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

[2015] AATA 810

Kelly and Secretary, Department of Social Services (Social services second review) [2015] AATA 810 (20 October 2015)

Division	GENERAL DIVISION
File Number	2015/1367
Re	Daniel Kelly
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	20 October 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension - DSP – unlimited portability – whether 20 points or more under impairment table during the relevant period – whether conditions are fully diagnosed, treated and stabilised – value of medical evidence – decision under review affirmed

LEGISLATION

Social Security Act (Cth), ss 26, 27, 94, 1218AAA

Social Security (Administration) Act 1999 (Cth)

CASES

Scrivener and Secretary, Department of Social Services [2014] AATA 537

Morton and Secretary, Department of Social Services [2014] AATA 949

WMKR and Secretary, Department of Social Services [2015] AATA 483

Shi v Migration Agents Registration Authority [2008] 235 CLR 286

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A C Cotter

20 October 2015

INTRODUCTION

1. Daniel Kelly commenced receiving Disability Support Pension (“DSP”) in November 2001. In February 2013, he contacted Centrelink to inquire about entitlement to unlimited portability of DSP.[1]

   [1] Exhibit 1, T Documents, T 19, page 158.

2. On 1 April 2013, Mr Kelly requested that Centrelink grant him continued payment of DSP for an unlimited portability period while he was outside Australia.[2]

   [2] Exhibit 1, T Documents, T 11, pages 89-102.

3. In May of that year, he underwent a Job Capacity Assessment (”JCA”). The assessor’s report recommended that Mr Kelly be assigned a total impairment rating of 20 points, derived from three separate Tables.[3]

   [3] Exhibit 1, T Documents, T 12, pages 103-109.

4. Centrelink subsequently declined Mr Kelly’s request for unlimited portability on the grounds that his impairments were not “severe” (as that term is understood under the relevant legislation) and that he had a future working capacity, in light employment, of eight to 14 hours a week.[4] Reviews by both an Authorised Review Officer[5] and the then Social Security Appeals Tribunal (“SSAT”)[6] confirmed that decision. Dissatisfied with the outcome, Mr Kelly has applied to this Tribunal for a review of the SSAT decision.

   [4] Exhibit 1, T Documents, T 13, pages 110-111.

   [5] Exhibit 1, T Documents, T 17, pages 132-136.

   [6] Exhibit 1, T Documents, T 2, pages 5-10.

5. In the meantime, Mr Kelly had travelled to Thailand where he was able to obtain regular and affordable acupuncture treatment. He was granted a temporary portability extension until 28 January 2015,[7] but did not return to Australia after that date.[8] As a consequence, his DSP was initially suspended, and then cancelled.

   [7] Exhibit 1, T Documents, T22, page 163

   [8] Exhibit 4, Travel outside Australia Summary.

   THE LEGISLATIVE FRAMEWORK

6. The starting point for considering the relevant legislative provisions is s 1217 of the Social Security Act 1991 (Cth) (“Act”). Its effect is that, generally, a DSP recipient may travel outside Australia for any purpose for a total of 28 days within a 12 month period. However, it goes on to provide for a number of instances where the recipient may travel outside Australia for extended periods. Relevantly, item 2A of the table appearing in the section provides that DSP is portable for an unlimited period if the DSP recipient is a “severely impaired disability support pensioner”. That expression is defined in s 1212 as being “a person in respect of whom the Secretary has made a determination under subsection 1218AAA(1)”.

7. Section 1218AAA(1) of the Act in turn provides that the Secretary may make a written determination that a person’s maximum portability period for DSP is an unlimited period if all of the following circumstances exist:

   (a)the person is receiving DSP;

   (b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of s 94(3B)) of the Act;

   (c)the Secretary is satisfied that the person will have that severe impairment for at least the next five years; and

   (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent them from performing any work independently of a program of support (within the meaning of s 94(4)) within the next five years.

8. The term “severe impairment” is defined in s 94(3B) in the following way:

   A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   ISSUES FOR THE TRIBUNAL

9. The issue I have to determine is whether Mr Kelly qualified for unlimited portability for his DSP.

10. There being no dispute that he was receiving DSP at the time of his request, the remaining specific questions I have to address are:

    Whether any of Mr Kelly’s impairments were a “severe impairment”;

    (b)If so, whether he would have that impairment for at least five years; and

    (c)Whether, if Mr Kelly were in Australia, the severe impairment would have prevented him from performing any work independently of a program of support within the following five years.

11. Before I deal with those questions, there is a threshold issue which I need to address, as to the date at which eligibility for unlimited portability is to be determined. In recent times in particular, there has been a lack of consistency in approach within the Tribunal on that question.

12. In Scrivener and Secretary, Department of Social Services, it was said that the issue of whether all the requirements in s 1218AAA are met is to be determined as at the date the applicant advises Centrelink that he or she is considering travelling overseas.[9] However, in a matter decided a few months later, Morton and Secretary, Department of Social Services, the presiding member disagreed with that approach and concluded that the task of the Tribunal is “to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision”.[10]

    [9] [2014] AATA 537, at [6].

    [10] [2014] AATA 949, at [48].

13. The matter was further considered earlier this year in WMKR and Secretary, Department of Social Services[11] (“WMKR”). In that matter, the presiding member considered that the question of eligibility must be determined at the date of claim, applying the legislation then in force, and subsequently as circumstances demand:

    There is no barrier to the Tribunal considering a claimant’s eligibility for indefinite portability of DSP from the date of the claim or request that commenced the decision-making process leading to the application for review by the Tribunal up to the present, and to do so on the materials placed before it, whether or not those materials were before the original or intermediate decision makers.

    As with many kinds of income support decisions concerning qualification, entitlement or portability, an assessment should be made at the time of claim, or such date as the legislation requires (or allows) ….[12]

    [11] [2015] AATA 483, at [24] to [35].

    [12] [2015] AATA 483, [31] and [33].

14. Having considered the various decisions, I am inclined to favour the approach in WMKR, which I believe to be consistent with that adopted in determining qualification for a claim for social security, such as DSP. It is also consistent with the decision of the High Court in Shi v Migration Agents Registration Authority.[13]   

    [13] (2008) 235 CLR 286.

15. In those circumstances, I consider that the relevant date to consider Mr Kelly’s request for unlimited portability is 1 April 2013, being the date on which he lodged his request.

16. That threshold issue having been addressed, I turn to the specific issues that need to be considered under s 1218AAA(1).

    CONSIDERATION

    Were any of Mr Kelly’s impairments “severe”?

17. It is not in dispute that Mr Kelly suffers from a number of conditions, namely a spinal condition, a kidney disorder and a thrombosis condition. I consider below the severity of any impairments he suffered as a result of each of those conditions.

    Spinal condition

18. There is no doubt that Mr Kelly suffers from degenerative disc disease with nerve compression. The Secretary conceded that condition was fully diagnosed, treated and stabilised at the time of his request for unlimited portability.[14] 

    [14] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 4 September 2015, paragraph [45].

19. Associate Professor Bruce McPhee, in a report dating back to September 1998, stated that Mr Kelly’s conditions were not amenable to surgery and were best managed by an exercise program.[15]

    [15] Exhibit 1, T Documents, T6 page 48, report of Associate Professor Bruce McPhee dated 23 September 1998.

20. A report prepared by Dr Shahid Malick in support of Mr Kelly’s request for unlimited portability confirmed the diagnosis of disc degenerative disease and nerve compression with a date of onset of 1993.[16] He noted that Mr Kelly had seen back surgeons on three occasions, the most recent having been in 1997-1998.[17] Dr Malick described Mr Kelly’s symptoms as “back pain, limited movements, unable to sit and stand for prolonged periods of time, subluxation experienced on and off”.[18] He expected that the impact on Mr Kelly’s ability to function would persist for more than five years.[19] A confirmatory radiology report of Dr Victor Petroff of Fraser Coast Radiology was also provided.[20]

    [16] Exhibit 1, T Documents, T10, page 82, report of Dr Shahid Malick dated 28 March 2013.

    [17] Exhibit 1, T Documents, T10, page 83, report of Dr Shahid Malick dated 28 March 2013.

    [18] Exhibit 1, T Documents, T10, page 83, report of Dr Shahid Malick dated 28 March 2013.

    [19] Exhibit 1, T Documents, T10, page 84, report of Dr Shahid Malick dated 28 March 2013.

    [20] Exhibit 1, T Documents, T16, page 130, report of Dr Victor Petroff dated 26 March 2013.

