O'Gorman-Watson and Secretary, Department of Social Services
[2014] AATA 277
•30 April 2014
[2014] AATA 277
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3365
Re
Ann O'GORMAN-WATSON
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 30 April 2014 Place Perth 1.The Reviewable Decision is set aside and replaced by a decision that at the relevant time Ms O’Gorman-Watson satisfied s 94 of the Act and was qualified for Disability Support Pension.
2.The matter is remitted to Secretary for further action.
....(Sgd) Dr I Alexander................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY - Application for Disability Support Pension - Whether Applicant has Participated in a Program of Support - Applicant was Unable to Participate in a Program of Support due to her Impairments
LEGISLATION
Social Security Act 1991
SECONDARY MATERIALS
Social Security (Requirements and Guidelines–Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
30 April 2014
REASONS FOR DECISION
BACKGROUND
Ms O’Gorman-Watson is a 42 year old woman who was diagnosed as suffering from multiple sclerosis (MS) in 2000.
In 2012 her medical condition progressed so that she had to cease her permanent employment.
On 31 August 2012, Ms O’Gorman-Watson submitted a claim for Disability Support Pension (DSP).
On 5 September 2012, following a face to face Job Capacity Assessment (JCA), an assessor concluded that Ms O’Gorman-Watson’s medical condition of MS was permanent, fully diagnosed, treated and stabilised. The assessor recommended a total impairment rating of 25 points across 4 Impairment Tables and stated that her capacity to work within 2 years was 8-14 hours per week with intervention.
On 26 September 2012, Centrelink rejected her claim for DSP on the grounds that she had not completed a “program of support to help you find and keep work.”
On 30 November 2012, an Authorised Review Officer (ARO) affirmed Centrelink’s decision on the grounds that Ms O’Gorman Watson did not have a “severe impairment“ of at least 20 points under a single impairment Table and had not “participated in a program of support for at least 18 months in the last 3 years.”
On 18 June 2013, the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision on the grounds that Ms O’Gorman-Watson “had not actively participated in a program of support” and therefore did not satisfy s94(2) and consequently s 94(1)(c) of the Social Security Act 1991 (the Act).
In the present proceedings Ms O’Gorman-Watson seeks review of the SSAT decision.
At the hearing which was conducted by video-link she was self-represented and gave oral evidence.
ISSUES
In order to qualify for DSP Ms O’Gorman-Watson had to satisfy the requirements of s 94 of the Act at the time of her claim or during the subsequent 13 week assessment period, that is, 31 August 2012 to 30 November 2012.
In the Statement of Facts and Contentions (SOFC) the Respondent conceded that at the relevant time Ms O’Gorman Watson had satisfied the requirements of s94(1)(a) and s9491)(b) but had failed to satisfy s91(1)(c) of the Act in that she did not have a continuing inability to work because s94(2) had not been satisfied.
In particular the Respondent submitted that she had failed to satisfy s94(2)(aa) because she did not have a ‘severe impairment’ within the meaning of section 94(3B) and had not actively participated in a program of support prior to the date of her DSP claim as required by s94(3C).
At the hearing the Respondent conceded that the only bar to Ms O’Gorman-Watson’s claim for DSP was her failure to satisfy s94(2) of the Act, in particular, her failure to actively participate in a program of support in accordance with s94(3C).
The requirements for active participation in a program of support are set out in Part 2, Section 5 of Social Security (Requirements and Guidelines–Active Participation for Disability Support Pension) Determination 2011 (the Determination).
In the course of the hearing it became evident that during the relevant period Ms O’Gorman-Watson was in fact participating in a designated program of support and that the Respondent had not fully considered all of the requirements set out in section 5 of the Determination, in particular s 5(5).
The Respondent was given leave by the Tribunal to address this issue in form of additional written submissions by a due date after the adjournment of the hearing.
Subsection 5(5) of the Determation states that:
This subsection is satisfied in relation to a person and a program of support if:
(a)At the relevant date of claim, 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
In written submissions, submitted on 24 February 2014, the Respondent submitted that Ms O’Gorman-Watson could only satisfy s 5(5) if she satisfied all of s 5(1) of the Determination.
The Respondent agreed that as there was no evidence that Ms O’Gorman-Watson had not complied with the requirements of a program of support she had satisfied s 5(1)(a)(i).
The Respondent also agreed that Ms O’Gorman-Watson was participating in a program of support during the 36 months ending before the relevant date of her claim and therefore satisfied s5(1)(a)(ii).
In respect of s 5(5) the Respondent accepted that Ms O’Gorman-Watson was participating in a program of support at the relevant date of her claim and therefore satisfied s5(5)(a).
However in respect of s 5(5)(b) the respondent submitted there was no satisfactory evidence 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 and therefore had not satisfied this section.
At the hearing Ms O’Gorman-Watson submitted that her impairments alone had prevented her from continuing to participate in the program.
The Respondent submitted that there was no evidence to confirm Ms O’Gorman-Watson’s submission and that her evidence alone was not sufficient to satisfy this requirement of the Determination and therefore the requirements of s 5(1) had not been satisfied.
It follows that the key issue in this matter is whether there is sufficient evidence to satisfy the Tribunal 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.
MS O’GORMAN-WATSON’S EVIDENCE
Ms O’Gorman-Watson explained that following an MRI scan in August 2012 her treating specialist informed her that she had developed new lesions in the brain and that she required new medication.
At first she suffered increasing symptoms in her upper limbs and by the time she had her JCA assessment she had pain and numbness in her right arm and a “frozen hand“ which caused her difficulty in writing.
Subsequently her symptoms progressed so that she was unable to get out of bed and by the time she attended her first appointment with Interwork Disability Services (IDS) on 4 October 2012 her right sided paralysis had extended to her leg and she was able to walk only with the aid of a walking stick.
Ms O’Gorman-Watson indicated that by November 2012 her condition had stabilised but had not really improved even though she felt that she able to manage a little better.
During this time she had difficulty with her personal care, needed assistance with showering and dressing and was unable to leave the house.
In order help with the care of her two school-aged children Ms O’Gorman-Watson had to seek assistance from the MS society even though they had become fairly self-reliant.
Ms O’Gorman-Watson explained that she had difficulty in going to shopping centres and relies on on-line shopping.
In December 2012 she managed to travel to the UK for about one month to visit her mother who had suffered a serious fall.
While in the UK Ms O’Gorman-Watson lost her balance and had a fall which resulted in a leg injury that required hospital treatment.
Ms O’Gorman-Watson explained that she has problems with short term memory and needs to put notes on the fridge to ”jolt her memory“ because, occasionally, she had missed doctor’s appointments. Sometimes her memory is completely blank.
Prior to the progression of her symptoms in August 2012 Ms O’Gorman-Watson was working fulltime as a manager of a child day care centre and on reflection now recognises that for about 12 months she had increasing memory, cognitive and speech problems. Her speech problems included intermittent slurred speech and more recently a stutter.
On 4 October 2012, Ms O’Gorman-Watson attended her first interview with a designated support program provider, IDS.
She explained that her attendance was difficult because of her physical impairment at that time.
Ms O’Gorman-Watson claims that at the interview she was told she did not have to attend because she had been suspended by Centrelink and she was not to worry because her attendance was probably just a formality. There was no clear explanation as to why she was suspended and what this actually meant so that she became confused and unsure as to how the program was supposed to assist her.
In response to questions from the Tribunal Ms O’Gorman-Watson indicated that she had intended to participate in the program and did not understand why she was prevented from doing so by Centrelink.
In subsequent contact with IDS she was informed that was to exit from program but was not provided with any meaningful explanation as to what this meant.
Later in 2013 when she tried to contact IDS Ms O’Gorman-Watson discovered that IDS was closing down because they had lost the contract with Centrelink and was informed that she had to go to ORS Employment Solution (ORS).
In September 2013 O’Gorman-Watson volunteered to attend ORS.
ADDITIONAL DOCUMENTARY EVIDENCE
Authorised Review Office Notes
On the 30 November 2012, just before finalizing the reviewable decision, the ARO had a telephone conversation with Ms O’Gorman-Watson in order to discuss her medical condition, her recent medication change and the effect of her condition on her functional capacity.
In the written record of that conversation the ARO notes that on the information he received that he would rate an additional “10 points under table 3 of IT (physical exertion and stamina).”
I note at this point that Table 3 is to be used for lower limb function and that physical exertion and stamina falls under Table 1.
The ARO also records that Ms O’Gorman-Watson “indicated difficulties that could be associated with 20 points under IT 2 upper limb.”
IDS File Note
On 29 November 2013, Ms O’Gorman-Watson requested, under the Freedom of Information Act 1982, access to her file held by IDS.
This file records the contact between Ms O’Gorman-Watson and IDS between 4 October 2012 and 25 February 2013.
The document confirms that Ms O’Gorman-Watson attended a face to face meeting on 4 October 2012 and she was suspended until 30 October 2012, the date of her next appointment.
On 15 October 2012, she sent an email to her contact person at IDS seeking assistance because she was having significant domestic difficulties and did not know what to do.
Ms O’Gorman-Watson was contacted by telephone and told that she needed to submit a Treating Doctor’s Report.
On 29 October 2012, there is apparent face to face meeting with Ms O’Gorman-Watson with a notation that her appointment on the following day was cancelled because the person involved had a meeting at headquarters.
The next entry of 6 November 2012 records a phone call to Ms O’Gorman-Watson asking her where she was for her appointment and a note was still suspended and would now “exit” the program.
The final entry on 25 February 2013 states “Client remains on suspension. Start date 20/12/2012.”
Record of participation in a program of support
This document confirms that Ms O’Gorman-Watson was participating in a program of support from 4 October 2012 to 3 March 2013 and from 18 September 2013 to an unspecified time.
ORS Employment Solutions document
This document was requested by the Tribunal and provides details of Ms O’Gorman-Watson’s participation in a program of support from October 2013.
The document states that Ms O’Gorman-Watson “has been on suspension from 28/11/13 -13/5/14 due to TRWC 0.7.”
The response to the question as to whether Ms O’Gorman-Watson was prevented from improving her capacity to find, gain or remain in employment through continued participation in the program is as follows:
In the time we have spent with Ms Ms O’Gorman Watson we have been unable to assist her with improving her capacity to find or gain employment due to her medical condition and numerous other personal factors.
Centrelink Computer Documents
Entry dated 4 October 2012 :
DES Provider contacted me and wanted to discuss why the customer was showing as suspended on their system. The customer is showing as suspended as her current and future work capacities are < 15 hours as per recent JCA report . Therefore customer is Centrelink managed however she can volunteer for DES if she wants to…
Entry dated 11 October 2012 :
Cus advised since her appointment condition has deteriorated as she now needs a walking stick, is numb down her right side, has trouble with distance which caused her to have a car accident. She has trouble with speech formation of sentences and concentration and this was observed during our phone conversation
CONSIDERATION
Ms O’Gorman-Watson is a relatively young woman who suffers from MS which is a progressive neurological condition that can cause global functional impairment. The evidence before the Tribunal clearly suggests that at the time of her claim for DSP her condition had progressed so that she had significant impairment in all her limbs, particularly on the right side, and also suffered impairment in her cognitive and communication functions.
Following the diagnosis of her condition in 2000 she was able to continue work fulltime until about August 2012 when her symptoms progressed and had such a significant impact on her functional capacities that she had to cease her usual employment.
On the 31 August 2012, she submitted a claim for DSP which was rejected by Centrelink and subsequently the SSAT on the basis that she did not have a “severe impairment” as defined in the Act and had not satisfied the requirement for active participation in a program of support.
On 5 September 2012, Ms O’Gorman-Watson was assessed and found to have an impairment rating of at least 25 points across 4 Impairment Tables.
In her oral evidence, which was unchallenged as to veracity or credit, Ms O’Gorman-Watson described a degree of impairment, during the assessment period, which suggests that her initial impairment rating of 25 points was likely to have been an underestimate and that the correct impairment rating was likely to have been greater than 40 points.
This is supported by the Centrelink record on 11 October 2012 and the ARO’s record of conversation on 30 November 2012.
The note by the ARO that Ms O’Gorman-Watson reported difficulties with her upper limb consistent with an impairment rating of 20 points, in my view, raises the distinct possibility that she did in fact meet the statutory requirement of a “severe impairment” during the assessment period.
In my view, any reasonable assessment of the evidence before the Tribunal supports a conclusion that Ms O’Gorman-Watson’s MS had progressed to a degree that had a severe impact on her overall functional capacity.
Unfortunately as no additional assessment was performed, for present purposes, I must assume that she did not meet the statutory requirement for “severe impairment”, that is, 20 points in a single Impairment Table.
Therefore, I am confronted with a situation where a person with a progressive global medical condition whose total impairment rating was probably greater than 40 points across several Impairment Tables is to be considered to have a level of functional impairment that is not “severe”.
This raises the question as to whether the Act provides any remedy for such a situation.
Section 94(5) of the Act states that a program of support is “designed to assist persons to prepare for, find or maintain work.”
Section 5(b) of the Determination appears to recognise a situation may arise in which a person who is participating in a program of support may, solely because of their impairment, be prevented from improving their “capacity to find, gain or remain in employment.”
The respondent has conceded that at the relevant date Ms O’Gorman-Watson was participating in a designated program of support.
Ms O’Gorman-Watson submitted that the nature and severity of her condition had prevented her from obtaining any benefit by participating in this program.
She stated in her oral evidence that she was told that nothing could be done for her because she was “suspended” by Centrelink and would need to “exit” from the program. She believed that she had been suspended from the program because of the effect of her impairment on her capacity to work.
The Respondent submitted that there was no other evidence to “confirm” Ms O’Gorman-Watson’s submission and that her “evidence alone is not sufficient to satisfy this requirement of the Determination” and that only the program provider could determine whether she was prevented from improving her capacity for employment.
I have some difficulty with the Respondent’s submission which was not supported by any contrary evidence or any authority.
On consideration of the available evidence in respect of the nature and severity of Ms O’Gorman-Watson’s condition and its effect on her cognitive, communication and physical capacities I have formed the view that she would be unlikely to benefit from a program of support unless it was tailored to meet her specific needs.
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 IDS document which Ms O’Gorman-Watson was forced to obtain under FOI provides little meaningful information. It is full of acronyms and is barely comprehensible. Nevertheless, the document does support her oral evidence in that the program was unable assist her, that she was in fact suspended from the program by Centrelink and was to exit the program..
Neither the IDS nor the Centrelink documents provide a coherent reason for her “suspension” but seem to suggest that it had something to do with her capacity for work.
Furthermore, although the ORS document refers to a period of participation not directly related to the assessment period it does, in my view, support the proposition that Ms O’Gorman-Watson was not able to be assisted by this type of program.
After having considered all the evidence before the Tribunal and for reasons outlined above I have formed the view that during the assessment period 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 that she was participating in at that time.
This means that Ms O’Gorman-Watson satisfied the requirements of s 5(5) of the Determination.
Also I am satisfied that in the circumstances of this case Centrelink has access to sufficient information to satisfy the requirements of s 5(6) of the Determination.
It follows that I am satisfied that at the relevant time Ms O’Gorman-Watson satisfied s 94 of the Act and was qualified for DSP.
DECISION
The Reviewable Decision is set aside and replaced by a decision that at the relevant time Ms O’Gorman-Watson satisfied s 94 of the Act and was qualified for Disability Support Pension.
The matter is remitted to the Secretary for further action.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member ......(Sgd) T Freeman............................
Associate
Dated 30 April 2014
Date(s) of hearing 10 February 2014 Applicant In person Representative for the Respondent Ms S Yik Long Solicitors for the Respondent Australian Government Solicitor
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