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

[2017] AATA 458

Harrison and Secretary, Department of Social Services (Social services second review) [2017] AATA 458 (10 April 2017)

DivisionGENERAL DIVISION

File Number            2016/2496

ReMiss Rebecca Harrison

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

TribunalMr Conrad Ermert, Member

Date10 April 2017  

PlaceMelbourne

The Tribunal affirms the decision under review.

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

Mr Conrad Ermert, Member

SOCIAL SECURITY - Disability Support Pension - cancellation - relevant date - whether physical, intellectual or psychiatric impairment - whether impairments fully diagnosed, fully treated and fully stabilised - whether impairment rating of 20 or more points - decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975

Social Security (Administration) Act 1999
Social Security Act 1991

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

CASES

Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180; [2013] AATA 558

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; [1988] FCA 294

REASONS FOR DECISION

Mr Conrad Ermert, Member

10 April 2017

INTRODUCTION

1. On 5 December 2008 Miss Rebecca Harrison, the Applicant, was granted a Disability Support Pension (DSP) as a result of her disabilities from recalcitrant eczema.  On 15 December 2015, following a review of her qualification for DSP, an officer of Centrelink decided that she was no longer qualified for the receipt of DSP.  Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent.

2. Miss Harrison sought a review of the decision.  On 29 February 2016 an Authorised Review Officer (ARO) of Centrelink affirmed the decision to cancel the DSP.  Miss Harrison sought a further review and on 4 May 2016 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision of the ARO.

3. On 12 May 2016 Miss Harrison lodged an application for a review of the AAT1 decision. This matter is a review of that decision.

   HEARING

4. Both parties appeared at the hearing by telephone.  Mr Gerard Goodwin, her partner and carer, represented Miss Harrison at the hearing.  Miss Harrison gave evidence under affirmation.  Ms Belinda Lewis, of the Department of Human Services, represented the Respondent.

5. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). In addition I had Supplementary T-Document ST1 – a report of Dr Zeiyad Al Mayahe dated 2 September 2016.

6. For the Respondent I took in for consideration the Secretary’s Statement of Facts, Issues and Contentions dated 23 February 2017.

   LEGISLATION

7. The relevant legislation is contained in the:

   ·    Social Security Act 1991 (the Act),

   ·    Social Security (Administration) Act 1999 (the Administration Act), and

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

8. Section 94(1) of the Act details the requirements for qualification for DSP as follows:

   (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…

   Relevant Date

9. The Respondent submits that the relevant date for the determination of Miss Harrison’s qualification for DSP is 15 December 2015, that being the date of the cancellation.  In support of this contention the Respondent cites the decision of the Federal Court in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; [1988] FCA 294.

10. Following the reasoning in Freeman I find that the Relevant Date in this matter is 15 December 2015. 

    EVIDENCE

11. In her evidence, Miss Harrison stated that at the Relevant Date she was taking medications to control the dermatitis, which was not getting better.  She was under the care of Dr Bruce Tate, Dermatologist.  She said that Dr Tate changed her medication again in 2016 “to get the correct dosage”. 

12. Responding to questions about her eczema condition Miss Harrison said:

    ·the condition impacts on her daily activities; she has severe scarring, she suffers aches, her joints swell, her skin is very thin and tears easily, and bruises can result in blood clots;

    ·she does not do household chores, which are all done by her partner; prior to her partner’s help the chores were done for her by her parents and friends;

    ·she cannot do vacuuming and has to leave the room when it is being done to avoid the dust particles; dust and chemicals can penetrate through open wounds in her skin and cause infections;

    ·the eczema affects her whole body including her scalp which is now shaved;

    ·asked about the report of the Job Capacity Assessor (JCA) dated 12 November 2015 which recorded “Miss Harrison did not show any signs of eczema … on her hands, arms or face …”  Miss Harrison explained that could have shown the eczema to the JCA but she was not prepared to take off her clothes at the interview;

    ·her eczema has deteriorated since December 2015;

    ·she applies ointments generally twice per day but this may increase to three or four times per day if the day is hot or humid, causing her to perspire; and

    ·even when wearing a special hat and protective clothing she can only go out into the sun for five to ten minutes as her body overheats; she cannot use sunscreens.

13. In regard to her depression Miss Harrison said that she started seeing a Clinical Psychologist in 2016 from whom she receives counselling and prescriptions for medications.

14. In regard to her renal function, Miss Harrison said that at the Relevant Date she was being treated by her General Practitioner (GP).  She said she has not yet been seen by a specialist.

15. Miss Harrison said her hypertension causes her to have blackouts.  She is still undergoing tests to determine the cause.

16. In regard to her obesity, Miss Harrison said she was trying to lose weight.  She had previously seen a dietician but found that she was allergic to the prescribed diet.  She cannot do much exercise in case she perspires, with the risk of infections.  Miss Harrison said she followed the advice of her GP and no longer has take-away foods and soft drinks.  She does five minutes daily on the treadmill.

    TRIBUNAL CONSIDERATIONS

    Impairments (section 94(1)(a) of the Act)

17. The Respondent accepts that Miss Harrison suffers a number of impairments and that she satisfies the provisions of section 94(1)(a) of the Act.  Miss Harrison’s accepted conditions are:

    ·Chronic Severe Eczema;

    ·Depression;

    ·Impaired Renal Function;

    ·Morbid Obesity; and

    ·Hypertension.

18. I am satisfied that the medical evidence supports the concession and I find accordingly.

    Impairment Rating (section 94(1)(b) of the Act)

19. I will now consider each condition and determine whether Miss Harrison’s impairments attract an impairment rating of 20 or more points in order to satisfy section 94(1)(b) of the Act.

20. Section 6(3)(a) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the impairment is permanent and is more likely than not to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition:

    (a)has been fully diagnosed by an appropriately qualified medical practitioner, and

    (b)has been fully treated, and

    (c)has been fully stabilised.

    Chronic Severe Eczema

21. In the Secretary’s Statement of Facts, Issues and Contentions the Respondent accepts the condition as being fully diagnosed, fully treated and fully stabilised at the Relevant Date.  In her oral submissions Ms Lewis also accepted that the condition was fully diagnosed, fully treated and fully stabilised, although noting that Miss Harrison gave evidence that Dr Tate had made changes to her medication at some time in 2016.  In its decision, the AAT1 was satisfied that Miss Harrison’s condition of severe and chronic eczema was fully treated, diagnosed and stabilised.

22. The medical reports record that the Miss Harrison has had the condition since infancy.  She attended a specialist dermatologist in 2008 and has had continuing care from her GP.  I note the following reports as relevant:

    ·JCA report dated 12 November 2015 which records:

    This condition is considered to be fully diagnosed, treated and stabilised at this time.  Miss Harrison has engaged in all reasonable treatment for this condition and any further treatment is unlikely to improve function in the next 2 years. 

    ·Dr Al Mayahe dated 6 November 2015 which records that the condition was well controlled at the time and that Miss Harrison may have some capacity in six to nine months’ time when the medications and conditions have stabilised.

23. I am not satisfied that Dr Al Mayahe’s opinion that Miss Harrison may have some capacity in six to nine months is sufficient to indicate that further treatment is likely to result in in significant functional improvement to Miss Harrison’s functional abilities. 

24. I accept that the condition is fully diagnosed, fully treated and fully stabilised in the terms of the Impairment Tables.  Accordingly I am able to assign an impairment rating to the condition.

25. The Instructions to Table 14 – Functions of the Skin provide that the self-report of symptoms alone is insufficient and there must be corroborating medical evidence of the person’s impairment.  I note the following reports:

    ·Dr Tanja Bohl dated 10 December 2008 which records:

    “Impaired endurance in heat/artificial cooling / Increased risk of infection…”;

    ·Dr Tate dated 26 November 2008 which records:

    “Rebecca has had widespread atopic dermatitis for most of her life though it has worsened over the last 6 months.  It is on her face, trunk and limbs.  It is excoriated and lightly infected although this is not a significant problem at present

    …

    Recently she started work as a cleaner and a few days later developed significant swelling of her face, a flare of her eczema and respiratory problems requiring a brief admission.  She has stopped work there and I have advised her to keep away from wet work type jobs”;

    ·Dr Al Mayahe dated 3 August 2015 which records:

    “… severe recurrent dermatitis and eczema which interferes with normal daily activity and reduce capacity to work”;

26. The Respondent accepts an impairment rating of 10 points is appropriate.  In its decision the AAT1 attributed a rating of 10 points to the condition. 

27. For a higher rating of 20 points the descriptors in Table 14 require relevantly:

    (1)Regarding the person’s significant modifications to, or inability to perform, daily activities, at least two of the following apply:

    (a)the person has severe difficulties performing activities involving use of their hands due to major skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. severe allodynia) and is unable to perform some tasks involving use of the hands;

    (b)…

    (c)the person has severe difficulties performing daily activities due to extensive or severe lesions on the skin which require creams or dressings and limit movement and comfort (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

    (d)the person has severe difficulties performing daily activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and can spend only a brief period of time in sunlight each day even when wearing sunscreen and protective clothing;

    (e)…

28. The corroborating evidence is that Miss Harrison has an impaired endurance in heat and cooling conditions and an increased risk of infection.  She is advised to avoid wet work tasks and her dermatitis interferes with normal daily activities and reduces her capacity for work. 

29. I am not satisfied that the evidence supports the level of severity required the descriptors of subparagraphs (1)(a) and (1)(c).   In regard to the descriptor of subparagraph (1)(d), Miss Harrison’s evidence is that her difficulty in being outdoors is a problem of overheating, not a susceptibility to sunlight.  This is corroborated by Dr Bohl who records a reduced endurance to heating and cooling.  I am therefore unable to find that at least two items from the severe impairment part of Table 14 apply to Miss Harrison’s condition.

30. I find that Miss Harrison’s impairment from this condition correctly attracts a rating of 10 points. 

    Depression

31. In considering whether Miss Harrison’s depression has been fully diagnosed I note the requirements of the Introduction to Impairment Table 5 – Mental Health Function that “The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

32. Miss Harrison’s evidence is that her condition was first reviewed by a clinical psychologist in 2016.  Although this is after the Relevant Date, there is scope for the Tribunal to consider a condition diagnosed after the Relevant Date in circumstances where there is evidence that a person suffered from the condition in the Relevant Period (see Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180; [2013] AATA 558 at 206-207; [88]). Those circumstances do not arise here due to the absence of a report from either a clinical psychologist or an appropriately qualified medical practitioner concerning the depression.

33. I find that, at the Relevant Date, Miss Harrison’s depression was not diagnosed as required by the Impairment Tables.  Accordingly, the condition was not permanent in the terms of the Impairment Tables and I am unable to assign an impairment rating to the condition.

    Impaired Renal Function

34. The report of Dr Al Mayahe dated 3 August 2015 records a diagnosis of impaired renal function secondary to medication.  There is no recorded requirement from a treating doctor for a specialist opinion.  I am satisfied that the condition has been diagnosed by an appropriately qualified medical practitioner and is fully diagnosed in the terms of the Impairment Tables.

35. In the same report Dr Al Mayahe records the treatment as under observation.  In his report dated 6 November 2015 Dr Al Mayahe records the treatment as regular blood test to monitor kidney function.  In his reports dated 19 December 2015 and 26 February 2016 Dr Al Mayahe describes the condition as being under control.  I am satisfied that, at the Relevant Date, the condition was fully treated and fully stabilised in the terms of the Impairment Tables. 

36. I am satisfied that at the Relevant Date the condition was permanent in the terms of the Impairment Tables.  Accordingly, I am able to assign an impairment rating to the condition.

37. The only corroborated evidence of the impact of the condition is that contained in the report of Dr Mayahe dated 3 August 2015 who describes the symptoms as “tired, lethargy, lack of concentration, mental liable”.  From this evidence I am satisfied that the condition caused minimal impact on her ability to function.  I assign an impairment rating of zero points to the condition.

    Morbid Obesity

38. In his report dated 3 August 2015 Dr Al Mayahe lists morbid obesity as a condition of Miss Harrison that is well managed and causes minimal or limited impact on her ability to function.  From its listing in the report I accept that the condition was fully diagnosed, fully treated and fully stabilised.  As the condition causes minimal impact on her ability to function I assign an impairment rating to this condition of zero points.

    Hypertension

39. In his report dated 3 August 2015 Dr Al Mayahe lists hypertension as a condition of Miss Harrison that is well managed and causes minimal or limited impact on her ability to function.  From its listing in the report I accept that the condition was fully diagnosed, fully treated and fully stabilised.  As the condition causes minimal impact on her ability to function I assign an impairment rating to this condition of zero points.

    Total Impairment Rating

40. I have found that at the Relevant Date Miss Harrison’s conditions attracted the following assessments:

    ·Chronic Severe Eczema – 10 impairment points;

    ·Depression – not fully diagnosed, unable to assign impairment points;

    ·Impaired Renal Function – zero impairment points;

    ·Morbid Obesity – zero impairment points; and

    ·Hypertension – zero impairment points.

    The total impairment rating at the Relevant Date is 10 points.  This is not sufficient to satisfy the requirements of subsection 94(1)(b) of the Act.

    CONCLUSION

41. As Miss Harrison’s impairments do not satisfy subsection 94(1)(b) of the Act, she can not meet all the requirements of section 94(1) of the Act.  As she can not meet all the requirements of section 94(1), I have no need to consider the provisions of subsection 94(1)(c) of the Act.

42. I find that, at the Relevant Date, Miss Harrison was not qualified for the receipt of DSP.  This means that the decision of the AAT1 is the correct and preferable decision.

43. Miss Harrison’s evidence was that her conditions have deteriorated since the Relevant Date and that she has more recently been referred to other medical specialists for opinion and treatment.  Under these circumstances Miss Harrison may wish to lodge a new application for DSP for consideration of her current condition and treatments.

    DECISION

44. I affirm the decision under review.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Associate

Dated             10 April 2017

Date of hearing	21 March 2017
Advocate for the Applicant	Mr Gerard Goodwin, Partner
Advocate for the Respondent	Ms Belinda Lewis, Solicitor
Solicitors for the Respondent	Department of Human Services