Peter Gabath and Secretary, Department of Social Services
[2014] AATA 966
•24 December 2014
[2014] AATA 966
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2875
Re
Peter Gabath
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Senior Member A C CotterDate 24 December 2014 Place Brisbane The Tribunal affirms the decision under review.
..............................[Sgd]..........................................Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether continuing inability to work – Applicant did not participate in a program of support – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Schedule 2
SECONDARY MATERIALS
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) s 5
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
24 December 2014
INTRODUCTION
We have to decide whether Mr Peter Gabath (“the applicant”) is entitled to
Disability Support Pension (“DSP”).
BACKGROUND
Until August 2009 the applicant was receiving DSP. This benefit was cancelled with effect from 7 March 2012 due to his absence from Australia. In May 2013 the applicant was involved in a motor vehicle accident in Papua New Guinea and was repatriated to Australia for treatment at the Cairns Base Hospital.
On 20 June 2013 the applicant made a claim for DSP. In the claim form he listed his disabilities as “broken right leg x 2, broken hip”.[1] On 1 July 2013 a medical report was completed by Dr Conrad of the Cairns Base Hospital confirming that the applicant has the conditions of a “fractured femur”[2] and “Hep C”.[3] In that report, Dr Conrad opined that the impact of the fractured femur was expected to persist for between three and 24 months and the condition was expected to significantly improve within two years.
Dr Conrad was of the view that the applicant should be able to work in three to four months from that time.
[1] Exhibit A, T5, page 54.
[2] Exhibit A, T8, page 83.
[3] Exhibit A, T8, page 82.
On 17 October 2013 Centrelink made a decision to reject the claim for DSP. On
29 November 2013 the applicant sought a review of that decision and provided a report from Dr Geddam dated 28 November 2013. On 17 December 2013 a
Job Capacity Assessment (“JCA”) assigned a total impairment rating of 10 points; it was also considered that the applicant had a capacity to work 15 to 22 hours per week within two years with intervention. On 19 March 2014 an Authorised Review Officer affirmed the decision to reject the claim for DSP. The Social Security Appeals Tribunal affirmed the decision on 7 May 2014. The applicant now seeks review of that decision by this Tribunal.
RELEVANT LEGISLATION
Qualification for Disability Support Pension
To qualify for DSP the applicant must satisfy the requirements contained in s 94(1) of the Social Security Act 1991 (Cth) (“the Act”), prior to amendments made subsequent to the applicant’s claim. Section 94(1) provides:
(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.
Impairment Tables
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) which commenced operation on 1 January 2012. An impairment rating can only be assigned if an impairment is permanent; that is, that it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.[4]
[4] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3) – (7).
Relevant period for qualification
Clause 4(1) of Sch 2 of the Social Security (Administration) Act 1999 (Cth) provides:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
The claim for DSP must be assessed as at the date of the claim or within 13 weeks of that date. There is no issue that this period is from 21 June 2013 until 20 September 2013 (“the relevant period”).
ISSUES
We have to determine whether within the relevant period the applicant:
·had physical, intellectual or psychiatric impairments of 20 points or more under the Impairment Tables; and
·had actively participated in a program of support; and
·otherwise had a “continuing inability to work”.
CONSIDERATION
We are satisfied that the applicant has impairments for the purposes of
s 94(1)(a) of the Act. These impairments are a lower limb condition and a hepatitis C condition.
We will next consider whether the applicant had physical, intellectual or psychiatric impairments of 20 points or more under the Impairment Tables.
We have considered the lower limb conditions of the applicant and conclude that those conditions could not be regarded as being fully diagnosed, fully treated and fully stabilised in the relevant period to enable an impairment rating to be assigned in respect of those conditions. Dr Conrad, in his report dated 1 July 2013 (within the relevant period), gave his opinion that the impact caused by the fractured femur was expected to persist between three and 24 months and that the condition was expected to significantly improve within two years. The applicant suffered from post-operative infections and complications after he was treated. The discharge summary of 11 June 2013 records that the applicant had a fractured right hip. This condition could certainly not be regarded as being fully treated in the relevant period as it was not until 27 March 2014 when the applicant underwent a hip procedure operation.
The applicant has vasculitis/vascular disease but there is no medical evidence of any impact caused by this condition in the relevant period. There is no evidence of any functional impairment that caused that condition. Indeed Dr Geddam, in his report dated 28 November 2013, gave his opinion that the condition is generally well-managed and causes limited impact.[5]
[5] Exhibit A, T10, page 102.
The Secretary has quite properly conceded that at the date of the claim the hepatitis condition was fully diagnosed, fully treated, and fully stabilised. In his report dated
28 November 2013, Dr Geddam expressed the opinion that the “chronic”[6] condition of the applicant had a date of onset of 2007. Dr Geddam considered that the condition was expected to persist for more than 24 months. As the hepatitis condition affects the liver, we consider that the condition should be rated under Table 10 – Digestive and Reproductive Function (“Table 10”) in the Impairment Tables. The JCA report dated
17 December 2013 records the applicant as having advised that the condition caused “poor concentration with difficulties staying focussed [sic] on some tasks, aggressive, tired”.[7] In these circumstances we consider that the appropriate rating of the condition is five points under Table 10.
[6] Exhibit A, T10, page 99.
[7] Exhibit A, T11, page 107.
There are some other conditions that must be considered. Whilst the applicant suffers from hypertension, gout and kidney problems, there is no evidence of any of those conditions causing any functional impact during the relevant period. In his report dated 28 November 2013, Dr Geddam stated that the renal disease condition of the applicant is generally well-managed and causes minimal or limited impact. The applicant has been prescribed medication for certain conditions which cannot be assigned a rating because they are not fully treated; the discharge summary of 11 June 2013 records that the applicant had ceased all medications for the previous three years.
We consider that the impairments can be rated a total of five points under the Impairment Tables. The applicant was not qualified for DSP because during the relevant period the applicant did not satisfy s 94(1)(b) of the Act.
Continuing inability to work
We have to consider whether the applicant had a continuing inability to work during the relevant period. The term “continuing inability to work” is defined in s 94(2) of the Act:
(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. (emphasis in original)
The term “severe impairment” is defined in s 94(3B) of the Act:
(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. (emphasis in original)
We do not consider that there is any medical evidence to warrant an impairment being assigned a rating of 20 points or more under a single Impairment Table. Therefore, it is necessary that the applicant must have actively participated in a program of support before he can be regarded as having a continuing inability to work within the meaning of s 94(2) of the Act.
The applicant will have been taken to have actively participated in a program of support if he meets the requirements set out in the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) (“the Determination”). The Determination requires a person to participate in a program of support for at least 18 months in the 36 months prior to the date of the relevant claim for DSP.[8] There are some exceptions in s 5(3) – (5) of the Determination which are not material to this application.
[8] Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) s 5(1) – (2).
As the applicant had not actively participated in any program of support in the 36 months prior to his claim for DSP, he did not satisfy ss 94(2)(aa) and 94(1)(c) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member. ................................[Sgd]........................................
Associate
Dated 24 December 2014
Date of hearing 24 November 2014 Applicant In person Solicitors for the Respondent Joe Guthrie, Department of Human Services
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