Paul Geoffrey Berry and Secretary, Department of Social Services

[2013] AATA 705

[2013] AATA 705

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2252
Re	Paul Geoffrey Berry
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Decision

Tribunal	Ms A F Cunningham (Senior Member)
Date	2 October 2013
Place	Hobart

The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Ms A F Cunningham (Senior Member)

SOCIAL SECURITY - disability support pension - conditions of poliomyelitis, hypertension, hypercholesterolemia - conditions fully diagnosed, treated and stabilised - 20 point impairment rating not satisfied - decision under review affirmed

Social Security Act 1991, ss 23, 26(1), (3), 94(1), (3A), (3B), (3C), (5)

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

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

1. The applicant Paul Berry, seeks the review of a decision of the Social Security Appeals Tribunal (SSAT) made on 15 April 2013 which affirmed a decision of Centrelink not to grant his claim for disability support pension (DSP).

2. Mr Berry’s claim for DSP was made on 2 October 2012 and was refused on the basis that his conditions did not attract the required 20 points under the Impairment Tables. This decision made by a Centrelink officer was affirmed by an Authorised Review Officer (ARO) on 20 February 2013 and by the SSAT on 11 April 2013. The ARO had assessed that Mr Berry’s poliomyelitis attracted an impairment rating of 10 points and that his other conditions attracted no impairment points.

3. Mr Berry appeared on his own behalf at the hearing and gave oral evidence. Brian Sparkes appeared on behalf of the Secretary and tendered the T Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. It was Mr Berry’s contention that the decisions under review which had refused his application for DSP were made by persons who did not understand the nature and impacts of poliomyelitis.

4. The issues for the Tribunal to determine are firstly, whether any of Mr Berry’s conditions attracted an impairment rating of at least 20 points under the Impairment Tables; and if so, secondly, whether he has a continuing inability to work.

   Legislation

5. The qualification provisions for DSP are contained in section 94 of the Social Security Act 1991 and particularly in subsection (1) which reads as follows:

   “(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d)       the person has turned 16; and

   (da)     in a case where the following apply:

   (i)        the person is under 35 years of age;

   (ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

   (iii)      if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e)       the person either:

   (i)        is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)       has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)      is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)      is not an Australian resident; and

   (B)      is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea)     one of the following applies:

   (i)        the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)       the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

   Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27”.

6. The provisions with respect to "continuing inability to work are contained in subsection (2) which provides:

   “(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)     in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)       in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)       in all cases—either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)       if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:    For work see subsection (5)”.

7. Also of relevance are subsection (3):

   “(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)       the availability to the person of a training activity; or

   (b)the availability to the person of work in the person’s locally accessible labour market.

   (3A)     If:

   (a)       a person is receiving disability support pension; and

   (b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;

   then paragraph (2)(aa) of this section does not apply in relation to that assessment.

   Severe impairment

   (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   Example 1:      A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

   Example 2:      A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

   Example 3:      A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

   Active participation in a program of support

   (3C)     A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection”.

8. "Work" is defined in subsection (5) as:

   “work means work:

   (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b)that exists in Australia, even if not within the person’s locally accessible labour market”.

9. The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 include the Rules for applying the Impairment Tables and Tables 1 to 15.

10. The requirements set out in subsection 94(1) are conjunctive and a failure to satisfy any one means that a person does not qualify for DSP. It was conceded by the Secretary that Mr Berry satisfies the provisions of subparagraph (a), (d) and (e) but does not meet the requirements of subparagraph (b) and (c) which concern an impairment rating of 20 points or more and a continuing inability to work.

    Impairment Rating

11. Subsection 94(1)(b) of the Act provides that to qualify for DSP a person must have an impairment rating of at least 20 points under the Impairment Tables.

12. Section 23 of the Act provides that Impairment Tables mean the Tables determined by an Instrument under subsection 26(1) of the Act. The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination) is the legislative Instrument determined pursuant to subsection 26(3) of the Act. The Tables are provided in Part 3 of the Determination and the rules for applying the Tables are contained in Part 2.

13. The application provisions for the Impairment Tables state in clause 6 of Part 2 that an impairment rating can only be assigned if the person's condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.  The example given is a condition that may last for more than two years but if the impairment resulting from the condition is likely to improve or cease within two years, an impairment rating under the Tables cannot be assigned to the impairment.

14. A condition is assessed as permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, the condition has been fully treated, has been fully stabilised and is more likely than not, in light of available evidence to persist for more than two years. (Clause 6(4)).

15. Subclause 6(5) provides that in determining whether a condition has been fully diagnosed consideration is to be given to corroborating evidence and what treatment or rehabilitation has occurred and whether treatment is continuing or is planned in the next two years.

16. Subclause 6(6) sets out the considerations for assessment as to whether a condition is fully stabilised namely:  whether the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvements to a level enabling the person to undertake work in the next two years; or the person has not undertaken reasonable treatment for the condition and either significant functional improvement to a level enabling the person to undertake work in the next two years is not expected even if the person undertakes reasonable treatment; or there is a medical or other compelling reason for the person not to undertake reasonable treatment. “Reasonable treatment” is defined in subsection (7).  Subsection (8) provides that the presence of the diagnosed condition does not necessarily mean that there will be an impairment rating assigned.

    Evidence

17. Mr Berry described how he had managed to live with his poliomyelitis affliction since birth which until recently, had not greatly interfered with his lifestyle. He said that he had chosen self-employment which afforded him flexibility and the ability to manage his work activity. The condition is progressive however, and in the last few years the symptoms have increasingly impacted on his ability to work and manage simple tasks of day-to-day living.

18. Due to deteriorating health Mr Berry was forced to retire from work on 1 July 2012. Until then he had managed and worked in his own business which was an engineering company. The nature of his work required strenuous physical activity which he was no longer able to manage due to the increasing symptoms of poliomyelitis. Mr Berry also suffers from angina and now has difficulty walking any distance, inclines and negotiating steps. It was Mr Berry’s evidence that the past six months have been particularly difficult for him. He had not previously been affected by colder winter temperatures but said that he has noticed that his leg in particular is affected by the cold weather and “gets scaringly cold”.

19. Mr Berry said that his wife undertakes all of their shopping and his grandson mows the lawns. Mr Berry lives with his wife and whilst he is still able to wash and dress himself, said that his days are mostly occupied by watching television and venturing into his garden and shed. Mr Berry said that he has good and bad days.  Today he was able to drive from his home in Burnie to the hearing in Launceston, walk slowly and carefully to the hearing venue and sit for over an hour during the delivery of his evidence. He said that on a bad day however, he would not have been able to manage these tasks. Although he is still able to drive, Mr Berry said that he does so rarely. He accompanies his wife to the supermarket but remains in the car. The symptoms of poliomyelitis are felt in his muscles, joints and a sense of fatigue.

20. It was Mr Berry’s evidence that whilst the symptoms from his condition have remained pretty much the same since he lodged his claim in October 2012, he has noticed an increased stiffening of his limbs and the frequency of “episodes”. He considers that his condition has deteriorated by some 20% over the last 12 months. Mr Berry said that he is generally able to walk independently with a cane. On occasions he uses crutches particularly when he is required to walk a distance of at least 10 metres or stand in a queue for any length of time. Mr Berry has recently been diagnosed with type II diabetes and has problems with his right foot.

    Findings

21. It was conceded by the Secretary and the Tribunal accepts that the evidence supports a finding that Mr Berry’s conditions are fully diagnosed, treated and stabilised and therefore permanent for the purposes of the Determination being the Tables for Assessment of Work-related Impairment. Mr Berry’s conditions are referred to in the medical report accompanying his application for DSP which includes information regarding diagnosis, treatment and impact on ability to function. (T4)

22. The Job Capacity Assessment Report (JCA) dated 6 November 2012 is contained at T5. This report also acknowledges that Mr Berry’s conditions of poliomyelitis, hypertension, circulatory system and coronary artery disease are each fully diagnosed, fully treated and fully stabilised and therefore considered permanent.

23. Each of these conditions are therefore eligible for assessment under the Impairment Tables. The JCA reported that the conditions are all well controlled with medication and have limited functional impact. The JCA assessed an impairment rating of 10 points under Table 3 for poliomyelitis on the basis that Mr Berry is able to walk from the car park into a supermarket without assistance and able to stand up from a sitting position without assistance. Mr Berry’s other conditions were assessed as attracting no impairment points.  The JCA’s assessments were endorsed by the ARO and the SSAT.

24. The activities referable for 10 points and 20 points respectively under Table 3 - Lower Limb Function are set out below:

    “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 car park 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”.

25. The significant difference between the activities which attract an impairment rating of 20 points for “severe functional impact” is the requirement for assistance. This Table requires that the person is unable to perform any of the listed activities without assistance. The Introduction to Table 3 also requires that there be corroborating evidence of the person’s impairment and that self-reporting of symptoms alone is not sufficient. The types of corroborating evidence required are medical reports and diagnostic or physical tests or assessments.

26. Whilst the Tribunal has no reason to doubt the veracity of Mr Berry’s evidence regarding the impact of his conditions on his ability to perform the listed activities, even on his evidence it is clear that he is currently, and was at the date of his claim for DSP, albeit with some difficulty, able to walk and stand from a sitting position without assistance. Although Mr Berry fears that the deteriorating nature of his condition will ultimately see him in a wheelchair, he is currently able to manage with the use of a cane and on occasions, crutches. Mr Berry’s own description of the functional impact of his poliomyelitis on his day-to-day activities does not fit the criteria for an impairment rating of 20 points.  On his own admission, Mr Berry agrees that he is not currently at the stage of requiring the assistance referred to in that Table.

27. There was no attempt by Mr Berry to exaggerate his symptoms in order to fit the criteria required for an impairment rating of 20 points.  He gave his evidence in a frank and honest manner. The Tribunal admires Mr Berry’s fortitude in attempting to resist the impacts of his deteriorating condition. Whilst Mr Berry’s doctor, Professor M Buist supports his application for DSP on the basis of his deteriorating health, the application must be assessed in accordance with the legislative requirements as outlined above.  Subsection 94(1)(b) requires an impairment rating of 20 points under the Impairment Tables.  For the above stated reasons neither Mr Berry’s poliomyelitis or his other accepted conditions, currently attract a 20 point impairment rating.

28. The Tribunal has no discretion under the provisions of the legislation to do otherwise than affirm the decision under review rejecting Mr Berry’s claim for DSP. On the basis of this finding it is not necessary to consider the remaining qualification requirement for DSP, namely continuing inability to work.

I certify that the preceding 28 (twenty eight) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

[Sgd]

Administrative Assistant

Dated :   2 October 2013

Date(s) of hearing	16 September 2013
Applicant	In person
Solicitors for the Respondent	Mr B Sparkes, Program Litigation and Review Branch