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

[2024] AATA 594

Lim and Secretary, Department of Social Services (Social services second review) [2024] AATA 594 (4 April 2024)

Division:GENERAL DIVISION

File Number:2023/3892          

Re:Ms Channa Lim  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Tribunal:Senior Member B. Pola

Date:4 April 2024

Place:Brisbane

DECISION

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division, dated 5 May 2023, to reject the applicant’s claim for the Disability Support Pension.

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

Senior Member B. Pola

CATCHWORDS

SOCIAL SERVICES – Eligibility for Disability Support Pension – Appeal of decision of Social Services and Child Support Division – where impairments related to spinal condition – where treatment processes and specialist intervention post-dates Qualification Period – section 94(1)(b) of Social Security Act 1991 (Cth) not satisfied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (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 Act 1991 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Senior Member B. Pola

4 April 2024

BACKGROUND

1. On 4 May 2022, the applicant, Ms Channa Lim, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Centrelink[1].

   [1] Exhibit TR1, T13, pages 120 to 130.

2. On 13 May 2022, the applicant was advised by Services Australia that her claim for the DSP was rejected[2].

   [2] Exhibit TR1, T28, page 281.

3. The decision to reject the applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by Services Australia on 5 September 2022[3].

   [3] Exhibit TR1, T19, pages 144 to 151.

4. The applicant applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’), to review Centrelink’s decision to reject her claim for the DSP.

5. On 5 May 2023, the SSCSD of the Tribunal affirmed the decision to reject the applicant’s claim for the DSP[4].

   [4] Exhibit TR1, T2, pages 7 to 9.

6. The applicant applied to the General Division of the Tribunal for a second review of this decision on 3 June 2023[5].

   [5] Exhibit TR1, T1, pages 1 to 6.

   JURISDICTION

7. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed an earlier decision of the respondent to reject the applicant’s claim for the DSP.

8. The applicant’s claim of 4 May 2022 has been reviewed in accordance with section 135 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’) by an ARO, as per the decision dated 5 September 2022. The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published its reasons on 5 May 2023.

9. In accordance with section 179(1) of the Administration Act, the Tribunal therefore has jurisdiction to review the applicant’s DSP claim of 4 May 2022.

   ISSUES

10. The issue before the Tribunal for consideration is whether the applicant was qualified to receive the DSP in relation to her claim lodged on 4 May 2022 and ending 13 weeks later, on 3 August 2022 (herein referred to as the ‘Qualification Period’)[6].

    [6] The Qualification Period is discussed in later paragraphs of this decision.

11. The issues for the Tribunal to determine in respect of the applicant’s claim for the DSP is:

    (a)Whether the applicant had impairment(s) during the Qualification Period in accordance with section 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as the ‘Act’)?

    (b)Whether the applicant’s impairment(s) attract 20 points or more under the Impairment Tables, contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)[7] (herein referred to as the ‘Determination’) within the Qualification Period for the purpose of section 94(1)(b) of the Act? 

    (i)If so, did the applicant have a continuing inability to work as defined in section 94(2) of the Act, for the purpose of section 94(1)(c) of the Act?

    [7] The Tribunal notes a new Determination took effect from 1 April 2023, but for the purposes of the present

    RELEVANT LEGISLATIVE FRAMEWORK

12. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of section 94(1) of the Act:

    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 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

13. To be medically qualified for the DSP, a person must therefore have a physical, intellectual, or psychiatric impairment, that has a total rating of 20 points or more under one (or several) Impairment Tables, and a continuing inability to work which, in some circumstances, includes participation in a Program of Support (herein referred to as ‘POS’).

14. Section 26(1) of the Act provides that, “…the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

15. It is the Tribunal’s role to stand in the shoes of the original decision-maker[8] and determine whether the decision was the correct or preferable one based on the material before it[9].

    [8]     Faulkner and Comcare [2007] AATA 1541 at [27].

    [9]     Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 (per Bowen CJ and Deane J).

16. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

17. Section 6 of the Determination provides that, “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”[10]. Further, the Impairment Tables in the Determination 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[11].

    [10]    Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), section 6(1).

    [11] Ibid, section 6(2).

18. An Impairment Rating may only be assigned to an impairment if[12]:

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than two years.

    [12] Ibid, section 6(3).

19. Further, for a condition to be considered permanent pursuant section 6(3)(a) of the Determination, the condition must also[13]:

    (a)be fully diagnosed by an appropriately qualified medical practitioner; and

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years.

    [13] Ibid, section 6(4).

20. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[14]:

    (a)whether there is corroborating evidence of the condition; and

    (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] Ibid, section 6(5).

21. A condition is considered fully stabilised if[15]:

    (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.

    [15] Ibid, section 6(6).

22. Reasonable treatment is a treatment that[16]:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional            capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    [16] Ibid, section 6(7).

23. Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Section 6(9) of the Determination sets out circumstances to be considered in relation to pain.

24. Sections 7 to 11 of the Determination provide guidance as to how the Impairment Tables should be used to assess information and evidence and how to assign Impairment Ratings.

25. In particular, section 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

26. Meanwhile, section 11(1)(c) of the Determination provides that in assigning an Impairment Rating, “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

    Continuing inability to work

27. As previously detailed in earlier reasons of this decision, section 94(1)(c)(i) of the Act states that in order to qualify for the DSP, a person must have a, “continuing inability to work”. Section 94(2) of the Act stipulates that:

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases—either:

    (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)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.

28. A “severe impairment” is defined in section 94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

29. Section 94(3C) of the Act states that:

    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

30. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as the ‘Participation Determination’) came into effect on 3 January 2015, and sets out the requirements for ‘active participation’ for those people required to demonstrate they have actively participated in a POS.

    QUALIFICATION PERIOD

31. Schedule 2, Part 2, section 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[17].

    [17] Social Security (Administration Act) 1999 (Cth), Schedule 2, Part 2, section 4(1)(d).

32. For the purposes of this decision, the day which the applicant’s claim for the DSP was lodged with Centrelink was 4 May 2022[18] and concluded 13 weeks after that day. The Tribunal finds the 13-week period ended on 3 August 2022.

    [18] Exhibit TR1, T13, pages 120 to 130.

33. This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered if it is referable to the applicant’s condition during the Qualification Period[19].

    [19] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at [31].

    CONSIDERATION

34. The application was heard in Brisbane on 6 March 2024 with all parties appearing by telephone as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant was self-represented, with the respondent represented by Ms Simone Cameron of Services Australia. The applicant was assisted by the services of an interpreter.

35. The Tribunal considered oral submissions made by the applicant and respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (marked as Annexure 1 at the end of these reasons).

    Section 94(1)(a) of the Act (physical, intellectual, or psychiatric impairment)

36. It is not in contention that the applicant suffered from an impairment for the purposes of satisfying section 94(1)(a) of the Act[20].

    [20] Exhibit R1, page 7, paragraph 38.

37. The Tribunal notes the applicant identified “Bilat pars intterarticularis and Anterolistheisis” [sic] in their application for the DSP[21]. The Tribunal is satisfied the applicant did suffer from an impairment prior to and during the Qualification Period for this application, and on reflection of the evidence the relevant impairment to this application is the applicant’s spinal condition.

    [21] Exhibit TR1, T13, page 120.

38. The Tribunal is of the view that with respect to the remaining medical conditions referred to in the evidence, there is insufficient detail to determine whether these conditions were permanent. Therefore, given the lack of further corroborative medical evidence with respect to these conditions the Tribunal was unable to consider them as part of this application.

    Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

39. The Tribunal will now consider the applicant’s spinal condition with respect to the application of section 94(1)(b) of the Act, and whether this impairment meets the relevant provisions contained within the Determination.

40. Corroborative medical evidence, and a diagnosis from an appropriately qualified medical practitioner in the evidence before the Tribunal confirms the applicant has been fully diagnosed with a degenerative spinal condition prior to the Qualification Period for this application. This is evidenced by:

    (a)Medical imaging undertaken on 24 May 2021, which found[22]:

    “… The main abnormality is at L5/S1, where there is severe degenerative disc disease, in addition to a Grade one anterolisthesis and bilateral L5 pars interarticularis defects. In combination with a broad based annular disc bulge, this narrows both exit foramina resulting in encroachment upon the exiting L5 nerve roots, more so on the left…”.

    (b)Medical certificates from the applicant’s treating General Practitioner (herein referred to as ‘GP’), Dr Saleem from 23 June 2021, diagnosing the applicant with, “severe degenerative disease of lumbar spine Bilat pars intterarticularis Anterolistheisis”, and stating that it was a permanent condition which had been treated with analgesics in the past, and with physiotherapy recommended as future treatment[23].

    [22] Exhibit TR1, T8, page 110.

    [23] Exhibit TR1, T10, page 113.

41. The Tribunal must determine whether the applicant’s spinal condition is considered fully treated and fully stabilised within the Qualification Period for this application.

42. Evidence before the Tribunal confirms on 28 May 2021, the applicant’s treating GP                Dr Saleem referred the applicant for four physiotherapy sessions[24]. At the hearing, the applicant confirmed that she had undertaken the free physio sessions in July 2021, and that she had experienced improvement in her pain symptoms associated with her spinal condition, and in particular an improvement in the pain she experiences down her leg.

    [24] Exhibit TR1, T9, pages 111 and 112.

43. A letter from the applicant’s treating physiotherapist dated 20 July 2022, provided feedback to the applicant’s treating GP as to the physiotherapy sessions the applicant had been referred to a year earlier[25]:

    [25] Exhibit TR1, T17, page 141.

    “… Thank you for reviewing Channa with thoracic/ lumbar pain that travels down left leg causing pain. Channa has completed the 4 physiotherapy treatments under Chronic Disease Management plan in 2021. Upon reassessment on 15/07/2021, Channa has made the following improvements:

    • Lumbar flexion: reach level of 5 fingers before knee (was 9 fingers above knee).

    • Pain rating of left leg: Less pain referred to left leg (was each evening having pain and referred pain experienced).

    Treatments currently include:

    • muscle releases

    • joint mobilizations

    • home exercise program targeting

    • advice and education

    Channa had still reported that she experiences stabbing pain in the thoracic area at random times and often the back becomes stiff. Due to the chronicity and complexity of the thoracic/lumbar pain and leg pain, more physiotherapy sessions are recommended to continue with treatment and exercise progression on a regular basis…”

    [Tribunal bolding for emphasis]

44. The Tribunal notes the applicant’s treating physiotherapist confirmed that the applicant had experienced improvements following treatment, and recommended the applicant undertake further physiotherapy sessions.

45. On 22 July 2022, Dr Saleem again referred the applicant for four further physiotherapy sessions as part of a primary care plan to manage the applicant’s spinal condition[26].

    [26] Exhibit TR1, T16, pages 139 and 140.

46. At the hearing, the applicant was taken to a note of the decision by the ARO, in conducting their review of the applicant’s claim for the DSP, which states[27]:

    “… You advised me during our conversation that you found the physiotherapy sessions of benefit in July 2021. You are required to undertake exercises at home 3 times per day, you advised me that you have been doing this.

    I further asked if you had commenced having physiotherapy sessions after Dr Saleem referred you for 4 more sessions in July 2022. You advised you had not started these sessions yet as you are currently unwell with allergies but will contact Pain Free Physiotherapy when you are well…”

    [27] Exhibit TR1, T19, page 146.

1. When the applicant was questioned as to when she had taken up the four physiotherapy sessions which she had been provided with a referral for by her treating GP on  22 July 2022, the applicant told the Tribunal that she had eventually completed these sessions, with a letter from the applicant’s treating physiotherapist dated 15 June 2023 confirming this (which postdates the Qualification Period for this application)[28]. The Tribunal notes this treatment was completed some ten months following the Qualification Period for this application.

   [28] Exhibit TR3.

2. The Tribunal notes the applicant had not undertaken specialist intervention until after the Qualification Period for this application, where the applicant had specialist review with her treating neurosurgeon, confirmed by a letter dated 22 May 2023. In that letter, Dr Chau states[29]:

   “…  I saw Channa today for the first time in person along with a Khmer interpreter. History includes a low transverse caesarean section. Otherwise, she has no significant medical or surgical history. She has had low back pain for over 40 years. She has been having left lower limb radiculopathy for 10 years. It travels down the back of the left thigh and reaches the ankle. She is managing okay but the symptoms are getting worse in general. The back pain is the predominant problem to her rather than the leg pain. She has been working with a physio. She has intact power on examination.

   I reviewed her CT lumbar spine from Queensland X-Ray. This demonstrates bilateral L5 pars defects with resulting grade 1 slip with severe degenerative disc disease at L5-S1 and endplate changes. There is likely some foraminal narrowing at L5-S1 bilaterally.

   I have explained the options to Channa today which include ongoing conservative measures including physiotherapy, analgesia, addition of a left L5 cortisone injection versus an operation which would be reasonable in her case, that would be in the form of an L5-S1 anterior and posterior fusion through an ALIF and posterior pedicle screws. I briefly described the procedure to her and what it entails. In general, Channa is looking to continue with conservative measures which is entirely reasonable. She will follow up with yourself in this regard.

   I will arrange to see her again in six months to track her progress. I think in general that if she finds symptoms become intolerable, then I will be happy to talk to her again about the option of surgery…”

   [Tribunal bolding for emphasis]

   [29] Exhibit TR2.

3. The specialist’s opinion which postdates the Qualification Period for this application recommended conservative treatments, in particular cortisone injections, which had not been undertaken by the applicant prior to or during the Qualification Period for this application. The Tribunal views the range of treatment options recommended by the specialist as reasonable treatment in accordance with the Determination. The Tribunal agrees with the respondent’s submission that the applicant had not engaged with specialist intervention during the Qualification Period, and the specialist evidence postdating the Qualification Period makes clear the applicant had not engaged in reasonable treatments available to the applicant[30].

   [30] Exhibit R1, page 9, paragraph 42.

4. As such, the Tribunal is of the view the applicant has not undertaken all reasonable treatments available to her prior to or during the Qualification Period for this application. Therefore, the Tribunal does not consider the applicant’s spinal condition to be fully treated, and in turn fully stabilised in accordance with the Determination prior to or during the Qualification Period for this application, and as such, an Impairment Rating could not be assigned. 

   Summary

5. The Tribunal has found that the applicant’s spinal condition was not able to be assigned an Impairment Rating under section 94(1)(b) of the Act.

6. As the Tribunal has found that the applicant does not satisfy section 94(1)(b) of the Act, there is no need to consider the remaining relevant provisions.

7. Although the Tribunal has found the applicant was not successful in her application for the DSP, the Tribunal notes that this decision does not prevent the applicant from making a new claim for the DSP.

   DECISION

8. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division, dated 5 May 2023, to reject the applicant’s claim for the Disability Support Pension.

   55.

   I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

   ……………[SGD]….……………

   Associate

   Dated: 4 April 2024

   Date of hearing:   6 March 2024

   Applicant:   Ms Channa Lim (self-represented)

   Solicitor for Respondent:        Ms Simone Cameron (Services Australia)

   Annexure 1 – Exhibit Register

Exhibit	Description of Evidence	Party	Date of Document	Date Received
R1.	Respondent Statement of Facts, Issues and Contentions and POS calculator page (17 pages total)	R	24/11/2023
TR1.	Section 37 T-Documents (T1-T29; 308 pages total)	-	-	04/07/2023
TR2.	Neurology Report (1 page)	-	13/06/2023	04/03/2024
TR3.	Physiotherapy Report  (1 page)	-	15/06/2023	04/03/2024

   application, the earlier Determination was in force during the Qualification Period for this application.