Tanrikulu and Secretary, Department of Social Services (Social services second review) - [2020] AATA 5763

Tanrikulu and Secretary, Department of Social Services (Social services second review) [2020] AATA 5763 (17 December 2020)
Division:GENERAL DIVISION
File Number: 2019/6924
Re:Mr Ayhan Tanrikulu
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:17 December 2020
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – lumbar and cervical spine pain, mental health conditions, ischaemic heart disease, diabetes and hypertension – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO, Member
17 December 2020
INTRODUCTION

Mr Tanrikulu (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the then Department of Human Services, now Services Australia.
The application was heard via telephone on 31 August 2020. Mr Tanrikulu was self-represented and Ms Peta Heffernan, a lawyer with the Australian Government Solicitor, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Heffernan. At the conclusion of the hearing, the Tribunal requested additional information from Mr Tanrikulu and allowed the Respondent to comment on the additional material.
THE ISSUE IN CONTENTION
The issue in contention is whether Mr Tanrikulu was qualified for a DSP at the date of his claim, 11 September 2018 or within the 13 weeks thereafter, that being to 10 December 2018 (the qualifying period). This is in accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The qualification criteria for DSP are found in s 94 of the Act. In order to determine whether Mr Tanrikulu qualifies for DSP, the Tribunal must consider whether Mr Tanrikulu:
(a)has a physical, intellectual or psychiatric impairment(s);
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr Tanrikulu is 55 years of age originally from Turkey. He completed Year 10 in Australia and commenced working…

Details

AGLC: Tanrikulu and Secretary, Department of Social Services (Social services second review) [2020] AATA 5763
Case: [2020] AATA 5763
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the eligibility of Mr Tanrikulu for the Disability Support Pension (DSP). Mr Tanrikulu, a 55-year-old man with a history of farming and significant health issues including coronary artery disease, diabetes, and back and neck pain, sought to establish his entitlement to the DSP. The Secretary, Department of Social Services, opposed the claim.

The primary legal issues before the Tribunal were whether Mr Tanrikulu met the qualification criteria for the DSP as set out in section 94 of the Social Security Act 1991. Specifically, the Tribunal had to determine if Mr Tanrikulu suffered from a physical, intellectual, or psychiatric impairment, if his conditions were fully diagnosed, treated, and stabilised and likely to continue for at least two years, and crucially, if his impairments attracted a score of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The Tribunal also needed to consider if Mr Tanrikulu had a continuing inability to work.

The Tribunal found that Mr Tanrikulu did suffer from impairments, including lumbar and cervical spine pain, anxiety, depression, post-traumatic stress disorder, ischaemic heart disease, diabetes, hypertension, and hypercholesterolemia, satisfying section 94(1)(a) of the Act. However, after reviewing the evidence, including previous Job Capacity Assessments and medical reports, the Tribunal concluded that Mr Tanrikulu did not achieve the required 20 impairment points under the Impairment Tables to satisfy section 94(1)(b) of the Act at the time of his DSP application on 11 September 2018. The Tribunal also noted that Mr Tanrikulu had not commenced a program of support as required.

Consequently, the Tribunal affirmed the decision under review, finding that Mr Tanrikulu did not meet all the necessary requirements for eligibility for the Disability Support Pension.

