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

[2017] AATA 1728

Bowman and Secretary, Department of Social Services (Social services second review) [2017] AATA 1728 (18 October 2017)

Division:GENERAL DIVISION

File Number:           2016/6418

Re:Jennine Bowman

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:18 October 2017

Place:Brisbane

The decision under review is affirmed.

...............................[Sgd]......................................

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – where no severe impairment - where Applicant has 20 impairment points accumulatively – where Applicant has not completed a program of support - decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

CASES

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

REASONS FOR DECISION

Senior Member P E Nolan

18 October 2017

INTRODUCTION

1. Jennine Bowman (the “Applicant”) lodged a claim for the Disability Support Pension (the “DSP”) on 7 March 2016 listing her disabilities, illnesses or injuries as:

   Major Back Operation

   Fusion L4-51

   Have supplied information & cert from specialist

   Have nerve damage in left leg, foot & toe

   Cannot stand, sit for a length of time[1]

   [1] Exhibit 1, T Documents, T9, pages 69-98.

2. The central issue for the Tribunal to determine is whether the Applicant qualified for DSP at the date of her claim, 7 March 2016 or within 13 weeks thereafter, being up until

   
   

   6 June 2016.

   HISTORY OF THE MATTER

3. The Applicant made her initial application for DSP on 7 March 2016. This claim was rejected by Centrelink on 28 May 2016.[2]

   [2] Exhibit 1, T Documents, T12, pages 106-107.

4. The Applicant sought review by an authorised review officer (“ARO”) of Centrelink. The officer affirmed the original decision, to reject the claim, on 10 August 2016.[3]

   [3] Exhibit 1, T Documents, T16, pages 111-119.

5. The Applicant sought review of the ARO’s decision at the Social Services and Child Support Division of this Tribunal (the “SSCSD”), the decision affirmed on

   
   

   2 November 2016.[4]

   [4] Exhibit 1, T Documents, T3, pages 5-11.

   6.On 22 November 2016 the Applicant sought review of the General Division of this Tribunal.[5]

   [5] Exhibit 1, T Documents, T1, pages 1-2.

   ISSUES FOR THE TRIBUNAL

   7.The issues for me to consider are:

   (a)whether, during the relevant period, the Applicant had a physical, intellectual or psychiatric conditions which was fully diagnosed, treated and stabilised;

   (b)whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;

   (c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and

   (d)whether the Applicant has a continuing inability to work.

   8.       Before determining the above, it is convenient to set out the relevant legislative framework.

   LEGISLATIVE FRAMEWORK

   9. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

   10.     The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 7 March 2016). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[6]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 7 March 2016 and 6 June 2016 (“the Relevant Period”). The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[7]

   [6] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999

   [7] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

   11.     The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[8] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[9] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[10]

   [8] See s 26(1) of the Act.

   [9] See s 5(2) of the Determination.

   [10] See s 6(1) of the Determination.

   12.     Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[11] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[12]

   [11] See s 6(3) of the Determination.

   [12] See s 6(4) of the Determination.

   13.     In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:

   (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 next two years.[13]

   [13] See s 6(5) of the Determination.

   14.     A condition is “fully stabilised” if:

   (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:

   (c)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; or

   (d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[14]

   [14] See s 6(6) of the Determination.

   15.     “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[15] An impairment rating can only be assigned in accordance with the rating points in each Table.

   [15] See s 6(7) of the Determination.

6. Section 94(1)(c) of the Act requires that the claimant has a continuing inability to work. Section 94(2) sets out what constitutes a continuing inability to work. In order to satisfy this requirement, the claimant must either have a severe impairment within the meaning of s 94(3B) or have activity participated in a program of support. Section 94(3B) of the Act states that a claimant has a severe impairment if he or she has an impairment of 20 points or more under a single Impairment Table.

