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

[2019] AATA 122

Ashley and Secretary, Department of Social Services (Social services second review) [2019] AATA 122 (12 February 2019)

Division:GENERAL DIVISION

File Number:           2018/0632

Re:Lee-Anne Ashley

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:12 February 2019

Place:Perth

The decision under review is affirmed.

........[Sgd]........................................................

Member C Edwardes

CATCHWORDS

SOCIAL SECURITY – disability support pension – medical conditions – impairment tables – continuing inability to work rating – participation in program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(3B), 94(3C)

Social Security Administration Act 1999 (Cth) – s 179, Sch 2 cl 4(1)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252
Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 6(1), 6(2), 6(4), 6(5), 6(6), 6(7), 8(1), 7, 7(1), 7(2) , 8, 9, 10, 11, 11(1)(c), Table 3, Table 4, Table 5

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – s 5, s 7(1), s 7(2)

Department of Social Security, Guide to Social Policy Law: Social Security Guide (Department of Social Security, Version 1.251, 2 January 2019)

REASONS FOR DECISION

Member C Edwardes

12 February 2019

THE APPLICATION

1. This is an application for the review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) that affirmed the decision of an authorised review officer (ARO) of the Department of Human Services (the Department).  This decision was made on 11 January 2018, and rejected the Applicant’s claim for Disability Support Pension (DSP) (T2, 3-10).

   INTRODUCTION

2. On 15 March 2017, the Applicant lodged a claim for DSP stating that she suffered from several medical conditions – chronic knee pain, back pain, depression and PTSD (T45, 239-268).

3. The Applicant’s claim was rejected by an officer of Centrelink, (a part of the Department) on 13 July 2017.  This rejection was on the basis that the Applicant failed to attain an “…impairment rating of 20 points or more under the Impairment Tables.” (T61, 301).

4. The Applicant requested a review of this decision.  A review was undertaken by an ARO on 25 October 2017 (T68, 309).

5. The ARO advised the Applicant of the following findings (T68, 310):

   ·You have the following permanent conditions: chondromalacia of the right knee and osteomyelitis of T9/10, left 10^th medial rib and T8/9 and disc degenerative change at L5/S1.

   ·Your conditions of anxiety, depression and rheumatoid arthritis are not accepted as being permanent as they have not been fully treated and stabilised.

   ·Your total impairment rating is 10.

   ·You do not have an impairment rating of 20 points or more.

   ·You do not have a continuing inability to work 15 hours per week or more because of your impairment.

6. The Applicant lodged an application with the AAT1 on 15 November 2017.

7. The AAT1 affirmed the ARO’s decision on 11 January 2018.  It found regarding each of the medical conditions of the Applicant (T2, 8-9):

   chronic knee pain

   32.Although the tribunal is aware that Ms Ashley is awaiting a further appointment with Fremantle Hospital, it accepts the JCA finding and determined that Ms Ashley’s knee problem is fully diagnosed, fully treated and stabilised, resulting in a moderate functional impairment.  This generates 10 points from Impairment Table 3 (appendix A).

   …

   back pain

   35.The tribunal determined that there was insufficient medical evidence to justify an impairment rating for this problem.

   …

   depression and PTSD

   40.The tribunal determined that, at the time of the claim, the problems of depression and PTSD were diagnosed by an appropriately trained health professional. However the conditions are not fully treated and stabilised, and generate no impairment points.

8. The Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 8 February 2018 for a review of the AAT1 decision dated 11 January 2018 (T1, 1-2).  The application for review stated:

   I wish for a second review as I believe the decision is wrong and that a different decision should be made regarding my claim for Disability Allowance.

9. The Tribunal has jurisdiction to hear this matter pursuant to s 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

10. The matter was listed to be heard in Perth on 13 September 2018.  The Tribunal adjourned the matter as the Member was unavailable.  The matter was relisted for hearing on 25 January 2019.  The Applicant appeared in person and the Respondent was represented by Ms Underhill of Mills Oakley.

    RELEVANT LEGISLATION

11. The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.

12. Section 94 of the Act provides the criteria for DSP, relevantly:

    (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;

    (ii)    …

    Did the Applicant have Impairment Ratings of 20 points or more under the Impairment Tables? – S 94(1)(b) of the Act

13. Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:

    (5)… The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    (6)The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

14. The Impairment Tables referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables.”

15. Subsections 6(5), 6(6), and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent, and fall under the heading “Applying the Tables.” Subsection 8(1) of the Determination (under the heading “Information that must not be taken into account in applying the Tables”) provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

16. Sections 7 to 11 of the Determination inclusive provide guidance in how to assess information and evidence using the Impairment Tables and how to assign impairment ratings. In particular, s 11(1)(c) of the Determination states:

    …if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. 

    Did the Applicant have a continuing inability to work?

17. As outlined in s 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to s 94(2) of the Act:

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support –- 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.

    (Emphasis added.)

18. “Severe impairment” is defined in s 94(3B) of the Act:

    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. (Original emphasis.)

19. Section 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister.

20. Relevantly, s 7(1) and (2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a Program of Support (POS) for 18 months in the 36 months prior to the date of the relevant claim for DSP. 

    Qualification Period

21. Section 94 of the Act must be read in conjunction with Sch 2 cl 4(1) of the Administration Act. In accordance with the requirements in Sch 2 cl 4(1) of the Administration Act, there is a 13 week qualifying period for a DSP claim. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was made, and concluding 13 weeks after that day. In the present case, the 13 week period is from the 15 March 2017 to 15 June 2017 inclusive, and is known as the “Qualification Period.”

22. For a claim to be successful, a person must be qualified for DSP during the Qualification Period.  Changes in medical conditions that occur later are not relevant to the claim.  They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1].

23. The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

    ISSUES

24. The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP during the qualification period for the purposes of s 94(1) of the Act.

25. This requires consideration of whether at the time of the qualification period:

    (a)the Applicant had any physical, intellectual or psychiatric impairment;

    (b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and

    (c)if so, whether the Applicant had a ‘continuing inability to work’ as defined in subsection 94(2) of the Act.

    EVIDENCE

26. As mentioned above, the matter was heard in Perth on 25 January 2019.  The Applicant appeared in person.  The Respondent was represented by Ms Underhill of Mills Oakley.

27. The Tribunal would like to thank all parties for the assistance they provided during this hearing.

28. The Tribunal had the following evidence before it:

    ·T documents (T1- T83 pp1-393) (Exhibit R1).

    ·Statement of Facts, Issues and Contentions (SOFIC) dated 13 July 2018 (Exhibit R2).

29. The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing.  Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.

30. The Applicant made the following opening statements:

    ·She has been using crutches for approximately 6 years.

    ·She relies on assistance from friends to do shopping and home duties.

    ·She falls at least twice a week.

    ·She puts her washing into a dryer.

31. The Respondent opened by relying on Exhibit R2; the Respondent’s SOFIC, and confirmed that the Qualification Period for this DSP application was 15 March 2017 to 15 June 2017.

32. The Respondent outlined the provisions of the legislation covering this matter and noted that the Applicant had not undertaken a POS (T82, 367-374).

33. The Respondent claimed there was no evidence of specialist treatment relating to the Applicant’s spine, nor any evidence of targeted treatment.

34. The Tribunal was referred to the knee condition of the Applicant.  The Respondent referred the Tribunal to the Consultant Orthopaedic Surgeon Report of Mr Peter Bath (T24, 158) which stated that “It is not thought that either on clinical and radiological grounds, Ms Ashley is suffering rheumatoid arthritis.”

35. The Tribunal was further referred to the same medical report which states (T24, 158-159):

    …there are no overt factors along these lines, but certainly the presentation at the moment is one where there is perhaps some degree of over reaction to the degree of symptomatology.  Ms Ashley presented many photos taken on her iPhone of what she alleges to be that of knee swelling, but any swelling would seem to have been more of that in the quadriceps area and not of the knee joint itself.

36. The Tribunal was referred to another Consultant Orthopaedic Surgeon Report by the Respondent (T32, 203).  It states that “it is noted the long history of symptomatology here but there is not any muscle wasting noted today, a sign that usually accompanies significant and long term symptoms”

37. The report later states that “… Ms Ashley has a 15% (100x6/40) permanent impairment of the right leg at or above the knee.” (T32, 205).

38. The Respondent referred the Tribunal to a Job Capacity Assessment Report (JCA) dated 13 June 2017 which states (T56, 289):

    Ms Ashley has reported that she lives on her own and continues to drive independently, but only to local facilities. She uses public transport to go to appointments at Fiona Stanley Hospital, catching a bus and a train on these occasions.  Ms Ashley reports that she could do this independently, however her mother usually accompanies her.  Ms Ashley reports that she does not require assistance to stand up from a seated position.  She prefers to shop at her local IGA supermarket as it is smaller than mainstream supermarkets, reporting that it is easier for her to park right out the front and easier to move around.

39. The Respondent submitted there was no evidence to suggest this medical condition should attract an impairment rating of 20 points.

40. Under cross-examination by Ms Underhill the Applicant gave the following evidence:

    ·She was on workers compensation until 2015.

    ·She has not undertaken a POS because she was on workers compensation.

    ·She is currently on Newstart Allowance.

    ·Her physical mobility is significantly restricted.

    ·She can’t get to her doctors.

    ·Her crutches are required for everyday living.

    ·She lives alone and feels isolated.

    ·Her medical conditions have deteriorated significantly since the time she made her application.

    CONSIDERATION

41. On the basis of the evidence before the Tribunal, the Tribunal notes that the Applicant filed an application for DSP on 15 March 2017.  As a result, the Tribunal finds that the Qualification Period for this matter was from 15 March 2017 to 15 June 2017.

42. The Tribunal will now consider all of the evidence received from both parties.

    Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments – s 94(1)(a) of the Act

43. On the basis of the evidence before the Tribunal at the date of the claim, it is not in dispute that the Applicant suffers a range of medical conditions involving her “Knee, Arthritis, Spine and Mental Health” (R2, 2-21).

44. There are numerous medical reports and other reports which attest to the fact that the Applicant suffers from medical conditions.

45. The Tribunal finds therefore, the Applicant satisfies s 94(1)(a) of the Act.

    Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination – s 94(1)(b) of the Act

    Knee

46. Commentary in the AAT1 decision states (T2, 7-8):

    •    In February 2013 she was employed by the education department as a cleaner.  She did split shift work.  At the end of her morning shift she was moving a trolley when a vacuum cleaner dislodged and fell on her.  She fell down on to her right knee.  She was in a lot of pain.  Fellow workers helped her up and after a period of rest one of her workmates drove her home.

    •    The next day she could hardly get out of bed.  A friend took her to her regular GP, Dr El-Alamein.  He arranged an x-ray and some physiotherapy.  A few days later when things were no better he arranged a scan and referred her to an orthopaedic surgeon.  The orthopaedic surgeon referred her to another surgeon, Dr Jeffcoate, who was more experienced with knee problems.

    •    She was treated with physiotherapy, hydrotherapy and steroid injections.  In September 2013 Dr Jeffcoate performed an arthroscopy to clean out the knee and treat a damaged meniscus.  This did not help.  She saw other specialists including a rheumatologist and a pain specialist.  She remained in severe pain and had several falls.

    •    She continued to see Dr Jeffcoate and in 2016 he performed another arthroscopy at Fremantle Hospital.  This has not helped.  She was referred to the pain clinic at FSH. She attended the STEPS program.  They recommended hydrotherapy and physiotherapy.  She had those treatments at Fremantle Hospital but the distance to attend is too great.  She is hoping to start hydrotherapy in Kwinana soon.

    29.The tribunal noted detailed reports from Dr Peter Bath (orthopaedic surgeon) and Dr John Low (occupational physician) provided for insurance purposes in 2015.  Dr Low felt she had a 2.5% impairment of the right leg at or above the knee and was capable of working in a sedentary capacity.  Dr Bath felt there was a 15% impairment at or above the knee.

    30.The tribunal noted the report from the multi-disciplinary team at FSH pain clinic, dated 21 April 2017.  The report recommended ongoing physiotherapy and hydrotherapy and encouraged her GP to follow up on the referral to Fremantle Hospital orthopaedic department.

    31.The tribunal noted the findings of the JCA carried out in June 2017.  This recommended that the knee problem can be considered permanent and results in a moderate impairment of lower limb function.

1. The AAT1 accepted on the evidence before it that this condition was fully diagnosed treated and stabilised (FDTS) and resulted in moderate functional impairment generating an impairment rating of 10 points under Table 3.

2. The Tribunal notes the reports of Dr Wambeek (T22, 152) which stated that “the principal finding is that of high grade patella chondral wear underling the upper patellar apex and adjacent lateral facet with underlying cyst formation.”  Dr Davis observed (at T23, 154) the presence of “stable high grade chondral wear from the superior aspect of the patella including full-thickness chondral loss with underlying cystic change and oedema.”

3. Dr Bath (at T24, 158) noted that “there is no question about the fact that Ms Ashley has a full thickness chondral defect behind the patella of right knee.”

4. Dr Low (at T30, 190) commented “I confirm that the quadriceps bulk was at least the same size as the left indicating that she is far more functional than she claims.  We would expect wasting of the right quadriceps if she was as disabled as she said.”

5. Dr Bath (at T32, 203) commented “it is noted the long history of symptomatology here but there is not any muscle wasting noted today, a sign that usually accompanies significant and long term symptoms”.

6. The Secretary contends (R2):

   35.The Applicant's self-reported symptoms indicate a moderate functional impairment to the lower limbs, however the Secretary contends that the corroborated evidence of impairment would only support a finding of a mild impairment.

   …

   36.The Secretary contends the Applicant's self-reported functional impairment is inconsistent, and her reporting of more severe symptoms is not well supported by corroborating evidence.  Paragraph 8(1) of the Rules for Applying the Impairment Tables states that "symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

   37.With respect to descriptor 1(a) for a moderate impairment under Table 3, the Applicant told Dr Bath in May 2015 that she can walk outside for about one block using crutches, she told the JCA in May 2017 that she is limited to walking 1OOm but that she can usually go further if she rests (T56, p 288), and she reported at the functional impact assessment in October 2017 that she can only walk 20 m using crutches though as noted, no walking examination was undertaken (T71, p 323).

   38.In respect of descriptors 1(b) and (c) for a moderate impairment under Table 3, the Applicant reported to Dr Bath in June 2014 that she cannot stand at the sink and do dishes, she later reported to the JCA on 31 May 2017 that she is able to stand for 10-15 minutes at a time, by 25 October 2017 she reported that she was able to stand for 5 minutes and only while using crutches (T71, p 323).  The·Applicant reported to Dr Low that she needs crutches to use stairs, but did not indicate she needed another person to assist her (T30, p 187).  The JCA inferred that the Applicant's use of crutches would make negotiating stairs difficult (T56, p 288).  There is no evidence that the Applicant has been observed using crutches whilst using stairs or needing assistance from another person to use stairs. The medical evidence corroborates the Applicant's use of walking aids to move around.

   39.The Secretary contends that the corroborated evidence indicates that the Applicant has some difficulty walking to local facilities, walking around a shopping mall or supermarket without a rest, has some difficulty climbing stairs and that the Applicant is able to mobilise effectively when using a walking stick.  Therefore, the Secretary contends the appropriate rating under Table 3 is 5 points.

7. Importantly the Tribunal notes the Applicant self-reported a number of symptoms which were not corroborated by medical reports.  These medical reports were prepared by medical practitioners, orthopaedic surgeons, radiologists and a senior physiotherapist.

8. Having considered all the evidence before it the Tribunal determines that the knee condition at the time of the Qualification Period had a mild functional impact and generated five impairment points.

   Arthritis

9. The Tribunal notes the diagnosis at (T30, 184-5) in which Dr Low comments:

   I note in Mr Jeffcote’s report dated 27 November 2013 that the MRI scan showed little change in the osteoarthritis at the patellofemoral joint but she did have two small meniscal tears. …. Ms Ashley stated she was referred to a rheumatologist. … I note she was placed on various immune-suppressants by the rheumatologist after she was diagnosed with mono-articular arthritis.

10. The Tribunal accepts that this condition was fully diagnosed at the time of the Qualification Period however there is no evidence before the Tribunal to allow it to determine whether it was fully treated and stabilised.

    Spinal

11. The Tribunal notes the JCA report of 13 June 2017 (T56, 287) states that:

    She described minimal functional impacts associated with this condition, reporting that overhead activities are okay (she states she is able to hang out laundry) and has no difficulty turning her head left to right.  Ms Ashley reports that she uses a ‘pick up stick’ to pick up items at floor level however it was established that this was in relation to her difficulty bending her knee and not her spinal condition.  She states that she is able to pick up items from coffee table level.

12. The Tribunal finds this condition was FDTS.  It notes the condition has been the subject of medical treatment as an in-patient in 2014 (T27-T29, 167-181).  The Tribunal concurs with the Respondent’s submission that there is no evidence of any form of targeted treatment.

13. The Tribunal finds this condition had minimal functional impact and therefore no impairment points were generated at the time of the Qualification Period.

    Mental health

14. The Tribunal notes the JCA report of 13 June 2017 commentary (T56, 287):

    There is no recent evidence of this condition.  A past medical certificate (doctor’s name illegible), dated 21/9/11, reported severe depression which had been present for years. … Ms Ashley has not consulted with a psychiatrist or a clinical psychologist and treatment has been limited to antidepressant medication only.

15. The Tribunal notes the ARO report (at T68, 311) indicates that the Applicant did not seek specialist treatment until after the Qualification Period.

16. Dr Fitzgerald (Clinical Psychologist) recommended in a report dated 31 October 2017 (T70, 318) that the Applicant “might benefit from a referral to see a psychiatrist.”

17. The Tribunal finds this medical condition was not FDTS at the time of the Qualification Period.

    Whether the Applicant has a continuing inability to work – s 94(1)(c) of the Act

18. The Tribunal finds that the Applicant had a total of five impairment points under the Impairment Tables and therefore failed to satisfy s 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider whether the Applicant has a continuing inability to work pursuant to s 94(1)(c) of the Act.

19. For the sake of completeness however; should the Tribunal find that the Applicant satisfied s 94(1)(b) of the Act, the Applicant would nevertheless have failed to satisfy s 94(1)(c) of the Act. Pursuant to s 94(3B) of the Act, the Applicant did not have a severe impairment, and, pursuant to s 94(3C) of the Act, the Applicant did not actively participate in a POS.

20. The Applicant lodged her application for DSP on 15 March 2017.  To have actively participated in a POS, this must have occurred for 18 months in the 36 months prior to the date of the claim.  There is no evidence before the Tribunal to indicate this occurred.

21. Under cross-examination the Applicant confirmed that she had not participated in a POS.

22. On this basis it is highly unlikely this application would have succeeded regardless of whether 20 impairment points were assigned.

    DECISION

23. The decision under review is affirmed.

I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

...........[Sgd].....................................................

Associate

Dated: 12 February 2019

Date of hearing:	25 January 2019
Applicant:	In person
Counsel for the Respondent:	Ms Underhill
Solicitors for the Respondent:	Mills Oakley