Kingswood and Secretary, Department of Social Services (Social Services Second Review)

[2024] AATA 551

Kingswood and Secretary, Department of Social Services (Social Services Second Review) [2024] AATA 551 (26 February 2024)

Division:GENERAL DIVISION

File Number(s):      2021/7938

Re:Cindy Kingswood

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier A G Warner, AM LVO (Retd), Member

Date of decision:               26 February 2024

Date of written reasons:         28 March 2024

Place:Perth

For the reasons given orally at the conclusion of the hearing of this matter on 26 February 2024, the Tribunal affirms the decision of the Social Services & Child Support Division of the Tribunal, made on 1 October 2021, that the Applicant did not qualify for the disability support pension.

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

Brigadier A G Warner, AM LVO (Retd), Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification period – whether Applicant’s conditions were fully diagnosed, fully treated and fully stabilised at the qualification period – whether Applicant’s impairments attract 20 points under Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act1991 (Cth) – ss 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999 (Cth) – Schedule 2
Social Security (Active Participation for Disability Support Pension)Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Table 1, Table 4, Table 5

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 63

SECONDARY MATERIALS

Social Security Guide

REASONS FOR DECISION

28 March 2024

INTRODUCTION

1.       On 26 February 2024, the Tribunal, at the conclusion of a hearing held that day, gave oral reasons for its decision to affirm the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 1 October 2021, which affirmed a decision to reject the Applicant’s claim for disability support pension (DSP) (T2/2-8) which she had lodged on 23 March 2021.

2.       The Applicant participated in the hearing by telephone conference and gave evidence on affirmation. The Applicant was represented by Ms Catherine Eagle of Welfare Rights & Advocacy Service who participated by video conference, as did Ms Monica Macor who represented the Respondent.

3.       The Applicant subsequently requested a written statement of reasons for the decision. The written reasons which follow are distilled from the edited transcript of the oral reasons given on 26 February 2024.

BACKGROUND

1. The Applicant is presently 62 years of age and on 23 March 2021, lodged a claim for DSP with Services Australia (the Agency) in respect of the conditions of chronic low back pain, chronic neck pain radiating into left shoulder and left shoulder rotator cuff injury (T108/349).

   5.       On 8 July 2021, a Job Capacity Assessment (JCA) report was completed (T113/365-375) and included the following recommendations:

   (a)The Applicant’s depression cannot be considered fully diagnosed as there is no evidence provided by a clinical psychologist or psychiatrist to confirm diagnosis (T113/366).

   (b)Whilst the Applicant’s osteoarthritis is fully diagnosed, there was insufficient evidence to verify that the Applicant’s osteoarthritis is fully treated and stabilised (T113/367).

   (c)The Applicant’s spinal disorder is fully diagnosed, but cannot be considered fully treated and stabilised (T113/368).

   (d)The Applicant’s upper arm condition is fully diagnosed, but there is insufficient current medical evidence to conclude that it is fully treated and stabilised (T113/368-369).

   (e)The Applicant’s baseline work capacity was 8-14 hours per week and her capacity for work within 2 years (with intervention) was 15-22 hours per week. However, the Applicant did have a temporary work capacity of 0-7 hours per week (T113/372).

   6.       On 15 July 2021, a decision was made to reject the Applicant’s claim for DSP on the basis that the Applicant did not have an impairment rating of at least 20 points under the Impairment Tables (T115/382-387). The Applicant requested a review of the DSP rejection decision and on 11 August 2021, the decision was affirmed by an Authorised Review Officer (ARO) (T117/382-387). The ARO found the following:

   (a)The Applicant’s spinal disorder is considered fully diagnosed, treated and stabilised based on the information available, there is a mild functional impact and I have assigned an impairment rating of 5 points under Table 5 – Spinal Function.

   (b)The Applicant’s conditions of osteoarthritis, shoulder and upper arm disorder and urinary incontinence are considered as diagnosed but not fully treated and stabilised.

   (c)The Applicant’s condition of anxiety and depression is considered as not fully diagnosed in the absence of a diagnosis from a psychiatrist or clinical psychologist, which is a requirement under Table 5 – Mental Health Function.

   (d)The Applicant’s total impairment rating is 5.

2. On 1 October 2021, the decision under review was affirmed by the AAT1 (T2/2-8). The AAT1 determined that the Applicant had a total impairment rating of 10 points, based on the following findings:

   (a)The Applicant’s degenerative spondylosis caused a mild functional impact on activities of spinal function and attracted an impairment rating of 5 points under Table 4.   

