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

Davis and Secretary, Department of Social Services (Social services second review) [2017] AATA 2743 (21 December 2017)
Division:GENERAL DIVISION
File Number: 2017/1223
Re:Sarah Davis
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P E Nolan
Date:21 December 2017
Place:Brisbane

The decision under review is affirmed.
............................[Sgd]............................................
Senior Member P E Nolan
CATCHWORDS
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether Applicant had 20 impairment points – spinal condition – Applicant only has 10 impairment points – decision under review is affirmed
LEGISLATION
Social Security Act 1991 (Cth), s94
Social Security (administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
REASONS FOR DECISION
Senior Member P E Nolan
21 December 2017

On 29 January 2016, Sarah Davis (the “Applicant”) applied for a Disability Support Pension (“DSP”). In the portion of the DSP claim form where the Applicant was to list her disabilities, illnesses or injuries, the Applicant stated that she had:
[C]hronic lower back pain, severe nerve pain, broken left leg (never healed), endometriosis [and] neck pain.[1]
[1] Exhibit 1, T Documents, T39, p 180, DSP claim form (undated).
The central issue for the Tribunal to determine is whether the Applicant qualified for DSP at the date of her claim on 29 January 2016, or within 13 weeks thereafter, being up until 1 April 2016 (the “Relevant Period”).
HISTORY OF THE MATTER
The Applicant lodged an application for DSP on 29 January 2016.[2] On 14 April 2016, the Applicant’s claim was rejected.[3]
[2] Exhibit 1, T Documents, T39, p 180, DSP claim form (undated).
[3] Exhibit 1, T Documents, T49, pages 200-201, Rejection of DSP, dated 14 April 2016.
The Applicant sought review by an authorised review officer (“ARO”); the decision to reject the claim was affirmed.[4] The Applicant sought further review by the Social Security and Child Support Division of the Tribunal (“SSCSD”), on 18 January 2017 the decision to reject the application was again affirmed.[5]
[4] Exhibit 1, T Documents, T51, pages 203-306, ARO decision, dated 24 May 2016.
[5] Exhibit 1, T Documents, T3, pages 8-13, SSCSD decision, dated 18 January 2017.
On 24 February 2017, the Applicant sought review of the General Division of this Tribunal.[6]
[6] Exhibit 1, T Documents, T2, pages 4-5, Application for Review, dated 24 February 2017.
ISSUES FOR THE TRIBUNAL
The issues for me to consider are:
(a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;
(b)whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
Before determining the above, it is convenient to set out the relevant legislative framework.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 29 January 2016). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[7] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 29 January 2016 and 29 March 2016. The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[8]
[7] See ss 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Administration Act; see Fanning and Secretary, Department
of Social Services [2014] AATA 447 at [33].
[8] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[9] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[10] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[11]
[9] See s 26(1) of the Act.
[10] See s 5(2) of the Determination.
[11] See s 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[12] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[13]
[12] See s 6(3) of the Determination.
[13] See s 6(4) of the Determination.
In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.[14]
[14] See s 6(5) of the Determination.
A condition is “fully stabilised” if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(c)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[15]
[15] See s 6(6) of the Determination.
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[16] An impairment rating can only be assigned in accordance with the rating points in each Table.
[16] See s 6(7) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepts the Applicant has impairments for the purposes of subsection 94(1)(a) of the Act.[17] However, the Respondent contends that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and therefore did not satisfy subsections 94(1)(b) or (c) of the Act during the Relevant Period.[18] I am satisfied that concession is appropriate in light of the medical evidence.
[17] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 August 2017 at [5.1].
[18] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 August 2017 at [6.1]-[6.2] & [8.1].
I will now consider whether the Applicant’s impairments can attract impairment points under the Tables.
Spinal condition
The Respondent, helpfully, concedes that the Applicant’s spinal condition (namely, a fractured L1 vertebrea and L5/S1 disc prolapse) was fully diagnosed, treated and stabilised during the Relevant Period.[19] Having considered the evidence before me, I accept that this is so.
[19] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 August 2017 at [6.3].
I am satisfied that the impairment caused by this condition can attract an Impairment Rating. The relevant table is Impairment Table 4 - Spinal Function. The Respondent contends that the resulting impairment attracts 10 points under Impairment Table 4.[20]
[20] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 August 2017 at [6.1].
To be assigned the higher rating of 20 points, the Applicant would need to have demonstrated that during the Relevant Period she was unable to:
(a) perform any overhead activities; or
(b) turn her head, or bend her neck, without moving her trunk; or
(c) bend forward to pick up a light object from a desk or table; or\
(d) remain seated for at least 10 minutes.
