Gill and Secretary, Department of Social Services (Social services second review)
[2016] AATA 739
•23 September 2016
Gill and Secretary, Department of Social Services (Social services second review) [2016] AATA 739 (23 September 2016)
Division
GENERAL DIVISION
File Number
2015/5818
Re
Charmaine GILL
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal D. J. Morris, Member
Date 23 September 2016 Place Perth The Tribunal affirms the reviewable decision.
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D. J. Morris, Member
CATCHWORDS
SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – recent injury – treatment recommended but not yet undertaken – not qualified for DSP – decision affirmed
LEGISLATION
Social Security Act 1991 – s 94 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2) – s 94(5)
Social Security (Administration) Act 1999 – Schedule 2, Clause 4
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
D. J. Morris, Member
23 September 2016
BACKGROUND
Ms Charmaine Gill seeks a review of the decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 6 October 2015. The AAT1 affirmed the decision of the Department of Social Services (‘the Department’) that Ms Gill is not qualified for Disability Support Pension (DSP).
The hearing was held on 25 August 2016. The Applicant was self-represented. She was accompanied at the hearing by a support person, Ms Nicole Hitchens of Midland Information Debt and Legal Advocacy Service (Midlas).
The Respondent was represented by counsel, Ms Ada Wong. Ms Gill gave evidence and was cross-examined by counsel for the Respondent.
The Respondent tendered documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents).
The Applicant tendered additional documents:
·Facsimile of 58 pages from Midlas, sent to the Tribunal on 4 March 2016 (Exhibit A1);
·A further facsimile of 58 pages from Midlas, sent to the Tribunal on 4 March 2016 (Exhibit A2);
·A facsimile of 31 pages from Midlas, sent to the Tribunal on 4 March 2016 (Exhibit A3);
·Centrelink Medical Certificate dated 31 December 2015 signed by Dr Mark Weedon (Exhibit A4); and
·Medical letter from Dr Donald Johnson dated 19 November 2015 (Exhibit A4 verso).
At the conclusion of the hearing, the Applicant was to provide an additional submission that she wanted to make in regard to one piece of material in the section 37 documents that she could not locate during the hearing. I made directions in relation to further submissions. The Applicant provided an additional submission on 1 September 2016, and the Respondent provided a response to that additional submission on 6 September 2016. This material was also taken into account by the Tribunal.
FACTS
Ms Gill lodged a written claim for DSP with the Department on 26 September 2014.
Qualification for DSP under the Act
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has –
(a) a physical, psychological or mental impairment; and
(b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and
(c) a continuing inability to work.
The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.
The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.
Section 94 is a conjunctive section of the Act. Accordingly, for a person to be qualified for DSP, the person must have: First, impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.
An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, that assignment means the impairment is assessed to be a ‘severe’ impairment. If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act apply to their claim. Section 94(2) sets out the requirements for a person to participate in an approved program of support.
What is the relevant period for considering the claim?
The Social Security (Administration) Act 1999 provides, at clause 4(1) of Schedule 2, as follows:
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Applying this provision, if the Applicant is found not to have been qualified for DSP on the date she lodged her claim, 26 September 2014, but to have become qualified on a date within a period thirteen weeks thereafter, concluding on 26 December 2014, then the claim is to be deemed to have been made on the day Ms Gill became so qualified.
We will describe this period as ‘the relevant period’, and this is the temporal ‘window’ to assess the person’s qualifications, under this claim, for DSP.
I reminded both the Applicant and the Respondent at the hearing that, difficult as it sometimes can be when a significant amount of time has elapsed since the date of the claim, in this case almost 2 years, evidence about medical conditions and impacts on activities, and contentions from both parties about the merits of the decision must be directly referrable to the relevant period.
APPLYING THE LAW
Does the Applicant have a physical, intellectual or psychiatric impairment?
The T documents and the other documents tendered by the Applicant included a large number of Workers Compensation medical certificates and other medical reports detailing the medical history of Ms Gill.
The most proximate medical report to the date she lodged her claim is that of Dr Mark Weedon, general practitioner, dated 27 November 2014. In that report, Dr Weedon said that the medical condition with the most impact on the Applicant was “Chronic regional pain syndrome left lower leg after fractured ankle and operative internal fixation of fracture”. He stated that the date of onset was 24 January 2014. Dr Weedon said that the diagnosis of this condition is corroborated by Dr Hamid Hamzah, pain specialist, and Mr Gavin Clark, orthopaedic surgeon.
The next medical condition in Dr Weedon’s report was listed as “Degenerative changes in lumbar spine with chronic low back pain and variable radicular pain into right leg.” He dated the onset of this condition as November 2010, and said the diagnosis was corroborated by Dr Ramon Sheehan, radiologist, and Dr Hamzah.
In his medical certificate of 31 December 2015 (Exhibit A1), Dr Weedon varied the date of onset to ‘March 2014’. In addition, Dr Mary Wyatt, occupational physician, reported on 7 July 2011 (Exhibit A1) that the Applicant had been diagnosed with spondylolisthesis after experiencing back pain at work and having an MRI.
Dr Weedon listed a third medical condition: Adult Attention Deficit Disorder (AADD), which he stated is generally well managed and causes minimal or limited impact on the Applicant’s ability to function. Dr Weedon in his medical certificate of 31 December 2015 also listed Depression as a condition of the Applicant, with a date of onset of ‘March 2014’.
The Respondent conceded that the Applicant has impairments, namely a spinal condition and AADD, which are fully diagnosed, fully treated and fully stabilised and therefore ‘permanent’ in terms of the requirements of section 94 of the Act.
It would seem to me that the preferable date of onset of the Applicant’s degenerative spinal condition is 2011, as confirmed by an MRI at that time in Dr Wyatt’s medical report.
The weight of medical evidence leads me to find that the Applicant does have permanent impairment, and so her claim satisfied section 94(1)(a) in the relevant period.
If so, what is the correct rating under the Impairment Tables?
When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.
In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.
In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner, and the condition must be fully treated and fully stabilised.
Medical conditions
Spinal condition
Dr Michael Fallon, radiologist, in his report in the T-documents (page 35) stated that he performed an MRI on Ms Gill on 7 June 2011 which showed:
1. Grade 1 spondyltic spondylolisthesis at L5/S1 with approximately 4 mm anterolisthesis of the L5 vertebral body. There is moderately severe craniocaudal foraminal stenosis on the right with mild flattening of the exiting right L5 nerve. Moderate foraminal stenosis is present on the left side.
2. Right L5/S1 facet joint arthropathy.
In order to assess the correct impairment rating for a spinal condition, the correct Impairment Table is Table 4.
The Applicant gave evidence that ‘some days are better than others’ in terms of her movement and motion. She said that she had a work-related accident in 2010 and then suffered a further accident in 2014.
The January 2014 accident occurred while the Applicant was holidaying in Bali. She stayed at a resort she had visited several times over the years. She damaged her leg on a waterslide and required surgery, including the insertion of a number of screws into her ankle. She was on crutches until August 2014. Her ankle and leg condition is referred to below.
In her 1 September 2016 submission, the Applicant said that going on the waterslide was an error of judgement. She said:
I got myself into a position that I was unable to correct, this was due to not having a great range of motion. I was unable to get my left leg into position, which resulted in me breaking my leg.
It may be that the Applicant’s existing spinal condition somewhat inhibited her movements and may have prevented her correcting her position at the time, contributing to the leg and ankle injury. But Rule 8(1) of the Minister’s Determination states that evidence of symptoms solely reported from a person in relation to a medical condition cannot be taken into account in regard to assigning impairment points; such symptoms must have corroborating evidence as set out in the Introduction to each Table.
In October 2014 the Applicant again visited Bali. She travelled with family members. She gave evidence that she relaxed and did some walking but did not go to the Water Park or ride a scooter because of her residual leg problems – her leg and ankle were improving, but were not healed.
She gave evidence that she used to enjoy dog training. She started dog obedience training around February 2012 and found walking the dog useful as both exercise and as part of her medical rehabilitation.
Ms Gill told the Tribunal that she used to drive but currently did not because her medication (particularly Lyrica) made her drowsy.
The Descriptors in Table 4 relating to assessing whether there is a moderate functional impact on activities involving spinal function are:
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
Ms Gill told the face to face Job Capacity Assessor on 23 January 2015 that she had some pain in the cervical spine region but could wash her hair and hang out clothes on the line. She said she could bend to the floor if squatting but had some difficulty with static postures. She told the Tribunal that she didn’t currently drive owing to drowsiness from her medication, not that she had any difficulty with turning her neck or trunk. She said she would be able to drive short distances, but for the medication.
