Howlett and Secretary, Department of Social Services (Social services second review)
[2024] AATA 203
•9 January 2024
Howlett and Secretary, Department of Social Services (Social services second review) [2024] AATA 203 (9 January 2024)
Division:GENERAL DIVISION
File Number(s): 2023/2264
Re:Mark Howlett
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member K Millar
Date:9 January 2024
Date of written reasons: 16 February 2024
Place:Adelaide
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
........[sgnd]................................................................
Senior Member K Millar
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 112
Prahauser v Administrative Appeals Tribunal [2020] FCA 1658
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member K Millar
16 February 2024
Introduction
This is an application for review of a decision made by a delegate of the Secretary, Department of Social Services, to refuse a claim for Disability Support Pension (‘DSP’) under the Social Security Act 1991 (Cth) (‘the Act’).
On 9 January 2024, at 12:00 noon, the Tribunal handed down an oral decision and delivered reasons for its decision. The following is the written record of those reasons.
By way of background, you previously received a DSP until it was cancelled in November 2019 because it was found you no longer qualified for this payment. You made a new application for a DSP on 27 January 2022, and your application was refused because it was found by a delegate of the Secretary that your spinal condition did not attract sufficient impairment points to qualify for the payment. This decision was affirmed on internal review, and on 15 March 2023 the Social Services and Child Support Division of this Tribunal (‘AAT1’) affirmed the decision. You have sought a further review of that decision.
Looking at what is required to qualify for DSP, the criteria in s 94(1) of the Act include that the person must have a physical, intellectual, or psychiatric impairment (s 94(1)(a)), the impairment or impairments must be of 20 points or more on the Impairment Tables (s 94(1)(b)), and the person must have a continuing inability to work (s 94(1)(c)).
The time in which you must meet these requirements starts on the day that you claimed DSP, and you may also qualify for DSP if you become qualified in the 13 weeks after your claim.[1] Your claim was made on 27 January 2022, and the qualification period ends on 28 April 2022.
[1] Social Security (Administration) Act 1999 (Cth) ss 41 – 42, sch 2 cl 4; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, Prahauser v Administrative Appeals Tribunal [2020] FCA 1658 at [23].
Physical, intellectual or psychiatric impairment
The first requirement I am looking at is whether you have a physical, intellectual or psychiatric impairment. Your general practitioner has reported, and you have other reports, as you say, going back from 2006, that you have chronic lower back pain. Your CT scans also show degenerative changes in your neck, and your general practitioner reports peripheral limb neuropathic pain. You have physical impairments, and you meet s 94(1)(a) of the Act.
Impairment rating of 20 points or more on the Impairment Rating Tables
The second question is whether you have an impairment rating of 20 points or more on the impairment rating tables. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. These tables set out rules for when an impairment rating can be assigned and they provide a rating system. To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment must be more likely than not, in light of available evidence, to persist for more than two years. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner, and be fully treated, fully stabilised, and more likely than not to persist for two years.
In deciding if a condition is fully diagnosed and treated, corroborating evidence of the condition, the treatment and the rehabilitation that has occurred, and whether the treatment is continuing or planned in the next two years is to be considered. A condition is fully stabilised if the person has undertaken reasonable treatment for the condition, and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years. Reasonable treatment is treatment that can, among other things, reliably be expected to result in substantial improvement in functional capacity and has a high success rate.
I would also like to note what is reasonable treatment, and this is in clause 6(7) of the Impairment Tables:
(7) …reasonable treatment is treatment that:
(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 the person.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 cl 6(7).
With your application for DSP you provided a handwritten statement in which you say that you were sacked from your job in 2006 because of back problems. You also say your partner helps you with most things such as dressing and putting your shoes on. You have said that you have problems sleeping and that losing your pension has caused some depression. There are some problems in each part of your spine, and I will go through those.
Cervical spine
A cervical spine CT was performed of your cervical spine on 23 November 2021. This reports degenerative disc space narrowing at C4-5, C5-6 and C6-7, and to a lesser extent at C3-4 with satisfactory alignment and vertical body height maintained. A CT report from 7 October 2022 concluded that you have multi-level advanced cervical disc degeneration with spondylitic change. The report is quite extensive, finding bilateral bony foraminal encroachment, perhaps most severe in the right side. While that CT scan is outside the qualification period, this condition being degenerative in nature it would not have first developed in October and would have existed in the qualification period.
While the medical reports from your general practitioner in the qualification period only address your lower back pain and not your neck pain, the Secretary accepts this condition is fully diagnosed, treated and stabilised.
Thoracic spine
The CT scan of 23 November of 2021 reports degenerative change to the thoracic spine and mild costovertebral degenerative joint disease at T5-6. This condition no doubt adds to your overall experience of back pain.
Chronic lower back pain
A CT scan was performed in 2019 and reports mild degenerative changes. Dr Gray referred you to Professor Nigel Jones for an opinion about your lower back pain in March 2020 after your DSP was cancelled. In this referral Dr Gray states that your CT scan was ‘?unremarkable’. The attached report of the CT scan reports mild degenerative changes involving the lower lumbar discs with no significant central canal or foraminal stenosis. You told AAT1 that you were advised Professor Jones does not do Centrelink reports and your appointment with him was cancelled.
A medical certificate from Dr Halool dated 2 March 2022 reports a diagnosis of lower back pain which is stated to be chronic, with symptoms of ‘acute on chronic lower back pain’, and an uncertain prognosis. A CT of your lumbar spine on 13 October 2022 reports mild lumbar bony degenerative change with no cause for direct nerve impingement being seen. You were referred to the pain clinic and attended an appointment but did not return, and the Secretary accepts it is not reasonable for you to continue to seek treatment from the pain clinic due to the cost and distance involved. This condition is fully treated, diagnosed and stabilised.
Neuropathic pain
There is also a condition of neuropathic pain reported by Dr Chucherd in June 2021, and this is reported to be a temporary condition with an uncertain prognosis. A medical certificate from Dr Halool dated 2 March 2022 lists a diagnosis of neuropathic pain to limbs with a date of onset in 2021, and symptoms of pain, tingling and a numb sensation to your peripheral limbs. This is stated to have an uncertain prognosis.
You told AAT1 that you saw a specialist who wanted to refer you for an MRI, but you could not do that due to the cost. You said that with the medication for this condition you experience tingling in your feet, and it feels like something that is vibrating under your feet. This is not fully diagnosed and does not have a functional effect.
Giddy spells
There are also reports of giddy spells that occur after the qualification period. The CT report of October 2022 said you have had loss of balance for two months. On this account you first experienced symptoms in August 2022, which is outside the qualification period.
Ataxic gait
The referral from Dr Ganthala to Southern Neurology in October 2022 says that you have a wide base gait with a complaint of imbalance in your gait, and I take this to be part of your back condition.
Depression
You refer to the loss of your pension as causing depression; however, there is no medical evidence of you having a clinical condition of depression and it cannot be considered diagnosed.
Impairment Points
One of the central issues for me today was whether or not you achieve 20 points on the impairment rating tables, as this is essential to be granted a DSP. You have various spinal conditions which are assessed under Impairment Table 4. The back conditions cause you pain. You say it is like a sword up your back, and that the functional impact is in your spine with some pain across your shoulders.
To achieve a rating of 20 impairment points as required by section 94(1)(b) of the Act, under Table 4 of the Impairment Tables you must be unable to:
(a) perform any overhead activities, or
(b) turn your head or bend your neck without moving your 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.
There is a job capacity assessment that was conducted on 9 March 2022 by an accredited exercise physiologist and a registered occupational therapist. At this assessment you said that you could pick up a light object from a coffee table by squatting rather than bending, and you were observed to lean forward and put your hand on a desk. You said you could bend to desk or table height. You were observed to sit for over an hour during the assessment, lift your arms above your head, flex and extend your neck with full range of movement, with slight range of movement for sideways rotation of your neck.
You do not meet (a) perform any overhead activities, as you can lift your arms above your head, and you can reach above your head, for example, to reach a coffee tin. You were observed to move your head in all directions at the job capacity assessment, and while you usually use your trunk to check a blind spot while driving, you can turn your neck to some degree. You do not meet (b). You can bend forward and pick up an object from the desk in front of you, so you do not meet (c). You do not meet (d) as you can remain seated for more than 10 minutes.
As you do not meet any of the requirements for 20 points for your spinal condition, you cannot meet the requirement to have 20 points or more on the Impairment Tables as required by section 94(1)(b) of the Act, and the decision must be affirmed.
This is not to say that you do not suffer significant pain in your back; however, there are specific requirements that must be met to obtain 20 impairment points for a spinal condition, and you do not meet these requirements. What that means today is that the decision under review is affirmed. As you would know from previous matters, that does not prevent you from again applying for a disability support pension in the future.
I certify that the preceding twenty-six (26)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
K Millar[sgnd]
……………………………..Associate
Dated: 16 February 2024
Date of hearing:
9 January 2024
Applicant: Self-represented Advocate for the Respondent: Ms Nadia Markov
Services Australia
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