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

[2020] AATA 3851

Geach and Secretary, Department of Social Services (Social services second review) [2020] AATA 3851 (2 October 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5995

Re:Mark Geach

APPLICANT

AndSecretary, Department of Social Services:  

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:2 October 2020

Place:Sydney

The decision under review is affirmed.

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

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – depression – myocardial infarction – arthritis – conditions all fully diagnosed, treated and stabilised – zero impairment rating for depression and arthritis – issue of impairment rating for myocardial infarction – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94(1)

Social Security (Administration) Act 1999 (Cth) Schedule 2, Part 2, Clause 4

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Mr S Evans, Member  

2 October 2020

INTRODUCTION

1. The applicant, Mark Geach, applied for disability support pension (“DSP”) on 1 March 2017.  His application was rejected by a delegate of the Secretary of the Department of Social Services (“the Respondent” also known as “Centrelink”) on 7 September 2017.  Mr Geach sought review of the decision to reject his application, which was affirmed by an Authorised Review Officer (“ARO”) on 12 June 2019 following a second Job Capacity Assessment (“JCA”).  Mr Geach appealed the decision of the ARO to the Social Services & Child Support Division of the Tribunal (“AAT1”) which affirmed the ARO’s decision on 2 September 2019.  Mr Geach now seeks review of the decision of the AAT1 at the General Division of this Tribunal. 

2. For reasons I shall explain, the decision under review will be affirmed.    

   HEARING

3. The matter was heard on 22 June 2020. Mr Geach was represented by his son William Geach and provided evidence to the Tribunal under affirmation. Mr Geach, his representative and the representative of the Respondent appeared via telephone in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).

   CRITERIA TO BE APPLIED

   Qualification for disability support pension

4. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of 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;…

5. The Impairment Tables[1] referred to in paragraph 94(1)(b) of the Act, are designed to assign ratings to determine the level of functional impact that an impairment has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, fully treated and fully stabilised and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

   [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Impairment Tables”).

6. Subsection 6(6) of Part 2 of the Impairment Tables sets out the requirements for a condition to be fully stabilised:

   (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 2 years; or

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

   (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 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.

7. Reasonable treatment is defined at subsection 6(7) of the Impairment Tables as treatment that:

   (a)is available at a location reasonably accessible to the person; and

   (b)is at a reasonable cost; and

   (c)can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)is regularly undertaken or performed; and

   (e)has a high success rate; and

   (f)carries a low risk to the person.

   The qualification period

8. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by Schedule 2, Part 2, Clause 4 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

9. As noted, Mr Geach lodged his claim for DSP on 1 March 2017 and that triggers the assessment process to determine the eligibility of the applicant. Mr Geach must qualify for DSP on the date of the claim or within 13 weeks thereafter (i.e. 31 May 2017). I will refer to this as the “qualification period”.

10. The practical implications for this matter are that the Tribunal can only consider Mr Geach’s conditions and qualification for DSP during the qualification period.

11. Following this, the Tribunal notes that the medical reports that come into being after the relevant period are only pertinent to the extent that they refer to Mr Geach’s conditions during the qualification period.

    Continuing inability to work

12. Paragraph 94(1)(c)(i) of the Act requires that to be eligible for DSP a person must have a continuing inability to work.

13. Subsection 94(2) of the Act states that the requirement for a continuing inability to work is satisfied if either, the person has a severe impairment – meaning they have an impairment of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table; or alternatively, they have actively participated in a “program of support” and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, in the next two years.

    ISSUES

14. The issue for the Tribunal to determine is whether Mr Geach qualified for the DSP during the qualification period.

    BACKGROUND

15. Mr Geach was working as a corrections officer which he describes as a ‘desk job’ but concedes involved a lot of driving.  He was living and caring for his elderly mother in March 2017 when he applied for DSP. 

16. Following the rejection of his application, Mr Geach returned to work from March 2018 through to September 2018.  He told the Tribunal that he ‘was at the point of lying under the desk’ during this period because of his condition but for financial reasons he had no alternative but to return to work. 

17. At the hearing he testified that his conditions had worsened but ‘they were bad when I started the job’.  In relation to his period of work after making his DSP application, Mr Geach told the hearing:

    I was lucky I got through to what I did and it’s only because I’ve worked my whole life and I couldn’t live on the dole.  I had things I had to deal with and you guys [Centrelink] are telling me, oh well, he’s all right and - and it was just belligerence that made me do it but, unfortunately, it - it accelerated a lot of problems I already had and - and here I am today. 

18. Mr Geach was granted DSP on 25 June 2019 following a separate application for DSP.

    EVIDENCE AND CONDITIONS

19. Mr Geach applied for DSP on the basis of depression, myocardial infarction and arthritis.  In his application dated 1 March 2017, when asked to list any disabilities, illnesses or injuries he wrote in part: 

    Immune system disorder, chronic skin disorder, bleeding, bruising, fluid build up, affects urination, caused ear and head aches and other pains requiring hospitalisation, nausea, energy loss & depression.  Osteoporosis & arthritis pain in skeleton & joints at times disabling disorder has progressively gotten worse over more than 30 years and I’m now unable to work.[2]

    [2] Section 37 documents, 223.

20. A JCA dated 8 June 2017[3] was completed shortly after his application for DSP.  The assessment considered Mr Geach’s depression, myocardial infarction and arthritis, and concluded that all of Mr Geach’s claimed conditions were fully diagnosed, treated and stabilised.  It was determined that the appropriate impairment rating for each condition was zero points.  Mr Geach was assessed as having a baseline work capacity of 8-14 hours per week and his application was subsequently rejected on 7 September 2017.

    [3] Ibid 229.

21. Mr Geach did not raise any objection to the impairment rating assigned to his depression or arthritis with the Tribunal.  The Impairment Tables require that when making an assessment of functional impact, a diagnosed condition does not necessarily mean that there will be a functional impact. There is a dearth of evidence before the Tribunal in relation to the functional impact of Mr Geach’s arthritis and depression, and consequently I consider the allocation of zero impairment points for both these conditions is appropriate. 

22. In relation to Mr Geach’s heart condition, it is recorded in the JCA that there is no functional impact on activities requiring physical exertion or stamina.  This conclusion is based on Mr Geach being able to undertake appropriate exercise for his age for at least 30 minutes at a time and having no difficulty completing physically active tasks around his home and community.  It is also written that Mr Geach ‘attempts to take his dog for a walk most days up to 3km’ and that he ‘lives alone and undertakes activities of daily living despite some difficulty with heavier tasks’.[4]

    [4] Section 37 documents, 234.

23. Towards the end of the JCA, it is noted that the assessor unsuccessfully attempted to contact Mr Geach’s general practitioner Dr S Balasingam on three occasions after which it is written ‘[t]herefore a zero rating is applied’. 

24. On 20 November 2017, following the rejection of his application, Mr Geach requested a review of the decision by an ARO. 

25. A report was prepared by Dr Chung-Yao Yu at the Rockvale Cardiac Centre dated 11 September 2017 was provided to Centrelink in which he writes to Dr Brownlie: 

    Thank you for referring [Mr Geach] today. He has denied any significant chest pain but states that he has had a few attacks of oesophagitis.  This usually resolves after antacids.  He denies any exertional chest pain or significant dysrhythmia.  His blood pressure has recently increased and also this is accompanied with some thumping of the heart….

    Unfortunately [Mr Geach] is still smoking and is currently suffering a bit from widespread folliculitis.  He is currently between jobs and was unable to work temporarily because of this.[5]

    [5] Ibid 243.

26. Dr Brownlie completed a Centrelink Medical Certificate dated 22 August 2018 in which he confirms Mr Geach is suffering from heart failure and ischaemic heart disease with symptoms of ‘ejection fraction 34, breathless, fluid retention’ and ‘chest pain’.  He concludes the conditions were likely to persist. 

27. In what appears to be part of the review process, the Respondent requested a Disability Support Pension Medical Assessment Recommendation in which an assessor recommended ‘Job Capacity Assessment required’ on 16 November 2018 and notes under rationale:

    Disability Support Pension Medical Assessment Recommendation for Internal Review- Assessment of medical eligibility at Date of Claim: 2/03/2017, including 13 weeks thereafter: 

    A Job Capacity Assessment (JCA) report dated 25/05/2017, allocated 0 points…

    Additional information has since been provided.

