Bucknell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 757 (27 August 2008)

Last Updated: 28 August 2008

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 757

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5901

GENERAL ADMINISTRATIVE DIVISION		)
	Re		NIGEL SHELDON BUCKNELL

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: Dr Kerry Breen, Member

Date: 27 August 2008

Place: Melbourne

Decision: The decision under review is affirmed

(sgd) Kerry Breen
Member

SOCIAL SECURITY – disability support pension – head injury leading to permanent disability – date of claim for DSP – date of qualification for DSP – whether condition stabilised

Social Security Act 1991 ss 94(1), (2) and Schedule 1B

Social Security (Administration) Act 1999 ss 11-13, 16, 41, 42 and Schedule 2

REASONS FOR DECISION

27 August 2008

Dr Kerry Breen, Member

1. Mr Nigel Bucknell, who is 35 years old, was transferred from Newstart Allowance (NSA) to Disability Support Pension (DSP) by Centrelink on 10 November 2006, effective from 25 September 2006. He requested that the start date for DSP be backdated to an earlier date as he believed that a DSP claim form had been lodged on his behalf at the time his medical condition was treated. This request was rejected by a Centrelink authorised review officer and that rejection was affirmed by the Social Security Appeals Tribunal on 12 November 2007. He now appeals that decision to this Tribunal.
2. Mr Bucknell was the victim of an assault in December 2005 which caused serious head injury, requiring neurosurgery at the Alfred Hospital where he was an inpatient from 9 to 21 December 2005. On 1 February 2006 his general practitioner, Dr S Adad, completed a treating doctor’s report (TDR) and on 30 August 2006, Dr D Coulthard completed another TDR. Based on Dr Coulthard’s TDR, Centrelink arranged for Mr Bucknell to undergo a job capacity assessment (JCA). The assessment was conducted by Ms J Roberts, Job Capacity Assessor, on 25 September 2006 and she found that he was unfit for work. It was on the basis of the JCA report that Centrelink determined that Mr Bucknell now qualified for DSP.
3. An additional basis for Mr Bucknell’s appeal is his belief that his medical condition at the time of the JCA was no different to his condition when he was discharged from the Alfred Hospital in December 2005.
4. Mr Bucknell did not appear at the Tribunal in person at the scheduled hearing time but the Tribunal was able to contact him by telephone and he was able to participate in the hearing by telephone.

THE ISSUES

5. The issues before me are therefore:

• was a claim for DSP lodged at any time between December 2005 and September 2006; and
• if a claim or a deemed claim for DSP existed during those months, did Mr Bucknell qualify for DSP at any of those times?

THE LEGISLATION

6. The relevant legislation is to be found first in the Social Security (Administration) Act 1999 (the Administration Act) in sections 11, 12, 13, 16, 41 and 42. It provides three ways by which a person may be granted DSP. They are:

(a) where a DSP claim is lodged on the form provided by Centrelink;

(b) where contact is made with Centrelink by or on behalf of a person seeking DSP, and the person being qualified for DSP on the day of contact, is given a written notice acknowledging that contact, and the person then lodges a written claim; and

(c) where a person is already receiving an income support payment such as NSA and while receiving that payment becomes qualified for DSP, then the person is deemed to have made a claim from the day on which they became qualified.

7. The relevant legislation is also found in s 94(1) of the Social Security Act 1991 (the Act), in the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Act and in Schedule 2, sub-clause 4 of the Administration Act.
8. Section 94(1) of the Act relevantly provides:

(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;
...

9. The Introduction to the Impairment Tables in Schedule 1B of the Act provides as follows:

...

4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence, Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

10. The meaning of continuing inability to work is set out in s 94(2) of the Act. It provides:

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

(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

THE FACTS

11. Amongst the material held by the respondent is a Centrelink reconsideration/ referral document completed by a Centrelink officer on 16 November 2006. That document contains the following hand-written note: customer had lodged a TDR with PA on 30/8/06 and feels that DSP should have been granted from that date... However, before me, Mr Bucknell insisted that he was seeking backdating of the DSP to the date of his discharge from the Alfred Hospital in December 2005.
12. The records of the Alfred Hospital show that Mr Bucknell was transferred there from the Goulburn Valley Hospital on 9 December 2005. He was seriously ill, with evidence of a left temporal depressed fracture of the skull and left temporal lobe intracerebral haemorrhage. He underwent surgery on 9 December 2005 to elevate the fracture and evacuate the haemorrhage.
13. In Centrelink’s records there is documentation that on 16 December 2005, a hospital social worker notified Centrelink of Mr Bucknell’s admission to hospital. The records also show that a hospital social worker contacted Centrelink on 20 December 2005 regarding Mr Bucknell’s NSA and informed Centrelink that a medical certificate would be provided.
14. After his discharge Mr Bucknell was referred to the Alfred Neuropsychology Service where he was seen by Dr S L Collinson, senior neuropsychologist, on 9 January 2006. The one page report concludes: Opinion Mr Bucknell has made a good recovery with minimal impairment in cognition.... there are no specific concerns with regard to his return to driving or work.
15. On 1 February 2006 Dr Adad completed a TDR. In answer to the question re future/planned treatment Dr Adad wrote, wait longer to assess his recovery, and in answer to the question re the current impact of his condition on ability to function, Dr Adad checked the box 3-24 months.
16. On 30 August 2006 Dr Coulthard provided a further TDR which noted the assault and its aftermath. The report described severe short term memory problems, ?personality changes ?epilepsy. On receipt of this report, Centrelink arranged a JCA which was undertaken by Ms Roberts on 25 September 2006 and resulted in Mr Bucknell being found unfit for work. Centrelink then transferred him to DSP pursuant to s 12 of the Administration Act.
17. Mr Bucknell has been reviewed from time to time by the Department of Neurosurgery at the Alfred Hospital, including on 27 June 2006 and 8 August 2006. The report of 27 June by Dr A Mujic, Registrar to the Department of Neurosurgery at the Alfred Hospital, states According to his friend he is the stage where he cannot do safely his activities of daily living. A further CT scan of his brain was arranged and at the subsequent visit on 8 August, the medical officer noted his latest CT brain which largely shows encephalomalacia on the left frontotemporal lobe. The same report states he did well post-operatively. The report recommended that he see a neurologist in Shepparton and it would be important for him to get a Neuro-Psychological assessment at some stage.

THE CONTENTIONS

18. Mr Bucknell contends that he was told by a social worker that a DSP application was made on his behalf at around the time he was in the Alfred Hospital. He further contends that he was told by a Centrelink staff member that such a claim had been lodged. He also claims that his current degree of disability is the same as when he was discharged from hospital.
19. The respondent contends (in summary) that there is no evidence of a DSP claim ever being lodged on behalf of Mr Bucknell. The respondent also contends that based on the available medical evidence including the TDR from Dr Adad in February 2006, Mr Bucknell would not at that time have satisfied the criteria for DSP laid down in s 94(1) of the Act.

