Transcript Law for Non Lawyers - Social Security Law

Disability Support
Pension
Advising on medical qualification
Welfare Rights Centre
Welfare Rights Centre
(WRC)
Our details:
 Katie Wrigley and Matthew Butt
 9211 5300
 [email protected]
 [email protected]
Background: an
increase in demand
for advice on DSP
What’ The 1.1.12 changes

New impairment tables came in 1.1.12.

Increases in numbers of people rejected
on new applications or cancelled following
medical review.

All WRCs around Australia report an
increase in DSP medical enquiries.
What assistance is
available for DSP
matters?
What’ Legal Aid

Legal Aid NSW may represent at the AAT
where a client meets the means / merit
test on DSP medical appeals.

As such they are currently the experts in
DSP medical practice in social security
law. Refer AAT appeals to Legal Aid
where possible.
What’ Welfare Rights

Welfare Rights does not generally represent on DSP medical appeals – we
provide advice and minor assistance only.

Part of the reason WRC do not represent is that the decisions often turn on
medical evidence or medical opinion.

The goal of good DSP advice / minor assistance is to focus the enquiry to a
person’s treating doctor, on those aspects of qualification which Centrelink
say the person does not meet.

We have recently started a “DSP advice clinic” where volunteers give
supervised advice and help clients collect relevant medical evidence for an
appeal.
DSP: an overview of
medical qualification
What’


score at least 20 points under the “impairment tables”;
medical conditions do not receive any points unless they:



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To qualify, a person must:
have been fully diagnosed, treated and stabilised; and
are unlikely to significantly improve with or without
reasonable treatment within the next two years.
have a continuing inability to work: ie you must be
unable to work more than 15 hours per week for the next
two years; and
have actively participated in a program of support,
unless exempt from this requirement.
What’



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The 20 points requirement
Many claims are rejected because Centrelink award less than the
required 20.
If this happens, it is a good idea to look at the impairment tables and
see whether or not you (and your doctor) agree this is the correct
decision, or whether there are any other points, under a different or
the same table, which ought properly to be allocated to your
conditions.
The current tables are available publicly on the internet at:
http://www.comlaw.gov.au/Series/F2011L02716
If you don’t qualify for 20 points across these tables (eg 10 under
one table, 10 under another), you won’t qualify for Disability Support
Pension.
What’



No points: not diagnosed
No points are awarded if Centrelink finds your condition to have not
been “diagnosed” at the time you claim Disability Support Pension
or soon after.
For mental health conditions, you need to have a diagnosis from
either a psychiatrist or clinical psychologist. A diagnosis from a
registered psychologist is not enough.
If you only see a clinical psychologist or psychiatrist for the first time
after you claim the Disability Support Pension, you may need to
appeal any Centrelink decision to reject your claim and lodge a new
claim for Disability Support Pension with Centrelink. You can do
both at the same time.
What’

No points: not diagnosed
If you have been seeing a registered psychologist or general
practitioner for mental health problems, but have not seen a clinical
psychologist or psychiatrist by the time you lodge your Disability
Support Pension claim, you should ask for a referral to one as soon
as possible. When you see the clinical psychologist or psychiatrist,
you should take any reports or other documents relating to your
medical history to your appointment and ask them:

to confirm your existing diagnosis and whether or not, in their opinion, it is a
longstanding condition;
 whether any new treatment they suggest is being undertaken with the goal of
preventing your condition from worsening, or with a view to your condition getting
better.
 whether any new treatment they suggest is likely or unlikely to result in significant
functional improvement to a level enabling you to undertake work in the next two
years.
What’


No points: not fully treated and stabilised
No points are awarded if Centrelink finds your condition to be not
fully treated and stabilised.
If any condition you have was not awarded points because it was
“not fully treated and stabilised” you could ask your doctor in
particular to comment on:

what treatment has occurred in relation to your condition (and when this
treatment occurred);
 what treatment is continuing or planned for the next two years;
 whether any new treatment they suggest is being undertaken with the goal of
preventing your condition from worsening, or with a view to your condition getting
better; and
 whether any further reasonable treatment is likely or unlikely to result in
significant functional improvement to a level enabling you to undertake work in
the next two years.
What’


Continuing inability to work
Centrelink sometimes reject a claim on the basis that a person does
not have a continuing inability to work – that they could work for 15
hours or more a week with appropriate support, or do a training
activity to prepare for work, within the next two years.
If your claim was rejected on this basis, it would help if you could get
one of your doctors to comment on this issue in writing. In particular,
they should comment on:

the impact of your conditions on your ability (within the next two years) to perform
the normal range of tasks and requirements of jobs, particularly the jobs the JCA
suggested the person would be capable of performing.
 what level of assistance (low, moderate, high) you would need to maintain any
kind of employment; and
 the impact of your conditions on your ability to undertake any training activities to
prepare you for work.
What’

The program of support requirement
To have met the program of support requirement, you need to show
that in the three years before you claimed the disability support
pension:

you have been with a program of support for 18 months;
 you have completed a program of support; or
 you were with a program of support which was terminated because your medical
conditions alone meant that continuing wouldn’t improve your capacity to find,
get or stay in work.


You can also show you meet this requirement if you were with a
program of support when you claimed the disability support pension,
but continuing would not help improve your capacity to find, get or
stay in work.
The requirement does not apply if you have a “severe” disability or
illness which gives you 20 points under a single impairment table.
What’


The program of support requirement
A program of support means a program designed to assist a
person in preparing for, finding and keeping employment. It includes
using a Job Services Australia provider, an educational or vocational
program, or a program specifically for people with a disability, eg,
Disability Employment Network and Vocational Rehabilitation
programs.
A program of support can include a provider authorised by a workers
compensation authority. If you attempted to return to work following
a workers compensation claim, for example, you should ask them
for a letter confirming your participation and the length of time you
were engaged with them with the goal of addressing barriers to
employment, or in looking for work.
What’



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The program of support requirement
If you are appealing to the SSAT, bear in mind that it is up to you to
show that you have met this program of support requirement by
showing evidence of the dates you participated with a program of
support.
Centrelink often do not give the SSAT evidence to show that you
have met this requirement. Centrelink have a standard form which
you could use to ask any former provider for information about your
past experience with them, which is available here:
http://www.humanservices.gov.au/spw/customer/forms/resources/sa
437-1203en.pdf
As well, a sample letter is attached to the DSP factsheet: “dear
provider / former provider” which you could give to any organisation
you dealt with in helping you prepare for or find work, explaining
what sort of information you need.
We try to give basic information to all callers who have had a DSP
claim rejected on medical grounds about:

their right to appeal, the time limit to do so and the right to
lodge additional fresh claims any time;

the sources of information on offer which could help them to
establish qualification with the support of medical evidence – the
welfare rights factsheet and the impairment tables
themselves;

the need to produce further medical evidence in order to get a
different decision on appeal;

how to best reduce the work for their doctor in asking for
further medical evidence by narrowing the scope of what is
being asked;
continued->
Continued:

the basics of the DSP medical qualification hurdles including
points, continuing inability to work, and the program of support
requirement;

most people usually appreciate a short discussion about which
tables are most likely to apply to them in view of their particular
health conditions (eg a bad back is table 4, depression is table
5), and an offer to forward copies of those particular tables in the
mail or by email to them.

what the program of support requirement is and what it
means for that particular person given their past history with
Centrelink / workers compensation, or an employment services
provider.
On an activity tested payment, you have the right to:

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
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get special consideration if you have a partial capacity to work;
appeal a Job Capacity Assessment or Employment Services
Assessment finding, including how many hours you have been
assessed as having the “capacity to work”;
say no to an Employment Pathway Plan which doesn’t take into
account your medical condition;
say no to any requirements which exceed your capacity, impede
your recovery or interfere with treatment of your condition;
say no to jobs which would aggravate your illness, disability or
injury;
get an exemption from the activity test or participation
requirements where your health takes a turn for the worse which is
likely to last up to 13 weeks or longer; and
appeal any decision you disagree with about your state of health,
including whether you have a reasonable excuse (because of your
health) for not attending an appointment.
Temporary exemptions from the activity test

If your health takes a turn for the worse that is likely to last up to 13
weeks or longer, you have the right to apply for a temporary
exemption from the activity test or participation requirements. You
will usually need to get a medical certificate from your doctor,
certifying that it is not possible to work 8 hours a week at the
moment because of your health, and how long this is likely to last.

