Galbraith and Secretary, Department of Social Services (Social services second review)
[2015] AATA 950
•10 December 2015
Galbraith and Secretary, Department of Social Services (Social services second review) [2015] AATA 950 (10 December 2015)
Division
GENERAL DIVISION
File Number
2015/0069
Re
Alison GALBRAITH
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 10 December 2015 Place Melbourne The Tribunal affirms the reviewable decision.
[sgd].......................................................................
Member
SOCIAL SECURITY – disability support pension – whether conditions are severe – 20 impairment points – decision affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011Cases
Summers and Secretary, Department of Social Services [2014] AATA 165
Secondary Materials
Guide to Social Security Law version 1.217 - released 9 November 2015
REASONS FOR DECISION
Mr Conrad Ermert, Member
10 December 2015
INTRODUCTION
On 10 July 2013 Ms Galbraith, the Applicant, lodged a claim for disability support pension (DSP) with Centrelink. Centrelink is the service provider for the Department of Social Services, the Respondent. In her claim Ms Galbraith listed her disabilities as rheumatoid arthritis with ankylosing spondylitis.
On 22 July 2013 a Centrelink officer determined that Ms Galbraith was not qualified for DSP because her impairments did not attract a total of 20 points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 23 June 2014 a Centrelink authorised review officer (ARO) affirmed this decision. Ms Galbraith sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT). On 25 November 2014 the SSAT affirmed the ARO’s decision. The SSAT found that, although her impairments attracted a total of 25 impairment points, she was not qualified for DSP as she had not engaged in a program of support prior to her claim.
This matter is a review of the SSAT decision.
HEARING
At the hearing Ms Galbraith represented herself and gave her evidence under affirmation. She was accompanied by her mother, Dianne Galbraith, who did not give evidence at the hearing. Ms Anna-Lisa Short, a solicitor with Sparke Helmore, represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). I took in as evidence the Respondent’s Statement of Facts, Issues and Contentions dated 24 August 2015, together with Supplementary T-document ST1 – Report by Dr Susan Randle, dated 29 June 2015.
For Ms Galbraith I took in as Exhibit A1 an undated statement by Mr Graeme Coles, Ms Galbraith’s employer.
LEGISLATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).
Section 94 of the Act relevantly prescribes the qualifications for DSP:
(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.
A person’s impairment is assessed by reference to the Impairment Tables.
QUALIFICATION PERIOD
Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.
In this case the qualification period runs from 10 July 2013, the day on which the claim was lodged, to 9 October 2013.
ISSUES
The issues are whether, during the qualification period, Ms Galbraith:
·had any physical, intellectual or psychiatric impairments; and, if so,
·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so
·she had a continuing inability to work.
PRELIMINARY ISSUES
Prior to taking evidence I elicited the following concessions:
·the Respondent conceded that:
oat the qualifying period, Ms Galbraith had an impairment from a condition of ankylosing spondylitis that satisfied section 94(1)(a) of the Act; and
oMs Galbraith’s impairments attracted a rating of 25 points under the Impairment Tables and satisfied section 94(1)(b) of the Act; and
·Ms Galbraith conceded that she had not participated in a program of support within the meaning of section 94(3C) of the Act.
After considering all the evidence available to me, I am satisfied that the concessions are supported by the evidence and I accept them accordingly.
ISSUE TO BE DETERMINED
The Respondent’s concessions satisfy sections 94(1)(a) and (b) of the Act. Accordingly the only issue to be determined is whether, at the time of the qualifying period, Ms Galbraith had a continuing inability to work.
EVIDENCE
In her oral evidence Ms Galbraith said she relied on the opinions of Dr Randle, a rheumatologist, who assessed her as having a severe impairment.
Ms Galbraith contended that the assessment made by the Job Capacity Assessor (JCA) on 19 July 2013 was not correct. The JCA submitted that the Dr Randle did not have appropriate medical qualifications (T-Docs, p.113). Ms Galbraith said that the JCA had recorded incorrectly that Dr Randle was not a rheumatologist.
Under cross-examination Ms Short asked Ms Galbraith to describe the effects of her impairment during the qualifying period. Ms Galbraith said:
·the effects varied on different days and were unpredictable;
·she struggled with daily activities;
·she could not walk far;
·walking aids did not help; and
·the use of crutches damaged her spine and shoulders.
When asked about walking around a shopping centre, Ms Galbraith said that on a bad day she could not even leave home. She said it was impossible for her to get out of the car because of the pain from her spine and hips.
Ms Galbraith said she had about 20 good days a year. In her submissions Ms Galbraith said that, while it was not really possible to say how many good days she might have, she might have two good days per week. On a good day she can drive to the shops and park close to the entrance. She can walk around the shops but she must have regular rest breaks and she has to keep her shopping excursions short.
When asked whether she moved around in her work, Ms Galbraith said Graeme, her employer, would pick her up in his car to take her to work. She said the workplace was very small, only about the size of two and a half house blocks. In the morning she would do short tasks and then rest in the afternoons. Ms Galbraith said that on a bad day she could do only 20 to 30 minutes work and then would sleep for an hour before doing some more work.
Ms Short asked about the payslips dated 8 May 2013 and 26 June 2013 which showed that she worked 20 hours and 29 hours per week respectively. Ms Galbraith said at that time she was doing more work and that was the last time she worked as many hours. She said her condition has deteriorated since then. She said that in a really good week she could work 20 to 30 hours but that did not happen very often. She was not sure how much work she did in the qualifying period but thought it was not very much. When asked why she had not provided pay slips for the time during and after the qualifying period, Ms Galbraith replied that she did not work during the qualifying period and nobody had asked for any other pay slips.
When asked about her work Ms Galbraith said it was most closely described as a falconer but added that she did not perform falconry (T-Doc, p.147) and has also been described as an Animal Assistant (T-Docs, p.136). In addition to her work tasks, Ms Galbraith is involved in mobile work. She described this as going to schools to show birds and demonstrate their flights. She said an assistant would drive them to the school and help to set up and pack up presentations. For the flight demonstrations Ms Galbraith said she would wear safety boots and a back brace and vest for the heavy birds.
Ms Galbraith said a standard presentation at a school lasted about 40 minutes. In that time she and her co-presenter would show five to six birds. She would sit while her colleague was presenting. She would do two to three presentations per month.
She described her most difficult tasks as walking, standing and sitting for more than 20 minutes. She said that on a moderate day she could walk for 20 minutes. On a very good day she could walk for 40 minutes. She said on an average day she could sit for 20 minutes and stand for 20 minutes before the pain became too severe.
Ms Short asked about the comment of Dr Randle in T12, point 4, Alison uses a walking stick. Ms Galbraith said she uses one to assist her for a short walk when it is essential.
Ms Galbraith was referred to the report of Dr Randle (ST1) which records at paragraph 7 that she requires assistance to walk around a shopping centre … she requires assistance to walk from the car park to the shops. Ms Galbraith said she needs someone with her in case I collapse.
TRIBUNAL CONSIDERATIONS
The issue I must determine is whether, during the qualification period, Ms Galbraith had a continuing inability to work as provided for in section 94(1)(c)(i) of the Act.
Section 94(2)(aa) of the Act provides relevantly that a person has a continuing inability to work if the impairment is not a severe impairment and the person has actively participated in a program of support. Ms Galbraith has conceded that she has not participated in a program of support. For Ms Galbraith to satisfy the provisions of section 94(2)(aa) the impairment resulting from her condition must be found to be severe.
Section 94(3B) of the Act provides that a person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
The Impairment Tables relevant to Ms Galbraith’s condition are Table 2 Upper Limb Function, Table 3 Lower Limb Function and Table 4 Spinal Function. I will consider each in turn.
Table 2 Upper Limb Function
Ms Galbraith made no oral submissions specifically related to her upper limb function. Her only evidence regarding her upper limb function was her statement that she had to use a special brace to carry the heavier birds during the demonstrations. This evidence is supported by the statement of Mr Coles (Exhibit A1) in which he records that Ms Galbraith wears wrist splints and a specialised vest which enables her to still handle larger birds like the Eagle with less pain, though the time limit to this is still restricted. I note also her mother’s statement (T-Docs T-20, page 160) that Alison’s shoulders make it painful for her to lift her arms.
