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

[2016] AATA 292

Trenter; Secretary, Department of Social Services and (Social services second review) [2016] AATA 292 (5 May 2016) 

Division	GENERAL DIVISION
File Number(s)	2015/4809
Re	Secretary, Department of Social Services
APPLICANT
And	Ben Trenter
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	5 May 2016
Place	Sydney

The Tribunal sets aside the decision under review.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP cancellation set aside at tier 1 review – multiple impairments, below left knee amputation, skin irritation and depression – whether impairments were fully diagnosed, treated and stabilised at the time of DSP cancellation – whether the respondent has an impairment rating of 20 points or more under the impairment tables – statutory interpretation of section 96 – decision under review set aside

LEGISLATION

Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB
Social Security Act 1991 (Cth), Chapter 2 Part 2.3, ss 94, 96
Social Security (Administration) Act 1999 (Cth)

CASES

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
SAS Trustee Corporation v Woollard [2014] NSWCA 75

SECONDARY MATERIALS

Budget Measures, Budget Paper No. 2, 2011-12, Circulated by The Honourable Wayne Swan MP Deputy Prime Minister and Treasurer of The Commonwealth of Australia and Senator, The Honourable Penny Wong Minister for Finance and Deregulation of The Commonwealth of Australia for the information of Honourable Members on the Occasion of the Budget 2011-12, 10 May 2011
Guide to Social Security Law - Version 1.220 - Released 21 March 2016 
Portfolio Budget Statements 2011-12, Budget Related Paper No. 1.7 Families, Housing, Community Services and Indigenous Affairs Portfolio
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Bill 2012

REASONS FOR DECISION

Professor R McCallum AO, Member

5 May 2016

INTRODUCTION

1. Mr Ben Trenter, the Respondent is in his early thirties. In January 2004, his left leg was amputated above the knee, and on 7 August 2008 he was granted Disability Support Pension (DSP) under the social security laws which were applicable at that time.

2. For several years, Mr Trenter commenced employment with the family business, Timerite Pty Ltd which is owned and operated by his Father Mr Mark Trenter. Timerite Pty Ltd is a furniture removal business. Mr Trenter's duties consist of driving a utility, giving quotations and other administrative duties. It does appear that from 2 October 2013, Mr Trenter has been working for 25 hours each week.

3. Mr Trenter lodged a claim for mobility allowance on 2 November 2012.

   Review by Centrelink

   
   
   

4. In March 2015, Centrelink undertook a review of Mr Trenter's circumstances. As part of this review process, Mr Trenter attended a face to face job capacity assessment on 1 May 2015. The assessor was a registered psychologist who received assistance from an accredited exercise physiologist. The assessor assessed Mr Trenter's impairment of his above the knee left leg amputation as having a moderate effect on his activities. This moderate effect warranted an assessment of 10 points under table 3 of the impairment tables which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the impairment tables).  Table 3 is titled "Lower limb function".

5. In the report, the Assessor wrote as follows:

   Functional Impact: There is a moderate functional impact on activities using lower limbs.

   The following applies for Ben:

   1) a) Ben is unable to walk far outside the home and needs to drive or get other transport to local shops or community facilities. Ben will attempt to walk, but is limited to about 100 metres. He makes use of mobility parking if required (where distance to destination is further than 100 metres).

   2) Ben is able to use public transport (would find buses difficult) and is able to drive, and is able to walk around in a shopping centre or supermarket.

   3) Ben is able to move around independently with a prosthetic device. He finds stairs very challenging but can manage them independently.

   Ben requires a day free from the use of his prosthetic device every 10-12 days. Two to three times per year, an episode of significant skin irritation will lead to time off work (unable to wear prosthetic device which is required to be able to carry out role).

6. On 25 May 2015, Mr Trenter's DSP was cancelled on the basis that his impairments did not attain an assessment of 20 points under the impairment tables. The power for the Secretary to cancel Mr Trenter's DSP is contained in section 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Under subsections 27(3) and (4) of the Social Security Act 1991 (Cth) (the SS Act), in assessing Mr Trenter's qualifications for DSP in 2015, Centrelink was required to apply the impairment tables which are stricter than the tables which applied when Mr Trenter was granted DSP in 2008.

7. Mr Trenter sought review from an Authorised Review Officer (ARO), however, the ARO affirmed the cancellation decision.

   Tier 1 Appeal

8. Mr Trenter successfully appealed to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT). On 6 August 2015, the AAT held in its tier 1 review that the decision to cancel Mr Trenter's DSP should be set aside. At the hearing, Mr Trenter gave evidence by affirmation over the telephone. The tier 1 review held that Mr Trenter's impairments warranted an assessment of 20 points under the impairment tables. In other words, Mr Trenter's above the left knee amputation had a severe effect on his activities. The tier 1 review further held that Mr Trenter did have a continuing inability to work owing to section 96 of the SS Act.

9. In its decision, the AAT commented upon the affects of Mr Trenter's above the knee left leg amputation in the following passage:

   Skin problems

   26.      Mr Trenter told the tribunal that wearing his prosthesis causes skin irritation, blisters and sometimes ulcers on his leg stump which often become infected. This is more common in summer, when heat and sweat aggravate the skin problems. The fact that he is young and active makes this more of a difficulty as he moves more than an older person might.

   27.      Mr Trenter's leg stump can only heal if he stops using his prosthesis as it aggravates his skin. He tries to limit its use to about 5 hours a day, except on Sunday when he sometimes doesn't use it at all. If he extends his wearing time on one day, he has to shorten it the next to minimise the chance of skin problems developing.

   28.      If infection sets in, as it usually does if his skin breaks, Mr Trenter is unable to wear his prosthesis for extended periods. Recently there was a cyst on his leg stump and he could not wear his prosthesis for two weeks. Mr Trenter estimated that he was unable to use his prosthesis for at least four weeks last year because of skin infections and such like but noted that there is no set pattern to the development and healing of his skin problems

   ....

   Balance

   32.      Mr Trenter told the tribunal that he frequently falls, at least twice a week. This happens both when he uses his prosthesis and his crutches. It is usually caused by a combination of gait problems, lack of concentration and uneven surfaces. He has sustained various injuries as a result of these falls including a sprained shoulder and groin injuries, where the prosthesis attachment pushes into him.

   Mental health

   33.      Mr Trenter said that his amputation has had a major impact on his mental health. In 2006, a couple of years after the accident which led to the amputation, he had a complete breakdown. There is evidence that Mr Trenter was being treated for depression at around the time he was granted disability support pension in 2008.

   34.      Mr Trenter told the tribunal that the psychological effect of his condition now most significantly manifests in his extreme reluctance to leave the house when he is not wearing his prosthesis. He finds it very hard to be seen when he is using crutches. Mr Trenter is considering seeking professional psychological support through a mental health plan. He has managed most recently with the support of his family and friends.

   Appeal by the Secretary

10. The Secretary of the Department of Social Services has appealed to this Tribunal for a tier 2 review.

    THE LEGISLATION

11. The relevant provisions governing eligibility for DSP are to be found in the SS Act and in the the Administration Act. The criteria for DSP are set forth in section 94 of the SS Act. In Mr Trenter's circumstances subsection 94(1) relevantly provides:

    (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;

    …

12. Put simply, I must be satisfied, first, that Mr Trenter has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the impairment tables. Finally, I must be satisfied that Mr Trenter has a continuing inability to work.

13. The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. As Mr Trenter obtained DSP before 3 September 2011, he does not have to comply with the program of support requirements set out in the SS Act. It is common ground that Mr Trenter is not a "reviewed 2008-2011 DSP starter" as defined in subsection 94(5) of the SS Act, and therefore is not required to satisfy paragraph 94(2)(aa) of the SS Act.

14. However, Mr Trenter must satisfy paragraphs (a) and (b) of subsection 94(2). These paragraphs provide as follows:

    
    A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    ...

