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

Keynes and Secretary, Department of Social Services (Social services second review) [2023] AATA 180 (16 February 2023)
Division:GENERAL DIVISION
File Number: 2021/3957
Re:Gregory Keynes

APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:16 February 2023
Place:Perth

The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, made on 12 May 2021, which affirmed a decision of a delegate of the Respondent, made on 23 February 2021, to reject the Applicant’s claim for disability support pension, is affirmed.
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Brigadier AG Warner, AM LVO (Retd), Member
Catchwords
SOCIAL SECURITY – disability support pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points under Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed
Legislation
Social Security Act 1991 (Cth) – ss 92, 94, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(5), 94(3B)
Social Security (Administration) Act 1999(Cth) – s Sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss Table 4
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Department of Social Services, Guide to Social Policy Law: Social Security Guide
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
16 February 2023
Introduction

The Applicant, Mr Keynes, seeks review of the decision of Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 12 May 2021, (the Reviewable Decision) which affirmed an earlier decision of an authorised review officer (ARO) of Services Australia (Centrelink) made on 23 February 2021, to reject Mr Keynes’ application for the disability support pension (DSP) lodged on 22 July 2020.
The application was heard by the Tribunal on 24 January 2023. The parties appeared via teleconference. Mr Keynes was self-represented and gave evidence on affirmation. The Respondent was represented by Ms Emily Hill of King & Wood Mallesons.
Background
Mr Keynes was born in 1956. On 22 July 2020, Mr Keynes lodged a claim for DSP with Centrelink, claiming he suffered from various medical conditions that significantly affected his ability to work (T7/130-144).
On 23 July 2020, a DSP Medical Eligibility Assessment Recommendation (MEAR) report was completed (T9/150-151). The MEAR assessor considered that Mr Keynes was manifestly medically ineligible for DSP on the basis that his conditions, severe bilateral rotator cuff syndrome with avascular necrosis on left shoulder and cervical canal stenosis, were not fully diagnosed, treated and stabilised (FDTS) (T9/151).
On 21 August 2020, Centrelink rejected Mr Keynes’ claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (T10/152).
Mr Keynes subsequently requested a review of the Centrelink decision and on 4 February 2021, a further MEAR report was completed (T14/169-171). The MEAR assessor agreed that Mr Keynes was manifestly medically ineligible for DSP on the basis that his conditions were not FDTS, and stated that his application for DSP could not proceed to a job capacity assessment (T14/170).
On 23 February 2021, the original Centrelink decision was affirmed by an ARO.
Mr Keynes subsequently applied to the AAT1 for review of the ARO decision, and on 12 May 2021, the AAT1 affirmed the ARO’s decision. The AAT1 found that Mr Keynes had a total impairment rating of five points and so did not satisfy the provisions of s 94(1)(b) of the Social Security Act 1991 (Cth) (the Act) (T2/6-12).
On 16 June 2021, Mr Keynes lodged an application for review of the AAT1 decision with this Tribunal (T1/1-5). In his application Mr Keynes gave the following reason for seeking review:
I claim the AAT’s decision was incorrect in their assessment and calculations of total points for my impairment rating for DSP regards my spinal disorder and associated tables. I have included latest medical evidence and my reply to their decision via email direct to AAT yesterday 15/16/06/21 and today also included associated photos/pictures/article.
Issues
The issue to be decided in these proceedings is whether Mr Keynes satisfies the qualification for DSP on the day he lodged his claim or within 13 weeks thereafter. The claim for DSP was lodged with Centrelink on 22 July 2020, and consequently the period for assessing Mr Keynes eligibility is from 22 July 2020 until 21 October 2020 (the Qualification Period).
The Tribunal’s consideration requires the assessment of whether Mr Keynes suffered from a physical, intellectual or psychiatric impairment or impairments; if so, whether the impairment(s) were FDTS and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and whether Mr Keynes had a continuing inability to work (CITW) in accordance with s 94(1)(c) of the Act.
Legislative AND POLICY Framework
The Tribunal is required to consider the provisions of the Act; the Social Security (Administration) Act 1999 (Cth) (the Administration Act); Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
The Tribunal must also have regard to the relevant policy contained in the Guide to the Social Security Law (the Guide). The Tribunal, as a decision maker, will generally apply the guidance contained in the Guide unless there are any cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, (644–5)).
DSP qualification criteria
Section 94 of the Act contained the qualification criteria for DSP and states in part:
94 Qualification for disability support pension
(1) A 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
…
(2)A 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.
(Original emphasis; notes omitted.)
The term “severe impairment” is defined under s 94(3B) of the Act as follows:
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.
(Original emphasis; notes omitted.)
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states, in part:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(c)the person’s condition causing that impairment is permanent; and
(d)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
(Notes omitted.)
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(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.
(Notes omitted.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated and fully stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)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
(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 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.
(Notes omitted.)
Qualification Period
Schedule 2, cl 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim and states in part:
(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.
It follows that Mr Keynes’ claim for DSP must be assessed on the basis of his medical conditions as at the date of claim, or within 13 weeks of that date (see above). In relation to the importance of the Qualification Period, the Respondent relevantly cites authorities which affirm the principles that “medical reports that come into being after the qualification period will only be relevant to the extent that they refer to a person’s condition during the qualification period”, and that should circumstances have changed subsequent to the Qualification Period, a fresh DSP claim may be appropriate (Exhibit R1, paras 5.7-5.8).
Evidence
The Tribunal had the following material before it:
·The “T Documents” (T1-T22, pp 1-226);
·Medical report by Dr Stephen Davis dated 1 May 2021 (Exhibit A1);
·Medical report by Dr Michael Fallon dated 1 November 2019 (Exhibit A2);
·Medical report by Dr Teck Siew dated 1 November 2019 (Exhibit A3);
·Maxwell Grant Physiotherapy report dated 31 January 2022 (Exhibit A4);
·Dr Heather Wilkinson referral to physiotherapist dated 13 January 2022 (Exhibit A5);
·Applicant’s submissions dated 30 June 2021 (Exhibit A6);
·Picture of Harrington rod filed 16 June 2021 (Exhibit A7);
·Applicant’s email dated 26 October 2021 attaching Medical Certificate by Dr Heather Wilkinson dated 25 October 2021 (Exhibit A8);
·Applicant’s email correspondence dated 2 February 2022, 10 September 2021, 23 August 2021, 11 August 2022 and 22 June 2021 (Exhibit A9);
·Secretary’s Statement of Issues, Facts and Contentions dated 20 May 2022 (Exhibit R1); and
·The oral evidence of the Applicant.
Consideration
The Respondent accepts that Mr Keynes had impairments such that s 94(1)(a) of the Act was satisfied during the Qualification Period (Exhibit R1, para 5.20), however contends that as of the Qualification Period, Mr Keynes’ conditions did not attract a total impairment rating of 20 points or more under the Impairment Tables (Exhibit R1, para 5.21).
In response to the Respondent’s comprehensive opening submissions (Transcript/5-8), Mr Keynes stated: “Emily’s quite legitimate in what she says” (Transcript/8).
Mr Keynes presented as honest, open and cooperative before the Tribunal. However, it became evident during the hearing that Mr Keynes misunderstood the review process. Mr Keynes believed that as he had disagreed with the AAT1 decision and requested a review with the Tribunal, “a new claim was formed” (Transcript/11). Mr Keynes accepted the Tribunal’s clarification of his review situation with equanimity.
Do the Applicant’s impairments attract an impairment rating of 20 points or more?
Upper limb disorder
The Respondent accepts that based on the medical certificates of Dr Babatunde Coker, general practitioner, dated 16 June 2020 (T6/117) and 26 August 2020 (T11/155), it is open to the Tribunal to find that Mr Keynes’ upper limb disorder was diagnosed during the Qualification Period (Exhibit R1, para 5.22). Dr Coker diagnosed Mr Keynes with severe bilateral rotator cuff syndrome with avascular necrosis of the right shoulder. However, the Respondent contends that this condition was not fully treated or stabilised during the Qualification Period and therefore cannot be considered permanent for DSP purposes (Exhibit R1, para 5.23).
Having regard to the medical evidence, the Tribunal agrees that Mr Keynes’ upper limb disorder was diagnosed as at the Qualification Period.
The medical evidence is that that Mr Keynes underwent a right reverse total shoulder replacement on 16 July 2020 (T11/156) only a few days before the submission of his DSP claim, and primary arthroplasty reverse left shoulder surgery on 21 January 2021 (T12/167 and T13/168), three months after the end of the Qualification Period.
In a medical report dated 16 June 2020, Dr Babatunde Coker noted that the then awaited shoulder surgery would be followed by rehabilitation and physiotherapy (T6/117). Relevantly, the AAT1 noted (T2/9):
…right shoulder reconstruction surgery took place some days before lodgement. He has since undergone left shoulder reconstruction surgery together with rehabilitation and is awaiting surgical release for Dupuytren’s syndrome. These are all interventions that are likely to improve his upper limb functioning.
The Tribunal finds that Mr Keynes had not undergone all reasonable treatment prior to the end of the Qualification Period and that his upper limb condition was likely to improve over the following two years. As this condition could not be considered permanent for DSP purposes, the Tribunal does not proceed to assign an impairment rating under the Impairment Tables.
Spinal Disorder
The Respondent accepts that it is open to the Tribunal to find that Mr Keynes’ spinal disorder was diagnosed during the Qualification Period based on the following evidence:
(a)Dr George Wong, neurosurgeon, advised in a letter dated 2 December 2019 (T6/121) that an “MRI Scan shows stenosis at T11/12, and there is also canal narrowing at T10/11. On top of that there is canal stenosis at C4/5 and CS/6 and there is cord signal change at C4/5 and T11/12”.
(b)Dr Babatunde Coker, general practitioner, advised in medical certificates dated 16 June 2020 (T6/117) and 26 August 2020 (T11/155) that Mr Keynes was diagnosed with cervical canal stenosis.
The Tribunal notes this medical evidence and finds that Mr Keynes’ spinal disorder was diagnosed during the Qualification Period.
Further, the Respondent also accepts that (Exhibit R1, para 5.29):
…it is open to the Tribunal to find that the Applicant’s spinal disorder was fully treated and stabilised during the qualification period on the basis that there is no evidence of there being any reasonable treatment options available to the Applicant that would result in an improvement in his current functioning.
Having regard to the medical evidence, including the January 2022 correspondence between Dr Wilkinson (Exhibit A5) and Maxwell Grant (Exhibit A4) about the potential for improving his function and preventing further deterioration, the Tribunal is satisfied that at the Qualification Period there were no further reasonable treatment options available to Mr Keynes for this condition. The Tribunal therefore finds that Mr Keynes’ spinal disorder was FDTS as at the Qualification Period, and that impairment resulting from this condition can be assessed under the Impairment Tables.

The Impairment Table that is relevant to Mr Keynes’ spinal condition is Table 4 – Spinal Function, which addresses the functional impact on activities involving spinal function. Table 4 relevantly provides the following descriptors of the various impairment levels:

5

There is a mild functional impact on activities involving spinal function.

(1)     The person has some difficulty in:

(a)    activities over head height (e.g. activities requiring the person to look upwards); or

(b)    bending to knee level and straightening up again without difficulty; or

(c)    turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)     The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)    the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)    the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)    the person is unable to bend forward to pick up a light object placed at knee height; or

(d)    the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)     The person is unable to:

(a)    perform any overhead activities; or

(b)    turn their head, or bend their neck, without moving their trunk; or

(c)    bend forward to pick up a light object from a desk or table; or

(d)    remain seated for at least 10 minutes.

(Original emphasis.)

The Respondent contends that with reference to Table 4, Mr Keynes’ spinal disorder caused a mild functional impact on activities involving the spine and that an impairment rating of five could be assigned (Exhibit R, para 5.32).
At the AAT1 hearing on 12 May 2021, some six months after the end of the Qualification Period, Mr Keynes gave evidence about his impairment. Of particular relevance to the descriptors in Table 4, Mr Keynes reported that (T2/11):
(a)he could drive a maximum of one hour, before he needed to pull over and mobilise;
(b)he was able to bend forward and pick up a light object placed at knee height;
(c)he could perform overhead activities, though he did so gingerly and could only lift light objects overhead;
(d)he did not require assistance to get out of a chair; and
(e)he could check his side mirrors when driving but was unable to check his blind spots.
Mr Keynes told the Tribunal that his spinal disorder had deteriorated since the AAT1 hearing, but that his evidence at that time was correct. Mr Keynes stated: “I stand by those things I said at the time, yes” (Transcript/13).
The Tribunal notes that in a report dated 16 June 2020 (T6/117), Dr Coker, general practitioner, recorded symptoms of “Severe neck pain and restriction of movement. Severe back pain and restriction of movement” but provides no details of any functional impairment.
The Tribunal also has regard to reports by Dr George Wong, neurosurgeon. In a report dated 27 November 2019 (T6/122), Dr Wong noted that Mr Keynes reported deterioration in walking, increased loss of balance and some numbness in his left leg. In a further report dated 2 December 2019 (T6/121), Dr Wong noted that Mr Keynes reported “some clumsiness in his fingers”. However, these reports do not address the criteria set out in the Impairment Table, and do not detail what Mr Keynes could do as a way of treatment or not do at that time.
Mr Keynes has provided a physiotherapy report from Maxwell Grant, physiotherapist, dated 31 January 2022 (Exhibit A4). This letter contains Mr Grant’s assessment of Mr Keynes on examination conducted on 31 January 2022, which was 15 months after the end of the Qualification Period, and does not provide any evidence of Mr Keynes’ impairment during the Qualification Period.
Mr Keynes’ own evidence in the AAT1 proceedings and confirmed during this hearing (see paras 39-40 above) indicates that he satisfies the criteria for mild functional impact under Table 4. The Tribunal is not satisfied that there is sufficient probative evidence to indicate that Mr Keynes’ spinal condition caused moderate functional impairment as described by the relevant descriptors in Table 4. Even if the Tribunal found that the impact of Mr Keynes’ impairment fell between the criteria for mild and moderate functional impact on activities, the Tribunal would need to comply with Rule 11(c) of the Rules for applying the Impairment Tables. This rule relevantly provides that if an impairment is considered as falling between two impairment 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 (T3/35).
Accordingly, the Tribunal finds that Mr Keynes’ spinal disorder can be assigned five impairment points under Table 4 of the Impairment Tables.
Other conditions
Mr Keynes’ DSP claim is based on the conditions of upper limb disorder and spinal disorder (T7/142). The Tribunal notes that there are references to a number of other conditions in the materials before the Tribunal. These conditions include carpal tunnel (Exhibit A9/1), benign prostatic hyperplasia (T6/128; T13/168), mild hypertensive cardiomyopathy with secondary atrial fibrillation (T15/172), hypertension (T6/128), hyperlipidaemia (T6/129), rosacea (T6/128), diffuse mesenteric adenopathy (T6/129) and insomnia (T6/129).
During the hearing, Mr Keynes did not provide any evidence or make submissions in relation to these other conditions.
The Respondent contends that there is insufficient medical evidence before the Tribunal for it to be satisfied that these conditions were FDST during the Qualification Period such that an impairment rating could be assigned (Exhibit R1, para 5.39). Having regard to the evidence, the Tribunal agrees, and notes that although these proceedings are of course de novo, this conclusion is consistent with the findings of the AAT1 (T2/12).
Overall impairment rating
The Tribunal is unable to assign an impairment rating higher than five in respect of Mr Keynes’ spinal disorder and is satisfied that none of his other conditions can be considered FDTS. It follows that Mr Keynes does not have an impairment rating of 20 points or more and therefore, did not satisfy s 94(1)(b) of the Act during the Qualification Period.
Does Mr Keynes have a continuing inability to work – paragraph 94(1)(c)?
If the Tribunal had been satisfied that Mr Keynes had conditions which were FDTS as at the Qualification Period, and the resulting impairment attracted an impairment rating of at least 20 points under the Impairment Tables, then the Tribunal would also need to determine whether Mr Keynes had a CITW for the purposes of s 94(1)(c) of the Act. As the Tribunal is not so satisfied, it is unnecessary for the Tribunal to consider whether Mr Keynes has a CITW.
Conclusion
The Tribunal finds that at the Qualification Period, Mr Keynes’ conditions rated five points under the Impairment Tables and therefore he did not satisfy s 94(1)(b) of the Act, and consequently does not qualify for the DSP.
Decision
The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, made on 12 May 2021, which affirmed a decision of a delegate of the Respondent, made on 23 February 2021, to reject Mr Keynes’ claim for disability support pension is affirmed.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member

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Associate
Dated: 16 February 2023

Date of hearing: 24 January 2023

Applicant: Self-represented

Counsel for the Respondent: Emily Hill

Solicitors for the Respondent: King & Wood Mallesons

[2023] AATA 180

16 February 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	24 January 2023
Applicant:	Self-represented
Counsel for the Respondent:	Emily Hill
Solicitors for the Respondent:	King & Wood Mallesons