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

[2022] AATA 2521

Clarke and Secretary, Department of Social Services (Social services second review) [2022] AATA 2521 (4 May 2022)

Division:GENERAL DIVISION

File Number:2021/7097          

Re:Jamie Todd Clarke  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:4 May 2022

Place:Adelaide

The Tribunal affirms the decision under review.

……………………[Sgnd]…………………….

Senior Member K Millar

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – where condition not fully diagnosed and cannot be assigned impairment points – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

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

REASONS FOR DECISION

Senior Member K Millar

4 May 2022

BACKGROUND

1. Mr Clarke first lodged a claim for a Disability Support Pension on 10 March 2021. His claim was refused, and subsequent reviews by an Authorised Review Officer and the Social Services and Child Support Division of this Tribunal (‘AAT1’) affirmed this decision. Mr Clarke seeks a review of the decision to refuse his application.

2. To be granted a Disability Support Pension, Mr Clarke must have a physical, intellectual or psychiatric impairment, his impairments must attract 20 or more points on the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the ‘Impairment Tables’), and he must have a continuing inability to work. If he does not have a severe impairment as defined in the Social Security Act 1991 (Cth) (the ‘Act’), he must have actively participated in a program of support to meet the requirement to have a continuing inability to work.

3. In his application form, Mr Clarke stated he suffers from autism, polymorphous light eruption and is colour blind.

4. The Authorised Review Officer found that Mr Clarke’s autism condition results in an impairment rating of 5 points, but his condition of polymorphous light eruption was not fully diagnosed and could not be assigned impairment points. As a result, he did not have 20 impairment points and did not qualify for Disability Support Pension.

5. Mr Clarke sought review of this decision and AAT1 affirmed the decision, also finding Mr Clarke’s condition of autism attracted 5 impairment points but his condition of polymorphous light eruption was not fully diagnosed. 

   QUALIFICATION FOR DISABILITY SUPPORT PENSION

6. Under s 94(1) of the Act, to qualify for a Disability Support Pension a person must have a physical, intellectual or psychiatric impairment, the impairment or impairments must be of 20 points or more under the impairment tables and the person must have a continuing inability to work.

7. The time in which Mr Clarke must meet these requirements starts on the date he claimed Disability Support Pension and ends 13 weeks after this date.[1] Mr Clarke claimed Disability Support Pension on 10 March 2021, and the 13-week period ends on 9 June 2021 (the ‘claim period’).

   [1] Sections 41 and 42 of the Administration Act, Clause 4 of Schedule 2 of the Administration Act, and Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

8. Any new conditions, a deterioration in Mr Clarke’s existing conditions, or conditions that were only fully treated, diagnosed and stabilised after the end of the assessment period cannot be considered in assessing his qualification for this claim.

9. The Secretary accepts Mr Clarke had impairments in the assessment period, but disputes he has impairments that attract 20 impairment points.

   Does Mr Clarke have an impairment of 20 points or more under the impairment tables?

10. The Impairment Tables set out rules for when an impairment rating can be assigned and provide a rating system. To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment must be more likely than not, in light of available evidence, to persist for more than two years.[2]

    [2] Clause 6(3) of the Impairment Tables.

11. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated, fully stabilised and more likely than not to persist for two years.[3]

    [3] Clause 6(4) of the Impairment Tables.

12. In deciding if a condition is fully diagnosed and treated, corroborating evidence of the condition, the treatment and rehabilitation that has occurred and whether treatment is continuing or planned in the next 2 years is to be considered.[4]

    [4] Clause 6(5) of the Impairment Tables.

13. The Impairment Tables set out at clause 6(6) when a condition is considered fully stabilised. A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years.[5] Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity,[6] and that has a high success rate.[7] 

    Which of Mr Clarke’s conditions were fully diagnosed, fully treated and fully stabilised and likely to persist for two years in the assessment period?

    [5] Clause 6(6)(a) of the Impairment Tables.

    [6] Clause 6(7)(c) of the Impairment Tables.

    [7] Clause 6(7)(e) of the Impairment Tables.

14. In his application form, Mr Clarke lists his conditions as autism and polymorphous light eruption. 

15. Mr Clarke also refers to colour vision deficiency, but states that was for completeness rather than as having a functional impact. Having considered Table 12 – Visual Function, it is apparent this condition would not attract impairment points and this condition was not considered further. 

    Autism Spectrum Disorder

16. Mr Clarke was diagnosed with Asperger’s Syndrome in 2009 by a speech pathologist at Autism SA. A medical assessment for mobility allowance by a medical practitioner dated 9 October 2012 reports Mr Clarke has Asperger’s Syndrome, and this diagnosis is also contained in the referral from Dr Pahuja dated 14 July 2021. Autism SA reports that Mr Clarke is a registered client with a diagnosis of autism spectrum disorder using the prevailing diagnostic criteria in 2009. 

17. Mr Clarke lives independently and said the effect of this condition at home is limited. He will at times forget to put the rubbish bins out or forget a holiday. He has implemented various technological solutions to prevent this from occurring. He states he never forgets matters relating to the care of his daughter, including taking her to school and picking her up. 

18. He said his condition results in eccentric behaviour in that he does not deal well with people, and has problems maintaining eye contact. He worked for a period at EB Games selling computer games, but has trouble with repetitive and monotonous tasks, and could not cope with mundane situations even for a short period of time. He states he would not be able to pack shelves with cans for half an hour. He states loud or shrill noises or anything that affects him in a negative way means that he cannot tolerate workplaces with such an environment for more than a moderate period of time.

19. Mr Clarke completed the academic requirements for a Certificate III in retail but did not complete the work experience component.

20. Mr Clarke generally manages his condition with the assistance of technology which he has implemented into his life with success. His impairment is to be assessed when he is using technology he has and usually uses.[8]

    [8] Clause 9 of the Impairment Tables.

21. Mr Clarke is able to complete most day to day activities without assistance and has mild difficulty with his memory. This results in an impairment rating of 5 points. 

    Polymorphous light eruption

22. Mr Clarke states he suffers polymorphous light eruption. This is a rash which follows exposure to ultraviolet light. Mr Clarke states that for a period of time after exposure and before the steroid creams he applies to his skin take effect, he suffers from an intensely itchy and uncomfortable rash. He has provided medical reports, however, none of the doctors have seen the rash that results from his exposure outside of him showing them pictures on his phone. Mr Clarke reports that on the occasion he consulted a dermatologist he did not have the rash, and on other occasions he has attempted to see a doctor when the rash was present, it had subsided by the time the doctor was available to see him.

23. The condition of polymorphous light eruption first appears on a medical certificate dated 19 January 2021 preceded by a question mark. This medical certificate states this condition is temporary and Mr Clarke has been referred to a dermatologist. The referral of the same day states Mr Clarke has had this condition for the last 12 years, mostly in summer, and it is triggered by exposure to sunlight. It states the rash appears on his upper limbs and torso and not his face or lower libs. It is reported to last about 2 hours and is worse in summer and is very itchy. The report states on examination no rash was present, and Mr Clarke showed his doctor a photo on his mobile phone. 

24. Dr Colin Ooi, dermatologist, provided a report dated 22 February 2021. This is the only occasion Mr Clarke has seen Dr Ooi. Dr Ooi reports he saw Mr Clarke on 15 February 2021 and that:

    “When he attended my clinic he did not have a flare up of the rash so a firm diagnosis was not possible to be made however we did have a chat about the possibility of him having a rare skin condition called polymorphous light eruption…. Should the rash develop and be quite dramatic in presentation he can always call my clinic and leave a message and I will do my best to squeeze him in. If he does come in and the rash is evident I could potentially establish a firm diagnosis by taking a biopsy of the tissue and sending it to a pathologist for assistance with the diagnosis.” 

25. In Dr Ooi’s letter to Mr Clarke’s general practitioner dated 11 March 2021, he states:

    “Thank you for sending in 26 year old Jamie whose rash was not present today. He said he had a mild episode this week already and showed me a photograph taken back at the end of January of his left forearm where he had a mild rash… He has also looked online and felt his rash fitted in with a skin condition called polymorphous light eruption. He has developed this rash almost annually for the last 12 years.

    It is possible that his symptoms could be part of a recurrent form of polymorphous light eruption…

    I have recommended that he use Diprosone cream twice daily should he develop a recurrence. Should he develop a severe episode that is extensive and not responding to topical steroids then he can call and leave a message for me and I will do my best to squeeze him in and assess him on the day.

    For a severe outbreak I could consider oral Prednisolone to bring it under control quickly or could potentially take a biopsy if the rash looked a but [sic] unusual.” 

26. Dr Ooi provided a letter dated 19 October 2021 in which he states he saw Mr Clarke on one occasion on 15 February 2021, and that Mr Clarke has contacted his office to seek a letter of support to say he has recurrent polymorphous light eruption. It states that Mr Clarke did not have the rash when Dr Ooi saw him on 15 February 2021, but that Mr Clarke described a rash developing on his skin after sun exposure. Dr Ooi felt he had polymorphous light eruption and recommended a topical steroid cream. Dr Ooi states Mr Clarke sent him a photograph on 11 October 2021 of a rash on his arm consistent with polymorphous light eruption. 

27. A further report dated 21 December 2021 from Dr Ooi specifies the current treatment of Eleuphrat cream and states there are no other treatments that would produce a more favourable outcome or prevent symptoms. 

28. Mr Clarke acknowledged the most recent report of Dr Ooi dated 1 April 2022 is based on an email Mr Clarke drafted for Dr Ooi, to which Dr Ooi made some changes. This states a biopsy is not necessary or realistic given the length of an episode and the travel time to see a doctor. It responds to suggestions regarding previous treatments such as oral Prednisolone, Vitamin D therapy and UV treatment. 

29. The report of Dr Ooi dated 22 February 2021 is contemporaneous with his examination of Mr Clarke. At this time Dr Ooi stated, among other things, that a firm diagnosis could not be made, and that polymorphous light eruption was a possible diagnosis. Mr Clarke acknowledged that no doctors have seen the rash when it is present apart from one doctor who prescribed Phenergan in 2008. Since this date, Dr Ooi has provided a series of letters in response to requests from Mr Clarke to refute various propositions put to him about whether his conditions were fully treated. The views expressed in Dr Ooi’s later reports are not consistent with his earlier impressions. 

30. The Tribunal prefers the more contemporaneous records of Dr Ooi of his consultation 22 February 2021 and 11 March 2021 and his assessment at that time. At that time, Dr Ooi reported polymorphous light eruption was a possible diagnosis, a firm diagnosis could not be made, and that a biopsy would confirm the diagnosis.  

31. Ms Dionysus, a registered nurse who works in the Health Professional Advisory Unit of Services Australia gave evidence to the Tribunal. Ms Dionysus had made an assessment of Mr Clarke’s condition in light of the further information provided by Dr Ooi. She did not examine Mr Clarke and has not seen a patient with polymorphous light eruption. Ms Dionysus considers the condition is not fully diagnosed as differential diagnoses of heat rash, urticaria, and allergic reaction has not been considered. A definitive diagnosis could have been made by eliciting a response using UVA or UVB phototherapy equipment which Dr Ooi has available at his practice. Usual diagnostic procedure from biopsy or blood pathology showing inflammation markers were not present. In the reports, the medical practitioners had stated the rash was not present when Mr Clarke was examined.  

32. As there are no medical reports showing Mr Clarke had the rash when he was assessed, and Dr Ooi’s assessment at the time he saw Mr Clarke was that this condition was a possibility, but further examination or tests would be required, the Tribunal is not satisfied that it is fully diagnosed. As it is not fully diagnosed, impairment points cannot be assigned. 

    CONCLUSION

33. The total impairment rating for Mr Clarke is 5 points. As Mr Clarke does not have an impairment rating of 20 points or more under the Impairment Tables he does not meet the requirements in s 94(1)(b) of the Act, and does not qualify for Disability Support Pension.

    DECISION

34. The Tribunal affirms the decision under review. 

    ……………[Sgnd]………………

    Legal Administrative Assistant

    Dated: 4 May 2022

Date of hearing:	8 April 2022
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Nadia Markov, Services Australia