7. Where the claimant does not have a severe impairment:

   (a)the claimant must have actively participated in a program of support within the meaning of s 94(3C) of the Act;

   (b)the impairment must be, of itself, sufficient to prevent the claimant from doing 15 hours of work per week independently of a program of support within the next two years; and

   (c)the impairment must either, be sufficient of itself to prevent the claimant from undertaking a training activity during the next two years, or undertakes such a training activity is unlikely to enable the claimant to do any work independently of a program of support within the next two years.

   CONSIDERATION

   Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

   18.     The Respondent accepted that the Applicant had impairments for the purposes of
   s 94(1)(a) of the Act.[16]

   19.     The Applicant injured her back while working as a flight attendant on or around
   4 February 2015, she continued to work for about another year but was made redundant in February 2016.

   20. I accept the Applicant had impairments for the purpose of s 94(1)(a) of the Act. The Respondent concedes that the Applicant’s conditions can be attributed a total of 20 points. However, the concession is that those 20 points would be achieved as an accumulation of points across more than one table, meaning that the Applicant would not have a severe impairment and would need to satisfy the program of support requirement.

   21.     The Applicant contends that she ought to be awarded 20 points under a single table. I will deal with the calculation of impairment points by reference to the Applicant’s various medical conditions.

   Left leg radiculopathy and back condition – Tables 3 and 4

   [16] See Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, [4.28].

8. The Respondent concedes that the lower limb and back conditions, relating to the Applicant’s spinal injury, are permanent for the purposes of the Act.[17] I am satisfied with that concession and have drawn the same conclusion having read through the reports provided, particularly those from Dr Albeitz and Dr Grice, and having been present for the Applicant’s evidence at the hearing.

   [17] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, [4.17].

9. The conditions are permanent. I will now consider what rating should be assigned under the Impairment Tables.

10. As the conditions have manifested in an impairment of lower limb function and an impairment of spinal function Tables 3 and 4 are both applicable. The Respondent supports a rating of 10 points for each of Table 3 and 4.[18] My findings are consistent with the Respondent’s submissions in regards to those two tables.

    [18] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, [4.27].

    Table 3 - Lower Limb Function

11. The Respondent concedes that the Applicant has a moderate functional impairment to her lower limbs.[19]

    [19] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, [4.27].

12. At the hearing the Applicant described how she is able to walk around the block, but stressed that the journey now takes 15-20 minutes, whereas it once took 5 minutes. She also said that after the walk she would need to take pain medication.

13. The Applicant stated at the hearing that she is able to walk around a shopping centre, and can generally move around independently using walking aids, this is consistent with a 10 point rating. A 20 point rating would mean that she would not be able to perform these tasks without assistance, noting that ‘’without assistance”, in the requirements of a 20 point rating, refers to the assistance of a person not a device. The Applicant is also able to stand up from a sitting position without the assistance of another person.

14. I find that the impairment suffered, in regards to lower limb function, attracts 10 points under Table 3.

    Table 4 – Spinal Function

15. The Respondent concedes that the Applicant has a moderate spinal function impairment, able to attract 10 points under Table 4.[20]

    [20] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, [4.27].

16. The Applicant stated at the hearing that she is able to wipe down her bench-tops and make herself a cup of tea, albeit, she says, before having to return to bed. She said she is able to bend forward to pick up light objects from a desk or table, this is inconsistent with a 20 point rating.

17. The Applicant stated at the hearing that she is able to sit for around 10 minutes while eating. The evidence suggests she can sit longer than 10 minutes as she was observed doing at this first Tribunal review and as Dr Albeitz has clarified,[21] this is also inconsistent with a higher rating of 20 points.

    [21] Exhibit 4, Letter of Dr John Albietz, dated 10 April 2017.

18. Dr John Albietz, spinal surgeon, placed the impairment within a 10 point rating (under Table 4). However, Dr Albeitz also stated:

    Jennine would also intermittently qualify for 20 points in this section. Severe functional impact on activities involving spinal function…[22]

    [22] Exhibit 3, Report of Dr John Albietz, dated 23 February 2017.

19. The doctor places the impairment between 10 and 20 points. During the hearing the Respondent raised the influence of self-reporting on this assessment. In the introduction to Table 4 self-reporting alone is not sufficient, further the Tables require that where a condition falls between two ratings, the lower rating applies.[23]

    [23] See s 11 of the Determination.

