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

Flynn and Secretary, Department of Social Services (Social services second review) [2021] AATA 4674 (17 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2832
Re:Barbara Flynn
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member West
Date:17 December 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.........[Sdg]..........................................................
Member R West
Catchwords
SOCIAL SECURITY – disability support pension – fibromyalgia – nausea/dizziness – frontal lobe atrophy – bowel disturbance – mood disorder – whether conditions fully diagnosed, treated and stabilised in the qualification period – whether impairments attract rating of 20 points or more under Impairment Tables – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security Guide
REASONS FOR DECISION
Member R West
17 December 2021
BACKGROUND

This matter concerns the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 14 April 2021 affirming the decision of Services Australia to refuse the Applicant’s claim for the Disability Support Pension (‘DSP’).
The relevant history of the matter is as follows:
·The Applicant made her application for DSP on 19 August 2020.[1]
·The application was assessed and refused on 22 September 2020[2] (‘the Initial Decision’).
·An authorised review officer (ARO) affirmed this decision on 12 February 2021[3] (‘the ARO Decision’).
·A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (‘the First Tier Review’) and a decision affirming the ARO Decision was handed down on 14 April 2021.[4]
·The Applicant applied for a Second Tier Review by the General Division of the Administrative Appeals Tribunal on 4 May 2021.
[1] T4.
[2] T7.
[3] T15.
[4] T2.
A hearing in relation to the Second Tier Review was held by telephone on 8 December 2021. The Applicant was self-represented. The Respondent was represented by
Mr Damian Carroll, a solicitor with King and Wood Mallesons.
LEGISLATION
The Tribunal has had regard to the following relevant legislation in making its decision:
·Administrative Appeals Tribunal Act 1975 (‘the AAT Act’);
·Social Security Act 1991 (‘the Act’);
·Social Security (Administration) Act 1999 (‘the Administration Act’);
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011; and
·Social Security (Active Participation for Disability Support Pension) Determination 2014.
In addition, the Tribunal has had regard to policy advice contained in the Social Security Guide (the Guide) where relevant.[5]
[5] to ensure consistency in decision making, the relevant policy should be followed unless there are cogent reasons to depart from their application (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
QUALIFICATION PERIOD
A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter. This is called the qualification period.[6]
[6] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Administration Act.
In this case, the qualification period commenced on 19 August 2020 and ended on
18 November 2020.
In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence. Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[7]
[7] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and affirmed in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], and
DSP Qualification
To qualify for a DSP, an applicant must satisfy the requirements set out in section 94(1) of the Act, as assessed during the qualification period.
In essence, section 94(1) of the Act requires that:
·the Applicant have a physical, intellectual or psychiatric impairment; and
·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and
·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and
·the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.
Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support; and the impairment is of itself sufficient to prevent the person from doing any work, or undertaking a training activity independently of the program of support within the next two years.
Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.
THE EVIDENCE AND SUBMISSIONS
In conducting the Second Tier Review, the Tribunal had regard to:
·the documents produced by the Respondent pursuant to ss 37 and 38AA of the AAT Act (T Documents);
·the oral evidence of the Applicant;
·the oral evidence of Ms Hannan; and
·the medical report of Professor Henry Ma, dated 5 October 2021 (Exhibit A1).
Claims on Review
The Applicant confirmed at the outset of the hearing that her claim on review relates to the following conditions:
·Fibromyalgia;
·Nausea/dizziness;
·Frontal lobe atrophy;
·Bowel disturbance; and
·Mood disorder.
Background
When lodging her claim for DSP the Applicant did not list the disabilities or medical conditions that she claimed significantly affected her ability to work,[8] but was accompanied by letters prepared by Professor Henry Ma (neurologist) dated 13 July 2020 and Dr Jitendra Kumar (general practitioner) dated 19 August 2020.[9]
[8] T4 at p.127.
[9] T5 at pp.136-137.
Following rejection of the Applicant’s claim on 22 September 2020 she sought internal review. Her request for internal review was accompanied by two letters prepared by Professor Ma dated 23 November 2020.[10]
[10] T9 at pp.168,169.
For the purpose of considering the review the Applicant’s claim and supporting materials were referred to the Health Professional Advisory Unit (HPAU) for an opinion and for a Job Capacity Assessment (JCA).
On 27 January 2021 the HPAU provided its opinion that:
…as of the date of claim and within the claim period, it appears the condition of frontal lobe atrophy can be regarded as fully diagnosed, but not fully treated and stabilized…[and b]oth the suspected vestibular dysfunction, and migraine cannot be regarded as fully diagnosed, fully treated or stabilized…[11]
[11] T11 at pp.172-174.
On 28 January 2021 the JCA reported,[12] assessing the Applicant’s baseline work capacity as 8 – 14 hours per week, and her capacity for work within two years (with intervention) as 15 – 22 hours per week.
[12] T12 at pp.175-181.
On 30 January 2021, the Applicant provided written submissions in support of her request for internal review[13] and further letters prepared by Dr Kumar, dated 2 February 2021[14] and Professor Ma, dated 5 October 2021[15].
[13] T13 at p.184.
[14] T14 at p.185.
[15] Exhibit A1.
The Applicant gave evidence by telephone to the Tribunal during the First Tier Review, the substance of the evidence being recorded in the Tribunal’s decision as follows:
In her oral evidence, Mrs Flynn stated that she has been suffering from bouts of nausea for 10 years. These occur on average once per fortnight and can last from one to several days. There is no vomiting but there is a feeling of generally being unwell. Over the last two years these attacks have been accompanied by dizziness at times. Stemetil does not help, but Zofran does take the edge off the nausea. She just stays home and waits for it to pass. She has been investigated at the Eye and Ear Hospital for dizziness and has been told she has a problem with crystals in the inner ear. She now sleeps almost upright which controls the dizziness. She has been investigated by a gastroenterologist who could find no cause for the nausea. She has been taking verapamil for several years which gives her some slight improvement. She has been told she may have silent migraine which could be related to her frontal lobe atrophy and may be the cause of her nausea. She worked in aged care but stopped in 2011 due to the bouts of nausea making her unreliable to her employer. She lives with her husband. She was diagnosed with fibromyalgia several years ago by a rheumatologist who she sees every 12 months. She suffers from a flu-like pain all over her body which is controlled by Palexia and Celebrex. If she has a breakthrough of symptoms, this is relieved by taking Panadol Osteo. She manages to carry out all household duties and is able to drive, except on a bad day. Mrs Flynn did not discuss chronic pain. [16]
[16] T2 at pp. 3-12 at [13].
The Applicant confirmed the evidence given in the First Tier Review in her oral evidence to the Tribunal. She added further that:
·She had not participated in a program of support prior to lodging her claim for the DSP on 19 August 2020.
·Her mood disorder had not been diagnosed by a psychiatrist or a clinical psychologist.
·The main impairment she experienced was a result of her nausea. She explained that she only experienced dizziness when also experiencing nausea, but she had experienced nausea without dizziness. She said that she did not often get dizziness since she began sleeping upright.
·She said that Professor Ma had indicated to her that he suspected that her nausea was the result of “silent migraine” attributed to her frontal lobe atrophy and that he had prescribed verapamil which had “helped a bit”.
·She described the effect of her fibromyalgia as a heavy crushing feeling over her whole body which was “kept under control” by taking Palexia and Celebrex and any breakthrough pain could be managed with Panadol Osteo.
·She said that the main effect on her mental functioning resulting from her frontal lobe atrophy was a “word finding difficulty” which she occasionally experienced.
·She said that her bowel condition caused her bad cramps with diarrhea or constipation and affected her every few weeks. She said that when affected her participation in normal activities was interrupted.
·She confirmed that the recommendations of Professor Ma on 13 July 2020,[17] that she have a further PET scan, undertake a neuropsychology assessment, and see a neuro-otologist for further assessment, was not undertaken before the end of the qualification period. She confirmed that she had the PET scan and neuropsychology assessment during 2021 but had not seen the neuro-otologist because his fees were too expensive.
[17] T5 at p.136.
CONSIDERATION OF ISSUES
The first issue for determination for each condition is to assign a rating under the appropriate Impairment Tables for the Applicant’s claimed impairment. An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period, the Applicant’s condition causing the impairment was permanent, that is, fully diagnosed, fully treated and fully stabilised, and likely to persist for more than two years.[18]
[18] Section 94(1) of the Act.
A condition is only considered fully treated and fully stabilised if, pursuant to subsection 6(6) of the Determination:
(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.
Reasonable treatment is defined in subsection 6(7) of the Determination as 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.
Fibromyalgia
The Respondent submits that it is open to the Tribunal to find that the Applicant’s fibromyalgia was fully diagnosed, treated and stabilised during the qualification period, such that it can be considered permanent. However, the Secretary contends that the available evidence indicates that this condition was well managed with the use of medication, had limited impacts on daily function and should be assigned a rating of 0 points on the Impairment Tables.
In his reports of 13 July 2020 and 23 November 2020[19] Professor Ma made no mention of fibromyalgia in his assessment of the Applicant. Dr Kumar reported on 19 August 2020[20] that the Applicant had fibromyalgia and chronic pain and had been treated by a rheumatologist. The Tribunal was not provided with any assessment by a rheumatologist. The JCA report of 28 January 2021[21] noted that during the assessment interview the Applicant had said that she first saw a rheumatologist about 10 years earlier and that her condition had been fairly well managed over a number of years with the continued use of Palexia medication. The HPAU Opinion of 27 January 2021[22] noted that the Applicant had a diagnosis of fibromyalgia, but indicated that no advice is required as she reported this condition was quite well managed with treatment.
[19] T5 and T9 at p.169.
[20] T5 at p.136.
[21] T12 at p.178.
[22] T11 at p.172-174.
The Applicant described the effect of her fibromyalgia in her oral evidence as a heavy crushing feeling over her whole body which was “kept under control” by taking Palexia and Celebrex. She said that any breakthrough pain could be managed with Panadol Osteo.
On the basis of this evidence the Tribunal accepts that the fibromyalgia condition was fully diagnosed, fully treated and fully stabilised during the qualification period.
Section 6(9) of Part 2 of the Rules for Applying the Impairment Tables provides that pain conditions such a fibromyalgia are to be assessed using the Tables relevant to the areas of the body whose function is affected. There is no specific Table for pain conditions. The evidence in this case does not identify any area of the body specifically affected by fibromyalgia and indicates that overall, the condition had limited impact on daily function. In the circumstances the Tribunal is satisfied that the condition should be assigned a rating of 0 points on the Impairment Tables.
Nausea/dizziness
The Respondent acknowledges that the Applicant reported suffering from bouts of nausea accompanied by dizziness for approximately 10 years[23], but contends that the available evidence indicates that these symptoms were not caused by a condition that was fully diagnosed, treated and stabilised during the qualification period.
[23] T2 at p.6 at [13].
The Applicant acknowledged in her evidence that her dizziness had been positively addressed by adopting an upright sleeping posture and that she only occasionally experienced dizziness when she was feeling nauseous. She stated that her principal source of functional impairment was nausea.
Although the Applicant gave evidence that Professor Ma had indicated that he thought her nausea was the result of “silent migraine” attributed to her frontal lobe atrophy there was no documented evidence produced of such a diagnosis by Professor Ma or Dr Kumar. Professor Ma’s report of 13 July 2020 made no mention of nausea. His letter of 23 November 2020[24] referred to nausea but offered no diagnosis for it. Dr Kumar in his report of 19 August 2020[25] gave no causal diagnosis but simply stated:
She gets nausea off & on. She does not plan her day due to her symptoms as she can get flare up any time & has to cancel most of her activities at last minute.
[24] T9 at p.169.
[25] T5 at p.137.
On the basis of the medical evidence the Tribunal is not satisfied that the Applicant’s nausea can be attributed to any diagnosed condition and accordingly it cannot be given a rating under the Impairment Tables.
Frontal lobe atrophy
The Respondent accepts that it is open to the Tribunal to find that the Applicant’s frontotemporal atrophy was fully diagnosed during the qualification period but contends that the diagnosed condition was not was fully treated and stabilised during the qualification period.
Professor Ma confirmed on 13 July 2020[26] that a recent MRI had shown a frontotemporal atrophy which seemed to have been stable since a previous scan. He noted that the Applicant seemed to be reasonably stable as regard to her memory but with occasional word finding difficulty. He again referred to the Applicant having a previously demonstrated frontal lobe atrophy in his report of 23 November 2020.[27]
[26] T5.
[27] T9 at p.168.
On this basis the Tribunal accepts that the Applicant’s frontotemporal atrophy was fully diagnosed during the qualification period. However, on 13 July 2020, just prior to the qualification period, Professor Ma indicated that the Applicant should have a further PET scan, undertake a neuropsychology assessment and see a neuro-otologist for further assessment. On 23 November 2020, at the conclusion of the qualification period, Professor Ma again reported that the Applicant was undergoing cognitive impairment and that she will need further assessment in terms of imaging and neuropsychology assessment.[28]He stated in a separate report that it was important that she undertake such repeat assessments.[29] The Applicant confirmed that these steps were not undertaken before the end of the qualification period but later in 2021 due to restrictions imposed because of the COVID-19 pandemic. She stated that she had not seen the neuro-otologist recommended by Professor Ma as he was too expensive.
[28] T9 at p.168.
[29] T9 at p.169.

On the basis of this evidence the Tribunal is not satisfied that the Applicant’s frontotemporal atrophy was fully treated and fully stabilised during the qualification period.
Bowel disturbance
The Respondent contends that there is insufficient information before the Tribunal to allow it to properly consider the bowel disturbance complained of by the Applicant and the Tribunal cannot be satisfied that the bowel disturbance was fully diagnosed, treated and stabilised during the qualification period, such that an impairment rating could be assigned.
The Applicant gave evidence that her bowel condition caused her bad cramps with diarrhea or constipation and affected her every few weeks. She said that when she is affected by the condition her participation in normal activities is interrupted.
Section 8 of Part 2 of the Rules for Applying the Impairment Tables provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
There is no mention of a bowel disturbance in the report of Dr Kumar dated 19 August 2020,[30] in the HPAU Opinion of 27 January 2021 or the JCA Report of 28 January 2020 and it is not mentioned by Professor Ma in any of his reports. The condition is first addressed in a report of Dr Kumar on 2 February 2021[31] where he merely stated that the Applicant has bowel problems and gets recurrent abdominal pain. She has had a colonoscopy. She gets diverticulitis off and on.
[30] T5 at p. 137.
[31] T14 at p.185.
On the basis of this limited evidence the Tribunal cannot be satisfied that the bowel disturbance was fully diagnosed, treated and stabilised during the qualification period, such that an impairment rating could be assigned.
Mood disorder
The Respondent contends that there is insufficient information before the Tribunal to allow it to properly consider the mood disorder complained of by the Applicant and the Tribunal cannot be satisfied that the mood disorder condition was fully diagnosed, treated and stabilised during the qualification period, such that an impairment rating could be assigned.
The Applicant confirmed in her evidence that her mood disorder had not been diagnosed by a psychiatrist or a clinical psychologist. Table 5 of the Impairment Tables clearly states that the diagnosis must be by an appropriately qualified medical practitioner, either by a psychiatrist or with evidence from a clinical psychologist if the diagnosis has not been given by a psychiatrist.
Accordingly, the Tribunal is not satisfied that the Applicant’s mood disorder was fully diagnosed during the qualification period and it cannot be given a rating under the Impairment Tables.
CONCLUSION
The total impairment rating for the Applicant’s conditions under the Impairment Tables is therefore nil.
For the reasons discussed, the Tribunal is satisfied that the Applicant does not meet the qualification criterion for a DSP under s 94(1)(b) of the Act, namely that she have an impairment or impairments which rate 20 points or more under the Impairment Tables. Accordingly, the Applicant was not qualified for a DSP at the date of her claim or within the qualification period.
It is unnecessary for the Tribunal to consider the other matters raised in the Respondent’s submissions.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member R West

...[Sdg]..................................................................
Associate
Dated: 17 December 2021

Date of hearing:

8 December 2021

Applicant:

By telephone

Advocate for the Respondent:

Solicitors for the Respondent:

Damian Carroll

King and Wood Mallesons

Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

[2021] AATA 4674

17 December 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction