Welfare Rights Centre has run a DSP clinic in partnership with Hall and Wilcox since 2019, staffed with pro bono volunteers who have experience in personal injury law. The clinic provides advice to clients regarding appeals to the Administrative Appeals Tribunal. We asked the Hall and Wilcox volunteers to reflect on their experiences with the clinic from the perspective of lawyers with little to no experience of the social security system. All of the volunteers expressed surprise regarding the complexity of this area of law, and concern regarding the repercussions of this complexity for vulnerable claimants.
What prompted you to put up your hand for the Clinic?
‘Disability support is something I am passionate about. My grandmother was involved in a freak accident during my final year of university, which rendered her a quadriplegic and changed my perspective on the world and how the world treats those with disability. I also know people with ‘invisible’ disability such as severe psychological or neurological conditions, which can make it equally hard to navigate this world.’
Is the DSP Clinic work what you expected?
‘It isn’t what I expected at all. I honestly thought that if people were really eligible for disability support then they wouldn’t have any issues in trying to get on it – oh how wrong I was! I wrongly had an assumption that those who were rejected deserved to be as they were exaggerating their symptoms.’
‘I think what has surprised me has been the amount of clients with genuine disabilities who are refused the DSP because of minor technicalities involved in the application process.’
‘I knew the Social Security Act was a complex beast, but that is probably an understatement!’
‘It has given me a lot more insight into the daily (and sometimes lifelong) struggles of people, who not only have to battle their conditions and disability, but a DSP application process that is stacked against them. Working in personal injury, we often review Centrelink files as an information gathering exercise and what is now clear to me is that the opposite is true, namely the outcome of one’s DSP application is not always a true reflection of what one is suffering.’
In what ways have you found advising DSP Clinic clients rewarding/challenging?
‘I did not anticipate the challenges. I did not anticipate that people who legitimately deserved to be in receipt of the Disability Support Pension would have any problems in applying and getting accepted.’
‘The most rewarding experience is when you are able to simplify the application process for a client. Many clients are simply overwhelmed by what is required of them. The most challenging is dealing with clients who have battled with the system for years and are disillusioned with it. I anticipated this challenge but I did not anticipate that it would stem from the complexity of the application process.’
‘One of the most challenging aspects is trying to obtain the necessary information to properly advise clients. Some clients have had a host of DSP applications on foot and they are unsure whether they hold the documents relating to the subject application.’
Do you have any particular observations regarding the DSP assessment and appeal process?
‘Neither clients nor their treating doctors are aware of what information Centrelink requires in order to consider and approve DSP applications. Many applications are supported by insufficient information, which inevitably draws out the process. The initial decision letter often provides insufficient information or reasons to understand how Centrelink arrived at their decision.’
Many DSP clients have been refused DSP because of failure to satisfy the Program of Support requirement. Do you have any observations regarding this legislative requirement?
‘The Program of Support requirement causes great confusion. Whilst a Program of Support might be of utility for some clients, it is baffling that a Program of Support is required for all clients if they do not rate 20 points for any single condition (unless exempted). Many of the clients we have seen are well over 20 points when impairments for different conditions are combined and, on all available evidence, they have no residual or any real earning capacity as a result.’
‘Most of the clients I have dealt with through this clinic are unable to work. They have disabilities that mean participating in a Program of Support isn’t possible. Gaining an exemption from the requirement is a lot harder than it needs to be.’
‘Many clients are unaware of this requirement and they are also unaware of how to access these services. This requirement can often seem like just another hurdle that doesn’t go towards assessing the extent of an applicant’s disability.’
Many DSP clients have been refused DSP because of the requirement that to be ascribed a rating under the DSP Impairment Tables, a condition needs to have been ‘fully diagnosed, treated and stabilised’. Do you have any observations regarding this legislative requirement, and how it’s applied?
‘The “fully diagnosed, treated and stabilised” issue is one that arises often as a result of insufficient evidence being lodged initially. Clients sometimes struggle with the idea that although a condition is fully diagnosed, and has remained stable for some time, the impairment arising from that condition is not assessable if there is treatment available (that the client has not reasonably declined). The unfortunate thing with this requirement is, even if the changes of improvement are slim to moderate at best, the condition will still not be assessable.’
‘I find that this requirement is trickier to meet in practice than it sounds on paper. For example, if a client has been diagnosed with a new condition for which a treating doctor recommends some treatment options, Centrelink may assess the condition as not fully “treated and stabilised”. If the treatment is not a “cure”’ and is unlikely to assist the client in getting to a stage where they are able to work, whether or not the person pursues any of these options should not affect whether the person is eligible for the DSP.’
Regarding the “fully diagnosed, treated and stabilised” requirement, do you have any observations regarding clients’ capacity to obtain relevant evidence from treating doctors?
‘The main difficulty I have observed is obtaining the necessary treating specialist reports, either due to lack of financial means to do so or inability to see the doctor during the “relevant” 13 week period. Many treating doctors do not understand the DSP application process and what Centrelink looks for and considers when assessing applications.’
‘I have found that the templates created by the Welfare Rights Clinic have been very helpful in assisting both clients and treating doctors to understand what is required to be addressed. Doctors have to address a specific list of issues (as set out in the Tables) as well as confirm the “fully diagnosed, treated and stabilised” requirement. If they do not address all of these things correctly, Centrelink is likely to allocate 0 points.’
‘Some clients are able to access their treating doctors as often as they would like and have the full support of doctors who will provide reports upon request. Others are faced with the difficulty of obtaining an appointment and then convincing their doctor to complete a report to submit to Centrelink. I have heard that doctors can be hesitant to provide reports when they hear that they will be used for Centrelink applications.’
Have you had any concerns regarding clients with mental health issues/long-term psychiatric conditions?
‘Those that suffer mental health issues can fall through the cracks because they have difficulty obtaining the necessary medical reports to support their application and suffer exacerbation of symptoms dealing with Centrelink. One particular client, who had dedicated their life to providing care for others in the public health system, suffered a psychiatric episode with continuing symptoms later in life as a result of trauma when they were child and an event at work that triggered them. The client’s psychiatric condition manifested with physical symptoms, but they did not suffer a physical injury. The DSP system sadly does not take into account the further (albeit intermittent) psychiatric harm caused by having to rehash such events.’
‘I would say that the social security scheme does not align with the nature of mental health conditions. For example, the need for a “fully diagnosed, treated and stabilised” condition does not suit many mental illnesses which affect people differently on a day to day basis.’
‘I can think of one client in particular who was so anxious it was even difficult to just get her on the phone. I have also dealt with another client who had been dealing with the Centrelink process for so long that it was aggravating her mental health condition. She described being admitted to hospital after a suicide attempt, her distress having been compounded by her inability to get the DSP. She felt like a burden to her family and that she had no other choice. It is extremely sad that someone would be made to feel this way and I think it is a poor reflection on how her particular case was managed by Centrelink. What is also sad is that I do not believe this is an isolated incident and many clients with mental health issues would have them exacerbated by the difficulties that can occur in attempting to obtain the disability support pension.’
Any suggestions for reform of the DSP legislation – legislative and/or re its administration by Centrelink?
‘Of course, where possible it is always preferable to rehabilitate people into the workforce. However, where a person has a significantly reduced or modified work capacity that is not going to translate to any real employment prospects despite treatment, retraining or rehabilitation, the Program of Support should not be mandatory and the DSP application should be approved forthwith.’
‘The DSP legislation needs to be simplified. The requirements of a DSP applicant must be clearly stated from the outset and the scheme should be redesigned with a focus on assessing the applications on the basis of disability and how these work to impact an individual’s life rather than finding loopholes to reject applications.’
‘Centrelink should aim to assist clients in understanding what is required so that they can submit the correct information rather than having to appeal time and time again or even submit new applications from scratch.’
Working on the WRC DSP Clinic can be challenging … what make you stick with it?
‘Without a doubt it’s being able to assist the clients. I have never had a client who has been rude to me, or who I think is exaggerating their symptoms. It feels really satisfying to be able to chat to these people who are struggling and actually be able to assist them in moving forward when they can be in such a tough position in their lives.’