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

Fuda and Secretary, Department of Social Services (Social services second review) [2020] AATA 1290 (15 April 2020)
Division:GENERAL DIVISION
File Number: 2019/3130
Re:Vincenzo Fuda
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member
Date:15 April 2020
Date of written reasons: 12 May 2020
Place:Perth

The Tribunal affirms the decision under review.
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Brigadier A G Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s impairments were fully diagnosed, fully treated and fully stabilised at the qualification period – whether Applicant’s impairments attract 20 points under Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94, 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

CASES
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services, version 1.235
REASONS FOR DECISION
Brigadier A G Warner, Member
12 May 2020
INTRODUCTION

On 15 April 2020, the Administrative Appeals Tribunal (the Tribunal), at the conclusion of a hearing held that day, gave oral reasons for its decision to affirm the decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 14 May 2019.
That AAT1 decision affirmed an earlier decision of the Department of Human Services to reject Mr Fuda’s claim for the disability support pension (DSP) which had been lodged on
11 August 2017 (T13/158-187).
The hearing was conducted by telephone conference. Mr Fuda and his general practitioner gave evidence on affirmation. On the morning of the hearing, the Tribunal contacted Mr Fuda to confirm his readiness for the hearing and was concerned to hear that he was en route to his general practitioner’s surgery for an influenza vaccination.
Mr Fuda confirmed that he wished to proceed at the scheduled time and that he would participate from the surgery location.
The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.
Mr Fuda subsequently requested a written statement of reasons on 16 April 2020.
The written reasons which follow are distilled from the edited transcript of the oral reasons for decision given on 15 April 2020.
BACKGROUND
On 11 August 2017, Mr Fuda lodged a claim for DSP. In that claim, Mr Fuda referred to his disabilities as:
Anxiety, panic attacks, servere [sic] depression, selve [sic] harm and others, suicide thoughts, no lust for life. Confused driving my car, public transport eg. bus train coach. Just trying to live a [sic] ordinary day to day life is just to [sic] hard to keep sane. (T13/183).
On 20 March 2018, Mr Fuda participated in a Job Capability Assessment (JCA).
The JCA assessor recommended the following:
(a)
Mr Fuda’s generalised anxiety, obsessive compulsive disorder, car phobia and secondary depressive symptoms were fully diagnosed, treated and stabilised.

The impairment arising from the conditions rated 10 points under Table 5 of the Impairment Tables (T13/193); and
(b)
Mr Fuda had a baseline work capacity of 8-14 hours per week and a future work capacity within two years with intervention of 15-22 hours per week

(T13/194-196).
On 20 March 2018, Mr Fuda’s claim for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (T16/197).
On 21 May 2018, Mr Fuda sought review of the decision by an Authorised Review Officer (ARO) of the Department of Human Services (Department) (T24/283), and on
18 February 2019, the ARO affirmed the decision to reject Mr Fuda’s claim for DSP, agreeing with the JCA’s recommendation that Mr Fuda’s conditions attracted
10 impairment points (T19/203-208).
On 27 February 2019, Mr Fuda sought a review of the ARO decision by the AAT1, and on 14 May 2019 the AAT1 affirmed the decision of the ARO to refuse the claim for DSP (T2). The AAT1 found that Mr Fuda’s mental health conditions generated 10 impairment points (T2/9).
Mr Fuda lodged an Application for review of the AAT1 decision to reject his claim for DSP with this Tribunal on 5 June 2019 (T1/1-2, dated 31 May 2019). In response to the question in Section 3 of the application form which asks why he thought the decision under review was wrong, Mr Fuda stated: ‘I will wait until you phone me and the doctor. Thank you’ (T1/2).
ISSUE
The Tribunal must decide at the date of the claim for DSP, that is 11 August 2017 or within 13 weeks of that date:
(a)whether Mr Fuda had any physical, intellectual or psychiatric impairments; and
(b)
if so, whether the impairments attract an impairment rating of at least

20 points under the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination); and
(c)if so, whether Mr Fuda had a continuing inability to work (CITW).
LEGISLATION
The relevant legislation applicable in this matter is contained in: the Social Security Act 1991 (Cth) (the Act); the Social Security (Administration) Act 1999 (Cth)
(the Administration Act); the Determination; and the Social Security (Active Participation for DisabilitySupport Pension) Determination 2014 (the POS Determination).
The Tribunal is also assisted by the Guide to Social Security Law, Department of Social Services, version 1.235.
The
statutory and policy provisions to which the Tribunal must pay consideration are detailed comprehensively in the Secretary’s Statement of Facts & Contentions

(Exhibit R1, paras [20]-[29]). Section 94 of the Act sets out the first requirement for qualification for the DSP, and that is that a person had an impairment at the time they lodged their claim. In this matter, the Respondent accepts that Mr Fuda suffered from a psychiatric impairment. The Tribunal is satisfied that Mr Fuda meets this requirement, as he had a number of conditions when he lodged his claim. The second requirement for DSP is also in s 94 and provides that a person’s impairment must rate 20 or more points under the Impairment Tables at the time they lodge their claim or within 13 weeks of that date.
To apply the Impairment Tables, the condition or impairment must be considered permanent, and in the determination, the word ‘permanent’ does not have its usual meaning. For the purposes of the Impairment Tables, for a condition to be permanent, it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and be fully stabilised and must be more likely than not to last for more than two years (s 6(4) of the Impairment Tables).
There is also a requirement that an applicant for DSP must have a continuing inability to work (CITW) pursuant to s 94(1)(c) of the Act. For DSP qualification, both the minimum qualifying impairment threshold of 20 points under the Impairment Tables and CITW criteria must be met and are of equal importance.
EVIDENCE
At the hearing, the Tribunal had before it the following evidence:
·the ‘T Documents’ (T1-T24, pp 1-296);
·the List of Applicant’s Current Medications, filed 24 July 2019 (Exhibit A1);
·
the Medical Certificate from Brookside Medical Centre by Dr Ashish Khanna, dated

24 January 2020 (Exhibit A2);
·
the Psychiatric Discharge Summary from Joondalup Health Campus, dated

2 September 2014 (Exhibit A3);
·
the Secretary’s Statement of Facts & Contentions dated 20 November 2019

(Exhibit R1);
·the oral evidence of Dr Ashish Khanna; and
·the oral evidence of the Applicant.
CONSIDERATION
Qualification Period
An applicant’s claim for DSP must be assessed on the basis of the applicant’s medical conditions as at the date of claim or within 13 weeks of that time. In Mr Fuda’s circumstances, the qualification period is from 11 August 2017 to 10 November 2017.
In the case of Fanning and Secretary, Department of Social Services
(2014) 144 ALD 133 (Fanning), Deputy President Handley relevantly noted (at 140 [33]) that:
The language in cl 6(5) and (6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the tribunal is whether “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” ... While hindsight may suggest that treatment did not result in improvement within 2 years, that is not the question for the tribunal to determine. The legislation requires the tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the tribunal’s decision. (Original emphasis.)
In the matter of Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 (Harris), Gyles J stated at 253 [1]:
…the applicant’s entitlement to the pension must be considered as at the date of her claim, … and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
In Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle (as discussed in Fanning and Harris above) that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period.
These authorities establish that a decision-maker such as the Tribunal in the present matter can only consider an applicant’s qualification for DSP within the relevant period.
If the applicant’s circumstances have subsequently changed it would be appropriate to lodge a fresh claim.
Whether Mr Fuda’s impairments attract 20 impairment points
The Respondent accepts that, during the qualification period, Mr Fuda suffered from a psychiatric impairment such that he satisfied s 94(1)(a) of the Act. The Respondent further contends that Mr Fuda had a total impairment rating of 10 points under the Impairment Tables during the qualification period and that he therefore fails to satisfy
s 94(1)(b) of the Act (Exhibit R1, para [35]). However, this Tribunal’s review is de novo and the Tribunal looks at the claim afresh. The Tribunal now turns to its consideration of Mr Fuda’s eligibility for DSP.
Mr Fuda’s oral evidence
Mr Fuda claims that he has suffered from these conditions from the age of 13 and they were getting worse. He saw a psychiatrist every six weeks at a cost of $270 per visit and was on a number of medications, some of which had side effects. Mr Fuda said that every day was a struggle, sometimes he felt like he was sea sick for 24 hours without being on a boat, and he had awful thoughts in his head.
Mr Fuda did not dispute his evidence before the AAT1 on 14 May 2019 to the effect that he lives alone in his own single-storey house which has a garden. He manages his own domestic tasks, such as cleaning, cooking, laundry and shopping. Mr Fuda has a car but, on some days, does not want to drive it, and on other days he can drive to the shops. He does not use trains or buses as he dislikes crowds and feels claustrophobic. Mr Fuda said that he cooks and cleans for himself, but sometimes cannot be bothered because of how bad he feels. Mr Fuda said that he meets friends three times per week and goes on fishing trips to a location about 400 kilometres from Kalbarri around three times a year by car. These trips could be between four to seven days and have occurred since a January 2017 trip was mentioned in the medical evidence. He said he is more relaxed when someone else drives on these trips, and on occasions gets boozed up to cope with the trip.
Although he could not recall exactly, Mr Fuda agreed with the following statement in the JCA report dated 20 March 2018 (T15/193):
The client reported that he was made redundant from his high level FIFO role in August 2015. He reported that his symptoms have been getting worse with age and reported that he would be unable to say whether he could manage part-time work until he tries it. He reported that he would like to volunteer to attend a Disability Employment Services. He reported that he is able to attend appointments, that his condition is not impacting on his reading/writing and that he is not worried about meeting new people.
During the assessment, the client reported that he does not require any support to live independently. The client reported that he has no difficulty with self-care, household tasks, shopping, taking his medication regularly and looking after his finances.
Dr Ashish Khanna’s oral evidence
Mr Fuda’s general practitioner, Dr Ashish Khanna, told the Tribunal that he had treated
Mr Fuda for approximately five years and that his condition had deteriorated. He said that Mr Fuda continued treatment with the same psychiatrist, Dr Ford, and was compliant with his medications, that there was no evidence of medication abuse, and that both he and
Dr Ford considered Mr Fuda unable to work.
Anxiety, Depression, Obsessive Compulsive Disorder and Car Phobia
The Respondent concedes that Mr Fuda’s mental health conditions were fully diagnosed, treated and stabilised during the qualification period. The evidence is that the conditions are longstanding and were treated with a sustained period of psychological counselling in conjunction with pharmacological intervention by the time of the claim for DSP.
Mr Fuda’s conditions were described by Dr Ford, consultant psychiatrist, on 16 June 2017 as ‘highly treatment resistant’ (T12/155). The Respondent’s position is supported by the medical evidence.
The Tribunal finds that at the qualification period, Mr Fuda’s mental health conditions were fully diagnosed, treated and stabilised.
Having regard to all the evidence relevant to the mental health condition as at the qualification period, the Tribunal concludes that the impairment arising from this condition attracts 10 points under Table 5 of the Impairment Tables. This is because Mr Fuda experienced moderate functional impact on activities involving the mental function, having regard to the descriptors 1(a) to 1(f) of the 10 point rating of Table 5. The Tribunal relies on Mr Fuda’s evidence before the AAT1 and before this Tribunal, the JCA report dated
20 March 2018, and the reports of Dr Ford dated 9 September 2016, 7 March 2017 and 16 June 2017, that described Mr Fuda’s symptoms as including difficulties participating with friends and family, difficulties with concentration, and marked anxiety and panic disabling him from driving and returning to work (T12/144-157).
During the JCA conducted on 20 March 2018, Mr Fuda reported that he:
·sees friends and family regularly and goes fishing with friends but has not been to a public venue like a pub or nightclub in 18 months;
·has no difficulties in leaving the house in a timely manner;
·does not require any support to live independently;
·is able to attend appointments, that his condition is not impacting on his reading and writing and that he is not worried about meeting new people; and
·has no difficulties with self-care, household tasks, shopping, taking medication regularly and looking after his finances (T15/192-193).
The JCA report also records Dr Ford’s statement (16 March 2018) that Mr Fuda was ‘only now starting to return to partial driving’ (T15/192).
The Tribunal is satisfied that the evidence in the two preceding paragraphs supports the Respondent’s contention that there is no medical evidence to indicate that any of the
20 point descriptors under Table 5 were met by Mr Fuda during the qualification period (Exhibit R1, para 32).
Other Conditions
The evidence is that Mr Fuda has other conditions.
Mr Fuda experienced two stokes in the years 2003 and 2007 respectively. On each occasion, he was initially treated at Sir Charles Gairdner Hospital and subsequently underwent rehabilitation. In 2003 he was out of action for six weeks before returning to work in the mining construction industry. The second stroke in 2007 was more serious and recovery took four months. He had left-sided weakness and needed to learn how to walk and talk again. However, he made a full recovery and eventually returned to his employment as a fly-in-fly-out worker (T2/7).
These strokes were not included in the ARO consideration (T19), are not mentioned in the Assessment Services Recommendation for DSP Medical Eligibility dated 18 August 2017 (T14), and are not included in the JCA report dated 20 March 2018 (T15). Mr Fuda made no submissions during the hearing with respect to impairment at the qualification period consequent to these strokes. There is therefore insufficient evidence to make an assessment as to whether these conditions were fully diagnosed, treated and stabilised during the qualification period. There is also insufficient evidence to determine whether any impairments resulting from the strokes are more likely than not expected to persist for more than two years from the date of claim. The Tribunal concludes that in the absence of any evidence relating to residual consequences as at the qualification period, the conditions of past strokes have no ongoing functional impact and therefore cannot warrant impairment points.
The Tribunal notes the comment in the Assessment Services Recommendation for DSP Medical Eligibility dated 18 August 2017 to the effect:
Medical certificate, Dr Khanna, 26/04/16, lists temporary conditions of wrist pain and iron deficiency anaemia. No further medical evidence has been provided since, to determine whether these conditions continue to impact on the recipient’s ability to function (T14/189),
and the Departmental file note of a contact on 21 May 2018 which records that the wrist condition ‘…did not have impairment level applied due to insufficient information’ (T24/285).
The Tribunal raised these comments with Mr Fuda during the hearing, however Mr Fuda failed to adduce any relevant evidence. Accordingly, in the Tribunal’s consideration of the current DSP claim under review, these other conditions can be taken no further.
CONCLUSION
Having considered all the evidence before it, the Tribunal finds that Mr Fuda’s medical conditions attract an impairment rating of 10 points under the Impairment Tables. As this is less than 20 points, Mr Fuda does not satisfy s 94(1)(b) of the Act and consequently was not qualified for DSP at the date of claim or during the qualification period.
Having found that Mr Fuda does not qualify for the DSP, there is no requirement for the Tribunal to address, and it has not addressed, the issue of whether Mr Fuda has a CITW pursuant to s 94(1)(c) of the Act.
The Tribunal is sympathetic to Mr Fuda and his medical circumstances and suggests that he might consider testing his eligibility for DSP again with further recent medical evidence from relevant specialists involved in the management of his various medical conditions.
DECISION
It follows from all of the above that the decision to reject Mr Fuda’s claim for DSP was the correct and preferable decision, and therefore the Tribunal affirms the decision under review, that being the decision of the Social Services & Child Support Division of the AAT dated 14 May 2019.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

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Associate
Dated: 12 May 2020

Date of hearing: 15 April 2020

Applicant: Self-represented, by telephone conference

Representative for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 1290

15 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	15 April 2020
Applicant:	Self-represented, by telephone conference
Representative for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers