Nicholas Tobias and Secretary, Department of Social Services
[2013] AATA 740
[2013] AATA 740
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5536
Re
Nicholas Tobias
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 15 October 2013 Place Brisbane The Tribunal:
sets aside the decision under review and substitutes its decision that the start date for payment of the disability support pension to the applicant is 6 April 2009; and
remits the matter to the respondent to determine the amount of arrears (if any) payable to the applicant.
................................[Sgd]........................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Initial claim for newstart allowance – Subsequent claim for disability support pension – Qualifications for disability support pension met at time of initial claim for newstart allowance – Reasonable to treat subsequent claim as made on date of initial claim – Decision set aside – Start date for payment of disability support pension is date of initial claim
LEGISLATION
Social Security Act 1947 (Cth) s 159
Social Security Act 1991 (Cth) s 94, Sch 1B
Social Security (Administration) Act 1999 (Cth) ss 11, 13, 15(4A), 16, 23, 42, Sch 2
CASES
Casarotto and Australia Postal Commission (1989) 17 ALD 321
McDonald v Director-General of Social Security (1984) 6 ALD 6
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Secretary, Department of Employment and Workplace Relations andEdelmann (2007) 93 ALD 689Secretary, Department of Social Security v Cooper (1990) 26 FCR 13
SECONDARY MATERIALS
A Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension
Guide to Social Security Law
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
15 October 2013
THE APPLICATION FOR REVIEW
This matter is concerned with the disability support pension (“DSP”) which is payable under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act1999 (Cth) (“the Administration Act”). Nicholas Tobias (“the applicant”) was granted DSP on 11 May 2012 with effect from 5 April 2012. The applicant questioned the start date and, on 4 July 2012, a Centrelink officer reviewed and affirmed the decision. An authorised review officer reviewed that decision on 2 August 2012 and amended the start date to 10 February 2012. The matter was then reviewed by the Social Security Appeals Tribunal (“SSAT”) which, on 8 November 2012, set aside the decision and amended the start date to 16 December 2011.
BACKGROUND
The applicant suffered a closed head injury in a fall in September 2007. He was discharged from the Princess Alexandra Hospital (“PA”) in November 2007. On 15 October 2007, he contacted Centrelink about making a claim for newstart allowance (“NSA”) which was granted to him with effect from 20 September 2007. On 28 September 2007, the applicant submitted to Centrelink a medical certificate from
Dr Kevin Seow which declared that he was unable to work for 8 hours or more per week from 20 September 2007 until 31 October 2007.[1] The certificate also indicated that the applicant was likely to show considerable improvement within 2 years. On 8 January 2008, he submitted a medical certificate from Dr Richard McLaughlin which declared that he was able to work from 8 January 2008 until 8 April 2008.[2]
[1] Exhibit 1, T-Document 5, p. 22.
[2] Exhibit 1, T-Document 6, p. 23.
On 23 January 2008, a Job Capacity Assessment (“JCA”) report was prepared. It listed the applicant’s medical condition as “brain injury – traumatic” and noted that his doctor had cleared him to return to work.[3] On 20 March 2008, the applicant’s NSA was cancelled because of his income for a period but it was reinstated from 17 April to 15 May 2008. On 6 April 2009, the applicant contacted Centrelink to enquire about claiming NSA, advising that he last worked on 20 December 2008 and had been living on his savings thereafter. He was granted NSA with a start date of 6 April 2009.[4]
[3] Exhibit 1, T-Document 7, p. 25.
[4] Exhibit 1, T-Document 20, p. 131.
On 26 November 2009, the applicant entered an Employment Pathways Plan (“EPP”) in which he agreed to undertake 60 hours of part-time work per fortnight as a concreter from 27 November 2009 until 26 May 2010 and would report his earnings to Centrelink.[5] A further JCA report was completed on 25 May 2010 in which the applicant was noted to have the traumatic brain injury and grand mal epilepsy. On 11 August 2010, he entered into a further EPP where his goals were listed as undertaking study and eventual placement with the New Enterprise Incentive Scheme (“NEIS”) to work as a self‑employed business owner/operator. The EPP indicated that he was currently undertaking NEIS training from 11 August 2010 to 30 September 2010.
[5] Exhibit 4, pp. 1-7.
From 14 October 2010 until 12 October 2011, the applicant operated his own property maintenance business with support and monitoring from a NEIS provider[6] and received the NEIS allowance. On 2 November 2011, the applicant contacted Centrelink about claiming NSA. On 16 December 2011, he contacted Centrelink again about NSA advising that he last worked “about 6 weeks ago” and had worked on the NEIS program until October 2011 and was no longer self-employed.[7] He was granted NSA from 23 December 2011.
[6] The Salvation Army Employment Plus, Labrador.
[7] Exhibit 1, T-Document 21, pp. 206 and 211.
On 26 March 2012, the applicant contacted Centrelink about making a claim for DSP, lodged a medical certificate on 5 April 2012 and first lodged a claim for DSP on 17 April 2012. A JCA report was completed on 4 May 2012. As noted above,[8] the applicant was granted DSP on 11 May 2012 with a start date of 5 April 2012 which has now been backdated to 16 December 2011.
[8] Para 1 (above).
LEGISLATION, ISSUES AND SUBMISSIONS
The qualifications for a disability support pension are set out in s 94 of the Act. It is common ground that the applicant meets the age and residency requirements of that provision. The remaining requirements thereof are whether, at a relevant date, the applicant:
·had a physical, intellectual or psychiatric impairment; and, if so
·had an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act[9] as required by s 94(1)(b) thereof; and, if so
·had a continuing inability to work as required by s 94(1)(c)(i) of the Act.
[9] Though now repealed, it was common ground that these are the Impairment Tables relevant in this matter.
For continuing inability to work, the relevant parts of s 94 of the Act, as referred to by Mr McQuinlan, read:
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) 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) 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 training 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.
(5) In this section:
…
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.”
In order to be paid a social security payment,[10] a written claim must be lodged with Centrelink.[11] The start date for payment is usually the date of claim[12] but an earlier date may be set in certain cases, including that set out in s 15(4A) of the Administration Act which was applied by the SSAT. The provision reads:
15(4A) For the purposes of the social security law, if:
(a) a person makes a claim for an income support payment (the initial claim); and
(b) on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment); and
(c) the person subsequently makes a claim for the other income support payment (the later claim); and
(d) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made the later claim on the day on which the initial claim was made.
[10] As defined in s 23 of the Act to include the disability support pension.
[11] See ss 11 and 16 of the Administration Act.
[12] See s 42 and cl 3 of Sch 2 of the Administration Act.
Mr Andrew Davison, for the applicant submitted that, under that provision, the start date should be 6 April 2009 when the applicant spoke to Centrelink about NSA and which the respondent recognised was a start date for his NSA. He submitted that the continuing effects of his brain injury prevented him from claiming DSP at that time.
He submitted that the applicant’s brain injury was fully treated and stabilised by April 2009 and that, referring to the Introduction to the Impairment Tables,[13] it was “unlikely that there w[ould] be any significant functional improvement, with or without reasonable treatment, within the next 2 years”. He also referred to A Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension[14] (“the DSP Guide”) which provides that “a condition may be considered fully stabilised if such improvement is unlikely to occur within the next two year period”.[15] It also provides that, when assessing work capacity, a person must be considered to be capable of reliably performing the work on a sustainable basis for a reasonable period of 26 weeks.[16]
[13] Para 5; see Para 14 (below).
[14] See Para 13 (below).
[15] At p. 16; see Para 13 (below).
[16] Ibid at p. 6: see Para 13 (below).
He submitted that, even though the applicant undertook work, his condition was such that he had no realistic prospects of gaining any work over a period of 26 weeks.
He submitted that the applicant was unaware of the DSP until his treating doctor,
Dr Koriki Love, advised him of it in April 2012. Mr Davison submitted that the applicant’s circumstances were such that it was reasonable to allocate a DSP start date of 6 April 2009 and that the decision under review should be set aside, accordingly.
Mr Davison referred to and relied upon Re Secretary, Department of Employment and Workplace Relations and Edelmann[17] (“Edelmann”) and Secretary, Department of Social Security v Cooper[18] (“Cooper”).
[17] (2007) 93 ALD 689.
[18] (1990) 26 FCR 13.
For the respondent, Mr Rick McQuinlan submitted that the start date determined by the SSAT was appropriate as the applicant was not qualified for the DSP before
16 December 2011 when he spoke to Centrelink about a claim for NSA. He conceded that the applicant had a physical impairment as a consequence of a head injury sustained in September 2007 but submitted that the required level of 20 points of impairment under the Impairment Tables was not assignable before contacting Centrelink on 16 December 2011. He also submitted that the applicant did not have a continuing inability to work before 16 December 2011. Mr McQuinlan referred to the Guide to Social Security Law (“the Guide”) for what would meet the requirement of reasonableness under s 15(4A) of the Administration Act. He also submitted that, as the applicant was seeking a departure from the usual rules for backdating a start date, there was an onus on him to bring forward evidence which would satisfy the Tribunal that all of the relevant requirements were met.[19] He submitted that the decision ought be affirmed.
[19] Referring to McDonald v Director-General of Social Security (1984) 6 ALD 6; and Casarotto and Australia Postal Commission (1989) 17 ALD 321.
In making their respective decisions and/or submissions, Centrelink officers, the SSAT, Mr Davison and Mr McQuinlan referred to the Guide and/or the DSP Guide. These are published by the respondent to provide assistance to those who administer the Act and the Administration Act. While not bound to apply policy guidelines of the kind referred to in the Guide or the DSP Guide, the Tribunal will usually apply the guidelines unless, unlike the situation here, there are cogent reasons in a particular case for not doing so.[20] No submissions were made against the application of either the Guide or the DSP Guide.
[20] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
The DSP Guide, as referred to by Mr Davison, reads:
page 6
Work is defined in section 94(5) of the Social Security Act 1991. For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.
…
In considering a person’s capacity for “work” as defined, it would be reasonable to expect that they must be capable of reliably performing such work on a sustainable basis, that is, for a reasonable period of time without requiring excessive leave or work absences. A reasonable period of time is taken to be 26 weeks. Further, it would be expected that such work is in open, unsupported employment and that the person does not require excessive support (ie more than what is usually considered reasonable adjustments and/or normal supervision) to perform the work. It is considered that the Tables refer to work in this context with regard to the assessment of work-related impairment.
Page 16
In some situations, even though significant improvement in functional ability and work capacity will occur in time, a condition may be considered fully stabilised if such improvement is unlikely to occur within the next two year period. This may occur with conditions whose natural history suggest slow, gradual improvement or with very severe injuries where recovery is expected to be quite prolonged.
The Introduction to Schedule 1B of the Act provides guidance in the application of the various tables which it contains. Part of that Introduction reads:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.
It was common ground that Table 8 in the Impairment Tables is relevant to the assessment of the applicant’s brain injury. It reads:
Table 8. Neurological Function: Memory, Problem Solving, Decision Making Abilities & Comprehension
Table 8 is used to rate impairment of higher neurological functions of memory, problem solving, decision making ability and comprehension. Loss of function within this group is rated only once using this Table. If there are additional functional losses, these are also assessed using other relevant Tables.
People with acquired brain injury may have associated problems with behaviour and/or insight. These impairments may be rated using both Table 8 and Table 6.
If there is insufficient clinical information available on cognitive function, a current or recent specialist report should be obtained (eg. neurologist, specialist physician or neuropsychologist). The report should address functions of comprehension, memory, ability to concentrate, problem solving, loss of motivation, fatigue or any associated behavioural abnormalities or disorders.
Rating Criteria NIL
Comprehension, reasoning and memory are comparable with peers or only minor difficulties
10
Can understand movies, radio programs or group discussions, but with some difficulty. Comprehension is good in most situations, but understanding is difficult in large groups, or when tired and upset. Has difficulty coping with rapid changes of topic or
Mild impairment of problem solving and ability to concentrate: appropriate use is made of accumulated knowledge, and reasonable judgement is shown in routine daily activities most of the time. Difficulties are apparent in new circumstances or
Mild impairment of memory. Can learn, although at a slower rate than previously. Impairment has little impact on everyday activity because of compensation through reliance on written notes, schedules, checklists and colleagues.
20
Can understand speech face‑to‑face, but confusion or fatigue occurs rapidly in any group. Is unable to cope with rapid change in topic, or with complex topics and is unable to understand a series of work instructions from a supervisor or
Moderate impairment of memory: has frequent difficulty in recalling details of recent experiences; frequently misplaces objects; fails to follow through with intentions or obligations; tends to get lost more easily in unfamiliar areas. Compensation through use of aids, eg, lists or diaries is normally adequate. If restricted to familiar schedules, activities, procedures and areas, is largely independent or
Moderate impairment of problem‑solving ability and ability to concentrate: relies on accumulated knowledge. Suffers significant disadvantage in circumstances requiring complex decision‑making or non‑routine activities, ie, when past decision‑making is not directly relevant. Has reduced initiative/spontaneity, reduced ability to concentrate and/or reduced capacity for abstract thinking or
Significant perceptual problems (visual, space or time) making learning and complying with work tasks very difficult.
30
Can understand only simple sentences, and follow simple sentences from context and gesture, although frequent repetition is needed.
40
Can understand only single words. Shows some understanding of slowly‑spoken simple sentences from context and gesture, although frequent repetition is needed or
Severe loss of problem solving ability. Is partially able to compensate, but unable to function with complete independence.
The issues for the Tribunal are whether the applicant met the qualifications for DSP at any time before 16 December 2011 and, if so, whether it is reasonable to allocate an earlier start date, in particular, 6 April 2009.
EVIDENCE
The applicant
As noted above,[21] the applicant suffered a closed head injury in a fall in September 2007 and was discharged from the PA in November 2007. The applicant realised that he had problems when he left hospital but was unable to accept that he had limitations. The applicant said that he has been hospitalised for epileptic seizures and believes that he has had five such episodes but none since 2010. He has had no treatment for that condition.
[21] See Para 2 (above).
The applicant has always been motivated to find work and, in January 2008, he consulted a doctor who was not fully aware of his history and obtained a medical certificate indicating that he was fit for work. He worked as a barman for four months on one day per week from February 2008, in food preparation at a take-away outlet for four or five weeks in mid-2008, as a low level scaffolder in May and June 2008, and as a rigger on drilling rigs for separate short term periods until towards the end of 2008. The rigger’s job was at several different locations for about two weeks each when he sometimes worked up to 180 hours per fortnight.
The applicant was dismissed from most of his jobs because of his inefficiency. With the rigging work, he was dismissed because he made several breaches of safety requirements. He had saved money while doing the rigging work and lived off his savings for some months before he contacted Centrelink about NSA on 6 April 2009. At that time, he had no knowledge of the DSP and was unaware that he could claim for that benefit. He commenced the NEIS program and began operating a property maintenance business in which he mowed lawns and did cleaning. He sold certain assets, including a car, and purchased the equipment suited to that work. He also had pamphlets and business cards printed for distribution to potential customers. He agreed that he had undertaken, in commencing the NEIS program, to work for 35 hours each week.
The applicant described the business venture as a complete disaster because he barely covered his costs. He had problems with customers even at the basic level of requesting them to pay him for his work. He agreed that, during the period he was running his business, he was the subject of periodic monitoring by NEIS mentoring staff who contacted him by telephone. He said that he always gave the impression to each mentor that everything was going well with the business even though it was not. He did so because he did not want to be deprived of the NEIS payment of $400 per fortnight.
Medical evidence
When the applicant left hospital, a discharge summary was completed on 21 November 2007.[22] Dr Ron Hazelton is the Medical Director of the Brain Management Rehabilitation Unit (“the Unit”) at the PA. He completed a report on 7 May 2013 and gave evidence. Since his hospital discharge, the applicant has seen Dr Hazelton in 2008 and on 3 May 2013. Dr Hazelton said that care should be taken in reading aspects of the discharge summary because it was based on observations made in a clinical setting and not in a workplace environment. The discharge summary contained notes on physiotherapy, occupational therapy and speech therapy. As the medical director of the Unit, Dr Hazelton routinely checks the material in such reports and did so on this occasion.
[22] Exhibit 2, Attachment 1.
In the physiotherapy section of the discharge summary, it was noted that, in a physical sense, the applicant displayed no defects and did not require physiotherapy.
In the occupational therapy section, the applicant was described, behaviourally, as being cooperative but in need of prompting to remain on task if distractions were present.
He was noted to offer inappropriate comments to staff and would interrupt the sessions of other patients. Reduced frustration tolerance was noted, as was an incident of violence with another patient requiring staff intervention. He was able to sustain attention to single cognitive tasks for approximately 30 to 40 minutes but demonstrated reduced divided attention in practical tasks and would become distracted by environmental stimuli.
His day to day memory was reliable and his remote memory was intact. He displayed a mild functional memory loss over a 20 minute period and made inconsistent errors during assessment in terms of visual and auditory recall. He displayed reduced attention to detail of instruction/question which impacted on his performance in memory tasks. He is described as meeting the requirements in the assessment of performance speed and accuracy in simulated work component samples compared against a competitive work rate. The applicant was described as being independent in self-care but was not cleared to return to work or for driving.
In the speech therapy section of the report, it was noted that communication and language tests revealed “mild-moderate high level cognitive learning difficulties, especially in areas of auditory paragraph comprehension, divergent naming and confrontation naming”. Tests also demonstrated reduced pragmatic awareness and skills, including verbosity, reduced topic maintenance, reduced volume control and inappropriate comments. The report described basic language as intact and his high level language skills adequate for a work environment though he continued to display reduced pragmatic skills related to difficulties with frustration/anger management.
Dr Hazelton said that the discharge summary was completed by a PA registrar and PA interns and that it was a very broad assessment which should be used only as a guide.
Dr Hazelton reviewed the applicant at the PA on 3 May 3013. In his report, Dr Hazelton wrote:[23]
He wishes to claim for [sic] Centrelink and, given his long history of poor community functioning with mental health concerns, it is unlikely that he could have returned to regular paid employment by April, 2009 .i.e. 18 months post injury on a sustainable basis working at least 15 hours per week within two years even with further treatment.
Mr Tobias will require long-term disability support for his brain injury and mental health disorder.
[23] Exhibit 3.
Dr Hazelton said that his tests in May 2013 revealed the applicant had reduced attention in everyday activities due to his problems with short memory, time management and organising skills. He also described reduced social communication skills and pragmatics such as eye contact with others and turn-taking, as well as increased egocentric behaviour. These problems reflected an inability to follow instructions or to provide an explanation of something to others. His opinion was that the applicant appeared well physically but, once the surface is scratched, his disabilities are revealed and are such that, even though he may find employment, his problems would soon emerge and he was incapable of retaining employment for more than a short time. Dr Hazelton was aware that the applicant had been employed in several jobs. He described the applicant as being highly motivated to work but as lacking, because of his brain injury, any realistic insight into his limitations. He noted that the applicant had remained in any one job for only a short period and was then dismissed.
Dr Hazelton concluded that the applicant was very unlikely to obtain long term employment in the open market as he would need a “job coach” to monitor him at all times. He considered the difficulty to be compounded by the applicant being unskilled and that, while working, say, in a factory might be an option for him initially, he would not be able to sustain this. When advised that the applicant had commenced a property maintenance business with the assistance of Centrelink through the NEIS program, he was not surprised by the applicant’s inability to make that a success. Dr Hazelton’s opinion was that the applicant had shown a certain degree of recovery through treatment at the PA but that the problems he has now have remained with him since being discharged from the PA.
The medical certificate, dated 8 January 2008, from Dr Mclaughlan was in evidence. It declared that the applicant was able to work from January to April 2008 due to his recovery from a brain injury. Also in evidence were reports, dated 30 March 2012 and 5 April 2012, from treating doctors Dr Sergey Bromberg and Dr Love, respectively.
Dr Bromberg described the applicant as unable to work until 30 June 2012.[24] Dr Love described “problems with decision making and concentration” and “limited cognitive function” which was expected to persist for more than two years.[25]
[24] Exhibit 1, T-Document 12, p. 38.
[25] Exhibit 1, T-Document 14, pp. 45-46.
JCA reports
These were completed on 23 January 2008, 25 May 2010, 3 April 2012, 4 May 2012 and 31 October 2012.
Dr McLaughlin’s report was the focus in the first JCA report. This declared that the applicant was fully recovered from his brain injury which was permanent in the sense that it was fully diagnosed, treated and stabilised and required no further intervention. The reporter described a work capacity of 15-22 hours per week.[26]
[26] Exhibit 1, T-Document 7, p. 26.
In the second report,[27] the applicant was noted to have memory problems and to have suffered four seizures for which he had no treatment. The applicant was noted to be keen to commence a NEIS program so that he could commence a property maintenance business. The reporter described two conditions i.e. grand mal epilepsy and traumatic brain injury, neither of which was fully diagnosed, treated and stabilised. He was assessed as having a temporary work capacity of 15-22 hours per week and a future work capacity of 30+ hours per week.
[27] Exhibit 1, T-Document 8, pp. 30-34.
In the third report, the applicant’s brain condition was described as temporary and he was assessed as having a baseline work capacity of 15-22 hours per week.[28] In the other two JCA reports, the applicant’s condition was found to be permanent with an impairment rating of 20 points,[29] a baseline work capacity of 0-7 hours per week and a future work capacity of less than 15 hours per week.[30]
[28] Exhibit 1, T-Document 13, pp. 39-43.
[29] This was an assessment under Table 7 of the current Impairment Tables: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
[30] Exhibit 1, T-Documents 16, 19, pp. 78-82, 94-97.
Centrelink records
In evidence was the record of the applicant’s employment in 2008:[31]
·from 23 February 2008 until 30 June 2008 with the Gold Coast Turf Club;
·from 25 February 2008 until 18 April 2008 by HRC International (AU2) Pty Ltd;
·from 8 May 2008 until 30 June 2008 by Hinterland Scaffolding Pty Ltd;
·from 3 July 2008 until 7 December 2008 by Easternwell Drilling Labour Hire Pty Ltd; and
·from 3 July until 16 September 2008 by the Trustee for the Campbell Property Trust.
[31] Exhibit 4, Attachment D.
Also in evidence were Centrelink’s records of the applicant’s earnings, obtained from the Australia Taxation Office. These show that the applicant earned:[32]
·$10,345 in the year ended 30 June 2008;
·$34,139 in the year ended 30 June 2009;
·$2,279 in the year ended 30 June 2010;
·$0 in the year ended 30 June 2011.
[32] Exhibit 4, Attachment D.
In a letter, dated 13 August 2013,[33] the NEIS Payroll Manager, John Ballantyne, provided information about the NEIS program and the applicant’s involvement in it. He described it as a 13 week Centrelink approved activity during which time the job seekers complete the NEIS training, develop a NEIS business plan and undertake final preparations prior to starting an approved business in which they are required to work for 35 hours per week. An application to participate in the NEIS program was completed by the applicant on 2 July 2010. He declared that he would take part in small business training and work in a “Property Maintenance & Care Taking” business on a full-time basis of 35 hours per week.[34] He also stated that that he was medically capable of working in the business. A NEIS Eligibility Certification form was completed on 4 October 2010 by a NEIS provider’s officer who declared that the applicant’s business plan had been assessed and approved against the eligibility criteria.
[33] Ibid at Attachment C.
[34] Exhibit 6.
Mr Ballantyne noted that the applicant participated in the NEIS program from 14 October 2010 until 12 October 2011. Copies of records completed by NEIS mentors were attached to the letter. The dates of consultations are set out below with summaries of relevant comments:
·4 November 2010: business is up and running; six regular customers; distributing flyers; plans to offer free water blast of wheelie bin to customers who refer him to a new customer as incentive; targeting referrals, which virtually no business really does.
·14 December 2010: looking to tender for local government roadside grass cutting; business running well at the moment, saving money each week; on target this quarter.
