Philip Gee and Secretary, Department of Social Services
[2016] AATA 87
•18 February 2016
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2015/2569
GENERAL Division )Re: Philip Gee
Applicant
And: Secretary, Department of Social Services
RespondentCORRIGENDUM TO DECISION
TRIBUNAL: Dr Damien Cremean, Senior Member
DATE: 2 March 2016
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
In paragraph 10 replace the words:
I am satisfied that the Respondent was correct in allocating 5 points to him and that he suffers moderate functional impact.
with the words:
I am satisfied that the Respondent was correct in allocating 5 points to him and that he suffers mild functional impact.
...............................[sgd]....................................
Senior Member
Dr Damien Cremean, Senior Member
Gee and Secretary, Department of Social Services (Social services second review) [2016] AATA 87 (18 February 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2569
Re
Philip Gee
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Dr Damien Cremean, Senior Member
Date 18 February 2016 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Dr Damien Cremean, Senior Member
SOCIAL SECURITY –Disability support pension—whether statutory requirements satisfied—Impairment Tables—no participation in program of active support—decision affirmed.
Legislation
Social Security Act 1991(Cth), section 94
Secondary Materials
Social Security (Tables for the Assessment of work-related Impairment for Disability support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
18 February 2016
The Applicant seeks review of the decision of the former Social Security Appeals Tribunal (SSAT) made on 17 April 2015 which affirmed the decision of the Department of Human Services to reject the claim by the Applicant for disability support pension (DSP), lodged on 21 November 2014.
The issues for determination are whether within a period (the relevant period) of 13 weeks after 21 November 2014 (that is, by 15 February 2015) the Applicant was qualified for DSP having regard to the requirements of section 94(1) of the Social Security Act 1991 (Cth) (the Act).
Section 94 (1) of the Act specifies that a person is qualified for DSP 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.
In this case the Applicant satisfies section 94(1)(a) during the relevant period in that he suffered various physical and psychiatric impairments resulting from musculoskeletal conditions and suffered also from depression.
It is therefore a question of whether during the relevant period the Applicant also satisfied section 94(1)(b) and section 94(1)(c)(i).
By section 94(1)(b), the Applicant’s impairment must be 20 points or more under the Impairment Tables. Those Tables are introduced by the Social Security (Tables for theAssessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables) and are made under section 26(1) of the Act. The Impairment Tables (15 in number) are used to assess whether a person satisfies the qualification requirement in section 94(1)(b) of the Act. The Impairment Tables are function based rather than diagnosis based.
Table 2 of the Impairment Tables applies to the Applicant as regards his upper limb function. The Respondent accepts that during the relevant period he should be assigned 5 points.
The Applicant was born in 1958 and gave evidence by telephone at the hearing, as did his wife. It is evident that he is still in considerable pain and discomfort even though he was injured in December 2002.
Much of his evidence was focused on Table 2 of the Impairment Tables and was corroborated by that of his wife. The question was whether he fell under 5 or 10 points under Table 2. That is to say, whether there was a mild or moderate functional impact to his upper limb function.
I formed the view that the Applicant was not within the 10-point category for his upper limb function. The Applicant has weakness of arms, hands and wrists, but having heard from him, I am satisfied that the Respondent was correct in allocating 5 points to him and that he suffers moderate functional impact.
Table 3 of the Impairment Tables deals with Lower Limb Function. The Applicant suffers chronic leg pain and has difficulty walking. Having heard the Applicant, I am satisfied that 5 points is an appropriate impairment rating under this Table given the range of activities he is able to perform.
Table 4 of the Impairment Tables deals with Spinal Function. It is submitted by the Respondent that 10 points is the appropriate rating to give to the Applicant for this condition. The Applicant suffers chronic back pain, neck pain and headaches. In his report dated 18 January 2015, Dr Oliver noted that the Applicant struggles with daily living.
The Tribunal questioned the Applicant and his wife carefully on this with a view to seeing whether an allocation of 20 points was more appropriate. Unfortunately, there is no 15 point range.
I was not satisfied that the Applicant’s Spinal Function merited 20 points under Table 4 of the Impairment Tables. Each of paragraphs (a), (b), (c) and (d) under the 20 point threshold in Table 4 is a separate item and if one paragraph is satisfied, that satisfies the threshold. I was concerned with paragraph (a) as I did not regard the Applicant as satisfying any of the others. But after reviewing the evidence, I am not satisfied that he qualifies under paragraph (a) in that I consider he is able to perform overhead (and shoulder height) activities.
Table 5 deals with Mental Health Function. I am in no doubt that the Applicant is significantly depressed and anxious. However, to fall within Table 5, his condition during the relevant period must have been fully diagnosed, treated and stabilised. I am not satisfied that his condition meets these criteria. Nor am I satisfied, as required, that he has received treatment from a psychiatrist or a clinical psychologist.
The case was adjourned off midway in order to enable the Applicant to provide materials concerning his acquired brain injury. Those materials were provided, but the Respondent’s position was unchanged in light of those materials.
The total of the Applicant’s points under the Impairment Tables, on this analysis, is 20.
It follows from this that the Applicant satisfies section 94(1)(b) of the Act.
However, the Applicant does not satisfy section 94(1)(c) of the Act. That is to say, I am not satisfied that he has a continuing inability to work.
I refer to section 94(2) of the Act, which specifies that if a person does not have a severe impairment as defined (20 points as a result of one condition on the Impairment Tables), then that person must have actively participated in a program of active support. A program of active support is a program designed to assist persons to prepare for, find, or maintain work. If a person has not actively participated in a program when required to do so, then the person does not have a continuing inability to work.
I am not satisfied that the Applicant has participated in a program of active support for the required period in the three years immediately prior to the date of his claim. The materials on file plainly show this to be so.
There are no exceptions which apply to exclude the Applicant from required participation.
The Applicant has been given the opportunity to lodge any final submissions but has indicated he does not intend to do so.
Accordingly, the Applicant has not satisfied section 94(1)(c) of the Act. I affirm the decision under review.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member [sgd]........................................................................
Associate
Dated 18 February 2016
Date of hearing 20 November 2015 Applicant In person Advocate for the Respondent Julie Zhou Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Administrative Law
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Social Security
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Statutory Interpretation
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