Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 321
•12 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 321
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1576
GENERAL ADMINISTRATIVE DIVISION ) Re ALLAN TAYLOR Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr A Frazer, Member Date 12 May 2011
PlacePerth
Decision The Tribunal sets aside the decision under review and substitutes a new decision that the applicant is qualified for the disability support pension and has been since 19 November 2009.
…(Sgd) Dr A Frazer……..
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualifying period - qualification requirements– applicant has impairment – applicant’s impairment attracts impairment rating of 20 under Impairment Tables – applicant has continuing inability to work – applicant qualified for disability support pension – decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth), s 94 and Sch 1B
Social Security Administration Act 1994, s41, 42 and Schedule 2 part 4
REASONS FOR DECISION
12 May 2011 Dr A Frazer, Member Introduction
1. Mr Taylor (the applicant”), who is 39 years of age, claimed for disability support pension (“DSP”) on 29 October 2009 in respect of his left ankle osteomyelitis and forthcoming below knee amputation which took place on 19 November 2009.
2. On 23 December 2009 a Centrelink officer rejected his claim on the basis that his impairment of a left below knee amputation was not fully treated and stabilised.
3. This decision was affirmed by a Centrelink authorised review officer on 25 January 2010 and then affirmed by the Social Security Appeals Tribunal (SSAT) on 23 March 2010.
4. On 21 April 2010 the applicant made an application to this Tribunal for review of the SSAT’s decision.
5. The applicant is currently in receipt of Newstart Allowance.
The Relevant Legislation
6. Sections 41, 42 and Schedule 2 clause 3 of the Social Security (Administration) Act 1999 provide that the start day for a qualified DSP claimant is the date of claim. However, pursuant to Schedule 2 clause 4(1) of the Act where the person is not qualified on the date of claim but “will ..become qualified ..because of the passage of time or the occurrence of an event..” and “becomes so qualified” within 13 weeks of lodging a claim, the start day for a qualified DSP claimant is the day the person became qualified. This Tribunal must determine whether the applicant was qualified to receive DSP on 29 October 2009 or whether the applicant became so qualified within thirteen weeks, that is, by 28 January 2010.
7. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:
“94(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;
…
94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
…
94(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre‑vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work‑related training (including on‑the‑job training).
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
…”
8. The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 24 – 27 below.
The Evidence
9. The evidence before the Tribunal comprised:
10. The “T Documents” (T1-T16), pp 1-359) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”).
11. Exhibit A1 Bundle of documents from Health Services, Department of Corrective Services, from 1993 through to 2006
12. Exhibit R1 Centrelink email documentation dated 15 June 2010
13. The oral evidence of the applicant’ father, Mr Robert Taylor.
The Applicant’s Evidence
14. Allan, or “the applicant”, was not able to attend the hearing owing to health problems and evidence was presented on Allan’s behalf by the applicant’s father, Mr Robert Taylor.
15. Allan now lives with his mother and father in the outskirts of Geraldton. His parents provide him with most of his care. Allan is single. Allan wants to be independent and does not like receiving financial support from his parents. Allan has a troubled past and left home at 12. Allan lived on the streets and used drugs such as marijhuana, oxycontin (a narcotic analgesia) and heroine. Over his late childhood and early adolescence his parents were rung frequently by the police. Allan had many run ins with the law and was in and out of juvenile detention centres and later prison. Some of his offences have involved substance abuse, theft of property and violence against people. Allan does not have any contact now with his 2 siblings. He has spent about 20 years on and off in various forms of incarceration however was released from prison most recently in 2006.
16. After his release from prison Allan sought assistance from his parents and lived with them. However, Allan still had ongoing issues with illicit poly substance abuse. Around early 2007 Allan decided to move to Darwin.
17. Whilst in Darwin, Allan injured his left foot and ankle which resulted in a septic arthritis and osteomyelitis despite a protracted hospital admission in Darwin and full medical and surgical therapy. This included surgical debridements and use of intravenous antibiotics. On 22 October 2009 Allan was transferred from the Royal Darwin Hospital to the Fremantle Hospital via Geraldton Hospital. On 19 November 2009 Allan agreed to undergo a left below knee amputation on the advice of his treating specialists.
18. Following his surgery, Allan was fitted with his artificial left leg prosthesis in March 2010. Allan has many ongoing issues in managing the prosthesis including it rubbing and chaffing and also fitting in a variable way owing to Allan losing weight. Allan will still use a wheelchair, crutches and a walking stick to be mobile. He is able to catch the bus and walk to Centrelink in town which is around 500 metres if he can frequently stop and start and proceed at his own pace. Allan is still learning how to adjust to the prosthesis and what his limits are. His situation is also more complex as Allan needs to come to Perth to have the prostheses reviewed and refitted if necessary. Allan, however, does not wish to continually use his parent’s financial support. As an example, his parents were paying for him to undergo some physiotherapy and rehabilitation at a local gym in Geraldton however Allan does not wish to keep allowing his parents to pay.
19. Following the amputation, Allan is not able to climb, bend, squat or kneel.
20. Allan does not have a social life now and rarely will go out. In the evening he may watch some TV with his parents.
21. Allan’s father is not aware of Allan holding down a job in the past although he did work at Red Rooster in Darwin for around 6 weeks between August and September 2008. Allan does not have a current drivers licence.
The Relevant Medical Evidence
22. The Treating Doctor’s Report completed by Dr Tagen Robertson, Junior Doctor, Fremantle Hospital dated 20 November 2009. Dr Robertson states Allan underwent a left below knee amputation on 19 November 2009. Allan will require a wheelchair for mobilising and require physical therapy and rehabilitation and amputee team follow up. Dr Robertson also documents Allan’s “uncertain” compliance with recommended treatment due to his “personality issues – patient has absconded multiple times in the past.” Dr Robertson also states the effect of the below knee amputation on Allan’s ability to function is expected to “somewhat improve.”
23. Job Capacity Assessment Report dated 13 August 2009. In the report the Job Capacity Assessor (JCA) notes the following. “The client stated he had been serving gaol/juvenile detention centre terms for 22 years since he was a teenager. He described a number of serious offences, which he stated were related to his substance abuse habit.” “The client stated he attended school until year 7. He states he was placed in the care of the government at 7 years of age and was in government run homes until he was sent to a juvenile detention centre.” The JCA report notes Allan’s ex-offender history which excludes a range of job opportunities, substance abuse which limits motivation and ability to maintain employment, limited employment history and lack of transferrable skills. The JCA states the client’s work capacity is significantly limited due to “pain, poor mobility and inability to lift more than 4 kgs.”
The Impairment Tables
24. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:
25. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
26. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the for foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without treatment, within the next two years.
27. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to a significant functional improvement within the next 2 years.
In this context reasonable treatment is taken to be:
· treatment that is feasible and accessible ie, available locally at a reasonable cost;
· where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable
treatment that will improve or alleviate an impairment, unless that treatment
has associated risks or side effects which are unacceptable to a person. In
those cases where significant functional improvement is not expected or
where there is a medical or other compelling reason for a person not
undertaking further treatment, it may be reasonable to consider the condition
stabilised.
In exceptional circumstances, where a condition was considered not
stabilised and a permanent impairment rating not assigned because
reasonable treatment for a specific condition has not been undertaken, the
assessor should:
·evaluate and document the probable outcome of treatment and the
main risks or side effects of treatment ; and
·indicate why this treatment is reasonable; and
·note the reason why the person has chosen not to have treatment.
TABLE 4. FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess the lower limbs not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NIL Walks without difficulty on a variety of different terrains and at varying speeds
TENDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate
interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTYDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major
interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair.
THIRTYPain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home; and
· requires quad stick, crutches or similar walking aid, or
· is unable to transfer without assistance.
FORTYUnable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
Analysis
28. The Tribunal accepts Centrelink’s submission that the relevant period for the determination of the applicant’s claim for DSP is from 29 October 2009 to 28 January 2010. It is common ground that over this qualifying period the applicant transitioned from a Hospital inpatient requiring medical and surgical treatment for osteomyelitis (at the date of application for DSP) to an amputee requiring ongoing support and rehabilitation following his below knee amputation on 19 November 2009. The Tribunal notes these significant medical events occurred within the qualifying period. Furthermore, the Tribunal considers the below knee amputation is “an event” for the purposes of Schedule 2, Part 4 Social Security Administration Act 1994. (see above)
Impairments
29. It is common ground that, at all material times, the applicant has had physical impairments, within the meaning of para (a) of s 94(1) of the Act, by reason of his suffering from a left below knee amputation on 19 November 2009 following osteomyelitis in April 2009. It is also accepted the applicant suffers hepatitis C, drug addiction (poly-substance abuse), ..an “adjustment disorder and emotional instability.”
30. The first matter for the Tribunal’s determination is whether the applicant, when he applied for his DSP, had a total impairment, by reason of the above conditions, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act. The Tribunal considers the appropriate time to assess the level of functional impairment of the applicant is at the time of his amputation to the end of the qualifying period on or around the 28 January 2010.
Chronic osteomyelitis and left below knee amputation
31. The Tribunal accepts that when the applicant claimed for DSP on 29 October 2009 he was hospitalised in Darwin and undergoing treatment for significant bone infection of the left foot and ankle. Despite the applicant accepting and receiving standard medical care in hospital his clinical situation worsened and the applicant agreed to a left below knee amputation on 19 November 2009. It would be widely accepted that this type of surgery involving the loss of the leg below the knee is significant and carries with it a marked degree of personal and functional loss. However, this type of surgery is necessary when the standard forms of medical and surgical management have been explored but not resulted in a cure which can salvage the functioning leg. It is also widely accepted that recovery for the patient from this type of extensive surgical procedure takes time and intensive supports. These supports include clinical supports and emotional and social supports with a view to enabling the amputee the best possible return to independence.
32. The Tribunal accepts the evidence of Dr Robertson that in the applicant’s case ongoing compliance may be uncertain and the Tribunal accepts that the applicant has a long and complex past history of “drug abuse and emotional instability.” The applicant and his supports, including his parents, are also facing some complex social issues. The Tribunal considers at the time of his application for DSP in late October 2009 and over the subsequent weeks which involved an interstate hospital transfer and extensive life changing surgery, a below knee amputation, the applicant was facing significant medical and social challenges. At that time, it was also apparent that the applicant was to face a significant transition period of learning to accept and manage his life with a below knee amputation. The Tribunal considers that over the relevant period the applicant’s condition of oseomyelitis leading to a left below knee amputation was “permanent”, in that, at that time, it was apparent that the applicant would suffer significant ongoing functional sequelae from his below knee amputation. It was more likely than not that the applicant would continue to suffer significant functional impairment for a period more than 2 years. The Tribunal considers the applicant has undergone reasonable treatment for his osteomyelitis of the ankle. The applicant has demonstrated an ongoing commitment to functional rehabilitation following his below knee amputation by his acceptance of using the artificial limb and attending Perth for refittiings when he can.
33. The Tribunal considers Table 4 is the appropriate Impairment Table to assess the applicant’s lower limb impairment of a below knee amputation. The Tribunal accepts the applicant is learning to utilise his artificial limb however he has a continuing demonstrable loss of mobility, stability and balance as a result of his lower limb amputation. The applicant frequently relies on his wheelchair, or alternatively crutches or walking stick to mobilise. The applicant is not able to climb, squat or kneel. The Tribunal considers the applicant’s impairment attracts an impairment rating of TWENTY under Table 4 of the Impairment Tables.
34. Therefore, the applicant satisfies s94(1)(b) of the Act.
35. The second matter for the Tribunal’s determination is whether the applicant, over the qualifying period, had a continuing inability to work, by reason of the above conditions, for the purposes of para (c) of s 94(1) of the Act.
36. The Tribunal notes the applicant’s significant lower limb functional impairment which significantly affects his mobility, balance and tolerance to standing and walking. The Tribunal also accepts the more general barriers to the applicant’s ability to work as outlined by the JCA on 13 August 2009.
37. The Tribunal considers the applicant was not able to work for 15 hours a week for the foreseeable future,that is 2 years, at the time of his application for DSP and the following qualification period. Therefore, the applicant satisfies s94(2)(a) of the Act.
38. The Tribunal also considers that the applicant would not, at the time he applied for DSP and over the qualifying period, be able to undertake a training activity over the next 2 years because of his below knee amputation. The Tribunal considers this impairment is sufficient to prevent the applicant to undertake a training activity. Therefore, the applicant satisfies s 94(2)(b)(i) of the Act.
39. Therefore, the applicant satisfies s94 (1) (c) of the Act.
Conclusion
40. The Tribunal concludes that the applicant has at all material times had impairments within the meaning of para (a) of s 94(1) of the Act and that these impairments attract an impairment rating of TWENTY points. The applicant therefore satisfies para (b) of s 94(1) of the Act. The Tribunal concludes that the applicant, because of these impairments, is unable to do any work of at least 15 hours a week and is also unable to undertake any training activity during the next 2 years. Therefore, the applicant satisfies s94(1)(c) of the Act.
41. The Tribunal sets aside the decision under review and substitutes a new decision that the applicant is qualified for the DSP and has been since the date of ****.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Amanda Frazer, Member
Signed:.(Sgd) T Freeman……………....
AssociateDate of Hearing 25 February 2011
Date of Decision 12 May 2011Representative of the Applicant Mr R Taylor
Representative for the Respondent Mr A Holt
Centrelink Legal Services Branch
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