Tamas Vass and Secretary, Department of Social Services

[2014] AATA 621

[2014] AATA 621  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/1472
Re	Tamas Vass
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	2 September 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether continuing inability to work – Applicant did not complete the Program of Support – Decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94

Social Security (Administration) Act 1999 (Cth) ss 13, 14, 42, Sch 2 cls 3, 4

CASES

Tey and Secretary, Department of Social Services [2013] AATA 753

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

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

2 September 2014

INTRODUCTION

1. I have to determine whether Mr Tamas Vass (“the applicant”) is entitled to disability support pension (“DSP”). The applicant elected not to give evidence but made submissions in support of his application.

   PRIOR DECISIONS

2. On 14 January 2013 the applicant lodged a claim for DSP. On 1 February 2013 this claim was rejected. On 13 March 2013 an authorised review officer affirmed that decision. On 7 May 2013 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision to reject the claim. On 18 March 2014 the applicant made an application to this Tribunal for review of the decision to reject the claim for DSP.

   RELEVANT LEGISLATION

3. The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

4. Section 94 of the Act provides that in order to be qualified to receive DSP the applicant must have:

   ·a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act);

   ·an impairment rating of at least 20 points (s 94(1)(b) of the Act); and

   ·a continuing inability to work (s 94(1)(c) of the Act).

5. The Administration Act provides that the start day for a claimant who qualifies to receive DSP is the date on which they contact the Department regarding the payment, the deemed date of claim (ss 13, 41, 42, Sch 2 cl 3 of the Administration Act). The applicant will be entitled to receive DSP if he was qualified to receive that benefit as at the deemed date of the claim. If he was not qualified to receive DSP on that date he will nevertheless be entitled to receive DSP if he becomes qualified within thirteen weeks of lodging a claim. In that event, the start-day is the day that he becomes qualified to receive the social security benefit (Sch 2 cl 4(1) of the Administration Act).

6. There are a number of Ministerial Determinations which have to be considered.[1] The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Disability Support Pension Determination”) came into force on 1 January 2012. The Disability Support Pension Determination contains the Impairment Tables which are function based and are intended to determine the level of functional impact of impairments (s 5 of the Disability Support Pension Determination). The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the Active Participation Determination”) came into force on 3 September 2011. Section 5 of the Active Participation Determination sets out the requirements for active participation. Both of these Determinations are in evidence.

   [1] See s 26 of the Act.

   ASSESSMENT PERIOD

7. I am required to determine whether the applicant became qualified at any time within the thirteen week period (“the relevant period”) from when the applicant lodged the claim for DSP. There is no issue that this period commenced on 14 January 2013 and concluded on 15 April 2013.

   ISSUES FOR DETERMINATION

8. I have to determine:

   ·whether the applicant, as at the date of the claim (or within 13 weeks of that date), had a physical, intellectual or psychiatric impairment; and

   ·whether the applicant had an impairment rating of at least 20 points or more under the Impairment Tables; and

   ·whether the applicant had a continuing inability to work.

   WHETHER THE APPLICANT HAS AN IMPAIRMENT

9. I find that within the relevant period the applicant had a physical, intellectual or psychiatric impairment as required by s 94(a)(1) of the Act. To make this finding I rely upon the medical report dated 23 January 2013 in which Dr Vago reported that the applicant had a number of impairments. The condition of chronic alcoholism and lumbar spine degeneration were listed as having the most impacts on the ability of the applicant to function as well as an anxiety/depression condition. The Secretary has quite properly conceded that the applicant suffers from these impairments.

   ASSESSMENT OF IMPAIRMENTS

10. I am required to consider whether within the relevant period the impairments of the applicant can be assigned an impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act.

    Alcohol dependence

11. There is no issue that the applicant has an alcohol dependence condition. Dr Vago in the medical report dated 23 January 2013 has reported that the applicant has had a “long history of alcohol abuse”. Dr Vago stated that the current and past treatment for this condition has been conservative, including counselling. Ms Hampson, clinical psychologist, has indicated in her report dated 27 May 2014 that the alcohol dependence condition could be impacting upon the PTSD/depression condition of the applicant. 

12. A Job Capacity Assessment Report was undertaken on 17 February 2012 by

    
    

    Ms Jannette McDonald, a registered psychologist. She stated that there is no corroborating evidence of the applicant’s alcohol dependence. Ms McDonald opined that the applicant would benefit from drug and alcohol counselling as well as a functional assessment to identify possible restriction. She considered that once the personal situation of the applicant has been stabilised he could benefit from vocational counselling and support to re-engage with employment. While this report was written sometime before the assessment period, the recommendations in this report do not ever appear to be implemented. There is no evidence that the applicant received such treatment at any time.

13. Having regard to this evidence I cannot be satisfied that the alcohol dependence condition has been fully diagnosed by medical practitioner, fully treated and fully stabilised as required by s 6(4) of the Disability Support Pension Determination. In these circumstances I am prevented by s 6(3)(a) of the Disability Support Pension Determination from assigning an impairment rating to the alcohol dependence condition of the applicant.

