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

Brooks and Secretary, Department of Social Services (Social services second review) [2021] AATA 2057 (2 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3070
Re:Jacinda Brooks
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:2 July 2021
Place:Sydney

The decision under review is affirmed.
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Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – entitlement to disability support pension – whether conditions fully treated and stabilised during the qualification period – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94(1)
SOCIAL SECURITY (ADMINISTRATION) ACT 1999 (CTH)CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 6
REASONS FOR DECISION
Chris Puplick AM, Senior Member
2 July 2021
BACKGROUND

On 15 May 2018, Ms Jacinda Brooks (the Applicant) lodged an application for the Disability Support Pension (DSP). A delegate of the Secretary (the Respondent) rejected this claim on 28 May 2018, whereupon it was subject to further review by an Authorised Review Officer (ARO) of the Department. On 27 March 2020 the ARO affirmed the rejection decision.
The Applicant exercised her right to have the ARO decision reviewed by the Social Services and Child Support Division of this Tribunal (AAT1) which, on 10 May 2020, affirmed the decision of the ARO. On 20 May 2020 the Applicant sought a further review of this decision in this Tribunal (AAT2) where the matter was heard on 18 June 2021.
In line with the Tribunal’s COVID-19 protocols, the matter was heard over the telephone as the Applicant did not have access to any form of electronic device which would have allowed an alternate means of hearing the application.
THE DSP SYSTEM
In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act 1991 (Cth) (the Act). Section 94 has three distinct limbs:
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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
In essence, these requirements or criteria amount to this:
·the person has a physical, intellectual or psychiatric condition;
·the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria, set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment). Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;
·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;
·the person has turned 16; and
·the person is an eligible citizen or qualifying resident.
Failure to meet any one of these requirements is fatal to an application for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:
·fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These important terms are defined in the Impairment Tables[1] as follows:
[1] Impairment Tables s 6.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) 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:
(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.
Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.
A ‘continuing inability to work’ is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:
(a) … doing any work independently of a program of support within the next 2 years; and
(b) … 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.
Finally, the Social Security (Administration) Act 1999 (Cth)[2] provides that the eligibility for the DSP must be determined within a ‘qualification period’ which is defined as a period of 13 weeks after the lodgement of the original claim. As the claim was lodged on 15 May 2018, that periods runs from that date to 14 August 2018.[3]
[2] Schedule 2 subclause 4(1).
[3] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34].
The Applicant’s eligibility must be established within this period and evidence which post-dates it may only be taken into consideration to the extent that it refers back to and is relevant to the Applicant’s condition in that period.
APPLICANT’S CLAIMS
In her original DSP application, the Applicant has claimed a level of impairment resulting from the following conditions:
·mental health impairment;
·spinal condition; and
·wrist condition.
It is the Respondent’s position in relation to each of these impairments that, although they may have been fully diagnosed, they were not fully treated or stabilised during the qualification period.
In subsequent submissions in support of her application the Applicant has referred to additional conditions associated with abdominal pain and abnormal uterine bleeding which have been diagnosed by Professor Condous, a gynaecologist.[4] Professor Condous has further diagnosed issues of pelvic pain and pelvic floor overactivity.[5] The Tribunal does not question that the Applicant has been diagnosed with these conditions, but they were first notified to the Secretary in October and November 2019. As this is well outside the ‘qualification period’, the Tribunal cannot, in these proceedings, take any of these matters into consideration.
[4] Respondent’s T-Documents dated 16 June 2020 (T docs) at [259]-[261].
[5] Idem
Mental health impairment
The Respondent accepts that a full diagnosis of major depressive disorder and generalised anxiety disorder was made by Mr LeRoy Onuoha, a qualified clinical psychologist.[6]
[6] Ibid at [228]-[229].
The evidence is that three weeks prior to the claim being made (24 April 2018) the Applicant commenced therapy with Mr Onuoha as part of a mental health treatment plan which allows for 10 Medicare-funded sessions of treatment. During the ‘qualification period’ the Applicant attended five of the 10 sessions and then completed the full 10 on 21 January 2019.[7] There were then a repeated series of 10 sessions which took place between February 2019 and January 2020, and a series of eight sessions which took place between March 2020 and August 2020.
[7] Annexure C of the Secretary’s Facts and Contentions dated 3 March 2021 (Respondent’s SFIC).
In addition to these therapy sessions, the Applicant was taking prescribed medication as from January 2018. Various medications were prescribed, or varied, by both her General Practitioner (Dr Barich) and a psychiatrist (Dr Walker).
The Respondent submits:
Accordingly, the Secretary contends that the Applicant’s mental health condition was not fully treated and stabilised during the qualification period as: the Applicant commenced psychological therapy shortly before her DSP claim, and was continuing to attend therapy sessions both during and subsequent to the qualification period; the Applicant commenced a low dosage of antidepressant medication during the qualification period, and her dosage increased only 3 weeks before the qualification period ended; the Applicant had not attended a psychiatrist to review her medication regime until July 2020, some 22 months after the qualification period. [8]
[8] Respondent’s SFIC at [51].
The Tribunal finds no basis to dispute this assessment as the evidence clearly indicates that, during the ‘qualification period’ the Applicant was continuing with courses of treatment, thereby preventing any acceptance that the conditions were fully stabilised and treated as required by the Act.
Spinal condition
The Respondent accepts that a full diagnosis was made confirming that the Applicant suffered ‘severe right C2/3 and bilateral C7/T1 facet joint arthropathy, shallow lumbar disc bulging and mild bilateral sacroiliac joint osteoarthritis’.[9]
[9] Ibid at [54]; T docs at [168]-[169].
It appears that the Applicant has been suffering from some of these spinal conditions for a long period of time and was receiving regular treatment for them from at least as far back as October 2015. However, it also appears that this treatment by a physiotherapist did not continue beyond November 2015 and that the physiotherapist’s recommendation that the Applicant consult a specialist in relation to her condition was not acted upon.[10]
[10] Annexure B of the Respondent’s SFIC at [1]; Annexure C of the Respondent’s SFIC at [8].
There may be a good reason for this as the Applicant made clear in her oral evidence to the Tribunal that she was not financially able to afford some of the treatments or specialist referrals suggested to her.
Again, from her evidence there was some suggestion that she had received and benefitted from a limited number of cortisone injections but that further such suggestions as to treatment along these lines had not been pursued.[11]
[11] T docs at [168]-[169], [243].
From July 2019 onwards the Applicant engaged in some chiropractic sessions although once again these were not continued despite a suggestion from the chiropractor (Dr Streeter) than this might be beneficial.[12]
[12] Ibid at [299].
This record suggests that the Applicant undertook some very limited form of treatment for her spinal conditions both prior to her claim for the DSP and then some years after it. This also included the use of acupuncture,[13] although without any indication of the utility or benefit of this intervention. There is evidence that various practitioners recommended further interventions or courses of treatment which were open to the Applicant and which may have been beneficial, but she did not avail herself of them.
[13] Ibid at [243].
The Applicant’s regular General Practitioner (Dr Barich) advised on 25 August 2020 that it was unlikely that the Applicant’s condition would be amenable to improvement in the future and that indeed, it was likely to deteriorate as a result of the inevitable ageing processes. He indicated that the best that could be hoped for was the management of pain relief.[14]
[14] Annexure B of the Respondent’s SFIC at [4]-[5].
This may very well be the case, but Dr Barich’s recent prognoses do not address the Applicant’s situation during the ‘qualification period’ where it appears that suggestions were made about treatments and interventions, although not acted upon, thus establishing that the condition was not fully treated and stabilised during the period.
Wrist condition
The Respondent accepts that the Applicant’s wrist problems were fully diagnosed by her General Practitioner as far back as January 2016 and that she saw a hand and wrist surgeon (Dr David Yee) in May 2017.[15] Dr Yee’s report seems to indicate that the more significant impairment suffered by the Applicant was that related to her spinal condition from which her wrist condition arose,[16] and that in relation to her wrist he notes simply that, ‘there is no evidence of any ulna or median nerve compression’.[17]
[15] T docs at [8].
[16] Ibid at [165].
[17] Ibid at [158].
There is no indication that at any time, let alone during the ‘qualification period’, the Applicant’s wrist condition was treated in any comprehensive fashion, although there are references in the medical records to ‘splints and injections’.[18] It thus cannot be concluded that the wrist condition was ever fully treated and stabilised.
[18] Ibid at [165].
CONSIDERATION OF IMPAIRMENT
In order to qualify for the DSP an applicant needs to be assessed as meeting the 20-point threshold (on one Impairment Table or cumulatively across several). However, before an assessment can be made it must be demonstrated that a condition is fully diagnosed, treated and stabilised.
None of the Applicant’s conditions meet this requirement and hence none of them can be assessed against any of the Impairment Tables and accorded points.
In turn, this renders otiose any consideration of the Act’s ‘continuing inability to work’ requirements.
AS TO THE FUTURE
It was clear from the Applicant’s evidence given to the Tribunal that she has had a difficult relationship with Centrelink and has not found it easy to navigate her way around some of its processes and requirements. This is not uncommon. It is also clear that the Applicant genuinely suffers continuing pain and distress. Further, she advises that she is not in a financial position to undertake some, or all, of the courses of action recommended to her, including paying for specialist consultations. Finally, she calls into question any capacity or fitness for work in the future as a result of her physical and mental levels of distress. At present, she has limited support on Newstart Allowance which is set at a considerably lower fortnightly rate than the DSP.
These matters would be best addressed by the Applicant making a fresh claim for the DSP which would be assessed against her current state of health and claimed impairment.
At the Tribunal hearing, she advised that she had made such a new claim on 31 March 2021 and that it had been ‘recorded’ by Centrelink on 28 April 2021. However, the Respondent was not able to confirm the receipt of such a new application and clearly there had been no response to any such application at this stage.
This is a matter which both parties should consider further.
DECISION
The decision under review is affirmed.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 2 July 2021

Date(s) of hearing: 18 June 2021

Applicant: In person

Solicitor for the Respondent: Ms B Dzang, Services Australia

[2021] AATA 2057

2 July 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date(s) of hearing:	18 June 2021
Applicant:	In person
Solicitor for the Respondent:	Ms B Dzang, Services Australia