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

[2019] AATA 1646

Cirkel and Secretary, Department of Social Services (Social services second review) [2019] AATA 1646 (25 June 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6207

Re:Benjamin Cirkel

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:A G Melick AO SC, Deputy President
The Hon. S Parry, Member

Date:25 June 2019

Date of written reasons:        4 July 2019

Place:Hobart

The decision under review is affirmed.

...............................[sgd]......................................

A G Melick AO SC, Deputy President

SOCIAL SECURITY – disability support pension - whether fully diagnosed, treated and stabilised – whether impairments attract 20 points or more – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447

Gallacher and Secretary, Department of Social Services [2015] FCA 1123

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

WRITTEN REASONS FOR ORAL DECISION

A G Melick AO SC, Deputy President
The Hon. S Parry, Member

4 July 2019

1. A hearing was held on 25 June 2019 and both parties attended by telephone. The Applicant represented himself and the Respondent was represented by Mr Defranciscis. At the conclusion of that hearing the decision and reasons for it were given orally. The Applicant made a verbal request for written reasons pursuant to s 43(2A) of the Administrative Appeals Tribunal 1975 (the Act). Those reasons are set out below.

2. The Tribunal finds the facts as set out in the Respondent’s Statement of Facts, Issues and Contentions at paragraphs 4 to 14 are accurate and, therefore, we adopt those:

   4. On 30 March 2017, the Applicant lodged a claim for DSP, referring to his medical condition as ‘schizophrenia’ (T15, 89).

   5. On 6 April 2017, the Department of Human Services (the Department) requested medical evidence from the Applicant in support of the claim (T17, 95).

   6. On 1 May 2017, the Applicant’s claim was rejected on the basis that he failed to respond to the request (T18, 97).

   7. On 24 May 2017, the Applicant provided medical evidence to the Department and his claimed was re-opened (T27, 140).

   8. On 27 June 2017, an officer of the Department contacted the Applicant’s general practitioner, Dr Kulinski, to determine the extent of the impairment arising from the Applicant’s schizophrenia (T19, 99-100). The officer recorded the following:

   Dr Kulinski advised he sees the client rarely and was unable to comment and advised when he next saw the client he would recommend review with either a psychiatrist or a clinical psychologist.

   9. On the same day, a Job Capacity Assessment (JCA) report was produced, following a face to face assessment with the Applicant on 15 June 2017 (T20, 101-106). The JCA made the following recommendations:

   (a) The Applicant’s schizophrenia was fully diagnosed, but not fully treated or stabilised. The JCA relied on the documented history of non-compliance with medication, the lack of recent treatment and the recommendation from Dr Kulinksi for the Applicant to be referred to a clinical psychologist or psychiatrist for assessment.

   (b) The Applicant had a baseline and future work capacity within two years with intervention of 8-14 and 15-22 hours per week respectively.

   10. On 25 July 2017, the Applicant’s claim for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (T21, 107).

   11. On 23 October 2017, the Applicant sought review of the decision by an Authorised Review Officer (ARO) of the Department (T27, 146).

   12. On 26 July 2018, an ARO affirmed the decision under review, agreeing with the recommendations of the JCA (T25, 118-123).

   13. The Applicant sought further review of the decision by the AAT, and on 28 September 2018, the AAT1 affirmed the decision under review, agreeing with the findings of the JCA and ARO (T2, 10-13).

   14. On 25 October 2018, an Application for Review of Decision was lodged in the Administrative Appeals Tribunal (the Tribunal) (T1, 1-3).

3. The Tribunal notes the relevant legislation contained in the Act, the Social Security (Administration) Act 1999 , the Social Security Act 1991, the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) and the Social Security (Active Participation for Disability Support Pension) Determination 2014, which set out the relevant legislative requirements. Section 94 of the Social Security Act 1991 states:

   Qualification for disability support pension

   1A 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; and

4. The Impairment Tables relevant to the above contain ‘Part 2 – Rules for applying the Impairment Tables’, which must be satisfied before an impairment rating can be assigned. Paragraph 6(3) of the Rules to the Impairment Tables provides that an impairment rating can only be assigned for an impairment that arises from a condition that is ‘permanent’. Permanent is defined in paragraph 6(4) of the Impairment Tables to have a specific meaning for the purposes of paragraph 6(3). Paragraph 6(4) provides that a condition is permanent if:

   (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;

   (b)the condition has been fully treated;

   (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.

5. Noting the above, the Tribunal finds that the qualification period begins 30 March 2017 and concludes 29 June 2017.

6. The Tribunal also accepts that the case law set out by the Respondent in paragraphs 19 and 20 of its Statement of Facts, Issues and Contentions correctly sets out the relevant case law:

   19. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 the AAT stated (at [34]):

   34.In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

   20. Bobera was cited with approval in the case of Fanning and Secretary, Department of Social Services [2014] AATA 447, where DP Handley made the following pertinent observations:

   31.In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

   32.This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations  [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

   33.The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “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” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

7. The Tribunal notes that in Gallacher and Secretary, Department of Social Services [2015] FCA 1123 at paragraphs 25 to 29, the Federal Court affirmed the principle that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period.

8. The Secretary contended that these decisions establish that a decision maker, such as the Tribunal, can only consider the Applicant’s qualification for DSP within the qualification period. If the Applicant’s circumstances have subsequently changed, it may be appropriate for him to lodge a fresh claim for DSP.

9. This determination is in relation to the qualifying period 30 March 2017 to 29 June 2017 and at that time the Applicant was not under active treatment and no relevant medical reports were provided in support of his claim. Therefore, the Tribunal could not determine that the Applicant’s condition was fully treated and stabilised but likely to persist for two or more years, as required by s 94 of the Social Security Act 1991.

10. Noting the above, the Tribunal does not accept that the Applicant had an impairment rating of 20 points or more under the Impairment Tables because, inter alia, of the provisions of paragraph 6(3) of the Rules for applying the Impairment Tables, which must be satisfied before an impairment rating can be assigned.

11. Therefore, the Tribunal affirms the decision under review.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the written reasons for the decision herein of A G Melick AO SC, Deputy President and The Hon. S Parry, Member.

..................................[sgd]..................................

Associate

Dated: 4 July 2019

Date(s) of hearing:	25 June 2019
Applicant:	By telephone
Advocate for the Respondent:	Mr K Defranciscis
Solicitors for the Respondent:	Department of Human Services