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

Case [2016] AATA 194

Thomson and Secretary, Department of Social Services (Social services second review) [2016] AATA 194 (31 March 2016)

Division

GENERAL DIVISION

File Number

2015/3771

Re

Douglas Thomson

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal

Deputy President Dr Christopher Kendall
Date 31 March 2016
Place Perth

The decision under review is affirmed.

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

Deputy President Dr Christopher Kendall

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – meaning of "the Relevant Period" - whether there is a physical, intellectual or psychiatric impairment – whether impairment is of 20 points or more under the Impairment Tables - whether Applicant has a continuing inability to work – decision under review affirmed

LEGISLATION

The Social Security Act 1991 (Cth) – 94(1)(a) – 94(1)(b) – 94(1)(c) – 94(2) – 94(5)

The Social Security (Administration) Act 1999 (Cth) - Schedule 2

The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 - 6(3) – 6(4) – 6(5) – 6(6) – 6(7) – Table 11.

CASES

Crossland and Secretary, Department of Family and Community Services [2004] AATA 864

Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846

REASONS FOR DECISION

Deputy President Dr Christopher Kendall

31 March 2016

INTRODUCTION

  1. This matter requires the Tribunal to determine whether Mr Douglas Thomson, aged 62, is eligible for Disability Support Pension (“DSP”).  On 9 July 2015, the Administrative Appeals Tribunal (Social Services and Child Support Division) (the “SSCSD”) found that Mr Thomson did not qualify for DSP.  That decision affirmed an earlier decision by Centrelink that Mr Thomson did not quality for DSP.

  2. The background facts to this matter, which are not in dispute, were summarised by the Secretary, Department of Social Services (the “Secretary”) in their Statement of Facts, Issues and Contentions dated 30 October 2015 at paragraphs 1 and 3-15.  The Tribunal repeats those facts below as follows.

  3. On 28 January 2015, Mr Thomson lodged a claim for DSP (T9 at 61; T17 at 124).

  4. On 24 February 2015, a Job Capacity Assessment (“JCA”) was conducted (T10 at 91). The Tribunal notes that this follows an earlier JCA report dated 14 November 2012, which relates to hearing loss and which is summarised below.

  5. In the 2015 JCA report, It was found that Mr Thomson suffered from partial hearing loss and that this partial hearing loss was fully diagnosed, treated and stabilised as required by the Social Security Act 1991 (the “Social Security Act”). The JCA recommended that the impairment arising from this condition attract an impairment rating of 10 points under Impairment Table 11 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”) (T10 at 95). Further conditions of depression,…

Details
AGLC
Thomson and Secretary, Department of Social Services (Social services second review) [2016] AATA 194
Case
[2016] AATA 194
Decision Date

CaseChat Overview and Summary

Doug Thomson sought a review of the Social Security Appeals Tribunal's decision to reject his claim for a Disability Support Pension (DSP). The Tribunal had upheld the decision of the Administrative Review Officer (ARO) to reject Mr Thomson's DSP claim, finding that he did not meet the eligibility criteria under section 94 of the Social Security Act. Mr Thomson argued that his impairments were permanent, they collectively exceeded 20 points under the Impairment Tables, and he had a continuing inability to work due to his medical conditions, including hearing loss, osteoarthritis, depression, carpal tunnel syndrome, and alcoholism. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the Tribunal's decision was correct and whether Mr Thomson was eligible for DSP.

The AAT examined whether Mr Thomson's medical conditions met the criteria for DSP, specifically whether he had impairments that were permanent, collectively exceeded 20 points, and resulted in a continuing inability to work. The AAT considered medical reports and evidence provided by Mr Thomson, including reports from radiologists and specialists, X-ray and MRI scan results, and a Job Capacity Assessment (JCA) report. The AAT also considered the JCA interview, which was not recorded, and the process followed by the ARO and the Tribunal in making their decisions. Mr Thomson contended that the ARO and the Tribunal failed to properly consider all his medical evidence, particularly the X-ray and MRI scan results, and denied him the opportunity to present further evidence and ask questions.

The AAT found that the Tribunal's decision to reject Mr Thomson's DSP claim was correct. The AAT noted that while Mr Thomson's medical conditions were severe, they did not collectively exceed 20 points under the Impairment Tables. The AAT also found that the evidence did not support a finding of a continuing inability to work. The AAT concluded that the Tribunal had considered the relevant evidence and made its decision in accordance with the law. The AAT found no error in the Tribunal's decision and affirmed the decision to reject Mr Thomson's claim for DSP.

