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

[2017] AATA 1391

Jennings and Secretary, Department of Social Services (Social services second review) [2017] AATA 1391 (30 August 2017)

Division:GENERAL DIVISION

File Number(s):      2017/0148

Re:Kylie Jennings

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

Tribunal:Ms Anna Burke, Member

Date:30 August 2017  

Place:Melbourne

The Tribunal affirms the decision under review

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

Ms Anna Burke, Member

SOCIAL SECURITY – claim for Disability Support Pension – whether physical, intellectual or psychiatric impairments – ectodermal dysplasia – whether condition fully diagnosed, fully treated and fully stabilised – whether impairment attracts 20 impairment points – whether continuing inability to work – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975; s 37
Social Security (Administration) Act 1999; ss 63, 80 & 118(13)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; paras 6(3)(a) & 6(4)
Social Security Act 1991; ss 26, 27(3) & 94(1)

REASONS FOR DECISION

Ms Anna Burke, Member

30 August 2017

INTRODUCTION

1. Ms Jennings (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).

2. On 18 March 2016 Centrelink found that Ms Jennings was not entitled to DSP as she did not meet the requirements of the Act. Centrelink is the service provider for the Department of Social Services.

3. The application was heard on 28 July 2017. Ms Jennings was self-represented and accompanied by her partner. Ms Jenna Molan, government lawyer in the Freedom of Information and Litigation Team, Department of Human Services appeared for the Respondent.

   THE ISSUES IN CONTENTION

4. The issues in contention are whether Ms Jennings:

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

   (b)has a diagnosed condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;

   (c)has a fully diagnosed, treated and stabilised condition which attracts 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (d)has a continuing inability to work.

   BACKGROUND

5. Ms Jennings, who is now 27 years of age, currently lives with her partner and five children. She completed schooling up to year 10 and has subsequently undertaken minimal paid employment. Ms Jennings has predominantly undertaken parental duties, including homeschooling her children, but since her partner has been unable to find work he has been in receipt of parenting payment and she is on newstart allowance.

6. On 14 January 2016 Ms Jennings made an application for DSP, citing her medical condition as ectodermal dysplasia (inability to regulate body temperature).

7. On 9 March 2016 Centrelink had a job capacity assessment (JCA) conducted on Ms Jennings. The JCA report found that:

   ·     no verified permanent, fully diagnosed, treated and stabilised conditions have been recorded therefore nil impairment points could be awarded

   ·     Ms Jennings was assessed as having a part time work capacity of 30+ hours per week.

8. On 18 March 2016 Centrelink wrote to Ms Jennings to inform her that her DSP had been refused as he did not have an impairment rating of 20 points or more under the Impairment Tables.

9. On 16 August 2016, on internal review, a departmental Authorised Review Officer (ARO) found Ms Jennings had no available medical evidence for the condition she reported. As such, the JCA was unable to corroborate that the condition had been fully diagnosed, treated or stabilised and an impairment rating could not be assigned for this condition at the time. The ARO noted Ms Jennings had not participated in a program of support for the three years preceding her claim, having being assessed as having a baseline work capacity of 30 hours per week and that her medical condition would not prevent her from undertaking a training activity to prepare for alternative work within two years.

10. On 14 October 2016 a file assessment JCA was completed based on the medical report provided by Dr Robertson which verified a diagnosis of ectodermal dysplasia. As the condition was now considered to be fully diagnosed, treated and stabilised the JCA awarded five impairment points under Table 14 – Functions of the Skin, as Ms Jennings has to keep cool to avoid the risk of hyperthermia due to inability to sweat efficiently. The assessor noted: “sunlight is not a major factor but the heat is and therefore, Customer needs to make appropriate minor adaptations to some daily activity/work”.

11. On 6 December 2016 the Social Security and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO to reject Ms Jennings DSP claim but awarded the following points under the impairment tables for conditions :

    ·20 points under Table 14 - Functions of the Skin, assessing this as the most relevant in Ms Jennings’s case. The Tribunal was satisfied Ms Jennings had a genetic condition of ectodermal dysplasia which affects her ability to perspire and that she is in danger of overheating if exposed to warm or hot temperatures. She has severe difficulty involving exposure to sunlight as a result of a genetic condition and can only spend brief periods of time outdoors each day. Protective clothing or footwork cannot protect her as this would result in overheating and could result in hyperthermia.

    ·The Tribunal found Ms Jennings had a baseline work capacity of 30+ hours per week and that she indicated an ability and desire to work. The Tribunal was satisfied Ms Jennings is able to work or undertake a training activity for at least 15 hours per week and has expressed her willingness to do so if her particular needs are met.

12. On 10 January 2017 Ms Jennings sought a review of the AAT1 decision by this division of the Tribunal, as she does not agree that the Tribunal fully appreciated her condition and her job network provider had not considered limitations imposed on her by her condition. In accordance with Schedule 2, Section 4(1) of the Social Security (Administration) Act 1999 (the Administration Act) Ms Jennings qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 6 April 2016.

    Relevant Legislation and Issues

13. Section 94(1) of the Act provides that a person is qualified for DSP 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)the person has a continuing inability to work as defined by the Act.

14. It is agreed that, at the time of application Ms Jennings suffered from the medical condition ectodermal dysplasia that caused impairment and she therefore satisfied section 94(1)(a) of the Act.

15. The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]

    [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a)

16. Section 6(4) of the Impairment Tables state that a condition is “permanent” if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    ….

    (c)the condition has been fully stabilised; and

    …

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

17. The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.

18. The determinative issue in this review is whether, at the time, Ms Jennings suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.

19. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).

20. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

21. Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

22. It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.

    THE TRIBUNAL’S CONSIDERATION AND FINDINGS

    Evidence before the Tribunal

23. The evidence before the Tribunal included two sets of documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the “Supplementary T documents”, the Respondent’s application for review and additional medical reports provided by Ms Jennings.

    DOES MS JENNINGS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?

24. Section 94(1)(a) of the Act provides that to qualify for disability support pension, in the first instance, that a person suffers from an impairment.

25. The parties accept that Ms Jennings is suffering from ectodermal dysplasia. Accordingly, the Tribunal finds that Ms Jennings is suffering from these conditions and meets the requirements of section 94(1)(a) of the Act.

26. As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables.

    DOES MS JENNINGS HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?

    Ectodermal dysplasia

27. Dr Susan Robertson, consultant dermatologist, provided a report of 12 August 2016 which outlined a multidisciplinary review of Ms Jennings conditions. The report observed Ms Jennings described a long-standing history of heating intolerance, dry skin, absent teeth and sparse hair. The review determined that: “it was felt that Kylie’s history and clinical examination findings were consistent with the diagnosis of X-linked hypohidrotic ectodermal dysplasia. Management of this condition is keeping cool to avoid hyperthermia due to the inability to sweat efficiently.” On examination, Ms Jennings presented with sparse hair affecting the scalp and eyebrows, particularly with thinning of the lateral eyebrows, there was minimal body hair present, she had hypodontia with numerous missing teeth on the upper and lower jaws, her nails were of normal appearance and there was no evidence of palmoplantar keratoderma. Whilst Dr Robertson’s report was outside the qualifying period date, it has been accepted as it confirms a genetically based disposition, which has been present since birth.

28. The Tribunal accepts Ms Jennings has had the genetic condition of ectodermal dysplasia since birth and as such accepts it is fully diagnosed treated and stabilised. There is no cure or known treatments for the condition. The Tribunal has to determine the impact this condition has on Ms Jennings functionality. The most relevant table in respect of this condition is under impairment Table 14 – Function of the Skin:

    An Impairment will have a moderate functional impact if:

    10 There is a moderate functional impact on activities requiring healthy, undamaged skin.

    (1)       Regarding the adaptations to several daily activities that the person has to make, at least one of the following applies:

    (a)       the person has moderate difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. moderate allodynia) and needs to wear protective gloves for most tasks, avoid contact with all detergents and soaps, or avoid repetitive tasks involving use of the hands;

    (b)       the person has moderate difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);

    (c)       the person has moderate difficulties performing daily activities due to lesions on skin which require creams or dressings and limit movement and comfort (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);

    (d)       the person has moderate difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and needs to take higher than normal precautions to avoid exposure to sunlight (e.g. must wear sunscreen at all times, wear hat and other protective clothing at all times outside and has to limit time spent outside in sunlight).

29. Ms Jennings advised the Tribunal that she cannot perspire as her sweat glands do not function properly. Because of this she is unable to sweat and her body cannot regulate temperature properly. Therefore, overheating is an enormous problem, especially during summer and she needs all-time access to a climate regulated environment. This was evidenced by the Department of Housing providing air-conditioning to their property. Ms Jennings advised that when her children had attended school she was only able to drop them off in the morning, as in the afternoon the sun and the heat made it too difficult for her to function outdoors. Ms Jennings advised the Tribunal that she was not only affected by heat but by exertion, as this can also result in overheating. During the hearing Ms Jennings also advised that overheating can be extremely dangerous and that it has led to dizzy spells, disorientation and loss of consciousness. It was the first occasion in respect of Ms Jennings’ application that she had referred to this complication of her condition. Ms Jennings’ partner advised the Tribunal that during these episodes she speaks gibberish, is unaware of her surroundings, does not remember the instance afterwards and he must take immediate action to reduce the temperature by cooling techniques.

30. Ms Jennings advised the Tribunal that three of her children had inherited the condition and during summer the entire family lived and slept in the lounge room where the air conditioning unit was located.

31. The Tribunal was satisfied that Ms Jennings condition would attract 10 points under Impairment Table 14, as the condition resulted in her ability to regulate her perspiration and her temperature. Whilst Ms Jennings’s condition was not sensitive to sunlight it was to heat and sun and as such she met criteria (d) as outlined above.

32. At the AAT1 hearing 20 points were awarded under Table 14 as the Tribunal felt the condition was severe as Ms Jennings meets 2 of the criteria (d) and (e). Ms Jennings advised the Tribunal during the hearing that the type of work she could perform is very limited: it must be indoors in a climatically regulated environment, where she did not exert herself, she could not wear protective clothing as this would result in her overheating and subsequently result in hyperthermia. The Tribunal agrees with this assessment and has awarded 20 points to Ms Jennings.

    An impairment will have a severe functional impact if:

    20 There is a severe functional impact on activities requiring healthy, undamaged skin.

    (1)        Regarding the person’s significant modifications to, or inability to perform, daily activities, at least two of the following apply:

    (a)       the person has severe difficulties performing activities involving use of their hands due to major skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. severe allodynia) and is unable to perform some tasks involving use of the hands;

    (b)       the person has severe difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

    (c)       the person has severe difficulties performing daily activities due to extensive or severe lesions on skin which require creams or dressings and limit movement and comfort (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

    (d)       the person has severe difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and can spend only a brief period of time in sunlight each day even when wearing sunscreen and protective clothing;

    (e)       the person is not able to wear clothing or footwear likely to be required in their workplace, including items of personal protective equipment (e.g. protective glasses, ear defenders, safety jacket, gloves, safety boots, safe shoes or hard hat).

    DOES MS JENNINGS HAVE A CONTINUING INABILITY TO WORK?

33. To qualify for the DSP Ms Jennings must not only satisfy the requirement that she has an impairment with a rating of 20 points or more, she must also demonstrate she has a continuing inability to work. Ms Jennings’s impairment can be classified as being severe under s 94(3B) of the Act, based on the Tribunal’s assessment. Therefore, the Tribunal must consider whether Ms Jennings would be considered to have a continuing inability to work. As her impairment is classified as severe, she does not need to satisfy the requirement of having actively participated in a program of support within the meaning of section 94(3C), prior to the Applicant’s claim for DSP. However, it must be satisfied that her impairment is of itself sufficient to prevent her from doing any work independently of a program of support, as per s 94(2)(a).

34. Ms Jennings has been assessed as having a continuing ability to work +30 hours per week and therefore does not satisfy section 94(1)(c)(i) of the Act.

35. Ms Jennings’s accepted condition of ectodermal dysplasia is genetic, for which there is no treatment or cure. As such there is no ability for this condition to improve with support in the next two years to assist Ms Jennings into the workforce. Ms Jennings may be assisted with training to help locate a job which meets her particular physical needs but she reported that to date her disability support provider had failed to understand her condition or needs.

    CONCLUSION

36. Having carefully considered all the evidence before the Tribunal, I find that at the time of her original DSP application of 14 January 2016 Ms Jennings did meet the required 20 points under one impairment table to satisfy section 94(1)(b) of the Act and that she did not have a continuing inability to work. Ms Jennings therefore did not qualify for the DSP on 14 January 2016.

    DECISION

37. The decision under review is affirmed.

I certify that the preceding 37 paragraphs are a true copy of the reasons for the decision herein of Anna Burke, Member

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

Dated: 30 August 2017

Date of hearing:	28 July 2017
Applicant:	Self-represented
Advocate for the Respondent:	Jenna Molan