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

[2016] AATA 394

Aquilina and Secretary, Department of Social Services (Social services second review) [2016] AATA 394 (16 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4028
Re	Peter Aquilina
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	16 June 2016
Place	Perth

The Tribunal affirms the decision under review.

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Ms A F Cunningham, Senior Member

CATCHWORDS

SOCIAL SECURITY – qualification for disability support pension – conditions of cerebral palsy, epilepsy – whether conditions fully diagnosed, treated and stabilised – Impairment Rating – Program of Support provisions not satisfied – Inability to Work provisions not satisfied – decision under review affirmed

LEGISLATION

Social Security Act 1991 – ss 94(1)(a), 94 (1)(b), 94 (3)(b)

Social Security (Administration) Act 1999 – Schedule 2 Clause 4(1)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 – ss 6(3), 6(5), 6(6), 6(8)

Social Security (requirements and Guidelines-Active Participation to Disability Support Pension) Determination 2011 – ss 5(3) – (5)

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

16 June 2016

INTRODUCTION

1. The applicant, Peter Aquilina suffers from medical conditions which cause physical impairment. On 2 December 2014, he lodged a claim for Disability Support Pension (DSP) which was rejected by a Centrelink officer on the basis that he did not meet the qualification requirements. The decision was subsequently affirmed by an Authorised Review Officer (ARO) and by the Social Services and Child Support Division (Tier 1 review) on 30 June 2015.

2. The hearing was conducted by way of video link to the Perth Registry. The applicant appeared on his own behalf and gave oral evidence. The respondent was represented by Mr A Burgess. Julie Johnson, employee with Intework was called to give evidence on behalf of the respondent and was cross-examined by the applicant. The T documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

   ISSUES

3. The issue for the Tribunal to determine is whether the applicant was qualified to receive DSP from the date of his claim lodged on 2 December 2014 or within 13 weeks thereafter, that is, 3 March 2015. This requires consideration of the qualification requirements of the Social Security Act 1991 (the Act) namely whether the applicant has:

   (a)A physical, intellectual or psychiatric condition (s); and

   (b)Condition(s) that are fully diagnosed, treated and stabilised and attract an impairment rating of at least 20 points; and

   (c)A continuing inability to work (CITW).

   LEGISLATION

4. The relevant legislation is contained in the Social Security (Administration) Act 1999 (the Administration Act); the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination); and the Social Security (Requirements and Guideline-Active Participation for Disability Support Pension) Determination 2011 (Cth) (the POS Determination).

5. The qualification provisions are set out in section 94 of the Act. Those relevant to the current application are 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;

   …

6. The provisions are conjunctive and a failure to satisfy any one results in a failure to qualify.

7. The Administration Act provides that the start date for a qualified DSP claimant is the date of the claim, which means qualification of impairment ratings must be determined as at this date. The only exception is when a person is not qualified on the date of claim but “will become qualified” and “become so qualified within 13 weeks of lodging a claim”, in which case the start date is the day they become qualified (Schedule 2, Clause 4(1) of the Administration Act).

   IMPAIRMENTS

8. In support of his claim, the applicant provided a medical report by Dr Catherine Yap dated 20 November 2014. In her report, Dr Yap advises that the applicant’s epilepsy was first diagnosed in 1967 and confirmed by a specialist neurologist, Dr Ross Goodheart in June 2012. Current treatment consists of:

   Epilim medication 800mg daily commencing 10/2014 and to be increased to 1000mg from 1/12/14.

9. Dr Yap described the applicant’s current symptoms as follows:

   Since he started taking it Epilim his symptoms have improved but he still has partial seizures with shaking and stiffness in his L leg. He also does have loss of concentration for 10-20 minutes

10. Under “History” Dr Yap states that the applicant was initially treated with epileptic drugs until 1977 when he underwent surgery to his temporal lobe. The seizures stopped until recently in 2012 when he was referred to Dr Ross Goodheart (neurologist). The impact of the condition on ability to function is expected to persist for between 13 and 24 months and within the next two years the effect of the condition on ability to function is expected to fluctuate. Dr Yap noted that the applicant had only started the Epilim medication recently because previous medication had not adequately controlled his symptoms. Although the applicant was better with Epilim, he is not completely controlled.

11. The other condition listed is cerebral palsy which was diagnosed in 1960, soon after the applicant’s birth. This condition affects the applicant’s upper and lower limbs causing spasticity of the [left] limbs and also weakness with loss of balance which has been aggravated since the recurrence of the applicant’s epilepsy. The impact on ability to function described as affecting the full use of the applicant’s [left] arm and legs. He is not able to lift weights with his [left] arm or walk long distances due to weakness in the [left] limbs. The condition is expected to impact on the applicant’s ability to function for more than 24 months and remain unchanged within the next two years.

12. Dr Yap also names arthritis and chronic back pain as other medical conditions which are generally well managed and cause minimal or limited impact on ability to function.

13. The term “impairment” is not defined in the Act. Section 3 of the Impairment Determination defines “impairment” to mean:

    a loss of functional capacity affecting a person’s ability to work that results from the person’s condition

14. On the basis of the above medical report and available evidence, the respondent accepts that the applicant satisfies subparagraph 94(1)(a) of the Act in that he suffers from cerebral palsy and epilepsy. The Tribunal is satisfied that these conditions have been medically diagnosed and that the applicant accordingly satisfies section 94(1)(a) of the Act.

15. The next issue for consideration is whether the applicant’s impairments can be assigned 20 points or more under the Impairment Tables as required by section 94(1)(b) of the Act. An impairment can only be assigned a rating under the Impairment Tables in accordance with the provisions in the Determination, which also contains the Impairment Tables. The Tables describe functional activities, abilities, symptoms and limitations and assign ratings to determine the functional impact of the impairments.

16. In order for an impairment to attract an impairment rating under the Impairment Determination, the impairment must be considered permanent in that it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years (section 6(3) of the Impairment Determination).

17. In determining whether a condition has been fully diagnosed and treated, consideration must be given to any corroborating evidence of the condition, what treatment has occurred and whether treatment is continuing or planned in the next two years (section 6 (5) of the Impairment Determination), or if there is unlikely to be significant functional improvement that would enable a person to work in the next two years (section 6(6) of the Impairment Determination).

18. The Tables make it clear that self-reporting of symptoms alone is insufficient and there must be corroborating evidence of a person’s impairment. The symptoms reported by a person in relation to the condition can only be taken into account where there is corroborating medical evidence (section 8 of the Impairment Determination and the Introduction to the Tables).

    EPILEPSY

19. The evidence relied upon by the applicant is the medical report of Dr Yap completed on 20 November 2014, lodged in support of his application for DSP. The diagnosis of epilepsy is not in contention. Dr Yap reports that epilepsy was first diagnosed in 1967 and after medication and surgery in 1977, the applicant’s seizures stopped until 2012 when he was referred to a specialist neurologist. Dr Yap reports that since the applicant started taking the drug Epilim, his symptoms have improved but that he still experiences partial seizures and loss of concentration for 10-20 minutes.

20. It was the applicant’s evidence that his last seizure occurred at the beginning of August 2015. At the time of his application for DSP he was experiencing seizures on an almost daily basis. However, since taking Epilim and another medication, Keppoa from late July 2015 his symptoms greatly improved. The applicant considered that the Job Capacity Assessor did not consider all aspects of his epilepsy, including the fact that at no time will he be cured.

21. The applicant confirmed under cross-examination that the seizures that he was experiencing in December 2014 mostly occurred in the evenings and whilst he had difficulty concentrating during the day, he was still able to work.

22. It is contended by the respondent that the exacerbation of the applicant’s epilepsy condition was temporary and that during the qualification period, it had not been fully treated and stabilised due to the trialling of new medication and pending neurologist review. It is notable that Dr Yap reported that the impact of the condition on the applicant’s ability to function was expected to persist for between 13 and 24 months. The impact on ability to function was described by Dr Yap as intermittent partial seizures with stiffness and shaking in his legs and loss of concentration affecting the applicant’s ability to work consistently and endurance.

23. Dr Goodheart wrote on 18 November 2014 that he had seen the applicant on 12 November 2014 when it was suggested that he not drive a motor vehicle for a period of approximately 6 weeks. The applicant was to be reviewed after that period.

24. It was the applicant’s evidence that at the time of his application for DSP, he was working up to 3 days per week which had been reduced from five days per week in late October/early November 2014 due to a reduction in the work available.

25. Although the applicant’s epilepsy is a long-standing condition, having been initially diagnosed in 1967, it appears that the condition has been successfully treated from time to time with surgery and medication. Between 1977 and 2012 the applicant had not experienced any seizures. The evidence is that there had been an exacerbation of symptoms just prior to the applicant’s application for DSP and that he was being trialled on new medication which appears to have successfully controlled his symptoms such that the applicant last experienced a seizure at the beginning of August 2015.

26. In light of this evidence the Tribunal concludes that the exacerbation of the applicant’s epilepsy at the time of his application for DSP was temporary and had not at that time been fully treated and stabilised due to the trialling of new medication and neurologist review. Whilst the Tribunal accepts the applicant’s evidence that his epilepsy condition will never be effectively “cured”, subsection 6(3) of the Impairment Determination states that the impairment is only considered permanent if it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years. Further, section 6(6) states that for a condition to be “fully stabilised”, there must be evidence that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.

27. This was not the evidence before of the Tribunal and accordingly it cannot conclude that the applicant’s epilepsy was fully stabilised at the time of his application for DSP such as to attract an impairment rating. The evidence is that the applicant was still working at the time of his application for DSP and continued until February 2015 when the applicant says he was made redundant by his employer, Autoservices.

    CEREBRAL PALSY

28. This condition is long standing having been diagnosed in 1960 soon after the applicant’s birth. The evidence is that there is no cure or specific treatment for the condition. Dr Yap reported that the condition was expected to persist for more than 24 months and remain unchanged.

29. The Tribunal accordingly finds that the condition is permanent in that it is fully diagnosed, treated and stabilised such as to attract an impairment rating under the Impairment Tables. This condition results in impairments with respect to both the applicant’s upper and lower limb functions and thus can be assessed under both Tables 2 and 3.

30. The Job Capacity Assessor recommended an impairment rating of 10 points under Table 2 and 10 points under Table 3 on the basis of the applicant’s report as to the impacts on his ability to function and the contents of Dr Yap’s report.

31. The applicant stated to the Tribunal that this condition impacts on his ability to use his left arm and that he also experiences shaking in his right arm. He explained that he experiences pins and needles if he extends his arm to put washing on the line. He confirmed that he is able to use a keyboard, write and turn the pages in a book with his right arm however all of these processes are very slow.

32. The descriptors in Table 2 refer to functional impact on activities using hands or arms. This requires that the person have difficulty with the stated activities as a result of functional impact to both hands and arms.

33. The Tribunal is satisfied that the applicant’s cerebral palsy results in a moderate functional impact on activities on the basis that it causes difficulties for the applicant with respect to most of the listed descriptors requiring the use of both hands or arms. There is however no evidence that would satisfy the descriptors for a severe functional impact to attract an impairment rating of 20 points under Table 2.

34. With respect to the impacts to the applicant’s lower limb functionality, the Tribunal notes Dr Yap’s report where she states that “the left limbs spasticity has affected the full use of his left arm and legs. He is not able to lift weights with his left arm and walk for long distances due to weakness in the left limbs.” Further, that the condition causes weakness and loss of balance and the applicant has difficulty walking long distances and standing for more than 10 minutes without pain. The applicant reported to the Job Capacity Assessor (JCA) that he is unable to stand for more than approximately 5 minutes at a time and when shopping he will sit and wait for his wife to purchase the groceries. The JCA recommended an impairment rating of 10 points on the basis of the medical evidence and the applicant’s reported functional impacts. The Tribunal agrees with this recommendation and does not consider that the evidence would support a higher impairment rating for a severe functional impact under Table 3. There is no evidence that the applicant requires assistance from another person to perform the activities listed in subparagraphs (1)(a) and (b).

35. Dr Yap lists the applicant’s arthritis and chronic pain as being conditions affecting his lower back and shoulders but are generally well managed and cause minimal or limited impact on ability to function. In the absence of evidence outlining a diagnosis, past treatment, prognosis or functional impact, the condition cannot be considered permanent such as to attract an impairment rating.

36. The Tribunal concludes that the applicant’s cerebral palsy condition attracts a total impairment rating of 20 points under the Impairment Tables. The applicant thus satisfies section 94 (1)(b) of the Act.

    CONTINUING INABILITY TO WORK

37. The applicant’s baseline work capacity and work capacity within the two years with intervention were assessed by the JCA in the report submitted on 22 December 2014 as between 15 and 22 hours per week. The JCA considered that with disability specific intervention, the applicants work capacity was not expected to change.

38. There is no other evidence regarding the applicant’s ability to work apart from the fact that at the time when he lodged his application for DSP, the applicant was in employment which he calculated amounted to some two days spread over the course of a five day working week.

39. In addition, in the absence of a finding that the applicant suffered a “severe impairment” as defined in section 94(3B) of the Act, the applicant must also satisfy the provisions relating to a programme of support (POS). The provisions of the POS Determination require that a person participate in a programme of support for 18 months in the 36 months prior to the date of the relevant claim for DSP (subsections 5(1) and (2) of the POS Determination).

40. Attached to the respondent’s Statement of Issues, Facts and Contentions is a copy of the applicant’s Referral Placement List which includes a description of the referral, the site of the placement, start and end dates and reasons for ending the placement. Prior to the applicants claim for DSP the referral history indicates that the applicant actively participated in a programme of support for a total of some 14 months with the programme having ended on 4 July 2014 because “ongoing support not required-independent worker”.

41. The applicant maintains that he had not exited the program on 4 July 2014 and was still corresponding with Ms Johnson who continued to request his payslips. He says that she continued to visit him at the workplace until around Christmas 2014. A number of emails between the applicant and Ms Johnson were tendered in evidence. On 28 November 2014, the applicant emailed Ms Johnson asking whether he could “pop in for a chat”. It was the applicant’s evidence that he had contacted Ms Johnson because he was aware at that stage that his employment was going to be terminated in February 2015. Ms Johnson responded stating that she was sorry that things weren’t going well for the applicant and that if he needed any assistance to let her know. The applicant emailed Ms Johnson to advise that he was only working two days a week, things were slow and that he had started the process of applying for DSP.

42. Evidence was called by the respondent from Ms Johnson, an employee with Inteworks. She stated that she had worked with the applicant since he registered in May 2013 until he exited the programme on 4 July 2014. Ms Johnson stated that the last face to face appointment with the applicant prior to him exiting the programme was on 13 June 2014 and that once the exit was complete, she no longer visited the client at the workplace. With respect to the emails tendered in evidence, it was Ms Johnson’s evidence that she met the applicant at his request because he needed assistance however, because he had exited the program, she would not have been paid for the appointment. Ms Johnson explained that her role is to support a client in employment but as the applicant had been working for a period of 12 months, it was considered that he no longer needed Intework’s support. Ms Johnson advised the applicant however, that she would be available if he needed assistance in the future. Ms Johnson said that her last appointment with the applicant under the program was on 13 June 2014 which was confirmed by her notes on the applicant’s file. She said that any appointments after that date were independent of the program.

1. The Tribunal accepts Ms Johnson’s evidence with respect to the applicant’s participation in the program of support which is confirmed by her own notes including appointments with the applicant and the referral placement list tendered in evidence. Accordingly, the Tribunal is satisfied that the applicant’s participation in the program of support was for a period of 14 months which is less than the required period of 18 months.

2. Subsections 5(3)-(5) of the POS Determination contain a number of exceptions to the general requirement that a person must participate for at least 18 months. The Tribunal is satisfied that none of the stated exceptions apply in the applicant’s case. The evidence is that the applicant exited from the program because he was engaged in independent employment and no longer required Intework’s assistance. The applicant was initially employed on a full-time basis and subsequently reduced his hours to 2 days (15 hours per week). The Tribunal is accordingly satisfied that the applicant did not comply with the requirements of the Act to have actively participated in a programme of support.

3. Although the applicant satisfies the qualification requirements for DSP with respect to having a physical impairment and an impairment rating of 20 points under the Impairment Tables, he fails to satisfy the requirements for a continuing inability to work which includes participation in a programme of support for the required period of 18 months.

   DECISION

4. For the reasons stated above, the Tribunal affirms the decision under review.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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Administrative Assistant

Dated 16 June 2016

Date of hearing	13 April 2016
Applicant	In person
Representative for the Respondent	Mr A Burgess
Solicitors for the Respondent	Sparke Helmore Lawyers