The Applicant said that her parents did most of her household chores at the relevant period but she could clean and cook if she had to. She walks her dogs but has not taken her dogs to training since January 2014.
The Tribunal notes that the Applicant travelled to Bali in October 2014, a flying time of some 3.5 hours each way. The Tribunal also noted that the Applicant switched between standing and sitting during the hearing, to ease her back discomfort.
Taking into account the medical history, what the Applicant told the Job Capacity Assessor and what she said in evidence at the hearing, Ms Gill’s spinal condition does not achieve a ‘moderate impact’ level in terms of applying the Descriptors to the functional impact on her daily life. I do accept that there is a mild impact, as is clear from professional opinion of her doctors and on her own evidence under cross-examination.
I therefore find that the Applicant’s spinal condition is correctly assigned 5 impairment points.
AADD condition
In his medical letter to Dr Mark Weedon, the Applicant’s general practitioner, dated 10 November 2014, Dr Zlatan Golic, psychiatrist, referred to an earlier diagnosis of “ADD (adult)” by Professor George Lipton, psychiatrist, with which he concurred. Dr Golic says that the Applicant had been prescribed Amitriptyline and Lyrica and that the Applicant told him she had found the medication significantly reduced her neurological pain.
Ms Gill told the Employment Services Assessor on 2 December 2014 that her AADD condition was well managed with Dexamphetamine and noted to the Assessor that she had travelled overseas for two weeks in October 2014.
AADD should properly be considered under Impairment Table 5, which relates to a person’s Mental Health Condition. On the Descriptors in Table 5, the ‘mild functional impacts’ do not apply to the Applicant. She gave no evidence of difficulties with self-care and independent living, nor with social/recreational activities and travel – evinced by her holiday travel to Bali with family and, at home, her obedience work with her dogs. While she said she sometimes had some trouble with concentration, she did not give evidence that that had a significant impact on her daily life. In particular, she told the Tribunal about what reactional activities she would usually engage in on her holidays to Bali, and the reason they were curtailed on her most recent visit was owing to her healing leg and ankle injury, not for other reasons.
I find that there is no functional impact on the Applicant from her AADD condition so therefore, under Rule 11(5) of the Minister’s Determination it must be assigned zero points.
Depressive condition
The Tribunal had before it a letter dated 26 February 2015 from Adele Summers, clinical psychologist. Ms Summers saw the Applicant earlier in February 2015 and made certain recommendations to Dr Weedon: placing Ms Gill on her therapy waiting list for short-term education/therapy for pain management; and requesting that Dr Weedon refer Ms Gill to a local clinical psychologist for mood management and support.
As clearly the Applicant’s recommended treatment was still being undertaken after the relevant period, it would be incongruous for me to determine that her depressive condition was fully treated and fully stabilised during the relevant period for this claim.
This is supported by a report dated 29 March 2015, after the relevant period, from Ms Jane Sampson, clinical psychologist. Ms Sampson examined the Applicant and assessed her against using the DASS (depression, anxiety and stress scale) which indicated “severe levels of depression, moderate levels of stress and no clinical symptoms of anxiety”. Ms Sampson noted a treatment plan had been developed and therapy sessions arranged. This does not seem, on the face, a diagnosis but in any event it militates against my finding that this condition was fully treated or fully stabilised in the relevant period.
Accordingly the Tribunal finds that this condition cannot be correctly assigned impairment points under the Impairment Tables.
CONCLUSION
For a person to be eligible for DSP, each sub-part of section 94 of the Act must be satisfied. The Tribunal has found that Ms Gill is correctly allocated a total of 5 points under the Impairment Tables in the relevant period.
The requirement of section 94(1)(b) of the Act of attaining 20 or more points is therefore not satisfied during the relevant period.
As the claim fails to satisfy this subsection, it is not necessary for me to go on to consider whether the Applicant satisfies the other provisions of the Act relating to a continuing inability to work.
Unfortunately for the Applicant, the consequence is that the Department’s original decision that the Applicant was not qualified for DSP in the relevant period was the correct decision.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member ......[Sgd]..................................................................
Administrative Assistant
Dated 23 September 2016
Date of hearing 25 August 2016 Date final submissions received 6 September 2016 Applicant In person Representative for the
RespondentMs A Wong Solicitors for the Respondent
Mills Oakley Lawyers
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Jurisdiction
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Standing
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Statutory Construction
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