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

[2021] AATA 3374

Armanious and Secretary, Department of Social Services (Social services second review) [2021] AATA 3374 (18 August 2021)

Division:GENERAL DIVISION

File Number(s): 2021/1652

Re:Jackline Armanious

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member W Frost

Date of decision:   18 August 2021

Date of written reasons: 17 September 2021

Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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

Member W Frost

Catchwords

SOCIAL SECURITY – disability support pension – whether condition is permanent – whether condition fully treated and stabilised during relevant period – Applicant not assigned any impairment rating under the Impairment Tables for conditions during the qualification period – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 s 43
Social Security (Administration) Act 1999
Social Security Act 1991 ss 26-27, 94

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Shi v Migration and Registration Authority [2008] HCA 31

Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606

Secondary Materials

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

REASONS FOR DECISION

Member W Frost

17 September 2021

INTRODUCTION

1. The Applicant, Ms Jackline Armanious, has a number of impairments that gave rise to her claim for the Disability Support Pension (DSP) in December 2019, which was rejected by Services Australia. It did not consider that Ms Armanious was qualified for the DSP at the date of her claim or within the relevant 13 weeks thereafter, because her impairments could not be assigned an impairment rating to meet the required 20 points in the impairment tables (Impairment Tables) set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Determination).

2. Following Ms Armanious’ appeal from a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), which affirmed Services Australia’s refusal decision, the General Division of the Administrative Appeals Tribunal (Tribunal) held a hearing by telephone regarding Ms Armanious’ application. The Tribunal considered the materials filed in the proceeding and the submissions made by both parties at the hearing. The Tribunal was satisfied that the correct or preferable decision was for the decision under review to be affirmed pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act). That is, the Tribunal was satisfied that Ms Armanious’ DSP claim should be refused. Her application was therefore unsuccessful.

3. The Tribunal read out a statement of its reasons at the hearing on 18 August 2021. Following that hearing, on 1 September 2021, Ms Armanious requested written reasons for the Tribunal’s decision. Below are those reasons.

   ISSUE

4. The issue before the Tribunal was whether Ms Armanious was qualified to receive the DSP at the date of her claim on 3 December 2019 or within the following 13 weeks.   

   BACKGROUND

5. Ms Armanious lodged a claim for the DSP with Services Australia in respect of the following conditions:  back pain – joints pain, ankylosing spondylitis, sciatica, Gastro-Oesophageal Reflux Disease (GORD), migraine, irritable bowel, prolapsed uterus, anxiety, and depression.[1]

   [1] Exhibit 1, T21, pages 120-150.

6. In April 2020, a decision was made by Services Australia rejecting Ms Armanious’ claim for the DSP on the basis that her conditions did not attract 20 points or more under the Impairment Tables.[2] In September 2020, this decision was affirmed by an Authorised Review Officer (ARO).[3]

   [2] Exhibit 1, T28, page 170.

   [3] Exhibit 1, T33, pages 177-178.

7. On 9 February 2021, the AAT1 affirmed the rejection of Ms Armanious’ DSP claim.[4] The AAT1 found that:

   (a)Ms Armanious’ primary condition is chronic back and joint pain with associated ankylosing spondylitis which was not fully treated and stabilised before the end of the qualification period as she had been referred for an outpatient pain management treatment program, but had not yet received any treatment;

   (b)Ms Armanious’ prolapsed uterus condition had been resolved; and

   (c)her other conditions were not permanent.   

   [4] Exhibit 1, T2, pages 10-16.

8. In March 2021, Ms Armanious’ lodged an application for review of the AAT1 decision with this Tribunal, which relevantly stated that: ‘I have seen my arthritis specialist who has provided me with a letter advising that the condition has been treated, stable and permanent’.[5]

   CONSIDERATION

   [5] Exhibit 1, T1, pages 1-9.

   What is the qualification period for assessment of eligibility for the DSP?

9. Clause 4(1) in Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act) sets out how to determine the ‘start day’ for a social security payment. Pursuant to this provision, the Tribunal is required to assess Ms Armanious’ DSP claim based on her conditions as at the date her claim was made or within the following 13 weeks.[6] The ‘start day’ for Ms Armanious’ claim for the DSP is the day she lodged that claim, which was 3 December 2019, and the 13 week qualification period runs from that date until 3 March 2020. As explained to Ms Armanious at the hearing, in accordance with the legislative requirements, if there has been any deterioration or change to her medical conditions suggesting she may have become qualified for the DSP at a later time (that is, after the end of the qualification period in March 2020), it is irrelevant to the Tribunal’s consideration of her impairments during the qualification period for the purpose of this application and she can make a new claim for the DSP based on the current status of her conditions.[7]

   [6] Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7]-[8]; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253; Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; and Fanning and Secretary, Department of Social Services [2014] AATA 447 at 31-33.

