Arkell and Secretary, Department of Social Services (Social services second review) - [2017] AATA 1987

Arkell and Secretary, Department of Social Services (Social services second review) [2017] AATA 1987 (27 October 2017)
Division:GENERAL DIVISION
File Number: 2017/0545
Re:Sheila Arkell
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member

Date:27 October 2017
Place:Perth

The decision under review is affirmed.
...........[sgd]........................................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant had conditions that were fully diagnosed, treated and stabilised – whether applicant had 20 impairment points – whether severe impairment – multiple sclerosis – type I diabetes – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 4(2), ss 94(1), ss94(2)(aa) – ss 94(2)(a) – ss 94(2)(b) - ss 94(3B), ss 94(5)
Social Security Administration Act 1999(Cth) – Sch 2, Cl 4(1)
CASES
Summers and Secretary, Department of Social Services [2014] AATA 165
SECONDARY MATERIALS
Guide to Social Security Law – Part 1.1.A.30
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 - Table 1 – Table 3 – ss 6(3) – ss 6(4) – ss 6(8) – ss 8(1) – ss 10(5) – ss 10(6)
Social Security (Active Participation for Disability Support Pension) Determination 2015 – s 5 - ss 7(2) – ss 7(3) – ss 7(4) – ss 7(5)
REASONS FOR DECISION
L M Gallagher, Member
27 October 2017
INTRODUCTION

On 22 October 2015, Ms Arkell lodged an application for Disability Support Pension (‘DSP’) with the Department of Human Services (‘the Department’) (T13). On her claim form, Ms Arkell listed her ‘disabilities, illnesses or injuries’ as being ‘multiple sclerosis,’ ‘type I diabetes,’ ‘frozen shoulder’ and deafness in one ear’ (T13, page 124).
A medical report by Dr Emilie Pitter, General Practitioner, dated 2 November 2015, prepared in support of Ms Arkell’s claim for DSP (T14) states that Ms Arkell’s two main chronic conditions are type 1 diabetes and multiple sclerosis. Dr Pitter reported that Ms Arkell’s multiple sclerosis condition causes her to suffer significant symptoms of fatigue, that she had been referred to an endocrinologist for management of her diabetes and that she has a past history of being hearing impaired (‘half deaf’) and hypothyroidism.
On 5 January 2016, a face to face Job Capacity Assessment (‘JCA’) was conducted and a report produced dated 6 January 2016 (T16). Ms Arkell was assessed by a Registered Psychologist and a Registered Occupational Therapist. The report states that the JCA assessed Ms Arkell as suffering from:
(a)Multiple sclerosis, which was fully diagnosed, fully treated and fully stabilised and recommended Ms Arkell be assigned a total of 10 points, being 5 points under Table 1 of the Impairment Tables (Functions Requiring Physical Exertion and Stamina) and 5 points under Table 3 of the impairment Tables (Lower Limb Function).
(b)Diabetes – Insulin Dependent, which was fully diagnosed, fully treated and fully stabilised and recommended Ms Arkell be assigned a total of 0 points under Table 1 of the Impairment Tables (Functions Requiring Physical Exertion and Stamina) on the basis that the functional impact of the fatigue had been assessed with the multiple sclerosis condition in order to avoid a double rating.
The JCA also found that Ms Arkell had a capacity to work 15 to 22 hours per week within two years with intervention (T16, page 138).
On 7 January 2016, Ms Arkell’s claim for DSP was rejected on the basis that she had been assessed as “not having an impairment rating of 20 points or more under the Impairment Tables” (T17).
On 11 January 2016, Dr Pitter provided a further report (T18). Relevantly, Dr Pitter reported that Ms Arkell has been her patient since February 2015, “has significant fatigue and needs to rest frequently,” “is unable to stand for more than 2 - 3 minutes due to balance difficulties,” “can walk for 5 – 10 minutes before needing to rest or have assistance from somebody,” “is unable to use public transport due to her balance problems” and “has difficulties with housework. Her son is currently living with her, and he assists her by doing gardening, clothes laundry and iron [sic], vacuuming, washing dishes. Her son cooks >50% of the time.”
Ms Arkell requested review of the Department’s decision dated 7 January 2016 and on 26 July 2016 an Authorised Review Officer of the Department (‘ARO’) affirmed that decision (T19). The ARO found that Ms Arkell’s conditions attracted a total impairment rating of 15 points, divided as follows:
(a)Multiple sclerosis, which was fully diagnosed, fully treated and fully stabilised and assigned 15 points under the Impairment Tables (being 5 points under Table 2 (Upper Limb Function) and 10 points under Table 3 (Lower Limb Function)).
(b)Diabetes, which was fully diagnosed, fully treated and fully stabilised and the functional impact of which was considered with the rating for Ms Arkell’s multiple sclerosis condition.
(c)Frozen shoulder and partial hearing loss, for which “the minimum standard of medical evidence was not provided” to assess those conditions.
The ARO also found that Ms Arkell did not have a continuing inability to work (‘CITW’) (T19).
On 3 October 2016, Ms Arkell applied to the Administrative Appeals Tribunal (‘Tribunal’) for a first review of the ARO decision dated 26 July 2016 (T2).
On 5 January 2017, the Social Services and Child Support Division of the Tribunal (‘AAT1’) affirmed the ARO decision dated 26 July 2016 (T2) on the basis that she did not have a CITW and while she achieved 20 impairment points, she did not have a severe impairment given that points were not achieved in a single table. The AAT1 divided Ms Arkell’s 20 impairment points as follows:
(a)Multiple sclerosis, which was fully diagnosed, fully treated and fully stabilised and assigned 20 points under the Impairment Tables (being 10 points under Table 1 (Functions Requiring Physical Exertion and Stamina) and 10 points under Table 3 (Lower Limb Function)).
(a)Diabetes, which was fully diagnosed, fully treated and fully stabilised and the functional impact of which was considered with the rating for Ms Arkell’s multiple sclerosis condition.
The AAT1 noted there was insufficient evidence to consider Ms Arkell’s frozen shoulder and partial hearing loss conditions and Ms Arkell’s hypothyroidism condition had no additional functional impact (T2).
On 31 January 2017, Ms Arkell applied to the General Division of the Tribunal for a second review of the AAT1 decision dated 5 January 2017 for reasons including (T1):
“I believe the decision made by the AAT was incorrect and that a different decision should be made. I also feel that my inability to work more than 15 hours has not been understood despite all the personal and medical evidence that has been supplied.”
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
The statutory provisions relevant to the present matter are contained in the Social Security Act 1991 (Cth) (‘the Act’) and the Social Security Administration Act 1999 (Cth) (‘the Administration Act’).

