Lockett and Secretary, Department of Social Services (Social services second review) [2022] AATA 3187 (29 September 2022)

Last Updated: 30 September 2022

Lockett and Secretary, Department of Social Services (Social services second review) [2022] AATA 3187 (29 September 2022)

Division: GENERAL DIVISION

File Number(s): 2020/6187

Re: Mr Owen Lockett

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Deputy President Dr P McDermott RFD

Date: 29 September 2022

Place: Brisbane

1. I affirm the decision under review to reject the claim for disability support pension lodged by Mr Lockett on 9 September 1993; and
2. I affirm the decision under review to reject the claim for disability support pension lodged by Mr Lockett on 23 July 2018; and

100. I set aside the decision under review which decided that Mr Lockett was qualified for disability support pension under the claim lodged by Mr Lockett on 22 December 2016 and the date of effect of that decision is 6 January 2020; and in substitution I decide to reject the claim for disability support pension lodged by Mr Lockett on 22 December 2016; and

4. I set aside the decision under review which decided that Mr Lockett was qualified for disability support pension under the claim lodged by Mr Lockett on 29 May 2019 and was qualified for disability support pension from the date of that claim and in substitution I decide to reject the claim for disability support pension lodged by Mr Lockett on 29 May 2019.

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

Deputy President Dr P McDermott RFD

Catchwords

Application for Disability Support Pension – Where applicant has received compensation – whether application medically qualified – Where start date of claim in contention – Where multiple claims for Disability Support Pension – Where applicant not medically qualified – Where decision under review affirmed in part – Where decision under review set aside and substituted in part.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1995 (Cth)

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

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

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Fanning and Secretary, Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Mentink v Secretary, Department of Social Services [2015] FCA 473

Sesalim v Secretary, Department of Social Services [2018] FCA 1159

Secondary Materials

Dennis Pearce, ‘Administrative Appeals Tribunal’, 5^th Ed 2020

REASONS FOR DECISION

Deputy President Dr P McDermott RFD


29 September 2022

INTRODUCTION

1. Mr Lockett (the applicant) lodged an application with the General Division of this Tribunal on 1 October 2020.^[1] The applicant sought review of a decision of the Social Security and Child Support Division (AAT1) of this Tribunal dated 13 March 2020^[2] on the basis that he believed the start-date of his claim was incorrect.
2. An extension of time hearing was held on 18 December 2020 where the applicant was granted an extension of time to lodge his application.
3. A hearing for this matter was listed for 16 September 2021. This hearing was adjourned as the applicant did not have access to the T-Documents. The matter was subsequently relisted on 8 October 2021.
4. On 8 October 2021 a hearing by Microsoft Teams was held. The applicant was self-represented and gave evidence under affirmation.
5. Mr Lockett has a number of impairments including an impairment to his spinal function, his upper and lower limbs as well as a number of other impairments.^[3] At relevant times he has had a number of injuries for which he has received compensation and there have been compensation preclusion periods imposed because of the payment to him of compensation.^[4]
6. The applicant in his submissions has stated that he has made eight claims for the payment of disability support pension (DSP) under the Social Security Act 1991 (the Act). I am now considering four of those claims which were lodged on 9 September 1993, 22 December 2016, 23 July 2018 and 29 May 2019.^[5] The applicant has indicated that he does not wish to challenge the decisions made in respect of his qualification for the claims that he lodged on 9 September 1993 and 23 July 2018.^[6] However, in these reasons I have considered it appropriate to review the eligibility of the applicant to receive DSP under all four of these claims.
7. On 12 March 2020 the claims of the applicant for DSP were considered by the Social Services and Child Support Division of this Tribunal (AAT1) which made the following decisions:
   • (A) The Tribunal affirmed the decisions under review to reject the claims for disability support pension lodged by [the applicant] on 9 September 1993 and 23 July 2018.
   • (B) The Tribunal sets aside the decision under review in respect of the claim for disability support pension taken to have been lodged on 22 December 2016 and, in substitution, decides that [the applicant] was qualified for disability support pension under paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 and the date of effect of the decision is 6 January 2020.
   • (C) The Tribunal sets aside the decision under review in respect of the claim for disability support pension lodged on 29 May 2019 and, in substitution, decides that was qualified for disability support pension under paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 from 29 May 2019.^[7]

ISSUES

8. In order to qualify for the DSP under the Act, the applicant must meet the requirements of section 94(1) of the Act, which provides:

   94 Qualification for disability support pension

   (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;

   (ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

   ...

9. The Social Security (Administration) Act 1999 (Cth) (the Administration Act) requires that the applicant be assessed against the qualification requirements as at the date of their application. However, in cases where an applicant for DSP may not be eligible as at the date of their claim, they may become qualified within a period of 13 weeks from the date of their claim (qualification period).^[8] The qualification period is important insofar as it applies to medical evidence presented. There is a long and established history of cases which require that medical reports that are written after the qualification period are only relevant insofar as they refer to the applicant’s condition during the qualification period.^[9]
10. Under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011 (Cth), (the Determination) the impairment ratings required by s 94(1)(b) of the Act may only be assigned where an impairment under s94(1)(a) is considered “permanent”.^[10] For a condition to be considered permanent for the purposes of DSP it must be fully diagnosed by an appropriately qualified medical practitioner, have been fully treated and stabilised, and on the balance of probabilities be likely to continue for more than two years.^[11]
11. A claim for DSP in which the applicant has not undertaken reasonable treatment for the condition is not necessarily doomed to fail. An applicant is not required to have undertaken reasonable treatment for their condition if it is unlikely to result in such an improvement as to allow the applicant to work within the next two years. Nor is an applicant required to have undergone reasonable treatments if there is a medical or other compelling reason as to why they should not undergo the treatment.^[12]
12. In order for me to be able to make a decision that the applicant seeks, I am required to examine his pre-2019 claims for DSP and assess his eligibility and payability for such claims. This is because for the applicant to be back paid from either November 2014 or December 2016, he must be found to have been medically qualified and payable at the relevant times.

2003 DSP Claim

13. The applicant had lodged a claim for DSP on 9 September 1993.^[13] On 28 September 1993 the Department wrote to the applicant to advise him that he could not be paid the DSP because he was able to work full-time.^[14] It was not until 6 January 2020 when the applicant had first sought review of the decision not to grant him DSP in 1993.^[15] The Department was unable to locate the claim form lodged by the applicant, the medical reports and the decision for that claim.
14. The Determination was not in force at the time when the applicant lodged his claim, the Act then provided that a person had a continuing inability to work where the “person's impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years”: s 94(2)(b)(i).^[16] The applicant was honest in disclosing that he had successfully completed a TAFE Certificate in Office Studies before his second child was born in May 1995. This meant that the impairment of the applicant did not prevent him from undertaking education or vocational training within the two-year period after his claim. On this basis, the applicant was unable to meet the requirements of s 94(1)(c) of the Act which then required him to have a continuing inability to work. For that reason, he was not eligible for DSP in respect of the claim that he lodged on 9 September 1993 despite the applicant claiming that he was then unable to work for a three-year period.^[17] Another reason the applicant was not eligible for DSP in respect of the claim that he lodged on 9 September 1993 was that he had settled a compensation claim and was subject to a compensation preclusion period from 9 September 1993 until 14 September 1994.
15. For these reasons, I consider that the applicant was not eligible for DSP in respect of the claim that he had lodged on 9 September 1993.

2016 DSP Claim

16. On 22 December 2016 the applicant lodged his claim for DSP.^[18] On 22 June 2017 the applicant lodged a number of medical reports in support of his claim.^[19]
17. On 14 June 2017 a decision was made to reject the claim of the applicant on the basis that he did not have an impairment rating of 20 points or more.^[20] On 21 June 2017 the applicant sought a review of the decision.^[21] On 13 July 2017 the applicant was provided an explanation and a record was made by the Subject Matter Expert that the review had been completed.^[22] However, in fairness to the applicant there is no indication that he did withdraw his appeal on that occasion.^[23]
18. On 22 January 2020 an authorised review officer (ARO) affirmed the decision to reject the claim.^[24] The ARO found that the applicant had an impairment rating of 20 points (5 points under Table 3; 5 points under Table 11; 10 points under Table 4).^[25] The ARO found that the applicant did not have a severe impairment and he did not actively participate in a program of support.^[26] The ARO found that the applicant did not have a continuing inability to work 15 hours per week or more because of his impairment.^[27]
19. The ARO had comprehensively examined the documentation concerning the spinal condition of the applicant.^[28] It was noted that the JCA assessment on 24 June 2015 had assigned a rating of 20 points under Table 4 – Spinal Function.^[29] After the 2016 DSP claim was made a new JCA assessment occurred in March 2017. That JCA report had regard to a physical assessment report completed by an occupational therapist.^[30] It was also noted that the JCA assessment on 22 March 2017 had assigned a rating of 10 points under Table 4 – Spinal Function, for moderate functional impact.^[31] It was also reported that the applicant would have capacity for work within 2 years of 15-22 hours per week with intervention.^[32] There is no cogent evidence before the Tribunal which contradicts that new assessment.
20. On 12 March 2020 the AAT1 set aside the decision to reject the claim for DSP that was lodged on 22 December 2016 and, in substitution, decided that the applicant was medically qualified for DSP and that the date of effect of that decision would be 6 January 2020.^[33] On 1 October 2020 the applicant lodged an appeal against this decision on the ground that the date of effect of the decision should be 22 December 2016.^[34]
21. I will determine the eligibility of the applicant to receive DSP under the claim for DSP that he lodged on 22 December 2016. Even if the applicant was medically qualified on that date, I have concluded that the applicant was not eligible for DSP when he lodged his claim.
22. In Mentink v Secretary, Department of Social Services,^[35] (Mentink), Greenwood J explained that under s 37(1) of the Social Security (Administration) Act 1999 a claim for a social security payment is to be granted where the applicant “is qualified for the social security payment and the social security payment is payable: see s 37(1)(a) and (b)”. His Honour recognised that there are exceptions to s 37(1) of that Act which were not material in the Mentink case, those exceptions are also not material in determining this application.
23. Quite apart from whether the applicant was medically qualified to receive DSP under the claim that was made on 22 December 2016, I must determine whether DSP was ‘payable’ within the meaning of s 37(1) of the Act to the applicant when he made that claim. When the applicant made his claim for DSP on 22 December 2016, he was then in receipt of compensation payments under a claim that he made with Workcover Queensland.^[36]
24. The applicant was honest in making full disclosure of his receiving compensation at the time he lodged his claim for DSP. The gross lump sum settlement amount under the claim with Workcover Queensland in respect of the injury sustained on 4 February 2015 was $778,934.31.^[37] He was then receiving weekly payments of compensation. In respect of the period of 22 December 2016 to 29 December 2016 the applicant received compensation well in excess of the weekly payment of $661.20.^[38]
25. Due to the operation of s 1173 of the Act the amount of DSP that the applicant would be entitled to is reduced on a dollar-for-dollar basis so that the applicant would have had a nil entitlement so that his rate of payment of DSP would have been nil under s 98 of the Act.
26. The applicant was also subject to a compensation preclusion period. On 29 January 2020 a decision was made for this compensation preclusion period to end on 12 July 2019 instead of 5 April 2024 because of hardship.^[39] The record of that decision shows that it was explained to the applicant that a person paying common law damages must reimburse the workers compensation insurer the amounts of all statutory compensation. The applicant had then agreed that the correct calculations had occurred in the calculation of the period.^[40]

2018 DSP Claim

27. On 23 July 2018 the applicant lodged his claim for DSP having given prior notice of his intention to make the claim.^[41] The applicant has quite properly indicated that he does not wish to challenge the rejection of that claim.^[42] Shortly after he made his claim, he had access to an amount of $377,283.81 from his compensation claim.^[43] The AAT1 explained that at the time of the claim the applicant was subject to a compensation preclusion period.

2019 DSP Claim

28. On 29 May 2019 the applicant lodged his claim for DSP.^[44]
29. In giving evidence the applicant stated that he agreed with the following findings as found by the AAT1 in respect of his fully diagnosed, fully treated and fully stabilised conditions:

(a) 5 points under Table 2: Upper Limb Function;

(b) 5 points under Table 3: Lower Limb Function;

(c) 20 points under Table 4: Spinal Function;

(d) 5 points under Table 5: Mental Health Function;

(e) 10 points under Table 11: Hearing and other functions of the ear; and

(f) 5 points under Table 15: Functions of Consciousness.

Program of support

30. The applicant stated that he had not completed a program of support. The records confirm that when he made his claim, he had not actively participated in a program of support in the three preceding years. He need not have actively participated in a program of support if he has a severe impairment which is an impairment that attracts a rating of 20 points or more under a single Impairment Table.^[45]