   [7] Shi v Migration and Registration Authority [2008] HCA 31 at [144] – [145]. Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].

10. In this regard, the Federal Court of Australia in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 endorsed the principle, discussed in Harris[8] and Fanning,[9] that medical reports prepared after the qualification period will only be relevant to the extent that they refer to the applicant’s condition during the qualification period.[10] Accordingly, the Tribunal can only consider Ms Armanious’ eligibility for the DSP within the qualification period commencing on 3 December 2019 and ending on 3 March 2020, assisted by medical information regarding her conditions as they were during that period, not following the end of that qualification period in March 2020.

    [8] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252.

    [9] Fanning and Secretary, Department of Social Services [2014] AATA 447.

    [10] Gallacher and Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

    What are the qualification criteria for the DSP?

11. Subsection 94(1) of the Social Security Act 1991 (Act) relevantly provides that a person is qualified for the DSP 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…

12. Each element of these qualification criteria must be satisfied for a person to qualify for the DSP.

    The Impairment Tables  

13. The Impairment Tables for the DSP and the rules for their application (Rules) were made by legislative Determination pursuant to subsection 26(1) of the Act. In accordance with section 27 of the Act, the Impairment Tables to be applied by the Tribunal are contained in the Determination.

14. Subsection 6(4) of the Rules provides that a person’s condition is ‘permanent’ if each of the following criteria is met:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;

    (b)the condition has been fully treated;

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

15. Subsection 6(5) of the Rules provides that the following is to be considered in determining whether a condition has been ‘fully diagnosed’ and ‘fully treated’ for the purposes of subsections 6(4)(a) and (b):

    (a)whether there is corroborating evidence of the condition; and

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

    (c)whether treatment is continuing or is planned in the next 2 years.

16. Under subsection 6(6) of the Rules, a person’s condition is ‘fully stabilised’ if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

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

    (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, 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.  

17. Reasonable treatment is defined under subsection 6(7) of the Rules as treatment that:

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

    (b) is at a reasonable cost; and

    (c) can reliably be expected to result in a substantial improvement in functional capacity; and

    (d) is regularly undertaken or performed; and

    (e) has a high success rate; and

    (f) carries a low risk to the person.

    Does Ms Armanious have a physical, intellectual or psychiatric impairment?

18. The Tribunal is satisfied on the evidence before it, including Ms Armanious’ medical and related reports regarding her conditions, that she had impairments during the qualification period that meet subsection 94(1)(a) of the Act, being that a person ‘has a physical, intellectual or psychiatric impairment’. While the Respondent accepted that Ms Armanious had impairments so as to satisfy this criterion for qualification for the DSP, the Respondent contended that during the qualification period, none of her conditions could be assigned an impairment rating under the Impairment Tables in order to satisfy subsection 94(1)(b) of the Act, being an impairment ‘of 20 points or more under the Impairment Tables’.

    Do Ms Armanious’ conditions attract 20 points or more under the Impairment Tables?

19. To satisfy the DSP qualification criterion in subsection 94(1)(b) of the Act, Ms Armanious’ impairments must be assigned an impairment rating of 20 points or more.  

    Ankylosing spondylitis

20. In relation to Ms Armanious’ ankylosing spondylitis, the Tribunal is satisfied on the available evidence that this impairment was ‘fully diagnosed’ as at the qualification period in accordance with subsection 6(4)(a) of the Rules. However, the Tribunal is not satisfied that this condition was ‘fully treated’ and ‘fully stabilised’ during the qualification period as required by subsections 6(4)(b) and (c) of the Rules. To this end, the Tribunal notes the following evidence in relation to Ms Armanious’ ankylosing spondylitis:

    (a)In April 2018, following an x-ray of Ms Armanious’ lumbosacral spine, Dr Malcolm Thomson (radiologist), commented that she had ‘mild lower lumbar spondylitis’;[11]

    (b)In August 2018, Dr Peta Pentony (rheumatologist), requested Ms Armanious undergo “x-rays of the cervical and thoracic spine looking for changes consistent with ankylosing spondylitis”.[12] A range of medications were recommended or foreshadowed, together with possible hydrotherapy. The following month, Dr Pentony noted that Ms Armanious has a “probable” diagnosis of ankylosing spondylitis, asked her to continue the prescribed medications and noted that she will start hydrotherapy.[13] At the hearing, Ms Armanious told the Tribunal that, at that time, she was taking these medications. She also started hydrotherapy, however her attendance was sporadic and the treatment “did not really work;”

    (c)In October 2018, a medical officer at Calvary Hospital Emergency Department recorded that Ms Armanious had been “recently diagnosed with ankylosing spondylitis” and recommended re-referral to a rheumatologist because she “now has active symptoms”.[14] A few days later, Dr Pentony, the rheumatologist, stated that the arm pain described by Ms Armanious “is certainly not consistent with ankylosing spondylitis” and referred her for an MRI;[15]

    (d)In November 2019, an unsigned letter from Ochre Health Medical Centre relevantly stated that Ms Armanious “has been diagnosed with ankylosing spondylitis…and is awaiting for OPD [outpatient department] appointment at TCH [The Canberra Hospital]”.[16] In her oral evidence, Ms Armanious told the Tribunal that she was waiting for a rheumatology appointment;

    (e)In April 2020, that is, after the end of the qualification period in early March 2020, Ms Armanious told a Job Capacity Assessor that she was “awaiting further review at the outpatient unit at the Canberra Hospital…she has yet to be referred to any pain management program; however completed some physiotherapy sessions in late 2019”;[17]

    (f)In May 2020, Dr Ranga Panagoda (general practitioner), noted that Ms Armanious “has been diagnosed to have Ankylosing Spondylitis like arthritis which is a permanent progressive condition”[18] and listed her current medications. In June 2020, three months after the end of the qualification period, Dr Panagoda noted that Ms Armanious was “waiting further follow up at Canberra Hospital” in relation to her ankylosing spondylitis for which she was said to be “undergoing physiotherapy”. It was noted that ankylosing spondylitis “is a chronic autoimmune inflammatory condition that can be controlled but not cured”.[19] At the hearing, Ms Armanious could not recall when she attended the appointment at the Canberra Hospital;

    (g)In September 2020, Ms Armanious told the ARO that she commenced “physiotherapy late last year (possibly December) and completed approximately 5 sessions”;[20]

    (h)In March 2021, one year after the end of the qualification period, Dr Kathleen Tymms (rheumatology physician), noted that Ms Armanious has “ankylosing spondylitis, onset date uncertain” and that “after 12 weeks of certolizumab some discomfort has certainly greatly improved, though she is still a little uncomfortable. She is pleased, however, with her progress compared with her discomfort before…she is now on treatment to prevent further deterioration”.[21] = Ms Armanious told the Tribunal that she had not previously received this treatment; and

    (i)In June 2021, Dr Pentony wrote that Ms Armanious was her patient from August to November 2018 and she presented with inflammatory back pain and imaging changes over her sacroiliac joints consistent with ankylosing spondylitis. She also noted Ms Armanious’ current treatment for this condition.[22]

    [11] Exhibit 1, T7, page 94.

    [12] Exhibit 1, T9, page 97.

    [13] Exhibit 1, T12, page 104.

    [14] Exhibit 1, T13, page 105.

    [15] Exhibit 1, T14, page 108.

    [16] Exhibit 1, T20, page 119.

    [17] Exhibit 1, T27, page 161.

    [18] Exhibit 1, T29, page 172.

    [19] Exhibit 1, T31, page 175.

    [20] Exhibit 1, T33, page 180.

    [21] Exhibit R2, page 237.

    [22] Exhibit R2, page 239.

21. The evidence demonstrates that Ms Armanious’ ankylosing spondylitis, while fully diagnosed, was not fully treated and stabilised before the end of the qualification period in March last year. In November 2019, before the qualification period, Ms Armanious was awaiting an appointment at the Canberra Hospital.[23] In April 2020, just over one month after the end of the qualification period, Ms Armanious told Services Australia that she had not yet been referred to a pain management program. And three months after the end of the qualification period, Dr Panagoda wrote that Ms Armanious was still “waiting follow up at the Canberra Hospital”.[24] Accordingly, the Tribunal is satisfied that treatment was continuing or planned and not all ‘reasonable treatment’ (as that term is defined in the Rules) had been undertaken prior to the end of the qualification period in March 2020. For example, Dr Tymms’ letter from March this year refers to Ms Armanious having undertaken a 12 week course of new treatment for her ankylosing spondylitis, which has “greatly improved” her discomfort. This new treatment was certolizumab, a type of disease modifying anti-rheumatic drug, which Dr Tymms noted was commenced in late 2020. That is, after the end of the qualification period in March 2020.

    [23] Exhibit 1, T20, page 119.

    [24] Exhibit 1, T31, page 174.

22. As a result, the Tribunal finds that Ms Armanious’ ankylosing spondylitis was not ‘permanent’, as defined by subsections 6(3) and (4) of the Rules, because it was neither ‘fully treated’ nor ‘fully stabilised’ during the qualification period. For these reasons, the Tribunal cannot assign an impairment rating for this condition under the Impairment Tables.

