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

[2020] AATA 4861

Jefferis and Secretary, Department of Social Services (Social services second review) [2020] AATA 4861 (3 December 2020)

Division:GENERAL DIVISION

File Number:          2020/1961

Re:Christopher Jefferis

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:3 December 2020

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – chronic fatigue syndrome – where impairment is permanent – 10 points under Table 1 – 10 points under Table 7 – whether applicant has a continuing inability to work – UNSW Fatigue Clinic – where applicant has not completed a program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

Dr L Bygrave, Member

3 December 2020

INTRODUCTION

1. Mr Christopher Jefferis lodged a claim for disability support pension on 19 June 2019.

2. The Department of Human Services (now Services Australia),[1] both initially and on review, rejected Mr Jefferis’ claim for disability support pension because he did not meet the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

   [1] On 26 May 2019, the Prime Minister announced the establishment of Services Australia and, on 1 February 2020, it became an executive agency in the Social Services portfolio.

3. Mr Jefferis subsequently applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 30 March 2020, the SSCSD affirmed the decision of Services Australia.

4. On 3 April 2020, Mr Jefferis made an application for review to the General Division of the Tribunal.

5. The application was heard by the Tribunal on 10 November 2020. Mr Jefferis attended the hearing and provided oral evidence by conference telephone.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. To qualify for disability support pension, Mr Jefferis must satisfy the criteria in subsection 94(1) of the Act, which requires him to show he has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, Mr Jefferis must satisfy these criteria on the date he applied for disability support pension (19 June 2019) or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period).

   Rules for assigning impairment ratings

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how an impairment affects a person’s ability to function, it may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated, fully stabilised and is likely to persist for more than two years: subsection 6(4).

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider whether it has been fully diagnosed by an appropriately qualified doctor, whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred, and whether treatment is still continuing or is planned in the next two years: subsection 6(5).

12. Fully stabilised means that it is unlikely there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

    ISSUES

13. The Secretary concedes, and I concur, that Mr Jefferis has a medical condition that causes impairment and therefore, he satisfied paragraph 94(1)(a) of the Act during the claim period.

14. It follows that the determinative issues for the Tribunal in this matter are whether, during the claim period, Mr Jefferis had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Issue 1 – Does Mr Jefferis have an impairment rating of 20 or more points under the Impairment Tables?

    Chronic fatigue syndrome

15. Mr Jefferis was diagnosed with chronic fatigue syndrome in January 2012.

16. Medical reports by Dr Jennifer Bromberger (general practitioner) dated 22 December 2014 and 13 February 2015 verified Mr Jefferis’ diagnosis and compliance with treatments. On 13 February 2015, Dr Bromberger described Mr Jefferis’ symptoms as:

    fatigue is severe and exacerbated by physical activity

    pain in joints & muscles is also severe

    dizziness/ vertigo also exacerbated by physical activity[2]

    [2] Exhibit T-T8, page 117.

17. Professor Andrew Lloyd (professor of medicine, consultant infectious diseases physician) provided medical letters dated 28 August 2018, 4 June 2019, 12 November 2019 and 23 August 2020. In his letter on 4 June 2019, Professor Lloyd set out that Mr Jefferis has been chronically unwell with chronic fatigue syndrome for seven years, and the ‘course of the illness has been moderately disabling since onset’.[3] Professor Lloyd also noted there are ‘no reversible medical, psychological or social factors’ contributing to Mr Jefferis’ decline and he has completed the ‘only evidence-based intervention for chronic fatigue syndrome’ (cognitive behavioural therapy and graded exercise therapy) without ‘substantive benefit’.[4]

    [3] Exhibit T-T14, page 136.

    [4] Exhibit T-T14, page 136.

18. Professor Lloyd described Mr Jefferis’ function limiting symptoms as ‘physical fatigue’ and ‘prominent neurocognitive difficulties’ and assessed Mr Jefferis in accordance with the Impairment Tables Determination as follows:

    ·Table 1 – Functions requiring Physical Exertion and Stamina: 10 points (moderate functional impact) on the basis that Mr Jefferis meets all the descriptors of 1 a) and 1 b).

    ·Table 7 – Brain Function: 10 points (moderate functional impact) on the basis that Mr Jefferis has substantive difficulties with sustained concentration, memory, problem solving, planning and decision-making.

19. In a further medical letter dated 23 August 2020, Professor Lloyd amended his assessment of Mr Jefferis and assigned 20 points under Table 7 – Brain Function. I note this letter is dated more than 11 months after the claim period and, therefore, I cannot accept that this is an accurate assessment of Mr Jefferis’ function during the claim period.

20. At the Tribunal hearing, Mr Jefferis provided oral evidence of his functional capacity and particularly emphasised the fluctuating nature of his chronic fatigue syndrome symptoms that he manages through pacing strategies.

21. Having regard to the medical evidence, I am satisfied that Mr Jefferis’ condition of chronic fatigue syndrome was fully diagnosed, fully treated and fully stabilised during the claim period. Based on the medical letter of Professor Lloyd dated 4 June 2019, two weeks prior to Mr Jefferis’ claim for disability support pension, I find that Mr Jefferis should be assigned 10 points under Table 1 – Functions requiring Physical Exertion and Stamina, and 10 points in accordance with Table 7 – Brain Function of the Impairment Tables Determination.

22. In making this decision, I also have considered Mr Jefferis’s oral evidence that is supported by Dr Bromberger’s report that stated Mr Jefferis’ ability ‘to function is expected to fluctuate’.[5] I note paragraph 11(4) of the Impairment Tables Determination provides that:

    When assessing impairments caused by conditions that have been stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairment, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

    [5] Exhibit T-T8, page 118.

23. I find that Mr Jefferis has a total impairment rating of 20 points or more under the Impairment Tables and, therefore, he satisfies the requirements of paragraph 94(1)(b) of the Act.

    Issue 2 – Does Mr Jefferis have a continuing inability to work pursuant to paragraph 94(1)(c) of the Act?

24. Paragraph 94(1)(c) of the Act requires that Mr Jefferis has ‘a continuing inability to work’.

25. Pursuant to subsection 94(2) of the Act, a person has a ‘continuing inability to work because of an impairment’ where:

    (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – 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.

26. Subsection 94(3B) of the Act provides that a person’s impairment is ‘a severe impairment if the person’s impairment is of 20 points of more under the Impairment Tables, of which 20 points or more are under a single Impairment Table’.

27. In accordance with my findings in paragraph 21, I am satisfied that Mr Jefferis does not suffer from a ‘severe impairment’ because he does not have an impairment rating of at least 20 points from one of the Impairment Tables. Consequently, the Act requires that he has participated in a program of support.

28. The requirements for active participation in a program of support are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (Active Participation Determination). To meet the requirements for active participation, Mr Jefferis must have participated in a program of support for at least 18 months in the three years before he lodged his claim for disability support pension on 19 June 2019.

29. Services Australia’s records show that Mr Jefferis completed only 63 days of a program of support during the relevant period from 19 June 2016 to 18 June 2019.[6]

    [6] Exhibit T-T29, page 207.

30. Mr Jefferis made written and oral submissions to the Tribunal that his attendance at the UNSW Fatigue Clinic should be accepted as being in a program of support. This is because the UNSW Fatigue Clinic is ‘funded partly by the Commonwealth via Medicare funding’ and the focus of the UNSW Fatigue Clinic program is to assist ‘individuals to develop skills in applying pacing (grading increases in activity very carefully) and fatigue management to their work activities’.[7]

    [7] Applicant’s Statement of Facts, Issues and Contentions dated 6 November 2020.

31. I have had regard to a letter from Professor Lloyd dated 12 November 2019 that states Mr Jefferis attended the UNSW Fatigue Clinic and completed the program between 25 January 2019 and 31 May 2019; the program comprised six sessions with a clinical psychologist and five sessions with an exercise physiologist.

32. I have also considered the information available about the UNSW Fatigue Clinic on its website. This includes the following explanation of the Clinic aims and program structure:

    The Fatigue Clinic Program aims to improve the lives of those living with these conditions [chronic fatigue syndrome, post-cancer fatigue or post-infective fatigue syndrome] to undertake the activities of everyday life, by applying activity pacing followed by graded physical and cognitive… activity training, in combination with cognitive behavioural interventions to manage disturbances in sleep and mood.  This service is conducted by a team of medical and health professionals with expertise in the areas of exercise physiology and clinical psychology, with specialist medical support in infectious diseases and oncology…

    The Program is run by a team consisting of an exercise physiologist (EP) and a clinical psychologist (CP).

    Patients consult with both healthcare professionals at regular intervals over a period of 19 weeks. Patients are provided with physical and psychological strategies to assist with self-management of fatigue and related symptoms, including treatment elements known as cognitive behavioural therapy (CBT), cognitive exercise therapy (CET) and graded exercise therapy (GET)…

    The Clinic Program is a 19-week structured schedule with 11 individual appointments (6 x CP, 5 x EP) over a total of eight visits.[8]

    [8] Exhibit R3.

33. Section 9 of the Active Participation Determination outlines the matters to be taken into account relating to the program of support; it states:

    In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:

    (a)was provided by a designated provider; and

    (b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and

    (c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to prepare for, find or maintain work (including self‑employed work); and

    (d)includes at least one of the following activities:

    (i) job search;

    (ii) job preparation;  

    (iii)education and training; 

    (iv)work experience;

    (v)employment;

    (vi)return to work;   

    (vii)vocational or occupational rehabilitation;

    (viii)injury management;

    (ix)an activity designed to assist the person to prepare for, find or maintain work.

34. I do not find the UNSW Fatigue Clinic Program comprising six appointments with a clinical psychologist and five appointments with an exercise physiologist over a total of eight visits during a 19-week period, is consistent with the meaning of a ‘program of support’ as described in section 9 of the Active Participation Determination for the following reasons.

35. First, there is no evidence the UNSW Fatigue Clinic Program is designed to assist people to prepare for, find or maintain work. Rather, the Program aims to ‘improve the lives’ of people with chronic fatigue syndrome to ‘undertake the activities of everyday life’.

36. Second, the UNSW Fatigue Clinic Program is provided by clinical psychologists and exercise physiologists. There is no evidence these healthcare providers are delivering ‘vocational, rehabilitation or employment services’.

37. Third, there is no evidence the UNSW Fatigue Clinic Program is a ‘designated provider’. While patients attending the Clinic may receive a Medicare rebate for attending a healthcare provider, I am satisfied that this does not constitute ‘funding’ of those healthcare providers by the Commonwealth.

38. Finally, the services that are provided by the UNSW Fatigue Clinic Program are predominantly medical in nature and are not the type of employment, study or occupational rehabilitation services that are contemplated in the Active Participation Determination.

39. Pursuant to subsection 7(5) of the Active Participation Determination, the requirements of a program of support are satisfied if, at the end of the claim period, Mr Jefferis was participating in a program of support and was prevented solely because of his impairment from improving his capacity to prepare for, find or maintain work through continued participation in the program.

40. There is no evidence before the Tribunal that subsection 7(5) of the Active Participation Determination is relevant in this matter. I am satisfied that Mr Jefferis attended two contact appointments with APM (disability services provider) from 20 July 2018 to 8 August 2019; his history of participation with APM show he claimed a DSP exemption from 20 September 2018 to 19 December 2018 and 19 June 2019 to 30 October 2019, and had an approved overseas absence exemption from 15 October 2018 to 5 November 2018.[9] Mr Jefferis also attended breakthru (disability services provider) via a phone appointment on 17 February 2020 and has subsequently been on exemptions from participating in a program of support.[10] Neither APM nor breakthru have provided any evidence that Mr Jefferis was  participating in a program of support and his impairment prevented him from improving his capacity to prepare for, find or maintain work through continued participation in the program.

    [9] Exhibit R1.

    [10] Exhibit R2.

41. Based on all the available evidence, I am satisfied that Mr Jefferis has not completed the requirements of a program of support. For these reasons, I cannot find that Mr Jefferis had a continuing inability to work and therefore he does not satisfy paragraph 94(1)(c) of the Act.

    DECISION

42. The decision under review is affirmed.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 3 December 2020

Date of hearing:	10 November 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Ms L Ng, Services Australia