TYSR and Secretary, Department of Social Services (Social services second review)
[2016] AATA 2
•5 January 2016
TYSR and Secretary, Department of Social Services (Social services second review) [2016] AATA 2 (5 January 2016)
Division
GENERAL DIVISION
File Number(s)
2015/0206
Re
TYSR
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms A F Cunningham, Senior Member
Date 5 January 2016 Place Perth The decision under review is affirmed.
.....(Sgd)...........................................................
Ms A F Cunningham, Senior Member
CATCHWORDS
Social Security – disability support pension - accepted conditions of strabismus, depression, psoriasis, patella femoral syndrome – impairment rating – severe impairment – inability to work requirement not satisfied – decision under review affirmed.
LEGISLATION
Social Security Act 1991- 94(1) – (94)(1)(a) – 94(1)(b) – s94(1)(c) – s94(2)(a) – s94(2)(b) – s94(3) – s94(3B) – s94(5)
Social Security Administration Act 1999- cl 4 of Sch 2
Social Security (Tables for the Assessment of Work-related Impairment Disability Support Pension) Determination 2011- s3 – s6(1) – s6(3) – s6(5) – s6(6) – s8 – s9 – s11(3)
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
5 January 2016
The decision under review is that of the Social Security Appeals Tribunal (“SSAT”) made on 16 December 2014 which affirmed a decision of an Authorised Review Officer (“ARO”) of the Department of Human Services that TYSR was not qualified for disability support pension (“DSP”) at the time she lodged her claim on 21 November 2013.
The hearing was conducted by way of video link to the Perth Registry. The applicant, TYSR appeared on her own behalf and gave oral evidence. The Secretary was represented by Mr Carroll who tendered the T-documents pursuant to section 35 of the Administrative Appeals Tribunal Act 1975. Additional documents tendered during the hearing were the applicant’s Statement of Facts, Issues and Contentions with attachments and a copy of a Referral Placement List.
ISSUES
The issues for determination by the Tribunal are whether at the time of her claim the applicant:
(i)had a physical, intellectual or psychiatric impairment; and
(ii)had permanent impairment(s) attracting a rating of 20 points or more under the Impairment Tables; and, if so
(iii)had a continuing inability to work.
LEGISLATION
The legislation relevant to this application is contained in the Social Security Act (Social Security Act); the Social Security Administration Act 1999 (Administration Act); the Social Security (Tables for the Assessment of Work-related Impairment Disability Support Pension) Determination 2011 (Impairment Determination); and the Social Security (Requirement and Guidelines-Active Participation for Disability Support Pension) Determination 2011 (POS Determination).
The qualification provisions are contained in section 94 (1) of the Social Security Act which provides:
SOCIAL SECURITY ACT 1991 - SECT 94
Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i)the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour marker;
(iii)if the person has one or more dependent children- the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i)the person is an Australian resident;
(ia) the person is absent from Australian and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
The Administration Act provides that the start day for a qualified DSP claimant is the date of the claim which means that qualification and impairment ratings must be determined as at the date of the claim. The only exception is where the person is not qualified on the date of claim but “will become qualified” and “becomes so qualified within 13 weeks of lodging a claim”, in which case their start day is the day they became qualified (Schedule 2, clause 4(1) of the Administration Act).
TYSR lodged her claim for DSP on 21 November 2013. Therefore, the relevant assessment period is between 21 November 2013 and 20 February 2014.
IMPAIRMENTS
The term “impairment” is not defined in the Social Security Act. Section 3 of the Impairment Determination defines “impairment” to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
On account of the evidence in the medical reports and the Department’s records, the Secretary accepts that TYSR has impairments in relation to strabismus, depression, psoriasis and patella-femoral syndrome.
There is evidence in the T documents that each of these conditions has been medically diagnosed and the Tribunal accordingly accepts that TYSR satisfies section 94(1)(a) of the Social Security Act.
The next issue for consideration is whether TYSR’s impairments can be assigned 20 points or more under the Impairment Tables as required by section 94(1)(b) of the Social Security Act. An impairment can only be assigned a rating under the Impairment Tables in accordance with the provisions in the Determination, which also contains the Impairment Tables. The Tables describe functional activities, abilities, symptoms and limitations and assign ratings to determine the functional impact of the impairments.
