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

[2015] AATA 900

Booby and Secretary, Department of Social Services (Social services second review) [2015] AATA 900 (24 November 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2351
Re	Peter Booby
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	24 November 2015
Place	Sydney

The decision of the former Social Security Appeals Tribunal that Mr Booby does not qualify for DSP is affirmed.

............................[sgd]............................................

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – whether applicant completed a program of support –  decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

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

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re 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

Social Security (Requirements and Guidelines - Active Participation for

Disability Support Pension) Determination 2011

REASONS FOR DECISION

Professor R McCallum AO, Member

24 November 2015

INTRODUCTION

1. The Applicant, Mr Peter Booby was employed as a train driver from 1971 until he was medically retired in January 2012. He is presently in receipt of Newstart allowance.

2. Mr Booby applied for Disability Support Pension (DSP) and his claim was received by Centrelink on 27 October 2014. In his claim, Mr Booby specified his impairments as "both knees, lower back, upper back, neck, elbow".   

3. Mr Booby submitted a medical report from Dr Eric Tran dated 3 November 2014 in support of his application. In this report, Dr Tran stated that Mr Booby had been diagnosed with "osteoarthritis of both knees" and "chronic neck and low back pain".

4. In the report, Dr Tran noted seven other medical conditions that cause minimal or limited impact on Mr Booby's ability to function. These conditions are fatty liver, high blood sugar level, hyperlipidaemia, hypertension (that is high blood pressure), obstructive sleep apnoea, osteoarthritis and obesity.

5. On 10 November 2014, a job capacity assessment report was completed. The assessor assessed Mr Booby's conditions as follows.

6. First, osteoarthritis of both knees, which was found to be fully diagnosed, treated and stabilised and the assessor assigned an impairment rating of 10 points under Table 3 of the Impairment Tables which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the impairment tables). Table 3 is titled "Lower limb function".

7. Second, musculoskeletal disorder (chronic neck and lower back pain), which was found to be fully diagnosed, treated and stabilised and the assessor assigned an impairment rating of 10 points under Table 4 of the Impairment Tables which is titled "Spinal function".

8. The assessor assessed Mr Booby as having a baseline capacity for work of 15-22 hours per week and a capacity for work within two years with intervention of 15-22 hours per week.

9. Centrelink refused Mr Booby's claim for DSP, and Mr Booby sought review from an Authorised Review Officer who affirmed the original decision.

10. Mr Booby unsuccessfully sought review from the former Social Security Appeals Tribunal (SSAT). In its decision dated 20 April 2015, the SSAT held that Mr Booby's osteoarthritis in both knees was fully diagnosed, treated and stabilised and was assessed at 5 points under table 3 of the assessment tables. The SSAT further held that Mr Booby's chronic neck and back pain was fully diagnosed, treated and stabilised and was assessed at 10 points under table 4 of the impairment tables.

11. Mr Booby now appeals to this tribunal.

    THE LEGISLATION

12. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

13. The criteria for DSP are set forth in section 94 of the SS Act. In Mr Booby's circumstances subsection 94(1) relevantly provides:

    (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;

    …

14. Put simply, I must be satisfied, first, that Mr Booby has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the impairment tables. Finally, I must be satisfied that Mr Booby has a continuing inability to work.

15. The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. It relevantly provides as follows.

16. A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    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) ...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.

    …

17. This definition is complex, but in essence, unless a person has a severe impairment, the person must have participated in a program of support. A severe impairment is defined in subsection 94(3B) as follows.

18. 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.

19. This means that in Mr Booby's circumstances, if any of his impairments are assessed at 20 points under one of the impairment tables, that impairment will be a severe impairment. If none of Mr Booby's impairments are severe impairments, he will be required to have participated in a program of support.

20. Program of support is defined in subsection 94(5) as follows.

    program of support means a program that:

    (a)       is designed to assist persons to prepare for, find or maintain work; and

    (b)       either:

    (i)        is funded (wholly or partly) by the Commonwealth; or

    (ii)       is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

    …

21. Under subsection 94(3C) of the SS Act, a person has actively participated in a program of support if the person satisfies the requirements set out in the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (Cth) (the POS Determination).

22. It is not necessary to set out subsections 5(1) and (5)2 of the POS determination. Suffice to write that these provisions specify persons must participate in programs of support for 18 months in the three years before lodging their claims for DSP. There are exceptions which need not be set out in detail at this point in the decision.

23. Finally, Mr Booby's impairments must be sufficient to prevent Mr Booby from doing any work independently of a program of support within the next 2 years.

    The 13 week qualifying period

24. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Booby's eligibility for DSP in the 13 week period commencing on the day on which Mr Booby's claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Booby qualified for DSP between 27 October 2014 and 26 January 2015.

25. In  Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:

    In the Tribunal's consideration as to whether a condition has been stabilized and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

26. In the Tribunal's consideration as to whether a condition has been stabilized and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).

27. This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

28. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the claim period may still be relevant, but only in so far as they are referable to the applicant's condition during the claim period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    [33] …The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the claim period is not directly relevant to the Tribunal's decision.

29. Therefore, in determining the eligibility of Mr Booby to receive DSP I am confined to examining Mr Booby’s impairments during the thirteen week  claim period which is from 27 October 2014 to 26 January 2015.

    THE CONCESSIONS OF THE RESPONDENT

30. Paragraph 6.1 of the Respondent's statement of facts and contentions is as follows:

    The Secretary accepts that the Applicant had impairments during the relevant period for the purpose of s 94(1)(a) of the SS Act arising from the following conditions:

    (a)       osteoarthritis of both knees;

    (b)       chronic neck and back pain (musculo-skeletal disorder); and

    (c)       fatty liver, high blood sugar level, hyperlipidaemia, hypertension, obstructive deep apnoea and obesity.

    THE ISSUES BEFORE THE TRIBUNAL

31. Given the Respondent's concessions, Mr Booby complies with subsection 94(1)(a) of the SS Act as he has impairments. Therefore, the first issue which I am required to decide is whether any of the impairments of Mr Booby have been fully diagnosed, treated and stabilised during the claim period. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the impairment tables.

32. The second issue which I am required to decide is whether Mr Booby has a continuing inability to work pursuant to subsection 94(1)(c)(i) and subsection 94(2) and attendant provisions of the SS Act. It will not be necessary to decide this issue if I find that Mr Booby's impairments do not attain an assessment of 20 points under the impairment tables.

    THE IMPAIRMENT TABLES

33. Subsection 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Booby are worth twenty points under the impairment tables. This requires a few words of explanation.

34. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [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.

35. Importantly, impairments can only be assigned ratings under the impairment tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

36. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

37. It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then a single rating should be assigned in relation to that common or combined impairment under a single Table. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, 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.

    THE EVIDENCE OF MR BOOBY

38. Mr Booby attended the hearing with his wife Mrs Booby. Mr Booby gave sworn evidence. I found him to be a truthful witness who did his best to assist the Tribunal.

39. Mr Booby said that he left school in year 8, and after a short period of employment he joined the railways in 1971. He became a suburban train driver and then a driver trainer. As I noted above in the introduction, Mr Booby was medically retired in January 2012.

40. In relation to the osteoarthritis in his two knees, Mr Booby said that he is in pain if he walks more than 100 metres. He did catch the train to the hearing and walked from the railway station to the hearing. He said that he only uses public transport when there is no alternative.

41. Mr Booby said that he does go to the supermarket but hires a mobility scooter. He said that he can drive for one to one and a half hours.

42. Mr Booby said that he can dress his upper body, but that his wife assists him, putting on socks etc. He said that his wife also assists him in showering.

43. Mr Booby said that he has pain in his lower back. He can bend to pick up a book from the table.

44. Mr Booby said that he had been advised to wait for a year or two before obtaining knee replacements.

45. With regards to his other conditions Mr Booby said that his fatty liver and high blood pressure do not give him difficulty. He takes medication for his blood pressure. In relation to his obesity, Mr Booby said that he was losing weight until his thyroid was removed several months ago. In relation to his sleep apnoea, Mr booby said that he has not purchased a "sleep machine" as they are expensive. Mr Booby said that since he had a cortisone injection his elbow no longer troubles him.

46. Mr Booby agreed that he had not completed 18 months of a program of support in the three years before making his claim for DSP. He said that he didn't really know about programs of support earlier. He is currently undertaking a program of support.

47. In cross-examination, Mr Booby was referred to three medical reports from Dr Eric Tran dated 10 April 2015, 3 August 2015 and 17 August 2015. He was asked whether Dr Tran was commenting on his impairments as they were during the claim period, or as they were on the dates of the reports which were outside the claim period. Mr Booby was not sure.

48. Mr Booby was asked about evidence which he had given to the SSAT. He said that he could climb stairs, provided that there were not too many, and provided he used the stair rail and his walking stick.

1. Mr Booby was asked what distance could he walk from November 2014 to January 2015, that is during the claim period. He said that the maximum he could walk before the pain set in was about two hundred metres.

2. Mr Booby said that he can turn his neck, but some days are better than others. He said that his neck condition has only slightly deteriorated since the claim period. However, he said that his knee and lower back conditions have got worse since the claim period.

   CONSIDERATION

3. The first issue which I am required to decide is whether any of the impairments of Mr Booby have been fully diagnosed, treated and stabilised during the claim period.  If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the impairment tables.

   The Reports of Dr Tran

4. Before examining Mr Booby's impairments in detail, it is timely to refer to the reports of Dr Eric Tran of 10 April 2015, 3 August 2015 and 17 August 2015.

5. The report dated 17 August 2015 is the most detailed of these three reports. In this report, Dr Tran writes as follows.

   This letter is to confirm that since Mr Booby applied for Centrelink Disability Pension back in October 2014 his chronic severe debilitating conditions have deteriorated.

6. Accordingly, I infer that in this report, Dr Tran is assessing Mr Booby's impairments at the date of the report that is on 17 August 2015 which is more than six months after the claim period.

7. The essence of Dr Tran's report is as follows.

   ·Mr Booby has worsening chronic neck and lower back pain, there is a severe functional impact on the activities involving spinal function with prolonged sitting/standing/walking.

   ·He has difficulty performing overhead activities, turning his head and bending his neck without moving his trunk.

   ·He has difficulty bending forward to pick up a light object from a desk or table or remaining seated for more than ten minutes.

   ·Mr Booby has worsening chronic bilateral lower knee pain resulting in severe functional impact on the activities using the lower limbs.

   ·Mr Booby is unable to walk around the shopping centre or supermarket without assistance of a mobile scooter.

   ·He cannot independently walk from the carpark to the shopping centre without the assistance of a walking stick to help him mobilise or the assistance of his carer.

   ·He also requires assistance to stand up from a sitting position.

8. I infer from all of the evidence, including the 2015 reports of Dr Tran that Mr Booby's impairments, and especially his knee and lower back impairments have deteriorated since the claim period.  However, I am required to assess these impairments as they impacted upon Mr Booby during the claim period.

   Osteoarthritis of both knees

9. From the medical evidence, and also from Mr Booby's evidence, I find that Mr Booby's osteoarthritis in both knees was fully diagnosed, treated and stabilised during the claim period.

10. I am now required to assess this impairment under table 3 of the impairment tables. The descriptors for severe, that is for 20 points under impairment table 3 are as follows.

    (1)       The person:

    (a)         is unable to do any of the following:

    (i)  walk around a shopping centre or supermarket without assistance;

    (ii) walk from the carpark into a shopping centre or supermarket without assistance;

    (iii) stand up from a sitting position without assistance; and

    (b)         requires assistance to use public transport.

11. It is essential to appreciate that the words "without assistance" mean assistance given by another person. They do not encompass situations where a person is assisted by a walking stick.

12. From the evidence of Mr Booby, he could walk for a maximum distance of about 200 metres during the claim period. Mr Booby said that at present he can walk for about 100 metres. Mr Booby said that he can get himself out of a chair with arms on it albeit with some pain. He can also catch public transport, albeit as a last resort.

13. Accordingly, I find that Mr Booby's osteoarthritis in both knees is not a severe impairment. I further find that this osteoarthritis has a moderate effect on Mr Booby, and I assess it at 10 points under table 3 of the impairment tables.

    Lower back and neck pain

14. From all of the evidence, I find that Mr Booby's lower back and neck pain were fully diagnosed, treated and stabilised during the claim period.

    I am required to assess these impairments under table 4 of the impairment tables. The descriptors for severe, that is for 20 points under table 4 are as follows.

    (1)       The person is unable to:

    (a)         perform any overhead activities; or

    (b)         turn their head, or bend their neck, without moving their trunk; or

    (c)         bend forward to pick up a light object from a desk or table; or

    (d)         remain seated for at least 10 minutes.

15. From the evidence of Mr Booby, he can move his neck and he can pick up a book from table height. Mr Booby sat throughout most of the hearing, though at times he got up and stretched and said he was in some pain. The hearing lasted for one hour.

16. In his evidence, Mr Booby said that he can drive a car for one to one and a half hours.

17. Accordingly, I find that Mr Booby's lower back and neck pain is not a severe impairment. I further find that the lower back and neck pain has a moderate affect upon Mr Booby, and I assess it at 10 points under table 4 of the impairment tables.

    Other impairments

18. Having regard to the medical evidence and to the evidence of Mr Booby, I find that Mr Booby's other impairments of fatty liver, high blood sugar level, hyperlipidaemia, hypertension, obstructive sleep apnoea osteoarthritis and obesity are managed well and have little effect upon Mr Booby.

    Conclusion on subsection 94(1)(b)

19. I find that Mr Booby's impairments to be rated at 20 points under the impairment tables, thus he complies with subsection 94(1)(b) of the SS Act.

    Continuing inability to work

20. I am now required to decide whether Mr Booby has a continuing inability to work within the meaning of sub-section 94(1)(c)(i), subsection 94(2) and attendant provisions of the SS Act.

21. As none of Mr Booby's impairments are a severe impairment within the meaning of subsection 94(3B) of the SS Act, Mr Booby is required to have participated in a program of support for 18 months in the three years prior to claiming DSP.

22. In his evidence, Mr Booby said that he had not completed a program of support. The records before this Tribunal show that it the three years prior to claiming DSP, Mr Booby participated in a program of support for 8 months, 13 days (not including periods in which a medical exemption was granted).

23. However, section 5, subsections (3) to (5) of the POS determination set out exemptions from the requirement of undertaking a program of support for 18 months. Briefly put, these exemptions are as follows.

    ·The person completed a program of support, but it was less than 18 months in length. (subsection 5(3))

    ·The person participated in a program of support, but was terminated "because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program." (subsection5(4))

    ·At the date of claim, "the person is participating in the program of support; and the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program." (subsection 5(5))

24. There is no evidence that any of these three exceptions apply to Mr Booby.

25. Accordingly, I find that as Mr Booby did not participate in a program of support for 18 months in the 3 years prior to his claim for DSP, Mr Booby does not satisfy the requirement of inability to work pursuant to subsection 94(1)(c)(i) and subsection 94(2) and attendant provisions of the SS Act.

    Conclusion

26. From the above findings, Mr Booby has impairments, and these impairments are rated at 20 points under the impairment tables. Therefore, Mr Booby satisfies subsection 94(1)(a) and (b) of the SS Act.

27. However, as none of Mr Booby's impairments are a severe impairment within the meaning of subsection 94(3B) of the SS Act, Mr Booby is required to participate in a program of support. Mr Booby did not complete 18 months of a program of support within the 3 years prior to claiming DSP. Therefore, I find that he does not qualify for DSP.

    DECISION

28. The decision of the former Social Security Appeals Tribunal that Mr Booby does not qualify for DSP is affirmed.

I certify that the preceding 76 (seventy -six) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

...........................[sgd].............................................

Associate

Dated 24 November 2015

Date(s) of hearing	5 November 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services