    Lumbar spine

14. Dr Vago in the medical report dated 3 July 2013 has reported that the applicant has lumbar spine degeneration. The applicant informed the SSAT that it has been suggested that he have treatment of physiotherapy and hydrotherapy but that he has not tried this treatment.  Having regard to this evidence I cannot be satisfied that the condition has been fully treated.

15. I am prevented by s 6(3)(a) of the Disability Support Pension Determination from assigning an impairment rating to the lumbar spine condition of the applicant.

    
    

    Section 6(3) of this Determination provides that an impairment rating can only be assigned if the condition causing that impairment is permanent. Section 6(4) of the Disability Support Pension Determination provides that a condition is permanent if the condition has been fully diagnosed by medical practitioner, fully treated and fully stabilised. Having regard to the requirement that a condition be “fully treated” I cannot assign an impairment rating to the condition.

    Depression/anxiety/post-traumatic stress disorder

16. The depression condition of the applicant was referred by Dr Heves in the certificate dated 12 February 2014. The Introduction to Table 5 of the Disability Support Pension Determination, which relates to Mental Health Function, provides:

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

    While the diagnosis of the condition was not made within the relevant period by a psychiatrist or clinical psychologist, the respondent has quite properly accepted in view of the report of Dr Ziukelis dated 4 March 2013 that the applicant had post-traumatic stress disorder with anxiety and depressed mood during the relevant period. Dr Ziukelis has stated that within the next 2 years the effect of the condition on the ability of the applicant to function was uncertain.

17. Ms Hampson, clinical psychologist, in her report dated 27 May 2014 has indicated that it would have been necessary to monitor the applicant’s response to a sustained period of medication in order to accurately determine the prognosis for improvement with further treatment. Ms Hampson has remarked that because active treatment only commenced in the relevant period it would not have been possible to provide a definitive prognosis for improvement within the next two years.

18. Having regard to this evidence I cannot be satisfied that the depression/anxiety and post-traumatic stress disorder have been fully diagnosed by medical practitioner, fully treated and fully stabilised as required by s 6(4) of the Disability Support Pension Determination. In these circumstances I am prevented by s 6(3)(a) of the

    
    

    Disability Support Pension Determination from assigning an impairment rating to the condition of the applicant.

    Hernia

19. Dr Heves in her medical certificate dated 12 February 2013 has indicated that the applicant has a hernia condition for which the applicant was awaiting surgery. No such treatment was provided to the applicant during the relevant period. Indeed, the applicant had not received this treatment when he appeared before the SSAT. I do not consider that the condition can be assigned a rating. This is because the condition was not fully diagnosed, treated and stabilised during the relevant period.

20. I have concluded that the applicant does not satisfy s 94(1)(b) of the Act as he cannot be assigned a rating for any of the impairments.

    CONTINUING INABILITY TO WORK

21. I will also consider whether the applicant can be regarded as having a continuing inability to work as required by s 94(1)(c)(i) of the Act. In all strictness it is not necessary for me to consider this matter as the applicant does not satisfy s 94(1)(b) of the Act. However, I will outline my observations on this matter for the benefit of the applicant.

22. In considering whether the applicant can be regarded as having a continuing inability to work, I mention that this is not a case where the applicant has been found to have a severe impairment which attracts 20 points or more under a single Impairment Table (s 94(3B) of the Act).

23. The Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied they have actively participated in a program of support as well as satisfying the other requirements of s 94(2) of the Act. The Act also provides that a person has activity participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of s 94(3C).

24. Section 5 of the Active Participation Determination provides that a person has actively participated in a program of support if the person has complied with the requirements of the program of support and participated in a program of support during the 36 months ending immediately before the relevant date of claim (s 5(1)). It is also necessary that the person must have participated in the program of support for at least 18 months within the three years prior to the date of claim (s 5(2)). There are exceptions to this requirement which are not material to this application (ss 5(3)-(5)). Part III of the Active Participation Determination sets out the guidelines that the Secretary must comply with in deciding whether he or she is satisfied that, in a case where a person’s impairment is not a severe impairment, the person has actively participated in a program of support within the meaning of s 94(3C) of the Act. There is no basis in this case for dispensing with the requirement of the applicant to undertake a program of support. There is a Presidential decision of this Tribunal in which it has been pointed out that the Parliament has determined that, with some limited exceptions, those who seek disability support pension must undertake such a program.[2]

    [2] Tey and Secretary, Department of Social Services [2013] AATA 753, [12] (Hack DP).

25. The applicant does not have a continuing inability to work as he does not satisfy s 94(2)(aa) of the Act as he has not actively participated in a program of support within the meaning of s 94(3C) of the Act. While to his credit he has completed six months of a program of support, this time falls short of what is required by the Active Participation Determination. The claim for DSP must fail on that ground alone.

26. I accordingly find that the applicant does not satisfy s 94(1)(c) of the Act.

    CONCLUSION

27. The applicant is not eligible to receive DSP.

    DECISION

28. I affirm the decision under review.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member.

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Associate

Dated 2 September 2014

Date of hearing	19 August 2014
Applicant	Tamas Vass, in person
Solicitors for the Respondent	Jasmine Forsyth, Department of Human Services