WMKR and Secretary, Department of Social Services (Social services second review)
[2015] AATA 483
•7 July 2015
WMKR and Secretary, Department of Social Services (Social services second review) [2015] AATA 483 (7 July 2015)
Division GENERAL DIVISION File Number(s)
2014/6361
Re
WMKR
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 7 July 2015 Place Sydney The decision under review is affirmed.
.......................................................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY- disability support pension – portability – rules governing unlimited portability – preconditioning circumstances necessary for exercise of discretion not met – decision affirmed
LEGISLATION
Social Security Act 1999 (Cth) ss 94, 1218AAA, 1218AA
Social Security (Administration) Act 1999 (Cth) s 11
CASES
Re Goksu and Secretary, Department of Social Services [2014] AATA 752
Re HMLS and Secretary, Department of Social Services 2014 [AATA] 693
Re Jones and Secretary, Department of Social Services 2014 [AATA] 885
Re Morton and Secretary, Department of Social Services [2014] AATA 949
Re Scrivener and Secretary, Department of Social Services [2014] AATA 537
Re Sukkar and Secretary, Department of Social Services 2014 [AATA] 480
Re Udrzal and Secretary, Department of Social Services 2014 [AATA] 232Shi v Migration Agents Registration Authority 235 CLR 286
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
7 July 2015
Several years ago the Applicant was granted a Disability Support Pension in respect of various conditions that affected his functional capacity to work. He has spent periods overseas and was subject to rules governing the portability of his DSP, limiting the period of time in which DSP is payable to him while overseas. In view of this, he requested a determination of his eligibility for indefinite portability. Ultimately, an adverse determination was made. The Applicant does not agree with this determination and has pursued his rights of review, most recently before the Social Security Appeals Tribunal, without success.
When the matter came on for hearing, the Applicant represented himself and provided the Tribunal with a large amount of material. He asked for his name to be supressed on privacy grounds. As the case involves extensive medical records pertaining to mental health issues, and in my assessment the Applicant is vulnerable to stress-induced exacerbations of mental health conditions that afflict him, I acceded to his request.
During the hearing, questions arose about the status of the Applicant’s DSP and when he first requested grant of portability, and about the meaning of the term ‘support worker’. The Secretary requested additional time to address these matters. With the Applicant’s concurrence, I granted further time for each party to file additional submissions and materials.
I have had regard to the materials subsequently filed by each party, including the voluminous materials filed by the Applicant.
SHORT FACTS
The Applicant was first granted DSP on 29 January 2003. At that time he was found to have impairments warranting a rating of 20 impairment points under s 94(1)(b) of the Social Security Act 1991 (Cth) (the Act), applying Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Schedule 1 Tables) set out in Schedule 1B: 20 points under Table 6 in respect of psychiatric impairment.
The Act and the provisions made for DSP, including the applicable Impairment Tables, have been amended over time. This is a matter to which I will return below.
On 11 October 2006, the Applicant’s DSP was cancelled on income grounds. He re-applied and DSP was again granted on 11 October 2007.
On 19 December 2012, the Applicant requested indefinite portability of his DSP. If granted, this would mean that he would be entitled to be paid DSP while absent from Australia with no time limit. At that time, the Applicant was subject to a 12 month limit applied to payment of DSP while overseas.
The Applicant was absent from Australia, travelling overseas, for periods of 4 to 6 weeks in 2008, 2011, 2012 and 2013.
On 23 April 2013, Dr Gabb, a treating general practitioner, completed a Centrelink Treating Doctor’s Report in respect of the Applicant (T21). The Doctor reported that the Applicant’s mental health condition was treated by medication, but the treatment caused symptoms of drowsiness and weight gain. He reported “No current symptoms of psychosis” (T21 folio 178). He also reported that the Applicant suffered from Morbid Obesity and the chronic effects of a right ankle injury.
On 13 May 2013 the Applicant completed and lodged a Medical Report Disability Support Pension Review of Portability form (T14) and a Work Capacity Customer Information form (T15) in which he listed extensive symptoms and health issues.
On 12 July 2013, the Applicant participated in a Job Capacity Assessment conducted by an Accredited Exercise Physiologist ‘Kristy’ and a Registered Psychologist ‘Prenita’. The Assessment Report (T18) reveals that the assessors recommended impairment ratings of 5 points in respect of Mental Health Function, 0 points in respect of Lower Limb Function and 5 points in respect of Morbid Obesity – a total of 10 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables (T18 folios 167-168)).