Spinal function

31. The applicant in his submissions has put forward that the Spinal Function condition is a severe impairment which should be assigned a rating of 20 points under Table 4. Under Table 4 a spinal impairment is to be assigned 20 points as a severe functional impairment on activities involving spinal function if any of the descriptors in paragraph (a), (b), (c) and (d) is met.
32. The descriptor in paragraph (a) for a severe functional impairment applies where a person is unable to ‘perform any overhead activities’. Dr Cafferky in his report dated 26 December 2019 remarked: ‘[the applicant] has related an inability to perform overhead activities due to neck and shoulder pain’.^[46] Dr Cafferky has stated that he has ‘relied upon self-reporting by [the applicant].^[47] Dr Cafferky has also stated that the applicant is unable to ‘lift above the head at times due to his shoulder condition’.^[48] In giving evidence before the AAT1 the applicant himself has attributed his inability to perform overhead activities to his shoulder condition.^[49]
33. The Introduction to Table 4 provides that Table 4 is to be used when a person is performing activities involving spinal function. I am of the opinion that it would not be in accordance with the Introduction to Table 4 to apply the descriptor in paragraph (a) to where the functional impairment is not due to the spinal function but to the shoulder condition. This is because the Introduction to Table 4 stipulates: ‘In using Table 4, descriptors are to be met only from spinal conditions. Restrictions overhead tasks resulting from shoulder conditions should be rated under Table 2’. In my opinion the descriptor in paragraph (a) should be applied where the applicant states that his inability to perform overhead tasks is ‘primarily’ because of his shoulder condition. It would also be contrary to the Introduction to Table 4 to apply the descriptor in paragraph (a) on the basis of self-report of the applicant having regard to the directive in that introduction which provides that ‘self-report of symptoms alone is insufficient’. Having considered the statements of the applicant that his inability to perform overhead activities is due to his shoulder function, which is corroborated by the report of Dr Cafferky, I am of the opinion that it would be inappropriate to apply the descriptor in paragraph (a).
34. Another reason why the descriptor in paragraph (a) is not met is because the descriptor only applies where the person is unable to perform any overhead activities. On
    22 March 2017 the occupational therapist reported that the applicant was unable to ‘perform overhead activities repetitively or for prolonged periods’. This would best meet descriptor (a) for 10 points in Table 4 which applies where ‘the person is unable to sustain overhead activities’. Descriptor (a) for 20 points in Table 4 applies only when a person is ‘unable to perform any overhead activities’.
35. The descriptor in paragraph (b) of Table 4 for a severe functional impairment applies where a person is unable to ‘turn their head, or bend their neck, without moving their trunk’. There is no basis for the application of this descriptor to the case of the applicant because on 22 March 2017 the occupational therapist reported on range of movement when the applicant turned his head of bent his neck while his trunk was stationary.^[50] In the absence of any contradictory reliable evidence, I regard the assessments made by the occupational therapist relevant to the qualification period. However, I note this interpretation is fair to the applicant, as the occupational therapist noted that there were “good potential” to return to work of at least 15 hours per week within the following 24 months.^[51] It was put to the applicant when he was giving evidence that he was able to turn his head or bend his neck without moving his truck, the applicant did not disagree with that proposition.^[52] The applicant stated that it was hard to turn his head to the left but that ‘turning to the right is okay’.^[53] It would be inappropriate to apply the descriptor in paragraph (b) because that descriptor is relevant where a person has an inability to turn the head or bend the neck without moving their trunk.
36. On 22 March 2017 the occupational therapist reported on the range of movement of the applicant in respect of his cervical spine.^[54] There was an assessment that the applicant had a moderate functional impairment which was assessed as 10 points. The occupational therapist reported that the applicant did not meet the criteria for a higher impairment rating.^[55] For extension/flexion, there was movement within normal limits but with pain at the end of the active range for extension (looking up).^[56] With respect to rotation there was reduced rotation to the left with pain.^[57] For lateral flexion the applicant was unable to achieve full range but within functional limits; increased pain towards ends of active ranges.^[58]
37. The descriptor in paragraph (c) for a severe functional impairment applies where a person is unable to ‘bend forward to pick up a light object from a desk or table’. On 22 March 2017 the occupational therapist reported that the applicant was able to bend forward to pick up a light object placed at knee height, but he would have difficulty performing this activity repetitively or for prolonged periods, in giving evidence the applicant confirmed that if he was sitting at his desk, he would be able to pick up a pen.^[59] Based on the evidence of the report of the occupational therapist, this descriptor is not met.
38. The descriptor in paragraph (d) for a severe functional impairment applies where a person is unable to ‘remain seated for at least 10 minutes’. On 22 March 2017 the occupational therapist reported that the applicant was able to remain seated in a car for 15 minutes as a driver or a passenger. In giving evidence the applicant agreed that he could remain seated for 10 minutes but that he had to get up and move around. His evidence is inconsistent with the self-report of the applicant that he could not sit for 5 minutes as related by Dr Cafferky in his report on 26 December 2019.^[60] The Introduction to Table 4 precludes me from relying on this uncorroborated self-report of the applicant, therefore I am unable to find that this descriptor is met.
39. I have reviewed the comprehensive report that the occupational therapist made on 22 March 2017 in which the applicant was assigned a 10 point rating under Table 4 of the Impairment Tables.^[61] I consider that the report was fair to the applicant in acknowledging that there were come restrictions on his range of movement. The report contains measurements and diagrams concerning the range of movement.^[62] The rating of 10 points under Table 4 by the occupational therapist is a fair assessment of the spinal condition of the applicant, which I adopt. There has not been any cogent evidence before me that warrants the spinal condition of the applicant being assigned 20 points under Table 4.

Upper Limb Function

40. The AAT1 assessed the applicant as having 5 points under Table 2 which applies to Upper Limb Function. The respondent contends that the impairments arising from the left-hand injury should be rated under Table 2 – Upper Limb Function of the Impairment Tables, but that the most appropriate rating is 0 points. The basis of this contention was that a 5 point rating requires most of the descriptors being met (i.e three out of four) which on the contemporaneous evidence available is not the case. While there may be some force in this submission, I have decided not to disturb the rating of the AAT1 in respect of the upper limb function.
41. The assessment of the AAT1 was made after a careful consideration of the medical evidence in respect of the upper limb condition. I appreciate before the hearing the applicant was certainly given adequate notice of the contention of the respondent that the most appropriate rating was 0 points. However, the applicant was not legally represented. The respondent informed the Tribunal during the cross examination of the applicant that from the perspective of the respondent the only condition that needed to be fully explored was the spinal condition.^[63] In these circumstances I do not consider that it would be fair to disturb the considered assessment of the AAT1.
42. I should record that I have read the reports of the specialists concerning the upper limb function of the applicant. Dr Carrerky in his report dated 19 January 2016 has mentioned that the left hand and shoulder of the applicant were injured in an industrial accident.^[64] On 22 March 2017 the occupational therapist reported that the left-hand strength of the applicant was approximately half the strength of this right hand; he was slow in holding small objects. He has difficulties with repetitively picking up objects.^[65] I consider that he meets the descriptors in paragraph (a), (b) and (d) is met. By meeting most of the descriptors the applicant should be assigned a rating of 5 points under Table 2.
43. A Job Capacity Assessment Report dated 21 November 2019 has found that the left shoulder condition was not diagnosed, treated and stabilized.^[66] I accept this assessment because while there has been treatment to the shoulder there was a recommendation that further treatment was required. Ms Miller, physiotherapist, in her report dated 19 July 2016 indicated that physiotherapy was likely to lead to an improvement in the shoulder condition.^[67] Ms Miller also recommended that there was a need to complete pain management treatment.^[68] The applicant had attended a pain management program in 2005 but had not undertaken any further pain management treatment since the recommendation of Ms Miller was made. There is no indication that such treatment has been completed. I have given this recommendation of Ms Miller some weight having regard to the Introduction to Table 2 which stipulates that corroborating evidence is a report from an allied health practitioner, such as a physiotherapist, confirming how the functional impact can improved. Until the shoulder condition is stabilized by the recommended pain management treatment it is not possible in my opinion to assign an impairment rating to the shoulder condition.

