Jackson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 669 (28 September 2011)

Last Updated: 28 September 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 669

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2976

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SIMON-DEE JACKSON

Applicant

And

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

Respondent

DECISION

Tribunal

The Hon R J Groom AO (Deputy President)

Date 28 September 2011

Place Hobart

Decision

The decision under review is set aside. The applicant is to be paid disability support pension with effect from 15 September 2009.

[Sgd Hon R J Groom]
Deputy President

CATCHWORDS

SOCIAL SECURITY - disability support pension – pharyngeal carcinoma – depression – whether impairment rating of 20 points – whether condition permanent – whether continuing inability to work – applicant qualified to receive disability support pension – decision under review set aside

Social Security Act 1991, s 94, Schedule 1B

Social Security (Administration) Act 1999, ss 41, 42, Schedule 2, Clause 3

Secretary, Department of Social Security and Symons [1996] AATA 10662

Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467

Hudson and Secretary, Department of Family and Community Services [2000] AATA 502

Maroun and Secretary, Department of Family and Community Services [2003] AATA 347

REASONS FOR DECISION

28 September 2011

The Hon R J Groom AO (Deputy President)

INTRODUCTION

1. This is a review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 9 June 2010 affirming the Centrelink decision to reject a claim made by the applicant on 15 September 2009 for a disability support pension (“DSP”).

ISSUE

2. The principal issue to be determined by the Tribunal is whether Mr Jackson satisfies the requirements of section 94 of the Social Security Act 1991 (“the Act”) that there be an impairment rating of at least 20 points and also a continuing inability to work as at the date of claim or within 13 weeks of that date.

BACKGROUND FACTS

3. On 20 January 2009 Mr Jackson was diagnosed with transglottic carcinoma and on 11 February 2009 underwent major surgery involving a total laryngectomy and hemithyroidectomy. He has also been diagnosed as suffering PTSD or depression. The onset of that condition occurred soon after the throat operation.
4. Mr Jackson lodged his original claim for a DSP on 18 February 2009. The claim was rejected on the 3 March 2009. It was then decided that his medical condition at the time was not fully treated and stabilised.
5. On 15 September 2009 the applicant lodged a new claim for DSP. The claim was also rejected by Centrelink as the applicant’s impairment rating was less than the required minimum of 20 points. On 9 June 2010 the SSAT affirmed the decision to reject the claim.
6. The applicant now seeks a review of the decision made by the SSAT on 9 June 2010.

THE LAW

7. Section 94 of the Act relevantly provides as follows:
   • “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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
   • (d) the person has turned 16; and
   • (e) the person either:
     • (i) is an Australian resident at the time when the person first satisfies paragraph (c); or
     • (ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
   • (iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;

• and the person becomes an Australian resident while a dependent child of an Australian resident; and

(f) the person is not qualified for disability support pension under section 94A”.

8. It is not in issue that section 94(1)(a) is satisfied in this case as the applicant has an impairment arising from two conditions, being the throat condition and also the related psychiatric condition. Sub-sections 94(1)(d), (e) and (f) are also satisfied as conceded in the respondent’s Statement of Facts and Contentions.
9. The respondent contends however that the applicant did not satisfy section 94(1)(b) and (c) as it is alleged that at the relevant time he did not have an impairment rating of at least 20 points nor at that time a continuing inability to work.

10. The Social Security (Administration) Act 1999 provides that the “start date” to qualify for DSP is the date of the claim (See sections 41 and 42 and Schedule 2, pf the Social Security (Administration) Act 1999. The qualification and impairment ratings must be determined as at the date of claim but if the person is not qualified on the date of the claim, he or she can become qualified within 13 weeks of lodging the claim. In this case the applicant lodged his claim for DSP on 15 September 2009. Therefore, the qualification period that applied to him was 15 September 2009 until 15 December 2009.

11. Section 94(1)(b) requires that the applicant’s impairment rating must be at least 20 points using the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (“the Impairment Tables”) set out in Schedule 1B of the Act.

12. Paragraph 4 of the Introduction to the Tables states that:

“For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

13. In paragraph 5 of the Introduction to the Tables the following is added:

“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”.

THE THROAT CONDITION

14. As has been mentioned the applicant underwent surgery for his carcinoma. He now uses a Provox voice prosthesis. It is necessary for him to attend specialists periodically and also from time to time to attend hospital for day surgery to have the stoma cleared.

15. The job capacity assessor who saw the applicant on 15 October 2009 concluded the throat condition was then fully diagnosed, treated and stabilised and could be assigned an impairment rating of 10 points using Table 20 of the Impairment Tables. (See T8, page 52)

16. It is noted that the SSAT also concluded the throat condition could be assigned an impairment rating but determined the appropriate impairment rating at 15 points also using Table 20. (T2, para 24)

17. The respondent concedes that the throat condition is fully diagnosed, treated and stabilised and can be assigned an impairment rating. At the hearing Mr Aaberg for the respondent also conceded the appropriate rating for this condition to be 15 points. Mr Jackson submitted at the hearing that the appropriate rating was 20 points.

18. The Tribunal finds that Mr Jackson’s throat condition was at the date of his DSP claim on 15 September 2009 “fully diagnosed, treated and stabilised” and can be assigned an impairment rating to be applied on and from that date. It is agreed that the appropriate table is Table 20.

19. The Tribunal had the most informative opportunity to observe Mr Jackson presenting his case and giving evidence. It found him to be an honest witness. It is clear that he is suffering from a severe disability. Although he was readily understood he speaks with a husky voice aided by his prosthesis. It is obvious that speaking causes him significant discomfort. It is necessary for Mr Jackson to clear his prosthesis from time to time so that he can continue to speak.

20. Mr Jackson gave evidence of a decreased ability to carry out many everyday activities including using the telephone, communicating with people in various situations, shopping, and in undertaking other normal activities. He has difficulty completing most daily activities and avoids some tasks. He gets tired and has difficulty “getting out of bed in the morning”.

After considering all of the material before it the Tribunal finds that the impairment rating to be applied to Mr Jackson’s throat condition is 20 points as at the date of his DSP claim of 15 September 2009.

PTSD/DEPRESSION

21. In a medical report of 8 September 2009 Mr Jackson’s treating doctor, Dr Markabawi (T6) said: a diagnosis of PTSD was made in June 2009 and that:

“After he had his operation and lost his larynx he started getting severe depression and mood swings”.

Dr Markabawi ticked a box indicating that the impact would persist for “more than 24 months”. (This was the maximum period provided in the boxes).

22. In a Job Capacity Assessment Report (“JCA”) submitted on 7 February 2011 and prepared by Gretta Brotheridge, occupational therapist, and Rosemary Tremayne, qualified social worker (Exhibit R3) the condition of “PTSD/depression” is mentioned. It is said to be “permanent”. The report states at page 2 as follows:

“TDR dated 16.12.10 states that this condition is expected to persist for more than 24 months and that the effect of the condition on his ability to function over the next 2 years is uncertain. The same information was provided in the TDR of 22.9.09. During this time the client has participated in regular psychological counselling but from the information provided by the client it can be deduced that there has been little improvement in the condition. Therefore this condition has been considered stabilised”.

The report confirms that the condition of depression has been “fully diagnosed”, “fully treated” and “fully stabilised”.

23. Later in the same JCA Report of 7 February 2011 the following was reported (Page 4):

“Low mood, client reports to have more bad days that (sic) good. Reduced motivation and limited activity, client reports difficulty attending to normal daily activities. Client reports significantly reduced social contact stating that he does not catch up with friends as he can break down at any time. Reduced self esteem and self confidence, suicidal thoughts, difficulty copy with stress and increased agitation. Poor sleep and high levels of fatigue. Client reports poor ability to attend to simple tasks and short term memory loss”.

24. The two assessors in their report dated 7 February 2011 allocate to the condition of depression/PTSD an impairment rating of 10 under Impairment Table 6.

25. In an earlier JCA Report of 15 October 2009 (T8) the assessor Jacob Lee, who is an “accredited exercise physiologist” reported on Mr Jackson’s “post traumatic stress disorder”. He described the condition as “temporary” despite the medical practitioner concerned expressing the view that the prognosis was “uncertain”. Mr Jacob explained the condition in the following terms:

“Current symptoms and functional impact: TDR states the current symptoms include flat, angry, severe tiredness and anxious. Mr Jackson reported his symptoms include low mood, low motivation, suicidal thoughts, anxiety, frequent crying, limited sleep, easily agitated and unable to deal with stress. Mr Jackson reported he has limited contact with people outside of his parents and he prefers to be left alone. Mr Jackson reported he attempted suicide in the past.
Expected Outcomes from Treatment: With ongoing medical and psychological treatment this condition is expected to significantly improve”.

26. It is unclear as to the basis of Mr Lee’s opinion that the PTSD is temporary in nature. Certainly it is in direct conflict with the later report of Gretta Brotheridge and Rosemary Tremayne. They describe the PTSD/depression condition as “permanent” but, of course, were reporting at a later point in time.

27. Mr Jackson when giving evidence described in detail his psychiatric condition including low mood, anxiety, reduced confidence and lack of motivation and difficulties in maintaining proper relationships. He said “I’ve been very upset with everything”. He stressed in a most persuasive manner that his psychiatric problems including depressed feelings commenced from the time he had his operation and have continued throughout the period since. He said in evidence that “nothing has changed”. He said he had suffered depression since the operation and that “it’s the same thing”.

28. After considering all of the evidence including Mr Jackson’s oral evidence and the views expressed by the assessor’s in their JCA Report of 7 February 2011, the Tribunal finds that the appropriate impairment rating in Table 6 for Mr Jackson’s PTSD/depression was 10 points as at 15 September 2009.

29. The Tribunal is satisfied that the condition is essentially unchanged from the date of Mr Jackson’s DSP claim and finds that it was “fully diagnosed, treated and stabilised” at that time, interpreting that phrase in a fair and reasonable manner. (See Secretary, Department of Social Security and Symons [1996] AATA 10662 and Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467).

CONTINUING INABILITY TO WORK

30. The relevant test as to whether or not a person has a continuing inability to work is set out in sub-sections (2), (3), (4) and (5) of section 94 of the Act.

31. Put briefly a person has a continuing inability to work if they cannot work for 15 hours or more per week within the next two years without support, they cannot be retrained, or any retraining is unlikely to enable them to work 15 hours per week within two years.

32. In the JCA Report of 15 October 2009 the assessor considered that when not taking into account “temporary” conditions (for example the PTSD) Mr Jackson had a current work capacity of 15-22 hours per week (T8/54). A capacity to work 15-22 hours per week exceeds that required to satisfy the continuing inability to work provisions in the Act.

33. In the later JCA Report of 7 February 2011 the assessors express the view that Mr Jackson has a far more limited capacity for work than that expressed in the earlier report of 15 October 2009. The assessors state that the “current base line work capacity” is 8-14 hours per week; “future capacity for work within two years with intervention” is 8-14 hours per week; the “fully diagnosed, treated and stabilised work capacity currently” is 8-14 hours per week; the “fully diagnosed, treated and stabilised work capacity with intervention” is 8-14 hours per week and the “fully diagnosed, treated and stabilised work capacity without intervention in the future” is 8-14 hours per week. (See pages 5 and 6 of the JCA Report of 7 February 2011)

34. Although the two JCA Reports already referred to were written at different points in time (some 16 months apart) the Tribunal considers that the report of 7 February 2011 should be given more weight than the earlier report. The Tribunal finds the later report to be more persuasive. The opinions in the two reports are markedly different in a number of respects. As one example, the earlier report suggested that suitable work for Mr Jackson would include “bus driver”. This was not suggested in the later report. The Tribunal is far from persuaded that bus driving would be a suitable occupation for someone with a significant disability who cannot speak without using one hand to assist him in operating his prosthesis.

35. Taking into account its view that the two medical conditions were diagnosed, treated and stabilised at 15 September 2009, and also giving due weight to the JCA Report of 7 February 2011, the Tribunal finds that Mr Jackson satisfies the “continuing inability to work” test as set out in section 94 of the Act. The Tribunal finds that the applicant satisfies that test on 15 September 2009.

CONCLUSION

36. Mr Jackson represented himself at the hearing. As indicated his oral evidence was most helpful to the Tribunal in assessing his entitlement to a DSP at the date of claim, particularly as no medical practitioners were called to give evidence and indeed there are no detailed medical reports in evidence before the Tribunal.

37. After considering all of the material before it the Tribunal is satisfied that Mr Jackson was qualified for a DSP at the date of his claim on 15 September 2009. It is satisfied that his two conditions and his incapacity for work have not changed since he lodged his claim for the DSP. Over time the assessments of his conditions and his capacity for work may have changed but the reality of his state of health and work capacity has not.

38. This is not a case where the conditions have become worse since the claim with Mr Jackson only becoming qualified for a DSP at a date subsequent to the date of the claim and after the initial 13 weeks qualifying period had expired. (See Hudson and Secretary, Department of Family and Community Services [2000] AATA 502 and Maroun and Secretary, Department of Family and Community Services [2003] AATA 347). The Tribunal has concluded that Mr Jackson was qualified to receive a DSP on the date he lodged his claim.

DECISION

39. The decision under review is set aside. The applicant is to be paid DSP with effect from 15 September 2009.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)

Signed: R Hunt - Associate

Date/s of Hearing 16 August 2011

Date of Decision 28 September 2011

Solicitor for the Applicant Applicant on his own behalf

Solicitor for the Respondent Mr F Aaberg, Program Litigation and Review Branch