CWYF and Secretary, Department of Social Services (Social services second review) - [2021] AATA 4759

CWYF and Secretary, Department of Social Services (Social services second review) [2021] AATA 4759 (21 December 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2451
Re:CWYF
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member R Maguire
Date:21 December 2021
Place:Brisbane

The Tribunal affirms the decision under review.
.....................................................................
Member R Maguire
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Whether applicant suffered a physical, intellectual or psychiatric impairment – Where applicant suffers from spinal, upper and lower limb and mental health conditions – Whether conditions fully diagnosed in the qualification period – Whether conditions fully treated and stabilised in qualification period – Whether applicant’s impairment is 20 points or more under the impairment tables – Where overall impairment arising from fully diagnosed, fully treated, and fully stabilised conditions is 5 points – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
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
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Pignat and Secretary, Department of Social Services (Social services second review) [2017] AATA 2745
SECONDARY MATERIALS
Social Security Guide, Version 1.287
REASONS FOR DECISION
Member R Maguire
21 December 2021

On Tuesday, 12 February 2019, the applicant lodged a claim for Disability Support Pension (“DSP”)[1] in which she listed her disabilities as:[2]
(a)double scoliosis, early degenerative of the spine, arthritis of the spine;
(b)major depressive disorder (as diagnosed by psychiatrist), PTSD, anxiety, panic attacks, flashbacks due to a sexual assault by a medical professional;
(c)sleep apnoea.
[1] Exhibit 1, T Documents, T53, pp 195-224.
[2] Exhibit 1, T Documents, T53, p 219.
At question 176 of her claim form, the applicant ticked the “Yes” box[3] in response to the question “Are you expecting to have future treatment for your disability or medical condition?” and described the type of treatment is being “physio, acupuncture psychotherapies, pain clinic.” She described the reason for treatment as “to try & lessen the severity of my pain both physical and psychological. To have me functioning more effectively other than days confined to bed.” In response to the question “When you expect to receive this treatment (if known)” she responded: “Ongoing. For pain clinic, as soon as I can get into the Princess Alexandra Hospital.”
[3] Exhibit 1, T Documents, T53, p 221.
On 13 March 2019, a DSP Medical Eligibility Assessment Recommendation (“MEAR”) was conducted by a rehabilitation counsellor, who concluded that there was insufficient evidence to determine that the applicant’s medical conditions were fully diagnosed, treated and stabilised.[4]
[4] Exhibit 1, T Documents, T58, pp 231-232.
On 14 March 2019, the Department of Human Services rejected the applicant’s claim for DSP on the basis that there was not sufficient medical evidence to assess her claim.[5]
[5] Exhibit 2, Attachment A.
On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: CWYF and Secretary, Department of Social Services (Social services second review) [2021] AATA 4759
Case: [2021] AATA 4759
Decision Date: 21 December 2021

CaseChat Overview and Summary

This matter concerned an appeal by CWYF against a decision of the Administrative Appeals Tribunal (AAT) affirming the Secretary of the Department of Social Services' refusal to grant a disability support pension. The core of the dispute revolved around whether CWYF met the criteria for a disability support pension, specifically concerning the severity and stability of their diagnosed medical conditions.

The AAT was required to determine whether CWYF suffered from a physical, intellectual, or psychiatric impairment that was fully diagnosed, fully treated, and fully stabilised within the relevant qualification period. Crucially, the Tribunal had to assess whether the overall impairment arising from these conditions equated to 20 points or more under the applicable impairment tables, as stipulated by section 94(1)(b) of the relevant Act.

The Tribunal found that while CWYF suffered from spinal, upper and lower limb, and mental health conditions, the overall impairment rating derived from these fully diagnosed, treated, and stabilised conditions was only 5 points. Consequently, CWYF did not satisfy the threshold requirement of 20 points or more under section 94(1)(b) of the Act. As this was a determinative factor, the Tribunal deemed it unnecessary to consider the further requirement of a continuing inability to work under section 94(1)(c). The decision of the AAT made on 6 April 2020 was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the Tribunal assigns an overall impairment rating of 5 points. The applicant, nonetheless, does not satisfy section 94(1)(b) of the Act which requires an impairment rating of 20 points or more.CONCLUSION In view of these findings, it is unnecessary to consider whether or not the applicant has a continuing inability to work for the purposes of section 94(1)(c) of the Act. For the above reasons the decision made by the AAT1 on 6 April 2020 is affirmed.

Ratio Decidendi

Legal Principle Established

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