The medical evidence relevant to upper limb functions is contained in:
·the medical report by Dr Randle dated 3 July 2013 (T5): Impact on ability to function – … Needs help with housework, and on a bad day w ADL’s. Finger arthritis prevents sustained fine motor activities.
·the JCA Report dated 19 July 2013 (T9):
oRemarks: … Miss Galbraith did no (sic) mention … using specially designed gripping and grabbing tools, which can make it easier to avoid stressing her painful joints; and
oImpact on employment: Miss Galbraith reported morning stiffness and variable pain in … fingers, depending on activity / lack of activity / weather … Difficulty with … performing the heavier household duties – conducted by her mother – and some ADLs; and
·Letter of Dr Randle dated 25 November 2014 (T-docs, page 138): She is significantly impaired by her illness and whilst she may be able to perform certain physical activities once or twice in an assessment setting, these observations in no way reflect her ability to perform these activities repeatedly in a work place.
·Letter of Dr Randle dated 29 June 2015 (ST1, paragraph 7): I feel that Miss Galbraith has moderate functional impact on activities using her hands or arms
The descriptors listed in Table 2 for a severe functional impact with a rating of 20 points are:
There is a severe functional impact on activities using hands or arms.
(1)Most of the following apply to the person:
(a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)the person has difficulty using a computer keyboard despite appropriate adaptations;
(d)the person has severe difficulty using a pen or pencil;
(e)the person has severe difficulty turning the pages of a book without assistance.
There is no clear evidence that Ms Galbraith has limited movement in both arms or hands. I accept that there is evidence that she suffers variable levels of pain from moving her arms but it is not clear whether the movement of her arms or hands is limited.
Ms Galbraith’s evidence is that she regularly participates in demonstrations of bird handling and wears a brace when handling heavier birds such as an eagle. As this is a regular workplace activity, I do not accept that the impairment can be classified as a severe difficulty … even when wearing a … device. In addition, there is no evidence that Ms Galbraith has severe difficulty in handling, moving or carrying most objects.
Dr Randle’s statement that Ms Galbraith’s finger arthritis prevents sustained fine motor activities might infer that Ms Galbraith has some difficulties in using computer keyboards, pens and pencils and turning the pages of books. However, the descriptors do not require the tasks to be performed in a sustained manner. There is no evidence of a need for adaptations to computer keyboards nor is there evidence of a severe difficulty using pens or pencils. There is also no evidence of Ms Galbraith requiring assistance in turning the pages of books.
I do not accept that Dr Randle’s description meets the descriptors in Table 2 for a severe impairment attracting a rating of 20 points.
I am not satisfied that there is corroborated evidence that supports any of the descriptors in Table 2 which relate to a rating of 20 points. I find that, during the qualifying period, Ms Galbraith’s upper limb impairment was not severe in accordance with the provisions of Table 2.
In addition, I am not satisfied that there is sufficient evidence to overturn the finding of the SSAT that the upper limb impairment attracted an impairment rating of five points.
Table 3 Lower Limb Function
Ms Galbraith’s evidence was that she could walk from a carpark into a shopping centre and walk around a shopping centre. She said she required assistance for this activity. When questioned she stated that she needed another person with her in case she collapsed. She said she had to support herself with the arms of chairs when standing up from a chair.
The medical evidence relevant to lower limb functions is contained in:
·the medical report by Dr Randle dated 3 July 2013 (T5): Impact on ability to function – … Needs help with housework, and on a bad day w ADL’s.
·the JCA Report dated 19 July 2013 (T9):
oThe Client is best suited to DES and has physical limitations restricting the type of work (T9, T-Docs p.116)
oRemarks - … Miss Galbraith did no (sic) mention use of walking or mobility aids …;
oThe client’s condition/s does not prevent them from using public transport without substantial assistance;
oImpact on employment – Miss Galbraith reported morning stiffness and variable pain in lower back, hips, pelvic brim, knees, ankles and finger, depending on activity / lack of activity / weather … difficulty with prolonged sitting and standing and performing the heavier household duties … and some ADLs; and
·Comments from Dr Randle (T-docs, page 120): Alison uses a walking stick, shopping trolley;
·Dr Randle’s letter dated 25 November 2014 (T-docs, page 138): She is significantly impaired by her illness and whilst she may be able to perform certain physical activities once or twice in an assessment setting, these observations in no way reflect her ability to perform these activities repeatedly in a work place.
