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Post by krystal on Jan 6, 2017 9:27:20 GMT 7
Krystal, your AAT tier two decision involved, in my view, an error in law -- failing to consider s94(2)(b)(ii) -- which I believe would have been scrutinised if the matter had gone to the Federal Court. My recollection is the member just decided you could do a training activity because your medicos didn't expressly write that you couldn't, and finalised the decision without considering the second limb of the test. Don't forget the bit where the decision said this training activity I was expected to do, actually says that the training activity didn't have to exist because: "Section 94(3) of the Social Security Act provides however, that in deciding whether or not a person has a continuing inability to work because of impairment, regard is not to be had to the availability to the person of a training activity." Yes, there is no persuasive evidence that I can't do and complete an imaginary training activity with my impairments in the next two years. There was so many things wrong with the AAT decision and exactly why I wanted to go to Federal Court regarding the first decision. But after approaching Welfare Rights, Citizens Advice Bureau, Community Legal Centre, the Pro-bono Law Access, Legal Aid, my local federal parliamentarian, the federal shadow Attorney General, and Senator Rachel Seiwert, I was unable to find an pathway to getting my case heard. And of course, I had only 28 days to to appeal the decision. Legal Aid which would only give my one 15 minute appointment and without reading my case for merit actually said "Unless you have $20,000 to cover costs when you lose, don't bother going to Federal Court". For three years Centrelink has been saying I can work 15-22 hours a week and/or do a training activity. My psychologist, my treating GP, my ophthalmologist and two (2) DES providers all say with my impairments that is an unreachable goal. The AAT, in their decision, actually stated that the training activity doesn't need to exist. Yep, it says that. For three years I have been asking Centrelink WHAT work or training activity I could do with my impairments. For three years they haven't supplied an answer, suggestion or even a field where the work could exist. The AAT didn't even consider, cover or deal with the 15 hours section of the criteria at the hearing or in post-hearing submissions. In fact whether I can or can't work 15 hours is not mentioned at all in the decision. Nobody has even looked at this question except the assessor in the original assessment. Forget about the bit where the legislation says that "work" means work: (a) that is for at least 15 hours per week 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. The only ever answer the first part (a) of this question. They never deal with the second part (b) and surely if this work exists they should be able to at least suggest what this work would be. At least this time when I go to the AAT, I have my medicos and my DES provider explicitly stating in their paperwork that I can't do it. I think I have closed all the loopholes they found through the last process of 1st appeal, excuse, Senior Reviewing Officer appeal, excuse, SSAT appeal, excuse, AAT appeal, don't apply the legislation correctly. I guess it's probably best if I just sit back and deal with the gristmill as it unfolds and not get ahead of myself.
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Post by krystal on Jan 6, 2017 9:34:14 GMT 7
Thanks for you support guys. I hope for the best but are planning for the worst.
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Post by murphy on Jan 6, 2017 9:56:37 GMT 7
Yes, it sure seems like the member failed to consider the second limb of several parts of s94.
We see a lot of meanness in relation to "fully diagnosed, treated and stabilised", but your appeal failed because of the member's errors in law - cherry-picking the application of parts of s94. That's less common and it's a shame none of the lawyers read the poorly reasoned decision.
I understand why you couldn't go to Federal Court. Elsewhere I've referenced the hurdles. Frankly, my head would have exploded by now if I'd been subjected to the injustice inflicted upon you.
I think you are very well prepared. It's best to file this stuff away, ready to be pulled out if necessary.
We will all, I'm sure, continue to hope it isn't necessary.
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Post by nomadic on Jan 6, 2017 16:24:32 GMT 7
I am totally staggered. Even if you were in the wrong the time and money spent by them defies belief and you seem to be right 100%. As Banjo said they seem not to be able to admit they made a mistake. I went to the federal court twice so I know how hopeless it is without legal experts when they have 3 standing near me with one of them being a Q.C. I believe you will win out eventually but at what cost to everyone. I know I shouldn't be staggered because of what I went through when i was right and knew it from day one also. But i still am because it has continued for 21 years now since i first had to deal with this devil. We are all on as much tender hooks as you so I'm sure we will all be just as happy as you when it ends with the right decision. BUT overall there must be some way to end this forum. Said in the nicest way obviously Banjo.
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Post by snooks on Jan 6, 2017 19:20:11 GMT 7
I find your attitude and determination to be very inspiring Krystal. For the crap you have copped, the inconvenience and the heart ache at such unfair treatement, you should be very proud at how well you are coping and reacting. I so hope that justice is done and that things come good for you
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Post by krystal on Jan 11, 2017 9:46:56 GMT 7
Related:
I just received an ACROD sticker (I now can park in a disabled zone) for an impairment Centrelink and the AAT gave me 5 points for.
Oh, the irony.
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Post by murphy on Jan 11, 2017 11:05:31 GMT 7
You're armed and ready this time.
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Post by krystal on Jan 13, 2017 12:22:18 GMT 7
Out of the blue, I was rung today for an Medical Assessment Appointment on Monday. (thanks for the warning) !!
I only found out about the Medical Assessment because Sonic Health rang to set up an appointment (Sonic are now who are contracted to do the DSP assessments).
Yeah sorry, we only have 3 clinics (out of our 12 clinics) in WA that do DSP assessments.
-CBD which is totally disabled friendly and takes an hour to get to and the building has 45 stairs to the entrance. -Kewdale which you can't get to on public transport without going through the CBD and if you can get a lift it's a 35 minute drive. -Bunbury which is 8 hours by train.
Oh, and by the way, you as an impaired person have two days to work out how to get to your Medical Assessment.
But we will email you a information brochure:
Information regarding your Disability Medical Assessment with a Government-contracted Doctor
Your referral for a Disability Medical Assessment
During a Disability Medical Assessment your medical condition/s and their functional impacts will be assessed to help determine your medical eligibility for the Disability Support Pension. (which just makes me ask what the hell was the JCA for?)
The Disability Medical Assessment will be conducted by a qualified, independent Government- contracted Doctor. The Government-contracted Doctor will not be your usual doctor, although they may contact your usual treating health professionals if they require further information. (I haven't given you consent to do that - Did you miss I never sent in the consent form?)
At your Disability Medical Assessment
The Government-contracted Doctor will discuss your medical condition/s and the evidence you have provided to support the assessment of your medical eligibility for Disability Support Pension. You should allow up to one hour for this appointment, however it may not take this long. (I've got 5 impairments, if it doesn't take an hour , we haven't covered everything)
Once the report is complete, it will be submitted via secure channels to the Department of Human Services. The Department of Human Services will notify you about the outcome of your claim or medical review. At the Disability Medical Assessment appointment the Government-contracted Doctor will not: (their highlight, not mine) - Diagnose your medical condition/s - Provide any medical advice or medical treatment - Complete a medical examination - Advise you on the outcome of your eligibility for Disability Support Pension
What to bring to your Disability Medical Assessment
You should have already provided all your medical evidence to the Department of Human Services. If you have any additional medical evidence that may be relevant to your claim or medical review you can bring this to the assessment.
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So basically, it seems the Government Contracted Doctor isn't going to diagnose anything, isn't going to exam anything, ask me questions and fit those answers to the online pre-filled form of impairment tables descriptions of criteria.
OMG - You mean my DSP decision is going to be decided by a Government web-based online service. I need a panic emote !!!
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Post by snooks on Jan 13, 2017 12:54:13 GMT 7
I can imagine how scary it is for you Kyrstal, i hope you get through it ok. Being new, can i ask? If the Quack isnt going to diagnose, advise, or more importantly Complete a medical examination, what exactly do they do? With me being a lower spinal issue, will they want me to raise this leg, bend this way, turn until it hurts this way? What exactly can i expect if they wont Complete a medical examination? ? Fingers crossed for you and try to not stress, though i imagine that is impossible Centrelink compete heads up with F Troop and Dads Army It would be funny if your food and family did not rely on them.
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Post by krystal on Jan 13, 2017 13:17:40 GMT 7
Sorry but I am in tears right now.
Centrelink has advised my DES provider that they are down grading me from DES-ESS (ongoing support after you find work) to DES-DMS (no ongoing support).
My DES provider doesn't do DMS only ESS so have sent me a letter saying I've been transferred out to someone else.
Centrelink hasn't advised me I've been downgraded or who my new service provider is.
For three (3) years I've been on ESS knowing I would get the needed ongoing support if I ever found a job. WE (the DES provider and myself) were up to the stage of "Job Creation", meaning we were asking employers to "create" a job for me. This has all gone down the toilet now.
So even if my (unknown) provider and myself can work together and find a job, I will not be able to maintain the employment.
I am so frustrated, so angry that I am literally shaking while I write this.
On the phone to complaints line because I don't even know who to speak to regarding this. I was transferred due to a JCA (Newstart line) for Disability but it's a Disability Service (Disability line) and of course, I'm in West Australia and three hours behind the rest of the country so all the Eastern States offices/sections have closed for the day.
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Post by krystal on Jan 13, 2017 13:39:54 GMT 7
A whole conversation with the Assessor about what supports I would need when and if I ever found a job.
Conversion of materials to a format where I could actually interact with them (ie training manuals, memo, forms, letters etc)
She said "Yes, that is exactly what your DES provider will do for you once you gain employment.
And then she took that service away
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Post by murphy on Jan 13, 2017 13:45:26 GMT 7
Satanlink seems to employ cruel people as JCAs. And of course people who are comfortable lying to your face.
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Post by murphy on Jan 13, 2017 13:48:46 GMT 7
It's high time these people were subpoenaed to appear at the AAT to explain their decisions. I bet having to answer for one's conduct would change behaviour.
I wonder if WRC would be able to advise on issuing a subpoena?
Clearly we need to be recording JCA appointments, too.
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Post by Banjo on Jan 13, 2017 14:06:35 GMT 7
A whole conversation with the Assessor about what supports I would need when and if I ever found a job. Conversion of materials to a format where I could actually interact with them (ie training manuals, memo, forms, letters etc) She said "Yes, that is exactly what your DES provider will do for you once you gain employment. And then she took that service away Ring Senator Siewert's office, they may still be there. I just sent them a short email with the basics. (08) 9228 3277
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Post by krystal on Jan 13, 2017 15:52:01 GMT 7
A whole conversation with the Assessor about what supports I would need when and if I ever found a job. Conversion of materials to a format where I could actually interact with them (ie training manuals, memo, forms, letters etc) She said "Yes, that is exactly what your DES provider will do for you once you gain employment. And then she took that service away Ring Senator Siewert's office, they may still be there. I just sent them a short email with the basics. (08) 9228 3277 Finished talking to the Centrelink Complaints line and it just got worse. I rang Senator Siewert's office and they asked me to put it all in an email. This is what I wrote: There are two concerns I have about my recent JCA: 1) Employment Support; and 2) JCA Assessment of Impairment Points 1) Employment Support For the past three years I have been on a Program of Support – Category DES-ESS The DES has two categories • DMS - Disability Management Service is for job seekers with disability, injury or health condition who need assistance to find a job and occasional support to keep a job. • ESS - Employment Support Service provides assistance to people with permanent disability and who need regular, ongoing support to keep a job. From www.employment.gov.au/disability-employment-servicesThe DES Provider (Bizlink) that I have worked with since February 2015 does not do DMS. We were actually up to the point where we had just started to cold approach employers about “Job Creation”. Specific companies that may create a job so I can become employed. With this type of approach Bizlink was able to assure the employer that the ongoing supports I will need in the maintain employment will be supplied by Bizlink. As you can see from the above definitions, a DMS is not for person with a permanent disability that will require ongoing support to maintain employment. The JCA Assessor has removed me from the DES-ESS and transferred me to a DES-DMS who will help find me a job that I won’t be able to maintain because the DES-DMS doesn’t do the ongoing support I am going to require to maintain any employment. So everything we are and were working on for the past 3 years to get me into employment has been trashed. They have transferred me to a Provider that I can’t get to. If the new providers can find me work, they won’t give me the ongoing support that I need to maintain that employment. ------------------------------------------------------------------------------------------------------------------------- 2) JCA Assessment of Impairment Points Here’s the background. In November 2013, I applied to DSP and had a JCA assessment. My Claim was denied. Went through the appeals process to the AAT who didn’t apply the legislation correctly so my appeal was affirmed. I was unable to find a pathway or access to the Federal Court. However, in this decision, the Tribunal Member listed: Vision Impairment - 20 Points Lower Limb – 10 points Skin Disorder – 10 points. I have just recently put in another claim for DSP. I had a JCA on 5 January 2016. The assessor was the same assessor as the 2013 assessment. On the 2017 assessment, she has downgraded my impairment points to read: Vision – 10 points Lower Limb – No points Skin Disorder – 10 points. She copied and pasted her 2013 decision into her 2017 decision quoting no points for Lower Limb because of a condition (Patellofemoral Pain Syndrome) that was only mentioned as a underlying symptom to an actual condition in the new claim. She stated that I could undergo surgery or do physiotherapy for this underlying condition therefore was not FDTS (Fully Diagnosed, Treated, Stabilised). The JCA did NOT mention either of the actual two conditions that made up the Lower Limb function part of my claim. Even if this underlying symptom to the condition was part of my new claim, she has overridden the AAT decision that decided that this particular underlying symptom was FDTS and was given an impairment rating. My claim states my conditions are Morel-Lavellee Syndrome and Osteoarthritis which together means I have ongoing Patellofemoral Pain Syndrome and have had since 1995. She has given me no points citing only Patellofemoral (copy and pasted from the 2013 JCA) while completely ignoring the two conditions I actually put on my claim. On Monday (January 16, 2017), I have to attend a Government Contracted Doctor who will have this JCA (and hopefully, all 94 pages of my actual claim/medical reports). I am now in a position where I have to explain to the doctor why the assessor made an assessment on a symptom that isn’t in my claim while explaining what is actually wrong with my lower limb. Summary The Centrelink Assessor has taken me off the DES program that is the only program that will give me the support I need to get back into and maintain employment and transferred me other DES provider, one that is only possible to attend if I take 3 buses and a train and allow over 75 minutes traveling time (one way) and walk over a kilometre (that I can't do). The Centrelink Assessor has totally disregarded the decision handed down by the AAT in January 2016 and assessed a condition that weren’t even part of my claim while ignoring the two conditions that were on the claim that are FDTS as the 94 pages of medical information/reports state. I now have to explain all of this to a Government Contracted Doctor.
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