   (b)The Applicant’s left shoulder rotator cuff injury was fully diagnosed, treated and stabilised and attracted an impairment rating of 5 points under Table 2. 

   (c)The Applicant did not have a psychological condition at the date of claim that was diagnosed by a psychiatrist or clinical psychologist.

   (d)The Applicant’s urinary incontinence was fully diagnosed, but was not fully treated and stabilised. 

3. On 18 October 2021, the Applicant lodged an application for review of the AAT1 decision with this Tribunal (T1/1). 

   LEGISLATION

4. The relevant legislation is contained in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 and the Social Security (Active Participation for Disability Support Pension) Determination 2014.  

5. Policy advice contained in the Social Security guide is also relevant, and to ensure consistency in decision making, the Tribunal will follow the relevant policy unless there are cogent reasons to depart from its application (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 63).

6. The statutory provisions relative to this review are laid out comprehensively in the Respondent’s Statement of Facts, Issues and Contentions (Exhibit R1, paras 5.10 to 5.21) and are not in dispute. In its oral reasons, the Tribunal provided a brief summary of those provisions as follows (Transcript/2-3):

   Section 94 of the Act sets out the first requirement for qualification for DSP, and that is that a person has an impairment at the time they lodged their claim.  The second requirement for DSP, also in s 94, provides that a person’s impairment must rate 20 or more points against the Impairment Tables at the time they lodged their claim.  To apply the Impairment Tables, the condition or impairment must be considered permanent; and in the determination, the word ‘permanent’ does not have its usual meaning.  For our purposes, for a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated, fully stabilised and likely to last for more than two years.

   There is also a requirement that an applicant for DSP must have what is called a continuing inability to work, pursuant to s 94(1)(c) of the Act.  For DSP qualification, both the minimum qualifying impairment threshold of 20 points and the continuing inability to work criteria must be met and they are of equal importance.

   EVIDENCE

7. The Tribunal had before it the following evidence:

   ·        The ‘T-Documents’ (T1 to T124, pp 1-496);

   ·Letter from Outpatient Clinic dated 12 May 2022 (Exhibit A1);

   ·Submissions in Response dated 4 May 2023 (Exhibit A2);

   ·Applicant’s Submission in Response to Direction A dated 14 September 2023 (Exhibit A3);

   ·Respondent’s Statements of Facts, Issues and Contentions dated 23 March 2023 (Exhibit R1);

   ·Statement of Issues dated 10 January 2023 (Exhibit R2); and

   ·The oral evidence of the Applicant.

   ISSUE

8. The Tribunal must decide whether the Applicant was qualified for DSP at the date her claim was lodged on 23 March 2021 or within the 13 weeks that followed. This requires consideration of whether the requirements set out in s 94 of the Act were met; that is, whether the Applicant had physical, intellectual, or psychiatric impairments and conditions that are fully diagnosed, treated and stabilised, and causing impairments which attract an impairment rating of at least 20 points under the Impairment Tables; and whether the Applicant had a continuing inability to work.

   CONSIDERATION

9. As stated above, the Applicant’s claim for DSP must be assessed on her medical conditions as at the date of claim or within 13 weeks of that time, and that period is called the qualification period. In this case, the qualification period is from 23 March 2021 until 22 June 2021.

10. The Respondent relevantly cites a number of authorities (Exhibit R1, paras 5.4 – 5.8), which establish that medical reports that have come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period; and that a decision-maker, like this Tribunal, can only consider an Applicant’s application or an Applicant’s qualification for DSP within the qualification period.  If circumstances have subsequently changed, it may be appropriate for the Applicant to lodge a fresh claim for DSP.

11. In summary, the Respondent contents that during the qualification period, the Applicant was not qualified for DSP as she did not have an impairment rating of at least 20 points and did not have a continuing inability to work (Exhibit R1, para 5.1).

12. The first question before the Tribunal is whether the Applicant suffers a physical, intellectual, or physical impairment. The Respondent accepts that the Applicant in this case has impairments and that s 94(1)(a) of the Act was satisfied (Exhibit R1, para 5.22). Having regard to the medical evidence, the Tribunal agrees. The second question is whether the Applicant’s impairments attract 20 points or more under the Impairment Tables.

    Mental health conditions

13. The Respondent contends that the Applicant’s mental health conditions were not fully diagnosed during the qualification period as there is no evidence of a diagnosis having been made by a psychiatrist or a clinical psychologist, as required by the Introduction to Table 5 – Mental Health Function (Exhibit R1, para 5.44).  During the hearing, Ms Eagle confirmed this and therefore, this condition is taken no further (Transcript/4).

    Urinary incontinence

14. The Respondent contends that whilst the Applicant’s urinary incontinence was fully diagnosed, there is insufficient medical evidence to support a finding that the condition was fully treated and stabilised during the qualification period (Exhibit R1, para 5.39).

15. Having regard to the Silverchain Continence Management Plan (T81/278), the letter of Dr Craig Waters, urological surgeon, dated 5 March 2020 (T100/307), and a medical certificate provided by Dr Malcolm Hodsdon, general practitioner, dated 8 July 2021 (T114/377), the Tribunal finds that this condition is fully diagnosed.

16. In a letter dated 5 March 2020 (T100/307), Dr Waters reported that the Applicant had ‘stress and urge incontinence’, recommended that she try Ditropan 2.5 mg and referred her to King Edward Hospital for urodynamic studies and further management. In a letter dated 7 January 2021 (T107/323), some two months prior to the Applicant’s DSP claim, Dr Hodsdon stated that the Applicant still had not heard anything from King Edward Hospital for incontinence management. During the hearing, the Tribunal heard that Dr Hodsdon was unable or unwilling to give further evidence at or for the hearing (Transcript/4 refers). 

17. In her claim for DSP dated 15 March 2021 (T108/352), the Applicant noted that she was waiting to see a specialist to ‘investigate & hopefully improve bladder control’.

18. Having regard to the evidence, the Tribunal is satisfied that this condition was not fully treated or stabilised at the qualification period as the Applicant had not undertaken all reasonable treatment for this condition as recommended. Accordingly, any resulting impairment cannot be rated under the Impairment Tables.

    Spinal condition

19. The Respondent accepts that on the available evidence, the Applicant’s degenerative spinal condition is permanent, fully diagnosed, treated, and stabilised (Exhibit R1, para 5.23).

20. The Tribunal notes the JCA assessor’s comment in the report dated 8 July 2021 (T113/368): ‘Medical evidence confirms the condition of lumbar spinal pain is a permanent condition that has been fully diagnosed.  However, there is insufficient current medical evidence to verify if this condition is fully treated or stabilised to verify current functional impacts’. However, the Tribunal also has regard to the evidence cited by the Respondent (Exhibit R1, para 5.23), and on balance accepts that the Applicant’s spinal condition is fully diagnosed, fully treated, and fully stabilised.

21. The Respondent contends that the functional impairment of this condition attracts at most a mild rating of 5 points under Table 4 – Spinal Function (Exhibit R1, para 5.24).

22. In its de novo consideration, the Tribunal has regard to the following evidence:

    (a)In a medical report dated 28 November 2017 (T71/243), Dr Louise Sparrow, general practitioner, reported the Applicant’s symptoms to be pain, stiffness, multiple joints affected, constant pain.

    (b)In a medical certificate dated 7 March 2018 (T75/260), Dr John Prempeh, general practitioner, noted the Applicant was suffering from back pain which radiates down the legs.

    (c)In assessing the Applicant’s work capacity in the JCA report dated 8 July 2021, the assessor noted that the Applicant  reported ‘she is unable to bend to table height to pick up a light item, is unable to sit for more than 10 minutes or stand in one spot for more than a few minutes, she is unable to turn her head to look behind her, unable to perform tasks that require her to use her hands/arms above shoulder level and unable to walk very far outside of the house’.

    (d)The Applicant told the AAT1 on1 October 2021 (T2/4), that it is an effort to walk short distances and she uses the shopping trolley to lean on; she cannot stand for five minutes and has to stoop over to relieve the pain in her back; she has to sit in a chair to shower; and by the time she is at the checkout, her feet are numb and her leg is aching.

    (e)In a letter dated 12 May 2022 (Exhibit R1, Annex A), Dr Jonathon Nadarajah, pain management fellow, reported the Applicant’s claims of lower back pain which radiates to the front into her abdominal region and that the pain is aggravated by domestic tasks and walking. However, the Tribunal considers that the medical report provided by Dr Nadarajah is not referrable to the qualification period, and rather speaks to the Applicant’s functioning almost 12 months after the qualification period. 

    28.     During the hearing, the Applicant told the Tribunal that this condition had deteriorated since the qualification period. However, the introduction to Table 4 provides that self-reported symptoms alone are insufficient, and a person’s impairment must be corroborated by other evidence, such as a report from the person’s treating doctor, treating specialist or rehabilitation practitioner confirming loss of range of movement in the spine. Without such corroborating evidence of the impairment to the Applicant’s spinal function as at the qualification period, the Applicant’s oral evidence and self-reporting cannot be used to assess her level of impairment.

    29.     Further, the Tribunal is not satisfied that the Applicant’s oral evidence this morning indicates that at the qualification period, she met the Table 4 descriptors for a moderate or higher functional impact as there is no further evidence referrable to the qualification period that describes the Applicant’s spinal condition as having more than a mild functional impact.  The Tribunal assigns a rating of 5 points under Table 4 – Spinal Function.

    Upper limb conditions

23. The Respondent accepts that the Applicant suffered from a left shoulder injury and carpal tunnel syndrome which was fully diagnosed during the qualification period.  However, the Respondent, contends that these upper limb conditions were not fully treated or stabilised during the qualification period as there is no evidence that the Applicant exhausted all reasonable treatment options (Exhibit R1, para 5.29).

24. The Tribunal’s review is de novo, and the Tribunal has regard to the following evidence:

    (a)In a report dated 11 April 2017 (T57/169), Dr Evan Jenkins, medicolegal consultant, recommended that the Applicant see an orthopaedic surgeon with a view to having a carpal tunnel release procedure. In a further report of the same date (T58/182), Dr Jenkins stated that the Applicant had limited treatment for her left shoulder and wrist conditions and he did not consider that sufficient time has elapsed for improvement of her condition, nor was her condition stable.

    (b)In an illness and injury claim form dated 14 November 2017, the Applicant stated that the treatment she has undertaken includes medication physiotherapy, counselling, aqua aerobics, and cortisone injections (T72/245).

    (c)On 4 January 2018, Dr Hodsdon reported that the Applicant has had physiotherapy, hydrotherapy, analgesics and anti-inflammatories (T72/245).

    (d)In a letter dated 31 May 2018 (T78/267), Dr Timothy Keenan, orthopaedic consultant, stated that the Applicant’s shoulder condition “is beyond anything we would be able to offer here if the cortisone injection has not improved this, and again, she would be best seen in Perth.”  Dr Keenan opined that once the Applicant’s back pain has been reviewed, her shoulder condition can be ‘sorted out’, and that the Applicant’s carpal tunnel may require treatment in the future.

    (e)In a letter dated 12 May 2022 (Exhibit R1, Annex A/3), which is almost a year after the end of the qualification period, Dr Nadarajah stated that the Applicant has limited engagement with non-pharmacological pain management strategies such as physiotherapy and psychology but noted that she was open to various other pain strategies.

    (f)Before the Tribunal, the Applicant was somewhat vague in recalling any advice or recommendations she may have received regarding treatment for her upper limb conditions and said that she had not seen a doctor in relation to these conditions for some years.

25. Having careful regard to the evidence, the Tribunal concludes that the Applicant’s upper limb conditions were not fully treated or stabilised at the qualification period as there is insufficient evidence that the Applicant had undertaken all reasonable treatment recommended by her treating practitioners.  Accordingly, any resulting impairment cannot be rated under the Impairment Tables.

26. In closing at the hearing, Ms Eagle submitted that the Applicant’s conditions and impairments should also attract impairment points under Table 1 - Functions Requiring Physical Exertion and Stamina. Although sympathetic to this submission, in the absence of relevant evidence and more detailed submissions, and having careful regard to the requirements prescribed in the Introduction to Table 1 (T3/35), the Tribunal is unable to consider this submission further.

    CONCLUSION

1. The Tribunal finds that the Applicant had an impairment rating of 5 points under the Impairment Tables and that as this is less than the required 20 points, the Applicant does not satisfy s 94(1)(b) of the Act. As the Applicant does not satisfy s 94(1)(b) of the Act, it is not necessary for the Tribunal to consider whether the Applicant has a continuing inability to work under s 94(1)(c) of the Act.

   DECISION

2. This finding by the Tribunal does not imply that the Tribunal is not sympathetic that the Applicant suffers from impairments related to her conditions which were not fully diagnosed, treated and stabilised as at the qualification period. The Tribunal wishes the Applicant well with the management of her difficult medical circumstances.

3. It follows from all the above that the Applicant did not qualify for DSP as at the qualification period and the Tribunal must affirm the decision under review, that of the AAT1 dated 1 October 2021.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, AM LVO (Retd), Member

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Associate

Dated: 28 March 2024

Date of determination on the papers:    28 March 2024

Date of hearing:

     26 February 2024

Representative

for the Applicant:

     Ms C Eagle, Welfare Rights & Advocacy Service

Representative  for the Respondent:

     Ms M Macor, Sparke Helmore Lawyers