Noall and Secretary, Department of Social Services (Social services second review)
[2016] AATA 509
•20 July 2016
Noall and Secretary, Department of Social Services (Social services second review) [2016] AATA 509 ( 20 July 2016)
Division
GENERAL DIVISION
File Number
2015/1051
Re
Christopher Noall
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 20 July 2016 Place Melbourne The Tribunal sets aside the decision under review and substitutes its decision that Mr Noall satisfied the requirements of s 94 of the Social Security Act 1991 as at the date of claim on 11 June 2014.
......................................[sgd]..................................
Miss E A Shanahan, Member
SOCIAL SECURITY – application for disability support pension – impairment rating of 35 points – severe disability definition not met – continuing incapacity for work – program of support not undertaken – rejected by Job Services Australia for program of support schemes – impairment rating for pulmonary disease questionably underrated – decision set aside and substituted – Applicant qualified for disability support pension as of 30 July 2014.
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
Cases
Re O’Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277
Re Mongan and Secretary, Department of Social Services [2016] AATA 344Re Malcolm and Secretary, Department of Social Services [2016] AATA 440
Secondary Materials
Department of Human Services, Guide to Social Security Law
REASONS FOR DECISION
Miss E A Shanahan, Member
Mr Noall lodged a claim for a disability support pension (DSP) on 11 June 2014. His general practitioner, Dr Mark Glasman, provided a medical certificate attesting to Mr Noall’s diagnoses of widespread osteoarthritis, chronic obstructive pulmonary disease and asthma. All of Mr Noall’s conditions were said to be permanent and likely to deteriorate within the next two years. Dr Glasman stated that Mr Noall could not perform any work for eight or more hours per week. Dr Glasman subsequently provided a detailed report on 25 June 2014 expanding on these conditions in terms of their severity, level of symptoms and incapacity for work arising from each medical condition.
On 1 August 2014 a delegate of Centrelink rejected Mr Noall’s application on the basis that he had not participated in a Program of Support. Mr Noall sought internal review of this decision. On 16 October 2014 an authorised review officer (ARO) of Centrelink affirmed the primary decision, including the impairment rating of 25 points as determined by a job capacity assessment (JCA).
The JCA determined that Mr Noall did not satisfy the definition of a severe impairment, that being one that attracts 20 points under a single impairment table in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) impairment rating. As such, he was required to undertake a program of support. The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (POS Determination), being the relevant instrument in force at the date of claim, required him to participate in such a program for a period of 18 months in a three year period prior to his application for the DSP.
In a letter dated 16 October 2014, the ARO advised Mr Noall that a program of support is one specifically tailored to address a person’s level of impairment, individual need, barriers to employment and capacity to work. The letter also stated that if the disability employment service provider considers that he cannot work and should be exited from a program, they need to complete the necessary form (called a SA437) so that the program of support requirements will be satisfied.
The ARO’s notes included in the T-documents at page 83, directed that the:
Temporary work capacity 0-7 hours per week is to be removed to allow customer to be linked to DES provider and commence POS.
This direction was not included in the letter to Mr Noall.
On 25 November 2014, Mr Noall sought review of this decision by the Social Security Appeals Tribunal (SSAT). The SSAT proceeded to hear his application on 30 January 2015. The SSAT increased Mr Noall’s impairment rating to 35 points, having recognised that the JCA neglected to rate his spinal osteoarthritis/osteoarthrosis. However, no single condition in this total attracted the 20 points in order to meet the definition of severe impairment and negate the requirement to complete the program of support. The SSAT, with some suggestion of regret, affirmed the decision and suggested that Mr Noall might reapply for the DSP, despite him then being 63 years and 7 months old. Mr Noall lodged an application for review by the Administrative Appeals Tribunal (AAT) on 6 March 2015.
At the hearing before the General Division of the AAT, Mr Noall was represented by Mr W R Middleton QC. Ms K Latta, a solicitor with Sparke Helmore Lawyers appeared for the respondent. The respondent had filed the documents required pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). The applicant tendered some eight Exhibits, details of which are appended to this decision.
BACKGROUND TO THE APPLICATION.
Mr Noall completed year 12 of formal education and thereafter worked in the building, construction and mining industries. His work has always been physically demanding. He last worked in February 2014, having conducted his own business of building maintenance for a period of 16 months. He ceased work because he could no longer physically cope with the demands of his occupation.
In his early twenties Mr Noall travelled to the United States of America (United States) and in 1975 married a citizen of the United States. He continued to live in the United Stated thereafter. His marriage to the American citizen ended in divorce in 1978. As Mr Noall had obtained permanent residency, he continued to live and work in the United States. In February 1994, Mr Noall returned to Australia.
In the United States, Mr Noall had worked in the gold mining industry on the border of Idaho and Washington State. His expertise was in vertical and horizontal drilling of mine shafts. He used air, hydraulic and electrical drills and rock bolting machines in order to make tunnel supports. In 1988, while working in a gold mine in Washington State, he was trapped in a major rock fall and sustained a fracture of his left femur, dislocation of his left knee, compound crush fractures of several bones in his right foot and multiple broken small bones in both hands.
Mr Noall spent three months in traction as part of the treatment of his fractured left femur. As a result his left leg is 3cm shorter than his right. He also suffered nerve damage in his left lower limb and has a permanent left foot drop. Mr Noall underwent several surgical procedures in the United States including bone fusion of many of the small bones in his right foot and an arthroscopic repair of his left knee. It took him three years to be able to walk without assistance. Mr Noall received a lump sum compensation payment for permanent partial disability in the amount of USD 21,600.
Three years after the accident, having undergone a 12 month course at Washington State College in construction drafting, Mr Noall obtained employment with various construction companies in Washington State.
After returning to Australia in February 1994, Mr Noall and had difficulty in finding suitable employment. He received unemployment benefits for several periods. He managed to obtain employment in Queensland in the construction industry as a foreman. Between 2001 and 2011, Mr Noall obtained regular employment performing maintenance work and shop fitting with Mary Noall and Company. By February 2014 the physical work required, even in part time maintenance work, became beyond his capacity and he ceased all work. He has received Newstart Allowance since April 2014.
As a result of his injuries, Mr Noall suffers from pain in his lower limbs and hands and has a limp resulting from his left leg shortening. He has difficulty using a walking stick because of the arthritis in both hands, secondary to his injuries. He has compensatory scoliosis resulting from the permanent shortening of his left leg and traumatic based osteoarthritis/osteoarthrosis affecting his spine with limitation of the range of movement. The range of movement is further limited when he has severe pain, usually precipitated by bending, twisting or squatting.
Mr Noall first noted shortness of breath on exertion in approximately 2000. He was exposed to both silica and asbestos in the gold mining industry and has been a moderate to heavy smoker of cigarettes for most of his adult life. Mr Noall’s degree of respiratory decompensation has increased over the years, but particularly since 2009. In 2014 he underwent a 12 week pulmonary rehabilitation program at the Alfred Hospital which did not result in any objective improvement in respiratory function.
Mr Noall continues to see his respiratory physician, Dr Peter Trembath, on a six monthly basis. Mr Noall has been using a corticosteroid based inhaler, which is indicated in the treatment of asthma, and a beta-agonist bronchodilator since he first saw Dr Trembath in 2013. The Tribunal notes that according to the National Pharmaceutical Society these two drugs should not be used in combination.
Mr Noall is severely symptomatic from both his pulmonary disease and his widespread osteoarthrosis.
Prior to ceasing all work, Mr Noall had been referred to PVS Workfind and was seen on 14 April 2012. He was later transferred to a program through the new Enterprise Incentive Scheme, this program being conducted over a period of 13 weeks from 23 July to 9 November 2012. Mr Noall had also obtained a Certificate IV in small business from the Royal Melbourne Institute of Technology. The course included subjects such as book-keeping, legislative requirements of running a business and related subjects. Following this course he established a maintenance carpentry business in which he worked for a period of just over 12 months.
On 8 August 2014, Mr Noall was referred to Australian Community Support Organization (ACSO) Melbourne, a disability employment service, regarding his eligibility for undertaking a program of support. ACSO rejected his participation on the basis that he had been certified as having a temporary incapacity for work of 0-7 hours per week. This certification was provided both by Dr Glasman, Mr Noall’s general practitioner, and also by the employment services assessors on 28 April 2014.
On 21 August 2015, Mr Noall had an interview with the employment services provider Max Employment in relation to a suggestion that he undergo training, in accordance with the recommendations of the JCAs and employment capacity assessors, in an occupational health and safety course in order to satisfy the program of support requirement. By the time he completed this 18 month course, Mr Noall would be well past his 65th birthday and eligible for the age pension. On this basis, it was determined, presumably both by the employment agency and certainly by Mr Noall, that to proceed would be a waste of time and taxpayers’ money.
EVIDENCE BEFORE THE TRIBUNAL
Mr Christopher Noall
In his evidence, Mr Noall has confirmed his symptoms which include a sitting tolerance of 10 minutes, following which he develops pain and a sensation of numbness in his back at the level of L2/L3 and needs to stand for a period of 5 to 15 minutes and stretch. He has regular physiotherapy and performs home based exercises daily. He can do some overhead activities, can bend and turn his neck but is limited in forward bending to pick up any items.
Mr Noall’s main symptoms are shortness of breath on minor exertion and fatigue. These symptoms, he says, are becoming progressively worse. While he can walk downhill for up to 5 minutes, he quickly becomes very short of breath. He uses a walking stick, performs very little in the way of household tasks and might try to vacuum one room per day. His driving is limited to 15 minutes without rest. Mr Noall shops at a supermarket once every fortnight and always goes between 6.00 and 6.30am so that he can obtain a parking spot adjacent to the entry door. He uses a trolley, both for his shopping and as means of support.
Mr Noall avoids climbing stairs and has not climbed a ladder for years. Mr Noall corrected his earlier statement to the JCA that he could walk 10 minutes, he having forgotten to state that he could do a 10 minute walk only if it was downhill. Mr Noall denied ever having any chronic cough, wheeze or sputum production. His respiratory symptoms were solely severe shortness of breath on exertion.
Mr Noall said he was capable of using public transport, but avoided doing so during any peak-hour or busy periods.
Mr Noall gave evidence that his hands and occasionally his feet lock-up after any extreme effort. The Tribunal asked Mr Noall what he meant by locking up. Mr Noall demonstrated this by holding his hands in the position they assumed during the locking up process. The position he demonstrated was that which is characteristic of carpo-pedal spasm associated with tetany due to hyperventilation, that results in carbon dioxide reduction in the bloodstream, lowering of pH and therefore free ionised calcium levels (further discussed below at [34]).
Dr Mark Glasman
Dr Glasman has been Mr Noall’s general practitioner for the past 4 years. He identified Mr Noall’s major health condition as his chronic obstructive pulmonary disease, which in his opinion attracted an impairment rating of 20 points. Dr Glasman was taken through the requirements of Table 1 of the Impairment Tables, which relates to functions requiring physical exertion and stamina.
When addressing the examples provided for a severe impairment, Dr Glasman stated that Mr Noall would not meet examples 1(a) i to iv. Dr Glasman was of the opinion that criteria 1(b) relating to 20 impairment points was satisfied, in that Mr Noall could not work for at least three hours in a contingent shift. Dr Glasman considered it inevitable that Mr Noall would require the use of home oxygen.
Dr Glasman confirmed that Mr Noall had undertaken a pulmonary rehabilitation program at the Alfred Hospital over a period of some 12 to 13 weeks. Dr Glasman said that as a result of the rehabilitation program, Mr Noall’s walking distance increased by 9 metres.
DOCUMENTARY EVIDENCE PROVIDED TO THE TRIBUNAL
Dr Glasman’s reports
Dr Glasman has provided several treating doctor’s reports. He has also responded to what is called a DSS Dear Doctor letter, confirming the diagnosis of chronic obstructive airways disease and osteoarthrosis affecting Mr Noall’s feet, spine, hands, shoulders and hips. All conditions were expected to persist for more than two years and impact on his functional capacity. No further treatment was available for either condition. Both conditions were expected to deteriorate (Exhibit A4).
In various reports, Dr Glasman has reiterated his opinion that Mr Noall qualifies for DSP and that to refuse his application would be medically reckless. He assigned 20 impairment points to Mr Noall’s chronic obstructive pulmonary disease and also 20 points to his widespread osteoarthritis, but did so without reference to the Impairment Tables.
Dr Trembath’s Reports
The Tribunal has been provided with three reports from Dr Peter Trembath, respiratory physician, who has treated Mr Noall’s lung condition since April 2013 (Exhibits A5, A6, A7 and A8). When first seen in April 2013, Mr Noall described shortness of breath occurring on climbing stairs, carrying heavy items and drying himself after a shower. Mr Noall was able to walk on the flat without difficulty and able to do all his own shopping. Mr Noall denied chest pain, coughing and wheezing.
Dr Trembath noted that Mr Noall had been a smoker of 25 cigarettes per day for approximately 40 years, ceasing smoking in 2011. Mr Noall had been involved in underground goldmining, where Dr Trembath said he would have been exposed to silica. In the 1970s he had worked for a company, Mica Insulating Supplies, which provided asbestos cloth for thermal insulation. Mr Noall had been required to cut asbestos cloth every second day for a period of six months and was exposed to the dust resulting from this process. Mr Noall had also been involved in the building and construction industry, including demolition work, and may have been exposed to asbestos in that employment. Dr Trembath detailed the mining accident and Mr Noall’s lengthy rehabilitation.
Physical examination was normal. A chest x-ray showed somewhat overinflated lungs. Dr Trembath arranged lung function testing and bronchial reactivity testing which revealed airflow obstruction, increased bronchial reactivity and reduced carbon monoxide diffusion. The increased bronchial reactivity was interpreted as being asthma, despite past failure to respond to bronchodilators or corticosteroid inhalations.
The lung function tests that accompany the report of 7 May 2013 reveal mild airflow obstruction. Mr Noall’s forced vital capacity (FVC) was considerably higher than predicted for his height and weight and his forced respiratory volume in one second (FEV1) was only mildly reduced. The ratio of these volumes was 66%, indicating mild airflow obstruction. Twelve months later, Dr Trembath reported that Mr Noall’s exercise tolerance was diminishing, as he was becoming short of breath walking up slight inclines. The treatment with corticosteroids and bronchodilator inhalation was continued.
Mr Noall was next seen on 18 November 2014, having completed a pulmonary rehabilitation program at the Alfred Hospital. While Mr Noall found this educational, he reported that it had not had any impact on his exercise capacity. Dr Trembath stated that this was not surprising given his chronic airways disease findings. Repeat lung function tests at this time revealed an FEV1 to FVC ratio of 48%, but it is noted that the FVC readings which were predicted to be of the order of 4.26 litres were 6.38 litres. Mr Noall’s diffusing capacity was reduced to 54% of normal, which represented further deterioration. There was no response of any of his lung volume measurements to the inhalation of bronchodilators.
The last report received from Dr Trembath was dated 28 January 2016. In this report Dr Trembath addresses the question raised by Dr Glasman regarding the possibility of Mr Noall having elevated carbon dioxide levels in his arterial blood. Dr Trembath pointed out that arterial blood gasses had not been measured. He believed they would not be of assistance in Mr Noall’s treatment regime. Dr Trembath again confirmed the further progressive reduction in Mr Noall’s lung diffusing capacity.
Repeat lung function tests performed on 28 January 2016 revealed a further increase in Mr Noall’s FVC volumes, which were now of the order of 159% of predicted normal for a man of his height and weight. His FEV1 level was in fact exactly at the same level as that predicted for his height and weight, but in light of the increase in the FVC, the ratio of these two lung volumes had fallen to 49%. Mr Noall’s diffusing capacity had further decreased and Dr Trembath reported this as being indicative of lung parenchymal/pulmonary vascular dysfunction, which usually means pulmonary fibrosis or pulmonary hypertension.
In his evidence, Mr Noall said he had raised the question of his very high FVC readings with Dr Trembath. They had been attributed to the fact that in his teens and early 20s Mr Noall had been a competitive swimmer. However, the Tribunal notes that these high vital capacity levels are not reproducible to the extent that they are constant or even comparable across all of the studies undertaken.
Centrelink Records
The records contain the list of Employment Service Providers to whom Mr Noall has been referred since April 2012 and the ARO decision and directions of 16 October 2014 to Centrelink to delete Mr Noall’s 0-7 hour work capacity. The 0-7 hour work capacity had been recommended by both the Employment Services Assessor and the Job Capacity assessor. Mr Noall had voluntarily been assessed by ACSO on 8 August 2014 and rejected as a candidate.
RELEVANT LEGISLATION
The eligibility criteria for DSP are outlined in s 94 of the Social Security Act 1991 (the Act ) which states:
94Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...
Subsection 94(3B) of the Act defines a severe impairment as one which attracts 20 points or more under a single Impairment Table. Subsection 94(2)(aa) of the Act establishes that a person has a continuing inability to work if they suffer from a severe impairment within the meaning of s 94(3B) of the Act, or have actively participated in a program of support, within the meaning of s 94(3C) of the Act.
Subsection 94(3C) of the Act establishes that a person has actively participated in a program of support where they satisfy the requirements of a relevant legislative instrument made by the minister for the purpose of that section. This requirement is also addressed in s 94(3D) and s 94(3E) of the Act, which states that in determining whether or not a person has actively participated in a program of support, the decision-maker must comply with any guidelines made for that purpose. As noted above, the relevant legislative instrument in this case is the POS Determination of 2011.
Sections 5 and 6 of the POS Determination state:
5. Requirements for active participation
1A 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.
2This 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.
3This 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.
4This 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.
5This 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.
6This 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.
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 Tribunal is also required to consider the relevant Impairment Tables 1, 2, 3 and 4, which are appended to this decision.
SUBMISSIONS
The Applicant
Mr Middleton submitted that Mr Noall met the requirements of s 94(1)(a) and (b) and had attracted an impairment rating totalling 35 points by the SSAT, 25 points by the employment services assessor and 35 points by the JCA. He argued that based on Dr Glasman’s reports Mr Noall’s spinal osteoarthrosis attracted a rating of 20 points, although it was admitted that Dr Glasman had not addressed the relevant Impairment Tables in making this assessment.
Mr Middleton contended that Mr Noall’s participation in the New Enterprise Incentive Scheme (NEIS) in 2012 equated to a part of a program of support and coupled with the following 12 months or more of work equated to a total of 18 months.
Mr Middleton contended that, in the alternative, the Tribunal should be satisfied that Mr Noall was not required to have participated in a program of support. Mr Middleton based this on the AAT decision in O’Gorman-Watson v Secretary, Department of Social Services (2014) AATA 277 wherein at [79] and [80] Dr Ion Alexander, Member, said:
79 … I have formed the view that [Ms O’Gorman-Watson] would be unlikely to benefit from a program of support unless it was tailored to meet her specific needs.
80. There is no evidence to suggest that the program in which [Ms O’Gorman-Watson] was participating was such a program or that it would assist her to prepare, find or maintain work.
the Tribunal decided on this basis that Ms O’Gorman-Watson satisfied s 5(5) of the POS Determination. Mr Middleton submitted that the same reasoning applied to the factual basis of Mr Noall’s claim.
Mr Middleton further submitted that the Secretary was able to exercise a discretion under s 94(4)(a) if they were satisfied that to do the work the person:
(a) is unlikely to need a program of support.
Mr Middleton indicated that Mr Noall had been restricted in his ability to obtain medical expert reports as he could not afford the costs attracted. Mr Middleton also said that Mr Noall also had difficulty obtaining the required information from his treating general practitioner, Dr Glasman.