The Applicant challenges this assessment on grounds that the assessors were not medically qualified, arguing that assessments by medical practitioners should be preferred. I accept that an assessment by a medically qualified doctor will carry more weight than an assessment by job capacity assessors who are not medically qualified doctors. That said, I do not reject the Job Capacity Assessment and will give it appropriate weight.
On 16 October 2013, Centrelink decided that the Applicant was not eligible for DSP on grounds that he did not meet the requirement for 20 impairment points (T22). The Applicant requested review of this decision, which was subsequently overturned on 17 November 2013. On review, it was accepted that the Applicant’s impairments justified a rating of 10 points under Table 5 in respect of mental health function and 10 points under Table 1 in respect of physical exertion and stamina functions (T40).
Curiously, throughout this period, and despite the cancellation decision, the Applicant continued to receive DSP payments. The Secretary conceded that the Applicant continued to receive DSP throughout the period presently under consideration from 1 July 2012.
On 17 December 2013, Centrelink decided that the Applicant was not eligible for indefinite portability of his DSP as he did not have a ‘severe impairment’ or 20 points under one Impairment Table (T27). The Applicant requested review and the matter was referred to an Authorised Review Officer.
On 20 December 2013 and 14 January 2014, Dr Gabb provided further reports (T28 and T29).
On 23 July 2014, the Authorised Review Officer decided to uphold the original decision denying eligibility for indefinite portability of DSP (T35).
On 13 October 2014, the SSAT affirmed this decision (T2), whereupon the Applicant applied for further review.
APPLICABLE LEGISLATION
The matter is to be decided under s 94, 1218AAA and 1218AA, if applicable, under the Act. Sections 1218AAA(1) and 1218AA(1) are in the following (relevant) terms:
1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
…
1218AA Unlimited portability period for disability support pension—terminally ill overseas disability support pensioner
(1) The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person’s absence from Australia is or will be permanent; and
(e) the purpose of the person’s absence is:
(i) to be with or near a family member of the person (see subsection 23(14)); or
(ii) to return to the person’s country of origin.
…
The Impairment Tables must be applied when determining whether the Applicant has a ‘severe impairment’.
ISSUES
The issue for determination is whether the Applicant was eligible for indefinite portability of his DSP under the portability rules set out in the Act.
In order to make this determination it is necessary to determine –
(a)the date or period when the Applicant’s eligibility is to be assessed;
(b)whether s 1218AAA is satisfied, and in particular whether the Applicant has a ‘severe impairment’;
(c)whether s 1218AA is satisfied, and in particular whether the Applicant is ‘terminally ill’; and
(d)whether any other relevant discretion exists that may be exercised to grant him indefinite portability of his DSP.
When is eligibility to be assessed?
The answer to this question is that eligibility for indefinite portability is to be assessed at the date of claim or request, and subsequently to the present.
The Secretary contends that the Applicant’s eligibility for indefinite portability is to be assessed presently. Support for this proposition is drawn from a recent decision of the Tribunal in Re Morton and Secretary, Department of Social Services [2014] AATA 949 (Morton’s case). In this case, the Tribunal (differently constituted) said at [48] –
The Secretary contends that the relevant date for the purposes of s 1218AAA(1) of the SSA is the date on which Mr Morton advised Centrelink that he was considering travelling overseas, namely 30 January 2013. This contention is based on what the Tribunal said in Scrivener and Secretary, Department of Social Services [2014] AATA 537 at [6]. I do not accept with this contention. There is nothing in s 1218AAA of the SSA, the other provisions of the SSA, associated legislation or relevant extrinsic materials to support this proposition. As the High Court made clear in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 103 ALD 467; BC200806838, subject to any indication to the contrary, the task of the AAT is to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision.
Noting the desirability of consistency in decision-making by the Tribunal, with respect, I do not entirely agree with the Tribunal in Morton’s case.
While I accept that there is nothing express in the legislation binding a decision-maker, or this Tribunal, to a particular point in time when determining the question of eligibility for indefinite portability of DSP, the particular nature of the decision to be made must be carefully considered (Shi v Migration Agents Registration Authority 235 CLR 286 at 301, per Kirby J).
Careful analysis of the legislative framework governing the grant of indefinite portability of DSP in circumstances such as those of the Applicant, leads me to conclude that determination of eligibility and the criteria against which this must be assessed requires consideration of the particular circumstances of the claimant from time to time. For this to be done, a claimant’s eligibility must be assessed and determined at the point of claim and, if circumstances change, subsequently.
The significance of this can be seen in retrospect. Take the example of a DSP recipient who intends travelling overseas for a period in excess of the allowable limit and requests grant of indefinite portability. If the request is denied and the person travels overseas, DSP would not be payable once the limit is reached. In the event that the person challenged the rejection decision and, on returning to Australia, obtained a favourable decision on review, perhaps months or even years later, he or she would be entitled to an arrears payment of DSP previously denied.
To my mind, issues of this kind that involve questions of qualification, entitlement or payability during periods in the past require decision makers on review to consider the merits of claim at the relevant and particular points in time – in the past. Failure to do so may render merit review of income support decisions ineffective for periods of time, and may lead to jurisdictional error.
Thus, I think that the correct construction is that the question of eligibility must be determined at the date of claim, applying the legislation then in force, and subsequently as circumstances demand. There is no barrier to the Tribunal considering a claimant’s eligibility for indefinite portability of DSP from the date of the claim or request that commenced the decision-making process leading to the application for review by the Tribunal up to the present, and to do so on the materials placed before it, whether or not those materials were before the original or intermediate decision makers.
This construction is consistent with several recent decisions of the Tribunal that bear to varying degrees on this point; see Re Scrivener and Secretary, Department of Social Services [2014] AATA 537, Re Goksu and Secretary, Department of Social Services [2014] AATA 752, Re Jones and Secretary, Department of Social Services 2014 [AATA] 885, Re Udrzal and Secretary, Department of Social Services 2014 [AATA] 232, Re Sukkar and Secretary, Department of Social Services 2014 [AATA] 480 and Re HMLS and Secretary, Department of Social Services 2014 [AATA] 693, for example.
As to the proposition tentatively advanced at hearing by the Secretary’s representative that the correct date to assess eligibility for indefinite portability is the date when the primary determination of claim was made, I do not agree. I see no reason why this should be so. As with many kinds of income support decisions concerning qualification, entitlement or payability, an assessment should be made at the time of claim, or such date as the legislation requires (or allows) – see s 11 of the Social Security (Administration) Act 1999 and related provisions of this Act dealing with start date rules.
Thus, in the present case, the Applicant’s request for indefinite portability must be determined on the day the request was made, and subsequently, in view of changing circumstances, if it is necessary to do so.
The Centrelink records in evidence show that the Applicant requested indefinite portability on 19 December 2012. Even though the Applicant cavils with this date – he suggests an earlier date, but could not be specific – this is the date of the request that commenced the process of decision-making and review that has led to the present proceedings.
Does the Applicant have a ‘severe impairment’?
The Applicant was originally assessed as having a mental impairment of 20 points under a single Table and contends that this should apply in respect of his eligibility for indefinite portability. Furthermore, he says that his mental health and morbid obesity and other impairments as of 2012, when he first requested indefinite portability, are severe impairments. And additionally, he maintains that he is so impaired, and so needy, that it would be unjust and unfair to deny him indefinite portability so that he can visit his adopted family members and obtain dental treatment in the Philippines.
I am sympathetic to the Applicant’s plight. His case is most unfortunate, not simply because of his various impairments and ill-health, but also because of the way in which the law operates in the particular circumstances. But his submissions are not made out on the present evidence. He does not meet the test for ‘severe impairment’.
The Applicant was originally assessed for DSP in 2003. The assessment was made under the legislation in force at that time including the pre 2012 Tables. The legislation has been amended and it must be applied as it stands at the time of determining his eligibility for indefinite portability and, if necessary, at the time he made claim for grant of indefinite portability.
For the purposes of s 1218(1)(b) an assessment of ‘severe impairment’ is to be made with reference to s 94(3B) -
Severe impairment
94(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
The rules set out in the Impairment Tables must be followed when determining whether a person has a ‘severe impairment’ for the purposes of s 94(3B) of the Act.
