Secretary, Department of Social Services and Jennifer Dunn

Case [2015] AATA 401

[2015] AATA 401

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/1686

Re

Secretary, Department of Social Services

APPLICANT

And

Jennifer Dunn

RESPONDENT

DECISION

Tribunal

 Member I Thompson
Date 5 June 2015
Place Adelaide

The Tribunal affirms the decision under review.  Ms Dunn is qualified to receive disability support pension from 5 April 2013.

.....................[Sgd].............................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - Disability support pension - permanent conditions - whether the respondent has an impairment rating of 20 points or more under the Impairment Tables - whether the respondent had a continuing inability to work - whether the respondent has a severe impairment - decision under review is affirmed. 

LEGISLATION

Social Security Act 1991, s94

Social Security (Administration) Act 1999, (Cth)

CASES

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

Re Hage and Secretary, Department of Social Services [2014] AATA 895
Re Hynninen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 664

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

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

Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension

REASONS FOR DECISION

Member I Thompson

5 June 2015

INTRODUCTION

  1. Ms Dunn lodged a claim for a disability support pension (DSP) on 5 April 2013.  Centrelink rejected the claim.  Ms Dunn applied to the Social Security Appeals Tribunal (SSAT) for a review of that decision.  Her application succeeded.  The SSAT set aside Centrelink’s decision.  On 2 April 2014 the Secretary, Department of Social Services, applied to the Tribunal for a review of the decision of the SSAT.  On 11 April 2014 the Tribunal made a Stay Order of the decision of the SSAT. 

    LEGISLATION AND ISSUES

  2. The Social Security Act 1991 (the Act) sets out the qualification criteria for DSP.  Section 94 of the Act provides that an applicant must have:

    (a)a physical, intellectual or psychiatric impairment;

    (b)an impairment of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

    (c)a continuing inability to work.

  3. Under s 94 of the Act a person is regarded as having a “continuing inability to work” if:

    (a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and

    (b)they have actively participated in a “program of support”.

    The second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

  4. Under ss 41 and 42, and cls 3 and 4 of the Social Security (Administration) Act 1999 (Administration Act) an applicant must qualify for a Social Security payment on the day on which the claim was made or within 13 weeks of that date (the “Assessment Period”).  For Ms Dunn’s claim…

Details
AGLC
Secretary, Department of Social Services and Jennifer Dunn [2015] AATA 401
Case
[2015] AATA 401
Decision Date

CaseChat Overview and Summary

The case of Secretary, Department of Social Services and Jennifer Dunn was heard by the Administrative Appeals Tribunal. Ms Dunn sought a review of a decision by the Secretary, Department of Social Services, to refuse her claim for a Disability Support Pension (DSP). The central issue in the case was whether Ms Dunn's impairments warranted an impairment rating of 20 points or more under the Impairment Tables, thereby making her eligible for the DSP. The Tribunal had to determine if Ms Dunn had a continuing inability to work and if she suffered from a severe impairment.

Ms Dunn's health issues, including arthritis, chronic pain, and various joint problems, were thoroughly examined. The Tribunal considered medical reports, evidence from Ms Dunn, and testimony from a medical expert and a Commonwealth Rehabilitation Service assessor. The Secretary argued that Ms Dunn's chronic pain should not be assessed under Table 1 of the Impairment Tables, suggesting that each impairment should be assessed under the relevant function-specific table. Ms Dunn, on the other hand, maintained that her impairments collectively warranted a higher impairment rating.

The Tribunal found that Ms Dunn's evidence was credible and consistent, despite a minor inconsistency regarding a support program. The Secretary accepted that Ms Dunn suffered from functional impairments and met the requirements of section 94(1)(a) of the Act. The critical issue was the application of the Impairment Tables to her conditions. The Tribunal ruled that the correct Impairment Table needed to be selected to accurately assess Ms Dunn's chronic pain and other impairments. The Secretary's contention that each relevant impairment should be assessed under a specific function-specific table was rejected, as it was determined that a combined assessment under the appropriate table was more appropriate.

The Tribunal concluded that Ms Dunn's impairments did indeed warrant an impairment rating of 20 points or more, affirming her eligibility for the DSP. The decision was based on a comprehensive evaluation of the evidence and a proper application of the relevant legal provisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Hearing took place on 5 and 6, 19 and 20 March 2015. Ms Dunn was represented by Ms M Riley, Welfare Rights Centre (SA) Inc and gave evidence. The Secretary was represented by Mr A Schatz, Australian Government Solicitor, who called oral evidence from Dr Tschirn and an assessor from the Commonwealth Rehabilitation Service. Numerous medical reports were received in evidence as exhibits together with records from Centrelink and from the Commonwealth Rehabilitation Service (CRS). EVIDENCEEvidence of Ms Dunn Ms Dunn gave oral evidence to the Tribunal. She is now 62 years old. She lives with her husband and she is closely involved with her three grown up children and her young grandchildren. She completed year 11 at school and had no further formal study. She worked as a chef for about 14 years. The work was full time. However that work came to an end about 12 years ago because of problems with her health. Those problems have continued in the meantime and they have prevented her from successfully gaining other employment. Ms Dunn had three hip replacements over a period of 10 years commencing about 20 years ago. Over many years she has long-term diagnoses of arthritis and problems with shoulders, back and hands, hips and knees. When Ms Dunn ceased work she was granted the DSP. Later she became ineligible for income support payments because of her husband’s income. Subsequently her husband was unwell on some occasions and the family income decreased because of his inability to work full time or at all. That led to Ms Dunn contacting Centrelink and claiming the DSP on 5 April 2013. In her evidence she described her daily routines and the difficulties she has encountered over many years in managing her various health problems. She has trialled different types and doses of medication and she has consistently managed the side effects of them, trying to keep those negative effects to a minimum. Currently she suffers from widespread pain which affects various joints at different times. Her main difficulties are constant pain in the lower back and constant pain in the left hand. She said that she suffers from fatigue. Her sleep pattern is impaired by shoulder pain. She has to lie on one side. She needs to pace herself throughout each day. She has a morning shower and holds on to the wall while she is in the shower. After the shower her back pain tends to reduce somewhat. She can walk around the house during the day. However by night-time she tends to stiffen up and pain gets worse. She said that she can sit down for quite some time; however she has to keep shifting positions. A recliner seat is more helpful for her. Her neck still troubles her, especially with bending. From time to time, her neck cracks. This has become a more regular occurrence. Buttock pain is a problem and she is still worried about pain in her right shoulder. Generally, Ms Dunn and her husband do the shopping. She can push the shopping trolley. She can manage shopping by herself of small errands. However, her husband assists with unpacking groceries and by the time she has arrived home, she is in more pain. She can do some of the housekeeping. She is restricted in her domestic work. She tries not to lift heavy things. For example she would not lift a three litre carton of milk. Her husband does the sweeping, mopping and vacuuming. She has problems hanging out the washing and sometimes suffers excruciating pain. She sits on a stool and prepares the vegetables for the evening meal. She can set the table. However her husband helps and he does most of the cooking. She enjoys sewing and scrap booking. On occasions she might spend most of the day sewing or working on a scrap book. She consistently has breaks and tries to move around and get comfortable.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 10(2) of the Impairment Tables requires that the table specific to the area of function affected must be applied, unless the instructions in a table specify otherwise, and section 10(3) requires that where a single condition causes multiple impairments, each impairment should be addressed under the relevant table. Under section 10(5) where two or more conditions cause a common impairment, a single rating should be assigned in relation to that common or combined impairment under a single table.CONSIDERATION Ms Dunn gave evidence about her health problems and the limitations on her functions which arise from the problems. She was impressive and truthful in her evidence. An inconsistency arose on one topic in her evidence compared with evidence of a CRS assessor. It related to a particular issue around cessation of a program of support. As will become clear, the topic does not have any bearing on the final outcome of this review. If a finding had been necessary on the respective versions, it would be on balance that Ms Dunn was mistaken in her recollection about the topic. Nonetheless, that mistake does not detract from the overall finding about the integrity of Ms Dunn’s evidence. She was forthright and did not exaggerate, despite the accumulation of difficulties in her health that she has encountered over the past twenty years. As the Secretary accepted that Ms Dunn suffers from certain, functional impairments and that she satisfies s 94(1)(a) of the Act, the next step is to determine whether Ms Dunn’s impairment attract any impairment points and the rating that should be assigned under one or more of the Impairment Tables. Section 94(1)(b) of the Act requires that the Tribunal decide whether Ms Dunn’s impairments are worth 20 points or more under the Impairment Tables. The selection of the correct Impairment Table is critical as the Secretary contended that it is incorrect to assess Ms Dunn’s chronic pain under Table 1. The Secretary contended that the Tribunal ought to assess each relevant impairment resulting from a condition, that is fully diagnosed, treated and stabilised, against the Impairment Table that is specific to the function that is affected In the statement of facts issues and contentions, the Secretary did not dispute that the following conditions were fully diagnosed, treated and stabilised during the Assessment Period: - osteoarthritis, psoriatic arthritis, metabolic (vitamin B12 deficiency), and hypercholesterolemia. The Secretary further contended that a zero rating under the Impairment Tables applied to each of metabolic (vitamin B12 deficiency), and hypercholesterolemia, which broadly had minimal or limited impact on Ms Dunn’s functioning. In effect, Ms Dunn agreed. In her statement of facts and contentions she stated: The applicant contends that the other conditions of metabolic (vitamin B12 deficiency), hypercholesterolaemia and GORD could not be assigned impairment points. The respondent agrees but notes that in combination with her other impairments these conditions still have some impact on her stamina/ability to work.