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

Ladley and Secretary, Department of Social Services (Social services second review) [2018] AATA 1346 (23 May 2018)
Division:GENERAL DIVISION
File Number: 2017/0050
Re:Shirley Ladley
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P E Nolan
Date:23 May 2018
Place:Brisbane

The Tribunal affirms the decision under review.
.............................[sgd]......................................
Senior Member P E Nolan
CATCHWORDS
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether Applicant had 20 impairment points – anxiety condition – terminal dysthyroidism – chronic obstructive airways disease – hypertension – hypercholesterolemia – Applicant has 10 impairment points – decision under review is affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
REASONS FOR DECISION
Senior Member P E Nolan
23 May 2018
INTRODUCTION

On 22 February 2016, Shirley Ladley (‘the Applicant’) applied for a Disability Support Pension (‘DSP’) with the Department of Human Services (‘Centrelink’). In the portion of the DSP claim form where the Applicant was to list her disabilities, illnesses or injuries, she wrote:[1]
Blooding [sic] when I cut myself doesn’t stop;
Containally [sic] taking skin off my arms and blood runs everywere [sic]; fall over when getting up from sitting;
Mussel [sic] pain;
Spining [sic] and can’t think. Bad headaches.
[1] Exhibit 1, T Documents, T9 at p. 140, DSP Claim dated 22 February 2016
When listing the medications that she is currently taking, the Applicant also provided that she has:[2]
High BP
Thyroid Trouble
Cholesterol (high).
[2] Exhibit 1, T Documents, T9 at p. 140, DSP Claim dated 22 February 2016
The central issue for the Tribunal to determine is whether the Applicant qualified for DSP on the date of her claim, 22 February 2016, or within 13 weeks thereafter, being up until 23 May 2016 (the ‘Relevant Period’).
HISTORY OF THE MATTER
As stated above, the Applicant lodged a claim for DSP on 22 February 2016. The Applicant’s claim was rejected on 7 July 2016 on the basis that she did not attain an impairment rating of 20 points or more under the Impairment Tables.[3]
[3] Exhibit 1, T Documents, T15 at p. 159, Advice letter – decision to reject DSP dated 7 July 2016
The Applicant sought review by an authorised review officer (‘ARO’), however the rejection decision was affirmed on 30 August 2016.[4] On 7 September 2016, the Applicant sought further review by the Social Security and Child Support Division (‘SSCSD’) of the Tribunal,[5] which affirmed the decision to reject the application on 25 November 2016.
[4] Exhibit 1, T Documents, T17 at p. 163, Authorised Review Officer dated 30 August 2016
[5] Exhibit 1, T Documents, T2 at p. 7, Decision of the Social Services and Child Support Division, dated 24 November 2016
On 4 January 2017, the Applicant lodged an application for review of that decision with the General Division of the Tribunal.[6] The hearing was conducted on 9 February 2018. The Applicant appeared before the Tribunal in person.
[6] Exhibit 1, T Documents, T1 at p. 1, Application for review, dated 4 January 2017
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal to consider can be summarised as follows:
a)whether, during the relevant period, the Applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;
b)whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;
c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support (‘POS’); and
d)whether the Applicant has a continuing inability to work.
Before determining the above, it is convenient to set out the relevant legislative framework.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (‘the Act’) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Social Security (Administration) Act 1999 (Cth) (‘Administration Act’) require that qualification for DSP and assessment of the relevant impairment ratings be determined as at the date of claim, which in this case is 22 February 2016. There is, however, an exception where the person is not qualified on that date but “becomes qualified” within the 13 weeks immediately after lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[7] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 22 February 2016 and 23 May 2016. The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[8]
[7] Sections 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Administration Act; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33]
[8] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[9] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[10] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[11]
[9] Section 26(1) of the Act
[10] Section 5(2), the Determination
[11] Section 6(1), the Determination
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[12] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[13]
[12] Section 6(3), the Determination
[13] Section 6(4), the Determination
In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.[14]
[14] Section 6(5), the Determination
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.[15]
[15] Section 6(6), the Determination
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[16] An impairment rating can only be assigned in accordance with the rating points in each Table.
