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

Havet and Secretary, Department of Social Services (Social services second review) [2018] AATA 2155 (10 July 2018)
Division:GENERAL DIVISION
File Number: 2017/3671
Re:Paul Havet
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:10 July 2018
Place:Sydney

The decision under review is affirmed.
……………….[SGD]………………
Chris Puplick AM, Senior Member
CATCHWORDS
Social Security – Disability Support Pension – Whether the Applicant’s appeal against an unsuccessful application for a Disability Support Pension should be granted – Impairment Tables – Qualification period – Traumatic brain injury – Blepharitis – Blood pressure – Haemochromatosis – Liver problems – Ischaemic heart disease – Fully diagnosed and fully treated – fully stabilised – Decision under review is affirmed
LEGISLATION
Social Security Act 1991
CASES
Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Muir v Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Uebergang v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Chris Puplick AM, Senior Member
10 July 2018

This matter concerns an application for a Disability Support Pension (DSP).
The Applicant, Mr Havet, was self-represented and appeared by telephone from The Entrance, explaining that his inability to attend in person was necessitated by him having to remain at home to care for his seven year old son who had recently undergone minor surgery. Although the Applicant had difficulty remembering some dates and matters, in relation to others he demonstrated good powers of recall and was able to engage in constructive dialogue with the Respondent’s representative, Mr George Lozynsky, and the Tribunal.
APPLYING FOR THE DISBILITY SUPORT PENSION (DSP)
Mr Havet made an application for a DSP on 13 April 2016. Such an application triggers an assessment process to determine the eligibility of the Applicant for the DSP on that date or 13 weeks thereafter. That is, any time between 13 April 2016 and 13 July 2016.[1]
[1] Social Security Act 1991 (Cth) s 94.
This is what is referred to as “the qualification period”.
It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the Applicant’s health, changes in their status or acquisition of additional medical or psychological conditions.[2]
[2] See, eg, Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1].
These may be material factors in any further application/claim which may be made, but they are not germane to the present assessment.
Whereas in other matters before the Tribunal decisions are to be based on the facts at the time of the Tribunal hearing, that is not the case in relation to the DSP. The Tribunal can consider only matters within the qualification period and it has no legislative authority to do otherwise.
In order to qualify for the DSP, a claimant must fulfil certain criteria which are set out in section 94 of the Social Security Act 1991 (the Act), which provides that:
(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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d) the person has turned 16; and
…
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Failure to meet any one of these requirements is fatal to the application and the Tribunal has neither the power nor the authority to disregard any such failure.
If the threshold of having impairment is established, the Tribunal is required to determine the level of any such impairment using the points system set out in the Impairment Tables made under subsection 26(1) of the Act.
However, before proceeding to make any such assessment of any relevant condition, that condition must be assessed to determine if it is fully diagnosed, fully stabilised and fully treated, which are defined in the Impairment Tables[3] as follows:
[3] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 pt 2 s 6.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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.
Again, each of these conditions must be met before any points on the Impairment Tables can be considered or awarded.
A continuing inability to work is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:
...
(a) … doing any work independently of a program of support within the next 2 years; and
(b) … either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
HISTORY OF MR HAVET’S APPLICATION[4]
[4] See especially Secretary, Department of Social Services, Statement of Facts, Issues and Contentions, paras 5-13.
As noted, the original DSP claim was made on 13 April 2016.
On 16 June 2016, a Job Capacity Assessor (JCA) determined that Mr Havet was eligible for consideration for the DSP by finding that he had an impairment rating of 20 points due to his traumatic brain injuries resulting from surgery for a ruptured aneurysm in 1991 and from similar surgery in 2014.
However, a further specialist examination of Mr Havet by a government-contracted medical practitioner who conducted a Disability Medical Assessment (DMA) on 17 August 2016 found differently and determined that no impairment points should be awarded because his condition, although fully diagnosed and treated, was not fully stabilised. This opinion supported a view that there were prospects for improvement in Mr Havet’s condition with suitable treatment.
As a result of this DMA, Mr Havet’s DSP application was rejected on 4 November 2016. Mr Havet appealed that decision, but it was affirmed by an Authorised Review Officer (ARO) on 13 January 2017.
Mr Havet sought a review of that decision by the Social Services and Child Support Division of this Tribunal on 3 February 2017, which resulted in that Tribunal affirming the decision of the ARO on 7 June 2017.
It is from that determination that Mr Havet now seeks review by way of an application made on 23 June 2017 and heard on 29 June 2018.
LEGISLATIVE FRAMEWORK
Mr Havet lists six conditions which he asks the Tribunal to assess:
1A traumatic brain injury condition;
2Blepharitis (inflammation of the eyelids);
3Elevated blood pressure;
4Haemochromatosis (the depositing of iron salts in the tissues);
5Liver problems; and
6Ischaemic heart disease (restriction of blood supply to the heart).
Each condition must be assessed separately to determine if they are fully diagnosed, fully treated and fully stabilised, before the Tribunal can consider whether or not to assign them points on the relevant Impairment Tables.
CONSIDERATION OF CONDITIONS
It is against these criteria and definitions that the Tribunal must consider each of the conditions advanced by Mr Havet in support of his application.
Traumatic Brain Injury
As noted above, Mr Havet had brain surgery in both 1991 and 2014 and, as a result, suffered an intracranial aneurysm and haemorrhage which resulted in a degree of impairment manifest by way of changes in his personality, in particular, difficulty controlling his anger and emotions, difficulties with his memory, a diminished degree of sociability, and problems with his libido.[5]
[5] Medical report from Dr Katrina Morris (dated 11 November 2015) at Tribunal Documents (‘T Documents’) 117-118; Medical report from Dr Nazih Assaad (dated 22 March 2016) at T Documents 121.
These manifestations were apparent during the qualification period and have been confirmed by further medical evidence submitted by Mr Havet, although those assessments post-date his DSP application.[6]
[6] Medical report from Dr Laura Barnfield (dated 9 August 2017) at Tribunal Evidence A1; Medical report from Clinical Associate Professor Heard (dated 24 January 2018) at Tribunal Evidence A2.
The Secretary accepts that Mr Havet’s brain condition was fully diagnosed during the qualification period, but disputes that it was fully treated and stabilised.[7]
[7] See Secretary, Department of Social Services, Statement of Facts, Issues and Contentions, paras 33, 35, 39.
This is a matter of some dispute as both the JCA on 16 June 2016[8] and Clinical Associate Professor Heard in his report of 24 January 2018[9] find to the contrary, namely that the condition was fully diagnosed, treated and stabilised.
[8] T Documents 161.
[9] Tribunal Evidence at A2.
In reaching the conclusion advanced by the Respondent, the Secretary relies upon a report by Dr Khale (a general practitioner);[10] the specialist opinion of Dr Assaad;[11] the DMA report;[12] and the neurological report of Dr Morris[13] – all of which suggest that further treatment was ongoing, recommended or necessary during the qualification period and that, as a result, there may well be opportunities for improvement in Mr Havet’s condition within the next two years. There are suggestions in the reports of both Dr Assaad and Dr Morris that referral to a Brain Injury Rehabilitation Service might be beneficial,[14] but neither proceeded to make such a referral and Mr Havet certainly did not attend such a service.
[10] T Documents 97-107.
[11] Ibid 109.
[12] Ibid 170-171.
[13] Ibid 118.
[14] Ibid 121, 118 (respectively).
The Secretary proposes, in the alternative, that should the Tribunal find that the brain condition was fully diagnosed, treated and stabilised, and thus proceed to an assessment of an impairment rating, it should prefer the opinion of the DMA and Clinical Associate Professor Heard (as Mr Havet’s specialist) over that of the JCA.
The DMA had not awarded any impairment points, finding the condition fully diagnosed and treated but not fully stabilised. Clinical Associate Professor Heard assessed Mr Havet’s impairment rating at ten (10) points, whereas the JCA had assessed them at twenty (20).
It falls to the Tribunal to make the decision as to whether or not the brain injury condition was fully diagnosed, treated and stabilised during the qualification period and, if it was, to determine the appropriate impairment points rating.
The Tribunal is inclined to give significantly more weight to the finding of the JCA in this instance. The JCA report is more contemporaneous (2 July 2016) with the qualification period compared to the report of Clinical Associate Professor Heard (24 January 2018). The JCA demonstrates evidence of speaking directly with Mr Havet’s primary clinicians, especially Dr Balaraman,[15] while there is no evidence that the DMA did this.
[15] Ibid 162.
In oral evidence, Mr Havet cast doubt upon the accuracy of the DMA report and claimed that it had taken only some 13 minutes to complete, being very superficial and cursory in nature. The Tribunal agrees with the claim of some inaccuracies describing past treatments, but cannot comment upon the qualitative claims made. It is sufficient to say that the Tribunal prefers, for the reasons stated, to rely on the JCA report.
The Tribunal also notes that where issues have arisen in terms of the weight to be given to JCA reports in general, compared with others of a contrary opinion, this Tribunal has tended to prefer the former.
In Uebergang v Secretary Department of Families, Housing, Community Services and Indigenous Affairs,[16] the Tribunal stated:
The Tribunal recognises that a Job Capacity Assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity. In Re Muir and Secretary, Department of Employment and Workplace Relations[17] […] [the Tribunal] recognised the different approaches taken by medical practitioners and work capacity assessors and preferred the evidence of the work capacity assessor as to the applicant’s capacity to work or undertake retraining.
[16] [2011] AATA 642 at [28].
[17] [2005] AATA 902.
In Muir,[18] the Tribunal stated:
The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been assessed does or does not have the requisite work capacity within the meaning of section 94(1)(c) of the Act.
[18] Muir v Secretary, Department of Employment and Workplace Relations [2005] AATA 902 at [43].
The Tribunal thus proceeds on the basis that Mr Havet’s brain injury was fully diagnosed, treated and stabilised at the relevant time and that there is corroborating evidence before the Tribunal from persons qualified in accordance with the requirements of the Impairment Tables.
This takes the Tribunal to a consideration of the degree of impairment using Table 7 – Brain Function.[19]
[19] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 pt 3.
The Table provides that a rating of five (5) points is to be awarded if there is a “mild functional impact” on at least one of the six items set out therein. Without going into details of all of them, the Tribunal has no difficulty in finding that there is sufficient evidence to establish that at least in relation to “memory” and “attention and concentration” this threshold is met.
The ten (10) and twenty (20) points criteria have nine items set out therein, namely: memory; attention and concentration; problem solving; planning; decision making; comprehension; visuo-spatial function; behavioural regulation; and self awareness.[20]
[20] Ibid.
Ten (10) points are awarded if “the person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one” of those nominated criteria. Twenty (20) points are awarded if the difficulties described are “severe”.
Mr Havet was questioned in detail by both the Respondent and the Tribunal to establish the degree of impairment which he suffers in his daily life and activities.
Mr Havet gave clear and open answers and the Tribunal is prepared to accept his descriptions of what he had to say.
It appears that while he has difficulty in recalling some matters in detail he nevertheless can recall many others with considerable precision. He was familiar with, and able to recall many of the matters which were dealt with in the documentation before the Tribunal and could recall details of medical appointments and conversations. It appeared that many of these memory problems were of a more short-term nature.
He has been looking after his son as a principal career for a number of years and obviously manages generally quite well with occasional assistance, especially from his wife (from whom he appears to be separated and against whom he has obtained a domestic violence order).[21]
[21] Tribunal Evidence R4, Annexure G.
He has a daily routine of getting up, showering and dressing and then getting his son up, supervising his dressing and showering, including preparing his son’s school lunch and taking him to school – either by walking or driving.
After this, he returns home and does (limited) housework, puts washing in the washing machine and then takes a “nap” from which he is woken by an alarm-clock which he has set, in order to collect his son from school. He brings him home and either cooks his meals, or they get take-away (he says usually through a drive-in rather than an eat-in situation) and on return home his son “keeps him busy” with matters such as playing with their X-box.
While he needs occasional assistance with these chores, he manages generally well enough. He can go shopping, although he often forgets what for, and while he does not go out or socialise, he does go fishing “on his own”.