23. However, for completeness, the Tribunal notes that Table 4 of the Impairment Tables relating to Spinal Function is relevant to Ms Armanious’ condition. She contended that she met the required definition of having a ‘severe’ functional impact on her activities, including because she is unable to ‘remain seated for at least 10 minutes’, as required under Table 4 to be assigned 20 points. However, the documentary evidence demonstrates otherwise. For example, in November 2019, just before the start of the qualification period, Ms Armanious was said to be ‘unable to sit still for more than 15 minutes,’[25] and in May this year, Ms Thérèse Keily-Wynter (physiotherapist), noted that Ms Armanious has an ‘inability to sit for more than a maximum of 10 minutes’. Based on a plain reading of this latter evidence and noting that the qualification period ended more than one year earlier, the Tribunal is satisfied that Ms Armanious had a maximum sitting tolerance of 10 minutes. On the evidence, Ms Armanious could, at the relevant time, remain seated for at least ten minutes, but not for more than 10 minutes. This does not satisfy the test for the 20 point rating under Table 4, which requires that a person be “unable to remain seated for at least 10 minutes”. Accordingly, even if the Tribunal had been satisfied that Ms Armanious’ condition was fully treated and stabilised, which it is not, based on the medical evidence it would be unable to assign the required 20 points to her condition under the Impairment Tables so as to qualify for the DSP.    

    [25] Exhibit 1, T20, page 119.

    Other conditions

24. In this proceeding, Ms Armanious’ application for review was focused on her ankylosing spondylitis. As previously set out in these reasons, other conditions the subject of Ms Armanious’ DSP claim from December 2019, were chest pain, irritable bowel syndrome, anxiety and depression, proteinuria and haematuria, prolapsed uterus, GORD and migraines. The Tribunal notes that the AAT1’s reasons from February this year stated that Ms Armanious did not persist with the argument regarding these other conditions at that hearing. Nevertheless, it found that those conditions had either resolved or were not permanent. As a result of the AAT1’s findings, this Tribunal sought to confirm at a pre-hearing directions hearing held in July this year that Ms Armanious did not press her application based on these other conditions. She confirmed this was correct. Ms Armanious submitted that the only condition that could satisfy the legislative requirements for her to be found eligible for the DSP was the ankylosing spondylitis, because this rendered her unable to work. At the substantive hearing of this proceeding, Ms Armanious again confirmed to the Tribunal that she did not press her claim based on those other conditions.

1. Accordingly, the Tribunal is not required to consider whether these other conditions meet the requisite test for her to be eligible for the DSP. However, for completeness, the Tribunal finds that, based on the available evidence, none of the other conditions meet the legislative requirements to be considered permanent before the end of the qualification period in March 2020. Therefore, no impairment points can be allocated for these conditions under the Impairment Tables.

   Does Ms Armanious have a continuing inability to work?

2. Because the Tribunal has found that Ms Armanious did not have a total impairment rating of 20 points or more under the Impairment Tables, given the conjunctive nature of section 94(1) of the Act, requiring each element to be met by an applicant, the Tribunal is not required to consider whether Ms Armanious had a ‘continuing inability to work’ pursuant to subsection 94(1)(c), in order to determine whether she meets this subsequent element of the DSP qualification criteria.

   CONCLUSION

3. Although Ms Armanious’ present circumstances are such that a different outcome may be reached if she lodged a new DSP claim with Services Australia, for the purpose of the current review before the Tribunal, it must apply the terms of the Act and the Rules to her DSP claim from December 2019 and throughout the qualification period ending almost eighteen months ago in March 2020. As a result, and based on the evidence set out in these reasons, the Tribunal finds that Ms Armanious could not be assigned any impairment rating under the Impairment Tables for her conditions during the qualification period. Ms Armanious’ claim for the DSP before the Tribunal therefore fails to satisfy subsection 94(1)(b) of the Act requiring an impairment rating of 20 points or more under the Impairment Tables.

4. Accordingly, for the foregoing reasons, Ms Armanious’ application before this Tribunal is unsuccessful. This does not diminish the nature of the conditions suffered by Ms Armanious, but rather is a finding by the Tribunal that the requisite legislative criteria have not been met during the qualification period. As the Tribunal has noted, Ms Armanious is at any time able to make a new claim for the DSP, accompanied by contemporaneous evidence regarding her conditions and associated treatment.

   DECISION

5. The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member W Frost

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

Associate

Dated: 17 September 2021

Date of hearing:	18 August 2021
Applicant:	By telephone
Solicitor for Respondent:	Ms Amy Joseph, Services Australia