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

[2024] AATA 3279

Andrew and Secretary, Department of Social Services (Social services second review) [2024] AATA 3279 (16 September 2024)

Division:GENERAL DIVISION

File Number:          2023/7108

Re:Joanne Andrew

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:16 September 2024

Place:Melbourne

The Tribunal affirms the reviewable decision.

...................[sgd].....................................................

Senior Member A. Nikolic AM CSC

CATCHWORDS

SOCIAL SECURITY – refusal of disability support pension – whether applicant's medical conditions were fully diagnosed, treated, and stabilised – whether impairments rated 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Acts Interpretation Act 1901 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) Sch 2 Cl 4

CASES
BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS
Department of Social Services, Guide to Social Policy Law: Social Security Guide (version 1.319, 12 August 2024)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Senior Member A Nikolic AM CSC

16 September 2024

INTRODUCTION

1. On 22 June 2022, Ms Andrew’s application for Disability Support Pension (“DSP”) was refused by a delegate of the Respondent. The refusal decision was subsequently affirmed by an Authorised Review Officer and, on 4 September 2023, by the Social Services and Child Support Division of this Tribunal (“AAT1”). Ms Andrew has asked the General Division of the Tribunal to review the AAT1 decision.

2. This application was heard by telephone on 6 September 2024. Ms Andrew was self-represented, gave evidence, and was cross-examined. The Respondent was represented by Ms Kathryn Lieschke, a solicitor from Services Australia. 

3. For the following reasons, the Tribunal affirms the decision under review.        

   LEGISLATIVE FRAMEWORK

4. Qualifying requirements for DSP are set out at s 94(1) of the Social Security Act 1991 (Cth) (“the Act”).  It must be established that:

   (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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

   …

5. In relation to s 94(1)(c)(i) of the Act, a person has a ‘continuing inability to work’ if:

   (aa) …the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

   (a) in all cases—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) in all cases—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.

6. Under s 94(3B) of the Act, participation in a program of support (“POS”) is not required if the person has a severe impairment of 20 points or more under a single Impairment Table. Where a person’s impairment is not a severe impairment, they must have actively participated in a POS within the meaning of s 94(3C) of the Act. The term ‘actively participated’ means satisfying the requirements in a legislative instrument made by the Minister, titled Social Security (Active Participation for Disability Support Pension) Determination 2014.[1] Under ss 5 and 7 of that instrument, active participation means partaking in a POS, which is wholly or partly funded by the Commonwealth, for a period of at least 18 months during the 36 months prior to the date of claim.

   [1] Minister of Social Services (Cth), Social Security (Active Participation for Disability Support Pension) Determination 2014.

   The Guide and Impairment Tables

7. The Respondent refers to ‘relevant policy’[2] contained in the Guide to Social Security Law (“the Guide”).[3] Although such policy is not binding on the Tribunal,[4] decision-makers undertaking merits review should generally apply it unless it is unlawful or ‘there are cogent reasons to the contrary.’[5] The Tribunal is mindful, however, of the need to consider the exercise of delegated powers based on the Act and the specific circumstances of each case. Having considered those aspects of the Guide potentially relevant in this matter, the Tribunal sees no cogent reason to disregard this information.

   [2] Respondent’s Statement of Facts, Issues, and Contentions dated 16 July 2024, 5 [12].

   [3] Department of Social Services, Guide to Social Policy Law: Social Security Guide (version 1.319, 12 August 2024).

   [4] BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865, [11] (Mortimer CJ).

   [5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.

8. The Impairment Tables referred to in s 94 of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth) (“the Determination”). They assign ratings reflecting the level of functional impact a condition has on an applicant. Clause 7(2) of the Determination emphasises the function-based rather than diagnosis-based character of the Tables. They describe functional activities, abilities, symptoms, and limitations, thereby enabling the assignment of ratings to determine the level of functional impact of an impairment. Clause 8(3) of the Determination states that only conditions diagnosed by an appropriately qualified medical practitioner, that are reasonably treated and stabilised, and are more likely than not to persist for more than two years, can be assigned points under the Impairment Tables.