    Ischaemic Heart Disease:

    The condition of MI (Heart Attack) was previously deemed permanent and fully diagnosed, treated and stabilised, but could not be assigned any points due to lack of supporting medical evidence.  A report from Dr Chung Yao Yu, Cardiologist, dated 6/09/2017, verified the condition of Ischaemic Heart Disease and indicated symptoms of bipedal oedema. Medical certificates from Dr Brownlie, GP, dated 22/8/2018, 12/11/2018, indicated heart failure and IHD and provided information on symptoms.[6]

    [6] Section 37 documents, 247-248.

28. A further JCA was completed, dated 18 December 2018 (“the second JCA”) and considered only Mr Geach’s ischaemic heart disease.  The second JCA found that Mr Geach’s heart condition was appropriately rated 20 points under Table 1.[7]

    [7] Ibid 251.

29. A Disability Medical Assessment completed for the Respondent by a government- contracted doctor was submitted on 2 January 2019.  The assessment also concludes that, based on Dr Phillip Brownlie’s medical certificate dated 12 November 2018, Mr Geach’s ischaemic heart disease was fully diagnosed, treated and stabilised and attracted an impairment rating of 20 points.  

30. Despite the findings of the second JCA and the Medical Assessment, the ARO affirmed the decision to reject Mr Geach’s application on 12 June 2019.  The ARO notes regarding the decision to affirm the decision record in part: 

    [Mr Geach] explained that his condition was worse now than what it was in March 2017.  Explained to customer [Mr Geach] that I needed to determine whether he met the qualifications [during the qualification period] including whether he had a capacity for work of at least 15 hours per week.  Customer understandably frustrated as was told he was told he would be eligible for the Disability Support Pension after he had his Government-contracted doctor appointment.  I explained this was incorrect as he would needed to have lodged another claim. 

    At the time of his claim an assessment was made that he had capacity of 15 hours per week which I agree with.  I also pointed out how customer had returned to work until he ceased in July 2018 and was working more than 15 hours per week. 

    At the time of claim customer agreed he was able to walk his dog for 3km each day.  So the functional impact of his heart disease was correctly assessed at 0 points under Table 1…

31. On 7 September 2017,[8] Dr Chung Yu provided a diagnosis for Mr Geach as follows:

    1.     Moderate left ventricular dilation and mild to moderate segmental impairment of systolic function LVEF=42%

    2.    Mild mitral, tricuspid and aortic regurgitation

    3.    Normal right ventricular size and systolic function and mildly elevated peak systolic pulmonary pressures.

    [8] Section 37 documents, 239.

32. On 8 March 2019, Dr Chung Yu reported a diagnosis of: 

    1.    Mild left ventricular dilation, moderately increased wall thickness and mild segmental impairment of systolic function at rest. LVEF=46%

    2.    Mild mitral, tricuspid and aortic regurgitation and mild bi-atrial dilation

    3.    Aortic sclerosis, mild to moderate aortic regurgitation and mild ascending aorta dilation.

33. In considering Dr Chung Yu’s reports, it is apparent that Mr Geach’s condition received a consistent diagnosis in the two years between September 2017 and March 2019. 

    CONTENTIONS OF THE PARTIES

34. The Respondent contends that Mr Geach returning to work on a full-time basis between March and September 2018 and his evidence regarding the walking of his dog indicates that the impairment rating of zero points under Table 1 was appropriate during the qualification period.  It is also submitted that there is no medical evidence or self-reporting to support a higher impairment rating during the qualification period and that Mr Geach has conceded that his condition worsened since the qualification period. 

35. The Respondent submits that as the medical assessment where Mr Geach was found to qualify for 20 points under Table 1 was performed after the qualification period and relies on evidence provided after the qualification period by Mr Geach’s general practitioner, it was legitimate that the ARO decided not to rely on it.

36. Mr Geach contends that there was adequate evidence regarding his heart disease at the time of the initial application to determine that he was eligible for 20 points under Table 1.  He also disputes that he told the assessor that he was able to walk his dog for three kilometres.  He told the Tribunal at hearing:

    I used to drive 3 kilometres to try to walk my dog.  It’s a little place out of town where it’s nice and flat.  I went into detail with it and I’d walk down.  I had my stumps I could sit on.  The dog would run ahead.  It would take me three hours.  I’d go as far as I could.  I’d walked back to my car and I’d drive 3 kilometres back to town.  That’s what that conversation was about.

37. It is submitted that the June 2017 JCA was ‘full of discrepancies’ and that the Respondent’s internal appeal process took too long for Mr Geach to provide evidence which could be applied to the qualification period. 

    CONSIDERATION

38. The Tribunal is required to make a determination based on the totality of the evidence which is currently available in so much as that evidence can be related to Mr Geach’s condition during the qualification period.  As the Tribunal noted in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (“Bobera”):

    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. 

39. I found Mr Geach to be a credible witness and I accept his evidence including that he was unable to walk for three kilometres as recorded by the JCA.  I do so on the basis of both his credibility and the inconsistency of his recorded level of activity with the medical conditions which were accepted by the Respondent as being fully diagnosed, treated and stabilised at that time.  

40. In reaching the conclusion that Mr Geach’s heart condition warrants an impairment rating of 20 points, the second JCA relies on the first JCA, the first report from Dr Yu dated 6 September 2017 and the medical certificates from Mr Geach’s general practitioner Dr Brownlie dated 22 August and 12 November 2018. 

41. Whilst I accept that the first JCA mistakenly relied on incorrectly reported evidence to reach the conclusion that Mr Geach was more active than he was, the other evidence on which the determination that Mr Geach had a severe impairment was not available until some four months or more after the qualification period.  I refer once again to Bobera in which the Tribunal emphasised that: 

    …it is the task of the Tribunal to examine only the state of Mr Bobera’s health during the assessment period … That examination is to be based primarily on the medical and other evidence available at that time.

    [Emphasis added]

42. The evidence as available at the time of Mr Geach’s application, or available to the Tribunal now and applicable to his condition during the qualification period, is insufficient to find that his condition warranted 20 points under Table 1.  

43. This conclusion gives reason to consider Mr Geach’s contention that had the Respondent’s internal review process taken less time, he may have been able to provide further evidence that was relevant to his condition during the qualification period.  As mentioned, the application was made on 1 March 2017 and rejected on 7 September 2017.  In the interim he attended a face-to-face assessment on 25 May 2017 and the JCA was completed following the assessment on 8 June 2017.  It is unclear why a period of nearly three months passed before the decision was made on Mr Geach’s application on 7 September 2017. 

44. Mr Geach was in receipt of Newstart allowance prior to being granted DSP on 25 June 2019.  Centrelink records confirm that Mr Geach was awaiting the outcome of his appeal of the March 2017 DSP application on 10 April 2019.  On 12 June 2019, Centrelink records confirm that the decision to reject Mr Geach’s March 2017 DSP application was again affirmed and Mr Geach was informed as such.  He has subsequently made his successful application for DSP. 

1. Had Mr Geach made a further application for DSP following the second JCA, which determined he had a severe impairment, it is apparent that he may have been qualified for DSP at that time.  Not unreasonably, he chose instead to wait for the outcome of his appeal of his March 2017 application. The course of events supports a conclusion that Mr Geach was of the understanding that his additional medical evidence and the Respondent’s own assessments would support his original DSP application, which was not the case.

2. It is particularly unfortunate that it appears he was unaware or not informed of this by the Respondent earlier in the review process.  If Mr Geach had submitted another DSP application earlier than he eventually did, the evidence supports the conclusion he may have begun to receive DSP from as early as December 2018 following completion of the second JCA.  It may also have spared the Respondent from conducting further reviews of the original application. 

3. In light of these findings I have considered if the Tribunal can backdate Mr Geach’s DSP. The date from which a successful claim is payable is the ‘start date’ set out in sections 41 and 42 of the Administration Act, under which the start date is the ‘day on which the claim is made’. As such, it is not possible for the Tribunal, acting as decision maker, to backdate Mr Geach’s application for DSP.

   CONCLUSION

4. As Mr Geach did not have an impairment rating of 20 points during the qualification period, he does not satisfy the eligibility criteria set out in section 94(1)(b) of the Act and his claim cannot succeed.

   DECISION

5. For the reasons stated above, the decision of the AAT1 dated 2 September 2019 is affirmed.  

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 2 October 2020

Date of hearing:	22 June 2020
Advocate for the Applicant:	Mr W Geach
Solicitors for the Respondent:	Ms C Campbell, Services Australia