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

[2016] AATA 770

Kartman and Secretary, Department of Social Services (Social services second review) [2016] AATA 770 (30 September 2016)

Division	GENERAL DIVISION
File Number	2016/2010
Re	Cathryn Kartman
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	D. J. Morris, Member
Date	30 September 2016
Place	Perth

The original decision was correct and is affirmed.

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D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – congenital condition – what is functional impact – program of support requirements not met – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1991 – s 94

Social Security (Administration) Act 1999 – Schedule 2 Clause 4(1)

SECONDARY MATERIALS

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

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

REASONS FOR DECISION

D. J. Morris, Member

30 September 2016

BACKGROUND

1. Mrs Cathryn Kartman has cerebral palsy. She applied for a Disability Support Pension (DSP) on 26 August 2015. 

2. On 23 September 2015, the Applicant attended a Job Capacity Assessment (JCA). The Assessor recommended that Mrs Kartman’s cerebral palsy condition be considered to be permanent. The JCA further recommended an assignment of a total of 20 impairment points over three Impairment Tables. 

3. On 16 October 2015, the Department decided to reject the Applicant’s application for DSP on the basis that she had not undertaken a program of support.

4. Mrs Kartman requested a review by an independent Authorised Review Officer (ARO).  The ARO considered her application and affirmed the original decision on 12 December 2015.

5. The Applicant then applied for a review of the decision by the Social Services and Child Support Division of this Tribunal (AAT1). AAT1 reviewed the decision but decided that the correct total assignment of impairment points for the Applicant’s cerebral palsy condition was 30 points, across three Tables.

6. AAT1 decided that, as Mrs Kartman had not undertaken a program of support, she did not satisfy the mandatory requirements for DSP.

7. On 18 April 2016, the Applicant requested a review in the General Division of this Tribunal. That is this hearing.

8. The hearing was held on 5 September 2016. The Applicant represented herself and was assisted by a disability advocate, Ms Lisa Hook.  The Applicant gave evidence and was cross-examined by counsel for the Respondent, Mr Ashley Burgess.

9. The Applicant’s mother, Mrs Janice Weinman, also gave evidence in support of Mrs Kartman’s case. 

10. The Respondent tendered documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents).

11. The Applicant tendered additional documents:

    ·Medical report dated 21 March 2016 from Dr Ali Khoussousi, general practitioner, of Waroona Surgery, Pinjarra (Exhibit A1);

    ·Letter dated 17 June 2016 from Megan Grant, Kimberley Keeley and Kate Prentice of Ability Centre, Coolbinia (Exhibit A2);

    ·Written submission from the Applicant received by the Tribunal on 17 June 2016 (Exhibit A3); and

    ·Email submission from the Applicant dated 16 August 2016 (Exhibit A4).

    What are the qualifications for DSP?

12. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

13. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has –

    (a)     a physical, psychological or mental impairment; and

    (b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)         a continuing inability to work.

14. The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

15. The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.

16. Section 94 is a conjunctive section of the Act. This means that for a person to be qualified for DSP, the person must have: First, impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.

17. Importantly in this particular hearing, if a person is assigned 20 or more points under one Impairment Table, that assignment means the impairment is assessed to be a ‘severe’ impairment. If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act apply to their claim. Sections 94(2) and 94(3C) of the Act, and the Social Security (Active Participation for Disability Support Pension) Determination 2014 set out the requirements for a person to participate in an approved program of support.

    What is the relevant period for considering this claim?

18. The Social Security (Administration) Act 1999 provides, at clause 4(1) of Schedule 2, as follows:

    (1)         If:

    (a)  a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)  the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)  assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)       the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

19. Applying this provision, if Mrs Kartman is found not to have been qualified for DSP on the date she lodged a claim, 26 August 2015, but she became eligible on a date within the thirteen week period thereafter, ending on 25 November 2015, then her claim is deemed to have been made on the date she became so qualified.

20. In these Reasons, I will call this timeframe ‘the relevant period’. The Applicant must be qualified in this relevant period for her claim to be successful. Changes in medical conditions that occur later are not relevant to this claim, but they may be relevant to a future claim.

    APPLYING THE LAW

    Does the Applicant have a physical, intellectual or psychiatric impairment?

21. This is not in dispute. The onset of the Applicant’s cerebral palsy was from birth.  There was ample consistent medical evidence before the Tribunal to make that fact indisputable.  Dr Phillipa Lamont, consultant neurologist, in a medical letter for the Applicant dated 27 August 2004 reported that an MRI:

    Shows shrinkage of the cerebellum, and of the cerebellar peduncle, which is the bridge that links the cerebellum with the rest of the brain.  The cerebellum is at the posterior of the brain, and is that part which is mainly responsible for balance.  The “thinking” part of the brain, called the cerebrum, looks normal.  That is to be expected, as most of your problems stemming from your cerebral palsy is [sic] with your balance.  There is nothing to suggest this is a progressive disorder, and it looks like it has been static for most of your life.

22. In his medical report connected with the Applicant’s claim for DSP, Dr Nazmi Mikhaiel, general practitioner, diagnosed cerebral palsy as the sole condition that the Applicant had.

23. The Applicant, in her claim, referred also to a depressive condition and severe back pain.

24. It is axiomatic that the Applicant did have impairment in the relevant period, namely cerebral palsy, and I so find.

25. She therefore satisfied the requirements of section 94(1)(a) of the Act.

    What is the correct rating of her impairment or impairments under the Impairment Tables?

26. When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.

27. In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

28. In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner, and the condition must be fully treated and fully stabilised.

29. Where a single condition caused multiple impairments, as is the case with Mrs Kartman, Rule 10 provides that each impairment should be assessed under the relevant Table.

30. The relevant Tables in regard to the Applicant’s impairments from her cerebral palsy are Table 2 – Upper Limb Function; Table 3 – Lower Limb Function; Table 8 – Communication Function.

31. The Respondent contended at this hearing that the Applicant warranted 5 impairment points for ‘mild’ impairment under Table 2; 10 points for ‘moderate’ impairment under Table 3; and 10 points for ‘moderate’ impairment under Table 8.

    Table 2 – Upper Limb Function

32. Mrs Kartman gave evidence that the cerebral palsy affects her left hand side more than her right. She said she can pick up a glass and wash dishes but could not pick up a weight of more than 2 kilograms, as a maximum. The Applicant said she can lift a light shopping bag and place it in a trolley. She said she can walk around a shopping centre for 30 minutes but uses either a trolley or her husband, if present, to stabilise her.  She said she cannot bend over but can lift items from a waist-high bench.

33. Mrs Kartman said she lives alone at present, while her husband is away. She can dress herself slowly, but has trouble manipulating zips and buttons. She wears slip on shoes as she has too much motor trouble with laces.

34. She advised the Tribunal that she can use a computer with one finger, and uses a standard keyboard, but very slowly.  She cooks a little and does laundry, but uses clothes horses because she is unable to reach over her head without feeling dizzy.  She gave evidence that she does her household cleaning chores sitting down, as much as she can.

35. On this evidence and applying the Descriptors in Table 2 correctly, the Applicant warrants the assignment of 10 impairment points in terms of her upper limb function. She does fulfil some of the Descriptors on page 16 of the Determination for a ‘severe’ impairment rating but not, as is required by the Determination, most of them.

36. She has difficulty using a pen or pencil, doing up buttons, using a standard computer keyboard or picking up a light object. She can do these things but some of these tasks are quite challenging.  The conclusion is that the Applicant satisfies all of the requirements in the ‘moderate’ impairment part of that Table, and that she is correctly assigned 10 impairment points rating under Table 2.

    Table 3 – Lower Limb Function

37. The Applicant gave evidence that she falls frequently. This is also corroborated by various medical reports before the Tribunal.  She gave evidence that it was not until she was aged 6 that she was able to walk at all, and it is a testament to her tenacity that she has some limited mobility.  The Applicant uses a ‘gopher’ scooter to help her get around.  She will park it near the shops and then use a supermarket trolley as a support.  She does not use a cane because she said the nature of her condition means that would unbalance her.  I thought this was a perfectly logical explanation and consider that that part of the Descriptor is inapposite to a brain/movement-coordination condition such as cerebral palsy.

38. The Applicant has a walking frame on order from Ability Centre and has had rails installed in her residence to help her.  On ‘good days’ she said she can use public transport but will use a disabled taxi if she needs to go to a larger centre. Mrs Kartman said she no longer vacuums because she has fallen over too many times.

39. Mrs Weinman gave evidence to the Tribunal. She said she visits her daughter once a fortnight and does washing and household chores. She pays utility and other bills.

40. Applying the Descriptors in Table 3, the Applicant clearly merits the assignment of 10 points. She can use public transport but cannot walk far outside her home.  Some of her lower limb difficulties are relevant to the ‘severe’ functional impact but, in this Table, each of the requirements in the ‘severe impact’ part of Table 3 must be met, not just some.

    Table 8 – Communication Function

41. Mrs Kartman gave evidence of having trouble writing. She said she finds it difficult to say what she means and finds people often do not understand her; this she finds very frustrating. Mrs Weinman told the Tribunal that her daughter can become exasperated when she can’t frame her words, and this is consistent with the observations in the medical reports.

42. I noted that, while the Applicant was sometimes slightly indistinct, when she paced herself she was able to give articulate evidence at the hearing, and explained the effect of her medical condition on her daily life competently. She did not show evidence of having a limited vocabulary but was understandably frustrated when her words would not come as fast as she wished.

43. Applying Descriptor (1)(b) in Table 8 relevant to moderate functional impact, I find this part of the Determination is satisfied. Accordingly, the correct assignment of impairment points for Mrs Kartman’s communications function is 10 points.

    Other medical conditions

44. The Applicant referred in her DSP claim to a depressive condition.  The Tribunal did not have a corroborated diagnosis before it of such a condition. Under Table 5 – Mental Health Function, any mental health condition must have a corroborative diagnosis from either a psychiatrist or a clinical psychologist. Dr Khoussousi (Exhibit A1) refers to the Applicant suffering from depression and there was evidence that the Applicant had recently commenced on an antidepressant medication, Pristiq, but there was no evidence of treatment by a psychologist.

45. In terms of the Applicant’s back pain, the Tribunal had evidence from Mr Brett Dellar, a chiropractor.  In his letter of 9 November 2015, Mr Dellar referred to the Applicant presenting with sciatic pain which she had been suffering from “for 3 months” before the date of her first appointment in December 2014. Mr Dellar also reported that Mrs Kartman told him she had previously suffered from sciatic pain some five years earlier. Mr Dellar reported that the Applicant responded “very well” to treatment for her lumbar pain but he acknowledged that, as a consequence of her cerebral palsy, she had frequent falls and irregular gait, which tended to make symptoms return or “take longer to rectify, as was the case in this instance.”

46. The Tribunal had before it a letter from Dr Bill Douglas, clinical psychologist, dated 14 April 2009 in relation to the Applicant’s mental health.  Dr Douglas referred to:

    quite a complex situation with some history of mood swings, depression and social isolation arising in part from her cerebral palsy.

47. This is not a definitive diagnosis and, in any event, Dr Douglas’s letter is more than seven years old. I cannot therefore find that Mrs Kartman’s depressive condition can correctly be assigned points under the impairment tables because there has been no diagnosis relatively contemporary with this claim. I also cannot use the Determination to assign points for her back pain condition because it does not fulfil the requirements in Rule 6(4) of being fully diagnosed, fully treated and fully stabilised.

    What is the correct total assignment of impairment points?

48. My conclusion, therefore, is that the Applicant is correctly assigned 30 impairment points, 10 points under each of Tables 2, 3 and 8, and the Tribunal so finds.

    PROGRAM OF SUPPORT REQUIREMENT

49. A person has actively participated in a Program of Support if they meet the requirements set out in the Program of Support Determination made by the Minister on 15 December 2014. There are a number of provisions in that Determination but for the purposes of this hearing, it relevantly requires that a person will be required to participate in an approved program of support for 18 months in the 36 months preceding the date of their claim for DSP.

50. The Applicant conceded that she had not satisfied this requirement. Mrs Kartman gave evidence that she did not know she had to do a Program of Support before she lodged a claim. She said that Centrelink had “dismissed” her from doing work but Centrelink could not tell her who had “suspended” her.

51. It is not necessary for me to delve into whether or not this occurred, because, factually, no program of support has been done. There is no provision for this requirement to be dispensed with when a claimant does not satisfy the ‘severe’ impairment provisions in the Act. There are clearly limitations on what work the Applicant would be able to do, because of her balance difficulties and coordination problems, and perhaps also because of communications challenges. However with intervention and the appropriate aids, some or most of these difficulties may well be able to be ameliorated. If not, the Program of Support Determination provides, at subsection 7(4):

    This subsection is satisfied in relation to a person and a program of support if:

    (a)     the program of support was terminated before the end of the relevant period; and

    (b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.

    CONCLUSION

52. For a person to be eligible for DSP, each sub-part of section 94 of the Act must be satisfied. As found above, section 94(1)(a) is satisfied – the Applicant has a permanent impairment.

53. The Tribunal has found that the Applicant is correctly assigned 30 Impairment points across three Impairment Tables, and so she satisfies section 94(1)(b).

54. However, the Applicant has not undertaken a program of support, which is essential under section 94(2)(aa) of the Act, and so I am unable to find whether or not she has a continuing inability to work.

55. The regrettable outcome for Mrs Kartman is that this claim for DSP cannot succeed in the relevant period, because she had not satisfied section 94(1)(c) of the Act.

56. I am sympathetic to the Applicant’s situation. She clearly has a challenging medical condition and she put forward her case capably at the hearing, but I am bound by the provisions of the Act and, in the absence of completion of a program of support, I must find that the Department’s decision that she was not qualified for DSP in the relevant period was the correct decision.

    DECISION

57. The original decision was correct and is affirmed.

I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member

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Administrative Assistant

Dated 30 September 2016

Date of hearing	5 September 2016
Applicant	In person
Representative for the Respondent	Mr A Burgess
Solicitors for the Respondent	Sparke Helmore Lawyers