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

[2020] AATA 3815

Logan and Secretary, Department of Social Services (Social services second review) [2020] AATA 3815 (1 October 2020)

Division:GENERAL DIVISION

File Number(s):      2019/6396

Re:Elisa Logan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Thompson

Date:1 October 2020

Place:Adelaide

The Tribunal affirms the decision under review.

....................[sgnd]....................................................

Member Thompson

Catchwords

SOCIAL SECURITY – disability support pension – Parkinson’s disease – conditions fully diagnosed treated and stabilised – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975
Social Security Act 1991

Social Security (Administration) Act 1999

Cases

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Secondary Materials

Social Security (Tables for the Qualification of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Member Thompson

1 October 2020

INTRODUCTION

1. The applicant, Elisa Logan, lodged a claim for disability support pension (DSP) on 26 February 2018. This was her first claim and Centrelink rejected it. 

2. The route which led to this application was somewhat unusual. It is set out in detail in written reasons provided by the Tribunal on 29 January 2020, remitting the matter back to the AAT1 for reconsideration of Mrs Logan’s first DSP claim.

3. For present purposes it is sufficient to note that Mrs Logan lodged a second, subsequent claim for DSP on 26 February 2019 which Centrelink accepted and decided to grant from 26 February 2019.

4. Following Centrelink’s rejection of Mrs Logan’s first DSP claim lodged on 26 February 2018 a request for a review of that decision was made but it was allegedly outside the requisite period. Subsequently, it came to light that the request for internal review was made within time.

5. For Mrs Logan the practical consequence of the current application is whether or not she is entitled to receive the DSP from 26 February 2018 to 26 February 2019. On 5 March 2020 the AAT1 affirmed Centrelink’s decision review to reject the first DSP claim.

6. The hearing before this Tribunal took place on 18 September 2020.  Mrs Logan attended the hearing by telephone and was supported by her daughter. Ms Edwards represented the respondent, the Secretary, Department of Social Services.

7. Mrs Logan gave evidence. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.

8. Mrs Logan is now 62 years old. She suffers from Parkinson’s disease which was diagnosed in 2008.

   LEGISLATION AND ISSUES

9. Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables.  The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Qualification of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  The qualification period in this case is 26 February 2018 to 28 May 2018.

10. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:

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

    (b)They have actively participated in a “program of support”. 

11. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

12. Accordingly, Mrs Logan will qualify for the DSP if the Tribunal is satisfied that she has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that she has a continuing inability to work.

13. Mrs Logan’s claim for DSP listed her disabilities or medical conditions as Parkinsons and she specified the treatment which included medication, neuro physiotherapy, and: – “anything that can help e.g. walking, pilates, remedial massage”.[1]

    [1] T9 p140.

14. The Secretary accepted that Mrs Logan has an impairment from the impact of Parkinson’s disease and therefore satisfies s 94(1) (a) of the Act.

15. In the statement of facts and contentions, the Secretary contended that Mrs Logan’s impairments attract a combined impairment rating of 30 points which satisfies section 94 (1) (b) of the Act.

16. However, the Secretary contended that Mrs Logan did not have a continuing inability to work and was not qualified for the DSP during the qualification period. The basis for this contention was that she does not have a severe impairment, that is an impairment of 20 points or more under a single Impairment Table (s 94(3B) of the Act). She had not participated in a program of support and without qualifying for any of the exceptions to the requirement for participation, it was submitted that she does not satisfy s 94 (2) (aa) of the Act.

17. The main issue for determination is whether Mrs Logan’s impairments could be assigned 20 points or more under the Impairment Tables during the qualification period and, if so, whether she had a continuing inability to work.

    CONSIDERATION

18. The Tribunal can only consider an applicant’s qualification for DSP within the qualification period.

19. It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[2] at [34]:

    “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks)... If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”

    [2] [2012] AATA 922.

    Evidence

20. Mrs Logan gave evidence to the Tribunal about the impact of Parkinson’s disease which was diagnosed about 12 years ago. At that time, she was working part-time as a shop assistant which she enjoyed. However, her symptoms were getting worse and she was unable to continue working from 2014. At the time of her DSP claim in February 2018 she was living at home with her husband and one of their adult daughters.

21. Mrs Logan told the Tribunal about the effects of Parkinson’s disease. She said that her condition had deteriorated over the last couple of years. A continuing issue is the lack of predictability about the impact of Parkinson’s disease. Some days are good, some days are bad and there are no indicators one way or the other in advance. She described having to work around her medication. If the medication is working well, she can be more active. If it is not working well, she has to stay at home and cancel any appointments that she might have made.

22. Mrs Logan said that she exercises every day and the more she does, the better it is. She finds physiotherapy helpful although the positive effects do not last very long. Physiotherapy helps to loosen the back, shoulders and legs.

23. Mrs Logan described episodes which cause her to shake and freeze. She has had problems with speech because she has some difficulty with slurring her words. These were problems at the time of the DSP claim and they have generally worsened since that time. Nonetheless her attitude throughout has been one of determination – “I will push myself to do things, I want to live a normal life as much as I can.” She does not like to be idle and she will do as much as she can particularly with contribution to household activities  and family life.

24. A report[3] written on 18 August 2015 by a general medical practitioner, Dr Jaeschke, recorded that treatment which had been in place and was continuing included specialist reviews by general physicians and neurologists, multiple medications together with physiotherapy, exercise and massage. Dr Jaeschke recorded functional impacts which included moving more slowly, poor balance and risk of falling, speech which could be slow and slurred, reduced endurance and increasing fatigue, cessation of work in 2014 because of the progression of the illness, together with a comment about the dependency on how well the medication was working. It was expected that her condition would deteriorate.

    [3] T 13, p198.

25. A neurologist, Associate Professor Kimber, reported on 12 June 2018[4] that Mrs Logan had Parkinson’s disease which was diagnosed in 2008, complicated by motor fluctuations and dyskinesia. Various medications had been prescribed, some help had been derived with her episodes of freezing although the dyskinesias were becoming more troublesome.

    [4] T 13, p211.

26. Monthly reviews were recommended in a report by a neurological physiotherapist, Ms Ting, to address the main issues which were stiffness, especially in the spine and lower limbs, as well as a worsening freezing of gait.[5] Neurophysiotherapy guidance emphasised the provision of education and exercise therapy for self-management of the condition with the aim of improving Mrs Logan’s gait and managing freezing episodes.

    [5] T 13, p213.

27. A second report by associate Professor Kimber written on 18 September 2018 noted that[6]: – “Mrs Logan has severe Parkinson’s disease with marked and unpredictable fluctuations in her motor response to medications. This means that it is very difficult for her to predict how she will be functioning physically from one moment to the next. So severe are her  motor fluctuations that she needs to take intermittent injections of apomorphine to rescue her from periods of immobility… Parkinson’s disease is a progressive neurological condition and therefore the current challenges Mrs Logan is having with her motor function are expected to become progressively worse in future.”

    [6] T 13, p214.

28. A Job Capacity Assessment (JCA) report written on 7 September 2018 recorded comments by Mrs Logan about regularity of hand tremors, involuntary movements together with body weakness, poor balance and reduced mobility. She reported that she tires easily.

    IMPAIRMENT TABLES

29. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment.  They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms, will and limitations.

30. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.

31. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

32. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years. 

33. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

34. The applicable impairment rating for Mrs Logan’s condition will be considered in turn by reference to the Impairment Tables. In cases such as this in which a single condition causes multiple impairments, Rule 10 of the Rules for applying the Impairment Tables provides that:

    “(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table…

    (4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.”

    Upper limbs

35. Impairment Table 2 concerns upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities that require the use of hands or arms.  The diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not sufficient.

36. Mrs Logan gave evidence about difficulties that she has doing up buttons and shoelaces, her fingers lack flexibility and it is difficult for her when her hands are shaking. She would have problems using a standard computer keyboard. In fact, she has an iPad which she uses as best she can although she has difficulty pressing the correct keys. The deterioration of her condition has made it more difficult for her to carry out tasks such as unscrewing the lid on a soft drink bottle and picking up items such as a one litre carton of liquid, taking things out of the fridge and carrying them to the sink. These types of difficulty, in addition to problems holding and using a pen or pencil, doing up buttons or tying shoelaces also were acknowledged by the neurological physiotherapist, Ms Ting, as recorded in a JCA report on 2 May 2019.[7] The Tribunal accepts that Ms Ting’s reported  assessment in May 2019 is consistent with the difficulties which Mrs Logan was having during the qualification period.[8]

    [7] T10 p 178.

    [8] T10 p 182.

37. For a moderate functional impact Table 2 states:

Points

Descriptors

10

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.

1. The problems which Mrs Logan had during the qualification period with activities using hands or arms are reflected by the descriptors in Impairment Table 2 for a moderate functional impact. Those descriptors require that a person has difficulty with at least four of the six specified activities and the Tribunal accepts that Mrs Logan has such difficulty.

2. Having heard Mrs Logan’s evidence and taking into account the medical evidence, the Tribunal is satisfied that there is a moderate functional impact on activities involving the use of hands or arms. Accordingly, a rating of 10 impairment points under Table 2 is appropriate

   Lower limbs

3. Impairment Table 3 relates to lower limb function.  It provides the descriptors relating to the use of the lower limbs.  It is used where a person has a permanent condition which leads to functional impairment performing activities that require the use of legs or feet.

4. Mrs Logan told the Tribunal that she used to enjoy walking when she is well, now she still does enjoy it. She estimated that in early 2018 she could walk up to 1.5 km if she walked slowly around a nearby park. If the medication is working well, she can go to the local supermarket. She could walk from the car to the supermarket and walk around inside the shopping centre. Equally however if she is having a bad day when the medication is not working, she cannot go out. As a precaution she has a walking stick at home which she uses when she needs to. However, she does not use the walking stick when she is out. She said that in 2018 she could not stand for more than 15 minutes. She avoids stairs as she would lose her balance

5. For a mild functional impact on activities using the lower limbs Impairment Table 3 states:

Points

Descriptors

  5

There is a mild functional impact on activities using lower limbs

(1)  At least one of the following applies:

(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(a)  the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(b)  the person has some difficulty climbing stairs; and

(2)  At least one of the following applies:

(a)  The person is unable to stand for more than 10 minutes;

(b)  The person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

1. Both the medical evidence and the evidence from Mrs Logan indicate that there is a mild functional impact on activities using the lower limbs in accordance with the descriptors in Impairment Table 3. Accordingly, the appropriate rating is 5 impairment points.

   Spinal function

2. Impairment Table 4 concerns spinal function and is used where a person has a permanent condition which has a functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck.  The diagnosis must be made by an appropriately qualified medical practitioner. 

3. Mrs Logan gave evidence to the Tribunal about the difficulties that she has with overhead activities. They include accessing overhead cupboards at home and high shelves in the supermarket. Her husband hangs up the washing at home as she can only put items out on a hoist at chest height. Kneeling and bending are problematic for her. She said that she has difficulty tilting her head back.

4. A moderate functional impact on activities involving spinal function attracts 10 points as set out in Table 4 as follows:

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

(1)  The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following:

(a)    the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)    the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)    the person is unable to bend forward to pick up a light object placed at knee height; or

(d)    the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

1. Noting the descriptors in the Impairment Table Mrs Logan had a moderate functional impact on activities involving spinal function during the qualification period. The Tribunal is satisfied by the medical evidence, the neuropsychology report and the evidence which Mrs Logan gave to the Tribunal, that the appropriate rating is 10 impairment points under Table 4.

   Communication

2. Impairment table 8 – communication function is used where a person has a permanent condition which results in functional impairment affecting communications.

3. Mrs Logan told the Tribunal about difficulties which she has with her speech. It is clear to her that some people cannot understand what she is saying at times because she slurs her words. It was an issue for her during the qualification period and still remains as a problem. Dr Jaeschke’s report referred to slow and slurred speech and a feeling of self-consciousness when Mrs Logan struggles to talk.[9]

   [9] T 13 p203.

4. For a mild functional impact on communication, Impairment Table 8 provides:

Points

Descriptors

5

There is a mild functional impact on communication in the person’s main language.

    (1)  At least one of the following applies:

(a) the person has some difficulty understanding complex words and long sentences (e.g. a complex newspaper article); or

(b) the person has mild difficulty in producing speech and has minor difficulty with being understood due to speech production or content

1. The Tribunal is satisfied by Mrs Logan’s evidence and the medical evidence that criterion (1) (b) is applicable. Accordingly, with a mild functional impact on communication function the appropriate rating is 5 impairment points under Table 8.

   Other functions

2. Consideration has been given to the applicability of Impairment Table 1 which addresses functions requiring physical exertion and stamina. However, the functional impact on activities addressed in that Table in particular with regard to walking, domestic tasks and physical activities has been taken into account in the analysis in Impairment Table 3.

3. There is insufficient evidence to assign any points under Impairment Table 7 which relates to brain function and the functional impact which result from a neurological or cognitive condition.

   Program of support

4. Mrs Logan has a total rating of 30 points across the Impairment Tables. However, she does not have an assessment of 20 points or more under one Table and does not meet the definition of having a severe impairment under s94 (3B) of the Act.

5. In order to have a continuing inability to work, as defined in s 94(2) of the Act, Mrs Logan must have actively participated in a program of support and her impairment must be sufficient from preventing her from doing any work or training activity independently of a program of support within the next two years.

6. The next step is to consider whether Mrs Logan should have actively engaged in a program of support for 18 months out of a period of 36 months preceding her DSP application, as required by Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination). The relevant period for consideration is 25 February 2015 to 25 February 2018.

7. The Secretary contended that Ms Logan had not participated in a program of support for at least 18 months during the three years leading up to the date of the DSP claim. In fact, Ms Logan was not engaged with a designated provider at any time. This was confirmed by correspondence[10] from the Department of Employment, Skills, Small and Family Business and not disputed by Mrs Logan.

   [10] Exhibit 2, Annexure  C.

8. Further, there was no evidence to suggest that ss 7(3), 7(4) and 7 (5) of the POS Determination apply to Ms Logan’s circumstances. Those subsections provide an alternative pathway to compliance with the requirements of the program of support. There is no evidence which indicates that the exceptions are relevant to the facts  of this case. Unfortunately, Mrs Logan states that she was unaware of the requirements in the program of support and had she been aware she would have tried to commit to them and comply with them. That is not sufficient, however, for the Tribunal to find that the exceptions in the POS Determination apply.

9. The Tribunal finds that the program of support requirement has not been met.

   SUMMARY

10. The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.

11. As outlined previously, the Tribunal finds that Mrs Logan’s upper limb condition was fully diagnosed treated and stabilised during the qualification period. The applicable rating for the upper limb condition is 10 points.

12. Mrs Logan’s lower limb condition was fully diagnosed, treated and stabilised during the qualification period. The applicable rating is 5 points.

13. Mrs Logan’s spinal function was fully diagnosed, treated and stabilised in the qualification period. The applicable rating is 10 points.

14. Mrs Logan’s communication function was fully diagnosed, treated and stabilised in the qualification period. The applicable rating is 5 points

15. The Tribunal finds that s 94(1)(b) of the Act is satisfied as Mrs Logan has a cumulative rating of 30 points under the Impairment Tables.

16. Mrs Logan does not have a severe impairment within the meaning of s 94(2)(aa) of the Act as she does not have an impairment of 20 points or more under a single Impairment Table. There was a need for her to actively participate in a program of support within the meaning of s 94(3C) of the Act. However, Mrs Logan does not meet the requirements for participation in a program of support and does not satisfy the criteria for a continuing inability to work within the meaning of s 94(1)(c) of the Act.

17. Accordingly, she has not qualified for DSP at the time she made her claim and during the assessment period. 

18. As Ms Logan was not qualified for the DSP at the time she lodged her first DSP claim on 26 February 2018 or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

    DECISION

19. The Tribunal affirms the decision under review.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

..........[sgnd]...............................

Administrative Assistant Legal

Dated: 1 October 2020

Date of hearing:   14 November 2019                

Applicant:  Self-represented

Respondent’s representative:   Ms Julie Edwards for Secretary, Department of Social Services