Brown and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1652

Brown and Secretary, Department of Social Services (Social services second review) [2020] AATA 1652 (9 June 2020)
Division:GENERAL DIVISION
File Number: 2019/6590
Re:Kerry Brown
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date:9 June 2020
Place:Perth

The decision under review is affirmed.
..............[Sgd]..........................................................
Member L M Gallagher
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant has conditions that were fully diagnosed, fully treated and fully stabilised – whether applicant has 20 impairment points – whether applicant has severe impairment – fibromyalgia condition – osteoarthritis condition – chronic fatigue syndrome – mental health condition – whether applicant has continuing ability to work – whether applicant has completed program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(5)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 5, 7, 7(3)–(5)
Social Security (Administration) Act 1999 (Cth) – cl 4(1) of sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Table 1, Table 3, Table 4, Table 5, ss 3, 5(2), 6(1), 6(3), 6(4)–(7), 6(8), 10(5)

CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Flenady and Secretary, Department of Social Services [2019] AATA 2478
Larkin and Secretary, Department of Social Services [2018] AATA 342
Pignat and Secretary, Department of Social Services [2017] AATA 2745
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension – part 3.6.3
Guide to Social Security Law, Services Australia
REASONS FOR DECISION
Member L M Gallagher
9 June 2020
BACKGROUND

On 3 July 2018,[1] Mr Brown lodged an application for Disability Support Pension (DSP) with the (then) Department of Human Services (the Department) (R1, T43). Mr Brown’s application related to a number of claimed conditions, including (R1, T43, pages 215–217):
(a)severe depression;
(b)chronic fatigue syndrome;
(c)fibromyalgia;
(d)irritable bowel syndrome;
(e)chronic pain in neck and cervical/thoracic spine;
(f)insomnia;
(g)moderate arthritis in joints/spine; and
(h)pain in both knees, hands, left thumb and hips.
[1] The parties’ submissions regarding the date of claim and the Tribunal’s finding in this regard are discussed further at paragraphs [23] to [27] below.
On 5 October 2018, a Job Capacity Assessment (JCA) (face to face) was undertaken by a Registered Occupational Therapist and a report was produced on 23 January 2019

(R1, T56). The JCA reported that:
(a)
Mr Brown’s fibromyalgia was fully diagnosed, fully treated and fully stabilised (FDTS) and achieved a rating of 10 impairment points under Table 1 of the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

(the Determination), being for Functions Requiring Physical Exertion and Stamina;
(b)Mr Brown’s osteoarthritis was FDTS and his related functional…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown and Secretary, Department of Social Services (Social s...

Details

AGLC: Brown and Secretary, Department of Social Services (Social services second review) [2020] AATA 1652
Case: [2020] AATA 1652
Decision Date: 9 June 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr Brown against a decision of the Administrative Appeals Tribunal (AAT) which affirmed a decision of the Department of Social Services to reject his application for a Disability Support Pension (DSP). The core of the dispute revolved around whether Mr Brown's various medical conditions, including fibromyalgia, osteoarthritis, chronic fatigue syndrome, and a mental health condition, met the criteria for a DSP, specifically concerning the severity of his impairment and his continuing inability to work.

The legal issues before the Tribunal were whether Mr Brown's conditions were fully diagnosed, fully treated, and fully stabilised, and whether he had achieved at least 20 impairment points as required by the Social Security Act 1991 (Cth). The Tribunal was also required to consider whether Mr Brown had a continuing inability to work and had completed a program of support, as well as whether he had a severe impairment. The assessment of these criteria was to be made as at the date Mr Brown lodged his claim for DSP.

The Tribunal's reasoning focused on the Impairment Tables within the relevant Determination, which assess impairment based on functional capacity rather than diagnosis. It was noted that for an impairment rating to be assigned, the impairment must be permanent and likely to persist for more than two years. The Tribunal found that Mr Brown's claimed conditions did not collectively achieve the required 20 impairment points. Consequently, he failed to satisfy the second qualification criterion for a DSP. The Tribunal affirmed the AAT's decision, which in turn affirmed the Department's decision to reject Mr Brown's application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence. Mr Brown’s evidence Mr Brown gave the following evidence at hearing, including during cross-examination by Ms Hinwood:(a)His fibromyalgia is the condition that causes him the most problems, taking into consideration that it is tied in with his irritable bowel syndrome, chronic fatigue and insomnia.(b)He was originally diagnosed with fibromyalgia in January 2017 by a general practitioner. He was then sent to the Royal Perth pain clinic on 26 October 2018, but was not satisfied with the treatment he received. He then started seeing Dr Corbett (general practitioner) who has taken over his treatment.(c)He considers that his fibromyalgia was FDTS after he completed the education course at the pain clinic because there was no benefit in seeing the Royal Perth pain specialist. (d)His fibromyalgia has become much worse since his diagnosis was first made.(e)When he attended the pain clinic on 26 October 2018 (refer to R1, T51), that was the first time he saw a pain specialist for his fibromyalgia.(f)He did not attend a pain specialist regarding his fibromyalgia any sooner because there was a long waiting list.(g)He has been suffering from arthritis for many years. Since his fibromyalgia diagnosis, he cannot really feel the arthritis anymore.(h)He was on a waiting list for about 18 months to see a rheumatologist for his osteoarthritis. The hospital cancelled his appointment because he said that he could not tell the difference between his osteoarthritis and his fibromyalgia because he was in pain all the time. He has not seen a rheumatologist.(i)At the time he lodged his claim for DSP in 2018 he was experiencing a lot of pain relating to his fibromyalgia, but at that time his arthritis was not specifically causing him any real separate problems.(j)Since he lodged his claim for DSP in 2018:(i)some of his fibromyalgia symptoms have worsened, but he has found it easier to manage his pain at least during the day. The change in weather makes him ill and some days are a lot worse than others;(ii)his chronic fatigue and insomnia are not constant, rather they come and go;(iii)the fibromyalgia has ‘taken over everything’ and pain travels around his body;(iv)virtually every night he is in pain and needs to take painkillers; and(v)he seems to be able to ‘sort of’ control the pain the best he possibly can with his medication. Mr Brown said that:… the weather with fibromyalgia would be the worst followed by the pain with fibromyalgia then you’ve got … chronic fatigue before insomnia and then irritable bowel would be the same between there or probably last.(transcript, page 24 [20]) Mr Brown said that his mental health symptoms worsen when his pain is worse. Mr Brown said that in relation to his depression, he tries to block everything out, so as not to cause undue pain, but as soon as he gets stressed or as his stress levels rise, he is instantly in pain. Mr Brown said that within seconds (of being stressed) his back will start knotting up and something around his body will hurt.

Decision

Reasons for decision

As Mr Brown’s claimed conditions do not achieve a total of 20 impairment points, he fails to satisfy the second qualification criteria under s 94(1)(b) of the Act and in turn fails to qualify for the DSP.DECISION The decision of the AAT1 dated 2 October 2019, which affirmed a decision of the Department dated 10 July 2019 to reject Mr Brown’s application for DSP lodged on 3 July 2018, is affirmed.

Ratio Decidendi

Legal Principle Established

The statutory principles relevant to Mr Brown’s application are contained in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination). The Guide to Social Security Law, Services Australia (the Guide) assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, will usually do so unless there are cogent reasons in a particular case for not doing so (refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–645). The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies (Part 3.6.3 of the Guide).Qualification criteria In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine Mr Brown’s eligibility for DSP on the date the claim was lodged.[2][2] The Tribunal’s rationale and findings regarding the date Mr Brown’s claim was lodged is set out at paragraphs [23] to [27] below. The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis (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). The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions (s 5(2) of the Determination). Section 6(1) of the Determination requires that a person’s impairment 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. To be given a rating under the Impairment Tables, the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years (s 6(3) of the Determination, refer also to ss 6(4) to 6(7) of the Determination). The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (s 6(8) of the Determination). Section 10(5) of the Determination requires that where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Impairment Table.Continuing inability to work, severe impairment and participation in a program of support