Stuart; Secretary, Department of Social Services and (Social services second review) [2016] AATA 787 (7 October 2016)
Division
GENERAL DIVISION
File Number
2015/2676
Re
Secretary, Department of Social Services
APPLICANT
And
Leith Stuart
RESPONDENT
DECISION
Tribunal Member I Thompson
Date 7 October 2016 Place Adelaide The Tribunal affirms the decision under review. Mr Stuart is qualified to receive the disability support pension from 22 September 2014.
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Member I Thompson
CATCHWORDS
SOCIAL SECURITY - disability support pension - whether conditions attracted 20 points or more under the Impairment Tables - applicant has a severe impairment - decision under review is affirmed.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, ss 41 and 42, clauses 3 and 4 of Part 2 to Schedule 2
CASES
Re Hynninen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 664
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
7 October 2016
INTRODUCTION
Mr Stuart lodged a claim for disability support pension (DSP) on 22 September 2014. Centrelink rejected the DSP claim both initially and on internal review. Mr Stuart applied to the Social Security Appeals Tribunal (SSAT) for review of Centrelink’s decision. His application succeeded and the decision under review was set aside. The outcome of the SSAT decision was that Mr Stuart was eligible to receive the DSP from the date of his claim.
The Secretary filed an application for review of the SSAT decision. The hearing before this Tribunal took place on 18 August 2016. Mr Stuart was represented by Ms M Riley, Welfare Rights Centre (SA) Inc and Mr A Hay, Department of Human Services, represented the Secretary. Mr Stuart gave evidence. The Secretary called oral evidence from Dr W Weightman. The Tribunal received in evidence as exhibits various medical reports together with reports from Centrelink.
LEGISLATION AND ISSUES
The issue for the Tribunal is whether Mr Stuart satisfied the qualification criteria for the DSP which are set out in s 94 in the Social Security Act 1991 (the Act). In accordance with ss 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) the relevant assessment period for consideration of Mr Stuart’s claim is taken from the date of the DSP claim and 13 weeks following. The assessment period in this case is 22 September 2014 to 22 December 2014.
Section 94 of the Act provides that a person is qualified for DSP 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 Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)The person has a continuing inability to work.
In accordance with s 94 of the Act a person…
- AGLC
- Stuart; Secretary, Department of Social Services and (Social services second review) [2016] AATA 787
- Case
- [2016] AATA 787
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine the appropriate impairment ratings for Mr Stuart's conditions, considering the criteria set out in the Impairment Tables. This involved assessing whether each condition was permanent, meaning it had been fully diagnosed, fully treated, and fully stabilised, and whether the impairment resulted from a condition likely to persist for more than two years. The functional impact of each impairment on Mr Stuart's capacity to work was the primary focus of this assessment.
The Tribunal reasoned that the Impairment Tables are designed to rate functional impact rather than diagnosis, and that a prerequisite for assigning an impairment rating is that the condition causing the impairment is permanent and likely to persist for at least two years. The Tribunal considered Mr Stuart's listed conditions, including hypermobility syndrome, severe eczema, asthma, depression, insomnia, cervical fusion, perianal abscess, and anaemia, along with the side effects of his multiple medications. Ultimately, the Tribunal was satisfied that Mr Stuart had a continuing inability to work within the meaning of section 94(1)(c) of the relevant Act. The decision under review was affirmed, and Mr Stuart was found to be qualified to receive the disability support pension from 22 September 2014.
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
Ratio Decidendi
Legal Principle Established
In Mr Stuart’s statement of facts and contentions, it was contended that an impairment rating of 5 points under Impairment Table 3 (lower limb function) and an impairment rating of 5 points under Impairment Table 4 (spinal function) were both appropriate. It was also suggested that the Tribunal could allocate a mild or moderate impairment rating under Impairment Table 1 (functions requiring physical exertion and stamina) for the condition of fibromyalgia. Mr Stuart contended that the condition of eczema should be allocated 20 points under Impairment Table 14 (functions of the skin). In those circumstances it was submitted that Mr Stuart did not need to meet the requirements of a program of support. CONSIDERATION The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment. The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations. Section 6 of the Rules for applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and that the impairment results from a condition that is more likely than not to persist for more than two years. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work. The applicable impairment rating, if any, for each of Mr Stuart’s conditions will be considered in turn by reference to the Impairment Tables. As indicated, consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an impairment rating, as the Impairment Tables provide this as a pre-requisite for the allocation of an impairment rating. Mr Stuart is 47 years old. He resides with his wife and 18 year old son in suburban Adelaide. In his 20’s he was employed as a dancing instructor. Problems with his legs caused him to cease that work. Through natural abilities as a singer and a musician he tried to make a living as a musician. He succeeded in that career for many years, notably as a solo performer. He played the guitar and sang. He was forced to stop working in 2014 because of his medical conditions. Then he applied for the DSP. In his DSP claim, Mr Stuart listed his disabilities, illnesses or injuries as hypermobility syndrome of all joints, severe eczema, asthma, depression, insomnia, cervical fusion, perianal abscess and anaemia. He listed his treatment as multiple medications which had mild to severe side effects in different areas from various medications, in particular liver and kidney function impairment. In the DSP claim form Mr Stuart listed his activities as home duties, parenting, managing his illness and medications, attending medical appointments and procedures and handling the family budget.Hypermobility syndrome of joints