Secretary, Department of Social Services and Kenneth Zimmerman Senior Member N A Manetta 28 January 2015 27 February 2015 Adelaide

[2015] AATA 110

[2015] AATA 110

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/1324
Re	Secretary, Department of Social Services
APPLICANT
And	Kenneth Zimmerman
RESPONDENT

WRITTEN REASONS FOR ORAL DECISION

Tribunal	Senior Member N A Manetta
Date	28 January 2015
Date of written reasons	27 February 2015
Place	Adelaide

For the reasons given orally at the hearing of this matter, the Tribunal sets aside the decision of the Social Security Appeals Tribunal and substitutes a decision affirming the decision of the Authorised Review Officer dated 27 August 2013.

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Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY - disability support pension - respondent has accumulated 20 impairment points - respondent has not received 20 points under a single table - whether respondent has continuing inability to work - whether respondent has actively participated in a program of support that meets defined regulatory requirements – respondent does not meet active participation in program of support - SSAT decision set aside. 

LEGISLATION

Social Security Act 1991, s 94

CASES

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

Re:  Secretary, Department of Social Security and Giles [2014] AATA 685

SECONDARY MATERIALS

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

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

WRITTEN REASONS FOR ORAL DECISION

Senior Member N A Manetta

27 February 2015

1. After the delivery of my oral decision and reasons, I received a request for written reasons, which I now publish.

2. This is an application by the Secretary, Department of Social Services for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 15 February 2014.  The SSAT’s decision overturned a determination of a departmental authorised review officer (ARO) dated 27 August 2013 that Mr Zimmerman is ineligible to receive a disability support pension (DSP) under the Social Security Act, 1991.  In the proceedings before me, Mr Parker appeared for the applicant; Ms Riley, for the respondent, Mr Zimmerman.

   SUMMARY OF ISSUES

3. The parties agree that Mr Zimmerman should be awarded the requisite 20 points under the applicable tables[1] for impairments to his mental health (Table 5), lower limb function (Table 3), and spinal function (Table 4).  In particular, they agree that Mr Zimmerman should receive 10 points under Table 5, 5 points under Table 3, and 5 points under Table 4.  I am content to accept this agreement for the purposes of deciding the Secretary’s application for review. Mr Zimmerman satisfies, therefore, this eligibility criterion. 

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

4. As he has not received 20 points under a single table, however, Mr Zimmerman must have participated actively in a program of support.[2]  The Secretary disputes that Mr Zimmerman has actively participated in a program that meets the prescribed requirements.[3]  Mr Zimmerman submits he has satisfied this eligibility criterion.  This is the first issue for me to decide. 

   [2] Section 94(2)(aa) of the Act.

   [3] Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011.

5. The second issue concerns Mr Zimmerman’s continuing inability to retrain and work.  The Secretary contends – and I express the regulatory requirements compendiously – that Mr Zimmerman is able to undertake training and is also able to work 15 hours per week.  Mr Zimmerman disputes each of these contentions. 

6. I note that my task is to decide the matter afresh on the evidence before me, not to review the SSAT’s decision for error.[4]

   [4] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

   CONCLUSION

7. In respect of the issues I have identified, I have decided that:

   (a)First, Mr Zimmerman has not participated actively in a program of support as required by the Social Security Act 1991 and the relevant determination made under it; and

   (b)Secondly, Mr Zimmerman does not have a continuing inability to work in that he is able to undertake training and is able to undertake work for at least 15 hours per week.

8. Before setting out my reasons for these conclusions, I shall recapitulate the factual background, which is not in dispute between the parties. 

   FACTUAL BACKGROUND

9. Mr Zimmerman alone gave oral evidence.  He is 62 years old.  He worked with the State of SA’s Correctional Services Department for some 20 years.  As I understand his evidence, he began at Yatala Gaol in 1985 and then moved in 1986 to the Adelaide Remand Centre, where he worked until August 1988.  From there he transferred to Port Lincoln for a better life with his family, where he worked at what he described as a low-security prison-farm.  Due to family health problems, however, he decided to return to Adelaide in 1989 to be closer to specialist medical services.  He gained a position in “G” Division in Yatala and won a further position at the Remand Centre in 1990 or 1991. 

10. He gave evidence that while serving in Unit 7 in the Remand Centre, he was attacked in a riot by three prisoners and had to be rescued by other officers.  In another incident he was struck in the jaw.  He still has to wear a night splint as a result of that injury.  The incident where he was attacked by three prisoners did not leave Mr Zimmerman.  He dwelt on it and found himself becoming progressively more anxious about life.  He said he had a break-down over the incident in about 1999 and entered the WorkCover system.  He regularly saw a psychiatrist, Mr Barry Rowe.  While working as a prison officer, he also sustained injuries to his shoulder, knees and neck.  These still disable him to some extent.

11. He returned to work in 2003 in a project officer’s position at head office in the Correctional Services Department, working on a DNA project for the compulsory testing of prisoners.  He enjoyed the project work but remained unhappy at the prospect of resuming contact with prisoners in gaol.  He thought that he might be able to secure a job with the Fisheries Department given his four-and-a-half years’ experience as an able seaman, but that did not eventuate. 

12. He left the prison system altogether in about 2005 to work as a tobacco control officer for the South Australian Department for Health, policing the non-smoking areas in hotel dining rooms and lounges.  His role was an educational one for hoteliers.  He had to work with a lazy colleague, which was stressful.  He found it difficult to manage his workload, and the workplace atmosphere was not amicable.  Attempts to conciliate differences were unsuccessful.  In February 2012, he commenced sick leave.

13. Mr Zimmerman gave evidence about his anxiety.  He becomes very anxious when there is a prospect of meeting former prisoners.  He recounted one episode where he attended a gym, only to meet an ex-prisoner who was a member of a bikie gang.  The man threatened to kill him. 

14. He takes medication for pain, anxiety, hay fever and asthma. 

15. In 2012 he applied for a separation package from the South Australian Government after being notified that the tobacco control officer position he held was to be abolished.  He ended his employment at the end of June 2012; but, as I have said, he had been on sick leave from February of that year and had been looking for work since April or May. 

16. He applied for a gardening job at an aged care centre, a maintenance job, and a position as a funeral director but was, unfortunately, unsuccessful on each occasion.  An agency called “Skills for All” referred him to Northern Futures Inc (Northern Futures) at Salisbury.  It is his time with Northern Futures that is claimed by Mr Zimmerman to qualify as a program of support.  I now turn to consider the program-of-support requirements. 

    PROGRAM OF SUPPORT

17. As I have said, the Social Security Act, 1991 requires[5] Mr Zimmerman to have actively participated in a program of support unless he has twenty points under a single table.  I accept Mr Parker’s submission that the phrase connotes a series of planned actions.  In the recent matter of Giles, in which both Mr Parker and Ms Riley appeared before me, I decided that a program connoted a series of “prearranged organised activities intended to lead to a defined result” (namely, paid employment).[6]

    [5] See section 94(2)(aa).

    [6] Re:  Secretary, Department of Social Services and Giles [2014] AATA 685 at [19].

18. The regulatory provisions do require Mr Zimmerman to have completed the program of support before applying for a DSP: s 5(1)(a)(ii) of the relevant determination.[7]  Mr Zimmerman applied for a DSP on 24 April 2013.  Before this date, Mr Zimmerman’s only engagement with an employment assistance organisation was with Northern Futures.  I confine myself, accordingly, to his time with Northern Futures.

    [7] Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011. Section 94(2)(aa) also implies that the program of support must be completed before the Secretary can be satisfied that a person has a continuing inability to work.

19. I accept that Northern Futures engages with unemployed persons with a disability, although its focus is wider.  I am also satisfied that Northern Futures offered advice and assistance to Mr Zimmerman in person on three occasions over a short eighteen-day period followed up by two phone calls.  I am not satisfied, however, that this limited service answers the description of a “program of support” tailored to meet Mr Zimmerman’s disabilities.  From Mr Zimmerman’s description of it, there was no organised “program” in the sense of a planned series of activities by which Mr Zimmerman was intended to become better equipped to find paid work. 

20. At his first appointment on 23 July 2012, Mr Zimmerman attended Northern Futures with eight or nine others.  The session involved him in filling out a questionnaire to give Northern Futures an insight into his “personality style”.  It does not appear that the questionnaire was directed at all to Mr Zimmerman’s occupational skill set.  Mr Zimmerman was found to have an “analyser-driver” type of personality.  Approximately 100 occupations were listed for Mr Zimmerman’s consideration given this finding.[8]  Amongst those listed were: psychiatrist, judge, typist, climate change researcher, traffic controller, baker, environmental consultant, pathologist as well as many other disparate occupations.  The only common link is that they were all occupations deemed suitable for “analyser-driver” types. 

    [8] Exhibit R7.

21. In my opinion, this appointment did not achieve very much at all in terms of addressing Mr Zimmerman’s skills and limitations.  It was clearly a preliminary first step.  Mr Zimmerman had no realistic prospect of being employed in many of the listed fields as he simply lacked the necessary skills.  This is evident from a cursory examination of the list.

22. The second appointment with Northern Futures took place on 2 August 2012.  Mr Zimmerman brought his résumé to that appointment.  Two inappropriate jobs – in the sense of jobs he felt he could not perform – were mentioned to him as possibilities on that occasion.  Again, this highlights to me the lack of appreciation by Northern Futures at that stage of Mr Zimmerman’s particular skills and limitations.  The first suggestion to him was that he should consider becoming an aged care worker, which Mr Zimmerman felt was inappropriate given his physical limitations resulting from earlier injuries.  The second possibility was counselling, which Mr Zimmerman felt was inappropriate given his problems with anxiety and depression.   

23. According to Exhibit R1, the third one-on-one appointment with Northern Futures concerned the formatting of his résumé, and there was also a discussion about funding for a truck-driving course (referred to as “Certificate 3”) that Mr Zimmerman identified as relevant to his skills and as of interest to him.  Despite initial promises of partial financial support from Northern Futures, the funding was not forthcoming in the event. 

24. Eighteen days only separated the first and third (and last) appointments.  There were two phone calls later (on 13 August 2012 and 19 October 2012) but these appeared to be short and did not offer much more practical advice or assistance to Mr Zimmerman.  One call concerned his résumé and the other a possible course.

25. Mr Zimmerman has no recollection of his medical conditions being discussed at any point with Northern Futures or enquired into in any detail; of his medical reports being asked for, or referred to, by staff at Northern Futures; or that there was any detailed discussion concerning the training Northern Futures could offer.  His case-officer, Ms Crawford, did, however, examine his résumé and assisted him to tailor it to truck-driving. 

26. I take into account the limited number of face-to-face sessions over a very short period of time, the lack of results in practical terms of those sessions, the absence of any evidence that Mr Zimmerman’s skills were evaluated carefully in light of a proper appreciation of his medical conditions and limitations, and also the lack of evidence of Northern Futures’ services leading to any appreciable number of job applications.  All in all, I am unable to find that the assistance Northern Futures offered to Mr Zimmerman answers the description of a “program of support”, and, in particular, it was not assistance tailored to meet Mr Zimmerman’s level of impairment, individual needs, and barriers to employment, as required under the relevant determination.[9] 

    [9] Social Security (Requirement and Guidelines- Active Participation for Disability Support Pension) Determination 2011, section 6(b).

27. I understand that for reasons connected with his, and his wife’s, asset and/or income levels, Mr Zimmerman was ineligible to receive a Newstart allowance and so missed out on the programs of support by recognised providers Centrelink routinely offers to Newstart recipients.  Ms Riley pressed me with this submission, but the legal preconditions for eligibility apply to Mr Zimmerman are not qualified in a way that assists him in this regard.

    ABILITY TO RETRAIN OR WORK 15 HOURS PER WEEK

28. This finding is sufficient to decide the matter adversely to Mr Zimmerman, but I shall address briefly the second issue I identified at the outset, which concerns his ability to attend training and to work.  To receive a DSP, Mr Zimmerman must be unable to undertake training activities:  s 94(2)(b)(i) of the Act.  The evidence before me shows that Mr Zimmerman has, to the contrary, undertaken training in the past.  He received two attainment statements.[10]  Each training session lasted between a half-day and a full day. 

    [10] Exhibits R5 and R6.

29. Mr Zimmerman did give evidence that he was quite anxious during one of the training sessions because of the presence of ex-prisoners.  He thought they might recognise him and be hostile.  Nevertheless, he completed the training satisfactorily.  His anxiety had a particular and unusual source on that occasion.  I also refer to the Job Capacity Assessment (JCA) report[11], one of whose authors is a registered psychologist.  That report supports a conclusion that Mr Zimmerman is able to work 15 hours a week and, inferentially, that he could undertake training, especially on-the-job training, for that period as well.  No medical evidence contradicting this conclusion was adduced by Mr Zimmerman.  Finally, I note that he undertook a six-hour truck-driving course at Wingfield in July 2012.

    [11] Exhibit A1, T28.

30. So far as Mr Zimmerman’s capacity for work is concerned, I note again the un-contradicted JCA report.  Mr Zimmerman’s own evidence, as I understood it, is that he is physically capable of semi-sedentary work as, for example a building attendant or receptionist. 

31. His main interest, however, is in driving trucks.  This specific area may, or may not, be a further avenue for Mr Zimmerman.  I note his evidence that using truck pedals on one occasion caused his knee to become inflamed, but that may have been due to an insufficient recovery time he had allowed for an arthroscopy.  It may also be the case, although the issue was not the subject of detailed evidence, that Mr Zimmerman’s various medications will rule out truck-driving. 

32. In the light of my other conclusions, I need not decide whether Mr Zimmerman can drive trucks for 15 hours per week, and I make no finding on this particular aspect of the case.  As I have indicated, I do believe Mr Zimmerman has a general capacity for semi-sedentary work for 15 hours a week and has demonstrated a capacity to attend training activities.

    DECISION

33. In all the circumstances, I shall set aside the decision of the SSAT and substitute a decision affirming the decision of the ARO dated 27 August 2013.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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Administrative Assistant

Dated 27 February 2015

Date(s) of hearing	19 and 28 January 2015
Advocate for the Applicant	Mr A Parker
Solicitors for the Applicant	Department of Human Services
Advocate for the Respondent	Ms M Riley
Solicitors for the Respondent	Welfare Rights Centre (SA) Inc