Rosemary Cole and Secretary, Department of Social Services
[2014] AATA 252
[2014] AATA 252
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2013/6055-6056
Re
Rosemary Cole
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 29 April 2014 Place Melbourne The Tribunal affirms both decisions under review.
............[sgd]............................................................
Miss E A Shanahan, Member
SOCIAL SECURITY – disability support pension – youth allowance – applicant has right hemiplegia and cerebral palsy – full time university student – questionable impairment ratings assigned – ability to work – ineligible for youth allowance on parental income – decisions affirmed
Legislation
Social Security Act 1991
REASONS FOR DECISION
Miss E A Shanahan
29 April 2014
Ms Cole lodged a claim for youth allowance (YA) with Centrelink on 22 February 2013. She also lodged a claim for the disability support pension (DSP) with Centrelink on 12 March 2013. Both claims were rejected by a Centrelink delegate. An authorised review officer (ARO) affirmed the decision on the YA on 19 August 2013 and the decision on the DSP on 26 September 2013.
Ms Cole applied to the Social Security Appeals Tribunal (SSAT) for review of both decisions. The SSAT decided on 29 October 2013 that Ms Cole did not satisfy s 94(1)(c) of the Social Security Act 1991 (the Act) and therefore did not qualify for the DSP. The SSAT also determined that as she did not satisfy the definition of an independent person in s 1067A of the Act and was a full time university student, she did not qualify for the YA.
Ms Cole lodged an application for review of both decisions by the Administrative Appeals Tribunal on 26 November 2013. The application for review of the decision regarding the YA was assigned the file number 2013/6055 and the DSP application was assigned the file number 2013/6056.
At the hearing on 17 March 2014 Ms Cole was self-represented but was assisted by her mother. Mr Tim Noonan represented the Secretary, Department of Social Services (the Respondent). The Tribunal was provided with the documents lodged by the Respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents and ST-Documents (Supplementary) in both applications). Ms Cole gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
Ms Cole is 20 years old. At the age of three months she suffered a cerebral haemorrhage, which according to her mother, Ms Liz Cayley, affected the left parietal region of her brain. As a result of this cerebral haemorrhage, Ms Cole has a severe right hemiplegia with very limited motor activity and what is called cerebral palsy with spasticity in her right limbs; more the arm than the leg, according to early childhood reports. Ms Cole does not suffer any intellectual disability and did well in her secondary education. She is now enrolled in a combined Arts/Law Degree at Deakin University (Deakin), having recently completed her first year of full time study successfully.
While classified as a full time student in accordance with the number of subjects she is undertaking at Deakin the degree course is conducted primarily via the internet. Ms Cole is only required to attend the Burwood campus for one to two hours on Fridays during the semester.
Over the years Ms Cole has undergone several surgical procedures, the details of which are unknown to the Tribunal. However, from the descriptions given, they appear to have been performed to relieve muscle contractures and to optimise the efficacy of the motor power that has been retained.
The Tribunal has been provided with reports from various doctors involved in Ms Cole’s care in 1999, when she was five years old. These indicate that while she had severe spasticity and weakness of her right limbs she was making good progress, attending kindergarten, and had no intellectual defect. The Tribunal has reports from her treating general practitioner Dr Katrina Reid (T5 & T10), which attest to Ms Cole’s right hemiplegia and spasticity of her right limbs but do not provide any detailed clinical findings. Dr Reid stated that Ms Cole’s studies and daily life are impacted upon by constant fatigue and her physical limitations, which prevent her from prolonged sitting, walking or standing and make any other activities including part-time work very limited.
Ms Cayley informed the Tribunal that the family have established a gymnasium at home. Ms Cole, under the supervision of her mother and the ultimate supervision of a physiotherapist, spends two hours per day performing a physiotherapy routine aimed at maintaining what limited mobility and motor power there is in the right upper and lower limbs. Ms Cayley also confirmed that in her opinion her daughter could not sustain independent living or the level of physiotherapy she requires if she was not living at home.
In her treating doctor reports, Dr Reid indicated that Ms Cole has right-sided weakness, difficulty walking and maintaining balance, reduced mobility and reduced concentration and stamina. Ms Cole needs to use a stick to walk and is said to have a right foot deformity. A detailed examination and its findings are not available.
Ms Cayley informed the Tribunal that her daughter had been participating in a special trial conducted by the Austin Hospital over many years. The study is looking at the development of individuals who have suffered severe brain trauma. As part of the study, Ms Cole has MRI scans of her brain at regular intervals and appears to be assessed in terms of her capacity to perform physical activities and any improvement over the period of observation. Ms Cayley said the MRI scans would be readily available to any medical practitioner wishing to assess her daughter’s cerebral status and her progress.
Ms Cole has undergone two job capacity assessments (JCA) in relation to her DSP application. The first of these was undertaken on 29 December 2010 (T6). It resulted in an impairment rating of 35 points under the Tables for the Assessment of Work Related Impairment for Disability Support Pension (the Impairment Tables). 15 points were assigned for impaired upper limb function and 20 points for impaired lower limb function. She was assessed as having a current work capacity of 30 or more hours per week in sedentary work, such as at a call centre. The second JCA was performed on 30 April 2013 (T12). On this occasion an impairment rating of 5 points was assigned for the cerebral palsy-affected right upper limb function and 5 points for the right lower limb function, giving a total of 10 impairment points. Once more, Ms Cole was assessed as having a baseline work capacity greater than 15 hours in sedentary work, such as a receptionist or in administration.
The SSAT, which had included a medical practitioner in its constitution, allocated an impairment rating of 10 points (under Impairment Table 2) for the right upper limb impairment and 10 points for the right lower limb impairment. This gave Ms Cole a total impairment rating of 20 points, which satisfied s 94(1)(b) of the Social Security Act1991 (the Act). However, the SSAT found that she had not actively participated in a program of support and therefore did not qualify for receipt of the DSP. According to Ms Cole, the SSAT based its allocation of 20 impairment points on her answers to numerous questions they posed during the hearing.
EVIDENCE BEFORE THE TRIBUNAL
The evidence before the Tribunal is summarised under BACKGROUND TO THE APPLICATION. The Tribunal informed Ms Cole of the Guidelines to the Tables for the Assessment of Work Related Impairment for Disability Support Pension (the Guidelines), particularly those relating to upper limb function. Having stated that this Tribunal would make no attempt to allocate an impairment rating, despite the Tribunal Member being medically qualified, the Tribunal then asked Ms Cole the questions put to her by the SSAT, or at least those noted under the descriptors as included in paragraph 2b of Impairment Table 2. The answers given by Ms Cole to this Tribunal were different to those she gave to the SSAT as the resulting score would have been less than that calculated by the SSAT. Ms Cole said that she could pick up a light but bulky object, using both hands, by balancing the cardboard box with her right hand while lifting it down with her left hand. She said it was her normal practice to hold a soft drink bottle in her right hand (that is the partly paralysed limb) while unscrewing the lid of the bottle with her left hand.
RELEVANT LEGISLATION
Section 94 details the qualifications for the DSP.
94 Qualification for disability support pension
(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 ...
(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 ...
(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.
(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.
(5)In this section:
...
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.
The legislation relating to YA is contained in s 540 of the Act:
540 Qualification for youth allowance—general rule
Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:
(a)either of the following applies:
(i)throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);
...
(b)throughout the period the person is of youth allowance age (see Subdivision D); and
...
(d)throughout the period, the person:
(i)is an Australian resident; or
...
Section 541 addresses the activity test.
541 Activity test
General
(1)Subject to section 541A and subsection (3) of this section, a person satisfies the activity test in respect of a period if:
(a)the person satisfies the Secretary that, throughout the period, the person is undertaking full‑time study (see section 541B); or ...
Section 541B defines full time study.
541B Undertaking full‑time study
General
(1)For the purposes of this Act, a person is undertaking full‑time study if:
(a)the person:
(i) is enrolled in a course of education at an educational institution;
...
(b)the person:
(i) is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or
...
(c)the course in question is an approved course of education or study (see subsection (5)); and
(d)in the Secretary’s opinion, the person is making satisfactory progress towards completing the course.
Where the applicant is not independent, parental income is attracted. This is provided for in s 1067G-A1.
Section 1067 A of the Act provides the calculation of YA rate for an independent individual. However, as Ms Cole and her mother rule out Ms Cole’s ability to function independently, this is not relevant.
SUBMISSIONS
Neither party made formal submissions. The Respondent relied on his detailed Statement of Facts and Contentions.
THE TRIBUNAL’S DELIBERATIONS
The Respondent has conceded that Ms Cole satisfies the YA activity test, as she is undertaking full time study (s 541B). Ms Cole lives at home and has stated, as has her mother, that she is not capable of living independently. Therefore, her eligibility for YA is dependent upon her parents’ income. Ms Cole’s parents have advised that their joint income is $150,000 per year or more, which precludes Ms Cole from qualifying for YA at the dependent rate.
While Ms Cole has a partial capacity for work, she has not worked as she is undertaking full time study and she has quite firmly expressed the view she is not capable of living independently from her parents and thus she does not qualify for the YA at the independent rate. Additionally, as her parents’ income is greater than $150,000, it exceeds the threshold of $82,681 and YA is not payable.
In relation to the DSP application, Ms Cole clearly satisfies s 94(1)(a) of the Act, as she has major physical disabilities which have been present since the neonatal period. The efforts of Ms Cole, her parents and her treating medical experts are most commendable in that they have jointly maximised her physical capacity in the setting of a major disability of right hemiplegia and cerebral palsy. The maintenance of her physical capacity and mobility requires ongoing treatment and daily physiotherapy. Despite the physical hurdles, Ms Cole has completed secondary education, is studying full time at Deakin University and has successfully completed the first year of a combined Arts/Law Degree.
Section 94(1)(b) of the Act requires that Ms Cole’s medical conditions are permanent, fully diagnosed, treated and stabilised, and attract an impairment rating of 20 impairment points according to the Impairment Tables. The formal JCAs have produced varying impairment ratings. The JCA performed in 2010 provided an assessment of 35 impairment points, 20 of which related to the impairment of Ms Cole’s lower limb. Under the current Impairment Tables, this rating of 20 impairment points would equate to a severe functional impact, and as such Ms Cole would be considered as having a continuing inability to work under s 94(3).
The second JCA was performed in 2013. On this occasion, the assessor assigned 5 points for the right upper limb disability and 5 points for the right lower limb disability, making a total of 10 impairment points. The SSAT questioned Ms Cole at some length in an effort to estimate an impairment rating; and as a result of this questioning assigned a rating of 10 points under Impairment Table 2 for Ms Cole’s right upper limb disability and 10 points in relation to the right lower limb disability, giving a total of 20 points; so that, in their opinion, she satisfied s 94(1)(b) of the Act.
This Tribunal is not prepared to make such an estimate without any truly objective findings being reported by any of the treating medical practitioners. The Guide itself states that a person’s self-reported symptoms must not solely be relied on. The person’s self-reported functional history must be consistent with the medical evidence available.
In a situation as complex as that of Ms Cole, the Tribunal recommends that her work capacity be assessed by an occupational physician. While the Tribunal notes the assessment of the SSAT, it is not willing to adopt that impairment rating as expert opinion might increase the actual figure, or in the alternative, decrease it. Obviously, it requires a full medical examination of Ms Cole to determine the exact degree of her disability. Thus, the Tribunal cannot categorically state that she meets the requirements of s 94(1)(b).
The SSAT found that although she satisfied s 94(1)(b) in terms of the impairment rating, Ms Cole did have a partial capacity to work and was thus required, for the purposes of eligibility, to undertake a program of support. She has not done this because she is undertaking tertiary studies on a full time basis at Deakin University. The SSAT found that she did not satisfy s 94(1)(c) of the Act. While this Tribunal agrees with that finding, it also finds that she does not satisfy s 94(1)(b). The Tribunal affirms the decision under review.
I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member. .........[sgd]...............................................................
Associate
Dated 29 April 2014
Date of hearing 17 March 2014 Applicant In person Advocate for the Respondent Mr Tim Noonan, Department of Human Services
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