Garry O'Connor and Secretary, Department of Social Services
[2014] AATA 816
•31 October 2014
[2014] AATA 816
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3008
Re
Garry O'Connor
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 31 October 2014 Place Adelaide The decision under review is affirmed.
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Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Departmental review of applicant's ongoing qualification for DSP – DSP cancelled – Whether applicant satisfied criteria for DSP as at date of cancellation – Impairments do not attract 20 points under Impairment Tables – Decision under review affirmed.
LEGISLATION
Social Security Act 1991, ss 26, 27(3) – (4), 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security and Other Legislation Amendment Act 2011
Social Security (Administration) Act 1999Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005, subs 94(5)
REASONS FOR DECISION
Deputy President K Bean
31 October 2014
The applicant, Mr O’Connor, was in receipt of disability support pension (DSP) from June 1998 in respect of his sleep apnoea condition. However, in September 2008, his DSP was cancelled following a two-year suspension period, and Mr O’Connor subsequently lodged a new claim for DSP in July 2009, which was granted.
On 5 July 2012, Mr O’Connor was issued with an assessment notice advising him that the respondent had commenced a review of his ongoing qualification for DSP[1], and as a result of that review his DSP was subsequently cancelled with effect from 23 October 2012. That decision was affirmed upon review by a Centrelink Review Officer, and by the Social Security Appeals Tribunal (SSAT).
[1] Exhibit 1, T7/51.
On 25 June 2013, Mr O’Connor lodged an application for review of the SSAT’s decision in this Tribunal, giving rise to these proceedings.
LEGISLATION AND ISSUES
In broad terms therefore the issue before me is whether the decision to cancel Mr O’Connor’s DSP from 23 October 2012 was correct. This requires consideration of whether Mr O’Connor satisfied the legislative criteria for DSP as at 23 October 2012, by reference to the version of the Impairment Tables in force as at the date of the assessment notice of 5 July 2012.[2]
[2] See subss 27(3) – (4) of the Act which applies in relation to a person receiving DSP on or after 1 January 2012 (whether the person started to receive that pension before, on or after 1 January 2012): item 5(4) in Schedule 3 of the Social Security and Other Legislation Amendment Act 2011.
Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act), which, at the relevant time, relevantly provided as follows:
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;
...
I propose to address each of those requirements in turn, insofar as it is necessary for me to do so.
DOES MR O’CONNOR HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
There is no dispute between the parties that Mr O’Connor suffers from a number of medical conditions, including sleep apnoea, ischaemic heart disease, gout and alcohol abuse, and that he therefore also has a number of impairments, and satisfies subs 94(1)(a).
AT THE RELEVANT TIME, DID MR O’CONNOR HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
As set out above, subs 94(1)(b) of the Act requires that a person have 20 or more points under the Impairment Tables.
Section 26 of the Act provides for a legislative instrument to determine Tables relating to the assessment of work-related impairment for DSP. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) is the legislative instrument provided for in s 26 of the Act, and which applies for the purpose of determining Mr O’Connor’s qualification for DSP as at 23 October 2012. The Determination contains rules for applying the Impairment Tables and the Impairment Tables themselves.
The Determination outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:
·the condition causing the impairment is permanent; and
·the impairment resulting from the permanent condition is more likely than not to persist for more than two years.
Further, for a condition to be considered permanent under the Determination:
·the condition must be fully diagnosed by an appropriately qualified medical practitioner;
·the condition must be fully treated and stabilised; and
·the condition must be more likely than not to persist for more than two years.
Subsection 6(5) of the Determination also provides that, in determining whether a condition is fully diagnosed and fully treated, the following is to be considered:
·whether there is corroborating evidence of the condition;
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or planned in the next two years.
Subsection 6(6) provides that a condition is fully stabilised if:
·the person has undertaken reasonable treatment for the condition, and it is considered that 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
·the person has not undertaken reasonable treatment, but such treatment is not expected to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, and there is a medical or other compelling reason for the person not to undertake such treatment.
I will first consider whether Mr O’Connor’s conditions of ischaemic heart disease (IHD) and sleep apnoea attract impairment points, before turning to his other conditions.
Sleep Apnoea and IHD
In his oral evidence, Mr O’Connor explained that as a result of his sleep apnoea, most nights he gets less than an hour of sleep and that this in turn affects his judgement, causes him to get angry, and makes it hard for him to concentrate and get motivated to do things. He said that he last tried using a CPAP[3] machine for this condition in 2009, but found that the mask would move and blow air up into his eyes, and for that reason he could not tolerate it. Mr O’Connor said that he had tried a different mask but that it was “no good”.
[3] Continuous Positive Airways Pressure (CPAP).
