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

[2018] AATA 4537

Hansen and Secretary, Department of Social Services (Social services second review) [2018] AATA 4537 (12 November 2018)

Division:GENERAL DIVISION

File Number(s):      2017/6004

Re:Susan Hansen

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:12 November 2018

Date of written reasons:        10 December 2018

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the reviewable decision dated 12 September 2017 has been affirmed by the Tribunal

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Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – fibromyalgia – spinal condition – mental health – program of support – whether applicant’s conditions rated at 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

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

WRITTEN REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

10 December 2018

BACKGROUND

1. The Applicant is 50 years of age.  Up until she faced significant health problems in 2010 and 2011 she was a very industrious, highly intelligent and hard-working person.

2. The Applicant started her working career while she was still at school. During this period, she was working part time in a store and it is interesting to note that in the later part of last year (2017), the Applicant was briefly employed by Big W when she was making efforts to engage in work as part of a Program Of Support (POS).

3. When the Applicant was 25 years old she was an information assistant manager and held some very responsible jobs both in Australia and the United States. It was while she was in the United States that she met her husband.

4. Her husband, unfortunately, had some very significant medical issues and the Applicant eventually returned to Australia.  During her time in the United States, the Applicant was diagnosed with Fibromyalgia.

5. The Applicant also has lower back issues, specifically, in relation to disc L5-S1.  The Applicant has weak ankles, was involved in two accidents and has had multiple falls which have also affected her back. 

6. Further, the Applicant was diagnosed with depression and anxiety while in the United States in or around 2010-2011.  In more recent times, there have been some issues in relation to a further diagnosis of bipolar disorder. Regardless of the status of this diagnosis, the Tribunal is satisfied that a proper diagnosis was made in relation to depression and anxiety which dates back to well before the claim period (27 October 2016 to 26 January 2017).

7. When the Applicant returned to Australia, she became the full- time carer for her husband and was in receipt of a carer allowance from November 2011 until October 2016. Following the death of her husband, the Applicant was grief-stricken and shut herself off for a significant part of the claim period.

8. The Applicant stated that she visited her parents in January 2017 and didn’t return to pack up her unit until around Australia Day which coincided with the end of the claim period. It wasn’t until this time that the Applicant returned to anything that resembled her normal routine.

9. While the Applicant was a carer for her husband, she herself experienced the significant issues mentioned above.

10. The Applicant provided emotional support for her husband and assisted in terms of making arrangements for her husband to attend medical appointments and accompanied him to these appointments. The Applicant stated that she would organise meetings for her husband, push his wheelchair and drive him around.

11. During this period, the Applicant was assisted by some family members and had  a great deal of assistance from Catholic Community Care and from Partners in Recovery as well who arranged for people to clean the house, cook,  and help with completing all of the necessary household tasks that were difficult for the Applicant at the time.

    THE APPLICANT’S SITUATION AT THE TIME OF THE CLAIM

12. The Applicant can, and as at the claim period could, drive on a regular basis for up to about 30 minutes at a time. The Applicant noted that she can drive further if she has to but does not need to.

13. At the time of the claim period, while the Applicant was grieving her husband’s death, the Applicant missed a pain management appointment which resulted in missing out on eight months of pain management. This significantly affected her pain levels.

14. The Applicant stated that she had been getting progressively worse and noted that five years ago she might have had four or five ‘good days’ a week but  now she only has two or three. The Applicant also stated that she has a lot of trouble sleeping but that a change in medication has helped and she often listens to audio programs through her headphones at night which helps.

15. She drives locally and has a disability sticker.  The Applicant stated that she goes to Aldi twice a week. The first trip is to buy basic food items and on the next outing she will purchase other household essentials like cleaning products. She takes the items home to her unit where a back entrance allows her to drive up close to the house and move the items from her car boot to a table and into the house. There is only one step to negotiate from the car into the house.  

16. The Applicant can raise her arms over her head but her left arm cannot go more than 45 degrees and the right arm 90 degrees. She tries to walk along Bondi Beach with a friend at least once a fortnight, sometimes once a week. It is close to a one kilometre walk from south to north which takes her about 30 minutes to complete with a rest half way.

