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

[2018] AATA 238

Hicks and Secretary, Department of Social Services (Social services second review) [2018] AATA 238 (19 February 2018)

Division:GENERAL DIVISION

File Number:           2017/1767

Re:Geoffrey Hicks

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:19 February 2018

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant’s impairments are fully diagnosed, treated and stabilised –  continuing inability to work – Applicant had not actively participated in a program of support – whether Applicant has a severe impairment – application of Impairment Tables –kidney disorder – heart disorder – visual function – functions of the skin –  decision affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration Act) 1999 (Cth), sched 2, subcl 4

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Dr I Alexander, Member

19 February 2018

1. On 5 November 2015 Mr Hicks, who is now 59 years old, lodged a claim for Disability Support Pension (DSP) under the Social Security Act 1991 (the Act).

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Act. In particular, he did not satisfy s 94(1)(c) of the Act as he had not actively participated in a program of support.

3. In a decision dated 3 March 2017, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) found that Mr Hicks suffered several permanent medical conditions with a total rating of 30 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) and, therefore, satisfied s 94(1)(b) of the Act. AAT1 assigned 10 points under Table 1, 10 points under Table 14 and 10 points under Table 12

4. However, AAT1 found that Hicks did not satisfy section 94(1)(c) of the Act on the basis that he did not have a continuing inability to work as defined in the Act because he did not suffer a severe impairment as defined in the Act and had not “actively participated in a program of support” as set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

5. In this proceeding Mr Hicks seeks review of the AAT1 decision.

6. At the hearing, Mr Hicks was self-represented with the support of his wife.

   ISSUES

7. In order to qualify for DSP Mr Hicks must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999, that is, between 5 November 2015 and 4 February 2016 (the claim period).

8. Section 94(1) of the Act provides that a person is qualified for DSP 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)the person has a continuing inability to work as defined by the Act.

9. The Impairment Determination requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (para 6(3)(a)).

10. For the purposes of para 6(3)(a) of the Impairment Determination, a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (para 6(4)(a)); and

    ·fully treated (para 6(4)(b)); and

    ·fully stabilised (para 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (para 6(4)(d)).

11. The Introduction to each relevant Table requires that self-report of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

12. It is agreed that, during the claim period, Mr Hicks suffered several medical conditions that were permanent for the purposes of the Impairment Determination. It is also agreed that ratings under Table 1, Table 12 and Table 14 can be assigned and that Mr Hicks’ total impairment was 20 points or more at that time. Therefore, during the claim period Mr Hicks satisfied s 94(1)(b) of the Act.

13. However, the Respondent contends that, during the claim period, Mr Hicks could not satisfy section 94(1)(c) of the Act as he did not have a continuing inability to work because he had not actively participated in a program of support (POS) as required by section 94(2)(aa) of the Act . Therefore, he could not qualify for DSP.

14. Section 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a POS within the meaning of subsection (3C)”.

15. Subsection 94(3B) provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Determination, of which 20 points or more are under a single Impairment Table.

16. Section 7 of the POS Determination provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.

17. It is agreed that Mr Hicks had not actively participated in a POS prior to the date of claim or during the claim period.

18. It follows that Mr Hicks claim cannot succeed unless he suffered a severe impairment during the claim period. This means that the determinative issue in this matter is whether, during the claim period Mr Hicks had a rating of 20 points or more under a single Impairment Table.

    Table 1 – Functions requiring Physical Exertion and Stamina

19. The Respondent accepts that a rating of up to 10 points under Table 1 can be assigned in respect of Mr Hicks’ kidney and heart disorders but submits that the available evidence does not support a rating of 20 points or more. 

    Kidney Disorder

20. Mr Hicks suffers from polycystic kidney disease. He had a nephrectomy in November 2012 and a kidney transplant in May 2013.

21. Mr Hicks told AAT1 that he “has very limited physical strength …..  is only able to undertake physical activity for approximately 5 minutes before resting ….is unable to assist with housework ….is careful to move slowly because any fast change in movement causes dizziness ….undertakes limited activity outside of the home due to concerns of infection”

22. In a Centrelink Medical Report dated 3 December 2014 Dr McLelland GP listed “Renal Transplant – Polycystic Kidney Disease” as the medical condition with most impact. She describes impact on ability to function as “Fatigue +++ –  needs to avoid possible infection – hypotensive/syncopal episodes  – no physical  load” but provides no other details

23. In a Job Capacity Assessment JCA Report submitted on 23 May 2016 the assessor noted that Mr Hicks’ functional impact  as the following:

    Experiences occasional symptoms (fatigue) when performing physically demanding activities……and has occasional difficulty performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway) or heavier household activities (e.g. vacuuming the house or mowing the lawn)….  ….) pnces Mr Hicks

24. The assessor noted that on 2 May 2016, in response to a letter from Centrelink, Dr McLelland confirmed the above description by stating “yes, I agree with above”

25. In a letter dated 1 June 2016 Dr McLelland stated that “Mr Hicks battles fatigue and reduced exercise capacity”

    Heart Disorder

26. In a Discharge Referral dated 29 August 2013 it is noted that Mr Hicks was admitted to the Emergency Department of John Hunter Hospital with symptoms of “chest pain, palpitations and dizziness”.

27. Mr Hicks was found to have “atrial fibrillation” which was successfully treated with cardioversion. He was discharged from hospital the following morning.

28. It was also noted that in 2012 Mr Hicks suffered an episode of paroxysmal atrial fibrillation that spontaneously reverted.

29. In the report of 3 December 2014 Dr McLelland lists “Ischaemic Heart Disease- AMI-AF” as a medical condition that has significant impact with current symptoms as “fatigue palpitations”. Impact on ability to function is described as “not able to exert self   ↓ stress etc” but provides no other details.

30. In the letter of 1 June 2016 Dr McLelland stated that “Atrial fibrillation has also been a cardiac complication of his illness”

31. At the hearing Mr Hicks told the Tribunal that he had suffered only two episodes of atrial fibrillation and none since 2013.

    Consideration

32. The evidence with respect to the functional impact caused by Mr Hicks’ kidney condition, in my view, can best be described as incomplete and cursory. I accept that the condition has some impact on activities requiring physical exertion or stamina. Whether the impact is mild or moderate is unclear.

33. I am satisfied, however, that there is no evidence to support a conclusion that, during the claim period, there was a severe functional impact on activities requiring physical exertion or stamina.

34. With respect to Mr Hicks’ claimed heart condition there is no convincing evidence that, during the claim period, he suffered from ischaemic heart or any other heart condition that caused any significant functional impairment.

    Table 12 – Visual Function

35. The Respondent contends that, during the claim period Mr Hicks’ “visual loss” could not be considered to be fully diagnosed on the basis that there was no supporting evidence from an ophthalmologist.

36. At the hearing Mr Hicks told the Tribunal that his visual loss is related to his kidney disease and is progressive. He said that he requires glasses for long vison but is able to read, use a computer and watch television without glasses.

37. In the Centrelink medical report of 3 December 2014 Dr McLelland made no reference to visual impairment.

38. In a written response to questions asked by Centrelink, dated 14 March 2016, Dr McLelland confirmed that Mr Hicks had next to no sight in the right eye and degenerating sight in the left eye.  She also confirmed that Mr Hicks had some difficulty seeing road signs, street signs or bus numbers.

39. In the letter of 1 June 2016 Dr McLelland stated that Mr Hicks had “longstanding vision impairment with virtually no vision in the right eye” and that his left eye has problems including chronic irritation and impaired vision.  

40. Mr Hicks told AAT1 that that he is able to read only for short periods, it is difficult to see at night time, is able to drive with special glasses and requires good lighting to be able to read road signs or bus numbers.

    Consideration

41. Although the evidence with reference to Mr Hicks’ vision is incomplete I accept that during the claim period his condition can be considered permanent for the purposes of the Impairment Determination

42. I also accept that during the claim period there was functional impact on activities involving visual function. Whether there was mild or moderate functional impact is, in my view, unclear

43. I am satisfied, however, that there is no evidence to support a conclusion that, during the claim period, there was a severe functional impact on activities involving visual function

    Table 14 Functions of the Skin

44. The Respondent accepts and the Tribunal agrees that, during the claim period Mr Hicks’ condition “skin cancers” was permanent for the purposes of the Impairment Determination.

45. The Respondent contends that the rating under Table 14 should be no greater than 10 points.

46. In the report of 3 December 2014 Dr McLelland lists “skin cancers” as a medical condition that is generally well managed and cases minimal or limited impact on ability to function.

47. In the letter of 14 March 2016 Dr McLelland confirmed that Mr Hicks’ must take higher than normal precautions to avoid exposure to sunlight because of an increased sensitivity related his immunosuppression medication and a history of multiple excisions and impaired healing.

48. In the letter of 1 June 2016 Dr McLelland stated that, as a complication of his medication, Mr Hicks’ has an increased risk of skin cancer. She indicated that Mr Hicks’ has had multiple excisions since his transplant and that his ability to heal and often requires modification of his medication. She stated that “Absolute sun protection is a must”.

49. I am satisfied that the available evidence is sufficient to support a conclusion that, during the claim period, Mr Hicks’ suffered a moderate functional impact on activities requiring healthy, undamaged skin and therefore a rating of 10 points under Table 14 can be assigned.

50. The available evidence, in my view, does not support a conclusion that during the claim period there was a severe functional impact on activities requiring healthy, undamaged skin.

    DECISION

51. For reasons set out above, the Tribunal is satisfied that, during the claim period, Mr Hicks’ did not have a severe impairment as defined in the Act. As he had not actively participated in a POS he did not have a continuing inability to work and, therefore, did not satisfy section 94(1)(c) of the Act and did not qualify for DSP.

52. The decision under review is affirmed.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated: 19 February 2018

Date of hearing:	9 February 2018
Applicant:	In person
Solicitors for the Respondent:	Ms G Heggen, Department of Human Services