Bird and Secretary, Department of Family and Community Services

[2004] AATA 1286

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1286

ADMINISTRATIVE APPEALS TRIBUNAL          Nº V2004/303

GENERAL ADMINISTRATIVE  DIVISION

Re:   RYAN FORSTER BIRD

Applicant

And    SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:             3 December 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY – disability support pension – misleading information from the respondent with failure to fully inform – application to claim compensation for detriment caused by defective administration under Compensation for Detriment caused by Defective Administration scheme

Social Security Act 1991 s 94

REASONS FOR DECISION

3 December 2004  Miss E.A. Shanahan, Member

1. This is an application by Ryan Forster Bird (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 23 January 2004. The SSAT affirmed the decision of an authorised review officer (ARO) of the respondent, dated 30 October 2003 that the applicant did not qualify for disability support pension because he could not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act).   

2. Mr D. Connell of counsel represented the applicant and Mr S. Meehan, an advocate of the Centrelink Service Recovery Team, represented the respondent.  The applicant's father (Russell Bird) also lodged an application with the Administrative Appeals Tribunal (application number V2004/302) which was heard and decided on the same day as this application.  However, the applicant and his father requested separate decisions.

3. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T19) and  a bundle of documents relating to the applicant’s father's communications with Centrelink (which was marked Exhibit A1 in application number V2004/302, and are relevant to this application).  The applicant did not attend the hearing and his father gave evidence on his behalf.

BACKGROUND TO THE APPLICATION

1. The applicant became acutely ill in 2002 and was diagnosed as suffering from lymphoblastic lymphoma (T cell variety) on 16 May 2002.  At the time he was 17 years old and undertaking the Victorian Certificate of Education (VCE).  He has since undergone intensive medical treatment, including surgery to obtain a tissue diagnosis, chemotherapy, radiotherapy and stem cell bone marrow transplantation.  Since the bone marrow transplant, the applicant's health has improved markedly.

2. In September 2002 the applicant's mother inquired at Centrelink as to any allowances or payments that were available to her son. In a statutory declaration dated 4 October 2003 (T5 p16), the applicant’s mother stated that she was told that the only allowance available to her son would be a carer allowance for one of his parents. On 29 September 2003 the applicant's father attended a Centrelink office and made similar inquiries, following which the applicant lodged a claim for disability support pension on 9 October 2003. On 21 October 2003 the respondent rejected the applicant's claim because he could not satisfy s 94(1)(b) of the Act. The applicant could not satisfy s 94(1)(b) of the Act because his condition could not be assigned an impairment rating under the Tables For The Assessment Of Work-Related Impairment for Disability Support Pension (the Impairment Tables), until such time as his condition could be considered fully stabilised. An ARO affirmed this decision on 30 October 2003. The applicant subsequently obtained youth allowance. The applicant lodged an appeal to the SSAT who affirmed the decision under review on 23 January 2004 on the basis that the applicant did not satisfy s 94(1) of the Act.

3. The applicant contended that his illness was of such severity and so life‑threatening that he should have been assigned an impairment rating from the time of his diagnosis, or at least in September 2002.  The applicant lodged an application for review by the Tribunal on 3 March 2004.

EVIDENCE BEFORE THE TRIBUNAL

Mr Russell Bird

1. Mr Russell Bird is the applicant's father and gave evidence that his son had been diagnosed with lymphoblastic lymphoma (T cell variety) on 16 May 2002. Following which he underwent prolonged and intensive chemotherapy, radiotherapy and eventually, in December 2003, a stem cell bone marrow transplant.  Mr Bird said the applicant had benefited from these treatments and was now progressing well.  He said that, during the course of the applicant's chemotherapy, he had had frequent admissions to hospital with infective complications from this treatment.  Since the bone marrow transplant, the applicant had only required two admissions to hospital for infective conditions and he was now only required to attend The Royal Melbourne Hospital for review at six‑weekly intervals.  The applicant had completed VCE over a period of two years and was successful in his studies at the end of 2004.  The applicant performs voluntary assistance in the teaching of media studies at his old school.  He has obtained his driver's licence and is now less reliant on his father for transport and care. 

DOCUMENTARY EVIDENCE

1. Dr J. Duggan, senior specialist in haematology at Austin & Repatriation Medical Centre, provided a Centrelink treating doctor's report dated 10 October 2003, confirming the diagnosis of lymphoblastic lymphoma diagnosed in May 2002. He confirmed that the applicant had received chemotherapy, radiotherapy and anticipated that the applicant would have a bone marrow transplant at the end of 2004.  In his report Dr Duggan advised that the applicant would be severely debilitated as a result of the treatment and that, after the bone marrow transplant, the anti‑rejection immunosuppressive drugs would greatly increase the risk of infections for a period of months to years.  Dr Duggan considered that the impact of the condition on the applicant's ability to function would persist for 3 to 24 months.  Dr Duggan attached a letter to his treating doctor's report, confirming that the applicant had had numerous admissions to hospital between May 2002 and October 2003 with severe infections and febrile episodes. 

2. Associate Professor Jeffrey Szer, Head of the Bone Marrow Transplant Service at The Royal Melbourne Hospital, provided a report dated 24 October 2003, confirming that the applicant was to undergo a matched, unrelated donor, bone marrow transplant at the end of 2004 and would be too ill and at too great a risk of complications to consider any study or work activities throughout 2004 (T15).

3. At the request of Centrelink Dr T. Paulson of Health Commission Services assessed the applicant.  Dr Paulson relied on the reports of Dr Duggan and Associate Professor Szer.  He deemed the applicant to be temporarily unfit for any work and said that, for a period of at least six months, following the bone marrow transplant, the applicant would be unable to study or work at all because of the risk of infection.  As there was scope for significant improvement in the applicant's condition, he advised that the applicant be reviewed in December 2004. 

THE RELEVANT LEGISLATION

1. Section 94 of the Act relevantly provides:

   94.(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

   …

The Introduction to the Impairment Tables in Schedule 1B to the Act provides, in part:

…

4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6.  In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;

whether treatment is still continuing or is planned in the near future;

whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

treatment that is feasible and accessible ie, available locally at a reasonable cost;

where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

indicate why this treatment is reasonable; and

note the reasons why the person has chosen not to have treatment.

SUBMISSIONS

1. Mr Connell submitted that the respondent had supplied misleading and negligent advice to the applicant's mother in September 2002.  He also argued the legal principle lex non cogit ad impossibilia [the law does not compel the impossible] as it related to the finding that the applicant's condition was required to be treated and stabilised for a period of two years before s 94(1)(b) of the Act could be satisfied.

2. The respondent submitted that the applicant did not meet the requirements of s 94(1)(b) of the Act and should be medically re‑assessed in December 2004, as advised by Dr Paulson. The Tribunal notes that the applicant made a claim under the Compensation for Detriment caused by Defective Administration scheme (the CDDA scheme) and was partially successful in that he received $350 or thereabouts in compensation.

THE TRIBUNAL'S DELIBERATIONS

1. It is agreed that the applicant satisfies s 94(1)(a) of the Act, having been diagnosed with lymphoblastic lymphoma in May 2002. Section 94(1)(b) of the Act requires a person's impairment to attract a rating of at least 20 points under the Impairment Tables as set out in Schedule 1B of the Act. Clause 4 of the Impairment Tables requires the condition to have been fully documented, diagnosed, treated and stabilised before an impairment rating can be assigned. Clause 5 of the Impairment Tables states that the condition can be fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years. The Tribunal acknowledges that it is extremely difficult to predict on an individual basis whether a person suffering from lymphoblastic lymphoma will respond to treatment which might result in a significant functional improvement. As of 30 October 2003, the applicant was undergoing intensive treatment with plans to proceed with the bone marrow transplant following his VCE examination. Given the ongoing nature of his treatment, it cannot be said that the applicant's condition was either fully treated or stabilised at that time. Therefore, the applicant was unable to satisfy s 94(1)(b) of the Act at the relevant time.

2. The Tribunal affirms the decision.  The Tribunal notes that it is intended to re‑assess the applicant's medical status in December 2004.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd)     Catherine Thomas

Clerk

Date of Hearing:  28 October 2004

Date of Decision:  3 December 2004
Counsel for the applicant:            Mr C. Thomson
Solicitor for the applicant:            NIL

Advocate for the respondent:       Mr S. Meehan, Centrelink