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

Case [2015] AATA 891

Bolland and Secretary, Department of Social Services (Social services second review) [2015] AATA 891 (20 November 2015)

Division

GENERAL DIVISION

File Number

2014/4124

Re

Suzanne Bolland

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal

Member I Thompson
Date 20 November 2015
Place Adelaide

The Tribunal sets aside the decision under review.

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Member I Thompson

CATCHWORDS

SOCIAL SECURITY - pensions benefits and allowances - disability support pension

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999

CASES

Re Hynninen and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2012] AATA 664

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

20 November 2015

INTRODUCTION

  1. Ms Bolland was granted the disability support pension (DSP) on 18 February 2011 due to her condition of Meniere’s disease.  In November 2013, Centrelink commenced a medical review and decided on 3 June 2014 that Ms Bolland no longer qualified for the DSP.  She sought a review of that decision and a Centrelink authorised review officer (ARO) affirmed the decision to cancel the DSP.  The ARO identified two conditions, namely Meniere’s disease and lumbar disc bulge.  The ARO found that the condition of Meniere’s disease was permanent and a rating of 5 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) was appropriate.  The ARO did not consider that Ms Bolland’s back condition was permanent as it had not been fully treated and stabilised. 

  2. Ms Bolland applied to the Social Security Appeals Tribunal (SSAT) for a review of the decision of the Centrelink ARO.  The SSAT concluded that the condition of Meniere’s disease was permanent and fully diagnosed, treated and stabilised.  The SSAT found that Ms Bolland had this condition for a number of years and applied 10 impairment points under Table 11 of the Impairment Tables.  The SSAT concluded that the lumbar condition was not permanent.  In all, the SSAT concluded that Ms Bolland did not meet the requisite 20 points on the Impairment Tables and did not qualify for DSP.  Accordingly the decision of the Centrelink ARO was affirmed.

  3. Ms Bolland applied to this tribunal for a review of the SSAT decision claiming that that decision was wrong and that she should be allocated 20 points for the Meniere’s condition under Table 11 of the Impairment Tables.

    LEGISLATION AND ISSUES

  4. The Social Security Act 1991 (the Act) sets out the qualification criteria for DSP.  Section 94(1) of the Act provides that an applicant must have:

    (a)a physical, intellectual or psychiatric impairment;

    (b)an impairment of 20 points or more under the Impairment Tables; and

    (c)a continuing inability to work.

  5. Under s 94(2) of the Act a person is regarded as having a “continuing inability to work” if:

    (a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and

    (b)they have actively participated in…

Details
AGLC
Bolland and Secretary, Department of Social Services (Social services second review) [2015] AATA 891
Case
[2015] AATA 891
Decision Date

CaseChat Overview and Summary

In the matter of Bolland v Secretary, Department of Social Services, the applicant sought a review of a decision to terminate her Disability Support Pension (DSP). The applicant, Ms Bolland, was diagnosed with Meniere's disease, which affects her hearing and balance. The primary issue before the Tribunal was whether Ms Bolland's condition rendered her permanently incapable of work, entitling her to the DSP. The Tribunal had to consider the evidence of medical practitioners, the severity of her symptoms, and the functional impact of her condition on her capacity to work. The medical evidence indicated that Ms Bolland's condition was permanent and had worsened over time, resulting in significant periods of incapacity following vertiginous attacks.

The Tribunal concluded that Ms Bolland's condition, Meniere's disease, was indeed permanent and resulted in a functional impairment that met the criteria for the DSP. The Tribunal found that the condition significantly impacted her ability to work, with recovery periods following vertiginous attacks lasting up to 15 days. This extended period of incapacity supported the finding of a continuing inability to work. The Tribunal considered the medical reports and Ms Bolland's testimony about her condition and its impact on her daily life and work capacity. It noted that her symptoms and the functional impact of her condition had not been adequately recognised in previous reviews.

Ultimately, the Tribunal set aside the decision to terminate the DSP and reinstated Ms Bolland's entitlement to the pension, effective from 3 June 2014. The Tribunal was satisfied that Ms Bolland met the criteria for the DSP due to her permanent impairment and its substantial impact on her capacity to work. The decision emphasised the importance of considering the full extent of an applicant's condition and its impact on their ability to engage in employment when reviewing DSP entitlements. The Tribunal’s decision provided a comprehensive analysis of the evidence and the relevant legal criteria, ensuring that Ms Bolland's entitlement to the DSP was appropriately determined.

Orders

Orders of the court

The Tribunal sets aside the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In her statement, Ms Bolland asserted that she was encouraged by Centrelink in early 2011 to apply for the DSP. Previously she received Newstart. Although there is now a new version of the Impairment Tables in force, she contends that her symptoms have changed and worsened. Having been on Newstart and subsequently, from 2011, the DSP, her work skills have deteriorated and Centrelink have underestimated the severity of her condition. EVIDENCEMedical evidence Dr Shared Chawla is an ENT surgeon with the Department of Otorhinolaryngology, Head and Neck Surgery, Royal Adelaide Hospital. A report from Dr Chawla dated 11 November 2014[1] refers to Ms Bolland having a diagnosis of Meniere’s disease in 2001 with “hypofunction of the right labyrinth”. There was a diagnosis of “benign paroxysmal positional vertigo” in 2011. More recently vertiginous attacks lasting two to three hours approximately two to three times per month have occurred. They are preceded by a prodrome with light-headedness, left sided ear pressure and a feeling of fogginess. Dr Chawla reported hearing on the right side was stable but there is fluctuating loss of hearing on the left side. Dr Chawla wrote that Ms Bolland has “constant bilateral tinnitus”. Medication is appropriate to manage acute vertiginous attacks and comprises Stemetil and Valium. Ms Bolland may also be developing Meniere’s disease on the left side. There is an overlay of anxiety contributing to the symptoms and a three month follow-up was recommended.[1] Exhibit 4. Dr David Gidley is an ENT Registrar with the Department of Otorhinolaryngology, Head and Neck Surgery, Royal Adelaide Hospital. He wrote a report dated 29 July 2014[2] in which he confirmed the diagnosis of Meniere’s disease with a recent significant increase in vertiginous bouts, though without significant change in hearing loss or tinnitus. Following vertiginous episodes Ms Bolland sleeps for several hours and stays in bed for one to two days, with dysarthria for two to three days. Overall it takes her 10 to 15 days per bout to recover and this is significantly longer than usual for Meniere’s. Dr Gidley concluded:“Overall testing does not indicate that there is any other explanation for her hearing loss and vertiginous symptoms in keeping with a Meniere’s diagnosis. I have referred her for neurology assessment given the very prolonged period of recovery and the query postictal like symptoms that she developed for 2-3 days post attack. I will leave it up to neurology to see if they feel there is any need for further investigation or whether they believe this is also in conjunction with her Meniere’s.” [2] Exhibit 2. A general medical practitioner Dr A Te-Loo wrote a report dated 16 January 2014[3] regarding Ms Bolland’s Meniere’s disease. Dr Te-Loo reported balance issues with walking, hearing loss and tinnitus. It was suggested that treatment should continue and comprise medication and physiotherapy. Other conditions including the lumbar disc bulge, were generally well managed, treated and having minimal or limited impact on ability to function. [3] Exhibit 1, T19.

Decision

Reasons for decision

The Tribunal is satisfied that Ms Bolland has a continuing inability to work within the meaning of s 94(1)(c) of the Act.DECISION For the reasons set out above the Tribunal sets aside the decision under review and instead the Tribunal decides that Ms Bolland is qualified to receive the disability support pension from 3 June 2014.

Ratio Decidendi

Legal Principle Established

In her evidence and also in a written submission to the Tribunal[10] Ms Bolland stated that she was encouraged by Centrelink officers in 2011 to apply for the DSP. She had been receiving Newstart and she was dissatisfied with a Job Network Provider. Her application for the DSP succeeded under the criteria which applied at that time. She remained in receipt of the DSP and she assumed it would continue. She expected that the review of her entitlement in 2014 was a formality. She had been away from the workforce for 3 years. Her Meniere’s condition had worsened. Her capacity for work had deteriorated. She had undertaken tests through the Commonwealth department of Health and Aging for hearing aids and other assistance such as maskers. In all, by the time that the DSP was cancelled she considered that she had become almost unemployable. [10] Exhibit 7.CONSIDERATION The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment. The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations. Section 6 of the rules for applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work. The Tribunal agrees with the finding both of the ARO and the SSAT that the condition of Meniere’s disease is permanent and fully diagnosed, treated and stabilised. The ARO allocated 5 impairment points under Table 11 for Meniere’s disease. The SSAT allocated 10 impairment points under Table 11. The SSAT stated that it :“…could not apply 20 impairment points under Table 11 as Ms Bolland is not completely reliant in all situations on a recognised sign language, lip reading or other non-verbal communication method to converse with others. Also, based on the medical evidence provided, she does not have continual difficulty with balance or continual ringing in the ears that interferes with hearing.” [11][11] Exhibit 1, T2 p 11. Impairment Table 11 relates to hearing and other functions of the ear. It is used where a person has a permanent condition that results in a functional impairment from activities involving hearing (communication) or other functions of the ear, for example balance. The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or ear nose and throat (ENT) specialist. Moderate functional impact on activities involving hearing (communication) functions or other functions of the ear attract 10 points as set out in Table 11 as follows: