HLMS and Secretary, Department of Social Services

[2014] AATA 693

[2014] AATA 693 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0754
Re	HLMS
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	23 September 2014
Place	Sydney

The decision of the Social Security Appeals Tribunal dated 31 July 2013 is affirmed.

....................[SGD]....................................................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY – disability support pension – portability period – discretionary power to determine portability period

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 35(2)(b)
Social Security Act 1991 (Cth) – ss 94(3B), 1218AAA

CASES

Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A K Britton

23 September 2014

1. The applicant has been in receipt of the disability support pension (DSP) since 2001. In mid-2013 she spent eight weeks in Greece. Centrelink decided to suspend the applicant’s DSP six weeks after she departed Australia. That decision was affirmed by a Centrelink authorised review officer (ARO), and, subsequently the Social Security Appeals Tribunal (SSAT). The applicant challenges that decision and seeks review by the AAT.

2. Under the Social Security Act 1991 (Cth) (the Act), DSP is generally not payable where the recipient is continuously absent from Australia for more than the “portability period”, in this case, six weeks. The Act contains a number of exemptions to that rule. The only applicable exemption in this matter is that contained in s 1218AAA of the Act. Whether the decision to suspend payment of DSP to the applicant after six weeks of continual absence from Australia in 2013, is the correct and preferable decision, turns on whether the pre-conditions to the exercise of the power conferred by s 1218AAA to extend the portability period, have been met, specifically whether the applicant had a “severe impairment”.

3. The applicant was represented in these proceedings by her husband.

   Confidentiality orders

4. Section 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) confers power upon the Tribunal to restrict the publication of the names of the parties to the proceedings and to allocate a pseudonym to parties to proceedings: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130 at 149. Given the applicant’s apparent concern and distress that details of her health would be disclosed, if, these reasons for decision were published on the internet, in accordance with the AAT’s usual practice, I have decided to make orders restricting the publication of the name of, and any information that might identify the applicant. In these reasons she will be referred to by the pseudonym “HLMS”.

   Can the portability period be extended under s 1218AAA?

5. Section 1218AAA of the Act provides:

   Unlimited portability period for disability support pension--severely impaired disability support pensioner

   1The Secretary may make a written determination that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

   (a)the person is receiving disability support pension;

   (b)the Secretary is satisfied that the person's impairment is a severe impairment (within the meaning of subsection 94(3B));

   (c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

   (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

   …

6. A “severe impairment” is defined to mean an impairment that rates at least 20 points on a single Impairment Table under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Tables) (s 94(3B) of the Act). The Tables are used to assess the impact of impairment on a person’s functional capacity. An impairment rating can only be assigned under the Tables where the condition that gives rise to the impairment, is permanent, that is, “fully treated, diagnosed and stabilised” (ss 6(3) and 6(4) of the Tables).

7. Dr Costakis Papacosta, the applicant’s GP (since April 2012) is of the opinion that his patient suffers from the following conditions:

   ·Chronic mixed affective disorder with depressed and anxious mood;

   ·Bilateral rotator cuff syndrome with muscle tears/bursitis/tenosynovitis;

   ·Chronic vertigo/tinnitus/bilateral sensorineural hearing loss;

   ·L4/5, L5/S1 disc degeneration, L4/5 spondylolisthesis, central and lateral recess stenosis;

   ·Bilateral knee osteoarthritis; and

   ·Bilateral hallus valgus/bunion.

8. The applicant contends that each of these conditions constitute a severe impairment for the purposes of the Act. For the reasons that follow I do not agree.

   Does the applicant’s “mixed affective disorder with depressed and anxious mood” constitute a severe impairment? 

9. In a pro-forma medical report dated 9 January 2014, Dr Papacosta nominated “mixed affective disorder with depressed and anxious mood” (the anxiety condition) as the condition having the most impact on the applicant. He wrote that the condition started in 2001, it was “chronic and established”, and that the diagnosis had been confirmed by psychiatrist, Dr George Takas.

10. Dr Papacosta also wrote:

    Current symptoms

    Poor concentration, disturbed night sleep, poor short term memory, social withdrawal, palpitations, panic attacks.

    …

    Impact on ability to function

    Marked cognitive effects affecting interpersonal relationships.

11. According to her husband, the applicant has not seen a counsellor or psychologist for “some time” and is currently taking anti-depressant medication.

12. The SSAT in its reasons for decision ([Applicant] and Secretary and Chief Executive Centrelink (unreported), Social Security Appeals Tribunal, Ms Jean Cuthbert, Member, 9 January 2014) recorded that the applicant testified:

    ·she lives with her husband and 24 year old daughter

    ·her older daughter is married and has children

    ·she rarely leaves the house and if she does she is accompanied by her husband

    ·she and her husband go shopping together once a week

    ·her older daughter and grandchildren visit weekly

    ·she has a good relationship with her family

    ·she does not sleep well

    ·she does a bit of gardening (such as watering), cooks a few days each week and watches television

    ·her husband and daughter do the majority of household tasks

    ·she has a drivers licence but has not driven for a number of years as her husband has a manual car which she is unable to drive.

13. In these proceedings the applicant’s husband claimed that his wife:

    ·never sleeps

    ·has poor concentration

    ·is very forgetful

    ·does not organise anything

    ·gets upset very easily

    ·is capable of making herself a cup of tea

    ·cooks a couple of times a week, with his assistance

14. He also claimed that his wife’s condition deteriorated significantly since her return from Greece in 2013.

15. He explained that the reason he and his wife spent extended periods in Greece in 2009, 2011 and 2012 was to obtain “therapy”: to drink the water and relax. While in Greece they stayed with members of the family of the applicant’s husband.

16. The applicant’s husband also claims that about two years ago he and his wife stopped receiving visits from, and visiting, their many friends.

17. The applicant’s anxiety condition will constitute a severe impairment if it satisfies the descriptors for a rating of 20 points under Table 5 – mental health function:

    There is a severe functional impact on activities involving mental health function.

    1The person has severe difficulties with most of the following:

    (a)self care and independent living;

    Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

    (b)social/recreational activities and travel;

    Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

    (c)interpersonal relationships;

    Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

    Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

    (d)concentration and task completion;

    Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

    Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

    (e)behaviour, planning and decision-making;

    Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

    (f)work/training capacity.

    Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

18. In assessing the appropriate impairment level under Table 5, the Tables instruct that the applicant’s self–report is insufficient and there must be corroborating evidence of her impairment (Introduction to Table 5).

19. In a short report dated 27 April 2014, Dr Papacosta wrote that he disagreed with the decision made by the SSAT, specifically that the applicant’s anxiety condition did not constitute a severe impairment. Dr Papacosta attached to that report a copy of the SSAT’s reasons for decision with handwritten annotations, apparently made by him. Those comments indicate that, in Dr Papacosta’s opinion, the applicant has severe difficulties with all but one of the six listed activities — social/recreational activities and travel — but do not disclose the basis of that opinion, or explain how the applicant’s anxiety condition impacts on her functional capacity.

20. For the reasons that follow, I am not satisfied that the applicant has severe difficulties with at least three of the activities listed as descriptors of severe impairment under Table 5, namely:

    Self care and independent living: The applicant’s husband testified that he and his daughter are largely responsible for the running of the home. He admits that his wife manages her own dressing, grooming and personal hygiene. While he assists his wife with some tasks, such as putting on her shoes, it would appear he provides this assistance because of the applicant’s physical disabilities, not because of her psychiatric condition.

    Social/recreational activities and travel: According to the applicant’s husband, he always accompanies his wife when she leaves the family home. It is unclear whether he does so out of concern that she might fall or because of her anxiety condition. It is apparent that the applicant’s social life and interests are restricted, although she continues to participate in family activities.

    The evidence of the applicant travelling to Greece for extended periods does not suggest that she has severe difficulties with travel, notwithstanding that she is accompanied by her husband. That finding is consistent with Dr Papacosta’s opinion that the applicant does not have severe difficulties with social/recreation activities and travel.

    Interpersonal relationships: The applicant’s husband claimed in these proceedings that he and his wife now socialise only with members of their immediate family, except during their visits to Greece when they stay and socialise with members of his extended family. It is not altogether clear why the couple no longer socialise outside their family. I understand the applicant’s husband to suggest that it is because of a combination of factors, which include his wife’s physical and psychiatric conditions.

    The evidence indicates that the applicant enjoys a loving and close relationship with her husband, daughters and grandchildren. Of itself, her reduced social circle does not establish that she has severe difficulties with interpersonal relationships. The GP has not explained the basis for the comment made in his report that the applicant has “marked cognitive effects affecting interpersonal relationships”.

21. I accept that the applicant’s anxiety condition has a significant impact upon her ability to function. I also accept that she has some difficulties with most of the activities listed in the descriptors for a severe impairment under Table 5, but I am not satisfied that she has severe difficulties with most of those activities. Accordingly a rating of 20 points under Table 5 cannot be assigned.

    Does the applicant’s bilateral rotator cuff syndrome with muscle tears, bursitis and/or/tenosynovitis constitute a severe impairment?

22. Dr Papacosta nominated the applicant’s shoulder problems as the condition with the second most impact on the applicant’s ability to function.

23. The Secretary contends that the condition cannot be assigned a rating under the relevant table, Table 2 – upper limb function, because it is not permanent. Specifically, the Secretary asserts that the condition is not fully treated, citing the comments made by Dr Papacosta in his report of 17 December 2013 that the condition “may require shoulder surgery”.

24. For current purposes I will assume but not decide that the condition is fully treated and proceed to determine the appropriate rating.

25. In his report, under the heading “current symptoms”, Dr Papacosta wrote:

    Reduced range of motion, reduced grip strength, chronic pain causing disturbed night sleep

26. The SSAT recorded (at [33]) of its reasons for decision that the applicant testified that she:

    ·is able to write but seldom does so

    ·has no problems handling coins or light objects

27. The applicant’s husband claims that:

    ·his wife’s shoulder is now a lot worse than it was 12 months ago

    ·she is unable to lift a heavy pot

    ·she is able to make a cup of tea

28. Table 2 provides in part:

    There is a severe functional impact on activities using hands or arms.

    1Most of the following apply to the person:

    (a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

    (b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

    (c)the person has difficulty using a computer keyboard despite appropriate adaptations;

    (d)the person has severe difficulty using a pen or pencil;

    (e)the person has severe difficulty turning the pages of a book without assistance.

29. While there is evidence of the applicant being unable to lift heavy weights and having reduced grip strength, it does not indicate that she has limited movement or coordination in both arms or hands, or severe difficulty handling, moving or carrying most objects. Nor does it establish that the applicant has severe difficulty using a pen or pencil, or turning the pages of a book.

30. The applicant does not satisfy the descriptors for severe functional impact under Table 2. Therefore a rating of 20 points cannot be assigned.

    Do the applicant’s vertigo, tinnitus and hearing loss constitute a severe impairment?

31. It is agreed that the applicant suffers from vertigo, tinnitus and hearing loss. It is also agreed that each condition is permanent within the meaning of the Act.

32. Table 11 - hearing and other functions of the ear - provides in part:

    There is a severe functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device or technology or sign language interpreting.

    1The person:

    (a)has severe difficulty hearing any conversation even at raised volume in a room with no background noise (that is, is unable to hear someone speaking to them in a loud voice, or is not able to hear someone shouting a warning (e.g. ‘Look out!’)); and

    (b)is unable to hear sounds needed for personal or workplace safety (e.g. a smoke alarm, fire evacuation siren, or car or truck horn); and

    (c)is reliant on captions to follow a television program or movie; and

    (d)needs to use a captioned telephone; and

    (e)is completely reliant in all situations on a recognised sign language (e.g. Auslan), lip reading, other non verbal communication method (e.g. note taking) to converse with others; or

    2The 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).

33. Hearing loss: While the applicant suffers from hearing loss, the evidence does not suggest that in mid-2013 the level of her loss meant that she:

    ·was unable to hear someone speaking in a loud voice

    ·was unable to hear a smoke alarm or the like

    ·relied on captions when watching television

    ·used a captioned telephone

    ·was reliant on lip reading or other non-verbal communication methods to converse with others.

34. Tinnitus and dizziness: According to the applicant’s husband, about once a month his wife suffers from dizziness. He says she also suffers from constant ringing in her ears which interferes with her sleep and for that reason, some years ago he purchased a “sleep machine”, to “deaden” the ringing.

35. While evidence that the applicant suffers from tinnitus and dizziness, it does not support a finding that those conditions have a severe functional impact, for the purposes of Table  1, specifically there is no evidence that she:

    has continual difficulty with balance, or

    experiences ringing in her ears that interferes with her hearing [emphasis added]

36. The applicant does not satisfy the descriptors for a severe impairment under Table 11. Therefore a rating of 20 points cannot be assigned.

    Does the applicant’s lumbar spine condition constitute a severe impairment?

37. It is agreed that the applicant suffers from a lumbar spine condition, described by Dr Papacosta as “L4/5, L5/S1 disc degeneration, L4/5 spondylolisthesis, central and lateral recess stenosis”. It is also agreed that the condition is permanent within the meaning of the Act.

38. Table 4 - spinal function - provides in part:

    There is a severe functional impact on activities involving spinal function.

    1The person is unable to:

    (a)perform any overhead activities; or

    (b)turn their head, or bend their neck, without moving their trunk; or

    (c)bend forward to pick up a light object from a desk or table; or

    (d)remain seated for at least 10 minutes.

39. There is no evidence that the applicant satisfies any of the above activities. It follows that a rating of 20 points cannot be assigned.

    Do the applicant’s lower limb conditions separately, or in combination, constitute a severe impairment?

40. According to Dr Papacosta, the applicant suffers from two separate conditions that impact on her lower limb function: bilateral knee osteoarthritis and bilateral hallux valgus/bunion. The Secretary accepts that the latter is permanent but contends that the former is not, pointing to the absence of any recent reports or imaging studies relating to the applicant’s knees, or evidence of any current treatment. I agree. Nonetheless I will proceed on the assumption that both conditions are permanent and decide the appropriate rating to assign under the relevant table, Table 3 – lower limb function.

1. Table 3 provides in part:

   There is a severe functional impact on activities using lower limbs.

   1The person:

   (a)is unable to do any of the following:

   (i)      walk around a shopping centre or supermarket without assistance;

   (ii)     walk from the carpark into a shopping centre or supermarket without assistance;

   (iii)    stand up from a sitting position without assistance; and

   (b)requires assistance to use public transport.

   2This impairment rating level includes a person who requires assistance to:

   (a)move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

   (b)move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

2. According to the applicant’s husband he and his wife shop for groceries and food at the local shopping centre once a week. He accompanies her at all times but she does not use a walking aid or wheelchair to get to or from, or while in, the shopping centre. According to the applicant’s husband his wife sometimes uses a walking stick while in the garden at their home but not otherwise and, on occasions, he helps her out of her chair. He claims his wife usually travels by car and on the odd occasion when she takes public transport, he always accompanies her.

3. The available evidence indicates that the applicant is able to walk around a shopping centre, walk from the car park to the shopping centre and stand up from a sitting position, generally without assistance. It follows that the applicant does not satisfy for the descriptors for a severe impairment under Table 3 and a rating of 20 points cannot be awarded.

   Summary

4. The applicant does not have a severe impairment within the meaning of the Act. Therefore the power conferred by s 1218AAA of to extend the portability period cannot be exercised.

   Is there a discrepancy between the decision under review and the original decision to grant the applicant’s DSP?

5. The applicant’s husband contends that the SSAT’s recent decision to refuse to extend the portability period is inconsistent with decision made in 2001 by the SSAT (differently constituted) to grant DSP. He asserts that the decision to grant DSP was made by five experienced men and should take precedence over the SSAT’s more recent decision.

6. The issue the SSAT was required to determine in 2001 was whether the applicant satisfied the criteria for DSP. In contrast, in 2014 the issue the SSAT was required to decide was whether any of the exemptions to the portability period rule, apply in the circumstances of the applicant’s case. The two issues raise different considerations. To extend the six week portability period, in addition to satisfying the criteria for grant of DSP (which is not in dispute), the Tribunal must be satisfied among other things, that the applicant has a severe impairment.

7. The applicant’s husband argues that the decision not to extend the portability period is unfair, pointing to his wife’s multiple health problems, the long period she been in receipt of DSP, and the contribution she, and her family, have made to Australia. That argument in truth is one about the appropriateness of the policy objectives that underlie the portability period provisions contained in the Act, namely to restrict the payment of certain social security payments to persons who are absent from Australia for a period in excess of the applicable portability period. The Tribunal’s role is not to determine whether that policy is appropriate — that is the role of Parliament — but to decide whether the relevant provisions enacted to give effect to that policy, were properly applied in the circumstances of the applicant’s case.

8. The Act does not give the AAT, or any other decision-maker, the power to extend the portability period on the grounds advanced by the applicant. I am satisfied that the decision to suspend payment of DSP to the applicant on 12 July 2013 was the correct decision. I must therefore affirm the decision under review.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

..............[SGD]..........................................................

Associate

Dated 23 September 2014

Date(s) of hearing	9 September 2014
Solicitors for the Respondent	Department of Human Services, Program Litigation and Review Branch