The Respondent
Ms Latta accepted that Mr Noall suffered from chronic obstructive pulmonary disease and widespread osteoarthrosis, but submitted that neither attracted, of themselves, a rating of 20 points. Based on the evidence before the Tribunal, she contended that Mr Noall attracted 5 impairment rating points for his hand condition, 10 points for the lower limb conditions and no more than 10 points for his spinal osteoarthrosis.
Ms Latta distinguished the decision in O’Gorman-Watson, on the basis that Ms O’Gorman-Watson was participating in a program of support at the time she made her claim for the DSP and was found unable to continue in the program of support because of the severity of her medical condition. Ms Latta contended that this was a totally different factual basis to that of Mr Noall.
Ms Latta urged the Tribunal to accept the JCA finding that, with intervention, Mr Noall could work for more than 15 hours per week.
In response, Mr Middleton pointed out that while Mr Noall was not in a program of support at the time he applied for the DSP, there was no such requirement in the Act. Ms Latta identified the requirement as appearing in the Guide to Social Security Law.
The parties raised the possibility that Mr Noall’s participation in the NEIS for a period of 13 weeks in 2012 might equate to a program of support or contribute to the requirements of a program of support. They requested that they make enquiries and written submissions in relation to this possible interpretation. The Tribunal granted the application for written submissions and these were subsequently received.
In the respondent’s written submissions, it was conceded that the NEIS in which Mr Noall had participated could be considered to make up part of a program of support for the purpose of a claim for DSP. However, as the Act requires that any decision-maker must comply with any guidelines made for the purposes of s 6(b) of the POS Determination, it is relevant that the POS required that such a program:
(b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and ...
It was argued that there was no evidence that Mr Noall’s participation in the NEIS course was participation a program specifically tailored to address his impairment, as set out in the POS Determination and at s 1.1.A30 of the Guide to Social Security Law. Furthermore, it was contended that s 6(b) of the POS Determination requires the applicant to provide details regarding any participation in a program of support and Mr Noall had not done so at any time.
In response, Mr Middleton contended that while the applicant had to rely upon his memory as to the exact nature or makeup of his NEIS course, the respondent should and would have access to all the dates and the content of this course. Mr Middleton questioned the respondent’s statement that NEIS was not a suitable program as set out in s 6 of the POS Determination. He once more reiterated Mr Noall’s reliance on s 5(5) of the POS Determination. Mr Noall continued to rely upon the decision O’Gorman-Watson on the basis that:
1. participation in a program of support can potentially be limited to an initial appointment and regular phone contact in circumstances exemptions prevent the person from continuing in the program;
2. an applicant can by the use of exemptions, Centrelink documents and the applicant’s own evidence show that the applicant has an inability to improve their capacity to find, gain or remain in work through continued participation; and
3. it is a matter for the decision-maker to determine whether the person meets the criteria in s 5(5) on the available evidence not a program of support provider.
TRIBUNAL’S DELIBERATIONS
Mr Noall clearly satisfies s 94(1)(a) of the Act, in that he has well documented widespread osteoarthrosis secondary to massive trauma suffered in 1988 in a major mine collapse and severe chronic irreversible pulmonary disease. Mr Noall’s level and the cause of his disability is unusual, as is the interaction of the widespread joint involvement on his level of function.
Does Mr Noall attract an Impairment Rating of 20 or more points?
Mr Noall’s osteoarthrosis impacts on all activities as it affects both feet, both hands, his spine and his left lower limb. The severity of the trauma he sustained in 1988 is reflected in the fact that it took three years and several surgical procedures before he could again walk unassisted. The maximum Impairment Rating assigned for Mr Noall’s osteoarthrosis has been 25 points consisting of 5 for his hand, 10 for the left leg and 10 for his spine. No single body system involved in this disease has attracted a 20 point rating satisfying the definition of a severe disability and negating the requirement for a Programme of Support.
In Mr Noall’s case, the compartmentalising of the functional impact to three separate body sites gives rise to an inaccurate assessment. For example, Mr Noall needs to use a walking stick because of his left leg shortening but has difficulty doing so because of his arthritis and fusion procedures in his hands. None of the Impairment Tables used address this interaction. A more realistic assessment is that of Dr Glasman, who assigned 20 points to the disease of osteoarthritis rather than attempt a piece-meal multi-table assessment.
Mr Noall’s pulmonary disease, be it chronic obstructive pulmonary disease, or pulmonary fibrosis (silicosis or asbestosis), or more probably both, has been documented by serial lung function testing to be progressively deteriorating and unresponsive to bronchodilators and steroid inhalations. While the Tribunal has some doubts as to the exact diagnosis given the extraordinary variation in Mr Noall’s forced vital capacity volumes ranging from 98% to 159% of the normal predicted volumes for him, the functional effect is not in doubt and the diagnosis has shifted from chronic obstructive pulmonary disease alone to probable interstitial fibrosis or pulmonary hypertension. Given the lack of response to treatment, Dr Trembath’s decision not to perform tests that would not alter the treatment of the condition is appropriate.
Mr Noall has not met the functional 20 point requirement for a severe disability in accordance with Table 1 as he uses off-peak public transport, shops at the supermarket once a fortnight without assistance or a wheelchair and can perform light household tasks. Having heard Mr Noall’s evidence and observed him over more than four hours, I have concluded he achieves these objectives by pushing himself beyond physiological tolerance limits. Regardless of my observations, the Impairment Rating under Table 1 is 10 points.
Does Mr Noall have a continuing inability to work (s 94(1)(c) of the Act) and has he satisfied the Program of Support requirement (ss 5 and 6 of the POS Determination)?
Mr Noall lodged a claim for Newstart Allowance on 3 April 2012. The claim was accepted. On 4 April 2012 he was referred to an Employment Provider, PVS Workfind who assisted him with a NEIS application and this having been approved, transferred him to the NEIS course. The NEIS course conducted over 13 weeks resulted in Mr Noall obtaining a Certificate 1 qualification in Small Business. The respondent accepts this course conducted by RMIT meets the requirements of s 6 of the POS Determination for a period of 3 months.
Section 6(d) of the POS Determination provides the qualifying activities, with those relevant to Mr Noall being (iii) education and training; (vii) vocational or occupational rehabilitation and most importantly (viii) return to work. With only one of nine activities being required and taking the descriptions of the activities to have their usual meaning, the program clearly satisfied the requirements. Mr Noall completed an accepted three month program of support and then worked on a self-employed basis for 14 or 15 months before having to cease work purely because of his impairment.
In total, Mr Noall undertook a program including a return to work component, as required by the program of support legislation, for 17 or 18 months. In addition, Mr Noall voluntarily undertook a pulmonary rehabilitation program at the Alfred Hospital, a public hospital funded via a grant to the State of Victoria and presumably meeting the legislative requirement relating to providers. This Program is, to the Tribunal’s knowledge physiologically based and intensive. However, it did not result any objective functional improvement in Mr Noall’s lung function.
The Tribunal determines that Mr Noall has met the requirements of participation in a program of support and qualified for the DSP at the date of his lodgement of claim on 11 June 2014.
In the alternative, if the 13 week Small Business course is alone accepted as part of a program of support, Mr Middleton’s submission based on the decision in O’Gorman-Watson has merit. The respondent had distinguished O’Gorman-Watson on the basis that the Applicant had commenced a program of support and was at least enrolled for such at the time of lodgement of her application for DSP.
Given the respondent’s concession that the NEIS program is accepted as part of a POS, the Tribunal agrees that the decision in O’Gorman-Watson is relevant. It is relevant in that the Tribunal found at [84] that Ms O’Gorman-Watson was prevented solely because of her impairment, from improving her capacity to find, gain or remain in employment through continued participation in the program of support that she was participating in at that time.
The more recent decisions of the Tribunal in Re Malcolm and Secretary, Department of Social Services [2016] AATA 440 and Re Mongan and Secretary, Department of Social Services [2016] AATA 344, published since the hearing of this matter are relevant. The decision of Mongan is particularly relevant, in that Deputy President McCabe requested that the state manager of a then approved program of support provider give evidence to the Tribunal. The manager was unable to provide any detail whatsoever as to the applicant’s assessment or the records of her progress in the program. This Tribunal acknowledges that, as of 1 January 2015, the designation of providers has been altered presumably in an effort to improve the service.
The Tribunal is perturbed by the actions of the ARO as reflected by their “notes” of 16 October 2014. The Employment Services Assessment (ESA) of 28 April 2014, conducted by a psychologist, recommended that Mr Noall’s temporary work capacity was 0 to 7 hours per week until 28 November 2014. The JCA, conducted appropriately by an exercise physiologist, on 30 July 2014 recommended a 0 to 7 hour temporary capacity until 30 July 2015 and expressed doubt as to any future improvement.
Mr Noall’s claim was rejected on 1 August 2014 and on 8 August 2014 he was asked to participate voluntarily in a program of support. On 8 August 2014 he was interviewed by the Employment Service Provider ACSO and was rejected because of his 0 to 7 hours per week work capacity rating. On 16 October 2014, the ARO affirmed the primary delegate’s rejection of Mr Noall’s claim for DSP and in a separate direction/advice to Centrelink said Temporary work capacity 0-7 hours per week is to be removed to allow customer to be linked to DES provider and commence POS.
The Tribunal is aware that both the ESA and JCA Reports are recommendations and do not bind the ARO. However, the Tribunal Member has not previously, in 25 years, seen the ARO direct that a temporary work capacity recommendation be removed. This direction completely ignores the exercise physiologist’s considered report that the 0 to 7 hours capacity apply for twelve months until 20 July 2015. The Tribunal cannot identify any legislative authorisation or instruction within the Guide to Social Security empowering such action and therefore considers it to be ultra vires and void.
The Tribunal sets aside the decision under review in accordance with the discretion provided in s 94(4)(a), substituting its decision that Mr Noall qualified for the DSP as at the date of lodgement of his claim.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member ..............................[sgd]..........................
Dated 20 July 2016
Date of hearing 22 March 2016 Counsel for the Applicant Mr W R Middleton QC Advocate for the Respondent Ms K Latta Solicitors for the Respondent Sparke Helmore Lawyers APPENDIX ONE – EXHIBITS
APPLICANT
A01Statement of Mr Christopher Noall dated 9 February 2016.
A02Statement of Mr Christopher Noall dated 22 March 2016.
A03Statement of Dr Mark Glasman dated 20 July 2015.
A04Report of Dr Mark Glasman dated 27 November 2015.
A05Report of Dr Peter Trembath dated 7 May 2013.
A06Report of Dr Peter Trembath dated 19 May 2014.
A07Report of Dr Peter Trembath dated 18 November 2014.
A08Report of Dr Peter Trembath dated 28 January 2016.
APPENDIX TWO – IMPAIRMENT TABLES
Table 1 - Functions requiring Physical Exertion and Stamina
Introduction to Table 1
· Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
- a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
- results of exercise, cardiac stress or treadmill testing.
Points
Descriptors
0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
30
There is an extreme functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is completely unable to perform activities requiring physical exertion or stamina; or
(b) experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing any activities requiring physical exertion or stamina and, due to these symptoms, the person is unable to move around inside the home without assistance.
(2) This impairment rating level includes people who require Oxygen treatment (e.g. the use of an Oxygen concentrator during the day or to move around).
Table 2 – Upper Limb Function
Introduction to Table 2
· Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
- a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
- results of diagnostic tests (e.g. X-Rays or other imagery);
- results of physical tests or assessments.
· For the purposes of this Table upper limbs extend from the shoulder to the fingers.
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
30
There is an extreme functional impact on activities using hands or arms.
(1) The person is unable to perform any activities requiring the use of both hands or both arms.
Table 3 – Lower Limb Function
Introduction to Table 3
· Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
- a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
- results of diagnostic tests (e.g. X-Rays or other imagery);
- results of physical tests or assessments.
· For the purposes of this Table lower limbs extend from the hips to the toes.
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
30
There is an extreme functional impact on activities using lower limbs.
(1) The person is unable to mobilise independently.
Table 4 – Spinal Function
Introduction to Table 4
· Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
- a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
· In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
Points
Descriptors
0
There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
30
There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
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