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

[2023] AATA 4243

Brownlow and Secretary, Department of Social Services (Social services second review) [2023] AATA 4243 (22 December 2023)

Division:GENERAL DIVISION

File Number:2022/9802          

Re:Mr John Brownlow  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Tribunal:Senior Member B. Pola

Date:22 December 2023

Place:Brisbane

DECISION

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division, dated 16 November 2022, to decline the applicant’s claim for the Disability Support Pension.

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

Senior Member B. Pola

CATCHWORDS

SOCIAL SERVICES – Eligibility for Disability Support Pension – Appeal of decision of Social Services and Child Support Division – where purported impairments included spinal condition and mental health condition – where spinal condition not fully stabilised or fully treated due to investigations continuing outside of Qualification Period and reasonable treatment measures not followed by applicant – where mental health condition not fully diagnosed per statutory requirements – section 94(1)(b) of Social Security Act 1991 (Cth) not satisfied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

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

CASES

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

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Senior Member B. Pola

22 December 2023

BACKGROUND

1. On 5 August 2022, the applicant, Mr John Brownlow, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Services Australia (or the “Agency”)[1].

   [1] Exhibit TR1, T25, pages 108 to 115.

2. On 14 August 2022, the applicant was advised by the Agency that his claim for the DSP was rejected[2].

   [2] Exhibit TR1, T16, pages 77 and 78.

3. The decision to reject the applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by the Agency on 24 August 2022[3].

   [3] Exhibit TR1, T18, pages 81 to 86.

4. The applicant applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’), to review the Agency’s decision to reject his claim for the DSP.

5. On 16 November 2022, the SSCSD of the Tribunal affirmed the decision to reject the applicant’s claim for the DSP[4].

   [4] Exhibit TR1, T2, pages 7 to 11.

6. The applicant applied to the General Division of the Tribunal for a second review of this decision on 29 November 2022[5].

   [5] Exhibit TR1, T1, pages 1 to 6.

   JURISDICTION

7. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed an earlier decision of the respondent to reject the applicant’s claim for the DSP.

8. The applicant’s claim of 5 August 2022 has been reviewed in accordance with section 135 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’) by an ARO, per their decision of 24 August 2022. The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published its reasons on   16 November 2022.

9. In accordance with section 179(1) of the Administration Act, the Tribunal therefore has jurisdiction to review the applicant’s DSP claim of 5 August 2022.

   ISSUES

10. The issue before the Tribunal for consideration is whether the applicant was qualified to receive the DSP in relation to his claim lodged on 5 August 2022 and ending 13 weeks later, on 4 November 2022 (herein referred to as the ‘Qualification Period’)[6].

    [6] The Qualification Period is discussed in later paragraphs of this decision.

11. The issues for the Tribunal to determine in respect of the applicant’s claim for the DSP is:

    (a)Whether the applicant had impairments during the Qualification Period in accordance with section 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as the ‘Act’)?

    (b)Whether the applicant’s impairments attract 20 points or more under the Impairment Tables, contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)[7] (herein referred to as the ‘Determination’) within the Qualification Period for the purpose of section 94(1)(b) of the Act? 

    (i)If so, did the applicant have a continuing inability to work as defined in section 94(2) of the Act, for the purpose of section 94(1)(c) of the Act?

    [7] The Tribunal notes a new Determination took effect from 1 April 2023, but for the purposes of the present

    RELEVANT LEGISLATIVE FRAMEWORK

12. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of section 94(1) of the Act:

    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

13. To be medically qualified for the DSP, a person must therefore have a physical, intellectual, or psychiatric impairment, that has a total rating of 20 points or more under one (or several) Impairment Tables, and a continuing inability to work which, in some circumstances, includes participation in a Program of Support (herein referred to as ‘POS’).

14. Section 26(1) of the Act provides that, “…the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

15. It is the Tribunal’s role to stand in the shoes of the original decision-maker[8] and determine whether the decision was the correct or preferable one based on the material before it[9].

    [8]     Faulkner and Comcare [2007] AATA 1541 at [27].

    [9]     Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 (per Bowen CJ and Deane J).

16. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

17. Section 6 of the Determination provides that, “the impairment of a person must 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”[10]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[11].

    [10]    Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), section 6(1).

    [11] Ibid, section 6(2).

18. An Impairment Rating may only be assigned to an impairment if[12]:

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than two years.

    [12] Ibid, section 6(3).

19. Further, for a condition to be considered permanent pursuant to section 6(3)(a) of the Determination, the condition must also[13]:

    (a)be fully diagnosed by an appropriately qualified medical practitioner; and

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years.

    [13] Ibid, section 6(4).

20. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[14]:

    (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 two years.

    [14] Ibid, section 6(5).

21. A condition is considered fully stabilised if[15]:

    (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 two 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 two 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.

    [15] Ibid, section 6(6).

22. Reasonable treatment is a treatment that[16]:

    (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.

    [16] Ibid, section 6(7).

23. Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Section 6(9) of the Determination sets out circumstances to be considered in relation to pain.

24. Sections 7 to 11 of the Determination provide guidance as to how the Impairment Tables should be used to assess information and evidence and how to assign Impairment Ratings.

25. In particular, section 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

26. Meanwhile, section 11(1)(c) of the Determination provides that in assigning an Impairment Rating, “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

    Continuing inability to work

27. As previously detailed in earlier reasons of this decision, section 94(1)(c)(i) of the Act states that in order to qualify for the DSP, a person must have a, “continuing inability to work”. Section 94(2) of the Act stipulates that:

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (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.

28. A “severe impairment” is defined in section 94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

29. Section 94(3C) of the Act states that:

    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

30. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as the ‘Participation Determination’) came into effect on   3 January 2015, and sets out the requirements for ‘active participation’ for those people required to demonstrate they have actively participated in a POS.

    QUALIFICATION PERIOD

31. Schedule 2, Part 2, section 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[17].

    [17] Social Security (Administration Act) 1999 (Cth), Schedule 2, Part 2, section 4(1)(d).

32. For the purposes of this decision, the day which the applicant’s claim for the DSP was lodged with Centrelink was 5 August 2022[18] and concluded 13 weeks after that day. The Tribunal finds the 13-week period ended on 4 November 2022.

    [18] Exhibit TR1, T25, pages 107 to 115.

33. This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered if it is referable to the applicant’s condition during the Qualification Period[19].

    [19] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at [31].

    CONSIDERATION

34. The application was heard in Brisbane on 28 November 2023 with all parties appearing by telephone as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant was self-represented, with the respondent represented by Ms Henderson from Services Australia. The respondent had an observer present who was a non-participant in the hearing. The Tribunal considered oral submissions made by the applicant and respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (marked as Annexure 1 at the end of these reasons).

    Section 94(1)(a) of the Act (physical, intellectual, or psychiatric impairment)

35. It is not in contention that the applicant suffered from an impairment for the purposes of satisfying section 94(1)(a) of the Act[20]. The Tribunal is satisfied the applicant did suffer from impairments prior to and during the Qualification Period for this application, and on reflection of the evidence is of the view that the following impairments are relevant to this application:

    (a)Spinal condition; and

    (b)Mental health condition.

    [20] Exhibit R1, page 7, paragraph 41.

36. With respect to the remaining medical conditions of the applicant referred to in the evidence before the Tribunal, namely the applicant’s left ankle fracture, hernia and dental conditions; the Tribunal is of the view that there is insufficient detail in the evidence to determine whether these conditions were permanent. Therefore, given the lack of further corroborative medical evidence with respect to these conditions the Tribunal was unable to consider them as part of the application.

    Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

37. The Tribunal will now consider each impairment identified with respect to the application of section 94(1)(b) of the Act, and whether they meet the relevant provisions contained within the Determination.

    (a)Spinal condition

38. The Tribunal is satisfied the applicant’s spinal condition was fully diagnosed prior to the Qualification Period, with reference to the following corroborative medical evidence. A medical certificate dated 12 December 2022 from the applicant’s treating General Practitioner (herein referred to as “GP”) stated that the applicant suffered from a permanent condition related to chronic degenerative back pain that is likely to persist for two years or more. The applicant’s symptoms were listed as chronic severe pain and treatment included, “… Physiotherapy, psychology, analgesia, steroid injections…”[21].

    [21] Exhibit TR1, T23, page 94.

39. The above diagnosis of the applicant’s treating GP is supported from diagnostic imaging undertaken on 3 June 2022, which concluded the applicant had, “… spondylotic changes present throughout. There is bilateral neural exit foraminal narrowing at L5/S1 with possible impingement of the exiting L5 nerve roots bilaterally...”[22].

    [22] Exhibit TR1, T8, page 55.

40. With respect to determining whether the applicant’s spinal condition was fully treated and fully stabilised prior to or during the Qualification Period for his claim for DSP, the Tribunal notes evidence from the applicant’s treating physiotherapist in an undated letter following a referral of 4 March 2022, that the applicant had, “… visible improvement in his ROM [range of movement] and mobility following treatment, and John reported a decrease in pain levels…”[23]. Despite this medical evidence, the applicant’s self-reported evidence at the hearing was that this was not correct, and that his spondylitis was “through his whole body” and stated that his pain levels did not decrease.

    [23] Exhibit TR1, T13, page 72.

41. Evidence before the Tribunal in a GP Management Plan of 4 March 2022 stated that a referral to an orthopaedic surgeon may be required[24]. The applicant stated at the hearing that he did not wish to pursue spinal surgery.

    [24] Exhibit TR1, T14, page 74.

42. Evidence before the Tribunal from a medical survey completed on 30 December 2022 noted the applicant had been referred to see a spinal surgeon at Princess Alexandra Hospital[25]. The Tribunal notes this survey was completed outside the Qualification Period for this application.

    [25] Exhibit TR2, ST3, pages 16 to 18.

43. The applicant’s pharmaceutical records confirm he was prescribed pain relief medication (Meloxicam) from 23 February 2022, as well as a range of other associated medications after this date. When the applicant was questioned on this during the course of the hearing, he stated he did not continue taking this medication as it gave him gastrointestinal problems[26]. When questioned as to whether he raised this with his GP, the applicant stated that he had. The Tribunal notes there is no corroborative evidence to substantiate this claim.

    [26] Exhibit TR2, ST9, pages 40 and 41.

44. Evidence before the Tribunal confirms that further testing of the applicant’s spinal condition had been ordered after the Qualification Period for this application. On 4 May 2023 a referral was given for further spinal investigations by the applicant’s GP, in a referral which requested, “… CT- Head, MRI – Spine – Cervical, MRI – Spine – Lumbar..”[27].

    [27] Exhibit TR2, ST6, page 27.

1. At the hearing the applicant was questioned as to whether he had sought assistance from a pain management clinic or specialist to assist in managing his condition. The applicant stated that he had not, he had pursued physiotherapy.

2. The Tribunal is satisfied that the applicant’s spinal condition is not considered fully treated or fully stabilised in circumstances where there is evidence of further medical investigations occurring outside the Qualification Period for his application, and reasonable treatments recommended to the applicant for his spinal condition had not been pursued. In turn, an impairment rating could not be assigned to this condition.

   (b)      Mental health condition

3. The introduction to Table 5 – Mental Health Function within the Determination stipulates that diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

4. The applicant has provided evidence from his GP who had referred the applicant under a mental health care plan for six psychology sessions for treatment of, “… longstanding untreated anxiety and depression with history of trauma, PTSD and … chronic pain…”[28].

   [28] Exhibit TR1, T7, page 53.

5. The applicant has produced evidence from a treating psychologist in a letter dated  26 May 2023, which confirmed the applicant had been referred on 5 June 2022, and had commenced sessions from 1 July 2022. In the letter, the applicant’s psychologist had stated that the applicant required further treatment, “… in order to continue with the process of analysis for arriving at recommendations and strategies…” as of 26 May 2023[29].

   [29] Exhibit TR2, ST7, page 28.

6. The Tribunal notes the applicant does not have a diagnosis from a psychiatrist or clinical psychologist. In the absence of a diagnosis from a psychiatrist or clinical psychologist referable to the Qualification Period, any mental health condition of the applicant cannot be considered diagnosed. Therefore, the Tribunal was unable to assess the condition or assign an Impairment Rating as part of this application.

   Summary

7. The Tribunal has found that none of the applicant’s conditions were able to be assigned Impairment Ratings under section 94(1)(b) of the Act.

8. As the Tribunal has found that the applicant does not satisfy section 94(1)(b) of the Act, there is no need to consider the remaining relevant provisions.

   DECISION

9. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division, dated 16 November 2022, to decline the applicant’s claim for the Disability Support Pension.

   I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

   ……………[SGD]….……………

   Associate

   Dated: 22 December 2023

   Date of hearing:  28 November 2023

   Applicant:  Mr John Brownlow (self-represented)

   Solicitor for Respondent:       Ms Alicia Henderson (Services Australia)

   Annexure 1 – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
R1.	Respondent Statement of Facts, Issues and Contentions	R	17.08.2023
TR1.	Section 37 T-Documents	R	-	15.12.2022
TR2.	Supplementary Section 37 T-Documents	R	-	17.08.2023
A1.	Rheumatology clinic notes (2 pages)	A	04.05.2023	06.06.2023

   application, the earlier Determination was in force during the Qualification Period for this application.