Orders

Orders of the court

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Background

Background to the litigation

The qualification criteria for DSP are found in s 94 of the Act. In order to determine whether Mr Tanrikulu qualifies for DSP, the Tribunal must consider whether Mr Tanrikulu:(a)has a physical, intellectual or psychiatric impairment(s);(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and(d)has a continuing inability to work.BACKGROUND Mr Tanrikulu is 55 years of age originally from Turkey. He completed Year 10 in Australia and commenced working as a farmer, co-managing a family business with two of his brothers, growing tomatoes. He ceased any physical work in the business in 2006 when he suffered a heart attack. He then performed some supervisory and administration work for the business until 2008 when he ceased paid employment. Mr Tanrikulu has been involved in several motor vehicle accidents in which he has suffered injuries. At the time of Mr Tanrikulu’s DSP claim, he was in receipt of carer’s allowance, for his wife who has pancreatic cancer. Mr Tanrikulu has at various times since his accident in 2015 been in receipt of payments from the Transport Accident Commission (TAC). On 22 June 2009, Centrelink conducted a face to face Job Capacity Assessment (JCA) on Mr Tanrikulu, determining that his condition of coronary artery disease was fully diagnosed, treated and stabilised. The JCA recommended a reduced work capacity as Mr Tanrikulu had undergone significant cardiac surgery and was suffering from other medical conditions which continued to have a mild to moderate physical impact. On 9 July 2009, Centrelink conducted a further face to face JCA on Mr Tanrikulu determining that his conditions of ischaemic heart disease and non-insulin dependent diabetes were fully diagnosed, treated and stabilised. The JCA assigned:a total combined score of 15 from Impairment Tables 19 and 20.Ischaemic Heart Disease has not been rated under Impairment Table 1 as client is unable to clearly state his cardiovascular functional limits because of the compounding effects of his lower back problem. It has therefore been rated under Impairment Table 20 and attracts a score of 15 points due to the moderate to severe symptoms he experiences. These include fatigue, fast heart rate and shortness of breath which Mr Tanrikulu occasionally suffers as the result of more strenuous activity or if placed under pressure. These will have an impact on his ability to perform physical work related tasks, but a mild to moderate impact on his ability to complete more sedentary tasks. His self care is unaffected and his independence maintained.Non Insulin Dependent Diabetes attracts a score of NIL from Impairment Table 19 which is currently well controlled and has no impact on Mr Tanrikulu's ability to function.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having carefully considered all the evidence, the Tribunal finds that at the time of his DSP application of 11 September 2018, Mr Tanrikulu, did not have the required 20 impairment points to satisfy s 94(1)(b) of the Act nor had he commenced a POS. Without having a severe impairment, Mr Tanrikulu cannot have met all the requirements to be eligible for the DSP and therefore the application cannot succeed. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

The Determination relevantly provides: Part 2—Requirements for active participation7 Requirements for active participation…(4) This subsection is satisfied in relation to a person and a program of support if:(a) the program of support was terminated before the end of the relevant period; and(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.(5) This subsection is satisfied in relation to a person and a program of support if:(a) At the end of the relevant period, the person is participating in the program of support; and(b) The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.THE TRIBUNAL’S CONSIDERATION AND FINDINGSEvidence before the Tribunal The evidence before the Tribunal included documents provided under section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, and additional medical reports that were lodged by Mr Tanrikulu.DOES MR TANRIKULU HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT? Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance a person must suffer from an impairment. The Respondent accepts that Mr Tanrikulu is suffering from Lumbar and cervical spine pain, anxiety, depression, post-traumatic stress disorder (PTSD), ischaemic heart disease, diabetes, hypertension and hypercholesterolemia. The Tribunal finds that Mr Tanrikulu was living with impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act. As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables. DOES MR TANRIKULU HAVE MEDICAL CONDITIONS THAT RESULT IN IMPAIRMENTS THAT CAN BE RATED 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES? Mr Tanrikulu advised the Tribunal he had suffered a heart attack in 2006 and had undergone triple bypass surgery and this had greatly impacted his physical and mental wellbeing. He advised that from this time he had been unable to undertake the physically demanding work required on his family farm and had suffered extreme depression which greatly impacted his ability to function. Mr Tanrikulu advised the Tribunal that his heart condition combined with the impact of his many years of performing heavy manual work and numerous motor vehicle accidents had left him totally unable to perform any work. He said his back and neck condition were severe and that he suffered significant memory loss. He also said he spends a great deal of his day doing not much as he is in a great deal of pain. He had been unable to get any further medical evidence as his General Practitioner (GP) was only seeing emergency patients during the COVID lockdown. However, he had a report from Dr Jaya Shiyamurgan which he read out to the Tribunal, but to date this report has not been filed by Mr Tanrikulu.