·Dr Randle’s letter dated 29 June 2015 (ST1, paragraph 7): I feel that Ms Galbraith has … severe functional impact on activities using lower limbs in that she requires assistance to walk around a shopping centre – if she goes at all – often a family member has to do her shopping for her. She requires assistance to walk from the car park to the shops and needs to lean on an object/person to stand up from a sitting position.
The descriptors listed in Table 3 for a severe functional impact with a rating of 20 points are:
There is a severe functional impact on activities using lower limbs.
(1)The person:
(a)is unable to do any of the following:
(i)walk around a shopping centre or supermarket without assistance:
(ii)walk from the carpark into a shopping centre or supermarket without assistance;
(iii)stand up from a sitting position without assistance; and
(b)requires assistance to use public transport.
(2)This impairment rating level includes a person who requires assistance to:
(a)move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b)move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
I note the statement by Dr Randle that Ms Galbraith requires assistance to walk around a shopping centre. However, Ms Galbraith’s evidence was that she needed assistance in case she collapsed. I accept the clarification provided by Ms Galbraith. The evidence indicates that Ms Galbraith is physically able to walk around a shopping centre and from a carpark to a shopping centre but may not feel confident in doing so by herself.
In regard to standing up from a sitting position without assistance, Ms Galbraith said she had to support herself with the arms of the chairs. This is corroborated by Dr Randle’s evidence that she needs to lean on an object/person to stand up from a sitting position.
In the Guide to Social Security Law and as held in Summers and Secretary, Department of Social Services [2014] AATA 165 the term assistance in the Impairment Tables means assistance from another person rather than an object or physical aid. The evidence shows that Ms Galbraith is able to stand up from a sitting position without assistance.
In her evidence Ms Galbraith said she used a walking stick only when essential. She gave no evidence regarding use of a walking stick around her place of work or when giving demonstrations.
I am not satisfied that there is evidence that supports any of the descriptors in Table 3 which relate to a rating of 20 points. Accordingly, I find that during the qualifying period Ms Galbraith’s lower limb impairment was not severe in accordance with the provisions of Table 3.
Table 4 Spinal Function
Ms Galbraith made no submissions related to the spinal function. Ms Short contended that there was no evidence that the impairment from Ms Galbraith’s spinal condition satisfied any of the descriptors for a 20 point rating from Table 4.
The medical evidence relevant to spinal functions is contained in:
·the medical report by Dr Randle dated 3 July 2013 (T5): Impact on ability to function … Cannot stand >20 minutes, can’t sit >20 minutes without needing to get up, needs help with housework and on bad day with ADL’s …
·the JCA Report dated 19 July 2013 (T9): Impact on employment – Difficulty with prolonged sitting and standing and performing the heavier household duties – conducted by her mother – and some ADLs; and
·Dr Randle’s letter dated 29 June 2015 (ST1, paragraph 2): … She was unable to stand more than 20 minutes, sit for longer than 20 minutes needed help with general Activities of Daily Living, housework and general mobility.
The descriptors listed in Table 4 for a severe functional impact with a rating of 20 points are:
There is a severe functional impact on activities involving spinal function.
(1)The person is unable to:
(a)perform any overhead activities; or
(b)turn their head, or bend their neck, without moving their trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
There is no direct evidence regarding Ms Galbraith’s inability to perform overhead activities. Dr Randle says she needs help with the housework and on a bad day with the activities of daily living (ADL). The JCA reports difficulty with performing heavier household duties and some ADLs. This evidence is confined to housework, heavier household duties and ADLs on a bad day.
I note also the statement of Dianne Galbraith (T-documents, page 160) which records I regularly help Alison with daily activities such as dishes, vacuuming, washing her clothes and other daily tasks. On occasions I help her dry / brush her hair as her shoulders make it painful for her to lift her arms. Even her mother’s assistance in drying and brushing her hair is only on occasions.
I am not satisfied that there is evidence that Ms Galbraith is unable to perform any overhead activities.
There is no evidence regarding Ms Galbraith’s inability to turn her head or bend her neck without moving her trunk. In her evidence to the SSAT, Ms Galbraith gave evidence of being able to drive a car for 30 to 45 minutes before needing to stop. I accept that driving a car involves a certain amount of head turning while the trunk is constrained by the seat and safety belt. I am not satisfied that there is evidence that Ms Galbraith is unable to turn her head, or bend her neck, without moving her trunk.
There is no direct evidence regarding Ms Galbraith’s inability to bend forward to pick up a light object from a desk or table. In her oral evidence Ms Galbraith described her work as a bird handler, involving lifting and carrying birds, including the heavier birds. As well she said she had other duties in caring for the birds.
Without corroborating evidence I do not accept that Ms Galbraith is unable to bend forward to pick up a light object from a desk or table.
Dr Randle’s evidence is that Ms Galbraith can sit for 20 minutes.
I am not satisfied that there is evidence that supports any of the descriptors in Table 4 which relate to a rating of 20 points. Accordingly I find that, during the qualifying period, Ms Galbraith’s spinal function impairment was not severe in accordance with the provisions of Table 4.
Episodic and Fluctuating Conditions
It is clear from all the evidence that Ms Galbraith’s condition is variable and fluctuates in intensity from good to bad days. Section 11(4) of the Impairment Tables provides:
When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
Ms Galbraith stated in evidence that she had about 20 good days a year. In her submissions Ms Galbraith said that she might have two good days per week.
The relevant medical evidence is contained in:
·the JCA Report dated 19 July 2013 (T9): Work Capacity – Temporary Work Capacity: 8-14 Hours per week; Rationale: … could be expected to have a current work capacity of 15-22 hours per week;
·Dr Randle’s letter dated 29 June 2015 (ST1, paragraph 8): Miss Galbraith was not able to reliably undertake any work for 15 hours or more as at 10th July 2013 …
I note that Ms Galbraith worked 20 hours in a week in May 2013 and 29 hours in a week in June 2013 (T-documents, page 82). Ms Galbraith said that was the last time she worked such hours but also said that on a good week she could work 20 to 30 hours but it does not happen often. Ms Galbraith pointed out that the work in May and June 2013 was outside the qualifying period and that her condition deteriorated after that time.
There is no evidence corroborating any deterioration of Ms Galbraith’s condition between June and 10 July 2013 and I find it inconceivable that her condition could change to any significant extent in such a short time. I consider that the evidence of the pay slips aligns more closely with the contemporaneous opinions of the JCA than with the retrospective opinions of Dr Randle. I accept the evidence of the JCA that at the time of application Ms Galbraith had a work capacity of 15 to 22 hours per week.
A work capacity of 15 to 22 hours or more per week indicates Ms Galbraith has a reasonably balanced number of good days compared to bad days. This balance of severity, duration and frequency of the episodes of Ms Galbraith’s condition is not sufficient to change my assessments of her impairments. After taking into account the episodic and fluctuating nature of her condition, I do not change my finding that Ms Gabraith’s impairments under Tables 2, 3 and 4 are not severe.
Continuing Inability to Work
Section 94(2) of the Act can qualify a person for the DSP if the person’s impairments are not severe. It provides relevantly that a person has a continuing inability to work if the impairment is not a severe impairment and the person has actively participated in a program of support. Ms Galbraith has conceded that she has not participated in a program of support. Accordingly Ms Galbraith does not satisfy the provisions of section 94(2) and cannot be found to have a continuing inability to work under section 94(2).
There are no other sections of the Act which can provide an exemption from this requirement. Accordingly I find that, during the qualifying period, Ms Galbraith did not satisfy the provisions of section 94(1)(c) of the Act.
CONCLUSION
To qualify for the DSP a person must, during the qualification period, satisfy all subsections of section 94(1) of the Act. Ms Galbraith did not satisfy the requirements of section 94(1)(c) of the Act. As a result, she could not satisfy all the provisions of section 94(1) of the Act. The result is that during the qualification period Ms Galbraith was not qualified for DSP and I find accordingly.
If Ms Galbraith’s condition has deteriorated since that time she is entitled to submit a new application at any time.
DECISION
I affirm the reviewable decision.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member [sgd]........................................................................
Administrative Assistant
Dated 10 December 2015
Date of hearing 12 November 2015 Applicant In person Advocate for the Respondent Ms Anna-Lisa Short, Sparke Helmore
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