Anderson and Secretary, Department of Social Services (Social services second review)

[2016] AATA 784

Anderson and Secretary, Department of Social Services (Social services second review) [2016] AATA 784 (6 October 2016)

Division	GENERAL DIVISION
File Number	2015/6864
Re	Guy Anderson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D. J. Morris, Member
Date	6 October 2016
Place	Perth

The Tribunal affirms the decision under review.

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D. J. Morris, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – request for unlimited portability – severe impairment – what is date to assess – whether 20 or more points under a single impairment table – ability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 1218AAA

Social Security (Administration) Act 1999

CASES

Lee and Secretary, Department of Social Services [2016] AATA 60

Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; (2008) 103 ALD 467

WMKR and Secretary, Department of Social Services [2015] AATA 483

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

D. J. Morris, Member

6 October 2016

BACKGROUND

1. Mr Guy Anderson was first granted Disability Support Pension (DSP) in February 2002.

2. On 12 January 2015, he made a request for unlimited portability of his DSP under section 1218AAA of the Social Security Act 1991 (the Act).

3. On 5 February 2015, the Applicant attended a Job Capacity Assessment (JCA).  The Assessor produced a report which recommended a total impairment rating of 20 points in respect of Mr Anderson’s medical conditions, 10 points for his fibromyalgia condition under Table 1 and 10 points for his depressive condition under Table 5.

4. On 27 May 2015, the Department of Social Services (the Department) issued a decision that the Applicant was not eligible for unlimited portability of his DSP as he did not have “severe impairment” in terms of section 94 of the Act and had not been assessed to have no future work capacity.

5. Mr Anderson requested a review by an Authorised Review Officer (ARO), an independent officer within the Department. He provided a statement in support of his application on 27 July 2015.

6. The ARO reviewed the original decision and on 3 September 2015 affirmed it.  The ARO found that in relation to Mr Anderson’s medical conditions and their impact on his ability to function, none of four named conditions: his fibromyalgia, anxiety and depression condition, back condition and Irritable Bowel Syndrome (I.B.S.) condition could be correctly assigned 20 points under a single Impairment Table.

7. The ARO also considered how Mr Anderson’s medical conditions affected his ability to function independently and found, in relation to his work capacity, the Applicant did not meet the legislative requirement under the work test.

8. On 9 October 2015, the Applicant applied for a review by the Social Services and Child Support Division of the Tribunal (AAT1).

9. That hearing took place on 2 December 2015 and AAT1 affirmed the original decision.  AAT1 found that Mr Anderson did not have a ‘severe impairment’, being an impairment that attracted 20 more points on a single Impairment Table.

10. Mr Anderson sought a review by the General Division of the Administrative Appeals Tribunal. That is this hearing. 

11. The hearing was held on 7 September 2016 by telephone. The Applicant represented himself.  Mr Anderson gave evidence under affirmation and was cross-examined by counsel for the Respondent, Mr Ashley Burgess.

12. The Respondent tendered the T-documents lodged with the Tribunal under section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act).

13. Ten documents were tendered by the Applicant at the hearing:

    ·Medical letter dated 5 November 2002 from Dr Geoffrey Ryan, Gastroenterologist (Exhibit A1);

    ·Letter dated 13 December 2012 from Michael Stovell, Physiotherapist at Shenton Park Physiotherapy and Sports Clinic (Exhibit A2);.

    ·Medical letter dated 26 February 2013 from Dr John Salmon, pain management specialist, of Cottesloe (Exhibit A3);

    ·Medical letter dated 28 March 2013 from Dr John Salmon (Exhibit A4);

    ·Medical letter dated 30 August 2013 from Dr John Whiteside, myofascial pain specialist of Bedford (Exhibit A5);

    ·Medical letter dated 22 September 2015 from Dr John Salmon (Exhibit A6);

    ·Medical letter dated 6 March 2016 from Dr Frank Cordova, general practitioner of Morley (Exhibit A7);

    ·Medical letter dated 30 March 2016 from Dr John Salmon (Exhibit A8);

    ·Medical letter dated 29 August 2016 from Dr Frank Cordova (Exhibit A9); and

    ·Medical letter dated 1 September 2016 from Dr Stephen Edmondston, physiotherapist, at Shenton Park Physiotherapy and Sports Clinic (Exhibit A10).

14. These documents formed part of the material before the Tribunal in considering whether the original decision was correct.

    THE LAW

15. Section 1218AAA(1) of the Act provides that the Secretary of the Department may make a written determination that a particular person’s maximum portability period for DSP is an unlimited period if all the following circumstances exist:

    (a)the person is receiving disability support pension;

    (b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B); [That is, the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Table.]

    (c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years; and

    (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years. 

16. Section 94(4) of the Act states that a person is treated as doing work “independently of a program of support” if the Secretary is satisfied that to do the work, the person: is unlikely to need a program of support; or is likely to need a program of support provided occasionally; or is likely to need a program of support that is not ongoing.

17. The Respondent submitted that Mr Anderson’s qualification for DSP was not at issue; the matter to be considered was whether he was eligible for a Secretary’s determination for unlimited portability.  The hearing proceeded on that basis.

    QUESTIONS BEFORE THE TRIBUNAL

    ·Did Mr Anderson have a “severe impairment” at the relevant date which enlivens the provisions of section 1218AAA(1)?

    ·If so, will Mr Anderson have that severe impairment for the next five years?; and

    ·If so, will the severe impairment prevent Mr Anderson from performing any work independently of a program of support within the next five years, if he remained in Australia?

    First of all: What is the relevant date?

18. There is no explicit provision in the Act or the Social Security (Administration) Act 1999 to say what is the correct date on which a DSP recipient’s medical conditions and ability to work should be assessed when that person makes a request for unlimited portability.

19. This question has been considered by the Tribunal several times before.  In WMKR and Secretary Department of Social Services [2015] AATA 483, Member Webb stated (at [31]):

    ...I think that the correct construction is that the question of eligibility must be determined at the date of claim, applying the legislation then in force, and subsequently as circumstances demand.  There is no barrier to the Tribunal considering a claimant’s eligibility for indefinite portability of DSP from the date of the claim or request that commenced the decision-making process leading to the application for review by the Tribunal up to the present, and to do so on the materials placed before it, whether or not those materials were before the original or intermediate decision makers.

    …

    [33] As with many kinds of income support decisions concerning qualification, entitlement or payability, an assessment should be made at the time of claim, or such date as the legislation requires (or allows) – see s 11 of the Social Security (Administration) Act 1999 and related provisions of this Act dealing with start date rules.

20. In a recent matter, Lee and Secretary, Department of Social Services [2016] AATA 60, Senior Member Cotter adopted the reasoning in WMKR, and noted it follows the general principle laid down by the High Court in Shi v Migration Registration Authority [2008] HCA 31; (2008) 235 CLR 286; (2008) 103 ALD 467.

21. The Respondent contended that the relevant date for considering Mr Anderson’s request is 12 January 2015, when he made his request for unlimited portability.

22. The Applicant did not make any submissions on this point.

23. It would seem logical to me, in the absence of any contrary legislative provisions, and in the absence of evidence that adopting the day a person lodged a request for unlimited portability would cause a manifestly unfair outcome in their particular circumstances, that the date for assessing an Applicant’s eligibility for unlimited portability should in fact be the date that the person lodged the request for a Secretary’s determination with the Department. 

24. Therefore, I find that, in Mr Anderson’s case, the correct date to consider his eligibility is the date he made the request: 12 January 2015.

    Did the Applicant have ‘severe impairment’ on the relevant date?

25. The Respondent contended that the Applicant did not have a ‘severe impairment’ on the relevant date because he had not been assigned 20 or more points under a single Impairment Table for his medical conditions.  The Respondent contended that Mr Anderson should be correctly assigned 10 impairment points under Table 1 for his fibromyalgia condition and 10 impairment points under Table 2 for his depressive condition.

26. The Impairment Tables referred to in section 1218AAA of the Act are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

27. The Tables are function-based, not based on diagnosis, and describe functional activities, abilities and limitations.  The purpose of the Tables is to assign ratings to determine the level of impact on a person’s abilities to function.  The impairment of a person is to be assessed, under Rule 6(1) on the basis of what the person can, or could do, and not on what they choose to do or what others do for them.

28. Therefore, the Tribunal must look at which of the Impairment Tables are the applicable ones for the Applicant’s medical conditions, and, given that ‘severe’ functional impact affords a person 20 impairment points under any Table, did Mr Anderson meet that requirement on the relevant date.

29. Mr Anderson underwent a face to face JCA in relation to his request for unlimited portability on 5 February 2015.

30. The JCA considered the medical reports submitted by the Applicant and assessed his fibromyalgia condition under Table 1 – Functions requiring Physical Exertion and Stamina, and recommended the assignment of 10 impairment points – that this condition has a moderate impact on the Applicant.  The JCA assessed Mr Anderson’s psychological/psychiatric disorder condition under Table 5 – Mental Health Function and recommended the assignment of 10 impairment points for this condition – that the condition has a moderate impact on him.

31. The JCA noted that the recommendations remained unchanged since the Applicant’s last assessment in August 2012 and was also consistent with a Tribunal decision of 19 December 2013.  While the previous Tribunal decision informs the Tribunal, it is not especially relevant in my consideration, because this is a fresh application and I must look at the Applicant’s qualifications as at January 2015, not fourteen months before.

32. In his evidence at the hearing, the Applicant contended that he had not been fairly assessed under the Impairment Tables on the medical evidence presented. He said he felt that relevant material had been ignored and irrelevant material relied upon by the Department in assessing his qualification.

33. As an example of what the Applicant felt was irrelevant material, he referred to highlighting his travel to Java.  He also said that the fact that he had told the Assessor that he had driven from Hopetoun to Perth had been mis-used as supporting the fact that he could undertake such a journey regularly. He said he had done this journey but it was a single occasion and he had to stop frequently to rest, because of his medical conditions.

34. Mr Anderson cited the internal Departmental guidelines, 3.6.3.05 Guidelines to the Rules for Applying the Impairment Tables, which were before the Tribunal. The Applicant felt that Department officers had either misapplied the guidelines or that the JCA had ignored them in assessing his conditions, and further that the Assessors seemed to have a “pre-conceived idea” about his medical condition.

35. I explained during the hearing when the provisions in the internal Departmental guidelines were discussed, that my role was to ensure that the provisions in the Act and in the Impairment Table Determination made under the Act had been correctly applied. The internal Departmental guidelines are used by officers in their work but they are of much lesser significance to the Tribunal than are the Act and the statutory rules. However, if it could be shown that the internal Departmental guidelines have themselves led directly to a misapplication of the Tables, then that could be relevant.

36. The Applicant said in his view that that because his fibromyalgia condition caused him chronic pain in several parts of the body, no condition should be “pinned” onto one Table.

37. Rule 6(9) of the Impairment Tables is relevant here. This Rule relates to assessing the functional impact of pain and says, at Rule 6(9)(b):

    chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected;

38. However, if the Tribunal accepts that the functional impacts of chronic pain is correctly assessed across a range of different Tables, according to the part of the body affected, regard must also be had to Rules 10(3) and 10(4):

    (3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.

    Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3): brain function (Table 7); communication function (Table 8); and visual function (Table 12).

    (4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.

39. So, simply speaking, while some impairments may be correctly assessed using Descriptors drawn from more than one Table, impairment points may only be assigned to a person from one Table for that impairment, otherwise it would result in “double-counting.”

    Table 1 – Functions requiring Physical Exertion and Stamina

40. Mr Anderson has been diagnosed with Fibromyalgia as early as 1994.  Dr John Salmon, pain specialist, who has seen the Applicant on many occasions over several years, felt that a better diagnosis of his condition would be Diffuse Neuropathic Pain Disorder, because in his view the pain symptoms and effect are broader than a diagnosis of Fibromyalgia would indicate.  Dr Cordova agreed with Dr Salmon that it was a broader pain condition.  The specific name of the condition is not at issue – suffice it to say here that Mr Anderson suffers a significant chronic pain condition.

41. To achieve 20 impairment points under Table 1, a person must satisfy one of the Descriptors listed in part (1)(a) page 14 of the Determination in the severe functional impact section, and also (1)(b).

42. The Applicant gave evidence about his daily living.  He said he did not do his own shopping but did some cleaning chores such as vacuuming and cleaning for short periods.  He did not do his laundry because he could not hang clothes up, and could not do repetitive tasks because of his pain.  He said that he could use public transport when well enough, but did not use it.  He said he could walk around a shopping centre but not after returning from a flight from Java because that would require him to rest for a period to recover.

43. He said it was posturally difficult for him to do vacuuming for anything other than very short periods.  When asked about the airline journey to Java, Mr Anderson said it was a duration of about four and a half hours.  He said he moves around as much as he can during the flight and the pain levels meant it takes him about a week to recover from the effects of the flight.

44. He said that he swims in the ocean for relaxation and tries to walk his dog every two or so days, for around 2 kilometres, but again found it hard posturally.

45. On this evidence it is clear that Mr Anderson warrants an assignment of 10 impairment points under Table 1.  It is equally clear he does not rate an assignment of 20 or more impairment points under this Table.  He is not unable to do any of the activities described in (1)(a) of the Descriptors.

46. While he objected to his aircraft travel being cited in terms of his condition, it is correct for the Tribunal to take this semi-regular travel into account in terms of assessing functional impact of impairment on the Applicant.  He has a son living in Java and I accept that it is entirely understandable that he travels often to see him, but being able to undertake the travel, even if it may lead to a period of recovery, militates against a correct finding of an extreme functional impact on activities requiring physical exertion or stamina.  I find that 20 or more points cannot be correctly assigned under Table 1.

    Table 5 – Mental Health Function

47. For a person to be assigned a severe impairment rating under Table 5, four of the six Descriptors on page 26 of the Ministerial Determination must be satisfied.

    (1)(a) The person has severe difficulties with self-care and independent living

48. Mr Anderson gave extensive evidence of difficulties in undertaking household chores.  He lives with his parents who help him with his laundry and cleaning.  He said he is able undertake personal care such as showering independently and could wash his hair ‘on occasion’ but sometimes found that too painful.

49. I consider that, on balance, the ‘severe impairment’ requirements in Descriptor 1(a) are met.

    (1)(b) The person has severe difficulties with social/recreational activities and travel

    (1)(c) The person has severe difficulties with interpersonal relationships

50. The Applicant agreed that he had interpersonal relationships with friends and acquaintances in Australia and in Indonesia.  He is able to travel semi-regularly to Java.  He swims and walks his dog and said he uses the Internet to correspond with friends in Australia and abroad.

51. There was significant evidence in the T-documents and in later medical correspondence tendered by the Applicant about the stress of his marriage break-down and separation from his young son, and that being able to live permanently in Java would lessen the stress and may go some way to ameliorate the fluctuating pain that Mr Anderson experiences. Regrettably, that is not a consideration that I can take into account. The Act is explicit about the prerequisites for being qualified for unlimited portability, and that is ‘severe impairment’. It may be a valid conclusion for medical professionals to express an opinion that an Applicant’s mental well-being could be improved by relocation, but that is not something relevant for me to consider in this hearing.

1. I consider that the ‘severe impairment’ requirements in these Descriptors 1(b) and 1(c) are not met.

   (1)(d) The person has severe difficulties with concentration and task completion

   (1)(e) The person has severe difficulties with behaviour, planning and decision-making

2. The example given in Descriptor (1)(d) is that a person has difficulty concentrating for more than 10 minutes on any task or conversation. I found the Applicant articulate and intelligent.  After his health set-back at University he later was able to complete a Bachelor of Arts degree, albeit part-time and over several years.  Given his health challenges, that is much to his credit.  He argued his case cogently and had a good understanding of the various statutory requirements. He is evidently able to plan and execute his travel to Indonesia. He had no difficulty participating in the hearing which went for well over an hour. While understandably frustrated with his medical challenges, he was good-humoured, thoughtful and responsive at the hearing.

3. I find that the ‘severe impairment’ requirements in Descriptors (1)(d) and (1)(e) are not met.

   (1)(f) The person has severe difficulties with work/training capacity

4. This Descriptor requires that ongoing mental illness has a direct effect on a person’s ability to attend work, education or training on a regular basis over a lengthy period.  This is difficult to assess because the Applicant gave evidence that he has not worked since 2009.  He referred to his I.B.S. condition as hampering his ability to function effectively in a workplace, and also his posture problems, which would also be relevant; but there was no compelling evidence that his depressive condition would, of itself, affect his work/training capacity.

5. I therefore find that the ‘severe impairment’ requirements in Descriptor (1)(f) are not met.

6. As I have found that only one of the Descriptors in the severe impairment part of Table 5 are satisfied, the Applicant is not correctly rated 20 or more points under that table.

   Other Impairment Tables

7. During the hearing it was suggested that Table 4 – Spinal Function and Table 10 – Digestive and Reproductive Function, are relevant to the Applicant’s request.

   Table 10 – Digestive and Reproductive Function

8. Dr Colin Sherrington, gastroenterologist, provided a report dated 3 February 2015 which detailed the Applicant’s abdominal pain and I.B.S.

9. For the correct assignment of 20 impairment points under Table 10, two of the Descriptors in the ‘severe’ functional impact section of the Determination must be satisfied.  I cannot correctly find that two of the Descriptors are met.  The Applicant participated in the hearing for well over an hour and undertakes a semi-regular four and a half hour flight.  Dr Sherrington said his opinion was that the diagnosis of I.B.S. was not necessarily one in which he would concur (taking into account that his examination of Mr Anderson that day was the first time he had met him), and felt it was more likely that the Applicant’s abdominal pain relates to radiation of his back pain.  Dr Sherrington said that Mr Anderson had heart-burn but had been reluctant to use the medication prescribed, pantoprazole, in relation to this condition.  Dr Sherrington said:

   Clearly the situation is quite a complex chronic pain problem.  I believe that his abdominal pain is clearly related to the chronic pain pathology in his back.

10. On this basis, and given the added factor that there may be doubt about the I.B.S. diagnosis in Dr Sherrington’s professional opinion, it would not be correct to assign 20 or more impairment points under Table 10.  The Applicant’s pain condition has already been assessed under Table 1 and cannot be ‘double-counted’ under another Table.

    Table 4 – Spinal Function

11. For a severe impairment rating under Table 4, a person must be unable to do any of the activities outlined in that part of the Determination’s matrix. Dr Frank Cordova in his medical report of 6 March 2016 (Exhibit A7) said that Mr Anderson was unable to perform any overhead activity and was unable to bend. However, while Mr Anderson gave evidence that he had difficulty performing overhead activities, such as putting washing on the line, he agreed he was able to independently self-care (e.g. shower himself) and could wash his hair occasionally.  He did not give evidence about difficulties moving his head and indeed told the Tribunal that he drives. As mentioned, he also spoke about swimming.

12. For a person to be assessed as having a ‘severe impairment’ under Table 4:

    The person must not be able to:

    ·     Perform any overhead activities – I accept that is the case for the Applicant.

    ·     Turn their head, or bend their neck, without moving their trunk – I do not have sufficient evidence to say this Descriptor is fulfilled.

    ·     Bend forward to pick up a light object from a desk or table – Dr Cordova said that the Applicant could not bend, but the Applicant himself said he made his own bed.  I do not have sufficient evidence to say that this Descriptor is fulfilled.

    ·     Remain seated for at least 10 minutes – The JCA recorded that the Applicant sat for 10 or 15 minutes during his assessment in May 2015 and then laid down for the remainder of the assessment.  However, the Applicant gave evidence about his driving and travelling to and from Indonesia.  I note that he said the flight was very fatiguing and it took him some days to recover, but it is a flight of about 4 and a half hours and so plainly this Descriptor is not met.

13. As this particular Descriptor in Table 4 is conjunctive (i.e. each part of it must be satisfied), I find that the correct assignment under this Table would be ‘moderate impairment’ I find that the Applicant is not correctly assigned 20 or more impairment points under Table 4.

14. In sum, the Applicant cannot be correctly assigned 20 or more points under any of the Impairment Tables applicable to his conditions on the relevant date.

    CONCLUSION

15. Clearly, Mr Anderson has previously been assessed as qualified for DSP because of his functional impairment, and on the basis of the medical evidence before me, I find there is no doubt that his various medical conditions continue to qualify him for this benefit.

16. Finding that the Applicant is not correctly assigned 20 or more impairment points under a single Impairment Table means the “severe impairment” provisions in the Act do not apply to him.

17. Section 1218AAA of the Act is conjunctive, meaning all of the qualifying circumstances must be met. While the Applicant satisfied section 1218AAA(a) on the relevant date, he did not satisfy section 1218AAA(b). It is therefore not necessary for me to go on to consider the other subsections. On the relevant date Mr Anderson was not qualified to make a request for unlimited portability for his DSP and it follows that, accordingly, the Secretary was not able to issue the determination as requested.

18. I find that the provisions of the Act were correctly applied in the original decision taken by the Department.

    DECISION

19. The Tribunal affirms the decision under review.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of D.J. Morris, Member

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Administrative Assistant

Dated 6 October 2016

Date of hearing	7 September 2016
Applicant	Self-represented (By telephone)
Representative for the Respondent	Mr A Burgess (By telephone)
Solicitors for the Respondent	Sparke Helmore Lawyers