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

[2019] AATA 1231

Dixon and Secretary, Department of Social Services (Social services second review) [2019] AATA 1231 (11 June 2019)

Division:GENERAL DIVISION

File Number:2018/6094           

Re:Julie Dixon

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:11 June 2019

Place:Brisbane

The Tribunal affirms the decision under review.

...............................[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 – lower and middle back pain, spine and hips pain and shoulder pain, regular urine infections, chronic obstructive pulmonary disease, insomnia, depression and a prolapsed uterus – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

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

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

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

REASONS FOR DECISION

Senior Member P E Nolan

11 June 2019

INTRODUCTION

1. Ms Julie Dixon (“the Applicant”) applied for Disability Support Pension ("DSP") and lodged a claim on 7 April 2017. The conditions complained of in the Application included pain of the lower and middle back, spine, hip and shoulder. Also included were regular urine infections, chronic obstructive pulmonary disease (“COPD”), insomnia, depression and a prolapsed uterus.

2. The issue for the Tribunal is whether the Applicant qualified for DSP at the time of lodgement, being 7 April 2017, or if not, then within thirteen (13) weeks thereof, namely until 7 July 2017 (“the Relevant Period”).

   HISTORY OF THE MATTER

3. The Applicant’s DSP claim, which was made on 7 April 2017,[1] was rejected at first instance on 26 August 2017.[2] The Applicant requested a review of that decision by an Authorised Review Officer (“ARO”) who further rejected the claim on 1 March 2018. The Applicant appealed the ARO’s finding and the matter was further reviewed by the Social Services and Child Support Division of this Tribunal ("SSCSD" also known as "AAT1") on 12 September 2018.[3] That Appeal was rejected and on 29 April 2019 the matter came before this Tribunal where the Applicant appeared by telephone. The Applicant’s evidence was clearly similar to and in line with telephonic evidence she apparently gave to AAT1.

   [1]    Exhibit 1, T Documents, T18, pages 113-144, Claim for DSP dated 7 April 2017.

   [2]    Exhibit 1, T Documents, T22, pages 157-158, Rejection of Claim for DSP 26 August 2017.

   [3]    Exhibit 1, T Documents, T2, pages 5-11, Decision and Reasons of the SSCSD dated 12 September 2018.

   ISSUES FOR THE TRIBUNAL

4. 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 Period, 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

   (d)whether the Applicant completed a program of support; and

   (e)whether the Applicant has a continuing inability to work.

5. Before determining the above, it is convenient to set out the relevant legislative framework.

   LEGISLATIVE FRAMEWORK

6. Section 94 of the Social Security Act 1991 (Cth) ("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; the Applicant's impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

7. The Social Security (Administration) Act 1999 (Cth) (“Administration Act”) makes it clear that qualification for DSP and assessment of the relevant impairment ratings is to be determined as at the date of claim (in this case, 7 April 2017). 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.[4] Therefore the Relevant Period for considering whether the Applicant qualified for DSP is between 7 April 2017 and 7 July 2017. Assessment of the Applicant's conditions, and thus assessment of any attributable impairment points, must be undertaken as at the Relevant Period.[5]

   [4] Sections 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Administration Act; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33].

   [5]    See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, at [34].

8. Previous decisions of both the Tribunal and the Federal Court have emphasised that the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Evidence, such as medical reports that come into being after the Relevant Period, may still be relevant, but only insofar as they are referrable to an applicant's condition during the Relevant Period.

9. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ("the Determination").[6] 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.[7] 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.[8]

   [6] Section 26(1) of the Act.

   [7] Section 5(2) of the Determination.

   [8] Section 6(1) of the Determination.

10. 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.[9] 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.[10]

    [9] Section 6(3) of the Determination.

    [10] Section 6(4) of the Determination.

11. In determining whether a condition has been fully diagnosed and fully treated, the following factors 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.[11]

    [11] Section 6(5) of the Determination.

12. 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:

    (i)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

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[12]

    [12] Section 6(6) of the Determination.

13. "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.[13] An impairment rating can only be assigned in accordance with the rating points in each Table.

    [13] Section 6(7) of the Determination.

14. 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

    Spinal Condition

15. The Respondent accepts the Applicant has spinal conditions of "degenerative disease of the lumbar spine" and "osteoporosis with L 1 vertebral fractures" which were fully diagnosed, treated and stabilised during the Relevant Period and that the appropriate impairment table to assess the Applicant's spinal condition is Table 4 - Spinal Function.[14]

    [14]   Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 12 March 2019, paragraph 4.19.

16. The Applicant testified by telephone at the hearing to the effect that she had difficulties dressing, doing housework and had difficulties walking other than short distances. However, the Applicant indicated that she was able to sit on what was effectively a 3 hour flight to New Zealand although she needed wheelchair assistance to get her onto the aircraft. The Applicant was cross examined about the fact that she could sit on the aircraft for 3 hours without needing to get up and walk around.

17. The Tables make it clear that there needs to be corroborating evidence of the person's impairment. Simply reporting symptoms alone is insufficient to constitute corroborating evidence. More importantly, two of the reports contained in the material of the

    
    

    19 September 2017 and 3 February 2019 were not produced until after the Relevant Period. Therefore they can't be taken into consideration in assessing the impairment during the Relevant Period.

18. There is no corroborating material in my opinion and therefore no points can be attributed to this disability.

    Chronic Obstructive Pulmonary Disease

19. It is not contested that the Applicant has fully diagnosed COPD; however, during the Relevant Period, there is no evidence to show the condition was fully treated and/or stabilised. In the circumstances the condition would attract no points because it was not fully treated and fully stabilised during the Relevant Period.

    Mental Health Condition

20. The Mental Health Condition, though diagnosed by Dr Paul Balin, General Practitioner (Dr Balin), was not diagnosed by a Psychiatrist or Clinical Psychologist as required by Table 3. Without this there is no possibility of attracting any points for the condition and it must fail.

    Other Conditions

21. Dr Balin refers to a multitude of medical conditions the Applicant has in his report dated 4 April 2017.[15] A later report dated 19 April 2017 is also relevant.[16] None of these have any information as to the treatment or rehabilitation or whether the conditions are fully diagnosed or treated or stabilised. In the circumstances it is not possible to assign an impairment rating.

    [15]   Exhibit 1, T Documents, T18, pages 101-112, Medical Report of Dr Balin dated 4 April 2017 at p111.

    [16]   Exhibit 1, T Documents, T23, page 159, Letter from Dr Balin dated 19 September 2017.

    CONCLUSION

22. In all the circumstances, as I have not been able to award the Applicant any points on the Impairment Tables, the Decision under review is affirmed.

23.     I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

...........................[SGD]....................................

Associate

Dated: 11 June 2019

Date of hearing:	29 April 2019
Applicant:	Ms Julie Dixon
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Sparke Helmore