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

[2016] AATA 851

Hallowell and Secretary, Department of Social Services (Social services second review) [2016] AATA 851 (28 October 2016)  

Division	GENERAL DIVISION
File Number(s)	2016/0016
Re	Andrew HALLOWELL
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D. J. Morris, Member
Date	28 October 2016
Place	Melbourne

The Tribunal affirms the reviewable decision.

........................................................................

D. J. Morris, Member

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 – medical report outside relevant period but referable to it – 20 points under two Tables – no program of support completed – not qualified for DSP – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975

Social Security Act 1991 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s (94)(1)(c) – s (94)(1)(c)(i)

s 94(2) – s 94(2)(aa) – s 94(5)

Social Security (Administration) Act 1999 – Schedule 2 Cl 4(1)

Secondary Materials

Social Security (Active Participation for Disability Support Pension) Determination 2014

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

REASONS FOR DECISION

D. J. Morris, Member

28 October 2016

Background

1. Mr Andrew Hallowell, the Applicant, has sought a review of a decision that found he is not qualified for Disability Support Pension (‘DSP’).

2. The Applicant lodged a claim with the Department of Social Services (‘the Department’) for DSP on 12 May 2015.

3. His claim was rejected and Mr Hallowell sought a review by an Authorised Review Officer (‘ARO’).  The ARO considered the claim and on 11 September 2015 affirmed the original decision.

4. The Applicant sought a review by the Social Services and Child Support Division of the Tribunal (‘AAT1’).  That hearing took place on 8 December 2015.  AAT1 affirmed the original decision.

5. Mr Hallowell sought a review in the General Division of the Tribunal (‘AAT2’). This is the hearing of the matter.

6. The purpose of this hearing is, therefore, to review whether the original decision that Mr Hallowell was not qualified for DSP on the date he lodged a claim, 12 May 2015, was the correct and preferable decision.

7. The hearing was held on 21 September 2016 by telephone.  The Applicant represented himself.  The Respondent was represented by Mr Tim Noonan.  The Applicant gave evidence on affirmation and was cross-examined by the advocate for the Respondent.

8. Documents provided to the Tribunal under section 37 of the Administrative Tribunal Act 1975 (‘T-documents’) were admitted into evidence.

9. The following documents submitted by the Applicant were admitted into evidence:

   ·Medical certificate from Dr Andrew Hall of Warrnambool Medical Clinic dated 16 July 2016 (‘Exhibit A1’);

   ·Medical certificate, also from Dr Hall, dated 25 July 2016 (‘Exhibit A2’).

   Qualification for DSP under the Act

10. The law applicable to the grant of DSP is the Social Security Act 1991 (‘the Act’) and, in particular, section 94 of that Act.

11. 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.

12. 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.

13. 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.

14. First, it is necessary that for a person to qualify for DSP, the person must have an impairment within the meaning of the Act. Second, the impairment (or impairments) must be assigned a rating of 20 or more points under the Impairment Tables. Third, the person must have a continuing inability to work.

15. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, this impairment is to be assessed as a ‘severe’ impairment. If a person is assigned 20 or more points total under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support. A person who does not have 20 or more points under one Table must have participated in a program of support in compliance with the Act and the Social Security (Active Participation for Disability Support Pension) Determination 2014.

    What is the relevant period for considering the claim?

16. The Social Security (Administration) Act 1999 provides, at clause 4(1) of Schedule 2, as follows:

    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.

17. It follows that, if Mr Hallowell is found to have become qualified for DSP between the date he lodged his claim, 12 May 2015, and the date thirteen weeks after that date, that is 11 August 2015, then the claim is deemed to have been made on the date he became so qualified.  This is called the ‘relevant period’.

18. Moreover, evidence that relates to changes in the Applicant’s medical condition which may affect his functional capacity, but which occurred after the relevant period, may not be taken into account in relation to this claim (unless directly referable to the relevant period) and should be the subject of a future claim.

19. It is, therefore, necessary that the Tribunal decide whether in the relevant period: Mr Hallowell has an impairment; and, if so, whether the impairment or impairments may be assessed under the Impairment Tables and are correctly assigned 20 or more points; and, if so, whether he has a continuing inability to work. 

    APPLYING THE LAW

20. The Respondent, in his submission, accepts that the Applicant suffers from impairments, which the Secretary listed as Guillain-Barré Syndrome; Lumbar spondylosis; Arthritis of hands and feet; and Psychological stress.

21. The Respondent submitted that Mr Hallowell satisfies section 94(1)(a) of the Act.

22. Dr Phillip Hall, the Applicant’s general practitioner, completed a medical report dated 25 May 2015 in which he reported that Mr Hallowell had Guillain-Barré Syndrome, and that it had been diagnosed by Dr James Gome, physician, in May 2015.  He reported that the Applicant was now undergoing physiotherapy and rehabilitation.  The second condition Dr Hall listed was Lumbar spondylosis and small joint arthritis, with a presumptive diagnosis date of 2012.  Dr Hall stated that Mr Hallowell did not have any other medical conditions.

23. Having reviewed the medical evidence before it, the Tribunal accepts the Respondent’s submission and finds that subsection 94(1)(a) is satisfied in the relevant period.

24. The next step is to decide: What is the correct rating for Mr Hallowell’s conditions under the Impairment Tables?

25. In applying the Impairment Tables to a particular person’s case, reference must be made to the Rules set out in Part 2 of the Minister’s Determination.

26. Of particular relevance is Rule 6(3) which provides that a 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.

27. 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 fully treated and fully stabilised, and the person must have a continuing inability to work for 15 hours within 2 years.

    Guillain-Barré Syndrome

28. The diagnosis of Guillain-Barré Syndrome was stated by Dr Hall in his medical report completed for submission to the Department in May 2015, which noted that the condition had been diagnosed by Dr Gome that same month.  Dr Hall said that the condition was likely to continue for more than 24 months with some slight improvement.  The functional effect on the Applicant is pain and muscle weakness in his legs.  Mr Hallowell told the Tribunal about the treatment he had undertaken, including 12 weeks of physiotherapy at South West Healthcare Warrnambool, followed by 7 weeks at St John of God Hospital at Warrnambool.

29. In his evidence Mr Hallowell said that Dr Hall has recommended a care plan and that he see an exercise physiologist, and, at the time of the hearing, he was about to see one.

30. Mr Hallowell said that he had formerly been a keen walker but now had balance problems and tended to fall, but managed better when on even ground.  He said he had a walking stick but didn’t use it all the time, keeping it on hand and taking it in his car.  He said he parked close to the local shops and endeavoured not to walk far.  He told the Tribunal that he walked his dog each day a short distance, perhaps 100 yards, and this had been recommended by physiotherapists.  He said that when he was first discharged from hospital he used a cane because of leg weakness, but he was steadily improving.

31. Dr Hall in his 18 July 2016 report (Exhibit A1) said that the Applicant:

    Has ongoing disability associated with leg weakness following an episode of Guillain-Barre in May 2015. He has made a reasonable recovery form [sic] that episode but remains prone to falls most days as a result of leg muscle fatigue and reduced proprioception.

32. In his medical report of 25 July 2016 (Exhibit A2), Dr Hall stated, in reference to the Guillian-Barré condition:

    Andrew has made a significant recovery from his illness but has persistence of loss of proprioception and associated moderate falls risk and some degree of residual weakness of his lower limbs.  He struggles to maintain his balance on uneven surfaces and as a result of his power and coordination deficits is unable to maintain his work as a self employed motor mechanic.  He would struggle to maintain any role in manual employment or any work involving standing due to his fatigability.

33. Although Guillain-Barré Syndrome is, in the understanding of the Tribunal, an autoimmune disease that can be unpredictable in its course, and which can sometimes create a permanent effect on a person, it is explicit in this report of Dr Hall that, in his professional assessment, Mr Hallowell’s health is improving in regard to this condition.  In May 2015 he predicted there would be ‘slight improvement’ over the next 24 months, but just over a year later he had altered this assessment to say that the Applicant had made “a significant recovery”.

34. I consider that, taking this medical evidence into account and the Applicant’s own evidence that he is in the midst of undergoing various treatment and is shortly to see an exercise physiologist, I conclude that while Mr Hallowell’s Guillain-Barré Syndrome condition may be found to be fully diagnosed, it was not fully treated nor fully stabilised in the relevant period, so therefore does not fulfil the requirements of being able to be assessed under Rule 6 of the Impairment Tables.

    Lumbar spondylosis condition

35. The second condition cited by Dr Hall is Lumbar spondylosis or ‘chronic low back pain associated with arthritis’.

36. The Tribunal had before it an unreadable report (T11, page 37) from Warrnambool Radiology dated 7 May 2015.  The Respondent said that he did not have a readable copy, either.  At the conclusion of the hearing I directed that the Applicant obtain a readable copy which was subsequently provided to the Tribunal and the Respondent.

37. That report, by Dr Richard O’Sullivan, states, in part:

    Minor increased kyphos seen in the thoracic spine.  The AP alignment is otherwise within normal limits.  Loss of signal intensity is seen in the T5-6 to T10-11 and L5-S1 discs, consistent with disc degeneration.  There is no marrow oedema, significant endplate oedema or endplate destruction and no evidence of disc infection is seen.  There is no epidural mass, cord compression or intrinsic cord abnormality in the thoracic spine or conus.  Generalised disc bulge without focal disc protrusion is seen at L4-5 and L5-S1.

    CONCLUSION: Multilevel disc degeneration in the thoracic and lower lumbar spine.  No epidural mass, cord compression or intrinsic cord abnormality seen.  No evidence of disc infection is seen.  No focal disc protrusion is seen in the lumbar spine.

38. The Applicant gave evidence about the functional impact of his spinal condition on his daily life.  He said he would be able to pick up an item from knee height with difficulty.  He agreed he could sit in or drive a car for 30 minutes but could not sustain overhead activities.  He said he could turn in some directions with restriction but could not twist his trunk to look over his shoulder and this causes some difficulties with driving.  He says he tends to lean on walls or furniture rather than stand because of his back pain and had significant difficulty picking up items from a coffee table, but found it easier from a table of dining table height.

39. The Respondent had contended that 5 impairment points be allocated for the Applicant’s Lumbar spondylosis condition but if there was medical corroboration for a higher rating the Secretary would not object to 10 impairment points being assigned for this condition.

40. I conclude that Dr O’Sullivan’s radiology report provides corroborative medical evidence of disc degeneration of the Applicant’s spine in the relevant period and, taking into account the evidence about functional impact and the Job Capacity Assessment Report (T8) and examining the Descriptors in the Determination for Impairment Table 4 – Spinal Condition, I hold that there is a moderate functional impact.  I find that on balance 10 impairment points should be assigned for Mr Hallowell’s back condition.

    Osteoarthritis condition – upper limbs

41. In terms of the Applicant’s arthritis of the hands, Mr Hallowell gave evidence of his difficulty in picking up an item such as a carton of liquid.  He has difficulty gripping and buys milk with a handle which he holds in one hand and cradle-carries with the other.  He said he could pick up light items with two hands.  He can write his signature but not much more, and can use a computer with one finger but rarely does so.  He has a special tool to unscrew bottles because otherwise he would not be able so to do.  He lives independently but his daughter visits regularly and helps him with household chores such as laundry as he cannot pick up pegs because of his arthritis.  He can do up buttons with difficulty.

42. Both before this hearing and that of AAT1 the Applicant said that he could not pick up small items such as coins and instead ‘scooped’ them up.  Dr Hall in his report of May 2015 reported that Mr Hallowell had “difficulty with manipulation of fine components – pain with lifting, using tools.”

43. The radiology report of 17 August 2015 by Dr Neale Walters (T11, p 36) reports degenerative changes in the right hand which is in part ‘moderately severe’ and concludes that Mr Hallowell had “Degenerative arthropathy” of the right hand.  This is six days outside the relevant period but it is a professional reading of an x-ray showing degeneration, and I am satisfied that it is directly referable to the Applicant’s medical condition within the relevant period, and so the Tribunal takes it into account in this decision.

44. The correct impairment table to assess the Applicant’s arthritis of the hands is Table 2 – Upper Limb Function.  On the medical evidence of Dr Hall and Dr Walters, and the evidence of Mr Hallowell both to this hearing and AAT1, five of the six Descriptors for the assignment of 10 impairment points for a ‘moderate’ functional impact under Table 3 are met.  I so find.

    Osteoarthritis condition – lower limbs

45. Assessment of functional impacts on a person in relation to their lower limbs is under Table 3 – Lower Limb Function.  The Job Capacity Assessor recommended 5 impairment points be allocated to the Applicant for the functional impact of his small joint arthritis on his feet.  The Applicant reported various challenges with walking and climbing stairs and said he could “climb 11 steps at most”, using a hand rail.  He also, as mentioned above, walks his dog each day, albeit not for a very long distance.

46. Dr Walters’ radiology report of 17 August 2015 states:

    BOTH FEET & ANKLES

    On the right side, there are at least moderate degenerative changes at the 1st MTP joint.  There also appear to be very early degenerative changes at the talonavicular joint but no other bony lesions are identified.  On the left side, there are mild degenerative changes at the 1st MTP joint [unreadable word] is a very small bony calcaneal spur.  No other bony lesions are shown.  Conclusion: Mild degenerative changes in each foot.

47. The difficulty in making an assessment in regard to the functional impact on the Applicant of his feet arthritis is that the effects are intermingled with his Guillain-Barré syndrome condition, which is slowly improving, on Dr Hall’s most recent medical report.  It would seem, on the medical evidence and on Mr Hallowell’s evidence about some challenges with walking but being able to walk his dog daily, that 5 impairment points could possibly be assigned for a ‘moderate’ functional impact. 

48. But without casting doubt on Mr Hallowell’s evidence to the Tribunal about his walking difficulties, I hold that it is not safe to assign impairment points for this condition because, while it may be fully diagnosed, fully treated and fully stabilised, a proper assessment of the permanent functional impact on him is effectively blurred by the Gullian-Barré Syndrome condition, the effects of which on the Applicant are, in Dr Hall’s opinion, significantly improving.  Therefore, the permanent functional impact may change when the contribution of Gullian-Barré Syndrome diminishes or disappears.

    Psychological condition

49. The Applicant gave evidence that he had been diagnosed with depression in July 2016 and was now receiving treatment.  He said he could not say whether he was suffering from depression in the relevant period.  He reported that Dr Hall has diagnosed it and had prescribed antidepressant medication but had not yet referred him to a specialist.

50. Dr Hall wrote on 25 July 2016 (Exhibit A2) “Andrew has suffered significant psychological stress as a result of his illness…”  However, he did not mention or diagnose any specific psychological condition in his May 2015 report and positively listed only Guillian-Barré Syndrome, Lumbar spondylosis and small joint arthritis.  I therefore conclude that this condition, if it existed in the relevant period, had not been identified by Dr Hall at that time.

51. In any event, for assessment under the Impairment Tables, Table 5 – Mental Health Function, a corroborating diagnosis from a psychiatrist or a clinical psychologist, is mandatory.  Dr Hall is a general practitioner and so for Mr Hallowell to have this condition taken into account in relation to his claim, even if his diagnosis had been confirmed in the period relevant to his claim, such a corroborative diagnosis is necessary.  The Applicant’s psychological conditions are therefore not able to be assigned impairment points in relation to this claim.

    Conclusion

1. Before the onset of Guillain-Barré Syndrome, Mr Hallowell had worked as a panel beater for most of his working life.  He said that he ceased work in April 2015 because of the ‘savage effects’ of this condition.  His was a one-man business and his arthritis had gradually been having effect on his motor skills; he said he had been working at about 50 per cent capacity but it was becoming very hard because of trouble manipulating tools with the arthritis in his hands.

2. In this decision, I have found that the Applicant should correctly be allocated a total of 20 impairment points, 10 points from Table 2 and 10 points from Table 3. Under section 94 (1)(c) a person who has 20 points or more must have a continuing inability to work, and for the Secretary to be satisfied that a person has a “continuing inability to work” under section 94(2)(aa):

   In a case where a 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)…

3. As Mr Hallowell has not been assigned 20 or more points from one Impairment Table, he does not have a ‘severe impairment’. Therefore the program of support provisions in the Act must be satisfied.

4. Mr Hallowell told the Tribunal that he had been to Western Districts Employment Access and they told him that they would struggle to find work for him owing to his medical conditions and his age.  He said he could not undertake, for instance, console work because he is unable to handle coins or credit cards, could not stand and would drop things.

5. It is not necessary for me to delve further into the Applicant’s interaction with Western Districts Employment Access because, factually, Mr Hallowell has not undertaken a program of support to the satisfaction of the Act. I do note, however, that the definition of ‘work’ under the Act is work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and that exists in Australia, even if not within the person’s locally accessible labour market. While the Applicant’s medical conditions may limit him from undertaking certain types of work, that is not a relevant factor.

6. The outcome, therefore, is that while I disagree with the original decision-maker’s allocation of impairment points and have made different findings for the reasons outlined, the decision that the Applicant was not qualified for DSP on the date of claim nor became qualified in the relevant period was correct. The requirements of section 94(1)(c)(i) or section 94 (2)(aa) of the Act are not satisfied in relation to his claim.

7. I found the Applicant frank and honest in his evidence.  He clearly is dealing with a range of health challenges and, when his Guillian-Barré Syndrome has either been fully treated or has fully stabilised, it or the effect of his lower limb arthritis may be assessable to support a future claim for DSP.

   DECISION

8. The reviewable decision is affirmed.

60.     I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Don Morris.

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

Associate

Dated 28 October 2016

Date of hearing	21 September 2016
Applicant	By phone
Advocate for Respondent	Tim Noonan, Pricipal Government Lawyer, Department of Social Services