Hurst and Secretary, Department of Social Services (Social services second review) - [2020] AATA 3132

Hurst and Secretary, Department of Social Services (Social services second review) [2020] AATA 3132 (25 August 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7190
Re:Patricia Hurst
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:25 August 2020
Place:Perth

The reviewable decision, being the AAT1 decision dated 4 October 2019, is affirmed.
............................[sgd]............................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant’s conditions
fully diagnosed, fully treated and fully stabilised – whether applicant has severe impairment – musculoskeletal conditions – whether applicant has continuing ability to work – whether applicant has completed program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(5)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 5, 7, 7(2), 7(3)–(5)
Social Security (Administration) Act 1999 (Cth) – sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Tables 2-5, ss 3, 5(2), 6(1), 6(3), 6(4)–(8), 8(1), 8(2), 10(1)
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Gallacher v Secretary, Dept of Social Services [2015] FCA 1123
Larkin and Secretary, Department of Social Services [2018] AATA 342
Pignat and Secretary, Department of Social Services [2017] AATA 2745
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide – Chapter 3
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension – Section 3.6.3, topics 3.6.2.20, 3.6.3.05
REASONS FOR DECISION
L M Gallagher, Member
25 August 2020
BACKGROUND

On 12 June 2019, Mrs Hurst lodged a claim for Disability Support Pension (DSP) with the (then) Department of Human Services (now, the Agency)[1] (R1, T18 pages 147-177 and T33, page 215).
[1] The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known, as the ‘Department of Human Services’.
Following an assessment of DSP medical eligibility on 27 June 2019, the Agency deemed that the medical conditions presented, being Mrs Hurst’s spinal condition and chronic lower back pain did not appear to meet the requirements to proceed to a job capacity assessment (JCA) on the basis that she was manifestly medically ineligible[2] (T19).
[2] Refer further to topic 3.6.2.20 of the Guides to Social Policy Law: Social Security Guide (the Guide) regarding manifest grants and rejections for DSP and reasons for manifest eligibility and ineligibility.
On 12 July 2019, the Agency rejected Mrs Hurst’s claim for DSP on the basis that she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Hurst and Secretary, Department of Social Services (Social services second review) [2020] AATA 3132
Case: [2020] AATA 3132
Decision Date: 25 August 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Hurst against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the Secretary of the Department of Social Services' rejection of her application for a Disability Support Pension (DSP). The core of the dispute revolved around whether Mrs Hurst's medical conditions met the criteria for a DSP, specifically concerning the severity of her impairment and her continuing ability to work.

The legal issues before the Tribunal were whether Mrs Hurst's musculoskeletal conditions were fully diagnosed, fully treated, and fully stabilised, and whether she suffered a severe impairment. Additionally, the Tribunal was required to assess whether Mrs Hurst had a continuing ability to work and whether she had completed a program of support as required by relevant legislation. The Tribunal's assessment was to be made as at 12 June 2019, the date her DSP claim was lodged.

The Tribunal reasoned that the Impairment Tables, which form the basis for assessing DSP eligibility, focus on functional capacity rather than diagnosis. For an impairment rating to be assigned, the impairment must be permanent and likely to persist for more than two years. The Tribunal found that Mrs Hurst's claimed conditions were not fully diagnosed, fully treated, and fully stabilised, and therefore did not attract the necessary impairment points. Consequently, she failed to satisfy the second qualification criterion under section 94(1)(b) of the Social Security Act 1991 (Cth).

The Tribunal affirmed the AAT's decision, which in turn affirmed the original decision to reject Mrs Hurst's application for a Disability Support Pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.Mrs Hurst’s evidence Mrs Hurst said that if she goes past the point of her limitations she experiences exacerbation of and fluctuating episodes of chronic pain and that she lives in pain all of the time (transcript, page 12 [25]-[30]). Mrs Hurst said that if she is working then she cannot do anything for the next couple of days (due to pain) (transcript, page 12 [35]). Mrs Hurst told the Tribunal that she understands that she has not completed a POS in accordance with the necessary requirements (transcript, page 13 [40]). Mrs Hurst said that she cannot move her neck to the right without turning her trunk (transcript, page 16 [15]). During cross-examination by Ms Hinwood, Mrs Hurst said she began working for Pinnacle People (a hospitality group) in January 2018. Mrs Hurst said (transcript, page 18 [15]-[30] and page 19 [5]-[15]):MRS HURST: … If I worked - I couldn’t work, you know, if I worked and aggravated things it would just make it worse and then go back to work again and not be able to do anything for days after because - and the stress involved in trying to fulfil the requirements. Once I had a talk to my employer about my limitations if you don’t accept shifts as a temp you wouldn’t get offered work. But I was fortunate enough and the reviews I have with Pinnacle [P]eople’s clients that I only do the short shifts because I cannot - the pain, the liability to work safely, the pain is getting worse but there’s been many times where I’ve had to get my husband to come and pick me up from work where I’ve been working and then we work out about getting my vehicle later, because of not being able to drive home from work. And it got to the - it’s at the stage where he’ll take me to work, so that I don’t have to drive to or from, so I’m safe on the roads as well as in the workplace, just by working the two to three - I’m paid a three hour minimum, even if I only work two hours. That’s the same as fire walking, if I work an hour and a half, two hours, I’m paid a minimum of four hours. They’re - both employers are aware of some of my - not all of my health issues. I wouldn’t get any work if they knew of the whole lot.COUNSEL:So you just mentioned the exacerbation of symptoms while you were working for Pinnacle and that’s something that I noticed in the documents - your statement and your husband’s statement as well that’s been provided that you feel like the work and the nature of the work at Pinnacle caused an aggravation or worsening of your symptoms in your spine, that’s correct?MR HURST:‑‑‑It doesn’t matter - yes, it is. It doesn’t matter whether it’s work with Pinnacle, whether it’s home duties, whatever. If I go past the - if I do anything that aggravates on a continual - on a repetitive note, it just exacerbates and the inflammation associated with the pain, of course affects other areas within my body.COUNSEL:Yes. I guess you said earlier this morning that your position hadn’t changed and it’s been the same since the car accident but the evidence that you’ve just given suggests that that’s not quite the case, that it’s actually worsened recently with the type of work you were performing?MRS HURST: ‑‑‑It’s been - it’s an ongoing thing. If I keep - if I don’t go past that point and that is - like I’ve got like about 10 degrees moving to the right. If I go past that point or I’m carrying things or if I’m like sitting, it doesn’t matter which way - it doesn’t take much to be able to exacerbate my pain. I live with pain all the time but doing things increases my pain. COUNSEL:Just keep in mind, I know you’re talking a lot in the present tense at the moment and as we talked about this morning we’ve got to look back in time at the dates that this claim was lodged, so that’s a year ago?MRS HURST: ‑‑‑Yes, but it’s not just the present tense, it’s been the last 24 years that I have lived - even when my husband and I got married in 1998, I stood on his right so that - because I couldn’t look at him the other way to actually conduct - have the ceremony conducted. It’s always - it rules my - it has ruled my life as a limitation and that’s where the Bowen treatment. Every time I’d do something I would be there for a treatment and it’s - and many appliances and exercises and things are all - it’s the same.

Decision

Reasons for decision

As Mrs Hurst’s claimed conditions are not, in the Tribunal’s view, FDTS and hence do not attract any impairment points, she fails to satisfy the second qualification criteria under s 94(1)(b) of the Act and in turn fails to qualify for the DSP.DECISION The decision of the AAT1 dated 4 October 2019, which affirmed a decision of the Agency dated 12 July 2019 to reject Mrs Hurst’s application for DSP lodged on 12 June 2018, is affirmed.

Ratio Decidendi

Legal Principle Established

The statutory principles relevant to Mrs Hurst’s application are contained in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination). The Guide to Social Policy Law: Social Security Guide (the Guide) assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, will usually do so unless there are cogent reasons in a particular case for not doing so (refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–645). The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies (Section 3.6.3 of the Guide).Qualification criteria The determination of an impairment rating and the assessment of CITW are two distinct assessments based on two different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Impairment Tables and the requirement that the person has a CITW, are of equal importance (Topic 3.6.3.05 of the Guide). In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine Mrs Hurst’s eligibility for DSP on 12 June 2019, the date the claim was lodged.[3][3] Evidence, such as medical reports, that come into being after the relevant period may still be relevant, The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (s 3 of the Determination). The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions (s 5(2) of the Determination). Section 6 of the Impairment Tables set out the rules for assessing the level of functional impairment of conditions and assigning the corresponding impairment ratings. Section 6(1) of the Determination requires that a person’s impairment be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person. To be given a rating under the Impairment Tables, the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years (s 6(3) of the Determination, refer also to ss 6(4) to 6(7) of the Determination).