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

[2021] AATA 303

Gunaydin and Secretary, Department of Social Services (Social services second review) [2021] AATA 303 (21 January 2021)

Division:GENERAL DIVISION

File Number:          2019/2153

Re:Ural Gunaydin

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date of decision:                   21 January 2021

Date of written reasons:        24 February 2021

Place:Melbourne

The Tribunal affirms the decision under review

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

The Hon. Matthew Groom, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – spinal condition – major depressive disorder and anxiety disorder – vertigo, asthma, diabetes and chronic pain – Impairment Tables – whether conditions fully diagnosed, treated and stabilised as at qualification period – reasonable treatment – spinal condition fully diagnosed, but not fully treated and stabilised – major depressive disorder and anxiety disorder no severe impairment fully diagnosed, but not fully treated and stabilised – other conditions not fully diagnosed, treated and stabilised – nil points – decision affirmed

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

Cases

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

Fanning and Secretary, Department of Social Services, Re [2014] AATA 447

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014

Department of Social Services, Social Security Guide, version 1.278, 8 February 2021

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

24 February 2021

1. This matter involves a review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal ( the “AAT 1”) dated 12 March 2019 which affirmed a decision of the Department to reject the applicant’s claim for disability support pension (“DSP”).

2. The applicant’s claim was lodged on 21 August 2017 and rejected by the Department on 30 August 2017 on the basis that he did not have an impairment rating of at least 20 points.

3. On 14 December 2018, an authorised review officer affirmed the original decision.

4. The applicant then applied for a review before the AAT1 which was the subject of the 12 March 2019 decision.

5. On 21 April 2019, the applicant lodged a review of the AAT1’s decision which is the matter presently before this Tribunal.

6. A hearing was held in this matter on 21 January 2021. At the conclusion of the hearing the Tribunal decided to affirm the decision under review and gave oral reasons. A request was subsequently made for written reasons which are now set out below.

   RELEVANT LEGISLATIVE PROVISIONS

7. The relevant legislative provisions are set out in the:

   (a)Social Security Act 1991 (the “Act”);

   (b)Social Security (Administration) Act 1999 (the “Administration Act”);

   (c)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Determination”); and

   (d)Social Security (Active Participation for Disability Support Pension) Determination 2014 (the “Participation Determination”).

8. The Tribunal has also had regard to the policy advice contained in the Social Security Guide.

   ISSUE TO BE DECIDED

9. Having regard to clause 4(1) of Schedule 2 to the Administration Act the issue before the Tribunal is whether the applicant qualified for DSP on the day he lodged his claim, namely 21 August 2017, or at any time during the 13 week period through to 20 November 2017 (the “qualification period”).[1]

   [1] See ReBobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at [31]–[32].

10. More specifically, it is necessary for the Tribunal to determine whether, in accordance with section 94(1) of the Act, as at the qualification period:

    (a)the applicant had a physical, intellectual or psychiatric impairment; and

    (b)the impairment was fully diagnosed, treated and stabilised and attracted an impairment rating of at least 20 points under the Impairment Tables; and

    (c)the applicant had a continuing inability to work.

11. The Impairment Tables are set out in the Determination. An explanation of the purpose and the method for applying the Impairment Tables is set out in the Determination.

    CONSIDERATION

12. The respondent concedes and the Tribunal accepts that the applicant had impairments as at the qualification period that satisfies paragraph 94(1)(a) of the Act.

13. The Tribunal now turns to the question of whether the applicant’s impairments attracted 20 points or more under the Impairment Tables.

14. There were several conditions raised by the applicant in his application for DSP and further submissions. The Tribunal will address them in turn.

    Spinal condition (which includes the associated back pain and sciatica)

15. The respondent conceded, and the Tribunal accepts, that the spinal condition was fully diagnosed as at the time of the qualification period and notes the CT scans of the applicant’s lumbar spine dated 14 November 2014 and also 3 February 2016. The Tribunal also notes the diagnosis of Dr Simone Ryan in June 2017 which references lower back pain and chronic pain syndrome and also the medical certificate completed by the applicant’s General Practitioner, Dr Sara Vali, in August 2017 which references a diagnosis of sciatica, lower back pain and leg pain. The existence of a diagnosis of the applicant’s spinal condition as at the qualification period is also consistent with the applicant’s direct evidence before the Tribunal.

16. However, the Tribunal accepts the respondent’s contention that the applicant’s spinal condition was not fully treated and stabilised as at the qualification period on the basis that the applicant had not undertaken reasonable treatment in respect of the condition at the relevant time. This conclusion is consistent with the applicant’s direct evidence to the Tribunal when he confirmed that other than taking some medication and self-directed exercise, he had not undertaken further treatment as recommended to him before the end of the qualification period. This conclusion is further reinforced by the documentation before the Tribunal which makes it quite clear that the applicant’s neurosurgeon, Dr Girish Nair, had recommended physiotherapy and hydrotherapy in July 2016.

17. In his direct evidence, the applicant confirmed that those recommendations had not been acted on before the end of the qualification period. In addition, Dr Nair had recommended undertaking an MRI to further understand the applicant’s condition and for there to be a follow-up appointment once the MRI was available. Again, the applicant confirmed in his direct evidence that that follow-up appointment did not occur until 11 October 2017. At that appointment, Dr Nair again recommended hydrotherapy and physiotherapy and also recommended that the applicant see a pain specialist. The applicant confirmed in his direct evidence that he was still waiting to see a pain specialist. In addition, the applicant’s GP, Dr Vali, also recommended physiotherapy and hydrotherapy on 15 October 2017 and then also again on 8 February 2018.

18. In addition, the applicant confirmed that he had been given a referral for exercise physiology in April 2018 and the documentary evidence is that the physiology treatment commenced on 27 April 2018, outside the qualification period. There is no other independent corroborating evidence of the applicant having received the recommended treatment prior to or during the qualification period. The Tribunal is satisfied that the recommended treatment was reasonable treatment and could reasonably be expected to result in a substantial improvement in functional capacity if undertaken.

19. For these reasons, the Tribunal is satisfied that the applicant’s spinal condition was not fully treated and stabilised as at the qualification period and that therefore the condition attracts no impairment points under the Impairment Tables.

    Mental health conditions which include an anxiety disorder and major depressive disorder

20. Again, the respondent concedes, and the Tribunal accepts that the applicant’s mental health conditions of major depression and generalised anxiety were fully diagnosed as at the qualification period. The Tribunal notes the diagnosis of consultant psychiatrist, Dr Indika Jayathilake, on 26 August 2015 which was also reinforced in an opinion of the applicant’s GP, Dr Vali, at around the same time.

21. However, the Tribunal also accepts the respondent’s contention that the applicant’s mental health conditions were not fully treated and stabilised during the qualification period. In reaching this conclusion the Tribunal notes in particular that when the applicant was again seen by Dr Jayathilake in October 2017 it was recommended that the applicant increase his dosage of Sertraline which would strongly suggest that the applicant’s condition had not stabilised as at that time. The applicant also had follow-up appointments with Dr Jayathilake in January and September 2018 which would also support a conclusion that the applicant’s condition had not stabilised as at the qualification period.

22. In addition, the applicant confirmed that he was referred for cognitive behavioural therapy on 15 October 2017. The Tribunal accepts the respondent’s contention that there is no corroborating evidence that the applicant commenced cognitive behavioural therapy in accordance with that referral by the end of the qualification period. In addition, a mental health care plan prepared for the applicant on 28 October 2018 referred the applicant for psychological therapy. Again, this would strongly suggest that the applicant’s mental health conditions had not been fully treated and stabilised as at the qualification period.

23. The Tribunal is satisfied that the treatment recommended and not undertaken prior to the conclusion of the qualification period was reasonable treatment and treatment that could reasonably be expected to result in a substantial functional improvement if undertaken.

24. For these reasons, the Tribunal is satisfied that the applicant’s mental health conditions were not fully treated and stabilised as at the qualification period and that therefore the conditions attract no impairment points under the Impairment Tables.

    Other conditions

25. The applicant’s application for DSP, as well as other documentation before the Tribunal, referred to several other conditions including vertigo, asthma, diabetes and chronic pain. The Tribunal is satisfied having carefully reviewed all the materials before it that there is insufficient independent corroborating evidence to support that any of the other conditions were fully diagnosed treated and stabilised as at the qualification period. Again, for this reason, the Tribunal finds that there are no other conditions that would attract impairment points under the Impairment Tables.

26. On the basis of the above conclusions, the Tribunal finds that the applicant’s total impairment rating from fully diagnosed, treated and stabilised conditions as at the qualification period is zero points and that therefore he does not satisfy section 94(1) (b) of the Act. Consequently, the applicant’s claim for DSP made on 21 August 2017 cannot succeed.

27. In these circumstances it is not necessary for the Tribunal to go on to consider whether the applicant had a continuing inability to work.

    Decision

28. The decision under review is affirmed.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision of The Hon. Matthew Groom, Senior Member

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

Associate

Dated: 24 February 2021

Date of hearing:	21 January 2021
applicant:	By telephone
Advocate for the respondent:	Mr Nam Nguyen
Solicitors for the respondent:	Sparke Helmore Lawyers