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

Foy and Secretary, Department of Social Services (Social services second review) [2019] AATA 626 (3 April 2019)
Division:GENERAL DIVISION
File Number(s): 2018/0832
Re:Robert Foy
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:3 April 2019
Place:Sydney

The decision under review is affirmed.
...........................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether applicant’s impairments total twenty points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act1991 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Chris Puplick AM, Senior Member
3 April 2019

This matter concerns an appeal by Mr Robert Foy (the Applicant) against a decision by the Secretary, Department of Social Services (the Respondent) to deny his claim for the Disability Support Pension (DSP).
The original claim was lodged by the Applicant on 12 April 2017 and rejected by the Department of Human Services on 15 May 2017. On 13 November the Applicant sought to have this decision reviewed internally by the Department and on 16 November 2017 an Authorised Review Officer (ARO) of the Department affirmed the original rejection decision.
The Applicant then sought further review of that decision by an appeal to the Social services and Child Support Division (AAT1) of this Tribunal. That application was made on 30 November 2017 and heard by the AAT1 on 18 January 2018 on which date it affirmed the Department’s decision.
The Applicant then lodged a further review appeal with this Tribunal on 20 February 2018 and the matter was heard on 26 March 2019.
THE DISABILITY SUPPORT PENSION - OUTLINE
The application for a DSP was made on 12 April 2017 and that triggered an assessment process to determine the eligibility of the applicant for the DSP which had to take place at date of the claim or within 13 weeks thereafter. That was any time between 12 April 2017 and 12 July 2017.
This is what may be referred to as “the qualification period.”
It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the applicant’s health, changes in their status or acquisition of additional medical or psychological conditions[1] although subsequent medical reports which elucidate the applicant’s condition during the qualification period may be taken into account.[2] Later reports may of course be relevant to any future DSP applications.
[1] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].
[2] Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
In other words, whereas in other matters before the Tribunal decisions are to be based on the facts at the time of the Tribunal hearing, that is not the case in relation to the review of DSP matters. The Tribunal can consider only matters within the qualifying period and it has no legislative authority to do otherwise.
In order to qualify for the DSP an applicant must fulfil certain criteria which are set out in the Social Security Act1991 (the Act) in section 94.
In essence these requirements or criteria are:
(a)The person has a physical, intellectual or psychiatric impairment.
(b)The person rates 20 points or more on the Impairment Tables (which are a set of criteria established to assess the level of impairment set out in a Determination made under section 26 of the Act). Points may be accumulated for a variety or number of conditions or in certain circumstances awarded directly for one condition of particular severity.
(c)The person has a continuing inability to work or the Secretary is satisfied that the person is participating in a programme known as the supported wage system.
(d)The person has turned 16.
(e)The person is an eligible citizen or resident.
Failure to meet any one of these requirements is fatal to the application and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing those Points, the condition (however defined) giving rise to the impairment must be :
·Fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These terms are also defined in the Impairment Tables, but since there is no dispute in this instance about whether or not the Applicant’s medical conditions meet these requirements, it is not necessary to examine these definitions.
Again, each of these conditions must be met before any Points on the Impairment Table can be awarded.
An inability to work is also defined in the legislation. In effect it means that the impairment prevents the person from
·Doing any work independently of a programme of support within the next 2 years.
·Undertaking a training activity within the next 2 years.
·OR “if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a programme of support within the next 2 years.”
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
RELEVANT LEGISLATIVE PROVISIONS
For the sake of completeness, the immediately relevant parts of s 94 of the Act are set out below:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
THE APPLICANT’S CONDITIONS
The Applicant claims a degree of impairment in relation to five separate conditions, namely:
(i)Chronic lower back pain,
(ii)Osteoarthritis of both hips,
(iii)Osteoarthritis of the right knee,
(iv)Chronic airways disease, and
(v)Depression and anxiety.
It is necessary for the Tribunal to consider each of the claimed impairments and to assess, against the criteria established in the Impairment Tables, the impact of each of them, in order tie give each a rating score.
However as has been outlined, each condition must first be fully diagnosed, treated and stabilised.
Application of this criteria leads to an automatic finding that the conditions of chronic airways disease and depression/anxiety cannot be brought forward for assessment on the Impairment Tables.
Chronic airways disease
When the Applicant lodged his original claim for the DSP he did not include any reference to this condition in that application.[3] As a result when the Applicant was assessed by the Job Capacity Assessor on 11 May 2017 the matter was not raised and no assessment was made.[4] In a report of 1 April 2015 the Applicant’s then treating General Practitioner, Dr Raispouroskouie reported that his “chronic airway disease” was generally well-managed and did not cause him any significant degree of impairment.[5] The Applicant told the Tribunal that he had suffered from asthma most of his life and the Tribunal notes that this condition would have been exacerbated by the Applicant’s smoking habits. On 4 July 2017, the Applicant’s current GP, Dr Sazeedul Islam reported that the Applicant was suffering from asthma (which he identified as being onset on 20 September 2016) and was diagnosed with chronic obstructive airways disease (COAD). He was prescribed with Spiolto Respimat inhaler and nicotine patches to abate his smoking.[6] By July 2018 Dr Islam was in a position to report that the COAD had been treated but it was likely to be a condition that would deteriorate as the Applicant continued to be a smoker.[7]
[3] Section 37 Tribunal Documents at [171].
[4] Ibid at [178-186].
[5] Ibid at [131].
[6] Ibid at [189].
[7] Report of Dr Islam dated 9 July 2018.
Although there is a diagnosis of this condition, according to Dr Islam it commenced only just (2 weeks) prior to the qualification period ending and hence could not have become fully stabilised and treated in that time. The Tribunal notes that Dr Islam’s precise dating of the onset is somewhat at variance with the Applicant’s own statement about when he started to suffer from asthma. It is also the case that Dr Islam reports that the Applicant continues to smoke, contrary to his advice and that as a result prescribed treatment is compromised.
If the Tribunal accepts Dr Islam’s diagnosis then it follows that it cannot find the condition to be fully stabilised and fully treated which, together with the fact that it is not mentioned in the Applicant’s original application precludes it from being assessed against any of the Impairment Tables. It thus rates nil points.
Depression and Anxiety
This condition cannot be given any points because it fails to be fully diagnosed according to the criteria established under the Impairment Tables.
Both Dr Raispouroskouie[8] and Lynn Wright[9], a psychologist who was working on the development of a Mental Health Care Plan for the Applicant refer to his condition of depression and anxiety.
[8] Section 37 Tribunal Documents at [96].
[9] Ibid at [141], [144].
However it is a requirement under Impairment Table 5 (Mental Health Function) that a diagnosis of a mental health 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).”[10]
[10] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 at page [22].
It appears that Ms Wright is not a clinical psychologist and neither she nor Dr Raispouroskouie is a psychiatrist. As such there is no diagnosis of this condition in accordance with the requirements of the Impairment Tables.
This leaves the Tribunal to consider the three other physical impairments which the Applicant puts forward in his submission.
Chronic back pain
The Secretary concedes that the Applicant’s condition of chronic back pain is fully diagnosed.[11] There is evidence from Dr Raispouroskouie; a neurosurgeon (Dr Al Khawaja) and an orthopaedic and spinal surgeon (Dr Charles New) to this effect.[12]
[11] Respondent’s Statement of Facts, Issues and Contentions at [5.8].
[12] Section 37 Tribunal Documents at [96], [99] and [142] respectively.
The Secretary however considers that the condition is not fully treated and stabilised because the Applicant has not pursued the various treatment options recommended, including physiotherapy, hydrotherapy, Pilates and weight loss programmes (although there is evidence of some progress in achieving the latter[13]).
[13] Ibid at [143].
The AAT1 disagreed with the Secretary on this point[14] as does this Tribunal. In evidence the Applicant indicated that he made a conscious effort to undertake some physiotherapy, continued with exercises which he had been prescribed at home and had achieved significant weight loss.
[14] Ibid at [8].
It then becomes a matter of assessing what degree of impairment the Applicant suffered during the qualification period in 2017. Impairment Table 4 (Spinal Function) sets out the criteria for the awarding of points. From what the Applicant told the Tribunal and from the medical reports available to it, the Tribunal has no difficulty in finding that the Applicant suffers a “mild” functional impairment, which would give a rating of 5 points. He has difficulty with bending his knees and straightening up again and with certain movements of his trunk.
The question become whether his impairment rates any higher than 5 points. The next step on the Table (10 points) requires
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
The Applicant was cross-examined by the Respondent in relation to these various criteria and it was established, to the satisfaction of the Tribunal, that he was (at the relevant time) unable to complete some of the tasks outlined. He could not drive for 30 minutes nor could he easily look over his shoulder. The Tribunal would award him a rating of 10 points on this criteria.
Hip and Knee Pain
Both of these conditions fall within the criteria of Impairment Table 3 (Lower Limb Functions) and, as such, even when taken as separate impairments, only one rating score can be given using the same table.[15]
[15] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 section 10(5).
Again, the Secretary concedes that the condition is fully diagnosed relying on the reports of Dr New, Dr Olschewski (an orthopaedic surgeon) and Dr Islam.[16]
[16] Section 37 Tribunal Documents at [142], [143] and [189] respectively.
The Secretary’s written submission then states that the hip condition “was fully treated and stabilised during the qualification period”[17], but it is apparent that the Secretary actually maintains that it was not fully treated and stabilised. The Secretary contends that this arises because the Applicant had not completed the course of reviews proposed nor pursued the multiple treatments recommended.
[17] Respondent’s Statement of Facts, Issues and Contentions at [5.22].
In response to this the Applicant indicated that he had undertaken some of the activities suggested, had lost weight and was not able to pursue the further review options due to their prohibitive costs.
In relation to the knee condition, the Secretary takes the same position, agreeing that it was fully diagnosed but not fully stabilised and treated. The diagnosis relied upon the assessment of Dr Raispouroskouie to the effect that the Applicant suffered osteoarthritis and meniscus injury of the right knee.[18]
[18] Section 37 Tribunal Documents at [128-129].
As with the chronic back condition, the AAT1 and this Tribunal accepts that these conditions were fully diagnosed, fully treated and fully stabilised.
The Secretary conceded that were this to be the case she would accept that a rating of 5 points on each condition was justified, but that this would result in only 5 points being added to the Applicant’s assessment due to the operation of the combination rule.[19]
[19] Respondent’s Statement of Facts, Issues and Contentions at [5.23], [5.37] and [5.38].
Once again it requires the Tribunal to examine the criteria for the award of the next level of points (10 points) on the impairment tables. Table 3 provides:
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
The evidence presented to the Tribunal was to the effect that he had some capacity (at the relevant time) to walk for short periods of time; to manage his domestic arrangements (other than operation of the washing machine); to drive short distances; to manage well enough in small supermarkets or shops; to sit or stand for periods of up to 30 minutes without excessive discomfit and to navigate stairs.
It may very well be that at this present time his ability to undertake all of these activities is more compromised, but the Tribunal must confine its considerations to the situation which prevailed during the qualification period (12 April to 12 July 2017).
On these facts, a combined total of only 5 points can be awarded.
CONCLUSIONS
At its most generous the Tribunal finds that the maximum impairment rating which can be assigned to the Applicant during the qualification period is 15 points.
This is below the required threshold of 20 points and, as a result, does not satisfy the requirement of section 94(1)(b) of the Act. It is therefore not required for the Tribunal to undertake any further analysis of the continuing inability to work requirements set out in section 94(1)(c).
The Tribunal however, from its own observations and from the evidence presented to it, notes that there has been a deterioration in the Applicant’s health status since the end of the qualification period and that, as a result, an assessment of his impairment status as of the present, may very well result in a different (higher) impairment rating. He is at liberty to make a new application for the DSP based on his current condition at any time.
DECISION
The decision under review is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............................[sgd].........................................
Associate
Dated: 3 April 2019

Date(s) of hearing: 26 March 2019

Applicant: In person

Solicitors for the Respondent: Mr G Lozynsky, Department of Human Services

[2019] AATA 626

3 April 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	26 March 2019
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, Department of Human Services