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

[2015] AATA 935

Terzic and Secretary, Department of Social Services (Social services second review) [2015] AATA 935 (20 October 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2951
Re	Milos Terzic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal

Dr Damien Cremean, Senior Member

Date of decision

Date of written reasons

20 October 2015

3 December 2015

Place

Melbourne

The decision under review is affirmed

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

Dr Damien Cremean, Senior Member

SOCIAL SECURITY – disability support pension – Impairment Tables – permanent injury – decision affirmed

Legislation

Social Security Act 1991(Cth), section 94

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

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

3 December 2015

1. The decision under review is that of the Social Security Appeals Tribunal (‘SSAT’) made on 25 May 2015 affirming the decision of the Respondent to cancel the Applicant’s disability support pension (‘DSP’) on the ground that he does not satisfy section 94(1)(b) of the SocialSecurity Act 1991 (“the Act’) and reject his application for unlimited portability under section 1218AAA of the Act.

2. At the hearing the Applicant was self-represented and gave sworn evidence by a Serbian interpreter. He was also accompanied by a support person or friend.

3. At the commencement of the hearing, after being shown the document, it was established that the Applicant had indeed received the Respondent’s Statement of Facts and Contentions (SFCs) by mail. It was made clear to him that the issues in that document were the ones which he should address (and portions of the document were read to him in his own language by the interpreter). It was also made clear to him that he must conduct his case himself and that the Tribunal is able to assist a self-represented person but only to the extent that it does not compromise its impartiality.  He appeared to have understood this because he replied that he would endeavour to do so.  

4. At the commencement of the hearing the Applicant conceded that he will not be pursuing the unlimited portability issue in this case.

5. The case thus concerns only section 94 of the Act—and in particular section 94(1)(b) in light of the concession by the Respondent that the Applicant satisfies section 94(1)(a). Also of relevance is section 94(1)(c) of the Act (which contains the continuing inability to work requirement) should the Applicant satisfy section 94(1)(b).

6. The Applicant was specifically referred to section 94(1)(b) and its effect was summarised for him even though it was discussed in the Respondent’s SFCs. The nature of the requirement it specifies for DSP was explained to him in broad summary terms. His attention was directed to the impairment tables under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment tables”) and to the impairment rating conceded to him by the Respondent and for him to address this issue.

7. I consider the Respondent’s concession as regards to section 94(1)(a) of the Act was rightly made as appears by the materials on file.

8. Those materials indicate that the Applicant suffers from a number of conditions. Those conditions include ischaemic heart disease as well as a mental health condition, back, neck and shoulder conditions and also some other conditions including apparently diabetes, hypothyroidism, Grave’s disease, hypertension, hypercholesteroldemia and cataracts.

9. Of those conditions it was submitted by the Respondent that only the Applicant’s heart condition qualified for an impairment rating under the Impairment Tables but that none of the other conditions did.

10. That is not to say that the Applicant does not or may not suffer the other conditions. It is only to say that they are not able to be given an impairment rating under the Impairment Tables.

11. To qualify for DSP, as regards section 94(1)(b), there must be an impairment rating of at least 20 points. To qualify for such a rating a medical condition must be permanent, meaning it must be fully diagnosed, treated and stabilised. See section 6 of the Impairment Tables.

12. Except in respect of the Applicant’s heart condition, I make the finding that I am unable to be satisfied that the Applicant’s medical conditions are permanent in the sense required. I emphasize this does not mean the Applicant does not suffer them. But no evidence presented or given by the Applicant satisfied me that his other conditions were fully diagnosed, treated and stabilised at the relevant time or in the relevant period. It is not a matter of the Applicant providing medical reports in respect of a condition since that time (and prepared late this year such as the report from Dr Rigby dated 31 August 2015) and outside the allowable period. Nor is it a matter of the Applicant vaguely referring to unidentified medical reports or opinions expressed at some point in time in the past. Social security law is quite specific that the inquiry is a very focused one in relation to a very narrow period.

13. This means that these other conditions are not conditions which can be taken into account in assigning impairment points under the Impairment Tables. My finding is that these other conditions are not permanent in the required way by law such as to enable points to be assigned for the purposes of section 94(1)(b) of the Act.

14. The Applicant’s heart condition is different and I am able to make the finding based on materials on file that it is permanent in that it is fully diagnosed, treated and stabilised. The Respondent conceded five impairment points under the Impairment Tables and that concession would appear to be justified for the reasons set out in the Respondent’s SFCs.

15. The Tribunal however is unable to take the matter further. I make the finding that on the evidence that I am unable to be satisfied that a higher impairments rating should be given to the Applicant’s heart condition. Despite the Applicant’s attention being drawn to this issue, and on more than one occasion at that, he has failed to address the question whether his heart condition should attract more than five points in terms of its functional effect on him. He simply has not focused on this issue in his evidence but has spoken of his health more generally and more about his other conditions and of the history he has had in terms of bad or poor health. Admittedly, the area can be a difficult one to understand. But the Applicant’s failure to focus could be due to a number of factors including language difficulties and including also his mental health condition affecting his ability to concentrate or address the issue of a higher impairment rating. I cannot speculate further in any helpful way but I note the comment made by his support person or friend that he “sometimes loses himself in space and time”. In any event, I am unable to award him a higher impairment rating under the Impairment Tables. I lack a ground in the evidence to enable me to do so. Nothing said by the Applicant’s friend or support person was of assistance. Nothing else in the materials was corroborative moreover.

16. It follows that the Applicant has not satisfied me that the correct or preferable decision is to restore his DSP.

17. The Applicant does not achieve 20 points for his heart condition under the Impairment Tables and therefore does not satisfy section 94(1)(b) of the Act. He remains only at five impairment points for his heart condition. His other conditions at the relevant time cannot be considered permanent in the way required by or under the Act.

18. In light of this, I do not need to address section 94(1)(c) of the Act but I would understand that the Applicant may not have engaged in the program of support required by law.

19. Accordingly, the Tribunal for these Reasons affirms the decision under review.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

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

Associate

Dated 3 December 2015

Date(s) of hearing	20 October 2015
Applicant	In person
Solicitors for the Respondent	James Henderson, Centrelink Program Review and Litigation Branch