9. The introduction to each Impairment Table states that ‘Self-report of symptoms must be supported by corroborating medical evidence’. Clause 8(4) of the Determination states:

   ‘In determining whether a condition has been diagnosed by an appropriately qualified medical practitioner for the purposes of paragraph 8(3)(a), the following is to be considered:

   (a) whether there is corroborating evidence of the condition, as set out in the requirements of each Table’.

10. Clause 8(5) of the Impairment Tables states:

    ‘In determining whether a condition has been reasonably treated for the purposes of paragraph 8(3)(b), the following is to be considered:

    (a) what treatment or rehabilitation has occurred in relation to the condition; and

    (b) whether treatment is continuing or is planned in the next 2 years and is likely to result in significant functional improvement’.

11. Clause 8(6) of the Impairment Tables states:

    ‘For the purposes of paragraph 8(3)(c) a condition is stabilised if either:

    (a) the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement; or

    (b)       The person has not undertaken reasonable treatment for the condition and:

    (i) significant functional improvement is not expected, even if the person undertakes reasonable treatment; or

    (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment’.

12. Clause 8(7) of the Impairment Tables refers to ‘reasonable treatment’ as treatment that:

    (a)     is available at a location reasonably accessible to the person; and

    (b)     is at a reasonable cost;

    (c)     can reliably be expected to result in a significant functional improvement;

    (d)     is regularly undertaken or performed; and

    (e)     has a high success rate; and

    (f)     carries a low risk to the person.

13. Clause 13(6) of the Impairment Tables states that the presence of a diagnosed condition alone does not mean an impairment rating can be assigned. That is because a person may have a condition not resulting in any functional impact because of appropriate treatment.

    EVIDENCE

    Documentary evidence

14. The Tribunal has considered the Respondent’s Statement of Facts, Issues, and Contentions dated 16 July 2024, and took into evidence a 601-page bundle of documents lodged by the Respondent.[6] The following documents were also taken into evidence:

    (a)Report by a Medical Advisor to the Health Professional Advisory Unit;[7]

    (b)Employment Services Assessment Report dated 8 December 2023;[8]

    (c)Eight-page bundle of medical records dated 2009 and 2010 from the Migraine Clinic at St Vincent’s Hospital, filed by Ms Andrew;[9]

    (d)Sundry documents filed by Ms Andrew, including: a letter from Disability Employment Services (“DES”) dated 17 July 2024 advising her that she was ‘exited’ from DES because she was not contactable; reference to a child residence order from 2004; complaints about the Respondent’s past handling of her applications; letters from the Australian Health Practitioner Regulation Agency dated 13 December 2019 and 28 March 2024 declining to take any action regarding Ms Andrew’s complaints about the professional performance of several medical practitioners; allegations of false or inaccurate information being provided about Ms Andrew’s claimed conditions; screenshots of SMS appointment reminders and a missed call notification; requests from Ms Andrew that the Tribunal direct Centrelink to cease certain behaviours; email complaints from Ms Andrew regarding her ‘right to freedom from forced work…torture and any treatment or punishment that is cruel, inhuman or degrading’.[10]

    [6] Exhibit R1.

    [7] Exhibit R2.

    [8] Exhibit R3.

    [9] Exhibit A1.

    [10] Collectively Exhibit A2.

    Expert evidence

15. Ms Andrew relies exclusively in this hearing on a headache condition that she has suffered for more than a decade.[11] She invoked the findings of two neurologists, Dr Mandy Lau, and Dr John Heywood.

    [11] Exhibit R1, 571, 578.

16. In March 2014, Dr Lau diagnosed Ms Andrew with ‘Cluster Headaches’[12] and reported that two brain CT scans she ordered to investigate these were normal. Dr Lau considered whether ‘a trial of therapy…with oxygen would be helpful’ and stated: ‘I think holistic pain management is going to be very important’. There is no evidence that the oxygen therapy or holistic pain management options were proceeded with.

    [12] Ibid 363-4.

17. Ms Andrew was reviewed on two occasions in 2009 and 2010 by Dr John Heywood who was then working at the Migraine and Headache Clinic at St Vincent’s Hospital.[13] Notes from these consultations disclose that Ms Andrew was suffering ‘short-lived headaches’, had tried several medications, and was then prescribed ‘verapamil SR 160mg/day’. In a letter to Ms Andrew’s then general practitioner, Dr Heywood wrote on 5 March 2010:

    ‘Joanne returned for review…

    She has not recently had the pattern of headaches that she had when she came to see me back in October 2009. She is currently on Verapamil 160mg/day, but is unsure whether it had a useful I effect against these relatively short-lived headaches.

    I have suggested that she should stop the drug for the present. Her current headaches are a mixture of mild tension headache and occasional migraine headache, and she can cope with these headaches either with analgesics or bed rest, or both. They are much less likely to respond to drugs such as Verapamil, which have a particular value in short-lived headache. She does not want to try other forms of preventative treatment for her current headaches.

    If her short-lived, but frequent, headaches recur, then I would restart her on Verapamil 160mg/day, increasing to 320mg/day if lower doses are ineffective. As I mentioned in my last letter, another option would be to try Deseril, starting at 1 mg/day and increasing if necessary to 2-3mg b.d…Another option, as I said, would be to try Topiramate starting at 25mg nocte and increasing if necessary to 50mg b.d. Topiramate would not be available under the PBS scheme, unless she has previously used and failed with Propranolol and Sandomigran. I am not sure if she has been on these drugs in the past.

    I have not made another appointment to review her today, but would be pleased to see her again should her headaches require further review.’

    [13] Exhibit A1.

18. Ms Andrew’s next contact with Dr Heywood was by telephone a decade later in 2020. This resulted in him preparing a medico-legal letter dated 4 December 2020 to Ms Andrew’s then lawyers, which is summarised as follows:[14]

    [14] Exhibit R1 397-400.

    (a)Ms Andrew has suffered ‘short-lived, severe attacks of headache since the age of 25, which can be ‘intensely painful’ and ‘stops her from doing her usual activities’. Dr Heywood noted that brain scans were found to be normal and during their past consultations he did not order further investigations.[15]

    [15] Ibid 398.

    (b)Dr Heywood diagnosed two types of headache: ‘short-lived attacks, which may be episodic paroxysmal hemcrania, or cluster headache, or might be a variant of migraine headache’. The milder and longer attacks of headache are tension-type headaches and ‘there may be a cervicogenic trigger’.[16]

    [16] Described by Dr Heywood as headache triggered by pain in the upper cervical spine.

    (c)Dr Heywood referred to Ms Andrew trialling ‘multiple drug treatments’ as follows:

    (i)Verapamil;

    (ii)Venlafaxine;

    (iii)Endep;

    (iv)Cipramil;

    (v)Diazepam;

    (vi)Pitzotifen;

    (vii)Sumatriptan;

    (viii)Panadeine Forte;

    (ix)Topiramate; and

    (x)Naproxen

    (d)Dr Heywood stated that although Ms Andrew’s headaches can be severe and disabling, they are benign. He opined that Ms Andrew’s ‘more severe headaches are not easily classified’ and ‘have responded poorly to appropriate treatments’ but he favoured a diagnosis of ‘episodic paroxysmal hemicrania as being closest to her symptoms’. Dr Heywood considered further treatment options were needed:

    ‘In my opinion, drug treatment of her headache should be preventative rather than acute i.e. using preventative drugs taken every day while the her headache is active, in order to suppress attacks.

    I would recommend further trials of drugs known to be effective in episodic hemicrania or episodic cluster headache. Physical therapy to the neck by a skilled therapist may be of value, as there may be a cervicogenic trigger involved. Regular consultation and review by both her GP, and a psychologist with expertise in pain management, would be advisable to support and manage her physical and emotional well-being’.

    Ms Andrew’s oral testimony

19. Ms Andrew gave oral evidence and was cross-examined. Her testimony is summarised as follows:

    (a)Ms Andrew said the ‘only reason [she] ever applied for DSP’ was because of her headaches condition. She no longer wished to advance other physical or mental health conditions referred to in her DSP application or that arose in other evidence before the Tribunal.

    (b)Ms Andrew relies on the reports of Dr Lau dated 17 March 2014[17] and Dr Heywood dated 4 December 2020.[18] She last saw Dr Heywood in person in 2010 and there were no other consultations with him until a 2020 telephone discussion in the context of Dr Heywood preparing a medico-legal report for Ms Andrew’s then lawyer.

    (c)Ms Andrew said she has seen her general practitioner multiple times and presented to hospitals for her headaches. She currently takes no medication.

    (d)When asked by Ms Lieschke why she had not returned to see Dr Heywood who is a specialist in this field, Ms Andrew responded: ‘No, it’s unnecessary…I’m basically just a guinea pig’. When asked by Ms Lieschke if she had followed up on Dr Heywood’s recommendation to trial other drugs known to be effective for her condition, Mr Andrew said she did not, explaining: ‘It’s my choice not to be a guinea pig’. She feels that some medications may trigger her headaches rather than assist in preventing them.  In relation to Dr Heywood’s recommendation about physical therapy, Ms Andrew said she has not pursued this because ‘physio triggers’ her headaches. She referred to two previous attempts at physical therapy in 2005 and 2009 but claimed these did ‘more harm than good’. In terms of Dr Heywood’s recommendation to see ‘a psychologist with expertise in pain management’, Ms Andrew said she had not done so because the ‘psychologists are not being used for any type of pain management’. Ms Andrew claimed that past ‘treatments haven’t been effective at all,’ that she should not ‘have to keep trialling medications’, and has ‘learned [her]self how to get through this’. She said her headache condition has ‘remained constant without treatment’ and she would only be ‘prepared to trial other medications’ if they ‘become more severe’.  

    (e)Ms Andrew said she lives alone and can drive a car when not affected by headaches. When asked by Ms Lieschke about the frequency and severity of headaches, Ms Andrew stated it was ‘three months on – three months off’. She claimed the headaches are constant and ‘24/7’. She claimed to need the assistance of four ‘carers’ with tasks such as preparing food, staying overnight, and assisting her self-care. When asked who these carers are, Ms Andrew said she has an informal arrangement with her husband (who does not live with her), her mother, daughter, and a family friend. When asked by Ms Lieschke to identify the report in evidence that refers to the significant level of impairment she now describes, Ms Andrew again invoked the two neurologist reports previously referred to.

    [17] Exhibit R1, 274-9.

    [18] Ibid 396-400.

    Key Issues

20. Refusal of Ms Andrew’s DSP application was on the basis that her conditions do not warrant an impairment rating of 20 points. The Tribunal must decide:

    (a)The relevant period for the claim?

    (b)Did Ms Andrew have a physical, intellectual, or psychiatric impairment(s) as defined under the Act during the relevant period?

    (i)If yes, were these capable of being assigned 20 points or more under the Impairment Tables during the relevant period?

    (ii)If the Applicant’s impairment(s) is/are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (severe impairment)?

    (iii)If the Applicant did not have a severe impairment during the relevant period, but her impairment(s) nevertheless attract a rating of 20 points or more, does she have a continuing inability to work or has she participated in a POS?

    WHAT IS THE RELEVANT PERIOD FOR THE APPLICANT’S CLAIM?

21. Ms Andrew’s DSP application was lodged on 14 June 2022. In accordance with clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), she had to satisfy the DSP criteria within a 13-week period from the date of claim lodgement, which ended on 12 September 2022 (“the relevant period”).

22. During the hearing Ms Andrew made clear that the only condition she wished to advance, notwithstanding others referred to in her DSP application and other evidence, is her headaches condition (Chronic Paroxysmal Hemicrania). It is noteworthy that the description of her symptoms in the current proceeding reflects greater duration and severity than is described in the expert evidence. In assessing whether Ms Andrew satisfies the requirements at s 94 of the Act, however, evidence regarding functional impact after the relevant period can only be considered if it casts light on functional impact during the relevant period.[19]

    DID THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE RELEVANT PERIOD?

    [19] Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, [27]-[28], citing Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 [31].

1. It is not contested that Ms Andrew suffers from a headaches condition that caused her impairment during the relevant period in satisfaction of s 94(1)(a) of the Act.

   WAS THE APPLICANT’S IMPAIRMENT CAPABLE OF BEING ASSIGNED 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES DURING THE RELEVANT PERIOD?

2. The Tribunal finds that Ms Andrew’s headaches condition was not fully diagnosed, treated, and stabilised during the relevant period. There is a ten-year gap between her last 2010 consultation with Dr Heywood and the 2020 telephone contact with him for the purposes of a medico-legal report. Ms Andrew has chosen not to trial alternative medications, physical / other therapies, and pain management approaches recommended by both Dr Lau in 2014 and Dr Heywood in 2020. Her headaches condition is therefore incapable of attracting impairment points. Even if it were, the Tribunal has concerns about the inconsistent symptomology reflected in the expert evidence between 2009 and 2014 (short-lived but frequent headaches), with the Applicant’s current claims that the headaches condition persists ‘24/7’ for three months at a time. If Ms Andrew’s symptoms are as she currently claims, this may justify a new DSP application. In response to those symptoms, however, Ms Andrew’s oral testimony is that she takes no medication, has learned to live with the adverse effects of her condition, and would only consent to trialling different approaches recommended by a neurologist if her condition worsens.

   IF THE APPLICANT’S IMPAIRMENT(S) IS/ARE OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES, ARE 20 POINTS ASSIGNED UNDER A SINGLE IMPAIRMENT TABLE (SEVERE IMPAIRMENT)?

3. Ms Andrew’s headaches condition, on current evidence, is incapable of being assigned 20 points or more under a single Impairment Table. It therefore follows she does not have a severe impairment within the meaning of section 94(3B) of the Act.

   IF THE APPLICANT DID NOT HAVE A SEVERE IMPAIRMENT DURING THE RELEVANT PERIOD, BUT HER MPAIRMENT(S) NEVERTHELESS ATTRACT A RATING OF 20 POINTS OR MORE, DOES SHE HAVE A CONTINUING INABILITY TO WORK OR HAS SHE PARTICIPATED IN A POS?

4. Given that Ms Andrew’s impairment is incapable of being assigned any points under the Impairment Tables, she does not qualify for DSP under section 94(1)(b) of the Act. It is therefore unnecessary to consider whether she has a continuing inability to work or has actively participated in a POS in the three years prior to lodging her DSP claim as required by section 94(1)(c) of the Act. The Tribunal does so for completeness.

5. Ms Andrew has only completed 343 days of active participation in a POS, well short of the required 18 months, and is not covered by any of the permissible exceptions, such as suffering a severe impairment. On the available evidence she did not have a continuing inability to undertake at least 15 hours of work per week, or, in the alternative, a training activity within two years of the qualification period. As such, she did not have a continuing inability to work.

   CONCLUSION

6. Ms Andrew did not satisfy ss 94(1)(b) and 94(1)(c) of the Act during the relevant period.

   DECISION

7. It follows that the reviewable decision is affirmed.

30.     I certify that the preceding twenty-nine (29) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

................[sgd]........................................................

Associate

Dated: 16 September 2024

Date of hearing:	6 September 2024
Advocate for the Applicant:	Applicant via telephone
Advocate for the Respondent:	Ms Kathryn Lieschke via telephone