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

[2018] AATA 2295

Johnson and Secretary, Department of Social Services (Social services second review) [2018] AATA 2295 (18 July 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1175

Re:Leaha Johnson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms A F Cunningham, Senior Member

Date:18 July 2018

Place:Hobart

The Tribunal affirms the decision under review.

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

Ms A F Cunningham, Senior Member

CATCHWORDS

SOCIAL SECURITY – cancellation of disability support pension – conditions not fully treated and stabilised – no impairment rating – failure to satisfy program of support provisions – failure to satisfy continuing inability to work provisions – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment Disability Support Pension) Determination 2011

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

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

18 July 2018

1. The applicant, Leaha Johnson, suffers from a number of medical conditions that impact on her ability to function, the most significant being multiple sclerosis. On 30 March 2017 she made a claim for a disability support pension (DSP). This claim was rejected by Centrelink by letter dated 17 June 2017 on the basis that the applicant failed to satisfy the qualification requirements. A review of Centrelink’s decision was affirmed by an authorised review officer on 11 December 2017 and subsequently by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 5 February 2018. The applicant has appealed to this Tribunal for a de novo review of the decision, contending that the AAT1 relied on ‘incorrect information’.

2. The Tribunal held a hearing on 4 July 2018. The applicant appeared on her own behalf by way of videolink to Burnie, Tasmania and gave oral evidence. The applicant called Dr Bekithemba Bulle, general practitioner (GP), to give evidence on her behalf and tendered a medical report from Dr Bulle dated 10 June 2018. She also tendered a medical report from Dr Andrew Evans, neurologist, dated 18 June 2018 and a regional imaging report dated 28 May 2018.

3. The respondent was represented by Mr Brian Sparkes who tendered the T documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

   ISSUE

4. The issue for the Tribunal to determine is whether the applicant met the qualification requirements for DSP during the qualification period, that period being between 30 March 2017 and 29 June 2017.

   LEGISLATION

5. The legislation relevant to this application is contained in the Social Security Act 1991 (Cth) (the Social Security Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Social Security (Tables for the Assessment of Work-related Impairment Disability Support Pension) Determination 2011 (the Impairment Determination), and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

6. The qualification provisions are contained in s 94(1) of the Social Security Act:

   Qualification for disability support pension

   1A 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;

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

   (d)the person has turned 16; and

   (da)   in a case where the following apply:

   (i)     the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;

   (ii)    the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market;

   (iii)    if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e)the person either:

   (i)     is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)    has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)    is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A) is not an Australian resident; and

   (B) is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea)one of the following applies:

   (i)     the person is an Australian resident;

   (ia)   the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)    the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   The requirements set out in s 94(1) are conjunctive and a failure to satisfy any one of the subsections results in failure to qualify.

7. To qualify for DSP a person must have at least 20 points of impairment under the Impairment Tables and a ‘continuing inability to work’ (CITW). The provisions relevant to a CITW are set out in s 94(2) of the Social Security Act as follows:

   2A 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) 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.

8. The term ‘work’ is defined in s 94(5) to mean 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.

9. From 3 September 2011 a person without a ‘severe impairment’ (allocated 20 points or more under a single Impairment Table: s 94(3B) of the Social Security Act) must have ‘actively participated’ in a program of support to qualify for DSP. A person has ‘actively participated’ in a program of support if they satisfy the requirements specified in a legislative instrument made by the Minister: s 94(3C) of the Social Security Act. The POS Determination sets out the circumstances where this requirement is met.

10. The Administration Act provides that the qualification period is 13 weeks from the date of claim.

    CONSIDERATION

11. The respondent conceded that the applicant satisfies s 94(1)(a), (d) and (e), but submitted that she did not satisfy s 94(1)(b) or (c). Therefore the Tribunal’s consideration relates to the impairment rating assigned to the applicant’s conditions and the CITW requirements, including consideration of the POS requirements.

12. Part 2 of the Impairment Determination includes instructions and rules for the application of the Impairment Tables and for assessing impairment. Section 6 states that an impairment rating can only be assigned if the condition causing that impairment is permanent (s 6(3)(a)). A permanent condition is defined as one that has been fully diagnosed by an appropriately qualified medical practitioner, fully treated, fully stabilised and more likely than not to persist for more than two years (s 6(4)).

13. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and fully treated, consideration is given to corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether the treatment is continuing or is planned in the next two years (s 6(5)).

14. A condition is fully stabilised (s 6(6)) if either:

    (a)the 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; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    The rules also define what is meant by ‘reasonable treatment’. Further instructions are included in the introductions for each Impairment Table.

