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

Bernasconi and Secretary, Department of Social Services (Social services second review) [2017] AATA 1727 (10 October 2017)
Division:GENERAL DIVISION
File Number: 2016/5558
Re:Leianne Bernasconi (now Leianne Reha)
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:10 October 2017
Place:Brisbane

The decision under review is set aside and substituted with a decision that Mrs Reha qualified for DSP during the Qualification Period.
.........................[Sgd]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether severe impairment – whether a continuing inability to work - decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
SECONDARY MATERIALS
Guide to Social Security Law, the Family Assistance Guide (2016, Cth)
REASONS FOR DECISION
Member D K Grigg
10 October 2017
INTRODUCTION

On 8 December 2015 Ms Bernasconi (now Mrs Reha) lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]
·Landau Kleffner Syndrome
·bad lower back which required surgery - still on lots of medication for pain
·lumbar fusion
·depression caused by pain
·bad hip which required surgery and medication
[1] Exhibit 1, T Documents, T 39, pages 160 – 192, Mrs Reha’s Claim for DSP dated 8 December 2015.
Mrs Reha claimed that these conditions affect her ability to work because they affect her “learning” and movement ability.[2] Mrs Reha is cared for by her partner.
[2] Exhibit 1, T Documents, T 39, page 189, Mrs Reha’s Claim for DSP dated 8 December 2015.
The Department of Human Services (“Centrelink”) rejected Mrs Reha’s claim for DSP on the basis that she did not have impairments with a total impairment rating of 20 points or more.[3]
[3] Exhibit 1, T Documents, T 44, pages 210 – 211, Rejection of claim for DSP dated 29 April 2016.
Claim History
Mrs Reha sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mrs Reha’s medical conditions were not permanent.[4]
[4] Exhibit 1, T Documents, T 45, pages 212 – 217, Decision of ARO dated 12 May 2016.
Mrs Reha then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD also rejected Mrs Reha’s claim and affirmed the ARO’s decision on 15 September 2016.[5]
[5]Exhibit 1, T Documents, T2, pages 7 – 14, SSCSD’s Decision and Reasons for Decision dated 15 September 2016.
Mrs Reha has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1 – 6, Application for Review of Decision dated 17 October 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mrs Reha must have a physical, intellectual or psychiatric impairment;
(b)Mrs Reha’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[7]
(c)Mrs Reha has a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mrs Reha meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 8 December 2015), unless Mrs Reha becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[8] Therefore, to qualify for DSP Mrs Reha must have met the Section 94 Requirements between 8 December 2015 and 7 March 2016 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mrs Reha’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Date.[9]
DID MRS REHA HAVE A SEVERE PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
Mrs Reha’s medical conditions
[10] Determination, s 3.
Spinal Condition
In 2009 Dr Roger Burgess, Diagnostic Radiologist, reported that Mrs Reha had:[11]
“grade I spondylolisthesis of L5 forwards on S1, almost a grade II. Pars intra–articularis defects can be seen on each side of the L5 neural arch…spina bifida occulta in the L5 posterior neural arch”.
[11]Exhibit 1, T Documents, T5, page 89, Report of Dr Burgess dated 7 February 2009; T6, page 90, Report of Dr Burgess dated 12 February 2009.
An MRI of Mrs Reha’s lumbar spine performed in May 2009 showed a “small broad-based posterior disc herniation at the L4/5 level”.[12]
[12] Exhibit 1, T Documents, T7, page 91, MRI report dated 11 May 2009.
Mrs Reha was referred to the orthopaedic spinal unit at Queen Elizabeth II Jubilee Hospital in or around June 2009.[13] Dr Alec Mehl then wrote to the orthopaedic spinal unit in September 2009 requesting that Mrs Reha’s place on the waiting list be given priority in view of “the increasing severity of her lower back pain”. Dr Mehl reported that Mrs Reha has pain radiating right down both thighs and into her lower legs and has severe cramps in both calves at least once a week and tingling radiating from her lower back into her toes.[14]
[13] Exhibit 1, T Documents, T8, page 92, Report of Dr Kennedy dated 18 June 2009.
[14] Exhibit 1, T Documents, T9, page 93, Letter from Dr Mehl to orthopaedics spinal unit dated 15 September 2009.
Dr Mehl reported in July 2010 that Mrs Reha had chronic low back pain, known spondylosisthesis and degenerative lumbar spine. Dr Mehl said that Mrs Reha was currently treating her spinal condition with analgesics and anti-inflammatory medications and that there was no additional future plans for treatment. Dr Neil reported that Mrs Reha’s spinal condition was likely to impact on her ability to function for more than 24 months and is expected to remain unchanged.[15]
[15] Exhibit 1, T Documents, T 15, pages 102 – 109, Report of Dr Mehl dated 13 July 2010.
An MRI of Mrs Reha’s lumbar spine performed in April 2011 showed a “potential compression of the L5 nerve roots both in the sub articular recesses of L4/5 and in the exit foramina at L5/S1 secondary to posterior disc bulges and an anterolisthesis at the latter level. The descending S1 nerve roots are just contacted by a small disc at L5/S1 with no further neural compressive lesion”.[16]
[16] Exhibit 1, T Documents, T 17, pages 116 – 117, MRI report dated 19 April 2011.
Mrs Reha was finally reviewed by the orthopaedic spine clinic in July 2011 Dr Libby Anderson, Orthopaedic PHO, in Dr John Albietz’s Orthopaedic Surgeon, reported that:[17]
(a)Mrs Reha has “lower back pain from her mechanically unstable spine”;
(b)it was recommended that Mrs Reha have all of her children prior to any back surgery;
(c)Mrs Reha “is in significant pain. Therefore I have placed on the waiting list for an L4 – S1 posterior stabilisation plus/minus interbody fusion”;
(d)there is a risk that the surgery will not resolve the pain entirely and in fact could make a worst;
(e)the waiting list time for surgery of this kind is nearing 12 months;
(f)Mrs Reha was due to be reviewed by the orthopaedic outpatient department in a further 6 months time.
[17] Exhibit 1, T Documents, T 18, page 118, Report of Dr Anderson dated 15 July 2011.
Dr Moore, General Practitioner, reported in November 2011 that Mrs Reha was still suffering from severe lower back pain and pain on movement and that she was awaiting surgery.[18]
[18] Exhibit 1, T Documents, T 20, pages 120 – 127, Report by Dr Moore dated 17 December 2011.
Dr Aznar, General Practitioner, reported in October 2012 that Mrs Reha was still experiencing lower back pain, leg pains and numbness of her legs and that she had been booked in for surgery.[19]
[19] Exhibit 1, T Documents, T 23, page 137, Report by Dr Aznar dated 9 October 2012.
Mrs Reha had an L4/5 to S1 fusion of her spine using interpenduncular screws in 2012.[20]
[20] Exhibit 3, CT Scan Report dated February 2017.
In 2014 Mrs Reha attended a persistent pain management service in relation to her ongoing back pain. Dr Ganapam, Pain Registrar for Dr Aston Wan, reported that:[21]
(a)Mrs Reha was referred for physiotherapy assessment to see if there was an exercise program that would benefit Mrs Reha while waiting for surgery;
(b)no psychology input was required;
(c)she educated Mrs Reha about side effects of heavy use of narcotics; and
(d)she recommended weaning off the fentanyl gradually and increasing the Lyrica gradually.
[21] Exhibit 1, T Documents, T 24, pages 138 – 139, Report of Dr Ganapam dated 27 November 2014.
Mrs Reha attended the orthopaedic outpatients’ clinic again in February 2015 regarding her spinal pain. Dr Aponso, spinal fellow for Dr John Albietz, reported that:[22]
(a)Mrs Reha is still having numbness and tingling shooting down the left leg all the way to the top of her foot, ridicular sharp shooting pain associated with this and some residual back pain;
(b)her neck symptoms have largely settled and are not a big feature of her problem;
(c)her main problem is primarily the left hip, followed by residual numbness in the left leg;
(d)Mrs Reha said that her left leg numbness was not a big issue for her and that she was quite amenable to waiting and having hip surgery done and then addressing the left leg symptoms if they prove to be an ongoing problem;
(e)he recommended a follow-up in 6 months time;
(f)he wondered about a targeted L5 nerve root injection as a possible diagnostic and therapeutic measure which could be explored at next review.
[22] Exhibit 1, T Documents, T 29, pages 144 – 145, Report of Dr Aponso dated 13 February 2015.
Another CT scan of Mrs Reha’s lumbosacral spine was taken in October 2015 and found:[23]
…posterior fusion of L4/5, L5/S1 noted which appears intact and alignment at this level is satisfactory and unchanged since the last study. No acute disc herniation noted. No spinal stenosis noted. No nerve root impingement noted. Artefacts [from the hardware] obscure detail at L4/5, L5/S1
[23] Exhibit 1, T Documents, T 38, page 158, CT Report dated 27 October 2015.
In February 2017 a further CT scan indicated that the attachment of the S1 surgical thread to the posterior fixation device appeared to have fractured bilaterally at the base of the screws.[24]
[24] Exhibit 3 CT scan report dated February 2017.
Left Hip
Mrs Reha attended the orthopaedic outpatients’ clinic again in February 2015 regarding her long-standing left hip pain. Dr Pawel Sowula, Orthopaedic Resident for Dr Dalton, reported that:[25]
(a)Mrs Reha has been living with hip pain for over 2 years and it significantly affects the activities of daily living;
(b)an MRI of her left hip showed a labral tear could be causing some of her symptoms;
(c)she is also experiencing symptoms of pain which are unlikely related to her left hip pathology (“As you are aware, Leanne is also being seen at the Princess Alexandra Hospital regarding her spinal pathology”);
(d)Mrs Reha stressed that her pain is getting significantly worse and becoming very difficult to manage with her multiple analgesics;
(e)Mrs Reha is having significant difficulty mobilising and find it very difficult to sleep due to the pain; and
(f)Mrs Reha is on the waiting list for a left hip arthroscopy which will hopefully take place in March 2015.
[25] Exhibit 1, T Documents, T 28, page 143, Report of Dr Sowula dated 9 February 2015.
Mrs Reha had a hip operation but was still experiencing some numbness. Dr Bin Wang, Orthopaedic Intern for Dr Albietz, reported in April 2015 that he did not think there was any further surgical intervention required.[26]
[26] Exhibit 1, T Documents, T 30, page 146, Report of Dr Wang dated 30 April 2015.
A further ultrasound of Mrs Reha’s hip was performed in June 2015 and found suggestions of a trochanteric bursitis.[27]
[27] Exhibit 1, T Documents, T 31, page 147, Ultrasound report dated 2 June 2015.
Four months after the left hip arthroscopy Mrs Reha was reviewed by the orthopaedic outpatients’ clinic. Dr Stephen Torbey, Orthopaedic Registrar for Dr Dalton, reported that Mrs Reha was making steady progress, her groin pain had improved although she did report some ongoing pain at the lateral aspect of the hip from time to time which comes on usually after walking or other activities. Dr Torbey reported that they are happy with Mrs Reha’s progress and advised her to continue with her exercise and physiotherapy.[28]
[28] Exhibit 1, T Documents, T 33, page 149, Report of Dr Taulbee dated 13 July 2015.
A CT scan of this Reha’s right hip was taken in October 2015 and found nothing remarkable.[29]
[29] Exhibit 1, T Documents, T 38, page 159, CT report dated 27 October 2015.
Neck
A CT scan of Mrs Reha’s cervical spine in December 2014 showed a “slight narrowing of the C5/C6 intervertebral disc with a shallow, broad-based right paracentral posterior disc protrusion”.[30]
[30] Exhibit 1, T Documents, T 25, page 140, CT report dated 29 December 2014.
A subsequent MRI of the cervical spine however identified no pathology.[31]
[31] Exhibit 1, T Documents, T 26, page 141, MRI report dated 2 January 2015.
Shoulder
An ultrasound of Mrs Reha right shoulder in January 2015 showed a “bursitis is present”.[32]
[32] Exhibit 1, T Documents, T 27, page 142, Ultrasound report dated 20 January 2015.
Head/Sinus
Following severe right sided jaw pain and headaches Mrs Reha had a CT scan of her head and sinuses in August 2015. The CT scan found “acute on chronic right maxillary sinusitis”.[33]
[33] Exhibit 1, T Documents, T 34, Page 150, CT report dated 6 August 2015.
Language and Communication Disorder - Landau Kleffner Syndrome (“LKS”)
Dr Mehl reported in July 2010 that Mrs Reha had LKS and that she had:[34]
(a)been diagnosed in 2001;
(b)been found to function at the level of a 9 to 10-year-old when she was 16 years of age;
(c)a limited capacity to communicate with others;
(d)delayed development in language, mathematics; and
(e)poor arithmetic skills, including budgeting.
[34] Exhibit 1, T Documents, T 15, pages 102 – 109, Report of Dr Mehl dated 13 July 2010.
Dr Mehl reported that she also had some impairment in cognitive function and that Mrs Reha’s LKS was likely to impact on her ability to function for more than 24 months and will remain unchanged.
In 2016 Mrs Reha was assessed by a psychologist from the Department of Human Services following a Job Capacity Assessment (“Department Psychologist”). The Department Psychologist reported that:[35]
[35] Exhibit 1, T Documents, T 42, pages 196 – 201, Centrelink psychological assessment report dated 19 April 2016.
(a)Mrs Reha was diagnosed with LKS at age 18 months;
(b)Mrs Reha said she suffered from labile mood and was frequently anxious;
(c)she administered a variety of tests that assess adaptive skills and intellectual functioning and that as a result of those tests:
(i)Mrs Reha’s general cognitive ability is within the borderline range of intellectual functioning;
(ii)Mrs Reha’s overall thinking and reasoning abilities exceed those of only approximately 2% of individuals at age;
(iii)Mrs Reha may experience great difficulty in keeping up with her peers in a wide variety of situations that require thinking and reasoning abilities, and in situations that require verbal skills;
(iv)Mrs Reha has comparatively low scores in verbal comprehension abilities and processing speed are not unexpected given her history of LKS; and
(v)a diagnosis of a specific learning disability on neurocognitive deficit was beyond the scope of this assessment.
Conclusion on Impairments
The Secretary accepts that Mrs Reha suffers from Impairments for the purposes of section 94(1)(a) at the Qualification Date.[36]
[36] See Exhibit 2, Secretary's Statement of Facts and Contentions dated 24 August 2017, para 28.
In light of the above medical evidence I conclude that at the Qualification Date Mrs Reha suffered a Spinal and Hip Impairment, a Shoulder Impairment, a Sinus Impairment and an Intellectual Function Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
In relation to Mrs Reha’s neck condition, an MRI of the cervical spine identified no pathology[37], therefore I find that this condition is not an Impairment for the purposes of the Act.
[37] Exhibit 1, T Documents, T 26, page 141, MRI report dated 2 January 2015.
DOES MRS REHA HAVE A CONTINUING INABILITY TO WORK: 94(1)(C)?
Section 94(2) of the Act sets out when a person has a continuing inability to work because of an impairment. It provides:
(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.
Note: For work see subsection (5).
Therefore, to satisfy section 94(1)(c), Mrs Reha must have:
(a)completed a program of support and have an impairment which is sufficient to prevent her from undertaking a training activity during the next 2 years or a training activity is unlikely, because of the impairment, to enable her to do any work independently of a program of support within the next 2 years; or
(b)a “severe impairment” which is sufficient to prevent her from undertaking a training activity during the next 2 years or a training activity is unlikely is unlikely, because of the impairment, to enable her to do any work independently of a program of support within the next 2 years.

The requirements for a program of support, as referred to in s 94(3C) of the Act, are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in section 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (section 8, POS Determination).
The relevant period in this case is the 36 months prior to the date of the DSP Claim. Mrs Reha must have actively participated in a program of support for at least 18 months between 8 December 2012 and 8 December 2015. Centrelink records confirm that Mrs Reha has never enrolled in a POS.[38] Mrs Reha accepts she does not meet the requirements for a program of support.
[38] Exhibit 1, T Documents, T50, page 236, Program of Support Summary.
The Secretary concedes that Mrs Reha’s impairments are likely to prevent her from working or undertaking a training activity within the next 2 years and relies on the assessment of Dr Kanagaratnam from the Health Professional Advisory Unit (“HPUA”).[39] I agree with that concession.
[39]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 24 August 2017, para 58, Attachment A, Report of Dr Kanagaratnam dated 14 March 2017.
The issue to be determined is whether one of Mrs Reha’s impairments attracts a 20-point Impairment Rating under one single Impairment Table (i.e. it is a “severe impairment” as defined in s 94(3B) of the Act). If Mrs Reha has a “severe impairment” she will qualify for DSP.
DOES MRS REHA’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[40] They are function based[41] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[42]
[40] Determination, s 4(2) and 5(2)(a).
[41] Determination, s 5(2)(b) and (c).
[42] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[43]
(a)Mrs Reha’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[43] Determination, see s 6(3).
Mrs Reha’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[44]
(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.
[44] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[45] the following must be considered:[46]
(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.
[45] For the purposes of ss 6(4)(a) and (b) of the Determination.
[46] Determination, see s 6(5).
A condition is fully stabilised[47] if:[48]
(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[49]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[47] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[48] Determination, see s 6(6).
[49] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables I must first consider Mrs Reha’s medical history, in relation to the condition causing the Impairments.[50]
[50] Determination, see s 6(2).
IS MRS REHA’S LKS IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
Mrs Reha has had LKS since childhood. The Secretary does not dispute that this condition was fully diagnosed, despite the lack of medical reports from the time of diagnosis. It is clear from the medical evidence that is available that there is no dispute that Mrs Reha has been fully diagnosed with LKS.[51]
[51] Exhibit 2, Secretary's Statement of Facts and Contentions dated 24 August 2017, para 39.
The Secretary also conceded at the hearing that Mrs Reha’s LKS Impairment was fully treated and fully stabilised during the Qualification Period.
Dr Mehl reported that Mrs Reha’s LKS was likely to impact on her ability to function for more than 24 months and is expected to remain unchanged.
I find that Mrs Reha’s LKS Impairment is permanent for the purposes of the Act and an Impairment Rating can be assigned.
Evidence Identifying the Loss of Function
Mrs Reha underwent specialist psychological testing in April 2016. The Department Psychologist who performed the assessment:[52]
(a)conducted a face-to-face assessment with Mrs Reha;
(b)had her husband complete the Adaptive Behaviour Assessment System form, Third Edition (“ABAS-3”); and
(c)administered the Wechsler Adult Intelligence Scale Fourth Edition (WAIS IV).
[52] Exhibit 1, T Documents, T 42, pages 196 – 201, Centrelink psychological assessment report dated 19 April 2016.
The Department Psychologist explained in her report that the ABAS-3:-
·provides “a comprehensive assessment of adaptive skills for individuals”
·“results yield a normative comparison between the examinee’s adaptive behaviour and the adaptive behaviour of someone typical of same-age individuals”
·is divided into 10 skill areas including communication, home living, health and safety and social
·skill areas determine composite scores in Conceptual, Practical and Social behaviours yielding a General Adaptive Composite (“GAC”) score
The Department Psychologist explained in her report that the WAIS IV:
(a)is an individually administered clinical instrument for the assessment of the intellectual functioning of adults;
(b)measures a number of indices including verbal comprehension, perceptual ability, working memory and processing speed; and
(c)yields a global composite of the indices known as a Full-Scale Intellectual Quotient (“FSIQ”).
The results of the WAIS IV showed that:
·Mrs Reha’s general cognitive ability is within the borderline range of intellectual functioning;
·Mrs Reha’s overall thinking and reasoning abilities exceed those of only approximately 2% of individuals her age;
·Mrs Reha has an FSIQ of 70 with a 95% confidence level = 69 – 81;
·Mrs Reha may experience great difficulty in keeping up with her peers in a wide variety of situations that require thinking and reasoning abilities, and in situations that require verbal skills;
·there was a meaningful difference between Mrs Reha’s ability to reason with and without the use of words as well is a deficit in processing speed in comparison to other abilities which would render a FSIQ an inaccurate representation of her cognitive abilities. The psychologist notes that this “is not unexpected given her history” with LKS and that it is “more accurate to compare the differences in functioning in each of the indices”;
·Mrs Reha has comparatively low scores in verbal comprehension abilities and processing speed are not unexpected given her history of LKS;
·Mrs Reha’s verbal reasoning abilities are in the borderline range and above those of only 4% of her peers;
·Mrs Reha’s non-verbal reasoning abilities are in the low average range and above those of 14% of her peers;
·Mrs Reha’s ability to sustain attention, concentrate, and exert mental control is in the low average range and she performed better than approximately 9% of her peers in this area;
·Mrs Reha’s ability in processing simple or routine visual material without making errors is in the extremely low range when compared to her peers and she only performed better than approximately 0.2% of her peers on the processing speed tasks. Psychologists notes that this indicates “a significant deficit for Mrs Reha and will affect many elements of daily living”.
·[Mrs Reha’s] general cognitive ability is within the borderline range (FSIQ = 70) which is not considered to be an accurate representation of the clients functioning due to significant differences between the index scores. [Mrs Reha’s] comparatively lower scores in verbal comprehension abilities and processing speed are not unexpected given her history of [LKS]; a neurological condition affecting speech and communication, often creating other deficits. The spread of her index ratings reflects learning difficulties.
The results of the ABAS-3 showed that:
·Mrs Reha has a general cognitive ability within the “extremely low range of functioning”.
·Mrs Reha has a GAC of 59.
In summary the Department Psychologist reported that:
[Mrs Reha] is a woman who has a number of complex health factors and limitations which will affect her through her life. She is able, despite these limitations, to live a rich and full life… Given [her] intellectual ability, and the further complication of her other health factors, her ability to initiate engagement in work and social settings is likely to be limited in the long term. She will require hands-on approach to developing new skills. As [she] is vulnerable to exploitation, she will require an advocate to act on her behalf. She will also require the ongoing support of her husband and carer.
I note that there was no challenge made by the Secretary to the Department Psychologist’s report.
Relevant Impairment Table and Impairment Rating
The issue is what is the relevant table for the purposes of assigning an impairment rating to Mrs Reha’s LKS Impairment.
Given the psychological assessments performed by the Department Psychologist, Table 9, which deals with intellectual function, would appear to be relevant.
The introduction to Table 9 provides:
·Table 9 is to be used where the person has a permanent condition resulting in low intellectual function (IQ score of 70 to 85) resulting in functional impairment, which originated before the person turned 18 years of age.
·An assessment of the condition must be made by an appropriately qualified psychologist.
·An assessment of intellectual function is to be undertaken in the form of a Wechsler Adult Intelligence Scale IV (WAIS IV) or equivalent contemporary assessment. This assessment should be conducted after the person turns 16 years of age. A Wechsler Intelligence Scale for Children (WISC) assessment completed between the ages of 12 and 16 years is also acceptable for people aged 18 years or under at the time of assessment.
·An assessment of adaptive behaviour is to be undertaken in the form of either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R), the Vineland Adaptive Behaviour Scales (Vineland-II) or any other standardised assessment of adaptive behaviour that:
oprovides robust standardised scores across the three domains of adaptive behaviour (conceptual, social and practical adaptive skills);
ohas current norms developed on a representative sample of the general population;
odemonstrates test validity and reliability; and
oprovides a percentile ranking.
·Consideration of the adaptation of recognised assessments of intellectual function for use with Aboriginal and Torres Strait Islander peoples is required.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s development, intellectual function, adaptive behaviour or participation in programs;
ointerviews with the person and those providing care, support or treatment to the person.
·Diagnosis of a learning disorder such as dyslexia does not equate to a diagnosis of intellectual disability.
·A person with Autism Spectrum Disorder, Fragile X Syndrome or Foetal Alcohol Spectrum Disorder who also has a low IQ should be assessed under this Table.
The Secretary submits that, while Mrs Reha had been assessed using the WAIS IV, because the Department Psychologist reported that the FSIQ score of 70 was inaccurate Table 9 cannot be used to assign an impairment rating. Table 9 requires that the person must have an IQ score of between 70 to 85. However, while the Department Psychologist noted that there may be inaccuracies, resulting in part because of her LKS, she concluded that Mrs Reha had an FSIQ between 69 – 81 which was 95% accurate. As a result, I find that Table 9 can be applied to Mrs Reha’s LKS impairment.
Table 9 provides that there is a severe impact on intellectual function, attracting an impairment rating of 20 points, if at least one of the following applies:
(a)the person is assessed as having a score of adaptive behaviour of between 50 to 70, on either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R) or the Vineland Adaptive Behaviour Scales (Vineland-II); or
(b)the person is assessed as being within the percentile rank of 2 on a standardised assessment of adaptive behaviour.
Table 9 provides that there is an extreme impact on intellectual function, attracting and impairment rating of 30 points, if at least one of the following applies:
(a)the person is assessed as having a score of adaptive behaviour of less than 50, on either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R) or the Vineland Adaptive Behaviour Scales (Vineland-II); or
(b)the person is assessed as being within the percentile rank of less than 2 on a standardised assessment of adaptive behaviour.
Mrs Reha had an adaptive behaviour score of 59 and as a result Mrs Reha’s LKS Impairment attracts an Impairment Rating of 20 points under Table 9.
Mrs Reha’s LKS Impairment is a severe impairment for the purposes of the Act and as a result she qualifies for DSP.
Regardless of the arguability of the applicability of Table 9, I also find that Table 7, Brain Function, is relevant. The introduction to Table 7 provides that “it is to be used where the person has a permanent condition resulting in functional impact related to a neurological…function”. The Department Psychologist reported that LKS is a neurological condition. I also note that Table 7 should not be used when a person has already been assessed under Table 9, unless the person has an additional condition affecting neurological or cognitive function. Mrs Reha has severe difficulties in problem solving, planning, decision-making, comprehension, and memory and needs frequent assistance and supervision. Given the results of the psychological assessments performed by the Department Psychologist I find that the evidence supports an Impairment Rating under Table 7 of 20 points.
Therefore, Mrs Reha qualifies for DSP under either Table 9 or Table 7 in relation to her LKS Impairment.
As a result of my finding I do not need to consider Mrs Reha’s other impairments for the purposes of this application.
DECISION
Mrs Reha’s claim succeeds because she did qualify for DSP during the Qualification Period under s 94.
The decision under review is set aside and substituted with a decision that Mrs Reha qualified for DSP during the Qualification Period.

I certify that the preceding 76 (seventy - six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

......................[Sgd]..................................................
Associate
Dated: 10 October 2017

Date of hearing: 29 September 2017

Applicant: By Phone

Advocate for the Respondent: Mr Nick Warren

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1727

10 October 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	29 September 2017
Applicant:	By Phone
Advocate for the Respondent:	Mr Nick Warren
Solicitors for the Respondent:	Department of Human Services