Dale Dean and Secretary, Department of Social Services

[2014] AATA 386

[2014] AATA  386

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/3026
Re	Dale Dean
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms S Taglieri, Member
Date	20 June 2014
Place	Hobart

The Decision under Review is affirmed.

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Ms S Taglieri, Member

SOCIAL SECURITY – Cancellation of DSP following Review; Right leg injury, hypertension, diabetes, and other conditions not regarded permanent; Impairment points available under Impairment Tables operating after 1.1.12; Whether Residency requirement satisfied.

Social Security Act 1991, ss 26, 27(2),(3), 94(1)(a),(b),(c),(d),(e), 94(1)(b) and 94(1)(ea)

Social Security and other Legislation Amendment Act 2011

Social Security (Tables for the Assessment of Work-related Impairment for DSP) Determination 2011

Social Security (Administration) Act 1991, s 179

SDFaCSIA v Baccon (2006) FCA 773

Sayan and SDFaCS (2001) AATA 9502

De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368

REASONS FOR DECISION

Ms S Taglieri, Member

INTRODUCTION

1. This application relates to review of a decision of the Social Security Appeals Tribunal (SSAT) dated 3 June 2013 (SSAT Decision).  The SSAT Decision affirmed the Respondent’s Authorised Review Officer’s decision to cancel the Applicant’s DSP (DSP).

2. The Applicant’s DSP was cancelled following a review process which was commenced by a letter from the Respondent to the Applicant dated 7 August 2012[1].

   [1] T16, page 53 of the T- Documents

3. The SSAT Decision affirmed that the Respondent had correctly cancelled the Applicant’s DSP on the grounds that he no longer met an essential qualification requirement in section 94 of the Social Security Act 1991 (SS Act).  In particular, that the Applicant did not have twenty points or more under the Impairment Tables which applied by virtue of section 27 of the SS Act.

4. The Applicant seeks review of the SSAT decision on only two grounds, namely:

   1That the medical report of Dr Bush dated 8 August 2012[2] was incomplete and that the Respondent had not advised him that the report was inadequate and that he should get another one.

   2That the Respondent never advised him that he was not permitted to reside outside of Australia in order to be eligible for a DSP.

   The Respondent in this Tribunal maintained that the SSAT Decision was the correct decision.

   [2] T18, pages 63-77 of the T Documents

   THE ISSUES IN CONTENTION

5. At the commencement of the hearing, counsel for the Respondent confirmed that its position was and has always been that the Applicant did not qualify for DSP because either:

   (a)He did not meet the qualification requirements as to impairment in section 94(1)(b) of the SS Act; or

   (b)He did not meet the qualification requirement in section 94(1)(ea) of the SS Act. 

   Counsel for the Respondent frankly conceded that if the finding of this Tribunal was that the Applicant’s impairment was twenty points or more at the relevant time and he was an Australian resident at the relevant time, the reviewable decision ought to be set aside.

   CONSIDERATION OF ISSUES IN DISPUTE

6. As the Applicant received an “assessment notice” within the meaning of section 27(3) of the SS Act which initiated the review of his entitlement, when determining this Application the Tribunal must apply the instrument in force under section 26 of the SS Act on 7 August 2012.[3]

   [3] The date of the assessment notice

7. On 7 August 2012, changes effected by the Social Security and other Legislation Amendment Act 2011 and the Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011 (“2011 Determination”) had commenced.[4] The Applicant’s qualification for DSP after it was cancelled must therefore be determined according to the 2011 Determination.

   [4] These changes commenced 1.1.2012

8. If the answer to issue 1 above is “no”, it is not necessary to determine issue 2, however I consider it prudent to do so.

   THE APPLICANT’S IMPAIRMENT AND IMPAIRMENT POINTS APPLICABLE UNDER THE IMPAIRMENT TABLES

9. It was common ground between the parties that the Applicant suffered from the following conditions at the time DSP was cancelled:

   1.Hepatitis C (alcohol excess and liver damage);

   2.Right lower leg injury (initially suffered 7 March 1990 at work);

   3.Anxiety;

   4.Hypertension ;

   5.Diabetes Myelitis Type 2; and

   6.Shoulder Capsulitis.

10. All of the above conditions were referred to in Dr Bush’s report of 8 August 2012.[5]  At hearing the Applicant also asserted that he suffered from other conditions, being a back injury, incontinence and “panic attacks”.  The Applicant gave evidence in respect of all the conditions during the course of the hearing, and was cross examined by counsel for the Respondent in respect of the same.

    [5] T19, pages 67 to 77 of the T Documents

11. In order to consider impairment from a medical condition when applying the 2011 Determination, the condition must be permanent. In addition, the impairment resulting from that condition must be likely to persist for more than two years[6].

    [6] Paragraph 6 (3) of the Rules for Applying Impairment Tables, Part 2 of Social Security (tables for the assessment of work related impairment for DSP) Determination 2011

12. The Respondent conceded that Condition 2 was permanent and that the impairment from it was likely to persist for more than two years.  It did not concede permanency in respect of any of the other conditions referred to above.

13. Permanency of a condition requires that it be:

    (a)       Fully diagnosed; and

    (b)       Fully Treated; and

    (c)       Fully Stabilised.

    All of which have particular meaning within the 2011 Determination[7] and have been the subject of judicial consideration in De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.[8]

    [7]See Paragraph 6 (4), 6(5) and 6(6) of the 2011 Determination

    [8] [2014] FCA 368 at paragraphs 25 to 35

14. The evidence of the Applicant in respect of his conditions was as follows:

    (i)Hepatitis C - that he had been to the Launceston General Hospital in February 2010 and it had been diagnosed at that time. That he was still suffering from Hepatitis C at the time his pension was cancelled.  Although it was diagnosed in February 2010 it was not “followed through” at the time but he was on a waiting list to receive treatment at the Launceston General Hospital but that had not yet begun. There was a suggestion that there may be some oral treatment available in the future.  The Applicant claimed that Hepatitis C caused him to become very tired, lose his appetite and his liver function was compromised.  The Applicant stated that he felt very tired on account of this condition and did very little because of it.

    The Applicant’s evidence appears to be largely corroborated by Dr Bush’s report dated 8 August 2012.  Although the condition is fully diagnosed, the Tribunal is not satisfied that is has been fully treated and stabilised.  Under cross-examination the Applicant gave evidence that there was no treatment for the condition of Hepatitis C, but this is at odds with the evidence that he gave in chief namely that he was on a waiting list at the Launceston General Hospital and waiting for treatment there to begin.  There would be no purpose to being on a waiting list at the hospital for this condition unless some form of investigation and/or treatment of it were proposed.  I note indeed that there is evidence in the report of Dr Bush in section L on page 5 of her report indicating that “he has not had further investigation of his Hep C to determine if treatment is needed”.  This statement was made some two years ago and has not yet occurred. At the relevant time when the DSP was cancelled, the requirements for concluding permanency for Hepatitis C were not met.

    (ii)Right Leg injury - As the Respondent concedes this condition is permanent. As such, any impairment resulting from the condition must be considered and is addressed below.

    (iii)Left Shoulder Capsulitis - The Applicant gave evidence that he suffered this injury following a fall down the stairs on the 17 March 2012.  He did not immediately seek treatment for the condition but subsequently was seen by a surgeon at the Launceston General Hospital in October 2012 when a diagnosis of a rotator cuff injury was made.  The Applicant also said the injury was commonly known as frozen shoulder.  He received cortisone injection to treat the condition and although he is not currently having treatment, he was having physiotherapy and cortisone injection for the condition into 2013.  The Applicant also gave evidence that there is no more that can be done for the shoulder injury and that he merely manages the condition by undertaking home exercises.  This condition appears to be permanent now but was not at the relevant time, being October 2012 when the DSP was cancelled. As such, the requirements of permanency were not satisfied as it was still being treated and had not stabilised at the time.

    (iv)The back injury - The Applicant stated that after falling down the steps in March 2012 he also experienced symptoms in his lower back which have persisted.  He has sought treatment for the back condition and has had two steroid injections.  He stated that the doctors were not sure what the injury was.  He described the condition as causing pain in his lower back in the middle and into the left hand side and his left leg causing numbness at the front of his left leg.  He said that he used morphine patches for the pain caused by this condition.

    The onset of the back symptoms (March 2012) and the Applicant’s evidence that treatment for this condition was provided well after the decision to cancel DSP in October 2012, necessarily means the back condition did not meet the requirements for categorisation as permanent as required by the 2011 determination.  I note the condition may well be permanent now, but was not at the relevant time.    

    (v)Diabetes - The Applicant has suffered from Diabetes for over twenty years.  He uses oral medication (Glipizide 4mg) on a regular basis and described that this condition causes him to be very thirsty and tired all the time.  It also caused loss of appetite.  The Applicant’s evidence about this condition is partly corroborated by the Medical Report of Dr Bush, certainly in respect of the diagnosis of the condition and its permanency.  They ought to be taken into account when assessing the Applicant’s eligibility for a DSP at the time it was cancelled.

    (vi)Hypertension - The Applicant gave little evidence about hypertension, except to say that when his blood pressure had been tested more recently, it had gone down and was too low such that he is no longer taking medication for it.

    Dr Bush’s report refers to hypertension as a diagnosed condition.  On the basis of the corroboration of the condition by Dr Bush the Tribunal is satisfied that the condition is permanent as it appears to be fully diagnosed, treated and stabilised (as evidenced by monitoring and management of medication). Whether any impairment results from the condition is addressed below.

    (vii)Panic Attacks - The Applicant gave evidence that he had suffered from panic attacks for years, but had only become regular after his last return to Australia from Thailand (towards the end of 2012).  They were described as being mainly at night causing him to wake up.  His throat would become very dry and feel as though he could not breathe.  He would need to get up and out of the room and walk around or have a shower and try to calm down.  On occasions when these strategies did not work he would ring the Ambulance and attend the Launceston General Hospital.  The Applicant also stated that Valium and oxygen was used to treat his panic attacks.  He regarded the panic attacks as his “biggest fear”, as they caused him to “see things” out of his left eye, hear a radio in his head all the time and caused him to fall. 

    Dr Bush in her report of 8 August 2012 indentifies a diagnosis of anxiety, but does not mention panic attack.  The panic attacks of which the Applicant gave evidence could well be and I infer are a clinical sign the condition of anxiety diagnosed by Dr Bush.  However, it cannot be regarded as permanent at the time of cancellation of the DSP in October 2012. There was no evidence of the condition having been fully treated and stabilised. Indeed treatment appears only to have commenced in late 2012, within a short time of cancellation of DSP.

    (viii)Incontinence - In his oral evidence the Applicant described episodes of incontinence.  The only other reference to incontinence in the material before the Tribunal is a reference to it in the Job Capacity Assessment Report. [9]

    The Applicant gave evidence that he had not sought any treatment in respect of this condition and nor did he utilise incontinence pads. 

    It is not possible to reach a conclusion on the basis of the evidence before the Tribunal that incontinence is a “medical condition” within the meaning of the 2011 Determination or that is a permanent condition for the purposes of identifying an impairment rating.

    [9] T19 at Page 80 of the T Documents

    CONCLUSIONS FROM THE EVIDENCE

15. The Tribunal is satisfied that the Applicant suffers from three permanent medical conditions that must be considered for the purposes of determining whether the Applicant meets the required 20 impairment points for qualifying for DSP at the time it was cancelled. They are right leg injury, Hypertension and Diabetes.

16. Although the Applicant stated that the Diabetes caused him to be tired all the time, the Tribunal does not accept that the condition of Diabetes causes such symptoms.   The Applicant also gave evidence that the effects of Hepatitis C were to cause him to be very tired and to do very little day to day.   It is more likely that the condition of Hepatitis C (a condition not regarded as permanent), causes the Applicant’s tiredness and interference with daily function.  The Tribunal draws this conclusion on the basis that the opinion of Dr Bush, namely that Diabetes and Hypertension are two of a number of conditions that are well managed and cause minimal or limited impact on ability to function.[10]  The Tribunal is not satisfied that the conditions of Hypertension and/or Diabetes qualify for any impairment points under Table 1 of the 2011 Determination, being the only table that may be relevant.

    [10] Response to Question 6 at Page 75 of the T Documents

17. The Tribunal is unable to conclude that at the relevant time, being October 2012, the Applicant qualified for any impairment points in respect of the right leg condition when applying Table 3 of the 2011 Determination.  The Applicant’s evidence about the effects of the right leg injury best fitted the descriptors for zero impairment points.

18. The Tribunal concludes that as a result of permanent medical conditions from which the Applicant suffered in October 2012, being right leg condition, hypertension and diabetes, the total impairment points attracted was zero. As a result of this conclusion, at the relevant time the Applicant did not meet the qualification requirement in section 94 (1) (b) of the SS Act and the Determination of the SSAT was correct.

    The decision under review is therefore affirmed. 

    RESIDUARY ISSUE

19. Although it is not strictly necessary to determine the second issue in contention, it is prudent to do so. In order to continue receiving DSP, in addition to meeting all other qualification requirements in section 94 of the SS Act, the Applicant had to be an Australian resident in October 2012. In SDFACSIA and Baccon[11], the Federal Court summarised the necessary test for Residency as follows:

    As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home (Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789; (2004) 138 FCR 70 at [36].

    [11] (2006)FCA 773 at paragraph 8

20. The evidence given by the Applicant, particularly under cross examination by Counsel for the Respondent, categorically established that he did not meet either of the two elements. 

21. His evidence was that from March 2009 until cancellation of the DSP he was absent from Australia and living in Thailand for the vast majority of the time.  He did return to Australia for brief periods, but always had the intention to reside in Thailand.  Throughout the period 2009 to 2012 he maintained accommodation in an apartment in Thailand, purchased furnishings and personal effects for life and daily living there. He disposed of his assets in Australia and gave them to his son.

22. The Applicant frankly gave evidence that he had intended to reside in Thailand and was unaware that it was necessary for him to be an Australian resident within the meaning of that term in the SS Act in order to continue to be eligible to receive DSP.  The Tribunal is satisfied that the Applicant was not an Australian resident at the date of cancellation of his DSP.

23. The Applicant sought to challenge the decision under review on grounds that he was not informed of the requirements for Australian residency, by the Respondent.  This is not a factor that the Tribunal can take into account and it must make the correct and preferable decision according to law.

24. In addition, the Applicant made criticism that he had not been told by the Respondent to obtain more detailed medical evidence, other than the report of Dr Bush, during the review of his entitlement to DSP. It is quite apparent from the evidence given by the Applicant that his health deteriorated significantly at the end of 2012 or early 2013.   He described a number of complaints and symptoms relating to falls and problems with his cognitive function requiring him to see a Neurologist in 2013. His evidence establishes that the falls and new symptoms, which appear to be quite serious, are currently being investigated.  If other medical conditions are diagnosed and become permanent[12], it may alter the Applicant’s current eligibility for DSP but a fresh application for DSP is required[13]. For the purposes of this decision, I cannot take into account the conditions that were not permanent at the date of cancellation of the DSP.

    [12] Can be regarded as fully treated and stabilised

    [13] Sayan and SDFaCS (2001) AATA 9502 at 4

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member

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Associate

Dated

Date(s) of hearing	6 May 2014
Advocate for the Applicant	Ms Rachael Panton, Salvation Army
Solicitors for the Respondent	Mr Brian Sparkes, Program Litigation and Review Branch