Kierse and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1345

Kierse and Secretary, Department of Social Services (Social services second review) [2020] AATA 1345 (18 May 2020)
Division:GENERAL DIVISION
File Number(s):2018/6168
Re:Nicholas Kierse
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:18 May 2020
Place:Adelaide

The Tribunal sets aside the decision under review.
..............[sgnd]..........................................................
Member I Thompson
Catchwords
SOCIAL SECURITY – disability support pension – whether medical conditions diagnosed, treated and stabilised during the qualification period- whether an impairment rating of 20 points or more existed under the Impairment Tables- decision under review set aside
Legislation
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services (2015) FCA 1123
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500);
Secretary, Department of Social Security v Pusnjak [1999] FCA 994);
Crossland and Secretary, Department of Family and Community Services [2004] AAT 864
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 16
Re Hamal and Secretary, Department of Social Service [1993] AATA 283

Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
18 May 2020
INTRODUCTION

The applicant Nicholas Kierse lodged a claim for disability support pension (DSP) on 12 January 2018. Centrelink rejected the claim in the first instance and Mr Kierse requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision. Mr Kierse requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The decision under review was affirmed. Mr Kierse applied to the General Division of the Tribunal for a second review.
The hearing took place on 25 February 2020. Mr Kierse attended the hearing and was self‑represented. His mother attended in support of him. Ms Odgers represented the respondent, the Secretary, Department of Social Services.
Mr Kierse gave evidence on oath. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.
Mr Kierse is now 21 years old. He has a rare condition of myotonia congenita.
LEGISLATION AND ISSUES
Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Details

AGLC: Kierse and Secretary, Department of Social Services (Social services second review) [2020] AATA 1345
Case: [2020] AATA 1345
Decision Date: 18 May 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr Kierse against a decision by the Secretary of the Department of Social Services regarding his eligibility for a Disability Support Pension (DSP). The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Kierse's medical conditions, diagnosed, treated, and stabilised during the qualification period, resulted in an impairment rating of 20 points or more under the Impairment Tables, and whether he had a continuing inability to work.

The legal issues before the Tribunal were whether Mr Kierse's impairments met the criteria for a DSP qualification during the relevant period. Specifically, the Tribunal had to assess if his conditions were fully diagnosed, fully treated, and fully stabilised, and if these impairments resulted in a functional capacity rating of 20 points or more under the Impairment Tables, as required by the Social Security Act 1991 and the associated Rules for Applying the Impairment Tables. The Tribunal also needed to consider if these impairments led to a continuing inability to work.

The Tribunal reasoned that eligibility for DSP must be assessed based on the applicant's circumstances during the qualification period, with evidence post-dating this period being relevant only insofar as it illuminated the condition during that time. The Impairment Tables require a condition to be permanent, meaning fully diagnosed, treated, and stabilised, and to result in an impairment rating of 20 points or more. Permanence is assessed by considering corroborating evidence of the condition, the treatment received, and whether further treatment is likely to yield significant functional improvement within two years. Mr Kierse's diagnosis of myotonia congenita, a condition causing muscle stiffness and impacting both gross and fine motor skills, was confirmed in childhood. Despite attempts at treatment, including medication and allied health services, his muscle stiffness persisted, affecting his daily activities and ability to work. The Tribunal found that his functional capacity was significantly impacted, and his life had not changed substantially before, during, or after the qualification period.

The Tribunal set aside the decision under review and determined that Mr Kierse was qualified to receive the Disability Support Pension from 12 January 2018, being satisfied that he had a continuing inability to work.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The main issue for determination is whether Mr Kierse’s impairments could be assigned 20 points or more under the Impairment Tables during the qualification period and, if so, where he had a continuing inability to work. EVIDENCE OF MR KIERSE Mr Kierse gave evidence, which was consistent, clear and honest. His demeanour and candour were impressive. He told the Tribunal that he resides in suburban Adelaide with his mother and grandmother. He completed year 12 at school. Subsequently, he worked in one job doing data entry on a computer. In that role he was employed by his father to work part-time from home. The work lasted for about 5 or 6 months working 4 days per week, 3 hours per day. Initially it went well, and Mr Kierse enjoyed the work. However, it came to an end when the pressure to complete work within a specified timeframe was too much. He was asked to work longer hours but physically could not cope. He uses two fingers for typing which becomes difficult after 15 to 20 minutes. Then he needs to stop and allow his fingers to relax. Mr Kierse engaged with a designated job service provider after leaving school. To a large degree, his involvement required his attendance at regular intervals at a job service provider office for an update on his situation, together with assistance with compiling a resume, attendance at information sharing workshops and drafting a job application. He has not been referred for or participated in specific, work training, assessments, work experience or job interviews. He thinks that he could work 15 hours per week, provided the work is mainly sedentary and not physically demanding. He would need to have breaks while working. Mr Kierse told the Tribunal that he does not access any type of treatment nowadays for his muscle stiffness. All his muscles are affected. He gets stiffness in his legs, arms, eyes and neck. Sometimes he has difficulty speaking, swallowing and breathing. As a child he received allied health services and support from a paediatric disability service provider. He has tried medication to relax his muscles. However, no form of treatment has succeeded in the long run in alleviating the muscle stiffness. Presently he has good days and bad days. And that was the pattern at the time of his DSP claim. Everything depends on the stiffness in his muscles when he wakes up in the morning. When the muscles are stiff and sore, he tends to spend the day and evening quietly at home. If he wakes up with relaxed muscles, he tends to go outdoors. There is no way of predicting whether the next morning will bring relaxed muscles or stiff muscles, however the impact is generally more severe in cold weather. He doesn’t get any warning of muscle stiffness. He said, “it just happens.” Then it takes about 5 to 10 minutes for them to relax. Mr Kierse has a group of friends. He meets them in a park. On a good day he can walk to the park which is a distance of about 500 metres. When he gets there, he sits down and rests. He plays basketball for about ten minutes, then rests, then plays again. While he can run, his pace is slow. He also goes to movies with friends, to a recreation centre and they visit one another at home. He does not drive a car. He uses public transport, either a train or a bus and if he must stand, he makes sure that he has something close by to lean on. He has asthma and uses a preventer once a day.

Decision

Reasons for decision

The Tribunal is satisfied that Ms Kierse has a continuing inability to work within the meaning of s 94(1)(c) of the Act.DECISION For the reasons set out above the Tribunal sets aside the decision under review and instead the Tribunal decides that Ms Kierse is qualified to receive the Disability Support Pension from 12 January 2018.

Ratio Decidendi

Legal Principle Established

At home, Mr Kierse meets his self-care needs. He can get dressed, though not without difficulty. He has difficulties doing up buttons and tying up shoelaces. When his hand stiffens, he cannot open his fingers which become claw-like. His mother ties shoelaces loosely for him so that he can slip into and out of them. Shampooing his hair is often difficult. In all, both gross and fine motor skills provide daily problems and challenges for him. His life has not changed in any significant way, before, during and after the qualification period. CONSIDERATION It is well-settled in cases such as Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, affirmed by the Federal Court in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, that the Tribunal can only consider an applicant’s qualification for DSP within the qualifying period. Evidence such as medical reports that were prepared after the qualification period, are relevant insofar as they may cast light on Mr. Kierse’s medical condition during the qualification period.Impairment Tables The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated, requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years. The applicable impairment rating for Mr Kierse’s condition will be considered in turn by reference to the Impairment Tables.Myotonia Congenita Mr Kierse has a diagnosis of myotonia congenita. As a three-year-old child he was assessed by a neurologist at the Women’s and Children’s Hospital because of concerns with gross motor and fine motor delay. After the examinations and investigations, the diagnosis was confirmed. This is a rare condition and the prognosis was described in one of the reports by a neurologist as relatively benign compared with muscular dystrophy: – “most of these patients get by quite will, but sometimes have a mild degree of handicap with muscle cramps and stiffness. These latter symptoms can often be alleviated with medication.” [2][2] T 14 p189, report by Dr Manson 8 July 2002