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

Collett and Secretary, Department of Social Services (Social services second review) [2017] AATA 1412 (6 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3971
Re:Julie Collett
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member

Date:6 September 2017
Place:Perth

The decision under review is affirmed.
...............[sgd].........................................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant had conditions that were fully diagnosed treated and stabilised – whether applicant had 20 impairment points – upper limb condition (bilateral shoulder pain) – spine condition (osteoarthritis) – obstructive sleep apnoea – insomnia – obesity – rheumatological condition – hypothyroidism – bipolar affective disorder – attention deficit hyperactivity disorder – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 4(2), ss 94(1), ss 94(3B),
Social Security Administration Act 1999(Cth) – Sch 2, Cl 4(1)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Impairment tables 1, 5 and 7
REASONS FOR DECISION
L M Gallagher, Member
6 September 2017
INTRODUCTION

On 26 June 2015, Ms Collett lodged an application for Disability Support Pension (‘DSP’) with the Department of Human Services (‘the Department’) (T31). On her claim form, Ms Collett listed her ‘disabilities, illness or injuries’ as being “bipolar disorder,” “ADHD/ADD,” “underactive thyroid,” “ruptured (2) shoulder tendon,” “urology disorder,” “severely herniated discs,” “severely arthritic knees,” “polymyalgia,” “rheumatic,” “HRT,” “obesity” and “sleep disturbance.”
A medical report by Dr Katrina Marshall, Consultant Psychiatrist, dated 11 August 2015, prepared in support of Ms Collett’s claim for DSP (T33) listed her conditions as “bipolar affective disorder – type II,” “attention deficit hyperactivity disorder” (‘ADHD’) and “hypothyroidism.”
On 25 August 2015, a Job Capacity Assessment (‘JCA’) was conducted (T35). Ms Collett was assessed by a Registered Occupational Therapist and a Registered Psychologist. The JCA assessed Ms Collett as suffering from:
(a)Bipolar affective disorder (manic depression), which was fully diagnosed, fully treated and fully stabilised and assigned 10 points under Table 5 of the Impairment Tables (Mental Health Function);
(b)ADHD, which was fully diagnosed, fully treated and fully stabilised and assigned 5 points under Table 7 of the Impairment Tables (Brain Function);
(c)endocrine system dysfunction (hypothyroidism), which was fully diagnosed, fully treated and assigned zero points under Table 1 of the Impairment Tables (Functions Requiring Physical Exertion and Stamina) as it is adequately managed with minimal impact on Ms Collett’s ability to function;
(d)morbid obesity, respiratory disorder (sleep apnoea), shoulder and upper arm disorder, spinal disorder and musculoskeletal disorder which were fully diagnosed, but not fully treated or fully stabilised; and
(e)arthritis, which was not fully diagnosed, or fully treated or fully stabilised.
The JCA also found that Ms Collett did not have a continuing inability to work (‘CITW’) (T35).
On 27 August 2015, Ms Collett’s claim for DSP was rejected (T36) on the basis that Ms Collett did not achieve the required “20 points or more under the Impairment Tables.”
Ms Collett requested review of the Department’s decision dated 27 August 2015 and provided additional medical information. On 6 January 2016 an Authorised Review Officer (‘ARO’) of the Department affirmed the decision dated 27 August 2015. The ARO found Ms Collett’s conditions attracted a total impairment rating of 15 points, divided as follows:
(a)Bipolar affective disorder, which was fully diagnosed, fully treated and fully stabilised and assigned 10 points under Table 5 of the Impairment Tables (Mental Health Function);
(b)ADHD, which was fully diagnosed, fully treated and fully stabilised and assigned 5 points under Table 7 of the Impairment Tables (Brain Function);
(c)hypothyroidism, which was fully diagnosed, fully treated and fully stabilised and assigned zero points under Table 1 of the Impairment Tables (Functions Requiring Physical Exertion and Stamina) as it is adequately managed with minimal impact on Ms Collett’s ability to function;
(d)obesity, shoulder disorder, spinal disorder and musculo-skeletal disorder, which were fully diagnosed, but not fully treated or fully stabilised; and
(e)sleep apnoea, polymyalgia and gynaecological disorder, which were not fully diagnosed, or fully treated or fully stabilised.
The ARO also found that Ms Collett did not have a CITW (T41).
On 27 April 2016, Ms Collett applied to the Administrative Appeals Tribunal (‘Tribunal’) for a first review of the ARO decision dated 6 January 2016 (T2).
On 23 June 2016, the Administrative Appeals Tribunal Social Services and Child Support Division (‘AAT1’) affirmed the ARO decision dated 6 January 2016 (T2) on the basis that Ms Collett did not achieve the required 20 points or more under the Impairment Tables. The AAT1 found Ms Collett’s conditions attracted a total impairment rating of 10 points, divided as follows:
(a)upper limb condition (bilateral shoulder pain), spine condition (osteoarthritis in the spine) and lower limb condition (osteoarthritis in the knees), which were fully diagnosed, but not fully treated and not fully stabilised;
(b)conditions that impact upon physical exertion and stamina; being
(i)obstructive sleep apnoea, which was fully diagnosed, fully treated and fully stabilised, however there was no comment as to functional impact;
(ii)insomnia and obesity, which were fully diagnosed, but not fully treated and fully stabilised;
(iii)a rheumatological condition, which was not fully diagnosed, fully treated and fully stabilised; and
(iv)hypothyroidism, which was fully diagnosed, fully treated and fully stabilised however there was no evidence the condition caused functional impact in any domain, and
(c)mental health conditions, being ADHD and bipolar affective disorder, which were fully diagnosed, fully treated and fully stabilised and were together assigned 10 points under Table 5 of the Impairment Tables (Mental Health Function).
On 29 July 2016, Ms Collett applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 23 June 2016 for reasons including (T1):
“The psychiatrist has written a second review stating that the conditions of BI-polar [sic] (a mood disorder) and ADD/ADHD (concentration problems and lack of transferral via some neurons to required parts of the brain are not overlapping conditions and, therefore, should be counted as separate conditions. Last appeal (2014) recognised this and granted me 15 points (of a required 20 points) yet this Tribunal has reduced it to 10 points claiming an overlap. How wrong;…”
RELEVANT LEGISLATION
The statutory provisions relevant to the present matter are contained in the Social Security Act 1991 (Cth) (‘the Act’) and the Social Security Administration Act 1999 (Cth) (‘the Administration Act’).

12. Section 94 of the Act sets out the qualification criteria for DSP. For present purposes, the three primary requirements are that a person has a physical, intellectual or psychiatric impairment (subsection 94(1)(a) of the Act); that the person’s impairment is of 20 points or more under the Impairment Tables (subsection 94(1)(b) of the Act); and that person has a CITW (subsection 94(1)(c) of the Act).

In accordance with subclause 4(1) of Schedule 2 to the Administration Act, the Tribunal is required to determine Ms Collett’s eligibility for DSP on 26 June 2015, being the date the claim was lodged.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis (“impairment” is defined to mean a loss of functional capacity affecting a person’s medical condition) and they describe functional activities, abilities, symptoms and limitations.
To be given a rating under the Impairment Tables, the impairment must be permanent and be more likely than not, in light of available evidence, to persist for two years (subsection 6(3) of the Determination).
For the purposes of the Impairment Tables, “permanent” does not have its usual meaning. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner, be fully treated, be fully stabilised and be more likely than not, in light of available evidence, to persist for more than two years (subsection 6(4) of the Determination).
In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years
(subsection 6(5) of the Determination).
A condition is “fully stabilised” if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
(subsection 6(6) of the Determination).
“Reasonable treatment” is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person (subsection 6(7) of the Determination).
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (subsection 6(8) of the Determination).
Self-reporting of symptoms in relation to a person’s condition can only be taken into account where there is corroborating evidence as defined in each table in the Impairment Tables (subsection 8(1) of the Determination).
The Introduction to Impairment Table 5 (Mental Health Function) states that the required diagnosing medical practitioner includes a psychiatrist, with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
The Introduction to Impairment Table 7 (Brain Function) states that the diagnosis of the condition must be made by an appropriately qualified medical practitioner.
In respect of the requirement that a person have a CITW, unless a person is specifically exempted from this requirement, all the criteria in subsection 94(2) of the Act need to be satisfied, including participation in a recognised program of support and being unable to work for 15 hours or more per week.
ISSUES
The issues which arise in this case are:
(a)whether Ms Collett suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,
(b)whether those impairments receive an impairment rating of 20 points or more under the Determination; and if so,
(c)whether Ms Collett has a continuing inability to work, which includes the requirement to have actively participated in a program of support.
As the Tribunal has concluded below (refer to paragraph 42) that Ms Collett’s impairments do not receive an impairment rating of 20 points or more, the Tribunal has not addressed in considerable detail the legislation nor the issues relevant to whether Ms Collett has a CITW. It is not required to do so.
EVIDENCE
The matter was heard in Perth on 25 July 2017. Ms Collett appeared in person and was self-represented. The Secretary was represented by Mr Christopher Bishop from Mills Oakley Lawyers.
The Tribunal received the following evidence:
·bundle of documents regarding Applicant’s claimed conditions (A1);
·a 229 page set of T documents (T1–T51) (R1); and
·program of support information (R2).
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.
Ms Collett gave the following affirmed oral evidence at hearing, including during cross-examination by Mr Bishop:
Mental health conditions
(a)She understands from Dr Katrina Marshall that her bipolar affective disorder and her ADHD are two separate conditions and hence in Ms Collett’s view they should be treated under two separate tables (as they were by the ARO).
Lower limb condition
(b)Her lower limb condition was not a major problem for her.
Conditions that impact upon physical exertion and stamina
(c)In relation to her conditions that impact upon physical exertion and stamina, they “all overlap.”
(d)She is still obese, she had applied to have her gastric band removed and she cannot address her obesity until that takes place. Her GP had sent a letter to Sir Charles Gairdner Hospital requesting the band be removed, however in response the hospital erroneously sent a letter to her advising of a vacancy to have a gastric band fitted (rather than removed). While Dr Wong has said that she needed to see a dietician (T30, page 128), this never happened. She has recently lost ten kilograms through a weight loss program.
(e)Her insomnia is not treated and diagnosed and she should not have included it in her claim for DSP. She still wakes from her sleep at night and she is still waiting to hear from her sleep physician, Dr McArdle.
(f)She considers that all of her conditions that impact upon physical exertion and stamina (obstructive sleep apnoea, obesity, rheumatological condition and hypothyroidism) other than insomnia are fully diagnosed, treated and stabilised.
Upper limb condition
(g)She began physiotherapy for her shoulders (in late 2015), initially with a supervised student. She was told to “work on her physiotherapy first” and she understood she would then be referred to hydrotherapy. She has been living on Newstart Allowance and has survived due to the help of her adult children, as $48 per physiotherapy session was more than she could manage. As such, it was unfair that the Secretary was arguing that her shoulder condition is not fully treated.
(h)As to her left and right shoulder tendons being torn, her GP referred her to an orthopaedic surgeon prior to 2015, however her GP told her that there was an eight month waiting list. She did not hear anything back for twelve and a half months, in around June 2016. She then received a letter that said “because of the backlog, they were outsourcing to Bentley Clinic.” Ms Collett said she then sent a letter to Bentley Clinic. She didn’t hear back, then learned that Bentley Clinic had never received her letter. She “got through to” a surgeon, who she saw several weeks later, who took further x-rays. She is electing not to have the surgery as the six week recovery time requires someone to “live with her constantly,” which she doesn’t have available to her. She has regular cortisone injections and had an MRI a few weeks ago (she is awaiting the results) but there is otherwise “not a lot she can do about this condition.”
Spine condition
(i)In relation to her spine condition, she was referred to a pain clinic at Royal Perth Hospital on 20 October 2015. She is learning to “live with the pain” and her pain medication has “been tweaked a bit.” A few months ago she applied to home and community services for help with the housework and has since had five weekly two hour sessions in the home. She can’t bend to lift the vacuum cleaner or mop the floor.
CONSIDERATION
Whether Ms Collett suffered from a physical, intellectual or psychiatric impairment or impairments
It is not in dispute and the Tribunal finds on the evidence that at the date of claim, Ms Collett suffered from upper and lower limb conditions, a spinal condition, conditions impacting on physical exertion and stamina (obstructive sleep apnoea, insomnia, obesity, a rheumatological condition and hypothyroidism) and mental health conditions (ADHD and bipolar affective disorder).
As such, the Tribunal finds that Ms Collett satisfies subsection 94(1)(a) of the Act.
Whether Ms Collett’s impairments receive an impairment rating of 20 points or more under the Determination
Mental health conditions
In relation to Ms Collett’s mental health conditions, it is not in dispute and the Tribunal finds on the evidence that:
(a)Ms Collett suffered from ADHD and bipolar affective disorder as at the date of claim; and
(b)these conditions are fully diagnosed, fully treated and fully stabilised.
Ms Collett contends that the impairment ratings arising from her ADHD and bipolar affective disorder conditions warrant an impairment rating of five points under Table 7 – Brain Function (for ADHD) and ten points under Table 5 – Mental Health Function (for bipolar affective disorder). Ms Collett, in her written submissions, states that she agrees that her “mental health disorder” (being her bipolar affective disorder) warrants an impairment rating of ten points under Table 5, however as her ADHD is a condition separate to this, two separate impairment tables ought to be applied.
The Secretary contends however, that, while there exists two separate conditions, as the functional impact of both conditions is the same, the conditions together warrant an impairment rating of ten points under Table 5. The Secretary contends that there is no evidence before the Tribunal that Ms Collett’s functional impact in relation to her ADHD and bipolar affective disorder would warrant a higher “severe” rating of 20 points.
Ms Collett gave evidence that she lives independently in her own home. Ms Collett said that she required home visits to assist with housework due to her spine condition, however there was no evidence Ms Collett requires home visits from mental health services. Ms Collett referred at times to the financial assistance she receives from her adult children, speaking positively of her relationships with family members.
Overall, applying the evidence to each applicable domain under Table 5 of the Impairment Tables, the Tribunal finds the overall level of Ms Collett’s impairment under Table 5 is moderate, generating 10 impairment points. In doing so, the Tribunal reiterates that “impairment” is defined to mean a loss of functional capacity affecting a person’s medical condition and hence it is appropriate to consider Ms Collett’s ADHD and bipolar affective disorder conditions together given that the functional impacts of these conditions overlap.
Conditions impacting upon physical exertion and stamina
As to the conditions that impact upon Ms Collett’s physical exertion and stamina, Ms Collett concedes that her insomnia condition is not fully diagnosed, treated and stabilised. Ms Collett submits that her overlapping conditions of sleep apnoea, hypothyroidism and obesity should be assessed as having “mild” impact on activities requiring physical exertion or stamina, warranting a rating of 5 points under Table 1 of the Impairment Tables. The Secretary considers that the only conditions in this category that are fully diagnosed, treated and stabilised are the sleep apnoea and hypothyroidism conditions, neither of which have been demonstrated to have caused Ms Collett any functional impact at the relevant time.

