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

[2018] AATA 1506

Carmody and Secretary, Department of Social Services (Social services second review) [2018] AATA 1506 (1 June 2018)

Division:GENERAL DIVISION

File Number:           2017/3269

Re:Celia Carmody

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:1 June 2018

Place:Perth

The Tribunal affirms the decision under review.

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Member C Edwardes

CATCHWORDS

Social Security – disability support pension – impairment tables – did applicant have 20 impairment points – continuing inability to work rating – participation in program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – s 94 – ss 94(1) – ss 94(2) – ss 94(3B) – ss 94(3C)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 7(1) – ss 7(2)

Social Security Administration Act 1999 (Cth) – sch 2 cl 4(1) – s179

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 6(2) – ss 6(3) – ss 6(4) – ss 6(5) – ss 6(6) –ss ss 6(7) – s 7 – s 8 – ss 8(1) – s 9 – s 10 – s 11 – ss 11(1)

CASES

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409; [1979] AATA 179

Harris v Secretary, Department of Employment and Workplace Relations [2007] 158 FCR 252; [2007] FCA 404

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

Ulukut and Secretary, Department of Social Services [2014] AAT 399

SECONDARY MATERIALS

The Guide to Social Security Law

REASONS FOR DECISION

Member C Edwardes

1 June 2018

THE APPLICATION

1. This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 2 June 2017 (T2 3-8) (R1). This decision affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 13 June 2016 (T12 127-156) (R1).

2. The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth) Act (the Administration Act).

   INTRODUCTION

3. On 13 June 2016, the Applicant lodged a claim for DSP involving the condition of non-Hodgkin’s lymphoma.

4. This claim was supported by Dr Mark Weedon, General Practitioner (GP), Dr Paul Cannell and Dr Peter Tan (Specialist). The Tribunal notes that the Applicant was reported to be suffering from an incurable variety of non-Hodgkin’s lymphoma.  This is evidenced in a medical report from haematologist Dr Paul Cannell, dated 14 April 2008 (T5/T6 114-5) (T9/T10 121-124) (R1).

5. On 20 July 2016, the Applicant attended a Job Capacity Assessment (JCA) with an assessor from the Department of Human Services. The assessor determined the Applicant’s condition of follicular non-Hodgkin’s lymphoma, had not been fully diagnosed or fully stabilised, as she had “declined further investigative and treatment interventions” (T14 163) (R1). In view of this assessment, no points were generated under the Impairment Tables.

6. The Applicant’s claim was rejected on the 4 August 2016 by the Department on the basis that the Applicant had not generated 20 or more points under the Impairment Tables (T15 166) (R1).

7. The Applicant sought a second review on 25 August 2016. On 7 October 2016, the Authorised Review Officer (ARO) affirmed the decision of the Department. The ARO determined the following:

   ·[The Applicant’s] condition of follicular non-Hodgkin’s lymphoma is not accepted as being permanent as it has not been fully treated and stabilised.

   ·[The Applicant’s] total impairment rating is nil points.

   ·[The Applicant] does not have an impairment rating of 20 points or more.

   ·[The Applicant] does not have a continuing inability to work 15 hours per week or more because of [the Applicant’s] impairment (T17 170) (R1).

8. On 17 October 2016, the Applicant filed an application for review with AAT1.

9. In a decision dated 2 May 2017, AAT1 determined:

   ·the Applicant suffered from non-Hodgkin’s lymphoma; and

   ·the Applicant’s condition was fully diagnosed, but was not fully treated or fully stabilised (T2 3-8) (R1).

10. On this basis, AAT1 found the condition did not qualify for an impairment rating.

11. On 25 May 2017, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a second review of the decision for the following reasons:

    How am I to gain 20 points under the impairment table if my cancer will never be fully treated because it is incurable cancer.  It is life long and will be the cause of my death. It will never be stabilised as this cancer reacts differently every time it grows.

    As I write this, I am currently in Royal Perth Hospital. Last week my chemotherapy did not take as well as planned. I have been readmitted because of very large tumours in my abdomen causing severe pain. Another, more intense chemotherapy is being scheduled tomorrow with Dr Peter Tan (T1 2) (R1).

12. The matter was heard in Perth on 16 March 2018. The Applicant appeared by telephone and Ms Zing of Mills Oakley Lawyers appeared for the Respondent.

13. The Tribunal would like to thank both the Applicant and Respondent for their assistance during the hearing.

    RELEVANT LEGISLATION AND ISSUES

14. The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.

15. Section 94 of the Act provides the criteria for DSP, relevantly:

    (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)       …

    QUALIFICATION PERIOD

16. Section 94 of the Act must be read in conjunction with Schedule 2 subclause 4(1) of the Administration Act. In accordance with the requirements of Schedule 2 subclause 4(1) of the Administration Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case that 13 week period is between 13 June 2016 to 12 September 2016 inclusive, known as the “Qualification Period”.

17. For a claim to be successful, a person must be qualified for DSP during the Qualification Period. Changes in medical condition that occur later are not relevant to this claim, they may however, be relevant to a future claim. See Re Bobera and Secretary, Department of families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1].

    ASSESSING IMPAIRMENTS AND ASSIGNING AN IMPAIRMENT RATING

18. The impairment tables referred to in subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables”.

19. Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AAT 399 Senior Member Isenberg explained the operation of the Impairment Tables as follows:

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. 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. A claimant's impairment is to 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: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

    Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsection 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

20. Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using impairment tables and assign impairment ratings. In particular, subsection 11(1) of the Determination states that if an impairment is considered as falling between two impairment ratings, the lower of the two 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

21. As set above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:

    (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

    (b)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

    (c)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.

    (Emphasis added.)

22. “Severe impairment” is defined in subsection 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.

23. Subsection 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 subsection 94(3C).

24. Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP. 

25. The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to 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 not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179).

    ISSUES FOR DETERMINATION

26. The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP during the Qualification Period for the purposes of section 94(1) of the Act.

27. This requires consideration of whether:

    (a)the Applicant had any physical, intellectual or psychiatric impairment; and

    (b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and

    (c)if so, whether the Applicant had a ‘continuing inability to work’ as defined in section 94(2) of the Act.

    EVIDENCE

28. The Tribunal received the following evidence:

    ·Exhibit A1 – Letter from Dr Weedon, dated 21 October 2017;

    ·Exhibit A2 – Letter from Dr Peter Tan, dated 17 August 2017;

    ·Exhibit R1 – T documents, T1-T21, pp 1-193, received on 30 June 2017; and

    ·Exhibit R2 – Secretary’s Statement of Issues, Facts and Contentions (SOFIC), dated 24 January 2018 (includes Secretary’s list of authorities and annexures A, B and C).

29. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.

30. The Applicant gave the following affirmed evidence at hearing, including during cross-examination by Ms Zing.

    Non-Hodgkin’s lymphoma

31. The Respondent contends in the SOFIC that:

    …

    [10.1]the Applicant suffers from non-Hodgkin’s Lymphoma, which was fully diagnosed, treated and stabilised as at the date of claim; and

    [10.2]the Applicant satisfied the requirement of active participation in a program of support in the three years immediately prior to claim (R2 2).

32. The Respondent further contends that the Applicant did not qualify for DSP for the following reasons:

    11.1the Applicant did not have a total impairment rating of 20 points or more under the Impairment Tables;

    11.2the Applicant did not have a continuing inability to work;

    11.3the Applicant’s work capacity was assessed at the time as 15-22 hours per week within two years with intervention in light, less skilled work (R2 2).

33. The Respondent’s contentions in the SOFIC are based on the following:

    33.The Secretary accepts that the Applicant's medical condition of follicular non-Hodgkin’s Lymphoma was fully diagnosed, fully treated and fully stabilised (FDTS) [Emphasis added] during the qualification period. The Secretary has considered the following in this regard:

    33.1 Two reports by Dr Paul Cannell dated 29 April 2005 and 14 April 2008 which each describe the Applicant's medical condition as ‘incurable’ and state treatment will ‘require intermittent cycles of chemotherapy and possibly radiation’. Dr Cannell also stated ‘in the long term it is likely that her general health will deteriorate’ [reference omitted].

    33.2The Applicant underwent two cycles of chemotherapy in the period between her diagnosis with follicular non-Hodgkin’s lymphoma and the qualification period; in August 2004 and again in February/March 2007 [reference omitted].

    33.3The Applicant explained that she was reluctant to undergo a CT scan because of the risk of exposure to radiation [reference omitted]. She also advised she did not want to embark on further high dose chemotherapy as at 16 March 2016, which may be relevant to her contention that she suffers more than most with colds and flu [reference omitted].

    33.4Dr Weedon reported that when he reviewed the Applicant on 10 June 2016, she advised that she did not want further chemotherapy and was pursuing naturopathic remedies [reference omitted].

    33.5A report by Dr Tan dated 20 September 2016 noted that the Applicant was under review for possible further treatment [reference omitted].

    33.6A later report by Dr Tan dated 17 August 2017 [reference omitted] stated that the Applicant underwent a PET scan in September 2016 and had further chemotherapy in May 2017, and that the Applicant had potential for improvement if she continued to respond to therapy. Dr Tan noted that the Applicant had been “unable to care for herself post chemotherapy and this is expected”.

    33.7A letter from Dr Tan dated 2 January 2018 [reference omitted] indicated that the Applicant had a risk of recurrent infection of the upper respiratory tract due to the lymphoma causing severe hypogammaglobulinaemia. In relation to treatment undertaken by the Applicant, Dr Tan stated that the Applicant had “preferred less intense therapy options and therefore therapy was tailored to her health”. Dr Tan stated that there were no further investigations, specialist referrals or treatments yet to be undertaken as of 13 June 2016.

    34.The Secretary contends that the nature of the Applicant’s condition is such that further reasonable treatment may not provide a 'significant functional improvement' such that the Applicant would be able to undertake work in the next two years. Therefore, in accordance with paragraph 6(6)(b)(i) of the Impairment Tables, the Secretary accepts the Applicant's condition as being FDTS during the qualification period (R2 6-7).

34. In addition, at the hearing the Respondent drew to the attention of the Tribunal the need to look at the medical condition of the Applicant during the Qualification Period and the authorities that support that contention.

35. The Applicant contends her condition commenced when she was in her mid – twenties. She commenced treatment but didn’t continue.

36. In her late twenties, she began periods of feeling unwell and had to take large periods of time on sick leave, using both her annual and sick leave entitlements for this purpose.

37. Her condition deteriorated over time and in 2016 she discovered further lumps. This resulted in her GP referring her to Royal Perth Hospital and the whole process of scans and treatment commenced.

38. The Applicant is generally not a well person who suffers from colds, flu, nausea, tiredness and headaches. These conditions last longer than normal because of the impact of her condition on her immune system.

39. She said her lifespan was short and she required the assistance of her son who was a year 12 student to assist her with many activities. She also said because of her deteriorating condition even if she could work, no employer would offer her a position given the time off she would need to take.

40. Under cross examination by the Respondent, the Tribunal reminded the Applicant to cast her mind back to the qualification period and whilst her condition may have deteriorated since then, that might well be the subject of a separate application.

41. Initially, she said she did not agree that her condition was categorised under Table 1 of the Impairment Tables. The Respondent however, went through each descriptor of 20 points of the table and took her through the introduction.

42. The Tribunal acknowledges that the responses of the Applicant must be viewed in the context of good and bad days. Questioned by the Tribunal, the Applicant said she had more bad days than good days and the bad days could last up to 3 weeks lying in bed.

43. Whilst there is no evidence before the Tribunal to corroborate this in the form of medical evidence, the Tribunal believes it is important to understand this from the perspective of context.

44. The Applicant agreed she could self-care, cook and clean her house. She could walk to an estimate of 45 minutes, however did not exercise often. She did her shopping and walked from her car to the shopping centre with the assistance of her son. She could take public transport but preferred to drive.

45. Her condition worsened in winter as she became more exposed to colds, flus and a range of infections. Her immune system given the treatment she is under has left her in a state of very low tolerance.

46. When she had bad days, she didn’t go to her GP, because there was nothing he could do, other than prescribe antibiotics which further impacted on her immune system.

    CONSIDERATION

    Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments

47. The Tribunal accepts that at the date of the claim the Applicant suffered from the condition of follicular non-Hodgkin’s Lymphoma. This has been substantiated by medical evidence before the Tribunal.

1. The Respondent accepts the fact that the Applicant’s condition at the time lodging her application for DSP is FDTS.

2. The Applicant has a condition that at this point in time of medical science is incurable.

3. The Tribunal accepts that the Applicant satisfies subsection 94(1)(a) of the  Act.

   Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination

4. The Respondent accepts the Applicant’s condition should be assessed under Table 1 of the Impairment Tables.

5. The Respondent accepts the Applicant has an incurable disease.

6. The Respondent contends that having regard to the evidence before the Tribunal, the Applicant’s condition can only generate an impairment rating of 10 points.

7. The Tribunal finds the Applicant to be a truthful person who gave her evidence in a careful and measured way. There is no doubt in the Tribunal’s view that the Applicant is not a well person and is suffering from an incurable disease.

8. The Tribunal however, has no corroborating evidence before it to indicate that the Applicant’s condition is a severe impairment that would attract 20 points under Table 1 of the Determination during the Qualification Period.

9. The Tribunal finds that the Applicant’s condition during the time of the Qualification Period does generate an impairment rating of 10 points. This confirms the evidence before the Tribunal that the Applicant’s condition had a moderate functional impact on activities requiring physical exertion or stamina.

   Whether the Applicant has a continuing inability to work (CITW)

10. The Tribunal finds that the Applicant has generated 10 impairment points and therefore fails to satisfy subsection 94(1)(b) of the Act. Given the finding, it is not necessary for the Tribunal to consider subsection 94(1)(c) of the Act.

    DECISION

11. For the reasons above, the Applicant does not qualify for DSP. The decision of AAT1 is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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Associate

Dated:  1 June 2018

Date of hearing:	16 March 2018
Applicant:	By telephone
Representative for the  Respondent:	Ms A Zing
Solicitors for the Respondent:	Mills Oakley Lawyers