    (a) in all cases-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) in all cases-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.

    …

15. The term "work" is defined in subsection 94(5) as follows:

    “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.

16. In determining whether or not Mr Trenter has a continuing inability to work, section 96 of the SS Act is apposite and I shall set it out in full. Section 96 provides as follows:

    96  Continuation of disability support pension

    (1) This section applies to a person if:

    (a) the person is receiving disability support pension; and

    (b) the person would, apart from this section, cease to be qualified for disability support pension because the person obtains paid work that is for:

    (i) at least 15 hours per week; but

    (ii) less than 30 hours per week.

    (2) A person to whom this section applies continues to be qualified for disability support pension.

    (3) However, subsection (2) does not apply if, apart from that subsection, the person would cease to be qualified for disability support pension for the reason described in paragraph (1)(b) in the period:

    (a)starting when the person becomes a reviewed 2008-2011 DSP starter as defined in subsection 94(5); and

    (b) ending at the first time, after the person becomes a reviewed 2008-2011 DSP starter, at which the Secretary reviews the determination granting disability support pension to the person.

17. Later in these reasons it will be necessary to discuss the interrelation of subsection 94(1)(c)(i) of the SS Act and its attendant provisions with section 96 of the SS Act.

    THE CONCESSION OF THE APPLICANT

18. Paragraph 5.2 of the Applicant's statement of facts and contentions reads as follows:

    The Secretary concedes that at the time his DSP was cancelled, the Respondent had an impairment within the meaning of section 94(1)(a) of the Act, namely, above the knee left leg amputation.

    THE ISSUES BEFORE THE TRIBUNAL

19. Given the Applicant's concession, Mr Trenter complies with subsection 94(1)(a) of the SS Act as he has impairments.

20. Therefore, the first issue which I am required to decide is whether any of the impairments of Mr Trenter were fully diagnosed, treated and stabilised on 25 May 2015 which is the date of the decision to cancel his DSP. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the impairment tables.

21. The second issue which I am required to decide is whether Mr Trenter has a continuing inability to work pursuant to subsection 94(1)(c)(i), subsection 94(2) and section 96 of the SS Act.

    THE IMPAIRMENT TABLES

22. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Trenter are worth twenty points under the impairment tables. This requires a few words of explanation.

23. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

24. Importantly, impairments can only be assigned ratings under the impairment tables when the medical condition is permanent within the meaning of the term in the impairment tables and the impairment resulting from the condition is likely to persist for more than two years. The impairment tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

25. Subsection 6(5) of the impairment tables provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.

26. Subsection 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.

27. Section 9 provides that ‘A person's impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.’

28. It is also important to appreciate that under sub-section 10(5), if two or more conditions cause a common or combined impairment, then ‘a single rating should be assigned in relation to that common or combined impairment under a single Table.’ However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, ‘it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.’

    THE REPORT OF DR COOK

29. Centrelink requested Dr Peter Cook, an occupational physician to independently examine Mr Trenter. This examination took place on 5 November 2015, and Dr Cook's report is dated 11 November 2015. It is a detailed report. For the purposes of this decision, I set out its major paragraphs. Dr Cook writes as follows:

    Mr Trenter currently works about 25 hours per week. He works for a furniture removalist company. He does not do furniture removal. He does quotes and administrative work. He will frequently drive to the site of a customer in order to give a quote. He also does general administrative work. He has been doing this job for about three years. The position allows substantial flexibility to accommodate his medical problems. For example he can vary his hours of work depending on his ability. He finds that 25 hours is about the most that he can manage given the difficulties with his prosthesis. He needs his prosthesis for the onsite work. He is not able to do this with his crutches as he is too unsteady and he is not able to use his hands. He tries to limit the amount of time that he uses his prosthesis due to his skin and pain problems so this limits the number of hours per week that he can work.

    ...

    The prosthesis causes skin problems on the stump. The friction causes irritation and inflammation. This is related to how much time he uses the prosthesis. He tries to therefore minimise the amount of time that he uses it. When the irritation becomes substantial he then further tries to reduce the time that he uses it until the irritation has resolved. He has also had what he describes as a sweat rash particularly in hot weather. He has intermittent skin infections. There is a bony spur that tends to put pressure on the prosthesis which also irritates the skin over it. How long he uses his prosthesis for each day varies depending on need and the condition of his skin. Five hours a day would generally be the maximum. When his skin condition is more marked he would use it less than this. He tries to balance the irritation of his skin with his need to be mobile. His skin problem is treated by his general practitioner. He has not seen a dermatologist.

    ...

    With his prosthesis he is able to walk up to a few hundred meters. He does have difficulty on uneven ground or hills. He does occasionally fall. He is able to go up and down stairs but he is slow and careful. He avoids prolonged standing but thought that the maximum he could do would be 20 to 30 minutes by which stage his pain would be markedly increased.

    When he is not wearing his prosthesis he uses two crutches. He would generally then only walk around the house. He avoids going out of the house with the crutches. As he needs both hands for the crutches he is very limited in what he can do while walking with the crutches. For example he is not able to walk around carrying his young baby while using the crutches. Stairs are very difficult and he would generally avoid stairs or uneven surfaces.

    ...

    He is able to drive an automatic car. He rarely catches public transport. He is able to catch a bus or train but it is difficult and he avoids it whenever possible. He frequently catches taxis. He does not use public transport with his crutches, only when he has his prosthesis.

    ...

    He attended today with his crutches not his prosthesis due to his skin problems. He was able to get out of the chair and walk with his crutches without the assistance of another person.

    ...

    I think that his impairment rating is 10 on table 3.

    ...

    The letter from the rehabilitation physician Dr Laycock dated 30 October 2012 notes that he maintains his status as a K4 level amputee. My impression would be that on 25 May 2015 he would perhaps be better rated as K3. That is he has the ability of potential for ambulation with variable cadence - a typical community ambulator with the ability to traverse most environmental barriers.

    THE HEARING

1. Mr Trenter attended the hearing in person. At the hearing, Mr Trenter was unrepresented and represented himself. 

   The Evidence of Mr Trenter

2. Mr Trenter gave sworn evidence. He answered every question to the best of his ability. Mr Trenter described his work with Timerite Pty Ltd. Mr Trenter said that he did not remember the date on which he commenced working at Timerite. He said he works 25 hours a week. When asked whether he had worked for more hours in the past he said that he had not done so.

3. Mr Trenter was shown a letter from his father dated 7 November 2012 where his Father had written that Mr Ben Trenter was employed for 76 hours a fortnight, that is he was employed on a full-time basis. Mr Trenter said that this was not so and that he had only worked 25 hours each week.

4. In cross-examination he was asked whether the letter from his Father Mr Mark Trenter dated 2 November 2013 was accurate. In that letter, his Father wrote that he worked for 25 hours each week. Mr Trenter said that this letter was correct.

5. Mr Trenter said that he takes time off because there is skin irritation caused by friction from wearing the prosthesis. He uses up his sick leave and some of his annual leave. Mr Trenter said that as Timerite Pty Ltd is a family business, everyone is understanding about his situation.

6. When asked about his use of the prosthesis and the crutches, Mr Trenter said that there is a 50-50 split. He wears the prosthesis for about half the time and he takes the prosthesis off whenever this is possible. He uses his crutches in the house, but he said he doesn't like using them when he is outside the home.

7. Mr Trenter said that he can walk about 200 metres. He can climb stairs as long as he takes it slowly - one step at a time - and uses the hand rails. He said that he can go shopping using his prosthesis. In cross examination, Mr Trenter said that he can push a shopping trolley and pick up items from the shelves and put them in the trolley.

8. Mr Trenter said that he uses Canadian crutches with their pistol grips.

9. When asked about any lopsidedness, Mr Trenter explained that he is about six feet 3 inches in height and that he weighs 90 to 95 kilograms. When he is using his prosthesis, his weight impacts on his right side and affects his hip and back.

10. Mr Trenter said that he had not visited a dermatologist about his skin irritation.

11. Mr Trenter said that he drove from Newcastle to the hearing in Sydney. He parked about a block away and used the escalator and the lift to come to the hearing room.

12. Mr Trenter was asked about his depression. He said that after his accident he was depressed and that he was put on anti-depressants. At present, he said that he is depressed because he wishes to be out in the community and to support his family. In cross-examination Mr Trenter said that he can drive an automatic car.

13. When taken to the report of Dr Cook he said that he could walk 200 metres which was pretty much what Dr Cook had written in his report. Mr Trenter said that he could stand for about 25 minutes. Mr Trenter said that his hip condition had become worse since 25 May 2015.

    The Evidence of Dr Cook

14. Dr Peter Cook gave evidence by affirmation by telephone. Dr Cook said that he has been an occupational physician since about 2000. Dr Cook said that he stands by his report on Mr Trenter dated 5 November 2015. Dr Cook said that skin irritations were a very common problem for amputees.

15. Dr Cook explained why he had assessed Mr Trenter as a K3 above the knee amputee, rather than as a K4. Dr Cook read from an online data base. He said that a K4 classification is more appropriate for a child, active adult or athlete. Given his assessment of Mr Trenter, Dr Cook said that a K3 classification was more appropriate.

    CONSIDERATION

16. The first issue which I am required to decide is whether any of the impairments of Mr Trenter were fully diagnosed, treated and stabilised on 25 May 2015. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the impairment tables.

17. The second issue which I am required to decide is whether Mr Trenter has a continuing inability to work pursuant to subsection 94(1)(c)(i), subsection 94(2) and section 96 of the SS Act.

    The Impairments of Mr Trenter

18. Having regard to the evidence before me, I find that Mr Trenter's above the left knee amputation impairment was fully diagnosed, treated and stabilised on 25 May 2015.

19. Mr Trenter does have a skin condition. This skin condition exacerbates the irritation which Mr Trenter experiences when wearing the prosthesis. This friction affects his activities as it limits the amount of time when he can wear his prosthesis. However, in his evidence Mr Trenter said that he has not consulted a dermatologist. I find that Mr Trenter's skin condition was not fully diagnosed, treated and stabilised on 25 May 2015.

20. In relation to any depression which Mr Trenter may have suffered or still may suffer, he has not consulted a psychiatrist or clinical psychologist about depression. I find that if Mr Trenter was suffering from depression on 25 May 2015, it was not fully diagnosed, treated and stabilised.

    Assessing Mr Trenter's Amputation Impairment

21. As Mr Trenter's above the knee left leg amputation is the only impairment which I have found to be fully diagnosed, treated and stabilised, I am required to assess it under table 3 of the impairment tables.

22. The descriptors for moderate, that is for 10 points, and for severe, that is for 20 points are as follows:

    10 There is a moderate functional impact on activities using lower limbs.

    (1) At least one of the following applies:

    (a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

    (b) the person is unable to use stairs or steps without assistance; or

    (c) the person is unable to stand for more than 5 minutes; and

    (2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

    (3) This impairment rating level includes a person who can:

    (a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

    (b)       move around independently using walking aids (e.g. quad stick, crutches or walking frame).

    Note:    The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

    20 There is a severe functional impact on activities using lower limbs.

    (1) The person:

    (a) is unable to do any of the following:

    (i) walk around a shopping centre or supermarket without assistance;

    (ii) walk from the car park into a shopping centre or supermarket without assistance;

    (iii) stand up from a sitting position without assistance; and

    (b) requires assistance to use public transport.

    (2) This impairment rating level includes a person who requires assistance to:

    (a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

    (b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

23. From Mr Trenter's oral evidence and from the medical evidence before me, I am clearly of the view that Mr Trenter's impairment is not severe and does not warrant an assessment of 20 points under table 3 of the impairment tables. Mr Trenter possesses pluck and courage and works tirelessly to lessen the difficulties and inconveniences caused by his amputation.

