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

[2015] AATA 871

ZPRR and Secretary, Department of Social Services (Social services second review) [2015] AATA 871 (12 November 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0937
Re	ZPRR
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member Sandra Taglieri
Date	12 November 2015
Place	Perth

The Tribunal affirms the decision under review.

....(Sgd) S Taglieri....................................................................

Member Sandra Taglieri

Catchwords

SOCIAL SECURITY - Disability Support Pension - whether applicant has severe impairment – participation in a program of support - no impairment attracting 20 point rating - whether applicant has a continuing inability to work - Decision affirmed

Legislation

Social Security Act 1991- s 94(1), s 94(1)(c), s 94(2), s 94(2)(aa), s 94(3B), s 94(5)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension Determination 2011- Part 2

Secondary Materials

Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension

REASONS FOR DECISION

Member Sandra Taglieri

12 November 2015

INTRODUCTION

1. This application concerns a decision of the Respondent made on 14 November 2013 (“Original Decision”) to refuse a Disability Support Pension (“DSP”) to the Applicant.

2. The Applicant sought DSP on 25 July 2013[1] and when it was refused, she sought a review by the Respondent’s Authorised Review Officer and then the Social Security Appeals Tribunal (“SSAT”), both who affirmed the Original Decision.

   [1] T20

3. A hearing of this application occurred on 1 October 2015. The T documents were received into evidence by consent of the parties. The Applicant gave evidence and was cross-examined also.

   THE LAW

4. The prerequisites for eligibility for DSP are contained in section 94(1) of the Social Security Act 1991 (Cth) (“the Act”). Amongst other requirements, there are two mandatory requirements, being that:

   (a)the Applicant must satisfy the criteria for 20 impairment points according to the Impairment Tables forming part of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”); and

   (b)the Applicant must have a “continuing inability to wok”, as provided for in section 94(2) of the Act.

   THE COMPETING CONTENTIONS OF THE PARTIES

5. During the course of the hearing, the Applicant clarified that her case involved the contention that she satisfied the criteria for 20 impairment points under a single table, being Table 1. She argued that following from that in order to meet the “continuing inability to work” requirement, she did not have to participate in a Program of Support for 18 months prior to her application for DSP, because she had a “severe impairment”.[2]

   [2] Section 94(2)(aa) and Section 94(3B) of the Act

6. The Applicant conceded that prior to applying for DSP on 25 July 2013. She had not participated in any program of support whatsoever, within the meaning of that phrase which is contained in section 94(5) of the Act and Part 2 of the Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011.

7. Although she conceded no participation in a program of support prior to 25 July 2013, she claimed that she was assessed unsuitable for it and required Disability Employment Services. This argument misconceives the issue, as participation in a program of support can be satisfied by participating in services provided by specialist disability services providers. In any event, it does not alter the fact that there had been no participation in a program of support, which is a mandatory requirement if she did not have a severe impairment.

8. Further, non-participation in a program of support was explained by the Applicant by the fact she had been wholly supported by her husband in the past, so had not previously sought Centrelink benefits. This would provide a reason for non-participation but would not excuse non-participation and the inescapable conclusion, that the essential requirement of section 94(2) of the Act had not been satisfied, if she did not qualify for “severe impairment”.

9. The Respondent’s contentions were that:

   (a)the Applicant did not have a severe impairment, i.e.) 20 points under Table 1 of the Determination; and

   (b)all other medical conditions from which the Applicant suffered were well managed and caused limited or minimal impact on function, so that they did not attract any points under the Determination; and

   (c)if the Applicant’s medical conditions did qualify for 20 impairment points or more under the Tables in the Determination, she was still ineligible for DSP. This being because she did not satisfy the continuing inability to work test, which required active participation in a program of support for 18 months (within 36 months) prior to making application for DSP.[3]

   [3] Part 2 of the Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension)- Determination 2011

   THE EVIDENCE AND WHAT IT ESTABLISHES

10. There was a lot of detailed medical evidence about the Applicant’s medical conditions. This was all contained in the medical reports in the T Documents, and consisted of at least 20 medical reports. [4]

    [4] T3, T4, T5, T6, T7, T8, T9, T10, T11, T12, T13, T14, T15, T16, T19, T26, T27, T28, T32, T33

11. It is unnecessary to repeat the detail of the medical evidence before the Tribunal. It is uncontested and establishes that the Applicant suffers from permanent medical conditions, being:

    (i)a serious respiratory condition causing pulmonary hypertension which also involved cancer to her lung, requiring removal of part of the lungs.

    (ii)Left and right shoulder injuries, which required surgery in 2009, with resulting pain.

    (iii)Musculo-ligamentous injuries to the neck, back and upper limbs also suffered in 2009 in a car accident, with resulting pain.

    (iv)Chondromalacia of both knees.

    (v)Gastro-oesophageal reflux.

    (vi)Hyperthyroidism, Graves Disease.

    (vii)Sleep apnoea.

    (viii)Allergy, rhinitis.

12. The effects on function caused by these conditions is also well established by the medical reports and they are largely consistent with the evidence the Applicant gave about how the conditions affected her.

13. Condition (i) (refer to paragraph 11 above), falls to be considered under Table 1, as do conditions (vi), (vii) and (viii) (refer to paragraph 11 above). Because these conditions cause common and combined impairments, it is only permitted to assign one single impairment for all the conditions.[5]

    [5] Section 10 of the Determination

14. The Tribunal accepts the medical evidence from the treating GP and specialists that Condition (i) (refer to paragraph 11 above) has a significant impact on the Applicant’s ability to function.[6] The described effects of this condition are mainly on endurance and movement due to shortness of breath, dizziness, wheeze, cough and tiredness.

    [6] Page 61 of T documents, Dr D Peter, Page 135 to 144 of T documents, Dr Pritchard, Page 56 of T documents and Exhibit A1, Dr Bhagat

15. Conditions (vi), (vii) and (viii) (refer to paragraph 11 above) are all conditions which cause similar symptoms of tiredness, lack of concentration, fatigue, endurance, movement and general discomfort. The symptoms occur in common and relate to functional impacts covered by Table 1. The Applicant’s written closing submissions of 26 October 2015 do not contend otherwise. The effects of these symptoms are in common with the symptoms discussed for condition (i) relating to the lungs and pulmonary hypertension. As such, they cannot be counted twice, but need to be considered overall and one allocation of points made under Table 1.

16. Applying this principle and evaluating all the evidence, I am not persuaded that the Applicant qualifies for 20 impairment points under Table 1. I am satisfied that the combined and total function impact of conditions (i), (vi), (vii) and (viii) (refer to paragraph 11 above) qualify for 10 impairment point. The evidence best correlates with the descriptors for 10 points because the Applicant experiences frequent symptoms of shortness of breath, fatigue and has difficulty performing most activities, including day to day activities as well as shopping, appointments and attending TAFE. Although she has difficulty doing such things, I am not persuaded that she is unable to do the functions listed under the section for 20 points in Table 1.

17. There is a distinction between doing the activities with considerable difficulty and it therefore taking longer, and not being able to do the activities at all. It is only an inability to do the activities at all without a person assisting that attracts the 20 points. The evidence does not establish that the Applicant is unable to do the activities described under 20 points without assistance. It establishes that she can do them with difficulty but takes longer and sometimes, but not always has assistance.

18. In relation to conditions (ii), (iii) and (iv) (refer to paragraph 11 above), the medical evidence does support significant impacts on function. It evidences pain and also an impact on endurance and movement/dexterity. The medical reports corroborate the evidence given by the Applicant, but the Tribunal is again required to evaluate which descriptors in the tables for upper and lower limb impairment and spinal impairment best fit and apply.

19. Having carefully considered the evidence in its entirety, I have concluded that the Applicant qualifies for 5 points under Table 2, 5 points under Table 3 and 5 points under Table 4. In arriving at this conclusion, I have been mindful of focusing on the functional limits that are caused by the relevant conditions. The effects of fatigue caused by pain experienced from these conditions is in common with the functional impacts caused by other medical conditions and ought not be counted twice.

20. Functional impact (if any) arising from condition (v) (refer to paragraph 11 above) is to be assessed under Table 10. The effect of the evidence does not persuade me that there is anything other than a limited impact on an intermittent and temporary basis caused by the gastro-oesophageal condition. It is managed and although it causes some discomfort at times, I am not convinced that it interferes with function in the manner described for allocation of 5 points. I do not allow any points under Table 10 for condition (v) (refer to paragraph 11 above).

21. Finally, there was some evidence given by the Applicant about the effect of medications on her function. In her written submissions of 26 October 2015, the Applicant referred to Brain Function and Table 7, but did not go so far as to claim any specific points under the Table. Table 7 will only allow points to be allocated if there is a permanent medical condition which causes functional impact from a neurological or cognitive deficit and there is no justification for allowing any points under Table 7 on the evidence before the Tribunal.

22. While the Tribunal accepts that the medications taken by the Applicant may affect her concentration, this does not appear to be something that is directly recognised and allowed for in the Impairment Tables.

23. The Applicant’s permanent medical conditions warrant allocation of a total of 25 impairment points under the Impairment Tables and the Determination. As I have not allocated 20 points under a single table, the Applicant does not have a severe impairment within the meaning of the Act.

    DID THE APPLICANT SATISFY THE CONTINUING INABILITY TO WORK REQUIREMENT?

24. The provisions of the Act are clear and mandatory. In every case where impairment is 20 points or more, the Applicant must also persuade the Tribunal that the “continuing inability to work” requirements are satisfied, unless at least 20 points are assigned under a single table.[7] It follows that in order to qualify for receipt of DSP within the 13 weeks from claiming, the Applicant must satisfy the requirements of having a continuing inability to work, including participation in a program of support.

    [7] Section 94(1)(c)(i) and section 94(2) and section 94(3B) of the Act

25. As referred to in paragraph 5 above, in order to satisfy “a continuing inability to work”, there needs to be participation in a program of support for 18 months within 36 months, prior to applying for DSP.  As the Applicant has conceded that she did not participate in a program of support at all, before applying for DSP, regardless of the reasons for that, she cannot satisfy this requirement.

    CONCLUSION

26. Although the Tribunal is persuaded that at the relevant time[8], the Applicant had permanent medical conditions which amounted to 25 impairment points in total, she does did not qualify for DSP because she did not satisfy the requirements of continuing inability to work.

    [8] Within 13 weeks of her application for DSP

27. Since first applying for DSP, the Applicant has participated in a program of support and may, subject to what has occurred since 2013, be able to now quality for DSP. The Applicant could explore with the Respondent whether she would now be eligible by making enquiries with the Respondent and if warranted, making a new application for DSP.

    DECISION

28. For the above reasons, the Tribunal affirms the SSAT Decision.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Member Sandra Taglieri

...(Sgd) A Tran.....................................................................

Administrative Assistant

Dated 12 November 2015

Date of hearing	1 October 2015
Applicant	In person
Representative for the Respondent	Ms S Yik Long
Solicitors for the Respondent	Australian Government Solicitor