17. The Applicant said that she pays a cleaner $50 for two hours of cleaning, which is done on a weekly, sometimes fortnightly basis. This helps her to get by and get done what she needs to around the unit.

18. In more recent times, that is, after the claim period, the Applicant has started to do things like double-booking her appointments and confusing her days. This is causing her considerable concern as she feels it may well get worse.

    THE CRITERIA IN SECTION 94 OF THE SOCIAL SECURITY ACT 1991 – ABILITY TO WORK MORE THAN 15 HOURS PER WEEK

19. The Applicant is currently participating in a POS. The POS resulted in the Applicant’s enrolment in a retail course in July 2017. However, because of her ailments she was only able to attend 50% of the course. Despite her attendance however, the Applicant was able to pass the course and assist other students along the way.

20. After completing the course, the Applicant commenced employment with Big W not long before Christmas 2017. The job itself involved assisting customers around the store and returning clothes to the shop floor after customers had tried them on. 

21. Her performance in this job is relevant to considering her future capacity to work. On the first Monday, the Applicant attended work and completed her five hour shift as required. The Applicant stated that she was fatigued after this shift and rested until the Wednesday and arrived an hour late because she was still affected. The Applicant completed another five hours and as a result, rested in bed for a few days and couldn’t go in on the Friday.

22. The following Monday however, she had sufficiently recovered to go back, two hours late this time and complete five hours. After this shift, the Applicant was fatigued and in bed for some ten days only getting up when essential, that is, to eat and use the bathroom. She referred to these as her “bed days”.   

23. It would seem that at that time last year (and I note her condition seems to have gotten worse) that the Applicant could not complete 15 hours plus a week independently of  a POS , certainly not work in a retail environment. I also note that she was able to sit down at work when there no customers to help. It does not seem as though she was standing for the entire shift.

24. As a Fibromyalgia sufferer, the Applicant has the ability to do things but pays the price after.  I believe that is most conclusively demonstrated by her experience at Big W last year.  

25. The Applicant attempted to get a job at a University shortly after the Big W job but had trouble with the written criteria. The Applicant stated that she had no self-esteem or confidence in terms of satisfying what was required. It was a job in administration.

26. Her job provider also assisted her with her application to enrol in a business course, but the Applicant could not complete the course. Further attempts to secure another job have been unsuccessful.

27. The applicant stated during the hearing that she needs an employer “who can put up with my unpredictable and fluctuating circumstances and abilities” and that even with her current POS target of seven to eight hours per week, there were some significant issues that she was struggling with.

28. One of the requirements of the Social Security Act 1991 (Cth) in section 94 (2) that has to be satisfied before a person can be granted DSP, is that the claimants impairment is of itself sufficient to prevent the claimant from doing any work (defined as work for at least 15 plus hours per week anywhere in Australia at or above the relevant minimum wage) independently of a POS within the next two years.

29. The idea behind this section, is that  a person who has some significant problems  can be helped by a POS to advance their work capacity  from say 0 to 7 hours, then from 7 to 14 and then to 15 plus hours a week (without assistance of the POS ) within that  the two year period.

30. If that doesn’t occur and a person can’t do 15 plus hours per week without assistance within 2 years and if that is unlikely to change, the law regards that as an indication that an applicant in this situation is not going to be able to hold down a job and the person thus meets the criteria for granting a DSP on that point.

31. In the Applicant’s case, admittedly the Big W trial was after the claim period but the arrangement was not suitable for the Applicant. The POS assisted her entering into the role however there were issues in terms of doing the job.  The Tribunal is satisfied that in light of the Applicant’s struggles, this merely reinforced the fact that as at the claim period and certainly now, it was not possible for the Applicant to successfully complete 15 plus hours plus a week in any job without assistance and that this is unlikely to change in the future.

32. The Tribunal does not believe that even with assistance, it is likely that the Applicant can complete 15 hours per week. The Tribunal is of the view that this is very unfortunate as the Applicant is a highly intelligent woman and the Tribunal would like to hope that there may still be some benefit in terms of her pursuing some form of administrative work.  Even if the Applicant could attend work five hours one week, eight the following week, rest for two weeks and  then return for 10  hours the week after that ,such a regime  would be beneficial to the Applicant .

33. However the Tribunal in the circumstances of this case is not satisfied that the Applicant can attend work for 15 plus hours a week on a regular weekly basis.

    OTHER CRITERIA UNDER THE ACT

34. The applicant certainly satisfies the criteria under section 94(1)(a) of the Social Security Act 1991  in terms of having a number of ailments. 

    FIBROMYALGIA

35. The Applicant was diagnosed with Fibromyalgia by Dr Michael Ferrante in the United States on 25 January 2011. This condition causes her a lot of pain and all parties accept that it was fully diagnosed, treated and stabilised as at the time of the claim period.  The Secretary contends that no more than 10 points in relation to this condition should be awarded under Table 1.

    SPINAL CONDITION

36. In terms of the Applicant’s Spinal condition, on 2 August 2011 Dr Jeffrey Wang,  orthopaedic surgeon, stated that the Applicant suffered from grade 2 spondylolisthesis  and severe degenerative disc disease at L5-S1 with lower back pain. This is treated by taking pain blockers and as already noted by the Applicant; she missed taking one lot due to her husband’s death and went without for eight months around 2016.  This as a result, caused her some significant pain.

37. The Tribunal notes that the Secretary felt that the Applicant’s spinal condition  wasn’t fully treated and stabilised but in considering all the evidence the Tribunal is of the view that there isn’t much more that she can do and it is really only a question of maintenance and pain relief.  The Applicant has explained why she did not take the pain blockers in 2016. The Tribunal accepts this.  I find this condition was as at the claim period fully diagnosed, treated and stabilised.

38. The Tribunal further notes that the Secretary felt that at any rate she would only qualify for 5 points under this table.  

    MENTAL HEALTH

39. The Applicants mental health condition under Table 5, in the Secretary’s view, was not fully diagnosed, treated and stabilised during the qualification period. 

40. There is however documentation before the Tribunal that indicates in the Tribunal’s view that this condition was fully diagnosed, notably, in respect to depression and anxiety. Dr Maryanne O’Donnell, Psychiatrist, Royal Prince of Wales Hospital on 29 November 2016, (i.e. during the claim period) stated that she “was aware throughout the time I have  known her that she herself suffers from Fibromyalgia causing a chronic pain syndrome and this has had  a marked impact on her mood and intermittent lethargy, depression and anxiety.” 

41. Greta Goldberg, a clinical psychologist, on 1 September 2011, stated that the Applicant presented with extreme anxiety and recommended interpersonal psychotherapy and cognitive behaviour therapy.  A Psychiatry Registrar, Dr Bautovich, stated on 7 November 2011 that the Applicant “may also have bipolar affective disorder II…as well as longstanding personality traits.”

42. It would seem then, that there has been some treatment over the years in relation to her mental health issues. I am comfortable enough to say that her condition of depression and anxiety had been fully diagnosed, treated and stabilised as at the claim period and I will make an assessment in relation to that.

43. A final ailment was mentioned in the report from neurologist, Dr Zagami, dated 27 January 2012. Dr Zagami stated that the Applicant had a tension-type headache and migraine and referred her for an MRI scan. The Tribunal notes that this condition could be related to Fibromyalgia or to falls that she has on a number of occasions. As a result of the falls, the Applicant stated that she does not use public transport, although the falls do not seem to affect her ability to drive.

44. Accordingly, there may be some issues as to whether she can be assessed under Table 7 for that condition on the basis it hasn’t been fully treated and stabilised. Indeed, the main falls seem to have been after the claim period, however, for the point of this exercise, I will also award her points there.

    POS

45. In relation to the POS, as at the time of her application, the Applicant had not completed the required 18 months in the preceding three year period unless one can count the help she received from Partners in Recovery run through the Department of Health and Ageing. This program does not aim to get people back into employment, but is rather designed to help improve a person’s health holistically. It is not listed as a program of support, it is rather, an after care rehabilitation service

46. Had Partners in Recovery been a POS, the Applicant may have completed 18 months in the three year period up until the date of the claim on 27 September 2016.  As the Applicant had ceased an approved POS in 2014, the Tribunal can only assign a little less than three months during the period 27 September 2013 to January 2014 when participation in the program ceased.