·7 February 2011: due to purchase of equipment, first quarter costs may exceed income; good earnings still coming in; will work with bookkeeper to bring earnings vs payments up to date; feeling a little out of control currently.
·15 June 2011: doing insurance/flood work; good money and regular; Magnetic Island currently; getting help with his book work; now feels more in control; mostly doing maintenance, odd jobs, cleaning, working in hotels; doing well now.
·27 July 2011: on Magnetic Island doing flood restitution insurance work, mainly water blasting, downside being delay in payment; has approximately $6,500 due to him very shortly; has another contract worth $3,500; has picked up a pool cleaning contract three times per week; things are going okay for him - not making a fortune but running a viable business.
Another attachment shows that the applicant was suspended from the program in September 2011 for failing to renew his insurance arrangements and for failing to lodge relevant returns.
CONSIDERATION
Impairment
The applicant gave his evidence in a straightforward and credible manner though I am satisfied that he demonstrated some of the characteristics described by Dr Hazelton. These included difficulty in comprehending questions asked of him, in expressing himself and in providing clear explanations as well as hesitancy and frequent inappropriate laughter. Nonetheless, I am satisfied that he was a witness of truth whose evidence I accept. I accept that he obtained the medical certificate from Dr McLaughlin without revealing the extent of his problems and that he did this because of a strong motivation to get back to work. That is significant because, as at 6 April 2009, the only evidence in relation to the level of impairment referable to the applicant’s brain injury comprised the report of Dr McLaughlin, the first JCA report which relied upon that report and the PA discharge summary. Dr Hazelton’s opinion had not been obtained by then though, clearly, he had treated the applicant at the PA and had seen him in 2008.
The Introduction to the Impairment Tables refers to assessments being made on the best available evidence.[35] However, the Introduction also casts an obligation on assessors to investigate a claimant’s situation. In that regard, paragraph 4 reads:
Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
[35] See Paras 4-6 (see above at Para 14).
Also, Table 8 of the Impairment Tables includes the following comment:[36]
If there is insufficient clinical information available on cognitive function, a current or recent specialist report should be obtained (eg. neurologist, specialist physician or neuropsychologist). The report should address functions of comprehension, memory, ability to concentrate, problem solving, loss of motivation, fatigue or any associated behavioural abnormalities or disorders.
[36] See Para 15 (above).
If the applicant had claimed DSP in April 2009, his circumstances would have been investigated and it is probable that the opinion of Dr Hazelton would have been obtained. He treated the applicant at the PA in 2007 and saw him in May 2008. His evidence contradicts the benign view presented in Dr McLaughlin’s report and is much less optimistic than the opinions set out by the reporters in the PA discharge summary. Significantly, Dr Hazelton’s opinion was that the applicant’s current problems have been with him since his discharge from the PA. Those problems were assessed in the JCA reports completed in May 2012 and October 2012 as satisfying the criteria at 20 points in Table 7, which relates to brain function, in the current Impairment Tables. The respondent accepted the JCA report of May 2012 as evidence that the applicant met the impairment criterion for DSP. The criteria in that Table at the 20 point level are:
There is a severe functional impact resulting from a neurological or cognitive condition.
(1) The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:
(a) memory;
Example 1: The person is unable to remember routines, regular tasks and instructions.
Example 2: The person has difficulty recalling events of the past few days.
Example 3: The person gets easily lost in unfamiliar places
(b) attention and concentration;
Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes.
Example 2: The person is easily distracted from any task.
(c) problem solving;
Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice.
(d) planning;
Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip).
(e) decision making;
Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks.
(g) visuo-spatial function;
Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects).
(h) behavioural regulation;
Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.
(j) self awareness;
Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.
That description is not materially different from that at the 20 point level in Table 8 of the earlier Impairment Tables which are applicable in this matter. Dr Hazelton’s specialist opinion was not used in the preparation of any of the JCA reports but, as noted above, his opinion was that the applicant’s impairment from his brain injury remains the same as at the time of his discharge from the PA. As to its permanence, Para 5 of the Introduction to the Impairment Tables reads:
Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
I am satisfied that the applicant’s condition was permanent as at the date when he contacted Centrelink about his claim for NSA in April 2009 and that it met the criteria at the 20 points level in Table 8 of the Impairment Tables at that time.