20. I find that the Applicant’s spinal function impairment attracts a 10 point rating under

    
    

    Table 4.

    Adjustment disorder and Depression – Table 5 – Mental Health Function

21. The Applicant stated at the hearing that she has depression and the onset was during 2016. During the job capacity assessment (the “JCA”) the Applicant was reported as presenting with “tearfulness, sadness, low mood, social withdrawal, and fear of exacerbation of pain.” The JCA states “[n]o medical verification of this condition was available at the time of assessment.” However, it was noted that the Applicant reported six consultations with a Psychiatrist to that date.[24]

    [24] Exhibit 1, T Documents, T11, pages 100-105.

22. The Respondent concedes this condition is permanent, for the purposes of the Act.[25] Despite not being mentioned on the Applicant’s application form, as the Respondent raised, I am satisfied that it is fully diagnosed, treated, and stabilised and can be assigned points under the Table 5.

    [25] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, [4.30].

23. For an impairment to attract a 5 point rating under Table 5 most, that is at least four out of six, of the descriptors must be met. I am persuaded that the descriptors of a 5 point rating are met.

24. The Applicant stated at the hearing that she is largely independent with self care and lives independently, but will on occasion have support from family members who live close by. I did not give much weight to the observations, of the SSCSD, that the Applicant had appeared well dressed and groomed at the previous hearing. I was assured by the Applicant her preparation that day was with the assistance of a family member, and that it was out of pride in herself and in respect for the Tribunal.

25. The Applicant conceded she can attend to washing herself, but said that some days she is unable to get herself out of bed, and on those occasions her sister assists her. She said that her sister often assists with grocery shopping and household chores. On the matter of self care the Applicant could be said to have a moderate impairment.

26. The Applicant does partake in some social events from time to time but gave evidence that her participation is not what it once was.

27. Some elements of the way this condition manifests itself are consistent with a 10 point rating, however it cannot be said that ‘most’ of the descriptors are met, for that reason a

    
    

    5 point rating is the more appropriate on the evidence before me and from the hearing.

28. I find that the mental health function impairment suffered attracts a rating of 5 points under Table 5.

    Conclusion on points

29. I have found that the Applicant’s conditions are full diagnosed, fully treated and full stabilised.

30. The Respondent accepts that the Applicant’s impairments are able to attract 20 points. I find that the impairments suffered attract a total impairment rating of 25 points as an accumulation of tables 3, 4 and 5.

31. As there is not an impairment that attracts 20 points under a single table, the Applicant is not deemed to have a severe impairment for the purpose of the Act. This means that the Applicant is not exempt from the requirement to participate in a recognised program of support.

    Program of Support

32. The Applicant is required to have participated in a program of support.[26] Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that ‘active participation’ requires the person to have participated in a program of support for at least 18 months in the three years immediately preceding the claim. There are a number of exemptions (but I have not found any to be relevant to this matter).

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

33. At the hearing the Applicant raised that she has been attending appointments at Sarina Russo (a job placement and recruitment provider), she commenced doing so after her application was made. This may mean that the Applicant’s position in regards to her continuing inability to work may have changed. However, there is no evidence before me that the Applicant had signed up for a recognised program support in the three years leading up to her application for DSP that is the subject of this review, and a program of support cannot post-date the date of application. This means that the continuing inability to work requirements in the Act cannot be satisfied and the application must fail.

    Conclusion

34. The Applicant does not qualify for DSP as, despite being able to reach 25 points accumulatively, she does not have a severe impairment for the purpose of the Act and she cannot be said to have satisfied the program of support requirements.

35. I must therefore affirm the decision under review.

I certify that the preceding 49 (forty - nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

............................[Sgd]......................................

Associate

Dated: 18 October 2017

Date of hearing:	4 July 2017
Applicant:	By phone
Solicitors for the Respondent:	Mr Rick McQuinlan Department of Human Services

(Cth).

[2012] AATA 922 at [34]