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

[2018] AATA 4430

Nobbs and Secretary, Department of Social Services (Social services second review) [2018] AATA 4430 (8 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2271

Re:Ian Nobbs

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:8 October 2018

Date of written reasons:        27 November 2018

Place:Sydney

1.For the reasons given orally at the conclusion of the hearing of this matter held on 8 October 2018, the Tribunal affirms the decision under review.

2.The Tribunal also orders the parties to obtain written confirmation from the General Manager of Nova Employment, Ms Anne Goyer (PO Box 795 St Mary’s NSW 1790), as to the current status of the Applicant with the organisation and specifically to confirm if he has been discharged from its programs.

..........................[sgd]..........................................

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether applicant qualified during claim period – lower back pain – adjustment disorder with depression and anxiety – whether conditions fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – continuing inability to work – program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

WRITTEN REASONS FOR ORAL DECISION

Bill Stefaniak AM RFD, Senior Member

27 November 2018

INTRODUCTION

1. On 27 September 2017, the applicant lodged a claim for the Disability Support Pension (DSP). The claim was rejected by Centrelink, both initially and on review by the authorised review officer on the basis that the applicant did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) – hereafter referred to as “the Act”.

2. That decision was appealed by the applicant to the AAT1 and in a decision dated 3 April 2018, the AAT1 found that the applicant did not satisfy section 94(1)b) of the Act and so he did not qualify for a DSP. The applicant then applied to this tribunal to review the AAT1 decision. The matter was heard in Sydney, on 8 October 2018.

3. This tribunal is looking at the matter afresh and I stand in the shoes of the original decision-maker, making the decision at the time. It is not a case of reviewing whether the AAT1 got it right or wrong or otherwise. I am reviewing the whole case, looking at it afresh.

4. The relevant legislation is Section 94 of the Act and section 94(1) specifically, which provides that:

   A person qualifies for a DSP if firstly, (a) that person has a physical, intellectual or psychiatric impairment and, (b) the person’s impairment is 20 points or more under the impairment tables, and, (c) the person has a continuing inability to work as defined in section 94(2) of the Act.

5. In accordance with the requirements of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), to qualify for a DSP the applicant must satisfy the requirements of section 94 of the Act as at the date of his claim or within 13 weeks of lodging his claim. In this case, that is between 27 September 2017 and 27 December 2017, that being the claim period.

6. The applicant and respondent provided evidence in relation to this matter and they are to be found in the T documents. As well as this, Exhibit A1, contains several letters telling the applicant to go to an initial appointment with the Nova, Employment Service at Penrith. Those letters are as follows: one dated Thursday, 2 May 2018 telling him to go there on Tuesday, 19 June 2018, another one telling him to go there on 10 July 2018 and another one, again, telling him to go there on Tuesday, 10 July 2018.

7. Also in evidence was a letter from Dr Charles New dated 17 May 2018, and there was a plethora of documents going back to the period when he was injured, including letters dealing with the Worker’s Compensation issues and more specifically, more recent reports, namely a number of reports from Dr New and Dr Pusic, a clinical psychologist, who is assisting the applicant with his mental health issues.

8. The latest report from Dr Pusic on 26 March 2018, appears to look at the tables, namely table 5 and the 20 points criteria there. That appears to be as the result of seeing the applicant back in January of this year.

   BACKGROUND

9. The applicant gave comprehensive sworn evidence.

10. Ms Gaynor also gave evidence as his support person and also assisted the tribunal during the morning break, by ringing up Nova and speaking to a lady there by the name of Michelle Hira, who was also of some assistance to the tribunal in relation to providing some evidence in relation to the program of support.

11. The respondent conceded that the applicant suffered medical conditions that cause impairment and accordingly, he satisfied section 94(1)(a) of the Act as at the relevant time, namely the claim period. Accordingly, the issues the tribunal must decide in this matter are whether, during the claim period, the applicant had, firstly, an impairment rating of 20 points or more under the impairment tables (section 94(1)(b)) and secondly, a continuing inability to work as defined in section 94(2) of the Act.

    DOES THE APPLICANT SATISFY SECTION 94(1)(b)

12. Does the applicant have medical conditions that can be rated at 20 points or more under the impairment tables? The Social Security (Tables for the Assessment of Work-related impairment for Disability Support Pension) Determination 2011 (the impairment tables determination), requires that an impairment rating can only be assigned if the condition causing that impairment is permanent as set out in paragraph 6, subsection 4 of the impairment tables determination.

13. A condition is permanent if it, firstly, has been fully diagnosed by an appropriately qualified medical practitioner and has been fully treated and has been fully stabilised and is more likely than not to persist for more than two years. These impairment tables describe functional activities, abilities, symptoms and limitations and they are designed to assign ratings to determine the level of functional impact of impairment.

14. There is an introduction to each relevant table which notes that self-reporting of symptoms alone is insufficient and there must be corroborative evidence of a person’s impairment.

15. Relying on the evidence before me, I consider that the applicant’s medical conditions for the purposes that he has claimed for the DSP are; his lower back pain i.e., his spinal condition (which is table 4 of the impairment tables) and his mental health issues, his depression and anxiety (table 5).

16. The respondent conceded that those two conditions were fully diagnosed, treated and stabilised and the medical evidence is clear on that. Dr Pusic, for example, makes it abundantly clear in his September 2017 report that there is nothing more that can be done that is going to improve the applicant’s condition, it is effectively a manner of maintenance (see page 364 of the T documents). There is no dispute there.

17. The issue really is just in relation to the allocation of points under the tables. The respondent’s position is that no more than five points should be awarded for table 4 and no more than 10 points for table 5.

18. The other issue in relation to this matter is a question around the program of support. I note that that was started in April 2018. It is outside the claim period. In reality, it is understandable that the applicant did not commence such a program until April 2018 as he had been on Worker’s Compensation for 10 years and this did not cease until 25 December 2017. It was therefore unlikely to expect him to commence a program of support whilst he is still on Worker’s Compensation.

19. There is also the issue of inability to work and whether the applicant has the ability to do 15 hours work plus a week after two years without a program of support.

20. This is very tough legislation. The Parliament has made it so; it certainly is by no means perfect. There is not much the tribunal can do about that, it is a matter of Centrelink clients and their advocates lobbying the Federal politicians for any necessary changes.

21. As legislation it binds this tribunal and does not leave the tribunal with much discretion in the matter.

    THE APPLICANT

22. The applicant gave detailed evidence and I found him to be a man of truth, who basically told it as it was. Clearly, he wished the accident in 2004 had never happened.

23. He said he left school when he was 14 years and nine months and after “bumming around as a young bloke for a while,” did a bit of car detailing and at 18, managed to get himself into a very good permanent job which he loved.

24. The year was 1989 and the job was as a forklift driver, loading and unloading trucks. He became permanent with the firm, ACI in Penrith, in 1991 and unfortunately, on 31 October 2004, a date indelibly etched into his mind by the look of it, he had a bad accident. He fell over and badly hurt his back. He continued on with the firm in a reduced capacity, training up people to work in the work shed. Unfortunately, he trained them up so well he did himself out of a job and the firm made him redundant on 14 September 2007.

25. There is not much more I can say about that, because he did have representation via the union and did fight for unfair dismissal but was ultimately unsuccessful. He did, however, receive Worker’s Compensation until December 2017.

26. He finds himself out of pocket, basically, from 25 December 2017, when the Worker’s Compensation payments stop. He has not worked since 2007. His wife works at the Penrith Council and he looks after the house. She works in the childcare area. She also does a bit of work outside of working hours and seems quite a busy lady. He has three adult children and is a grandfather.

27. His 27 year old daughter lives in Wollongong. His 22 year old daughter is a non-uniformed member of the New South Wales Police Force at Parramatta and his 17 year old son has just got an apprenticeship. They both live at home, pay board and that obviously helps with the financial circumstances.

28. Other relevant facts as to his functional abilities are as follows: He has a dog, a poodle, which does not need to be taken for a walk. He finds it hard going on any family functions. His wife and two younger children went off on a cruise earlier this year without him because of his medical issues.  

29. He has a brother who lives about 10 minutes away who pops in every couple of days to see him. He keeps contact with two old friends who he used to see up at Umina where he and his family used to go to on holidays. His friends used to look after his 3 children and take them out when the applicant was not able to do some of the more energetic things like getting in the boat. He would fish off the beach.

30. Those two friends live about an hour-and-a-quarter away. One he still talks to quite often and he went to that friend’s daughter’s 21st with his daughter, they remain good friends and last spoke about six months ago. The other friend he is in contact with on Facebook.

31. His parents are alive and they live up at Ballina. He has not been up there for two years, but he rings his mother every day. He does not tend to go out much, it is all a bit hard with his injuries. He indicated that recently, he had to walk one-and-a-half to two kilometres to the panel beaters and whilst managing it successfully, it took him over 50 minutes and he had stopped a fair bit and was in great pain when he finished the walk.

32. His situation has not changed much in the last 12 months, except he indicated to the tribunal he now has pain in his left leg as well as his right leg and in that way, it is getting worse.

33. My impression from listening to him, in relation to his mental health issues was that they basically have not changed at all in the last 12 months.

34. His doctor, Dr Pusic, said, that from about September 2017, he is well and truly fully diagnosed, treated, stabilised and things are not going to improve. It is a matter of management and this seems to have been accepted by the respondent.

35. A typical day for the applicant is that he will get up at about eight. He does have sleep problems. He will go to bed at 8.30pm. He will get up about 1:00am. He will toss and turn a lot when he goes to sleep. He will go outside to his shed, and sit there with his dog and drink Pepsi. He likes his Pepsi.

36. He will go back to bed at 2:00am, get up about 6:00am – which is about when his wife gets up to go to work. He said he would often sleep in the afternoon, which would to an extent compensate for his troubled sleep at night. He would watch television; he did not have breakfast and would instead drink some Pepsi.

37. He can cook, but needs to lean on the bench with an arm whilst doing so.

38. He said he does not do too much. He can put washing on the line. He will put washing in a basket at hip height on a chair and he will be able, with the pegs in his pocket, one peg at a time, to put washing on the line. He demonstrated by putting both his hands up in the air above his head to indicate how he would do that. He said there would be pain up his lumbar spine to his thoracic spine, but in putting the clothes up on the line, he can do it, but he stops regularly.

39. Also, he demonstrated he can take cans and bottles off the shelf. He was asked in cross-examination what exactly he meant by that and he said he picks his cans of Pepsi up at basically, head height and puts them in a box he is carrying.

40. He indicated he can put dishes and other items he has washed up away or above his head or indeed down to probably knee level. There is further evidence in the documentation to indicate that he can bend down below his knees, but certainly not to his ankles.

41. He said it is not like he is “confined to a wheelchair or anything like that”; he can do things, albeit with difficulty.

42. He has trouble with the toilet, he has to actually stand on it and crouch, because of issues with his back. He does that to get himself comfortable. He does not dry up as such; he washes things up, leaves them to dry and then puts them away.

43. He says, in terms of reaching up and down, that “it is okay, it is only if I do that constantly that it is a problem”. He does not vacuum his house, his wife does that. There are three rooms with carpet, the rest is floating boards and he sweeps those.

44. He sleeps in his own room, he does not really bother having to make his bed, he just pulls the doona up, so that is pretty low maintenance. The garden does not need any maintenance, he does indeed mow the lawn, the front takes him a while, it is a much bigger lawn. He will mow for a while, stop rest and then do the other half. This takes him a little over an hour. The back lawn is much smaller and he does that in one hit. It is about the size of this hearing room which would be no more than probably 8 metres by 12. He tends to pull the mower rather than push it because of his problems.

45. He can cook, but he basically just puts a pie in the oven, although when his wife went away he cooked a schnitzel. His wife does the cleaning. His son will help with heavy things, for example, the applicant indicated he could pick up a small chair, and could possibly even help his son move a table. But really anything beyond that would be difficult. He certainly cannot put a lawnmower in a car or anything like that.

46. Anything heavy his son has to do. Every time he does try to start doing things physically, he will often have to sit down for 30 minutes to an hour to recover.

47. He does have one hobby still. He and his son used to enjoy remote-control cars and he has still got a remote-control car. He said he is lucky in that he lives next to a large vacant council block where he can play with his car for 15 to 20 minutes before the battery runs out. It is an enjoyable activity he probably does every third day or so. His son used to do it with him.

48. They do not go out much as a family. He and his wife do not go out that much because she does seem to be pretty busy as much as anything else and his children are obviously at an age where they have got things to do themselves. 

49. He also indicated that apart from meat pies and cooking a schnitzel, he can make a pretty reasonable sandwich. He stays at home, his wife does the shopping, he does not go to the shops. But he helps his wife take in the light groceries (from the car).

