Caine and Secretary, Department of Social Services (Social services second review) - [2020] AATA 2089

Caine and Secretary, Department of Social Services (Social services second review) [2020] AATA 2089 (6 July 2020)
Division:GENERAL DIVISION
File Number: 2019/3830
Re:Catherine Caine
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:6 July 2020
Place:Sydney

The Tribunal sets aside the decision under review and in substitution determines that Ms Caine satisfies the requirements of section 94 of the Social Security Act 1991 (Cth) and qualified for disability support pension as at the date of her claim.
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Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – fibromyalgia – myalgic encephalomyelitis chronic fatigue syndrome – whether the applicant can perform tasks habitually or repetitively or once or rarely – post exertion malaise – severe impairment – decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Morgan and Secretary, Department of Social Services [2017] AATA 482
Root v Secretary, Department of Social Services [2016] AATA 364
Secretary, Department of Social Services v Seyfang [2016] AATA 243
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Mr S Evans, Member
6 July 2020
INTRODUCTION

Catherine Caine is the applicant in this matter. Ms Caine applied for disability support pension (“DSP”) on 30 May 2018 sighting her disabilities as fibromyalgia, myalgic encephalomyelitis chronic fatigue syndrome (“ME/CFS”) and general anxiety disorder. The Secretary of the Department of Social Services (“the Respondent” or “the Secretary”) rejected her claim for DSP as she did not have an impairment rating of 20 points or more.
Background to the Application
On 18 February 2019, the decision to refuse Ms Caine’s application was affirmed by an authorised review officer (“ARO”). The ARO made the same findings as were made following a Job Capacity Assessment (“JCA”) on 8 August 2018 – specifically, that Ms Caine’s ME/CFS, fibromyalgia and anxiety disorder conditions were fully diagnosed but not fully treated and stabilised. Consequently, Ms Caine did not qualify for an impairment rating.
Ms Caine appealed the ARO’s decision to the Social Services and Child Support Division (“AAT1”) of the Administrative Appeals Tribunal (“the Tribunal”). On 27 June 2019 the AAT1 determined that Ms Caine’s mental health condition was not fully diagnosed, treated and stabilised and could not be assessed for the purposes of the DSP.
The AAT1 however determined that Ms Caine’s fibromyalgia and ME/CFS was fully diagnosed, treated and stabilised on the basis of a letter from rheumatologist Dr Stephen Potter who reported in June 2019 that:
[Ms] Caine has therefore for five years, a syndrome characterised by fatigue, exhaustion, sleep impairment, widespread pain and widespread soreness. This is best understood as chronic widespread pain with fatigue…
The syndrome has been present for five years. It is not likely to improve. It is unlikely that any new tests are required. It is unlikely that any new tablets will make a difference to her management.
An assessment of these conditions was made against the Impairment Tables and it was determined that Ms Caine’s fibromyalgia and ME/CFS did not warrant an impairment rating of 20 points. Consequently Ms Caine’s application for DSP was unsuccessful.
HEARING
On 28 June 2019, Ms Caine filed an application for review of the AAT1 decision to the General Division of the Tribunal. The matter was heard on 22 May 2020 and Ms Caine appeared via video conference in accordance with the COVID-19 Special Measures Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). She was represented at the hearing by Legal Aid and Counsel.
The Tribunal heard from Ms Caine and occupational therapist Emma Steele who both provided evidence under affirmation.
Unless otherwise stated, the findings that follow are based on the evidence of Ms Caine. For reasons I will explain, the decision under review is to be set aside.
RELEVANT LEGISLATION AND GUIDELINES
Qualification for disability support pension
The qualification requirements for disability support pension are set out in the Social Security Act 1991 (Cth) (“the Act”).
Subsection 91(1) of the Act requires that a disability support pension applicant has:
(a)… 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;…
The Impairment Tables[1] referred to in section 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”).
Subsection 6(6) of Part 2 of the Impairment Tables sets out the requirements for a condition to be fully stabilised:
(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.
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.
Assigning an Impairment Rating
The relevant Impairment Table for this matter is Table 1 – Functions requiring Physical Exertion and Stamina. Table 1 relevantly provides:

Points

Descriptors

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)       is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)      is able to:

(i)       use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)       walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)       walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)      use public transport without assistance; or

(iv)      perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)      has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

ISSUES FOR THE TRIBUNAL

It is common ground between the parties, and the Tribunal is satisfied that, as at 30 May 2018 (being the date of claim) or within 13 weeks thereafter (“the qualification period”), Ms Caine satisfied subsections 94(1)(a) and (c) of the Act in relation to her ME/CFS. It is also agreed, and the Tribunal is satisfied, that Ms Caine’s mental health condition was not fully diagnosed, treated and stabilised during the qualification period.
Therefore, the sole issue for determination is the appropriate impairment rating under Impairment Table 1 for Ms Caine’s fibromyalgia and ME/CFS.
EVIDENCE
Ms Caine’s condition
Ms Caine was diagnosed with ME/CFS in April 2014. She had started seeing her general practitioner six months before she was diagnosed because she was always tired and found it difficult or impossible to perform tasks that she had previously been capable of. She completed a series of tests that resulted in her being diagnosed with ME/CFS and fibromyalgia.
Ms Caine now spends an average of twelve and a half hours a day in bed. When she is not in bed, most of her time is spent sitting in a recliner in her room. Fibromyalgia primarily manifests in pain and sensitivity to sensations such as noise and chemical fragrances. Ms Caine reports that the pain caused by fibromyalgia was constant but is now well-managed. ME/CFS is more complicated as it is a systemic illness which manifests in different ways. The primary symptom is how her body responds to exertion.
Ms Caine gets tired much faster and easier than she used to. She testified that regardless of how much sleep she has, she is never rested. When she is exhausted, rest will not necessarily make her feel less fatigued. What causes the most impairment is that any amount of exertion, from brushing her teeth and upwards, ‘has payback’. She said it takes her 10 minutes to recover from brushing her teeth. The medical term for this is post exertion malaise (“PEM”).
Ms Caine described how she manages PEM in relation to her fortnightly shopping trip which she said normally takes 20 to 30 minutes. To prepare for the trip she starts about two days out by making sure she had clean clothes to wear. The day before shopping she will rest the entire day. The only thing she does that day requiring any expenditure of energy is to take a shower so that she would not require one on the shopping day.
Ms Caine shops a block away from where she lives. In describing the physical response to a shopping trip, Ms Caine said physical symptoms begin approximately 20 minutes into her shopping. When she returns home she tries to eat as quickly as she can because her limbs become very heavy and she starts trembling visibly. She can feel her eyelids become heavy and shortly after she experiences ‘brain fog’ meaning she struggles to form thoughts and sentences.
After shopping, Ms Caine sleeps or rests for the remainder of the shopping day. She reports being unable to undertake any meaningful physical activity the day after shopping. Sometimes she is able to do a load of washing on her ‘full rest day’, but for two full days after the shopping trip she can perform only a minimal amount of physical activity.
Ms Caine told the Tribunal that her symptoms have been consistent since she was first diagnosed in early 2014.
Ms Caine also confirmed that the last time she used public transport was 15 July 2016.
Impact of post exertion malaise (PEM)
The criteria set out in Impairment Table 1 are prescriptive and clear. In reference to the activities listed in 1(a) for 20 points under Table 1, Ms Caine submits that she can perform the activities listed but there are consequences, particularly the PEM which requires considered and constant management of her physical activity. In reference to these activities, Ms Caine wrote in her application to the Tribunal:
I can perform tasks on the 20-point table, but not habitually or repetitively. Activities such as mobilising in a shopping centre can be performed at most once a fortnight, with careful planning and considerable effect.
It would be impossible for me to perform this task twice in a day, on two consecutive days, or with less than 24 hour’s notice.
When asked by the representative of the Secretary to clarify what she meant by this, Ms Caine said that it would be impossible for her to perform tasks such as going shopping twice in a day, on two consecutive days, or with less than 24-hour’s notice. It was put to Ms Caine that if she had 24 hours’ notice she could go shopping which, she agreed, was possible. If she had two days’ notice, she said that she would certainly be able to go shopping.
Ms Caine clarified that an activity such as shopping requires a four day commitment to manage PEM. A rest day before the activity day which she described as ‘very aggressive rest’ in which she performs no activities to make sure her ‘batteries are full’. Day two would be the day of the activity. On the third day she would require a full day of rest to recover from the activity and return to a ‘baseline’. Day four she would need an additional day of rest to recharge in order to perform an activity the day after.
It was put to Ms Caine this was different to what she said in her application to the Tribunal in June 2019 where she wrote ‘it would be impossible’ to do an activity such as a shopping trip on two consecutive days, not three. Ms Caine explained that she does not perform two activities as strenuous as walking around the shopping centre in any one week. She says that she would perform one activity requiring that level of exertion followed by a different activity requiring less expenditure of energy, such as attending a medical appointment. If she tries to go shopping twice a week or perform any other similarly exhausting activity she would ‘literally be able to do nothing else’. She would, she submits, spend her entire time recovering or preparing.
