Secretary, Department of Social Services and Dean Marwood

[2014] AATA 686

[2014] AATA 686

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4717
Re	Secretary, Department of Social Services
APPLICANT
And	Dean Marwood
RESPONDENT

DECISION

Tribunal	Senior Member N A Manetta
Date	19 September 2014
Place	Adelaide

The Tribunal sets aside the decision under review and substitutes a decision affirming the decision of the Authorised Review Officer dated 31 May 2012.

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Senior Member Manetta

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Disability Support Pension - Impairment Tables - whether conditions warranted 20 impairment points or more under one or more tables - continuing inability to work - whether participation in program of support - decision set aside.

LEGISLATION

Social Security Act 1991, s 94

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Summers and Secretary, Department of Social Services [2014] AATA 165

Re O’Bryan and Secretary, Department of Social Services [2014] AATA 590

SECONDARY MATERIALS

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member N A Manetta

19 September 2014

1. This is an application by the Secretary, Department of Social Services seeking review of a decision of the Social Security Appeals Tribunal (SSAT) dated 19 September 2012.  The SSAT allowed an appeal by Mr Dean Marwood, the respondent in this Tribunal.  It decided that he is eligible to receive a Disability Support Pension (DSP) under the Social Security Act 1991 (the Act) and overturned an earlier determination of an Authorised Review Officer in the applicant’s department dated 31 May 2012.  I note that my task is to re-assess Mr Marwood’s eligibility and decide the matter afresh, not review the SSAT’s decision for error.[1] 

   [1] Cf Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68.

   PARTIES’ PRINCIPAL CONTENTIONS

2. The parties’ principal contentions may be summarised as follows.  First, both parties accept that in respect of certain physical injuries Mr Marwood sustained in a very severe motorcycle accident in 1977, he should be awarded in total 10 impairment points; namely 5 points under Table 3 and 5 points under Table 4.

3. Secondly, the applicant submits that in respect of Mr Marwood’s memory loss caused by a neurological condition resulting from the same accident, he should receive 5 points only, whilst Mr Marwood submits he should receive 10 points.  That remains an important point of contention between the parties as 20 points in total are required by Mr Marwood to establish eligibility for a DSP.[2]

   [2] Section 94(1)(b) of the Act.

4. Thirdly, the applicant submits that Mr Marwood has not satisfied the program-of-support requirements under the Act and is, therefore, ineligible to receive a DSP.  Mr Marwood submits that he has satisfied these requirements, and he further contends that if he did not, I have a discretion to overlook that failure.   

5. Fourthly, the applicant contends that Mr Marwood has an ability to work at least 15 hours per week even if he has an impairment rating of 20 points and that, in the circumstances, he is ineligible for a DSP on this ground as well.  Mr Marwood maintains that he is not able to work for 15 hours per week and further maintains he cannot undertake retraining.

   SUMMARY OF CONCLUSIONS

6. I find that Mr Marwood is not eligible to receive a DSP.  I find that Mr Marwood does not have impairments totalling 20 points under the Impairment Tables.  I further find that he has not satisfied the program-of-support requirements, and that I do not have a discretion to depart from this mandatory legislative requirement.  I am not satisfied that he has an inability to work for at least 15 hours per week.  Finally, I am not satisfied he cannot undertake retraining.   My reasons for these conclusions are set out below. 

   IMPAIRMENT POINTS FOR MEMORY LOSS

7. Given the parties’ agreement that 10 points should be allocated to Mr Marwood’s physical impairments, the main issue in respect of the application of the Impairment Tables centred upon his memory loss and, in particular, the application of Table 7, which concerns brain function.  According to its introduction, Table 7 “is to be used where the person has a permanent condition resulting in functional impairment related to a neurological or cognitive function.” 

8. I note that the condition must be diagnosed by an appropriately qualified medical practitioner.  Mr Visser, appearing for the applicant, conceded that the condition had been appropriately diagnosed by a qualified medical practitioner.  He accepted the observations made by Dr Martin Robinson in a report dated 19 February 2013[3] and further accepted an undated report from Dr Prasad,[4] which refers to Mr Marwood’s memory loss from intracranial damage sustained in the motorcycle accident.  I accept these concessions.

   [3] Exhibit A2.

   [4] “T” Documents (Exhibit A1) at pp 96-97.

9. I have already noted that the parties differed on the awarding of points.  In this respect, I find the applicant’s contentions should be preferred and only 5 points should be awarded.  In order to be awarded 10 points under Table 7, Mr Marwood must require “occasional (less than once a day) assistance with day-to-day activities”.  Mr Marwood gave evidence that he lives alone.  His evidence is that from a cognitive or neurological perspective, he is able to complete his day-to-day activities without another person’s assistance.  I accept his evidence that he does need to use memory aids (such as a list) to remember any more than three or four items, and that he may well forget to complete a regular task or attend an appointment unless prompted by a note or calendar entry.  I do not think lists, notes, or calendar entries are “assistance” for the purpose of Table 7, however.[5] 

   [5] Cf Re Summers and Secretary, Department of Social Services [2014] AATA 165 and Re O’Bryan and Secretary, Department of Social Services [2014] AATA 590 at [20].

10. I accept the evidence of Mr Reid, a neuropsychologist, that Mr Marwood does have moderate memory difficulties.  Mr Reid’s written opinion[6] records that he believes Mr Marwood “just” qualifies for a moderate functional impact resulting from a neurological or cognitive condition, thereby attracting 10 points under Table 7.  He gave evidence that he was familiar with the tables. 

    [6] Exhibit R1.

11. Nevertheless, it is not clear to me that Mr Reid understood Table 7 correctly.  In particular, I am not satisfied that he gave due weight to the requirement that a person should need occasional assistance with day-to-day activities, which is an explicit and discrete requirement.[7] 

    [7]  I add that I was not persuaded by Mr Reid’s oral evidence that he believes Mr Marwood clearly qualifies for 10 points, and that his written report was in error in indicating that he “just” qualifies for 10 points.

12. Mr Reid’s evidence illustrates the difficulties that arise when experts seek to apply the Impairment Tables.  The Tables give rise to important nuances− and sometimes difficulties− in construction.  An expert who expresses an opinion about a rating in a table implicitly asserts an accurate understanding of the table.  It is of greater assistance to the Tribunal, in my opinion, when experts direct their attention mainly to the limitations of a person and avoid awarding points under the tables themselves.

13. All in all, I find that on Mr Marwood’s own evidence, I am unable to attribute 10 points to his memory loss.

14. Mr Marwood fails, therefore, to reach the required 20-point threshold and his claim must fail for this reason.  The case was fully argued, however, and it is appropriate that I make further findings in respect of his application.

    PROGRAM OF SUPPORT

15. It was common ground between the parties that no single condition warranted 20 points in its own right. Accordingly, it is necessary to determine whether Mr Marwood has satisfied those parts of the legislative scheme that require active participation in a program of support. The Act, in s 94(2)(aa), requires a person to have actively participated in a program of support, and the requirements governing active participation are set out in the Social Security (Requirements and Guidelines-Active Participation for Disability Support Pension) Determination 2011 (the Determination). 

16. Part 2 of the Determination, in particular, stipulates requirements that are decisive of Mr Marwood’s application in my opinion.  Relevantly, Mr Marwood must bring himself within ss 5(2), (3) or (4) of the Determination. 

    Section 5(2)

17. It is common ground between the parties that Mr Marwood participated in a program of support from October 2009 to June 2010 (a period of approximately seven months) with a firm known as “Konekt Support Services” (Konekt)[8].  Mr Marwood was first required to attend Konekt’s offices following a WorkCover claim after he had injured himself at work operating a hoist.  Konekt was paid by WorkCover to assist him to find work.  As I have mentioned, he commenced with Konekt in October 2009.  He accepted, however, a redemption package offered to him by WorkCover in June 2010.  The acceptance of that package terminated WorkCover’s obligations in respect of his rehabilitation and terminated also, on his side, any further obligation to attend at Konekt’s offices.  From 7 June 2010, therefore, he did not participate in any further program of support.

    [8] Respondent’s submissions, dated 28 January 2014.