15. The Tribunal is satisfied on the basis of the medical reports that the applicant has the following fully diagnosed medical conditions: multiple sclerosis, generalised anxiety disorder, rheumatoid arthritis and chronic pain arising from left femoral nerve damage.

    Multiple Sclerosis

16. Dr Evans, in a letter to Dr Bulle dated 27 September 2016, agreed that it was likely that the applicant had ‘mild multiple sclerosis’ and recommended disease-modifying therapy. He reported that the applicant had described symptoms of dizziness and a feeling of unsteadiness with mild persistent numbness and tingling sensations. Dr Evans observed a normal gait with perhaps one missed step. He stated that after discussing various medications and their side effects, the applicant had agreed to take Aubagio.

17. In a medical certificate completed by Dr Bulle on 8 December 2016, he noted a permanent diagnosis of multiple sclerosis and symptoms of dizziness, throat tightness and chest tightness.

18. On 19 December 2016 the applicant’s then GP, Dr Hanna Lichti, noted similar symptoms to those described by Dr Bulle for the applicant’s multiple sclerosis and gave a prognosis of these symptoms being likely to deteriorate within two years.

19. In a medical certificate dated 23 March 2017 Dr Bulle listed symptoms including headaches, fatigue and weakness in the legs. With respect to treatment he stated that there had been no past or current treatment and that the applicant was awaiting an appointment with a neurologist, Dr Evans, on 15 May 2017 for an MRI scan of the brain and spinal cord. The evidence before the Tribunal was that the Aubagio medication was temporarily stopped due to side effects.

20. A job capacity assessment (JCA) report was undertaken on 29 May 2017. The JCA report noted that at the time of her claim on 30 March 2017, the applicant was awaiting a consultation with Dr Evans on 15 May 2017. At that consultation, Dr Evans recommended treatment of her multiple sclerosis with Copaxone.

21. On 9 March 2018 Dr Bulle certified the applicant as being unfit for work between 9 March 2018 and 9 June 2018. The medical certificate noted that she had been treated in the past with Aubagio, that she was currently taking Allegron and Copaxone, and that an MRI scan with Dr Evans was planned.

22. Whilst the applicant’s multiple sclerosis was accepted as permanent, the JCA did not consider that it was fully diagnosed, treated and stabilised because there was likely to be significant improvement with ongoing or appropriate medical treatment within the next two years. However, the Tribunal has been unable to find a reference to any likely improvement within the next two years. The evidence is that at the time of the applicant’s claim, appropriate treatment was still being assessed. The Tribunal accepts the applicant’s evidence regarding the reasons for the change in her medication however, in order for an impairment rating to be assessed, the decision maker must be satisfied that further treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.

23. Dr Bulle gave evidence in relation to the applicant’s multiple sclerosis. He confirmed that the applicant had initially been prescribed Aubagio but that this was discontinued due to adverse side effects. Alternative medication, Allegron and Copaxone, was prescribed by Dr Evans. Dr Bulle agreed that treatment for the applicant’s multiple sclerosis first commenced in mid-2017. It was initially hoped that treatment would help slow the progression of the disease however Dr Bulle said that there had been few positive results and that the applicant’s condition continues to worsen.

24. The applicant described the stressful and painful symptoms she currently suffers from and said that these were also present at the time of her claim for DSP. She described her multiple sclerosis as ‘a very scary thing’ and said that, as well as suffering several falls, she experiences temperature fluctuations, and pain in her legs, arms and back that is accompanied by electric shock sensations.

25. Whilst the Tribunal may take account of new evidence presented at the hearing, this evidence must relate to the condition during the qualification period. In a letter dated 10 June 2018 Dr Bulle states that the applicant has suffered from multiple sclerosis since prior to 23 October 2012. Dr Evans, in his report of 18 June 2018, refers to a diagnosis of multiple sclerosis in 2016 that was established by MRI scanning. Both of these specialists consider the condition permanent and unlikely to improve in the next two years and more likely to deteriorate. This evidence may be relevant to a current application for DSP however, it does not assist the Tribunal in assessing whether the applicant’s condition was fully treated and stabilised during the qualification period.

26. At the time of the applicant’s claim for DSP in March 2017 she was awaiting an appointment with Dr Evans and an MRI scan. The applicant had ceased taking Aubagio medication, which she feared could heighten the risk of her leukaemia returning. She did not begin taking Copaxone until 6 July 2017. Dr Bulle gave evidence that it was hoped that the treatment would slow the progression of the applicant’s multiple sclerosis. Whilst this has not eventuated, the situation was that, during and after the qualification period, the applicant was being prescribed other forms of treatment. Accordingly, the Tribunal is unable to conclude that the condition had been fully treated and was fully stabilised during the qualification period. For this reason, an impairment rating cannot be assessed for the applicant’s condition of multiple sclerosis.

    Generalised Anxiety Disorder

27. In a medical report dated 22 October 2013 Dr Nicholas Barnes, GP, listed depression as a condition the applicant had but noted that this was generally well-managed and caused her minimal or limited ability of function. No further medical evidence regarding treatment of this condition was submitted by the applicant at the hearing. There is no evidence that this condition has been diagnosed by a psychiatrist or clinical psychologist, as is required by the Impairment Tables, and therefore it cannot be assessed for an impairment rating.

    Left Femoral Nerve Damage

28. The applicant gave evidence in relation to the pain she suffers as a result of this condition and said this had not changed since the time of her initial injury. She said that she does obtain some relief from medication (Lyrica) and that the dose has been increased in recent times. The applicant said that she cannot sit or stand for long periods of time, nor can she walk long distances or carry anything heavier than a 2 litre carton of milk because of the resultant pressure on her foot. The applicant also described how she is unable to push a grocery trolley or unpack the groceries from her car and said she is only able to drive an automatic vehicle.

29. The evidence before the Tribunal is that this condition resulted from hysterectomy surgery performed in October 2012. The applicant was assessed by Dr Evans on 18 July 2013 and was prescribed Lyrica. The most recent medical certificate with respect to this condition is from Dr Lichti dated 19 December 2016. In that certificate Dr Lichti listed to the date of onset as 1 October 2012, described symptoms as ‘pain over the left groin to left thigh’ and gave a prognosis that the condition was ‘likely to show considerable improvement within two years’. Whilst the applicant strongly disagreed with Dr Lichti’s report, no other medical evidence was provided in relation to this condition.

30. Although the condition was diagnosed by a neurologist, Dr Evans, there is no contemporary medical evidence upon which the Tribunal can make a finding that the condition is fully treated and fully stabilised such as to attract an impairment rating.

    Rheumatoid Arthritis

31. This condition is confirmed as having been diagnosed by Dr Lichti and Dr Bulle. The medical evidence before the Tribunal refers to a consultation with a rheumatologist in 2010 and Lyrica medication for neurologic pain. Dr Bulle’s report of 8 December 2016 refers to a ‘fair’ prognosis for this condition. As there is no recent medical evidence regarding treatment the Tribunal has no evidence upon which it can make a finding that the condition was fully treated and stabilised during the qualification period.

    CONCLUSION

32. The Tribunal acknowledges that the applicant suffers from a number of medical conditions that impact upon her ability to function and affect her quality of life. In particular, her multiple sclerosis is accepted as a progressive illness for which there is no cure.

33. The applicant appealed a decision that found that, at the time of her claim and within 13 weeks thereafter, she did not meet the qualification requirements for DSP. The Tribunal must make its decision on the basis of the evidence before it, which includes the applicant’s oral evidence. The relevant legislation requires that such evidence must be corroborated by a medical practitioner. The Tribunal has set out the medical evidence that was available during the qualification period with respect to each condition. For the reasons outlined above, the Tribunal is unable to be satisfied that any of the named conditions suffered by the applicant can be considered permanent in that they were not fully treated and stabilised during the qualification period.

34. Whilst two medical practitioners opined that the applicant is not able to work, they had not considered the meaning of ‘work’ in the context of the number of hours prescribed in the legislation. The only evidence regarding the applicant’s ability to work as the term is defined in the legislation is in the JCA report dated 6 June 2017. In that report, the applicant’s temporary work capacity was assessed as between 0-7 hours per week however, the assessor noted that the applicant’s capacity for work within two years with intervention was between 15-22 hours per week. The Tribunal notes that this assessment cannot be taken into account however as the applicant has not been assessed as having any permanent fully diagnosed, treated and stabilised medical conditions.

1. Where there is no condition that has been assessed as a ‘severe impairment’ by attracting 20 points under the relevant Table, a further requirement for DSP eligibility is that an applicant must have undertaken a program of support. The evidence presented to the Tribunal was that whilst the applicant has participated in a number of programs, she did not satisfy the requirements for ‘active participation’ for a period of 18 months at the time of her claim.

2. For all of these reasons, the Tribunal affirms the decision under review that the applicant did not meet the qualification requirements for DSP during the qualification period.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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

Associate

Dated: 18 July 2018

Date(s) of hearing:	4 July 2018
Applicant:	By videolink
Counsel for the Respondent:	Mr B Sparkes, FOI and Litigation Branch, Department of Human Services