Swift and Secretary, Department of Social Services (Social services second review)

[2016] AATA 670

Swift and Secretary, Department of Social Services (Social services second review) [2016] AATA 670 (1 September 2016) 

Division	GENERAL DIVISION
File Number(s)	2015/5296
Re	David Swift
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member P Nolan
Date	1 September 2016
Place	Brisbane

I affirm the decision under review.

.........................[sgd]...............................................

Senior Member P Nolan

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant’s conditions are permanent – applicant does not have a severe impairment – applicant has a continuing capacity for work – applicant has not participated in a program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2, Pt 2, cl 4

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member P Nolan

1 September 2016

1. This application, brought by Mr David Swift (“the Applicant”), relates to a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“first tier review”) made on 7 September 2015.

2. The Applicant lodged a claim for a Disability Support Pension (“DSP”) on 20 February 2015 in respect of ‘mod severe compression of L5 – S1, Depression’.[1] On 27 April 2015 the claim was rejected.[2] On 4 June 2015 an Authorised Review Officer (“ARO”) affirmed the rejection decision.[3] On 7 September 2015 the first tier review affirmed the decision of the ARO.[4] On 6 October 2015 the Applicant applied to this Tribunal for further review.[5]

   [1] Exhibit 1, T-Documents, T25.

   [2] Exhibit 1, T-Documents, T27.

   [3] Exhibit 1, T-Documents, T28.

   [4] Exhibit 1, T-Documents, T2.

   [5] Exhibit 1, T-Documents, T1.

3. The Applicant has maintained that he is qualified to receive a DSP in relation to his spinal condition which was caused by an injury that he suffered in 2010. There is no dispute that the Applicant did suffer an injury and that it concerns his back and, on any view of it, it is quite a substantial disability. The Secretary of the Department of Social Services (“the Respondent”) only attributes the Applicant 10 points under the Impairment Tables whereas he needs 20 points to receive a DSP.[6]

   [6] Social Security Act 1991 (Cth) s 94(1)(b).

4. The relevant legislation is the Social Security Act 1991 (Cth) (“the Act”). The provisions of s 94 of the Act are adequately set out in the Respondent’s Statement of Facts, Issues and Contentions and List of Authorities. In essence the legislation requires that the Applicant has:

   (a)a physical, intellectual or psychiatric impairment;[7] and

   (b)conditions that are fully diagnosed, treated and stabilised causing an impairment that attracts an impairment rating of at least 20 points under the Impairment Tables;[8] and

   (c)a continuing inability to work.[9]

   [7] Ibid s 94(1)(a).

   [8] Ibid s 94(1)(b).

   [9] Ibid s 94(1)(c)(i).

5. As stated above, I am satisfied that s 94(1)(a) of the Act is satisfied as the Applicant has a spinal condition.

6. The relevant impairment table for assessing the rating of Applicant’s spinal function is Table 4. At the hearing it became abundantly clear that the outcome of this matter turns on whether or not the Applicant’s  spinal condition has a severe functional under Table 4. Of particular importance was paragraph (d), namely, whether he is unable to remain seated for at least 10 minutes.[10] There is no suggestion in the material that anything other than the requirement of 20 points would allow the Applicant to succeed.  The report of the Job Capacity Assessor completed on 20 April 2015 stated that the Applicant could sit for up to 15 minutes before his lower back pain was aggravated.[11]

   [10] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) Table 4: Spinal Function, severe impairment, (1)(d).

   [11] Exhibit A, T-Documents, T26.

7. On top of that it is a requirement that there must be corroborative evidence of the impairment. Table 4, in its introduction, gives examples of that. Self-report of symptoms is insufficient.[12] He was diagnosed by Dr Leacy, Psychiatrist, as having a depression disorder on 17 November 2011.[13] However, he failed undertake the treatment that Dr Leacy recommended. I cannot assign an impairment rating to the depression condition as the condition was not fully treated and stabilised within the relevant period.

   [12] Ibid.

   [13] Exhibit A, T-Documents, T12.

