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

[2017] AATA 1231

Farrugia and Secretary, Department of Social Services (Social services second review) [2017] AATA 1231 (9 August 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3494

Re:Rhys Farrugia

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr D. J. Morris Member

Date:9 August 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Mr D. J. Morris Member

SOCIAL SERVICES – Disability Support Pension (DSP) – cancellation – 2011 Determination applies – whether qualified – whether impairments assigned 20 or more impairment points – zero points assigned – not qualified at time cancelled – decision affirmed

Legislation
Social Security Act 1991 (Cth) ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c)

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

Secondary Materials

Guide to Social Security Law (Version 1.233 – released 31 May 2017)

REASONS FOR DECISION

Mr D. J. Morris Member

9 August 2017

1. Mr Rhys Farrugia was granted Disability Support Pension (DSP) in November 2009 on the basis of a language disorder and asthma.

2. Centrelink (the Department) conducted a review of his eligibility for DSP.  On 27 July 2015 Mr Farrugia submitted a DSP Review Form.  In this form he recorded that he suffered from a lower back condition, asthma, diabetes, a renal condition, arthritis, high blood pressure and was expecting to undergo a gastric sleeving operation sometimes in 2015.

3. On 26 November 2015 Mr Farrugia underwent a Job Capacity Assessment.  The assessor concluded that, of his medical conditions, only his diabetes mellitus and asthma was fully diagnosed, fully treated and fully stabilised.  The assessor recommended that Mr Farrugia be allocated 5 impairment points under Table 1 of the Determination (supra) for his asthma and zero points for his diabetes.  The assessor also recommended that Mr Farrugia had a capacity to work for between 15 and 22 hours a week within two years, with intervention, in light assistant roles.

4. On 18 December 2016 the Department made the decision to cancel Mr Farrugia’s DSP.

5. Mr Farrugia sought a review by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  On 16 February 2016 the ARO affirmed the decision.  The ARO found that the Applicant’s asthma condition warranted an assignment of 10 impairment points under Table 1, his diabetes warranted an assignment of zero impairment points, his obesity was fully diagnosed but not fully treated or stabilised, his spinal spondylosis was not fully diagnosed, treated or stabilised, his mental health condition was not fully diagnosed and his learning disorder was not fully treated or stabilised.  The ARO therefore concluded that 10 impairment points should be assigned for Mr Farrugia’s medical conditions at the date of cancellation, and therefore affirmed the decision to cancel his DSP.

6. Mr Farrugia sought a review by the Social Services and Child Support Division of the Tribunal (AAT1).  A hearing was held on 3 June 2016.  AAT1 assigned the Applicant zero impairment points, finding that, except for his illiteracy, none of Mr Farrugia’s conditions were permanent according to the stipulations in the Determination.

7. As AAT1 assigned no impairment points, the requirements of the Act for DSP at the time of cancellation were not met and so the original decision was affirmed.

8. Mr Farrugia sought a review of AAT1’s decision by the General Division of the Tribunal.

9. The hearing was held on 17 May 2017 by telephone.  Mr Farrugia represented himself, gave evidence and was cross-examined by Mr Pietro Nacion, who represented the Respondent.

10. The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence. The Applicant also submitted a Secretary’s Statement of Facts, Issues and Contentions dated 4 April 2017.

    Qualification for DSP under the Act

11. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

12. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying has –

    (a)a physical, intellectual or psychiatric impairment; and

    (b)impairment of 20 points or more under the Impairment Tables; and

    (c)a continuing inability to work.

13. The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

14. The question before the Tribunal is whether Mr Farrugia qualified for DSP on the date the Department cancelled it, 18 December 2015, in accordance with the law applicable on that date.

    Does the Applicant have a physical, intellectual or psychiatric impairment?

15. The Respondent conceded that Mr Farrugia had a number of impairments at the time of the cancellation of his DSP, arising from the conditions of asthma, diabetes mellitus, obesity, hypertension, a kidney condition, a learning and behavioural disorder, anxiety and depression and a spinal condition.

16. Dr Abraham Stephanson, treating general practitioner, wrote a medical report dated 6 August 2015 (T19) which stated that the condition with the most impact on Mr Farrugia was “diabetes and asthma with current respiratory infections” and said that these condition were diagnosed “eight years ago”.  He said that a clinical feature of these conditions was poor exercise tolerance and that Mr Farrugia has “slowly worsened over the last few years”.  Dr Stephanson listed “morbid obesity/multilevel spinal spondylosis” as another condition Mr Farrugia has and reported that the Applicant had had a specialist consultation for consideration of possible gastric restrictive surgery.

17. In the part of the form where medical conditions are listed which, in the medical practitioner’s view, are generally well managed and cause minimal or limited impact on the person’s ability to function, Dr Stephanson listed “Illiterate” and “mixed anxiety/depression” and added that he could not see any realistic options for finding work for his patient.

18. Mr Farrugia underwent a Job Capacity Assessment (JCA) on 30 September 2015 at the Centrelink office in Portland.  The JCA recommended that the condition of diabetes mellitus was permanent in terms of the Determination and would persist for more than 24 months.  In terms of his asthma condition, Mr Farrugia told the JCA that he had been admitted to Portland Base Hospital for four days around March 2015 with respiratory difficulties.  The JCA recommended that this condition be regarded as permanent.

19. In terms of the morbid obesity condition, the JCA considered that this condition should be regarded as fully diagnosed but not fully treated or stabilised because Mr Farrugia had not apparently participated in optimal treatment at that time and was also awaiting consultation for possible surgery.  The JCA recommended that the Applicant’s multilevel spinal spondylosis similarly should be regarded as fully diagnosed but not fully treated or stabilised because Mr Farrugia had not undertaken reasonable treatment nor a physiotherapy or rheumatologist review.  The JCA also recorded a mental health condition that was verified by medical evidence and a learning difficulty that was verified by medical evidence.

20. After consideration of the medical reports before the Tribunal, the Tribunal finds that Mr Farrugia satisfied section 94(1)(a) of the Act as at the date of cancellation.  He had impairment, namely diabetes, asthma, morbid obesity, a spinal condition, a mental health condition, and a learning difficulty condition.  The evidence of a renal condition relied on self-reporting, so the Tribunal did not consider this condition further.

    What is the correct rating under the Impairment Tables?

21. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations.  They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).

22. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

23. Section 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

24. Under section 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

25. Section 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

26. The Impairment Table Determination also provides, at section 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.  In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.  The Tribunal must therefore consider Mr Farrugia’s medical conditions with reference to the applicable Impairment Tables at the time his DSP was cancelled, not when he originally qualified for DSP in 2009.

    Asthma condition

27. Mr Farrugia told AAT1 that he had asthma since he was a child and currently used Ventolin and Seretide inhalers and a nebuliser.  He told this hearing that he has since seen Dr Andrew Bradbeer, a respiratory specialist physician who practises in Hamilton, and that he saw Dr Bradbeer “roughly twelve months ago, after my DSP was cancelled”.

28. The Tribunal accepts that this condition is of long-standing and was fully diagnosed at the time of cancellation but, given the length of time before cancellation that Mr Farrugia had not seen any respiratory specialist in regard to treatment, that it was worsening and that he has since seen a specialist, the Tribunal does not find that Mr Farrugia’s asthma was fully treated or fully stabilised at the time of cancellation.  Accordingly, impairment points cannot be assigned for this condition.

    Diabetes mellitus

29. At the hearing, Mr Farrugia gave evidence that he was no longer on any medication for his diabetes mellitus, and had not been since August 2016.  He had successively lowered his blood sugar.  He corrected the advice in the 2015 JCA that he was on insulin twice a day, saying he was on byetta (which is a non-insulin medication for type 2 diabetes mellitus) and believed that he had been prescribed insulin when he was 13 years of age, but not now.

30. Mr Farrugia told AAT1 that Dr Stephanson had changed his diabetes medication in the middle of 2016 from byetta injections and Galvumet tablets to Gliclazide and Janumet tablets.  The Respondent submitted that this change of medication meant that the Tribunal should regard this condition as not fully treated and stabilised at the time of cancellation.

31. The Tribunal rejects the Respondent’s argument.  By its nature, diabetes mellitus is a permanent, chronic condition and it is common for diabetics’ medication to be changed over time, on the advice of a treating practitioner, whether a general practitioner or an endocrinologist.

32. The Tribunal considers Mr Farrugia’s diabetes is capable of assessment under Table 1 – Functions requiring Physical Exertion and Stamina and concludes, on the evidence of Mr Farrugia under cross-examination at the hearing, and on the written report of Dr Stephanson in connexion with the DSP review, finds that there is minimal functional impact on him of this condition and so zero impairment points are assigned.

    Morbid obesity condition

33. At the time of cancellation, Mr Farrugia was awaiting consultation with a specialist with a view to bariatric surgery.  He gave evidence about his weight loss at the hearing.  The Tribunal concludes that this condition was fully diagnosed at the time of cancellation but, on the evidence of Dr Stephanson and the Applicant himself, under section 6(5) of the Determination, treatment was continuing and was planned in the next 2 years.  Therefore, at the time of cancellation, this condition cannot be regarded as fully treated or fully stabilised and so cannot be considered further for the assignment of impairment points.

    Hypertension

34. Mr Farrugia gave evidence that he continued to take blood pressure medication but there was scant other evidence before the Tribunal of the effects of this condition.  There was other evidence of fatigue but it is not clear whether that was connected with his respiratory problems or his obesity condition (which was now improving, given his weight loss).  The Tribunal therefore finds that this condition was not fully stabilised at the time the DSP was cancelled and so cannot consider this condition further.

    Spinal condition

35. Dr Stephanson diagnosed multilevel spinal spondylosis.  He said that Mr Farrugia had difficulty walking, bending, standing, lifting and carrying and manipulating heavy objects.  There was no other evidence of any specialist investigations into this condition before the Tribunal.  The Respondent submitted, on the basis of Dr Stephanson’s report, that this condition was fully diagnosed but contended that it was not fully treated or stabilised because of the absence of information about specialist intervention.

36. At the hearing, Mr Farrugia gave evidence that he has spoken to a specialist who had recommended he not have an operation on his back; he said the specialist would not do the operation until he was aged over 50.  He could not name the specialist and said it was a telephone consultation between that doctor and Dr Stephanson which took place “a couple of years ago”.  He said that since that time he had lost weight his back problems had eased somewhat.

37. He said that he undertook some exercises at home, could probably not reach to his knees but could pick up an item from a low table.  He said he could not sit for half an hour.

38. Regrettably for the Applicant, there is little documented information about this condition at the time of the cancellation and his evidence that his weight loss, contemplated at the time of cancellation, has potentially improved the condition inclines the Tribunal to the view that the condition was not fully treated or fully stabilised at the time of cancellation.  The Tribunal finds that this condition cannot be considered under the Impairment Points Determination.

    Mental Health Condition

39. In his 6 August 2015 medical report (T19) Dr Stephanson records a diagnosis of mixed anxiety/depression.  The functional effect of a mental health condition must be assessed under Table 5 – Mental Health Function, of the Determination.  The introduction to that table has the following requirement:

    The diagnosis of the 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).

40. While Dr Stephanson is an appropriately qualified medical practitioner, there was no evidence before the Tribunal that there had been a corroborating diagnosis by a clinical psychologist.

41. Mr Farrugia saw a psychologist, Ms Anita Skok, in June 2003 and she provided a psychological assessment report.  The Tribunal has ascertained from the Australian Health Practitioner Regulation Authority database that Ms Skok is a general psychologist with a specialty in educational and developmental psychology, so she is not in the class of persons required by the Determination to support Dr Stephanson’s diagnosis.

42. Mr Farrugia told AAT1 that he has commenced seeing a Portland clinical psychologist, Dr Stephanus Oberholzer, in February 2016 but this is after the cancellation date so cannot be taken into account in this review, even if there was a report from Dr Oberholzer before the Tribunal, which there is not.

43. The Tribunal cannot consider the Applicant’s mental health conditions further in regard to the assessment of functional impact, given that the mandatory requirements in the Determination were not met at the date of cancellation of the DSP.  Even if such a corroborative diagnosis had been present at that date (which it was not), the evidence of Mr Farrugia was that he lived independently and shared custody of his two children with his former partner (and would happily have them 100 per cent of the time), taking them to school and otherwise competently caring for them.  Under Table 5 this evidence would, on the Descriptors, support an assignment of no more than 5 impairment points.

    Learning difficulty condition

44. Dr Stephanson listed “illiteracy” as a condition in his medical report of 6 August 2015 which was generally well managed and caused minimal impact on Mr Farrugia’s ability to function.

45. The Tribunal had before it historical assessments of Mr Farrugia’s learning difficulties, notably a psychological assessment report prepared by Ms Anita Skok dated 23 June 2003 when the Applicant was aged 13.  Ms Skok administered the Wechsler Intelligence Scale of Children – Third Edition (WISC-III) and reported the results that Mr Farrugia at that time recorded “an IQ of 90, with 95% probability that his true Full Scale IQ lies between 85-86.”  She wrote:

    “Rhys’ overall IQ is in the Average range.  The difference between his Verbal IQ (84) and Performance IQ (99) is significant (p<05) at 15 points.  Rhys’ profile indicates he has difficulties in some verbal skill areas.”

46. In cross-examination Mr Farrugia remembered having an IQ test at school aged around 13 but did not recall who did the assessment.  He also did not recall an assessment done by Leah Darroch, a speech pathologist, on 15 September 2003 (T9, 058).  This is not surprising, given the passage of time.

47. Mr Farrugia said that he had not had speech pathology in the last five years.  In answer to a direct question, he said that he agreed with Dr Stephanson’s opinion that his illiteracy has little impact on his ability to function and agreed that he had told the JCA that he had not had a learning assessment since he was about 13.

48. The correct impairment table for considering this type of condition is Table 8 – Communication Function.  The Tribunal does not consider that assessments undertaken some twelve years before the cancellation date carry much weight; they are objectively not assessments about, for example, an irreversible or chronic condition.  Mr Farrugia was competent to make himself understood during the hearing and provided thoughtful answers to questions put to him.  Even if the Tribunal were able to assess this condition under Table 8, I do not consider there is more than, at the very most, a mild functional impact on the Applicant, and on balance I consider that, in terms of the Determination, there is probably no functional impact.  However, because of the lack of proximate assessments, I make no finding in this regard.

49. For completeness, the Tribunal notes that the Guide to Social Security Law (Version 1.233 – released 31 May 2017) provides, in terms of manifest grants of DSP, the following:

    An intellectual disability where medical evidence clearly indicates an IQ of less than 70.

1. It was clear on the evidence that Mr Farrugia was not in his category for a manifest grant.  In fact he presented as capable and his evidence about his daily life and his care for his two little children bespoke a person of competent ability.  The Tribunal does not question that he has had, and may continue to have, learning challenges, particularly in regard to reading and comprehension, but in the absence of other documentary medical evidence, the Tribunal did not consider this condition further.

   Conclusion

2. The Tribunal finds that the Applicant is assigned zero impairment points for his medical impairments at the time of cancellation.  He therefore did not satisfy section 94(1)(b) of the Act, which requires at least 20 impairment points for a person to be qualified for DSP.

3. Section 94 of the Act is cumulative; each part of it must be satisfied for a person to be qualified for the benefit. As the Tribunal has found that the Applicant did not satisfy section 94(1)(b) at the time of cancellation, it is not necessary to go on to consider whether Mr Farrugia had a continuing inability to work under section 94(1)(c).

   DECISION

4. The Tribunal affirms the original decision.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Mr D. J. Morris Member

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

Associate

Dated: 9 August 2017

Date(s) of hearing:	17 May 2017
Applicant:	In person
Advocate for the Respondent:	Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore Lawyers