal finds that the Applicant’s condition does result in an impairment of functioning, it is submitted that a maximum impairment rating of 5 points under Table 11 of the Impairment Tables is appropriate, as determined by the first reviewer (Exhibit R2 p9). Mr Neasham submitted that his impairments should attract a total impairment rating of 60 points – 20 points under Table 1, 20 points under Table 4 and 20 points under Table 11.

Decision

Reasons for decision

Although the Tribunal is satisfied that at the relevant time, Mr Neasham had permanent medical conditions which attracted a combined impairment rating of 25 points, he does not qualify for DSP because he did not satisfy the requirements of continuing inability to work.DECISION For the above reasons, the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

The evidence before the Tribunal comprised: ·The “T Documents” (T1-49, pp 1-351) (Exhibit R1)·Secretary’s Statement of Issues, Facts and Contentions, dated19 February 2016 (Exhibit R2)·Photograph of Mr Neasham (Exhibit R3)·“Wedding DJ Packages” advertisement (Exhibit R4)·Applicant’s Response to the Secretary’s Statement of Issues, Facts and Contentions, dated 17 March 2016 (Exhibit A1)·Mr Neasham email dated 23 November 2015, 6 pages (Exhibit A2)·Additional Information to Exhibit A1, under cover of email dated 13 April 2016 (Exhibit A3)·Mr Neasham email dated 18 March 2016 including Annexes A – P (Exhibit A4)CONSIDERATIONGeneral The Tribunal notes that the previous assessments of Mr Neasham’s impairment rating in relation to the present claim have produced different results:·The JCA report on 30 April 2015 recommended a combined impairment rating of 30 points – 10 points for spinal disorder under Table 4, 10 points for tinnitus under Table 11, and 10 points for fibromyalgia under Table 1 (T37/250).·The ARO on 2 June 2015 determined an impairment rating of 30 points – 10 points for fibromyalgia under Table 1, 10 points for inflammatory arthritis under Table 4, and 10 points for tinnitus under Table 11 (T40/257). ·AAT1 on 25 September 2015 assigned an impairment rating of 20 points – 10 points for lumbar spine arthritis under Table 4, 5 points for lower limb impairment (arthritis right ankle, contribution from fibromyalgia, back condition and vertigo) under Table 3, and 5 points for vertigo and tinnitus under Table 11 (T2/9-14).·The respondent contends in the present proceedings that Mr Neasham has a total impairment rating of 20 points – 10 points for inflammatory arthritis under Table 4 and 10 points for fibromyalgia under Table 1 (Exhibit R2 pp 7-11). In relation to impairment of Mr Neasham’s hearing and functions of the ear, the respondent stated:If, contrary to these submissions, the Tribunal finds that the Applicant’s condition does result in an impairment of functioning, it is submitted that a maximum impairment rating of 5 points under Table 11 of the Impairment Tables is appropriate, as determined by the first reviewer (Exhibit R2 p9). Mr Neasham submitted that his impairments should attract a total impairment rating of 60 points – 20 points under Table 1, 20 points under Table 4 and 20 points under Table 11. The Tribunal now considers Mr Neasham’s medical conditions and their functional impacts.Fibromyalgia The respondent accepts that Mr Neasham’s fibromyalgia was fully diagnosed, treated and stabilised during the relevant period (Exhibit R2 paragraph 5.28). The respondent disagrees with the AAT1 selection of Impairment Table for the assessment of this condition, submitting that Table 1 rather than Table 3 is appropriate (Exhibit R2 paragraph 5.30) The Tribunal agrees, and the relevant assessment in these proceedings is made under Table 1. Having carefully considered the evidence in its entirety, the Tribunal agrees with the respondent that Mr Neasham’s fibromyalgia caused a moderate impairment to the functions requiring physical exertion and stamina. This assessment is supported by:·Dr Torvaldsen’s medical report dated 12 March 2015 which states: “walking restricted to 1 hour” and “unable to work more than about 3-4 hours without a break, more than this causes a major flare up” (T34/208).·In describing the functional impact of Mr Neasham’s fibromyalgia, the JCA report dated 30 April 2015 states:Client experiences frequent symptoms when performing day to day activities around the home and community and due to these symptoms is unable to walk far outside the home and need to drive to community facilities. Has difficulty performing day to day household activities and has a carer who completed ADL (T37/250).·The JCA report also reported that Mr Neasham “continues to work as a DJ” and that his medical condition: “does not prevent them [sic] from using public transport without substantial assistance” (T37/249).·In evidence to the AAT1, Mr Neasham said that he lived by himself and undertook all his own personal care, tried to go for a walk of about 200 metres on most days, and occasionally worked as a disc jockey. The AAT1 decision also detailed the following information provided by Mr Neasham:Was experiencing excessive sleepiness and muscle twitching and he saw neurologist Dr Goodheart, who excluded multiple sclerosis or any other neurological cause for his symptoms.He cannot do any excessive exercise, e.g. on a stationary bicycle, as he experiences burning pain in his legs for hours afterwards. He does use the bike, though, on those days when he has no pre-existing pain in his legs (T2/12).