21. As mentioned earlier, Mr Kelly attended a JCA interview in May 2013. He told the assessor that he was able to drive for about 30 minutes but then needed to get out of his car due to pain in his lower back and radiating down his legs. He said that some days were worse than others, and that he woke up some days with increased pain from posture compression during sleep. Movement aggravated his pain. While he walked on average about two kilometres three days a week that was a significant reduction from the past.[21] Based on what Mr Kelly told her, the assessor recommended that he be assigned 10 impairment points under Table 4 (Spinal Function).[22]

    [21] Exhibit 1, T Documents, T12, page 104, JCA report dated 3 May 2013.

    [22] Exhibit 1, T Documents, T12, page 105, JCA report dated 3 May 2013

22. Since that time, Mr Kelly’s back condition appears to have deteriorated. In an undated letter to the ARO in about July 2014, Mr Kelly reported that he could put his hands above his head with discomfort and pain, but turning his head left or right was no problem. Bending down or picking up things was “far different”, as he was restricted in his movements and it caused him discomfort and extreme pain. He chose not to drive, as he did not know when the pain was going to hit him. Occasionally, he required help in getting out of a chair. His walking times varied daily depending on the pain level he was experiencing.[23]

    [23] Exhibit 1, T Documents, T 18, page 137, letter Mr Kelly to ARO, undated.

23. Mr Kelly told the SSAT hearing in February 2015 that his back condition had worsened since early 2014. He said that he had spent a total of about three months confined to bed since then and was at times unable to get to the toilet; he had wet and soiled the bed at times and the family he resided with in Thailand had to clean up. Mr Kelly told that tribunal that he got sharp back pain and pins and needles in his feet when he tried to get out of bed. Over the preceding year, he had been unable to get out of bed about once a week. While he would have been able to undertake some work in previous years, he said he could not then work because he could not take any medication for his condition (presumably due to his kidney condition, discussed later).[24]

    [24] Exhibit 1, T Documents, T 2, page 8, SSAT Decision and Reasons for Decision, 3 February 2015, paragraphs [19] to [21].

24. Mr Kelly also produced a report from Dr Ben Thamrong dated 20 June 2015,[25] which I understand was written in response to a “Dear Doctor” letter prepared by a representative of the Department. Dr Thamrong confirmed that Mr Kelly is suffering “extreme pain constantly” which is caused by nerve damage. As to the condition’s impact on Mr Kelly’s ability to function, the doctor observed:

    Movement is restricted. He is confined to bed for days and sometimes weeks. Mr Kelly has at times gone to the toilet in the bed as there was no one to help him get out of bed. Mr Kelly cannot sit or stand for any period of time. He cannot sit up normally at all and at no more then [sic.] 5 mins. at a time.

    Very often Mr Kelly requires help to get out of bed or to stand up.

    …Restriction or [sic.] movement, extreme pain level (constantly) (m)akes it impossible for Mr Kelly to perform normal daily (a)ctivities.

    [25] Exhibit 2, Report of Dr Ben Thamrong dated 20 June 2015.

25. Dr Thamrong went on to say that Mr Kelly’s condition will never improve and that surgery is not an option. He has too much pain to undertake physiotherapy as he cannot have pain killers because of his kidney condition.

26. While there is no doubt that Mr Kelly’s condition has deteriorated greatly since early 2014, I am required, consistent with the decision in WMKR, to consider his eligibility for unlimited portability at the time of his making his request or claim, namely 1 April 2013.  The difficulties he described to the ARO in July 2014 were seemingly not apparent a year or more earlier when he was seen by the JCA assessor. Before the SSAT, he clearly identified early 2014 as the time from which his condition worsened. Further, although the “Dear Doctor” letter invited a response with respect to the two year period from February 2013,[26] there is nothing in Dr Thamrong’s report to indicate that it was referable to Mr Kelly’s condition at the time of his request or claim. Indeed, the report makes it clear that the doctor had been seeing Mr Kelly during the preceding 15 months (placing the time of the initial consultation at around March 2014, about a year after the relevant period and after Mr Kelly noticed the deterioration in his condition).

    [26] A copy of the letter was shown to me during the hearing, but was not formally tendered as an exhibit.

27. According to the JCA report of May 2013, there was nothing to suggest that Mr Kelly could have met the descriptors for severe impairment under Table 4 (Spinal Function) at the relevant time. Even in July 2014, he was able to turn his head without problems, could remain seated for up to 30 minutes and, while uncomfortable, could perform some overhead activities.

28. I do, however, agree with the Secretary’s submission[27] that his impairment would have attracted a moderate (10 points) rating under the Table at the relevant time. I therefore do not believe that Mr Kelly’s impairment from his spinal condition would have been considered “severe” at that time.

    [27] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 4 September 2015, paragraph [58].

    Kidney disorder

29. In his report of 28 March 2013, Dr Malick provided the following response to the question whether Mr Kelly had any other medical conditions which were generally well managed and that caused minimal or limited impact on his ability to function:

    He has a single kidney and has developed some renal impairment, therefore the use of pain killers is now limited.[28]

    [28] Exhibit 1, T Documents, T 10, page 88.

30. Mr Kelly told the JCA assessor that his kidney condition caused him some “mild fatigue” which affected his ability to concentrate, and resulted in some “moderate to mild fatigue” with increased exertion. As to continence, he reported some frequency/nocturia which disturbed his sleep several times a night.[29] As a consequence, the assessor considered he suffered from mild functional impairments with respect to activities requiring physical exertion or stamina, and continence function; she recommended that five points each be assigned under the respective tables, Table 1 and Table 13.[30]

    [29] Exhibit 1, T Documents, T 12, page 106, JCA report dated 3 May 2013.

    [30] Exhibit 1, T Documents, T 12, page 106, JCA report dated 3 May 2013.

31. In light of Mr Kelly’s self reporting to the JCA assessor and Dr Malick’s assessment, that the kidney condition was generally well managed and had minimal or limited impact on functional ability, I do not think it could have been said that, at the relevant time, the resulting impairments were “severe” (as that term is defined in the Act). Having considered the mild and moderate rating descriptors for both tables, I would accept the ratings recommended by the assessor for each.

    Thrombosis condition

32. Dr Malick’s supporting report made no mention of this condition; the first reference to it is to be found in Mr Kelly’s undated letter of about July 2014 to the ARO:

    I have since developed deep vein thrombosis which also has an Affect [sic.] of what I can achieve.[31]

    [31] Exhibit 1, T Documents, T 18, page 137, letter from Mr Kelly to ARO, undated.

33. The only medical evidence produced in relation to this condition is a report from Dr Ekkasit Swangjitmetta of Bangkok Hospital dated 28 February 2014, describing the results of an ultrasound:

    No demonstrable DVT.

    Varicose veins at inner thigh to upper calf with superficial vein thrombosis of inner thigh at mid to lower third portion and also thrombosed LSV from inner mid calf extending up to lesser sphenofemoral junction.[32]

    [32] Exhibit 1, T Documents, T 15, page 120.

34. No other medical evidence on this condition was produced, especially from a specialist.  That is particularly important given the remark concerning “no demonstrable DVT”. Further, there is no evidence of any treatment of that condition since February 2014. In those circumstances, I do not believe the condition could be considered to have been fully diagnosed, treated and stabilised at the time. As such, no impairment points could be assigned in respect of any impairment that arose from it.

35. In any event, this condition arose well after the relevant time I am to consider; it apparently did not exist at that time.

36. It follows from what I have said that I do not consider that this condition caused Mr Kelly any severe impairment at the relevant time.

    Summary

37. In summary, I do not consider that any impairments from which Mr Kelly suffered at the relevant time were “severe”, as that term is understood under the Act. That is to say that Mr Kelly does not have an impairment rating of 20 points (or more) under any single Impairment Table as required by the Act. As a result, I do not believe he could satisfy the second of the requirements under s 1218AAA(1).

38. The requirements of the section being cumulative, it is unnecessary for me to consider the remaining matters.

    CONCLUSION

39. I do not think that any of Mr Kelly’s impairments could have been considered severe (as that expression is understood under the Act) at the time of his request or claim for unlimited portability. I therefore do not believe that he was able to satisfy the requirement in s 1218AAA(1)(b) of the Act and accordingly, was not eligible for consideration under the section.

40. The decision under review is therefore affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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Associate

Dated    20 October 2015

Date of hearing	23 September 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services - Program Litigation and Review Branch