Davidson; Secretary, Department of Social Services and (Social services second review)
[2015] AATA 533
•22 July 2015
Davidson; Secretary, Department of Social Services and (Social services second review) [2015] AATA 533 (22 July 2015)
Division GENERAL DIVISION File Number
2014/6753
Re
Secretary, Department of Social Services
APPLICANT
And
Gail Davidson
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 22 July 2015 Place Sydney The decision under review is set aside and substituted with a decision that during the claim period the applicant did not satisfy section 94(1) of the Social Security Act 1991 (Cth) and did not qualify for Disability Support Pension.
........................[sgd]................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – departmental appeal – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – whether applicant suffered from a severe impairment – whether applicant had a continuing inability to work – decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) ss 94 (1), 94 (2), 94 (3)(3B)(3C)
Social Security (Administration) Act 1999 (Cth)
CASES
Re Summers and Secretary, Department of Social Services [2014] AATA 165
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
22 July 2015
BACKGROUND
On 12 August 2013 Ms Davidson lodged a claim for Disability Support Pension (“DSP”) on the basis that she suffered several medical conditions including “osteoarthritis” of both knees, a condition which was having a significant impact on her ability to function.
Ms Davidson’s claim was rejected by Centrelink on the 27 November 2013 on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular she did not satisfy s 94(1)(b) of the Act, in that her impairment rating was not 20 points or more under the Impairment Tables. On 13 August 2014, on internal review, an Authorised Review Officer (“ARO”) affirmed the decision to reject her claim.
On the 19 November 2014 the Social Security Appeals Tribunal (“SSAT”) decided to set aside the ARO’s decision and substituted a decision that Ms Davidson had satisfied s 94(1) of the Act on the basis that her “osteoarthritis of the knees” had a severe functional impact on her lower limb activities and warranted a rating of 20 points under Impairment Table 3 and that she also had a continuing inability to work.
In these proceedings the Secretary, Department of the Social Services (“the Secretary”) seeks review of the decision of the SSAT.
At the hearing Ms Davidson was self-represented and was able to give oral evidence.
ISSUES
In order to qualify for DSP, Ms Davidson must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), that is, between 12 August 2013 and 11 November 2013 (the claim period).
Section 94(1) of the Act provides that 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 20 points or more under the Impairment Tables; and
(c) one of the following applies;
(i) the person has a continuing inability to work;
…
There is no dispute that, during the claim period, Ms Davidson satisfied s 94(1)(a) of the Act in that she suffers various medical conditions including osteoarthritis of both knees, depression and anxiety, obesity, epilepsy, hyperlipidaemia and vitamin D deficiency.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (para 6(3)(a)).
For the purposes of para 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (para 6(4)(a));
·fully treated (para 6(4)(b)); and
·fully stabilised (para 6(4)(c)).
The Introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
The Secretary concedes that during the claim period the condition of “osteoarthritis of both knees” was fully diagnosed, fully treated and fully stabilised.
The Secretary contends, however, that during the claim period Ms Davidson’s impairment arising from the osteoarthritis from both knees warrants an impairment rating of only 10 points under Impairment Table 3.
The Secretary contends that during the claim period “depression and anxiety” was not fully diagnosed, “obesity” was not fully treated and stabilised, and “epilepsy, hyperlipidaemia and vitamin D deficiency” had no functional impact so the rating under the Impairment Tables for these conditions was zero.
The Secretary also contends that during the claim period Ms Davidson did not have a continuing inability to work and did not satisfy s 94(1)(c) of the Act.
The term “continuing inability to work” is defined in s 94(2) of the Act and states that:
(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 thee 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.
….
It is not disputed that at the date of claim Ms Davidson had not actively participated in a program of support within the meaning of s 94(3C) of the Act.
It follows that Ms Davidson can only qualify for DSP if she had a “severe impairment” during the claim period.
The term “severe impairment” is defined in s 94(3B) of the Act, as follows:
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.
At the hearing the parties agreed that the only condition suffered by Ms Davidson during the claim period that could warrant a rating of 20 points or more under a single Impairment Table is the condition of “osteoarthritis of both knees”.
Therefore, the issues for the Tribunal to consider are:
·whether during the claim period Ms Davidson’s condition of “osteoarthritis of both knees” had a severe functional impact on her lower limb activity and warranted a rating of 20 points or more under Impairment Table 3; and if so
·whether she had a “continuing inability to work” in accordance with s 94(2)(a) and 94(2)(b) of the Act.
EVIDENCE
Ms Davidson’s Evidence
During the claim period Ms Davidson lived in a boarding house in Neutral Bay where she had her own room but shared kitchen and bathroom facilities. She said that the bathroom had fittings to assist persons with disabilities.
Ms Davidson told the Tribunal that there were six steps at the entrance to the boarding house and six steps down to her room, and that she was able to manage these steps with some difficulty by using her walking stick and holding onto the hand rail.
Nevertheless on most days she was able walk to the local ferry stop and catch the ferry to Circular Quay. She had to walk about two blocks which took about 10 to 15 minutes. She would spend most of the day around Circular Quay and walk to Customs House, the library, coffee shop and sometimes to the botanical gardens. She would walk slowly using her walking stick and would stop frequently to sit and rest.
Since July 2014 Ms Davidson has been living in a one bedroom ground floor disability unit provided by Housing NSW.
Ms Davidson said that she is able to walk to the local bus stop which takes about 10 minutes and often goes to Balmoral beach. She is able to travel by bus, prefers buses with entry platforms that can be lowered but generally is able to enter and exit the bus with the assistance of her walking stick and does not need assistance from another person. She is also able to walk to the local shop for small purchases but about every two weeks a neighbour drives her to a shopping centre and helps to lift her shopping in and out of the car. She said that she has particular difficulty with activities which require prolonged standing such as cooking at the stove or standing in a queue.
Ms Davidson explained that the limitations on her mobility and restrictions on social and other activities, as a result of her knee condition, cause her significant distress and in 2014 she was referred to a psychologist for treatment because of symptoms of depression and anxiety.
Medical evidence
In a Centrelink Medical Report dated 10 August 2013, Dr Lim, Ms Davidson’s GP, lists her various medical conditions but provides no other useful information in respect any of the conditions.
In a subsequent report dated 30 January 2014 Dr Lim notes “O.A. both knees” as a condition with most impact and records clinical features as “walking ability only 30 minutes , stands in 1 spot only 2 minutes & getting up painful”.
In a letter dated 20 October 2014 Dr Lim states “I certify that she has difficulty performing day to day household activities e.g. changing the sheets on a bed or sweeping paths, she is able to walk in shopping centres only for 10 minutes and then has to rest” and “She is unable to apply for 3 jobs per week with her knee pains preventing her from getting public transport to get there and back home”.
In a letter dated 6 May 2015 Dr Lim states the following:
This is to certify that Gail Davidson is unable to walk around a shopping centre or supermarket without assistance nor walk from the carpark into a shopping centre or supermarket without assistance and stand up from sitting position without assistance and requires assistance to use public transport.
She usually has someone driving her to and from a supermarket when she does her shopping and help her carry her shopping and usually uses buses that can lower the platforms.
In a letter dated 15 January 2014, Professor Hunter notes that Ms Davidson suffers from osteoarthritis in both knees and is a patient in the Osteo Arthritis Chronic Care Program (OACCP) at Royal North Shore Hospital.
Professor Hunter states that “at Ms Davidson’s relative young age (58 years) knee replacement surgery is not necessarily recommended” and outlines the current care and management she is receiving under the OACCP.
Professor Hunter does not address any functional impairment suffered by Ms Davidson because of her osteoarthritis.
In a letter dated 26 November 2014, Ms Daley, Occupational Therapist, notes that commencing on 26 August 2014 she has been seeing Ms Davidson over recent months for several sessions.
Ms Daley notes that Ms Davidson is “stressed and depressed due to limitations in her finances, mobility and lifestyle”.
