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

[2020] AATA 4666

DITTLOFF and Secretary, Department of Social Services (Social services second review) [2020] AATA 4666 (23 November 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2020/1204
GENERAL DIVISION  )

Re: Jacqueline Dittloff
Applicant

And: Secretary, Department of Social Services
Respondent

DIRECTION

TRIBUNAL:  Member G Hallwood

DATE OF CORRIGENDUM: 9 December 2020

PLACE:                    Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. Delete the date of hearing “24 August 2019” and replace with “30 October 2020”.

2. Delete the name of respondent “Mr C Visser, Department of Human Services” and replace with “Ms Underhill of Mills Oakley”.

...................................................................

Division:GENERAL DIVISION

File Number:2020/1204          

Re:Jacqueline DITTLOFF  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member G Hallwood

Date:23 November 2020

Place:Adelaide

The decision under review is affirmed

Member G Hallwood

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Permanent impairment – Sufficient points on impairment tables – Continuing inability to work – Decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

The Guide to Social Security Law

REASONS FOR DECISION

Member G Hallwood

23 November 2020

1. This application seeks to review a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 23 January 2020 affirming the decision to refuse the Applicant’s claim for Disability Support Pension (DSP) lodged with the Department of Human Services (the Department) on 8 July 2019.

THE ISSUES

1. The Tribunal is asked to decide whether Mrs Dittloff qualified for a DSP on the date of claim or within 13 weeks of that date (the qualifying period) between 8 July 2019 and 7 October 2019.

2. The issues to be determined are whether Mrs Dittloff in the qualifying period had:

   (a)A physical, intellectual or psychiatric impairment.

   (b)If so, did the impairment rate at least 20 points against the relevant tables within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination)?

   (c)If so, did Mrs Dittloff have a continuing inability to work?

BACKGROUND

1. Mrs Dittloff lodged a claim for DSP on 8 July 2019 listing her disabilities and medical conditions as:

   (a)Diabetes mellitus

   (b)Coronary artery disease (bypass graft in 2016)

   (c)Depression / anxiety

   (d)Transient ischemic attack

   (e)Supraspinatus tear in shoulder

   (f)Psoriasis

   (g)Barret’s oesophagus

   (h)Chronic obstructive pulmonary disease

   (i)Gastro-oesophageal reflux disease (GORD)

   (j)Bilateral knee pain - Chondromalacia patella

   (k)Restless leg syndrome

2. On 23 August 2019 a delegate of the Department rejected Mrs Dittloff’s claim.[1]

   [1] T46, pp213-214

3. Mrs Dittloff requested a review of the decision and on 28 November 2019 an Authorised Review Officer (ARO) affirmed the decision to reject her DSP claim.[2] The ARO found that Mrs Dittloff’s Coronary Artery Disease was fully diagnosed, fully treated, and fully stabilised but allocated zero points to this condition under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2001 (the Impairment Determination). The ARO found that none of the other conditions were permanent as they had not been fully treated and fully stabilised.[3] Based on a finding that Mrs Dittloff did not have an impairment rating of 20 points or more the ARO found the decision not to pay DSP, was correct.

   [2] T3

   [3] T51, pp234-239

4. On 6 November 2019 Mrs Dittloff sought a review by the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1). On 23 January 2020 AAT1 affirmed the ARO’s decision finding that Mrs Dittloff was assigned 10 points under Table 1 – Functions requiring Physical Exertion and Stamina in Part 3 of the Impairment Determination (the Tables).[4]

   [4] T2, pp3-11

5. On 3 March 2020 Mrs Dittloff applied to General Division of the Administrative Appeals Tribunal (the Tribunal) for a further review.[5] Mrs Dittloff’s reasons for the application were: “I disagree with the decision.”

   [5] T1, pp1-2

6. The Department provided 300 pages of documents (T) to the Tribunal. The Department also tendered a Secretary’s Statement of Facts, Issues and Contentions of 17 pages (R) prior to the hearing.  Mrs Dittloff provided a statement and attached reports adding a further 8 pages of documents (A). The Tribunal’s decision has regard to the documented evidence as well as the oral evidence given at the hearing.

THE LEGISLATION AND RULES

1. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.

2. The relevant law is contained in the Social Security Act 1991 (the Act) and Social Security (Administration) Act 1999 (the Administration Act). Also of relevance are the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) which contains the Impairment Tables, and Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Participation Determination).

3. To medically qualify for a DSP a person must meet the qualification criteria set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Social Security Act 1991 (the Act).

   94 Qualification for disability support pension

   (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) one of the following applies:

   (i) the person has a continuing inability to work;

   (ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

4. The second requirement in paragraph 94(1)(c) is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

5. To qualify for a DSP it is necessary to meet all of these criteria, and, the impairment must be present at the time of the claim or within the following 13 weeks, as set out in the Administration Act at subclause 4(1) of Schedule 2.

6. Subsection 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP.

7. The tables to be applied are contained in the Impairment Tables in accordance with section 27 of the Act.

8. The Impairment Tables contain rules for their application; the Rules for Applying the Impairment Tables (the Rules). The Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.

9. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that result from the person's condition. A person's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person (subsection 6(1) of the Rules).

10. Subsections 6(2) and 6(3) of the Rules set out that the Impairment Tables may only be applied after the person's medical history has been considered, the condition causing the impairment is permanent, and the impairment is likely to persist for more than two years.

11. Subsections 6(3) to 6(7) of the Rules require a condition to be fully diagnosed, fully treated and stabilised, and likely to persist for more than two years in order to be considered permanent.

12. Subsection 6(6) states that a condition is fully stabilised if:

    (a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement enabling the person to undertake work within the next two years, or

    (b)the person has not undertaken reasonable medical treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to occur, even if the person undertakes reasonable medical treatment,  or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable medical treatment.

CONSIDERATION

1. Mrs Dittloff is 56 years old. She completed year 11 at school and worked in her parents’ shop – serving customers, making sandwiches and collecting stock with her father. She met her now ex-husband in 1980 and married in 1986. In 1989 Mrs Dittloff had twins and then another child 12 years later.  Mrs Dittloff also reported that she worked as a house cleaner in the 1990’s until her shoulder started “playing up”. She has not had paid work since then. Mrs Dittloff reported having been married for 34 years and that her husband preferred her to stay at home. She described a difficult split up with her husband in February 2017.

2. The Tribunal was satisfied that during the course of the hearing Mrs Dittloff presented her evidence openly and genuinely. She left the Tribunal in no doubt that she is suffering from a number of conditions that reduce her capacity to work and carry out the functions of her daily life. Mrs Dittloff told the Tribunal she had experienced some difficulties obtaining the medical evidence she needed in order to corroborate her self-described conditions and functional impairment. While Mrs Dittloff is pursuing this further, the Tribunal is satisfied that the records she is seeking would have no material impact on the decisions in this matter because decisions about the functional impact of her impairments were based both on her self-described functional capacity and incapacity as well as corroboration from contemporary medical and other evidence as described below.

Does Mrs Dittloff have impairment?

1. In order to qualify for DSP paragraph 94(1)(a) of the Act, firstly requires a person to have a physical, intellectual or psychiatric impairment.

2. It is not in dispute and the Tribunal finds, based on the medical evidence submitted, that during the qualifying period Mrs Dittloff had impairments that could affect her ability to work.

3. For these reasons Mrs Dittloff satisfies the first criteria in subsection 94(1) of the Act.

Does Mrs Dittloff’s impairment rate at least 20 points against the Impairment Tables?

1. The second requirement under subsection 94(1) of the Act for a person to qualify for DSP is to achieve a rating of 20 points or more under the Impairment Tables at the time of lodging the claim, or within 13 weeks of that. The qualification period in this case is from 8 July 2019 to 7 October 2019. The Tribunal cannot consider medical problems or developments that have arisen after that time. Such issues can only be addressed by a new claim.

2. The Secretary contends that Mrs Dittloff does not satisfy paragraph 94(1)(b) as she does not have a total impairment rating of 20 points under the Impairment Tables.

3. Before any of Mrs Dittloff’s conditions can be assigned an impairment rating against the Impairment Tables the condition must be considered permanent.[6]

   [6] Subsections 6(3) and (4) of the Impairment Determination

4. A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.[7]

   [7] Subsections 6(5), (6) and (7) of the Impairment Determination

5. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if the impairment that results from the condition is more likely than not, in the light of available evidence, to persist for more than two years.[8]

   [8] Subsection 6(4) of the Impairment Determination

6. Mrs Dittloff contends that the following conditions were fully diagnosed, fully treated and fully stabilised at the time of her claim or within 13 weeks of that claim. 

   (a)Coronary artery disease (CAD)

   (b)Chronic Obstructive Pulmonary Disease (COPD)

   (c)Diabetes mellitus (Diabetes)

   (d)Restless leg syndrome

   (e)Bilateral shoulder pain

   (f)Partial hearing loss

7. Mrs Dittloff told the Tribunal that her diabetes which was diagnosed in 2014 was controlled in the qualification period and there was no functional impact on her. Subsection 6(8) of the Impairment Determination sets out that where an impairment has no functional impact, no rating will be assigned. The Tribunal is satisfied by Mrs Dittloff’s evidence in relation to her diabetes and for this reason no rating has been assigned.

8. Mrs Dittloff also told the Tribunal that she had no evidence to support that her hearing loss or bilateral shoulder pain were fully diagnosed fully treated or fully stabilised during the qualifying period. In relation to the hearing loss a report of Dr Paige Moore dated 14 January 2019 provided a diagnosis but indicated Mrs Dittloff would require medical investigations to determine further treatment.[9] In relation to the shoulder pain Mrs Dittloff stated that she had injured her shoulders playing netball and that her condition had deteriorated since about 2014. Mrs Dittloff has seen a series of medical practitioners about her shoulder condition and each had differing thoughts about her diagnosis and treatment.

   [9] T40, pp 193-194

9. Subsection 6(5) of the Impairment Determination requires that when determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated consideration should be given to whether there is corroborating evidence of the condition. In the absence of corroborating evidence relating to the treatment or clarity in relation to diagnosis the Tribunal is satisfied that Mrs Dittloff’s hearing loss and bilateral shoulder pain were not fully treated and fully stabilised within the qualification period.

10. Mrs Dittloff’s restless leg syndrome was diagnosed in Dr Semina Moosa’s report dated 4 May 2018. This report states that the condition was being treated with 2 x 250mcg of Sifrol at night and the condition was stable.[10]  A medical summary prepared by Dr Moosa dated 14 January 2020 (outside the qualification period) does not mention restless leg syndrome[11] although when prompted by Mrs Dittloff a further report from Dr Moosa dated 1 July 2020 (also outside the qualification period) describes intermittent restless leg syndrome diagnosed on 27 September 2017 which is fully treated and stabilised with medication now increased to 1250mcg.[12]As it is unclear from the medical reports when the restless leg syndrome treatment changed to 1250mcg, when it was considered stable if before the report outside the qualification period; the Tribunal is not satisfied that the restless leg syndrome was fully treated and fully stabilised within the qualification period.

    [10] T33, pp 179-180

    [11] T53, pp 244-245

    [12] A3, pp 6-8

11. There is no dispute, and the Tribunal agrees that Mrs Dittloff’s CAD and COPD were fully diagnosed, fully treated, and fully stabilised within the qualification period.[13]

    [13] R1, pp 3, 8-9

12. Subsection 10(1) of the Impairment Determination provides the steps required in order to select the correct table for the assessment of functional loss due to permanent conditions:

    (a)identify the loss of function; then

    (b)refer to the Table related to the function affected; then

    (c)identify the correct impairment rating.

13. A number of medical reports indicate that Mrs Dittloff’s CAD and COPD conditions result in shortness of breath and lack of stamina on exertion.[14] Table 1 is used where a person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina. For this reason, the Tribunal has assessed Mrs Dittloff in relation to these two conditions against Table 1.

    Table 1 – Functions requiring Physical Exertion and Stamina

    [14] T10, T24, T39, T47, T53

14. Table 1 provides descriptors in relation to the severity of functional impact on activities requiring physical exertion or stamina. Relevantly below are the moderate and severe functional impact descriptors.

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)         is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)        has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)        is able to:

(i)         use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)        perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion).

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)         walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)        walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)       use public transport without assistance; or

(iv)       perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)        has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

1. Mrs Dittloff described her condition thinking back to the qualification period. She described going to the Seaford shopping centre which is about two to five minutes’ drive from her home to do her shopping about every fortnight. Usually her friend drives her as Mrs Dittloff does not have her own car although on occasion, she takes a taxi. They park in a disability car park to minimise walking distance and Mrs Dittloff finds the nearest shopping trolley on which she leans while doing her shopping. Mrs Dittloff sometimes has to take a break part way through shopping and will leave her trolley full of items with someone at the checkout while she goes outside for a rest. She uses a shopping list to minimise the time and distance involved with shopping. Mrs Dittloff told the Tribunal that she mobilises on her own with the support of the shopping trolley.

2. Around the house Mrs Dittloff indicated that she has difficulties with, but is capable of, some household activities such as changing the sheets on her bed or sweeping. While she does not own a car, Mrs Dittloff said she can still drive and described having recently hired a car to attend to “some business down south”. Mrs Dittloff also indicated that she can use public transport unaided including trains and trams and that she had caught the tram to attend the hearing.

1. Mrs Dittloff demonstrated an ability at the hearing to perform sedentary tasks of a clerical nature. She said that she needed to take her restless leg medication to enable her to sit and perform clerical type work, and also that a couple of hours after taking the medication she needs to lie down and sleep.

2. The Tribunal has no reason to doubt Mrs Dittloff’s frank and honest description of her capacity which is largely supported by medical reports. In a letter dated 14 January 2020 (and outside the qualification period) Dr Moosa states in relation to COPD “[Mrs Dittloff] gets shortness of breath negotiating around 150 metres. Her symptoms are likely to deteriorate in the next 2 years and she was unable to work due to this at the time of her claim” and goes on to say in relation to her CAD “overall her cardiac status is satisfactory and has mild restriction on her day to day functioning”.[15] These comments were reinforced in a later report of Dr Moosa dated 1 July 2020.[16]

   [15] T53, p244

   [16] A3, pp6-7

3. A medical summary dated 17 September 2019 (within the qualification period) signed by Dr Raji Kumar describes Mrs Dittloff as having severely limited physical capacity due to CAD stating that she has to sit with walking 100 metres and having shortness of breath on effort. Dr Kumar also indicates that her COPD causes shortness of breath on exertion and that Mrs Dittloff is on regular inhaler medication for this.

4. The descriptors for moderate functional impact in Table 1 include capacity indicators and incapacity indicators. There are three capacity indicators all of which must be met as they are joined by the inclusive conjunction ‘and’ indicating each is an additional consideration. The capacity indicators are all functions Mrs Dittloff herself indicates she can perform albeit with effort and with the assistance of medication and a walking aid:

   ·use public transport; and

   ·walk around a shopping centre or supermarket; and

   ·perform work-related tasks of a clerical, sedentary or stationary nature.

5. The incapacity focussed moderate indicators are the factors that, as a result of frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community, cause a person to either:

   ·be unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

   ·have difficulty performing day to day household activities such as changing the sheets on a bed or sweeping paths.

6. In this case Mrs Dittloff has indicated, and the Tribunal is satisfied based on her evidence as corroborated by the medical evidence, that she meets all of the capacity and incapacity descriptors for the existence of a moderate functional impact on activities requiring physical exertion or stamina as a result of her CAD and COPD conditions.

7. The Tribunal also considered whether Mrs Dittloff met the descriptors for a severe functional impact from Table 1. These descriptors require that a person has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours, plus other descriptors joined by the conjunction ‘or’ which indicates that each is an alternative. The other descriptors require that the person usually experiences symptoms (examples of which include shortness of breath, fatigue and cardiac pain) when performing light physical activities and due to these symptoms, the person is unable to:

   ·walk around a shopping centre or supermarket without assistance; or

   ·walk from the carpark into a shopping centre or supermarket without assistance; or

   ·use public transport without assistance; or

   ·perform light day to day household activities (examples include folding and putting away laundry or light gardening).

8. As already stated, Mrs Dittloff in her evidence indicated that she does walk from the car park to the supermarket and walks around the supermarket without needing another person to assist her. Mrs Dittloff has also described an ability to use public transport without somebody assisting her. While she avoids heavy activities, Mrs Dittloff agreed that she performs light day to day household activities. Mrs Dittloff told the Tribunal that she is only able to manage the symptoms of her restless leg syndrome for a couple of hours at a time using medication and then she needs to sleep – making it impossible for her to sustain a three hour shift of clerical duties. The Tribunal was unable to find corroborating evidence for this, but even if there were evidence, Mrs Dittloff would have had to meet one of the other descriptors for severe functional impact from Table 1, which the Tribunal finds she did not.

9. For these reasons the Tribunal is satisfied that there is a moderate functional impairment on activities involving physical exertion or stamina and allocates 10 points from Table 1.

10. As Mrs Dittloff’s permanent impairments are not assessed as totalling 20 points she cannot qualify for DSP within the qualification period because she does not satisfy paragraph 94(1)(b) of the Act.

11. In the interest of completeness, the Tribunal will also briefly consider whether Mrs Dittloff had a continuing inability to work.

Did Mrs Dittloff have a continuing inability to work?

1. Subsections 94(2) and 94(5) of the Act set out that a person has a "continuing inability to work" if the Secretary is satisfied they have "actively participated in a program of support" and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, within the next two years. A person with a "severe impairment" is not required to satisfy the Secretary they have actively participated in a program of support, but will have to satisfy the Secretary the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support, or undertaking a training activity, within the next two years. The availability of work locally or a training activity is to be disregarded when deciding if a person has a continuing inability to work.

2. A person's impairment is a "severe impairment'' if it attracts 20 points or more under a single Impairment Table (subsection 94(3B) of the Act).

3. As one of the required criteria to qualify for DSP that “the person’s impairment is of 20 points or more under the Impairment Tables”[17] has not been met the Tribunal is not required to further explore Mrs Dittloff’s continuing inability to work as she cannot qualify regardless of the findings on this matter.

   [17] Subsection 94(1)(b) of the Act

4. Had Mrs Dittloff obtained 20 points in total across a number of Impairment Tables, and she did not, she would have been required to have actively participated in a program of support if they meet the requirements set out in the POS Determination. Generally, a person will be required to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP (subsections 7(1) and 7(2) of the POS Determination).

5. The Department’s records indicate, and the Tribunal is satisfied that, Mrs Dittloff participated in a program of support for six days in the 36 months prior to her claim for DSP.[18] For this reason the Tribunal is not satisfied that Mrs Ditloff met the requirements set out in the POS Determination.

   [18] T57, p300

CONCLUSION

1. In order to succeed with a claim for DSP a person must meet the requirements of paragraphs 94(1)(a), (b) and (c) of the Act.

2. Mrs Dittloff has a number of impairments that could impact her ability to work and the Tribunal is satisfied that she meets the requirements of paragraph 94(1)(a) of the Act.

3. Mrs Dittloff’s permanent impairments as they stood during the qualifying period did not receive a total of 20 points against the Impairment Tables and for this reason, she did not meet the requirements of paragraph 94(1)(b) of the Act.

4. Mrs Dittloff did not demonstrate to the Tribunal that she had a continuing inability to work as described in paragraph 94(1)(c) of the Act.

5. For these reasons the Tribunal finds that Mrs Dittloff does not qualify for DSP in the qualifying period.

DECISION

1. For the above reasons the Tribunal affirms the decision under review.

I certify that the preceding 64 paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood

....................[sgnd]..........................................

Administrative Assistant Legal

Dated: 23 November 2020

Date of hearing:	30 October 2020
Applicant:	In person
Representative for the Respondent:	Ms Underhill of Mills Oakley