The medical evidence before the Tribunal consisted of various reports from the Applicant’s general practitioners (Dr Chiu[21] and Dr Houston[22]) and neurosurgeons (Professor Stoodley[23] and Associate Professor Seex[24]). The medical reports of the Applicant’s neurosurgeons are of limited assistance as they provide little (if any) comment on the functional impairment of the Applicant’s spinal condition during the Relevant Period.
[21]         See Exhibit 1, T Documents, T38 page 153, Medical Certificate issued by Dr Kevin Chiu, dated 12 January 2016;
Exhibit 1, T Documents, T41, pages 186-7, Medical Report of Dr Kevin Chiu, dated 15 February 2016.
[22]         See Exhibit 1, T Documents, T55 page 214, dated 9 January 2017; Exhibit 1, T Documents, T57 pages 217-9,
Medical Report of Dr John Houston, dated 19 January 2017.
[23]         Exhibit 1, T Documents, T46, page 192, Medical Report of Professor Marcus Stoodley, dated 12 April 2017.
[24]         Exhibit 1, T Documents, T52, page 210, Medical Report of Associate Professor Kevin Seex, dated
12 August 2016.
The medical report of Dr Chui dated 15 February 2016, indicates that the Applicant was able to walk 20 metres, but was subsequently “unable to move much for the rest of the day.”[25] The medical report stated, that on examination, Dr Chui observed:
front bending 80 deg[rees];
no [sic] able to have back extension;
side flexion limited to 15 deg[rees]; [and]
right and left SLR 70 deg[rees].[26]
[25] Exhibit 1, T Documents, T41, pages 186, Medical Report of Dr Kevin Chiu, dated 15 February 2016.
[26] Exhibit 1, T Documents, T41, pages 186, Medical Report of Dr Kevin Chiu, dated 15 February 2016.
Dr Houston two medical reports dated 19 January 2017 were substantially the same. Both stated that the Applicant’s spinal condition “renders her unable to sit or stand for longer than 5 minutes at any one time.” The reports also note that “[t]here is a severe functional impact on activities involving spinal function, including overhead lifting, bending, twisting and turning.” The Respondent contends that no weight should be attached to Dr Houston’s reports as they post-date the Relevant Period and are not referrable to the Applicant’s condition during the Relevant Period. I accept that this is so.
The Applicant’s evidence at the hearing was that, during the Relevant Period, she:
·had difficulty walking for more than 20 minutes;
·cannot perform overhead tasks easily and struggles to raise her arms;
·can only drive a car for 10-15 minutes;
·requires the assistance of her partner to complete housework, laundry, cooking, cleaning and washing; and
·can only sit for a short period of time (5-10 minutes) without having to change position.
The Applicant’s evidence is consistent with the information she provided during a Job Capacity Assessment (“JCA”) on 14 April 2016. The JCA reported that the Applicant:
has been almost housebound since 14/2/2016
cannot drive
leaves the house only for medical appoints
get[s] her groceries delivered
boyfriend…assist[s] her with day to day tasks[27]
[27] Exhibit 1, T Documents, T48, pages 194-199, Job Capacity Assessment Report, dated 14 April 2016.
From the Applicant’s evidence it is clear that while she had difficulties with overhead activities, she was not unable to perform such activities. For example, the Applicant described how she was restricted to washing her hair once every three or four days and had great difficulty doing this. There is no corroborating medical evidence referable to the Relevant Period that would indicate she was unable to perform such overhead activities.
While the Applicant says that she is unable to sit for more than 10 minutes there is no corroborating medical evidence that addresses the Applicant’s sitting tolerances. Both the Applicant’s evidence and the medical evidence are largely silent on the remaining descriptors.
Accordingly, on the evidence before me, I am not persuaded that the Applicant’s impairment meets the descriptors to attract a 20 point rating under Impairment Table 4. However I am satisfied that “[t]here is a moderate functional impact on activities involving spinal function.” I find that the Applicant’s impairment rating for her spinal condition is 10 points.
Other conditions
Consistent with the Applicant’s position before the SSCSD,[28] at the hearing before this Tribunal the Applicant stated that she only wanted her spinal condition assessed for the purposes of the review. Accordingly, the Applicant’s other conditions have not been considered in assessing whether she qualified for DSP during the Relevant Period.
[28] Exhibit 1, T Documents, T3, page 10, SSCSD decision, dated 18 January 2017.
Continuing Inability to Work?
Given that this Applicant does not reach 20 points or more at the Relevant Period, it is not necessary for me to consider whether he satisfies the remaining criteria for DSP.
CONCLUSION
The Applicant does not qualify for DSP because his conditions can only be assigned 10 impairment points during the Relevant Period. Accordingly, the decision under review is affirmed.
The Applicant may benefit from lodging a fresh application for DSP with additional medical evidence. The Tribunal notes that such medical evidence should address the criteria which the Applicant must satisfy to qualify for the DSP.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons
for the decision herein of
Senior Member P E Nolan

..................................[Sgd]......................................
Associate
Dated: 21 December 2017

Date of hearing: 27 September 2017

Applicant: In person

Solicitors for the Respondent: Mr Jake Kyranis
Sparke Helmore

[2012] AATA 922 at [34].

[2017] AATA 2743

21 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Procedural Fairness

Date of hearing:	27 September 2017
Applicant:	In person
Solicitors for the Respondent:	Mr Jake Kyranis Sparke Helmore