50. He indicated that he has no friends, but when pressed, he said he rings Craig and Terry, the two friends I mentioned. Craig lost a wife to cancer and Craig’s girls are friendly with his girls (see the 21st referred to earlier).

51. Terry is the Facebook friend. He is a TAFE teacher at Mount Druitt. Both of these fellows used to be good family friends who would all hang out together at Umina as already described.

    THE PROGRAM OF SUPPORT

52. I come now to the program of support (POS) which I will deal with before I just start allocating points. Firstly, as already mentioned, it was not logical for him to do a POS until such time as he applied for a Disability Support Pension after he came off the Worker’s Compensation because there was simply no need for it.

53. When he did start a POS in April 2018, he had not been at it for very long before the hearing - indeed, for only a six-month period.

54. Exhibit A1 shows that he has had four appointments. He went there and was initially helped by a man called Geoff, who seemed to indicate that he was going to tee up some assistance for him, or a program to assist. Unfortunately that was the end of Geoff. It seems he got posted elsewhere.

55. He then saw a lady by the name of Michelle Hira on one occasion in July. Because he was down as a voluntary participant, when he said he was unable to work, she said, “That is it, we will discharge you”.

56. Unfortunately it appears, and I am quite satisfied that this is so, that neither the respondent, nor anyone else, has received any letter indicating he has been discharged. He has not, Ms Gaynor, who is helping him has not and certainly, the respondent has not.

57. It also appears that the reason he was a voluntary member was because, whilst Centrelink at Penrith rang up and obviously arranged for him to go, there is nothing in writing and he is not on Newstart. He cannot get Newstart because of his wife’s income. In a way that is good because it means the family is doing well, his grown up children are working, and his wife has got a good job. 

58. It was not disputed that he would be entitled to a DSP if he qualifies. But a DSP is one of those pensions like the aged pension, which is almost identical in terms of the money one gets, where obviously the greater the family income the less pension one can get. It seems because of the means test he would only qualify for a part pension.

59. That is the situation he is in and that is why he was not sent to do his POS formally by Centrelink, and that is why it appears he has been classed as a voluntary participant. However, as the respondent’s representative correctly states, the Act does not differentiate and it says if a person is discharged from a program of support (and I have got no reason to believe he has not been), that needs to be done formally - in writing.  

60. Ms Hira and her manager Bronwyn Woods who also gave brief evidence were helpful and told the tribunal that the general manager of NOVA was responsible for sending out a letter discharging a person from a POS and parties seeking such a letter should write to the General Manager Ms Anne Goyer, Nova Employment, PO Box 795, St Mary’s, New South Wales, 1790.

61. I am happy to direct all parties (it is important for Centrelink’s records) to contact/write to Ms Goyer and ask her to send a formal letter to the applicant and to Centrelink, indicating that Ian Nobbs has been discharged from the program of support and why (if indeed that has occurred).   

1. His status certainly needs to be put in writing.

2. As it is and as he has only done six months, a letter saying he has been discharged from the POS would be important if he has a second attempt at getting a DSP.  

   MEDICAL EVIDENCE

3. Dr Augustus Pusic, consultant psychiatrist (who has been treating Mr Nobbs since 20 August 2013, having had him referred to him by the applicant’s GP Dr Jasani) in his report dated 25 September 2017, indicated that his formal diagnosis would be adjustment disorder with depression and anxiety, running a chronic course secondary to his ongoing lower back pain and social stresses. He said (see page 365 of the T documents, third last paragraph):

   He has received optimal treatment for his mental state. He has reached maximum improvement in his mental state and his condition is now stable.

4. He also felt that:

   Mr Nobbs chronic pain and secondary depression and anxiety symptoms remain a great barrier towards any capacity for future employment. Taking into account the chronicity, severity and persistence of his physical and psychological condition, taking into his restricted capacity for new learning and taking into account his reliance mainly on manual work I would say the(sic) Mr Nobbs is unemployable.

   I would find Mr Nobbs to be totally and permanently unfit for any form of remunerative employment.

5. That letter was something that the Department, the ARO and the AAT1 all had reference to.  

6. There is another letter from Dr Pusic dated 26 March 2018, outside of the claim period, which said that the last time he was assessed was on 8 January 2018, just outside the claim period. Dr Pusic discussed the lower back injury and went through the history.

7. In this instance, he again found the applicant to be totally and permanently unfit for any form of remunerative employment. He then states (at page 434 of the T documents):

   Using Table 5 for the Assessment of Work Related Impairment for the Disability Support Pension, I can say that Mr Nobbs will qualify for a rating of 20 in that: (a) he will frequently neglect himself, (b) he lives a highly-restricted existence, has no significant interests and would not travel alone for long distances, (c) interacts mostly with family members, (d) has difficulty with general cognitive ability, including concentration, attention, understanding and new learning, (e) is frequently emotionally disturbed and frequently feels overwhelmed impairing him in making decisions for the future, (f) taking into account his past economic performance and chronic illness, I would say that he is unemployable.

8. This report was considered by the AAT1 who, in their decision, listed the criteria for 20 points under table 5 and came to the conclusion that, apart from the fact that it was outside the period, it was a summary of the criteria but it did not exactly address the criteria as such.

9. That is the evidence I have to consider.

10. It fundamentally boils down to me looking at two lots of tables; table 4 and table 5 and assessing what has been told to me today, by the applicant himself and the evidence contained in the reports.

11. The respondent has suggested five points for table 4 and 10 points for table 5; I will have a look at the criteria for awarding 5, 10 and 20 for each of these two tables.  

    TABLE 4 - SPINAL FUNCTION

12. Table 4 deals with spinal function (i.e., the lower back).

13. The applicant clearly gets 5 points Can he get 10 or 20?

14. To get 10 points, there has to be a moderate functional impact on activities involving spinal function; that is; the person is able to sit in or drive a car for at least 30 minutes.

15. The applicant certainly qualifies for that because he said he can do it for about 60 minutes or indeed for possibly as long as 90 minutes.

16. As well:

    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;

    (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).

17. In relation to (b) he probably is able to move his head as required, without too much difficulty.

18. In (c) a person has to be unable to bend forward to pick up a light object placed at knee height. There is no indication that that is impossible, nor is there any evidence that he needs the assistance of a person to get out of a chair ((d)). Clearly, he can do that because he has been getting up out of his chair on a number of occasions today in front of the tribunal because of his back.

19. The issue in this table comes down to what does “sustain” mean in criteria (a)? If it was for 20 points, a person has to be unable to perform any overhead activity - and it means just that.

20. “Sustain” means: “Cause to continue for an extended period or without interruption” (Oxford Dictionaries).

21. The applicant’s evidence was that he could put items away and put pegs on clothes on the clothes’ line, but after a while that all gets a bit much and he has to have a rest before he can start the activity again.

22. Can that be classified as sustained? Let us say, for argument’s sake (and that is something which I would probably really need someone like a health professional to actually formally assess and say, “He cannot sustain it”), if he was able to do the activity for one or two minutes and then stop, rest and continue with it that is not sustaining it. Certainly not if in doing that activity plus the necessary rest breaks takes him 15, 20 minutes, and he only has eight pairs of clothes to put on the line, then clearly he is not sustaining the overhead activity and would get 10 points.

23. If however he took 15 minutes with a couple of rests to put a full load of washing on the line (say 30 plus items) but he found it a bit painful and hard to do, that may well qualify as “sustain” and he thus might get five points only.

24. He cannot get 20, on his own evidence, so it would be a maximum of 10. Five certainly, a possible maximum of 10, it all depends on how one defines, “unable to sustain”. Having regard to the definition above, I would be inclined to think 10 points may well be applicable.

    TABLE 5 - MENTAL HEALTH

25. I agree with the respondent that the doctor has indicated a number of things which are not a fully accurate description of what the tables say. The tables need to be quoted exactly and not paraphrased.

26. To get five points one needs to have mild difficulties with most of the following:

    (a)Self-care and independent living;

27. The applicant does not live independently, but he does neglect grooming and self-care. He does not neglect meals.

    (b)Social/recreational activities and travel;

28. He is not actively involved with attending social or recreational activities and he does not travel alone to unfamiliar environments. He certainly does not get out of the house much and I think one can certainly say that satisfies this criteria.

    (c)Interpersonal relationships;

29. His interpersonal relationships are certainly marked with occasional tension and arguments. He has had some issues with the family and certainly gets a bit cranky at times, and whilst it does not seem to be for a sustained or lengthy period of time, it is enough for five points.

    (d)Difficulty focussing on complex tasks for more than an hour (concentration and task completion);

30. I would have to be guided there by the doctor’s report because he did concentrate pretty well at this tribunal. My personal observations are that he was doing quite well in that regard. Dr Pusic says though, that he has difficulty with general cognitive ability, including concentration, attention, understanding and new learning. Whether the new learning has got to do with his mental problems or maybe the fact that he did not go to school for all that long, I do not know. But let us say that there are some issues there.

    (e)Behaviour, planning and decision-making;

31. The applicant has to show unusual behaviours that may disturb other people or attract attention, sometimes be more effusive, demanding, or obsessive. That is possibly the case.

    (f)Work/training capacity;

32. We do not know because he has not been at work for 10 years. Where it is not possible to comment that descriptor cannot be counted. For a person to qualify, the table says most of the following have to apply. In other words, four out of six of the descriptors. In my view the applicant certainly satisfies 4 out of the 6 if not 5 out of 6. We cannot rate the work/training descriptor.

33. To get 10 points, there has to be a moderate functional impact on activities involving mental health function. A person has to have moderate difficulties with most of the following:

34. (a) Self-care and independent living; the person needs some support, that is an occasional visit by or assistance from a family member or support worker, to live independently and maintain adequate hygiene and nutrition.

35. The applicant said his brother popped in every second day to make sure he was okay. He seemed to go well when his wife and the two adult children went off on the cruise, but his brother, nevertheless, felt the need to drop in and so he qualifies on that descriptor.

36. Criteria (b) social/recreational activities and travel; a person goes out alone infrequently and is not actively involved in social events and will often refuse to travel alone or to unfamiliar environments.

37. The applicant certainly goes out alone infrequently and is not actively involved in social events mainly because there are very few social events he can go to. I would say he covers half of that criteria.  

38. (c) Interpersonal relationships; difficulty making and keeping friends or sustaining relationships.

39. I think I would have to say that whilst the applicant does not go out much and he does not have much contact with his friends, that is not all that different from a lot of people. People drift apart and they do not keep contact with friends. A person might have a good friend and not speak to him/her for 12 months but it is like that 12 months means nothing when one does speak to him/her and that friend remains a really good friend for life. It seems that the applicant is continuing to maintain contact, at least, with his two good friends who he met up on the Central Coast.

40. (d) Concentration and task completion; the person finds it very difficult to concentrate on longer tasks for more than 30 minutes.

41. There is nothing to indicate that. He may find it difficult following complex instructions from an operation manual or assembly instructions; we do not know much about that, but perhaps that might be because he was never much of a student - he is more of a practical man.

42. (e) Behaviour, planning and decision-making; he has difficulty coping with situations involving stress, pressure or performance demands and he has occasional behaviour or mood difficulties, such as temper outbursts, depression, withdrawal or poor judgment. Certainly, there is evidence in relation to that.

43. (f) For work training capacity, he often has interpersonal conflicts at work, education or training, requiring intervention. We do not know in this case. But the doctors are supposing that may well be so. I simply, really cannot comment on that.

44. I see some applicants who quite clearly I would not want in my workplace if I was the boss. They would be very difficult to work with and quite disruptive. Whilst I cannot foresee how Mr Nobbs would react in a workplace, I doubt if he would be difficult. I tend to actually think that he might welcome the chance to do some interesting activity. However, I simply do not know.

45. On that basis, he certainly satisfies (a); (b) is a bit harder, he certainly does not go to unfamiliar environments, so maybe he qualifies there. I think he is not too bad with interpersonal relationships. It is hard to assess on the concentration and task completion. He certainly, I think, would have some problems with behaviour and planning and things like that and there have been some outbursts. There is clearly evidence of that.

46. I would certainly be happy with three descriptors and in relation to concentration and task completion, I suspect that he is probably pretty capable in that regard, but I would defer to his psychiatrist to comment there to be sure. I note Dr Pusic has already indicated that he satisfies that descriptor.

47. Again, it may well be that he could only qualify for 10 points and I note the respondent Department thinks he qualifies for 10. On that basis I would award 10 points.

48. I do not believe the applicant can possibly get 20 points as at the time of the claim period as he has to have severe difficulties with most of the following, and whilst he needs regular support to live independently (a) in that his brother comes every second day (i.e.,  at least twice a week) and in relation to (b) it is true that he travels alone only in familiar areas (indeed, he does not travel much at all), in terms of criteria (c) to (f) he does not meet the criteria.

49. He does not have problems interacting with others (c); he can concentrate for much longer than 10 minutes (d); I did not observe his behaviour, thoughts and conversation to be significantly and frequently disturbed (e); and whilst I doubt if he would be unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness (f); I simply have no evidence to indicate that would be the case and it is certainly not consistent with my observations of the applicant from his evidence.

50. Accordingly he satisfies in my assessment two out of the six descriptors only. He needs to satisfy four out of the six to qualify for 20 points and the DSP as at the date of the claim period.

51. For these reasons, I will have to affirm the decision of the AAT1.

    WHERE TO FROM HERE?

52. I would say this to the applicant.

53. He is the only one who truly knows how he feels. If he really feels and believes “I cannot work, I cannot see it happening” and that is genuinely what he believes then the best advice the tribunal can give would be to have another attempt at applying for a DSP.

54. He should take the tables to Dr Pusic (who is probably getting sick of all this, but who seems to know the applicant and his case best) and ask him to rate the applicant strictly in accordance with the tables and the descriptors therein.

55. If Dr Pusic thinks the applicant qualifies for 20 points under any one table, he has got to assess that strictly in accordance with the descriptors along the lines of what I have done above.

56. I know it is painful and a lot of doctors and professional people do not like doing it, but it is all about dotting i’s and crossing t’s and if the doctor believes - and he is the expert - that the applicant has satisfied say four out of six descriptors in table 5 for 20 points for example then, it would seem, the applicant will get 20 points for that one table.

57. The other thing is that when the applicant gets the letter from Nova, and if it indicates that he had been discharged from a program of support, he may well find that that actually satisfies that requirement for a POS and in that instance it would be acceptable if he only had 10 points for the back (table 4) and 10 points for mental health (table 5) and he would thus qualify. That is why it is so important to get that letter.

58. If the doctor really thinks that because of his mental health problems he would qualify for 20 points under table 5 alone, then he does not need to do a POS. All he needs to satisfy is the requirement that he has a continuing inability to do any work or it is unlikely he is going to be able to do work independent of a POS of 15 hours plus a week after two years.

59. Clearly, if he has mental health issues that qualify him for 20 points, I think he would not be suitable for work of at least 15 hours a week and that assessment is backed up in the comments made by some doctors who have stated that they feel the applicant is unemployable.

60. I must say, at this stage, on the evidence before me, I simply do not know.

61. I hear what the applicant says and I note that he only went to Year 8, but he has held down a very good job, has trained people up to the extent that he made himself redundant after three years as those people took over his roles, he is articulate, seems to have a lot of common sense, actually presents quite well and is only 47 years old.

62. I think it would be great if there was something that the applicant could do. Great if it was paid employment, but great if there was something that he could do, just to get a bit of enjoyment and purpose back into his life, because he has got another 20 good, productive years for doing something.

63. It is pleasing to see that he is still involved with his model cars. Obviously, he seems to have a good, caring and understanding family, and he also seems to have been a good husband and father and that is so important.

64. . A good program of support can actually open up things for people and even if it is not a program of support, there are certain things in the community, some voluntary things which, if a person finds he/she can do them, can often lead to paid jobs. Even if they do not, they provide a lot of enjoyment and variation for a person and keeps the mind and to a lesser extent, the body, active. In the applicant’s case it is the mind more than the body because of his physical ailments.

65. A lot of people do not get a DSP first time round, but pick it up on the second or third attempt because their doctor has addressed the tables and dotted the “i’s” and crossed the “t’s”.

66. Unfortunately, I cannot award him a DSP on this occasion, and accordingly will have to affirm the decision under review.

67. The formal order of the tribunal will be, (1) the decision of the AAT1 of 3 April 2018 will be affirmed and, (2) the parties are to contact the General Manager, Anne Goyer, of Nova Employment PO Box 795, St Mary’s NSW 1790 to get a formal notification of the status of the applicant, namely whether he has been discharged from the program of support.

I certify that the preceding 128 (one hundred and twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

..........................[sgd]..........................................

Associate

Dated: 27 November 2018

Date(s) of hearing:	8 October 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services