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

[2016] AATA 1000

Booth and Secretary, Department of Social Services (Social services second review) [2016] AATA 1000 (8 December 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1601
Re	Graham Booth
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	8 December 2016
Place	Brisbane

I affirm the decision under review.

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

Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical and psychiatric impairments – whether applicant’s conditions are permanent – whether applicant’s impairment is of 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work – decision affirmed under review

LEGISLATION

Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2, s 4

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

8 December 2016

INTRODUCTION

1. Mr Graham Booth (“the applicant”) seeks a review of the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“the SSCSD”) dated 21 March 2016 to affirm the decision to reject his claim for disability support pension (“DSP”).

   BACKGROUND

2. The applicant is a 63 year old male. On 14 July 2015, the applicant lodged a claim for DSP.[1]

   [1] Exhibit A, T-Documents, T8.

3. On 31 March 2015 and again on 31 August 2015, the applicant participated in job capacity assessments.[2] On 16 September 2015, a delegate of the Department of Human Services rejected the applicant’s claim for DSP. The basis for the decision was that the applicant was assessed as not having an impairment rating of 20 points or more.[3]

   [2] Exhibit A, T-Documents, T6 and T9.

   [3] Exhibit A, T-Documents, T10.

4. On 18 December 2015, an authorised review officer (“ARO”) affirmed the decision to reject the applicant’s claim for DSP. The ARO found that the applicant’s claimed conditions could not be assigned an impairment rating because they were not fully treated and stabilised. The ARO also found that the applicant did not have a continuing inability to work.[4]

   [4] Exhibit A, T-Documents, T11.

5. On 21 March 2016, the SSCSD affirmed the decision to reject the applicant’s claim for DSP. The SSCSD was satisfied that the applicant had functional impairments totalling 25 points. However, the SSCSD found that the applicant did not have a continuing inability to work because he had not participated in a program of support.[5]

   [5] Exhibit A, T-Documents, T2.

6. On 29 March 2016, the applicant lodged an application with this Tribunal for a review of the decision of the SSCSD.[6]

   [6] Exhibit A, T-Documents, T1.

   CONTENTIONS

7. The applicant contends that each of his conditions are permanent. He takes umbrage with the assignment of impairment points which he contends is an inappropriate means of evaluating each person’s individual circumstances. 

8. The respondent contends that the applicant’s urological condition was not fully treated and stabilised within the relevant period. The respondent contends that if the condition were to be assigned an impairment rating, then a rating of 10 points could be assigned under Table 13.

9. The respondent contends that the applicant’s mental health condition was not fully treated and stabilised within the relevant period. The respondent contends that if the condition were to be assigned an impairment rating, then a rating of no more than 10 points could be assigned under Table 5.

10. The respondent contends that the applicant’s respiratory condition can be assigned 5 points under Table 1.

11. The respondent contends that the applicant did not have a continuing inability to work. The basis for this contention is that the applicant had not actively participated in a program of support within the relevant period.

12. The applicant contends that his urological condition prevents him from complying with workplace health and safety regulations. In particular, he is unable to tuck in his shirt because of his continence aid bag. He also raised that he may injure himself at work and a resulting compensation claim would arise.

    LEGISLATIVE FRAMEWORK

13. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria necessary to qualify for DSP. Section 4(1) of Sch 2 to the Social Security (Administration) Act 1999 (Cth) provides that whether or not a claimant qualifies for DSP is to be assessed at the period between when the claim for DSP was lodged and 13 weeks after that date.

14. The first criterion, set out under s 94(1)(a) of the Act, requires that the applicant has a physical, intellectual or psychiatric impairment.

15. The second criterion, set out under s 94(1)(b) of the Act, requires that the impairment be assigned an impairment rating of 20 points or more. This test is completed by reference to the Impairment Tables set out in Pt 3 of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).

16. Section 6(3) of the Determination provides that an impairment can only be assigned an impairment rating if the condition causing the impairment is permanent and the impairment is likely to persist for more than two years. Section 6(4) of the Determination provides that a condition is permanent if it is fully diagnosed, treated and stabilised, and is likely to persist for more than two years.

17. Section 6(5) of the Determination provides that the following are relevant to determining whether a condition has been fully diagnosed and treated by an appropriately qualified medical practitioner:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the following two years.

18. The third criterion, set out under s 94(1)(c)(i) of the Act, requires that the applicant have a continuing inability to work. Section 94(2) provides that a person has a continuing inability to work because of an impairment if:

    (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.

19. A claimant is not required to complete a program of support if they have a severe impairment within the meaning of s 94(3B) of the Act, namely, an impairment of 20 points or more are under a single Impairment Table.

