Hall and Secretary, Department of Social Services (Social services second review)
[2015] AATA 585
•2 July 2015
Hall and Secretary, Department of Social Services (Social services second review) [2015] AATA 585 (2 July 2015)
Division
GENERAL DIVISION
File Number
2014/6496
Re
Christopher Hall
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 2 July 2015 Date of written reasons 12 August 2015 Place Melbourne For reasons given orally during the hearing of this matter, the Tribunal affirms the decision under review.
.............................[sgd]...........................................
Member
SOCIAL SECURITY – disability support pension – whether accepted medical conditions attract 20 points within 13 weeks of the claim – program of support – decision affirmed
Legislation
Social Security Act 1991 section 94
Social Security (Administration) Act 1999 section 4 of Schedule 2
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Regina Perton, Member
12 August 2015
The Tribunal provided oral reasons for its decision at a hearing of this application on 2 July 2015. The applicant, Mr Christopher Hall, subsequently requested written reasons for the decision. The reasons for the Tribunal’s decision are set out below.
Mr Hall, who was then 58 years old, lodged a claim for disability support pension (DSP) with Centrelink on 23 October 2013. Several medical reports accompanied the claim. On 12 December 2013 a Centrelink officer rejected Mr Hall’s claim (the original decision). Centrelink administers DSP for the respondent.
Mr Hall sought a review of the original decision by a Centrelink authorised review officer (ARO). On 1 September 2014 the ARO affirmed the original decision.
Mr Hall lodged an application for review of the ARO’s decision with the Social Security Appeals Tribunal (SSAT) on 2 October 2014. On 6 November 2014 the SSAT affirmed the ARO's decision to refuse DSP on the basis that Mr Hall’s impairments did not rate 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) on 23 October 2013 or within 13 weeks of that date, namely 22 January 2014 (the relevant period).
On 16 December 2014 Mr Hall lodged an application for review of the SSAT decision with this Tribunal.
The issue before the Tribunal is whether Mr Hall satisfied the requirements for DSP during the relevant period.
QUALIFICATION FOR DSP DURING THE RELEVANT PERIOD
Were Mr Hall’s medical conditions permanent and do they therefore attract an impairment rating of at least 20 points?
Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP.
94(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;
…
When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of section 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) allows a person who does not qualify for DSP at the date of his application, to do so within 13 weeks of that date.
The Tribunal accepts that Mr Hall suffered from a number of medical conditions during the relevant period and continues to do so. The Tribunal must decide whether Mr Hall’s medical conditions attract an impairment rating of 20 points, subject to satisfying the requirements under sections 6 (3) and (4) of the Impairment Tables, which require the medical conditions to be fully diagnosed, treated and stabilised to be considered permanent.
On 22 October 2013 Mr Hall’s general practitioner, Dr Bolwell, completed a medical report indicating that Mr Hall had suffered from a myocardial infarction and chronic lower back pain. Dr Bolwell indicated that Mr Hall had been his patient since 2011 and a patient of the practice since 1989. He stated that there had been coronary artery stenting on 8 October 2013 and medication was the current treatment.
The Tribunal accepts that during the relevant period Mr Hall was recovering from a recent heart attack and had been diagnosed with coronary artery disease. He also suffered from chronic lower back pain. The Tribunal accepts that Mr Hall suffered from physical impairments at the time he lodged his claim for DSP. He therefore meets the requirements of section 94(1)(a) of the Act.
As stated earlier, the legislation only allows for impairment points to be assigned for a particular condition if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years (section 94(1)(b) of the Act).
Section 6 of the Impairment Tables states that:
…
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
…
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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
(bthe 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.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is 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.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Section 8 of the Impairment Tables sets out what cannot be taken into account.
8Information that must not be taken into account in applying the Tables
(1)...
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
Lower back pain
The respondent advised the Tribunal that Centrelink now accepted that Mr Hall’s lower back pain condition was fully diagnosed, treated and stabilised during the qualification period. The Tribunal concurs.
Dr Bolwell suggested that Mr Hall should receive 10 to 15 impairment points for his lower back condition. However, the Impairment Tables do not allow for a rating of 15 points. Table 4 of the Impairment Tables sets out the moderate functional impact on activities involving spinal function (10 points):
(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 out of a chair (if not independently mobile in a wheel chair).
To obtain 20 impairment points, the person is required to experiences a severe functional impact involving spinal function:
(1)The person is unable to:
a) perform any overhead activities; or
b) turn their head, or bend their neck, without moving their trunk; or
c) bend forward to pick up a light object from a desk or table; or
d) remain seated for at least 10 minutes.
Based on the evidence before it, the Tribunal is satisfied that Mr Hall should be allocated 10 points for his spinal condition. Although he suffers pain and/or discomfort when undertaking various activities, he was able to cook and clean, pick up a coffee cup from a coffee table and able to get out of a chair without having someone else help.
Heart condition
Mr Hall told the Tribunal that he suffered a heart attack on 7 October 2013. Other records indicate that it was 8 October 2013. Mr Hall said that within two hours of the ambulance arriving at his home, he was in an operating theatre and a stent had been inserted by a surgeon. Mr Hall said that he was discharged with medication after two or three nights in hospital. He provided the Tribunal with a hospital document providing the list of medication given to him on discharge. Mr Hall subsequently saw a cardiologist for a follow up appointment as well as his local doctor. He said blood tests revealed that all was under control during the relevant period.
On 7 December 2013 Mr Hall was re-admitted to hospital with hemoptysis (coughing up blood). Initially, the most likely cause appeared to be one of the medications prescribed after his heart attack. Mr Hall was discharged on 9 December 2013 with one of his previous medications eliminated from the suite he was taking. Lung function tests also revealed that he may have been suffering from emphysema.
Mr Hall said that he was required to undertake an education and exercise program over several weeks. It is his belief that he finished the course within the relevant period but the Tribunal does not have any corroborating evidence of its completion.
Mr Hall saw a Job Capacity Assessor on 12 December 2013 during the relevant period and another on 6 March 2014, which was some weeks after the completion of the 13 week period. The report of the second assessor states the following about the myocardial infarction:
…
CURRENT TREATMENT
…The client reports that he is also under the care of Cardiologist, Dr Robert Lew- ... At last assessment the client reported he was about to participate in a study (“Air Vs Oxygen in Myocardial infarction”) run through the Alfred Hospital and was also about to participate in a cardiac rehabilitation program as well.
FUTURE/PLANNED TREATEMENT: GP reports “medications”.
SYMPTOMS/IMPACT ON FUNCTIONING: GP reports that client experiences chest pains, Dyspnoea, low energy/tired, and is not fit for manual work (particularly in his usual role as a carpenter). At previous assessment, the client reported that the experiences dyspnoea with gardening, when he mows the lawns, and walking more than 500km [sic] (on the flat, even surface). At current assessment, he reported that his walking is restricted to 200m now. He reports dyspnoea after participating in such activities as vacuum cleaning and mopping (after 15 – 20 minutes – requiring the equivalent period of time to rest). He reports that he is able to walk around a shopping centre or supermarket independently, and does not use any walking aids. He reports dyspnoea upon navigating a flight of stairs (independently). He also reports that since previous assessment he has been diagnosed with Emphysema (which has been medically verified – see results on recent CT pulmonary angiogram. Evidence also suggests that the client was to be followed up with a lung function test and a referral to a respiratory physician. However the client reports that he is unable to afford this, and it does not change the diagnosis. He reports no current treatment for this. This condition has the same functional impact as his heart condition – ie. shortness of breath.
PROGNOSIS: GP indicates more than 24 months – fluctuate. In further medical evidence provided, since last assessment, the same GP indicates that this condition is temporary – and expected to show considerable functional improvement within the next two years. Contributing assessor indicates that this condition has only recently been diagnosed (including recently added changes of emphysema identified in a recent CT pulmonary angiogram. The client is yet to complete the cardiac rehabilitation program. She [sic] also indicates that, as a result it is too early to determine any long-term functional impacts. As a result this condition is deemed to be temporary.
On 20 February 2015 Dr Bolwell stated that since Mr Hall suffered a myocardial infarction and had a coronary artery stent placed, he has not been able to sustain any physical activity without frequent resting [sic].
The Tribunal is not satisfied that during the relevant period all reasonable treatment for Mr Hall’s heart condition had been undertaken. The Tribunal is therefore unable to find that the condition was fully treated and stabilised during the relevant period. Consequently, no points can be awarded for this condition.
Other conditions
Mr Hall’s subsequent diagnosis of emphysema had been diagnosed during the relevant period but had not been fully treated and stabilised. The Tribunal is therefore unable to take it into account in relation to the current review. He has also been investigated in relation to a sleep disorder after the relevant period and this, too, cannot be considered in this review. The Tribunal notes that his general practitioner suggested that the symptoms of the emphysema had the same impact on his activities as the heart condition.
The Tribunal finds that on the date of claim, and throughout the relevant period of 13 weeks following, Mr Hall did not achieve 20 points on the Impairment Tables. Therefore, he does not meet section 94(1)(b) of the Act and does not qualify for DSP during the relevant period.
Did Mr Hall have a continuing inability to work?
Even if Mr Hall achieved 20 points, there was another barrier to the grant of DSP, namely whether he had a continuing inability to work under section 94(1)(c) of the Act. This required participation in a program of support for a regulated period of time.
The relevant provisions are set out in sections 94(2) to (5) of the Act:
2A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
3In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person’s locally accessible labour market.
(3A) …
Severe impairment
(3B)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.
…
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
…
Doing work independently of a program of support
4A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
Other definitions
5In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre‑vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work‑related training (including on‑the‑job training).
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
…
In addition to sections from the Act cited above, section 94(3C) of the Act stipulates the need to concurrently consider a Determination made by the Minister entitled Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the POS Determination). Section 5 of the POS Determination states that the person must have participated in a Government funded program for at least 18 months in the 36 months prior to the lodgement of the claim to meet the legislative requirements. A period of exemption for health reasons is not able to be taken as participation in a program of support.
Mr Hall did not have a severe impairment as defined in the legislation. That does not mean that the impact of his disabilities on his activities is not strong but rather that there is no single impairment warranting 20 points of itself.
Centrelink records show that Mr Hall had actively participated in a program of support for four months in the 36 months prior to claiming DSP on 23 October 2013. Mr Hall complained about his treatment by the provider but that does not exempt him from undertaking the program.
As Mr Hall had not participated in a program of support before the lodgement of the DSP claim under consideration, he would not have met the criteria for DSP even if he had achieved 20 points (which he had not).
The Tribunal finds that Mr Hall did not satisfy sections 94(1)(b) or 94(1)(c) of the Act.
DECISION
For reasons given orally during the hearing of this matter, the Tribunal affirms the decision under review.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
...............................[sgd].........................................
Associate
Dated 12 August 2015
Date of hearing 2 July 2015 Applicant In person Advocate for the Respondent Ms V Chan, Department of Human Services
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Statutory Construction
-
Jurisdiction
0
0
0