Drewett and Secretary, Department of Social Services (Social services second review)
[2016] AATA 203
•1 April 2016
Drewett and Secretary, Department of Social Services (Social services second review) [2016] AATA 203 (1 April 2016)
Division
GENERAL DIVISION
File Number(s)
2015/4672
Re
Robert Drewett
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Brigadier AG Warner, Member
Date 1 April 2016 Place Perth The Tribunal affirms the decision under review.
...............[Sgd].........................................................
Brigadier AG Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Secretary can review disability support pension entitlement - whether applicant’s impairments were fully diagnosed, fully treated and fully stabilised – whether applicant’s impairments attract 20 points under the Impairment Tables – continuing inability to work - decision under review affirmed
LEGISLATION
Social Security Act 1991 – ss 94(1)(a) – 94(1)(b)
Social Security (Administration) Act 1999 – s 63 –s 80 - Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Table 3 – Table 4 – Table 5
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
CASES
Birch and Secretary, Department of Social Services [2015] AATA 881
REASONS FOR DECISION
Brigadier AG Warner, Member
1 April 2016
INTRODUCTION
Mr Drewett had been on the Disability Support Pension (“DSP”) since 28 April 1999. Centrelink reviewed his medical eligibility for the DSP in early 2015 and subsequently cancelled the pension on 21 May 2015 because his impairment rating was less than the required 20 points.
A Centrelink Authorised Review Officer (“ARO”) reviewed and affirmed the decision on 5 June 2015.
The Social Services and Child Support Division of the AAT (“AAT1”) reviewed the matter on 19 August 2015, in a telephone conference hearing at which Mr Drewett gave oral evidence. The AAT1 affirmed the Centrelink decision.
On 3 September 2015 Mr Drewett lodged an Application for Review of Decision with this Tribunal (T1/1). The decision under review is the decision made by the AAT1 on 19 August 2015, which affirmed the Centrelink decision to cancel the applicant’s DSP on 21 May 2015.
BACKGROUND
Mr Drewett was granted DSP on 28 April 1999 having been diagnosed with chronic lower back pain (T4/35, T5/41).
Centrelink subsequently reviewed Mr Drewett’s DSP eligibility in 2003 (T6/54, T7/62) and 2008 (T8/70, T9/78, T10/86). On 22 December 2014, he was informed of another review and was asked to complete a Medical Report Disability Support Pension Review form (T11/87).
Dr Jo Lagerberg, radiologist, produced a medical report for the applicant on 23 January 2015, as did Dr Nagy Georgy, general practitioner, on 28 January
A Job Capacity Assessment (JCA) was conducted by an accredited exercise physiologist on 1 April 2015 (T14/103). The JCA report recommended an impairment rating of 10 points for Mr Drewett’s spinal disorder T14/106), did not rate his left foot injury under Table 3 because it caused the same functional impact as the spinal disorder, and did not accept that Mr Drewett’s condition of anxiety was fully diagnosed, treated or stabilised (T14/105). The JCA also reported Mr Drewett as having a baseline work capacity of 8-14 hours per week with the capacity for work increasing to 15-22 hours per week within two years with mainstream intervention (T14/108).
On 21 May 2015, Centrelink advised Mr Drewett that his DSP had been cancelled as his impairment rating was less than the required 20 points (T15/111).
On 5 June 2015, an ARO affirmed the decision. The ARO found that Mr Drewett suffered from permanent conditions of spinal disorder and left foot injury and assigned a rating of 10 points under Table 4 and 0 points under Table 3 (T17/116). The ARO also found that Mr Drewett’s anxiety was not a permanent condition as there was no evidence from a psychiatrist or clinical psychologist to confirm that the condition had been fully diagnosed, treated and stabilised (T17/116).
On 19 August 2015, AAT1 affirmed the decision to cancel Mr Drewett’s DSP (T2/4-11). The AAT1 assigned the spinal condition 10 points under Table 4 (T2/9), the left foot injury 5 points under Table 3 (T2/10), and determined that the condition of anxiety and depression could not be considered fully diagnosed, treated and stabilised (T2/10).
ISSUE
The Tribunal must determine whether Mr Drewett was qualified to receive DSP on 21 May 2015, being the date of cancellation of his DSP. This depends on:
(a)Whether Mr Drewett had any physical, intellectual or psychiatric impairments pursuant to section 94(1)(a) of the Social Security Act 1991 (“the Act”) ; and
(b)If so, whether any such impairments had a combined rating of at least 20 points under The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Impairment Tables”) pursuant to section 94(1)(b) of the Act; and
(c)If so, whether Mr Drewett had a continuing inability to work pursuant to section 94(1)(c)(i) of the Act because of any such impairment.
LEGISLATION
Section 80(1) of the Social Security (Administration) Act 1999 (“the Administration Act”) provides that:
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
Section 94 of the Act sets out the qualification criteria for the DSP. It provides that a person is qualified for the DSP if:
a.They have a physical, intellectual or psychiatric impairment (s 94(1)(a)), and
b.That impairment (or impairments in combination) attract an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)), and
c.The person has a continuing inability to work (s 94(1)(c)).
The Impairment Tables contain rules (“the Rules”) for their use when deciding if a person is qualified for DSP. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations and are designed to determine the level of functional impact of impairments.
An impairment rating can only be assigned if the condition causing that impairment is permanent (that is, fully diagnosed, treated and stabilised and likely to persist for more than two years), and the impairment rating resulting from that condition is also more likely than not to persist for more than two years (ss 6(3) – 6(4) of the Rules).
The following must be considered in determining whether a condition has been fully diagnosed and fully treated:
a.Whether there is corroborating evidence of the condition, and
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 (s 6(5) of the Participation 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 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 (ss 6(6) and 6(7) of the Participation Determination).
The existence of a diagnosed condition will not necessarily result in a rating under the Impairment Tables. If an impairment has no functional impact, then no rating can be assigned (s 6(8) of the Rules).
EVIDENCE
The evidence before the Tribunal comprised
·The “T Documents” (T1-T24, pp 1-175, Exhibit R1)
·Secretary’s Statement of Facts, Issues & Contentions dated 4 December 2015 (Exhibit R2)
·Dr Nagy Georgy Letter dated 7 September 2015 (Exhibit A1)
·Australian Health Practitioners Regulation Agency – Register of Practitioners – Ms Melanie Jane Fisher (Exhibit R3)
·The oral evidence of the applicant
CONSIDERATION
General
Since the preparation and filing of the T Documents, Mr Drewett provided a medical certificate from Dr Nagy George, General Practitioner, dated 7 September 2015 (A1), which states that:
“Mr Drewett has been suffering from anxiety, post-traumatic stress & depression for years”
All other medical evidence is contained in the T Documents.
AAT1 found (T2 paragraphs 32 and 43), and the Secretary accepts (R2 paragraph 35), that Mr Drewett spinal disorder should receive an impairment rating of 10 points under Table 4 and that his left foot condition should receive an impairment rating of 5 points under Table 3.
Mr Drewett expressed to the Tribunal his confusion, frustration and disappointment with the manner of initiation of the review of his DSP and the subsequent cancellation of that long-established DSP. He told the Tribunal:
“…so they got me there on pretence grounds anyway. I didn’t even apply for overseas staying or anything like that and the they just quickly did a review, I didn’t – she didn’t even clarify to me who she was and what she did or her status or anything and it was only like five minutes asking me questions and then I was out the door and then I get a letter that I’ve been cancelled”.
The respondent told the Tribunal that pursuant to s 63 and s 80 of the Administration Act, the respondent could initiate such a review at any time. The respondent further submitted that a good analysis of the law was given by AAT1 in its decision (T2 paragraphs 12 – 17). The Tribunal agrees, and finds that Centrelink was able to review Mr Drewett’s entitlement to DSP.
Spinal disorder
In his report dated 28 January 2015, Dr Nagy Georgy stated that Mr Drewett suffered from disc prolapse of the lumbar spine, has symptoms of low back pain on physical activities and that the impact on his ability to function was that he could not do physical work or repetitive bending (T13/94-96).
A specialist report by Dr Jo Lagerberg, dated 23 January 2015, describes small disc bulges, a small central disc protrusion and degenerative disease of the facets. The report states that nerve roots do not appear to have been compromised, and the report does not provide an opinion on the functional impact of the spinal condition.
The JCA report dated 20 May 2015 (T14/106-107) recommends an impairment rating of 10 points for Mr Drewett’s spinal disorder, based on the following:
·He is able to sit in or drive a car for at least 30 minutes.
·He is unable to bend forward to pick up a light object placed at knee height.
·He can walk for a distance of 1km every second day, can walk to the shops and uses a trolley to carry his shopping home.
Mr Drewett’s responses to questions put by Ms Whittemore confirmed the functional impacts described immediately above. He also told the Tribunal that he has difficulty in sustaining overhead activities, has difficulty in moving his head to look in all directions, uses a claw device to pick up objects, and now needs assistance to get up from a chair.
Ms Whittemore submitted that “assistance” for the purpose of the Impairment Tables “means a person assisting – it does not mean an aid or a walking stick or something to that effect”, and consequently Mr Drewett’s description of getting out of a chair did not meet the requirements of assistance under the Act. Ms Whittemore referred the Tribunal to a Tribunal decision in Birch and Secretary, Department of Social Services (2015) AATA 881 (at 26) in support of her submission regarding “assistance”.
Having regard to all the evidence relative to Mr Drewett’s spinal disorder, the Tribunal concludes that the functional impact of his condition on activities involving spinal function is consistent with the descriptors at Table 4 – Spinal Function for moderate impact, which are as follows:
(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).
There was no evidence before the Tribunal that would satisfy the Table 4 descriptors for a severe or extreme functional impact on activities.
The Tribunal finds that Mr Drewett’s spinal disorder attracts an impairment rating of 10 points under Table 4 – Spinal Function.
Left foot injury
Initially Mr Drewett offered no substantial argument against the current assignment of 5 impairment points with respect to his left foot injury. He told the Tribunal that:
“…it has got worse but it’s just continuing and there’s nothing I can do about it unless I have operations and stuff……where I can’t afford it”.
In cross examination Ms Whittemore invited Mr Drewett to elaborate on why he thought his injury should attract more impairment points. His answers were consistent with the descriptors at Table 3 for a mild functional impact on activities using lower limbs, which are as follows:
(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.
Mr Drewett’s evidence relative to his left foot injury as at 21 May 2015 is also consistent with the medical evidence in the T documents and with the conclusions of AAT1 (T2 paragraph 42). There was no evidence before the Tribunal that would satisfy the Table 3 descriptors for a moderate or severe functional impact on activities.
Having considered all the evidence, the Tribunal finds that Mr Drewett’s left foot injury attracts an impairment rating of 5 points under Table 3 – Lower Limb Function.
Anxiety, post-traumatic stress, depression
The Tribunal reviewed evidence included in the T Documents relevant to Mr Drewett’s mental health (T7/67, T8/75, T19/120) together with the letter from Dr Nagy George mentioned above (A1).
Mr Drewett told the Tribunal that he had been suffering from post-traumatic stress and depression for a number of years, “…probably about 10 years when my old man got murdered so I had to go through the trials and all that to get him declared dead because they couldn’t find his body and – and it just triggered on from there and then – it just doesn’t go away, you know”. He said that he had not been assessed by a psychiatrist.
The Tribunal notes that the JCA report contains the remark: “The client advised that he has seen an Army psychiatrist > 12 years ago when his father was reportedly murdered but has had no further specialist intervention since” (T14/105). In the absence of any related evidence, the Tribunal took this remark no further.
Mr Drewett told the Tribunal that he attended a psychologist, Ms Melanie Fisher of Vital Conversations, on 3 August 2015. He said he did so believing that Ms Fisher was a clinical psychologist. However the ARO (T17/116) and AAT1 (T2 paragraph 46) both determined that Ms Fisher was not a clinical psychologist. The respondent also submitted that Ms Fisher was not a clinical psychologist and tendered a copy of Ms Fisher’s Australian Health Practitioner Regulation Agency registration details (R3). That document is annotated “Not a clinical psych”.
The introduction to Table 5 – Mental Health Function of the Impairment Tables contains the following mandatory requirement:
The diagnosis of the condition (i.e. the mental health condition) must be made by an appropriately qualified medical practitioner (this includes a Psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
There is no relevant evidence that Mr Drewett consulted a psychiatrist or clinical psychologist. As he has not had the required specialist diagnostic input with respect to his mental health condition, the Tribunal finds that the anxiety/post-traumatic stress/depression cannot be considered fully diagnosed, fully treated and fully stabilised and therefore cannot be assigned a rating under Table 5.
Continuing inability to work
Since the Tribunal finds that Mr Drewett’s impairments could not be assigned an impairment rating of 20 points or more under the Impairment Tables, it is not necessary for it to consider whether he has a “continuing inability to work” for the purposes of s 94(1)(c) of the Act.
However, the respondent took this matter further (R2 paragraphs 47-51). The respondent submits, and the Tribunal agrees, that “if the Tribunal were to disagree with the Respondent’s contentions and find that the Applicant had a total impairment rating of 20 points over separate Impairment Tables (which is not conceded), the Respondent accepts that the Applicant does have a continuing inability to work for the purposes of s 94(c)(1) of the Act’.
CONCLUSION
The Tribunal finds that:
·Centrelink was able to review Mr Drewett’s DSP entitlement.
·On the date of cancellation of his DSP, 21 May 2015, Mr Drewett suffered from impairments to his lumbar spine and left foot, and that s 94(1)(a) of the Act is satisfied.
·Mr Drewett’s impairment from his spinal disorder attracts a rating of 10 points under Table 4.
·Mr Drewett’s impairment from his left foot injury attracts a rating of 5 points under Table 3.
·Mr Drewett’s anxiety/post-traumatic stress/depression condition cannot be considered fully diagnosed, fully treated and fully stabilised and therefore cannot be assigned a rating under Table 5.
It follows from the above that, on 21 May 2015, Mr Drewett did not satisfy section 94(1)(b) of the Act which requires that a person’s impairments be assigned an impairment rating of 20 points or more. Consequently, the DSP claim must fail.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 48 (forty eight) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member .........[Sgd]...............................................................
Administrative Assistant
Dated 1 April 2016
Date of hearing 17 March 2016 Applicant In person Representative for the
RespondentMs K Whittemore Solicitor for the Respondent
Mills Oakley Lawyers
.
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