24. Using his prosthesis, Mr Trenter can walk from a car park into a shopping centre and he can walk around the shopping centre. He can sit down and stand up unaided. Mr Trenter can use public transport, albeit with some difficulty.

25. Having regard to the evidence before me, I find that Mr Trenter's above the left knee amputation has a moderate effect on his activities. Mr Trenter cannot walk far outside his home, and he needs to drive to shopping centres and other community activities. Accordingly I assess this impairment at 10 points, that is as moderate under table 3 of the impairment tables.

    Conclusion on Mr Trenter's Impairment

26. As Mr Trenter's impairment is assessed at 10 points under table 3 of the impairment tables, he does not comply with subsection 94(1) paragraph (b) of the SS Act. This means that the decision to cancel his DSP on 25 May 2015 was correct.

    CONTINUING INABILITY TO WORK

27. It is strictly unnecessary for me to discuss the issue of whether Mr Trenter has a continuing inability to work. For the two following reasons I shall offer an opinion on its meaning. First, section 96 of the SS Act is important to the operation of the DSP, especially to recipients who are working more than 15 hours a week. Second, Dr Thompson who appeared on behalf of the Secretary was unable to cite a decision where section 96 of the SS Act has been interpreted and I am not aware of any precedents. Therefore, it does appear appropriate in this decision to proffer an opinion on the operation of this provision.

28. It is clear that Mr Trenter has been working for more than 15 hours a week, but less than 30 hours each week for the last few years. Without more, he could not be said to have a continuing inability to work within the meaning of subsection 94(1) paragraph (c)(i) and subsection 94(2) paragraphs (a) and (b) of the SS Act.

29. However, the issue is whether he could continue to receive DSP owing to section 96 of the SS Act. I have quoted section 96 of the SS Act in its entirety above. It is common ground that subsection 96(3) is not relevant to Mr Trenter as he is not a "reviewed 2008-2011 DSP starter".

    Statutory Interpretation

30. The courts have set out principles to be used when interpreting provisions in statutes. Bathurst CJ succinctly set out the general principles of statutory interpretation in the following passage from SAS Trustee Corporation vWoollard [2014] NSWCA 75 at [58]:

    ...As was said by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47],  the task of statutory construction must begin with the words of the statute itself considered in context, which includes the general purposes and policy of the provisions. Ascertainment of the statutory purpose may be based on an express statement of purpose in the statute, inference from the text and, where appropriate, reference to extrinsic material: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[25], [68] and [88]." As was pointed out by Kiefel J in that case, the starting point is the words in question, read in the context of the statute.

31. The SS Act does not contain a general purposes and objects provision. Chapter 2 Part 2.3 of the SS Act which sets out the qualifications and related rules for DSP, does not contain a purposes and objects provision. The long title of the SS Act is as follows:

    An Act to provide for the payment of certain pensions, benefits and allowances, and for related purposes.

    Therefore, it is necessary to glean the purposes and objectives of the SS Act from the entirety of its provisions.

32. Section 15AA of the Acts Interpretation Act 1901 (Cth) states this canon of construction as follows:

    In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

    The Plain Meaning of the Words

33. In my opinion, when the plain meaning of the words of section 96 of the SS Act are read, this section covers persons like Mr Trenter who are recipients of DSP, and who have been employed for more than two years, and have been working for 15, but less than 30 hours per week. After all, the provision contains no express limitations as to time. The DSP is subject to a means test which means that where a recipient works for 15 hours or more per week, her or his DSP is reduced.

34. Section 96 was inserted into the SS Act by the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Bill 2012 when it was enacted into law by the Parliament of Australia. The explanatory memorandum to the bill contains no time limits with respect to what is now section 96. The relevant portion of the explanatory memorandum is as follows:

    Item 1 inserts new section 96 into the Social Security Act. Section 96 allows for the continuation of a person's qualification for disability support pension if the person obtains paid work of at least 15 hours but less than 30 hours per week.

