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

[2022] AATA 498

Leitch and Secretary, Department of Social Services (Social services second review) [2022] AATA 498 (22 March 2022)

Division:GENERAL DIVISION

File Number:2021/1178          

Re:Kirsten Leitch

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Member R Maguire

Date:22 March 2022

Place:Brisbane

The reviewable decision made by the AAT1, dated 1 February 2021, is affirmed.

.............[SGD]...............

Member R Maguire

Catchwords

SOCIAL SECURITY – Disability Support Pension – whether Applicant suffered a physical, intellectual or psychiatric impairment – where Applicant suffers from spinal, upper and lower limb, mental health and heart conditions – whether conditions fully diagnosed in the qualification period – whether conditions fully treated and stabilised in qualification period – whether Applicant’s impairment is 20 points or more under the Impairment Tables – whether the Applicant has a continuing inability to work – whether Applicant participated in Program of Support – where overall impairment arising from fully diagnosed, fully treated, and fully stabilised conditions is nil points – decision under review 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 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

Secondary Materials

Social Security Guide 2020

REASONS FOR DECISION

Member R Maguire

22 March 2022

1. On Monday 13 January 2020, the Applicant lodged a claim for the Disability Support Pension (“DSP”)[1] in which she listed her disabilities[2] as:

   (a)PTSD;

   (b)Servere (sic) Heart chronic condition

   (c)High Blood pressure;

   (d)Respiratory failure;

   (e)Waiting on need knee reconstruction.

   [1] Exhibit 1, Section 37 T Documents, T22, page 112.

   [2] Ibid, page 137.

2. At Question 176 of her claim form, the Applicant ticked Yes[3] in response to the question, “Are you expecting to have future treatment for your disability or medical condition?” and described the type of treatment as being an, “operation on [her] knee”.

   [3] Ibid, page 139

3. On 11 May 2020, a Job Capacity Assessment (JCA) report was completed by a registered psychologist, with contribution by a registered occupational therapist, which made the following recommendations:[4]

   (a)The conditions of Chronic Obstructive Pulmonary Disease (herein referred to as ‘COPD’) and dilated cardiomyopathy were fully diagnosed, treated and stabilised and gave rise to a common impairment rating attracting 10 points under Table 1 of the Impairment Tables;

   (b)The condition of PTSD was not fully diagnosed, treated, and stabilised;

   (c)The left knee condition was not fully diagnosed, treated, and stabilised; and

   (d)Work capacity was 15-22 hours per week within two years, with intervention in light, less-skilled employment.[5]

   [4] Ibid, T32, pages 158 to 168.

   [5] Ibid, page 158.

4. On 12 May 2020, the Department rejected the Applicant’s claim for the DSP.[6]

   [6] Ibid, T33, page 169.

5. On 6 October 2020, the Applicant requested review of that decision.[7]

   [7] Ibid, T38, page 180.

6. On 15 October 2020, an Authorised Review Officer (“ARO”) affirmed the decision to reject the Applicant’s claim for the DSP.[8]

   [8] Ibid, T42, pages 185 to 189.

7. On 1 February 2021, the Social Services and Child Support Division (“AAT 1”) affirmed the decision to reject the Applicant’s claim for the DSP.[9]

   [9] Ibid, T2, pages 5 to 10.

8. On 26 February 2021, the Applicant applied to the General Division of the Administrative Appeals Tribunal for further review of the decision to reject her DSP claim.[10]

   [10] Ibid, T1, pages 1 to 4.

9. This matter was heard by the Tribunal on 8 October 2021 with the Applicant being self-represented, and the Respondent being represented by Ms Underhill from Services Australia.

10. The Tribunal admitted exhibits as per the attached Exhibit Register, marked as Annexure A to these reasons.

    THE LAW

11. The relevant law in assessing a person’s qualification for the DSP is found in the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“the POS Determination”).

12. The relevant policy is contained in the Guide to Social Security Law.[11]

    [11]    Social Security Guide 2020 <>

    The Administration Act requires that in order to receive DSP payments, an Applicant must be qualified for DSP either on the date of application, or become so qualified at some stage within the period of 13 weeks following[12] (“the Qualification Period”). The Tribunal finds that this period commenced on 13 January 2020.

    [12]    Social Security Administration Act 1999 (Cth), Schedule 2, Clause 4. Discussed by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, and cases cited therein.

13. Section 94 of the Act prescribes the criteria that must be met during the qualification period in order to receive the DSP payment. For present purposes, the relevant part of this section is:

    94  Qualification for disability support pension

    (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 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;

    …

14. The qualification criteria set out in subsection 94(1) is conjunctive, and if one element is not satisfied, a person will not be qualified for the DSP.