With respect to his IHD, Mr O’Connor explained that he has had a stent put in and is currently using a spray and blood pressure tablets. He has been in communication with his general practitioner, Dr Wong, but has not seen a specialist recently for this condition. He said he is able to walk to and around a shopping centre, but gets short of breath and takes his spray with him due to chest pain. He said it currently took him 30 – 35 minutes to walk to his local supermarket, and he did this regularly, although not every day. Mr O’Connor also mentioned that he had been able to build a shelter in his front yard which he said had been completed about 12 months ago. He said he is able to do housework, but generally takes a break to watch television in between tasks.
The Tribunal also received oral evidence from Mr O’Connor’s treating general practitioner, Dr Wong, who confirmed that Mr O’Connor’s IHD is fully diagnosed, treated and stabilised, and that Mr O’Connor is able to walk to the shops and perform light household activities.
In relation to Mr O’Connor’s sleep apnoea, Dr Wong agreed that that condition was fully diagnosed, but expressed some reservations as to whether it was fully treated, noting that there could be some scope for Mr O’Connor to find a suitable mask and try the CPAP machine again, although he acknowledged that he was not an expert in that area. He noted that there was no medical verification before him to suggest that Mr O’Connor could not tolerate any masks at all. Dr Wong also explained that as a result of this condition, Mr O’Connor had been advised not to drive, but he was able to walk and perform lighter duties and activities of daily living, although perhaps not much gardening.
Mr Visser, who appeared on behalf of the respondent at the hearing, conceded that Mr O’Connor’s IHD and sleep apnoea conditions were both fully diagnosed, treated and stabilised, and I consider that concession to have been properly made, notwithstanding the reservation expressed by Dr Wong and referred to above. Accordingly, I am satisfied that each of these conditions can be assigned a rating under the Impairment Tables.
I consider that Table 1 is the applicable Table with respect to both of these conditions, and note that Table 1 relevantly provides as follows:
Table 1 – Functions requiring Physical Exertion and Stamina
Introduction to Table 1
· Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
o a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
o a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
o results of exercise, cardiac stress or treadmill testing.
Points
Descriptors
0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
In light of the evidence, Mr Visser submitted that Mr O’Connor’s IHD and sleep apnoea conditions would each attract 5 points under Table 1. However, he contended that only one impairment rating (of 5 points) could be assigned under Table 1 by virtue of s 10 of the Determination, which relevantly provides as follows:
Multiple conditions causing a common impairment
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
Having regard to the evidence, including that of Mr O’Connor himself, I am satisfied that Mr O’Connor is able to walk a significant distance to his local supermarket, and is able to perform day-to-day household activities without undue difficulty, and that this has been the case since 23 October 2012. I have therefore concluded that he does not meet the criteria for a rating of 10 under Table 1, although I consider he does meet the criteria for a rating of 5.
As I also accept the correctness of Mr Visser’s submission as to the effect of s 10 of the Determination relating to multiple conditions, I am accordingly satisfied on the evidence before me that Mr O’Connor’s IHD and sleep apnoea conditions attract a combined impairment rating of 5 points under Table 1.
Alcohol Abuse
In his evidence, Mr O’Connor said that he has a couple of beers each night, and drinks a lot more on weekends. Dr Wong confirmed that Mr O’Connor’s alcohol abuse condition is fully diagnosed, but said that Mr O’Connor “doesn’t want to stop drinking” and that if he did want to stop, there would be scope for treatment.
In light of Dr Wong’s evidence, which was consistent with Mr O’Connor’s own evidence, I am not satisfied that Mr O’Connor’s alcohol abuse condition has been fully treated and stabilised. Accordingly I am unable to assign any impairment points for this condition.
Gout
At the hearing Mr O’Connor explained that he experiences pain in his feet, ankles, knees and elbows as a result of his gout condition. He said that sometimes he feels like his knees are going to “give way” at home, which “they think is caused by alcohol”. He said that some days are better than others, and that a lot of the time he takes a beer with him when he goes walking because it helps him “put up with it”.
In his oral evidence, Dr Wong said that Mr O’Connor’s gout was fully diagnosed, treated and stabilised. In particular, he explained that Mr O’Connor only receives treatment when he has an attack of gout, and that in his opinion, Mr O’Connor does not require regular medication for the condition. However, Dr Wong also confirmed that alcohol consumption increases the incidence of gout attacks and agreed that Mr O’Connor could take further steps to reduce his gout symptoms by reducing his alcohol intake.
Dr Wong considered that Mr O’Connor would not be able to work for a few days following an attack of gout, until the symptoms had been controlled. He also considered that it would be difficult for Mr O’Connor to walk during an attack of gout, but agreed that he would be able to stand for 10 minutes.
In light of Dr Wong’s evidence as to the relationship between Mr O’Connor’s alcohol intake and his attacks of gout, I consider that his gout has not been fully treated and stabilised.
However, even if I was satisfied that Mr O’Connor’s gout condition had been fully treated and stabilised, I would assign a nil rating under the applicable Table, Table 3, in respect of this condition. That is because it is clear on the evidence that Mr O’Connor is not “unable to stand for more than 10 minutes” and does not need to “use a lower limb prosthesis or a walking stick” as contemplated by the criteria for a 5 point rating in Table 3.
Other Conditions
In medical reports completed by Dr Wong on 20 July 2013[4] and 17 January 2014,[5] Dr Wong indicated that Mr O’Connor is also suffering from some other medical conditions that cause ‘minimal or limited impact’ on his ability to function, including hypertension, tendonitis, GORD[6], nocturnal enuresis, and bilateral carpal tunnel syndrome.
[4] Exhibit 3.
[5] Exhibit 7.
[6] Gastro-oesophageal reflux disease.
Mr O’Connor did not agree that his bilateral carpal tunnel syndrome was of minimal or limited impact. In his oral evidence, he explained that his right hand is not as bad as his left, but said that pushing a shopping trolley or using electrical tools “sets off” the carpal tunnel symptoms in his left hand.
In his oral evidence, Dr Wong nevertheless maintained his view that all of these further conditions were of minimal or limited impact, although he acknowledged that Mr O’Connor’s bilateral carpal tunnel syndrome has not been assessed “for a while” and that he is not sure what the present status of that condition is. Accordingly, he agreed that that condition may not be fully treated and stabilised.
As I accept Dr Wong’s evidence that these further conditions are of minimal impact, I have concluded that even if I was satisfied that any of them had been fully diagnosed, treated and stabilised, they would nevertheless attract a nil rating under the applicable Impairment Tables.
Conclusion
As I have found that Mr O’Connor’s impairments attract a total rating of 5 points under the Impairment Tables, he does not satisfy subs 94(1)(b) of the Act. It follows that he does not qualify for DSP and it is not necessary for me to proceed to consider whether he has a continuing inability to work.
However, as Mr O’Connor made reference at the hearing to the potential significance of his not having been “off DSP for more than two years”, and contended that his DSP should not have been cancelled, I will proceed to make some observations about that issue.
RELEVANCE OF ‘GRANDFATHERING’ PROVISIONS
I understand from the Centrelink records before me[7] that Mr O’Connor’s DSP granted in 1998 was suspended for approximately seven months in 2005, and then again on 6 September 2006 because he was working. On 6 September 2008, following two years of suspension, Mr O’Connor’s DSP was cancelled.[8] On 14 July 2009, Mr O’Connor lodged a new claim for DSP, which was granted.[9] As I have alluded to above, following the Department’s review of Mr O’Connor’s ongoing eligibility for DSP in 2012, Mr O’Connor’s DSP was again cancelled.
[7] Exhibits 5 and 6.
[8] See subs 96(4) of the Social Security (Administration) Act 1999.
[9] See also the Job Capacity Assessment Report annexed to the respondent’s further submissions filed on 16 September 2014.
The Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 amended paragraph (a) of the definition of “work” in subs 94(5) by substituting “15 hours per week” for the previous “30 hours per week” requirement. That amendment applies in relation to DSP claims made on or after 1 July 2006.[10] However, DSP recipients whose claims were granted before that date continue to be assessed under the previous qualification rules,[11] known colloquially as ‘grandfathering’. As Mr O’Connor’s DSP was cancelled in 2008 and his most recent claim for DSP was made in 2009, he does not benefit from this ‘grandfathering’ provision and is subject to the “15 hour” rule.
[10] Item 13(1) in Schedule 2.
[11] Item 13(2) – (3) in Schedule 2.
In any event, as I have indicated above, the effect of the Department’s review of Mr O’Connor’s ongoing eligibility for DSP in 2012 is that he is subject to the Impairment Tables in force at that time, by virtue of subss 27(3) – (4) of the Act. As I have explained, since he does not have an impairment which attracts 20 or more points under these Tables, he no longer qualifies for DSP for that reason, and it is therefore not necessary for me to proceed to consider whether he has a “continuing inability to work” and satisfies the “15 hour” rule.
Whilst I accept that Mr O’Connor takes issue with the Impairment Tables and says that they do not allow for a fair assessment to be made of the severity of his conditions, because his impairments do not attract the requisite 20 points under the new Impairment Tables, I am obliged to affirm the decision under review.
For completeness, I note that Mr O’Connor was given an opportunity to provide written submissions in relation to the ‘grandfathering’ issue discussed immediately above, by way of response to the respondent’s written submissions filed and served on 16 September 2014. However in the event, he elected not to provide any written submissions.
DECISION
The decision under review is affirmed.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ...... [Sgd] .....................................
Associate
Dated 31 October 2014
Date of hearing 15 September 2014 Date final submissions received 16 September 2014 Applicant In person Advocate for the Respondent Mr C Visser Solicitors for the Respondent Department of Human Services
Program Litigation and Review Branch
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