[16] Section 6(7), the Determination
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepts that the Applicant had an impairment for the purposes of subsection 94(1)(a) of the Act.[17] On the medical evidence before me, I believe that concession to be appropriate.
[17] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, at [17], dated 19 December 2017
I will now consider whether the Applicant’s impairments can attract impairment points under the Tables.
Anxiety
The Respondent contends that the Applicant’s anxiety condition was not diagnosed by a clinical psychologist or psychiatrist, and accordingly cannot be fully diagnosed, treated or stabilised under the Act.[18] The relevant Impairment Table is Table 5 – Mental Health Function. The Introduction to Table 5 sets out:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).[19]
[18] Ibid, at [29]
[19] Introduction to Table 5, the Determination
The Applicant’s anxiety condition was diagnosed by Dr Lean, her GP, with an onset in 2015, as a result of workplace bullying.[20] She was trialled on antidepressant medication in 2015, and is presently prescribed Lexapron. In his medical certificate dated 14 July 2016, Dr Lean advised that the Applicant had become “more psychologically frail, awaking with anxiety and poor mood most days” in recent months. The GP noted that the Applicant required formal counselling under the Mental Health Plan.[21]
[20] Exhibit 2, Secretary’s Statement of Facts and Contentions and List of Authorities, Annexure Two at p. 3, Verification of medical condition(s)
[21] Exhibit 1, T Documents, T16 at p. 162, Medical Certificate dated 14 July 2016
In his medical certificate dated 14 December 2015, another GP, Dr Abha Chikarsal indicated that the Applicant was suffering from “low mood, feeling anxious and stressed, poor sleep [and] poor concentration.”[22] Dr Chikarsal however, reported that the condition was temporary, with a prognosis of less than 3 months.
[22] Exhibit 1, T Documents, T7 at p. 108, Medical information, including medical certificates, clinical notes and Patient Health Summary
The Job Capacity Assessor (JCA), in their report dated 7 July 2016, reported a history of anxiety and stress and noted that the condition was likely to persist for more than 24 months and fluctuate. The JCA concluded that the condition was permanent, however as the diagnosis was not verified or treated by a clinical psychologist or psychiatrist within the Relevant Period, the condition could not be considered to be fully diagnosed, treated and stabilised under the Act.[23]
[23] Exhibit 1, T Documents, T14 at p. 154, Job Capacity Assessment Notice dated 7 July 2016
During the hearing, the Applicant confirmed that her psychological conditions had not been diagnosed by a clinical psychologist or psychiatrist, and agreed that the Tribunal could not assign an impairment rating.
Having regard to the medical evidence before the Tribunal, I accept that the Applicant suffers from an anxiety condition. However, given the lack of evidence from a clinical psychologist or a psychiatrist, I cannot assign an impairment rating in respect of this condition.[24]
[24] Introduction to Table 5, the Determination
Terminal Dysthyroidism (‘Hashimoto’s Disease’)
The Respondent accepts that the Hashimoto’s disease was fully diagnosed, but contends that as the Applicant had not consulted a specialist for some time despite unstable thyroid levels, the condition was not fully treated or stabilised.
The evidence before the Tribunal with respect to the Hashimoto’s Disease consists of medical certificates from Dr Lean, patient health summaries (‘PHS’), and the JCA report compiled in 2016.
Dr Lean reported that this condition was permanent, chronic, and likely to be terminal.[25] The medical certificates provided to the Tribunal indicate that the Applicant had undertaken surgery and medication to treat the condition in the past, however listed no present and future treatment options.[26] In a medical certificate dated 24 April 2017, outside the Relevant Period, Dr Lean reported that the Applicant was currently taking Thyroxine to manage the symptoms, with ongoing monitoring of thyroid function planned for the future.[27]
[25] Exhibit 1, T Documents, T10 at p. 145, Medical Certificate dated 8 March 2016; T12 at p. 148, Medical certificate dated 12 May 2016
[26] Exhibit 1, T Documents, T7 at p. 110, Medical information, including medical certificates, clinical notes and Patient Health Summary; T13 at p. 152, Medical Certificate dated 12 May 2016
[27] Exhibit 2, Respondent’s Statements of Facts, Issues and Contentions dated 19 December 2017, Annexure 1 at p. 2, Additional documents in relation to 2^nd DSP claim lodged 9 March 2017
The JCA report confirmed that the medical evidence indicates the condition was likely to persist for more than 24 months, with a poor prognosis. The JCA concluded that the condition was permanent, however noted that the client had not consulted a specialist despite unstable thyroid levels. The JCA considered the Applicant would benefit from an endocrinologist to ensure optimal management of the condition, and that exhaustion of all treatment options was warranted.[28]
[28] Exhibit 1, T Documents, T14 at p. 154, Job Capacity Assessment Report
During the hearing, when questioned as to whether she had contacted a rheumatologist, the Applicant stated that she had been once, however a rheumatologist could not assist with Hashimoto’s disease as it is not arthritis.
The Respondent directed the Tribunal to the difference between the JCA and the SSCSD’s assessment of the Hashimoto’s disease. The Respondent maintained that as Dr Lean had described the condition as unstable, a specialist review by an endocrinologist would be an appropriate referral. The Respondent referred the Tribunal to Dr Lean’s report dated 25 September 2017, where he reported that a specialist referral was planned for future treatment.[29]
[29] Exhibit 2, Respondent, Statements of Facts, Issues and Contentions dated 19 December 2017, Annexure 2 at p. 3, Verification of medical condition(s)
During cross-examination, the Applicant gave evidence that the condition was so described as ‘unstable’ due to the different levels of thyroxine that she requires over any period of time, and means that she has to constantly monitor her medication intake accordingly. The Applicant confirmed that her condition is deteriorating, and will continue to deteriorate, as it is chronic and terminal.
Dr Lean’s report of 25 September 2017 is dated outside of the Relevant Period, and I am therefore satisfied that a specialist referral was not considered necessary during the Relevant Period. In light of the medical evidence before the Tribunal, I consider the condition to be fully diagnosed, treated and stabilised and accordingly can attract an Impairment Rating.
The Relevant Table is Impairment Table 1 – Functions requiring Physical Exertion and Stamina. The Respondent contends that the Applicant has at most, a mild functional impairment, warranting 10 points.[30]
[30] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 19 December 2017 at [38]
To attract 10 points, Table 1 stipulates that the Applicant:[31]
[31] Table 1, the Determination
a. experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
i.is unable to walk (or mobilise in a wheelchair) fair outside the home and needs to drive or get other transport to local shops or community facilities; or
ii.has difficulty performing day to day household activities; and
b.is able to:
i.use public transport and walk around a shopping centre or supermarket; and
ii.perform work-related tasks of a clerical, sedentary or stationary nature
To attract 20 points, Table 1 stipulates that the Applicant:
a.usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
i.walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
ii.walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
iii. use public transport without assistance; or
iv.perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
b.has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours[32].
[32] Table 1, the Determination
In the medical certificates dated 8 March 2016, 20 April 2016, 9 May 2016 and 14 July 2016, Dr Lean listed the Applicant’s symptoms as comprising of excessive fatigue, poor concentration, poor stamina and weakness. He further reported that the Applicant was unfit for any work as she would be a “liability for any employer.” [33]
[33] Exhibit 1, T Documents, T10 at p. 145, Medical Certificate dated 8 March 2016; T11 at p. 147, Patient Health Summary and Medical Certificate dated 27 April 2016; T12 at p. 148, Medical certificate dated 12 May 2016; T16 at p. 162, Medical Certificate dated 15 July 2016
The JCA accepted that the Applicant had a temporary reduced work capacity of 0-7 hours per week and a baseline work capacity of 8-14 hours per week. The JCA was of the opinion that, with intervention, the Applicant’s future work capacity was 15-22 hours per week.[34]
[34] Exhibit 1, T Documents, T14 at p. 157, Job Capacity Assessment Notice dated 7 July 2016
During the hearing, the Applicant gave evidence that she has memory lapses, and swelling of her face and neck. She stated that she gets muscle spasms, as well as muscle and joint pain which make it hard for her to go anywhere. The Applicant stated that she requires someone to accompany her at all times.
The Applicant confirmed that during the Relevant Period, she was easily fatigued, weak and suffered regular body pain. She confirmed that if she sat down even for a short period of time, she easily fell asleep. When questioned, the Applicant stated that the only treatment is thyroxine medication, which supplies the body with the hormone as her thyroid has been removed.
The Applicant told the Tribunal that her legs constantly ache, and that she bruises very easily. She confirmed that she always loses her balance and “cracked [her] knee falling over in the shopping centre when out shopping.” The Applicant confirmed that she takes her son with her when shopping, because she is concerned about falling over and to assist with her memory. She confirmed that she does not use a wheelchair or walker, but leans on the shopping trolley to walk. The Applicant further provided that she is unable to walk from the carpark to the shopping centre without assistance. The Applicant confirmed that she needed assistance when using public transport, and has difficulty performing most day to day household activities.