Section 6 of the Determination provides:
Impairment Ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition;
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the 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 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
In accordance with subsection 94(1)(b) of the Social Security Act, a person’s impairment must rate at least 20 points under the Impairment Tables. In order for an impairment to attract an impairment rating under the Impairment Tables, the impairment must be considered permanent in that it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years (Section 6(3) of the Impairment Determination).
In determining whether a condition has been fully diagnosed and treated, consideration must be given to any corroborating evidence of the condition, what treatment has occurred and whether treatment is continuing or planned in the next two years (section 6(5) of the Impairment Determination), or if there is unlikely to be significant functional improvement that would enable the person to work in the next two years (Section 6(6) of the Impairment Determination).
The Tables make it clear that self-reporting of symptoms alone is insufficient and there must be corroborating evidence of a person’s impairment. The symptoms reported by a person in relation to the condition can only be taken into account where there is corroborating medical evidence (Section 8 of the Impairment Determination and the Introduction to the Tables).
Paragraph 11(5) of the Impairment Determination provides that a diagnosed condition which results in no impairment should be assessed as having no functional impact and an impairment rating of zero must be assigned.
Strabismus- low vision
The medical evidence referable to this condition is contained in reports from Dr JS dated 16 December 2013 and 22 January 2014.
In Dr JS’s medical report in support of TYSR’s application for DSP, she stated:
“[TYSR] is unable to read text that is presented in 14 font or below unless it is one short sentence. [TYSR] also has intermittent double vision when her eyes become tired especially at night”. Her impact to function was listed as “unable to read text (forms, books, newspaper, instruction manuals, ingredients on food packaging) under 14 font without the use of a hand magnifier or the text being converted into 16 font or converted to digital to enable reading them on computer screen set to a comfortable display setting.”
The impact of this condition on ability to function was stated as expecting to persist for more than 24 months and within the next two years the effect of the condition is stated as “uncertain”.
In Dr JS’s medical report dated 22 January 2014 she stated:
“[TYSR] cannot read any text below 16 font due to overlapping images and requires magnifying glasses or sheet and a computer software to complete day to day tasks. This include not being able to distinguish level marks on measuring cups and reading food package labels and usually shops by colour of package to distinguish between items. [TYSR] does not have the technology to convert books, magazines, manuals or newspapers to 16 font and requires these to be converted to 16 font or available online or in digital format. [TYSR] often asks for assistance using public transport to ensure that the correct vehicle is being boarded and cannot move around unfamiliar environments independently.
Further, after approximately 20 minutes and 2 hours of on and off reading [TYSR’s] eyes start to become tired. After this time eye-strain starts to become an issue resulting in headaches and blurry vision.
This condition is refractory to any treatment (as reported by Dr L, Dr C and Ms LB) and will deteriorate as [TYSR] ages.
I believe she has severe impairment due to Strabismus.
In my opinion, even with all reasonable treatment, her condition in the two years is likely to get worse.”
The Job Capacity Assessment Report (JCA report) assigned an impairment rating of 10 points under Impairment Table 12 concluding that there was a moderate functional impact on activities involving visual function.
Both the Authorised Review Officer (ARO) and SSAT found that the condition was permanent and could be assigned 10 points under the Impairment Tables. Mr Carroll informed the Tribunal that the Secretary accepts the findings of the SSAT in this regard.
TYSR contends however that the impacts of this condition result in a severe functional impact on the activities listed in Table 12, such as to attract an impairment rating of 20 points.
The relevant criteria under Table 12 of the Determination are as follows:
10 There is a moderate functional impact on activities involving visual function.
(1) The person:
(a) has moderate difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn or the person has very limited vision to the sides when looking straight ahead or the person has other significant loss in their field of vision (e.g. patches where they can see nothing or very little); and
(b) needs to use vision aids or assistive devices other than spectacles and contact lenses for some tasks; and
(c) has difficulty performing some day to day activities involving vision (e.g. difficulty seeing the print letters, signs or route numbers on approaching buses or at train stations); and
(d) has at least one of the following:
(i) some difficulty seeing routine workplace, educational or training information (e.g. signs, safety information, or manuals) and may need to use alternative formats (e.g. large prints), assistive devices or technology for vision in work, training or educational settings;
(ii) moderate discomfort when performing day to day activities involving the eyes (e.g. frequent watering of the eyes, frequent difficulty opening the eyes, or moderate difficulty moving or coordinating the eyes, or unable to tolerate normal levels of light indoors or outdoors);
(iii) only 1 eye of functional vision in only 1 eye and has mild problems with the vision in their only functioning eye; and
(2) The person:
(a) is able to function independently in familiar environments (that is, without regular assistance from other people); and
(b) is able to travel independently using public transport when using any assistive devices that they have and usually use.
20 There is severe functional impact on activities involving visual function.
(1) The person:
(a) has severe difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn; and
(b) needs to use vision aids or assistive devices other than spectacles and contact lenses for many tasks; and
(c) has severe difficulty performing many day to day activities involving vision (e.g. difficulty distinguishing between different types of food in tins or packets, seeing the level of fluid in a cup or reading aisle signs in supermarket even when standing close to these); and
(d) either;
(i) is unable to see routine workplace, educational or training information (e.g. signs, safety information, or manuals) even when using assistive devices or technology that they have; or
(ii) needs assistance to use public or other means of transport to travel to work, educational or community facilities even when using any assistive devices that they have (e.g. a guide dog or cane); and
(e) is unable to move around independently in unfamiliar environments.
Section 9 of the Determination provides:
A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistance technology that the person has and usually uses.
Section 11(3) of the Determination provides:
When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
With respect to the criteria for a severe functional impact (see paragraph 25 above), the Tribunal considers that the medical evidence from Dr JS contained in her report dated 16 December 2013 satisfies criteria (1)(a), (b) and (c). Dr JS states that TYSR is unable to read text that is presented in 14 font or below without the use of a hand magnifier or the text being converted into 16 font. Nor is she able to distinguish level marks on measuring cups or read food package labels, usually shopping by the colour of packages to distinguish between items.
Tailored services were provided to TYSR by a university in the form of a Disability Support Program to address her level of impairment and enable her to complete her studies. All textbooks, educational and training information were converted to 16 font for in-class handouts and some materials converted into PDF format. This enabled TYSR to listen to the textbook or other educational information. TYSR claims that such technological aids and assistance are not available to her any longer and that any workplace/training would need to supply the same support as the university to enable her to read any information in training manuals, safety information or employment specific manuals.
Detailed information about the program provided by the university is contained in the T-documents at T 22 at pages 135 to 141. The assistance provided was specifically tailored to meet TYSR’s visual restrictions. The Tribunal accepts that a workplace would need to provide specifically tailored assistance to enable TYSR to see routine workplace, educational or training information and is satisfied that the evidence satisfies the functional criteria of subparagraph (d)(i).
The final criterion concerns TYSR’s ability to move around independently in unfamiliar environments. It is submitted on behalf of the Secretary that TYSR’s evidence at the hearing indicates that with sufficient planning, she is able to move around independently in unfamiliar environments if required. TYSR said in evidence that she avoids unfamiliar environments however when necessary, she will arrange for a family member to accompany her to and lead her around the location. If a family member is not available, TYSR said that she is only able to visit an unfamiliar environment after much planning and research online, making telephone calls for directions and engaging customer service/reception/concierge assistance.
Paragraph 18 of the decision of the SSAT records TYSR’s evidence to the Tribunal. She stated that she drives a car but only to places that she is familiar with. Otherwise, she catches public transport but before doing so, she has to carefully plan the route so that she knows how many stops there are before she needs to disembark the train or bus. While she has no difficulty catching the train from the Fremantle Station to the Perth Station because they are the first and last stations, she has difficulty catching a bus on St George’s Terrace because she is unable to make out the bus numbers until the bus is close by or stops. In such cases she needs to ask people for assistance.
Paragraph 20 of the decision of the SSAT states that TYSR had pre-planned her trip to the Tribunal hearing by mapping out the bus route. The SSAT concluded that TYSR is able to move around independently in unfamiliar environments because she takes the time to plan and organise herself.
TYSR submitted statements from family members. Her niece, Ms B, states that TYSR has few friends and rarely leaves the house by herself. Ms B regularly picks her up and takes her to unfamiliar locations such as shopping centres, family outings and to appointments. She states that TYSR needs assistance in getting to and manoeuvring around a location, filling in forms and signing documents. Ms B confirms that TYSR needs the assistance of a magnifier to read a menu.
TYSR’s brother in law, Mr B said in his statement that TYSR does not go to unfamiliar environments without either assistance from himself, his daughter or his two sons. He states that they have had to assist TYSR when in an unfamiliar environment because she becomes disoriented and will require a member of the family to pick her up and take her home.
TYSR maintains that she is only able to move around unfamiliar environments with significant pre-planning and with assistance from other persons. In her final submissions she refers to paragraphs 6(1) and 11(3) of the Impairment Determination.
Paragraph 6(1) of the Impairment Determination provides:
“Assessing functional capacity
The impairments of the person must 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.”
Paragraph 11(3) provides:
“Descriptors involving performing activities
When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: if, under Table 12, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempted.”
It is on this basis that TYSR submits that she satisfies criterion (1)(e) in that she is not normally able to move around independently in unfamiliar environments and requires assistance to do so. The Tribunal accepts TYSR’s evidence that whenever she is required to visit an unfamiliar environment, she either seeks the assistance of family members or takes the time to pre-plan and research the environment, seeking assistance and directions from others. The Tribunal accepts that TYSR is unable to move around independently in unfamiliar environments on a normal basis because to do so, she depends significantly upon the assistance of other persons.
The Tribunal having found that TYSR satisfies all of the criteria under Table 12 of the Determination for a severe functional impact on activities involving visual function, thereby determines that she has an impairment rating of 20 points.
Major Depression
This condition was accepted by the Secretary as fully diagnosed on the basis of the evidence from Clinical Psychologist, Mr P contained in a report dated 7 November 2014. The condition however, is not accepted as permanent in that there was evidence from TYSR’s treating general practitioner that within the next two years the condition was expected to resolve. TYSR does not contest the Secretary’s submissions and the Tribunal accepts that the condition is not fully treated and stabilised such as to attract an impairment rating.
Plaque Psoriasis
The Secretary submits that the medical evidence with respect to this condition suggests that it was not fully diagnosed, treated and stabilised during the assessment period. Reference is made to the medical reports from TYSR’s treating general practitioner of 16 December 2013 and 22 January 2015 and the medical report from Specialist Dermatologist, Dr C dated 1 May 2014. Although the latter report is outside the assessment period, Dr C states that TYSR’s psoriasis was mild at the time of the consultation. He notes that TYSR had reported that the psoriasis had been stable but being an inflammatory condition is typically relapsing and remitting and can be clinically more or less active over periods of time. TYSR was given appropriate topical therapy for the level of psoriasis seen at the time of consultation.
The SSAT decided that TYSR’s Plaque Psoriasis was permanent, fully diagnosed, treated and stabilised on the basis of Dr C’s report. However, on the basis of Dr JS’s evidence contained in her medical reports dated 16 December 2013 and 23 July 2014, where she stated that the condition is generally well managed and causes minimal or limited impact on TYSR’s ability to function, the Tribunal concluded that the condition does not attract an impairment rating.
Annexed to TYSR’s Statement of Facts, Issues and Contentions is a medical report from Dr JS dated 22 January 2014 in which she states that:
“This letter is to clarify that the conditions on the original claim form listed under the “well managed” section was an interpretation error. The section was interpreted to mean that the conditions did not warrant a “severe” rating on the related tables and that “minimal or limited impact” equated to the “mild or moderate” ratings of the Social Security Impairment Tables. The initial impact statements were meant to have corrected this misunderstanding and these conditions should be given an impairment rating.”
The Secretary does not contest the medical diagnosis of this condition but maintains that it is not permanent such as to attract an impairment rating. Although Dr C’s report postdates the assessment period it supports the evidence of Dr JS regarding the skin condition which can become active and inflamed from time to time due to a number of causes. The Tribunal agrees with the findings of the SSAT and is satisfied that the condition was fully diagnosed, treated and stabilised during the assessment period.
TYSR maintains that this condition results in a moderate functional impact on activities requiring healthy, undamaged skin in that she satisfies descriptors (1)(c) and (d) which read as follows:
There is a moderate functional impact on activities requiring healthy, undamaged skin.
(1) Regarding the adaptations to several daily activities that the person has to make, at least one if the following applies:
…
(c) the person has moderate difficulties performing daily activities due to lesions on skin which require creams or dressings and limit movement and comfort (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);
(d) the person has moderate difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and needs to take higher than normal precautions to avoid exposure to sunlight (e.g. must wear sunscreen at all times, wear hat and other protective clothing at all times outside and has to limit time spent outside in sunlight).
The SSAT found that the condition is generally well managed and causes minimal or limited impact on TYSR’s ability to function. In her report of 16 December 2013, Dr JS states that the condition has been ongoing since 1992 and is persistent in the areas of both legs above the ankles to below the calf, both elbows, both ears, on the scalp, the intergluteal cleft and the left labiocrural fold. Further, that the condition is presently stable in the areas mentioned and applying medications and avoidance of sunlight should decrease the progression of areas involved. Dr C notes that the condition can be more or less active over periods of time.
The Tribunal accepts that during periods of flare-up this condition causes significant discomfort, pain and limits movement. TYSR is constantly required to take appropriate care to ensure that she is not exposed to products that could cause inflammation and must limit exposure of her skin to sunlight. Her evidence regarding heightened sensitivity to risk sunlight is consistent with the functional impact criteria of paragraph (1)(d) which supports a finding of a moderate functional impact on activities and an impairment rating of 10 points.
Patella-femoral syndrome
This condition was diagnosed in 1995 by Dr H. The impact of this condition is described by Dr JS in her reports and outlined in the decision of the SSAT at paragraphs 33 and 34. The SSAT concluded on the basis of Dr JS’s report of 16 December 2013, that there was insufficient medical evidence to determine that the condition was fully treated and stabilised at the date of the claim.
In her report of 22 January 2014 Dr JS states that TYSR cannot walk long distances and often uses a walker to get to the local shops and will drive to the supermarket where a shopping trolley is used for support. She confirms the evidence contained in her report of 16 December 2013 that TYSR cannot walk up stairs without the use of a handrail and has difficulty bending or squatting and needs support to stand up. She further suggests that ongoing physiotherapy is needed to ensure the strength of the leg and knee and to postpone surgeries that are unnecessary at this stage and do not have any likelihood of decrease in the impact of the impairment. Dr JS concludes that TYSR has moderate impairment due to her patella-femoral syndrome and associated conditions and that even with all reasonable treatment her condition is expected to stay the same in the next two years.
The Job Capacity Assessor noted that the pain is controlled with rest, the use of ice and paracetamol (as reported by Dr JS) and concluded that the condition was not fully treated and stabilised. The basis of this conclusion was stated to be because the “condition is known to be quite manageable and treatable with continued rolling/stretching/dry needling of ITB (iliotibial band), Vastus Lateralis etc and strengthening to a certain degree VMO (vastus medialis oblique) FTS, a report from her physiotherapist would be required to state why the client has not responded to treatment.”
TYSR’s Patello-femoral syndrome is long-standing and has been the subject of ongoing treatment over a lengthy period of time. Such treatment has included surgery in 1995 (left knee arthroscopy and lateral release), physiotherapy and the use of orthotics. Dr AS’s medical report of 23 July 2014 states that a knee replacement will eventually be required however, TYSR doubts that this will be possible given the injury sustained to her thigh in a car accident.
The Tribunal considers that the evidence supports a finding that this condition is permanent in that it is fully diagnosed, stabilised and treated. The Tribunal rejects the JCA’s contention that a report from a physiotherapist would be required to ascertain why TYSR has not responded to treatment. The medical evidence is that TYSR is compliant with treatment which is ongoing in order to maintain the strength of her knee and leg. There is no evidence referable to the assessment period suggesting that any further medical treatment is planned other than ongoing exercise, the use of orthotics, ice and paracetamol. The future/planned treatment of cortisone injections suggested by Dr AS in his report of 23 July 2014, which is outside the assessment period, is for the purpose of providing short term relief.