The Tribunal accepts that in a number of areas, especially in relation to memory loss and concentration, Mr Havet suffers a moderate level of impairment.
Bearing in mind that the Tribunal must assess Mr Havet’s condition(s) at the time of the qualification period and that Mr Havet’s condition was clearly not one that was then worse than it is at present (other than as outlined in the next paragraph), the Tribunal must assume that, at that time Mr Havet was at least as functionally competent as he is today.
Since the surgical operations, there is substantial evidence that Mr Havet has become prone to mood swings and to outburst of anger and aggressive behaviour, although the aetiology of this is not entirely clear. However, he told the Tribunal that this condition is now under control though medication, although he has occasional lapses when he forgets his medication routine.
Given his degree of independent functioning, the Tribunal is unable to find that any of the impairments from which Mr Havet suffers are severe.
It thus comes to the conclusion, as does Clinical Associate Professor Heard (and with some support once the threshold qualification has been met, from the Secretary[22]) that in relation to Table 7, Mr Havet should be accorded a rating of ten (10) points.
[22]Secretary, Department of Social Services, Statement of Facts, Issues and Contentions, para 41.
Blepharitis
There are medical certificates before the Tribunal from a general practitioner, Dr Alexander,[23] reporting that Mr Havet suffered from severe problems with his eyelids, which were being treated with eye drops. However, there is no contemporary specialist or ophthalmologist’s opinion on the matter, nor is there any evidence to suggest that the condition caused any significant functional impairment. A subsequent report from an ophthalmologist, Dr Towend,[24] neither refers to the qualification period, nor to any level of measurable functional impairment, although it does acknowledge that the condition existed and that Mr Havet was using eye drops to manage it.
[23] T Documents 114-115.
[24] Ibid 196.
In his oral evidence, Mr Havet spoke of the difficulties which this condition has occasioned him as the lack of natural lubrication in his eyes has, he says, resulted in scaring of the front part of his eyeballs occasioning impaired vision. This impaired vision has contributed to him ceasing employment and contributes to an uncertainty about prospects of future employment.
There is some support for this contention provided in the report of Dr Morris dated 11 November 2015,[25] but there is no independent corroboration which can be relied upon by the Tribunal which, if it had been provided, would have been inclined to award some points on the relevant Table.
[25] Ibid 117.
However, in the absence of such corroboration, this condition cannot be assigned any points on the Impairment Tables.
Blood Pressure, Haemochromatosis, Liver Problems, and Ischaemic Heart Disease
Each of these conditions was considered by the JCA, based primarily upon the medical report submitted by Dr Khale on 29 January 2015.[26] The JCA found that in relation to each of these there was insufficient medical evidence to find that they had been fully diagnosed, treated and stabilised as required. As such, they were not capable of being assessed for an impairment rating and none was given.
[26] Ibid 96-107.
This view is accepted by the Tribunal, as it was by the AAT 1.[27]
[27] Ibid 9.
CONCUSION
The Tribunal finds that Mr Havet should be assessed at having a total impairment rating of ten (10) points.
As this is less than the twenty (20) points requirement, there is no need for the Tribunal to give any consideration to the issue of continuing capacity to work.
There appear to be grounds for suggesting that if Mr Havet’s condition of blepharitis was to be properly diagnosed, treated and stabilised, he might be able to attract some points on Table 12 (Visual Function) and, to that extent, he might wish to give consideration to making a further DSP application, as is his entitlement. He would, of course, then need to meet the work-test requirements of the legislation should his aggregate of points (as distinct from points on one Table only) then reach a level of twenty (20).
The Tribunal also expresses its concern about Mr Havet’s continued practice of driving if his visual problems are as disabling as he asserts.
DECISION
For the reasons set out above, Mr Havet’s appeal to this Tribunal fails and the original decision is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

……………….[SGD]………………
Associate
Dated: 10 July 2018

Date of hearing: 29 June 2018

Applicant: By phone

Respondent: In person

Solicitor for the Respondent: Mr George Lozynsky

[2018] AATA 2155

10 July 2018

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Statutory Interpretation

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Date of hearing:	29 June 2018
Applicant:	By phone
Respondent:	In person
Solicitor for the Respondent:	Mr George Lozynsky