As can be seen, the definition of ‘severe impairment’ does not make provision for a whole person approach to impairment, whereby different impairments might be combined when deriving an overall impairment rating. The definition proceeds in a singular manner in respect of impairments, and it requires the 20 point threshold to be met under a single Table. This is so even in cases such as this, where the person meets the legislative tests for grant of DSP, having psychological, mental or physical impairments rated at 20 or more points under the Impairment Tables with no continuing ability to work.
In order to determine whether the Applicant has a severe impairment with a rating of 20 or more points under a single Table it is necessary to assess his conditions and impairments at the appropriate time – as of 19 December 2012 and subsequently.
Under the Determination, a rating can only be given to impairments that are the result of ‘permanent’ conditions that are fully diagnosed, treated and stabilised, and that are likely to persist for more than two years.
It is quite clear from reports prepared by Dr Gabb and other medical practitioners that the Applicant suffered from multiple ailments in 2013 - paranoid schizophrenia, asplenia, chronic post-traumatic osteoarthritis of the right ankle, hypertension, impaired glucose tolerance, chronic leg dermatitis, migraine, moderate to severe sleep apnoea, lumbo-sacral disc disease with chronic pain, and a reductible indirect right inguinal hernia were reported (T19, T20, T23, T25 and T26). The medical evidence, including documents filed after the hearing by the Applicant, reveals that some of these conditions have a long history.
The Applicant argued that smoking is a condition in the form of drug or substance use.
I will consider each of these conditions.
Paranoid schizophrenia
There is no dispute that this condition is ‘permanent’ and likely to continue for more than two years. It was first diagnosed and treated in or about 2002. Related functional impairments can be assessed under Table 5 of the Impairment Tables.
On 23 April 2013, Dr Gabb reported “No current symptoms of psychosis” (T21 folio 178). It appears that this condition was reasonably well managed under treatment with Risperdal.
The Applicant gave evidence about his symptoms, including paranoid delusions, difficulty concentrating, memory difficulties, difficulty maintaining social contacts and interacting with people, and difficulty independently managing his affairs.
I accept that he experiences difficulties with mental health symptoms and the side effects of medications from time to time. I note references to Duramine and Tramadol in the evidence.
That notwithstanding, the Applicant lives alone and travels, alone, to the Philippines to visit family members and in order to obtain cheap dental treatment. I accept his evidence that he is reticent about social contact, and that he has no friends, but for one person in Victoria, and no family support. I also accept his evidence that he makes special arrangements when travelling, such as using taxis, utilising medical records to facilitate quick passage through airport facilities, and staying in familiar hotels when abroad in the Philippines.
He told me that he is assisted by home care services to undertake most household duties and gardening. Nevertheless, he does his own shopping and arranges his medical affairs, including consultations, prescriptions and medications, although he complained about forgetting whether he had taken his medications from time to time.
The present evidence does not establish that he has ‘severe difficulties’ with ‘most’ of the activities listed at (1)(a) to (f) in respect of 20 points of Table 5.
By his own account he is capable of living independently. He lived with his mother until she died and now benefits from visits by home care support workers. The present evidence does not establish that he ‘needs’ this support ‘at least twice a week’ in order to live independently. He told me that he is somewhat reluctant to accept the home visits as others are more needy than him. I have no doubt that the Applicant finds the visits by home care support workers beneficial, but his ‘need’ for these visits is not established by the medical or other reliable evidence.
Quite evidently, the Applicant travels alone to Wyong, Sydney and the Philippines. He says that he only travels to places that are familiar, where he has been before. To some extent that may be true, but this is not what is meant by ‘familiar areas’ in Table 5. The examples given are ‘the local shops and other familiar venues’. To my mind, that does not include the Sydney International Airport or the various places and facilities the Applicant attends in the Philippines. Staying in the same hotel in Manila, where he feels comfortable, or being familiar with the Philippines after travelling there for many years, do not meet the tests for ‘severe functional impairment’. I accept that the Applicant undertakes few social or recreational activities.
As I have said, I accept that the Applicant has limited social contact and experiences difficulty with interpersonal relationships. Even though there is scant evidence that the Applicant requires assistance from others to arrange social contacts or to facilitate social interactions in his daily life, I would accept that the Applicant has moderate to severe difficulty with interpersonal relationships.
As to difficulties with concentration and task completion, the Applicant impressed me with his ability to concentrate and follow the hearing over many hours without much difficulty, albeit that several short breaks were requested and the Applicant told me that he found it difficult to understand some of the technical issues. It may be that the Applicant is slow to complete some tasks, but his difficulty with task completion is not severe.