8. There is no evidence available to show that there could be a combination of conditions whereby the Applicant could accrue the 20 points. On any view of the material the question is whether or not he can point to material (including his own evidence) to show he has acquired the 20 points and in this case the only provision that would apply is contained in paragraph 20 subsection 1(d) (found at page 52 of Exhibit 1) would be whether he is unable to remain seated for at least 10 minutes.

9. On the face of it this seems to be very subjective but the legislation quite clearly assumes that a person who cannot or is unable to remain seated for at least 10 minutes would be relatively unemployable. The Applicant in his evidence seemed to accept this himself. He stated in evidence that he worked at Anaconda as part of a resettlement for a Newstart exercise and was able to perform the work.

10. The Applicant appeared in person and had no assistance with respect to preparing the application. The Applicant had to get up and sit down on a number of occasions throughout the hearing. With respect to his demeanour at the hearing I have no doubt that he would be unable to sit or remain seated for at least 10 minutes.  When he did stand up to address me during his evidence he had to support himself with his arms. I am unable to assign an impairment rating based on my own observations at the hearing.  Rather the assessment of the impairment rating is to be determined based on the medical evidence before me. Also these observations are made outside of the relevant period.

11. Interestingly he said that after trying to work for more than two hours he was absolutely exhausted even when he was allowed to get up and move around. In essence I have no doubt from listening to his evidence and observing him that he is telling the truth when he says he could not remain seated for at least 10 minutes and more importantly he could only really work for short periods for up to two hours. There is no doubt in my mind that he is unemployable but the difficulty he faces is the absence of corroboration.

12. His own testimony, although believable, is insufficient to satisfy the legislative requirements. There is nothing in the material that I could find that would amount to corroboration.

13. The relevant period is to be determined with reference to Sch 2, Pt 2, cl 4 of the Social Security (Administration) Act 1999 (Cth) which provides that the relevant period is between the date that the application was lodged and 13 weeks thereafter. Then state that as the application was lodged on 20 February 2015, the relevant period is between that date and 20 May 2015. There are a number of medical reports which I found to be of little use. Most of them are quite old and the relevant period for this particular matter goes from 20 February 2015 to 20 May 2015. There is nothing of any sort or significance with respect to medical reports that covers that period. The probative value of the medical reports is limited as they were prepared for the purpose of a personal injuries claim rather than an assessment of the Applicant’s eligibility for a DSP.

14. Corroboration is a term well known to criminal lawyers. Corroboration in essence is evidence that is independent of the witness or party needing corroboration that supports the evidence of that party in a material particular. In this case there is nothing independent of the Applicant to support his evidence. The statements he may make to doctors about his condition do not amount to corroboration but are in fact self-serving statements. At page 82 in paragraph 79 of Exhibit 1 there is a classic statement written in the Applicant’s own hand that he cannot stand for more than five minutes or sit for more than five minutes. This is self-serving and not capable of amounting to corroboration. There is also at page 185 of Exhibit 1, a medical certificate under the hand of the Applicant’s General Practitioner to the effect that he is unable to sit or stand for more than 10 minutes continuously at any given time. Again this not only fails to address the legislation specifically but can only be a statement made by the Applicant to his General Practitioner. When I questioned him about how this medical certificate came into existence he was of the view that it was required by Centrelink that he go and get the certificate. Again this fails the test for corroboration in that it is nothing more than reiteration of what the Applicant must have told the doctor. If I am wrong on that then it fails the specific test of being worded in a manner that is consistent with the legislative requirement that the Applicant must be unable to remain seated for at least 10 minutes.

15. In the circumstances the application must fail. It is worth noting that corroboration could have been obtained had the Applicant been properly advised. His General Practitioner who has treated him for some time could have been called to give expert evidence of his observations of the Applicant and the treatment that he has given him. In essence the legislation does not present the Applicant with an impossible task and it would be very easy to prove had it been investigated. I cannot be satisfied on the material before me that the Applicant’s spinal condition would attract a severe impairment rating.

16. As such the application must fail. I affirm the decision under review.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Nolan

..........................[sgd]..............................................

Associate

Dated 1 September 2016

Date(s) of hearing	17 August 2016
Applicant	In person
Solicitors for the Respondent	Mr N Warren, Department of Human Services