In some cases, even if you have given Centrelink a medical
certificate, Centrelink can decide that you aren’t incapacitated for
work, or that you should be required to do another activity instead. If
Centrelink refuses to grant your medical incapacity exemption, you
have the right to appeal.
Temporary exemptions from the activity test and DSP



Bear in mind that a temporary exemption is only available for a
person whose medical condition is temporary (ie likely to last for less
than two years). It is a requirement to qualify for DSP that your
condition be likely to last for at least two years.
So in some cases pursuing a temporary exemption appeal at the
same time as pursuing a DSP appeal in relation to the same
condition may be contradictory.
Better options could include:

Not specifying the medical condition on the doctors certificate (you have
the right not to state what it is, just how long the doctor thinks it will last).
 Knowing your rights on an activity tested payment:
 calling to advise each time you can’t make an appointment;
 knowing you have the right not to incur a penalty if the reason is
because of your health
 amending the EPP to include only terms which the person can
comply with;
Key things to
remember
In the course of listening to the client, you should
be alert to key issues such as:
where their claim is up to;
 whether they have a mental health condition (and might have issues
about fully diagnosed by a clinical psychologist);
 whether they are seeing a new doctor / starting new treatment (and
might have issues about whether their condition is fully treated and
stabilised);
 the kinds of conditions they are speaking about and the usual table
numbers they may need to consider;
 whether they are likely to have satisfied the program of support
requirement (eg by being on Newstart Allowance with a provider for
over 18 months).
If the client hasn’t told you information about these issues, you may
need to prompt them and explain a bit about these requirements.

Where is the claim up to?

Has the person lodged a claim? Has that claim been determined
yet?

If their claim has been rejected: When was the last decision made
and by whom? Bear in mind they have 13 weeks to lodge an appeal
from when their claim was rejected. (See how do I appeal and time
limits to appeal).

Is there any need for the person to think about lodging a new claim
as well as or instead of an appeal? This would be the case where:

there has been any change in their medical condition;
 if there might be a problem getting a doctor to say what their condition was
during this timeframe; or
 where Centrelink have raised any issue about whether their condition is fully
treated, diagnosed or stabilised.
Mental health issues: fully diagnosed?

If the person has a mental health condition, has this been diagnosed
by either a psychiatrist or a clinical psychologist?

For mental health conditions which are assessed under Table 5, a
diagnosis from a registered psychologist is not enough.

If the person has been seeing a registered psychologist or general
practitioner for mental health problems, but has not seen a clinical
psychologist or psychiatrist, they should ask for a referral to one as
soon as possible (see no points: not diagnosed).
Seeing a new doctor / starting new treatment:
fully treated and stabilised?



A person who informs you they have recently started seeing a new
specialist / starting new treatment might have issues about whether
their condition is fully treated and stabilised.
The suggestion being that this untested treatment may well result in
the person being able to work in the next two years.
It can help to get the person’s doctor / new doctor to confirm that this
new treatment is unlikely to result in significant functional
improvement to a level enabling them to undertake work in the next
two years, or confirm that this treatment is being undertaken with a
goal of stopping the condition from worsening, rather than with a
view to it becoming significantly better.
Types of conditions and table numbers

Some common tables to offer to send clients to have a look at:

Table 4 = bad backs
 Table 5 = mental health
 Table 6 = drugs and alcohol

Beyond this, identifying which conditions are assessed under which
tables can get complicated / overly medical.

It’s not our speciality. We usually ask the clients to have a look for
themselves and take any tables they think they may come under to
their doctor for an opinion.
Will the person be likely to have met the program
of support requirement?

have they been with a program of support for over 18 months in the
last three years?

would they satisfy the program of support requirement by scoring 20
points under one table?

were they with a program of support when they claimed DSP? If
they were not with a program on the day they claimed they may
need to lodge another claim on a day that they are with a program.
Some typical
enquiries

Centrelink have rejected my claim and I don’t
know why. What can I do about this?

You have the right to appeal and you need to do this within 13
weeks to be entitled to backpayment if you are successful.
A successful appeal is often the result of further medical evidence.
I can send you our factsheet that outlines the medical criteria for
Disability Support Pension and contains a sample letter for you to
take to your doctor to request more information about your state of
health.
Your doctor may not be keen to prepare further letters of support.
What can help is if you can help your doctor by making clear what
needs to be commented on in particular. If possible, if you could look
yourself at the “impairment tables” and decide which ones in
particular apply to you, and how many points you think you should
be allocated, this could help when asking your doctor to write a short
letter confirming this.

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Finding out the basis for the rejection

Some clients will know a lot of detail about why their claim has been
rejected. Some will not know the reasons at all. Some will have had
a written decision already and some won’t. Some will have access
to the internet. Some would like hard copies of factsheets posted to
them. Some will not have literacy skills and will need to receive
advice over the phone. Some will need interpreters.
If a client has had a written decision by an ARO or the SSAT, this
will usually give detailed reasons.
If the reasons are not in the ARO, they will usually be in a Job
Capacity Assessment. More specific advice is possible if the client is
able fax, email or send it to us so we can see it. If this is not
possible, Centrelink will often release these documents as “noncontroversial” documents under an “informal access request for a
copy of documents” E-ref 104.06220.

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Shaun contacted us on behalf of his wife. She suffers from partial
deafness, high blood pressure and back and knew problems. She
had been rejected for DSP because she did not have enough points
but Shaun did not know any more detail. They were outside the 13
weeks to appeal and were confused whether to appeal or lodge a
new claim.

WRC: advised Shaun that his wife had the right to both appeal the
rejection and lodge a new claim. Appealing the rejection would give
Shaun’s wife at least written reasons which would set out in writing
why Centrelink say she did not meet the qualification criteria. We
offered to send out the impairment tables and DSP medical appeals
factsheet for Shaun to see whether they could find 20 points
amongst the tables. We asked Shaun to call back after he had
received it if he had any questions.

Centrelink are taking too long to process my
claim

Disability Support Pension claims takes longer than other kinds of
claims for social security payments to assess, but you may be able
to receive Newstart Allowance in the meantime.
To speed up your claim:

make sure you’ve given Centrelink all the documents they need;
 check whether the documents you’ve given Centrelink confirm that you meet all
aspects of the Disability Support Pension medical criteria;
 keep in close contact with Centrelink to follow your claim’s progress;
 make an appointment with a social worker at Centrelink if you’re struggling to
cope.


If Centrelink have not made a decision within 13 weeks of lodging
your claim you can appeal to an Authorised Review Officer.

How do I appeal and what are the time limits
to appeal?

If your Disability Support Pension Claim has been rejected, you
have 13 weeks in which to appeal. To appeal simply tell Centrelink
(in person or on 132717) that you are not happy with their decision
and that you would like to appeal to an Authorised Review Officer
(ARO).
If you have already had a decision by an ARO, you have the right to
appeal further to the Social Security Appeals Tribunal (SSAT) and
you need to do this within 13 weeks of the ARO decision. From the
Social Security Appeals Tribunal, appeals to the Administrative
Appeals Tribunal (AAT) must be made in writing within 28 days.


Appeal or new claim?

In some cases, as well as lodging an appeal (or instead) you may
need to lodge a new claim as well. This is because the decision
maker looking at your appeal can only look at your medical
condition from the time you claimed and during the 13 weeks
after your claim.

You may need to lodge another claim if:

there has been any change in your medical condition;
 if there might be a problem getting a doctor to say what your condition was
during this timeframe; or
 where Centrelink have raised any issue about whether your condition is fully
treated, diagnosed or stabilised.

Erica said she had applied for DSP a second time and had been
rejected for not having enough points on table 1. She had appealed
to an ARO and wanted to know how to proceed. She told us she
was currently receiving Newstart Allowance.

WRC: asked Erica whether Centrelink had raised any particular
aspect of her situation as a problem with qualification. She said she
had just started seeing a new doctor and that “fully treated and
stabilised” was mentioned by Centrelink. We took Erica to our
website where this is explained in the factsheet more fully. We
asked her about POS and she told us she had no history with any
kind of POS in the last three years because she had been
continuously exempt from the activity test since she had started
receiving Newstart Allowance since stopping work. We advised
Erica to lodge a new claim for DSP on a day she was registered with
a provider, and then to seek evidence from her provider and her
doctor that continuing would not improve her capacity to get or stay
in work because of her medical conditions.
WRC contact details
Website:
www.welfarerights.org.au
 Telephone: 02 9211 5300
 Freecall: 1800 226 028 (outside
Sydney metropolitan area)
 Telephone advice times:

Thurs and Fri 9.30 – 1pm
 Tues 1-5pm
 Mon,