Kylie Evans and Secretary, Department of Social Services

[2014] AATA 941

[2014] AATA 941  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2606
Re	Kylie Evans
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	18 December 2014
Place	Brisbane

The Tribunal sets aside the part of the decision that found the applicant did not satisfy
s 94(1)(b) of the Social Security Act 1991 (Cth) and substitutes it with the finding that the applicant has 20 points from the Impairment Tables. The matter is remitted to the respondent to determine whether the applicant had a capacity to work.

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Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – DSP – 20 points or more under the Impairment Tables – Cerebral vascular accident – CVA – Stroke – Decision set aside, substituted and remitted to the respondent.

LEGISLATION

Social Security Act 1991 (Cth), ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth), s 13, Schedule 2

SECONDARY MATERIALS

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

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr M Denovan, Member

18 December 2014

INTRODUCTION

1. Mrs Kylie Evans is the applicant in these proceedings. She suffered a cerebral vascular accident (“CVA”) (commonly referred to as a ‘stroke’) on 25 January 2013. She applied for disability support pension (“DSP”) on 21 March 2013. On 24 April 2013 the respondent decided to reject his claim. An Authorised Review Officer (“ARO”) affirmed that decision on 4 March 2014, as did the Social Security Appeals Tribunal (“SSAT”) on 17 April 2014. The applicant applied to the Administrative Appeals Tribunal (“AAT”) on 21 May 2014.

2. Although the cause of the CVA has not yet been identified, the respondent accepts that the applicant has a number of permanent impairments that have resulted from the CVA in January 2013. The respondent contends that the applicant cannot be allocated 20 or more points from the Impairment Tables and therefore does not meet all of the legislative requirements necessary to qualify for DSP.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

3. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. To the extent that it is relevant for present purposes, s 94 of the Act provides that the applicant must:

   ·have a physical, intellectual or psychiatric impairment; and

   ·have an impairment of 20 points or more under the Impairment Tables;[1] and

   ·have a continuing inability to work.

   [1] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.

4. Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth)

   
   

   (“the Administration Act”), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the relevant period”). In this case the relevant period is from 21 March 2013 and 20 June 2013.

5. There are rules for applying the Impairment Tables, contained in those

   
   

   Impairment Tables, in deciding if a person qualifies for DSP. The Impairment Tables are functional based, not based on the diagnosis. Ratings are assigned to reflect the level of functional impact from impairment of conditions that have been accepted to be permanent and fully diagnosed, fully treated and fully stabilised.

6. A person’s functional capacity rated under the Impairment Tables concerns their capacity to work. The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating can be assigned from the Impairment Tables.

7. A person is regarded as having a continuing inability to work under s 94 of the Act if the Secretary is satisfied that:

   ·they have an inability to work (or undertake training) for 15 hours or more a week due to their accepted impairments; and

   ·they have actively participated in a program of support.

   This second requirement is not necessary if a person has a severe impairment of

   
   

   20 impairments or more under a single Impairment Table.

8. Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”),[2] it is necessary to determine whether Mrs Evans’ conditions can be regarded as being permanent and the impairment resulting from those conditions is likely to persist for more than two years.[3] A condition will be considered permanent where it has been fully diagnosed, fully treated and fully stabilised.[4]

   [2] The Determination was made by the Minister pursuant to s 26(1) of the Act.

   [3] Subsection 6(3) of the Determination.

   [4] Subsection 6(4) of the Determination.

9. Ms Forsyth, for the respondent, accepts that Ms Evans suffered a CVA in January 2013, resulting permanent functional impairment, and therefore satisfies s 94(1)(a) of the Act.

10. The issues that I must determine are:

    ·which, if any, of Mrs Evans’ impairments as a result of her CVA can be allocated an impairment rating; and

    ·if any can be rated, whether she has 20 impairment points or more; and, if so,

    ·whether she has a continuing inability to work.

    CONSIDERATION

    Does Mrs Evans have any impairment as a result of her CVA that can be allocated a rating from the Impairment Tables?

11. Mrs Evans gave evidence by telephone at the hearing.

    Endurance issues

12. The medical evidence is that, as a consequence of her CVA, Mrs Evans has decreased endurance and constant fatigue. Mrs Evans explained to the Tribunal how this affected her. She gave the example of cleaning and tidying her house. She said it would take her a whole day to get her house to a standard she is happy with. She needs to stop and rest several times throughout the day due to fatigue. After getting her children ready for school in the mornings, she needs to sit and rest.