    Subsection 96(1) sets out that section 96 applies to a person who is receiving disability support pension and who would (if not for the new provision) lose qualification for the pension because of obtaining paid work of at least 15 hours per week but less than 30 hours per week.

    Subsection 96(2) specifies that people to whom section 96 applies continue to be qualified for disability support pension.  This means that disability support pension recipients who participate in paid work for between 15 and 30  hours per week can do so without affecting their qualification for disability support pension despite the increased number of hours worked.

35. The Guide to Social Security Law - Version 1.220 - Released 21 March 2016  sets out Government policy. It does not specify a two year time limit. At paragraph 3.6.2.112, the Guide simply says:

    Allowing DSP recipients to work less than 30 hours

    From 1 July 2012 DSP recipients continue to receive DSP if they obtain paid work of at least 15 and less than 30 hours a week. Prior to 1 July 2012 DSP recipients granted on or after 1 July 2006 and transitional DSP recipients (i.e. those granted between 11 May 2006 and 30 June 2006) whose DSP was reviewed between 1 July 2006 and 30 June 2012 had their payments suspended or cancelled when working 15 hours a week or more.

    A person who is receiving DSP may continue to be qualified for DSP if they obtain paid work of 15 hours a week and less than 30 hours a week. People who are working are subject to means test rules.

    This does not change the definition of 'work' for the purpose of assessing a person's CITW for new claims for DSP, i.e. to qualify for DSP a person must, among other things, be unable to work for at least 15 hours a week.

    The 'continuation of DSP while working' rule applies to a person who has qualified for DSP and, subsequently takes up work or increases their hours of work while receiving DSP.

    Suspension rules will apply if the recipient works for 30 hours a week or more. In these cases, the recipient may retain their PCC  for the first 12 months of the suspension period.

    The intent of this rule is to allow people to further test their ability to take on more work while maintaining the safety net of the DSP payments.

36. The final sentence of the Guide, that is ‘[t]he intent of this rule is to allow people to further test their ability to take on more work while maintaining the safety net of the DSP payments’, can be read as contemplating a time limit for the operation of section 96 of the SS Act , but it gives no further guidance.

    The Arguments of Dr Thompson

37. Dr Thompson argued that it is implicit that section 96 of the SS Act contains a two year time limit. In other words, persons in receipt of DSP may undertake employment for 15 hours, but less than 30 hours each week for two years. After this period of employment section 96 has no force or effect.

38. Dr Thompson argued, first, that this implicit time limit could be gleaned from the use of the present tense with the words "the person obtains paid work" as they appear in subsection 96(1) paragraph (b) of the SS Act. In my view, these words are insufficient to breathe a temporal element into section 96. After all, much of the provision is written using the present tense. For example, the words "the person is receiving disability support pension" appear in subsection 96(1) paragraph (a) of the SS Act.

39. The second argument of Dr Thompson is more forceful. He submitted that to comprehend the temporal nature of section 96, it must be read with subsection 94(2) paragraphs (a) and (b), and with the definition of "work" in subsection 94(5).

40. As Dr Thompson put it, to qualify for DSP a person must have a continuing inability to work for 15 hours a week independently of a program of support for the next two years. Section 96 enables a DSP recipient to work for 15 or more hours a week, but only for two years. This is because once a recipient has worked for 15 hours or more for two years, the recipient no longer has an inability to work.

41. To bolster this suggested interpretation and in reliance on section 15AB of the Acts Interpretation Act 1901 (Cth), Dr Thompson relied upon two budget papers. which I admitted into evidence as Exhibit A1.

42. In Portfolio Budget Statements 2011-12, Budget Related Paper No. 1.7 Families, Housing, Community Services and Indigenous Affairs Portfolio the following statement appears at page 94:

    From 1 July 2012, Disability Support Pension recipients granted on or after 11 May 2005 will be able to work up to 30 hours a week continuously for up to two years without their payment being cancelled or suspended. They will be able to receive a part pension while they work, subject to income-testing arrangements. This will allow them to test whether they can work more hours without fear of losing their pension.

43. In Budget Measures, Budget Paper No. 2, 2011-12, Circulated by The Honourable Wayne Swan MP, Deputy Prime Minister and Treasurer of The Commonwealth of Australia and Senator The Honourable Penny Wong, Minister for Finance and Deregulation of The Commonwealth of Australia, For the information of Honourable Members on the Occasion of the Budget 2011-12, 10 May 2011, the following statement appears on p179:

    The Government will allow all Disability Support Pension (DSP) recipients to work up to 30 hours a week and remain eligible for a part-pension for up to two years.

    This will allow recipients granted DSP under the 15 hour a week rule (that is, on or after 11 May 2005) to maximise their working hours without the suspension of their DSP entitlement. DSP recipients will still be subject to the application of the income test.

    This measure removes a disincentive for DSP recipients to participate in the workforce and addresses the inconsistent treatment of people granted DSP before or after May 2005. This measure will cost $7.6 million over four years.

44. In my view, there is a choice between an interpretation which focuses upon the plain meaning of the words in section 96 of the SS Act, and an interpretation which by implication reads the words "for up to two years" into section 96 of the SS Act.This is not an easy choice to make. However, after weighing up the merits of both interpretations, I prefer the plain meaning interpretation. It does appear to me that subsection 94(2) paragraphs (a) and (b) of the SS Act are simply specifying the continuing inability to work qualification for DSP. In my opinion, there is nothing inconsistent between qualifying for DSP by being unable to work for 15 hours a week for two years, on the one hand, and on the other hand, at a later date working for at least 15, but not more than 30 hours per week indefinitely while still receiving reduced DSP owing to the means test. Section 96, thus encourages recipients to undertake work for not more than 30 hours a week, while still retaining a reduced DSP.

45. If the DSP was not subject to the means test rules, Dr Thompson's argument would have more force because from my reading of the SS Act, its purposes and objects do not encompass double dipping. However, when persons work for 15 hours a week and not more than 15 hours each week, their DSP is reduced by the means test rules.

1. If the Parliament had wished to place a two year time limit on the receipt of DSP under section 96 of the SS Act, it could have said so expressly. I am fortified in this plain meaning interpretation of this provision by both the explanatory memorandum and the current Guide to Social Security Law. It will be recalled that neither the explanatory memorandum, nor the Guide specify a two year time limit with respect to section 96 of the SS Act.

2. It is true that the two budget papers which I have quoted above do contemplate a two year time limit, but in my view these two contemplations of themselves cannot constrain the plain meaning of the words of section 96 of the SS Act.

   Conclusion on Section 96

3. As I interpret section 96 of the SS Act, if I had found that Mr Trenter's above the left knee amputation to be assessed at 20 points under the impairment tables, I would have further found that he could work for more than two years for 15, but not for more than 30 hours each week and still retain DSP which is subject to a means test.

   CONCLUSION

4. I have found that Mr Trenter did not qualify for DSP on 25 May 2015 because he did not attain 20 points under the impairment tables, and accordingly he did not comply with subsection 94(1) paragraph (b) of the SS Act. Therefore, the decision to cancel his DSP on 25 May 2015 was correct. It follows that the tier 1 review dated 6 August 2015 which set aside the cancellation decision was incorrect and must be set aside.

5. It does appear that as a consequence of my decision, Mr Trenter will be indebted to the Commonwealth of Australia. Mr Trenter has through his own efforts and those of his family, chosen to work as much as he is able to support himself and his family and this is to be admired. I trust that a lenient approach will be taken to any necessary debt recovery. Finally, as I have written above, Mr Trenter does possess pluck and courage. He is a young man with a partner and a small daughter, and the whole of his life is ahead of him. I would strongly encourage Mr Trenter to improve his skills through further education.

   DECISION

6. The decision under review, that is the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 6 August 2015 is set aside.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated 5 May 2016

Date(s) of hearing	21 April 2016
Solicitors for the Applicant	Department of Human Services
Respondent	In person