Thorne and Secretary, Department of Social Services

[2014] AATA 72

[2014] AATA 72  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2470
Re	Alan Thorne
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms S Taglieri (Member)
Date	18 February 2014
Place	Hobart

The decision under review is affirmed.

[Sgd Ms S Taglieri]

Ms S Taglieri (Member)

SOCIAL SECURITY – Cancellation of Disability Support Pension following Review; osteoarthritis of back and lower limbs, diabetes, with complication of peripheral neuropathy; Impairment points available under Impairment Tables operating after 1.1.12; Whether Continuing Inability to Work satisfied  

Social Security Act 1991, ss 26, 27(2),(3), 94(1)(a),(b),(c),(d),(e), 94(2)(b)

Social Security and other Legislation Amendment Act 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Administration) Act 1991, s 179

Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572

Re Greenham and Minister for Capital Territory (1979) 2 ALD 137

REASONS FOR DECISION

Ms S Taglieri (Member)

18 February 2014

INTRODUCTION

1. The applicant was in receipt of a Disability Support Pension (DSP) from June 2009 and in February 2012, Centrelink determined to review his eligibility for the same (“the review date”). Following a Job Capacity Assessment undertaken in regard to the Applicant, Centrelink cancelled his DSP effective from 6 June 2012[1]. The Applicant appealed to the SSAT who by a decision dated 22 April 2013[2], affirmed cancellation of the DSP.

   [1] T8, page 43 of T Documents

   [2] T2, page 3 to 8 of T Documents

2. Application was made to this Tribunal to review the SSAT‘s decision and the Application was heard on 21 November 2013.  During the hearing the Applicant claimed to have been suffering from peripheral neuropathy at the time the DSP was cancelled in June 2012. He sought to rely on documents from his doctor that were not before the Tribunal. As the respondent did not object, the Applicant was given leave to do so.  On 4 December 2013, the Applicant filed copies of:

   ·   A Centrelink Medical Certificate signed by Dr Dubetz dated 15 May 2013;

   ·     Patient Health Summary from Cygnet Family Practice printed on 29 July 2013;

   ·     Letter from Cygnet Family Practice to Andrew Bonsey dated 22 March 2013;

   ·     Letter from Cygnet Family Practice to Centrelink dated 28 June 2012;

   ·     Xray report dated 31 December 2009 of the right and left knee;

   ·     RHH Outpatient records relating to the Applicant referring to appointment on 18 April 2013.

   APPLICABLE LAW

3. The substantive issue in this case is whether the Applicant qualified to continue receiving DSP after 6 June 2012. It is therefore necessary to consider whether the Applicant at that time satisfied all the requirements for DSP. The Applicant received an “assessment notice” within the meaning of section 27(2) and (3) of the Social Security Act 1991 (“the SS Act”) which initiated the Review of his DSP entitlement[3]. As such, when assessing his qualification for DSP the Tribunal must apply the instrument in force under section 26 of the SS Act on 15 February 2012[4].

   [3] T5, commencing page 25 of T Documents

   [4] The date of the assessment notice

4. On 15 February 2012, changes effected by the Social Security and other Legislation Amendment Act 2011 and the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“2011 Determination”) had commenced.[5] The Applicant’s qualification for DSP after it was cancelled must therefore be determined according to the 2011 Determination.

   [5] These changes commenced 1.1.2012

5. To qualify for DSP after 6 June 2012, in so far as is relevant on the facts of this case, the Applicant had to:

   “(a) Have a physical, intellectual or psychiatric impairment; and

   (b) Have an impairment equating to 20 points or more under the Impairment Tables and Rules under section 26 of the SS Act as applied from 1 January 2012; and

   (c)  Have a continuing inability to work (“CITW”) or be participating in a supported wage system administered by the Health Department, of which notice has been given to the Respondent; and

   (d)  Be over the age of 16 years; and

   (e)  Be an Australian resident”.[6]

   [6] Section 94(1)(a) to(e) of SS Act

   NON-CONTENTIOUS MATTERS

6. At the outset of the hearing, it was established that the scope of the dispute between the parties was quite narrow.  The Respondent conceded the qualification requirements noted at paragraphs (a), (d) and (e) above but disputed those at (b) and (c).

7. As such, the issues to be determined are whether the Applicant’s impairment at 6 June 2012 amounted to 20 points and whether at that time there was a continuing inability to work.

8. There is clear jurisdiction for the Tribunal to determine the Application.[7]

   [7] Section 179 Social Security (Administration) Act 1991

   IMPAIRMENT POINTS

9. The Applicant claims impairments from osteoarthritis of the spine and lower limbs and diabetes, which involved peripheral neuropathy. The decision to cancel DSP relied upon a Job Capacity Assessment (“JCA”)[8] which allocated 10 impairment points for osteoarthritis of the back, 5 points for osteoarthritis of the lower limbs, and 0 points for diabetes.

   [8] Dated 5 June 2012, appearing at T 7, page 37 onward of the T Documents

10. The Applicant agrees that the osteoarthritis of the spine and lower limbs warrants 10 and 5 impairment points respectively, but disputes the 0 points allocated for diabetes. Essentially, I understood his argument to be that in June 2012, due to diabetes he also suffered peripheral neuropathy which caused impairment and that had not been taken into account.

11. There was no challenge by the Respondent to the allocation of 10 impairment points for osteoarthritis of the back and 5 points for osteoarthritis of lower limbs, although the latter was described as generous.  The Respondent argued that even if the Applicant had peripheral neuropathy at the relevant time, his impairment was no more than 15 points in total pursuant to the applicable Impairment Tables. Further, the Respondent contended the condition “peripheral neuropathy” could not be taken into account because that condition was not permanent.

12. Based on the Applicant’s diagnosed and permanent conditions of osteoarthritis of the spine, lower limbs and diabetes, the only relevant Impairment Tables for consideration are Table 1 (Functions Requiring Physical Exertion and Stamina), Table 3 (Lower Limb Function) and Table 4 (Spine Function) of the 2011 Determination.  In applying the Tables and determining impairment rating suffered by the Applicant, it is also necessary to apply the Rules in Part 2 of the 2011 Determination.

13. Although the Applicant did not expressly argue it, I am also bound to consider whether the diabetes warranted any impairment points pursuant to Table 1.[9]

    [9] Re: Greenham & Minister for Capital Territory (1979) 2 ALD 137 at 141

    IS THERE IMPAIRMENT DUE TO DIABETES?

14. There is no dispute that the Applicant has been diagnosed with the permanent condition of diabetes. The Respondent contends that the condition does not cause functional impairment and no score should apply under Table 1, which governs functions requiring physical exertion and stamina.

15. There is some evidence that the Applicant’s diabetes causes functional impairment. Dr Dubetz in his report dated 7 March 2012 identifies “decreased energy” as the impact on ability to function.[10]  In a letter written to Centrelink on 28 June 2012[11], Dr Dubetz expands upon this and states:

    “In addition Mr Thorne suffers from difficult to control Type 2 Diabetes. This condition also renders him extra symptoms of tiredness, reduced strength and reduced endurance.”

    This letter appears to have been written soon after the decision to cancel the Applicant’s pension. It is apparent that the Applicant offered similar information about decreased energy, tiredness, reduced strength or reduced endurance when interviewed for the JCA. The JCA report notes:

    “… infrequent episodes of fatigue due to diabetes once per month whereas he will have one day of rest, lying on the couch and reading.”[12]

    [10] T6 at page 34 of T Documents

    [11] T9 at page 45 of T Documents

    [12] T7 at page 39 of the T Documents

16. I am satisfied that the functional impacts described by Dr Dubetz and the Applicant as referred to above applied equally in February through to June of 2012 and beyond.

17. In evidence, the Applicant stated that he would walk for 10 minutes before he needed to rest. The distance he regularly walked with his dog was described as from the Davey Street Courts to the old ABC Building in Sandy Bay Road and back, but stopping and sitting at the end of this road, the half-way point of the walk.  In the context of walking his evidence was “he was always out of breath” but tried to walk as much as he could.[13] He agreed that he did general housework such as vacuuming for 15 – 20 minutes, washed dishes, prepared simple meals, cleaned the toilet/bath and used the washing machine.  He also agreed that he could mow his lawn (described as the size of Hearing Room 4 in the Commonwealth Law Courts Building at Hobart), but had help from a mate who kept the rest of the property in check.  When cross-examined about his work at Cosmos, he stated he worked four hours on Friday’s teaching guitar and doing limited clerical work. He also drove to and from his home at Cygnet to Hobart to attend work. In total, he was engaged in sedentary activity (sitting while driving or teaching) for 5.5 hours or so. He said he felt physically exhausted at the end of the day, so he went to bed. During cross-examination, he also stated that he used a treadmill most days at a slow speed and managed 15- 30 minutes on it, 30 minutes being on what he described as a “good day”. The Applicant also gave evidence that he would drive to the shopping complex at Huonville to do shopping. He said he managed shopping, involving walking around the aisles with a trolley for about 20 minutes at a time.

    [13] Not challenged under cross-examination

18. The account above is certainly a subjective description, but is corroborated by Dr Dubetz’s views that the Respondent does not dispute. Further, the Applicant was not challenged in cross-examination about his evidence that he suffered breathlessness all the time when walking. The content of the JCA confirms the evidence. Counsel for the Respondent commendably conceded that the Applicant’s evidence during the hearing was honest and frank. I agree.

19. All the available evidence given by the Applicant about walking, exercise on the treadmill and activities around the home and community, in conjunction with the evidence that he “was always out of breath” needs to be considered in respect of impairment that may satisfy a score pursuant to Table 1. The evidence does not best meet the descriptors in Table 1, for “zero” points. I find that the evidence best meets the descriptors in Table 1, for 5 points.  To the extent that the evidence of the Applicant does not fully accord with that attributed to him in the JCA, I prefer his oral evidence as it was more detailed and relevant to the descriptors to be considered. The information gathered by the JCA referable to Table 1 was limited. In reaching this conclusion, I have applied the Impairment Tables and Rules applicable under the 2011 Determination. I have given particular attention to Rules, 5, 6, 7, 8, 10 and 11 as they were the subject of submissions made by Counsel for the Respondent.

20. The Applicant sought to persuade me that he should be assigned 10 points for lower limb impairment under Table 3, due to the total functional impact of the osteoarthritis and peripheral neuropathy (caused by diabetes) affecting his lower limbs.  His evidence provided a distinction between symptoms of pain in his lower limbs caused by osteoarthritis and caused by peripheral neuropathy. He stated that the osteoarthritis caused “bone pain which was there all the time, but became worse with activity and load”. He said that in contrast the pain from the peripheral neuropathy was “a numbing and jabbing type pain”.  His evidence was that both types of pain caused functional impairment by loss of power and strength in the lower limbs, causing fatigue of the lower limbs, all of which prevented some activities such as weeding or slowed him down in other activities, such as walking.

21. It is apparent from the evidence noted in the above paragraph that although the pain was different in nature, both types of pain had the same functional impact. By virtue of Rule 10(5) of the 2011 Determination, only a single rating can be assigned pursuant to Table 3 in this instance.  The evidence of functional impairment in the lower limbs from the conditions of osteoarthritis and diabetes, does not meet the required descriptors for allocation of 10 points. 

22. The Respondent contended that it was not open to take into account the impairment caused by peripheral neuropathy because contrary to that required by the 2011 Determination Rules,[14] that condition was not permanent, fully treated and stabilised at the relevant time, being when the DSP was cancelled.  I accept this contention as the peripheral neuropathy was only diagnosed on 16 January 2012[15] and was still being treated and investigated well into 2013.[16] 

    [14] Rule 6(3) to 6(6)

    [15] See Cygnet Family Practice Patient Health Summary, filed by Applicant 4.12.13

    [16] Referral to Mr Bonsey 22.3.13 and RHH out-patients appointment 18.4.2013, also filed by Applicant 4.12.13

23. The requirements of the 2011 Determination Rules do not permit the diagnosed condition of peripheral neuropathy to be taken into account for the purpose of deciding if the Applicant qualified for DSP in June 2012 by virtue of Rule 6 of the 2011 Determination.  Even if it was permissible to take that condition into account, it would not allow extra points as the functional impairment caused by it is common to the functional impairment caused by osteoarthritis of the lower limbs.  The allocation of 5 points under Table 3 is correct in my view.

    CONTINUING INABILITY TO WORK

24. Although the Applicant did have a total of 20 impairment points pursuant to Tables, 1, 3 and 4 as a result of his diagnosed and permanent conditions of osteoarthritis and diabetes, in order to qualify for DSP he needed to also satisfy the CITW requirement. This requirement is provided for in section 94(1)(c) of the SS Act. CITW is satisfied if:

    a) The impairment of itself prevents him from doing any work independently of a program of support within 2 years; and

    b)  The impairment prevents him from undertaking a training activity during the next 2 years, or if it does not prevent him from doing so, such activity because of the impairment makes it unlikely he will be able to do any work independently of a program of support within 2 years.[17]

    [17] 94(2)(a) and (b) of the SS Act

25. The evidence demonstrates that the Applicant was doing some work with Cosmos around the time of the DSP review. He worked four hours one day each week. There was also evidence of the Applicant undertaking training towards obtaining a Certificate 3 in Aged Care during the time he worked at Cosmos. He could not complete the physical and practical component of the required training due to impairment and did not attain that qualification. The JCA appeared to accept that he would not be able to meet the physically demanding requirements of working in the aged care sector.[18] However, the JCA considered further training to qualify as a Diversional Therapist would offer the Applicant the ability to work in the Aged Care Sector in sedentary duties. The evidence also demonstrated that the Applicant had commenced an online computer based training course in Community Services Work. He appeared to be managing the requirements of that relatively well. His evidence was that the course was an 8 week one and he would finish it in April/May 2014.

    [18] See T7 at page 41 of T Documents

26. When determining whether the Applicant satisfies the CITW requirement, I have applied the approach said to apply by Drummond J in SDSS v Pusnjak[19].  The evidence establishes that with a small amount of training (which he is likely to complete before 6 June 2014), despite impairment, the Applicant is likely to be able to work in sedentary roles in either the aged care or community sectors. There appears to be no barrier to office/clerical work or diversional therapy duties in the aged care sector or office/clerical work in community services. While I accept the impairments will prevent full-time work in such occupations, I consider they do not prevent at least 15 hours of work of that nature being performed within 2 years of the cancellation of his DSP.  I have reached this view on the basis of the totality of his evidence about his level of function and activity as described throughout these Reasons.

    [19] 164 ALR at 579 to 580

27. The Applicant does not meet the CITW requirement. I have taken into account all the evidence of the Applicant about his capacities to engage in various activities day to day, the training and education he has done and is now undertaking, his work at Cosmos, the content of Dr Dubetz’s reports (which do not exclude capacity to undertake sedentary work) and the views of the JCA.

    CONCLUSION

28. As the Applicant does not meet the requirements of CITW[20], despite that he has 20 points impairment[21], he did not qualify for DSP at the date it was cancelled.

    [20] Specifically, those in section 94(2)(b) of the SS Act

    [21] As needed by section 94(1)(b) of the SS Act

29. The Reviewable Decision is affirmed.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member)

[Sgd]

Administrative Assistant

Dated : 18 February 2014

Date(s) of hearing	21 November 2013
Date final submissions received	19 December 2013
Applicant	In person
Solicitors for the Respondent	Mr B Sparkes, Program Litigation and Review Branch