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

[2016] AATA 1078

Kali and Secretary, Department of Social Services (Social services second review) [2016] AATA 1078 (23 December 2016)

Division	GENERAL DIVISION
File Number	2016/2765
Re	Solmaz Kali
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member P E Nolan
Date	23 December 2016
Place	Brisbane

The Tribunal affirms the decision under review.

........................[Sgd]................................................

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – DSP – where application rejected - whether impairment rating of 20 points – whether fully diagnosed, fully treated and fully stabilised – whether continuing inability to work – relevant period – decision under review affirmed

LEGISLATION

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

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Senior Member P E Nolan

23 December 2016

INTRODUCTION

1. On 14 May 2015, Mrs Solmaz Kali (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) with the Department of Human Services (“the Department”). On 22 July 2015, this claim for DSP was rejected by the Department.

2. The Applicant sought review of the rejection decision and provided further medical evidence; however, the rejection decision was affirmed by the Department’s authorised review officer on 9 November 2015.[1] This decision was subsequently affirmed by the Administrative Appeals Tribunal Social Security and Child Support Division (“SSCSD”) on 4 May 2016.[2]

   [1] Exhibit 1, T Documents, T19, Decision of Authorised Review Officer (ARO) dated 9 November 2015, pages 172-177.

   [2] Exhibit 1, T Documents, T3, Decision and Reasons for Decision of the Administrative Appeals Tribunal Social Services and Child Support Division dated 4 May 2016, page 5.

3. The Applicant applied for review of the SSCSD decision dated 4 May 2016 with this Tribunal on 24 May 2016.[3]

   [3] Exhibit 1, T Documents, T2, Application for Second Review of Decision dated 24 May 2016, pages 3-4.

4. At this hearing, the Applicant was represented by her daughter, by telephone. She appeared to me to have a good working knowledge of the material contained in the T documents and was able to adequately put the points that assisted her mother. [4]

   [4] Exhibit 1, T Documents, T10, Claim for DSP, pages 92-119.

5. In the claim lodged on 14 May 2015, the Applicant maintained she was suffering from high blood pressure, menopause, anxiety and depression, sciatica and spasms in the legs.[5]

   [5] Exhibit 1, T Documents, T10, Claim for DSP, page 104.

6. In support of her claim on 14 May 2015, the Applicant provided a treating doctor’s report from Dr Meena.[6] He noted that the Applicant suffered from depression, anxiety, PTSD, lower back osteoarthritis (sciatica) and multi-nodular goitre. Dr Meena also found there were some signs of hypertension and diabetes but considered these conditions were well managed and had minimal or limited impact on the Applicant’s ability to function.

   [6] Exhibit 1, T Documents, T11, DSP Medical Report of Dr C Meena, pages 120-130.

7. The Applicant was referred for a Job Capacity Assessment (“JCA”). In a report submitted on 21 July 2015, the Assessor noted that the psychiatric and psychological conditions were not fully diagnosed, treated or stabilised and none of the other conditions were fully treated and stabilised.

8. As far as Work Capacity went, the Assessor considered the Applicant’s Baseline Work Capacity was 8-14 hours per week and the Applicant would be able to work at least 15 hours per week with intervention. After a decision was made by the Department on 22 July 2015 to reject the claim the Applicant then provided a further medical report from a psychiatrist, Dr Bersin, dated 3 September 2015.[7] In his report the psychiatrist confirmed that the Applicant had been his patient since August 2015 and suffered a major depressive disorder. He thought the condition would persist for 13 to 24 months but was uncertain about the effect for the next two years. He noted that it was still in its early days of treatment.

   [7] Exhibit 1, T Documents, T14, DSP Medical Report of Dr M Bersin, pages 140-153.

9. The next relevant factor is that the Applicant was referred to Dr Moshtagh for her goitre condition. Dr Moshtagh however noted the Applicant had a moderate to severe sleep apnoea syndrome and it needed to be tested further. As a result the Applicant was tested in a sleep study and a report was provided on 3 September 2015. Dr Mupunga indicated that the Applicant was to attend an appointment for a CPAP titration study.[8]

   [8] Exhibit 1, T Documents, T16, Report of Dr B Mupunga dated 3 September 2015, pages 155-157.

10. On 18 February 2016 the Applicant applied for a further review to the SSCSD. In support of that application, a further report from Dr Bersin was provided. On any view of the report his overall impression is that the major depressive disorder caused a minor functional impact.

11. CT Scan Reports of the Applicant’s back and pelvis was also provided and dated 15 March 2016 and 29 March 2016 respectively. This included a letter from Dr Allez dated 18 April 2016.[9] In essence these reports showed a detailed course of treatment that has gone on for some time with respect to the Applicant. There is no doubt the Applicant has injuries and/or medical conditions but the critical question is whether they are such that whether they can attract the number of points required for an impairment of twenty points or more under the Impairment Tables.

    [9] Exhibit 1, T Documents, T23, Medical Certificate of Dr S Allez dated 18 April 2016, page 191.

    THE LEGISLATIVE FRAMEWORK

12. Section 94 of the Social Security Act1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are:

    (a)the applicant has a physical, intellectual or psychiatric impairment;

    (b)the applicant’s impairment is of 20 points or more under the Impairment Tables; and

    (c)the applicant has a continuing inability to work.

13. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim. There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[10]

    [10] See Social Security (Administration) Act 1999 (Cth) ss 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.

14. Previous decisions of both the Tribunal and the Federal Court have emphasised that the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Evidence, such as medical reports that come into being after the relevant period, may still be relevant, but only insofar as they are referrable to an applicant’s condition during the relevant period.[11]

    [11] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139, [32] (Deputy President Handley); Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[28] (Besanko J).

15. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), a legislative instrument made under the Act.[12] The Impairment Tables are function-based, rather than diagnostic-based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[13] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[14]

    [12] See Social Security Act 1991 (Cth) s 26(1).

    [13] See Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2).

    [14] Ibid, s 6(1).

16. Under the Rules for ‘Applying the Impairment Tables’, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[15] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and be more likely than not, in light of available evidence, to persist for more than two years.[16]

    [15] Ibid, s 6(3).

    [16] ibid, s 6(4).

17. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered: 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.[17]

    [17] Ibid, s 6(5).

18. A condition is “fully stabilised” if:

    (d)Either 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 2 years; or

    (e)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 2 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.[18]

    [18] Ibid, s 6(6).

19. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[19]

    [19] ibid, s 6(7).

20. An impairment rating can only be assigned in accordance with the rating points in each table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[20]

    [20] Ibid, s 11(1).

21. The requirement that the Applicant have a continuing inability to work, means that all of the factors outlined in s 94(2) of the Act need to be satisfied. Essentially, they are that the Applicant must:

    (a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B)); and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.

22. A person’s impairment is a “severe impairment” if their impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are assigned under a single table.[21]

    [21] Ibid s 94(3B).

    ISSUES FOR THE TRIBUNAL

23. The first issue is to determine the relevant period that applies to the Applicant. Qualification for DSP is to be determined as at the date of claim, although a person who “becomes qualified” within 13 weeks of lodging the claim may still be eligible.[22] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 14 May 2015 and 13 August 2015 (“the Relevant Period”). The Applicant needs to have qualified for DSP within that Relevant Period.

    [22] See ss 41 and 42, and cl 3 and s 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

24. In this case there is a suggestion by the Applicant’s representative that further material was available showing that her condition had changed. I explained to her that the effect of the law was that the Applicant would need to make a further application for what would be a different relevant period. This is summarised in the case Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] to the effect that:

    “If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances“.

25. It must also be determined whether the Applicant has a physical, intellectual or psychiatric impairment and if so, whether the impairment is of 20 points or more under the Impairment Tables. If that is so, then it must be determined whether the Applicant has a “continuing inability to work” as defined in the Act.

    CONSIDERATION

26. The material before the Tribunal shows that the Applicant has a long standing history of back pain, hypertension and multi-nodular goitre. There is also a suggestion that she may have a rotator cuff injury, however that does not appear to continue to be an issue. As such, I am satisfied that the Applicant has a physical, intellectual or psychiatric impairment as required by s 94(1)(a) of the Act. The critical question is whether the impairment satisfies the conditions of s 94(1)(b) of the Act.

27. The basis of the injuries is worth noting although it is of limited value for the purposes of what has to be decided here. In essence, the Applicant and her husband were living and operating a business in New Zealand at Christchurch when the area was struck by a severe and well documented earthquake in 2011. Her property was destroyed and her businesses effectively disappeared with the earthquake. She and her husband returned to Australia to live with her family and commenced getting treatment for the disorders and conditions that I have outlined above.

28. With respect to those injuries the following is clear from the medical reports:-

    (a)Major depressive disorder. It is clear from the psychiatrist’s report that the treatment is still ‘in its early days’ and as such for the relevant period this condition cannot be considered fully treated and stabilised and would attract no points.

    (b)Osteoarthritis and lower back pain. Again the medical reports are inconclusive in terms of whether the condition is fully diagnosed , treated and stabilised within the relevant period. As such no points can be attributed to this.

    (c)Sleep Apnoea. Again it appears that this condition has not been fully diagnosedfully treated and stabilised during the relevant period. In the circumstances no impairment rating can be assigned.

    (d)Multi-nodular Goitre. Again with this condition there is insufficient evidence to confirm that it has been fully treated and stabilised.

    OVERALL IMPAIRMENT RATING AND CONTINUING INABILITY TO WORK

29. It is clear on the material that none of the Applicant’s impairments arising from the conditions attract an impairment rating as the Applicant’s conditions cannot be considered fully diagnosed, treated and stabilised during the relevant period.

30. Even if the above findings are wrong, I find it cannot be shown on any of the material that the Applicant does have a continuing inability to work. Again the Applicant, on an assessment which I have referred to above, was found to have a work capacity of at least 15 hours per week with intervention. There is no evidence to show that the Applicant was prevented as a result of her disabilities from undertaking any work.

31. As such it is clear that the Applicant does not meet the requirements of s 94(2) of the Act during the relevant period. This is not to say that she may subsequently be able to show such inability for another period; however, for the period relevant to this hearing there is no continuing inability to work.

    CONCLUSION

32. The decision under review is affirmed.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

............................[Sgd]............................................

Associate

Dated 23 December 2016

Date of hearing	31 October 2016
Advocate for the Applicant	Ms P Bakir (by telephone)
Solicitors for the Respondent	Department of Human Services