The AAT's decision was based on a detailed review of the evidence and the applicable legal criteria for eligibility for DSP. The AAT found that the Tribunal had properly considered the evidence and made its decision in accordance with the law. The AAT did not find any procedural errors that would warrant overturning the Tribunal's decision. The AAT's decision affirms the importance of meeting the specific eligibility criteria for DSP and the need for comprehensive and accurate medical evidence to support a claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This report reads as follows:Doug is considerably disabled by his medical conditions:To elaborate further; hearing appears to be permanently affected which results in limited communication abilities, this interferes with his daily life.His osteoarthritis (particularly in the knees, but also more widespread), is severe, permanent and only going to get worse, he may get some relief in the future, but I believe this will only be possible with quite major surgery, if appropriate. Walking is particularly difficult, getting painful over short distances. He is unable to stand for prolonged periods.His depression is ongoing and though not accepted by the psychiatrist that he has seen, I believe this affects his motivation, behaviours, social interactions and certainly would severely hamper his ability to work. He is affected negatively every day, and takes the antidepressant medication Sertraline.Doug appears to have carpal tunnel syndrome which severely limits his ability to work. He is affected every day, with weakness and pains in his hands.Finally Doug’s alcoholism which is long term and unlikely to improve in the immediate future.I cannot see how Doug could be gainfully employed in any meaningful role.Mr Thomson’s Statement of Facts, Issues and Contentions filed with the Tribunal on 14 December 2015 but dated 7 December 2015 This document, comprising 4 pages, reads as follows: STATEMENT of FACTS, ISSUES and CONTENTIONS DECISION UNDER REVIEW1. The decision under review is the decision made by the Social Security Appeals Tribunal On 9 July 2015. That decision affirmed the decision to reject my claim for DSPISSUES1. I was qualified under section 94 of the Social Security Act.a. My impairments are permanent in that they will last more than two years.b. Together they attain more than 20 points.c. I had and have a continuing inability to work.FACTS1. My claim was lodged on 28 Jan 20152. Enclosed was a copy of radiologist Dr I Cappe’s report dated 13 Jan 20153. There is no mention of this in any correspondence from Centrelink or Section 37 documents4. I have enclosed a copy with this submission5. Radiologist Dr Y Thomas’s report was posted to Centrelink on 7 April 2015. It was dated 31 MARCH 20156. I have enclosed a copy with this submission7. My JCA interview on 28 Jan 2015 was not recorded and I disagree with many points8. The interviewer was not a qualified medical doctor9. He did not identify himself as a psychologist10. Claim for DSP rejected11. Requested review and informed ARO that I would do so by mail12. Lodged written submission on 7 April 201513. Spoke to ARO on 13 April 201514. He confirmed his decision15. He claimed to have my letter in front of him 16. I claim he did not 17. Tribunal hearing on 9 July 201518. Chairman said meeting will be recorded. I agreed19. Chairman asked me to swear an oath. I did so20. Tribunal chairman clearly states he saw no X rays21. I had 5 large X ray and MRI scan envelopes with me22. He did view one and only one and showed it to his companion23. That is a false claim by the chairman and not a clerical error24. I also had copies of two specialist medical reports 25. 25. After 24 minutes both got up and left26. I was denied the right to ask questions or present evidence27. Correspondence from tribunal confirmed ARO decision28. Telephoned tribunal on 20 July 201529. I requested a copy of the tape or a written transcript30. I was refused both31. I consider that tape as evidence 32. Application to AAT 27 July 2015 ISSUES1) All my relevant medical evidence is within the 13 week period.2) I am claiming this period and not the case claimed by the Centrelink lawyer.3) It is agreed that I satisfy section 94 1 (A) of the act.4) Through my X-rays, which only one was viewed, and related medical reports which I have submitted, I qualify for at least 20 points.5) My in ability to work arises from the fact that both knees require major surgery. The right knee will be done first. The waiting time is 18 months, followed by 3 months physiotherapy. Then I join the waiting list again for the left knee, 18 months and 3 months physio. That is a total of 3 years 6 months, in excess of the required 2 years.6) Both knees are fully diagnosed. The only treatment is surgery. There are no drugs or therapy to cure bone on bone conditions like mine.7) There is then a moderate functional impact on activities using lower limbs according to social security tables when at least one of their descriptors says at table 3 (1) (A) at least one of the following applies in that I am unable to walk far outside the home or shop or anywhere. That is a rating of at least 10 points. Therefor I qualify for DSP as the hearing problem + the knees equals 20 points in the period specified. My case does not rest on length of time as does the respondents case. CONTENTIONS1) The respondent places too much faith in the JCA report. It was not recorded so we have no way of confirming that report. We do not know the questions asked, and no way of knowing if my answers were what is stated or something else. I contend then that the JCA report be disregarded.2) I don’t know what the respondent believes what a programme of support means. Here is what happens in a POS to all including myself. You had an appointment you went, they printed paper, you signed until the next time and then did it all over again. No job interviews, no job referrals, nothing. There was no support. It was support on paper only. They got paid anyway. They had no interest to get you employment.3) Also about that certificate 3 in business admin, it was not 25 hours per week. It was 3 hours per week. It was the wrong course. I applied for BASIC COMPUTER FOR BEGINNERS, but because there were not enough pupils they put me in a class that was well advanced in computers, I lasted for 2 part classes only.4) And the ARO failed in making a correct decision in that he did not have all the verifiable medical evidence. He did not view the X-rays. I see no evidence to say he saw the specialists report, dated 13/1/85, so by not seeing all the evidence he failed to make the correct decision.5) I agree with respondent’s contention number 29. The hearing of 10 points can stand or be increased.6) Contention 44 about knee pain is fully explained in the two specialist’s reports. I will enclose a further two copies as the two previous have not been mentioned. These verify my chronic condition.7) Contention 47 regarding my hands was treated very lightly by the SSAT chairman in that he only asked me if I could do up a button. I said I could. With that question and answer he supposes there is no problem. The problem with my hands is when I perform that most personal bodily function, then there is a problem. It is diagnosed and can be treated with surgery. Again a waiting list. Until then I have to bear it.8) Contention 50 – 52 I do not agree9) Contention 54 – 56 I do not agree10) The order sought by the respondent is for the verdict of the tribunal of 9/7/15 to stand. I cannot and will not agree to that It clearly states in their guidance pamphlets that I can present evidence and ask questions. They looked at one X-ray only, and even that they deny. They left abruptly and denied my right to ask questions, I had no chance to present two medical reports. Their decision was incorrect.As all my evidence can be confirmed and that all the respondent cannot, I ask the tribunal to rescind their decision and find for the applicant.CONSIDERATIONDoes Mr Thomson have an impairment?

Evidence

Evidence Before The Court

Mr Thomson did not dispute these dates and indicated verbally before this Tribunal that he understood the significance of the Relevant Period in relation to his eligibility for DSP. EVIDENCE The Tribunal had before it a set of T-Documents that included all of the relevant Centrelink and medical evidence that was before the SSCD. At the hearing of this matter before this Tribunal, Mr Thomson provided further medical evidence. This evidence is highlighted and discussed below. The Tribunal notes the following relevant material before it.Job Capacity Assessment Report dated 14 November 2012 (T6 at 44) As noted above, a JCA Report was prepared on 14 November 2012. The Report concluded that Mr Thomson was not eligible for DSP and found as follows:Medical Condition DetailsCondition: Hearing Loss-Partial Type: PermanentThis condition is: Verified by medical evidence; Fully Diagnosed; Fully Treated; Fully Stabilised.Remarks:Audiology testing Aug 2012 reports 46% hearing loss L and 58% on R with total 47% binaural hearing loss. Has good speech discrimination at amplified levels. Poor speech discrimination at normal conversation in quiet. They recommend hearing aids as would make speech more clear and also mask tinnitus. Tinnitus has gradually worsened. Worse when quieter at end of day if has been exposed to lot noise. Cannot afford cost of hearing aids as $2,508 therefore condition considered FTDS.… ImpairmentCondition: Hearing Loss – PartialImpairment Table: 11 – Hearing and other Recommended Rating: 10Functions of the EarFunctional Impact: Moderate functional impact on activities involving hearing. Even when using assistive devices. Has difficulty hearing a conversation at average volume in a room with no background noise, has to use a telephone with a T switch and has occasional difficulty with some words and is partially reliant on lip reading or sign language. Has more frequent difficulty with balance, e.g. occasional dizziness or ringing in ears which interferes with communication or routine activities.Total impairment rating: 10 Supporting reasons summary:Has poor speech discrimination at normal conversation levels in quiet able to hear using a mobile phone but tinnitus is aggravated afterwards. Unable to lip read or use sign language. Cups hand to ear to hear. Not able to afford cost of hearing aids. Tinnitus is worse when quiet and at end of day if been exposed to lot of noise.This client has resided in Australia for: 10 years or moreBarriers to be addressedBarrier: Physical limitations restricting type of work (V03)Barrier: Concentration limitations (H09)Barrier: Sensory communication (H05)Barrier: No or limited work skills (V02)Support RequirementsRequirement: Communicate with others Duration: 12 to 24 monthsRequirement: Concentrate or remain task focused Duration: 6 to 12 monthsRequirement: Understand and follow instructions Duration: 6 to 12 monthsRequirement: Maintain sustainable employment Duration: Less than 6 monthsBased on the level of support required the client requires specialist disability employment interventions. The client is best suited to DES – Disability Management Service.Work CapacityBaseline Work Capacity: 15-22 Hours per week(Excludes any temporary impacts noted above)Rationale:Needs to work in quiet environments. Hearing aids are recommended for work by AudiologistSuitable work: Moderate less skilled (W06)Examples: DMS to determineCapacity for work within 2 years with intervention: 23-29 Hours per weekRationale:Will need DMS support to develop effective communication strategies for in the workplace.Suitable work: Moderate less skilled (W06)Examples: DMS to determineInterventionsInterventions that were identified for this clientIntervention: Other medical intervention (specify) (M56)Expected outcomes/improvements: hearing aidsIntervention: Disability management education/counselling (H59)Intervention: Post-secondary/adult course – vocational (E57) Intervention: Vocational assessment/counselling (V52) Intervention: Vocational rehabilitation (V51)Intervention: Work experience (V58)Intervention: Workplace assessment (V55)Assessment SummaryThe assessment was completed successfully.Employment History / Goals:Last worked Oct 2011 on dairy farm until farm sold. Had been there for 3.5 years. Prior to that worked in road maintenance. Main work history has been event hire. Has had periods of being out of work. Does not see himself working again and feels his body is breaking down. Completed year 10 not computer literate.Barriers & Interventions summary:Has hearing loss which impacts on communication has been recommended to have hearing aids but cannot cost [sic].Additional Comments:Mr Thomson is a 59 year old man who had a PH JCA for DSP as he lives in Witchcliffe.He has lived In Witchcliffe since 2002. He lives alone. Has a D/L but no car as he has sold it due to not being able to afford registration cost. Reports he does not have a GP, with only seeing GP to have TDR completed, he reports difficulties with his hands seizing up and has had a L knee arthroscopy.This report does not contain any information, which if released to the client, might be prejudicial to his/her health.The client's personal factors have a Moderate impact on their ability to work, obtain work or look for work. Rationale:age, lives remotely, financial stress, no transportRecommendationsRecommendation TypeProgram / Other ProgramTimeframe / DatesEmployment Service DES – Disability ManagementService…Job Capacity Assessment Report dated 24 February 2015 (T10, p 91)

Decision

Reasons for decision

Accordingly, the Tribunal finds that Mr Thomson is not eligible for DSP. DECISION For the reasons outlined above, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

This document, comprising 4 pages, reads as follows: STATEMENT of FACTS, ISSUES and CONTENTIONS DECISION UNDER REVIEW1. The decision under review is the decision made by the Social Security Appeals Tribunal On 9 July 2015. That decision affirmed the decision to reject my claim for DSPISSUES1. I was qualified under section 94 of the Social Security Act.a. My impairments are permanent in that they will last more than two years.b. Together they attain more than 20 points.c. I had and have a continuing inability to work.FACTS1. My claim was lodged on 28 Jan 20152. Enclosed was a copy of radiologist Dr I Cappe’s report dated 13 Jan 20153. There is no mention of this in any correspondence from Centrelink or Section 37 documents4. I have enclosed a copy with this submission5. Radiologist Dr Y Thomas’s report was posted to Centrelink on 7 April 2015. It was dated 31 MARCH 20156. I have enclosed a copy with this submission7. My JCA interview on 28 Jan 2015 was not recorded and I disagree with many points8. The interviewer was not a qualified medical doctor9. He did not identify himself as a psychologist10. Claim for DSP rejected11. Requested review and informed ARO that I would do so by mail12. Lodged written submission on 7 April 201513. Spoke to ARO on 13 April 201514. He confirmed his decision15. He claimed to have my letter in front of him 16. I claim he did not 17. Tribunal hearing on 9 July 201518. Chairman said meeting will be recorded. I agreed19. Chairman asked me to swear an oath. I did so20. Tribunal chairman clearly states he saw no X rays21. I had 5 large X ray and MRI scan envelopes with me22. He did view one and only one and showed it to his companion23. That is a false claim by the chairman and not a clerical error24. I also had copies of two specialist medical reports 25. 25. After 24 minutes both got up and left26. I was denied the right to ask questions or present evidence27. Correspondence from tribunal confirmed ARO decision28. Telephoned tribunal on 20 July 201529. I requested a copy of the tape or a written transcript30. I was refused both31. I consider that tape as evidence 32. Application to AAT 27 July 2015 ISSUES1) All my relevant medical evidence is within the 13 week period.2) I am claiming this period and not the case claimed by the Centrelink lawyer.3) It is agreed that I satisfy section 94 1 (A) of the act.4) Through my X-rays, which only one was viewed, and related medical reports which I have submitted, I qualify for at least 20 points.5) My in ability to work arises from the fact that both knees require major surgery. The right knee will be done first. The waiting time is 18 months, followed by 3 months physiotherapy. Then I join the waiting list again for the left knee, 18 months and 3 months physio. That is a total of 3 years 6 months, in excess of the required 2 years.6) Both knees are fully diagnosed. The only treatment is surgery. There are no drugs or therapy to cure bone on bone conditions like mine.7) There is then a moderate functional impact on activities using lower limbs according to social security tables when at least one of their descriptors says at table 3 (1) (A) at least one of the following applies in that I am unable to walk far outside the home or shop or anywhere. That is a rating of at least 10 points. Therefor I qualify for DSP as the hearing problem + the knees equals 20 points in the period specified. My case does not rest on length of time as does the respondents case. CONTENTIONS1) The respondent places too much faith in the JCA report. It was not recorded so we have no way of confirming that report. We do not know the questions asked, and no way of knowing if my answers were what is stated or something else. I contend then that the JCA report be disregarded.2) I don’t know what the respondent believes what a programme of support means. Here is what happens in a POS to all including myself. You had an appointment you went, they printed paper, you signed until the next time and then did it all over again. No job interviews, no job referrals, nothing. There was no support. It was support on paper only. They got paid anyway. They had no interest to get you employment.3) Also about that certificate 3 in business admin, it was not 25 hours per week. It was 3 hours per week. It was the wrong course. I applied for BASIC COMPUTER FOR BEGINNERS, but because there were not enough pupils they put me in a class that was well advanced in computers, I lasted for 2 part classes only.4) And the ARO failed in making a correct decision in that he did not have all the verifiable medical evidence. He did not view the X-rays. I see no evidence to say he saw the specialists report, dated 13/1/85, so by not seeing all the evidence he failed to make the correct decision.5) I agree with respondent’s contention number 29. The hearing of 10 points can stand or be increased.6) Contention 44 about knee pain is fully explained in the two specialist’s reports. I will enclose a further two copies as the two previous have not been mentioned. These verify my chronic condition.7) Contention 47 regarding my hands was treated very lightly by the SSAT chairman in that he only asked me if I could do up a button. I said I could. With that question and answer he supposes there is no problem. The problem with my hands is when I perform that most personal bodily function, then there is a problem. It is diagnosed and can be treated with surgery. Again a waiting list. Until then I have to bear it.8) Contention 50 – 52 I do not agree9) Contention 54 – 56 I do not agree10) The order sought by the respondent is for the verdict of the tribunal of 9/7/15 to stand. I cannot and will not agree to that It clearly states in their guidance pamphlets that I can present evidence and ask questions. They looked at one X-ray only, and even that they deny. They left abruptly and denied my right to ask questions, I had no chance to present two medical reports. Their decision was incorrect.As all my evidence can be confirmed and that all the respondent cannot, I ask the tribunal to rescind their decision and find for the applicant.CONSIDERATIONDoes Mr Thomson have an impairment?