JYHX and Secretary, Department of Social Services (Social services second review) - [2018] AATA 3093

JYHX and Secretary, Department of Social Services (Social services second review) [2018] AATA 3093 (27 August 2018)
Division:GENERAL DIVISION
File Number: 2017/2104
Re:JYHX
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:27 August 2018
Place:Brisbane

The Tribunal affirms the decision under review.

........................[Sgd]................................................
Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether medical conditions permanent – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

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

Guide to Social Security Law (2018)

REASONS FOR DECISION

Member D K Grigg
27 August 2018

INTRODUCTION AND CLAIMS HISTORY

JYHX lodged a claim for Disability Support Pension (“DSP”) on 6 May 2016 describing his medical conditions as follows:[1]
[1] Exhibit 1, T Documents, T34, pages 115 – 144, JYHX’s Claim for DSP dated 6 May 2016.
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·depression and anxiety
·chronic headaches and migraines
·slower mental processing
·hearing impairment
·vision impairment
·memory lapses - short-term and long-term
·confusion
·fatigue
·neck pain
·balance problems (cranial pressure and pressure at eyes)
After a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected JYHX’s claim for DSP on the basis that his impairments did not attract an impairment rating of 20 points.[2]
[2] Exhibit 1, T Documents, T39, page 157, Letter from Centrelink to JYHX dated 27 July 2016.
JYHX sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that JYHX’s medical conditions were either not permanent or did not attract an impairment rating of 20 points.[3]
[3] Exhibit 1, T Documents, T43, pages 169 – 175, Decision of ARO dated 15 November 2016.
JYHX then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected JYHX’s claim and affirmed the ARO’s decision on 15 March 2017.[4]
[4] Exhibit 1, T Documents, T3, pages 5 – 11, SSCSD’s Decision and Reasons for Decision dated 15 March 2017.
JYHX has sought a review of the SSCSD’s decision by this Tribunal.[5]
[5] Exhibit 1, T Documents, T2, pages 3 – 4, JYHX’s Application for Review dated 7 April 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)JYHX must have a physical, intellectual or psychiatric impairment;
(b)JYHX’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[6]
(c)JYHX must have a continuing inability to work.
[6] A legislative instrument made under the Act: see s 26(1).
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JYHX and Secretary, Department of Social Services (Social services second review) [2018] AATA 3093
Case: [2018] AATA 3093
Decision Date: 27 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the appeal of JYHX against a decision by the Secretary of the Department of Social Services concerning JYHX's eligibility for a disability support pension. The core dispute revolved around whether JYHX's medical conditions were permanent and resulted in a functional impairment rating of 20 points or more under the relevant impairment tables.

The Tribunal was required to determine if JYHX's diagnosed medical conditions were permanent, meaning they had been fully diagnosed, treated, and stabilised, and were likely to persist for more than two years. Furthermore, the Tribunal had to assess whether these permanent conditions resulted in functional impairments that attracted a rating of 20 points or more according to the Impairment Tables, which are designed to measure the functional impact of impairments rather than the conditions themselves.

The Tribunal applied the principles outlined in the Social Security (Impairment Assessment) Determination, which stipulates that an impairment rating can only be assigned if a condition is permanent and the resulting impairment is likely to persist for more than two years. The determination of permanence requires full diagnosis, full treatment, full stabilisation, and the likelihood of persistence. The Tribunal found that while JYHX suffered from several impairments, including vision, hearing, headache, sleep apnoea, mental health, and cervical spine impairments, the evidence did not support a 20-point rating. Conditions such as ischaemic heart disease, hypertension, and diverticulitis were either having minimal impact or lacked sufficient evidence for assessment. The Tribunal concluded that the evidence did not demonstrate that JYHX's impairments attracted the required 20-point threshold.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[91][91] Determination, see s 11(5).Evidence Identifying the Loss of Function at the Qualification Date & Impairment Rating Table 7 of the Determination which concerns brain function is the relevant Table. The introduction to Table 7 provides:· Table 7 is to be used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function.· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.· Self-report of symptoms alone is insufficient.· There must be corroborating evidence of the person’s impairment.· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:o a report from the person’s treating doctor;o a report from a specialist health practitioner (e.g. neurologist, rehabilitation physician, psychiatrist or neuropsychologist) supporting the diagnosis of conditions associated with neurological or cognitive impairment (e.g. acquired brain injury, stroke (cerebrovascular accident (CVA)), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders, chronic pain);o results of diagnostic tests (e.g. Magnetic Resonance Imagery (MRI), Computerised (Axial) Tomography (CT) scans, Electroencephalograph (EEG));o results of cognitive function assessments.· The signs and symptoms of neurological or cognitive impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.· For neurological or cognitive conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.· A person with Autism Spectrum Disorder who does not have a low IQ should be assessed under this Table.· Table 7 should not be used when a person has an impairment of intellectual function already assessed under Table 9, unless the person has an additional condition affecting neurological or cognitive function To obtain a 5-point rating under Table 7:(1)The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:(a)memory;Example: The person occasionally forgets to complete a regular task or sometimes misplaces important items.(b)attention and concentration;Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.(c)problem solving;Example1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.Example 2: The person shows a lack of awareness of problems in some situations.(d)planning;Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).(e)decision making;Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.(f)comprehension.Example: The person has some difficulty in understanding complex instructions involving multiple steps.

Decision

Reasons for decision

In January 2014, Dr Rowe reported that JYHX had:[68](a)ischaemic heart disease;(b)hypertension; and(c)diverticulitis.[68] Exhibit 1, T Documents, T21, page 81, Medical Report of Dr Rowe dated 17 January 2014.Conclusion on Impairment The Secretary accepts that JYHX suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[69][69] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 31 August 2017, para 5.1. Considering the medical evidence, the Tribunal finds that, at the Qualification Date, JYHX suffered from a Vision Impairment, Hearing Impairment, Headache Impairment, Sleep Apnoea Impairment, Mental Health Impairment, and a Cervical Spine Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met. In relation to the rib fracture, ischaemic heart disease, hypertension and diverticulitis conditions, the evidence indicates that these conditions are having either a minimal or limited impact on JYHX’s ability to function. There is also a paucity of evidence before the Tribunal such that they are unable to be assessed. Therefore, those conditions cannot be considered for the purpose of this DSP application.DO JYHX’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?How are Impairment Ratings Assessed? The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[70] They are function based[71] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[72][70] Determination, ss 4(2) and 5(2)(a).[71] Determination, ss 5(2)(b) and (c).[72] Determination, s 5(2)(d). An Impairment Rating can only be assigned to an impairment if:[73](a)JYHX’s condition causing that impairment is “permanent”; and(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.[73] Determination, see s 6(3). JYHX’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[74](a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;(b)the condition has been fully treated;(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.[74] Determination, see s 6(4). In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated,[75] the following must be considered:[76](a)whether there is corroborating evidence of the condition; and(b)what treatment or rehabilitation has occurred in relation to the condition; and(c)whether treatment is continuing or is planned in the next 2 years.[75] For the purposes of ss 6(4)(a) and (b) of the Determination.[76] Determination, see s 6(5).

Ratio Decidendi

Legal Principle Established

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