She states that Ms Davidson has considerable functional impairment in relation to sitting, standing and mobility tolerance which in the work environment translates to:
·Stiffness following of periods of siting;
·moving slowly around the workplace and with the support of a walking stick;
·inability to stand for more than approximately 5 minutes;
·being slow ascending and descending stairs; and
·mobility issues getting to and from work.
On the 10 March 2015 the Secretary referred Ms Davidson to Dr Frean, Occupational Physician, for a medical examination and report.
In a report dated 26 March 2015, Dr Frean stated Ms Davidson’s diagnosis at the relevant period was “Bilateral medial compartment and patellofemoral osteoarthritis of both knees - moderate severity with significant symptoms and reduced functional capacity”.
Dr Frean noted that Ms Davidson was diagnosed with osteoarthritis of both knees in 2007 and continued to experience intermittent flare-ups over the next few years but continued to work at her normal duties as a retail assistant. From 2012 she agreed to reduce her workdays to four days per week and take one day per week from her accrued leave entitlement. She continued to work four days per week at her normal duties until she was made redundant on 19 May 2013 and had not experienced any recurrent or prolonged sick leave prior to this.
Dr Frean also notes the following:
Ms Davidson reported that she continued to experience constant ache of both knees through August and November 2013, with intermittent flare-ups of severe pain and stiffness, the right knee worse than he left. The pain was aggravated by walking, heavy lifting and cold/damp weather. The pain and discomfort disturbed her sleep. She told me her symptoms and reduced functional capacity were similar to what she experienced while she working four days per week from 2012 through 2013.
Activities during the relevant period: Ms Davidson reported that during this time she was living in a boarding house in Neutral Bay……she was able to walk for around 10 minutes using a cane for support in the right hand. She had a bus stop near her house and she was able to catch the bus, although at times she had to wait for a low floor accessible bus. She was able to walk a few minutes to the ferry and walk to destinations close to Circular Quay. She told me she was able to visit the local shops and she regularly attended Centrelink in Chatswood, travelling there by bus she was able to negotiate a few steps, and use an escalator, holding on the handrail. She was able to shower and dress without assistance. She was able to clean and vacuum her room in the boarding house but she did not need to undertake any heavy domestic duties or attend to the garden, since the accommodation serviced…….with regard to her functional limitations during the relevant period, she reported being able to walk for around 10 minutes using a cane for support. After resting seated, she would be able to walk for another 10 minutes. She was able to negotiate gentle hills but found it easier to descend rather than climb. She was able to negotiate 2-5 stairs holding onto the handrail and to use an escalator. She was able to sit without limitation but she experienced pain and stiffness in the knees after prolonged sitting, greater than 2 hours. She was able to bend and stoop but unable to kneel or squat.
Dr Frean considered the descriptors in Impairment Table 3 and concluded that there was a moderate functional impact of Ms Davidson’s activities using lower limbs with an impairment rating of 10 points. He also assessed Ms Davidson against the descriptors for the next level of impairment in Table 3, severe functional impact, and concluded that none these descriptors applied in her case.
CONSIDERATION
The Impairment Determination states that Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs and feet. The relevant descriptors in Table 3 are as follows:
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.
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.
Ms Davidson contends that the osteoarthritis in her knees has had a severe impact on her activities using lower limbs on the basis of significant limitations in her mobility, chronic pain with intermittent flare-ups and restrictions to her previous lifestyle. She relies on her self-report of symptoms and the reports and letters provided by Dr Lim, Professor Hunter and Ms Daly.
The evidence provided by Dr Lim in my view is somewhat problematic. The two Centrelink Medical Reports dated 10 August 2015 and 30 January 2015 can best be described as incomplete and do not assist with the relevant issues in this matter. Also his letter of 20 October 2014 suggests a somewhat cursory understanding of Ms Davidson’s functional impairment and is not helpful.
In his two paragraph letter of 6 May 2015 Dr Lim makes several assertions about Ms Davidson’s functional impairment but, in my view, does not provide satisfactory reasons to support those assertions, in particular, he does not explain what he means by “without assistance”.
The letter from Professor Hunter is of no assistance as there is no reference to functional impairment and the letter from Ms Daly, in my view, tends to support a moderate functional impairment.
Dr Frean, a well-credentialed Occupational Physician, provides a comprehensive report which specifically addresses the relevant issues and presents a conclusion which is persuasive.
His report includes a complete medical history with particular reference to the claim period, the findings of a physical examination, a review of the reports of the relevant investigations and an assessment with regard to the descriptors of moderate and severe functional impairment in Impairment Table 3.
Furthermore, the history as obtained by Dr Frean, in respect of impact on activities during the claim period, is similar to Ms Davidson’s oral evidence at the hearing, which, in my view is consistent with the descriptors of a moderate functional impact. That is, she is unable to walk far outside her home and needs to use public transport to community facilities, she is able to use public transport and walk around albeit slowly and with frequent rests and she can move around independently using a walking stick. Also the Table clearly states that the person suffering moderate functional impact may require additional time to move around and may need to use disabled access entries, lifts and toilets.
I am satisfied that the evidence points to a conclusion that during the claim period the condition of osteoarthritis in both knees had a moderate functional impact on Ms Davidson’s activities using lower limbs and that the appropriate rating under Impairment Table 3 was 10 points.
However, in order to address an apparent misconception, held by Ms Davidson and her supporters, about the meaning of “assistance” as used in Table 3, I believe it is appropriate to consider whether the evidence could support a conclusion that during the claim period there was a severe functional impact on her lower limb activities. The Table sets a relatively high bar in respect of a severe functional impact in that a person must require “assistance” in any of the described activities.
The term “assistance” is not defined in the Impairment Determination or the Act and the Secretary referred the Tribunal to Part 3.6.3.30 of the Guide to Social Security Law which states that “Assistance means assistance from another person rather than aids or equipment the person has or usually uses”.
This interpretation was approved in ReSummers and Secretary, Department of Social Services [2014] AATA 165. In Summers the Tribunal concluded as follows :
[16] “Assistance” is not defined in the tables or in the Act. The Secretary urged on me an interpretation of “assistance” that would mean that the assistance referred to is assistance from another person, rather than assistance from an object, such as a shopping trolley, a walking stick or a hand rail. The secretary submitted:
The proper context for the descriptors for 10 and 20 points in Table 3 includes [paragraph] 9 of the Impairment Tables determination. …[Paragraph] 9 states that a person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses. Thus, the descriptors for 10 and 20 points in Table 3 are to be read in [Mr Summers’] case on the basis that he is normally using his walking stick and other aids such as trolleys in shopping centres. It would be superfluous to mention “aids, equipment or assistive technology” in the descriptors, because the rule in [paragraph] 9 of the Impairment Tables Determination requires them to be taken into account. It follows that “assistance” in the descriptors for 10and 20 points in Table 3 does not extend to “aids, equipment or assistive technology” but is limited to assistance from a person
[17] I accept this submission. The conclusion that “assistance” refers to assistance from a person and not from an object or physical aid is inescapable.
I agree with the decision in Summers and as there is no evidence before the Tribunal that Ms Davidson required assistance from a person in respect of the activities described in Impairment Table 3, I am satisfied that during the claim period there was only a moderate functional impact on her lower limb activities as a result of the osteoarthritis of both knees so that the impairment rating was 10 points.
It follows that as Ms Davidson’s impairment was not a severe impairment within the meaning of s 94(2)(3B) and she had not actively participated in a program of support within the meaning of s 94(2)(3C) she could not satisfy s 94(2)(aa) of the Act.
Therefore, during the claim period she could not satisfy s 94(1)(c) of the Act and was not qualified for DSP.
DECISION
The decision under review is set aside and substituted with a decision that during the claim period Ms Davidson did not satisfy s 94(1) of the Act and did not qualify for DSP.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member ...............................[sgd].........................................
Associate
Dated 22 July 2015
Date of hearing 23 June 2015 Applicant In person Solicitors for the Respondent Department of Human Services
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