Robinson and Secretary, Department of Social Services (Social services second review) - [2024] AATA 240

Robinson and Secretary, Department of Social Services (Social services second review) [2024] AATA 240 (23 February 2024)
Division:GENERAL DIVISION
File Number(s): 2023/5171
Re:Stephen Robinson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:23 February 2024
Place:Adelaide

The Tribunal affirms the decision under review.
.......[sgnd].................................................................
Senior Member K Millar
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – whether applicant has a continuing inability to work – applicant did not participate in a program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 112
Prahauser v Administrative Appeals Tribunal [2020] FCA 1658
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member K Millar
23 February 2024

Mr Robinson is 64 years old and has Type 1 Diabetes. This has resulted in bilateral below knee amputations and problems with his peripheral vision. He has hip and back pain, a hearing impairment, and a right thumb amputation which has been repaired with a graft from his toe. He has problems with his shoulders and has had arthroscopies to each shoulder on two occasions.
Mr Robinson claimed a Disability Support Pension (‘DSP’) on 19 May 2022, listing his conditions as two below knee amputations and prosthetics, a screw in the right ball of his femur, and two arthroscopies to both shoulders.
His claim for a DSP was refused by a delegate of the Secretary. The delegate’s decision was affirmed on internal review by an Authorised Review Officer and the Social Services and Child Support Division of this Tribunal.
This is a further review of the delegate’s decision to refuse Mr Robinson’s claim for a DSP.
QUALIFICATION FOR DISABILITY SUPPORT PENSION
The criteria for a disability support pension in s 94(1) of the Social Security Act 1991 include that a person must have a physical, intellectual or psychiatric impairment (s 94(1)(a)), the impairment or impairments must be of 20 points or more under the Impairment Tables (s 94(1)(b)), and the person must have a continuing inability to work (s 94(1)(c)).
The time in which Mr Robinson must meet these requirements starts on the date he claimed DSP. He may qualify for a DSP if he becomes qualified in the 13 weeks after his claim.[1] Mr Robinson claimed DSP on 19 May 2022, and the 13-week period ends on 18 August 2022 (‘the qualification period’).
Does Mr Robinson have a physical, intellectual or psychiatric impairment?
[1] Social Security (Administration) Act 1999 (Cth) ss 41 – 42, sch 2 cl 4; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, Prahauser v Administrative Appeals Tribunal [2020] FCA 1658 at [23].
Mr Robinson has bilateral below knee amputations, arthritis in his right hip, an amputation of his right thumb, weakness in his upper limbs, a visual impairment, and a hearing impairment. He has Type 1 diabetes.
Mr Robinson has physical impairments and meets s 94(1)(a) of the Act.
Does Mr Robinson have an impairment rating of 20 points or more on the impairment rating tables?
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
These tables set out rules for when an impairment rating can be assigned and provide a rating system. To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment must be more likely than not, in light of available evidence, to persist for more than two years.[2]
[2]Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 cl 6(3).
To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated, fully stabilised and more likely than not to persist for two years.[3]
[3] Ibid 6(4).
In deciding if a condition is fully diagnosed and treated, corroborating evidence of the condition, the treatment and rehabilitation that has occurred, and whether treatment is continuing or planned in the next two years, is to be considered.[4]
[4] Ibid 6(5).
The Impairment Tables set out at clause 6(6) when a condition is fully stabilised. A condition is fully stabilised if the person has undertaken reasonable treatment for the condition, and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years.[5] Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity,[6] and that has a high success rate.[7]
[5] Ibid 6(6)(a).
[6] Ibid 6(7)(c).
[7] Ibid 6(7)(e).
Each of the functional areas affected by Mr Robinson’s conditions has been considered.
Lower limbs
A letter from Dr Abbot, orthopaedic registrar at the Alice Springs hospital, reports that Mr Robinson has bilateral below knee amputations secondary to Type 1 diabetes, and he is unable to mobilise more than 50 metres due to severe pain in his right hip.
A job capacity assessment conducted 23 September 2022 reports that Mr Robinson told the assessor that MRI and X-ray did not explain his hip pain, with only some wear in the right joint. Mr Robinson is reported as saying Dr Abbot recommended to build up muscle in the pain areas through physiotherapy and he is waiting to commence physiotherapy.
A report from Dr Williams, a senior orthopaedic consultant dated 11 November 2022, outside the qualification period, states that Mr Robinson has severe arthritis of the hip, dysfunction of the spine and evidence of myelopathy and weakness of the upper limbs. In the opinion of Dr Williams, Mr Robinson has a serve functional impact of his upper and lower limbs. The review officer from Centrelink’s Health Professional Advisory Unit (‘HPAU’) contacted Dr Williams who said there were no surgical options for the arthritis in Mr Robinson’s hip, and conservative treatments were not expected to result in a significant improvement to his function. Dr Williams reported that Mr Robinson has little walking tolerance and ability to use stairs, and that he could not comment on whether Mr Robinson needed assistance to stand from sitting.
A medical certificate from his general practitioner dated 17 February 2023, outside of the qualification period, states that Mr Robinson has severe right hip arthritis, dysfunctional spine and below knee amputations with prostheses. It is reported he is unable to sit for more than two hours and unable to walk more than 50 metres. Past, planned and future treatment includes physiotherapy, and it is not reported if this has been undertaken to date. The review officer from HPAU contacted the general practitioner who stated that Mr Robinson does not need assistance from another person to stand up from sitting.
A further report from a general practitioner dated 27 February 2023 states that Mr Robinson has difficulty standing and walking.
Given Dr Williams’ view that conservative treatments are unlikely to improve Mr Robinson’s hip condition and that surgery is not an option, this condition is fully diagnosed, treated and stabilised. Mr Robinson has longstanding bilateral amputations which are also fully diagnosed, treated and stabilised. These conditions are likely to persist for more than two years.
Mr Robinson explained that he can drive to the local shopping centre where he walks from the disabled carpark to the shopping centre where he rests before doing any shopping. He can do his shopping by leaning on the trolley. He is limited to a walking distance of 50 metres unaided and needs to rest when taking his bins out as this is 100 metres. He can go up and down stairs with difficulty using a handrail. He can stand for short periods of time of a few minutes.
Mr Robinson considered that the range he can walk should also be assessed under Table 1 that assesses physical exertion and stamina. However, the impairment that limits how far Mr Robinson can walk is his leg and hip pain, and the pain in his mid-back. As the functional impact is from his lower limbs and back, and Mr Robinson does not have a condition that limits his physical exertion due to cardiac or respiratory limitations, Table 3 is the correct table.
Mr Robinson also disagreed with his hip condition being included in the assessment of his lower limbs, however the introduction to Table 3 states that the lower limbs extend from the hips to the toes.
To meet the requirements for 20 points for a lower limb impairment, Mr Robinson must be unable to walk from the carpark into a shopping centre or supermarket without assistance, and unable to stand from a sitting position without assistance. His impairment is assessed when he is using any aids, equipment or assistive technology.[8] In this case, this is assessed when Mr Robinson is using his prostheses.
[8] Ibid cl 9.
In his application for review, Mr Robinson has stated he can walk into a shopping centre from a carpark. To have a rating of 20 points for lower limb function, Mr Robinson must be unable to walk from the carpark into a shopping centre or supermarket without assistance. Mr Robinson has said that he can walk from a disabled carpark into the shopping centre and has also said that he can walk for approximately 50 metres. He does not meet the requirements to be unable to walk from the carpark to the shopping centre, which means he does not meet the requirements for 20 points for his lower limb impairment.
It is not disputed that he meets the requirements for 10 points on Table 3.
Mid-back
Mr Robinson said that the distance he can walk and the time he can stand is limited by pain in his mid-back on the right-hand side. There is little medical information of an impairment of his back, beyond the report of Dr Williams and Dr Johnson that he has a ‘dysfunctional spine.’ I do not consider that this shows that the condition is fully diagnosed. Mr Robinson said that he has seen a physiotherapist who cannot assist him further, however in the absence of further information this condition is not fully diagnosed and treated and impairment points cannot be assigned.
Upper limbs
A further report from Dr Johnson of the Central Clinic in Alice Springs, dated 27 February 2023, reports that Mr Robinson has reduced function in his right hand following a traumatic amputation of his right thumb. This results in reduced sensation to touch and restricted movement with difficulties holding small objects as well as heavy objects. He is reported to have difficulty doing up buttons.
In his application for review, Mr Robinson states that his right thumb was amputated in early 1983 and replaced with a graft from his right big toe and a bone graft from his right hip. He states that his right thumb is 25mm shorter than his left thumb and has a limited pivot point at the base of the thumb with no knuckle. He has limited movement as he can only reach his middle finger with his thumb and has little feeling in the thumb making it a problem to pick up small objects or handle heavy objects.
Mr Robinson states that he broke his left wrist in 1973 or 1974, his left forearm in approximately 1977, and his left wrist again in 1980. He claims this limits the weight of items he can handle. He states that he has had shoulder arthroscopies to his right shoulder on two occasions. No reports from these injuries or arthroscopies have been provided, and Mr Robinson states that he does not have documentation from these old injuries and that Dr Johnson is not aware of the detail. There is one report from an orthopaedic surgeon stating that he has weakness in his upper limbs.
Mr Robinson said he has difficulty managing small items like his medication. He can use a pen or pencil and has difficulty with buttons. He can lift a one litre bottle and can pick up a light but bulky item such as a cardboard box. He can unscrew the lid of a bottle. As the requirements for 10 impairment points require him to have difficulty with most of these items, he does not meet the requirements for 10 impairment points.
He does meet the requirements for 5 impairment points for the effect of his upper limb condition.
Vision
A report dated 14 December 2022 from ophthalmologist Dr Henderson states that Mr Robinson remains under ongoing review at the eye clinic and has longstanding eye symptoms which remain stable but have resulted in mildly reduced peripheral vision. This is not expected to change and will remain stable for the reasonably foreseeable future. This condition is fully diagnosed, treated and stabilised.
Dr Johnson reports on 27 February 2023 that Mr Robinson has bilateral reduced visual acuity and restricted visual field. This is consistent with the diagnosis of severe proliferative retinopathy.
In his application for review, Mr Robinson said he fails the Humphrey Visual Field test and has to undergo other testing in Darwin to retain his drivers license. As he did retain his license, I infer he is able to see road signs or street signs but has to turn his head.
I find he has a mild difficulty with his vision, corroborated by the medical reports, which attracts 5 impairment points.
Hearing loss
A report from an audiologist dated 10 August 2021 reports Mr Robinson has longstanding hearing loss and tinnitus which is heard in his left ear. It is reported at present that the tinnitus is non-bothersome and does not affect the quality of his sleep. It is reported that he has difficulty discriminating the speech of others against background noise in social settings. It is reported that he is a good candidate for hearing devices, but he was adamant that he did not want to proceed with hearing rehabilitation.
The medical report of 27 February 2023 finds that Mr Robinson has ongoing tinnitus and long-standing hearing loss and that his hearing is very limited in an environment with background noise.
In his application for review, Mr Robinson states that he has hearing aids on their way which he will collect when available to see if they improve his hearing and the tinnitus in his left ear. Although by the time of the hearing he had trialled these aids and his hearing has not improved, during the qualification period this condition was not fully treated and stabilised, and impairment points cannot be assigned to his hearing condition.
Type 1 Diabetes and Hypertension
If a single condition causes multiple impairments, these impairments should be assessed under the relevant table, and the impairment rating from the same impairment must not be assigned under more than one table.[9] In this case, Mr Robinson’s condition of Type 1 diabetes has resulted in a functional impairment to his lower limbs and vision.
[9] Ibid cl 10(3) – (4).
It is reported that Type 1 diabetes has no effect on Mr Robinson’s day to day functioning and he has well managed hypertension. These conditions do not have a functional effect in addition to the impairment of his lower limbs and vision which are assessed under the corresponding Impairment Table. These conditions do not attract additional impairment points.
Mr Robinson has an impairment rating of 20 impairment points and meets s 94(1)(b) of the Act.
Does Mr Robinson have a continuing inability to work?
Under s 94(1)(c) of the Act, a third requirement to be eligible for a DSP is that the person has a continuing inability to work. A continuing inability to work is defined in s 94(2). Where the impairment is not a severe impairment, the person must have actively participated in a program of support. A severe impairment is defined in s 94(3B) of the Act as an impairment that has 20 points or more on a single Impairment Table.
In addition, the person must be unable to do any work independently of a program of support within the next two years and either is unable to undertake a training program because of the impairment or a training program is unlikely to enable the person to do any work independently of a program of support within the next two years (s 94(2)(a) and (b) of the Act).
As Mr Robinson’s impairment rating of 20 points is across more than one Impairment Table, he must have actively participated in a program of support.
The requirements for active participation in a program of support are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (’the Determination’). Clause 7 of the Determination requires that the person meets one of four requirements.
The first is that the person has participated in a program of support for at least 18 months in the relevant period. The relevant period is 36 months ending immediately before the day on which the claim for DSP is made or taken to be made. Mr Robinson said he first saw an employment service ‘APM’ in December 2022, and this is confirmed by Services Australia’s electronic record.[10] This is outside the qualification period. Information provided by the Secretary records Mr Robinson as having participated in 0 days of a program of support in the qualification period and he does not meet this requirement.
[10] Ex T1-T24, T22, 188.
The second is that the duration of the program of support was less than 18 months and the person completed the entire program during the relevant period. As Mr Robinson did not commence a program of support, he cannot have completed it and this requirement is not met.
The third is that the program of support was terminated before the end of the relevant period, and was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
According to the Macquarie Dictionary, to be terminated a thing must be brought to an end or form the conclusion of. The Secretary submits, and I agree, that a program of support cannot be terminated if it has not commenced. Mr Robinson acknowledged that he had not seen a provider in the relevant period, and there is no information before me to support a contention that a program of support was terminated. Therefore, there is no information to support that a program of support was terminated before the end of the relevant period.
The fourth requirement occurs when a person is participating in a program of support at the end of the relevant period and at that time is prevented solely because of his or her impairment from improving his or her capacity to prepare for, find or maintain work through continued participation in the program. As Mr Robinson has not commenced a program of support, he does not meet this requirement.
Mr Robinson was not advised that he needed to participate in a program of support when he applied for DSP, which is now over 18 months ago. The requirement in particular circumstances to have actively participated in a program of support is not included in the forms he was asked to complete. Mr Robinson said he would have registered with a provider if he had known of this requirement. He may also have had the benefit of assistance from a specialist disability provider in this period. Good administrative practice generally requires that people seeking to establish their eligibility for a payment are provided with enough information to allow them to do so.

However, the Tribunal must apply the legislation which in this case includes a requirement to have actively participated in a program of support, and despite his lack of knowledge of this requirement, he has not actively participated in a program of support. As a result, he does not meet the requirements in s 94(1)(c) of the Act for a DSP and the decision must be affirmed.
DECISION
The decision under review is affirmed.
I certify that the preceding fifty-four (54)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
K Millar
…[sgnd]…………………………..
Associate
Dated: 23 February 2024

Date of hearing
30 January 2024

Applicant:

Advocate for the Respondent:

Self-Represented

Mr Christian Visser
Services Australia