I am satisfied that the Applicant’s difficulty with behaviour, planning and decision-making is not severe. His ability to plan and make decisions is amply demonstrated by his strategic approach to managing his transit through airports, booking flights and arranging medical appointments.
On balance, weighing all of the evidence, I am satisfied that he has ‘moderate difficulties with most of’ the activities listed in respect of the 10 point rating under Table 5. His paranoid schizophrenia does not warrant a 20 point rating under Table 5 and this means that it does not meet the ‘severe impairment’ test.
Chronic post-traumatic osteoarthritis of the right ankle
Once again, there is no dispute that this condition is permanent and likely to continue for more than two years. I note Dr Billett’s report in Exhibit A2 and reports by Dr Endrey-Walder.[1] Functional impairments resulting from this condition can be assessed under Table 3.
[1] See T6 for example.
On the present evidence, despite the Applicant’s assertions to the contrary, the function impairments resulting from this condition do not meet the tests applying to a ‘severe functional impact’. The present evidence does not establish that he is ‘unable’ to walk around a supermarket without assistance, and that he is ‘unable’ to walk from a car park into the supermarket without assistance, and that he is ‘unable’ to stand up from a sitting position with assistance. Each of these tests must be met for a 20 point rating under Table 3. The Applicant’s own evidence is that he can, and he does, undertake these activities by himself, albeit with some difficulty.
I am satisfied that the Applicant’s right ankle condition does not warrant a rating of 20 points under Table 3. This means that his right ankle condition and related impairment does not meet the ‘severe impairment’ test.
Asplenia
On the present evidence the Applicant’s asplenia condition is permanent and likely to continue for at least two years. But this condition does not cause functional impairment sufficient to warrant a rating greater than 0 points under the Impairment Tables.
Hypertension
The present evidence is insufficient to determine whether the Applicant’s hypertension condition is permanent and likely to continue for at least two years. The scant references to this condition suggest that it does not cause functional impairment sufficient to warrant a rating greater than 0 points under the Impairment Tables.
Impaired glucose tolerance
The present evidence is insufficient to determine whether the Applicant’s impaired glucose tolerance condition is fully diagnosed, treated and stabilized, or that it is permanent and likely to continue for at least two years. There are but scant references to this condition in the materials before me. I accept that it may cause some functional impairment from time to time, but this cannot presently be rated under the Impairment Tables.
Chronic leg dermatitis
I am not able to determine, on the present evidence, whether the Applicant’s chronic leg dermatitis condition is fully diagnosed, treated and stabilized, or that it is permanent and likely to continue for at least two years. The extent of any functional impairment this condition may cause is not presently clear and cannot presently be rated under the Impairment Tables.
Migraine
I accept that the Applicant suffers from headaches or migraine from time to time. The present evidence is not sufficient to establish whether this condition is permanent and likely to persist for more than two years. For this reason, it cannot be rated under the Impairment Tables.
Asthma
The evidence establishes that the Applicant’s asthma condition is reasonably managed with Ventolin puffer treatment. It appears probable that the breathlessness he experiences may be multifactorial, and attributable, in part at least, to smoking. Even if I accept that it is permanent and likely to continue for two years, which is probable, the present evidence does not permit the extent of any resulting functional impairment to be assessed with any degree of clarity or certainty.
Doing the best with the available materials, I am satisfied that the Applicant’s asthma impairment does not have a ‘severe impact on activities requiring exertion or stamina’ such that it would attract a rating of 20 points under Table 1. No such conclusion is made out on the present evidence.
The Applicant’s asthma does not meet the ‘severe impairment’ test.
Moderate to severe sleep apnoea
The evidence in respect of the Applicant’s sleep apnoea condition reveals that this condition was being investigated in 2013[2] and treated as recently as 12 February 2015.[3] The present evidence does not establish that this condition has yet been fully treated and stabilized. Even if that was established, the present evidence of functional impairment attributable to this condition is not sufficient to allow a meaningful assessment to be made. It is not established that this condition attracts a rating of 20 or more points under a single Table.
[2] T20.
[3] Exhibit A2
Lumbosacral disc disease with chronic pain
I accept that the Applicant suffers from chronic back pain. The evidence of Dr Gabb confirms this is so. Unfortunately for the Applicant, however, the present evidence (including the voluminous materials he filed after the hearing) does not establish that this condition has been fully diagnosed, treated and stabilised, such that it can be considered permanent and likely to persist for more than two years, for the purposes of the Impairment Tables. Even if it was to be accepted as permanent, the medical and other evidence does not support a rating of 20 points under a single Table.
Reductible indirect right inguinal hernia
I am not able to determine, on the present evidence, whether the Applicant’s inguinal hernia condition is fully diagnosed, treated and stabilized, or that it is permanent and likely to continue for at least two years. The extent of any functional impairment this condition may cause is far from clear and cannot presently be rated under the Impairment Tables
Morbid obesity
There is ample evidence that the Applicant suffers from morbid obesity. On 14 January 2014, Dr Gabb reported:
“I see little realistic possibility of your condition improving unless you underwent some sort of bariatric surgery.”[4]
[4] T29.
It appears that no such treatment has been obtained for this condition. I understand there may be issues of affordability and access under the public health system. Once again, there is only scant evidence about treatment for this condition. Presently, I am unable to determine that the condition is fully treated and stabilised, and permanent for the purposes of the Impairment Tables. It cannot, therefore, be rated under the Impairment Tables.
Smoking
While the Applicant had much to say about his smoking and his addiction to nicotine, I am not persuaded that smoking tobacco is a ‘medical condition’ in the form of an ailment or a ‘disorder’ for the purposes of the Impairment Tables and s 94(3) of the Act.
That said, I accept that smoking tobacco may cause medical conditions of various kinds that would rise for assessment if established by evidence, and that tobacco and nicotine may be within the meaning of ‘harmful substances’ for the purposes of Table 6. It follows that addiction to nicotine may be capable of assessment under Table 6. For this to occur it is necessary to establish that the Applicant has a permanent condition resulting in functional impairment that results from excessive use of nicotine or a nicotine addiction disorder. On the present evidence, these tests are not met by medical evidence from a appropriately qualified medical practitioner. Dr Gabb’s references to the Applicant’s smoking do not establish the existence of a permanent condition or a disorder that has been fully diagnosed, treated and stabilised.
Conclusion
As can be seen, the Applicant does not have an impairment that attracts a rating of 20 or more points under a single Table. This was so at the time he made claim for indefinite portability in 2012 and it is still so now on the evidence before me.
This means that he does not have a ‘severe impairment’ for the purposes of s 94(3) of the Act.
The Applicant’s argument that the original assessment made under Impairment Tables set out in Schedule 1B of the Act as it stood in 2003 should be applied has no merit. The Applicant’s impairments must be assessed at the time he made claim and subsequently. The assessment must be made under the legislation in force at the time, applying the Determination made for that purpose.
It follows that s 1218AAA of the Act is not satisfied.
TERMINALLY ILL
I will deal briefly with s 1218AA. This was not seriously pressed and it was not agitated at hearing by the Applicant. I am satisfied that the Applicant is not ‘terminally ill’ for the purposes of this section. While it can be accepted that smoking and some of the conditions from which he suffers, such as morbid obesity and hypertension, might reduce his life span and may, ultimately, contribute to his death, it does not follow that he is terminally ill. Such a broad conception of terminal illness might include many ailments that may, ultimately, contribute to death, albeit that a terminal state has not been reached. By extension, a broad meaning of this kind could be said to include life itself from the moment of birth, whereby each one of us is rendered mortal. Plainly enough, that is not what the legislation intends.
The evidence before me does not establish that the Applicant is in the last stages, or even the advanced stages, of a terminal illness, or this he was terminally ill in the latter part of 2012 or subsequently.
It follows that s 1218AA is not satisfied.
GENERAL DISCRETION
There is no general discretion available to the Secretary, or to the Tribunal in those shoes, to grant indefinite portability in circumstances outside the rules governing portability of DSP.
CONCLUSION AND DECISION
The Applicant does not meet the requirements for indefinite portability of DSP as of the date he first claimed indefinite portability in 2012 or subsequently to the present.
It follows that the decision under review must be affirmed.
I certify that the preceding 87 (eighty -seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ...............................[sgd].........................................
Associate
Dated 7 July 2015
Date(s) of hearing 29 April 2015 Date final submissions received 17 June 2015 Applicant By phone Solicitors for the Respondent Department of Human Services
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