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

[2017] AATA 395

Leach and Secretary, Department of Social Services (Social services second review) [2017] AATA 395 (30 March 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4417

Re:Larry Leach

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A F Cunningham

Date:30 March 2017

Place:Hobart

The Tribunal affirms the decision under review.

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Senior Member A F Cunningham

Catchwords

SOCIAL SERVICES - Disability Support Pension – qualification requirements – claimed conditions of shoulder arthritis, chronic depression, substance abuse, arthritis of cervical and lumbar spine and disc degeneration, codeine dependency, skin condition – total impairment rating of 10 points – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1991
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Senior Member A F Cunningham

30 March 2017

1. The applicant, Larry Leach seeks the review of a decision of the Social Services and Child Support Division of the AAT (first-tier review) made on 21 July 2016 which affirmed a decision not to grant his claim for disability support pension (DSP). The first-tier reviewer found that Mr Leach did not satisfy the qualification requirements for DSP and in particular, found that his conditions attracted an impairment rating of only 10 points.

2. Mr Leach appeared on his own behalf and via telephone link. Mr Leach submitted two further documents in support of his application for review; namely a letter from Lifestyle Solutions dated 6 December 2016 and a medical report from Dr Pitt dated 12 October 2016. The Secretary was represented by Mr Sparkes. The T documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

   ISSUE

3. The issue for the Tribunal to determine is whether Mr Leach met the qualification requirements for DSP within the qualification period.

   LEGISLATION

4. The qualification requirements for DSP are contained in subsection 94(1)(a), (b), (c), (d), (e) and (ea) of the Social Security Act 1991 (the Act). The provisions provide as follows:

   “(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

   (d)the person has turned 16; and

   (da)     in a case where the following apply:

   (i)the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;

   (ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market;

   (iii)if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e)the person either:

   (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)  is not an Australian resident; and
      (B)  is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea)one of the following applies:

   (i)the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.”

5. The requirements set out in subsection 94(1) are conjunctive, and a failure to satisfy any one will result in a failure to qualify for DSP.

6. Other relevant legislation is contained in the Social Security (Administration) Act 1991 (Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination). Also of relevance is government policy as set out in the Guide to Social Security Law.

7. Sections 41, 42 and Schedule 2, clause 3 of the Administration Act provide that the qualification period derives from the date of the claim for DSP, being 15 August 2015, and extends through a period of 13 weeks – that is until 15 November 2015. Thus qualification since, or prior to that time, is an irrelevant consideration. If a person becomes qualified outside of that timeframe, a new claim would need to be lodged.

   CONSIDERATION

8. The Secretary concedes that the applicant satisfies subsections 94(1)(a), (d) and (e) but not subsections (b) or (c). The Secretary accepts that the applicant’s condition of shoulder arthritis has been fully diagnosed, treated and stabilised such as to attract an impairment rating under Table 2 of the Impairment Tables. It is the Secretary’s contention that none of the other conditions diagnosed by Dr Pitt and referred to in the Medical Report accompanying Mr Leach’s application for DSP can be considered “permanent” within the meaning of the Impairment Tables, in that they are not fully diagnosed, treated and stabilised.

9. The Secretary notes that Dr Pitt identifies the applicant’s conditions of arthritis of the cervical and lumbar spine and disc degeneration, codeine dependency and skin condition as being “generally well-managed” and causing minimal or limited impact on ability to function.[1]

   [1] T5 at page 21 of the T documents.

10. With respect to the applicant’s condition of chronic depression, diagnosed in 2007 by a psychologist, Dr Pitt reports current symptoms as “anxiousness, short-term memory … tired … depressed psyche, acopia, withdrawn, substance-abuse.” Dr Pitt reports further that the underlying causes relate to chronic pain and depression from the right shoulder injury. Impact on ability to function is described as “difficulty coping” and the impact was expected to persist for more than 24 months and fluctuate.

11. Mr Leach was referred to Dr Ty Dawson who reported to Dr Pitt on 25 February 2015.[2] In that report Dr Dawson stated that:

    “A trial of antidepressant medication definitely seems warranted. Unfortunately Larry is highly reluctant though we did not get to explore the source of his reluctance in any detail. I have advised him to discuss this further with yourself.….”

    “In terms of treatment, I hope to engage Larry in some form of CBT for the management of mood and possibly alcohol abuse if he is motivated with respect to the latter. A trial of Eye Movement Desensitisation and Reprocessing (EMDR) for pain reduction/control is another option. Prognosis is guarded however as Larry’s difficulties appear complex and chronic in nature, and motivation and psychological mindedness remains relatively untested. I hope that he will come around to a trial of antidepressants should you be inclined to offer same [sic].”

    [2] T4 at pages 10 and 11 of the T documents.

12. The Job Capacity Assessor relied on Dr Dawson’s report as well as the applicant’s advice to find that the applicant’s condition of depression, whilst fully diagnosed, was not fully treated or fully stabilised such as to attract an impairment rating. The Job Capacity Assessment Report[3] states that the client confirmed the contents of Dr Dawson’s report and noted that he had undertaken three sessions with the clinical psychologist to date and was taking Avanza medication. The report went on to state:

    “[Mr Leach] noted impacts include poor sleep, mood fluctuations, panic symptoms at times, social withdrawal, may not respond to phone calls and avoids shopping. He noted difficulty recalling names, dates and uses checklists/calendar. He has difficulty with concentration and he has difficulty concentrating to watch a television programme.”

    The Assessor commented that Mr Leach is able to use public transport independently and can become mentally tired and need to rest during the day.

    [3] T7 at page 53 of the T documents.

13. In order to qualify for DSP a person must have at least 20 points of impairment under the Impairment Tables (subsection 94(1)(b) of the Act) and a continuing inability to work (CITW), meaning an inability to work at least 15 hours a week or to be retrained to do so within 24 months of the claim (subsection 94(1)(c) of the Act).

14. The Job Capacity Assessor considered that Mr Leach’s shoulder arthritis condition satisfied the criteria under Table 2 for a 10 point impairment rating. Those criteria read as follows:

    “There is a moderate functional impact on activities using hands or arms.

    (1)       The person has difficulty with most of the following:
               (a)       picking up a 1 litre carton full of liquid;

    (b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

    (c)       holding and using a pen or pencil;

    (d)       doing up buttons or tying shoelaces;

    (e)       using a standard computer keyboard;

    (f)        unscrewing a lid on a soft-drink bottle.”

15. The  criteria for a 20 point impairment rating are as follows:

    “There is a severe functional impact on activities using hands or arms.

    (1)       Most of the following apply to the person:

    (a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

    (b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

    (c)the person has difficulty using a computer keyboard despite appropriate adaptations;

    (d)the person has severe difficulty using a pen or pencil;

    (e)the person has severe difficulty turning the pages of a book without assistance.”

16. No evidence was given by Mr Leach to support the criteria for a severe functional impact. Mr Leach relies on the report of Dr Pitt dated 12 October 2016 which notably postdates his application for DSP. In Dr Pitt’s report he summarises the medical evidence which he considers reflects the severity of Mr Leach’s incapacity, and concludes as follows:

    “Therefore, I conclude that he achieves an impairment rating of 20 points with ease.”

    Dr Pitt describes the physiological nature of the condition, the resulting chronic pain and depression, aggravation of the injury as a result of heavy lifting and a recommendation in July 2006 for light duties with permanent restrictions. Dr Pitt, however, does not address the relevant functional criteria in Table 2 and his chronology of events does not support a 20 point impairment rating. Further, it is not clear whether Dr Pitt has only considered the impacts from Mr Leach’s shoulder condition in his assessment or whether he has also included his chronic pain and depression.

17. There was no evidence of functional incapacity upon which a 20 point impairment rating could be allocated and the Tribunal accepts the Job Capacity Assessor’s impairment rating of 10 points.

18. The second condition referred to by Dr Pitt in his medical report which accompanied Mr Leach’s application for DSP is chronic depression. It is contended by the Secretary that although diagnosed, this condition has not been fully stabilised or treated. The Job Capacity Assessor noted that treatment with a clinical psychologist had recently commenced and further treatment modalities are suggested. The Job Capacity Assessor relies on the report from Dr Dawson to Dr Pitt dated 25 February 2015, relevant extracts of which are outlined above.

19. Mr Leach maintains that his depressive condition is long-standing, having been originally diagnosed in 2007. It was his evidence that after three consultations with Dr Dawson he did not consider that his condition had improved. Mr Leach said that he had not been very cooperative during the appointments and did not fully disclose all of the issues that were troubling him.

20. The Tribunal finds that at the time of Mr Leach’s application for DSP the evidence was that further treatment was recommended for Mr Leach’s depressive condition, both in terms of antidepressant medication and some form of CBT for the management of mood and possibly alcohol abuse. Another recommendation from Dr Dawson was Eye Movement Desensitisation and Reprocessing for pain reduction/control. Mr Leach admits that he was not fully cooperative at the time of his consultations. The Tribunal considers that it is possible that with cooperation with respect to the treatments suggested by Dr Dawson, there could be some improvement in his condition.

21. For these reasons the Tribunal agrees with the conclusions of the Job Capacity Assessor that, at the time of his application for DSP, Mr Leach’s depression condition was not fully treated or fully stabilised such as to attract an impairment rating under the tables.

22. In his medical report, Dr Pitt reports that the other conditions of arthritis of the cervical and lumbar spine and disc generation, codeine dependency, skin rashes and elevated PSA’s are generally well managed and cause minimal or limited impact on ability to function. The first-tier reviewer noted that Mr Leach had agreed with Dr Pitt’s assessments and Mr Leach gave no evidence to the contrary before the Tribunal.

23. These conditions were considered in the Job Capacity Assessment report and the Tribunal accepts the findings of the Job Capacity Assessor who is a social worker with appropriate qualifications as a rehabilitation counsellor.

24. In a report from Dr Pitt dated 5 March 2016 he states that Mr Leach was recently diagnosed with prostate cancer and will no doubt need treatment. The report further states “clearly he is unemployable and placed in certain settings would be a risk to himself and others”. There is no other information regarding Mr Leach’s prostate cancer, and as it was diagnosed outside of the qualification period, it cannot be considered with respect to the subject application for DSP.

25. There are no other reported diagnosed medical conditions that can be considered permanent in that they are fully diagnosed, fully treated and fully stabilised such as to attract an impairment rating under the Impairment Tables. The total impairment rating of 10 points for Mr Leach’s shoulder arthritis does not meet the qualification requirement of 20 points under the Act.

26. Whilst Dr Pitt has stated that Mr Leach is clearly unemployable, there is no evidence that he has addressed the relevant criteria under the Act. Section 94(2) sets out the legislative requirements for a CITW. The first requirement is that the impairment must prevent the person from working for at least 15 hours a week (or being retrained to do so) and secondly, if the person does not have a severe impairment (i.e. 20 points from a single table), there must be evidence of active participation in a programme of support (POS). The term “work” is not restricted to the kind of work that the person was previously undertaking.

27. The evidence is that Mr Leach is not severely impaired as that term is defined under the Act and, accordingly, he is required to have participated in a POS. The evidence at T3 indicates that at the time of his claim on 18 August 2015, Mr Leach had participated in a POS for a total period of 10 months. Accordingly he did not satisfy the POS requirement of active participation for a total period of 18 months.

    DECISION

28. In accordance with the above findings that Mr Leach did not satisfy the qualification requirements for DSP during the relevant qualification period, the Tribunal affirms the decision under review.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A F Cunningham

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Associate

Dated: 30 March 2017

Date(s) of hearing:	23  February 2017
Applicant:	In person
Counsel for the Respondent:	Mr Brian Sparkes