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

[2015] AATA 636

Claydon and Secretary, Department of Social Services (Social services second review) [2015] AATA 636 (27 August 2015)

Division	GENERAL DIVISION
File Number	2015/1977
Re	Kim Claydon
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	27 August 2015
Place	Brisbane

The decision under review is affirmed.

........................[Sgd]................................................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the Impairment Tables – whether corroborating evidence of person’s impairment – insufficient evidence – decision under review affirmed.

LEGISLATION
Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), ss 41, 42, Schedule 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A C Cotter

27 August 2015

INTRODUCTION

1. Kim Claydon and his wife, Jocelyn, became self-employed in 1998, operating a commercial cleaning business. They operated that business mainly at night, mostly working on sites that had no staff present from between 6:00 in the evening to 6:00 in the morning. That allowed the Claydons to work together and earn a living.[1]

   [1] Exhibit 1, T Documents, T1, page 5.

2. After some years, both Mr and Mrs Claydon’s work capacity became limited by chronic illnesses from which they were respectively suffering. On the advice of their general practitioner, they ceased working on 19 December 2014.[2]

   [2] Exhibit1, T Documents, T1, page 5 and Exhibit 3, Applicant’s Statement of Facts and Contentions, page 1.

3. A few weeks before ceasing work, on 20 November 2014, Mr Claydon lodged a claim for Disability Support Pension (“DSP”). The supporting medical report by his general practitioner, Dr Jeanne Carpenter, listed two conditions, Type 2 Diabetes Mellitus and Ulcerative Colitis, as having a significant impact on his ability to function.[3] It also identified two other conditions, Bilateral Rotator Cuff Tendinitis and Bilateral Trochanteric Bursitis, as conditions that were generally well managed and that caused minimal or limited impact on Mr Claydon’s ability to function.

   [3] Exhibit1, T Documents, T 21, pages 101-111.

4. Following Mr and Mrs Claydon’s face-to-face interview with a Job Capacity Assessor (“JCA”), the claim for DSP was rejected. Reviews by an Authorised Review Officer and the Social Security Appeals Tribunal both affirmed the decision. Being still dissatisfied with the decision, Mr Claydon has applied to the Tribunal for a review.

   ISSUES FOR THE TRIBUNAL

5. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

6. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and the relevant impairment ratings are to be determined as at the date of claim (in this case, 20 November 2014). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[4] Therefore, the relevant period for considering whether Mr Claydon qualified for DSP is between 20 November 2014 and 19 February 2015.

   [4] See ss 41 and 42, and Schedule 2, cll 3 and 4(1) of the Social Security (Administration) Act 1999 (Cth).

7. After the claim was made but during the relevant period, an additional condition emerged for consideration. In a further report in January 2015, Dr Carpenter noted that Mr Claydon suffered from a Parkinsonian gait, but that had not yet been diagnosed as Parkinson’s Disease; Mr Claydon would have to wait to see a neurologist at the Royal Brisbane Hospital, which could take some 12 to 18 months.[5] In view of that waiting time, a private appointment has been made with a specialist for June next year.[6]

   [5] Exhibit 1, T Documents, T 31 page 167.

   [6] Exhibit 1, T Documents, T1, page 17.

8. A number of significant concessions were made by both parties prior to, and at the hearing.

9. For the Secretary, it was conceded that Mr Claydon had impairments arising from the various conditions identified in Dr Carpenter’s two reports.[7] I consider that concession was appropriate, meaning that the first of the criteria in s 94 of the Act was satisfied.

   [7] Exhibit 2, Secretary’s Statement of Facts and Contentions, paragraph [21].

10. At the commencement of the hearing, Mr Claydon indicated  that it was accepted that the Parkinsonian gait condition was not fully diagnosed, treated and stabilised,such that any impairment arising from it could not attract a rating under the Impairment Tables. In respect of the relevant period, Mr Claydon accepted impairment ratings of zero in respect of the impairments arising from the Diabetes Mellitus (Type 2),  the Bilateral Trochanteric Bursitis and the Rotator Cuff conditions (all of which were accepted by the Secretary as being fully diagnosed, treated and stabilised). Again, I thought that concession was appropriate.

11. As a result of those various concessions, the issues for my consideration were reduced to the following:

    (a)Whether the impairment from Mr Claydon’s Ulcerative Colitis could be considered severe and assigned 20 points under the relevant Impairment Table, Table 13 (Continence Function ); and

    (b)If so, whether he had a continuing inability to work.

12. I deal with those issues below.

    CONSIDERATION

    Does the impairment attract 20 points or more?

    The Secretary’s contentions

13. For the Secretary, it was contended that the impairment arising from the Ulcerative Colitis attracts a maximum of five points under Table 13. In saying that, reliance was placed on the face-to-face interview with the JCA on 8 December 2014 and the details recorded in the JCA’s report of 15 December 2014. Recording the symptoms /functional impacts, the report firstly reiterates what was noted by Dr Carpenter in her initial report in support of the claim, namely “abdominal pain; bloody diarrhoea; digestive issues; frequent bloody bowel motions”. It then goes on to outline what Mrs Claydon reported to the assessor:

    … symptoms worsen/breakouts with stress; breakouts 3-4/year for about a fortnight; between breakouts has – frequent gas; abdominal pain; faecal incontinence ~ fortnightly – requiring a clothing change; toileting ~ 6/day; decreased social contact due to embarrassment.[8] (Emphasis added)

    [8] Exhibit 1, T Documents, T 25, page 153.

14. That, it was contended, satisfies the descriptor 1(e) for mild functional impact: “the person has urgency or occasional (at least monthly) loss of control of bowel”. However, it was submitted that the reported frequency of the incontinence falls short of satisfying the severe (20 point) descriptors, which relevantly state:

    (a)the person’s condition may affect the comfort or attention of co-workers; or

    (b)the person has minor leakage from the bowel (e.g. enough faecal matter to soil underwear or continence pad but not outer clothes) every day; or

    (c)the person has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear or a continence pad) at least weekly. (My emphasis)

    Mr Claydon’s case

15. Mrs Claydon gave evidence in an endeavour to address those matters. As to the observations reported in the JCA’s report, she said that during the interview, the assessor did not question how many times it was necessary to change Mr Claydon’s clothes as a result of incontinence; the assessor simply volunteered that it occurred once every two weeks. Rather, Mrs Claydon said there is leakage “virtually always”, with resultant soiling of the underwear which requires soaking.  She said that because of incontinence, Mr Claydon’s clothes would need to be changed two to three times a week.  He would pass gas five to six times a day.

16. Because the loss of control could be both sudden and severe, it has limited their social life and stopped them going out. It affected their work life, in that they would choose to work at night in order to avoid people and minimise embarrassment.

17. As to the impact of Mr Claydon’s condition on the performance of their work, Mrs Claydon said that workers at the premises they cleaned complained of the odour in the toilet after Mr Claydon had used it. She said that the odour from his gas was “enough to clear a room”.

18. One of the contracts they had was for Toll Transport at the airport, which operated 24 hours a day, seven days a week. As a consequence, Mr Claydon could not avoid other people as there were always workers present. That job also involved a long walk (one kilometre each way) to another building on the airport site. They finished that contract in April 2014.

19. The Claydons continued with a smaller contract they had with Downers until the end of the year. It sometimes operated 24 hours, and they never knew whether any workers would be present until they arrived to clean the premises. There were two buildings to clean, an office and an amenities building. They were separated by an uneven surface which made it difficult and tiring for Mr Claydon to negotiate.

20. When asked why they finished working, Mrs Claydon volunteered that Mr Claydon was “totally exhausted”. She attributed that to both his Diabetes and Colitis. In support of that contention, Mrs Claydon relied on a medical certificate by Dr Carpenter dated 17 February 2015 which listed fatigue as one of the symptoms of Ulcerative Colitis.[9]

    [9] Exhibit 1, T Documents, T 1, page 20.

21. Based on that evidence, Mrs Claydon contended on behalf of her husband that the descriptors for severe impairment could be satisfied.

    The Impairment Tables’ requirements

22. An impairment rating can only be assigned in accordance with the rating points in each table. 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. In deciding between the different levels of functional impact, the relative descriptors for each rating in a table should be compared to determine what rating is to be applied.[10]

    [10] Section 11(1) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”). See Exhibit 1, T Documents, T 3, pages 66-67.

23. The rules for applying the Impairment Tables make it clear that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence. The impact of non-medical factors when assessing a person’s impairment must not be taken into account unless required under the tables.[11] Those instructions are further amplified in the Introduction to Table 13. It states that “self-report of symptoms alone is insufficient” and that there “must be corroborating evidence of the person’s impairment”.[12] Examples of corroborating evidence are given, such as a report from the person’s treating doctor, and assessments and reports from practitioners specialising in the treatment and management of incontinence (such as continence nurse advisors and continence physiotherapists).

    [11] Section 8 of the Determination. See Exhibit 1, T Documents, T 3, page 65.

    [12] See Exhibit 1, T Documents, T 3, page76.

24. The difficulty I have in the present case is that, notwithstanding Mrs Claydon’s evidence of the frequency and severity of Mr Claydon’s episodes of incontinence, there is no other evidence to corroborate those symptoms. Dr Carpenter’s report talks of “frequent bloody bowel motions”, but does not descend to detailing the severity and frequency as required by the descriptors for a severe (20 point) rating. The only report that addresses the issue is the JCA report, the accuracy of which Mrs Claydon challenges. As the assessor was not called to give evidence, I am unable to resolve that factual dispute as to what questions were asked during the face-to-face interview, what was said in response to those questions, and whether what is recorded in the report accurately reflects the content of the discussion.  That unresolved conflict highlights the need for corroborating evidence so that consideration can be given to the descriptors in paragraphs (3)(b) and (c) of the table relating to severe functional impact.

25. Similarly, I believe there is insufficient evidence concerning the effect which Mr Claydon’s condition had on the comfort and attention of co-workers (paragraph (3)(a) of the table for severe functional impact). Mrs Claydon’s evidence was the first occasion on which it was intimated that her husband’s condition had an impact on the employees of their clients. Unfortunately, it lacked any detail of specific occasions, incidents or complaints. The evidence concerning the reactions of, and complaints from, workers at the premises cleaned by Mr and Mrs Claydon would have been of assistance as regards the descriptor. While I appreciate the great sensitivity attaching to such matters, I would have expected to have seen some evidence of complaints made or concerns expressed by the Claydons’ clients.

26. Regrettably, without sufficient evidence to corroborate Mrs Claydon’s evidence, I am unable to satisfy myself that the descriptors for severe impairment have been met.  Without more, the maximum points I could assign under Table 13 is five.

27. Mrs Claydon’s evidence also suggests that Mr Claydon suffered fatigue as a result of, not only his Diabetes, but also his Ulcerative Colitis.  While that might be the case, there is presently little evidence before the Tribunal to support such a conclusion. The only medical evidence that Mrs Claydon could point to was a medical certificate of Dr Carpenter dated 17 February 2015, which simply noted fatigue as a current symptom, but without any further comment or explanation[13] (her two earlier reports having made no mention of fatigue as a symptom).[14] In any event, it was accepted by Mr Claydon at the commencement of the hearing that zero points should be allocated under Table 1. In those circumstances, I do not think any allocation of points under that Table is warranted.

    [13] See Exhibit 1, T Documents, T 3, page76.

    [14] See Exhibit 1, T Documents, T 21 page 108; Exhibit 1, T Documents, T 31 pages 167-178.

28. Therefore, based on the material before me, I do not think that at the time of claim and during the relevant period Mr Claydon’s impairments would have attracted 20 points or more under the Impairment Tables. As a consequence, he did not satisfy the second criterion under s 94 of the Act and thus did not qualify for DSP.

    Continuing Inability to Work

29. In view of my conclusion that Mr Claydon’s impairment did not attract 20 points or more, it is unnecessary to consider whether he had a continuing inability to work.

30. For completeness, however, I note that a continuing inability to work relevantly means that the person is unlikely to be able to work 15 hours a week in any job within the next two years, and training will not assist them to do any work in that time. The requirement, in the case of impairments that are not severe, that the applicant actively participate in a program of support, is not relevant here in light of the concessions on behalf of Mr Claydon – either he failed to have 20 points or more on Table 13 (as I have found) or his impairment would be severe.

31. The only assessment of Mr Claydon’s ability to work was that undertaken by the JCA, who considered that he would be able to work 15 to 22 hours per week within two years with intervention. Although Dr Carpenter expressed the opinion[15] that Mr Claydon could not do his usual work for eight hours or more a week, that comment was made in the context of a certification that he was temporarily unfit to work to 31 January 2015. 

    [15] Exhibit1, T Documents T 21, page 110.

32. Nor was there evidence that Mr Claydon’s impairments would prevent him from undertaking a training activity that would enable him to work within two years of the relevant period.

33. In the absence of any other evidence, I would have had difficulty finding that Mr Claydon had a continuing inability to work so as to satisfy the third criterion for DSP.

    CONCLUSION

34. For the reasons I mentioned earlier, I do not consider that Mr Claydon’s impairments attract 20 points or more under the Impairment Tables. As a consequence, he does not satisfy the second criterion under s 94 of the Act and therefore does not qualify for DSP.

35. I appreciate that this decision will be very disappointing for Mr and Mrs Claydon, but stress that it should not discourage a new claim from being made in the future.

36. The decision of the SSAT is affirmed.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Cotter

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Associate

Dated 27 August 2015

Date of hearing	16 July 2015
Advocate for the Applicant	Ms J Claydon
Solicitors for the Respondent	Mr A Burgess, Sparke Helmore