The Tribunal considers that this condition attracts an impairment rating of 5 points under Table 3 - Lower Limb Function on the basis that TYSR has difficulty travelling to nearby shops, she requires the use of a handrail to use the stairs, is only able to stand on her feet for up to five minutes provided that she does not put weight on her left leg and she requires the support of a shopping trolley when moving about a supermarket.
INABILITY TO WORK
The Tribunal assesses TYSR’s total impairment rating at 35 points for the reasons outlined above. TYSR thus satisfies the qualification provisions of section 94(1)(b) of the Social Security Act that the person have an impairment rating of 20 points or more under the Impairment Tables.
Section 94(1)(c) of the Social Security Act requires that the person has a continuing inability to work. The “continuing inability to work” provisions are contained in subsection (2) of section 94 of the Social Security Act. As TYSR’s impairment is a “severe impairment” within the meaning of subsection (3B) because she has an impairment rating of 40 points, (which includes an impairment rating of 20 points under one Impairment Table) she is not required to have participated in a program of support within the meaning of subsection 3(C).
Subsections 2(a) and (b) of s 94 of the Social Security Act require that the impairment must in all cases be of itself sufficient to prevent the person from doing any work independently of a programme of support within the next two years and either the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next two years, or such activities are unlikely (because of the impairment) to enable a person to do any work independently of a program of support within the next two years.
It is the Secretary’s submission that TYSR’s ability to complete two degrees in the six years leading up to her claim for DSP indicates that her impairment is not of itself sufficient to prevent her from undertaking a training activity during the two years following the date of her claim. A “training activity” is defined in section 94(5) of the Social Security Act and includes an education activity whether or not designed specifically for people with physical impairments.
The JCA report concluded that TYSR has the capacity to do light semiskilled work for between 23 and 29 hours per week within two years with supportive interventions. The Job Capacity Assessor noted that TYSR had worked in a bank for 13 years, and last worked as a medical receptionist for three years leaving in 2008 when she commenced caring for her father.
TYSR submits that there is no evidence that the training activities referred to by the Secretary actually exist and also that unless a “training activity” is specifically designed or modified for her impairments, she would be unable to complete it. Section 94(3) of the Social Security Act provides however, that in deciding whether or not a person has a continuing inability to work because of impairment, regard is not to be had to the availability to the person of a training activity.
In her report of 22 January 2014, Dr JS states that after approximately 20 minutes and two hours of on and off reading, TYSR’s eyes start to become tired and eyestrain starts to become an issue resulting in headaches and blurry vision. It is her view that there are no treatments reasonably available that would enable TYSR to work 15 hours per week within the next two years.
Dr JS’s evidence relates to effective medical treatment as opposed to a “training activity” which may not relate to a type of work requiring on and off reading. The term “work” is defined to section 94(5) of the Social Security Act as meaning work for at least 15 hours per week on wages that are at above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market. It is not limited to the type of work in which the person was previously engaged or would prefer.
The Tribunal finds that there is no persuasive evidence that TYSR’s impairment is of itself sufficient to prevent her from undertaking a training activity during the next two years within the meaning of section 94(2)(b) of the Social Security Act. Accordingly, the Tribunal concludes that TYSR does not satisfy section 94(1)(c) of the Social Security Act that she has a continuing inability to work. As the qualification requirements of section 94(1) of the Social Security Act are conjunctive, a failure to satisfy any one means that an applicant fails to qualify for DSP.
The Tribunal accepts TYSR’s evidence that her various conditions have and continue to greatly impact on her life and she has given up a number of activities that she previously enjoyed. TYSR said that she used to lead a fairly active and well balance lifestyle which is now significantly restricted due to her conditions. The Tribunal however can only consider the application for review in light of the evidence presented and in accordance with the relevant legislative requirements.
For the reasons outlined above, the decision under review must be affirmed.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member ........(Sgd).....................................................
Administrative Assistant
Dated 5 January 2016
Date(s) of hearing 29 September 2015 Date final submissions received 9 November 2015 Applicant In person Representative for the
RespondentMr Carroll Solicitors for the Respondent
Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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