Work capacity
The applicant did not dispute the periods of employment or the levels of his earnings put forward by the respondent.[37] I am satisfied that they are correct. The fact that the applicant has been engaged in remunerative work does not necessarily preclude him from satisfying the work component of s 94 of the Act. In Edelmann,[38] the DSP recipient suffered, in July 1995, a head injury with consequential memory loss, impaired cognitive function and left-sided weakness. He was paid DSP for several months until he returned to his full time work as a bus driver for about 12 months before he resigned. He also worked for a short time delivering pizzas. In both cases, he ceased work because of the effects of his head injury, in particular, extreme fatigue. On 5 May 1997, he lodged a claim for and was granted NSA. He worked from March 1998 to May 1998. On 25 May 1998, he lodged a further claim for and was granted NSA. He again lodged a claim for DSP on 25 May 1999 resulted in that benefit being paid to him for a period from 13 May 1999. On 2 August 2005, he requested that his NSA claim of 5 May 1997 be treated as a claim for DSP. The Tribunal found that Mr Edelmann was qualified for DSP from May 1997 and, in relation to his employment after his injury, said:[39]
We take into account that, although Mr Edelmann was able to retain his job with the STA for some months after the assault, he was no longer able to perform his duties satisfactorily and could not meet the demands of the workplace. Despite his desire to work, he was no longer fit to perform the duties the job of bus driver required. We also accept his evidence that he had trouble holding down a job as a pizza delivery driver because of his chronic tiredness brought on by his injuries.
[37] See Paras 33 and 34 (above).
[38] (2007) 93 ALD 689.
[39] (2007) 93 ALD 689 at [46].
The applicant’s employment has comprised a series of short term positions as well as a period in his property maintenance business. A consideration of his property maintenance business requires reference to the whole of his involvement in the NEIS program. Some aspects of this are unclear. Mr Ballantyne’s letter did not assist in relation to the training period. Unfortunately, the applicant’s evidence of this was of little assistance as he could not remember the nature or extent of his preliminary training, recalling only that he was in a classroom for one day. Yet, he was awarded the relevant certificate for the preliminary training. He was able to provide only general comment about his business such as selling assets and borrowing $10,000 to obtain a capital sum of $30,000 with which to purchase equipment and to obtain promotional materials, all of which, apparently, was consumed by the business. He recalled that he often was not paid for his work and that his accountant was able to recover some outstanding payments. I am satisfied that the applicant’s memory problems, associated with his brain injury, played an important role in his inability to provide details of his involvement with the NEIS program. I note that his income for the year ending 30 June 2011, which included the majority of his business activity, was nil.
Clearly, the favourable comments contained in the reports of NEIS mentors were expressions of hope for the future rather than accurate reflections of the applicant’s capacity to run that business. The potential for the applicant to have difficulty in doing so is reflected in some of the mentors’ comments: in November 2010, he had six regular customers and was applying a referral approach “which virtually no business really does”; in December 2010, he was looking to tender for local government work; in February 2011, costs may exceed income, will work with bookkeeper, feeling a little out of control currently; in June 2011, getting help with book work, feels more in control; in July 2011, approximately $6,500 due to him, not making a fortune but running a viable business. The applicant did not run a successful business as part of the NEIS program. Dr Hazelton’s opinion was that this was no surprise because the effects of his brain injury would have prevented him from doing so. In particular, he referred to his impaired memory problems and impaired communication skills which would interfere with his capacity to interact with customers.
Dr Hazelton’s evidence was unequivocal about the applicant’s capacity to maintain an employed position for any length of time or to run a business. I accept his evidence that each cessation of the applicant’s work, including that relating to the business, was related to the consequences of his brain injury.
The DSP Guide provides that, in considering capacity for work, the person must be capable of reliably performing open, unsupported employment on a sustainable basis “for a reasonable period” which it takes to be 26 weeks.[40] I am satisfied that the applicant did not have that capacity in April 2009 or thereafter.
[40] See Para 13 (above).
Qualifications for DSP
I am satisfied that the applicant meets the requirements of s 94 of the Act and that he did so on 6 April 2009 when he contacted Centrelink about claiming NSA. In so finding, I have noted the authorities referred to by Mr McQuinlan and accept his submission that the applicant was obliged to adduce relevant evidence in support of his case. Clearly, this was done with the evidence of Dr Hazelton whose evidence was material to the decision I have made and was not previously utilised.
Reasonableness of applying s 15(4A) of the Administration Act
The finding that the applicant was qualified for DSP on and from 6 April 2009 when he claimed NSA does not, in itself, result in payment of the DSP from that date. Additionally, under s 15(4A)(d) of the Administration Act, it must be reasonable for the provision to be applied. In that regard, the Guide at 8.1.1.75 reads:
Where it is reasonable for the delegate to apply this provision
A delegate may apply the inappropriate claim provision in the SS(Admin)Act when a person makes an 'initial inappropriate claim' for an income support payment or a supplementary payment under the social security law, or under an Act or program other than under the social security law and then some time later makes a 'later claim' for a different payment under the social security law for which the person was qualified.
If this is the case, the delegate may determine that the person has made a claim for the more appropriate payment under the social security law on the day on which the person made the initial claim (section 15(4)).
In deciding whether it is reasonable to apply this provision, the delegate should consider the following factors:
·the initial claim and the later claim have to be similar in character: if the initial claim was for an income support payment, then the later claim must also be for an income support payment.
·the person must have been qualified to receive the later payment at the time that he or she claimed the initial payment,
·whether the person will be disadvantaged by receiving the later payment, and if so, the person should be informed of this (and therefore the person may wish to remain on the initial payment).
