AustLII Home | Databases | WorldLII | Search | Feedback

Administrative Appeals Tribunal of Australia
You are here:  AustLII >> Databases >> Administrative Appeals Tribunal of Australia >> 2017 >> [2017] AATA 1994

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Context | No Context | Help

Kearney and Secretary, Department of Social Services (Social services second review) [2017] AATA 1994 (4 October 2017)

Last Updated: 1 November 2017

Kearney and Secretary, Department of Social Services (Social services second review) [2017] AATA 1994 (4 October 2017)

Division: GENERAL DIVISION

File Number(s): 2016/6406

Re: Louise Kearney

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Senior Member A Poljak

Date: 4 October 2017

Place: Sydney

The reviewable decision of the Social Security and Child Support Division of this Administrative Appeals Tribunal dated 17 November 2016, is set aside and in substitution, the Tribunal finds that the applicant satisfied subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) at the date of cancellation on 10 June 2016.

........................[sgd].............................................

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – whether applicant qualified at date of cancellation – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant's conditions were fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – continuing inability to work – decision set aside

LEGISLATION

Social Security (Administration) Act 1999 (Cth) Sch 2, ss 42 ss 63 and 80

Social Security Act 1991 (Cth) ss 26, 27 and 94

SECONDARY MATERIALS

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

Social Security and Other Legislation Amendment Act 2011 (No 145, 2011)


REASONS FOR DECISION


Senior Member A Poljak


4 October 2017

  1. Louise Kearney, the applicant, has been in receipt of the disability support pension (“DSP”) since 23 September 2009.
  2. On 1 March 2016, the Department of Social Services (“the Department”) determined that a DSP review be conducted and decided that the applicant was no longer qualified for DSP. The applicant’s DSP was cancelled from 10 June 2016 (“date of cancellation”) pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
  3. The applicant’s DSP was cancelled on the basis that at the date of cancellation, she did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act. The Impairment Tables are stricter than the tables which applied when the applicant was first granted the disability support pension on 23 September 2009.
  4. On 19 August 2016, an Authorised Review Officer (“ARO”) affirmed the decision of the Department to cancel the applicant’s DSP and on 17 November 2016, the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) affirmed the decision of the ARO. The decision of the SSCSD is the decision under review in these proceedings.

IMPAIRMENT TABLES

  1. The central issue for determination in these proceedings is whether the applicant’s conditions were fully diagnosed, treated and stabilised at the date of cancellation, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.
  2. The current Impairment Tables were introduced from 1 January 2012, following the repeal of Schedule 1B of the Act by the Social Security and Other Legislation Amendment Act 2011 (No 145, 2011) and amendments to sections 26 and 27 of the Act.
  3. Section 26 of the Act, provides that the Minister may, by legislative instrument, determine tables for the assessment of work-related impairment for DSP. The Impairment Tables are the instrument made pursuant to s 26.
  4. Section 27(3) of the Act provides that if a person is receiving DSP and the Secretary undertakes an assessment of the person’s qualification for that pension, the Secretary must apply the instrument in force under section 26 of the Act, on the day that notice of assessment was given.
  5. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
  6. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than 2 years.
  7. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next 2 years.
  8. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:
  9. Reasonable treatment is defined in subsection 6(7) as treatment that:

CONSIDERATION

  1. While the Secretary accepts that the applicant suffered from a number of conditions at the date of cancellation and she therefore satisfies section 94(1)(a) of the Act, the Secretary contends that the medical evidence does not support a finding that the applicant satisfied s 94(1)(b) at the date of cancellation.

Chronic Fatigue Syndrome (“CFS”)

  1. The Secretary concedes, and I accept, that the applicant’s CFS was fully diagnosed, treated and stabilised at the cancellation date. This is supported by the Medical Report completed by Dr Patricia Giles, general practitioner, on 9 March 2016, which confirms an onset of CFS in 2005/6, with the diagnosis confirmed by an endocrinologist, Dr Steve Thornley.
  2. The issue then to be determined is the functional impact that CFS has on the applicant. Table 1 of the Impairment Tables assesses the functional impact of impairment when performing activities requiring physical exertion or stamina and is the appropriate table on which to assess CFS.
  3. The Secretary accepts that, on the available evidence, the applicant was, at the cancellation date, unable to walk far outside the home and had difficulty performing day-to-day activities.
  4. In a report dated 19 July 2016, Dr Giles notes that as a result of CFS the applicant has short-term memory loss which caused her to forget to take her medications and to miss appointments. Dr Giles notes “fatigue causes inability to exercise, sleepiness, hair loss, social isolation as she is too tired to go out often”. In a later report dated 1 February 2017, Dr Giles notes that the applicant has good days and bad days and says that in some cases “too much walking can cause the extreme fatigue for days and she unable to leave the house and at time is bedridden”; other times she is able to go out shopping but uses the shopping trolley to lean on and usually has someone with her. Dr Giles reports that the applicant did not travel on public transport unless she had someone with her; this appears to be due, in part, to panic attacks. At times the applicant can work on the computer at home for 30 minutes before she needs to rest. It is noted that the applicant has trouble with temperature and that showering and washing her hair could be enough to exhaust her.
  5. In a report dated 19 August 2016, the ARO records the following about the applicant:
You told me you can drive to the local shops for items such as milk and bread, and if required get a lift to a supermarket or shopping centre where you walk from the car to the shops and then use a trolley to assist moving around the centre, although this occurs irregularly as you prefer to shop online. You told me you can use a treadmill for walking for five minutes before needing to rest. You advised living alone and are able to complete your activities of daily living. You told me you have very good support from your family including your son, mother and sister who regularly assist you as required with shopping, household chores and transport. You reported you can change the bed sheets if required, you usually do this with the assistance of a family member and it does not fatigue you. Rather it is physically difficult due to your wrist problems. You also stated you drive to a local club for dinner with friends on a fortnightly basis and this is you only social contact as you are able to do very little else with your few remaining friends.
  1. The applicant’s sister has provided a written statement (undated) which indicates that, on some days, the applicant can be quite alert and can do things efficiently around the home and she is able to go out to dinner with friends once per week or once per fortnight for up to 1.5 hours. The applicant’s sister notes a number of activities which she and other family members help the applicant with on a daily/weekly basis. She also notes that the applicant tries to keep her brain active with undertaking different puzzles and games twice a day. She says that the applicant can catch public transport as long as there is someone with her, although the applicant’s difficulty with public transport appears to be attributed to her panic attacks rather than CFS.
  2. The applicant’s son has provided two written statements (undated) which go to the functional impact of the applicant’s conditions and the assistance provided to her. He confirms that the applicant goes out to dinner every second fortnight for 1 to 1.5 hours. He says that the applicant “can cope with the day to day at her own pace and can drive to the doctors and go and get bread and milk”. He says that the applicant does not shower every day because she is trying to save her energy and sometimes does not get out of bed for 1 or 2 days. When going to the shopping centre and walking around doing the groceries “she leans on the trolley and sits down where she can”.
  3. The applicant also relies on a statement from her mother (undated). The statement explains the applicant’s condition and its impact on her in April 2017, when the applicant went on a cruise with her parents. While this statement may be of assistance for any future claim for DSP, it is of little assistance in these proceedings because it explains the applicant’s condition and functional impact as it was well after the cancellation date.
  4. At hearing, the applicant gave evidence orally via telephone and confirmed that she had good days and bad days; this is corroborated by the medical evidence. She advised that she could have 2 to 3 good days in a row and then spend 2 to 3 days in bed and that on bad days she is completely bedridden. She said that in winter she mostly has bad days because the weather impacts on her condition. In regards to functional impact, the applicant said that around the cancellation date, she was able to walk up her sloped driveway to get out of her house “if she had to” and estimated that the driveway was about 7.5 metres long. She was able to drive but said that if she had to go somewhere that was more than a 10 minute drive, she would be driven. She could go to the shopping centre but needed help with the shopping and often used a shopping trolley to lean on. For large items she said her sister did the shopping online. The applicant says that she sees her doctor once a week, goes to the bakery to get bread on Sundays, goes to her sister’s house for dinner every 3 to 4 weeks and during the summer months, has fortnightly dinners with friends. She said that her sister’s house is only a two minute drive from her house and that when she goes out to dinner with her friends, they usually pick her up and take her home after dinner. She says she is capable of self-care, and has lived alone for approximately 4 to 5 years. The applicant advised that she can only catch public transport with someone because she fears falling asleep.
  5. I accept that the applicant has “good days” and “bad days” where she experiences varying levels of fatigue. It is important to note that section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings, pursuant to s 11(1)(c) which provides:
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. (emphasis added)
  1. Relevantly, subsection 11(4) of the Impairment Tables provides that “when assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate”.
  2. The applicant’s son says in his written statement (undated) that “at times she does not get out of bed for 1 or 2 days because she cannot and this is if we have been to the shops”. Dr Giles in her report dated 1 February 2017, notes that the applicant has “good days which could be 3 in a row but then that could be followed by 3 days of being unable to leave the house and at times be bedridden”. The applicant’s sister in her written statement (undated) says that “every April/May [the applicant] goes down for weeks and is unable to cook or clean in this period. She is bedridden and cannot get out of bed, and on cold days it is worse”. She says however that the applicant has recently managed to reduce the impact of cold and hot weather on her condition by using oil heaters and air conditioning.
  3. I am satisfied on the evidence that “bad days” are preceded by increased activity and/or cooler temperatures. She is also affected by hotter temperatures in summer. The evidence is limited on the rate of fluctuations between “good days” and “bad days” experienced by the applicant. However, I am satisfied on the available evidence that the applicant is able to manage or reduce the impact of temperature on her condition. Increased activity may result in a couple of “bad days”. Even then, the evidence is that on a “bad day” she is unable to leave the house and at times is bedridden. This implies that she has some function while at home even on bad days. Overall I am satisfied that the applicant has more good days than bad days.
  4. Having careful regard to the descriptors contained in Table 1 of the Impairment Tables for a moderate and severe functional impact, I am satisfied that at the date of cancellation the applicant did not satisfy all of the descriptors for a “severe” impairment. On “good days”, the applicant could walk from the car park into the shopping centre without assistance and could perform light household duties. The evidence does not support a finding that the applicant was unable to use public transport without assistance solely due to CFS. Her difficulties with using public transport also appear to be attributable to panic attacks. It follows that an impairment rating of 10 points under Table 1 is appropriate for this condition.

Melanoma

  1. Dr Philip Brown is a clinical associate to Professor J Thompson and Associate Professor R Saw and affiliated with the Melanoma Institute Australia. In a report dated 15 December 2016, Dr Brown confirms that the applicant was operated on by Professor Thompson in June 2011 for a malignant melanoma. He says that the applicant’s type of melanoma had a high mitotic rate and was a particularly nasty cancer which often proved fatal. He advised that the applicant “should limit the amount of time she spends in the sun due to this condition, and should at all times wear sunscreen, hat and protective clothing. She would be wise to spend no more than 5 to 10 minutes per day outdoors in the sun, as per the Osteoporosis Foundation recommendations”.
  2. Dr Philip Brown again confirms in his report dated 24 January 2017, that the applicant had a particularly nasty malignant melanoma removed in June 2011. Dr Brown says that as at the date of cancellation, the applicant’s skin condition was permanent in that it was fully diagnosed treated and stabilised and was not likely to improve in 2 years. He states in the report that:
“The patient should avoid sunshine. I would rate the functional impairment as severe according to your definition, the person having severe difficulty performing activities involving exposure to sunlight due to heightened sensitivity to sunlight as a result of skin cancer. The patient should spend only a brief period of time in the sunshine each day even when wearing sunscreen and protective clothing, and even then is likely to suffer significant sequelae of sun exposure, including but not restricted to, melanoma, resulting in significant medical morbidity and death. The probability of these severe effects is, according to Professor Thompson’s estimations, approximately 25% in [the applicants] remaining life span” [emphasis added]
  1. Dr Patricia Giles in her report dated 1 February 2017, says “I can confirm with Dr Brown as per records sent to me that [the applicant’s] condition was diagnosed, fully treated and stabilised as at the 10th June 2016 and equally agree with his rating of 10 points”. She then identifies a number of examples to support this opinion, in summary:
  2. Dr Giles also advises in her report dated 1 February 2017, that the applicant has lesions on her hands and body called solar keratosis which are more susceptible to cancer. As a result, they need to be burned off. Dr Giles advises that “this is not a permanent solution as they do grow back in between visits and they are always red, thick and discoloured. If these get knocked they bleed as they are dry and scabby but you cannot moisturise them as they become too soft and again if knocked they bleed”. Dr Giles opines that the lesions reduce the applicant’s capacity for using her hands at work as the lesions could become infected if broken and become more susceptible to infections when she has them burned off. She also states that because the applicant has lesions on her body and legs she has to be careful of what she wears as the fabric rubs against the lesions causing them to break and bleed.
  3. Table 14 of the Impairment Tables assesses functions of the skin and is the appropriate table in which to assess this condition. In order to be satisfied that there is a severe functional impact on activities, two of the descriptors contained in Table 14 for 20 impairment points must apply. Based on the available evidence I am satisfied that descriptor (1)(d) is satisfied. That is, the applicant has severe difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight as a result of her past history of skin cancer and can only spend a brief period of time in sunlight each day even when wearing sunscreen and protective clothing. The applicant does not satisfy any of the other descriptors. As such, the functional impact of this condition is not considered severe.
  4. For the functional impact of this condition to be considered moderate, only one descriptor contained in Table 14 for 10 impairment points needs to be satisfied. I am satisfied that the applicant has moderate difficulties performing daily activities due to the lesions on her skin. In addition, the evidence clearly supports a finding that descriptor (1)(d) is satisfied. That is, that the applicant has moderate difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight as a result of a past history of skin cancer and needs to take higher than normal precautions to avoid exposure to sunlight.
  5. Having careful regard to the available evidence and the descriptors contained in Table 14, I am satisfied on the available evidence that there is a moderate functional impact on activities and as such it is appropriate that 10 impairment points is assigned for this condition.

Mental Health Condition – Mixed anxiety and depressed mood

  1. The Introduction to Table 5 of the Impairment Tables provides (inter alia):
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). (Emphasis added)
  1. In the report of Dr Patricia Giles dated 19 July 2016, under the heading “Depression”, it is noted that “this causes poor motivation, depressed mood, panic attacks, erratic sleeping, comfort eating, poor dietary choices”. Dr Giles then says they were considering medication and psychological counselling and that at present, the applicant is seeing her weekly for monitoring and supportive counselling. She states “we are prioritising her problems”.
  2. In a medical certificate dated 16 August 2016, Dr Giles diagnosis anxiety/depression with the date of onset as 2004. Past treatment is noted as “counselling/antidepressants”; current treatment as “counselling”; and planned treatment as “counselling/antidepressants”.
  3. The ARO decision dated 19 August 2016, records that the applicant said she “commenced anti-anxiety medication today”.
  4. The applicant was referred by Dr Giles to Ms Racquel Singh, psychologist, for an assessment and management on 21 October 2016. In a report dated 4 November 2016, Ms Singh notes that the applicant “recently has been more depressed, agoraphobic and low motivation. Poor self-care and isolation. It is in my opinion that [the applicant] has chronic fatigue syndrome as well as anxiety. She is not medicated at this stage but may require an antidepressant in the future. Currently she has agoraphobia and we are working on some psychological strategies to manage the anxiety...[The applicant] has seven more sessions with me her next session is on 11/10/16”.
  5. The applicant was seen by Mr Chris Lloyd, clinical psychologist, on 8 December 2016. In a report dated 20 January 2017, he opines that the applicant’s mental health conditions of post-traumatic stress disorder, major depressive disorder, somatic symptom disorder and panic disorder and agoraphobia “existed in 2009, when she was diagnosed with melanoma, and in the period 1998 to 2004...”. Mr Lloyd further opines that the applicant had those conditions as at 10 June 2016, and that the conditions are permanent and not likely to improve in the 2 years from 10 June 2016.
  6. In an earlier report dated 19 December 2016, Mr Lloyd made a similar assessment of the applicant. In regards to past treatment, he records that the applicant was referred by her GP to psychologist Ms Raquel Singh and that she had seen Ms Singh six times. Mr Lloyd advises that the applicant told him “the treatment is challenging and has helped her to a small degree with the panic attacks”. In bold text, Mr Lloyd says the applicant “has had no other psychological treatment until seeing Ms Singh this year. The [applicant’s] condition may now be assessed and probably stabilised, but she will benefit from further treatment”.
  7. Dr Giles says in her report dated 1 February 2017, that she first diagnosed the applicant with depression in 2004. She advises that the condition has been diagnosed, treated and stabilised for many years however there was a decline in her mental function as a result of “the trauma of her melanoma”. She said that she felt that the applicant’s physical medical treatment was more important.
  8. Mr Lloyd provided an additional report dated 27 July 2017, which I have read and considered.
  9. At hearing, the applicant explained that Dr Giles was always concentrating on physical symptoms because they were the most pressing over the years. She said that this did not mean that she was not suffering from a mental health condition. The applicant said that she has discussed medication with Dr Giles; that they had agreed to try everything else first and that they were going through a list of alternatives. She said that she has tried meditation, massage and acupuncture because she needs to find some treatment that would fit; besides medication. The applicant was adamant that antidepressants were a last resort and that they were still looking at other options. In regards to the ARO decision dated 19 August 2016, which states that the applicant had commenced anti-anxiety medication, the applicant advised that this is incorrect and that at the time she was only on vitamins.
  10. Based on the evidence of Dr Giles and Mr Lloyd, I am satisfied that the applicant’s mental health condition of depression and anxiety was fully diagnosed at the date of cancellation.
  11. It is plain on the available evidence that the applicant’s physical conditions have been the central focus for her and her treating medical providers for a number of years. As such her mental health condition has remained untreated for some time. As at 4 November 2016, the applicant was still undergoing sessions with Ms Singh and they were working on some psychological strategies to manage the applicant’s anxiety. The bulk of the medical evidence also suggests that the applicant may require antidepressants however the applicant advised at hearing that this was the last resort and that she was still trialling other options. Accordingly, I am not satisfied that the condition was fully treated and stabilised at the date of cancellation. It follows that no impairment rating may be allocated.

Sjogren-Larsson Syndrome

  1. The report of Dr Giles dated 9 November 2016, states the applicant “has symptoms of sjogren’s disease- dry mouth, dry eyes, blood testing enclosed show elevated ana which is suggestive of this disorder. She has not seen a specialist yet as there are more pressing health issues to address”.
  2. There is no evidence that at the date of cancellation the applicant had seen a specialist, nor had any investigations or treatment for this condition. Accordingly, I am not satisfied that the condition was fully diagnosed, treated and stabilised at the cancellation date. It follows that no impairment rating can be assigned.

Sleep Apnoea

  1. The Secretary accepts, and I agree that the applicant’s sleep apnoea was fully diagnosed at the date of cancellation. This is supported by the evidence of Dr Giles.
  2. In a report dated 19 July 2016, Dr Giles says that the condition was diagnosed in the early 2000’s. She says that the applicant did not tolerate CPAP. Dr Giles notes that the condition was being “completely reassessed” and “morbid obesity is a large contributing factor for this issue”.
  3. I am not satisfied on the medical evidence that this condition was fully treated and stabilised at the date of cancellation. The condition is pending further investigations and treatment options, including weight loss management. It follows that no impairment rating may be assigned to this condition.

Hypothyroidism

  1. The Secretary accepts, and I agree, that the applicant’s hypothyroidism was fully diagnosed, treated and stabilised at the date of cancellation. The report of Dr Giles dated 19 July 2016, indicates that the applicant has been prescribed a daily dose of oroxine to manage this condition and, when taken as prescribed, the condition is under control.
  2. There is no evidence of functional impairment for this condition. In any event, any functional impact arising from this condition would already be adequately assessed in the rating assigned to the applicant under Table 1. The Impairment tables are designed to assess the level of functional impact of impairment and not to assess conditions. If two or more conditions cause a common or combined impairment then they are to be given a single rating under a single Table. In this case, only one impairment rating may be given under Table 1 for functional impact of impairment when performing activities requiring physical exertion or stamina. This has already been assessed under CFS.

Hypertension

  1. The Secretary accepts, and I agree, that the applicant’s hypertension was fully diagnosed at the date of cancellation. In the report dated 19 July 2016, Dr Giles reports that the applicant’s blood pressure is not under control. She says that the applicant must remember to take her medication daily. Accordingly, I am not satisfied that this condition was fully treated and stabilised at the date of cancellation. Some improvement may be seen if the applicant took a medication as prescribed. It follows that no impairment rating may be assigned.

Morbid Obesity

  1. The Secretary accepts, and I agree, that the applicant’s morbid obesity was fully diagnosed at the date of cancellation but was not fully treated and stabilised. This is supported by the report of Dr Giles dated 19 July 2016, which indicates that the applicant is on a diet and has started an exercise program and the evidence of the applicant’s sister, that the applicant intends to start working on a graded exercise therapy program and arranging a meal delivery service. Based on this evidence, it may be likely that this condition will show significant improvement within 2 years. Accordingly, no impairment rating may be assigned for this condition.

Asthma

  1. The Secretary accepts, and I agree, that the applicant’s asthma was fully diagnosed, treated and stabilised at the date of cancellation. The report of Dr Giles dated 19 July 2016, indicates that the applicant’s asthma was controlled by Ventolin and Seretide and, through winter, also with nebulisers and steroids.
  2. There is no evidence of functional impairment for this condition. In any event, any functional impact arising from this condition would already be adequately assessed in the rating assigned to the applicant under Table 1 for CFS.

Non-insulin Dependent Diabetes

  1. In a report dated 1 February 2017, Dr Giles notes that the applicant’s diabetes was “diagnosed after June 2016”; post cancellation date. There is no evidence that appropriate treatment had been undertaken at the date of cancellation. It follows that the condition cannot be considered fully diagnosed, treated and stabilised and no impairment rating can be assigned.

CONCLUSION

  1. In accordance with my findings above, the applicant has a total of 20 points under the Impairment Tables and so has met the requirement of subsection 94(1)(b) for an impairment rating of 20 points or more.

CONTINUING INABILITY TO WORK (“CITW”)

  1. The next issue I must consider is whether, as required by subsection 94(1)(c), the applicant has a continuing inability to work.
  2. Section 94(2) of the Act defines a continuing inability to work as follows:

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

(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 20082011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

(a) in all cases—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) in all cases—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.

  1. Subsection (3A) of the Act provides, that if a person is receiving DSP, and the person receives a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that the pension, then paragraph 2(aa) of subsection 94(2) does not apply in relation to the assessment. The applicant is therefore not required to have participated in a program of support prior to the date of cancellation.
  2. Work is defined in section 94(5) of the Act as work “that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and that exists in Australia, even if not within the person's locally accessible labour market”.
  3. It is plain from the terms of section 94(2) of the Act that the impairment referred to is an impairment which has been assessed as permanent and attracting a rating under the Impairment Tables.
  4. The Job Capacity Assessment report dated 28 March 2017 (“JCA”), notes that the applicant had a capacity to work within 2 years with intervention of 15 to 22 hours per week. Light less skilled work is recorded as suitable work for the applicant. The rationale for this finding is as follows:

“Mr Lloyd (20.1 .17) notes that client “currently works staggered hours of no more than half hour continuously as she loses focus but in a 24-hour period can do 4 x half hour = 2 hours per day”. With further intervention and support, particularly to stabilise other medical conditions and modifications made to the work environment, work capacity may increase to 15-22 hours per week.”

  1. At hearing the applicant confirmed that she has a home-based business which is a travel agency and booking service. In regards to her level of involvement in the business, the applicant advised that she has done nothing for the last 12 months. She advised that her level of involvement was merely forwarding emails to external providers or occasionally answering phone calls, all of which could be done from her home. She said that the business was more active when her son owned a business for accommodation options but now she is likely to receive 1 or 2 emails a week, if any.
  2. Despite the findings in the JCA, I am not convinced that the applicant’s work capacity may increase to 15-22 hours per week with further intervention and support. As already discussed, the applicant’s CFS is long-standing and permanent. The functional impact of this condition fluctuates between “good days” and “bad days” and even on her good days, her function is limited. There is no evidence to suggest that this condition will improve over time.
  3. On the basis of all the medical evidence before me, some of which has been relevantly set out in my reasons above, I find that the applicant’s impairments of CFS and melanoma are sufficient to prevent her from doing any work independently of a Program of Support (POS) during the next 2 years. I am therefore satisfied that the requirement in subsection 94(2)(a) is met.
  4. I am also satisfied that the applicant’s impairment is of itself sufficient to prevent her from undertaking a training activity during the next 2 years and that any training activity is unlikely to enable the applicant to do any work independently of a POS during the next 2 years. I am therefore satisfied that the requirement in subsection 94(2)(b) is met.
  5. I find that the applicant has a continuing inability to work as required by subsection 94(1)(c) of the Act.

CONCLUSION

  1. For the reasons set out above, I am satisfied that, at the date of cancellation, the applicant was qualified to receive the disability support pension.
  2. The reviewable decision of the SSCSD dated 17 November 2016 is set aside and in substitution, the Tribunal finds that the applicant satisfied subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) at the date of cancellation.








I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.......................[sgd]..........................................
Associate

Dated: 4 October 2017

Date(s) of hearing:
28 July 2017
Applicant:
In person
Solicitors for the Respondent:
Department of Human Services

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2017/1994.html