Disability Support Pension changes and the appeals process

This was the third session at the Advocacy Sector Conversations forum held on 24 November 2016 at the Investment Centre of Victoria.

Peter Norbury from Social Security Rights Victoria updated us on the changes Centrelink  made to the impairment tables in 2012 highlighting the contradictions and identifying the hurdles that need to be overcome to pass the eligibility criteria.  Len Jaffit, who has been working with the Centrelink Appeals Tribunal at Victoria Legal Aid for many years then stepped us through what you need to do if you are unhappy with a Centrelink decision.

Other sessions at this forum included:

At this forum, live streaming provided by VicDeaf was trialed for the first time and we are pleased to share the video from the proceedings. (Note: problem with sound at the beginning).

 

 

Resources and related links:

 

Transcript

MELISSA COE:
So many case studies have come up about the DSP.  So I’m glad to have our speakers here today to talk about this more.  I would like to welcome Len Jaffit from Victoria Legal Aid and Peter Norbury from Social Security Rights Victoria, who will speak about what the changes are, what to do when a client has been rejected for DSP, the correct processes and when to appeal decisions.  Welcome, Peter.

PETER NORBURY:
G’day.  Thanks.  Thanks for having us.  I will get right into it.  Feel free to interrupt if you have questions.  I got in trouble once from a Chinese interpreter for not doing a Welcome to Country despite the fact there was nobody from Australia in the room.  And they all spoke Chinese and were all from an obscure part of China.  Let alone anyone — I went back and looked and somewhere next to Tibet.  I want to acknowledge we’re basically on stolen land of the Wurundjeri people and I pay my respects to their elders past and present and my particular favourite Aunty Di Kerr, she is fabulous.

Anyway, I just need to give you some disclaimers to begin with.  The first is about my work.  What I say nor my boss who will come in in January are responsible for what I say.  That makes things easier because one doesn’t care and the other doesn’t know!  Secondly, when I’m talking about legislation I need to explain that we don’t make it.  Politicians make the legislation.  If you have an issue they are the people who get larger amounts than I do to deal with it.  That said we are very happy to be here.

I need to warn you about sarcasm.  For those of you who don’t know what it is, it’s an attempt at humour using irony.  If I say something like I’m really devastated that Tony Abbott is no longer the Prime Minister you can presume that’s sarcasm.  If you hear something that actually offends you just assume I was being sarcastic.  If you have questions feel free to interrupt.  If I wave my arms around stuff don’t worry too much about that.  That’s just who I am.

I come from a religious background.  They invented clip art.  I don’t believe you should ever have a PowerPoint without an image in it.  I’m from social security Rights Victoria.

We are a community legal centre that works exclusively on social security and family assistance issues, meaning Centrelink for want of a better concept.  We started as the Welfare Rights Unit a long time ago.  We do telephone advice for people across Victoria, except for Geelong where there’s a welfare rights worker at the Barwon community legal service.

We’re not part of Centrelink.  We’re not funded by Centrelink.  The welfare rights program has morphed into a more general one originally took a million dollars from what was Centrelink and gave it to 14 organisations around the country. In good years we get cost of living changes.  We are about to lose a large chunk of that on 1 July next year.  We get about 70 per cent of our funding from the federal government and about 20 per cent from the state.

Okay.  So let’s talk about disability support pension and what it is since 2012.  Everything changed with the passing of the relevant disallowable instrument.  There are five hurdles to get over and you either need four or five hurdles to be successful.  They are basically diagnose, treat and stabilise 20 points of impairment, continuing inability to work, AKA the 15-hour test.  And the hurdle for the two-year rule.  In practice hurdles 3 and 4 are basically one hurdle now.  It’s a continuing inability to work 15 hours for the next two years.  Hurdle 5 is the program of support that we will talk about.

You need all four, the first four, or effectively all five.  And unfortunately, unlike a whole lot of other things, three out of four doesn’t work.  You have to get all of them.

I did have a guy who called me the other day who said I have one of them.  I said which one?  He says, “I got the program of support.  I just don’t have the other four”.  He said, “Is it worth me appealing?” We said well, what else have you got to do on that day because it’s probably not worth it.

I have an image of what is known as lollipop lady in the U.K.  Obviously they are different genders here in Australia. If you think about it, that person works for an hour in the morning and an hour in the afternoon five days a week.  If it takes them half an hour to get to work and half an hour home that’s 15 hours a week.  If someone can do that they probably are not eligible under the current rules.

Hurdle number 1, diagnose, treat and stabilised.  You need to have what the hippies call all of the alopathic interventions.

In the old days you might remember there was a treating doctor’s report.  That doesn’t exist for application purposes now.  It’s all taken on the medical reports you had which effectively need to be from treating specialists.  Reports from GPs are of value in addition to those.

A person also has a job capacity assessment from Centrelink.  And sometimes, where there is some ambiguity, people are sent to a government contracted doctor. Yes!  Those of you who have been in the industry for a while will think weren’t they around in about 2006.  The answer is, yes, they were.  They had a slightly different name.  They  were government medical officers then, now they are government contracted doctors.  Let’s just say they are about the same quality.

Most people fall over at the first hurdle.  To give you a sporting analogy.  If they’re not considered to be diagnosed, treated and stabilised they get no impairment points.  Centrelink write as fairly ambiguous letter that says you didn’t get 20 points.  In most people’s cases it actually should say that we have not awarded you any points.  So there’s a difference between zero points and nil points.  You can be awarded zero points and have a disability, but it’s considered that your disability is not significant enough — it’s not — what is the one — minor?

LEN JAFFIT:
Mild I think

PETER NORBURY:
Mild, yes.  Thanks, mate.  Yes.  Centrelink’s letters are a challenging at the best of times but their DSP letter is a stinker.  We have been hassling them for many years and got nowhere like most of you presumably.

The next hurdle is 20 points, where the next group of people fall over for want of a better concept.  You need at least 20 points.  If you get 20 points under one table, there are 15 at the moment, you are considered to have a severe impairment.  Normally you will go on to DSP pretty much straight away.

If you have more than 20 points, sorry, if you have at least 20 points but not under one table, e.g. somebody might have a back injury and a mental health injury as a result you might end up with 20 points but they are under two tables.  So 10 of each, which is a common outcome.

You are then assessed whether you have actively participated in a program of support. The continuing inability to work, your condition needs to prevent you from having a functional capacity of 15 hours per week.  That’s whether or not there is any work that you can actually do or there is any work that exists.

My favourite excuse letter — line from a letter about DSP was to a you can man who lived somewhere north I think of Tenant Creek.  My NT geography is not very good but it’s some distance from Alice Springs, some hundreds of kilometres and he was told he could be a car park attendant.  It’s safe to say there was something like a 450 kilometre round trip if he was going to work at a car park.  Because there was a car park in Alice Springs and a car park in Darwin and no car parks in between.

The whole point is it had nothing to do with reality.  Someone’s actual ability to find work and that work actually existing.  They don’t use it as such since I made this point at a Centrelink conference but it used to contain a point that says you could do light clerical work not including heavy lifting.  As I pointed out at the Centrelink conference, that’s working for Centrelink.  Funnily enough I have not seen that in too many Centrelink letters since.

Next, this relates to hurdle 4, the latest scam (did I say it?), the latest thing that appears now, a great trick Centrelink has come up with is by saying Oh, yes, mate you’ve got no work capacity now.  We accept that.  But in 12 months you might have 8 to 15, after that with ‘appropriate interventions’ you will have 15 to 22.  Nobody knows what those ‘appropriate interventions’ are; they just make you ineligible for DSP.

So we have asked Centrelink what they consider they are.  They would say, “well you have to ask a disability employment service about that.” Any way … that’s the way it’s put on the thing, Clearly you can’t do anything now but with appropriate interventions you could … which we will come back to.  Again if people have survived one and two, often this is the one that knocks them out.

Effectively the medical reports need to state that the condition will last at least 24 months.  This is the one that almost nobody loses apart from my friend the other day who only had a program of support.  Again, number 4 is fairly irrelevant now because it’s really three and four are basically one.

If somebody has got as far as this but their 20 points is spread across more than one table, it’s then whether they have actively participated in a program of support.  Now, just above Len’s head there you can see the relevant bit of legislation, the ‘Guidelines for the active participation for disability support pension determination 2011’.  This came down at the same time as the new tables.  The new tables are 63 pages.  This is six pages.  So it’s at least quicker to read.

Effectively, what it actually is, 18 months on new start with an activity requirement.  So periods of time when people don’t have an activity requirement don’t count.  When you turn up and make your application for DSP they look back at the past three years.  So it can be 18 month in a three-year period you have done this.

But the political philosophy behind it is if people get the proper kind of support, they won’t need DSP because they will have a job.  Now it’s safe to say very few of the people I have spoken to who are in a program of supporter finding that’s really happening personally for them.  It may be happening for somebody else in the organisation but it’s not happening for them.

That said, I could just be a cynic.  Maybe everybody else it’s happening to but not them.

KATHY:
It’s Kathy here.  Does volunteering count as work?

PETER NORBURY:
It can.

KATHY:
Oh no.

PETER NORBURY:
Technically it’s up to the disability employment service.  Unless you are with a job active one, which you may be.  In most cases you will be with the DES.  It’s whatever they consider it is but it can include that.

Now, for some people who have a zero to 8 requirement, often they’re not actually required to do much at all apart from come to the occasional meeting.  Because even the DES has accepted zero to 8 effectively means nothing.  But, yes, it can contain that.  It can contain study.  Whatever the disability employment service, their brilliantly intelligent and highly educated staff, apologies to you if you actually work for a DES, will assist you …  But of course it can be anything of that nature.

Okay.  There are a number of problems with the program of support, apart from the fact most people don’t know they have to do it before they go on DSP.  One of them is that some people turn up at a DES and the DES says, “We can’t help you because you are clearly too ill and we can’t help you get a job …” Therefore those people never start actively participating in a program of support.

So this knocks people out at the last one.  To give you an idea, we were contacted once by a DES who said we looked that the bloke and we can’t help him.  She said I’m willing to come to the tribunal with you and say that.  So I respected this woman.  She came to the tribunal and said to the tribunal member there is nothing our organisation can do for this bloke.  He is just not well enough for us to be able to do anything.  The member said, “I believe you but it doesn’t matter whether you can help him or not, or the program is of any value, it’s just whether he has participated in one or not.” Therefore, it’s simply a hurdle requirement.

Okay, I’m almost done.  The other 2012 changes are what we refer to as the morbidity of table 21.  Table 21 was the miscellaneous table in the previous set and contained things such as chronic fatigue.  The main one it contained was morbidity.

Back in the old days if you went to see the doctor and the doctor said Bernie you are going home to push up roses in the next six months.  I will give you a certificate to take to Centrelink and they will put you straight on DSP.  It was a good thing for the people in that situation.  Now we have had people who are literally three weeks away from death, but they still are not eligible for DSP because they don’t meet the criteria.

So that’s the first one.  A lot of the things that people used to get it for they don’t get it for now.  The standard amount for chronic fatigue now is 10 points under table 1.
In practice the tables are much harder.  They are functional based.  So it’s about the way the illness prevents you, or affects you, doing things, not about the illness itself.  It doesn’t matter what your illness is.  For want of a better concept, that just defines which table you are under, but it’s the effect it has of a functional nature.

If you qualified under the old table, this is before 2012, and you are reviewed or go off or something for some reason, and you need to reapply, your chances of success are at best — well, put it this way I barrack for Richmond in the AFL, we have much more chance of being the Premiers than you do of having DSP.

This is not quite as relevant now.  This program is kind of finished. There was the bit about under 35s.  Basically all of the people on DSP under 35s apart from the group that went on at 16, most of those have now been reviewed and a great percentage of them have been removed from DSP. So, that program effectively finished.

You may have heard of the so-called 90,000 that the Treasurer talked about in the budget?  They are going to review another 30,000 people each year for the next three years.  Most of those people will be people who went on DSP for mental health issues and didn’t have an original diagnosis by a clinical psychologist or a psychiatrist, which is what you need for mental health now.

An assessment by anybody else effectively doesn’t count.  Under the relevant table 5 you have to be assessed by a clinical psychologist or a psychiatrist.  They are the next group.
Our guesstimate based on the number of successful applications for DSP in Australia is in negative territory.  They are kicking off more people than are getting on.  It’s down to about 93 per cent or 94 per cent I think.

People need to watch out for what we call the permanent portability scam.  I do have to acknowledge that Centrelink warned people about it but if someone who is on DSP goes into Centrelink and says I would like to go overseas for longer than four weeks they often say to them, “Why don’t you apply for permanent portability”, which means if you are on DSP you can go away forever and centre link will continue to pay you.  So people think wow, that’s fantastic.  I’ll do that.  And I will be able to visit my 15 year old bride in the Philippines all the time.

And any way, of course what happens is when you make an application for permanent portability you make a new application for disability support pension and the eligibility for permanent portability is that you need 20 points of impairment under one table and no work capacity for the next five years.  So that’s zero to eight hours or seven hours technically I think for the next five years.  Most people who get it, again, our unscientific analysis is, for every five that apply for permanent portability one gets it, one keeps their DSP and three people lose it.

If you wish to contact us they are our contact details.  I’m happy to provide those to anyone who needs it.  With that unless people have questions they want now I will hand over to Len.

LEN JAFFIT:
Thank you very much.  I have a peur point that was — PowerPoint that was really designed for another purpose but there are a few slides that might be useful which I may get to or not.  Because sometimes I get distracted and lost.  Perhaps I will explain who I am.

I’m Len and I manage our Commonwealth entitlements program at Victoria Legal Aid. We cover three main areas of work.  We cover Centrelink disputes.  We cover some limited work in the NDIS space.  And we deal with people who are charged with Centrelink offences.  Obtaining money while not entitled to that money.

We provide services of what I call three levels of intensity.  We provide advice over the telephone for anybody with a legal question around Centrelink.  In appropriate cases we will provide a face to face appointment to look at documents, provide more detailed advice.  In some cases we can formally advocate for people on an ongoing basis.
Most of the formal work we do is at the tribunals.  I will explain what all of that means in a second.

Just before I forget, though, there are a couple of things out of Peter’s speech that I just want to mention.  Peter is absolutely right the program of support is a huge issue and a huge difficulty for many people applying for disability pension.

There is one circumstance where people don’t have to have done 18 months out of the previous three years.  And that’s if they meet one of the exemption criteria.  However, there is kind of a catch-22 for that.  You have to have actually been enrolled in the program of support prior to claiming the pension.

As Peter pointed out most people don’t even know what a program of support is.  Most People with Disabilities get a medical certificate exempting them from the activity test for new start and that really stops them starting a program of support.  So they are in a situation where basically they never get through the gate.  If they can get through the gate and commence with a disability provider before they claim the pension, and the disability provider forms the view that the — that because of their permanent disabilities the program won’t assist them or they can’t do the program then they … but there is really a catch-22 situation arising from that.

In terms of how I explain how to deal with Centrelink to pretty much everybody that rings who is not happy with Centrelink — I have a framework that I deal with.  In essence when people for the happy with Centrelink it really boils down to one of these reasons.  Either they’ve been charged with an offence and we’re not talking about that today so forget about that.  Or they’re not happy with a decision Centrelink has made under the social security law.

It might be a decision to reject pension, to raise an overpayment.  To cancel a payment, to reject a claim for new start, to pay them at a particular rate.  All of those things are decisions under the social security law.  Any time a person disagrees with that they have a statutory right of review and appeal.

They first have a right to have it formally reviewed internally by an authorised review officer.  That’s a senior Centrelink officer that has not looked at the matter previously.  They will do one of two things, either agree with the person and change the decision in their favour or they will write a detailed letter explaining why they’ve made whatever decision they have made.

From there, if the person is not satisfied with that decision they can appeal to the external tribunal, the administrative appeals tribunal.

The first tier or level of that used to be called the social security appeals tribunal.  You can lodge an appeal by telephone.  It’s a simple matter.  Despite the fact that Centrelink is the legal term is a nightmare — and social security law is unbelievably complicated, the actual review and appeal system is really quite simple and user friendly if you can get through on the telephone.  You don’t have to do it by phone.  You can do it in writing.  You can lodge a request for review by phone or lodge an appeal to the first tier of the AAT by phone.

From there, from the first tier of the AAT, if either you or the department think that decision is wrong there is a next level of appeal at the administrative appeals tribunal which is slightly more formal and Centrelink’s legal team are actively involved in that.  That’s the review and appeal system.

The other circumstance where people are not happy is what I loosely call service issues.  They’re not happy because Centrelink lost a claim form or they refuse to process something or are given bad advice or you can’t get through on the telephone.  All of those things are what I call service issues.  You can’t take them through the appeal system.  But you can make a formal complaint to Centrelink and if you for the satisfied with that, you raise it with the Commonwealth Ombudsman’s office.

The more times people appeal about these things the quicker things are done.  For example if it’s a matter of just simply being unable to get through on the phone you might want to take that up with the Ombudsman or go to the local member of parliament.  The other point Peter made is equally valid.  We don’t make the laws.  Centrelink don’t make the laws.  Members of parliament make the laws and also resource, ons like Centrelink.

If I can find the right slide.  It has nothing to do with Centrelink.  That was my first grandchild.  The reason I put that in, one of my colleagues thought it was to demonstrate how simple it was to seek a review or appeal.  Whereas it was actually because I was just a doting grandfather.  But importantly the reason force seeking review and appeal are that it can have a huge impact on people’s lives.

Most people are not aware of this.  This is data from 14-15 and has been reasonably consistent for 10 to 20 years.  About a third of people that seek an internal review by an authorised review officer have the decision changed.  Not always 100 per cent in their favour but that’s 3 out of 10 times or more that Centrelink get it wrong in the first instance when people query it.  From there the people that take it to the next level, about 25 per cent have the decision changed.

From there, people that take that on the second tier, about somewhere between 20 per cent and 30 per cent.  I think the bottom figure is wrong.  I think it’s higher than 20.
Perhaps for a couple of years either side I think it was 25 per cent.

The other interesting thing is that of the reviews and appeals at the second tier of the AAT about 60 per cent nowadays are about DSP.  When I first started working in this area which was many decades ago, for a long period of time about 30 per cent of the appeals were disability pension, the rest were about non-medical issues.  I don’t have any evidence for this but that’s never stopped me from doing anything in my life.

I think the reason why there are more appeals about disability pension percentage-wise is twofold.  One is progressively over the years it’s become more and more difficult to meet the medical requirements to get disability pension.  The other thing is that many years ago the way pensions and New Start were indexed changed.  New Start — sorry, disability pension like aged pension is linked to the all male average weekly earnings.  New start was linked  to cost of living.  So even though at one time the single rates from identical over time they have drifted further apart.  New start now is less than two thirds of the rate of disability pension.  So there is an increased incentive for people to be on the pension.

That’s why I think the percentages have gone up.  That’s also why I think the set aside rate at the tribunal has gone down.  Because I did the similar exercise about five years ago and for a long period of time the set aside rate at the SSAT was around 30 per cent to 35 per cent.

The way I explain that to lay people is — if you are dealing with Centrelink and they made a decision and you feel it’s wrong there’s a 30-plus per cent chance it is wrong.  So there is usually very few risks in seeking review or appeal.  If it’s about an overpayment you need to be aware that overpayments can increase as well as decrease on appeal.  But if it’s about a rejection of something like disability support pension you can’t be worse off.  They can’t affirm the rejection and also say that you can’t reclaim for 20 years.  So there is often every reason to seek review or appeal.

The other thing I was going to say quickly before we … sorry.  Before I get lost in this.
There are some contact details for my team.  All of these are available on the internet.  Legal Aid has an internet page with some information specifically about disability pension that we put up quite recently.  I encourage people to look at those resources, as well as those similar resources on social security rights Victoria’s web page.
And New South Wales Legal Aid also has some useful information about disability pension.

If you are assisting somebody who is claiming the pension or assisting them through the review process, it’s important to realise that really these things turn on the medical evidence.  It’s important to get reports from the treating doctors, from specialists.  Indicating what the diagnosis is.  What the functional impact of the conditions are.  And what treatment they have had, that’s necessary to address the requirements of fully diagnosed, treated and stabilised.

As Peter pointed out, these days to get any points at all for a mental health condition there’s a threshold requirement, you need a diagnosis from either a clinical psychologist or a psychiatrist.  But you only need the diagnosis from them.  Evidence from other practitioners like psychologists that are not clinical psychologists or GPs who are assisting you with your medication, that can be used to allocate points, provided you have got over the threshold diagnostic question of a diagnosis from a clinical psychologist or psychiatrist.

Importantly that diagnosis can actually occur after the date … there’s a decision of the general division of the administrative appeals tribunal, the second tier — if anybody feels like reading things like this it’s incredibly important.  It’s in the name of Eid, and it’s by a senior member who is well respected.  It has some useful information and we use it in our arguments at the AAT day in and day out.  Sorry I got a little bit side tracked.

There is one more slide but it’s incredibly important.  That’s it.  There is my grand daughter!  Too cute a photo to throw away.

The last thing I would say is that the other thing that we provide in my team at Legal Aid is if any workers have questions about Centrelink matters, they can also ring through for advice.  Because I’m so conscious of the fact that there is very few of us, including people at social security rights Victoria that have expertise in this area.  And also conscious of the high set aside rates on review and appeal I just encourage everybody to be aware of the review and appeal system, to assist clients to lodge those review and appeals.  If that’s what they want to do and you think it’s wise.  And if matters get complex you can always call on people like us or SSRV for further advice.

Thank you.  I would be more than happy to try to answer lots of questions.  (APPLAUSE)

MELISSA COE:
Thank you.  We have time for questions now.  I will go around with the microphone.  Please say your name and who your question is directed at. Who would like to ask the first question.  There you are.

QUESTION:
So we talked about NDIS rejection and the appeal system.  My question is, if any of the organisations deal specifically with the NDIS appeal system?

LEN JAFFIT:
I’m not quite sure I understood.  Was the question about the appeals process for NDIS?

QUESTION:
Yes.

LEN JAFFIT:
Okay.  I have a little bit of knowledge but not a lot of knowledge in that area.  I have been working in the Centrelink space for 30-plus years.  NDIS is far more recent.  Having said that, Legal Aid does do some work at the general division of the AAT.

There is a not dissimilar review and appeal system.  Again, there are some complications that I think are completely unnecessary.  In the NDIS they talk about — they use the word review in two contexts.  They use it in the context of a plan review.  That’s a review of somebody’s NDIS plan.  And they also use it in the context of a reviewable decision.

So if the NDIS make a reviewable decision which might be a decision to refuse access to the scheme, it might be a decision to fund a particular level of supports where the person wants different or more supports, they would be reviewable decisions.  And a person has a right to have that internally reviewed.  So not dissimilar to the authorised review officer process.  From there they can take that decision to the AAT.

The difference is there is only one level of external review.  Which is comparable to the second tier for a Centrelink matter.  There is not an equivalent of what used to be the social security appeals tribunal.

The reason that is important is that for the first tier of the AAT for Centrelink decisions or it used to be called the social security appeals tribunal, that’s an appeal where Centrelink are not actually involved in the appeal.  The person lodges an appeal saying I disagree with the decision to reject my disability pension claim or cancel it.  The tribunal notify Centrelink and Centrelink provide the file papers and that’s really the end of their involvement at the moment.  The tribunal then provide as copy of the papers to the person and arranges for a hearing time where the person can say to a tribunal which is usually one or two members why they think the decision is wrong.  The tribunal will then make a decision of the usually send it to the person within a fortnight.  Centrelink is not actively involved.

At the next tier, the general division of the AAT Centrelink are involved.  The plus is it gives an opportunity for the person and Centrelink to actually reach an agreement without the need for a hearing.  So often at the general division of the AAT we will act for a person and we will provide additional medical evidence and we will convince Centrelink’s representative that the person is qualified for the pension and they will agree to grant the pension without the need for a hearing.  That’s the plus.

The minus is it’s much more formal.  If it goes to a hearing Centrelink’s lawyers are there.  They cross-examine the person and their witnesses on their evidence.  It’s a formally recorded, forget I said that, because the lower tier is now recorded.  But it is a much more formal process, much closer to a court of law than an informal tribunal.

The NDIS appeals are at the general division and they are very formal.  Even though the AAT has gone out of its way to try to make user friendly processes, have case managers allocated to the appeal it’s still pretty formal and pretty adversarial and occasionally exceedingly frustrating.

I hope that answers your question.  I got a bit sidetracked, as is my want.  I’m a lawyer.  What can I say.

MELISSA COE:
Any other questions?

WINNIE:
Hi, it’s Winnie — in the recent audit of the qualification process for the DSP that there is currently a parliamentary inquiry about, one of the findings was around that the appeals process or given the increased number of people who are making appeals and having claims rejected is actually increasing I guess costs associated with administering the DSP.  The auditors made a finding that this could be partly addressed by providing better information to people about why their claims have been rejected.  And also just noting that the audit didn’t involve any direct consultation with DSP claimants or recipients.  Do either of you have any views about that finding and whether it has merit, I suppose, and I mean DSS and DHS have not said how they would respond to it but they have accepted that recommendation, I suppose…

LEN JAFFIT:
Funny you should mention that.  There was a very short timeframe for putting in submissions to that inquiry.  Legal Aid put in a detailed submission with not too many typos.  And we’re going up on Wednesday to give evidence to the inquiry.  That is one of the things that we absolutely agree with.

It’s not just a lack of information around the reasons for rejection, it’s a lack of information about things like a program of support.  So often people have lodged a claim and it’s only when they get to the tribunals that they even understand vaguely what a program of support might be.  By that stage they’ve lost a year or two of possible entitlements.

So there are huge problems with the way it’s administered.  I think there are huge problems with the way the program of support directive is made.  Obviously there is an acknowledgment that some people will not benefit from a program of support and that’s kind of written into the direction.  But the way it’s worded in that you actually have to have started, get through the doors of a program of support before you lodge a claim.  Kind of results in a catch-22 for a huge percentage of clients.  Often the first time they are aware of that is when they talk to us or people like Peter.

So the short answer is completely agree.  There are a number of points we made, including around the new medical processes.  The way the Commonwealth medical officers used to work, I remember a time in the early 70s unfortunately, the CMO used to make the decision as to whether somebody was medically qualified for the, then, invalid pension, they would tick a box.  If they happened to tick the wrong box by accident they would rarely change their minds.

I only know that because I saw one where it was crystal clear that is what happened.  Because the box ticked did not match the rest of the form.  The guy was terminally ill.  And the CMO just refused to admit he had done that.  But then it became apparent that legally the decision belonged to a social security officer not a doctor and then the pendulum shifted.  Now we have a situation where they have reinvigorated the CMOs.  My understanding is — Commonwealth medical officers.

If an authorised review officer wants to agree that the disability pension claim should be rejected, that’s fine.  They just go along and reject it and don’t talk to the Commonwealth doctors.  But if they want to change that decision because they think that the original decision was wrong, they need the Commonwealth medical doctors to review that decision.  So it’s kind of a further barrier for people in reality.

As I said, we think there is a range of procedural problems that were highlighted by that audit report.  And it will be interesting to see what the department’s response ultimately is.

PETER NORBURY:
I think just to add to that…- There has been a fallacy around, well they talk about it in the old testament, if you just explain something to people they will say, Oh, okay, I must be wrong.  Whereas we don’t.  We subscribe to, we understand the further people go into the process the more they understand.  But the long and short of it is it goes back to what Len said, new start is two thirds of DSP and these people are ill, why aren’t they eligible for DSP.

There is some good stuff.  The AAT just printed some very good stuff about it last week on their website.  But little of that changes what is really the economic and health issues that are pushing people towards DSP.  This is the outcome of the government changing the rules.  It changed the rules and pushed a whole lot of people off DSP.  Those people have a right to appeal.  If it’s economically taxing for the government I will try not to cry too much about it.

KATHY:
I’m Kathy.  Peter, could just ask you a question about the support programs.  The Centrelink is a federal organisation.

PETER NORBURY:
Yes.

KATHY:
What if the person is volunteering under a Victorian state government provider or support program?  Or are they the same thing under the definition of “support”?

PETER NORBURY:
It’s all about whether or not it’s an approved activity.  That is, the approved activity is approved by the disability employment service.  They might say what are you doing?  Oh, I’m volunteering at Vinnies.  Oh, Oh, yes, that’s all right.  We will put that in.

KATHY:
This individual is not with a DES provider, she is under a transition to work provider.  She is 22 year old let’s say.  She was on the disability support pension

PETER NORBURY:
She is already on it?

KATHY:
She is already on it.

PETER NORBURY:
The program of support — sorry, don’t confuse the program of support with the activity requirement that some DSP recipients have.  Some DSP recipients particularly those under the age of 35 have an activity requirement but it’s not a program of support.  They may be the same in what actually occurs but the program of support is specifically for somebody who usually is on New Start.

Again, but it’s not dissimilar.  It still needs to be approved by the disability employment service.  They can approve just about anything for want of a better concept.  There is no reason that it can’t be, but there is no reason it would — that it automatically will.  (pause)

MELISSA COE:
Doesanybody else have a question before we wrap up?

VI:
It’s just a question…  We have a client, we are an advocacy service for People with Disability.  We do lately have a high number of people accessing our service with regard to rejections of their application.

Recently, a person was — Centrelink was given 10 points for the person’s back problems.  And this person had several health issues.  Has seizures.  And that was not — Centrelink didn’t give her points for seizures.  She had some internal hernias that requires her to undergo a major operation.  With the treatments … not allowed  to lift any heavy things or she can’t even drive.  But Centrelink seems to see she is not qualified for the DSP.  They required her to do some activity program.  And they even recommended the employment service for this person to attend.  But at the end of the letter they even advised they are not to start any activity until February.  With that, saying that, now the person has got some hope.  So what do they mean?  Do they mean you know I still have a chance?  Or I have the opportunity?  That they will revisit my case?

PETER NORBURU:
I couldn’t answer that.

LEN Jaffit:
Okay.  Before I forget, there is no way I can answer that, either, because I don’t have enough information.  But generally speaking, if a person lodges a claim, Centrelink should make a decision.  If the person doesn’t like the decision they go through the review and appeal system.

The one thing I forgot to mention is a person has a right to lodge as many claims as they like.  We often see people who are appealing a decision they made a year ago that has finally got through to the tribunal.  And that’s a decision about whether they were medically qualified at the date of that claim a year ago.  Whether their condition was fully diagnosed treatment, that it stabilised back then.  Almost invariably I advise people they may also want to lodge another claim now to test their entitlement today and see whether their condition, fully diagnosed, treated and stabilised today.  If it’s refused they can go through a review and appeal about that.  If it’s successful they are on the pension into the future and they can still continue with their appeal and it then becomes about whether or not they get that paid.  Do you understand what I mean?

VI:
Yes

LEN JAFFIT:
Just to conceptualise it, try and think if a decision has been made and I don’t like it I can go through the review and appeal system

PETER NORBURY:
The only thing, again, in agreement with Len, we can only give you rough ideas.  Two things I will say is if somebody has an operation they need to have, they can’t be considered to be diagnosed, treated and stabilised until they have had that operation.  Under the pure theory they might have that operation and then they will be better, see?  So that’s the first one.

The second one is an exemption they have until February as an exemption from new start which Centrelink says we can’t do anything now.  But … but … if that period for example doesn’t count towards a program of support.  Because they’ve got an exemption.  Okay?  They don’t have to do anything and they will be paid new start.  That’s all good.  But if they are hoping to — you know, stack up some program of support credits for want of a better concept, the period they don’t have an activity requirement for doesn’t count.

VI:
So the longer the person is waiting to start that activity program is not helpful to them.  To the person’s case?

PETER NORBURY:
If that’s one of the reasons they’re not going to be successful, yes.

VI:
Thank you.

MELISSA COE:
Thank you very much, Len and Peter.  That was very informative.  Before we move on to the next session, can I please ask you to fill out the evaluation form.  This is really important to us so that me and Natasha know how to structure these conversations and make them as useful as possible.

 

Author:
DARU

Date published:
Fri 25th Nov, 2016