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

FGSH and Secretary, Department of Social Services (Social services second review) [2021] AATA 5282 (22 September 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3939
Re:FGSH
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member Cox
Date:22 September 2021
Place:Adelaide

The decision under review is affirmed.
...........................[Sgnd].................................
Member Cox

CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment tables – whether applicant attracts 20 points – whether applicant has completed program of support – decision affirmed
LEGISLATION
Social Security Act 1991

Social Security (Administration) Act 1999
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member Cox
22 September 2021
BACKGROUND

The Applicant lodged a claim for Disability Support Pension (“DSP”) on 13 July 2019. The claim was rejected by Services Australia (the “Agency”) on 22 October 2019.
The Applicant requested an internal review of this decision and on 23 April 2020 an Authorised Review Officer (“ARO”) affirmed the original decision to reject the claim.
On 6 May 2020 the Applicant made an application for a review by this Tribunal of the decision of 23 April 2020.
On 10 June 2020, the Social Security and Child Support Division of the Tribunal (“AAT1”) made a decision affirming the decision of the ARO of 23 April 2020 to reject the claim for DSP and made the following findings:
“47. The tribunal has found that FGSH has a total of 20 impairment points, being the sum
     of 10 points from impairment Table 1 and 10 points from impairment Table 5.
Therefore, FGSH satisfies paragraph 94(1)(b) of the Act (the Social Security Act
     1991).

48. The tribunal has found that FGSH has a total of 20 impairment points, but 20 points
     were not obtained under a single impairment Table. Therefore, she doesn’t meet the
     criteria for a severe impairment as defined in subsection 94(3B) of the Act.
49. There is no evidence before the Tribunal that FGSH had actively engaged in a
      program of support for a period of eighteen months in the 3 year period before her
      claim for DSP or that she satisfies any of the other subsections to find she had met
      the participation requirements. It follows that the tribunal finds that FGSH did not
      satisfy paragraph 94(2)(aa) of the Act.
50. The tribunal finds, for the reasons set out above, FGSH does not satisfy paragraph
     94(1)(c) of the Act and therefore does not have a continuing inability to work.
51. Once FGSH satisfies the program of support requirements, noting that periods of
     exemption do not count towards her participation, she may wish to test her eligibility
[1] T-Documents, T2, p 6-14.
     for DSP.”[1]
On 30 June 2020, the Applicant made an application to the General and Other Division of the Tribunal (“AAT2”) for a second review of the decision to reject her claim for DSP.
The hearing was held in the Adelaide Registry of the Tribunal by Microsoft Teams, both parties appearing via video-link. The Applicant made an affirmation to tell the truth and represented herself. The Secretary, Department of Social Services (the “Respondent”) was represented by Riley Calaby of Services Australia.
APPLICANT’S OPENING STATEMENT
The Applicant made an opening statement, the essence of which was that her doctors had provided sufficient evidence for her to be granted DSP and she could not see how a decision could be made in contradiction of their views.
She said officers of the Agency had encouraged her to claim DSP but they had not advised her properly of her prospects or the process of applying, which she found an exhausting and traumatic experience.
RESPONDENT’S POSITION
The Respondent accepted that during the qualifying period of 13 July 2019 to
12 October 2019 the Applicant had permanent impairments.
The conditions affecting her mental health function were fully diagnosed, treated, and stabilised and could be assigned 10 points under Table 5. They were, however, not severe, and therefore it was not open to assign 20 points under that Table.
In taking that position the Secretary relied on Dr Chaudhary’s letter of 22 October 2019[2] and the reasons outlined in the AAT1 decision.
[2] Ibid, T14, p 158.
The conditions affecting her physical exertion and stamina were fully diagnosed but not fully treated and stabilised and could not be assigned points under Table 1. In the alternative, they were not severe, and therefore it was not open to assign 20 points under that Table.
In taking that position the Respondent relied on Dr Fin Cai’s report of 17 October 2018 which noted that her arthritis therapy was working[3], as well as his report of 4 July 2019 that noted the Applicant had been inconsistent with her therapy.[4]
[3] Ibid, p 167.
[4] Ibid, p 194.
The Applicant had not participated in a program of support at all before or during the qualification period, she would therefore have to be assigned 20 points on one Table to be granted DSP.
The Applicant did not have an inability to work or retrain within two years following the qualification period, and there is evidence that the Applicant had the capacity to work 10-20 hours per week.
For the reasons set out in paragraphs 9 to 15 above, the Respondent sought an order affirming the AAT1 decision.
APPLICANT ADDRESSED CERTAIN CONTENTIONS OF THE RESPONDENT
The Respondent said the Applicant had been able to work 25 hours per week in an administrative/bookkeeping role at her and her ex-partner’s concreting business until 30 May 2019, which was six weeks before her claim for DSP.
The Applicant said she had been in an abusive marriage for twenty-five years. Her husband had forced her to work night and day and she was expected to work even when she was unwell. When she had a mental break down and was hospitalised, he brought her laptop to the hospital so that she could work on his books.
The Respondent said the Applicant’s inability to continue with her employment was due to the breakdown of her relationship and her impairments were not sufficient to prevent her working independently of a program of support.
The Applicant said her mental condition was not the result of her failed marriage. She had suffered for many years prior to the breakdown of the relationship. She attributed her condition to genetics.
The Applicant said she was not looking for an easy way out. After leaving an abusive relationship, she simply would not take any more mistreatment. She was not capable of working in a normal employment environment because of her pain and arthritis.
IMPAIRMENT UNDER TABLE 1 – FUNCTIONS REQUIRING PHYSICAL EXERTION AND STAMINA
The Tribunal asked the Applicant a series of specific questions relating to her impairments for the purpose of determining whether she should be classified as suffering moderate or severe functional impact under Table 1 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Determination”).
For assignment of 10 points for moderate functional impairment the person must: (1)(a)(i) be unable to walk (or mobilise in a wheelchair) far outside the home or needs to get other transport to local shops or community facilities; or (ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths).
The Applicant said that in 2019 she was unable to walk to the shops. She did not use public transport but had a car. She could change the sheets on her bed, but not in one go, unless she had assistance.
A person with moderate functional impact will also be able to: (1)(b)(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and (1)(b)(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
The Applicant said that in 2019 she did not use public transport because she had a car and was able to move around a shopping centre or supermarket leaning on a shopping trolley. She was also able to do work related tasks of a clerical nature.
The Applicant’s own evidence is consistent with moderate functional impact (1)(a)(i), (1)(a)(ii), (1)(b)(i) and (1)(b)(ii).
For assignment of 20 points for severe functional impairment the person must: (1)(a)(i) be unable to walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or (1)a)(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or (1)(a)(iii) use public transport without assistance; or (1)(a)(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and (1)(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
The Applicant said in 2019 she could work on a laptop for a maximum of two hours.
The Tribunal applied the evidence the Applicant had given, as noted in paragraphs 24, 26, and 29 to the criteria for a severe functional impact on Table 1. It found on the basis of the Applicant’s own evidence she did not meet the criteria set out in (1)(a)(i), (1)(a)(ii), and (1)(a)(iv). Criteria (1)(a)(iii) is irrelevant because the Applicant has a car and for that reason does not use public transport.
On the Applicant’s own evidence, the only criteria that she met in 2019 for severe functional impact on Table 1 was (1)(b), because she said she could not perform clerical functions for at least 3 hours.
As obtaining 20 points on Table 1 requires meeting one of the four criteria set out in (1)(a) and the criteria set out in (1)(b), on her own evidence the Applicant does not meet the criteria for severe impairment under Table 1.
IMPAIRMENT UNDER TABLE 5 – MENTAL HEALTH FUNCTION
The Tribunal asked the Applicant a series of specific questions relating to her impairments for the purpose of determining whether she should be classified as suffering moderate or severe functional impact under Table 5.
For assignment of 10 points for moderate functional impairment the person must have moderate difficulties with most of the following: (1)(a) self care and independent living; (1)(b) social/recreational activities and travel; (1)(c) interpersonal relationships; (1)(d) concentration and task completion; (1)(e) behaviour, planning and decision-making; and (1)(f) work/training capacity.
For assignment of 20 points for severe functional impairment the person must have severe difficulties with most of the functions set out in paragraph 34.
In respect of (1)(a) self-care and independent living, the Applicant said that in 2019 she had moved in with her parents because she needed a place to live. At this time, her daughter also provided her with some support.
In respect of (1)(b) social/recreational activities and travel, the Applicant said she would very infrequently drive to her sister’s house in Gawler and stay the weekend. She would attend church but not when feeling unwell. Her occasional contact with friends was usually by telephone.
In respect of (1)(c) interpersonal relationships, the Applicant said she would withdraw with depression and anxiety which impeded her ability to see anybody.
In respect of (1)(d) concentration and task completion, the Applicant said she could not read for thirty minutes in one go due to her attention-deficit/hyperactivity disorder (“ADHD”), and she had always had poor concentration which would be exacerbated by stress. In 2019, she downloaded an app, which reads material aloud to her. Her reading difficulty was such that she often could not get through one page and sometimes didn’t understand words. She could not look at something for more than fifteen minutes.
In respect of (1)(e) behaviour, planning and decision-making, the Applicant said it takes her a long time to plan anything, and while she could do it, everything needed to be written down. She had successfully taken a trip to Melbourne in the past, but her cousin had organised it for her.
In respect of (1)(f) work/training capacity, the Applicant said she had connected well with a woman teaching her to use new software. She had got through it because she had to.
From the Applicant’s own evidence, the Tribunal was unable to conclude that she suffers more than moderate functional impact on activities involving mental health function.
Subsection 8(1) of the Determination provides that symptoms reported by a person in relation to their condition can only be taken into account when there is corroborating medical evidence.
The Applicant did not introduce any new medical evidence at the hearing regarding her physical and medical impairments in 2019.
The medical evidence before the Tribunal was the medical evidence considered in the first review by the Tribunal which was conducted by a Member with medical qualifications. The Tribunal makes this point about the qualifications of the Tribunal Member who conducted the first review because the Applicant questioned whether either departmental officers or Tribunal Members were qualified to make judgements about the opinions given by her own doctors.
The evidence given by the Applicant is entirely consistent with the findings that were made on that occasion, and the relevant parts are as follows:
“Psoriatic arthritis
23. Ms [FGSH] has psoriatic arthritis, which has been fully diagnosed and fully treated by a rheumatologist, Dr Fin Cai. Ms [FGSH] has been treated with appropriate medications and physical therapy over the 3 years prior to her DSP claim.
24. On 11 November 2016, Dr Cai confirmed Ms [FGSH] has a sero-negative arthritis and that an MRI scan of the right foot and ankle confirmed bilateral Achilles tendinitis. Ms [FGSH] was reported as having an hour of joint stiffness in the mornings.
25. The letter from Dr Cai, dated 17 October 2018, reported that Ms [FGSH] was experiencing fleeting joint pain, although the Humira was providing good overall control of her psoriatic arthritis. There was no evidence of joint synovitis or Achilles tendinitis on examination at that time. Dr Cai prescribed Mobic to be taken regularly for 2 weeks, to settle the recent flare of Ms [FGSH]’s psoriatic arthritis.
26. Ms [FGSH]’s condition deteriorated, as described by Dr Cai, in his letter dated 4 July 2019, due to the stress related to her marital separation causing inconsistency with her Humira therapy. Dr Cai reported that there was mild synovitis of the left elbow and right hand with tenderness over the right knee and Achilles tendon.
27. The medical certificate, dated 17 April 2020, written by Dr Cai, reports that Ms [FGSH] experiences intermittent flares of joint pain and swelling affecting her hands, feet, knees and ankles. The current treatment, which is not expected to change, is Humira, Mobic and intermittent short courses of prednisolone.
28. The ARO determined that impairment points were unable to be allocated because Ms [FGSH]’s psoriatic arthritis was not fully stabilised, having had a recent exacerbation.
29. The tribunal disagrees with this reasoning, noting that it is not unusual for auto-immune arthritis to undergo periodic flare ups. Ms [FGSH] has had specialist treatment and review over a number of years. Dr Bailey has reported he does not expect her condition will improve and it may even deteriorate, such that she is unlikely to be able to work in the indefinite future. Therefore, the tribunal considers Ms [FGSH]’s psoriatic arthritis is fully treated and fully stabilised and that impairment points are able to be allocated.
Mental health issues
34. Ms [FGSH] has major depression, ADHD and chronic anxiety, which have been fully diagnosed and fully treated by Dr Chaudhary, her psychiatrist, since 2006.
………
37. On 4 October 2019 and 7 November 2019, Dr Bailey, GP, confirmed that Ms [FGSH] has fluctuating degrees of anxiety, poor concentration and focus (fluctuating), depressed mood, irritability, restlessness, insomnia, dizziness, low energy levels, palpitations, sweating, itching, headaches, breathlessness and nausea, related to her medical conditions. Although Dr Bailey confirmed that recent psychosocial stressors had destabilised Ms [FGSH]’s mental health and caused her arthritis to flare, he also confirmed her medical and mental health issues were unlikely to improve and could even deteriorate and that they will continue to severely impact her functioning and ability to attain regular employment.
38. The medical certificate, dated 7 April 2020, written by Dr Chaudhary confirms that Ms [FGSH]’s mental health conditions are permanent and expected to persist for over 2 years and the symptoms are ‘lowered mood, sleep disturbance, poor self-regulation and fluctuating symptoms’.
39. The tribunal finds Ms [FGSH]’s mental health issues are longstanding, having been significant enough to require treatment by a psychiatrist since 2006, and are fully treated and fully stabilised according to legislation. The nature of mental health conditions is that it is not unusual for there to be fluctuations over time. Ms [FGSH] has been appropriately treated and Dr Bailey has reported she is unlikely to improve to the extent she could undertake employment in the indefinite future.”[5]
[5] Ibid, T2, p 6-14.
OTHER HEALTH ISSUES
The medical evidence includes information about other conditions, in particular: cervical spondylosis, a hernia treated in 2019, asthma, vitamin D deficiency, hypothyroidism, a shoulder operation, gastro-oesophageal reflux disease, dyslipidaemia and abnormal liver function. However, there is insufficient information about them to conclude that any of them are fully diagnosed, treated, and stabilised.
ASSIGNMENT OF IMPAIRMENT POINTS UNDER DISABILITY IMPAIRMENT TABLES
The AAT1 review by the Tribunal determined that the Applicant should be assigned 10 points on Table 1 and 10 points on Table 2. The evidence received in the course of this review provides no basis for a departure from this determination.
PROGRAM OF SUPPORT
There was no dispute between the parties that the Applicant had not completed eighteen months of a program of support at any time up to, and thirteen weeks after, lodging her claim for DSP.
The Applicant has been engaged in a program of support but has yet to complete eighteen months.
The Respondent advised the Applicant that a shorter period of program of support may be satisfactory if it is demonstrated that the person is prevented, solely because of her impairment, from improving her capacity to prepare for, find or maintain work through continued participation in the program.[6]
[6] See Part 2, section 7(5) of the Determination.
For the avoidance of doubt, the Applicant will need to make another claim for DSP when she completes eighteen months in the program of support or makes an application under section 7(5) of the Determination.
FINDINGS
The Tribunal makes the following findings pursuant to section 94 of the Social Security Act 1991:
(a)The Applicant has both physical and psychiatric impairments.
(b)The Applicant has psoriatic arthritis which is fully diagnosed, treated and stabilised and attracts ten points on impairment Table 1.
(c)The Applicant has major depression, ADHD, and chronic anxiety, which has been fully diagnosed, treated and stabilised and attracts 10 points on impairment Table 5.
(d)As the Applicant does not have a severe impairment attracting twenty points on a single impairment table, she is required to have completed eighteen months in a program of support, or otherwise have satisfied the requirements for active participation, which she had not done.
(e)The Applicant was not qualified for DSP on the date of claim or within thirteen weeks thereafter.
(f)The decision to reject the claim for DSP is correct.

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

...........................[Sgnd]................................
Legal Administrative Assistant

Dated: 22 September 2021

Date of hearing: 11 August 2021

Applicant:

Self-Represented

Advocate for the Respondent:
Riley Calaby

Services Australia

[2021] AATA 5282

22 September 2021

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