Ms Caine confirmed to the Tribunal that she was independent in activities of daily living including dressing, toileting and eating. She said she does need to sit down to shower. She also has her head shaved so she does not have to wash her hair. She says she can only use a computer for 30 minutes at a time.
Psychologist Ian Leneham writes in a report dated May 2018 that:
Although Ms Caine might at times be able to undertake activity of the sort indicated at the 20-point row of the impairment tables, she could only do so by conserving energy on the proceeding day and recovering the next day.
Ms Caine submits that this is not inconsistent with her evidence regarding her ability to perform activities as she could rest on day one, perform an activity the next, rest after and then rest in anticipation of performing the next activity. However, if she was to do this, she would have no energy to perform any other activities.
Ms Caine is able to use public transport without requiring assistance. Whilst physically able to catch the bus, the consequences for her health were considerable. After she travelled to Sydney from Newcastle for the AAT1 hearing she reports she spent 16 hours a day in bed for the following month. Whilst shorter trips would not require as much energy, she is extremely sensitive to the smells and scents of other travelers and it would aggravate her fibromyalgia.
She said that she avoids short trips on public transport because she does not always get a seat; but the primary reason is the reaction she has to smells and scents. She says that these reactions are so great that walking has less of an impact than taking the bus. Ms Caine testified that public transport was also exhausting for her physically. Even if she was guaranteed a seat on the bus, it would be exhausting due to the stopping and starting of the bus and jerky movements that result. She said that it requires core strength to sit upright and to hold herself in place when on public transport, which is exhausting as it requires effort.
Evidence of Ms Steele
Ms Steele is an occupational therapist and has provided a report on Ms Caine dated 16 September 2019 and a supplementary report dated 25 February 2020. She appeared by phone to provide evidence to the Tribunal about her assessment of Ms Caine’s impairments.
The September 2019 assessment appears primarily to be based on self-reporting by Ms Caine as well as observation of Ms Caine’s living arrangements. The February 2020 report was completed following an assessment which included walking with Ms Caine from her home to her local shopping centre to complete some incidental shopping. Ms Steele reports that the assessment lasted 1.25 hours, 45 minutes of which was spent walking with Ms Caine to and from the shops and completing errands. The remainder of the time was spent observing Ms Caine’s physical responses following the shopping expedition.
During the assessment of Ms Caine, Ms Steele reports she observed fatigue, difficulty concentrating and slurred speech toward the end of her shopping expedition. Ms Caine experienced shortness of breath, an increased heart rate and sweating and needed to sit down and fan herself. She struggled to stand. When they returned home after shopping Ms Caine’s legs and arms were tremoring, which Ms Steele says is symptomatic of her condition. Towards the end of the 90 minute assessment, Ms Caine became sleepy.
Ms Steele observed that Ms Caine needed a trolley to support herself and needed to sit down throughout the short trip. Ms Caine reported that she needed to sleep for two days following the short shopping trip. Ms Steele confirmed that Ms Caine had rested completely the day prior to the shopping trip.
Ms Steele’s report details some of the difficulties for Ms Caine in using public transport. Ms Steele confirmed that she had not tested Ms Caine’s ability to use public transport but based her reporting on ‘direct observations’ of Ms Caine and past experience with other clients with ME/CFS.
Ms Steele concludes that Ms Caine could catch public buses for short journeys of up to 10 minutes without the physical assistance of another person or mobility aid. However, using public transport significantly increases Ms Caine’s ‘symptoms and functional implications’ of her ME/CFS and fibromyalgia. Using public transport exacerbates her symptoms and ‘leads to sensory overload’. She opines ‘it is my clinical opinion that Ms Caine could rarely perform the task of catching public transport’.
CONSIDERATION
What is the appropriate impairment rating?
The Secretary acknowledges that paragraph 1(b) of the descriptors for 20 points under Table 1 is satisfied; and based on the evidence, the Tribunal agrees.
In order to qualify for 20 points under Table 1, Ms Caine is also required to meet the criteria listed in paragraph 1(a)(i), (ii), (iii) or (iv). Ms Caine concedes, and the evidence confirms, that she can perform each of the activities listed and she can do so ‘without assistance’.
When considering if Ms Caine can walk from a shopping centre or supermarket without assistance, walk from a carpark into a shopping centre without assistance or use public transport without assistance, the test of whether the descriptors apply appears in paragraph 11(3) of the Impairment Tables which provides:
When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.

Whilst Ms Caine concedes that she can perform the activities in Impairment Table 1, she submits that she cannot perform these activities normally and repetitively as required by the Determination because she loses an ‘incredible amount of functioning after attempting the task[s] just once’.
The Social Security Guide at 3.6.3.05 Rules for Applying the Impairment Tables sets out the rules that are to be complied with in applying the Tables. It is written at (G) Assigning an Impairment Rating:
Descriptors involving performing activities
When assessing whether a person can perform a certain activity described in the descriptor, the descriptor will only apply if the person can do the activity on a repetitive or habitual basis and not only once or rarely.
Can Ms Caine perform the activities ‘habitually or regularly’ or ‘once or rarely’?
The question to be determined is whether being able to perform the tasks specified in paragraph 1(a) of Impairment Table 1 is consistent with the provision of subsection 11.3 of the Impairment Tables. In considering how the test of being unable to perform tasks of the particular kind listed in the Tables is to be understood, the Secretary draws the Tribunal’s attention to the matter of Root v Secretary, Department of Social Services [2016] AATA 364 (“Root”) where Mr Root suffered from CFS for several years before he claimed DSP.
In Root, Member Webb concluded at [26] in respect to medical evidence that:
if Mr Root attempts activity totalling four hours per day, he is likely to suffer post-exertional exhaustion for the succeeding two or three days. On Dr Moreton’s evidence, this is a clinical feature of Mr Root’s condition.
The Tribunal in that matter found Mr Root was able to perform work related tasks of a clerical, sedentary or stationary nature for short periods of up to 2 hours duration but he was likely to suffer post exertional exhaustion for the succeeding two or three days. The Tribunal made the following findings at [27] and [28]:
This means that he satisfies the rating criterion in respect of work-related tasks at the 20 point level. But he does not satisfy the criteria set out in (1)(a) at that level. It follows that his impairment falls between the 10 point and 20 point levels and must be assigned the lower rating.
I am satisfied that this impairment has a moderate impact on Mr Roots capacity to undertake activities and it is appropriately assigned a rating of 10 points under Table 1.
Whilst the Tribunal accepts the similarities between Ms Caine’s condition and those of Mr Root, as reported, Ms Caine’s condition appears different in terms of the degree to which she experiences PEM.
Relevantly, subsection 11(3) of the Impairment Tables was also considered by Senior Member Tavoularis in Morgan and Secretary, Department of Social Services [2017] AATA 482 in deciding whether the applicant qualified as having a severe impairment under Table 4 which requires the ‘person is unable to bend forward to pick up a light object from a desk or table’, Senior Member Tavoularis concluded at [93]:
The submission that the Applicant simply cannot regularly and habitually bend forward with sufficient spinal movement in order to pick things up should be accepted particularly having regard to Dr McEntee’s evidence at the hearing that even if the Applicant could “grin and bear it” and force himself to perform the function a few times, there is no doubt he will be left with residual exacerbated pain from which he will need a deal of time to recover. In a similar vein, there can, to my mind, be little or no argument with the suggestion that he cannot perform this kind of function regularly and habitually.
In Secretary, Department of Social Services v Seyfang [2016] AATA 243, Deputy President Bean considered if the applicant, who could perform the activities in question, could do so regularly and habitually:
[64] The question of whether being able to do some of the activities described by Dr Long during the assessment period amounts to being able to “perform light day-to-day household activities” within the meaning of Table 1 is a difficult one. In my view, there is a reasonable argument that, during the assessment period, Mr Seyfang could not perform household activities “normally and on a repetitive or habitual basis”, and therefore met this part of the criteria for a 20 point rating under Table 1.
[65] However, in order to satisfy the requirements for a 20 point rating, I note that Mr Seyfang would also need to establish that he was likely to have difficulty “sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours”. I note that the SSAT did not address this second limb of the criteria for a 20 point rating under Table 1.
Ms Caine agrees that she can perform each of the tasks specified in the table and indeed Ms Steele’s observation-based report confirms that she can do so. Ms Caine’s own testimony confirmed that she is capable of taking public transport and I found her credible in regards to this. The question is whether she can be considered to be able to perform the specified tasks on a ‘regular or habitual basis’ or ‘once or rarely’. The term ‘regular and habitual’ implies a degree of frequency and ease. Ms Steele’s evidence confirmed that Ms Caine requires at a minimum, a day of rest in advance of, and a day of recovery following a 45 minute shopping expedition. Other activities may require more preparation and recovery time and some less.
The Secretary submits that having regard to the ‘repetitive/habitual’ rule in subsection 11(3) of the Impairment Tables, Ms Caine is able to perform the tasks described in paragraph 1(a) for 20 points in Table 1, but cannot do them the next day. It is submitted in the Secretary’s Statement of Facts, Issues and Contentions dated 25 November 2019:
For example, she [Ms Caine] could do those things on Monday, Wednesday, Thursday and Saturday but could not do them on Tuesday, Thursday and Sunday because she needs time to recover the day after the activity days.
In this sense, she is doing the activities on a repetitive basis (every second day) because she is not limited to doing them “only once or rarely” within the meaning of section 11(3) of the Impairment Tables. It is immaterial that on the four times per week she can do the things in paragraph 1(a) for 20 points in Table 1 she can only do them for (say) 30 minutes at a time. The Secretary acknowledges that paragraph 1(b) for 20 points in Table 1 is satisfied on the evidence.
During the shopping activity, Ms Steele observes that ‘Ms Caine physically struggled with static standing in line … for 3 minutes’ and expressed concern that Ms Caine ‘was going to faint’. She concludes that in order ‘to perform a 35 minute light activity, Ms Caine lost 4 days of function’.
The Secretary argues that Ms Caine could perform the activities four times each week. Ms Caine, supported by the evidence of Ms Steele, argues that each of the activities would require a commitment of four days.
Having regard to Ms Caine’s evidence and Ms Steele’s reports, the reasonable conclusion is that the arbitrary but prescriptive activities required for 20 points in Table 1 could at most be repetitively performed over a sustainable period once every three days. Ms Caine has given evidence that she has learnt to carefully manage her activities to balance her physical limitations with the requirement to perform essential tasks such as shopping. There is no evidence to suggest that there is capacity or ability to increase the physical demands she places on herself.
Having reached this conclusion, it is not reasonable or accepted by the Tribunal that an activity which consumes 45 minutes but requires three days almost entirely dedicated to the preparation, performance and recovery should be described as being habitual or regular. It is more accurately classed as one which can be performed once or rarely. Having reached this conclusion, it is appropriate to award Ms Caine 20 points under Table 1 of the Impairment Tables.
CONCLUSION
For the reasons stated above, the Tribunal is satisfied that Ms Caine should be allocated 20 points under Table 1 – Functions requiring Physical Exertion and Stamina, as her ME/CFS and fibromyalgia have a severe functional impact on her ability.
I am satisfied that Ms Caine satisfied the requirements of subsections 94(1)(a), (b) and (c) at the date of her application.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that Ms Caine satisfies the requirements of section 94 of the Social Security Act 1991 (Cth) and qualified for disability support pension as at the date of her claim.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 6 July 2020

Date of hearing: 22 May 2020

Counsel for the Applicant: Mr Thomas Liu

Solicitors for the Applicant: Ms Rachel Bickovsky, Legal Aid NSW

Solicitors for the Respondent: Dr Stephen Thompson, Services Australia

Date of hearing:	22 May 2020
Counsel for the Applicant:	Mr Thomas Liu
Solicitors for the Applicant:	Ms Rachel Bickovsky, Legal Aid NSW
Solicitors for the Respondent:	Dr Stephen Thompson, Services Australia