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

[2016] AATA 700

Cole and Secretary, Department of Social Services (Social services second review) [2016] AATA 700 (9 September 2016)

Division	GENERAL DIVISION
File Number	2015/6831
Re	Gregory Cole
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	D. J. Morris, Member
Date	9 September 2016
Place	Perth

The Tribunal affirms the reviewable decision.

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

D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – common impairments only attract ratings under one Impairment Table – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1991 – s 94 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2) – s 94(5)

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

REASONS FOR DECISION

D. J. Morris, Member

9 September 2016

BACKGROUND

1. Mr Gregory Cole applied for Disability Support Pension (DSP) on 16 March 2015.

2. The Department considered his application and decided on 23 April 2015 that he was not qualified for DSP under the provisions of section 94 of the Social Security Act 1991 (the Act) because he had been assessed as having an impairment rating of less than the required 20 points.

3. Mr Cole disagreed with that decision and asked for it to be reviewed by an Authorised Review Officer (ARO).  An ARO, while an officer of the Department of Social Services (‘the Department’), reviews decisions made by Department officers independently.  The ARO decided on 18 September 2015 that the original decision that Mr Cole was not qualified for DSP was correct.

4. Mr Cole asked for a review by the Social Services and Child Support Division of this Tribunal (AAT1).

5. That hearing was held on 1 December 2015.

6. AAT1 affirmed the original decision.  In other words, having considered the documents and other evidence given by Mr Cole, AAT1 decided that the Applicant was not qualified for DSP.

7. Mr Cole has now sought a review of the decision by the General Division of the Tribunal.  That is this hearing.

8. The hearing was held on 23 August 2016. Mr Cole represented himself. The Respondent, who is the Secretary of the Department, was represented by counsel, Ms Ada Wong.  Mr Cole gave evidence under oath and was cross-examined by counsel for the Respondent.

9. The Respondent submitted documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).

10. Mr Cole submitted two additional documents:

    ·An undated medical certificate from Dr Daniel Hoffman, submitted to the Tribunal on 1 April 2016 (Exhibit A1); and

    ·A further medical certificate from Dr Hoffman, dated 15 February 2016 (Exhibit A2).

    QUESTION BEFORE THE TRIBUNAL

11. Was Mr Cole qualified for DSP on the date of his application, 16 March 2015, or, applying the provisions of clause 4(1) in Schedule 2 to the Social Security (Administration) Act 1999, if he was not eligible on the date of claim, did he become eligible in the thirteen week period after that date.

12. The thirteen week period concludes on 15 June 2015.

13. Eligibility in this sense means satisfying all provisions of section 94 of the Act.

    THE LAW

    Qualification for DSP under the Act

14. The law applicable to the grant of DSP is the Social Security Act and in particular section 94 of that Act.

15. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has –

    (a)a physical, psychological or mental impairment;

    (b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)a continuing inability to work.

16. The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

17. The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.

18. So, therefore, for a person to be qualified for DSP, the person must have impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.

19. An important additional requirement is that if a person is assigned 20 or more points under one Impairment Table – that means the impairment is assessed to be a ‘severe’ impairment. If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    Does the Applicant have a physical, intellectual or psychiatric impairment?

20. In his medical report dated 28 April 2014, Dr Anthony Sciberras, general practitioner, said that Mr Cole suffers from the following diagnosed medical conditions: type 2 diabetes mellitus, pontine stroke, arthritis of the knee.  Dr Sciberras reported that the diagnosis of the pontine stroke condition is confirmed by Dr David Prentice, physician, of the Stroke Unit of Royal Perth Hospital.  Dr Daniel Hoffman, general practitioner, in his medical report of 14 June 2014 said that Mr Cole has had “acute pontine stroke 2011 previous multiple episodes TIA”.  Dr Hoffman also referred to three other diagnoses: type 2 diabetes, hypertension and depression.

21. The Respondent concedes that Mr Cole has a number of impairments.  Based on this corroborated medical evidence, I agree.

22. The Tribunal finds that the Applicant does satisfy section 94(1)(a) of the Act in that he did have a number of medical conditions giving rise to impairment on the date of claim.

    If so, what is the correct rating under the Impairment Tables?

23. When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.

24. In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

25. In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner, and the condition must be fully treated and fully stabilised.

26. As found above, Mr Cole has a number of medical conditions which the Respondent conceded were capable of giving rise to an impairment as at the date he lodged a claim for DSP, 16 March 2015, for the purposes of section 94(1)(a) of the Act.

    Pontine stroke / Transient Ischaemic Attacks

27. Various medical reports and evidence of the Applicant corroborated that he had a pontine stroke in 2011. Dr Hoffman reported that Mr Cole had suffered a series of “multiple strokes”. 

28. The Respondent conceded that the pontine stroke was fully diagnosed, fully treated and fully stabilised. The correct Impairment Table to assess a stroke is Table 7 – Brain Function.

29. Mr Cole gave evidence that he had difficulty with his memory, such as sometimes having to count change several times.  He said that he might begin to mow his lawn and 15 minutes later lose concentration.  He said that he will make plans at the beginning of the day but “they don’t work out.  I feel like a zombie”.

30. He was hospitalised after his stroke but discharged himself too early and had to return to hospital for 2 or 3 days.  He told the Tribunal that he lives by himself.  He previously lived with a housemate but that person had recently moved out.  He said that he cooked most days for himself.  He owns a dog and walks her each day to the local dog park, which he estimated was between 200 and 300 metres from his house.  He says he carries out the usual domestic chores at home such as cleaning, weekly laundry and, living in a small block of units, he will interact with some of his neighbours. 

31. The Applicant told the Tribunal he sees friends once or twice a week for coffee and will attempt the crossword in the local newspaper.  He drives and occasionally uses public transport, but he prefers to walk to the local shops.  He periodically visits his sister, who lives about 15 minutes driving time from his house.  Mr Cole said that he pays his bills at the local post office, which is in the shopping centre.

32. He advised the Tribunal that he used to enjoy lawn bowls and was a first division player but, after his stroke, he said he was no longer selected for competition and this reduced his enjoyment of the game.  He also said there was a financial reason for giving up playing.  At home, Mr Cole said he will watch television; he told the Tribunal he had never been keen on reading.  He said he had a personal computer and would play solitaire on it.

33. He said that a friend helps him with his finances.  She has his bank card and gives him cash each week as he needs.  He told the Tribunal that the reason he had this arrangement was because of an historic issue with gambling, so he preferred not to have ready access to cash.  It was not because he was inherently unable to organise his finances and he confirmed that, if he needed to, he could use an automatic teller machine.

34. I find that Mr Cole does have memory difficulties and episodic trouble maintaining concentration, but his condition does not achieve the ‘severe’ rating: he understood and participated in the hearing; he was able to give cogent evidence about previous medical appointments and his daily activities; he told the Tribunal that he played card games on his computer and enjoyed doing the crossword.  Mr Cole regularly sees his circle of friends and interacts with his family.  He maintains regular routines such as walking his dog, shopping and regularly paying his bills on Saturdays at the local post office.

35. On the medical evidence and the evidence the Applicant gave to the hearing, and applying the Descriptors in Table 7, I conclude that the correct assignment of impairment Table points for Mr Cole’s pontine stroke/TIA condition is 10 points: it has a moderate impact on his activities.

    Depressive condition

36. Dr Hoffman in his medical report of 14 June 2014 records that Mr Cole suffered “depression” but that it was generally well managed.  Other reports indicate that the depression came about following the pontine stroke in 2011.

37. Under the Minister’s Determination, a mental health condition must be assessed using Table 5 – Mental Health Function.  On page 22 of the Determination, in the Introduction to Table 5, it is stipulated that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner, which includes a psychiatrist and, if the diagnosis is not made by a psychiatrist, evidence is needed from a clinical psychologist.

38. The Tribunal had before it a medical report dated 21 September 2014 from Mr Adam Emrah Ates, clinical psychologist. The Australian Health Practitioner Regulation Agency confirms that Mr Ates has a clinical psychology speciality.

39. Mr Ates diagnosed the Applicant with “major depressive disorder” and said that Mr Cole self-reported symptoms of depressive disorder from 2006 when he lost a job he had had for more than 30 years and that the symptoms were “perpetuated” by Mr Cole’s stroke in July 2011.

40. Mr Ates described cognitive treatment he had administered to Mr Cole and that he had prescribed the antidepressant Pristiq.  Mr Ates described:

    ongoing sleeping, attention and memory problems for the last three years and that these symptoms have been interacting with his normal daily life functioning.

41. When a person may have more than one condition which cause a common impairment, regard must be had to Rule 10(5) of the Minister’s Determination.  Rule 10 (5) says:

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

42. Accordingly, the Tribunal cannot consider effects on Mr Cole’s daily life from his depressive condition which have already been taken into account in assigning impairment points to him for his pontine stroke condition.

43. Even if it was open to the Tribunal to do that, and I was able to consider the functional impact on activities under Table 5, the correct assignment of points for this condition would be zero. Mr Cole has no difficulties with self-care and independent living.  On his own evidence he interacts with his friends, family and neighbours, regularly. He was able to organise himself relatively well, if sometimes losing concentration and having memory lapses.

44. Accordingly, no impairment points may be correctly assigned for the Applicant’s mental health condition.

    Other medical conditions

45. Mr Cole has osteoarthritis in his right knee. Dr Sciberras, in his medical report of 28 April 2014, said that this condition was well managed and caused minimal or limited impact on his ability to function. In terms of Mr Cole’s diabetes, Dr Hoffman in his medical report dated 14 June 2014 stated that it was well managed and caused minimal or limited impact on Mr Cole’s daily activities.

46. There was no evidence before the Tribunal that Mr Cole’s arthritis, diabetes or hypertension conditions cause functional impairment. They are well managed and he takes medication for them.

    CONCLUSION

47. Mr Cole was a frank and open witness before the Tribunal.  His evidence was consistent with the medical reports before me, and in general with the conclusions of the Job Capacity Assessment Reports which were in the T-documents.

48. I have found that Mr Cole was correctly allocated 10 points under the Impairment Tables, and the consequence of that is he does not satisfy the essential criterion of 20 or more points as set out in section 94(1)(b) of the Act. It is not therefore necessary for me to go on to consider whether or not the Applicant has a continuing inability to work, because all parts of section 94 must be met for qualification for DSP.

    DECISION

49. As the Applicant was not qualified for DSP on the date of claim and did not become so qualified in the relevant period, the original decision was correct.

50. The reviewable decision is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member

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

Administrative Assistant

Dated 9 September 2016

Date of hearing	23 August 2016
Applicant	In person
Representative for the Respondent	Ms A Wong
Solicitors for the Respondent	Mills Oakley Lawyers