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

Hovens and Secretary, Department of Social Services (Social services second review) [2020] AATA 5762 (25 November 2020)
Division:GENERAL DIVISION
File Number: 2019/4314
Re:Corrie Hovens
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:25 November 2020
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]………………………………………………………………
Dr Stewart Fenwick, Senior Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – multiple conditions – sternal wire failure – whether conditions fully diagnosed, treated and stabilised – decision under review affirmed
Legislation
Social Security Act (1991) (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Fanning and Secretary, Department of Social Services [2014] AATA 447
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
25 November 2020
BACKGROUND

Mr Hovens applied to the Tribunal on 8 July 2019 for review of a decision not to grant him Disability Support Pension (DSP). Mr Hovens applied for the DSP in an application dated 29 June 2018, and this was initially rejected in a decision dated 2 January 2019. He sought review both by an Authorised Review Officer and before the Social Services and Child Support Division of the Tribunal (AAT 1) and was unsuccessful on both occasions.
The primary condition underpinning Mr Hovens’ applications at all stages has been compromised recovery from cardiac surgery in September 2017. Specifically, in June 2018 Mr Hovens experienced the failure of straps closing his sternum (sternal wire failure) causing significant pain and inconvenience, which is ongoing. A number of other conditions have formed part of his DSP application and previous decisions, being: arthritis in both hips; vascular conditions in the legs; right knee ACL (torn anterior cruciate ligament); and, diabetes.
Mr Hovens represented himself at the hearing and, in addition to several written submissions, which were lodged with the Tribunal (dated 20 January 2019, 17 July 2019, 1 July 2020, and 20 August 2020), Mr Hovens supplied a report of his general practitioner (GP) Dr Michael Banning, dated 12 August 2020 (Exhibit A1). A Statement of Facts, Issues and Contentions was lodged on behalf of the Respondent (RSFIC), as well as a bundle of ‘T’ documents.
LEGISLATION
Section 94(1) of the Social Security Act 1991 (the Act) establishes the basis of qualification for the DSP. Under this provision a person must be found to have:
(a)a physical, intellectual or psychiatric impairment; and
(b)an impairment rating of 20 points or more under the Impairment Tables; and
(c)(relevantly) a continuing inability to work.
Taken together, sections 26 and 27 of the Act require decision makers to apply the Impairment Tables which are established by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Determination also sets out detailed rules which apply to the impairment assessment process.
Rule 6 provides that an impairment rating is to be based on what a person can do, that the Tables may only be applied after considering the person’s medical history in relation to the condition causing impairment and, to be assigned an impairment rating, the condition must be ‘permanent’.
There are several linked steps that must be satisfied for a condition to be considered ‘permanent’ under rule 6(4). Specifically, it must be ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’, and ‘more likely than not, in light of available evidence, to persist more than 2 years’.
In considering whether a condition is fully diagnosed and fully treated, the following must be considered (rule 6(5)):
(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.
A condition is fully stabilised if (rule 6(6)):
(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 …
‘Reasonable treatment’ is defined as treatment that (rule 6(7)):
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Each Impairment Table carries these two general qualifications: ‘self-report of symptoms alone is insufficient’; and, ‘there must be corroborating evidence of the person’s impairment’.
Under the Act a person can be found to have a severe impairment if they attain an assessment of 20 points under a single Table. If so, they are considered by definition to have a continuing inability to work (subsections 94(2)(aa) and (3B)). If a person is assigned 20 points across more than one Table, they must have actively participated in a program of support (section 94(3c)). That is, the scheme requires an assessment of work capacity even where sufficient points are assigned to meet that part of the qualification requirements.
There is a ‘qualification period’ which is a period of 13 weeks from the date of an application for social security payments within which a person may qualify for entitlement (Schedule 2 to the Social Security (Administration) Act 1999). This means that entitlement arises on the day within this period on which a person may be deemed to qualify.
EVIDENCE
The hearing consisted principally of a discussion with the parties about their contentions. Mr Hovens made cogent submissions and expressed in very clear terms his concerns about aspects of his DSP claim.
In order to provide context for those submissions, and to provide a framework for my considerations, it is appropriate to set out a chronology and summary of key stages in Mr Hovens’ application:
(a)18 September 2017, Final Discharge Summary, Austin hospital (T6, pp 124-128), coronary artery bypass surgery performed;
(b)12 June 2018, report of Dr Elizabeth Jones (T6, p 133), recording Mr Hovens as remarkably well following bypass procedure but concerned about sternal healing and noting x-ray and follow-up to occur;
(c)15 June 2018, Centrelink Medical Certificate of Dr Michael Banning (T5, p 89) citing Mr Hovens’ primary condition as complication of coronary artery bypass graft, described as temporary and with an uncertain prognosis, planned treatment may include surgery to repair sternal wires. Other conditions listed as impacting on work capacity were peripheral vascular disease, hip pain, knee pain and neck pain, Type 2 diabetes;
(d)29 June 2018, application for DSP (T5, p 115), identifying the following conditions: arthritis in both hips; vascular condition in both legs; heart attacks in 2001 and 2017; bypass surgery September 2017; snapped sternal wires; right knee torn ACL;
(e)11 September 2018, report of Cardiac Surgery Registrar, Austin Hospital (T6, p 154), noting fragmentation of sternal wires and sternum stable, risks discussed with Mr Hovens who is ’uncertain whether he would like to proceed with an operation … [and] … asked for a 6 month timeframe to decide whether he would like the wire removed and his sternum repaired …’;
(f)2 January 2019, Job Capacity Assessment (T6, pp 139-148), making the following recommendations:
(i)Ischaemic heart disease, fully diagnosed and fully treated but not fully stabilised with further surgery to address sternal wires expected;
(ii)Osteoarthritis and diabetes, not assessed in the absence of more detailed medical information;
(iii)Vasculitis, fully diagnosed, treated and stabilised and rating of 5 points allocated for impairment of lower limb function;
(iv)Work capacity with intervention assessed as 15-22 hours per week within two years;
(g)2 January 2019, Centrelink letter advising rejection of DSP application (T10, p 209);
(h)29 January 2019, Centrelink letter advising decision of Authorised Review Officer (T3, pp 20-25) making the following findings and observations:
(i)Mr Hovens has the permanent conditions: ischaemic heart disease, Type 2 diabetes, peripheral vascular disease, lateral cutaneous nerve of thigh and right knee, hip osteoarthritis;
(ii)Left neck pain with radiculopathy and right mononeuropathy not permanent;
(iii)A total of 10 points assigned under Table 1 for ischaemic heart disease, for moderate functional impairment;
(i)14 June 2019, Decision of AAT1 (T2, pp 7-17), including the following findings and observations:
(i)Mr Hovens gave evidence that he is unable to carry heavy bags when shopping because of limitations caused by the sternal wire failure and is unable to perform heavier chores around the house;
(ii)his cardiac conditions were fully diagnosed but not fully treated and stabilised, with reference made to recommended review and adjustment underway for prescribed medications;
(iii)sternal wire failure is fully diagnosed but not fully treated and stabilised with reference made to written medical evidence and Mr Hoven’s oral evidence of ‘a mutual decision to postpone (by six months) further decisions regarding surgical intervention for this condition’;
(iv)with respect to vascular deficiency, arthritis, diabetes, and right knee these conditions were accepted as diagnosed but did not warrant further assessment;
(v)it was observed that Mr Hovens had indicated he has increasing pain in the knee and hip but had not consulted a specialist, and that his diabetes medication was unchanged since 2015;
(vi)it was suggested that Mr Hovens consider a further application for DSP should his conditions or capacities have altered since the claim and he were able to provide new or more detailed medical evidence.
With reference to the materials lodged with the Tribunal, including Mr Hovens’ statements and the reasons of AAT1, I summarise further with particular focus on the additional conditions:
(a)Mr Hovens’ treating GP has recorded in his Patient Health Summary (T6, p 134) a past history of diabetes, ischaemic heart disease, osteoarthritis in the right hip, right mononeuropathy and lateral cutaneous thigh nerve issue (October 2017), left neck pain with radiculopathy (February 2018);
(b)AAT1 was satisfied as to the history of knee surgery in 1974 which Mr Hovens described as experimental surgery, and AAT1 noted a history of an x-ray on 22 December 2017 which appeared to reveal no other abnormality;
(c)Mr Hovens provided a history in the January 2019 Job Capacity Assessment of being able to walk up to three kilometres with some pain, pain on standing over ten minutes, and arthritis pain after walking 100 metres;
(d)Mr Hovens had stents inserted in his legs in 2010 and 2011 for his vascular condition, and that extended periods of standing and walking cause pain;
(e)Mr Hovens’ arthritis pain has not been assessed by a specialist, and he also described being affected by this pain after walking two kilometres.
At the hearing Mr Hovens stated that the report about the reason for the delay or deferral of surgery to repair his sternum was not accurate. He stated that the reason he did not accept the proposed surgery was because of the effect of his medication, which he went on to change. In his written material Mr Hovens also stated that he understood that the hospital was to contact him after 6 months to follow-up, but this did not occur.
Mr Hovens also submitted in his written material that he was impaired by the failed sternal wires by being only able to lift light objects, has restricted movement of the arms and torso and has difficulty bending.
SUBMISSIONS
Mr Hovens submitted that he considered that what was missing throughout the life of his claim was appropriate consideration of the stress that can arise following cardiac surgery and proper consideration of the consequences of the sternal wire failure. He stated that he had recovered well from his cardiac surgery but subsequently his chest had opened up and now can not be repaired.
Mr Hovens stated that re-closure of his sternum was recommended but he had been unable to pursue this option at the time due to the nature of medication he was on, which he has since moderated. He explained that the result of the failure of the straps was that he had difficulty with daily functions, and he considered the expectation that he continue to seek work during consideration of his claim unreasonable. Mr Hovens described a number of changes that had been made to his reporting requirements for earnings. He also expressed his frustration at the nature of his engagement with Centrelink and what appeared to be the agency’s inability to comprehend the impact of his condition.
While Mr Hovens stated that his heart was now running reasonably well, he remains disappointed that the condition of his sternum was not accepted. He stated that he considered his conditions of arthritis, vascular deficiency, and ACL to be proven. Mr Hovens also restated his concern at the nature of reporting requirements upon those who have undergone bypass surgery.
On behalf of the Respondent:
(a)it was conceded that Mr Hovens’ condition has not changed in the more than two years that have passed since his DSP application;
(b)it was conceded that the failure of Mr Hovens’ sternum wires had a significant impact on his life;
(c)it was conceded that the description of Mr Hovens’ condition in the report of Dr Banning (Exhibit A1) was referrable to the qualification period;
(d)it was conceded that Mr Hovens should be considered to have an impairment arising from ischaemic heart condition attracting an assessment of 10 points;
(e)based on the medical evidence, specifically the report of the Cardiac Surgery Registrar, Austin Health (T6, p 154), it was conceded that the qualification period surgical repair of Mr Hovens’ sternum was identified as reasonable treatment;
(f)subsequently, in July 2019, it became the situation that the risk of surgery was considered too great and no further treatment was contemplated (Exhibit A1);
(g)the requisite test was forward looking and required consideration of treatment that had taken place and was intended to take place, with reference to the qualification period;[1]
(h)Mr Hovens’ other conditions did not meet the required threshold of fully treated and stabilised;
(i)there being no severe impairment it was necessary for Mr Hovens to meet the requirement of participation in a program of support, which he did not satisfy;
(j)notwithstanding the statutory requirements, it was conceded that the evidence indicated that it was clear that Mr Hovens was unlikely to be able to work again.
[1] Fanning and Secretary, Department of Social Services [2014] AATA 447, at [33]; RSFIC at [29]-[32].
Mr Hovens replied that it was never his position that he had declined surgery to repair the sternal wire failure. Rather, the nature of the medication he was taking at the time impeded decision-making, resulting in him going on to adjust that medication. He stated that he objected to having his physical capacities scrutinised so heavily despite his obvious limitations, as if an effort was being made to positively disprove his case. Mr Hovens reiterated that he tires during the day making standing painful, and that even movements such as opening and closing his arms and turning over in bed cause pain.
CONSIDERATION
The rules found in the Tables are set out above. In summary, the rules require that before any impairment assessment is made, a condition must be found to be fully diagnosed, treated and stabilised. Impairment assessments are not based upon conditions, but upon the assessment of functional capacity under a range of Tables.
As noted above, there is a period of 13 weeks following the making of an application for social security payments within which a person may qualify for entitlement to payments. In Mr Hovens’ case the qualification period ran between the lodging of his DSP application on 29 June 2018 and 28 September 2018.
Ischaemic heart disease
The Respondent’s representative has conceded that Mr Hovens has an impairment arising from cardiac failure during the qualification period. Having considered the medical evidence, I am satisfied that Mr Hovens has a cardiac condition that has been fully diagnosed, treated and stabilised, and was permanent during the qualification period.
The Respondent’s representative also conceded a 10 point impairment assessment for this cardiac condition. The appropriate table for assessment in relation to ischaemic heart condition is typically Table 1 – Functions requiring Physical Exertion and Stamina. I am satisfied that the descriptions of Mr Hovens’ general capacity for a range of daily activities is appropriately met by the descriptors for moderate functional impact on activities, attracting 10 points.
I note the descriptors in the Table refer to experiencing frequent symptoms of shortness of breath and fatigue when performing daily activities and that a person is able to use public transport and walk for activities such as shopping and is able to perform sedentary tasks not requiring a high degree of exertion. I am satisfied that Mr Hovens’ mobility, taking into account varying pain thresholds, as noted above at [16], meets the requisite descriptors.
In making this finding I note that Mr Hovens’ heart condition was considered stable and well managed in the medical reports. I also note that the evidence overall suggests that Mr Hovens has difficulties with a range of daily activities and both upper body, upper limb and lower limb functionality. However, as will be addressed below, not all of his conditions are capable of assessment. Accordingly, I exercise some latitude in the interpretation of the evidence in allocating points under Table 1 with respect to his heart condition.
Sternal wire failure
As noted, the fact of the failure of Mr Hovens’ sternal wires following his bypass surgery and the serious and painful impact are conceded. I also consider that the evidence leaves no doubt about this issue.
The sternal wire failure was patently part of Mr Hovens’ DSP application and features in medical certificates. Furthermore, the medical reporting before me demonstrates that during the qualification period Mr Hovens received a recommendation for re-closure surgery. This did not take place.
It is contended on behalf of the Respondent that this condition does not meet the tests of fully treated and fully stabilised. Rule 6 sets out a number of requirements for meeting these tests. One is whether Mr Hovens’ treatment was continuing or planned. In addition, a set of cumulative requirements are set out in rule 6(7), including whether treatment might reliably be expected to substantially improve his condition.
I consider the evidence on these points to be somewhat equivocal, particularly as the key document discussing repair surgery is quite brief. I also note that Mr Hovens has disputed the circumstances around the decision to delay the surgery. However, taking the evidence as a whole, I find that during the qualification period the condition of sternal wire failure must be considered not fully treated and stabilised.

For this reason, I am unable to make an assessment of impairment specifically for the physical limitations which the evidence indicates arose, and continue to be felt, from this condition.
Other conditions
There is very limited evidence available with respect to Mr Hovens’ other conditions. While I accept that he submitted that his arthritis, vascular condition and ACL are known conditions, but I am unable to accept that they are ‘proven’, as he has put it.
Mr Hovens in his written material has indicated that his arthritis has not been subject to medical review. I acknowledge that he has indicated it is the source of pain and inconvenience, however there is not adequate material to substantiate what exactly the state of this condition is.
I accept that there is some indication that Mr Hovens has had procedures in relation to his vascular condition. However, both this and the other leg condition referred to in medical material are not sufficiently substantiated to permit an assessment of any impact on his lower limb function.
I also accept that there is some indication in medical records that Mr Hovens has a history of diabetes but, again, there is a lack of adequate material permitting a more structured assessment of the condition and its impact on his functions.
CONCLUSION
Given the findings above, it is not necessary to consider the requirement for a continuing inability to work.
I reiterate the concessions made at the hearing and in the RSFIC on behalf of the Respondent. Mr Hovens has stressed his disappointment at the inability of the social security system to respond, in his opinion appropriately, to the situation of a person with a known cardiac condition. Moreover, he has expressed his concern at the apparent lack of responsiveness to his other obvious and disabling condition being the failure of the sternal wires.
I explained to Mr Hovens at the hearing that the applicable rules require several tests be satisfied before any actual impairment can be formally assessed. While I accept Mr Hovens’ submissions that he felt unable to engage at the time with a recommendation for repair of the sternal wire failure, this does not change the fact that a key treatment recommendation was pending during the qualification period.
I also explained to Mr Hovens that there is not always the case that a direct line be drawn between a medical condition and impairment, in the terms established under the Determination. That is, it remains speculative whether or what impairment may have been assessable in relation to the sternal wire failure itself.
DECISION
For the reasons given above the Tribunal affirms the decision under review.

44. I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

[sgd]................................................................
Associate
Dated: 25 November 2020

Date of hearing: 26 October 2020

The Applicant: Self-represented

Advocate for the Respondent: Mr Brian Sparkes

Solicitors for the Respondent: Services Australia

[2020] AATA 5762

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	26 October 2020
The Applicant:	Self-represented
Advocate for the Respondent:	Mr Brian Sparkes
Solicitors for the Respondent:	Services Australia