Anderson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2009] AATA 306

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 306

ADMINISTRATIVE APPEALS TRIBUNALNº 2009/0098

GENERAL ADMINISTRATIVE DIVISION

Re:COLIN ANDERSON
Applicant

And:SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal: Miss Anne Shanahan, Member

Date: 7 April 2009

Place: Melbourne

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) Anne Shanahan
Member

SOCIAL SECURITY - disability support pension – failure to satisfy s 94(1)(b) of the Act – condition not fully treated – decision not appealed – subsequent qualification for disability support pension – applicant seeking backdating of payment of disability support pension based on an earlier certificate – certificate not acknowledged by Centrelink – decision affirmed

Social Security Act 1991 s 94

Schedule 1B Impairment Tables

Social Security (Administration) Act 1999

REASONS FOR DECISION

4 May 2009

Miss E A Shanahan, Member

Mr Anderson first applied to Centrelink for disability support pension (DSP) on 27 August 2007. Centrelink, the agency which provides services for the Department of Families, Housing, Community Services and Indigenous Affairs. Centrelink rejected the claim on 3 October 2007. Mr Anderson made a second claim for DSP on 24 September 2008 and DSP was granted. On the same day Mr Anderson requested a review of the decision not to acknowledge his lodgement of a medical certificate dated 22 February 2007. On 6 October 2008 a Centrelink authorised review officer (ARO) advised that he had no jurisdiction to review this decision as there was no record of its lodgement and no decision had been made at that time to attract such a review. Mr Anderson applied to the Social Security Appeals Tribunal (SSAT) for review of the decision to reject his application of 27 August 2007 and the failure of Centrelink to acknowledge the certificate of 22 February 2007. The SSAT heard the matter on 19 November 2008 and affirmed the decision on 6 January 2009. Mr Anderson applied to the Administrative Appeals Tribunal for a review of this decision on 9 January 2009.
Mr Anderson was self-represented and gave evidence. The Respondent was represented by Mr Michael Todd, an advocate with Centrelink. The Tribunal was provided with the documents lodged pursuant to S 37 of the Administrative Appeals Tribunal Act (1975) (the T-documents).

