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

[2017] AATA 654

Issa and Secretary, Department of Social Services (Social services second review) [2017] AATA 654 (5 May 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2124

Re:Mirvat Issa

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:5 May 2017

Place:Sydney

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – Impairment Tables – functional impact – Job Capacity Assessment – fully diagnosed, treated and stabilised – continuing inability to work – lumbar spine condition – congenital heart disease – gynaecological disorder – endometriosis – irritable bowel syndrome – endocrine system dysfunction – asthma – chromosomal/syndromic condition – sciatica – Table 1 Functions requiring Physical Exertion and Stamina – Table 10 Digestive and Reproductive function – Table 5 Mental Health Function – decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 80

CASES

Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

5 May 2017

BACKGROUND

1. The Applicant, Ms Mirvat Issa, commenced receiving disability support pension (DSP) on 13 November 2009.

2. In May 2015, the Department of Human Services, also known as Centrelink, commenced a review of whether Ms Issa remained qualified to receive DSP. Put another way, Centrelink possesses powers to review whether a person remains qualified to receive DSP.

3. It is important to appreciate that the legislative regime for DSP has altered since Ms Issa was first granted DSP in 2009.

4. On 1 January 2012, the former tables for assessing impairments were replaced by the Social Security (Tables for the Assessment of Work-related impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). In reviewing Ms Issa’s qualifications for DSP, Centrelink is required to apply the current legislative provisions, including the Impairment Tables.

   The Job Capacity Assessment

5. On 16 June 2015, Ms Issa attended a Job Capacity Assessment (JCA).

6. In the JCA Report dated 8 September 2015, the JCA held that Ms Issa suffers from congenital heart disease which is fully diagnosed, treated and stabilised.   There was an Atrial Septal Defect which was medically treated in 2005.

7. The JCA Report further held that Ms Issa has a Gynaecological Disorder following on from the birth of her first child.  Dr Alami, General Practitioner, listed Endometriosis as the primary gynaecological condition. This disorder is fully diagnosed, treated and stabilised.

8. It was further held by the JCA that Ms Issa suffers from a lumbar spine condition which causes back pain due to L3/4 disc degeneration. The JCA Report stated that it was fully diagnosed, treated and stabilised. From the medical reports, the JCA was of the view that it was well managed and had a minimal effect upon the activities of Ms Issa.

9. The JCA also held that Ms Issa suffers from Irritable Bowel Syndrome, Endocrine System Dysfunction, Asthma and a Chromosomal/Syndromic condition. All of these impairments are fully diagnosed, treated and stabilised.

10. The JCA assessed the congenital heart disease of Ms Issa and held that it had a moderate functional impact on Ms Issa’s functions and was thus assessed at 10 points under Table 1 of the Impairment Tables which is titled “Functions requiring Physical Exertion and Stamina”.

11. In relation to Ms Issa’s Gynaecological Disorder, the JCA held that, to avoid double counting her fatigue, there should be a rating of nil points under Table 10 which is titled “Digestive and Reproductive Function”.

12. The JCA stated that with respect to the remaining impairments, they warranted ratings of nil points under the Impairment Tables.

13. Finally, the JCA assessed Ms Issa’s baseline capacity to work as 8 to 14 hours per week, increasing to 15 to 22 hours per week within two years with intervention.

    DECISION UNDER REVIEW

14. On 3 November 2015, pursuant to s 80(1) of the Social Security (Administration) Act 1999 (Cth), Centrelink cancelled Ms Issa’s DSP.

15. Ms Issa sought review of the decision from an Authorised Review Officer (ARO). However, on 22 December 2015, the ARO affirmed Centrelink’s decision to cancel the DSP.

16. Ms Issa appealed to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1).

17. In its decision of 10 March 2016, which was posted on 21 March 2016, the AAT1 affirmed the decision under review.

18. Ms Issa now appeals to the General Division of the AAT which is known as an AAT second review (AAT2).

    THE LEGISLATION

19. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the Act).

20. The criteria for DSP are set forth in s 94 of the Act. In Ms Issa’s circumstances section 94(1) relevantly provides:

    94  Qualification for disability support pension

    (1)       A person is qualified for disability support pension if:

    (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;

21. Put simply, the Tribunal must be satisfied that:

    (a)Ms Issa has one or more physical, intellectual or psychiatric impairments;

    (b)these impairments are rated at least 20 points under the Impairment Tables; and

    (c)Ms Issa has a continuing inability to work.

22. The phrase "continuing inability to work" is defined in s 94(2) of the Act. In Ms Issa’s circumstances, it relevantly provides as follows:

    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.

23. “Work” is defined in s 94(5) as follows:

    work means work:

    (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)that exists in Australia, even if not within the person’s locally accessible labour market.

    THE IMPAIRMENT TABLES

24. Section 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of Ms Issa are worth 20 points under the Impairment Tables. This requires a few words of explanation.

25. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ...The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. 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. A claimant's impairment is to 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: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

26. Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.

27. Subsection 6(5) of the Impairment Tables provide that when considering whether a condition is fully diagnosed and treated, one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

28. It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.

29. Finally, when assessing mental health functions under Table 5 of the Impairment Tables, regard must be had to its introduction which provides in part as follows:

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

30. Self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment.

    THE HEARING

31. Ms Issa attended the hearing by telephone and represented herself. Ms Issa gave evidence by affirmation over the telephone.

32. Ms Issa said that on 3 November 2015, being the date of cancellation, her back pain had become worse. She stated that she cannot walk for long periods of time, approximating 10 minutes. She can shower herself, however not for long periods of time and often requires the use of a chair. Ms Issa said that she does drive a car and often takes her son to school and picks him up. She said that she usually goes grocery shopping with her husband. She can only lift light items down from the shelves.

33. Ms Issa stated that she experiences shortness of breath owing to her heart condition.

34. In relation to her Endometriosis, Ms Issa said that it gives her painful periods and heavy bleeding.

35. Ms Issa said that she uses a puffer for her Asthma.

36. Ms Issa also said that she has a problem with her right leg, extending from her right knee to her right ankle.

37. In cross-examination, Ms Issa agreed with the assessment of the JCA report that she could walk without assistance, however not uphill. Ms Issa agreed that she can walk upstairs, however she holds onto the balustrades.

38. In relation to domestic duties, Ms Issa said that she does not do the vacuuming and cannot make the bed by herself.  Her husband removes the washing out of the washing machine and either hangs it out on the clothes line or places it in the clothes dryer.

39. Ms Issa said that since her DSP was cancelled, she has had more back problems and has had massages and physiotherapy when she can afford it.

    CONSIDERATION

40. The issue which the Tribunal is required to decide, is whether on 3 November 2015 being the date on which Ms Issa’s DSP was cancelled by Centrelink, Ms Issa remained qualified for DSP.

41. The first question is whether Ms Issa has impairments.

42. Paragraph 19 of the Respondent’s Statement of Facts, Issues and Contentions is as follows:

    The Secretary accepts that at the date of cancellation the Applicant suffered from a number of conditions including a congenital heart disease, back condition, endometriosis, Lactose Intolerance, mental health condition, chromosome disorder and asthma. The Applicant therefore satisfies section 94(1)(a) of the Act.

43. Having regard to the evidence before the Tribunal, I agree with the Respondent’s concession as Ms Issa has impairments which satisfy s 94(1)(b) of the Act.

44. The second question is whether any of the impairments have been fully diagnosed, treated and stabilised and if so, what ratings should be received under the impairment tables.

    Congenital Heart Disease and Lumbar Spine Condition

45. It is easiest to deal with these two impairments together. From the medical evidence before the Tribunal, the Tribunal is satisfied that Ms Issa’s congenital heart disease was fully diagnosed, treated and stabilised on the date of cancellation.

46. It will be recalled that Ms Issa’s lumbar spine condition caused back pain due to L3/4 disc degeneration. However, after the cancellation date of 3 November 2015, Ms Issa underwent CT scans dated 16 November 2015. In her report dated 24 November 2015, Dr Alami described the scans as showing a new condition of “L5/S1 right and left lateral disc bulge into the exit foramen which could impact on her right and left L5 nerve root with blurring of perineural fat in this area”. 

47. There is no evidence of medical specialist examination of the L5/S1 right and left lateral disc bulge and in my view this does impact on aspects of the long-standing L3/4 disc degeneration, including Ms Issa’s Sciatica.

48. I find this issue to be a difficult one, but I have come to the conclusion that at the date of cancellation, Ms Issa’s back condition was not fully diagnosed, treated and stabilised and cannot be rated under the Impairment Tables.

49. It is difficult to separate the effects of Ms Issa’s congenital heart disease from the effects of her lumbar spine condition causing back pain. However, it is my task to assess the congenital heart disease. The appropriate table is Table 1 of the impairment tables which is concerned with Physical Exertion and Stamina.

50. The descriptors for a mild functional impact, being 5 points, in Table 1 of the Impairment Tables are as follows:

    There is a mild functional impact on activities requiring physical exertion or stamina.

    (1)       The person:

    (a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

    (i)walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

    (ii)performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

    (b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

51. From her evidence at the hearing, Ms Issa can walk unaided for a period of 10 minutes, can climb stairs, can drive a car and can do the shopping with the assistance of others.  She does have difficulties with a number of domestic tasks such as vacuuming and doing the washing.

52. In all of the circumstances, I assess Ms Issa’s congenital heart disease as having a mild functional impact on her activities warranting an assessment of 5 points under Table 1 of the Impairment Tables.

    Digestive and Reproductive Impairments

53. Having regard to the medical evidence, I find that Ms Issa’s Irritable Bowel Syndrome, Lactose Intolerance and her gynaecological impairment of Endometriosis were fully diagnosed, treated and stabilised at the date of cancellation.

54. The appropriate table in the Impairment Tables is Table 10 concerning Digestive and Reproductive Functions.

55. The descriptors for a mild functional impact, being 5 points, are as follows:

    There is a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

    (1)      At least one of the following applies:

    (a)the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or

    (b)the person is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.

56. The descriptors for a moderate functional impact, being 10 points, in Table 10 are as follows:

    There is a moderate functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

    (1)       At least two of the following apply to the person:

    (a)the person’s attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

    (b)the person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;

    (c)the person is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.

57. In her report dated 29 May 2015, Dr Alami wrote that Ms Issa’s Irritable Bowel Syndrome and Lactose Intolerance were generally well managed and had limited impact.   However, in her report dated 24 November 2015, Dr Alami wrote that Ms Issa suffered from “recurrent severe abdominal bloating with diarrhoea alternating with constipation”.

58. In her evidence before the Tribunal, Ms Issa said that she has heavy periods and heavy bleeding.

59. From the limited evidence before the Tribunal, I find that Ms Issa’s Irritable Bowel Syndrome, Lactose Intolerance and her gynaecological impairment of Endometriosis have a mild functional impact on her activities and warrant an assessment of 5 points under Table 10.

60. As can be observed from the descriptors for a moderate functional impact which I have set out above, two of the three descriptors must be applicable to the person before a moderate rating can be achieved. While descriptor (c) may be applicable, there is no evidence before the Tribunal that either descriptor (a) or descriptor (b) are applicable in Ms Issa’s circumstances.

    The Remaining Impairments

61. I find that Ms Issa’s Asthma was fully diagnosed, treated and stabilised on the date of cancellation. In her evidence before the Tribunal, Ms Issa said that she used a puffer. From the medical evidence, I find that the Asthma is well managed and warrants a nil assessment under the Impairment Tables.

62. In relation to Ms Issa’s chromosome disorder, there is very little medical evidence before the Tribunal. I am unable to find that the chromosome disorder was fully diagnosed, treated and stabilised at the date of the cancellation.

1. Finally, there is little evidence concerning Ms Issa’s mental health condition. There is no evidence from a psychiatrist or clinical psychologist confirming a mental health impairment which is required by Table 5 of the Impairment Tables titled “Mental Health Function”.

   FINDINGS AS TO IMPAIRMENTS

2. For the reasons which I have set out above, I make the following findings.

3. First, Ms Issa’s congenital heart condition was fully diagnosed, treated and stabilised at the date of cancellation and is assessed at 5 points under Table 1 of the Impairment Tables.

4. Second, Ms Issa’s lumbar spine and back condition was not fully diagnosed, treated and stabilised at the date of cancellation.

5. Third, Ms Issa’s reproductive and digestive impairments as recounted above, were fully diagnosed, treated and stabilised at the date of cancellation and warrant an assessment of 5 points under Table 10 of the Impairment Tables.

6. Fourth, Ms Issa’s Asthma was fully diagnosed, treated and stabilised at the date of cancellation. However, it is well managed and warrants nil points under the Impairment Tables.

7. Fifth, there is insufficient evidence before the Tribunal with respect to Ms Issa’s chromosome disorder, and accordingly I am unable to find that it was fully diagnosed, treated and stabilised at the cancellation date.

8. Sixth, there is no evidence before the Tribunal from a psychiatrist or clinical psychologist which is required before a mental health condition can be held to be fully diagnosed, treated and stabilised.

9. As I have assessed Ms Issa’s impairments at 10 points under the Impairment Tables, Ms Issa does not qualify for DSP as she does not fulfil the criteria specified in s 94(1)(b) of the Act.

10. Therefore, as Ms Issa does not fulfil s 94(1)(b) of the Act, it is not necessary for the Tribunal to determine whether Ms Issa has a continuing inability to work within the meaning of ss 94(1)(c)(i) and 94(2) of the Act and attendant provisions.

    DECISION

11. The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal is affirmed.

I certify that the preceding 73 (seventy -three) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated: 5 May 2017

Date(s) of hearing:	17 March 2017
Applicant:	In person
Solicitors for the Respondent:	J Larcombe, Department of Human Services