14. Section 94 of the Act sets out the qualification criteria for DSP. For present purposes, the three primary requirements are that a person has a physical, intellectual or psychiatric impairment (subsection 94(1)(a) of the Act); that the person’s impairment is of 20 points or more under the Impairment Tables (subsection 94(1)(b) of the Act); and that person has a CITW (subsection 94(1)(c) of the Act).

In accordance with subclause 4(1) of Schedule 2 to the Administration Act, the Tribunal is required to determine Ms Arkell’s eligibility for DSP on 22 October 2015, being the date the claim was lodged.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis (“impairment” is defined to mean a loss of functional capacity affecting a person’s medical condition) and they describe functional activities, abilities, symptoms and limitations.
To be given a rating under the Impairment Tables, the impairment must be permanent and be more likely than not, in light of available evidence, to persist for two years (subsection 6(3) of the Determination).
For the purposes of the Impairment Tables, “permanent” does not have its usual meaning. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner, be fully treated, be fully stabilised and be more likely than not, in light of available evidence, to persist for more than two years (subsection 6(4) of the Determination).
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (subsection 6(8) of the Determination).
Self-reporting of symptoms in relation to a person’s condition can only be taken into account where there is corroborating evidence as defined in each table in the Impairment Tables (subsection 8(1) of the Determination).
Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table (subsection 10(5) of the Determination).
Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment rating being assessed more than once (subsection 10(6) of the Determination).
In respect of the requirement that a person have a CITW, unless a person is specifically exempted from this requirement, all the criteria in subsection 94(2) of the Act need to be satisfied, including participation in a recognised program of support and being unable to work for 15 hours or more per week.
A person’s impairment is a “severe impairment” if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table (subsection 94(3B) of the Act).
A person with a “severe impairment” is not required to satisfy the requirement to have participated in a recognised program of support (subsection 94(2)(aa) of the Act). However, a person with a “severe impairment” will still have to satisfy the Secretary that the impairment itself is sufficient to prevent the person from doing any work independently of a program of support, or undertaking a training activity, within the next two years (subsections 94(2)(a) and 94(2)(b) of the Act).[1]
[1] Put another way, a person with a “severe impairment” has to satisfy subparagraphs 94(2)(a) and 94(2)(b) of the Act. A person who does not have a “severe impairment” has to satisfy subparagraphs 94(2)(aa), 94(2)(a) and 94(2)(b) of the Act.
ISSUES
The issues which arise in this case are:
(b)whether Ms Arkell suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,
(c)whether those impairments receive an impairment rating of 20 points or more under the Determination; and if so,
(d)whether Ms Arkell has a continuing inability to work, which, if Ms Arkell is not found to have a severe impairment, includes the requirement to have actively participated in a program of support.
EVIDENCE
The matter was heard in Perth on 12 September 2017. Ms Arkell appeared in person (with her sister, Ms Spencer, in attendance as a support person) and was self-represented. The Secretary was represented by Mr Ashley Burgess from Sparke Helmore Lawyers, instructed by Ms Daphne Jones-Bolla from Sparke Helmore Lawyers.
The Tribunal received the following evidence:
·Applicant’s statement dated 30 June 2017 (A1);
·Dr Pitter’s letter dated 12 April 2017 (A2);
·a 175 page set of T-Documents (T1 – T28) (R1); and
·Respondent’s Statement of Facts, Issues and Contentions dated 8 June 2017 (R2).
The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
Ms Arkell gave the following affirmed oral evidence at hearing, including during cross-examination by Mr Burgess:
(a)Her claim is mainly a “Table 1” (of the Impairment Tables) claim, predominantly regarding her multiple sclerosis condition, “plus the influence of” her diabetes condition.
(b)Her other conditions “are not going to prove anything.”
(c)She applied for the DSP in 2015 because she felt she could no longer work and that she had no other choice.
(d)She has suffered from diabetes since she was 15 years old. Her diabetes went unconfirmed and undiagnosed for a long time, because “she worked out what to do” (in order to manage it herself).
(e)When she was diagnosed with multiple sclerosis in November 2014, she thought that she could “take that on board.” In October 2015, she realised that multiple sclerosis was a disability and felt like she had to “put things in place” to address that as she was “getting increasingly compromised in all sorts of ways.”
(f)Since she was young she has developed strategies for coping with physical disability. She is very independent in her mind and can work out how best to enable herself to “do what is best.” This put her at a disadvantage when it came to Centrelink because “she had put up with a whole lot more than most people would (have)”.
(g)While she has been advised to lodge a new claim, she “thought she had enough” to show that “she couldn’t work” as at October 2015.
(h)Until November 2015, she had been working for Clear Sales (Australia) for about 38 hours per week, selling medical products to pharmacies. She would usually work from 9.00am until 3.00pm driving to and visiting places of business. While she was having trouble with tiredness, she could recuperate in her car throughout the day. Then, from about 4.00pm onwards, she would complete product orders at home.
(i)Around the time of her claim, she would never contemplate taking public transport unless someone else was with her, due to her balance problems. It was not so much the sitting down that was the problem, but the getting off (the bus, for example). She could get up one or two steps if she had a rail to hold onto, but it would get problematic when she had to stop and pay her fare.
(j)Her multiple sclerosis was initially identified due to issues with her gait, as she began to need something to hold onto when walking up stairs.
(k)Around October 2015, she could do some shopping if she drove her car and “parked near the doors.” She could then get out of the car and “pick up a few things” at the supermarket. She knows how to pick and choose where she goes so she can manage it.
(l)Fresh food is important for her diabetes (refer to T25, page 159). She wouldn’t buy enough for a whole week as it might “go off,” so she knows “where to go and how to do it.” The supermarket she visits is “eight doors down” from her physiotherapist, a supermarket which sells their fruit and vegetables “out the front.” If she needs to go further or longer, meaning needing more than five to 10 minutes to do her shopping, then she goes with a friend on the weekend.
(m)Around October 2015, she would “put things in the washing machine” and her son, who was living with her at the time, would “take care of the rest.” She currently lives alone and while she doesn’t do housework anymore (with help from the NDIS), she does “pick up after herself.”
CONSIDERATION
Ms Arkell contends that her multiple sclerosis and diabetes conditions achieve 20 impairment points under Table 1 of the Impairment Tables and hence constitute a “severe impairment” (paragraph 3, A1). Ms Arkell has herself adduced no evidence nor made any claim regarding having satisfied the program of support requirement, therefore if the Tribunal finds no “severe impairment” under Table 1 or any other Impairment Table and also finds the program of support requirement is not met, then Mr Arkell’s application will be unsuccessful (refer to paragraphs 24 and 25 above).
Whether Ms Arkell suffered from a physical, intellectual or psychiatric impairment or impairments
It is not in dispute and the Tribunal finds on the evidence that at the date of claim, Ms Arkell suffered from multiple sclerosis and type I diabetes. As such, the Tribunal finds that Ms Arkell suffered from a number of impairments in satisfaction of subsection 94(1)(a) of the Act.
Whether Ms Arkell’s impairment or impairments receive an impairment rating of 20 points or more
The Secretary concedes and the Tribunal finds on the evidence that as at the date of claim, Ms Arkell’s multiple sclerosis and diabetes conditions were permanent in accordance with subsection 6(3) and 6(4) of the Determination and can therefore be rated under the Impairment Tables.
Ms Arkell submits that her multiple sclerosis condition rates 20 points under Table 1 of the Impairment Tables and constitutes a “severe impairment.” Ms Arkell relies on Dr Pitter’s letters setting out her functional difficulties in this regard.
The Secretary contends, however, that Ms Arkell’s multiple sclerosis condition rates 10 impairment points under Table 1 (Functions Requiring Physical Exertion) and a further 10 impairment points under Table 3 (Lower Limb Function). The Secretary relies on Dr Pitter’s report and letter (T8 and T14) and Ms Arkell’s statement dated 30 December 2016 (T25).
The Secretary also contends (and it is not in dispute that) the functional impairment arising from Ms Arkell’s diabetes condition has been addressed when allocating impairment points under Table 1 for Ms Arkell’s multiple sclerosis condition.
Therefore, the Secretary’s position is that Ms Arkell has a total rating of 20 impairment points under the Tables, in satisfaction of subsection 94(1)(b) of the Act, however she does not have a “severe impairment.”
The evidence before the Tribunal regarding Ms Arkell’s functional difficulties and abilities is:
(a)Dr Pitter’s report of 27 May 2015 (T8) that Ms Arkell has no difficulty sitting in public transport and has moderate difficulty when crossing streets and negotiating kerbs, negotiating steps in and out of public transport and negotiating a large flight of steps.
(b)Dr Pitter’s report of 11 January 2016 that Ms Arkell has significant fatigue, needs to rest frequently and can walk 5 to 10 minutes before need to rest (T18, page 143).
(c)The JCA report that she is able to walk 10 to 15 minutes and shop independently but needs to stop and rest, can mobilise effectively and is able to complete her housework by careful pacing of activities (T16, page 136).
(d)Ms Arkell’s statement (T25) that she supports herself if she needs to stand or sit to do what she needs such as showering, cooking and daily tasks such as clothes washing. Mr Arkell also states in this statement that she can walk 5 to 10 minutes at a time before she may need to rest and that she needs to shop for fresh unprocessed food for her the dietary needs of her diabetes and multiple sclerosis conditions and use a trolley for support at her local shops to do this.
(e)Ms Arkell’s statement (A1) that she drives mostly to get to her appointments and only if she is up to this and the local shop is one she could park out front of and pick things up she may have run out of, not her main shop where she “needs help.”
(f)Ms Arkell’s oral evidence at hearing, which is consistent with her written evidence at subparagraph 38(c) above and Dr Pitter’s reports at subparagraphs 38(a) and 38(b) above.

Considering the applicable descriptors for impairment point ratings under Table 1, the Tribunal notes that for Ms Arkell’s functional impairments to attract a 20 point rating and be considered “severe,” there needs to be evidence that the impact on activities requiring physical exertion or stamina is that the person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)     walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)     walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)     use public transport without assistance; or
(iv)    perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
[emphasis added]
The Tribunal notes the “inescapable conclusion” reached by Senior Member Bell in Summers and Secretary, Department of Social Services [2014] AATA 165, that “assistance” for present purposes refers to assistance from a person not from an object or physical aid. The Tribunal considers that a physical aid would relevantly include the supermarket trolley Ms Arkell states that she uses for support in doing her supermarket shopping (refer to paragraph 38(d) above).
The Tribunal, in applying the evidence to each applicable domain under the 20 point rating under Table 1 finds that Ms Arkell’s level of impairment cannot be classified as “severe.” There is no evidence before the Tribunal that at the date of claim that Ms Arkell met any of the descriptors set out at paragraph 39(a)(i) to (iv) above.
Rather, the Tribunal finds that the evidence summarised at paragraph 38 above results in the level of Ms Arkell’s impairment under Table 1 as moderate, generating 10 points, noting that the applicable descriptors for a moderate rating under Table 1 are:
(1) The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
[emphasis added]
In particular, Ms Arkell’s ability to drive her car and shop on her own without assistance from a person (as opposed to an aid, see paragraph 40 above) means that she does not meet the criteria for a “severe” impairment under Table 1.
Ms Arkell’s ability to drive her car and shop on her own without assistance from a person (as opposed to an aid) also means that she similarly does not meet the criteria for a “severe” impairment rating under Table 3 (in relation to the lower limbs) and her level of functional impairment under Table 3 is most appropriately classified as “moderate” and attracting 10 impairment points. The Tribunal has not extracted the descriptors for “moderate” and “severe” rating under Table 3 in this decision as they are highly similar to those in Table 1 and nothing turns on the Tribunal not doing so.
Overall, the Tribunal finds that Ms Arkell has a total rating of 20 impairment points (10 points being allocated under Table 1 and 10 under Table 3) and satisfies subsection 94(1)(b) of the Act.
Whether Ms Arkell has a continuing inability to work
As neither of Ms Arkell’s functional impairment ratings were “severe,” for Ms Arkell to be found to have a CITW she must have actively participated in a program of support for a total of 18 months in the 36 months to the date of claim (refer to Part 1.1.A.30 of the Guide to Social Security Law, section 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2015) (‘the POS Determination’) and the definition of “relevant period” in section 5 of the POS Determination) as well as be found unable to work at least 15 hours per week at the date of claim (refer to subsection 94(5) of the Act).
There is no evidence before the Tribunal (and it was not contended by Ms Arkell) that Ms Arkell has completed, or ever commenced participation in a program of support. Ms Arkell’s program of support summary confirms this to be the case (T28, page 175).
As such, the Tribunal finds that Ms Arkell has not met the program of support requirement. The Tribunal also finds that, given that Ms Arkell is yet to commence a program of support, none of the exceptions set out in the POS Determination (at subsections 7(3), 7(4) and 7(5)) apply to Ms Arkell’s circumstances.
For completeness only, the Tribunal notes the evidence that Ms Arkell was assessed by the JCA as having a work capacity of 15 to 22 hours per week within two years with intervention (refer to paragraphs 4 and 23 above). Therefore, Ms Arkell’s claim would have failed regardless of whether she had met the program of support requirement.
DECISION
Ms Arkell does not qualify for the DSP as, while her impairments can be assigned 20 impairment points, none of her impairments are “severe” and she has not been found to have a CITW.
The decision of the AAT1 dated 5 January 2017, which affirmed a decision of the Department dated 26 July 2016 to reject Ms Arkell’s application for DSP lodged on 22 October 2015, is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

.......[sgd]...............................................................
Administrative Assistant - Legal
Dated: 27 October 2017

Date of hearing: 12 September 2017

Applicant: In person

Representative for the Respondent: Ms D Bolla-Jones

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	12 September 2017
Applicant:	In person
Representative for the Respondent:	Ms D Bolla-Jones
Solicitors for the Respondent:	Sparke Helmore Lawyers