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

[2018] AATA 53

FNNC and Secretary, Department of Social Services (Social services second review) [2018] AATA 53 (19 January 2018)

Division:GENERAL DIVISION

File Number:           2016/4142

Re:FNNC

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, Member

Date:19 January 2018

Place:Perth

The Tribunal affirms the decision under review.

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

Brigadier AG Warner, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – relevant period - whether Applicant’s condition fully diagnosed, treated and stabilised - whether Applicant’s impairments attract 20 points or more under the Impairment Tables – continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)( c) – s 94(2)
Social Security (Administration) Act 1999 – Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s (3) – s 5(2) – s 6(3) – s 6(4) – s 6(8) – s 8(1) – Table 1 – Table 5 – Table 7 – Table 9
Social Security (Active Participation for Disability Support Pension) Determination 2014

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

REASONS FOR DECISION

Brigadier AG Warner, Member

19 January 2018

INTRODUCTION

1. The decision under review is the decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 12 July 2016, which affirmed the decision made by the Department of Human Services (the Department) to reject the Applicant's application for Disability Support Pension (DSP) made on 13 November 2015.

2. The Applicant and her mother attended the hearing and gave evidence. The Applicant was supported by Ms Vicki Bailey, an advocate from Explorability Inc.

   BACKGROUND

3. The Applicant was born in July 1996 and is now 21 years old (T1/1).

4. On 25 May 2011, registered psychologist Naryn Lim conducted a functional assessment of the Applicant's numeracy (T4/34). The report, dated 8 June 2011, noted the Applicant had been diagnosed with dyslexia and found her “overall working memory and executive functioning” was adequate. The report indicated the Applicant did not meet the criteria for a diagnosis of Dyscalculia (T4/40).

5. On 4 March 2015, Dr Donald Payne reported that the Applicant was diagnosed with chronic fatigue syndrome on 21 November 2012 (T5/50). He described the impact of this condition on the Applicant's ability to function as “difficulty in attending further education, sleep disturbance and poor concentration” for the next 13-24 months. Dr Payne also reported that the Applicant's chronic fatigue syndrome would “significantly improve” within the next two years and that her “prognosis was good” (T5/52).

6. On 5 April 2015, Dr Payne provided a medical report, which stated the Applicant had been attending the Adolescent Medicine Clinic at Princess Margaret Hospital for “specialist medical, psychological and physiotherapy treatment” over the past two and a half years, her prognosis was good and it was “likely that her symptoms would slowly improve over the next 1-2 years”. Dr Payne stated that the Applicant's care had been transferred to Dr Kevin Murray as the Applicant required young adult services rather than clinical services at a paediatric hospital (T6/58).

7. On 22 May 2015, a Job Capacity Assessment (JCA) was conducted by a Registered Occupational Therapist (T7/59-64). The Applicant’s chronic fatigue syndrome was assessed as a temporary condition on the basis of Dr Payne's reports. The assessor found that the Applicant's dyslexia was considered fully diagnosed, treated and stabilised, and there was no functional impact resulting from a neurological or cognitive function under Table 7 - Brain Function (T7/ 61).

8. The JCA also considered the Applicant as having a temporary work capacity of 0-7 hours per week until 22 May 2016, a baseline capacity to work of over 30 hours per week and a future capacity to work of over 30 hours within two years with intervention. The assessor found there was no evidence of any permanent medical condition that reduced the Applicant's baseline capacity for work (T7/62-63).

9. On 16 October 2015, clinical psychologist Judi Ainsworth reported that the Applicant was referred to her for psychological counselling and support with a history of management of “chronic fatigue and associated symptomatology of low mood and depression”. Ms Ainsworth reported she had seen the Applicant on four occasions and had four further appointments booked (T9/96).

10. On 20 October 2015, general practitioner Dr David Evans provided a medical report stating that he had been treating the Applicant since January 2014 in relation to her chronic fatigue syndrome. Dr Evans reported that her condition was fully diagnosed, treated and stabilised and that significant improvement was “deemed unlikely to occur” within the next two years. Dr Evans assessed the Applicant as attracting 10 points under Table 1 - Functions requiring Physical Exertion and Stamina and 20 points under Table 5 - Mental Health Function (T10/97).

11. The Applicant lodged her claim for DSP on 13 November 2015 (T8/65).

12. A further JCA was conducted on 29 March 2016 (T12/100-105). This report concluded that the Applicant's chronic fatigue syndrome was fully diagnosed but not fully treated and stabilised. The assessor noted that Dr Payne reported a “good prognosis” and the Applicant’s care was transferred to Dr Murray, a specialist at Sir Charles Gardner Hospital, and that no further specialist reports had been provided (T12/102). The Applicant's dyslexia was considered fully diagnosed, treated and stabilised, however, there was no functional impact resulting from a neurological or cognitive function under Table 7 - Brain Function as the Applicant reported functional literary and numeracy skills (T12/101).  The Applicant was also assessed as having a temporary work capacity of 0-7 hours per week until 3 March 2017, a baseline work capacity to work of 15-22 hours per week and a capacity to work 23-29 hours per week within two years with intervention (T12/103-104).

13. On 5 April 2016, the Applicant’s claim for DSP was rejected (T13/106).

14. On 13 April 2016, the Authorised Review Officer (ARO) affirmed the decision of 5 April 2016. The ARO found the Applicant's chronic fatigue syndrome could not be considered permanent as no medical evidence had been provided from the Applicant's specialist Dr Murray, to confirm the opinion of general practitioner Dr Evans, and the treatment with clinical psychologist Judi Ainsworth was to continue.  The ARO accepted that the Applicant's dyslexia was permanent but attracted 0 points under Table 7 - Brain Function as there was no, or minimal, impact resulting from a neurological or cognitive function.  The ARO also found that the Applicant had not participated in a program of support in the 36 months prior to her claim for DSP (T14/109-113).

15. On 12 May 2016, Dr Pavla Walsh (covering Dr Murray’s clinic during his absence on secondment) provided a report stating that the Applicant continued to have “significant symptoms” and relied on her mother to manage her day to day needs, including, assistance with daily routine and meal preparation. Dr Walsh assessed the Applicant as attracting 10 points under Table 1 - Functions requiring Physical Exertion and Stamina and 20 points under Table 5 - Mental Health Function (T16/117).

16. On 18 May 2016, the Applicant applied to the AAT1, and on 15 July 2016, the AAT1 affirmed the decision to reject the Applicant's application for DSP (T2/4).  The Respondent (at Exhibit 2, para 21) details the AAT1 decision as follows:

    The AAT1 noted the contradictory medical evidence between paediatrician Dr Payne who had treated the Applicant since 2012, and general practitioner Dr Evans about the expected duration of the condition, and preferred the opinion of Dr Payne who was the Applicant's managing specialist for a number of years. On the basis of Dr Payne's report, the AAT1 found the Applicant's chronic fatigue syndrome was a temporary condition as it was likely to improve within 24 months (T2, 9).  Further, the AAT1 found the Applicant's chronic fatigue syndrome was not fully diagnosed, treated and stabilised as “explainable causes of fatigue” had not been excluded.  For example, the Applicant's oral evidence was that she had never been evaluated by a psychiatrist to determine whether her symptomology could be explained by a mental health condition (T2, 9). The AAT1 also found that the management of the condition was limited. For example, there was only limited evidence of engagement with Allied Health with four to six visits with an occupational therapist. The AAT1 found there were “reasonable treatments” that were yet to be implemented. Accordingly, the Applicant's chronic fatigue syndrome was temporary and not fully diagnosed treated and stabilised (T2, 10). In relation to the Applicant's dyslexia, the AAT1 made a finding of 0 points under Table 9- Intellectual function on the basis of her results in the psychometric testing (T2, 10).

    On 4 August 2016, the Applicant appealed to this Tribunal (T1/ 2).

    ISSUE

17. The issue before the Tribunal is whether the Applicant was qualified or became qualified to receive DSP within the period 13 November 2015 to 12 February 2016 (the Relevant Period). This depends on whether the Applicant satisfied s 94 of the Social Security Act  1991 (the Act), in particular whether the Applicant has:

    (a)physical, intellectual or psychiatric impairments; and

    (b)impairments arising from fully diagnosed, treated and stabilised conditions that attract an impairment rating of at least 20 points under the Impairment Tables; and

    (c)a continuing inability to work, including the requirement to have actively participated in a program of support (POS).

    LEGISLATION

18. The relevant legislation includes:

    (a)the Act;

    (b)Social Security (Administration) Act 1999 (the Administration Act);

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

    (d)Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

    Relevant Period

19. A person's qualification for DSP is to be considered during the ensuing 13 weeks from the date when the claim was made, in accordance with clause 4(1) in Schedule 2 to the Administration Act.

20. Relevantly, in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) AATA 922 at [34], the Tribunal noted that:

    In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable  future, the Tribunal  must look at the situation as it was, and the evidence that  was  available,  at  the  time  of  the  application  for DSP (and the subsequent 13 weeks) ... If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

21. In Fanning and Secretary, Department of Social Services (2014) AATA 447, DP Handley at [31] noted that:

    In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.

    Qualification for DSP

22. The qualification criterion for DSP is set out in s 94 of the Act.

23. The Impairment Tables contain rules for deciding whether a person qualifies for a DSP (the Rules).  The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations, and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions (s 5(2) of the Rules).

24. “Impairment” is defined to mean a loss of functional capacity affecting a person's ability to work, which results from the person's condition (s 3 of the Rules).

25. Section 6 of the Impairment Tables requires that a person's impairment 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. The Impairment Tables may only be applied after the person's medical history has been considered.

26. An impairment rating can only be assigned to an impairment if the person's condition causing that impairment is permanent (that is, it is fully diagnosed, treated and stabilised and likely to persist for  more than  two  years), and the impairment resulting from  that condition  is also more likely than not to persist for more than two years (s 6(3) to s 6(4) of the Rules).

27. In determining whether a condition has been fully diagnosed and fully treated, the following must be considered (s 6(5) of the Rules):

    (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 two years (s 6(5) of the Rules).

28. A 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 two years; or

    (b)the person has not undertaken reasonable treatment for the condition and either:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two 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 (s 6(6) and s 6(7) of the Rules).

29. The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables.  If the impairment has no functional impact, then no rating will be assigned (s 6(8) of the Rules).  Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence as defined in each Table (s 8(1) of the Rules).

30. Should the person have a total impairment rating of 20 points or more, there is a requirement to consider whether the person has a continuing inability to work for the purposes of s 94(1)(c)(i) and s 94(2) of the Act. The term “continuing inability to work” and related terms are defined in s 94(2) to 94(5) of the Act.

    EVIDENCE

31. The evidence before the Tribunal comprised:

    (a)the “T Documents” (T1-T18, pp 1-134);

    (b)the Applicant’s Statement of Issues, Facts and Contentions dated 10 February 2017 (Exhibit 1);

    (c)the Respondent’s Statement of Facts, Issues and Contentions dated 7 March 2017, including Annexures A-E (Exhibit 2);

    (d)the oral evidence of the Applicant; and

    (e)the oral evidence of the Applicant’s mother.

    CONSIDERATION

32. The Applicant's qualification for DSP is to be solely determined during the Relevant Period. Medical evidence dated outside this period may be relevant, but only to the extent that it refers to a person's conditions and impairments  as at the  date of claim  and the further 13 weeks. If a person’s circumstances change, for example, if there is deterioration in their condition, then the appropriate course is for those circumstances to be considered by way of a fresh claim.

33. The Respondent accepts that during the Relevant Period, the Applicant suffered from chronic fatigue syndrome and s 94(1)(a) of the Act is satisfied. The Respondent also accepts that the condition is fully diagnosed but contends that the Applicant's chronic fatigue syndrome was not permanent and not fully treated and stabilised within the Relevant Period. Accordingly, the Applicant did not have an impairment rating of at least 20 points within the relevant period and s 94(1)(b) of the Act is not satisfied (Exhibit 2, paras 43-44).

34. Having noted a functional assessment of numeracy report completed by psychologist Naryn Lim dated 25 May 2011, the AAT1 included Intellectual Function in its consideration and made a finding of nil points under Table 9 (T2/10).  This Tribunal takes this condition no further.

    Affirmed oral evidence of Applicant

35. The Applicant presented before the Tribunal as honest, engaging and well-prepared to give her evidence.  Her evidence was not inconsistent with that contained in the decision under review (T2/6-7).

36. The Applicant described her symptoms and the impact of her condition, including that she:

    (a)participated in treatments asked of her but with little success;

    (b)rarely walked for more than a few minutes;

    (c)uses public transport only as a last resort but then needs considerable time to recover;

    (d)is unable to function well socially and cannot tolerate people touching her;

    (e)remains at home 90% of the time, but attends a chronic fatigue support group monthly;

    (f)can only shower every three or four days;

    (g)finds clerical work exceeding three hours difficult due to disrupted sleep patterns and difficult access to workplaces;

    (h)is unable to perform household chores and relies on her mother; and

    (i)qualified for her driver’s licence in 2016 with strong encouragement from her mother, but can only drive for periods of five minutes.

    Affirmed oral evidence of Applicant’s mother

37. The Applicant’s mother presented before the Tribunal as an honest witness, solicitous for the health and wellbeing of the Applicant.  The Applicant’s mother told the Tribunal that:

    (a)on occasions, the Applicant sleeps for 18-20 hours and that she spends considerable care time rousing her;

    (b)she cleans the Applicant’s room, does her laundry and manages her time;

    (c)the Applicant had been compliant with recommended treatments despite low success;

    (d)the Applicant is unable to utilise public transport without assistance;

    (e)the Applicant had recently changed her general practitioner at the suggestion of the chronic fatigue syndrome support group; and

    (f)it had been difficult to obtain necessary reports to support the Applicant’s DSP claim, but she considered that the Applicant deserved the DSP because she would be unlikely to survive on her own and it would give her independence and freedom.

38. In regard to paragraph 37(f) immediately above, the Tribunal notes, but takes no further, the correspondence provided by the Applicant’s mother at Exhibit 2, Annexure D.

    Assessment of chronic fatigue syndrome

39. In a report dated 4 March 2015, the Applicant’s paediatrician, Dr Payne reported that the Applicant's chronic fatigue syndrome would “significantly improve” within the next two years and that her “prognosis was good” (T5/52).

40. In a report dated 10 November 2016, the Applicant's specialist Dr Murray detailed treatment undertaken by the Applicant and stated:

    She was under the care of my Paediatric Colleagues at Princess Margaret Hospital in 2015.  She had intensive multi-disciplinary team management and made slow and steady progress as might be expected.  She has had a lot of fluctuations in this condition, particularly throughout 2015. In the latter part of 2015 she was very severely affected.

    …

    My belief is that over the next two years she may be able to gradually start to do some more physical tasks and eventually build up subsequently to perhaps as much as 15 hours per week of work after the two year mark depending.

    …

    I am optimistic with the appropriate supports in the long term she will recover a lot of function and hopefully get back to full academic and physical potential (Exhibit 2, Annexure B).

1. The JCA dated 22 May 2015 assessed the Applicant’s chronic fatigue syndrome as a temporary condition which was expected to persist for 13-24 months and significantly improve (see paragraph 7 above).

2. A further JCA conducted on 29 March 2016 concluded that the Applicant’s chronic fatigue syndrome was not fully diagnosed, treated and stabilised.  In support of this conclusion, the assessor remarked:

   This condition will continue to impact on her overall function for 13-24 months and significantly improve.

   Dr Donald Payne has further noted that FNNC’s prognosis is Good (within the next 1-2 years).

   This condition has been impacting on her overall function for longer than 24 months.  This condition however, cannot be assessed as fully treated, or fully stabilised as a further report from Dr Donald Payne, consultant paediatrician states that FNNC had been attending the clinic on a regular basis.  She had received specialist medical, psychological and physiotherapy treatment over the past 2.5 years, and though she continues to struggle with significant fatigue, her prognosis was good and it was likely that her symptoms will slowly improve over the next 1-2 years.  Her care was transferred to Dr Kevin Murray, a specialist at Sir Charles Gardner [sic] Hospital.

   No information has been provided by Dr Kevin Murray, and no further specialist reports have been made available since the last report from Dr Payne, dated 05.04.2015.  A letter from her general practitioner, Dr David Evans, dated 20.10.2015 outlines how she meets criteria for FDTS and further outlines that she should be assigned a 30 point impairment rating from Tables 1 an 5.  However as no further medical information has been made available from her current specialist, Dr Kevin Murray, this condition is assessed as not FDTS and no impairment rating can be assigned (T12/102).

3. Subsequent to lodging her appeal to this Tribunal on 4 August 2016, the Applicant provided a medical report by Dr Murray dated 10 November 2016 (Exhibit 2, Annexure B).  Dr Murray advised that the Applicant had undertaken a sleep study and suffers from a contributory obstructive sleep apnoea. The report does not detail when the sleep study was conducted, whether the Applicant has been treated for that condition and what impact it may have on her chronic fatigue syndrome.  There is no evidence before the Tribunal that this condition existed during the Relevant Period and the Tribunal notes that there is no mention of it in Dr Payne’s reports dated 4 March 2015 (T5) and 5 April 2015 (T6) and Dr Walsh’s report dated 12 May 2016 (T16).

4. The present review is de novo, however, the Tribunal has regard to the following relevant evidence-based observations made by the AAT1:

   (a)The AAT1 found that the management of the Applicant’s chronic fatigue syndrome was limited (T2/10).  The report by Dr Murray dated 10 November 2016, some four months after the AAT1 decision, states that the Applicant has had “multi-disciplinary team management and made slow and steady progress as might be expected”, but there is no detailed evidence before the Tribunal as to the type and extent of that treatment (Exhibit 2, Annexure B). (Emphasis added.) The Respondent illustrates this observation thus:  “For example, although Dr Walsh refers in her report dated 12 May 2016 to ‘regular’ attendance with occupational therapist Jane Muirhead there is no report from Ms Muirhead” (Exhibit 2, para 51). (Emphasis added.)

   (b)The AAT1 also found that “explainable causes of fatigue” for the Applicant’s condition had not been excluded. For example, the Applicant's oral evidence before that Tribunal was that she had never been evaluated by a psychiatrist to determine whether her symptomology could be explained by a mental health condition (T2/9).  Dr Murray, in his 10 November 2016 report, advised that the Applicant had been referred for an appointment with a clinical psychiatrist for further assessment (Exhibit 2, Annexure B).  The Applicant has now provided a report from Dr PHN Morton, psychiatrist, dated 21 November 2016 stating that the Applicant has no depressive disorder and no symptoms of a mental disorder contributing to her state (Exhibit 2, Annexure C).  The Tribunal notes that the report was written nine months outside the Relevant Period, makes no specific reference to the relevant period and is based on a single appointment with Dr Morton.

5. Before the Tribunal, the Respondent reiterated the contention that:

   Even if the Tribunal accepts that the condition is permanent and fully treated and stabilised, there is no medical evidence in support of the Applicant's contention that she is entitled to 20 points under Table 1 - Functions  requiring Physical Exertion and Stamina. In fact, both Dr David Evans (at T10, 97) and Dr Walsh (at T16, 117) assessed the Applicant as attracting 10 points only under Table 1 - Functions requiring Physical Exertion and Stamina. However, Dr Walsh and Dr Evans failed to provide any insight into the impact of the Applicant's condition or explain the basis for their assessment. Even if the Tribunal was to accept these reports, the Applicant fails to attract an impairment rating of at least 20 points under the Impairment Tables to meet the criteria under s 94(1)(b) (Exhibit 2, para 52).

6. Having regard to the relevant material, the Tribunal agrees.

7. Having carefully considered the evidence and circumstances of this matter, the Tribunal finds that during the relevant period the Applicant’s chronic fatigue syndrome was fully diagnosed.  However, the Tribunal is not reasonably satisfied that there is sufficient relevant medical evidence to demonstrate that the Applicant's chronic fatigue syndrome was a permanent and fully treated and stabilised condition during the Relevant Period. Accordingly, the Applicant’s condition cannot be rated under the Impairment Tables.

   Continuing Inability to Work

8. Due to the cumulative construction of s 94 of the Act and the Tribunal finding that the Applicant does not have an impairment rating of 20 points or more, she is not qualified for DSP. There is no requirement then for the Tribunal to consider whether or not the Applicant has a continuing inability to work for the purposes of s 94(1)(c)(i) and s 94(2) of the Act.

9. Relevantly, the Respondent contends that:

   The Applicant does not have a severe impairment, has not met the participation requirements of a POS and does not have a continuing inability to work as defined by s 94(2) of the Act. Therefore, s 94(1)(c) of the Act is also not satisfied” (Exhibit 2, para 45).

   Having carefully considered the evidence, the Tribunal agrees with the Respondent.

   CONCLUSION

10. The Tribunal finds that the Applicant’s chronic fatigue syndrome was fully diagnosed at the relevant time, but not permanent and not fully treated and stabilised within the meaning of the Act. Accordingly, the Applicant did not have an impairment rating of at least 20 points and does not satisfy s 94(1)(b) of the Act. It follows that the Applicant does not meet the qualification criteria during the Relevant Period and the decision to reject her claim for DSP was correct.

    DECISION

11. For the above reasons, the Tribunal affirms the decision under review.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member.

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

Administrative Assistant - Legal

Dated: 19 January 2018

Date of hearing:	26 July 2017
Representative for the  Applicant:	Ms V Bailey Explorability Inc
Representative for the  Respondent:	Mr C Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers