Shurlock and Secretary, Department of Social Services (Social services second review) - [2020] AATA 320

Shurlock and Secretary, Department of Social Services (Social services second review) [2020] AATA 320 (26 February 2020)
Division:GENERAL DIVISION
File Number: 2019/2205
Re:Olivia Shurlock
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Fletcher

Date:26 February 2020
Place:Perth

The decision under review is affirmed.
.......................[sgd].................................................
Member I Fletcher
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Qualification Period – mental health condition – chronic widespread pain – whether Applicant has an impairment rating of
20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(2)
Social Security (Administration) Act 1999 (Cth) – s 42, Sch 2 cls 3, 4, 4(1)

CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Pignat and Secretary, Department of Social Services [2017] AATA 2745
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Shi v Migration and Registration Authority (2008) 235 CLR 286
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606

SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide, Department of Social Services, version 1.261 – Instruction 3.6.3.05
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Table 5, rr 6, 6(1), 6(3), 6(4), 6(5), 6(6), 6(7), 8, 10(1), 11(4)

REASONS FOR DECISION
Member I Fletcher
26 February 2020
DECISION UNDER REVIEW

Mrs Shurlock (the Applicant) seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated
25 March 2019 that affirmed a decision made by an Authorised Review Officer (ARO) dated 10 October 2018. That ARO decision reviewed the decision made on 4 April 2018 by the Department of Human Services (Centrelink) (the Department) to reject the Applicant’s claim for disability support pension (DSP) lodged on 15 February 2018. The ARO found the decision made on 4 April 2018 to be correct.
ISSUES
The issue for the Tribunal to determine is whether the Applicant was qualified for DSP, in accordance with s 94 of the SocialSecurity Act 1991 (Cth) (the Act), during the period
15 February 2018 to 17 May 2018 (the qualification period).
This requires consideration of whether as at, or during, the qualification period:
(a)the Applicant had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act;
(b)if so, whether the Applicant had an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Shurlock and Secretary, Department of Social Services (Social services second review) [2020] AATA 320
Case: [2020] AATA 320
Decision Date: 26 February 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Shurlock, against a decision of the Secretary of the Department of Social Services affirming a decision that she did not qualify for a Disability Support Pension (DSP). The applicant’s claim for DSP was based on a mental health condition and chronic widespread pain. The core of the dispute revolved around whether the applicant met the qualification criteria for the pension, specifically the requirement of having an impairment rating of 20 points or more under the relevant Impairment Tables.

The court was required to determine two primary legal issues. Firstly, whether the applicant’s impairments, as assessed under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, reached the threshold of 20 points or more. Secondly, the court needed to consider the temporal aspect of qualification, specifically whether the applicant met the criteria within the relevant 13-week qualification period following her claim date.

The court applied the provisions of the *Social Security Act 1991* (Cth) and the *Social Security (Administration) Act 1999* (Cth), including the Impairment Tables. It was noted that the qualification criteria for DSP are cumulative, meaning all criteria must be satisfied. The court emphasised that the assessment of an impairment rating and the assessment of a continuing inability to work are distinct but equally important. Crucially, the court held that the applicant’s qualification for DSP could only be assessed within the 13-week period following her claim date of 15 February 2018, and any subsequent deterioration or change in her medical conditions was irrelevant to this assessment.

The decision under review was affirmed. The court indicated that the applicant might consider re-testing her eligibility for DSP with further recent medical evidence, particularly from a psychiatrist or clinical psychologist, if she intended to meet the Impairment Table Guidelines for Table 5 – Mental Health Function.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant may consider testing her eligibility for DSP again, with further recent medical evidence relating to her various conditions. Evidence from a psychiatrist or clinical psychologist is also required if she is to meet the Impairment Table Guidelines for Table 5 – Mental Health Function. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The relevant legislation is contained in:(a)The Social Security Act 1991 (Cth);(b)the Social Security (Administration) Act 1999 (Cth) (the Administration Act);(c)the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and(d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth). The relevant policy is contained in the Guides to Social Policy Law: Social Security Guide (the Guide) which is to be followed unless there are cogent reasons for departing from it to ensure consistency in decision making: See Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.Qualification for DSP The qualification criteria for DSP is set out in s 94 of the Act, which relevantly provides as follows: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; ... The qualification criteria for DSP are cumulative and if any one of the criteria are not satisfied the person will not be qualified for DSP. The Guide at 3.6.3.05 relevantly notes:The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.Qualification period Section 42 of the Administration Act provides that a person’s “start day” in relation to a social security payment is the day worked out in accordance with Schedule 2 to the Administration Act. Clause 3 of Schedule 2 to the Administration Act provides the general rule for a start day as the day on which a claim is made. Otherwise, a person’s qualification for DSP is to be considered during the 13 weeks following the date on which the claim was made, in accordance with sub-cl 4(1) of sch 2 to the Administration Act: See Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8]. As the date of claim is 15 February 2018, the qualification period for assessing the Applicant’s entitlement to DSP is therefore during the 13 week period from that date until 17 May 2018. As there is a temporal element, the Applicant’s qualification for DSP can only be assessed in the qualification period, and if there is any deterioration or change to her medical conditions suggesting she may have become qualified at a later time, this is irrelevant to the Tribunal’s consideration of her impairments at the qualification period: see Shi v Migration and Registration Authority (2008) 235 CLR 286, 328 [144] – [145].