20. Section 7(5) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 states that a claimant will be deemed to have actively participated in a program of support if:

    (a)the claimant is participating in the program of support at the end of the relevant period; and

    (b)the claimant is prevented from improving his or her capacity to prepare for, find or maintain work through continued participation in the program because of his or her impairment alone.

    ISSUES

21. The Tribunal is required to consider whether the applicant qualified for DSP on the date his claim was lodged or 13 weeks thereafter, namely, between 14 July 2015 and 13 October 2015. The first issue is whether he had an impairment in the relevant period. The second issue is whether the conditions causing the impairment were fully treated, diagnosed or stabilised in the relevant period. The third issue is whether the total impairment rating was 20 points or more under the relevant Impairment Tables. The fourth issue is whether the applicant had a continuing inability to work in the relevant period. This includes a consideration of whether the applicant had actively participated in a program of support.

    CONSIDERATION

    Did the applicant have an impairment?

22. I am satisfied that the applicant had a physical impairment within the relevant period arising from his urological and respiratory conditions. I am satisfied that the applicant had a psychiatric impairment within the relevant period arising from his mental health condition. Therefore, the applicant satisfies s 94(1)(a) of the Act.

    Were the applicant’s conditions permanent?

    Urological condition

23. I am satisfied that the applicant’s urological condition is permanent for the purposes of s 6(3)(a) of the Determination.

24. I am satisfied that the applicant’s urological condition was fully diagnosed by an appropriately qualified medical practitioner within the relevant period. On 7 July 2015, Dr Ko, general practitioner, completed a medical report in which she stated that the applicant had been diagnosed with “high grade urothelial cancer” on 16 January 2015.[7] On 31 August 2015, Dr Patterson, urological surgeon, stated that the applicant was diagnosed with bladder cancer in early 2015.[8]

    [7] Exhibit A, T-Documents T7 at p. 83.

    [8] Exhibit A, T-Documents T14 at p. 161.

25. I am satisfied that the applicant’s urological condition was fully treated and stabilised within the relevant period. On 15 February 2016, Dr Shilton reported that the applicant had undertaken all reasonable treatment for the urological condition on 4 October 2015 when a cystoprostatectomy was completed.[9]

    [9] Exhibit A, T-Documents T12 at p. 148.

26. I have had regard to the respondent’s contention that the applicant’s urological condition was not fully treated and stabilised within the relevant period because he was still in hospital recovering from surgery until 15 October 2015. However, in this instance I do not consider it fair to accept the submission of the respondent that the applicant’s presence in hospital should displace a finding that the urological condition was fully treated and stabilised within the relevant period. This is because there is no evidence that further reasonable treatment would result in a significant functional improvement to a level enabling the applicant to undertake work in the next two years.[10]

    [10] See Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 at s 6(6)(a).

27. Having regard to the available evidence, I am satisfied that the applicant’s urological condition is more likely than not to persist for more than two years.

    Respiratory condition

28. I am not satisfied that the applicant’s respiratory condition is permanent for the purposes of s 6(3)(a) of the Determination.

29. I am satisfied that the applicant’s respiratory condition was fully diagnosed within the relevant period. On 7 July 2015, Dr Ko stated that the applicant has been diagnosed with “CORD” (that being an acronym for chronic obstructive pulmonary disease).[11] On 9 September 2015, Dr Liebenberg, respiratory and sleep physician, diagnosed the applicant with “moderate smoking-related CORD at the emphysema end of the spectrum”.[12]

    [11] Exhibit A, T-Documents T7 at p. 86.

    [12] Exhibit A, T-Documents, T15 at p. 165.

30. I am not satisfied that the applicant’s respiratory condition was fully treated and stabilised within the relevant period. On 9 September 2015, Dr Liebenberg reported that the applicant “isn’t fond of medication and has therefore not started the Seebri inhaler I recommended in March”.[13] When the applicant was asked at the hearing about declining to take inhaled therapies, he responded that he does not believe that they will benefit him. Dr Liebenberg also reported that “(s)moking cessation is obviously imperative” but that the applicant “has unfortunately started smoking again and is currently consuming approximately 8 cigarettes per day”.[14] There is no evidence that the applicant ceased smoking within the relevant period. I am unable to find that the applicant’s respiratory condition was fully treated when he has declined to undertake reasonable treatment.

    [13] Ibid at p. 164.

    [14] Ibid at pp. 164-165.

31. I note that the SSCSD found that the respiratory condition was nonetheless fully treated and stabilised, accepting the applicant’s reluctance to take medication as a compelling reason for not having undertaken the inhalant medication treatments. However, I am not satisfied on the evidence before that there is a medical or other compelling reason for the applicant not to undertake reasonable treatment.

    Mental health condition

32. I am satisfied that the applicant’s mental health condition is permanent for the purposes of s 6(3)(a) of the Determination.

33. I am satisfied that the applicant’s mental health condition was fully diagnosed within the relevant period.  On 8 July 2015, Dr Mackie, clinical psychologist, diagnosed the applicant with “symptoms of anxiety and a moderate reactive depression”.[15] On 12 February 2016, Dr Mackie stated that the applicant was diagnosed with depression and secondary anxiety on 18 May 2015.[16]

    [15] Exhibit A, T-Documents, T16 at p. 176.

    [16] Exhibit A, T-Documents, T12 at p. 140.

34. I am satisfied that the applicant’s mental health condition was fully treated and stabilised within the relevant period. On 12 February 2016, Dr Mackie reported that the applicant had undertaken all reasonable treatment for the mental health condition by October 2015.[17]

    [17] Ibid at p. 141.

35. I have had regard to the respondent’s contention that the applicant’s mental health condition was not fully stabilised within the relevant period because his condition has deteriorated further since the relevant period expired. The aggravation of the applicant’s symptoms in response to his financial circumstances does not preclude a finding that the mental health condition was “fully stabilised” within the meaning of that term in s 6(6) of the Determination. There is no evidence that further reasonable treatment will result in a significant functional improvement to a level enabling the applicant to undertake work in the next two years.[18]

    [18] See Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 at s 6(6)(a).

36. Having regard to Dr Mackie’s report, I am satisfied that the applicant’s mental health condition is more likely than not to persist for more than two years.

    What impairment rating can be assigned to the applicant’s impairments?

    Table 1 – Functions requiring Physical Exertion and Stamina

37. I am satisfied that the applicant’s urological condition can be assigned an impairment rating under Table 1 of the Impairment Tables. The introduction to Table 1 states that it is to be used where the claimant has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.

38. I consider that the applicant’s urological condition has a mild functional impact, attracting 5 points. I place reliance on the opinion of Dr Shilton who reported on 15 February 2016 that an impairment rating of 5 points could be assigned.[19] I have also had regard to the applicant’s evidence at the hearing about how sweating can cause his continence aid bag to leak. There is no evidence to support a higher impairment rating being assigned under Table 1.

    [19] Exhibit A, T-Documents, T12 at p. 149.

    Table 13 – Continence Function

39. I am satisfied that the applicant’s urological condition can be assigned an impairment rating under Table 13 of the Impairment Tables. The introduction to Table 13 states that it is to be used where the claimant has a permanent condition resulting in functional impairment related to incontinence of the bladder or bowel.

40. I consider that the applicant’s urological condition has a moderate functional impact, attracting 10 points. The applicant has a stoma to manage his continence independently. The applicant stated that he changes the bag daily. He told the SSCSD that the bag bursts three to four times per week.[20] At the hearing before this Tribunal he cited rolling over in bed, bumping the bag or mowing the lawn as circumstances in which the the bag has burst in the past. He also said that the bag was more likely to leak depending on how full it was and whether he was sweating. I accept the applicant’s evidence that he would have difficulties in respect of continence aids that result in the interruption of tasks, work or training on most days. I place reliance on the opinion of Dr Shilton who reported on 15 February 2016 that the applicant’s urological condition “easily merits moderate criteria”.[21]

    [20] Exhibit A, T-Documents, T2 at p. 15.

    [21] Exhibit A, T-Documents, T12 at p. 149.

41. There is no cogent evidence to enable me to be satisfied that the applicant’s urological condition has a severe functional impact. I accept the respondent’s contention that the continence aid bag is unlikely to burst in the workplace if appropriate workplace modifications are put in place. In such circumstances, the applicant’s urological condition would not affect the comfort or attention of co-workers.

    Table 5 – Mental Health Function

42. I am satisfied that the applicant’s mental health condition can be assigned an impairment rating under Table 5 of the Impairment Tables. The introduction to Table 5 states that it is to be used where the claimant has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

43. I consider that the applicant’s mental health condition has a moderate functional impact, attracting 10 points. Each of the levels in Table 5 contain six criteria: self-care and independent living; social/recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making; and work/training capacity. In determining what functional impact there is on mental health function, most of the criteria must apply to the person in line with the relevant level of functional impairment under consideration.[22]

    [22] See Guide to Social Security Law, 3.6.3.50 Guidelines to Table 5.

44. Dr Mackie opined on 25 February 2016 that the applicant has mild difficulties with self-care and independent living. She reported that fatigue can impact on all aspects of the applicant’s ability to care for himself and that his motivation was reduced.[23]

    [23] Exhibit A, T-Documents, T12 at p. 141.

45. Dr Mackie opined that the applicant had moderate difficulties with social/recreational activities and travel. She reported that the applicant has become more reclusive and “focused on matters of injustice in relation to his present situation”. She also observed that the applicant’s personal relationships were suffering and he was anxious in certain environments.[24]

    [24] Ibid at p. 142.

46. Dr Mackie opined that the applicant had moderate difficulties with interpersonal relationships. She reported that he would encounter difficulty interacting appropriately with co-workers, family and professionals. She also observed that others would have difficulty effectively engaging with the applicant because his depression presented as expressive anger and frustration.[25]

    [25] Ibid.

47. Dr Mackie opined that the applicant has moderate difficulties with concentration and task completion. She reported that the applicant had reduced attention and concentration rendering him easily distracted.[26]

    [26] Ibid at p. 143.

1. Dr Mackie opined that the applicant had moderate to severe difficulties in relation to behaviour, planning and decision-making. She reported that the applicant had frequent outbursts of anger and had difficulty veering away from a particular thought pattern.[27]

   [27] Ibid.

2. Dr Mackie opined that the applicant had moderate to severe difficulties in relation to his work and training capacity. She reported that there was a high risk of interpersonal conflict which would impede training. She also observed that the applicant was easily distracted and that it was unlikely that he would engage with tasks well.[28]

   [28] Ibid at p. 144.

3. I am satisfied that the applicant’s mental health condition attracts 10 points under Table 5. I accept the opinion of Dr Mackie that most of the moderate criteria apply.

4. The applicant asserted at the hearing that his mental health condition has deteriorated significantly in recent months. However, I am required to assess the mental health function as it was within the relevant period.

   Total impairment rating

5. In summary, I am satisfied that the applicant’s impairment rating is of more than 20 points under the Impairment Tables. The applicant’s urological condition is a single condition causing multiple impairments;[29] the condition attracts 5 and 10 points under Tables 1 and 13 respectively. The applicant’s mental health condition attracts 10 points under Table 5. Therefore, s 94(1)(b) of the Act has been satisfied.

   [29] See Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 at s 10(3).

   Does the applicant have a continuing inability to work?

6. The applicant did not have a continuing inability to work within the relevant period. One of the requirements of having a continuing inability to work within the meaning of s 94(2) of the Act is that where the claimant does not have a severe impairment, he or she must have actively participated in a program of support.[30]

   [30] Social Security Act 1991 (Cth) s 94(2)(aa).

7. A “severe impairment” is an impairment which attracts 20 points or more under a single Impairment Table.[31] As stated above, I am unable to find that any of the applicant’s impairments can be assigned 20 points or more under a single Impairment Table. Therefore, the applicant is required to actively participate in a program of support to qualify for DSP.

   [31] Ibid, subs 94(3B) and (3C).

8. For the purposes of the Act, a program of support is a program designed to assist persons to prepare for, find or maintain work. The program must either be funded by the Commonwealth or be deemed by the Secretary as similar in design to a Commonwealth funded program.[32]

   [32] Ibid, s 94(5).

9. The applicant does not contend that he had actively participated in a program of support within the relevant period. Rather he contends that he should be exempt from having to participate. I acknowledge the reasons that he has advanced for being reluctant to participate in a program of support. However, there is no applicable discretion to enable me to waive this requirement. Therefore, s 94(1)(c) of the Act has not been satisfied.

   CONCLUSION

10. The applicant had physical and psychological impairments within the relevant period. These impairments arose from urological, respiratory and mental health conditions.

11. The applicant’s urological and mental health conditions were permanent within the relevant period. His respiratory condition was not fully treated and stabilised within the relevant period and for this reason I cannot assign an impairment rating to that condition.

12. I am satisfied that the applicant’s impairments total more than 20 points under the Impairment Tables. However, I am not satisfied that the applicant has a severe impairment because 20 points or more cannot be assigned under a single Impairment Table.

13. The applicant did not have a continuing inability to work within the relevant period because he did not actively participate in a program of support. Therefore, he does not qualify for DSP.

    DECISION

14. I affirm the decision under review.

I certify that the preceding 61 (sixty - one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated 8 December 2016

Date(s) of hearing	21 September 2016
Applicant	By telephone
Solicitors for the Respondent	Ms D Smith, Department of Human Services