Lower limb function

44. The AAT1 assigned a rating of 5 points under Table 3 which relates to Lower Limb Function.^[69] The left knee and left hip conditions were fully diagnosed, treated and stabilised when the applicant made his claim. There is no issue between the parties concerning the appropriateness of the 5 point rating.
45. In 2017 the applicant was interviewed for a Job Capacity Assessment. The applicant reported to the assessor that he could not lift his left leg to don a sock, that his sitting in a car is limited to 20-30 minutes and that he has a standing tolerance of 10-15 minutes.^[70] This assessment was appropriate for considering his 2019 claim.
46. The position of the applicant appears to have improved since the 2017 assessment. The applicant informed the AAT1 that he does not use a walking frame or a walking stick, although he uses a trolley for support when shopping. The applicant had then recently taken up playing lawn bowls.^[71]
47. I consider that the rating of 5 points under Table 3 is appropriate.

Mental health conditions

48. I consider that the adjustment disorder of the applicant has been with depressed and anxious mood was fully diagnosed for the purposes of assessing his claim.
49. On 7 December 2015, Dr John Chalk, psychiatrist, considered that the applicant did not suffer from a psychiatric illness and would not benefit from any psychological therapy or anti-depressant medication.^[72] However, on 29 August 2016 Ms Musson-Seedat, clinical psychologist, reported the Applicant undertook five sessions of treatment and reported that the adjustment disorder was persisting and that he required further treatment.^[73]
50. The Introduction to Table 5 stipulates that a diagnosis of a condition can be made by a clinical psychologist. In these circumstances where there has not been any more recent evaluation, I consider it is appropriate to have regard to the opinion of the treating psychologist who considers that the applicant still has some difficulties. Having regard to the Introduction to Table 5 I have placed some weight upon the opinion of the treating psychologist. The medical report of a clinical psychologist is certainly relevant to the assessment task required by the Table.^[74]
51. In my opinion it would not be appropriate to assign an impairment rating under Table 5 as in 2016 the applicant required further treatment and there is no evidence before me that this recommended treatment has been undertaken.

Tinnitus and vertigo

52. The respondent accepts that the tinnitus and vertigo condition of the applicant was fully treated and stabilised when he made his claim.^[75] The AAT1 considered that the most appropriate rating was 10 points under Table 11.^[76] However, the respondent contends that the more appropriate rating was 5 points under Table 11.^[77] For the reasons which follow I have decided not to disturb the rating that was assigned by the AAT1.
53. The respondent has quite properly acknowledged that the tinnitus and vertigo condition of the applicant is longstanding condition. Dr Sharon Kelly, ENT surgeon, in her report dated 9 December 2015 has confirmed while the vertigo was better the disequilibrium was still persisting. Dr Kelly considered that the activities of daily living can be performed without assistance except for demanding activities relating to his work such as climbing a ladder.^[78] There is also corroborating evidence from Dr Cafferty who in his report of 26 December 2019 has confirmed that the applicant has trouble sleeping due to dizziness and has balance problems.^[79]

Temporomandibular joint

54. During the hearing the applicant placed some reliance upon the medical opinion of Professor Monsour.^[80] Professor Monsour, in his report of 5 May 2017 has provided a diagnosis of the joint condition of the applicant, he had recommended that the applicant undertake treatment for his condition.^[81] Professor Monsour then considered that the treatment would take some 12 to 18 months to complete.^[82] I certainly accept this assessment by Professor Monsour who is a specialist of some seniority. Until this course of treatment that was recommended by Professor Monsour has been completed, I am unable to find that the condition has been fully treated or stabilised. In the circumstances, I am unable to assign a rating to the joint condition.

Functions of Consciousness

55. The AAT1 made a finding that 5 points should be awarded under Table 11 which applies to Functions of Consciousness.^[83] This finding was made on the basis of statements by the applicant that he has been a diabetic since 2015 and has had episodes of involuntary loss of consciousness more than twice a year that required emergency medication or hospitalisation.^[84] As the respondent in their submissions has not taken exception to this finding, I have decided that it would not be fair to disturb the rating of 5 points that was awarded for his condition.
56. Before the AAT1 the applicant mentioned the level of medication that he takes for the diabetes condition. However, there is no medical report which contains a diagnosis or documentation of the loss of consciousness condition when the applicant made his claim in 2019 (and within the thirteen-week qualification period thereafter). I note that Dr Cafferty in his comprehensive report dated 26 December 2019 refers to the fact that the applicant is being treated with medication for his epilepsy condition but does not mention that the applicant still experiences a loss of consciousness condition.^[85] I also note that there is no report by a medical specialist conforming the diagnosis of conditions associated with episodes of loss of consciousness (such as which is mentioned in the Introduction to Table 15). The applicant does not also have an endorsement on his driver’s license concerning the condition. Having regard to all the circumstances, I do not consider that a rating higher than 5 points under Table 11 is warranted.

Combined impairment rating

57. I have determined that the applicant has a combined impairment rating of 30 points over several Impairment Tables (Table 2, Table 3, Table 4, Table 5, and Table 11). This is the case with respect to the qualification period under his claim.

Continuing inability to work

58. As the applicant has satisfied s94(1)(b) of the Act by having impairments of 20 points or more under the Impairment Tables under the claim that he made on 29 May 2019, I now have to determine whether the Applicant had a ‘continuing inability to work’ under s 94(1)(c) of the Act.
59. A person has a ‘continuing inability to work’ if the Secretary is satisfied that she or her has ‘actively participated in a program of support’ and the impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, within the next two years.
60. A person with a ‘severe impairment’ does not have to satisfy the Secretary that they have actively participated in a program of support but will have to satisfy the Secretary the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support, or undertaking a training activity, within the next two years. The availability of work locally or a train activity is to be disregarded when deciding if a person has a continuing inability to ‘continuing inability to work’.
61. Under s 94(3B) of the Act a person’s impairment is considered a ‘severe impairment’ if he has been assigned 20 points or more under a single Impairment Table. I have determined that the applicant does not have a “severe impairment” because he does not have an impairment “of which 20 points or more are under a single Impairment Table” (s 94(3B) of the Act).
62. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Program of Support Determination) applied to the claim for DSP made by the applicant on 29 May 2019 as it applies to all claims made on or after 3 January 2015.
63. A person has actively participated in a program of support if they meet the requirements set out in the Determination. Part 2 of the Program of Support Determination sets out the requirements for active participation. This requires that a person must actively participate in a program provided by a designated provider that meets the requirements in Part 2.
64. It is common ground that the applicant has not actively participated in a Program of Support in the three year period which ended on 28 May 2019, that date is the day immediately before he made his claim for DSP. He has therefore not satisfied s 7(2) of the Program of Support Determination. There are some exceptions in ss 7(3) to (5) of the Program of Support Determination which do not apply to applicant who has not participated at all in a Program of Support where an applicant has participated for less than
65. The Applicant has 0 days of active participation in a Program of Support in the three years ending on the day immediately before he claimed DSP on 29 May 2019 and does not satisfy s7(2) of the POS Determination.^[86]
66. Subsections 7(3)-(5) of the Program of Support Determination contain a number of exceptions to the general requirement that a person must participate for at least 18 months in a Program of Support but those exceptions only apply where a person has participated in the Program of Support which is not the case here.
67. I have found that the applicant did not have a continuing inability to work under s 94(1)(c) of the Act, because he has not actively participated in a program of support under s 94(2)(aa) of the Act. This Tribunal cannot dispense with the operation of s 94(2)(aa) of the Act irrespective of whether or not an applicant was aware of the provision.^[87] I have also found that the applicant does not satisfy the exemptions in subsections 7(3)-(5) of the Program of Support Determination.
68. I have to consider whether the applicant satisfies s 94(2)(a) or (b) of the Act. The definition of ‘work’ in s 94(5) of the Act refers to work for at least 15 hours per week on ages that are at or above the relevant minimum wage that exists in Australia, even if not within the person’s locally accessible labour market.
69. The applicant has been assessed by a job capacity assessor on 22 March 2017 and 21 November 2019 as having a baseline work capacity of 8-14 hours per week and a capacity for work within two years of 15-22 hours per week. At the hearing the applicant did not challenge any of these assessments which I consider have fairly made.
70. I have concluded that during the qualification period of the claim the application did not satisfy s 94(1)(c) and s 94(2)(aa), (a) or (b) of the Act.

Applicant’s contentions and evidence

71. I find that the applicant has been open and honest throughout the Tribunal’s processes.
72. The applicant has made numerous and lengthy submissions, including on the morning of the hearing in favour of his argument that he is entitled to back-pay from either November 2014 or December 2016.^[88] It is evident to me that the applicant has taken the view that the primary issue for my determination is the start-date of his DSP. Therefore, the applicant contends that the Tribunal should uphold all findings of the decision of the AAT1, excepting that of the start date (Paragraph B of the AAT1 decision).^[89]
73. The applicant was advised on numerous occasions throughout this process, that the entirety of the decision would be reviewed, including his medical qualification for the DSP, not just the start date of his claim.^[90] This is demonstrated by the following comments made at the hearing by the applicant:

    Now, we’ve been going over two hours and I’m supposed to be at work. My team’s over on the other computer there is now just sitting dormant. I don’t have a permanent job. And you guys – I don’t mean this disrespectfully – you guys are getting paid right now. I’m not. You know? I’m trying to make a go of my life and I’m continually under scrutiny because they failed me. It makes no sense. Absolutely no sense.

    ... I’ve alluded to the fact that the only thing I want changed is that date to be either 22 December 2016 or 14 November 2014. I’ve specified that dozens of times.

    ...

    So I’m not sure why it’s unclear.^[91]

74. I note that in the applicant’s submission dated 21 December 2020 that an argument for a start-date of 4 February 2015 is advanced.^[92] However, this submission appears to have been abandoned by the applicant as it was not advanced at the hearing.
75. A common thread throughout the applicant’s submissions is the references to the decision under the CDDA Scheme to make an offer of compensation to the applicant,^[93] it is not clear whether the applicant accepted this offer. I note that as part of their closing submissions, the respondent provided correspondence addressed to the applicant which advised him that the offer had been withdrawn.^[94] I am unaware why the offer has been withdrawn. However, after considering the document, it appears that the applicant was under the misapprehension that he has succeeded in his second-tier review. Given that the offer has been withdrawn, and the factual information contained within appears to me, to be unreliable I give the original decision of the CDDA to offer the applicant compensation little weight.
76. The applicant has also contended in their written submissions, that with respect to the payability requirements, that he should be entitled to a claim start date of November 2014 as his periodic payments from WorkCover that were made during 2014-2015 were repaid by the applicant and therefore his income for that period was nil. I do not accept this submission. The applicant simply used his lump sum compensation to repay the WorkCover periodic payments, this does not change the factual reality that he was receiving an income at the relevant times.
77. The applicant has further advanced an argument that his claim of December 2016 was not handled appropriately. Namely, that the respondent did not act upon his request for internal review.^[95] Whilst there is some evidence to indicate that the applicant did request an appeal,^[96] an ARO conducted a review and provided a report dated 21 January 2020 which found the applicant’s 2016 claim should be rejected as the pension was not payable to the applicant. It is my understanding that if the ARO had determined the applicant’s claim should have been approved, then the start date for the claim would have been December 2016.
78. The applicant has advanced an argument that because his application was made out of time, and that an extension of time order was granted in this matter, that this speaks to the merits of his position. However, it is not the practice of the Tribunal to “undertake a merits review of the decision at an extension of time application”.^[97]
79. At the hearing, the applicant conceded that he has not participated in a program of support – stating that he was told there were none which were applicable to him (due to being on long-term compensation payments) and therefore he was not required to do them.^[98]
80. The applicant further confirmed at the hearing, that he was employed in 2021 and doing 7-8 hour shifts at a time. The applicant remarked that he did not know why he was let go from this position but did state he was placed on paid leave whilst an investigation was being undertaken. The applicant did not give any further information in this regard and indicated that he had none to give.^[99] When asked whether being let go had anything to do with his disability, he stated:

    Well, one would assume that Centrelink found out about it because I know that I was told by another team leader that they have actually spilt the - spilt the guts on you, as to say, and I believe if I was working so well at - I was - I’ve got documents there showing that I was doing well, so why was I cut? You need to find that out. If you can tell me, I’d be happy.^[100]

81. The applicant’s submissions received on 8 October 2021^[101] were lodged to deal with the respondent’s contention that the applicant was not medically qualified to receive the DSP during the relevant qualification periods.^[102] However, I have found little assistance from the applicant’s submissions dated 8 October 2021 in regard to his medical qualification for the DSP. These submissions appear to me, to have been primarily focussed on the issue of whether the applicant appealed the rejections of his claims within the 13 week period.
82. Throughout the applicant’s submissions, he expressed his frustration at the respondent and its conduct. It is not my function in this matter to comment on complaints about the conduct of staff of the respondent.
83. The applicant, throughout many of his submissions referred to an “Operational Blueprint”. This Operational Blueprint enables individuals who have had their DSP payments cancelled within the last two years to have their payment restored in certain circumstances. It does not require that the respondent reactivate payments. There is no statutory obligation upon the Secretary to do so.^[103] Further, I note the remarks of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs:^[104]

    ... the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferrable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.^[105]

84. I therefore do not attach any weight to the Operational Blueprint provided by the respondent and referred to by the applicant.
85. At this stage, I should also note that I have made an Order pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) with the consent of the applicant, which restricts the disclosure of the Operational Blueprint.

CONCLUSION

86. I am satisfied that the applicant has genuine impairments. The applicant may not fully appreciate the intricacies of social security law. The applicant is a person who while he has been in receipt of DSP has endeavoured to work to support his family whenever he can. Prior to the hearing he was employed by Centrelink and during the hearing he had another employer. He has always made disclosure of his compensation payments. If he needs to make any further claims, he should be afforded the assistance of a social worker. I note that many of the medical reports that were lodged by the applicant both during this process and as part of his claim for DSP were evidence that had been previously provided to Centrelink as part of past claims. In so far as I am able to infer from the medical evidence and records the functional impact on the applicant during the relevant qualification period, I have done so.

DECISION

87. Consistent with my reasoning above, I have decided to:
    1. I affirm the decision under review to reject the claim for disability support pension lodged by Mr Lockett on 9 September 1993; and
    2. I affirm the decision under review to reject the claim for disability support pension lodged by Mr Lockett on 23 July 2018; and
       100. I set aside the decision under review which decided that Mr Lockett was qualified for disability support pension under the claim lodged by Mr Lockett on 22 December 2016 and the date of effect of that decision is 6 January 2020; and in substitution I decide to reject the claim for disability support pension lodged by Mr Lockett on 22 December 2016; and
       4. I set aside the decision under review which decided that Mr Lockett was qualified for disability support pension under the claim lodged by Mr Lockett on 29 May 2019 and was qualified for disability support pension from the date of that claim and in substitution I decide to reject the claim for disability support pension lodged by Mr Lockett on 29 May 2019.

I certify that the preceding 87 (eighty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Dated: 29 September 2022

Dates of hearing:	16 September 2021; 8 October 2021
Date final submissions received:	18 November 2021
Applicant:	By video
Advocate for the Respondent:	Mr Christopher Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers

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^[1] Exhibit A, T Documents, T1.

^[2] Exhibit A, T Documents, T2.

^[3] Exhibit A, T Documents, T70-74.

^[4] Exhibit A, T Documents, T20-24; T34-36; T53; and T70-74.

^[5] Exhibit A, T Documents, T1.

^[6] Exhibit C, I, J; Transcript, pages 12-13.

^[7] Exhibit A, T Documents, T1.

^[8] Schedule 2, clause4(1) of the Administration Act.

^[9] Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]- [29]; Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; and Fanning and Secretary, Department of Social Services [2014] AATA 447 at [31]- [33].

^[10] Section 6(3) of the Determination.

^[11] Section6(3) and (4) of the Determination.

^[12] Section 6(6) of the Determination.

^[13] Exhibit A, T Documents, T9; Exhibit B and Exhibit C.

^[14] Exhibit A, T Documents, T68-69.

^[15] Exhibit B.

^[16] Social Security Act 1991(Cth), s 94 as at 2 April 1993.

^[17] Exhibit A, T Documents, T10 and Transcript, page 18.

^[18] Exhibit A, T Documents, T26.

^[19] Exhibit A, T Documents, T33.

^[20] Exhibit A, T Documents, T69.

^[21] Exhibit A, T Documents, T71.

^[22] Exhibit A, T Documents, T71.

^[23] Exhibit A, T Documents, T71.

^[24] Exhibit A, T Documents, T71.

^[25] Exhibit A, T Documents, T71.

^[26] Exhibit A, T Documents, T71.

^[27] Exhibit A, T Documents, T71.

^[28] Exhibit A, T Documents, T71.

^[29] Exhibit A, T Documents, T31.

^[30] Exhibit A, T Documents, T31.

^[31] Exhibit A, T Documents, T71.

^[32] Exhibit A, T Documents, T31.

^[33] Exhibit A, T Documents, T1.

^[34] Exhibit A, T Documents, T2.

^[35] [2015] FCA 473 at [14].

^[36] Exhibit A, T Documents, T26.

^[37] Exhibit A, T Documents, T36.

^[38] Exhibit A, T Documents, T36.

^[39] Exhibit A, T Documents, T68.

^[40] Exhibit A, T Documents, T68.

^[41] Exhibit A, T Documents, T38.

^[42] Transcript, page 26.

^[43] Exhibit A, T Documents, T72.

^[44] Exhibit A, T Documents, T42.

^[45] Section 92 of the Act.

^[46] Exhibit A, T Documents, T62.

^[47] Exhibit A, T Documents, T62

^[48] Exhibit A, T Documents, T62.

^[49] Exhibit A, T Documents, T1.

^[50] Exhibit A, T Documents, T30.

^[51] Exhibit A, T Documents, T30.

^[52] Transcript, pages 23-24.

^[53] Transcript, pages 23-24.

^[54] Exhibit A, T Documents, T30.

^[55] Exhibit A, T Documents, T30.

^[56] Exhibit A, T Documents, T30.

^[57] Exhibit A, T Documents, T30.

^[58] Exhibit A, T Documents, T30.

^[59] Transcript, pages 22-23.

^[60] Exhibit A, T Documents, T62.

^[61] Exhibit A, T Documents, T30.

^[62] Exhibit A, T Documents, T30.

^[63] Transcript, page 24.

^[64] Exhibit A, T Documents, T39.

^[65] Exhibit A, T Documents, T30.

^[66] Exhibit A, T Documents, T58.

^[67] Exhibit A, T Documents, T59.

^[68] Exhibit A, T Documents, T59.

^[69] Exhibit A, T Documents, T1.

^[70] Exhibit A, T Documents, T31.

^[71] Exhibit A, T Documents, T1.

^[72] Exhibit A, T Documents, T33.

^[73] Exhibit A, T Documents, T39, T57.

^[74] Sesalim v Secretary, Department of Social Services [2018] FCA 1159 at [65] per Bromberg J.

^[75] Exhibit B.

^[76] Exhibit A, T Documents, T1.

^[77] Exhibit B; Respondent’s Closing Submissions.

^[78] Exhibit A, T Documents, T33.

^[79] Exhibit A, T Documents, T62.

^[80] Transcript, pages 49, 52.

^[81] Exhibit A, T Documents, T37.

^[82] Exhibit A, T Documents, T37.

^[83] Exhibit A, T Documents, T1.

^[84] Exhibit A, T Documents, T1.

^[85] Exhibit A, T Documents, T62.

^[86] Exhibit B.

^[87] Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, [2013] AATA 50.

^[88] Exhibits D-K.

^[89] Exhibit E.

^[90] Transcript, pages 3-5.

^[91] Transcript, page 53.

^[92] Exhibit I.

^[93] Exhibit H.

^[94] Respondent’s Closing Submissions, Attachment 1.

^[95] Exhibit I.

^[96] Exhibit A, T Documents, T65-68.

^[97] Dennis Pearce, Administrative Appeals Tribunal, 5^th Ed 2020 [6.22], p 98.

^[98] Transcript, page 20.

^[99] Transcript, pages 29-31.

^[100] Transcript, page 31.

^[101] Exhibit K.

^[102] Transcript, pages 3-6.

^[103] Cf., Section 95 of the Administration Act.

^[104] (1979) 2 ALD 60.

^[105] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at [70].