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

[2021] AATA 790

Hare and Secretary, Department of Social Services (Social services second review) [2021] AATA 790 (7 April 2021)

Division:GENERAL DIVISION

File Number(s):      2020/2515

Re:Shane Hare

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:7 April 2021

Place:Sydney

The decision under review, being the decision of AAT1 dated 7 April 2020, is affirmed.

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

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the Applicant has a disability of at least 20 points under Impairment Table – whether the impairment was fully diagnosed, fully treated and stabilised – whether the impairment was present at time of claim or within 13 weeks – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), Schedule 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), ss 5, 6

CASES

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

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

1. Shane Hare (“Mr Hare”) applied for Disability Support Pension (“DSP”) on 23 March 2018.  His application was rejected by the Secretary of the Department of Social Services (“the Respondent”) on 17 May 2018.  The decision to reject his application was affirmed by an Authorised Review Officer (“ARO”) on 6 December 2018.  Mr Hare subsequently appealed the decision to the Social Services and Child Support division of this Tribunal (“AAT1”) which again affirmed the decision made on 17 May 2018.  Mr Hare now appeals the AAT1 decision at the General Division of the Tribunal (“the Tribunal”). 

   BACKGROUND

2. In 2005 Mr Hare was injured in a workplace accident.  In his application for review Mr Hare writes that his doctors and specialists have told him he cannot return to work.  Following the application which is the subject of this review, Mr Hare made a subsequent, successful application for DSP.  He contends that his case was “ignored and messed up by Centrelink” and requests that his DSP payments are backdated to 23 March 2018. 

3. During the hearing Mr Hare gave evidence that he cared for his two daughters when they stayed with him, but otherwise he lived alone and independently.  He said that he receives some help from friends but is required to be self-sufficient out of necessity. 

   CRITERIA TO BE APPLIED

   Qualification for Disability Support Pension

4. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (‘the Act’) sets out the criteria for qualification for payment of DSP:

   94Qualification for disability support pension

   (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; …

5. The Impairment Tables referred to in paragraph 94 (1)(b) of the Act are “designed to assign ratings to determine the level of functional impact that a condition has on an applicant.”[1] Only medical conditions that are permanent, have been fully diagnosed, fully treated and fully stabilised and are likely to persist for at least two years, can be allocated points under the Impairment Tables.[2]

   [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Impairment Tables”), s 5(2)(d)

   [2] Ibid, s 6(3)

6. Subsection 6(6) of Part 2 of the Impairment Tables sets out the requirements for a condition to be ‘fully stabilised’:

   (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

   (b)the 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.

7. Reasonable treatment is defined at subsection 6(7) of the Impairment Tables as 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.

   The Qualification Period

8. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

9. As noted, Mr Hare lodged his claim for DSP on 23 March 2018 and triggered the assessment process to determine eligibility. As a result, Mr Hare must be found to qualify for DSP on the date of the claim or within 13 weeks thereafter (i.e. 22 June 2018). I will refer to this as the “qualification period”.

10. The practical implication of the above for this application is that the Tribunal can only consider Mr Hare’s conditions and qualification for DSP during the qualification period. The Tribunal notes that the medical reports that come into being after the relevant period are only pertinent to the extent that they refer to Mr Hare’s conditions during the qualification period.[3]

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

    Continuing Inability to Work

11. Paragraph 94(1)(c)(i) of the Act requires that to be eligible for DSP a person must have a continuing inability to work. The requirement for a continuing inability to work is satisfied in two circumstances: if the person has a severe impairment – meaning they have an impairment of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table; or alternatively, if they have actively participated in a “program of support” and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, in the next two years.

    ISSUE

12. The issue before the Tribunal is whether Mr Hare qualified for DSP during the qualification period.

    MEDICAL CONDITIONS AND EVIDENCE

13. The Secretary accepts, and based on the evidence the Tribunal agrees, that Mr Hare had physical intellection or psychiatric impairments during the qualification such that he satisfied paragraph 94(1)(a) of the Act.

    Left shoulder and brachial plexus injury

14. Mr Hare has presented a report from his General Practitioner Dr Omair Masood dated 20 August 2020.  Dr Masood’s report was prepared in order to support Mr Hare’s application for DSP and provides an overview of Mr Hare’s medical history. 

15. In relation to the left shoulder and brachial plexus injury Dr Masood writes that Mr Hare’s condition was diagnosed by Dr Paul Teychenne who assessed him between 14 July 2018 and 17 October 2020. He notes that Dr Nelmes issued Mr Hare a certificate of work capacity on 26 March 2019 confirming that Mr Hare had no capacity for work.  Dr Masood concludes that this condition is a severe impairment which “results in severe functional impact on activities involving spinal function” which in his view warrants the allocation of 20 points under the impairment table for activities involving spinal function, which is Table 4. 

16. The Respondent contends that this condition was not fully diagnosed, treated and stabilised during the qualification period.  The Respondent’s contention is based on the report by orthopaedic surgeon Dr Pillemer who reviewed Mr Hare’s injury to his left shoulder on 26 October 2017 and reported that Mr Hare’s symptoms were not arising from his cervical spine or left shoulder.  Under the heading “future treatment” Dr Pillemer writes that “the most important aspect of future treatment is to make a firm diagnosis as Mr Hare is in a fairly desperate state at the present time”.[4] He also concludes that a “firm diagnosis has not been achieved”.  Dr Pillemer also recommends that Mr Hare “needs to see a neurologist”. 

    [4] Tribunal documents, T10 at p. 113

17. Mr Hare saw neurologist Dr Paul Teychenne in July 2018, as noted by Dr Masood.  Dr Teychenne diagnosed Mr Hare with an incomplete cervical cord lesion and, following further testing, confirmed his diagnosis on 8 August 2018.[5]  The Respondent submits that Mr Hare could not have accessed reasonable treatment during the qualification period for a condition that had not been fully diagnosed at that time. 

    [5] Ibid, at T19

18. The evidence suggests that the nature of this condition and Mr Hare’s symptoms led to conflicting assessments as to the cause. This is demonstrated by Dr Teychenne, who noted that Dr O’Sullivan had on 14 October 2020 reiterated that he disagreed with Dr Pillemer’s assessment of neurological involvement.

19. In a report dated 9 January 2020, Dr Pillemer concludes:

    …[i]n my opinion the most important aspect would be to obtain a firm diagnosis… I suggested a neurologist’s opinion on him, and as noted above he saw Dr D O’Sullivan (neurologist) on 4 March 2019 and Dr O’Sullivan did not feel that there was any neurological involvement.  Obviously then, my opinion differs from his. 

20. Dr Pillemer continues “[i]n my opinion Mr Hare’s condition can now be regarded as having stabilised/reached maximal medical improvement”. 

21. As Dr Pillemer’s report was completed in 2020 and Mr Hare was consulting Dr O’Sullivan in March 2019, some seven months after the qualification period, I am not satisfied that this condition was fully diagnosed, treated and stabilised for the purposes of assigning an impairment rating during the qualification period. 

    Mental health conditions

22. Mr Hare did not list his mental health conditions in his original claim for DSP and it was not considered by the AAT1 in the decision under review.  He did, however, list Kate Veljaca as a treating medical professional who may be able to provide information to the Respondent. 

23. The Tribunal has considered the reports of Ms Veljaca as “new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision.”[6]

    [6] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].

24. In a report dated 3 April 2020 Ms Veljaca writes that Mr Hare has been a “client of the service” since 2016, though it is unclear when he started seeing Ms Veljaca or the exact treatment he received and when.  She writes that “Mr Hare’s psychological presentation bears all of the hallmark features of a trauma- and stressor-related disorder, but a diagnosis of the same cannot be made because the trauma-related symptoms were not triggered by an event involving actual or threatened death. The trauma experienced, however, does represent to Mr. Hare a real threat to his sense of integrity, personal security, capacity and livelihood”. 

25. In her report dated 30 July 2020,  Ms Veljaca opines that Mr Hare meets the DSM-V criteria for major depressive illness with anxious distress and claims that her assessment represented a “true picture of Mr Hare’s current function and reflect his mental state and function as it was observed and assessed March 2018”. 

26. It is the Secretary’s contention that Mr Hare’s mental illness was fully diagnosed but not full treated or stabilised during the qualification period. 

27. Ms Veljaca references a mental health care referral plan dated 7 October 2016 and a specialist Neurological Report prepared by Dr Teychenne dated 30 November 2018 as the “documents review”.  She does not provide any indication of the duration of her treatment with Mr Hare or the frequency of his treatment though she does observe that he “has been responsive to treatment and support” and notes limited therapeutic progress has been made in “nearly four years”.  Though this would appear to indicate she has been seeing Mr Hare for “nearly four years” she does not explicitly state as much.  Her reference to Mr Hare being a “patient of the practice” since October 2016 is taken by the Tribunal to indicate that Mr Hare has not been her patient consistently since that date.

28. Mr Hare’s Medicare Patient History Records record that the first time Mr Hare saw Ms Veljaca under Medicare was 31 March 2020.  At the hearing, he contended that he saw Ms Veljaca for a year prior to submitting his application for DSP.  When asked about payment and the Medicare patient history records, Mr Hare suggested that Ms Veljaca provided treatment to him at no cost.  He also speculated that treatment from Ms Veljaca may have been paid by his workers compensation. 

29. Mr Hare was also asked why Dr Pillemer did not report Mr Hare’s mental health conditions in October 2017. Mr Hare said that he did not tell Dr Pillemer about his mental health conditions because he did not consider it relevant, and that his focus was his physical injuries. 

30. I note that the ESA Report submitted 10 January 2019 records that Mr Hare has been seeing Ms Veljaca for two years at that time, which is broadly consistent with his claim as to the treatment he received from Ms Veljaca in relation to the qualification period.   

31. Nonetheless, even accepting that Ms Veljaca has been treating Mr Hare since 2016 as he submits, the Secretary’s position remains that Mr Hare’s mental health condition was not optimally treated at the qualification period as he had not taken any medication for his condition for a year prior to claiming DSP and did not do so until December 2019.  PBS records indicate that whilst Mr Hare was dispensed Mirtazapine on 10 December 2019, he did not take any medication for his mental health from 1 September 2015 until that time.  Since 10 December 2019, Mr Hare has been regularly medicated and trailed various anti-depressant medications and anti-anxiety medications.

32. The mixed contemporary evidence of Mr Hare’s use of anti-depressant medication after the qualification period supports a conclusion that his condition was not fully treated or stabilised during the qualification period. 

33. Further, Mr Hare’s mental health conditions had not been reviewed and assessed by a psychiatrist at the end of the qualification period.  The Secretary submits that it is reasonable to expect that given the severity of Mr Hare’s condition as reported, reasonable treatment might be to attend on a psychiatrist in conjunction with sustained psychological treatment. 

34. Whilst the Tribunal accepts that Mr Hare suffers from depression and anxiety, there is insufficient evidence that his condition was eligible for an impairment rating during the qualification period.  Even accepting that Mr Hare was receiving treatment from Ms Veljaca consistently since 2016 as he contends, the evidence as it relates to the qualification period detailing the functional impact of his impairment at that time does not support the conclusion that it was fully diagnosed, treated and stabilised. 

35. As such the Tribunal cannot assign an impairment rating to Mr Hare’s mental health condition. 

    CONCLUSION

36. The Tribunal has concluded that Mr Hare was not eligible for 20 impairment points or more during the qualification period. This does not the meet the requirements set out in paragraph 94(1)(b) of the Act, and as such it is not necessary for the Tribunal to consider if he meets the requirements in paragraph 94(1)(c) of the Act in relation to having a continuing inability to work as his claim for DSP, dated 23 March 2018, cannot succeed.

    DECISION

37. The decision under review, being the decision of the AAT1 dated 7 April 2020, is affirmed. 

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated: 7 April 2021

Date(s) of hearing:	1 February 2021
Solicitors for the Respondent:	Lesley Ng, Services Australia