Assaf and Secretary, Department of Social Services (Social services second review)
[2016] AATA 748
•27 September 2016
Assaf and Secretary, Department of Social Services (Social services second review) [2016] AATA 748 (27 September 2016)
Division
GENERAL DIVISION
File Number(s)
2016/0122
Re
Robah Assaf
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A Poljak
Date 27 September 2016 Place Sydney The decision under review is affirmed.
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Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation of applicant’s pension –whether applicant’s impairments are rated 20 points or more under the Impairment Tables – myotonic dystrophy awarded 5 points under Table 1 – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 80, 118(13)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member A Poljak
27 September 2016
On 15 December 2015, the Administrative Appeals Tribunal, Social Services and Child Support Division (“SSCSD”), affirmed the decision of the Department of Human Services (“the Department”), made on 24 July 2015, to cancel the applicant’s disability support pension (“the Decision”).
The basis of the decision was that the applicant, Miss Assaf, ceased to satisfy the criteria for the disability support pension set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”) at the date of cancellation on 24 July 2015 (“Date of Cancellation”). Miss Assaf seeks review of this Decision.
In assessing Miss Assaf’s continued qualification for the disability support pension in 2015, the Department was required to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”), pursuant to sections 27(3) and (4) of the Act. The Impairment Tables are stricter than the tables which applied when Miss Assaf was first granted the disability support pension on 31 December 2009.
The power of the Secretary to cancel Miss Assaf’s disability support pension is contained in section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). Pursuant to section 118(13) of the Administration Act, the cancellation decision takes effect on the day on which it was made, in this case, on the date of cancellation.
Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Impairment Tables; and a continuing inability to work as defined in the Act.
Miss Assaf had to satisfy these criteria at the date of cancellation.
The Secretary accepts that Miss Assaf suffered from a number of conditions including myotonic dystrophy, non-insulin dependent diabetes, polycystic ovary syndrome and a carotid artery condition at the date of cancellation. She therefore satisfies section 94(1)(a) of the Act.
In addition to the T-documents, lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), Miss Assaf tendered at hearing the following additional documents:
(a)Letter dated 15 June 2016 from Professor Corbett;
(b)Letter dated 23 February 2016 from Dr Shiner; and
(c)Report of Dr Shiner dated 23 February 2016.
IMPAIRMENT TABLES
The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Sections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, fully treated, fully stabilised, and it will more likely than not persist for more than two years.
In assessing whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) instructs that a decision-maker must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred, and whether treatment is still continuing or is planned in the next two years.
For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years.
Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:
(c) 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 (emphasis added).
For multiple conditions causing a common problem, sections 10(5) and 10(6) of the Impairment Tables provide:
(5) 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.
(6) …it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
MYOTONIC DYSTROPHY
The Secretary accepts, and I am satisfied, that the condition of myotonic dystrophy was fully diagnosed, treated and stabilised at the date of cancellation. This finding is supported by the report of Professor Corbett dated 10 August 2015.
Table 1 of the Impairment Tables assesses the functional impact of impairment when performing activities requiring physical exertion or stamina. Table 2 of the Impairment Tables assesses the functional impact of impairment on activities requiring the use of hands or arms. These are the relevant tables for this condition as the clinical features of myotonic dystrophy are muscle weakness, fatigue and tiredness.
In a medical report for mobility allowance dated 20 March 2015, Dr El Jamm reports that Miss Assaf had serious difficulty in walking 400 m and could not negotiate a large flight of stairs.
Miss Assaf undertook a Job Capacity Assessment (“JCA”) on 16 June 2015. The JCA report, dated 19 June 2015, records that Miss Assaf reported she was capable of performing household activities (e.g. cooking, cleaning, washing), attending the grocery shops with her husband, walking alone to the corner store, driving and independent self-care. She was observed climbing a flight of stairs without noticeable difficulty.
At hearing, Miss Assaf told the Tribunal that, at the date of cancellation, she was capable of performing household tasks including vacuuming, cleaning dishes, laundry (washing and drying), light cooking and making her bed. She said that she was able to drive and could use public transport. She was independent with self-care. She could go to the grocery shop alone and was able to reach items on higher shelves without assistance. She said she was able to hold a pen, could button up shirts and pants and could lift a 1 L bottle of milk.
Miss Assaf told the Tribunal that she was working four to five days a week between four and five hours at a time at the Date of Cancellation. Her shift often involved her standing for extended periods of time but she was able to take breaks as needed.
There is no evidence before me to indicate that there is any rateable functional impairment in the category of functional impact of impairment on activities requiring the use of hands or arms.
I am satisfied that an impairment rating of five points under Table 1 and zero points under Table 2 of the Impairment Tables is appropriate.
OTHER CONDITIONS
Miss Assaf claims to suffer from impairment resulting from additional conditions including diabetes, polycystic ovary syndrome, left proximal carotid dilation, asthma and back, neck and shoulder pain.
The Secretary contends that there is no evidence before me to support any rateable functional impairment as a result of the conditions. I agree. It follows that an impairment rating cannot be assigned for these conditions.
CONTINUING INABILITY TO WORK
As Miss Assaf’s impairments do not rate 20 or more points on the Impairment Tables, it is not necessary to consider whether she also had a continuing inability to work at the date of cancellation. However, I note that based on the evidence before me, and the evidence given by Miss Assaf’s at hearing, she was working at McDonald’s four to five days a week (between four and five hours at a time) at the date of cancellation. This amounts to approximately 16-25 hours per week.
CONCLUSION
For all of the reasons given above, I affirm the decision under review. Miss Assaf may apply for the disability support pension again at any time.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated 27 September 2016
Date(s) of hearing 16 August 2016 Advocate for the Applicant Abed Al Hamid Kaddour Solicitors for the Respondent G Lozynsky, Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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