During cross-examination, the Applicant gave evidence that she does not use public transport at all, but clarified that this was due to the lack of public transport facilities within a reasonable proximity to her home.
While the Applicant gave evidence that she takes her son to the shopping centre with her, she did also indicate that she can walk around a shopping centre unassisted as she leans on the trolley. Further, there is no medical evidence that corroborates a severe functional impact and self-report of symptoms alone is insufficient.[35]
[35] Introduction to Table 1, the Determination
Having regard to the medical evidence before the Tribunal, and the Applicant’s oral evidence during the hearing, I believe that an Impairment Rating of 10 points is appropriate in the circumstances.
Chronic Obstructive Airways Disease (‘COAD’)
The Respondent accepts that the Applicant has suffered from COAD since at least 2011, and that the condition is fully diagnosed. However, the Respondent contends that the condition is not fully treated or stabilised, and therefore cannot be assigned an impairment rating under the Act.
There is a scarcity of medical evidence available to the Tribunal in respect of COAD. The evidence that exists consists of PHS, a medical certificate from Dr Lean dated 9 May 2016 and the JCA report.
The PHS dated 19 February 2016 provided that the Applicant has experienced COAD since 2006,[36] whereas the PHS of 21 April 2016 lists COAD as being active since 14 September 2011.[37]
[36] Exhibit 1, T Documents, T7 at pg. 111, Patient Health Summary dated 19 February 2016
[37] Exhibit 1, T Documents, T11 at pg. 147, Patient Health Summary and medical certificate dated 27 April 2016
In the medical certificate dated 9 May 2016, Dr Lean provided that COAD was a secondary condition of the Applicant’s Hashimoto’s Disease, and noted that the condition was permanent. The medical certificate indicated that no current or future treatment was planned.
The JCA commented, relevantly:[38]
Current treatment: None noted in medical evidence. The client reported managing           her symptoms with an inhaler (Ventolin) as required.
…
Prognosis: Medical evidence (9/5/2016) indicates condition is likely to persist for more than 24 months. The condition is therefore considered permanent.
As the client has note [sic] engaged in specialist review to assess the severity of condition and determine suitable treatment, the condition cannot be considered        fully treated and stabilised.
[38] Exhibit 1, T Documents, T14 at p. 155, Job Capacity Assessment Notice dated 7 July 2016
During the hearing, the Applicant confirmed that she used to smoke but has since quit. She testified that she has problems breathing, for which she has a Ventolin spray. The Applicant also stated that she consulted a specialist at the Royal Brisbane Hospital in December 2017, and had an appointment on 27 February 2018. The Applicant confirmed that during the Relevant Period, she did not engage a specialist for COAD.
Having regard to the medical evidence before me and the Applicant’s oral evidence, I am satisfied that COAD is fully diagnosed. However, as noted above, there is no medical evidence during the Relevant Period to indicate that the condition is fully treated or stabilised. The Introduction to Table 1 directs that self-report alone is insufficient and accordingly,[39] I am bound to conclude that the condition is not fully treated or stabilised. Therefore, no impairment rating can be assigned.
[39] Introduction to Table 1, the Determination
Hypertension and Hypercholesterolemia
The Respondent concedes that the Applicant has suffered from Hypertension since 2007 and Hypercholesterolemia since 2010, and that the conditions are fully diagnosed, treated and stabilised.[40] Having regard to the evidence before me, I accept that this is appropriate.
[40] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 19 December 2017 at [47]
The JCA noted that there is no medical evidence of symptomology; however the Applicant reported episodic headaches due to unstable blood pressure.[41] The JCA further reported that the Applicant was being treated with Coveram and Crestor for her hypertension and hypercholesterolemia respectively, as corroborated by the PHS.[42] However, as noted by the JCA, there is no evidence of any functional impairment that is caused by either condition.[43]
[41] Exhibit 1, T Documents, T14 at p. 155, Job Capacity Assessment Notice dated 7 July 2016
[42] Exhibit 1, T Documents, T7 at p. 111, Patient Health Summary dated 19 February 2016
[43] Exhibit 1, T Documents, T14 at p. 155, Job Capacity Assessment Notice dated 7 July 2016
During the hearing, the Applicant testified that her hypertension makes her feel as if she cannot cope, and causes headaches. However, given the lack of evidence available in relation to the functional impact these conditions have on the Applicant, I am bound to attribute 0 points to the Applicant in respect of her hypertension and hypercholesterolemia.
Conclusion on Points
I have found that the Applicant’s anxiety condition and COAD condition cannot be assigned an impairment rating under the Tables. I have found that the Applicant’s Hashimoto’s Disease is fully diagnosed, treated and stabilised. On the basis of the evidence before the Tribunal, I have assigned the Applicant’s Hashimoto’s disease a rating of 10 points under Table 1. I have found that the Applicant’s hypertension and hypercholesterolemia are fully diagnosed, treated and stabilised. On the basis of the lack of evidence before the Tribunal, I have assigned an impairment rating of 0 points under Table 1.
Continuing Inability to Work
The Respondent accepts that the Applicant has completed the requisite Program of Support requirements. Nevertheless, as the Applicant has not attained an aggregate of 20 points under any of the Impairment Tables, it is unnecessary for me to consider whether she has a continuing inability to work.
DECISION
The Applicant does not qualify for DSP. Accordingly, the decision under review is affirmed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

..............................[sgd].....................................
Associate
Dated: 23 May 2018

Date of hearing: 9 February 2018

Applicant: In person

Advocate for the Respondent: Mr Rick McQuinlan

Solicitors for the Respondent: Department of Human Services

[2012] AATA 922 at [34]

[2018] AATA 1346

23 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	9 February 2018
Applicant:	In person
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services