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

[2021] AATA 1047

Harvey and Secretary, Department of Social Services (Social services second review) [2021] AATA 1047 (23 April 2021)

Division:                  GENERAL DIVISION

File Number(s):      2019/2149

Re:Kathryn Harvey

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr N A Manetta

Date:23 April 2021

Place:Adelaide

The Tribunal sets aside the Level 1 Tribunal decision under review and, in place of the Level 1 Tribunal decision, substitutes a decision as follows:

(a) first, the decision of the authorised review officer (ARO) dated 29 October 2018 is set aside; and

(b) secondly, in place of the ARO’s decision, it is decided that Ms Harvey satisfied all requirements for a disability support pension prescribed in section 94 of the Social Security Act 1991 when she lodged her claim for a disability support pension in February 2018. 

....................[Sgnd].....................

Dr N A Manetta

Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – Impairment Tables - Table 11 – whether a person suffering frequent attacks of dizziness affecting balance had “continual” difficulty with balance for the purpose of the 20-point descriptor – held the applicant did have “continual” difficulty with balance in these circumstances – 20 points awarded – all other prerequisites satisfied – decision set aside

Legislation

Social Security Act 1991 (Cth).

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

REASONS FOR DECISION

Dr N A Manetta

23 April 2021

1. This is an application by Ms Kathryn Harvey seeking a review of a Level 1 decision of this Tribunal dated 22 March 2019. By its decision, the Tribunal affirmed earlier decisions taken in the respondent’s Department to deny Ms Harvey a disability support pension.  

   TRIBUNAL’S TASK

2. Hearing the matter afresh on the evidence before me, I must decide whether Ms Harvey was qualified for the pension when she lodged her claim.  The Tribunal proceeds de novo in this sort of proceeding and it decides the matter afresh. This means that I may affirm the decision under review notwithstanding the presence of an error in the Level 1 Tribunal’s decision if that is the correct or preferable decision to reach on the evidence before me. Equally I may set aside the decision under review notwithstanding the absence of any discernible error in the Level 1 Tribunal’s decision. At the hearing before me, Ms Riley appeared for the applicant; Ms Odgers, for the respondent.

   STATEMENT OF CONCLUSION

3. I have decided to set aside the decision under review. I have decided that at the time of her application for a disability support pension on 15 February 2018, Ms Harvey was qualified to receive the pension. I set out my reasons for this conclusion below.

   REASONS

   Respondent’s attitude to the facts

4. Ms Harvey supports the finding of fact made by the Level 1 Tribunal in her favour that she is eligible to receive 20 points under Table 11 of the Impairment Tables in respect of her condition of Meniere’s disease. As I say, the Level 1 Tribunal found in her favour in this respect. The Level 1 Tribunal found, however, that Ms Harvey had not demonstrated an incapacity for work; that is, she had failed to demonstrate she could not work 15 hours per week on account of the impairment caused by her disease.

5. At the hearing before me, the respondent accepted that Ms Harvey is unable to work for 15 hours a week due to the impairment caused by her disease, and so conceded that the Level 1 Tribunal’s finding of fact in this regard should not be upheld. The respondent, however, submitted that the Level 1 Tribunal erred in awarding Ms Harvey 20 points under Table 11. The respondent contended before me that only 10 points ought to be awarded, contrary to the finding of fact of the Level 1 Tribunal.

   My approach to this concession

6. In my opinion, it is appropriate in this case to act on the respondent’s concession.  I accept therefore that Ms Harvey is incapable of working 15 hours a week due to her Meniere’s disease. Even though the Tribunal conducts a de novo hearing on the merits, and is not formally bound by the concessions of fact of the parties, it is, in my opinion, open to the Tribunal to act on appropriate concessions of fact made by one or other party so as to ensure that the hearing is fair and not made unnecessarily more complicated. That is especially the case, in my opinion, where the respondent, which administers the social security legislation in the public interest, has formed a clear view in favour of a claimant that the claimant lacks a capacity for work.

7. The Tribunal is not, of course, bound to make findings according to concessions of fact made by the parties. I explicitly note that I would not have acted on the concession made by the respondent if I had believed the evidence left open a serious doubt about the concession. I do not entertain any such doubt, however.

   Sole remaining question 

8. Given the concession the respondent has made, and my decision that the concession was an appropriate one, the only question before me is whether Ms Harvey’s level of impairment from her Meniere’s disease reaches the 20-point threshold under Table 11.[1] If it does, I note that she had no obligation to engage in a program of support as a necessary step in proving her qualification for a disability support pension.

   [1] That is, Table 11 set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. 

9. Ms Odgers also indicated that the respondent agrees with the Level 1 Tribunal’s finding that Ms Harvey’s Meniere’s disease is fully diagnosed, treated, and stabilised so that it may be taken into account.[2]  In my opinion, on the basis of the evidence presented to the Tribunal, that is the case.  

   [2] See clause 6(3)-(7) of the Determination.

   Ms Harvey’s circumstances

10. Ms Harvey gave evidence to the Tribunal as did her mother. Ms Harvey presently lives in a two-bedroom unit owned by her parents. She has no dependents. Her mother and father live nearby. She sees her mother almost every day and, on the days she does not see her, she will ring her. She has a significant work history. She worked for Australia Post for some 15 years. Thereafter, between the years 2005 and 2018, she was a support worker for Uniting Care. In this latter role she initially worked on average 40 hours per fortnight, at times a little more. Towards the end of her time with this organisation she was only working between six and eleven hours per fortnight. Her role involved visiting clients at home and supporting them with domestic chores.

11. Ms Harvey gave evidence, which I accept, that in 2017 her Meniere’s disease, which had been first diagnosed in about 2009, began to interfere with her life substantially. She could not meet the obligation her employer imposed on her that she agree to work a minimum of eleven hours per fortnight. She said she could not cope, generally speaking, with the domestic side of her support-worker tasks. These involved, by way of example, vacuuming, general cleaning, clothes washing, and dish-washing. She found that she got dizzy every time she looked up or down. The main symptoms Ms Harvey suffers during an attack are dizziness, nausea, vomiting, and feeling off-balance. She said in her evidence to me that she feels as if “everything is moving” during an attack.

12. Ms Harvey gave evidence that she cannot read when having an attack nor can she eat. She must lie down. An attack might last for as little as one hour or as long as three days. She gave evidence that she had had a three-day attack a fortnight before the hearing. She said she would have a three-day attack approximately once a month. Other, less severe attacks occur intermittently. She does not exercise lest the exertion bring on an attack. She said that even walking can provoke an attack. Ms Harvey confirmed that the level of impairment I have described was true of the situation when she applied for a pension.

13. I accept Ms Harvey’s evidence that it is difficult for her to predict when an attack will come on. It is not necessary for there to be any precipitating event. That is, an attack can spontaneously occur. Sometimes movement or exercise, as I have indicated, can bring on an attack. She found on one occasion that an attack occurred while she was working at a client’s home doing domestic chores. She has had grommets inserted, which do help.

14. Ms Harvey’s mother gave evidence to the Tribunal that largely corroborated Ms Harvey’s own evidence. In particular Ms Harvey’s mother gave evidence that corroborated the disabling severity of the attacks. She also gave evidence, which I accept, that she has to provide a great deal of practical assistance to her daughter notwithstanding her own advancing years: she was 78 at the time of the hearing before me.

    Table descriptors

15. I turn now to consider the descriptors in the relevant table, Table 11. It is relevant to read the Table as a whole and to consider the descriptors alongside each of the 5, 10, and 20 point categories. In each of these, the category is divided into two alternate parts. Only one part need be satisfied. 

16. The first part concerns a person’s ability to hear. That is not relevant in this case.

17. The second part concerns balance and ringing in the ears. I set out below each of the descriptors, or tests, for the 5, 10 and 20 point categories:

    “5The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s  disease, or tinnitus).

    10The person has more frequent difficulty with balance (e.g. has to sit down or hold on to a solid object) or ringing in the ears which interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).

    20The person has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold on to a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).”

18. I note that the 0-point category addresses hearing alone and that the 30-point category is also directed solely at hearing. I further note that Meniere’s disease is specifically mentioned as an example in each of the 5, 10, and 20-point categories. These three categories mark an ascending scale of frequency with respect to difficulty with balance.  

19. I do note one oddity in the drafting. In respect of the 5-point category, “occasional difficulty with balance” is exemplified by a reference to “occasional dizziness”. In the 10-point category, “more frequent difficulty with balance” is exemplified by a reference to “having to sit down or hold onto a solid object”. This latter concept refers, however, to the intensity of difficulty and not to the frequency of the difficulty as such. When one comes to the 20-point category, “continual difficulty with balance” is exemplified by a person either having “continual dizziness” or having “to sit down or hold on to a solid object”. This seems somewhat illogical in that the criterion of having “to sit down or hold on to a solid object” is repeated from the 10-point category; and again, this criterion does not refer to the frequency of the difficulty with balance, but to its intensity.

20. All in all, I believe I the proper approach to interpretation of the 5, 10 and 20-point descriptors in respect of the impairments caused by difficulties with balance is to view them as prescribing an ascending scale of frequency of difficulty with balance. “Occasional difficulty with balance” attracts five points; “more frequent difficulty with balance” attracts 10 points; while for 20 points, a “continual difficulty with balance” is necessary.

    Construction of the word “continual”

21. The respondent maintained that Ms Harvey does not have a continual difficulty with balance. The principal difference between the parties centred upon the meaning of the word continual. The respondent submitted that the word continual means “without let-up or break”. Of course, if a person’s Meniere’s disease were symptomatic without any let-up or break whatsoever, one would certainly describe that frequency of difficulty with balance as continual. But that does not show, of course, that the word continual is confined to this sort of extreme case. The word continual can simply mean “occurring frequently or repeatedly”.

22. In this regard, I note that the word continual is defined in two ways in the Macquarie Dictionary (second revision) (1987):

    “1. proceeding without interruption or cessation; continuous in time;

    2. of regular or frequent recurrence; often repeated; very frequent.” 

23. The second meaning is a very common one. If one complains of continual disturbances, for example, one does not necessarily mean that the disturbances occur every minute of the day. 

24. In deciding the appropriate meaning of the word continual as it appears in Table 11, I bear in mind that the legislation I am required to interpret is beneficial in its intent; and, according to normal canons of construction, it should receive a more generous construction in cases of ambiguity. I bear in mind also that the Tables are designed to reflect functional impacts and that 20 points are allocated when there is “a severe functional impact”. A 20-point categorisation does not seem to me to be inappropriate if a person very frequently experiences difficulty with balance. That is a very disabling and limiting impairment. In Ms Harvey’s case, this has proven to be the case. 

25. Ms Odgers submitted that a stricter view of the word continual should be preferred because the word frequent appears in the 10-point category. Her submission was that the word continual must mean more than merely frequent. I do not accept this submission. The expression alongside the 10-point category is not simply “frequent difficulty” but “more frequent difficulty”.  It is necessary to ask: more frequent than what?  In context, the answer must be “more frequent than an occasional difficulty with balance”, which is referred to in the immediately preceding 5-point category. I have already referred to the fact that Table 11 should be seen to provide an ascending scale of difficulty.

26. My conclusion, therefore, is that the second definition of the word continual given by the Macquarie Dictionary quoted above is the more appropriate one.  

    Conclusion

27. I bear in mind that Ms Harvey suffers on average one attack per month which can last three days. I bear in mind that there are other attacks that occur during the course of the month. I also bear in mind Ms Harvey’s evidence, which I accept, that she was unable to hold down a work commitment of 11 hours per fortnight because of the impact of her Meniere’s disease. 

28. On the evidence before me, the onset of the attacks is largely unpredictable. Sometimes they are brought on by nothing at all or by very innocuous activities. I do not believe that it can be said that the onset of the attacks is within Ms Harvey’s control so that she can effectively control their frequency.

29. Even though the onset of an attack is unpredictable, there have been many attacks over a number of years, and I believe it is right to conclude that Ms Harvey has continual difficulty with balance as a result of the attacks: they occur very frequently.

30. It follows, in my opinion, that Harvey is entitled to be awarded 20 points in respect of the functional impairment she suffers as a result of her Meniere’s disease. Given that I have adopted the respondent’s conclusion that Ms Harvey is unable to work 15 hours per week, it follows that Ms Harvey was eligible for a disability support pension when she lodged her claim.

31. This conclusion makes it unnecessary for me to consider the other conditions that Ms Harvey has requested be taken into account; namely, her fibromyalgia and her depression. I note that these were found not to be fully diagnosed, treated, and stabilised as at the date of the pension claim (or within 13 weeks thereafter) by the Level 1 Tribunal.  I need not consider that issue further given my conclusion that Ms Harvey is otherwise qualified for the disability support pension.

32. The overall effect of my decision is that Ms Harvey was qualified for a pension in February 2018. My decision on review must be given effect to in a somewhat convoluted way. I must set aside the Level 1 Tribunal decision and substitute a new Level 1 decision. The new Level 1 decision should itself set aside the adverse departmental decision and substitute in its place a new decision that Ms Harvey was qualified for a pension when she made her claim in 2018.

    FORMAL DECISION

33. The Tribunal sets asides the Level 1 Tribunal decision under review and in place of the Level 1 Tribunal decision substitutes a decision as follows:

    (a) first, the decision of the authorised review officer (ARO) dated 29 October 2018 is set aside; and

    (b) secondly, in place of the ARO’s decision, it is decided that Ms Harvey satisfied all requirements for a disability support pension prescribed in section 94 of the Social Security Act 1991 when she lodged her claim for a disability support pension in February 2018. 

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

............[Sgnd]...............
Administrative Assistant Legal

Dated: 23 April 2021

Date of hearing:  11 May 2020
Advocate for the Applicant:	Ms Margaret Riley, M RILEY LAWYER
Advocate for the Respondent:	Ms Lee-Anne Odgers, SERVICES AUSTRALIA