BACKGROUND TO THE APPLICATION

Mr Anderson registered with Centrelink on 9 February 2007. He had been required to do so by an Order of the Magistrates Court to enable him to enter what he, Mr Anderson, termed the assist program. In late 2006 he had been homeless and living on the street. He was robbed of his money and had no means of support. He informed the Tribunal he had got into trouble with the law and as a consequence appeared before a Magistrate and was ordered to undertake a four-month assist program. Mr Anderson obtained accommodation and successfully re-ordered his life. On 9 February 2007 Centrelink assessed him as qualifying for a newstart allowance.
On 12 February 2007 Mr Anderson saw Dr R Hemphill for the first time. Dr Hemphill completed a Centrelink medical certificate on 22 February 2007 (T21, p 68), in which she diagnosed severe obliteration of the right hip joint. She recorded that Mr Anderson was on the waiting list for a right hip replacement at Western Hospital. The condition was said to have been present for longer than 12 months, was permanent and was considered likely to deteriorate. Mr Anderson’s symptoms were described as pain, difficulty with mobility and rising from the sitting position. On examination, Dr Hemphill had noted a fixed external rotation deformity of the right lower limb. She certified that Mr Anderson was unfit for work from 12 February 2007 until 12 October 2007.
In his evidence before the Tribunal, Mr Anderson confirmed his pain and limited mobility and that he had undergone left hip surgery in 1982 and 1984. In January 2008 right hip replacement was performed at St Vincent’s Hospital. This resulted in a reduction of Mr Anderson’s pain and improved his mobility to the extent that he was now able to walk several kilometres per day, swim as he has always done and cycle. Mr Anderson’s right knee pain, which was not referred to by Dr Hemphill in the certificate, had also improved. His treating surgeon, Professor Peter Choong, has delayed previously planned right knee surgery presumably to allow for maximal improvement before reassessment of the need for knee replacement.
Dr Hemphill provided further and more detailed reports on 27 July 2007 and 10 August 2007, indicating Mr Anderson had severe osteoarthrosis of both hips, the right knee and Paget’s disease. At that time he was awaiting surgery to the right hip, now booked for St Vincent’s Hospital; and in the interim he was taking analgesics and anti-inflammatory medication.
A psychologist performed a Job Capacity Assessment (JCA) on Mr Anderson on 6 September 2007. He (check sex) assessed Mr Anderson’s osteoarthrosis as temporary as it was not fully treated, given that he was on a waiting list for right hip and right knee replacement. He determined that if these procedures were successful, Mr Anderson, following rehabilitation, would be able to work more than 30 hours per week. Mr Anderson’s condition did not attract an impairment rating under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act), because of the temporary nature of the condition. Mr Anderson did not qualify for DSP.
Centrelink sent notification of the decision, including the details of the Right of Appeal, to Mr Anderson by post at his then and current address. Mr Anderson states that he did not receive the letter and therefore did not seek review of the decision.
Dr J Pathak provided a medical certificate to Centrelink on 22 April 2008 certifying Mr Anderson unfit for any work for a period of three months. The diagnoses contained in the certificate were osteoarthrosis of the right hip, osteoarthrosis of the right knee and osteoarthrosis of the lumbar spine with L4 and L5 nerve root compression. A psychologist carried out a further JCA on 24 September 2008, at Centrelink’s request. She assigned Mr Anderson an impairment rating of 20 points under the Impairment Tables, based on his knee condition and spinal disorder with nerve root compression. Centrelink granted Mr Anderson DSP.
On the same day the DSP was granted, Mr Anderson requested a review by an ARO of another decision. The decision he was seeking review of was Lodgement of medical certificate dated 22/02/07 not acknowledged by Centrelink (T14, p48). The ARO found that no decision had been made in respect of this certificate; and therefore, there was no jurisdiction to review Mr Anderson’s ground of complaint.
A third JCA was conducted on 1 October 2008 and the psychologist conducting it obtained a more detailed history of the two operations Mr Anderson had undergone on his left hip in the 1980s, his past and current treatment by an orthopaedic surgeon, physiotherapy and the performance of numerous investigations. The psychologist assessed the osteoarthrosis of Mr Anderson’s hips as fully diagnosed, treated and stabilised. Similarly, she found Mr Anderson’s back pain and L4-L5 nerve root compression to have been previously investigated (including MRI studies) by a neurosurgeon; and had been treated with occupational therapy and pain management. She concluded that Mr Anderson’s spinal disorder was thus fully diagnosed treated and stabilised. She assigned an impairment rating of 20 points under the Impairment Tables. All three JCAs had stated that specialist opinions were not required and all relied on the treating general practitioner’s certification.
Mr Anderson applied to the SSAT for review of the decision of the ARO in respect of the medical certificate and the matter was heard on 19 November 2008. After the hearing Mr Anderson believed his appeal would succeed. He was therefore surprised when the decision of 6 January 2009 was not in his favour. Mr Anderson believes that his current medical status with respect to his osteoarthrosis is the same as it was in February 2007; and had Centrelink taken into account Dr Hemphill’s certificate of 22 February 2007, he would have been assessed as meeting the requirements for DSP as at that date. Mr Anderson has complained to the Commonwealth Ombudsman, Professor John McMillan and to two Federal Members of Parliament about the standard of the JCAs he has undergone. Particularly, that each was conducted by a psychologist as opposed to a person expert in the assessment of physical rather than psychological disease.
In January 2009 Mr Anderson was diagnosed with carcinoma of the left kidney. While being assessed with respect to the operability of this malignancy, he developed severe chest pain necessitating attendance at St Vincent’s Hospital’s Emergency Department. Urgent investigation revealed the presence of severe coronary artery disease with ischaemia. Stenting of three coronary arteries was performed.
Mr Anderson is awaiting further assessment of the operability of his renal carcinoma and his operative risk, given his recent coronary artery stenting. Further treatment of his right knee is in abeyance.
The documentation states that Mr Anderson last worked in 2002. He is a qualified and vastly experienced heavy vehicle motor mechanic. His evidence before this Tribunal was that he ceased work in 1996 or 1998, lived on his savings and travelled around Australia. He did not access social security payments. During his travels he would work on a casual basis, when he needed to.
While Mr Anderson’s right hip and right knee pain have improved since his right total hip replacement in January 2008, he continues to have pain and limitation of mobility. He also suffers from hypertension but this is well controlled and is not a factor in preventing him from working.
Mr Anderson’s evidence and the documentary evidence is summarised under background to the application.

RELEVANT LEGISLATION

Section 94 of the Act sets out the qualification criteria for DSP as follows:
94 Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
…

Section 94(2) enlarges on the concept of continuing inability to work and states:

(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

The Introduction to the Impairment Tables states:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.
As Mr Anderson did not seek a review of the decision of 3 October 2007 rejecting his claim for DSP, s 107 of the Social Security (Administration) Act 1999 (the Administration Act) is attracted. Section 107(2) provides that:
(2) If:
(a)a decision (the original decision) is made rejecting a person’s claim for a social security payment or a concession card; and
(b)the person is given a notice informing him or her of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
Section 237 of the Administration Act sets out the requirements for the giving of notice of decisions.

SUBMISSIONS

Mr Anderson submitted that his medical condition at the time he qualified for DSP on 24 September 2008 was substantially unchanged from when he applied initially on 27 August 2007. He argued that had Dr Hemphill’s certificate of 22 February 2007 been taken into account the decision of 3 October 2007 would have been in his favour. Centrelink had not acknowledged receipt of this certificate. He had provided Centrelink with a copy of it after the decision to reject his claim. Furthermore, he firmly believed that all three job capacity assessments performed had been inadequate, in that they had been performed by psychologists rather than an assessor with knowledge of physical medical conditions. He requested the Tribunal to set aside the decision of 3 October 2007 and find that he had qualified for the DSP on that date and that Centrelink should make a back payment of the pension to that date.
Mr Todd for the Respondent submitted that the rejection of the claim on 3 October 2007 was correct since the treatment of Mr Anderson’s osteoarthrosis of the right hip and right knee had not been completed as he was awaiting surgery to both joints. No impairment points could be attracted for either joint arthropathy. Mr Todd submitted that Centrelink had met the requirements of s 107 and s 237 of the Administration Act with respect to notice, having sent the letter of the decision of 3 October 2007 to Mr Anderson’s correct postal address. Mr Anderson had not sought review of the decision and had not communicated with Centrelink again until 24 September 2008, when he lodged a new claim for disability support pension. Mr Todd contended that even if the Tribunal found that Mr Anderson did qualify for DSP in 2007 or at the date of his application on 27 August 2007 there was no legislative provision for backdating of payment to that date.

THE TRIBUNAL’S DELIBERATIONS

The Tribunal accepts Mr Todd’s submission that it has no power to order back payment of DSP to the time of Mr Anderson’s first application for this benefit on 27 August 2007. The legislation does not provide any such power. The Tribunal accepts that Mr Anderson did not receive the letter notifying him of the decision of 3 October 2007 and also outlining his appeal rights and process. However, Centrelink did meet the requirements of the Administration Act with respect to the provision of notice. As Mr Anderson did not appeal that decision within the time provided, namely 13 weeks. Section 107(2) of the Administration Act clearly states that if more than 13 weeks after the notice is given the person applies to the Secretary under s 129 for review of the original decision and a decision that the claim be granted is made as a result of the application for review; the determination embodying the last mentioned decision takes effect on the day on which application for review was made. As Mr Anderson did not seek a review of the earlier decision until 24 September 2008 and if this Tribunal found in his favour, any payment could not be backdated beyond that date. Mr Anderson was granted the DSP on the day that he lodged his request for a review.
Despite the fact that the Tribunal has no power to backdate Mr Anderson’s payment should it find that he did qualify for DSP in 2007, he deserves the consideration of his argument and of his complaints regarding the conduct of the job capacity assessments.
It appears clear that Centrelink did not register the contents of Dr Hemphill’s certificate of 22 February 2007 in their computer records. Mr Anderson provided the SSAT with a copy of this certificate on 3 November 2008. The SSAT case officer, Ms D Muir, subsequently found the original medical certificate with the Centrelink receipt stamp date of 23 February 2007, as well as a copy provided to Centrelink and receipt stamped 27 August 2007 (T19, p66). Centrelink obviously did receive the certificate of 22 February 2007 from Dr Hemphill.
Mr Anderson had first attended the Centrelink office on 9 February 2007 and did so in compliance with an Order of the Magistrates Court. He was placed on newstart allowance. The Tribunal presumes he was asked to provide certification of any medical condition from which he suffered, as these might relieve him of the requirement to report fortnightly and to seek employment albeit on a temporary basis. Dr Hemphill had not seen Mr Anderson before 12 February 2007. The certificate she subsequently wrote referred only to severe obliteration of the right hip joint. She did not make a diagnosis of osteoarthrosis. The date of onset of the condition was said to be more than twelve months before and it was likely to deteriorate over the following two years. Mr Anderson could not work, study or perform any other work for eight hours or more per week. Treatment consisted of analgesia and waiting for surgery to the right hip. The condition was said to be permanent. There was no mention of the severity of symptoms, although the findings with regard to mobility and fixed external rotation were recorded. Dr Hemphill’s certificate of 27 August 2007 did provide a diagnosis of osteoarthritis (sic) of both hips and the right knee and that Mr Anderson was awaiting joint replacement at St Vincent’s Hospital. She estimated the date of onset of the condition as early in 2006.

Mr Anderson’s contentions were dependent upon the content of the first certificate of February 2007. Dr Hemphill failed to make a definite diagnosis at that time. It may have been possible for a qualified medical practitioner to interpret the meaning of what purported to be a diagnosis, that is, severe obliteration of the right hip joint. However, it certainly would not be within the realm of understanding of non-medically qualified assessors. This deficiency in diagnosis was corrected in Dr Hemphill’s later certificate of 27 August 2007. Regrettably, this second certificate did not refer to past treatment and investigation of Mr Anderson’s condition; although by inference it would have been possible to conclude that as he was on waiting list in two public hospitals he had in fact been investigated thoroughly and a prognosis had been determined.
Mr Anderson has raised the issue of the appropriateness of the qualification of the assessors who conducted three JCAs in the period 6 September 2007 to 1 October 2008. On all occasions the assessment was conducted by a psychologist. The assessment was for physical medical conditions, not psychological symptomotology. It was not until the assessment conducted on 1 October 2008 that a more detailed history of Mr Anderson’s various medical conditions was obtained, including past investigation and treatment. The JCA of 24 September 2008 did address three conditions as opposed to the two of the earlier considerations, and did so in the light of the certificate provided by Dr Pathak, who for the first time mentioned Mr Anderson’s lumbar spinal degenerative disease with L4 and L5 nerve root compression. The JCA of 1 October was said to rely on the report of Dr Hemphill of 24 September 2008. This report is not contained within the T‑documents provided to the Tribunal. There are instances in these JCAs which indicate a lack of familiarity on the part of the assessor with physical ailments. For example, Dr Pathak’s description of foraminal stenosis with the root compression is recorded as formical indicating a lack of knowledge of the structure of the vertebral column and the exit of nerve roots from the spinal cord via a gap between vertebrae – the intervertebral foramina. On occasion the assessing psychologist has devoted time and consideration to Mr Anderson’s psychological status - he displayed predominately frustrated mood. (T12, p45) In all three JCAs the assessor stated that no specialist assessments were required. It is clear from the content of the T‑documents that Mr Anderson had seen numerous specialists in the past, including a neurosurgeon, orthopaedic surgeons and a rheumatologist. The opinions of these specialists should have been sought and used in the determination of Mr Anderson’s eligibility for DSP.
Mr Anderson kindly provided the Tribunal with a copy of the Commonwealth Ombudsman’s report Number 05-2008 entitled Implementation of Job Capacity Assessments for the purposes of Welfare to Work Initiatives. Additionally, he provided copies of emails he had sent to, and the replies received from, his local Member of Parliament, the Minister for Human Services and Professor John McMillan, the Commonwealth Ombudsman. In his report No 5-2008, the Ombudsman made several recommendations. Those most pertinent to Mr Anderson’s application before the Tribunal are recommendations 2 and 6. Recommendation 2 states:
2.Wherever possible DHS should consider adjusting its allocation processes to align a customer’s primary medical condition with the JCA assessor’s area of specialisation.

and recommendation 6 states:

6.That JCA guidelines – including timeliness standards- be amended to encourage the appropriate use of referrals for specialist opinions where the available medical information requires clarification.

Professor McMillan reported the analysis of some 378,353 JCAs that had been conducted. At the time of his report, 35.2 per cent of these were completed by registered psychologists and 22.5 per cent by assessors with expertise in physical medical conditions, 26.1 per cent were completed by assessors who nominated their specialty as others. These others consisted mostly of unregistered and intern psychologists but also included unregistered nurses, osteopaths, radiation therapists etc (p4 of 28 of report 05-2008).
As the Tribunal has already stated, there is no discretion to set aside the decision of 3 October 2007, despite evidence which strongly points to Mr Anderson having been qualified for DSP at that date.
At the Tribunal’s suggestion Mr Todd undertook to discuss further with Mr Anderson any other form of redress that may be open to him, such as an ex gratia payment or compensation under the CDDA Scheme.

I certify that the thirty-three (33) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan, Member

Signed: Dianne Eva
Clerk

Date of Hearing  7 April 2009
Date of Decision  May 2009
Applicant self represented        Mr Colin Anderson
Advocate for the Respondent   Mr Michael Todd, Centrelink Legal Services