47. I note that now, as a result of what has been provided to the tribunal, it appears the Applicant has completed approximately 20 months of a program of support to date  This  may need to be confirmed and  it will need to be considered by the Secretary should the Applicant lodge a new DSP application.

48. In 2011, the legislation in respect to the DSP was changed which made it more difficult for applicants to qualify. The legislation led to the creation of 15 Tables and various descriptors within the Tables so a person  may be assigned zero, five , ten, twenty or thirty points after they that been assessed against the descriptors in terms of what  functions or tasks they could  or could not do.

49. Any medical reports prepared for a claim for DSP and/or for a case before the Tribunal need to refer to the Tables and the descriptors therein when assessing the client.

50. A doctor needs to outline whether a client is able to certain activities or whether there are physical limitations. Unfortunately there are many doctors who aren’t aware of these requirements but it is important that doctors are aware as reference and assessment is crucially important in terms of addressing the descriptors.

51. I have noted in a number of cases and mentioned to the Attorney General during the Administrative Appeal Tribunal’s conference in May 2018 that the Secretary should provide a check list to give to all DSP Applicants so that they are aware of what needs to be satisfied in order to qualify for the DSP.  

52. To dispense with the need to do a POS an Applicant needs to be allocated 20 points or more for a single table.  If an applicant is allocated 20 points or more from multiple tables, but not 20 points on a single table, they have to satisfy the requirements of a program of support. Whilst the applicant seems to have completed about 20 months of her current POS, in relation to this claim she only did 3 months maximum of her previous POS as discussed above.  

    CAN 20 POINTS BE ASSIGNED UNDER ONE TABLE

    Table 1 – Physical exertion and stamina

53. Based on the material before the Tribunal, the Applicant attracts at least five points.

54. In order to obtain  10 points under Table 1, The person (a) has to experience frequent symptoms of fatigue when performing day to day activities around the home and community and, due to these symptoms, the person is unable to walk far outside the home and needs to drive or get other transport to local shops or community facilities; or has difficulty performing day to day household activities and (b) is able to use public transport and walk around a shopping centre or supermarket; and perform work- related tasks of a clerical, sedentary or stationary nature.

55. Based on the evidence before the Tribunal, the Applicant needs to drive in order to go shopping and has difficulty performing day to day household tasks such as changing sheets.

56. The Applicant satisfies (b) as she can walk around a shopping centre or supermarket and can perform some household related tasks that are of a sedentary or stationery nature, that is, tasks that do not require a high level of physical exertion.  On this basis, the Tribunal believes that the Applicant qualified, as at the claim period for 10 points.  

57. In terms of obtaining 20 points, if the Applicant can be assigned 20 points under a single impairment table, a POS need not have been completed. In order to assign 20 points to the Applicant she must satisfy three out of the four descriptors in (1)(a) and also satisfy (b).

58. As the Applicant could walk into and around a shopping centre without the help of another person and as of the claim period, could use public transport without the help of another person she thus fails three out of the four descriptors. The fourth descriptor involves being able to perform light day to day household activities such as folding and putting away laundry.  The Tribunal is of the view that the Applicant could perform these activities at the time of the claim period and accordingly, cannot allocate 20 points to the Applicant.

    Spinal function –Table 4

1. Based on the material before the Tribunal, the Applicant attracts at least five points.

2. To attract 10 points there has to be a moderate functional impact on activities involving spinal function.  The person has to be unable to sit in or drive a car for at least 30 minutes and at least one of the following applies:  

3. Is she unable to sustain overhead activities, that is, access items over head height? There was some evidence that she was able to put items up four to six inches above her head, so she may not satisfy that descriptor.

4. Does she have difficulty moving her head to look in all directions? The Applicant doesn’t have difficulty moving her head looking in all directions. 

5. Is she is able to bend forward to pick up a light object at knee height?  And she can get in and out of a chair by herself?

6. The Tribunal is of the view that the Applicant may have difficulty attracting ten points under table 4.  

7. To attract 20 points, an Applicant must be unable to do any overhead activities, unable to turn their head or bend the neck without moving the trunk, unable to bend forward to pick up a light object from a desk or table or remain seated for more than ten minutes.

8. The Applicant can do all of the above and is unable to therefore attract 20 points.  It would seem she can only get 5 points for Table 4.

   Mental health – Table 5

9. To get five points a person has to have mild difficulties with four or more of the six descriptors. The applicant lives independently but may sometimes neglect self-care, grooming or meals. This occurs when the applicant is having a ‘bed day.’ The next descriptor applies if the applicant is not actively involved with social or recreational activities or travel. I don’t think this applies to her on the evidence.

10. In relation to interpersonal relationships, the applicant does not have interpersonal relationships that are strained by occasional tensions or arguments and she does seem to be able to focus on complex tasks for more than one hour.

11. She does have difficulties completing educational training but not through any lack of mental ability, it is physical, although, that may be becoming a little bit more of a problem the Tribunal believes in terms of mixing up appointments and things like that, but those are problems arising after the claim period.

12. She doesn’t have any unusual behaviours and again with her work training capacity, that is physically related.  

13. As at the claim period, the Tribunal is of the view that the Applicant would struggle to get even five points and certainly no more than five. I should say for most of the claim period, up until the last month (January 2017) she was a mess mentally as result of her husband’s death and might well qualify for 10 or even 20 points but that was only for a temporary period and was an aberration.

    Brain function – Table 7

14. For a person to get five points a person has to complete most day to day activities without assistance but has mild difficulties in at least one of the following, a) memory; the person occasionally forgets to complete a regular task or sometimes misplaces important items.  That is certainly true of the applicant. However, this problem has only come to light since the claim period. 

15. Accordingly, the Tribunal awards ten points under Table 1, five points (and if I am wrong there, 10 points for Table 4.)  In terms of mental health, zero to five points and  I would certainly award five points for the brain function ( Table 7 )  because of the issues she has now (but that doesn’t count for this claim as it is after the claim period ) .  As at the claim period this means a minimum of 15 points and a maximum of 25.

16. As she cannot get 20 points under the Tables for any one ailment as at the claim period , even if she could get  a total of 20 or 25 points for a combination of  tables 1,4 and 5 ,it is all academic because she has not satisfied the POS requirements when she applied for her DSP.

17. That means I will have to affirm the decision of the AAT1.

18. Since the claim period however, I note that the applicant has done a POS for about the last 19 to 20 months, and her conditions on the evidence before me, have not got any better and in some instances seems to have worsened. In addition there is now the issue of her brain function.

19. On the evidence before me, her mental health would probably still at best attract five points because she gets on well with people as much as anything else.  Her spinal function certainly attract 10 points and it’s possible (and she would need to get an update from a doctor) that she might now even get 20 points.

20. As the Applicant may now not be able to use public transport without the assistance of another person, she might be eligible for 20 points under Table 1.

21. However on the basis of the POS she has done and continues to do she may now only need to get a total of 20 points under several tables.

22. As the Applicant has had experience working at Big W which unfortunately did not work out, but seems to well and truly prove that she is highly unlikely to be able in the foreseeable future to do 15 plus hours a week  work of any kind  that also satisfies another requirement to qualify for a DSP.

23. Many people have applied for a DSP on several occasions before qualifying. The health of many applicants that come before this Tribunal seemed to often have worsened from the time they make their initial claim to the time they appear before the tribunal.

24. One merely has to satisfy the legislation and it is a matter of dotting the i’s and crossing the t’s in relation to the Tables.

25. To my mind it would be a great solution if the Applicant could, even if it was only for a few hours a week, do some form of administration work in order to use that excellent brain of hers. It would be great for her, her employer and the people she would be assisting. I would encourage her to try to do something along those lines even if it was volunteer work initially.

26. As I told the applicant at the hearing,  it would be an ideal situation if she could complete eight hours a week,  be well paid and not be eligible to receive the DPS purely because her  income was too high.

27. I would in all the circumstances, encourage the  applicant to take the Tables to her doctor, have her doctor address the descriptors in Tables one, four, five and seven, confirm the period of time that she participated in a POS and lodge another claim .

28. For the reasons given above, in relation to the current claim, the decision of the AAT1 will be affirmed.

I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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Associate

Dated: 10 December 2018

Date(s) of hearing:	11 October 2018, 31 October 2018 and 12 November 2018
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services