Darcy and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1618
•5 October 2017
Darcy and Secretary, Department of Social Services (Social services second review) [2017] AATA 1618 (5 October 2017)
Division:GENERAL DIVISION
File Number: 2016/6154
Re:Narelle Darcy
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms N Isenberg, Senior Member
Date:5 October 2017
Place:Sydney
The decision under review is set aside and in substitution, it is decided that the Applicant satisfied the requirements of s 94 of the Social Security Act 1991 (Cth) as at the date of her claim and the Disability Support Pension should be granted with effect from 2 December 2015.
...........................[sgd].............................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – multiple impairments – whether applicant’s medical conditions rated at 20 points or more under Impairment Tables – whether applicant had a continuing inability to work – active participation in a program of support – decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) ss 26(1), 94(1), 94(2), 94(3B), 94(3C), 94(2), 94(5)
Social Security (Administration) Act 1999 (Cth), sched 2, pt 2, cl 4
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158
Eid v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180
Kumar v Secretary, Department of Social Services [2017] FCA 158
Richardson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 220Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AAT 642
SECONDARY MATERIALS
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
REASONS FOR DECISION
Ms N Isenberg, Senior Member
5 October 2017
Background
On 2 December 2015 the Applicant, Narelle Darcy, lodged a claim for disability support pension (DSP) with the Department (Centrelink). Her claim was refused. That decision was affirmed on internal review and by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The Applicant now seeks review by this tier of the Tribunal.
Legislative scheme
The relevant legislation is contained in:
·The Social Security Act 1991(Cth) (the Act);
·The Social Security (Administration) Act 1999(Cth) (the Administration Act);
·The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
·The Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The relevant period
An Applicant’s claim for DSP must be assessed based on medical conditions as at the date of claim or within 13 weeks of that time: Schedule 2, Part 2, clause 4(1)_ of the Administration Act. As the Applicant lodged her claim for DSP on 2 December 2015 (the date of claim), the relevant period, in this case, is from 2 December 2015 to 2 March 2016: see Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34].
Eligibility criteria for disability support pension
The relevant eligibility criteria for DSP is set out in s 94(1) of the Act as follows:
94. Qualification for disability support pension-continuing inability to work
(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)…
(i) the person has a continuing inability to work.
Application of the Impairment Tables
The Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP: s 26(1) of the Act. The Impairment Tables are function-based and describe functional activities, abilities, symptoms and limitations and ratings are assigned based on those descriptions. The Impairment Tables further provide that a person’s impairment is to be assessed on the basis of what the person can, or could do, rather than on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Impairment Tables.
The Impairment Tables may only be applied if the condition giving rise to the impairment is ’permanent’: s 6(3)(a) of the Impairment Tables. ‘Permanent’ is defined to refer to a condition that is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: ss 6(4) of the Impairment Tables.
When determining whether a condition has been fully diagnosed and fully treated, s 6(5) of the Impairment Tables requires a decision maker to consider the following:
(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.
Section 6(6) of the Impairment Tables sets out a condition can be ‘fully stabilised’ only 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 two years; or
(b)the person has not undertaken reasonable treatment for the condition and either:
(i) significant functional improvement to a level enabling the person to undertake work in the next two 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.
[emphasis added]
‘Reasonable treatment’ is defined in s 6(7) of the Impairment Tables to mean treatment that is:
(a)available at a location reasonably accessible to the person; and
(b)is at a reasonable cost;
(c)can be reliably expected to result in substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
Issues
As there was no dispute that the Applicant had impairments during the relevant period and therefore satisfies s 94(1)(a) of the Act, it remained to be determined whether, as at the date of claim or within 13 weeks of that date, the Applicant:
(a)had an impairment rating of at least 20 points on the Impairment Tables: s 94(1)(b) of the Act; and
(b)has a continuing inability to work (CITW), as defined in s 94(2) of the Act, for the purpose of s 94(1)(c) of the Act.
CONSIDERATION
The Applicant’s General Practitioner Dr Shimul Das supplied a medical report dated 16 March 2015 in support of the Applicant’s claim for DSP. There he listed her conditions as:
·osteoarthritis both knees (left knee greater than the right) - the condition with most significant impact on Ms Darcy’s ability to function; and
·major depression, adjustment disorder, probable anxiety neurosis - a condition that also has a significant impact.
He also noted that she suffered migraine headaches, obesity, left shoulder calcific tendinitis and bursitis, and lumbar back pain. He noted these as ‘other’ conditions that are generally well managed and cause minimal or limited impact. In a letter dated 10 January 2017, however, he clarified that he had included the conditions under that heading because of inadequate space, and that these were conditions which had significant impact upon her daily activities.
For the purposes of s 94(1)(a) of the Act, Centrelink accepted that Ms Darcy had the following impairments during the claim period: a lower limb condition, specifically osteoarthritis in both knees with the left knee more effected than the right knee; a mental health condition, specifically depression, anxiety disorder; and chronic pain syndrome affecting her knees and lower spine; an upper limb condition, specifically left shoulder calcific tendinitis and bursitis; migraine; obesity; and a spinal condition.
Lower limb condition
Centrelink submitted that, while it accepted that during the claim period, Ms Darcy’s lower limb condition was fully diagnosed, it was not fully treated and stabilised.
Dr Das, in his report dated 16 March 2015, said, in respect of future planned treatment for Ms Darcy’s arthritic knees that she “may require knee replacement surgery according to orthopaedic surgeon’s report”. Dr Das referred there to Dr Frederick Hoe being the Applicant’s orthopaedic surgeon. An x-ray report in relation to the Applicant’s knees dated 30 March 2016 recommended “an orthopaedic consult”. Dr Julian Cahill, a neurologist, noted in a report dated 6 April 2016 that Ms Darcy was “awaiting to see an orthopaedic surgeon at the end of this week of her knees as recent x-rays have shown deterioration of the joints.”
The Applicant’s orthopaedic surgeon, Dr Hoe provided a report dated 7 April 2016. There he wrote of the Applicant’s deteriorating arthritic left knee and her difficulty in managing stairs. He observed that the x-rays should almost complete loss of medical joint space. He recommended weight loss and wrote that the Applicant “may be able to avoid knee replacement surgery”.
The Applicant said that Dr Hoe’s advice was to delay surgery for as long as possible because she was too young to have an operation that would only last 10 years before having to be re-done. From the job capacity assessment report (JCA report) of 7 March 2016 it appears the Applicant was under the care of an orthopaedic surgeon since January 2015. Also, since November 2014 she had been receiving rehabilitation treatment from the pain management clinic.
I do not accept that the Applicant’s lower limb condition had not been fully treated and stabilised, as the Applicant had been receiving treatment for her knees for some time and the specialist advice to the Applicant was to delay surgery. Her condition continued to deteriorate and to that extent, had ‘stabilised’ in that there was going to be no improvement.
The Applicant, who said she had been an active person has restrictions on her ability to walk. She especially has problems with stairs, and manages the 2 stairs into her backyard by pulling herself up using the handrail. There is one step at the front and she steadies herself on the brickwork of the house when entering or leaving. Her legs lock and there are shooting pains; she is unable to use a stepladder for domestic tasks because she is afraid of falling. She does little shopping and manages by her son bringing heavier items. She said she could walk the 3 blocks to the local shops – about a 5 minute walk. It is easier though, since she has a disability sticker to park at the supermarket and walk straight in. The Applicant’s evidence was that she could walk about 100 metres. She can stand for 5 – 10 minutes and tries to attend Centrelink when queues are likely to be smaller so she can avoid standing.
She has a RAV4 car which is easy for her to get into and out of. She might drive to the beach, but needs to stop once or twice along the way to stretch. She prefers her friend to drive. She uses a stick outside the house, and sometimes even inside. She could use a bus, providing it had a disabled platform so she could get on board. However, as bus drivers take off before all passengers are seated and she is so unsteady on her feet, she is worried about falling.
On 29 February 2016, Ms Darcy attended a job capacity assessment (JCA). The JCA report dated 7 March 2016 noted that the Applicant could stand independently from sitting and could mobilise independently around the Centrelink office. She was noted as being able to pick flowers (sic) from her vegetable patch but she said in her evidence that her son had constructed elevated garden beds. She has no difficulties with independent living and self-care.
Table 3 – Lower Limb Function provides, relevantly:
Points
Descriptors
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
I find that the Applicant’s evidence both to AAT1 and before me is consistent with her knee condition being assigned 10 points under Table 3.The Applicant is unable to walk far outside her home and requires a walking stick; she needs to drive or get other transport to local shops or community facilities and she requires support when using stairs. She can walk around in a supermarket, providing she gets a disabled parking spot. She can move around independently using a walking stick. The evidence of Ms Darcy’s functional impairment arising from her lower limb condition does not satisfy the descriptors for 20 points in Table 3.
Mental health condition
Centrelink accepted that during the claim period, Ms Darcy’s mental health condition was fully diagnosed, but contended that it was not fully treated and stabilised.
The Applicant said she had been mentally unwell for many years. Dr Das, in his report of 16 March 2015 wrote that the Applicant had suffered major depression, adjustment disorder and probable anxiety neurosis for more than 15 years. He had observed these conditions for the 6 years he had been treating her.
Dr Das developed a mental health plan which included referring the Applicant to a psychologist. Since at least early to mid-2015 the Applicant was receiving cognitive behavioural therapy counselling from Navin Goonniah, clinical psychologist. He thought she needed medication, which he was unable to prescribe. Ms Darcy was then referred to Dr Chaudhary, psychiatrist, who she saw for the first time on 23 July 2015. He diagnosed depression, anxiety disorder, and chronic pain syndrome affecting (sic) her knees and lower spine. She continued to see him monthly for 18 months and now sees him every 3 months. She said he prescribed medication and gave her coping strategies. Her medication was subsequently increased. In his report dated 19 November 2015 Dr Chaudhary wrote that Ms Darcy “has been treated and her conditions are stabilised”. I accept that her mental health condition is "permanent” and can be assigned an impairment rating from Table 5 - Mental Health Function.
Ms Darcy said she has no difficulties with self-care and independent living, although, because of her physical limitations, she is reliant on her son for heavier tasks, and he also sometimes prepares meals. She enjoys gardening but has little stamina for it, but this is largely because of knee pain. She likes reading but sometimes has trouble concentrating, so prefers short stories. She needs to take each day at a time. While she has a good relationship with her son, she is estranged from her daughters and grandchildren. Other than her son, her only family contact is with her sister. She has few friends, because, since leaving her previous faith of many years, she has been ‘shunned’, and all her friends had been associated with that faith. She had nursed her husband until she was no longer able to do so and transferred him to a nursing home, where he died in 2014. She does not participate in any community activities.
She said she has (emotional) ’plunges’. Sometimes even smells can trigger an adverse memory, as can media reports. She has been prescribed ‘sometimes medication’ for when she experiences a ‘plunge’; it will take her 2-3 days to pull herself out of a ‘plunge’, which might occur as frequently as once or twice a week.
The relevant portion of Table 5 provides:
Points
Descriptors
0
There is no functional impact on activities involving mental health function.
(1) The person has no difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently and attends to all self care needs without support.
(b) social/recreational activities and travel;
Example 1: The person goes out regularly to social and recreational events without support.
Example 2: The person is able to travel to and from unfamiliar environments independently.
(c) interpersonal relationships;
Example: The person has no difficulty forming and sustaining relationships.
(d) concentration and task completion;
Example 1: The person has no difficulties concentrating on most tasks.
Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.
(e) behaviour, planning and decision-making;
Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.
(f) work/training capacity.
Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
5
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
I find that the evidence is consistent with the Applicant’s mental health condition being assigned 5 points under Table 5 in that there is a mild functional impact on activities involving mental health function. I am satisfied that the Applicant has some difficulties with her independent living in that she needs the assistance of her son for heavier tasks. She is socially fairly isolated with limited contact with family and friends. She lives a fairly solitary existence and undertakes no recreational activities outside the home, other than an occasional visit to the beach with a friend. Her concentration is affected, although she told AAT1 she can read for about an hour. Her evidence before me was of reading material that was not taxing. The Applicant, however, was able to undertake some study, albeit with distance learning that could be undertaken at her own pace and at times to her own convenience.
Upper limb condition
Centrelink accepted that during the claim period, Ms Darcy’s upper limb condition was fully diagnosed, but submitted that was not fully treated and stabilised.
In his medical report dated 16 March 2015, Dr Das, recorded that Ms Darcy has left shoulder bursitis and rotator cuff pathology. The Applicant said that she had injured her shoulder in a car accident in 2002 and had had a lot of treatment over the years.
Ms Darcy gave evidence that she had had steroid injections in her shoulder in 2012/13. She reportedly told the JCA in February 2016 that an injection she had in 2015 had assisted greatly. Consistent with this, she told AAT1 that she had had (at least) one more, the most recent being three months before that hearing.
The Applicant said she “just lives with [her shoulder condition]”. She is unable to carry her handbag on her shoulder or carry anything heavy in her left hand. She said that she has no problems using a seatbelt in the car, but has a ‘hook’ to keep it directly off her shoulder. She does not need to turn her head much when driving because she has excellent side mirrors. She can turn her head to the right, but not the left.
Her evidence was that she can shower herself but not lift her arm above shoulder height. She has someone come to regularly blow-dry her hair, but is otherwise able to maintain it herself.
I find that the Applicant’s shoulder condition has been fully diagnosed, but given the ongoing treatment after the relevant period, I could not be satisfied that the condition has been fully treated and fully stabilised. Consequently, impairment points could not be assigned.
Migraine
Centrelink accepted that during the claim period, Ms Darcy’s migraine condition was fully diagnosed, treated and stabilised.
Dr M Doula, consultant neurologist, in a letter dated 20 April 2016 wrote that he suspected the Applicant’s predominant headache is a tension headache. The Applicant had consulted Dr Dowla since at least May 2015.
At the JCA conducted on 29 February 2016 the Applicant reported that she was experiencing migraines every 2-3 weeks but could occur weekly. She experiences dizziness and light sensitivity. She needs to rest in a dark room but could still get herself to the toilet. She reported difficulties with attention and concentration during a migraine. She disagreed with the report that a migraine could last for only 6 hours.
The Applicant told AAT1 that she suffers from headache for about three days every month. Her evidence before me was that her headaches are worse when she is depressed, and also during hot weather. She can feel one coming on and the energy ‘bleeds’ from her. She can ‘head off’ a headache by taking Imigran, but there is a ‘window’ during which she must take it or it is ineffective. The medication however, only reduces the ‘pounding’ in her head and not the other symptoms. Even so, it is unpredictable if it will be in any way effective for a particular headache. During a headache she may vomit for 12-24 hours. She can only stay in bed and her son will bring her cups of tea. Moving, such as when turning over or getting herself to the toilet, precipitates another round of vomiting. She said her eyesight can be affected. The effect of a headache can last for 3 days.
AAT1 considered that the appropriate Table to be applied was Table 15 - Functions of Consciousness. That Table applies, amongst other conditions to “some forms of migraine”, without specifying what forms of migraine might fall for consideration. All the descriptors under this Table refer to loss of consciousness. While, when assessed against Table 15, Ms Darcy’s condition would attract nil points because she has no episodes of altered state of consciousness, I do not consider this Table to be the most appropriate. Instead I applied Table 7 Brain Function, which I observe, was the Table considered relevant by the JCA. That Table also does not ideally address the debilitating effects of migraines, but is the most relevant of the available Tables, especially given that its treatment is within the expertise of neurologists. The Table relevantly provides:
Points
Descriptors
0
There is no functional impact resulting from a neurological or cognitive condition.
(1) The person has no significant problems with memory, attention, concentration, problem solving, visuo-spatial function, planning, decision making, comprehension, self awareness or behavioural regulation.
5
There is a mild functional impact resulting from a neurological or cognitive condition.
(1) The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:
(a) memory;
Example: The person occasionally forgets to complete a regular task or sometimes misplaces important items.
(b) attention and concentration;
Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.
Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.
(c) problem solving;
Example 1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.
Example 2: The person shows a lack of awareness of problems in some situations.
(d) planning;
Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).
(e) decision making;
Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.
(f) comprehension.
Example: The person has some difficulty in understanding complex instructions involving multiple steps.
10
There is a moderate functional impact resulting from a neurological or cognitive condition.
(1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(a) memory;
Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
(b) attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
(c) problem solving;
Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
(d) planning;
Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
(e) decision making;
Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.
(g) visuo-spatial function;
Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
(h) behavioural regulation;
Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
(j) self awareness.
Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
I am satisfied that the evidence supports a finding of a mild functional impact thereby attracting 5 points.
Obesity
Centrelink accepted that during the claim period, Ms Darcy’s obesity condition was fully diagnosed, but submitted that it was not fully treated and stabilised.
I accept that considered the Applicant’s condition of obesity has been fully diagnosed. The Applicant gave evidence that she struggles with her weight and continues to try to control it. She does not eat ‘junk food’, but is prone to setbacks when stressed. Dr Dandie (see below) explored gastric banding with her. I could not be satisfied the condition has been fully treated and stabilised. Consequently, no impairment points can be assigned.
Spinal condition
Centrelink accepted that during the claim period, Ms Darcy’s spinal condition was fully diagnosed, but submitted that it was not fully treated and stabilised.
Dr Gordon Dandie, neurosurgeon, documented Ms Darcy’s spinal pathology at L4/5 and L5/S1 in a letter dated 20 November 2013. Dr Dandie considered the Applicant’s condition to be associated with her morbid obesity, but there was clear evidence of desiccation of the L4/5 and L5/S1 discs. He reported that he had advised the Applicant to lose weight to slow the degenerative process. He observed that “the damage is done” and that the Applicant would continue to have back pain symptoms in the future even if she lost weight. Dr Dandie recorded that the Applicant had lost 25 kgs but, with the setback of her husband’s illness and death, she had put it back on again. Dr Dandie’s advice was to take medication and see a physiotherapist for back and core strengthening exercises. He also speculated that there may be some benefit in steroid injections until she lost more weight. The Applicant said she was reluctant to have steroid injections in her spine, because she was worried they make her condition worse. She was of that view, following her experience with epidurals during delivery of her children. She was referred to the Pain Clinic at Westmead Hospital and attended all the sessions they suggested, including hydrotherapy. She noted that the sessions were for pain management and were not to ‘treat’ her condition.
I am satisfied that the Applicant had, at the relevant date, undertaken reasonable treatment as defined in s 6(7) of the Impairment Tables in that she had undertaken a variety of treatments but not steroid injections in her spine. I accept her explanation for her reticence about this form of treatment. I note that that procedure would only alleviate pain and would not address the cause of her back condition.
I am therefore satisfied that Ms Darcy’s spinal pathology has been fully diagnosed, treated and stabilised and is "permanent” and can be assigned an impairment rating from Table 4 - Spinal Function.
While the Applicant was able to sit at the hearing for about an hour, she said she had to medicate herself during the adjournment. She said she is unable to go anywhere unless she knows she can sit down. When in the car, she must stop and stretch, although this was in the context of needing to stretch her knee. Her use of a walking stick, primarily because of her knee, also helps with her back.
Table 4 (Spinal Function) relevantly provides:
Points
Descriptors
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
On 24 April 2015, Ms Darcy attended a JCA. The assessor recommended a rating of 0 points under Table 4 for Ms Darcy’s spinal disorder. On 29 February 2016, Ms Darcy attended a further JCA. The assessor recommended a rating of 0 points under Table 4 for Ms Darcy’s spinal function. I agree with the findings of AAT1 of 5 impairment points because of Ms Darcy’s difficulty in bending. I observe she is able to perform all the activities relevant to the higher impairment rating.
Varicose veins
Centrelink accepted that during the claim period, Ms Darcy’s varicose veins condition was fully diagnosed, but submitted that it was not fully treated and stabilised.
In a report dated 18 September 2015, Dr Tom Daly, a vascular surgeon, arranged for surgery, which was performed in May 2016. While the condition of varicose veins was, during the relevant period, fully diagnosed, it was not fully treated until well after the date of claim. Furthermore, according to the Applicant’s evidence, she has some residual problems with her calf. I therefore could not be satisfied that the condition was, at the relevant date “permanent’ in that it had not been fully treated and fully stabilised. No points could therefore be assigned.
Overall Impairment Rating
I therefore find that the Applicant’s impairments can be assigned 10 points under Table 3 (Lower Limb Function) 5 points under Table 5 (Mental Health Function), 5 points under Table 7 (Brain Function) and 5 points under Table 4 (Spinal Function). Accordingly, the Applicant’s impairments attract an overall impairment rating of at least 20 points and, therefore, the Applicant meets the criterion set out in s 94(1)(b) of the Act.
Continuing inability to work
Having found that the Applicant’s fully diagnosed, treated and stabilised conditions could be assigned a rating of at least 20 points under the Impairment Tables, I turn to consider whether the Applicant had a continuing inability to work during the relevant period.
Centrelink contended that Ms Darcy did not have a CITW, in particular, she did not satisfy the POS requirements as at the claim date.
“Continuing inability to work” is defined in s 94(2) of the Act as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
[Original emphasis]
Severe impairment is defined in s 94(3B) of the Act as follows:
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. [Emphasis added]
As Ms Darcy has a combined impairment of 20 or more, she cannot be said to have a severe impairment. Consequently, in order to be found to have had a continuing inability to work, she must have actively participated in a program of support within the meaning of s 94(3C). That subsection provides that a person has actively participated in a program of support where they satisfy the requirements of a relevant legislative instrument made by the Minister for the purpose of that section. That subsection provides that a person has actively participated in a program of support where they satisfy the requirements of a relevant legislative instrument made by the Minister for the purpose of that section: Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination 2014). (See also ss 94(3D) and 94(3E) of the Act).
Section 94(2)(aa) – Program of Support
Where a person has not been assigned 20 points under a single impairment table, the person will be required to have “actively participated” in a POS. If they have not done so, they cannot be found to have a CITW: s 94(2)(aa) of the Act.
‘Program of support’ is defined in s 94(5) of the Act as a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
A person has “actively participated” in POS if they have satisfied the requirements set out in the relevant legislative instrument being the POS Determination: s 94(3C) of the Act.
The POS Determination provides, in essence, that, a person must participate in a Program of Support for at least 18 months during the 36 months ending immediately before the relevant date of claim before they can be taken to have actively participated in a program of support. In this case, that period is from 2 December 2012 to 2 December 2015.
There are exceptions to this requirement as set out in cl 5(3), 5(4) and 5(5) of the POS Determination but none of these applied to the Applicant.
Periods of suspension or exemption do not count towards periods of active participation in a program of support: see Kumar and Secretary, Department of Social Services [2014] AATA 442; Richardson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 220 and Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158.
The Explanatory Statement for the POS Determination provides insight into the purpose of the POS as follows:
The Government believes that long term dependence on disability support pension is not the best option for people who have skills and capacity to participate in the workforce or are able to build such skills with appropriate assistance.
I accept that the idea behind the POS requirement, is that people who are not severely disabled in a single area of functioning, but who have mild or moderate impairments in a number of areas of function, are not immediately placed on DSP. A person will not have a CITW, and will not qualify for DSP, until there has been appropriate intervention to see if they can be retrained and assisted into a more suitable form of employment, having regard to their impairments.
Centrelink outsources some, if not all, of its POS services. Commonwealth Rehabilitation Service Australia and Advanced Personnel Management are two such providers of POS services to Centrelink, and it was to these providers that the Applicant was referred during the relevant 36 month period.
I was informed that, as at 2 December 2015, the date of claim, Ms Darcy had only completed 309 days of a POS, taking into account periods of suspension or exemption. I observe that Centrelink records suggest the Applicant received ‘exemptions’, relevantly, from 6 June 2013 to 5 September 2013 and 13 March 2015 to 2 February 2016.
Ms Darcy’s total active days in participation was said to be made up of 141 days with CRS and 168 days with APM, being a total of 309 days. No evidence was provided as to how this calculation had been reached. I note that the authorised review officer had calculated that the Applicant had in fact significantly exceeded the POS requirement.
The Applicant disputed the Respondent’s calculation, in particular, the calculation of the period while CRS was her POS provider.
Centrelink relied on information which had been provided by CRS that the Applicant had been referred to it on 27 September 2013, had been placed in a programme on 10 October 2013, but that she had been ‘suspended’ on 28 February 2014.
Centrelink’s records show that the Applicant first entered a job plan with CRS on 9 or 10 October 2013 which ended on 11 February 2014. She entered another job plan on 12 February 2014 which ended on 20 July 2014 and another commenced on 21 July 2014 and ended 3 February 2015. After that she was managed by APM from 4 February 2015 to 6 April 2016, and she does not dispute the 168 days with APM. Her evidence was that she continues to attend APM.
The Applicant said she was managed by a case officer at CRS who, she said, was ‘fantastic’ and suggested she undertake a course through Open Training and Education Network (OTEN). The course had no set daily or weekly hours and teachers were accessible up to 11 pm at night. Her evidence, which was unchallenged, was that the course was funded by Centrelink. During 2014, also at the suggestion of her case officer, she undertook a 10-week mindfulness course.
The Applicant provided a number of documents she had obtained from CRS. These included an employment pathway plan dated 12 February 2014 in which the Applicant agreed to undertake 20 hours per fortnight of fulltime education or training with OTEN from 12 February 2014 to 31 December 2014. This was a compulsory requirement. There was another employment pathway plan dated 21 July 2014 in which she agreed to undertake 40 hours per fortnight of fulltime education or training with OTEN from 21 July 2014 to 2 March 2015.
Also included was a program summary for the Applicant dated 18 August 2014 which referred to an employment pathway plan. It noted the assistance provided to her included support and monitoring of Certificate III in Business Administration at OTEN. It recorded that she was making a big effort and progressing well with here study despite also receiving intensive health treatments. A similar report was dated 15 December 2014. In addition, case notes were provided dating from 10 October 2013 to 7 July 2014. On 28 February 2014 the actions planned were to support [the Applicant] and monitoring [her] study.
A further entry for the period 3 March to 21 July 2014 recorded that the Applicant was ‘tracking well’ with her study; she was providing progress reports. Actions planned were ‘support and monitoring with study in suspension’ [emphasis added]. It is unclear to what this ambiguous notation refers. Centrelink contended that her POS was ‘suspended’ while she undertook study. I do not accept this to be the case, given the course was one suggested by the provider and the ongoing monitoring of the Applicant’s progress. The Applicant’s unchallenged evidence was that Centrelink paid for the course and it was arranged by CRS, to whom Centrelink had outsourced the management of the Applicant for the purposes of a POS. A more likely inference was that she was excused from attendance at CRS while undertaking the study.
Another explanation may be that the Applicant’s study was suspended for a period. However, the Applicant produced her academic record as at July 2014, December 2014 and July 2015, which showed study in those academic semesters. Consequently, I do not accept that this shows ‘suspension of study’.
It was also contended on Centrelink’s behalf that, I could not be satisfied when considering the matters to be taken into account in assessing active participation in a program of support: Clause 9 of the Determination. I reject that contention – the program of support was provided by a designated provider, and included a course of study which was one its case officer suggested to the Applicant as one to equip her with skills to join the job market. This would appear to be precisely a POS strives to achieve.
I therefore find that the Applicant has met the requirements of the POS in accordance with s 94(2)(aa).
Section 94(2)(a) – work capacity
Centrelink relied on the JCA opinions dated 24 April 2015 and 29 February 2016 for the purpose of s 94(2)(a) on the basis that the assessors have specialist knowledge and experience in identifying barriers to employment, interventions (such as Disability Employment Services), available programs and suitable occupations and is qualified to determine a person’s work capacity.
The assessor in each report dated 24 April 2015 found that Ms Darcy had a baseline work capacity of 8 – 14 hours per week, and a work capacity within two years with intervention of 15 – 22 hours per week. I note that this was the same assessment as when the Applicant was considered by a job capacity assessor in 2008 and again in 2013. The Applicant’s conditions have deteriorated since that time.
I observe that in the JCA of 29 February 2016, the assessor recommended a rating of 0 points for Ms Darcy’s lower limb function, and 0 points for Ms Darcy’s spinal disorder. These were considered to be her only permanent conditions at that time. I also observe that the assessor in the latter report assessed the Applicant’s lower limb function at 10 points. Her other permanent conditions – mental health, brain function (migraines), shoulder and upper limb, spinal disorder were all rated at 0 points. Barriers (to work) were identified as her mobility restrictions, ‘episodic fluctuations’ and physical limitations restrictions as to type of work. It was anticipated that with support for 6-12 months she would be able to cope with work related stress and pressure and physically complete work tasks, and maintain sustainable employment. Clearly, now about 18 months after that assessment none of that has come to pass.
Another JCA was conducted in July 2016, and there was no change from the assessment in February 2016, although “maintaining sustainable employment” was expected within 6 months. It was not clear how the assessor had reached that view.
I was referred to Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AAT 642 at [28] where the Tribunal referred to the preference that can be given to JCA assessments of work capacity over medical reports. I was also referred to Eid v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180 at [63], where Deputy President Forgie warned against the uncritical acceptance of a JCA’s proffered opinion.
Dr Chaudhary recommended her for the DSP. He considered her condition to be chronic. He noted her feelings of hopelessness and that she is unable to maintain concentration. He noted her orthopaedic limitations. Dr Das wrote in a letter date 2 March 2017 that the Applicant would be unable to work a 15 hour week within the 2 years from 2 December 2015. Further, he considered it unlikely that the Applicant would be able to return to the workforce at all.
Ms Darcy has been managed by a number of different specialists and I could find nothing in the medical evidence that expressed anything like the optimism in the JCA reports. Further, the JCA assessors had, in each of the reports, taken a very conservative assessment of the Applicant’s conditions, whereas the evidence was of unpredictable headaches and consistent pain which, although variable in intensity, never leaves her. Even the more recent JCA assessors record her limited mobility.
On the basis of all the available medical evidence, I find that Ms Darcy’s impairment is of itself sufficient to prevent her from doing any work independently of a program of support during the next two years. I am therefore satisfied that the requirement in section 94(2)(a) is met.
Section 94(2)(b) – training or education
Next, I considered whether, Ms Darcy’s impairment is of itself sufficient to prevent her from undertaking a training activity during the next two years; or whether because of her impairment, any training activity is unlikely to enable her to do any work independently of a program of support within the next two years: section 94(2)(b)(i) and section 94(b)(ii).
On the basis of all the available medical evidence, I find that Ms Darcy’s impairment is of itself sufficient to prevent her from undertaking a training activity during the next two years and that any training activity is unlikely to enable Ms Darcy to do any work independently of a program of support during the next two years. I am therefore satisfied that the requirement in section 94(2)(b) is met.
I am therefore satisfied that the Applicant, at the relevant date, met all the requirements for the DSP.
Decision
The decision under review is set aside and in substitution, it is decided that the Applicant satisfied the requirements of s 94 of the Social Security Act 1991 (Cth) as at the date of her claim and the Disability Support Pension should be granted with effect from 2 December 2015.
I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
.........................[sgd]...............................................
Associate
Dated: 5 October 2017
Date of hearing: 15 September 2017 Applicant: In person Solicitors for the Respondent: Dr S Thompson and Ms M Perotti, Department of Human Services
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