13. The ARO determined Mrs Evans should be allocated five impairment points from

    
    

    Table 1, which is the appropriate Table to assess impairment due to lack of endurance. Ms Forsyth contended the appropriate rating from this table is five points. I agree for the reason that the medical evidence before me is consistent with the evidence of the applicant. The appropriate rating from Table 1 is five points. The applicant does not satisfy the descriptors for any higher rating from this table.

    Upper limb functional impairment

14. The medical evidence is that Mrs Evans has the ability to manage most daily activities requiring the use of her hands and arms but would have difficulty with writing and similar activities and fine motor control in her right hand. She writes slowly and with more difficulty than before her CVA. She is self-conscious and she feels others may be looking at her, because she is slow and less fluid in some everyday activities, such as writing.

15. Mrs Evans said that due to the numbness in the right hand side of her right hand she cannot feel things, like her children touching her. She sometimes drops her phone when she is texting, and she cannot feel its position in her hand.

16. Despite her limitations Mrs Evans manages to prepare the food for the family and, other than driving, she is physically independent, capable of self-care and also cares for her three children.

17. The ARO allocated five impairment points from Tab1e 2 for functional impairment that results from loss of upper limb function. Although the SSAT also found the appropriate rating from Table 2 was five points, Ms Forsyth contends that the appropriate rating from Table 2 is zero. Considering all of the medical evidence, I find the appropriate rating from Table 2 is five points.

    Brain function impairment

18. The medical evidence is that Mrs Evans has limited concentration and poor sleep and poor memory. Mrs Evans was able to articulate her words clearly during the hearing. She did struggle to find the words she needed to express herself on many occasions. She said this was usual for her. She said that she often gets very angry and frustrated by her inability to find the correct words, or her inability to complete tasks. She feels her functioning is worse in public – she feels self-conscious, she often forgets what word she wants to use, and her spelling is impaired, to the extent that she often has difficulty composing text messages. 

19. She also gets angry at her children and at times accuses them of not telling her things, but actually it is her memory that is the problem. As well as forgetting things told to her by her children, she often makes mistakes, such as the day and timing of appointments. For example she recently got the time and day of an appointment mixed up with a different engagement, and turned up at the wrong place. This happens not infrequently.

20. Mrs Evans can no longer read a book. As well as the difficulties that result from her visual impairment, she is unable to remember what she read on the first few pages, so it is no longer an enjoyable activity.

21. The ARO allocated five impairment points from Table 7, for impairment of brain function. Ms Forsyth contends the appropriate rating is five. I agree for the reason that the medical evidence is consistent with that of Mrs Evans. Mrs Evans does not satisfy any of the requirements to be allocated more than five impairment points from this table.

    Visual deficit

22. Dr Jai Panchapakesan provided a medical report and covering letter, both dated

    
    

    20 October 2014.[5] Dr Panchapakesan said that Mrs Evans has 80% complete right homonymous hemianopia, which means that she cannot see to the right hand side in both her right and left eyes leaving a large visual deficit and gap.

    [5] Exhibit 3.

23. Mrs Evans is no longer allowed to hold a drivers licence as a result of her visual impairment.

24. Mrs Evans said she uses a computer, usually with the assistance of her children, for periods generally of 10 minutes maximum. She needs to ‘scan’ the screen to see everything. She also needs to continually look at the keyboard when she is using it. She loses track of where she is up to regularly. The process is tiring and she usually stops after only a short period. She does use the computer to check her Centrelink payments and to buy things off eBay. These tasks are usually assisted by her children. It is clear that, largely due to her visual loss, Mrs Evans is incapable of using the computer independently for any significant tasks. Although she does not have an aid to use the computer, it may be the case that she would benefit from one. Ms Forsyth advised me that she has arranged for a Centrelink social worker to assist Mrs Evans, and hopefully this assistance may help Mrs Evans to improve her capacity to use a computer independently.

25. Prior to her injury Mrs Evans enjoyed playing softball. She attempted to return to the sport some months following the CVA; however she was unable to continue playing, due to her fear of being injured. Because of her loss of vision, she could not see other players on the field and was constantly in fear of injury, either from other players or the ball or both. With the assistance of others, she was able to complete a course that allows her to continue involvement in the sport as a scorer. She does not act as a referee – she only records the scores as they are called out to her. Someone else writes down the players’ names for her.

26. Visual impairment is assessed using Table 12. The report of Dr Panchapakesan was not available at the time the ARO made their decision. Ms Forsyth contends the appropriate rating from Table 12 is five points. She argues that Mrs Evans does not require a visual aid or assistive devices, other than spectacles, to use the computer. Whilst Mrs Evans does not use an aid, it does not follow that she does not need one. Currently, she has no aid; she is incapable of independently using a computer for more than 10 minutes.

    
    

    The impairment described by Dr Panchapakesan is consistent with the evidence of the applicant. I find that she meets all of the descriptors for 10 impairment points for visual impairment from Table 12.

    Depression

27. Dr Whittle noted in both of his reports that Mrs Evans has depression secondary to her CVA. His first report referred to counselling having been organised and his second referred to further counselling being anticipated.

28. Ms Forsyth said that from a check on the internet registry, it appears that the psychologist Mrs Evans had previously seen, Ms Sandra Page, is not a registered clinical psychologist. Mrs Evans was distressed by this claim. She said she has been told she is a clinical psychologist.

29. There is no evidence before the Tribunal from either a psychiatrist or a clinical psychologist. As the applicant has 20 impairment points, there was no need to explore the issue of her depression further.

    Capacity to work

30. In his report referred to above, Dr Panchapakesan explained that not having great vision on the right hand side is a much bigger handicap than, for example, losing one eye. He opined that it would be very difficult for the applicant to be safely employed with such vision loss. Certainly industries with hot goods, such as those involving the preparation of food, would be completely unsafe and any industry involving driving, or peripheral vision on the right side, would also not be possible.

31. Ms Forsyth referred to the findings of the Job Capacity Assessment (“JCA”) report. Whilst the JCA assessor opined that Mrs Evans was capable of working eight to 14 hours per week,[6] Ms Forsyth conceded that the JCA assessor had also indicated that

    
    

    Mrs Evans’ conditions were not fully diagnosed, fully treated and fully stabilised, contrary to the findings of the ARO and the SSAT. Ms Forsyth reminded me that the approach was to consider what a person could do, not what they are incapable of doing, when assessing capacity to work.

    [6] Exhibit 1, page 91.

32. Mrs Evans argues that one of the reasons she cannot work is because she cannot drive. She admitted to being able to use public transport and safely walk in public without danger from traffic, however she said if it was the case she was found capable of working, ‘someone will have to pay for a taxi’ for her to commute to work, as she is not allowed to drive. Mrs Evans’ objection to commuting to and from work by public transport was on the basis of expense – she claims she would not be able to afford it.

33. Prior to her CVA, Mrs Evans was working 15 hours a week.

34. I consider the only JCA report before me to be unreliable, for the reasons acknowledged by Ms Forsyth and stated above. As Mrs Evans satisfies the criteria set out in

    
    

    s 94(a) and (b), however there is insufficient evidence to assess her capacity to work. Whilst I recognise the artificiality of the exercise as the relevant period of time –

    
    

    13 weeks following the application – has long passed, I do not consider that is important in this case. That is because the evidence relating to Mrs Evans’ functional impairment resulting from her CVA is that she has improved or stabilised, but certainly not regressed. I consider it likely that her capacity to work as assessed now is sufficiently similar to that which it was during the 13 week period that followed her claim for DSP.

35. Mrs Evans has completed a program of support, so should she be found incapable of working for 15 hours or more a week, she will likely meet all the criteria of

    
    

    s 94 of the Act.

    CONCLUSION

36. Ms Evans has 20 impairment points and satisfies s 94(1)(b). Although she has completed a program of support, there is insufficient evidence for me to decide if she has an incapacity to work. I remit the matter to the respondent, so that the applicant’s capacity to work can be assessed.

    DECISION

37. That part of the decision that found that the applicant did not satisfy s 94(1)(b) is set aside, and in its place is substituted the Tribunal’s finding that Mrs Evans has

    
    

    20 points from the Impairment Tables.

38. The matter is remitted to the respondent for the purpose of assessing the applicant’s capacity to work.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member.

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Associate

Dated 18 December 2014

Date of hearing	18 November 2014
Applicant	In person
Solicitors for the Respondent	Jasmine Forsyth, Department of Human Services