18. Section 5(2) of the Determination requires a minimum of 18 months’ participation in a program of support.  Mr Marwood does not meet this requirement.

    Section 5(3)

19. Section 5(3) provides as follows:

    “This subsection is satisfied in relation to a person and a program of support if:

    (a)the duration of the program of support was less than 18 months; and

    (b)the person completed the program.”

    Ms Welfare, for Mr Marwood, submitted that for the purposes of s 5(3), the duration of the program of support with Konekt was less than 18 months and Mr Marwood had fully completed the program.  I do not accept this submission.  Section 5(3) does not apply, in my opinion, to a person whose involvement in a program of support is terminated only as an inevitable result of an election to settle a WorkCover claim for a lump sum. 

20. On the evidence before me, Konekt’s services were open-ended and would have been available to Mr Marwood for as long as his claim with WorkCover was ongoing.  It was Mr Marwood’s acceptance of a redemption offer that caused his involvement with Konekt to cease.  On Ms Welfare’s argument, I note that it would not matter how long Mr Marwood had been engaged in the program of support.  He could have been enrolled in it for just a month or two before accepting a redemption offer and still bring himself within s 5(3).  That result could not have been intended.

    Section 5(4)

21. Furthermore, I do not accept Ms Welfare’s alternative submission, pressed somewhat faintly, that s 5(4) applies.  Paragraph (b) of section 5(4) stipulates that the program of support must be terminated “because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program”.  I do not accept that continued participation in the program would not have improved Mr Marwood’s capacity to find work.  I note, for example, that Mr Marwood was able to identify relevant job opportunities through Konekt.[9] 

    [9] See Exhibit A3 at p.145 (second bullet point). 

22. I find, therefore, that Mr Marwood has not satisfied the program-of-support requirements for a DSP. Finally, I do not accept that I have a discretion to dispense with the requirements. Where they apply, they are mandatory under s 94(1) of the Act.

    INABILITY TO WORK 15 HOURS PER WEEK AND INABILITY TO RETRAIN

23. I am not satisfied that Mr Marwood is unable to work 15 hours per week in areas of work where he has competence.  The evidence suggests that in 2010 Mr Marwood explored on two occasions the possibilities of working as a driver.  Driving is an area of work for which Mr Marwood is suited, and he has had practical experience as a driver.  I accept that he is not physically capable of doing much lifting, and so taxi work, for example, would not be suitable.  I also accept that a driving job that required repetitive movements might well prove problematic. 

24. I do note, however, that he did discuss with Konekt[10] on two occasions job leads involving driving, one as a truck driver and the other as a chauffeur.[11]  On the evidence before me, work as a driver is still an option for Mr Marwood.  For this reason, too, therefore, I find that Mr Marwood does not qualify for a DSP.

    [10] Exhibit A3 at pp. 145 and 335-6.

    [11] I should note that this latter lead lay in an area where he might breach s.26(1) of the Summary Offences Act,1953 and so I have not relied on that exact area of work.  Nevertheless, I infer from the evidence that he believed himself physically able to act as a chauffeur.

25. I also find on balance that Mr Marwood could undertake training activities notwithstanding his memory loss: see s 94(2)(b) of the Act. I accept Mr Reid’s opinion[12] that Mr Marwood would benefit more from hands-on training than theoretical instruction, and that he would “require a degree of repetition”[13] to obtain benefit from the hands-on training.  I am not persuaded, however, that his impairment would prevent him from undertaking a training activity, or that the activity would be unlikely, because of the impairment, to enable him to work independently of a program of support.

    [12] Exhibit R1.

    [13] Exhibit R1, p.8.

    DECISION

26. For these reasons, therefore I find that Mr Marwood is not eligible to receive a DSP.  I set aside the decision of the SSAT and substitute a decision affirming the decision of the Authorised Review Officer dated 31 May 2012.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta

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Admin Assistant

Dated 19 September 2014

Date of hearing	24 March 2014
Advocate for the Applicant	Mr C Visser
Solicitors for the Applicant	Program Litigation and Review Branch Department of Human Services
Advocate for the Respondent	Ms M Welfare
Solicitors for the Respondent	Rudham Lawyers