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

[2018] AATA 3777

Dunn and Secretary, Department of Social Services (Social services second review) [2018] AATA 3777 (12 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0948

Re:Beverly DUNN

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President I Hanger QC

Date:12 October 2018

Place:Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Deputy President I Hanger QC

Catchwords

SOCIAL SECURITY – Whether the applicant qualified to receive disability support pension at time of application – physical, intellectual or psychiatric impairment- diagnosed condition that has been investigated, treated and stabilised – impairment rating of 20 points- decision under review affirmed.

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999

Cases

Bobera and Secretary, Department of Families, Housing, community services and Indigenous Affairs [2012] AATA 922

Secondary Materials

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

REASONS FOR DECISION

Deputy President I Hanger QC

12 October 2018

1. Beverley Dunn (the applicant) applied for the disability support pension (DSP) on 16 October 2016.

2. The claim was rejected by Centrelink on the basis that the conditions claimed by the applicant did not warrant an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  Centrelink is the service delivery agency for the Department of Social Services.

   THE RELEVANT LEGISLATION

3. To obtain the DSP a person must satisfy the provisions of s.94 of the Social Security Act 1991 which sets out three essential criteria to establish eligibility:

   (a)the person must have a physical intellectual or psychiatric impairment;

   (b)the persons impairment must be 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. Section 6 (3) of the Impairment Tables used for determining the level of impairment provides that an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is permanent, and that the impairment is more likely than not, in light of available evidence, to persist for more than two years. Section 6 (4) provides that a condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and stabilised and is likely to persist for more than two years.

5. Because Ms Dunn lodged a claim for DSP on 16 October 2016, the Social Security (Administration) Act 1999 (the Administration Act) provides that to qualify for the DSP, she must satisfy the requirements of section 94 of the Social Security Act as at the date of her claim or within 13 weeks of lodging her claim.  That is between 16 October 2016 and 15 December 2016, which I shall refer to as the qualification period.

6. Various court decisions have determined that I must only have regard to the medical conditions and impairment that arises from them during the qualification period.[1]  It is now 20 months since she lodged her application and it may be that the conditions or the impairment arising from those conditions have changed in that time.  If that is the case, the current state of the law is that she can make a new application.  I am not able to decide that she is entitled to the DSP on the basis of changed circumstances outside that qualification period to which I have referred.

   CONSIDERATION OF MS DUNN’S APPLICATION

   [1] Bobera and Secretary, Department of Families, Housing, community services and Indigenous Affairs

   [2012] AATA 922

   Arthritis

7. The respondent accepts that the applicant was diagnosed with psoriatic arthropathy and axial spondylarthropathy but submits that it was not fully treated and stabilised during the qualification period.

8. Dr Al-Majmuel, in a report dated 18 July 2016, recommended certain tests be performed and that the applicant be assessed in six weeks’ time.  In a letter dated 18 October 2016 the doctor confirmed the above diagnosis and reported that the applicant was using regular ibuprofen in a low dose with “marvellous improvement” in her symptoms, especially “early-morning stiffness and lower back.”  He recommended using Brufen and increasing the dose if necessary and reassessment in four months’ time.

9. Therefore, it cannot be said that her condition was fully treated and stabilised during the qualification period because there is a hoped for improvement in her impairment and a recommendation of reassessment.

   Depression and Social Phobia

10. The respondent submits that the applicant’s depression and social phobia were not fully diagnosed, treated and stabilised during the qualification period.

11. The applicant had suffered from depression for a large part of her life and had taken various medications for it.  She had not seen a psychiatrist or clinical psychologist for some years prior to the qualification period.

12. The applicant first saw Dr Lakshmana, a consultant psychiatrist, almost one year after the qualification period.  He recommended a range of treatments for her.  He recommended blood tests, pain management techniques, psychotherapy, changing the antidepressant medication, plus various other strategies including exercise and mindfulness.  Therefore, her condition in the qualification period cannot be said to have been diagnosed, treated and stabilised.

    Other Conditions

13. While the applicant complained of fibromyalgia, chronic fatigue, sleep apnoea, and incontinence, there was insufficient evidence to establish that these conditions were fully diagnosed, treated and stabilised within the qualification period. 

    Job Capacity Assessment Report

14. A Job Capacity Assessment Report dated 23 June 2017 reported that the applicant had a work capacity of between 15 and 22 hours per week within two years with some intervention in light, less skilled employment. She does not therefore satisfy the test for a continuing inability to work for at least 15 hours per week pursuant to section 94(2)(a) and (b).

    Evidence from General Practitioners

15. Dr Yapa has provided a letter written within the qualification period on 26 October 2016. He states that she has the conditions “listed below and getting flareups time to time which causes significant disability that will last more than 2 years.  Her condition is likely to deteriorate in the future.  Given that situation.  I do not believe that she can engage to a any meaningful work in the future.”

16. He lists the current problems as being: depression, psoriatic arthritis, chronic fatigue, spondyloarthropathy, osteoarthritis, sleep apnoea, fibromyalgia, social phobia/anxiety, breast lump removed right side.

17. Dr Singh provided a letter dated 22 May 2018 saying that the applicant has been a patient of his since 13 October 2017.  He certifies that the applicant has been diagnosed, treated and stabilised for the following conditions: depression, psoriatic arthritis, chronic fatigue, spondyloarthropathy, osteoarthritis, fibromyalgia, social phobia/anxiety, obesity.  He says that the applicant is likely to have functional impact on activities requiring exertion as she complains of the following: shortness of breath and fatigue on performing light physical activities such as walking around the shopping centre or supermarket; walking from carpark to shopping centre; using public transport.  He says that she also finds it difficult to perform day-to-day household activities.

18. In considering the opinion of Drs Singh and Yapa, I note that they are both in general practice, and in the case of Dr Singh he had the benefit of the information and advice that I have referred to earlier from Dr Lakshmana, which recommended various tests and strategies.

    ANALYSIS

19. I have the benefit of hearing evidence from the applicant at some length.  Although the evidence was by telephone, I had no reason to doubt the truth of what she was saying.  Having been sexually abused as a child, she began to be treated for depression from the age of 11 and has been on antidepressants since that time.   She was diagnosed with arthritis at the age of 15 and has been treated for that since that time.  It is a progressive degenerating condition.

20. When the applicant gave evidence I pointed out on two occasions that the evidence she gave had to be given with respect to her symptoms and abilities as at the 16 October 2016 and I am satisfied that she complied with that direction.

21. The applicant has not been in the workforce for many years and receives some kind of disability support.  She was specifically asked whether she could use a computer keyboard and said that her arthritis did not permit her to engage in that activity.  She was asked if she could lift a two litre carton of milk out of the refrigerator.  She replied that because of her disability she does not buy two litre cartons of milk but did agree that using both hands she might be able to do so.  She has some kind of apparatus which she described as a “jug pourer”. When she was asked as to whether she could catch a bus to work, she responded that there were no buses where she lived, but when I explained to her that the purpose of the question was to ascertain whether she would be able to catch a bus, she said she would have no way of being able to get up the steps of a bus.  She has acquired and uses a mobility scooter. 

22. The applicant stated that she cannot make breakfast.  Her husband makes it for her.  She is unable to hold a coffee cup in one hand and is unable to reach above her head to get a cup out of a cupboard.  She has difficulty turning her head and lives with constant pain. She can walk around her own yard for 5 to 10 minutes.  She also has an inflatable swimming pool which she sits in, but in order to get into the pool, which is only about knee high, her husband has to help her.

23. The applicant said that she could not walk around the shopping centre and admitted that she could probably walk 80 to 100 m without a break. However, she said that because of her disability she does not go shopping.  

24. The applicant is able to drive a car but requires someone to be beside her and finds it difficult to hold the steering wheel.  She can only turn her head slightly to the left and right.  She will only drive if she has to do so.

    CONCLUSION

25. There is no doubt that the applicant suffers from a number of serious medical conditions. However, as I mentioned earlier, the Tribunal can only look at the situation within the qualification period. In the qualification period, her arthritis, depression and social phobia, and her other conditions were not diagnosed, treated and stabilised. Therefore, no ratings could be applied under the Impairment Tables. While I have no reason to doubt what the applicant says, none of the above present complaints and conditions enable me to come to a conclusion that differs from the existing decisions under the strict rules of the Social Security Act.

26. By virtue of the findings made, the applicant has not satisfied the requirements of section 94 (1)(b) of the Act.

27. The Tribunal affirms the decision to reject the applicant’s claim for disability support pension.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President I Hanger QC

[sgd]........................................................................

Associate

Dated: 12 October 2018

Date(s) of hearing:	2 August 2018
Applicant:	By phone
Advocate for the Respondent:	Jenna Molan