…
Start day of the second (later) payment
Under this provision, the later claim is taken to have been made on the day on which the initial (inappropriate) claim was made. However, the start day backdating rules should be checked in case an earlier start day is possible.
Qualification throughout the relevant period
In order for payments to be backdated, delegates must consider whether all qualifications for the second (later) payment are met throughout the period of time between the initial and later claims.
Time between initial & second claims
Delegates should take particular care when there is a gap of more than 13 weeks between the making of the initial claim and the later claim. In these cases, the person would need to display acceptable reasons why he or she did not lodge the second claim within 13 weeks of lodging the first (see examples below).
Examples of acceptable reasons to allow the later payment when claim lodged more than 13 weeks after lodging the initial (inappropriate) claim
Example 1: If this Department or another Department has taken more than 13 weeks to decide that the person is not qualified for the payment that was subject of the initial claim,
Example 2: If this Department or another Department has reviewed the person's documentation at the time of the initial lodgement and has mistakenly or inadvertently paid the person an incorrect or inappropriate benefit and the delegate only discovers this error after 13 weeks have elapsed:
If the inappropriate claim (first claim) results in the person owing a debt to Centrelink, depending on the circumstances, consideration should be given to waiving the debt.
If the inappropriate claim (first claim) results in the person being owed a sum of money, the person should be paid this sum. The person's records should then be corrected so that the correct benefit is paid in the future.
Example 3: If the person could not lodge the later claim because they were hospitalised or immobilised by a medical condition or impairment.
I am satisfied that the three factors listed in that section of the Guide are met and that regard must be had to the “time between initial & second claims”. The Guide requires acceptable reasons for non-lodgement of the second claim within 13 weeks of lodging the initial claim. No other time-frame limitation is referred to. The period between the initial claim and the second claim in the applicant’s case is in the order of three years. In Edelmann, the Tribunal acceded to the backdating request and, in relation to the reasonableness of doing so in the context of s 15(4A) of the Administration Act, said:[41]
We agree with the submission that the nature of Mr Edelmann’s medical condition and his related inability to manage his affairs and understand or accept the nature and extent of his disability excuses the delay which occurred. It was the very condition that qualified him for DSP that led to his failure to pursue a claim for DSP in 1997.
[41] (2007) 93 ALD 689 at [49].
The applicant’s circumstances are not dissimilar from those in Edelmann. I accept his evidence that he was unaware of the right to claim DSP until he was advised by Dr Love to do so. Dr Hazelton’s opinion was that one of the consequences of the applicant’s brain injury has been a lack of insight into his limitations and I am satisfied that the consequences of his brain injury, which included unrealistic expectations of his work capacity and lack of proper insight into his situation, were major contributors to the delay in making his DSP claim.
In Cooper,[42] the Full Federal Court was concerned with s 159(5) of the now repealed Social Security Act 1947 (Cth) which is not materially different from s 15(4A) of the Administration Act and said:
In construing it, importance should be attached to the fact that it operates by way of extension of the benefits conferred by beneficial legislation. It should be construed generously so that the palliation it offers of any rigidity in ss 158 and 159 may be fruitful in favour of the disadvantaged persons with whose claims it is concerned. Its language should be applied, in accordance with the obvious intent, so that, if possible, a benefit which ought to have been received shall not be excluded by the failure of a disadvantaged person to put in the "right" claim in a technical sense. To construe the words of the subsection in a narrowly technical spirit would be quite perversely contrary to its evident purpose. It is intended to overcome technicality and to have as broad an operation as its language will allow.
[42] (1990) 26 FCR 13 at 18.
The terms of s 15(4A)(d) of the Administration Act require that it be reasonable to apply the provision. The Guide does not require special circumstances but, rather, acceptable reasons for the delay. I consider that the applicant’s situation is akin to that given as example 3 in the DSP Guide.[43] Bearing the sentiment expressed in Cooper in mind, I am satisfied that the applicant has demonstrated acceptable reasons for his DSP claim to be backdated to 6 April 2009, which was a date set by Centrelink for the start of his NSA.[44]
[43] See Para 50 (above).
[44] See s 13 of the Administration Act.
DECISION
The Tribunal sets aside the decision under review and substitutes its decision that the start date for payment of the DSP to the applicant is 6 April 2009 and remits the matter to the respondent to determine the amount of arrears (if any) payable to the applicant.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
.................................[Sgd]......................................
Associate
Dated 15 October 2013
Date of hearing 19 September 2013 Solicitor for the Applicant Mr A Davison, Welfare Rights Centre Inc. Solicitor for the Respondent Mr R McQuinlan, Departmental Advocate
Key Legal Topics
Areas of Law
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Administrative Law
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Social Security Law
Legal Concepts
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Judicial Review
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Administrative Decisions (Administrative Appeals Tribunal Act)
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Disability Support Pension
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Impairment Rating
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Causation
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Limitation Periods
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