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

[2015] AATA 800

Glinster and Secretary, Department of Social Services (Social services second review) [2015] AATA 800 (15 October 2015)

Division	GENERAL DIVISION
File Number	2014/4545
Re	Keven Glinster
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	15 October 2015
Place	Brisbane

The Tribunal affirms the decision under review.

........................[Sgd]................................................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – unlimited portability - whether 20 points or more under the impairment tables during the relevant period – whether conditions are fully diagnosed, treated and stabilised - value of medical evidence – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 27, 94, 1218AAA

Social Security (Administration) Act 1999

CASES

Scrivener and Secretary, Department of Social Services [2014] AATA 537

Morton and Secretary, Department of Social Services [2014] AATA 949

WMKR and Secretary, Department of Social Services [2015] AATA 483

Shi v Migration AgentsRegistration Authority [2008] 235 CLR 286

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A C Cotter

15 October 2015

INTRODUCTION

1. Mr Keven Glinster has been receiving Disability Support Pension (“DSP”) since 2001.

2. In July 2013, he contacted the Department of Human Services, inquiring about making a claim for unlimited portability for his DSP. Mr Glinster says that his partner lives in the Philippines and that he has no one in Australia who can provide the level of care that he requires.[1] He therefore wants to live in the Philippines where his partner can care for him.

   [1] He told me that his father lives locally, but he is 75 years of age.

3. In August 2013, he lodged a DSP Review for Portability Medical Report completed by his general practitioner. He was subsequently assessed by a Job Capacity Assessor (“JCA”) in October 2013, but for some reason, it appears that the report may not have been submitted until the following May.[2]

   [2] The report indicates an assessment date of 16 October 2013 but was submitted on 16 May 2014: see Exhibit 1, T Documents, T 22, page 197.

4. In the meantime, Mr Glinster travelled to the Philippines.  His DSP was suspended on 18 May 2014 as he had been overseas longer than six weeks. It was reinstated on his return to Australia in June 2014.

5. Mr Glinster’s claim for unlimited portability was declined on 20 May 2014. He sought a review, but an Authorised Review Officer affirmed the decision. Mr Glinster’s application for review to the Social Security Appeals Tribunal (“SSAT”) was also unsuccessful. Dissatisfied with that decision, he has sought a review by this Tribunal.

   THE LEGISLATIVE FRAMEWORK

6. Generally speaking, at the time of Mr Glinster making his request, the maximum portability period for a temporary absence overseas by a DSP recipient was six weeks.[3]

   [3] That has since been amended, but it is not material to the present matter. See s 1217 of the Social Security Act 1991 (Cth).

7. However, s 1218AAA(1) of the Social Security Act 1999 (Cth) (“Act”) provides that the Secretary may make a written determination that a person’s maximum portability period for DSP is an unlimited period if all of the following circumstances exist:

   (a)the person is receiving DSP;

   (b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of s 94(3B)) of the Act;

   (c)the Secretary is satisfied that the person will have that severe impairment for at least the next five years; and

   (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent them from performing any work independently of a program of support (within the meaning of s 94(4)) within the next five years.

8. The term “severe impairment” is defined in s 94(3B) in the following way:

   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.

   ISSUES FOR THE TRIBUNAL

9. The issue I have to determine is whether Mr Glinster qualified for unlimited portability for his DSP.

10. There being no dispute that he was receiving DSP at the time of his request, the specific questions I have to address are:

    Whether any of Mr Glinster’s impairments were a “severe impairment”;

    (b)If so, whether he would have that impairment for at least five years; and

    (c)Whether, if Mr Glinster were in Australia, the severe impairment would prevent him from performing any work independently of a program of support within the following five years.

11. Before I deal with those questions, there is a matter that I should address which was raised by the Secretary’s representative.  It concerns the approach to be adopted in making a decision under s 1218AAA and the fact that, in recent times in particular, there has been a lack of consistency in approach within the Tribunal on that question.

12. In Scrivener and Secretary, Department of Social Services, it was said that the issue of whether all the requirements in s 1218AAA are met is to be determined as at the date the applicant advises Centrelink that he or she is considering travelling overseas.[4] However, in a matter decided a few months later, Morton and Secretary, Department of Social Services, the presiding member disagreed with that approach and concluded that the task of the Tribunal is “to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision”.[5]

    [4] [2014] AATA 537, at [6].

    [5] [2014] AATA 949, at [48].

13. The matter was further considered earlier this year in WMKR and Secretary, Department of Social Services[6] (“WMKR”). In that matter, the presiding member considered that the question of eligibility must be determined at the date of claim, applying the legislation then in force, and subsequently as circumstances demand:

    There is no barrier to the Tribunal considering a claimant’s eligibility for indefinite portability of DSP from the date of the claim or request that commenced the decision-making process leading to the application for review by the Tribunal up to the present, and to do so on the materials placed before it, whether or not those materials were before the original or intermediate decision makers.

    ….As with many kinds of income support decisions concerning qualification, entitlement or payability, an assessment should be made at the time of claim, or such date as the legislation requires (or allows) – see s 11 of the Social Security (Administration ) Act 1999 and related provisions of this Act dealing with start date rules.[7]

    [6] [2015] AATA 483, at [24] to [35].

    [7] [2015] AATA 483, at [31] and [33].

14. Having considered the various decisions, I am inclined to favour the approach in WMKR, which I believe to be consistent with that adopted in determining qualification for social security, such as DSP. It is also consistent with the decision of the High Court in Shi v Migration Agents Registration Authority.[8]

    [8] (2008) 235 CLR 286.

15. In those circumstances, I consider the relevant date to consider Mr Glinster’s request is 20 August 2013, being the date on which his request for unlimited portability was made.

    CONSIDERATION

    Does Mr Glinster have a “severe impairment”?

16. Based on the material before me, Mr Glinster suffers from three conditions, namely, Spinal Canal Stenosis, Nail Pateller Syndrome, and bowel and bladder incontinence. I deal with each below.

    Spinal Canal Stenosis

17. In his report[9] which supported Mr Glinster’s request, his general practitioner, Dr Hoe Bing Lo, noted the date of onset of this condition as 11 July 2008, with diagnosis in November of that year confirmed by an orthopaedic specialist. Current treatment was described as medication. As regards future treatment, Dr Lo noted that it is “not possible to treat”[10] and that it was a degenerative disease.[11]  The current symptoms were described as numbness in the right leg, loss of sensation and saddle anaesthesia.[12] As to its impact on Mr Glinster’s ability to function, Dr Lo observed that it caused a decrease in his endurance, movement and memory, and that Mr Glinster required help from his girlfriend. The doctor expected that impact on function to persist for more than five years.[13]

    [9] Exhibit 1, T Documents, T18, pages 177 to 186.

    [10] Exhibit 1, T Documents, T18, page 180.

    [11] Exhibit 1, T Documents, T18, page 181.

    [12] Exhibit 1, T Documents, T18, page 180.

    [13] Exhibit 1, T Documents, T18, page 181.

18. The JCA who saw Mr Glinster in October 2013 recommended that five points be assigned in respect of this impairment, noting Dr Lo’s remarks that Mr Glinster suffered from chronic pain and had difficulty walking, sitting and standing for long periods.[14] The JCA who saw him most recently, on 10 August this year, recommended the same rating under Table 4, observing that Mr Glinster reported difficulty bending to knee level and that he would be unable to undertake that activity repetitively.[15]

    [14] Exhibit 1, T Documents, T22, page 199.

    [15] Exhibit 5 (f), Job Capacity Assessment report, 20 August 2015, page 3.

19. Based on those observations and assessments, and in the absence of any further evidence, it seems clear to me that Mr Glinster could not be said to have suffered a severe impairment in respect of this condition at the relevant time.

    Nail Patellar Syndrome

20. In his report of 20 August 2013,[16] Dr Lo indicated that the diagnosis of this condition had been confirmed by a specialist, Dr Bill Clarke. A copy of Dr Clarke’s report of January 1984[17] was also provided to the Tribunal.  As to treatment, Dr Lo indicated that none was available as the condition is congenital and therefore, it is to be conservatively managed.[18] The impact of the condition on Mr Glinster’s ability to function was described as reduced movement and dexterity, which was likely to persist for more than five years, and indeed, deteriorate over that time.[19]

    [16] Exhibit 1, T Documents, T 18, pages 177 to 186.

    [17] Exhibit 1, T Documents, T 5, page 106.

    [18] Exhibit 1, T Documents, T 18, pages 182, 183 and 184.

    [19] Exhibit 1, T Documents, T 18, page 184.

21. Based on Dr Clarke’s diagnosis and Dr Lo’s report, I am satisfied that the condition was fully diagnosed, treated and stabilised.

22. The JCA who saw Mr Glinster in October 2013 noted that he reported being unable to fully straighten his elbows and move his wrists; he was limited in his ability to reach up or out and had difficulty with lifting, carrying and handling small objects.  He complained of constant aching to both legs, as well as weakness and loss of function. Mr Glinster reported being able to stand or walk for 10 minutes but had difficulty with stairs and uneven ground; he leaned on a shopping trolley when walking around a supermarket. On that basis, the JCA recommended that five points each be assigned under Tables 2 (Upper Limb Function) and 3 (Lower Limb Function).[20] The most recent JCA assessment, conducted in August this year, did not alter that recommendation.[21]

    [20] Exhibit 1, T Documents, T 22, page 199.

    [21] Exhibit 5(f), JCA report dated 20 August 2015, page 4.

23. At the hearing before the SSAT, Mr Glinster conceded that this condition, of itself, does not allow a 20 point rating under any single Impairment Table.[22] He did not dispute that in the hearing before me.

    [22] Exhibit 1, T Documents, T 2, page 6, SSAT’s Reasons for Decision dated 19 August 2014, paragraph [6].

24. In light of the JCA assessments, the absence of any additional medical evidence and Mr Glinster’s own concession, I am satisfied that, at the relevant time, the impairments arising from this condition could not be considered severe for the purposes of s 94(3B) of the Act.

    Incontinence

25. While not specifically referring to incontinence in his report of August 2013, Dr Lo mentioned “saddle anaesthesia” as a symptom of Mr Glinster’s Spinal Canal Stenosis.[23] However, a report of Dr Matthew Davis of the Orthopaedics Clinic at Cairns Base Hospital remarked of his “worsening symptoms”, with bowel and bladder weakness being of most concern.[24]

    [23] Exhibit 1, T Documents, T 18, page 180.

    [24] Exhibit 1, T Documents, T 20, page 195.

26. In the hearing before the SSAT, Mr Glinster described the inconvenience he experienced with leakages. He estimated that he experiences serious soiling about two to three times a week, saying that he “cannot hold it back”. At that stage, he was not wearing incontinence pads because he found them a significant irritation. Although he accepted that he would have no choice but to wear them as things deteriorated, he told me at the hearing that he still does not wear them because they are bulky. As to his bladder, he told the SSAT that he will “dribble all day”. Significant leakages occur several times a week.[25]

    [25] Exhibit 1, T Documents, T 2, pages 6 and 7, SSAT’s Reasons for Decision dated 19 August 2014, paragraphs [7] and [8].

27. An undated letter from Dr Lo was produced, in which he stated that Mr Glinster has incontinence of the bladder and suffers from continual dribbling of urine throughout the day.[26]

    [26] Exhibit 5(b), letter from Dr HB Lo (Babinda Medical Practice).

28. While there is no doubt that Mr Glinster suffered, and suffers, from incontinence, the central question is whether his condition had been fully diagnosed, treated and stabilised at the relevant time in order to be able to attract an impairment rating under the Impairment Tables.

29. Concerned that a scheduled conference in May this year could involve a full hearing of this matter, Dr Lo sent an email at the time to the Tribunal’s Registry,[27] which relevantly read:

    It is my understanding that [Mr Glinster] has a tribunal hearing in May however the information required for the case is only available from the urology specialist for whom he is waitlisted for. [sic.]

    Mr Glinster has a history of recurrent urinary tract infections with no apparent explanation except for a genetic disease known as Nail Patellar Syndrome. .. 

    His urine is blood stained and he has had multiple occasions where his urine was clearly abnormal yet the test results were inconclusive.

    Mr Glinster has been extensively investigated and there is no structural abnormality that explains his symptoms.

    His life is thoroughly affected by his condition, symptoms range from unusual joint articulation, pain and weakness in various joints, back pain, hip pain and recurrent infections particularly of urine origin. As a result, he is incontinent of urine on a regular basis throughout the day.

    Mr Glinster is on the waitlist for urology specialist to review his condition.

    The urologist has vital information to the case hearing and it would be prudent to ensure the tribunal has access to that opinion prior to making an informed decision. (My emphasis).

    [27] Exhibit 4, Secretary’s Statement of Facts and Contentions, dated 16 July 2015, Attachment C, email Dr Lo to Brisbane Registry, 24 April 2015.

30. Two points need to be highlighted about that email. First, it focuses on Mr Glinster’s bladder problems and curiously, makes no reference to his bowel problems. Second, it is clear that his general practitioner is strongly of the view that the condition deserves evaluation by an appropriately qualified specialist.

31. In light of the email. I contemplated the possibility of adjourning the hearing for a short period to enable a report from the urologist to be obtained. However, Mr Glinster was unable to say when he was likely to be seen by the specialist.  I suggested that perhaps Dr Lo might be able to obtain a better indication, but Mr Glinster said that it would take him some time to get an appointment even with Dr Lo.[28] In any event, he thought that the specialist’s opinion would be inconclusive. In view of the fact that there was no positive indication that Mr Glinster was likely to be seen by the specialist in the short to medium term, the fact that the original claim for unlimited portability was made over two years ago, and having regard to the Tribunal’s objectives of providing a mechanism of review which is economical and quick,[29] I decided against adjourning the hearing. I therefore considered it was appropriate to proceed with the hearing on the basis of the material presently available. Mr Glinster will still continue to receive DSP and will no doubt notify the Department once his urologist’s opinion is received.

    [28] After the hearing, Mr Glinster sent as email to the Tribunal’s Registry on the afternoon of 4 September 2015, saying that he could not get an appointment to see Dr Lo until 21 September 2015.

    [29] See s 2A of the Administrative Appeals Tribunal Act 1975 (Cth).

32. The relevant Table for dealing with Continence Function is Table 13. Relevantly, the Introduction to that Table provides that self-report is insufficient and that there must be corroborating evidence of the person’s impairment. Examples of corroborating evidence include: a report from the person’s treating doctor; a report from a medical specialist (such as a urologist), particularly in the case of moderate or severe incontinence, confirming diagnosis of conditions associated with incontinence; and assessments and reports from practitioners specialising in the treatment and management of incontinence (such as urologists). No such corroborating evidence was produced by Mr Glinster. Admittedly, Dr Lo did submit a brief undated note, but it did not provide any detail as to Mr Glinster’s condition. Given that this condition needs to have caused severe impairment under Table 13 if Mr Glinster is to be successful, I would have expected to see a corroborating report from a specialist urologist. As Dr Lo’s email quoted above emphasises, the necessary corroborating evidence is vital and still to be received. Notwithstanding those matters, I note that the JCA who recently saw Mr Glinster recommended that 20 points be assigned under Table 13.[30]

    [30] Exhibit 5 (f), JCA report dated 20 August 2015, page 3 and 4.

33. In the absence of a specialist urologist’s evaluation, assessment and diagnosis, and given Dr Lo’s views of April this year, I do not consider that Mr Glinster’s condition can be said to have been fully diagnosed, treated and stabilised at the relevant time. In those circumstances, no impairment rating can be assigned. I am therefore not prepared to accept the recommendation by the most recent JCA that 20 points be assigned to this impairment.

    Summary

34. It follows from the above discussion that I do not consider that any of Mr Glinster’s impairments could be said to have been severe (as that term is understood in s 94(3B) of the Act) as at the date of claim. As a consequence, he does not qualify for unlimited portability of his DSP.

    Will Mr Glinster have the severe impairment for at least the next five years?

35. In view of my conclusion that none of Mr Glinster’s impairments were severe (as defined), it is unnecessary to address this question.

    Does Mr Glinster’s severe impairment prevent him from performing any work within the next five years?

36. In light of my conclusion that none of Mr Glinster’s impairments were severe (as defined), it is unnecessary to answer this question.

37. For completeness, I note that Centrelink’s Operational Blueprint, and the E-reference Guide before it, both dealt with the meaning of the phrase “any work” for the purposes of s 1218AAA of the Act. Both talk of the applicant “having no (less than two hours per week) future work capacity“ independently of an ongoing program of support and that that level is likely to remain for five years.

38. The only available evidence in that connection is the report of the original JCA who considered that Mr Glinster had a baseline work capacity of zero to seven hours per week and capacity for work within two years with mainstream intervention of eight to 14 hours per week.[31] The most recent JCA report did not alter that assessment.[32]

    [31] Exhibit 1, T Documents, T 22, page 200, JCA Report dated 16 May 2014.

    [32] Exhibit 5(f), JCA Report dated 20 August 2015, pages 5 and 6.

1. Based on that evidence, I am satisfied that Mr Glinster would have been unable to satisfy the requirement in s 1218AAA (1)(d) of the Act, even if one of his impairments was considered severe.

   CONCLUSION

2. I do not consider that any of Mr Glinster’s impairments could attract 20 points or more under a single Table. As a consequence, they were not severe (as that term is understood in s 94(3B) of the Act) as at the relevant date. Therefore, he did not qualify for unlimited portability of his DSP. Even if one of his impairments were considered severe, I do not believe, on the evidence available, that he could have satisfied the requirement that his severe impairment prevented him from performing any work independently of a program of support within the next five years.

3. Accordingly, the decision under review is affirmed.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

.......................[Sgd].................................................

Associate

Dated     15 October 2015

Date of hearing	4 September 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services – Program Litigation and Review Branch