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

[2019] AATA 1998

Evans and Secretary, Department of Social Services (Social services second review) [2019] AATA 1998 (18 July 2019)

Division:GENERAL DIVISION

File Number(s):    2018/6937

Re:John Evans

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:18 July 2019

Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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Member W Frost

Catchwords

SOCIAL SECURITY – Disability Support Pension – medical condition – lower limb condition – greater trochanteric pain syndrome - upper limb condition - osteoarthritis – past shoulder fracture – cerebellar ataxia - whether the Applicant’s impairment can be assigned 20 points or more under the Impairment Tables – whether the Applicant’s condition is fully diagnosed, treated and stabilised – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act ss 37, 43
Social Security Act 1991 s 94
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 6, 11

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

Gallacher and Secretary, Department of Social Services [2015] FCA 1123

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

Shi v Migration and Registration Authority [2008] HCA 31

Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606

REASONS FOR DECISION

Member W Frost

18 July 2019

INTRODUCTION

1. Mr John Evans is 51 years old and lives in Dubbo, New South Wales. He has lived in Australia since 2005 after emigrating from England.

2. Mr Evans’ claim for Disability Support Pension (DSP) for multiple physical conditions was rejected by Centrelink in June 2018. Mr Evans unsuccessfully sought review of Centrelink’s decision by an Authorised Review Officer. In October 2018, the Social Services & Child Support Division of the Tribunal (AAT1) affirmed this rejection and Mr Evans applied for review of that decision by the General Division of the Tribunal.

3. Centrelink, on behalf of the Respondent, did not consider that Mr Evans was qualified for DSP at the date of his claim, or within 13 weeks thereafter, because his physical impairments did not meet the required 20 point impairment rating under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables).  

   ISSUE

4. The issue before the Tribunal is whether Mr Evans was qualified for DSP at the date of his claim on 7 May 2018 or within the following 13 weeks. 

   BACKGROUND

5. On 26 April 2018, Mr Evans contacted Centrelink about his intention to lodge a claim for DSP (Document marked T8, pp 106-107, of the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975).

6. On 7 May 2018, Mr Evans lodged his claim for DSP (T10 and T21, pp 109 and 175) and listed his conditions as follows:

   R – shoulder:– metal plate and screws’; ‘left arm:– three breaks and dislocation of elbow’; ‘right forearm and wrist:– infection causing poor mobility’; ‘hips and knees – difficulty with steps, slopes, standing for periods and walking any distance (T10, p 135).

7. On 21 June 2018, an Assessment Services Recommendation was completed for Centrelink. The assessor’s recommendation was that Mr Evans was ‘manifestly medically ineligible’ for DSP because his conditions were not fully diagnosed, treated and stabilised (T12, pp 143-144).

8. On 25 June 2018, Mr Evans’ claim for DSP was rejected by Centrelink on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (T13, pp 145-146).

9. On 28 June 2018, a face to face employment services assessment determined that Mr Evans had a temporary work capacity of 0-7 hours per week for one year from the date of the assessment ‘until all treatment is completed’; a baseline work capacity of 15-22 hours per week; and a capacity for work within 2 years with intervention of 23-29 hours per week. The assessor recommended a referral be made to ‘jobactive (Stream C)’. (T14, pp 147-152).

10. On 4 August 2018, an Authorised Review Officer (ARO) of the Department of Human Services affirmed Centrelink’s rejection of Mr Evans’ DSP claim (T17, pp 155-159).

11. On 31 August 2018, Mr Evans applied to the AAT1 for review of Centrelink’s decision.

12. On 26 October 2018, the AAT1 affirmed the decision under review, finding that Mr Evans did not meet the requisite criteria to qualify for DSP (T2, pp 3-6).

13. On 26 November 2018, Mr Evans lodged an Application for Review of Decision with the General Division of the Tribunal (T1, pp 1-2). Mr Evans claimed in the application that the AAT1 decision was wrong because: ‘I have a disability affecting mobility, balance and restricted movement, dizziness, headaches and nausea. I cannot get around without the use of a walking frame’. Subsequent to making this application, Mr Evans filed the following documents with the Tribunal:

    (a)‘CT Brain’ report dated 5 July 2018;

    (b)‘MRI Brain & Cervical Spine’ report dated 1 August 2018; and

    (c)Report of Dr Kate Crossley, neurologist, dated 10 January 2019.

    CONSIDERATION

    What is the qualification period for assessment of eligibility for DSP?

14. Mr Evans lodged his claim for DSP on 7 May 2018. Section 4(1) in Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act) sets out how to determine the ‘start day’ for a social security payment following an early claim by an applicant, as follows:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

15. Pursuant to the above, the Tribunal is required to assess Mr Evans’ DSP claim based on his medical conditions as at the date of his claim or within 13 weeks of that time.[1] The ‘start day’ for Mr Evans’ claim for DSP is the day he lodged his claim on 7 May 2018 and the 13 week qualification period runs from that date until 6 August 2018.

    [1] Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8]; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253; Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; and Fanning and Secretary, Department of Social Services [2014] AATA 447 at 31-33.

16. The Federal Court of Australia has endorsed the principle, discussed in Fanning and Harris, that medical reports after the qualification period will only be relevant to the extent that they refer to the applicant’s condition during the qualification period.[2] Accordingly, the Tribunal can only consider Mr Evans’ eligibility for DSP within the qualification period, assisted by medical information regarding his condition as it was during that period and not following the end of the qualification period. In this regard, any deterioration or change to Mr Evans medical conditions suggesting he may have later become qualified for DSP is irrelevant to the Tribunal’s consideration of Mr Evans’ impairments during the qualification period.[3]  

    [2] Gallacher and Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29]).

    [3] Shi v Migration and Registration Authority [2008] HCA 31, [144] – [145].

    What are the qualification criteria for DSP?

17. Section 94(1) of the Social Security Act 1991 (Act) sets out the qualification requirements for a person aged 16 years or over to receive DSP, as follows:

    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;…

18. Evidently from the above, each element of the three qualification criteria set out in section 94(1) of the Act must be satisfied for a person to qualify for DSP.

    The Impairment Tables

19. The Impairment Tables Determination is made under s 26(1) of the Act and the Impairment Tables commenced on 1 January 2012.

20. Under section 94(1)(b) of the Act, a person’s impairment must be determined to be 20 points or more under the Impairment Tables. As set out in section 5 of the Impairment Tables, they are: designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions; function based, rather than diagnosis based; and describe functional activities, abilities, symptoms and limitations.

21. Section 6 of the Impairment Tables sets out rules for assessing the level of functional impairment of conditions and assigning impairment ratings. When applying the Impairment Tables, the impairment ‘must 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)). The rules must be satisfied before an impairment rating can be assigned to a DSP applicant. In this regard, subsection 6(3) of the Impairment Tables provides that an impairment rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment ‘is more likely than not, in light of available evidence, to persist for more than 2 years’.

22. Under subsection 6(4) of the Impairment Tables, a person’s condition is ‘permanent’ if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;

    (b)the condition has been fully treated;

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

23. In determining whether a condition has been ‘fully diagnosed’ and ‘fully treated’ for the purposes of subsections 6(4)(a) and (b), subsection 6(5) of the Impairment Tables provides that the following must be considered:

    (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 2 years.

24. Under subsection 6(6) of the Impairment Tables, a person’s 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.  

25. Subsection 6(7) provides that, for the purposes of s 6(6) of the Impairment Tables, reasonable treatment is treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

26. Importantly, a diagnosed condition does not necessarily mean there will be an impairment to which an impairment rating can be assigned under the Impairment Tables if it has no functional impact on the person (subsection 6(8) of the Impairment Tables).

27. Subsection 10(1) of the Impairment Tables states that table selection from the available Impairment Tables is to be made applying the following steps:

    (a)identify the loss of function; then

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

    (c)identify the correct impairment rating.

    Was there a physical, intellectual or psychiatric impairment?

28. Mr Evans’ impairments were listed in the medical certificates of Dr Nina Dowling, general practitioner, dated 4 and 9 May 2018 and 4 July 2018 (T9, T11, T15, pp 108, 142 and 153) as follows: ‘gait abnormality’; ‘osteoarthritis of knees and hips bilaterally’; ‘inflammatory polyarthropathy’; and ‘cerebellar ataxia’. These impairments differ to those described by Mr Evans in his DSP claim from May 2018 and have also been more fully diagnosed since that time, but Mr Evans’ impairments now essentially comprise a lower limb condition, upper limb conditions and cerebellar ataxia.

29. The Tribunal is satisfied on the evidence before it that Mr Evans had physical impairments during the qualification period such that he meets the first criteria under section 94(1)(a) of the Act. The Respondent also acknowledged that Mr Evans suffered impairments to satisfy this one of the three elements for qualification for DSP. However, the Respondent contended that none of Mr Evans’ conditions were fully diagnosed, treated and stabilised during the qualification period to be assigned an impairment rating under the Impairment Tables to meet the second criteria under subsection 94(1)(b) of the Act to qualify for DSP.

    Lower limb condition

30. In relation to Mr Evans’ lower limb condition, Dr Dowling diagnosed ‘gait abnormality’ on 4 May 2018, causing ‘loss of mobility, pain’ and noted that the condition was ‘permanent’, but that it was under current investigation with future planned treatment being ‘physiotherapy, analgesia, referral to orthopaedics’ (T9, p 108). As previously noted, Mr Evans made his DSP claim on 7 May 2018 and listed his ‘hips and knees’ as one of his disabilities or medical conditions.

31. On 9 May 2018, Dr Dowling diagnosed ‘osteoarthritis of knees and hips bilaterally’ causing ‘pain, difficulty mobilising, instability’. Dr Dowling noted that the condition was ‘permanent’ and had been investigated with ‘imaging’ and that both the current and planned treatment involved ‘analgesia, referral to orthopaedics, physiotherapy’ (T11, p 142).

32. On 4 July 2018, Dr Dowling diagnosed Mr Evans’ ‘primary condition’ as being ‘inflammatory polyarthropathy’ giving rise to ‘difficulty mobilising, pain’. Dr Dowling noted that the condition was ‘permanent’ and that Mr Evans’ planned treatment was ‘rheumatology review, analgesia, physiotherapy’ (T15, p 153).

33. On 28 August 2018, after the end of the qualification period, and following referral from Dr Dowling, a rheumatologist, Dr J Latief diagnosed Mr Evans as suffering from ‘greater trochanteric pain syndrome’ in his lower limbs and recommended steroid injections (T18, pp 160-161).

34. From this medical information, it is clear that there was uncertainty prior to, during and after the qualification period about the correct diagnosis for Mr Evans’ lower limb pain. As a result, the Tribunal is not satisfied that his lower limb condition was ‘fully diagnosed’ during the qualification period as required by subsection 6(4)(a) of the Impairment Tables; the correct diagnosis was only confirmed at the rheumatologist appointment after the qualification period. Additionally, the Tribunal is not satisfied that the condition was fully stabilised or fully treated during the qualification period, because there was no evidence before the Tribunal that the recommended review by a rheumatologist, orthopaedic review, physiotherapy and analgesia had occurred in this period. In this regard, both Mr Evans’ October 2018 appointment with an orthopaedic surgeon and Dr Latief’s recommended steroid injections occurred after the end of the qualification period. At hearing, Mr Evans also confirmed this timeline. Therefore, pursuant to subsection 6(3) of the Impairment Tables, the Tribunal cannot assign an impairment rating under the Impairment Tables for Mr Evans’ lower limb condition because it was not ‘permanent’ during the qualification period.

    Upper limb conditions

35. In relation to Mr Evans’ upper limb conditions, between July and October 2017, Mr Evans was diagnosed with ‘left radial head fracture and elbow dislocation’ by general practitioners at Swift Street Medical Centre in Wellington, New South Wales. Three medical certificates dated 28 July, 22 September and 30 October 2017 stated that the condition was ‘temporary’ (T4, T5, T6, pp 98, 99 and 100) and, although the elbow dislocation was listed in his DSP claim form, these conditions were not referred to by Mr Evans’ general practitioner at the time of his DSP claim or during the qualification period.

36. On 13 December 2017, an occupational therapist undertook an employment services assessment on Mr Evans and noted that he reported a ‘fracture to his right shoulder’ which occurred ‘2 years ago’ and required surgery (T7, p 102).

37. Mr Evans’ DSP claim listed one of his conditions as being a ‘metal plate and screws’ in his right shoulder. At hearing, Mr Evans confirmed that this occurred following a fall and he has limited movement on both sides of his upper body as a result of his upper limb conditions. 

38. In his 28 August 2018 report, Dr Latief noted that Mr Evans had a ‘previous smash to his right shoulder’, had ‘osteoarthritis of his left elbow’, had no signs of synovitis at assessment and referred him for an x-ray of both wrists and hands in relation to his arthritis (T18, pp 160-161).

39. Although the Tribunal accepts that Mr Evans suffered from the claimed upper limb conditions, given the lack of medical evidence in relation to these conditions, a point acknowledged by Mr Evans at hearing, the Tribunal is not satisfied that they were ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ during the qualification period as required under section 6(4) of the Impairment Tables. As a result, the Tribunal cannot assign an impairment rating under the Impairment Tables for Mr Evans’ upper limb conditions.

    Cerebellar ataxia

40. Mr Evans’ cerebellar ataxia is the most serious of his conditions. In his words, Mr Evans had ‘every test under the sun’ to identify his condition. Mr Evans informed the Tribunal that he has ‘no balance, I’m continuously falling’ and a recent fall resulted in a head injury present at the time of the hearing. Mr Evans relies on a walker and cannot walk independently of it without falling over. Mr Evans’ cerebellar ataxia has deteriorated since it was diagnosed in early July 2018 and this is expected to continue.

41. In his DSP claim lodged in May 2018, Mr Evans did not list ‘cerebellar ataxia’ or any similar condition as one of the disabilities or medical conditions from which he suffered. At hearing, Mr Evans’ representative explained that this was because the condition had not been fully diagnosed at that time. Mr Evans’ representative acknowledged that Mr Evans understood that he did not meet the requirements of section 94 of the Act when he made his DSP claim, however requested that the Tribunal give consideration to his contention that, although the condition had not been fully diagnosed at that time, the condition was present and continues to worsen.

42. As explained at hearing, the Tribunal is bound to apply the Act to Mr Evans’ circumstances during the qualification period. In this regard, while Mr Evans’ cerebellar ataxia was not ‘fully diagnosed’ at the time of his DSP claim in May 2018, the Tribunal finds that it was fully diagnosed during the qualification period ending on 6 August 2018, pursuant to subsection 6(4)(a) of the Impairment Tables. However, the Tribunal also finds that Mr Evans’ condition was neither ‘fully treated’ nor ‘fully stabilised’ during this time as required under subsections 6(4)(b) and (c) of the Impairment Tables.

1. As noted in relation to Mr Evans’ lower limb condition, Dr Dowling diagnosed him with ‘gait abnormality’ in May 2018 (T9, p 108). This was subsequently diagnosed as cerebellar ataxia in July 2018. However, in May 2018, physiotherapy was one of the future planned treatments for Mr Evans’ ‘gait abnormality’. The physiotherapist did ‘all the balance tests’ and recommended further diagnostic testing. 

2. On 4 July 2018, approximately two months after Mr Evans’ DSP claim, Dr Dowling diagnosed ‘cerebellar ataxia’ as a ‘secondary condition’ that was ‘permanent’ and causing Mr Evans ‘impaired balance and difficulty mobilising’. Dr Dowling noted that there had been no past treatment for this condition, but that the current treatment for Mr Evans was ‘physiotherapy, referral to neurologist, brain imaging’. This treatment plan demonstrated the medical uncertainty about the proper course of treatment for Mr Evans’ cerebellar ataxia during the qualification period. In this regard, Dr Dowling listed future planned treatment as ‘neurologist review, physiotherapy’ (T15, p 153).

3. The recommended further diagnostic testing comprised of a computed tomography scan, or CT, and a magnetic resonance imaging scan, or MRI. The ‘CT Brain’ report dated 5 July 2018 from Dr Alex Petersen noted ‘no definitive pathology however consider MRI’. The subsequent MRI of the brain, described in the ‘MRI Brain & Cervical Spine’ report dated 1 August 2018, disclosed ‘moderate cerebellar atrophy and mild cortical atrophy’ and a ‘mild degree of microvascular ischaemia in the cerebral white matter’. The MRI of the spine, also on 1 August 2018, disclosed ‘mild cervical spondylosis’ with ‘no evidence of a disc protrusion or neural compression’.

4. On 10 January 2019, Dr Crossley, neurologist, confirmed that Mr Evans has ‘a permanent disability in the form of cerebellar ataxia’, with the underlying cause ‘as yet undetermined despite extensive investigation and it may be that we never have a definite diagnosis’. Nonetheless, Dr Crossley confirmed to Mr Evans that he has a ‘permanent and progressive disability with impaired balance and walking, impaired coordination, recurrent falls, slurring of your speech and frequent headaches’. Dr Crossley went on to note that Mr Evans has ‘significant difficulties standing from sitting, mobilising and performing activities that require coordination such as fine motor control of the hands’. Dr Crossley opined that these findings ‘prevent you from any form of employment’. 

5. The Tribunal is satisfied that the medical evidence demonstrates that the diagnosis of Mr Evans’ cerebellar ataxia occurred in early July 2018, such that it was fully diagnosed during the qualification period. However, it is also clear from the medical evidence that the condition was neither fully treated nor fully stabilised during this time. Having only been diagnosed with cerebellar ataxia in July 2018, Mr Evans was still undergoing tests and assessments during the qualification period in order to determine the best form of treatment for this condition. For these reasons, the Tribunal cannot assign an impairment rating under the Impairment Tables for Mr Evans’ cerebellar ataxia.

   CONCLUSION

6. Mr Evans conceded at hearing that he did not meet the legislative requirements under subsection 94(1) of the Act to qualify for receipt of the DSP. However, Mr Evans asked the Tribunal to consider that, although his severe medical condition, cerebellar ataxia, was neither treated nor stabilised during the qualification period, it existed at that time and there is ‘no improvement’ in his condition following treatment; it merely eases his pain.

7. Although Mr Evans’ circumstances are now such that a different outcome may be reached with a new DSP claim, for the purposes of the current review, the Tribunal must apply the terms of the Act to his application from 7 May 2018 and throughout the qualification period ending on 6 August 2018. As a result, the Tribunal finds that, during the qualification period, Mr Evans could not be assigned an impairment rating under the Impairment Tables for any of his conditions. Mr Evans’ claim for DSP before the Tribunal therefore fails to satisfy subsection 94(1)(b) of the Act.

8. As a result of the Tribunal’s finding that Mr Evans did not have a total impairment rating of at least 20 points under the Impairment Tables, given the conjunctive nature of subsection 94(1) of the Act, the Tribunal is not required to consider whether Mr Evans had a continuing inability to work pursuant to subsection 94(1)(c) of the Act in order to determine whether he meets this subsequent element of the DSP qualification criteria.

   DECISION

9. The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate

Dated: 18 July 2019

Date of hearing: 

9 July 2019

Applicant:

Representative for the Applicant:

Solicitors for Respondent:

Mr John Evans

Ms Lee Judd, Legal Aid NSW

Mr Kelvin Defranciscis, Department of Human Services