Post by Banjo on Apr 30, 2014 20:34:38 GMT 7
Udrzal and Secretary, Department of Social Services [2014] AATA 232 (17 April 2014)
Last Updated: 22 April 2014
[2014] AATA 232
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2013/2726
Re
Michael Udrzal
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Deputy President PE Hack SC
Date
17 April 2014
Place
Brisbane (heard in Darwin)
The decision under review is set aside and the matter remitted to the respondent for reconsideration in accordance with a direction that a written determination be made pursuant to s 1218AAA of the Social Security Act 1991 (Cth).
The decision to cancel the applicant’s disability support pension is set aside and a decision made in substitution for it that the applicant’s disability support pension not be cancelled.
..........................[Sgd]........................................
Deputy President PE Hack SC
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – portability - whether outside Australia when cancellation decision made – severe impairment -whether job capacity assessment required - whether fully treated and stabilised and likely to persist for more than two years.
LEGISLATION
Social Security Act 1991 (Cth) ss 94(1), 94(3B), 1218AAA(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Clause 6
SECONDARY MATERIALS
Guide to Social Security Law [7.1.1.10]
REASONS FOR DECISION
Deputy President PE Hack SC
17 April 2014
For many years, recipients of disability support pension were required to be Australian residents in order to qualify to receive that pension but they were not required to be Australian residents thereafter. That came about because disability support pension was "portable" for up to 13 weeks. Thus, what commonly occurred was that many recipients lived overseas and returned briefly to Australia every 13 weeks to retain the benefit of a disability support pension.
That situation changed from 1 July 2011 by virtue of an amendment made to the Social Security Act 1991 (Cth) (the Act) by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 (Cth). That amendment added a further qualification for disability support pension, the requirement that the person continue to be an Australian resident.
The applicant in these proceedings, Mr Michael Udrzal, has been the recipient of disability support pension for many years. And, for a number of years, he has lived in Bali. On 23 January 2011 Mr Udrzal returned to Australia from Bali and attended Centrelink’s Darwin Service Centre where a residency assessment was completed. The following day, as a consequence of a review of his eligibility following the amendment to the Act, Centrelink cancelled his disability support pension because it took the view that he was not an Australian resident. That decision was affirmed on internal review and by the Social Security Appeals Tribunal on 23 April 2013. Mr Udrzal sought a review of that decision by this Tribunal and the matter initially came on for hearing before me in Darwin on 14 October 2013. It became evident in the course of that hearing that Mr Udrzal could not satisfy the requirement to be an Australian resident. His visits to Australia, whilst regular and frequent, were only visits. He was not then an Australian resident; he was a resident of Bali.
But it also became evident that there was one aspect of the matter that had not been fully considered by Centrelink and that is whether Mr Udrzal satisfied the requirements of s 1218AAA of the Act. If he did so, he had unlimited portability. With the agreement of the parties I made a direction pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) that the matter be remitted to the Secretary for reconsideration. The Secretary reconsidered the decision, having arranged for Mr Udrzal to participate in a job capacity assessment, however the decision was affirmed. Hence the proceedings resumed, by telephone, on 10 April 2014.
The qualifications for disability support pension are set out in s 94(1) of the Act. The starting point is that, to be qualified for disability support pension, a person must have a physical, intellectual or psychiatric impairment (or impairments) of sufficient severity to warrant an assessment of 20 points or more under the Impairment Tables as well as a "continuing inability to work" as that expression is defined in s 94(2) of the Act. The present case concerns the further requirement of s 94(1)(ea) of the Act. It provides,
(1) A person is qualified for disability support pension if:
...
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA (1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a),(b),(c), (d) and (e) exist in relation to the person.
Mr Udrzal is not an Australian resident and there is, and could not sensibly be, any suggestion that subparagraph (ii) was engaged. The question is whether, in Mr Udrzal’s circumstances, a determination could be made under s 1218AAA(1) of the Act. That section reads:
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a) the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b) the person’s portability period for disability support pension had not ended at the time the event occurred.
(3) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(4) A determination under subsection (1) is not a legislative instrument.
(5) In this section:
work means work:
(a) that is on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
A "severe impairment" is defined in s 94(3B) of the Act as an impairment that warrants 20 points or more under a single Impairment Table.
Consideration of the question whether a determination could be made under s 1218AAA of the Act must be made as at January 2013 when Mr Udrzal’s disability support pension was cancelled and is informed by two impairments suffered by him, both the consequence of a stroke suffered by him in October 2012. Mr Udrzal has other impairments – diabetes, vasculitis and hypertension – that do not affect his ability to function normally and may be disregarded. The extent of the impairment arising from the stroke was assessed in the job capacity assessment undertaken in October 2013 following the earlier hearing. That assessment, undertaken by an exercise physiologist, concluded that, as at October 2013 Mr Udrzal had a traumatic brain injury (as a consequence of his earlier stroke) which warranted the rating of 20 points on the Impairment Tables. A further five points was assessed for another impairment arising from the stroke but no separate consideration of that impairment is warranted. The rating of 20 points for the traumatic brain injury satisfies the definition of severe impairment because the 20 points was under a single Impairment Table.
The Secretary accepts that, as at 24 January 2013, each of paragraphs (a), (c) and (d) of s 1218AAA was made out, that is,
Mr Udrzal was, immediately prior to the cancellation decision, receiving disability support pension;
Mr Udrzal will have the impairment, the traumatic brain injury, for at least the next five years; and
the impairment would prevent him from performing any work independently of the programme of support within that period.
But the Secretary says that a determination under s 1218AAA could not then be made for three reasons. First, because Mr Udrzal was outside Australia when the cancellation decision was made. Next, because a job capacity assessment was not undertaken in January 2013. Finally, because, in January 2013, the impairment constituted by the traumatic brain injury was not fully diagnosed, treated and stabilised and likely to persist for more than two years and thus not capable of being assigned a rating under the Impairment Tables.
The first point arises because Mr Udrzal arrived in Australia from Bali on 23 January 2013, attended Centrelink’s Darwin office and then returned to Bali on the same day. Thus, the Secretary contends, he was "outside Australia" on 24 January 2013 when the cancellation decision was made and by virtue of s 1218AAA(2) of the Act, a subsection (1) determination "must not" be made, there being no suggestion that a serious accident or hospitalisation prevented Mr Udrzal from returning to Australia.
The second argument relies upon the terms of the Guide to Social Security Law. Paragraph 7.1.1.10 of that Guide suggests that disability support recipients seeking unlimited portability under s 1218AAA(1) "are required to undergo a portability assessment that includes the [Job Capacity Assessment] processes".
I am unable to accept either of these arguments. Mr Udrzal says, and I accept, that he was told on 23 January 2013 that a job capacity assessment could not be organised for that day. He also says, and again I accept, that he could have put off his return to Bali had that been required for him to undertake a job capacity assessment at some later time. It is true that, by 24 January 2013 when the cancellation decision was made, he was outside Australia, but the scheme of the Act requires that consideration of a s 1218AAA determination precedes the decision to cancel. Were it otherwise, the criteria in s 1218AAA(1)(a) of the Act, that the person be receiving disability support pension, could not be satisfied. Mr Udrzal attended Centrelink on 23 January 2013. Obviously enough, he was then in Australia. His attendance at Centrelink obliged the decision maker to consider the application of s 1218AAA to his circumstances. Thus, on that day, the decision maker ought to have considered, but did not consider, the application of the unlimited portability provisions. If, as the Secretary’s argument accepts, the Tribunal is required to consider a decision required to be made but not actually made I can see no reason why that consideration should be deferred to the following day by which time Mr Udrzal was outside Australia. It would be poor public administration to consciously, or unconsciously, defer making a decision if the delay was, of itself, a sufficient reason to defeat a claim. Proper public administration requires the making of prompt decisions, all the more so when delay will defeat an otherwise valid claim. In this case a decision was required on 23 January 2013 when Mr Udrzal was in Australia. At worst, he ought to have been asked to defer his return to Bali to enable the necessary investigations to be undertaken. He was able to attend a medical practitioner to obtain a detailed medical report.
I also reject the argument which relies upon the terms of the Guide. It is understandable that the Secretary might regard it as desirable that a job capacity assessment be undertaken in order to inform a determination under s 1218AAA of the Act but it cannot be a pre-requisite to the determination unless the Act makes it so. It does not. I reject the contention that a failure to undertake the job capacity assessment means that the Secretary (and thus the Tribunal) was unable to make a s 1218AAA determination.[1] To do so puts an unwarranted gloss on the terms of the legislation.
The Secretary’s third argument requires that reference be made to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination), a legislative instrument made by the Minister pursuant to a power conferred by s 26 of the Act and which, by s 27 of the Act, must be applied in considering claims for disability support pension. The rules for applying the Impairment Tables are explained in Part 2 of the Determination. Clause 6(3)(a), within that Part, provides that the impairment rating can only be assigned to an impairment if the person's condition causing that impairment is permanent. Clause 6(4) then provides,
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Clause 6(5) provides,
(5) in determining whether a condition has been fully diagnosed by an appropriate qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Given the argument for the Secretary it is also necessary to consider the terms of clause 6(6) which deals with the concept of "fully stabilised" in this way:
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling that person to undertake work in the next two years is not expected result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
There is no doubt that by January 2013 Mr Udrzal’s condition had been fully diagnosed by an appropriately qualified medical practitioner. Moreover, the Secretary accepts that by October 2013 the condition was fully treated, fully stabilised and more likely than not to persist for more than two years. The Secretary contends that in January 2013 it was not possible to say that the condition was fully treated or stabilised because the original stroke had occurred only 90 days earlier. The job capacity assessor said of the condition in October 2013,[2]
As the client's stroke occurred 12 months ago, the majority of his functional gains will have already taken place. As with most people who suffer a stroke, significant improvement in function is not expected after this time, hence the assessor is in agreement with the GP that improvement in functioning is highly unlikely.
When later asked about the position in January 2013 the job capacity assessor advised, [3]
With regards to your second question regarding retrospective assessment, in my opinion it would have been very difficult to classify the client’s condition as FDTS [fully diagnosed, treated and stabilised] at this time as I stated earlier, this is the time when the majority of gains are made. Therefore it would have been difficult to say that the client’s condition had stabilised at this point in time.
On that basis the decision maker, on reconsideration, concluded that it would not have been possible to have assigned an impairment rating to Mr Udrzal’s condition in January 2013.
In my view that conclusion was not warranted by the evidence available. It demonstrated that Mr Udrzal had experienced a stroke in October 2012. He had been hospitalised for two weeks. He could not walk unaided. The fine motor functions of his hand had been affected. His medical practitioner regarded his resulting condition as one that would have a significant impact on his ability to function. He needed physiotherapy and was undergoing daily physical therapy. The medical practitioner’s report concluded that the then current impact of the condition on his ability to function was expected to persist for more than five years and that within that period his ability to function was expected to remain unchanged. The doctor also reported that Mr Udrzal would have a residual deficit of function. There is no suggestion that the treatment being undertaken, physiotherapy and daily therapy, could restore any degree of functional capacity. Mr Udrzal had undertaken reasonable treatment for the condition. The only conclusion open, in light of the report of the medical practitioner, was that treatment would be unlikely to result in significant functional improvement to a level enabling Mr Udrzal to undertake work in the following two years. It is not enough to postulate that functional gains might be made after January 2013. What the definition of fully stabilised requires is that continued treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the following two years.
In my view it ought to have been concluded that, in January 2013, Mr Udrzal’s condition had been fully diagnosed, fully treated and fully stabilised. That being so it was capable of being assigned a rating under the Impairment Tables. The Secretary accepts that a rating of 20 points was warranted in October 2013. On the view I take it was warranted in January 2013.
I am then satisfied that Mr Udrzal had an impairment that was a severe impairment within the meaning of s 94(3B) of the Act in January 2013 and thus satisfies paragraph (b) of s 1218AAA(1) of the Act. Given that the Secretary, properly in my view, accepts that the other paragraphs of that subsection are satisfied I propose to set aside the decision and remit the matter to the Secretary for reconsideration in accordance with a direction that the Secretary make a written determination pursuant to s 1218AAA of the Act. In those circumstances his disability support pension ought not to have been cancelled because he satisfied subparagraph (ea)((ia) of s 94(1) of the Act.
www.austlii.edu.au/au/cases/cth/aat/2014/232.html
Last Updated: 22 April 2014
[2014] AATA 232
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2013/2726
Re
Michael Udrzal
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Deputy President PE Hack SC
Date
17 April 2014
Place
Brisbane (heard in Darwin)
The decision under review is set aside and the matter remitted to the respondent for reconsideration in accordance with a direction that a written determination be made pursuant to s 1218AAA of the Social Security Act 1991 (Cth).
The decision to cancel the applicant’s disability support pension is set aside and a decision made in substitution for it that the applicant’s disability support pension not be cancelled.
..........................[Sgd]........................................
Deputy President PE Hack SC
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – portability - whether outside Australia when cancellation decision made – severe impairment -whether job capacity assessment required - whether fully treated and stabilised and likely to persist for more than two years.
LEGISLATION
Social Security Act 1991 (Cth) ss 94(1), 94(3B), 1218AAA(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Clause 6
SECONDARY MATERIALS
Guide to Social Security Law [7.1.1.10]
REASONS FOR DECISION
Deputy President PE Hack SC
17 April 2014
For many years, recipients of disability support pension were required to be Australian residents in order to qualify to receive that pension but they were not required to be Australian residents thereafter. That came about because disability support pension was "portable" for up to 13 weeks. Thus, what commonly occurred was that many recipients lived overseas and returned briefly to Australia every 13 weeks to retain the benefit of a disability support pension.
That situation changed from 1 July 2011 by virtue of an amendment made to the Social Security Act 1991 (Cth) (the Act) by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 (Cth). That amendment added a further qualification for disability support pension, the requirement that the person continue to be an Australian resident.
The applicant in these proceedings, Mr Michael Udrzal, has been the recipient of disability support pension for many years. And, for a number of years, he has lived in Bali. On 23 January 2011 Mr Udrzal returned to Australia from Bali and attended Centrelink’s Darwin Service Centre where a residency assessment was completed. The following day, as a consequence of a review of his eligibility following the amendment to the Act, Centrelink cancelled his disability support pension because it took the view that he was not an Australian resident. That decision was affirmed on internal review and by the Social Security Appeals Tribunal on 23 April 2013. Mr Udrzal sought a review of that decision by this Tribunal and the matter initially came on for hearing before me in Darwin on 14 October 2013. It became evident in the course of that hearing that Mr Udrzal could not satisfy the requirement to be an Australian resident. His visits to Australia, whilst regular and frequent, were only visits. He was not then an Australian resident; he was a resident of Bali.
But it also became evident that there was one aspect of the matter that had not been fully considered by Centrelink and that is whether Mr Udrzal satisfied the requirements of s 1218AAA of the Act. If he did so, he had unlimited portability. With the agreement of the parties I made a direction pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) that the matter be remitted to the Secretary for reconsideration. The Secretary reconsidered the decision, having arranged for Mr Udrzal to participate in a job capacity assessment, however the decision was affirmed. Hence the proceedings resumed, by telephone, on 10 April 2014.
The qualifications for disability support pension are set out in s 94(1) of the Act. The starting point is that, to be qualified for disability support pension, a person must have a physical, intellectual or psychiatric impairment (or impairments) of sufficient severity to warrant an assessment of 20 points or more under the Impairment Tables as well as a "continuing inability to work" as that expression is defined in s 94(2) of the Act. The present case concerns the further requirement of s 94(1)(ea) of the Act. It provides,
(1) A person is qualified for disability support pension if:
...
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA (1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a),(b),(c), (d) and (e) exist in relation to the person.
Mr Udrzal is not an Australian resident and there is, and could not sensibly be, any suggestion that subparagraph (ii) was engaged. The question is whether, in Mr Udrzal’s circumstances, a determination could be made under s 1218AAA(1) of the Act. That section reads:
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a) the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b) the person’s portability period for disability support pension had not ended at the time the event occurred.
(3) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(4) A determination under subsection (1) is not a legislative instrument.
(5) In this section:
work means work:
(a) that is on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
A "severe impairment" is defined in s 94(3B) of the Act as an impairment that warrants 20 points or more under a single Impairment Table.
Consideration of the question whether a determination could be made under s 1218AAA of the Act must be made as at January 2013 when Mr Udrzal’s disability support pension was cancelled and is informed by two impairments suffered by him, both the consequence of a stroke suffered by him in October 2012. Mr Udrzal has other impairments – diabetes, vasculitis and hypertension – that do not affect his ability to function normally and may be disregarded. The extent of the impairment arising from the stroke was assessed in the job capacity assessment undertaken in October 2013 following the earlier hearing. That assessment, undertaken by an exercise physiologist, concluded that, as at October 2013 Mr Udrzal had a traumatic brain injury (as a consequence of his earlier stroke) which warranted the rating of 20 points on the Impairment Tables. A further five points was assessed for another impairment arising from the stroke but no separate consideration of that impairment is warranted. The rating of 20 points for the traumatic brain injury satisfies the definition of severe impairment because the 20 points was under a single Impairment Table.
The Secretary accepts that, as at 24 January 2013, each of paragraphs (a), (c) and (d) of s 1218AAA was made out, that is,
Mr Udrzal was, immediately prior to the cancellation decision, receiving disability support pension;
Mr Udrzal will have the impairment, the traumatic brain injury, for at least the next five years; and
the impairment would prevent him from performing any work independently of the programme of support within that period.
But the Secretary says that a determination under s 1218AAA could not then be made for three reasons. First, because Mr Udrzal was outside Australia when the cancellation decision was made. Next, because a job capacity assessment was not undertaken in January 2013. Finally, because, in January 2013, the impairment constituted by the traumatic brain injury was not fully diagnosed, treated and stabilised and likely to persist for more than two years and thus not capable of being assigned a rating under the Impairment Tables.
The first point arises because Mr Udrzal arrived in Australia from Bali on 23 January 2013, attended Centrelink’s Darwin office and then returned to Bali on the same day. Thus, the Secretary contends, he was "outside Australia" on 24 January 2013 when the cancellation decision was made and by virtue of s 1218AAA(2) of the Act, a subsection (1) determination "must not" be made, there being no suggestion that a serious accident or hospitalisation prevented Mr Udrzal from returning to Australia.
The second argument relies upon the terms of the Guide to Social Security Law. Paragraph 7.1.1.10 of that Guide suggests that disability support recipients seeking unlimited portability under s 1218AAA(1) "are required to undergo a portability assessment that includes the [Job Capacity Assessment] processes".
I am unable to accept either of these arguments. Mr Udrzal says, and I accept, that he was told on 23 January 2013 that a job capacity assessment could not be organised for that day. He also says, and again I accept, that he could have put off his return to Bali had that been required for him to undertake a job capacity assessment at some later time. It is true that, by 24 January 2013 when the cancellation decision was made, he was outside Australia, but the scheme of the Act requires that consideration of a s 1218AAA determination precedes the decision to cancel. Were it otherwise, the criteria in s 1218AAA(1)(a) of the Act, that the person be receiving disability support pension, could not be satisfied. Mr Udrzal attended Centrelink on 23 January 2013. Obviously enough, he was then in Australia. His attendance at Centrelink obliged the decision maker to consider the application of s 1218AAA to his circumstances. Thus, on that day, the decision maker ought to have considered, but did not consider, the application of the unlimited portability provisions. If, as the Secretary’s argument accepts, the Tribunal is required to consider a decision required to be made but not actually made I can see no reason why that consideration should be deferred to the following day by which time Mr Udrzal was outside Australia. It would be poor public administration to consciously, or unconsciously, defer making a decision if the delay was, of itself, a sufficient reason to defeat a claim. Proper public administration requires the making of prompt decisions, all the more so when delay will defeat an otherwise valid claim. In this case a decision was required on 23 January 2013 when Mr Udrzal was in Australia. At worst, he ought to have been asked to defer his return to Bali to enable the necessary investigations to be undertaken. He was able to attend a medical practitioner to obtain a detailed medical report.
I also reject the argument which relies upon the terms of the Guide. It is understandable that the Secretary might regard it as desirable that a job capacity assessment be undertaken in order to inform a determination under s 1218AAA of the Act but it cannot be a pre-requisite to the determination unless the Act makes it so. It does not. I reject the contention that a failure to undertake the job capacity assessment means that the Secretary (and thus the Tribunal) was unable to make a s 1218AAA determination.[1] To do so puts an unwarranted gloss on the terms of the legislation.
The Secretary’s third argument requires that reference be made to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination), a legislative instrument made by the Minister pursuant to a power conferred by s 26 of the Act and which, by s 27 of the Act, must be applied in considering claims for disability support pension. The rules for applying the Impairment Tables are explained in Part 2 of the Determination. Clause 6(3)(a), within that Part, provides that the impairment rating can only be assigned to an impairment if the person's condition causing that impairment is permanent. Clause 6(4) then provides,
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Clause 6(5) provides,
(5) in determining whether a condition has been fully diagnosed by an appropriate qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Given the argument for the Secretary it is also necessary to consider the terms of clause 6(6) which deals with the concept of "fully stabilised" in this way:
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling that person to undertake work in the next two years is not expected result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
There is no doubt that by January 2013 Mr Udrzal’s condition had been fully diagnosed by an appropriately qualified medical practitioner. Moreover, the Secretary accepts that by October 2013 the condition was fully treated, fully stabilised and more likely than not to persist for more than two years. The Secretary contends that in January 2013 it was not possible to say that the condition was fully treated or stabilised because the original stroke had occurred only 90 days earlier. The job capacity assessor said of the condition in October 2013,[2]
As the client's stroke occurred 12 months ago, the majority of his functional gains will have already taken place. As with most people who suffer a stroke, significant improvement in function is not expected after this time, hence the assessor is in agreement with the GP that improvement in functioning is highly unlikely.
When later asked about the position in January 2013 the job capacity assessor advised, [3]
With regards to your second question regarding retrospective assessment, in my opinion it would have been very difficult to classify the client’s condition as FDTS [fully diagnosed, treated and stabilised] at this time as I stated earlier, this is the time when the majority of gains are made. Therefore it would have been difficult to say that the client’s condition had stabilised at this point in time.
On that basis the decision maker, on reconsideration, concluded that it would not have been possible to have assigned an impairment rating to Mr Udrzal’s condition in January 2013.
In my view that conclusion was not warranted by the evidence available. It demonstrated that Mr Udrzal had experienced a stroke in October 2012. He had been hospitalised for two weeks. He could not walk unaided. The fine motor functions of his hand had been affected. His medical practitioner regarded his resulting condition as one that would have a significant impact on his ability to function. He needed physiotherapy and was undergoing daily physical therapy. The medical practitioner’s report concluded that the then current impact of the condition on his ability to function was expected to persist for more than five years and that within that period his ability to function was expected to remain unchanged. The doctor also reported that Mr Udrzal would have a residual deficit of function. There is no suggestion that the treatment being undertaken, physiotherapy and daily therapy, could restore any degree of functional capacity. Mr Udrzal had undertaken reasonable treatment for the condition. The only conclusion open, in light of the report of the medical practitioner, was that treatment would be unlikely to result in significant functional improvement to a level enabling Mr Udrzal to undertake work in the following two years. It is not enough to postulate that functional gains might be made after January 2013. What the definition of fully stabilised requires is that continued treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the following two years.
In my view it ought to have been concluded that, in January 2013, Mr Udrzal’s condition had been fully diagnosed, fully treated and fully stabilised. That being so it was capable of being assigned a rating under the Impairment Tables. The Secretary accepts that a rating of 20 points was warranted in October 2013. On the view I take it was warranted in January 2013.
I am then satisfied that Mr Udrzal had an impairment that was a severe impairment within the meaning of s 94(3B) of the Act in January 2013 and thus satisfies paragraph (b) of s 1218AAA(1) of the Act. Given that the Secretary, properly in my view, accepts that the other paragraphs of that subsection are satisfied I propose to set aside the decision and remit the matter to the Secretary for reconsideration in accordance with a direction that the Secretary make a written determination pursuant to s 1218AAA of the Act. In those circumstances his disability support pension ought not to have been cancelled because he satisfied subparagraph (ea)((ia) of s 94(1) of the Act.
www.austlii.edu.au/au/cases/cth/aat/2014/232.html