15. The Impairment Tables referred to in section 94 are set out in the Determination, made under section 26 of the Act, which came into force on 1 January 2012.

16. The Determination defines “impairment” as:[13]

    … a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.

    [13]    Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth), section 3.

17. Section 5(2) of the Determination provides:

    (2)      The Tables:

    (a) unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

    (b) are function based rather than diagnosis based; and

    (c) describe functional activities, abilities, symptoms and limitations; and

    (d) are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

18. The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do, or what others do for the person.[14]

    [14] Ibid, section 6(1).

19. The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[15]

    [15] Ibid, section 6(2).

20. An Impairment Rating can only be assigned to an impairment if the condition causing that impairment is permanent,[16] and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than two years.[17]

    [16] Ibid, section 6(3)(a).

    [17] Ibid, section 6(3)(b).

21. Section 8 of the determination is headed, “Information that must not be taken into account in applying the Tables”. Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating medical evidence.[18] Moreover, unless required under the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[19] The Table provides the following example in this regard:

    Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.

    [18] Ibid, section 8(1).

    [19] Ibid, section 8(2).

22. The Determination provides that a condition is regarded as permanent, if it has been fully diagnosed by an appropriately qualified medical practitioner; and has been fully treated; and the condition has been fully stabilised; and the condition is more likely than not in light of available evidence to persist for more than two years.[20]

    [20] Ibid, section 6(4).

23. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next two years.[21]

    [21] Ibid, section 6(5).

24. A condition is considered to be fully stabilised[22] 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 two 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 two 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.

    [22] Ibid, section 6(6).

25. Reasonable treatment is treatment that is: available at a location reasonably accessible to the person; is at 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.[23]

    [23] Ibid, section 6(7).

26. The Determination sets out that, in selecting the applicable Table,[24] it is necessary to:

    (a)identify the loss of function; then

    (b)refer to the table related to the function affected; then

    (c)identify the correct impairment rating.

    [24] Ibid, section 10.

27. The Tables provide for the allocation from points from 0 to 30 depending on the severity of impairment. In essence, these are as follows:

    0 pointsNo functional impact

    5 pointsMild functional impact

    10 pointsModerate functional impact

    20 points Severe functional impact

    30 pointsExtreme functional impact.

28. In assessing impairments where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[25]

    [25] Ibid, sub-sections (3) to (4).

29. Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[26]

    [26] Ibid, sub-sections (5) to (6).

30. An Impairment Rating can only be assigned in accordance with the rating points in each Impairment Table; it cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied, and a rating cannot be assigned in excess of the maximum rating specified in each Table.[27]

    [27] Ibid, section 11.

31. In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support; and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

32. A person’s impairment is considered to be a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[28]

    [28]    Social Security Act 1991 (Cth), section 94(3B).

33. The Administration Act sets out that qualification for the DSP, and therefore assessment of the relevant impairment ratings are to be determined at the date of claim, or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for the DSP is the date the person becomes qualified.[29]

    [29] Ibid, sections 41 to 42; Schedule 2, Part 2, clauses 3 and 4(1).

    Submissions – Respondent

34. The Respondent submitted that as the Applicant lodged her application for DSP on 13 January 2020, the qualification period ran from that date until 13 April 2020.[30] This was not disputed by the Applicant.

    Does the Applicant suffer a physical, intellectual or psychiatric impairment –           section 94(1)(a) of the Act?

    [30]    Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, paragraph 15.

35. The Respondent has accepted[31] that the Applicant has impairments, and that paragraph 94(1)(a) of the Act was satisfied during the qualification period.

    Do the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(c) of the Act?

    Table 1 Functions requiring physical exertion and stamina

    [31]    Ibid, page 5, paragraph 30.

    COAD and Dilated Cardiomyopathy

36. The Secretary accepted that the Applicant’s conditions of COAD and dilated cardiomyopathy were fully diagnosed treated and stabilised during the qualification period, noting that these conditions were being treated with medication and specialist management and that no further treatments or interventions were being considered.[32]

    [32]    Ibid, page 6, paragraph 32.

37. These conditions were to be  assessed under Table 1 and the appropriate impairment rating was 10 points, based on the following evidence:

    (a)A report, dated 9 October 2019, from General Practitioner (GP) Dr Masoud Shasti, who reported that the Applicant was a long-term smoker and had breathing difficulties;[33]

    (b)A report, dated 20 March 2020, from Dr Carmel Martin who reported symptoms of chest pain, reduced exercise tolerance, cough, dyspnoea and recurring chest infections;[34]

    (c)A report, dated 20 April 2020, from Cardiologist Dr Arnold Ng, who reported mild external dyspnoea (i.e., shortness of breath);[35]

    (d)The Applicant’s reporting[36] to the Job Capacity Assessor on 11 May 2020 that she: had shortness of breath with exertion when walking more than 300 metres, used stairs, carried heavier parcels (e.g., shopping bags) and undertook heavier household tasks (e.g., vacuuming, making beds) and was assisted by her daughter with heavier day-to-day tasks.

    (e)The Applicant’s reporting[37] to AAT1 that she is able to use public transport when needed, can climb staircases and perform a variety of household tasks, albeit at a slow pace.  She reported interstate travel by air in Christmas 2020 where she was able to mobilise to the airport unassisted, albeit with a family member carrying her bags.

    [33] Exhibit 1, Section 37 T Documents, T19, pages 107 to 109.

    [34] Ibid, T25, page 147.

    [35] Ibid, T27, page 151.

    [36] Ibid, T32, page 158.

    [37] Ibid. T2, pages 5 to 10.

38. In order to be allocated a higher rating of 20 points under Table 1, the Applicant would need to show there is a severe functional impact on activities requiring physical exertion or stamina, and that she:

    (a)usually experiences symptoms (e.g., shortness of breath, fatigue, cardiac pain) when performing light physical duties and, due to the symptoms, she 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 car park 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, sit entry or stationary nature for a continual shift of at least three hours.

39. There is ample evidence that this Applicant does suffer functional impairment as a consequence of her chronic obstructive airway disease and dilated cardiomyopathy. However, the totality of the evidence does not support a severe Impairment Rating of 20 points for this condition, based on the requirements outlined in paragraph 39 of these reasons.

40. The evidence shows that the Applicant is able to use public transport when needed, climb staircases, as well as perform a variety of household tasks, “at her own pace”. She was able to travel to Tasmania by a commercial airline and was able to walk around the airport and mobilise herself on the plane.

41. There is not sufficient evidence before the Tribunal to allow it to assign 20 points for this condition, as at the date of claim. The Tribunal finds that there is sufficient evidence however to assign 10 points under Table 1.

    Table 5 – Mental Health Function

    Post-traumatic stress disorder

42. In order to assign a rating to an impaired mental health function under Table 5, the determination requires that:

    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.)

43. There is no evidence before the Tribunal that the claimed condition has been diagnosed by a psychiatrist, or an appropriate qualified medical practitioner with evidence from a clinical psychologist.

44. In these circumstances, the Tribunal is unable to find that the Applicant’s claimed condition can be considered fully diagnosed, fully treated and fully stabilised, and therefore a permanent condition at the date of claim under the terms of the legislation.

45. The Tribunal therefore is unable to assign points, or an Impairment Rating under Table 5.

    Table 3 – Lower Limb Function

    Left knee pain

46. The Applicant’s response to Question 176 in her application form makes it clear that as at the date of her application, she was expecting to have future treatment – namely, an operation on her knee.

47. Moreover, Dr Martin’s report of 20 March 2020 makes it clear that at that time the Applicant was waiting for an assessment from an orthopaedic surgeon. Dr Martin’s oral evidence before the Tribunal was to the effect that the Applicant’s knee condition is worse now than it was during the qualification period.

48. It is clear that the Applicant has been advised that surgical intervention is unavailable to her, as a consequence of her other health conditions. Unfortunately, the Tribunal does not have the benefit of any medical evidence regarding other treatment options, including allied health services. Neither is there any medical evidence available about the prognosis for her condition. Whilst the Tribunal is left in little doubt that the Applicant does suffer a knee condition, there is insufficient evidence before the Tribunal to allow to be satisfied that this condition can be considered fully treated and fully stabilised and therefore a permanent condition during the Qualification Period. This finding is reinforced by Dr Knighton’s oral evidence that the Applicant’s knee condition has continued to deteriorate.

1. The Tribunal is therefore unable to assign points, or an Impairment Rating under Table 5.

   Overall impairment rating

2. Having regard to the foregoing, the Tribunal finds that the Applicant’s overall Impairment Rating arising from fully diagnosed, fully treated and fully stabilised conditions is 10 points. Therefore, the Applicant does not satisfy section 94(1)(b) of the Act.

3. In view of this finding, it is unnecessary to consider whether or not the Applicant has a continuing inability to work, for the purposes of subparagraph 94(1)(c) of the Act.

4. For the above reasons, the decision made by the AAT1, dated 1 February 2021, is affirmed.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

...............[SGD]................

Associate

Dated: 22 March 2022

Date of hearing:	8 October 2021
Applicant:	Self-represented (By telephone)
Solicitors for the Respondent:	Ms Maleah Underhill (Services Australia)

ANNEXURE A – EXHIBIT REGISTER