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

[2021] AATA 1618

Vella and Secretary, Department of Social Services (Social services second review) [2021] AATA 1618 (7 June 2021)

Division:GENERAL DIVISION

File Number:          2020/7774

Re:Michael Vella

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:7 June 2021

Place:Sydney

The decision of the AAT 1, dated 13 November 2020, be affirmed.

.......................[SGD].................................................

Senior Member M Griffin QC

CATCHWORDS

SOCIAL SECURITY – disability support pension – blood condition – how many points from the Impairment Tables Applicant’s disability attracts –  Applicant’s continuing inability to work – Applicant does not attract sufficient points under Impairment Tables – Applicant does not demonstrate continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Senior Member Griffin QC

7 June 2021

1. The Applicant in this matter is asking for the decision of the Social Security and Child Support division of the Administrative Appeals Tribunal (AAT 1) dated 13 November 2020 which rejected the Applicant’s claim for a disability support pension (DSP) be overturned.

2. Whether the Applicant qualifies for DSP is governed by the provisions set out in section 94 of the Social Security Act 1991 (Cth) (the Act) and in particular:

   (a)whether the Applicant had any physical, intellectual or psychiatric impairments;

   (b)if so, whether the Applicant's impairments attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth); and

   (c)if so, whether the Applicant had a continuing inability to work.

3. The Applicant was born on 19 July 1968. The Applicant lodged a claim for DSP on 27 March 2020 claiming that he suffered from a blood condition called Factor V, Factor VIII and Leiden.

4. A disability support pension assessment was completed in April 2020 concluding that the Applicant was manifestly medically ineligible for DSP and in April 2020 the claim was rejected. Following an internal review which also rejected the Applicant's claim, review was sought at the AAT 1 which also rejected the claim.

5. On 25 November 2020, the Applicant sought review to this Tribunal. It is to be noted that in assessing the Applicant’s application in general terms, that application by reason of the legislation, is limited to his condition at the time of the making of the application, 27 March 2020 and 13 weeks thereafter.

6. The Applicant gave evidence in the proceedings. The Tribunal found the Applicant's evidence to be forthright and credible.

7. Central to the proceedings is whether the Applicant qualifies for DSP from the date of his claim on 27 March 2020 or within 13 weeks thereafter.

8. It is clear enough on the evidence that the Applicant suffers from a condition and therefore, satisfies section 94(1) of the Act.

9. The condition which the Applicant suffers from and which the Responded accepts is Factor V, Factor VIII and Leiden, deep vein thrombosis and sequelae. As to the physical effects of this condition, the evidence that the Applicant gave at hearing was entirely consistent with his reported history to various medical practitioners and, in particular, to the Job Capacity Assessment (JCA) undertaken on 5 June 2020.

10. The Applicant gave evidence concerning the first onset of a serious thrombosis in 2003 following a lengthy plane flight. He was admitted to the Blacktown hospital for about 2 weeks and treated for this condition. Since that time, there have been major incidents in 2013 and 2015, with a period of stability between 2003 and 2013. The Applicant's medication for his condition, which is fully diagnosed, have had to be adjusted at various times.

11. The Applicant suffers constant discomfort and pain from swelling around his ankles and has developed a problem with his knee, related to his diagnosed condition. The discomfort and pain appears to be less severe particularly after sleeping at night. The discomfort, according to the Applicant, increases during the day and is made more severe in hot weather.

12. The Tribunal is of the view that the Applicant was an honest and forthright witness and understands and appreciates the Applicant's concern about his medical condition.

13. It is undoubtedly correct that the view the Applicant has formed concerning his condition has, to some extent, been informed by the opinions expressed by three medical practitioners whom the Applicant has consulted. For example, in March 2020, Doctor Michael Khong confirmed the thrombosis diagnosis and in his report stated that he “supported his (the Applicant’s) application for consideration for invalid (sic) pension”.

14. The Applicant consulted two specialist medical practitioners. In April 2020, Doctor David Jenkins reported that the thrombosis was an inherited clotting disorder, referred to recent incidents in 2013 and 2015 and the development of a left femoral thrombosis requiring a change of medication. The doctor went on to report that “the long-term requirement for anticoagulation limits his employment opportunities to situations where the risk of bleeding from injuries is negligible”.

15. Doctor Helen Crowther saw the Applicant on 21 May 2020 at a haematology clinic and reported that the Applicant would benefit from wearing pressure stockings and that the prognosis was that the Applicant would require long term review and was unable to work in the foreseeable future.

16. None of those opinions which were expressed provided any basis or evidence to support those opinions although of course, those expressed opinions should not be lightly dismissed, coming as they do from qualified medical practitioners.

17. This matter and the questions concerning its resolution are, however, concerned with the notion of disability. The Applicant gave evidence as to the level of his disability which was consistent with that reported to the JCA in June 2020. This assessment followed upon the three reports described above by the three relevant medical practitioners. That JCA assessment, carried out by two health professionals engaged for the purpose of disability assessment, concluded that the Applicant had certain physical limitations but could walk without using an aid, that he was independent with self care, and that he was able to walk for a period of time, about 20 minutes.

18. The limitation in relation to the Applicant’s ability to walk long distances is a relevant matter to consider when assessing the Applicant’s disability. That disability is fundamentally assessed by reference to Table 3 of the Impairment Tables. Such a disability assessment is not at large or in the absolute discretion of the decision-maker. The Impairment Tables set out a quite precise series of incapacities which are assigned particular values.

19. In this case, the Tribunal is comfortably satisfied that the Applicant falls within Table 3 and should properly be rated at a disability rating of no more than 10 points.

20. What follows from this disability rating is that the Applicant simply does not attract the required 20 points under the Impairment Tables, and on this basis alone, therefore, the Applicant does not qualify for DSP.

21. Turning to the question of whether the Applicant has a continuing inability to work 15 hours per week, the Applicant does not have a “severe impairment”. The Applicant, on the evidence, has not actively participated in a Program of Support (POS) for at least 18 months in the 36 months prior to the date of his DSP claim and therefore cannot satisfy section 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014(Cth) (POS Determination) nor can the Applicant satisfy on the evidence section 7(5) of the POS Determination as there is no corroborating evidence on the material to suggest that the Applicant was prevented solely because of his impairments, from improving his capacity to prepare for, find or maintain work through continued participation in a POS.

22. The Applicant cannot satisfy sections 7(3) or 7(4) of a POS determination as he neither completed a POS prior to his statement of claim nor did he participate in a POS that was terminated prior to his date of claim due solely to his impairments.

23. In relation to the notion of a continuing inability to work, that is not confined merely to an Applicant’s ability to work in a chosen field or to undertake work for which that person was initially trained. The requirement is a capacity to undertake any work including work not necessarily in one’s locally accessible labour market and an availability to undertake training. The attractiveness of a particular person to an employer as an employee is also to be disregarded as well as the person's own preferences for the type of work to be undertaken. In this particular matter, all of this supports the finding that this Tribunal makes that the Applicant cannot demonstrate an inability to work at least 15 hours per week.

24. Fundamentally, because the Applicant, in the Tribunal’s view, does not have at least 20 points under the Impairment Table and cannot demonstrate a continuing inability to work pursuant to paragraph 94 1(b) and (c) of the Act, the decision to reject the claim for DSP in the Tribunal’s view was the correct decision.

    CONCLUSION

25. On the basis of the material before the Tribunal, the order of the Tribunal is that the decision of the AAT1, dated 13 November 2020, be affirmed.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

...........................[SGD].............................................

Associate

Dated: 7 June 2021

Date of hearing:	25 May 2021
Applicant:	Michael Vella
Solicitors for the Respondent:	Biljana Erak