Nitesh Kumar and Secretary, Department of Social Services
[2014] AATA 442
[2014] AATA 442
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0271
Re
Nitesh Kumar
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 3 July 2014 Place Brisbane The Tribunal affirms the decision under review.
........................Sgd............................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Applicant in receipt of Newstart Allowance - Claim for disability support pension – Applicant not suffering severe impairment – Applicant required to undertake a program of support – Program of support not undertaken - Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 94, 94A, 94B, 94C
Social Security (Administration) Act 1999 (Cth) Sch 2, cls 3, 4
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law
Guide to the Tables for the Assessment of Work-related Impairment for Disability Support Pension
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
3 July 2014
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). Mr Nitesh Kumar (“the applicant”) applied for DSP on 1 May 2013. On 5 August 2013, a Centrelink officer rejected his claim. An authorised review officer affirmed that decision on 20 August 2013 as did the Social Security Appeals Tribunal on 12 December 2013.
BACKGROUND
The applicant suffers from bilateral knee conditions and a spinal disorder. These were assessed in a Job Capacity Assessment (“JCA”) Report dated 24 July 2013. The
JCA assessor’s opinion was that the impairment from the applicant’s conditions each satisfied the 10 point level in Tables 3 and 4, respectively, in the Impairment Tables in the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the Determination”). The correctness of those ratings was conceded by the applicant and by Mr Rick McQuinlan who appeared for the respondent. I am satisfied that those concessions were properly made. It is not disputed that, taken together, those ratings give the applicant a combined rating of 20 points.
The qualifications for a DSP are set out in s 94 of the Act. It is common ground that the applicant meets the age, residency and impairment requirements of that provision. The remaining requirement thereof is whether, at a relevant date, the applicant had a continuing inability to work as required by s 94(1)(c)(i) of the Act.
For continuing inability to work, the relevant parts of s 94 of the Act read:
(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
…
(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.
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
…
(5) In this section:
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre‑vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work‑related training (including on‑the‑job training).
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.
Other provisions relied upon by the applicant read:
94A Participation requirements
(1) The participation requirements are as follows:
(a) the person must enter into a participation plan when the person is required by the Secretary under section 94B to do so;
(b) if a participation plan is in force in relation to the person—the person must enter into another participation plan (instead of the existing one) if required by the Secretary under section 94B to do so;
(c) while a participation plan is in force in relation to the person, the person must comply with the requirements in the plan.
(2) However, this section does not apply to the person during a period when the person is covered by a participation exemption under section 94C, 94D, 94E or 94F.
94B Participation plans
(1) If a participation plan is not in force in relation to the person, the Secretary may require the person to enter into a participation plan under this section.
(2) If a participation plan is in force in relation to the person, the Secretary may require the person to enter into another participation plan instead of the existing one.
Notice of requirement
(3) The Secretary is to give the person notice of:
(a) the requirement; and
(b) the place and time at which the participation plan is to be entered into.
Suitable requirements
(4) A participation plan that is in force in relation to a person must contain one or more terms (the requirements) that:
(a) the person is required to comply with; and
(b) the Secretary regards as suitable for the person.
Approval of requirements
(5) The requirements in a plan are to be approved by the Secretary.
Optional terms
(6) A participation plan may also contain one or more terms that the person may, but is not required to, comply with.
Form of plan
(7) A participation plan must be in a form approved by the Secretary.
94C Illness or accident
(1) A person is covered by a participation exemption if the Secretary is satisfied that the person is temporarily unable to meet the participation requirements because of illness or an accident.
(2) The person is covered by the participation exemption for a period determined by the Secretary.
(3) In deciding whether he or she is satisfied as mentioned in subsection (1), the Secretary may request the person to give the Secretary a certificate from a medical practitioner.
(4) Subsection (3) does not limit subsection (1).
(5) A determination under subsection (2) is not a legislative instrument.
To qualify for a DSP, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[1] In the applicant’s case, that period is from 1 May 2013 until 22 August 2013 (“the relevant period”). The issue for determination is whether the applicant is required to undertake a program of support (“POS”) and, if so, whether he satisfies that requirement.
[1] See Sch 2, cls 3 and 4 of the Social Security (Administration) Act 1999 (Cth).
SUBMISSIONS
The applicant submitted that he has endeavoured for years to participate in a POS but has been thwarted in doing so by Centrelink officers. He attended appointments with a
Job Service Provider, Mission Australia Employment Solutions (“Mission Australia”), and contended that this should be treated as a POS. Alternatively, he submitted that a return to work program he had undertaken in New South Wales as a part of his rehabilitation under that State’s compensation legislation should be treated by Centrelink as a POS for the purposes of the Act. Further, he submitted that medical certificates he had provided to Centrelink would be sufficient to excuse him from completing a POS. Other matters raised by the applicant were that s 94C of the Act operated to excuse him from undertaking a POS and that the Secretary should exercise his discretion to grant him the DSP.
For the respondent, Mr Rick McQuinlan submitted that the applicant did not have a serious impairment and that, in order to meet the work test, he had to undertake a POS of 18 months duration in the three years preceding the date of his claim. Mr McQuinlan noted that, in the three years preceding his claim, the applicant was referred to Stream 1 and Stream 2 services, both of which are POS programs. However, he also noted that the applicant attended these for a period of less than three months and not for the required
18 months. He was aware that the applicant had produced medical certificates to Centrelink to indicate that he was unfit for work. He submitted that these had no role to play in relation to involvement in a POS. He submitted that the applicant had been in receipt of Newstart Allowance leading up to making his DSP claim and that the certificates related to excusing him from engaging in job search activities for
Newstart Allowance purposes. He also noted that the applicant had been involved in a return to work program in New South Wales as part of a workers compensation arrangement following his experiencing work-place injuries. Again, he submitted that this had no relevance to a POS. Mr McQuinlan submitted that the applicant had not completed a POS as he was required to do and that, accordingly, he did not meet the qualifying criteria for the DSP. He submitted that the decision under review ought be affirmed.
CONSIDERATION
Under s 94(2)(aa) of the Act, the applicant will be required to actively participate in a POS if he is not severely impaired. Under s 94(3B) of the Act, severe impairment arises if the impairment is of 20 points or more under a single Impairment Table. That is not the case with the applicant who has two separate ratings of 10 points. What constitutes a POS is set out above in s 94(5) of the Act. Under s 94(3C) of the Act, the applicant will have actively participated in a POS if he has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
Part 2 of the Determination sets out the requirements for active participation in the following way
5. Requirements for active participation
(1) A person has actively participated in a program of support if:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the 36 months ending immediately before the relevant date of claim; and
(b) subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and
(c) subsection (6) is satisfied in relation to the person and the program of support.
(2) This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.
(3) This subsection is satisfied in relation to a person and a program of support if:
(a) the duration of the program of support was less than 18 months; and
(b) the person completed the program.
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the relevant date of claim; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the relevant date of claim, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.
(6) This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following in relation to the program of support:
(a) the details of the designated provider of the program;
(b) the dates when the person began the program and, if applicable, ceased the program;
(c) the reason for ceasing the program (if any);
(d) any period of non-participation in the program including exemptions, reliefs, or suspensions from the program;
(e) the reason for any period of non-participation in the program;
(f) the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;
(g) the terms with which the person had to comply in order to satisfy the program requirements and the level of compliance with those terms;
(h) the vocational, rehabilitation or employment activities the person participated in as a part of the program;
(i) the frequency of contact that the person had with the designated provider of the program.
Part 3 of the Determination sets out Guidelines to be applied when determining whether a person has actively participated in a POS. It reads:
6. Program of support
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:
(a) was provided by a designated provider; and
(b) was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and
(c) provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment (including self- employment); and
(d) includes at least one of the following activities;
(i) job search;
(ii) job preparation;
(iii) education and training;
(iv) work experience;
(v) employment;
(vi) return to work;
(vii) vocational or occupational rehabilitation;
(viii) injury management;
(ix) an activity designed to assist the person to return to, maintain or obtain employment.
The meaning of active participation is also dealt with in the Guide to Social Security Law (“the Guide”). The Guide is published by the respondent to provide assistance to those who administer the Act. While not bound to apply policy instructions of the kind referred to in the 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.[2] In s 3.6.2.112 of the Guide, reference is made to periods of disengagement from a POS. It reads:
Generally, a person will be required to have participated for 18 months within the 36 months immediately prior to claiming DSP. Periods in which the person is disengaged from a program due to non-compliance with the program requirements, exemption or relief are not regarded as, and do not count towards, active participation. Any such periods will reduce the time counted as active participation for any POS the person has undertaken, however, this does not mean the whole program is to be disregarded.
[2] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
The applicant was a taxi driver in Sydney. He last worked as such in August 2011. From January 2001 until December 2012, he received payments from the Workers Compensation Commission of New South Wales in accordance with the
Workplace Injury Management and Workers Compensation Act 1998(NSW). In those
12 years, he said, he was engaged in a return to work program, details of which were set out in a Return to Work Plan, dated 24 September 2001. Therein, the goal of the program is given as:
For Mr Kumar to return to his pre-injury duties as a casual taxi driver with Legion Cabs P/L in a part time / pre injury capacity.
The agreed arrangement with the applicant was that he undertake the night shift from 3:00 pm to 3:00 am and that he be provided with a coccyx relief cushion. His evidence was that he reported to work when he was able to and would contact the cab company if he was not well enough to do so. The Return to Work Plan does not support the applicant’s evidence that it was of 12 years duration. In specific terms, it gives the dates of the program. There were two separate phases, each of two weeks duration from
24 September 2001 to 5 October 2001 and from 8 October 2001 to 19 October 2001.
I am satisfied that this Return to Work Plan in New South Wales does not constitute a POS. It was not provided by a designated provider but, even if it were, the duration was clearly stated to be four weeks and not the required 18 months.
In evidence were documents sent to the applicant by Mission Australia, the applicant’s Job Search Provider. These related to his seeking work whilst in receipt of the Newstart Allowance from Centrelink. They advised the applicant of appointment times with that organisation. His initial appointment was on Wednesday 14 March 2012 and subsequent appointments were advised for 2 April 2012, 3 May 2012, 15 May 2012, 16 May 2012, 17 May 2012, 4 June 2012, 31 July 2012, and 2 October 2012. The applicant moved from New South Wales to Queensland and a different Job Search Provider, Link Personnel, advised him of an appointment on 16 January 2014. The applicant’s evidence was that he attended few of those appointments but usually contacted the relevant organisation and advised that he had medical certificates to excuse him from seeking employment. When he attended, the officer with whom he spoke advised that he was excused from participating because of medical certificates held by Centrelink. However, he said that, on one such occasion with Mission Australia, he was provided with an appointment card which advised that he would be contacted by a person called “Van”. A copy of that card, which is undated, was in evidence. The applicant said that Van did not contact him. With Link Personnel, the applicant said that he enquired about being placed in a POS but was advised that he was not eligible because the JCA assessor had concluded that he had a capacity to work for only 0 to 7 hours per week.
The applicant’s dealings with the Job Search providers were concerned with his continuing qualification for Newstart Allowance. They did not relate to a POS. The applicant referred to his lodgement of many medical certificates to exempt him from participating in a POS. In evidence were Workcover NSW Medical Certificates dated
13 July 2011, 16 August 2011, 30 September 2011, 30 November 2011,
30 January 2012, 30 March 2012, 30 April 2012, 30 May 2012, 30 July 2012, and
18 September 2012 as well as Centrelink Medical Certificates dated 24 September 2012 and 12 November 2012. Each of those certified that the applicant was unfit for work for stated periods. However, while these may have had relevance to exemption from the activity test for Newstart Allowance, they could not excuse him from actively participating in a POS. This is provided for in s 3.6.2.112 of the Guide which is set out above.
As I understand it, the applicant’s reference to being excused by the Secretary is based on his medical certificates. I have determined that the medical certificates do not assist the applicant in that manner. There are exemptions from the requirement of actively participating for the required 18 month period in a POS. These are set out above in Part 2 under ss 5(2), (3), (4), (5) of the Determination. None of those grounds for exemption was raised by the applicant and I am satisfied that these have no application in this matter.
The applicant relied upon s 94C of the Act which refers to exemption for illness. However, that provision, which is set out above, is not concerned with a POS. Rather, it relates to participation plans made under ss 94A and 94B of the Act.
The applicant has not complied with the provisions of the Act which require that he undertake a POS in order to establish that he has a continuing inability to work. He does not qualify under s 94 of the Act for the disability support pension.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member .........................Sgd...........................................
Associate
Dated 3 July 2014
Date of hearing 18 June 2014 Applicant In person Advocate for the Respondent Rick McQuinlan, Department of Human Services
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