CONSIDERATION

20. It is clear that Mr Bucknell experienced a serious head injury which has now caused him long term incapacity. This is evidenced by the TDR provided by Dr Coulthard in August 2006 where he wrote severe short term memory problems, ?personality changes ?epilepsy. It is also supported by the report of Dr Mujic, who wrote on 27 June 2006: According to his friend he is at the stage where he cannot do safely his activities of daily living. When Ms Roberts assessed Mr Bucknell in person for a JCA on 25 September 2006, she recorded Symptoms now include (Short term memory loss, the need to constantly write things down, slow speech, poor concentration, difficulty recalling information, visual hallucinations, episodic headaches and dizziness, poor sleep, episodic epileptic type seizures with loss of consciousness).
21. It is less clear when Mr Bucknell’s incapacity became so severe as to prevent him working. In his oral evidence before me, he stated that he was warned by his surgeon at the time of his discharge from hospital in words to the effect that his good recovery so far may not be maintained in the future. He was seen by Dr Collinson soon after discharge from the Alfred Hospital on 9 January 2006. Mr Collinson reported that Mr Bucknell has made a good recovery with minimal impairment in cognition.... There are no specific concerns with regard to his return to driving or work. His local medical practitioner Dr Adad prepared a TDR on 1 February 2006, which specifically states wait longer to assess his recovery and lists his symptoms then as including headaches, dizziness, occasionally some visual disturbances (scotoma), poor concentration. This is not the picture as seen by Dr Mujic in June 2006 nor as seen by Ms Roberts in September 2006. I must presume that there was considerable worsening of Mr Bucknell’s health between January 2006 and September 2006 but in the absence of any other contemporaneous medical reports it is not possible to determine when the decline commenced and at what rate.
22. I am satisfied that I have had made available to me all the relevant Centrelink files and I can find no mention of an application for DSP in these files and computer records. There is evidence of over twenty contacts with Centrelink by Mr Bucknell or on his behalf between March and September 2006 about matters including NSA and urgent access to funds. Given the frequency of this contact, it would seem to me to be highly improbable that a DSP claim was either lodged or discussed without any record being made.
23. I am also satisfied that Mr Bucknell was not advised by any Alfred Hospital staff member to apply for DSP. I am so satisfied because there is no record of this in his patient record, while there are Centrelink records of the hospital staff providing him with assistance with continuation of NSA including the provision of a medical certificate. In addition, in the light of Mr Bucknell’s firm belief that a DSP claim had been lodged, I adjourned the hearing with a Direction to Centrelink to obtain a written report from the social worker Ms K Muir, who had been involved in assisting Mr Bucknell at the Alfred Hospital. Her report to the Tribunal, dated 6 June 2008, confirmed that no such claim had been made. She also stated that it would be unusual to provide advice to make a DSP claim in the acute hospital setting.
24. In the absence of a finding that a claim for DSP was ever made, there are no legal grounds for Mr Bucknell having his DSP backdated. In this situation I am not obliged to consider Mr Bucknell’s eligibility for DSP at any date before September 2006. However, for completeness and to assist Mr Bucknell to understand the application of the law in his case, I have carefully examined the medical information available at earlier dates. I can find no support for the claim that he should have received DSP from the time of his discharge from hospital. As mentioned above, I note that Dr Adad wanted to wait longer to see what might transpire with his health. Carrying more weight in my view was the assessment made by a senior neuropsychologist at the Alfred Hospital on 9 January 2006, which concluded that Mr Bucknell has made a good recovery with minimal impairment in cognition.... There are no specific concerns with regard to his return to driving or work.
25. On the basis of this evidence, I conclude that Mr Bucknell did not meet the legislative requirements for DSP at the time of his discharge from the Alfred Hospital.
26. I have also turned my mind to whether his DSP should be backdated to 30 August 2006, being the date of the TDR prepared by Dr Coulthard, which was the report that prompted Centrelink to arrange the JCA. Absent any knowledge of what the JCA was going to find, I do not believe that there is sufficient information in the TDR alone to satisfy either an impairment rating of 20 points under the Impairment Tables or a finding of a continuing inability to work. As already identified, Dr Coulthard reported severe short term memory problems, ?personality changes ?epilepsy. Dr Coulthard did not complete Question C in Part A of the TDR form, which asked that he be specific in indicating the severity of the medical condition. He did report that Mr Bucknell was awaiting assessment by a neurologist and neurosurgeon.

DECISION

27. For all the above reasons I affirm the decision under review.

I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Kerry Breen, Member

Dianne Eva

Clerk

Date of hearing: 6 May 2008

Date of decision: 27 August 2008

Advocate for the applicant: self-represented

Advocate for the respondent: Ailsa Bramley, Centrelink Legal Services Branch