Sauer and Secretary, Department of Social Services (Social services second review)

[2017] AATA 300

Sauer and Secretary, Department of Social Services (Social services second review) [2017] AATA 300 (8 March 2017)

Division	GENERAL DIVISION
File Number	2016/2918
Re	Jason Sauer
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

WRITTEN REASONS FOR ORAL DECISION

Tribunal	Mr D. J. Morris, Member
Date	8 March 2017
Place	Melbourne

The Tribunal sets aside the reviewable decision and, in substitution therefor, decides that:

1.Mr Jason Sauer satisfied the requirements under section 1218AAA of the Social Security Act 1991 that the maximum portability period for his Disability Support Pension is for an unlimited period; and

2.        Mr Sauer satisfied this requirement from 30 August 2016.

........................................................................

D. J. Morris, Member

SOCIAL SECURITY – unlimited portability of DSP – late concession by Respondent – changed decision now subject of review – applicant persists with application – whether application now frivolous, vexatious, misconceived or lacking in substance – right to review remains – entitled to unlimited portability – original decision set aside and changed decision varied – written reasons requested –  written reasons may elaborate on oral reasons given

LEGISLATION

Administrative Appeals Tribunal Act 1975, ss 42B(1)(a), 43(2A)

Social Security Act 1991, ss 94, 1218AAA.
Social Security (Administration) Act 1999, ss 179(1), 182

CASES

Negri v Secretary, Department of Social Security [2016] FCA 879

WMKR and Secretary, Department of Social Services [2015] AATA 483

REASONS FOR DECISION

D. J. Morris, Member

8 March 2017

INTRODUCTION

1. The Applicant, Mr Jason Sauer, originally sought a review of the decision of the Social Services and Child Support Division of the Tribunal (AAT1) dated 29 April 2016 which set aside a decision to reject the Applicant’s request for unlimited portability of his Disability Support Pension (DSP) and directed that the Secretary of the Department of Social Services (the Department) reconsider the request.

2. The hearing was held on 13 January 2017 by telephone.  On 11 January 2017, on the basis of a Job Capacity Assessment (JCA) report dated 30 August 2016, the Secretary decided that Mr Sauer’s maximum portability for DSP was for an unlimited period from 11 January 2017.  The Secretary’s revised position was communicated to the Tribunal on 12 January 2017.

3. As a consequence of the changed position of the Respondent, Tribunal officers contacted the Applicant to enquire if he still wished to pursue his application for review.  Mr Sauer advised in writing that he wanted the hearing to go ahead but he had departed Australia on 11 January 2017 to travel to Switzerland at short notice in relation to representative sport for persons with disabilities.  Accordingly, he requested that the hearing take place in his absence.  At the hearing, the Respondent was represented by Mr Tim Noonan.

   Should this application be dismissed without review?

4. The Respondent submitted that the Tribunal should consider dismissing Mr Sauer’s application under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). That provision provides that the Tribunal may dismiss an application for review of a decision, at any stage in the proceeding, if the Tribunal is satisfied that the application is frivolous, vexatious, misconceived or lacking in substance.

5. Mr Noonan did not suggest that the application was vexatious, but he did submit that there was no practical utility in reviewing the decision because the relief sought by Mr Sauer, which was unlimited portability of his DSP, has now been granted.

6. The Tribunal did not accept this submission.  Although the Secretary had granted the Applicant unlimited portability two days prior to the hearing, it is the Tribunal’s view that Mr Sauer was still entitled in this instance to avail himself of the legislative provisions available to him for a review by the General Division of the Tribunal.

7. Section 179 of the Social Security (Administration) Act 1999 (the Administration Act) provides at subsection (1):

   (1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.

8. The Administration Act further relevantly provides, at sections 182(2) and 182(3):

   (2)If an officer varies or substitutes a decision after an application has been made for AAT second review in relation to the decision:

   (a)the AAT is taken, on AAT first review, to have varied or substituted the decision under review in the way the officer did; and

   (b)the application is taken to be an application for AAT second review of the decision as varied or substituted.

   (3)If the person who made the application does not want the AAT to review the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

9. I therefore conclude that, notwithstanding that the Secretary has now granted Mr Sauer’s request for unlimited portability, the Applicant has not discontinued or withdrawn his application for review and in fact has provided written advice that he wishes it still to be considered. Further, there is still a substantive matter to be decided, that being the date when the request for unlimited portability should originally have been granted. The Tribunal’s task is therefore to decide whether the decision as now substituted was the correct and preferable decision.

   What is the relevant date?

10. In WMKR and Secretary, Department of Social Services [2015] AATA 483 (WKMR), the Tribunal found that the preferable approach to determine when an unlimited portability determination should take effect was at the date of claim or request that commenced the decision making process, applying the legislation then in force, and subsequently as circumstances demand.  Mr Sauer first contacted the Department about unlimited portability on 6 May 2015.  With respect, I agree with the logic of Member Webb in WMKR, and find that the correct date for assessing Mr Sauer’s eligibility for unlimited portability should be 6 May 2015.

11. Accordingly, the matter before the Tribunal for determination under review would originally have been: should Mr Jason Sauer’s request for unlimited portability for his DSP be granted from 6 May 2015? However, because of the action by the Secretary on 11 January 2017, the reviewable decision now becomes, under section 182(2)(a) of the Administration Act: should Mr Jason Sauer’s request for unlimited portability for his DSP, made on 6 May 2015, be granted from 11 January 2017?

12. At the conclusion of the hearing, I made my decision ex tempore and provided oral reasons. In accordance with section 43(2A) of the AAT Act the Applicant requested a statement in writing of the reasons of the Tribunal for its decision. This is that statement.

13. In Negri v Secretary, Department of Social Security [2016] FCA 879 (Negri), Bromberg J considered the question of when the Tribunal has made an oral decision, and a statement of written reasons has been subsequently supplied.

14. His Honour accepted submissions to the Court that:

    (a)The oral reasons might be brief and the written reasons include a fuller explanation of the Tribunal’s findings and reasoning.

    (b)The oral reasons might fail to include a matter that was on the Tribunal’s mind at the time of the decision due to oversight, and the written reasons remedy this.

    (c)The oral reasons may be poorly expressed and the written reasons provide clarification of the Tribunal’s findings or reasoning.

15. His Honour stated at [27]:

    As long as the reasoning remains consistent, there can be no objection to the provision of a more elaborate exposition of the same reasoning that was orally explained.  What is not permissible is altered or new reasoning.  The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently.

16. Consistent with His Honour’s cautionary remarks in Negri, new reasoning for my decision has not been introduced in this written statement but it provides a fuller explanation of the reasons given orally.

    Background to original claim

17. Mr Jason Sauer was granted a DSP from 28 February 2011 on the basis of a bilateral above knee amputation carried out in January 2011.  Before his amputation he was involved in snow sports.  He regularly visits the United States of America as part of his therapy at the National Ability Centre in Utah. 

18. On 6 May 2015 Mr Sauer contacted the Department and requested a determination that he be granted unlimited portability in respect of his DSP.  He was then sent the forms for a portability medical review. 

19. Section 1218AAA of the Act provides that the Secretary may make a written determination that a particular person’s maximum portability for DSP is for an unlimited period provided the requirements in that section are met. Section 1218AAA(1)(a) requires that the person must be receiving a DSP, a requirement which Mr Sauer satisfied on the day of his contact with the Department. Subsections 1218AA(1)(b) and (1)(c) provide that the Secretary must not make a determination for unlimited portability unless the Secretary is satisfied that the person has a ‘severe’ impairment, within the meaning of section 94(3B) of the Act; that the person will have that severe impairment for the next five years; and that the severe impairment will prevent the person from performing any work independent of a program of support (as defined in section 94(4) of the Act) within the next five years.

20. Mr Sauer attended a Job Capacity Assessment (the First JCA) on 14 July 2015 in connexion with his request for unlimited portability. The First JCA report dated 21 July 2015 stated that Mr Sauer had a ‘severe impairment’ and recommended the assignment of 20 impairment points for his lower limb condition but zero points for his mental health condition on the basis that there had been no diagnosis by a psychiatrist or a clinical psychologist, and that his baseline work capacity was 8 to 14 hours per week. The JCA recommended that the Applicant did not satisfy all the provisions of section 1218AAA of the Act and therefore should not be granted unlimited portability of his DSP.

21. On 28 July 2015 an officer of the Department, acting as a delegate of the Secretary, declined Mr Sauer’s request that he be granted unlimited portability in respect of his DSP on the grounds that the Department did not accept the Applicant was incapable of any work within the next five years.  Mr Sauer sought a review by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  On 30 November 2015, the ARO affirmed the original decision.

22. Mr Sauer sought a review by AAT1 which took place on 29 April 2016.

23. Relevantly, on 10 September 2015, Mr Sauer had provided to the local office of the Department a specialist medical report in support of his claim from Mr Mark Collins, clinical psychologist.  Regrettably, owing to a break-down in the internal processes of the Department, this medical report was not initially passed on to those considering Mr Sauer’s claim.  The Respondent conceded that it appeared that there had been some breakdown in the process.

24. In considering Mr Sauer’s medical conditions, the First JCA recommended that the Applicant’s amputation and his spinal disorder condition be regarded as fully diagnosed, fully treated and fully stabilised.  However, the First JCA concluded that Mr Sauer’s depression condition should not be regarded as fully diagnosed because, although it was referred to by the Applicant’s general practitioner, Dr Peter Herbert, in his medical report dated 3 June 2015, there was “no diagnosis” by a psychiatrist or clinical psychologist. Such a diagnosis by an appropriately qualified medical practitioner is required for the assessment of mental health conditions in the introduction to Table 5 – Mental Health Function, in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

25. There was in fact such a diagnosis by Mr Collins, and although his medical report did not specify when Mr Sauer first consulted him, AAT1 accepted evidence from the Applicant that he had attended Mr Collins’ rooms prior to the Department’s decision of 28 July 2015. 

26. In addition, Mr Sauer subsequently provided to the Tribunal what AAT1 described as a “strong” psychiatric report from Dr Randy Stiefel, a psychiatrist practising in Utah who the Tribunal notes has had extensive professional experience including a period residing and practising in New Zealand where he had vocational registration with the Royal Australian and New Zealand College of Psychiatrists.  The Applicant has consulted with Dr Stiefel when he has been in Utah.

27. AAT1 set aside the original decision and remitted the matter back to the Department for reconsideration on the basis that Mr Sauer may be found to have seen a clinical psychologist before 28 July 2015 and on the basis of the conclusions of Dr Stiefel.  AAT1 urged the Department to reconsider what ‘work’ the Applicant would be able to do on the open labour market in the light of all the medical information submitted.

28. Mr Sauer underwent a further Job Capacity Assessment (the Second JCA) on 30 August 2016 where his depressive condition was recommended to be considered fully diagnosed, fully treated and fully stabilised.  The Second JCA recommended:

    Previous Job Capacity Assessment (JCA) in July 2015 assigned a rating of 20 points using table 4 (lower limb function) and a 10 point impairment rating using table 4 (spinal function) with a base and future capacity of 8-14 hours per week. 

    This assessment determines a baseline and with intervention capacity of 0-7 hours per week, and an impairment rating of 20 points using table 3 (lower limb function), 10 points using table 4 (spinal function) and 0 point rating using tables 5 (mental health function) and 6 (functioning relating to alcohol, drug and other substance abuse), based on the Social Security (Tables for the assessment of work-related impairment for Disability Support Pension) Determination 2011.

    This determination reflects the contemporary medical evidence (Dr Herbert, 2015, Dr Stiefel, psychiatrist, 2016, and Dr Collins, Clinical Psychologist, 2015) consistent with the client’s self report, and which determines a severe functional impact on occupational function that will persist over time.

29. Later in the Second JCA under the heading “DSP Portability” the report states:

    In the next 5 years, the impact on the person’s ability to function is not expected to improve.

30. It is disappointing that the Respondent apparently did not promptly reconsider his position in relation to Mr Sauer’s application following the remittal of the matter to the Secretary by AAT1 in April 2016 once the Department had received the Second JCA report in August 2016. The report recommended an assignment of 30 impairment points and a job capacity of 0-7 hours a week and contained the new corroborative medical evidence.  Instead the Respondent decided to contest the matter further when Mr Sauer, as he was entitled to do, lodged an application for review of AAT1’s decision.  It is to the Secretary’s credit that he changed his position, albeit two days before this hearing.  

    Consideration

31. Importantly, the Tribunal notes that, in both the First JCA and the Second JCA, the following is recorded in relation to the Applicant’s double amputation:

    This condition is considered permanent, fully treated and stabilised as the client wears prostheses.  Additionally, Dr Herbert notes a worsening of stumps is anticipated in the future and therefore impact on ability to use lower limbs is expected to persist beyond 5 years and will deteriorate.

    (Emphasis added.)

32. It seems to me that insufficient weight was initially given by the decision-maker to this clear medical advice from Dr Herbert recorded by the job capacity assessor which is directly relevant to the functional impact on the Applicant of his medical conditions in the medium term and his continuing inability to work.  The medical evidence points to the conclusion that the deterioration in Mr Sauer’s lower limbs may affect his ability to use prosthetic legs in the future.

33. The Tribunal notes the Secretary’s new position granting Mr Sauer his request for unlimited portability from 11 January 2017. However, after careful consideration of the medical evidence before me, especially from Dr Herbert and Dr Stiefel, and taking into account the concessions made before and during the hearing by the Respondent, I consider that compelling information is contained in the Second JCA in regard to Mr Sauer’s severe impairment and in regard to his continuing inability to work in terms of section 1218AAA of the Act.

34. In that document, the assessor not only accepted that Mr Sauer’s mental health condition was permanent (notwithstanding no impairment points were recommended with respect to functional impact), but also repeated the undisputed medical evidence from Dr Herbert that the Applicant’s lower limb condition will worsen and deteriorate, and is expected to persist beyond five years.  Although a JCA is a recommendation to the decision-maker, I believe that these unambiguous conclusions should have been a flag to the decision-maker in regard to assessing the Applicant’s long term ability to work at that time.

35. Accordingly, I found that the preferable date in regard to granting Mr Sauer’s request for unlimited portability for his DSP is the date the Second JCA report was submitted, being 30 August 2016.

    DECISION

36. The Tribunal sets aside the reviewable decision and, in substitution therefore, decides that: (1) Mr Jason Sauer satisfied the requirements under section 1218AAA of the Social Security Act 1991 that the maximum portability period for his Disability Support Pension is for an unlimited period and (2) Mr Sauer satisfied this requirement from 30 August 2016.

37.      

38.     I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member D. J. Morris.

…..…............[sgd].......................................

Associate

Dated 8 March 2017

Date of hearing	13 January 2017
Applicant	Did not appear
Advocate for Respondent	Secretary, Department of Social Services, Mr Tim Noonan