The Tribunal has considered Ms Collett’s evidence regarding her various claimed overlapping conditions impacting upon physical exertion and stamina (being obstructive sleep apnoea, obesity, a rheumatological condition and hypothyroidism), including her oral evidence at subparagraphs 30(c) to 30(f) above along with evidence contained in the T documents and provided at hearing (A1). The Tribunal has done so in the context of the Tribunal needing to be satisfied, in order for these conditions to attract points under Table 1 of the Impairment Tables, that at least one of these overlapping conditions was fully diagnosed, treated and stabilised at the date of claim and had a functional impact on Ms Collett. The outcome of this is that the Tribunal finds, at the date claim:
(a)there is no evidence that Ms Collett’s obstructive sleep apnoea and hypothyroidism conditions caused her any functional impact; and
(b)Ms Collett’s obesity and rheumatological conditions were not (and are still not) fully diagnosed, treated and stabilised. Ms Collett’s evidence was that she is still waiting to have the gastric band removed. There is limited information with regards to her hypothyroidism and Ms Collett did not discuss this condition at hearing.
As such, the Tribunal is unable to rate any of Ms Collett’s conditions impacting upon physical exertion and stamina under Table 1 of the Impairment Tables.
Upper limb condition, lower limb condition and spine condition
The Tribunal has considered the evidence on whether Ms Collett’s upper limb condition, lower limb condition and spine condition were each fully diagnosed, treated and stabilised at the date of claim. The Tribunal notes:
(a)Ms Collett considers her lower limb condition “is not a major problem for her “ (subparagraph 30(b) above);
(b)her physiotherapy treatment for her shoulder condition commenced in late 2015;
(c)she consulted with an orthopaedic surgeon at Bentley Clinic with regard to her options for shoulder surgery some time in 2016; and
(d)Ms Collett was referred to a pain clinic with respect to her spine condition on 20 October 2015.
The Tribunal has considered Ms Collett’s evidence (at paragraph 41 above) along with evidence contained in the T documents and provided at hearing (A1). The Tribunal notes that in each case, all treatment interventions appeared to have commenced after the date of claim. The Tribunal finds that while Ms Collett’s upper limb condition, lower limb condition and spine condition were all fully diagnosed at the date of claim, they were not fully treated and fully stabilised. As a result of this finding, the Tribunal cannot rate these conditions under the relevant Impairment Tables (being Tables 2, 3 and 4 respectively).
Whether Ms Collett has a continuing inability to work
Based on paragraphs 33 to 42 above, the Tribunal finds that Ms Collett has 10 impairment points and fails to satisfy subsection 94(1)(b) of the Act. Given this finding, the Tribunal is not strictly required to proceed to consider whether Ms Collett had, at the date of a claim, a CITW in satisfaction of subsection 94(1)(c) of the Act.
If the Tribunal had been able to find that Ms Collett’s impairments ought to be assigned a total of 20 impairment points across the various applicable Impairment Tables (given Ms Collett’s impairments are not “severe” meaning no impairment attracts 20 impairment points under a single impairment table, in accordance with subsection 94(3B) of the Act), the Tribunal would have been required to consider Ms Collett’s work capacity and her participation in a recognised program of support.
In this regard, and for completeness only, the Tribunal notes that the evidence showed Ms Collett had, as at 26 June 2015 (as was conceded by the Secretary), met the requirements for participation in a program of support. However, Ms Collett was assessed by the JCA on 25 August 2015 as having a work capacity of at least 15 hours per week within two years with intervention (T35, page 179). Therefore, on the available evidence Ms Collett’s application is likely to have failed regardless of whether 20 impairment points, accumulatively, were assigned.
DECISION
Ms Collett does not qualify for DSP as her conditions can only be assigned 10 impairment points as at the date of claim.
The decision of the AAT1 dated 23 June 2016, which affirmed a decision of the Department dated 6 January 2016 to reject Ms Collett’s application for DSP lodged on 26 June 2015, is affirmed.

I certify that the preceding 47 (forty – seven) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

..................[sgd]......................................................
Administrative Assistant – Legal
Dated: 6 September 2017

Date(s) of hearing: 25 July 2017

Applicant: In person

Representative for the Respondent: Mr C Bishop

Solicitors for the Respondent: Mills Oakley Lawyers

[2017] AATA 1412

6 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date(s) of hearing:	25 July 2017
Applicant:	In person
Representative for the Respondent:	Mr C Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers