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

[2018] AATA 4534

Ioapo and Secretary, Department of Social Services (Social services second review) [2018] AATA 4534 (26 November 2018)

Division:GENERAL DIVISION

File Number:          2018/3509

Re:Faatupu Ioapo

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:26 November 2018

Date of written reasons:        6 December 2018

Place:Melbourne

The Tribunal affirms the decision that the Applicant was not qualified for DSP in the qualification period.

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

Senior Member D. J. Morris

Catchwords

SOCIAL SERVICES – Disability Support Pension – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – several medical conditions – no condition fully treated or fully stabilised in claim period – not qualified for benefit – decision affirmed – written reasons requested – power of Tribunal to consider submissions after decision made

Legislation

Acts Interpretation Act 1901 (Cth), ss 36(1), 37, 38AA
Administrative Appeals Tribunal Act 1975 (Cth), s 43(2A)
Social Security Act 1991 (Cth), ss 94(1), 94(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)

Cases

Negri v Secretary, Department of Social Services (2016) 246 FCR 1

REASONS FOR DECISION

Senior Member D. J. Morris

6 December 2018

PROCEDURAL BACKGROUND

1. Mrs Faatupu Ioapo applied for Disability Support Pension (DSP) on 31 August 2017.  Her claim was considered by an officer of the Department of Human Services (called in these reasons the Department, or Centrelink), who rejected it on 17 November 2017 as it did not meet the requirements of the legislation.  This is the original decision.

2. Mrs Ioapo requested a review of the original decision by an Authorised Review Officer (ARO), an officer of the Department who was not involved in the original decision.  The ARO affirmed the original decision to reject the claim on 11 April 2018.  Mrs Ioapo sought a review of the ARO decision by the Social Services and Child Support Division of this Tribunal (AAT1) and on 23 May 2018, after conducting a hearing, AAT1 affirmed the original decision.

3. Mrs Ioapo then sought review of the AAT1 decision in the General Division of this Tribunal.  The hearing was held on 26 November 2018 by telephone.  Mrs Ioapo spoke for herself but was also assisted by Ms Wendy Trieu, a Salvation Army support advocate, for part of the hearing.  Ms Trieu read an opening submission that had been prepared by Mrs Ioapo.  The Respondent was represented by Mr Pietro Nacion of Sparke Helmore Lawyers.  Mr Nacion made submissions and cross-examined Mrs Ioapo.

4. At the conclusion of the hearing, after a short adjournment, the Tribunal gave an oral decision to affirm the decision under review. Under section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), Mrs Ioapo requested a statement in writing of the reasons of the Tribunal for its decision. The Tribunal therefore now provides reasons in writing for the decision which, in accordance with section 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

5. In accordance with the Federal Court decision in Negri v Secretary, Department of Social Services (2016) 246 FCR 1 (Negri) these written reasons are consistent with the oral decision given and do not contain altered or new reasoning, but it is hoped that they explain in a fuller way the reasons why the Tribunal decided Mrs Ioapo's DSP claim could not succeed and, therefore, why the original decision was affirmed.

6. This statement of reasons is divided into two parts.  The first is the applicable law and the background to the matter.  The second is a rendering of the reasons given by the Tribunal orally.

   PART 1 – APPLICABLE LAW AND BACKGROUND TO HEARING

   Qualification for DSP under the Act

7. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 (the Act) and the qualification criteria for DSP must be satisfied.  It must be established that:

   (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)one of the following applies:

   (i)     the person has a continuing inability to work;

   (ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

   […]

8. As Mrs Ioapo's claim for DSP was made on 31 August 2017, the Impairment Tables under which her claim must be assessed are the Impairment Tables which came into force on 1 January 2012.  These are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

9. In terms of the criteria under section 94(1)(c) of the Act, no contention was made that Mrs Ioapo had participated in the supported wage system. She was therefore required to establish a continuing inability to work.  Section 94(2) of the Act provides that:

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)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 program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

   (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)in all cases—either: 

   (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)    if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

10. Section 94(3B) of the Act provides that:

    A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    […]

11. Consequently, if Mrs Ioapo is assigned 20 points under the Impairment Tables but does not have a severe impairment for the purposes of section 94(3B) of the Act, then the Secretary must be satisfied that the Applicant has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014.  If Mrs Ioapo does have a severe impairment, she is only required to satisfy sections 94(2)(a) and 94(2)(b) of the Act.

    What is the relevant period for considering the claim?

12. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, that:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

13. Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.

14. Therefore, there are two questions for the Tribunal to consider. First, the Tribunal must consider whether Mrs Ioapo was qualified for DSP on 31 August 2017 when she lodged her claim with Centrelink. If not, the Tribunal must then consider, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act and section 36(1) of the Interpretation Act, whether the Applicant became qualified on a day within the 13 week period from 1 September 2017 to 30 November 2017, inclusive, a period which will be called in this decision “the qualification period.”

    PART 2 – THE HEARING

15. The Tribunal had regard at the hearing to documents lodged by the Respondent under section 37 of the AAT Act (T-documents) and supplementary documents lodged under section 38AA of the AAT Act (ST-documents), which were taken into evidence as, respectively, Exhibits R1 and R2.

16. The following documents lodged by the Applicant were also taken into evidence: report of Mr Shane Turner, chiropractor, dated 18 July 2018 (Exhibit A1); medical report of Dr Marta Siegel-Shumba, general practitioner, dated 19 September 2018 (Exhibit A2); medical letter dated 16 July 2018 from Dr David Feng, Registrar, Royal Melbourne Hospital, to Dr Siegel-Shumba (Exhibit A3); medical letter dated 6 August 2018 from Dr John Taverner, Registrar, Royal Melbourne Hospital, to Dr Siegel-Shumba (Exhibit A4); medical report dated 16 August 2018 of Dr Georgina Baker, FRACP, gastroenterologist (Exhibit A5); and a 13-page bundle of medical reports commencing with a 19 November 2018 report by Mr Turner (Exhibit A6).

17. The Respondent in written submissions conceded that Mrs Ioapo had impairments in the qualification period and submits that she satisfied section 94(1)(a) of the Act.

18. The Tribunal considered the medical evidence in the T-documents and noted that (at T41, p 165) there was a Job Capacity Assessment (JCA) report submitted on 16 November 2017.  The JCA recommended that Mrs Ioapo’s claimed conditions of shoulder and upper arm disorder should be regarded as fully diagnosed, fully treated and fully stabilised.  The JCA referred to evidence of surgery for a right shoulder revision stabilisation, which the Tribunal notes took place in March 2015.  The JCA also recommended that a spinal disorder condition should be regarded as fully diagnosed, as should a mental health condition, described by the assessor as ‘depression.’  I note that at AAT1 the Member also accepted that Mrs Ioapo had a gastrointestinal disorder and diabetes mellitus, based on the medical evidence before him.

19. It should be noted that in the Applicant’s prepared statement, read to the Tribunal at her request by Ms Trieu, there was extensive discussion of particular gynaecological surgery performed on Mrs Ioapo, including whether she had been properly advised of the scope of the surgery and the possible consequences and whether she had given informed consent.  While it is possible that this surgery may have contributed to other physical and psychological conditions of Mrs Ioapo, this was not a condition cited by the Applicant in her DSP application.

20. Taking the evidence into account, the Tribunal finds that Mrs Ioapo satisfied section 94(1)(a) of the Act in having an impairment at the date of her DSP claim.  In terms of her conditions, to assess them as ‘permanent’ within the meaning of that term in the Determination, requires not only that the medical conditions are fully diagnosed, but they must also be found to be fully treated and fully stabilised within the qualification period, and that there is no functional improvement likely within the next two years.  The Tribunal dealt with the conditions in turn.

    Consideration of the medical conditions

    Shoulder condition

21. It is clear from the papers before the Tribunal that Mrs Ioapo has been troubled with a shoulder condition for a long time.  She suffered a fall in 2003, which started an unfortunate progression of recurrent dislocations.  It is apparent that Mrs Ioapo has twice had shoulder surgery, in 2008 and 2015.  She had a course of physiotherapy and told the JCA that, having completed these sessions, she had now been referred to an alternate physiotherapist.

22. Dr Robert Elliott, orthopaedic specialist, wrote in November 2016 (T32, p 116) that the dislocations had stopped after surgery; he recommended a prolonged physiotherapy course involving muscle conditioning and muscle activation, rather than massage.  I accept what Mrs Ioapo said in answer to questions posed by Mr Nacion about the physiotherapy and I do not accept the Respondent’s submissions that the temporal break in the Applicant’s physiotherapy is in this case fatal to deciding whether this condition is fully diagnosed and fully treated in terms of section 6(5) of the Determination.

23. It would seem to me on reviewing the totality of the medical reports, including some more recent reports after the qualification period, that Mrs Ioapo’s shoulder condition fulfils the requirements in the Determination of being fully diagnosed, fully treated and fully stabilised.

24. The relevant Impairment Table for assessment of this condition is Table 2 – Upper Limb Function.  Mrs Ioapo has consistently told the JCA, AAT1, and this hearing, that she does have some difficulty with heavier objects and reaching up or out to pick up objects.  She told the Tribunal that she can do up buttons and handle small objects such as coins, but can only hold an item such as a carton of milk in one hand, and not the other, because of her shoulder weakness and tenderness.

25. The Determination requires, in regard to Table 2, that a person must satisfy most of the four descriptors in the first part of the matrix for a mild functional impairment to be assigned.  Under section 11(c) of the Determination if a functional impact falls between two impairment ratings, the lower must be assigned.  Taking this evidence into account and applying this part of the Determination, the Tribunal assigned a zero point impairment rating for this condition.

    Spinal condition

26. In terms of Mrs Ioapo’s spinal condition, I note the Respondent accepts the lumbar spine condition was fully diagnosed as mild lumbar disc bulges and central canal narrowing prior to the qualification period and referred the Tribunal to a CT lumbar scan dated 4 February 2016 performed by Dr Antony Swingler.  The Tribunal notes that the CT reported (T30, p 108):

    Conclusion: Mild disc bulges and mild central canal narrowing as described.

    No nerve root compression.

    Mild facet arthropathy.

    No fracture or destructive process.

27. In November 2017 Mrs Ioapo told the JCA assessor that she had attended four sessions with a chiropractor and had been referred to a pain management programme to commence in February 2018.  She reiterated that evidence in the hearing, and explained that the waiting list for a public appointment at the pain clinic has been very frustrating, and the Tribunal understands that frustration.  I note that in the bundle of documents lodged by the Applicant on the business day prior to the hearing (Exhibit A6), a letter dated 15 November 2018 from the Royal Melbourne Hospital Pain Management Service advised that Mrs Ioapo has an appointment with a clinical psychologist on 13 December 2018 for an initial assessment.

28. It is clear to the Tribunal that Mrs Ioapo’s spinal condition was fully diagnosed before she lodged her claim for DSP but as the evidence is that treatment was continuing through and after the qualification period, I find that the spinal condition cannot be considered for the assignment of impairment points in relation to this particular claim.

    Mental health condition

29. For a person’s mental health condition to be assessable under the Determination, diagnosis of the condition by an appropriately qualified medical practitioner, including a psychiatrist, is necessary but if the medical practitioner is not a psychiatrist, there must be evidence from a clinical psychologist (corroborating the diagnosis).  The Tribunal notes that in this case there have been a number of different diagnoses of mental health conditions of the Applicant at different times.

30. In June 2013 Dr Amit Zutshi, psychiatrist, wrote a medical certificate (T8, p 59) stating that Mrs Ioapo has a psychosis/delusional disorder, which was in his opinion a temporary condition likely to persist for more than a year but not more than two years.

31. In August 2013, Dr Faras Al-Jabbari (T9, p 60) wrote a medical certificate stating that Mrs Ioapo had a temporary depressive condition which was, in his opinion, likely to show considerable improvement within 2 years.

32. The evidence from the extracted data (ST7, p 30) from the Pharmaceutical Benefits Scheme, relating to prescribed medicines dispensed to Mrs Ioapo, shows that she had two prescriptions filled in October 2013 for an antipsychotic medication and an antidepressant medication. The next such medication for a mental health condition Mrs Ioapo obtained was the anti-depressant duloxetine, sold under the brand name Cymbalta. This was prescribed by Dr Ashok Singh, psychiatrist, after she consulted him in January 2018, which was the first time she saw him.  Dr Singh made a new diagnosis of ‘somatisation disorder with mild anxiety and depression’.  Mrs Ioapo said Dr Singh prescribed Endep and, as mentioned, Cymbalta.  Mrs Ioapo said in this hearing that she has noticed some improvement in her symptoms after taking the latter.

33. It would seem to the Tribunal, given the shifting nature of the psychiatric diagnoses from 2013 to 2018, that there was no settled diagnosis in the qualification period that would be relevant to this particular DSP claim.  The earlier diagnosis of Dr Zutshi would meet the requirements of the Determination, but he was of the view that the condition he diagnosed in 2013 would have resolved in 2015.  A similar view was formed by Dr Al-Jabbari, and the more recent diagnosis by Dr Singh is for a mental condition with a different architecture in pathology. 

34. I am sympathetic to what Mrs Ioapo has said in the hearing in evidence about the course of her mental health condition, but emphasise that the Tribunal is restricted by the Administration Act to the qualification period ‘window’ from 31 August to 30 November 2017.

35. After careful consideration, the Tribunal therefore finds that Mrs Ioapo’s mental health condition was not fully diagnosed, fully treated or fully stabilised in the qualification period. Therefore, it may not be considered further for the assignment of impairment points in relation to the August 2017 claim.

    Gastrointestinal condition

36. In terms of Mrs Ioapo’s gastrointestinal condition, the Respondent, in the Tribunal’s view rightly, concedes that this was fully diagnosed at the date of the claim for DSP.  This concession is supported by the specialist medical opinion of Dr Georgina Baker who performed a gastroscopy and colonoscopy on 30 November 2017.  However, Dr Baker also reported on 13 December 2017 (T46, p 179) to Mrs Ioapo’s treating general practitioner, Dr Ruthra Nagendran, that a small bowel motility study and further study of the calprotectin protein in Mrs Ioapo’s blood was necessary.  The Tribunal notes that an upper abdominal ultrasound was performed on the Applicant in April this year.

37. It is clear to me that the treatment options for Mrs Ioapo’s care in relation to this condition were still being properly explored, with her co-operation, after the qualification period, so this condition cannot be regarded as fully treated and cannot be considered for the assignment of impairment points under the Determination.

    Diabetes condition

38. Dr Singh refers in his medical report to Mrs Ioapo having ‘impaired glucose tolerance’ and the Tribunal had before it (T53, p 197) a glucose tolerance test dated 26 April 2018 which concluded “Fasting glucose levels indicative of Diabetes Mellitus.  To confirm diagnosis, a repeat fasting…is required.” 

1. As the medical evidence is that this condition had not been conclusively diagnosed in the qualification period, it is not necessary for the Tribunal to consider it further.

   CONCLUSION

2. During the hearing, Mrs Ioapo submitted that as she had received Sickness Allowance from Centrelink.  It should follow, she argued, that the Respondent accepted her impairments in terms of her application for DSP.  The Tribunal explained this argument did not succeed because qualification for Sickness Benefit and DSP is significantly different.

3. In terms of qualifying for DSP, as mentioned above, if a person has not been assigned 20 or more points in one Impairment Table, the person may achieve an accumulation of 20 or more impairment points under more than one impairment table in the Determination. If that is the case, the person must then satisfy section 94(1)(c) of the Act; that is having a continuing inability to work or have participated in a program of support in the 18 months prior to lodging his or her claim.

4. Therefore, section 94 of the Act is cumulative in how it is written.  A claimant for DSP must satisfy all the parts of it for their claim for the benefit to be successful.  Section 6(4)(a) of the Determination requires that there must be corroborative evidence of a condition –         self-reporting of symptoms or functional impact is not enough.  The Tribunal emphasised in the hearing that, in this review, the word “permanent’ does not have the ordinary and every day meaning of that word. It has a special meaning set out in section 6(4) of the Determination.

5. It is very important for the Tribunal to make clear to Mrs Ioapo that a finding that I might make that a condition is not ‘permanent’ should not be interpreted by her, or indeed by the Respondent, as expressing the view that she does not suffer from the condition, or indeed that she may not have suffered from the condition at the time of her DSP claim.  What it does mean is that the preconditions of the condition being fully diagnosed and fully treated and fully stabilised had not been satisfied at that time of, or in the 13 week period after, she lodged her DSP claim.

6. The Tribunal is restricted to considering the situation regarding Mrs Ioapo’s functional impairment only in the window between the end of August and 30 November 2017.            It cannot look forward to how the situation might be today in regard to Mrs Ioapo’s medical circumstances.  That would be a matter for a fresh claim by Mrs Ioapo, and for Centrelink to consider.

7. Taking all the conditions of the Applicant into account, the Tribunal concludes that, at the time of the claim, zero impairment points should be assigned under the Determination for Mrs Ioapo’s impairments. Section 94(1)(b) of the Act requires that a person must be assigned 20 or more impairment points to qualify for DSP. As Mrs Ioapo has not met this threshold in relation to this application, it is not necessary for me to go on to consider the requirements of section 94(1)(c) of the Act, whether Mrs Ioapo had a continuing inability to work. The Tribunal does note (ST5, p 8) the Respondent advised that in the period between 31 August 2014 and 30 August 2017 Mrs Ioapo had a program of support calculation of 708 days.

8. The outcome in terms of this application for DSP is that Mrs Ioapo’s claim for DSP lodged on 30 August 2017 cannot succeed.

   LATER SUBMISSIONS

9. The Tribunal made its decision on 26 November 2018.  On 28 November 2018 the Applicant emailed the Tribunal and made certain submissions and asked for them to be drawn to the Tribunal’s attention. 

10. Leave was not given by the Tribunal for parties to make any submissions after the hearing. Parties had put written material before the Tribunal, made written and oral submissions and the Applicant had given oral evidence. The Tribunal had taken all of this information into consideration and had made its decision in accordance with its powers and duty under section 43 of the AAT Act. The Tribunal, in respect of Mrs Ioapo’s claim for DSP made in August 2017, had completed its task.

11. After setting out submissions about administrative processes in Centrelink relating to her claim, at the end of her submissions in the 28 November 2018 email, the Applicant wrote:

    Please make the Tribunals [sic] aware of this email to reconsider my case before the written Decision is made.

    It is important that I make clear to Mrs Ioapo that I cannot do what she asks.  If she has new information that she believes is relevant to her qualification for DSP, that information should be included in a fresh claim to Centrelink.  In the case of other matters in this email, if she wishes to pursue them they are properly matters she should take up directly with Centrelink.

12. As is clear from the Federal Court judgment in Negri, referred to earlier in this decision, while the Tribunal in providing written reasons may provide a fuller explanation for the reasoning that led to its decision, new or altered reasoning cannot be introduced.  Equally, the Tribunal cannot take into account new material, which may or may not be relevant, that was not in front of it before it made its decision. 

    DECISION

13. The Tribunal affirms the decision that the Applicant was not qualified for DSP in the qualification period.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the written reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 6 December 2018

Date(s) of hearing:	26 November 2018
Applicant:	In person
Advocate for the Respondent:	Mr Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore Lawyers