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

[2021] AATA 611

Brassington and Secretary, Department of Social Services (Social services second review) [2021] AATA 611 (19 March 2021)

Division:GENERAL DIVISION

File Number(s):      2018/7021

Re:Mark Brassington

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION              

Tribunal: Mr S Evans, Member

Date:19 March 2021

Place:Sydney

The decision under review, being the decision of the AAT1 dated 12 November 2018, is affirmed. 

...................[SGD].....................................................

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – asthma – hepatitis C – kidney failure – chronic pain –degenerative arthritis – chronic lower back pain – bilateral lower limb compartment syndrome –rhabdomyolysis with secondary loss of nerves – major depression – post traumatic stress disorder – diabetes – backpay – whether the applicant’s conditions rate 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

1. Mark Brassington (”Mr Brassington”) applied for Disability Support Pension (“DSP”) on 12 October 2017 on the basis of medical conditions including asthma, hepatitis C, kidney failure, chronic pain, degenerative arthritis and lower back pain. The application was rejected by the Secretary for the Department of Social Services (“the Secretary”). Following a subsequent application, Mr Brassington was granted DSP on 24 January 2020. He now seeks review of the decision to reject the earlier application. The Secretary submits that whilst the DSP was granted correctly in January 2020, Mr Brassington was not qualified for DSP in 2017 as he did not satisfy the criteria at that time. 

   BACKGROUND

2. Mr Brassington is currently 61 years of age. He told the Tribunal that he has been in receipt of DSP or other benefits at various times since 2001. The application for DSP which is the subject of this review was submitted on 12 October 2017. Following the application, an Assessment Services Recommendation for DSP Medical Eligibility determined that Mr Brassington’s claim should be rejected on the basis of a valid Job Capacity Assessment (“JCA”) dated 28 June 2016 (“the 2016 JCA”). Mr Brassington’s claim was subsequently rejected on 28 November 2017. On 4 December 2017 Mr Brassington sought review of the decision and an Authorised Review Officer (“ARO”) affirmed the decision on 6 September 2018. Mr Brassington sought review at the Social Services and Child Support division of the Administrative Appeals Tribunal (“AAT1”) which affirmed the decision on 12 November 2018. On 27 November 2018 Mr Brassington appealed the decision to the General Division of the Tribunal. 

3. Whilst Mr Brassington was appealing the October 2017 application, he submitted a new claim for DSP. The new claim was successful and Mr Brassington stated to the Tribunal that he was seeking “backpay”, presumably for what he perceives to be a deficit in social security payments between the time he unsuccessfully applied for DSP and his subsequent successful application. 

4. The Tribunal does not have the authority to provide “backpay” as it was understood by Mr Brassington. The role of the Tribunal is to determine the correct and preferable decision in relation to his October 2017 claim based on the evidence which is before the Tribunal. Should the Tribunal determine that Mr Brassington was eligible for DSP at the time of his claim, then it follows that he will be paid DSP from the time of that application. This is distinct from and unrelated to any subsequent claim. 

   Hearing

5. The matter was heard on 8 February 2021 and Mr Brassington and the representative of the Secretary appeared by telephone. Mr Brassington represented himself and provided evidence under affirmation. 

   CRITERIA TO BE APPLIED

   Qualification for Disability Support Pension

6. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of DSP:

   94 Qualification for disability support pension

   (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

   (c) one of the following applies:

   (i) the person has a continuing inability to work;

7. The Impairment Tables[1] referred to in paragraph 94(1)(b) of the Act are used to assign ratings to determine the level of functional impact that a condition has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, fully treated and fully stabilised and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

   [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Impairment Tables”).

8. Subsection 6(6) of Part 2 of the Impairment Tables sets out the requirements for a condition to be fully stabilised as below:

   (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:

   (i) 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

   (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

9. Reasonable treatment is defined at subsection 6(7) of the Impairment Tables as treatment that:

   (a) is available at a location reasonably accessible to the person; and

   (b) is at a reasonable cost; and

   (c) can reliably be expected to result in a substantial improvement in functional capacity; and

   (d) is regularly undertaken or performed; and

   (e) has a high success rate; and

   (f) carries a low risk to the person.

   The Qualification Period

10. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

11. As noted, Mr Brassington lodged his claim for DSP on 12 October 2017 and that triggers the assessment process to determine eligibility. Mr Brassington must qualify for DSP on the date of the claim or within 13 weeks thereafter (i.e. 11 January 2018). I will refer to this as the “qualification period”.

12. The practical implication for this application is that the Tribunal can only consider Mr Brassington’s conditions and qualification for DSP during the qualification period. The Tribunal notes that the medical reports that come into being after the relevant period are only pertinent to the extent that they refer to Mr Brassington’s conditions during the qualification period.

    Continuing Inability to Work

13. Paragraph 94(1)(c) of the Act requires that to be eligible for DSP a person must have a continuing inability to work. The requirement for a continuing inability to work is satisfied if the person has a severe impairment – meaning they have an impairment of 20 points or more under the Impairment Tables of which 20 points or more are under a single Impairment Table. Alternatively, they have actively participated in a ‘program of support’ and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, in the next two years.

    ISSUE

14. The issue before the Tribunal is whether Mr Brassington qualified for DSP during the qualification period.

    MEDICAL CONDITIONS AND EVIDENCE

15. Mr Brassington was involved in a motor vehicle accident in 2009. His evidence to the Tribunal was at times difficult to follow but it appears he has been in receipt of DSP or carers payment since at least 2000, when he states he was granted DSP on the basis of his hepatitis C. 

16. At the time of his application Mr Brassington was living alone in a two-bedroom unit which is fitted out to assist with independent living for those with physical impairments. Whilst he used to do his own shopping and would drive himself, he now shops with the aid of his granddaughter.  

17. I will now turn to considering Mr Brassington’s conditions. 

    Bilateral lower limb compartment syndrome secondary to rhabdomyolysis with secondary loss of nerves

18. Whilst this condition was initially considered diagnosed but not fully treated and stabilised by the Secretary, the Secretary is now satisfied that this condition was fully diagnosed, treated and stabilised consistent with the AAT1 findings. The 2016 JCA which formed the basis for initially rejecting Mr Brassington’s application determined that the condition was not fully treated as he had not undertaken consultation with relevant specialists or exhausted all reasonable treatment options. However, the Tribunal accepts the AAT1 determination that this condition was fully diagnosed, treated and stabilised on the basis of the report by specialist neurologist Dr Bill O’Brien dated 24 October 2017. Dr O’Brien diagnoses bilateral lower limb compartment syndrome secondary to rhabdomyolysis with secondary loss of nerves and states that Mr Brassington has 4+ weakness in his muscles and that the condition is unlikely to significantly improve. 

19. Mr Brassington is eligible for 10 points under Table 3 for this condition. The Tribunal similarly finds that the corroborating evidence does not indicate that Mr Brassington satisfies any of the 20 point descriptors in Table 3. He must, for example, be unable to walk around a shopping centre unaided, unable to walk from a carpark or stand from sitting position without assistance from another person. 

    Chronic lower back pain

20. Mr Brassington is reported to have suffered from L4/5/S1 disc prolapse in 2009 as a result of the 2009 motor vehicle accident, a diagnosis which is confirmed in a report by Dr Kenneth Cooke of Medical Imaging Mount Druitt following an examination in March 2013. The Secretary contends that whilst Mr Brassington’s lower back pain is fully diagnosed, the condition is not eligible for an impairment rating as it is not fully treated and stabilised.  Specifically, the Secretary submits that Mr Brassington had not accessed reasonable treatment including exercise physiology/physiotherapy in conjunction with other forms for conservative rehabilitation during the qualification period. 

21. Mr Brassington commenced exercise physiology with Rhiannon Walton on 8 September 2017, less than five weeks before his claim for DSP. Ms Walton reported that Mr Brassington ‘presents with very poor lower limb strength and balance, and mobilises independently with a walking stick’.

22. Prior to consulting Ms Walton, there is no documentary evidence that Mr Brassington sought treatment for this condition from 2015. Whilst Mr Brassington is adamant that he would have received treatment for this condition between 2015 and seeing Ms Walton in 2017 there is no evidence of him having done so before the Tribunal.

23. Mr Brassington sought treatment with physiotherapist John Silcock for his lower back and leg pain after the qualification period. In a report dated 2 November 2018, Mr Silcock confirms that at that time he had seen Mr Brassington on five occasions over a six-week period and that he ‘responds positively to treatment but improvements are reported to essentially only be transient’. He also confirms that he advised Mr Brassington of further available treatment options. Mr Brassington gave evidence that he was only able to access five sessions with Mr Silcock. 

24. In the absence of evidence that this condition was treated from 2015 until October 2017, the Tribunal finds that Mr Brassington’s lower back pain was not fully treated and stabilised during the qualification period and therefore is not eligible for an impairment rating.

    Major depression and Post Traumatic Stress Disorder (“PTSD”)

25. Mr Brassington suffers from depression and PTSD. A report from psychologist Harry Mayr dated 6 July 2012 states that he suffers chronic pain, depression and anxiety. A subsequent report from Mr Mayr dated 11 September 2014 confirms that he has been seeing Mr Brassington on a “regular 2-4 weekly basis since August 2010”.

26. The Secretary submits that Mr Brassington’s mental health conditions were not fully diagnosed, treated and stabilised. It is contended that there was no evidence of a recent diagnostic opinion by either a clinical psychologist or psychiatrist around the time of the qualification period. Further, the Secretary maintains that Mr Brassington was not consistently taking medication for his mental health conditions. 

27. Mr Brassington contends that he had been taking anti-depressant medication consistently since July 2010. A patient health summary from 5 Ways Family Practice records that on 16 December 2015 Mr Brassington reported ‘feeling great since on Mirtazepine 30 mg’ and it is reported that he was still taking the medication as of 23 March 2016. 

28. The 2016 JCA states that Mr Brassington had been treated for the condition with medication and counselling with a psychologist from July 2010 until April 2015 but that the regularity of his treatment was not identified but reported by Mr Brassington as being every 2-4 weeks. It concludes that at that time the treatment options were yet to be explored including consultation with psychiatrist or clinical psychologist for review of pharmacological treatment. 

29. Consultant psychiatrist Dr Sjuatha Kalava diagnoses Mr Brassington with major depressive disorder, possibly persistent in nature on 29 September 2017. She recommends that he try an antidepressant, but notes that he is not keen to take any medication that will take four weeks to begin working. She recommends luoxetine, but notes that he will need to continue to closely monitor the impact the medication may have on his kidneys. 

30. Mr Brassington gave evidence that he had been taking anti-depressants the whole time but in her report clinical psychologist Nell Zandberg dated 11 June 2019 writes that ‘Mr Brassington was commenced on 30 mg of Cymbalta by his GP, Dr. Phillip Sutherland about 4 months ago. Cymbalta is a selective serotonin reuptake inhibitor class of anti-depressant’. 

31. Mr Brassington claims that the report was wrong and that he was taking medication during the qualification period and had been since first consulting Mr Mayr. 

32. Based on the evidence the Tribunal is satisfied that Mr Brassington’s mental health conditions were fully diagnosed by Dr Kalava but not fully treated and stabilised during the qualification period. Since last seeing Dr Mayr in April 2015 Mr Brassington appears not to have sought further specialist treatment or counselling for this condition until he saw Dr Kalava just prior to his DSP application. Dr Kalava recommended further reasonable treatment and Mr Brassington did not begin seeing a psychologist until he consulted Pauline Brown from August 2018. As the Tribunal is not satisfied that this condition was fully treated and stabilised no impairment points can be assigned to this impairment.   

    Asthma

33. Mr Brassington claims that it has a significant impact on him and notes that he has a quarter of a lung collapse and has emphysema. He has been required to cease smoking following a diagnosis in recent months. As there is scant evidence before the Tribunal relating to this condition particularly as it related to the qualification period, Mr Brassington’s asthma is assigned zero impairment points.

    Diabetes

34. As there is no evidence of a specialist consultation or evidence as to the impairment arising from Mr Brassington’s diabetes the Tribunal is satisfied that this condition is not able to be assigned an impairment rating. 

    CONCLUSION

35. During the qualification period Mr Brassington was eligible for a total of 10 impairment points. As the Tribunal has determined that Mr Brassington was not entitled to 20 points or more under the Impairment Tables, his application cannot succeed.   

36. Whilst it is not necessary for the Tribunal to consider if he meets the requirements in paragraph 94(1)(c) and has a continuing inability to work, I note that Mr Brassington had not completed the program of support requirements during the qualification period. Whilst he had completed 482 days during relevant period, he falls short of the necessary 18 months of participation. Mr Brassington drew the Tribunal’s attention to a letter from Job Centre Australia stating that he had satisfied the program of support requirements. The letter is dated 24 October 2018, which is significantly outside the qualification period and the Tribunal accepts the calculations of the Secretary as to his participation for the 18 months ending immediately before the day on which the application was made.

37. Whilst the Tribunal accepts that Mr Brassington suffered from his claimed conditions during the qualification period, he does not meet the requirements set out in the Act.

    DECISION

38. The decision under review, being the decision of the AAT1 dated 12 November 2018, is affirmed. 

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

........................................................................

Associate

Dated:   19 March 2021

Date(s) of hearing:	08/02/2021
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Ms E Ulrick, Services Australia