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

Hanson and Secretary, Department of Social Services (Social services second review) [2020] AATA 1374 (29 April 2020)
Division:GENERAL DIVISION
File Number: 2019/3271
Re:Brian Hanson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member
Date:29 April 2020
Date of written reasons: 20 May 2020
Place:Perth

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision of the Social Services & Child Support Division of the
Administrative Appeals Tribunal dated 3 May 2019.
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Brigadier A G Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s impairments were fully diagnosed, fully treated and fully stabilised at the qualification period – qualification period – whether Applicant’s impairments attract 20 points under the Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1)(a), 94(1)(b), 94(1)(c), 94(2)
Social Security (Administration) 1999 (Cth) – Schedule 2
Social Security (Active Participation for Disability Support Pension) Determination2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services, version 1.239
REASONS FOR DECISION
Brigadier A G Warner, Member
20 May 2020
INTRODUCTION

On 29 April 2020, the Administrative Appeals Tribunal (the Tribunal), at the conclusion of a hearing held that day, gave oral reasons for its decision to affirm the decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 3 May 2019. That AAT1 decision
affirmed a decision made by an Authorised Review Officer (ARO) dated

30 January 2019. That ARO decision affirmed an earlier decision to reject Mr Hanson’s claim for disability support pension (DSP) lodged on 21 December 2017.
The hearing was conducted by telephone conference and Mr Hanson gave evidence on affirmation.
The Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers.
Mr Hanson subsequently requested a written statement of reasons on 4 May 2020.

The written reasons which follow are distilled from the edited transcript of the oral reasons for decision given on 29 April 2020.
FACTS
Mr Hanson was born in 1959 and on 21 December 2017 lodged a claim for DSP with the Department of Human Services, now known as Services Australia (T42/232).
On 6 February 2018 the claim for DSP was rejected on the basis that Mr Hanson did not have an impairment rating of 20 points or more (T44/264).
On 30 January 2019, following a request for review, an ARO affirmed the decision to reject Mr Hanson’s claim for DSP (T51/290). The ARO made these key findings:
· Your conditions of mild to moderate multilevel spinal stenosis, plantar fasciitis, chronic bilateral testicular pain, prostatomegaly, right shoulder fracture with subacromial - subdeltoid bursitis and, bursal impingement are not accepted as being permanent as they have not been fully treated and stabilised; and
· You do not have an impairment rating of 20 points or more.
Mr Hanson sought review of the ARO’s decision by the AAT1. In a decision dated

3 May 2019, the AAT1 affirmed the decision to reject his claim for DSP (T2/3).
On 11 June 2019, Mr Hanson lodged an application for review with this Tribunal (T1/1). In the application Mr Hanson claimed the decision under review was wrong for the following reason:
The system is wrong – I can’t see a Neurosurgeon. Beause [sic] I can’t get to see a neurosurgeon in time for your decision... I have to suffer in poverty. I should never have been taken off as there was legitimate reason why I overstayed out of the country. I cannot work I have multiple pain sites every day. You guys and this system will drive me to suicide then I guess the powers that be will be happy. My life is shit and getting worse by the day. You guys are using out-of-date information.
(T1/2.)
ISSUE
The Tribunal must decide whether Mr Hanson was qualified for DSP, in accordance with

s 94 of the Social Security Act 1991 (Cth) (the Act), during the period 21 December 2017 to 22 March 2018 (the qualification period). This requires consideration of whether as at, or during, the qualification period:
(a)Mr Hanson had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act;
(b)
if so, whether Mr Hanson had an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) for the purpose of

s 94(1)(b)
of the Act; and
(c)if so, whether Mr Hanson had a continuing inability to work (CITW), a term as defined in s 94(2) of the Act, for the purpose of s 94(1)(c) of the Act.
LEGISLATION AND POLICY
The relevant legislation is contained in:
·the Act;
·the Social Security (Administration) Act 1999 (Cth);
·the Impairment Tables; and
·the Social Security(Active Participation for Disability Support Pension) Determination 2014.
Relevant policy is contained in the Guide to Social Security Law.[1] To ensure consistency in decision making, the Tribunal should follow the relevant policy unless there are cogent reasons for departing from it (Re Drake and Minister for Immigration and Ethnic Affairs
[1] Guide to Social Security Law, Department of Social Services, version 1.239.
(No 2) (1979) 2 ALD 634, 644–645).
The statutory and policy provisions are laid out comprehensively in the Secretary’s Statement of Facts, Issues and Contentions dated 13 December 2019

(Exhibit R1, pp 2-6 [12]-[32]). The qualification criteria for DSP can be summarised as follows:
(a)Section 94 of the Act sets out the first requirement for qualifications for the DSP, and that is that a person had an impairment at the time they lodged their claim. In this matter the Respondent accepts (Exhibit R1, pp 6 [34]), and the Tribunal is satisfied, that Mr Hanson meets this requirement as it is agreed that he had various conditions when he lodged his claim.
(b)The second requirement for DSP is also in s 94 of the Act and provides that a person’s impairment must rate 20 or more points against the Impairment Tables at the time they lodge their claim. To apply the Impairment Tables, the condition or impairment must be considered permanent. In the determination, the word ‘permanent’ does not have its usual meaning. For DSP purposes, for a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated and be fully stabilised; and be likely to last for more than two years.
(c)There is also a requirement that an applicant for DSP must have a CITW pursuant to s 94(1)(c) of the Act. For DSP eligibility, both the minimum qualification impairment threshold of 20 points and the CITW criteria must be met and they are of equal importance.
EVIDENCE
The Tribunal had before it the following evidence:
·the ‘T Documents’ (T1–T55, 1–356);
·the Application for Second Review of Decision dated 5 June 2019 (Exhibit A1);
·
the Secretary’s Statement of Facts, Issues and Contentions dated

13 December 2019, including the Secretary’s list of Authorities and Annexure A – Immigration Movements (Exhibit R1); and
·the oral evidence of the Applicant.
The Respondent amended the qualification period detailed in para [2] of Exhibit R1 to read 21 December 2017 to 22 March 2018 during the hearing.
CONSIDERATION
The Respondent accepts that, at the qualification period, Mr Hanson had physical impairments for the purpose of s 94(1)(a) of the Act (Exhibit R1, pp 6 [34]). However, the Respondent contends that Mr Hanson had a nil impairment rating at the qualification period and therefore does not satisfy s 94(1)(b) of the Act (Exhibit R1, pp 9 [49]). This review is

de novo and the Tribunal looks at the DSP claim afresh.
Qualification period
Mr Hanson’s claim for DSP must be assessed on Mr Hanson’s medical conditions as at the date of claim or within 13 weeks of that time, and that period is referred to as the qualification period. In this case that means the qualification period is 21 December 2017 until

22 March 2018.
The Respondent relevantly cites a number of authorities (Exhibit R1, pp 3–4) which establish that medical reports that have come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period, and that a decision-maker such as this Tribunal can only consider an applicant’s qualification for DSP within the qualification period. If the applicant’s circumstances have subsequently changed it may be appropriate for him or her to lodge a fresh claim for DSP.
Assessment of impairments under the Impairment Tables
Mr Hanson told the Tribunal that he suffered from a longstanding problem going back to his original workplace injury in 1986. His circumstances were exacerbated over time by a lack of diagnoses. Mr Hanson said his conditions have deteriorated and continue to deteriorate, and he described his body as ‘going downhill’. Mr Hanson said that he experiences six to eight pain sites per day, that he has recently been diagnosed with lymphoma and that now he was experiencing problems with his feet.
Spinal condition
The Respondent accepts that Mr Hanson's lumbar spine condition was fully diagnosed at the qualification period (Exhibit R1, pp 7 [36]).
The evidence is that Mr Hanson first suffered from this condition in 1989. He underwent investigations and treatment, which included physiotherapy and medication. He consulted a number of specialists in relation to this condition during the period 1996 to 2010, being:
·Dr R Diebold, orthopaedic registrar, February 1996 (T14/98);
·Dr B Baskaranathan, consultant physician in rheumatology and rehabilitation medicine, November 2000 and February 2001 (T17/101; T19/110–111);
·
Dr D Perlman, pain management specialist, June 2002 and December 2004

(T20/112–113; T26/159–166);
·Dr S Rogers, neurosurgical registrar, October 2009 (T30/181); and
·Dr I Bhaskar, senior neurosurgical registrar, January 2010 (T31/182).
A CT lumbar spine report by Dr G Carroll (Perth Radiological Clinic – Gosnells) dated

8 November 2016 showed mild to moderate multi-level spinal stenosis (T53/299–300).
In a report dated 29 August 2017, Dr Y Burke, general practitioner, diagnosed mild to moderate multilevel spinal stenosis, primarily discogenic in aetiology (T40/221).
In an open letter (T46/269) and a medical certificate (T46/268) both dated 14 May 2018,

Dr Burke recorded a diagnosis of low back pain secondary to multilevel spondylotic changes and bulging discs with nerve root impingement.
The evidence supports the Respondent’s position that Mr Hanson’s spinal condition was fully diagnosed at the qualification period, and the Tribunal so finds. However, the Tribunal needs to determine whether this condition was fully treated and fully stabilised at the qualification period, and has regard to the following:
(a)
In an open letter prior to the lodgement of Mr Hanson’s DSP claim, dated

18 July 2017, Dr Burke reported that Mr Hanson suffered chronic pain secondary to an old injury to the left hip and lower back and that he would benefit from residing in a warmer tropical climate (T38/214). Dr Burke also stated in the medical report dated 29 August 2017 that the treatment for Mr Hanson’s spine involved Lyrica and Tramadol. Dr Burke noted that past treatment involved specialist opinion

(Dr Baskaranathan) and that future/planned treatment was ‘[c]ontinue Lyrica + Tramadol. Recommend residing in a warmer climate e.g. Philippines’

(T40/221–222).
(b)In the ‘Medical Report – Disability Support Pension Review for portability form’ dated 28 August 2017, Mr Hanson stated that the treatment of his conditions involved medication – Tramadol and Lyrica (T40/217). Before the Tribunal, Mr Hanson said that at the time of his DSP claim he had not undergone any specialist review since January 2010 and largely self-managed his pain medication. There is no evidence, and Mr Hanson confirmed this during the hearing, that the medication has been formally reviewed.
(c)
In the medical certificate dated 14 May 2018 (after the qualification period), Dr Burke noted that Mr Hanson’s treatment included ‘Referral to Pain clinic’ (T46/268).

Mr Hanson told the AAT1 that he had recently attended a pain management clinic for an assessment and suggestions regarding further management possibilities, and he was offered a wide range of therapies and treatments, including occupational therapy, psychological counselling and appointments with the ‘pain nurse’. He said he was now taking very strong analgesic medication and his general practitioner was of the opinion that he needed to consult a specialist for further assessment and treatment, and that he was waiting to see a neurologist (T2/7–8).
(d)
With respect to his attendance at the pain clinic in March 2018, Mr Hanson told the Tribunal that he thought there was nothing offered that would personally help him (T2/7–8). In his application for this review dated 5 June 2019, Mr Hanson stated that he had not yet seen a neurologist (Exhibit A1, see also para [9] above),

and before the Tribunal he advised that he had attended a neurologist in

November 2019, some 18 months after the end of the qualification period.
(e)
With respect to psychological counselling, Mr Hanson told the Tribunal that he had started to see a psychologist in December 2019 or January 2020, had attended three or four times and was due to return for another appointment on 6 May 2020.

Mr Hanson also told the Tribunal that only an hour before the hearing he had engaged in a telephone consultation with an orthopaedic surgeon, and a

face-to-face consultation was planned in a month or so when circumstances would allow it.
The evidence shows that at the qualification period, Mr Hanson had not undertaken all recommended and reasonable treatment for his spinal condition. The Tribunal finds that the condition was not fully treated and not fully stabilised and therefore cannot attract impairment points under the Impairment Tables.
Other conditions
There is medical evidence that Mr Hanson has been diagnosed with plantar fasciitis, bilateral testicular pain, prostatomegaly, prostatism, left hip pain, right shoulder bursitis, left shoulder bursitis and Raynaud’s phenomenon (T40/220; T46/269; T53/299–305). However, there is insufficient evidence to enable the Tribunal to determine whether these conditions were fully treated or fully stabilised at the qualification period. The Tribunal notes that the Employment Services Assessment Report dated 17 May 2018 includes assessment of only the spinal disorder and the shoulder and upper arm disorder. It does not consider the other conditions (T47).
Mr Hanson told the Tribunal that he now has a condition or a problem with his feet, but there is similarly no relevant evidence before the Tribunal that might give rise to an impairment rating.
A PathWest pathology report by Chris Van Vliet, dated 15 December 2018 and therefore some nine months after the qualification period, identifies a low-grade non-Hodgkin’s lymphoma, and noted that further investigation was required regarding a differential diagnosis (T49/287). Having regard to the date of diagnosis, the Tribunal takes this condition no further in the current determination of Mr Hanson’s eligibility for DSP.
The Tribunal finds that at the qualification period, Mr Hanson’s other conditions were not fully treated and stabilised and therefore are unable to be assessed under the Impairment Tables
Total impairment rating
The Tribunal finds that at the qualification period Mr Hanson’s conditions were not fully treated and stabilised and therefore attracted nil impairment points under the Impairment Tables. He therefore does not satisfy s 94(1)(b) of the Act, and does not qualify for DSP.
Section 94(1)(c) – Continuing inability to work
As Mr Hanson does not satisfy s 94(1)(b) of the Act, it is not strictly necessary for the Tribunal to consider whether he has a continuing inability to work under s 94(1)(c) of

the Act.
For completeness, the Respondent contends that Mr Hanson did not satisfy s 94(2) of

the Act and did not have a CITW during the qualification period (Exhibit R1, pp 12 [69]).

The Respondent’s contention relies on detailed submissions at paras [51]–[68] of

Exhibit R1, which the Tribunal accepts. The Tribunal particularly notes the evidence that

Mr Hanson had not commenced a program of support at the date of claim, and the Employment Services Assessment Report determination dated 17 May 2018 that

Mr Hanson had a capacity for work within two years with intervention of 15–22 hours per week (T47/274).
CONCLUSION
The Tribunal finds that Mr Hanson’s conditions do not attract an impairment rating of

20 points or more under the Impairment Tables and that he does not have a CITW. It follows that Mr Hanson was not qualified for DSP during the qualification period.
The Tribunal reiterates the final note of the AAT1 decision:
… [I]f the circumstances of Mr Hanson’s medical and psychological conditions and his capacity to manage have altered during the months after he lodged the current claim for the pension or if he has new and/or more detailed medical evidence that confirms that the medical and psychological conditions that affect him have been thoroughly investigated, optimally treated and stabilised (including details of ongoing functional impact of the stabilised conditions), and no further investigations and/or treatments are being considered for them, he may consider testing his eligibility for disability support pension afresh by a further claim, and Centrelink would consider the new information, including evidence of his participation in a program of support, in the assessment of any fresh applications for the pension.
(T2/9.)
DECISION
The Tribunal affirms the decision of the Social Services & Child Support Division of
the Administrative Appeals Tribunal dated 3 May 2019.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

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Associate
Dated: 20 May 2020

Date of hearing: 29 April 2020

Applicant: Self-represented, by telephone

Representative for the Respondent: Ms D Jones-Bolla

Solicitors for the Respondent: Sparke Helmore

[2020] AATA 1374

29 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	29 April 2020
Applicant:	Self-represented, by telephone
Representative for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore