Loh and Secretary, Department of Social Services (Social services second review) - [2018] AATA 2598

Loh and Secretary, Department of Social Services (Social services second review) [2018] AATA 2598 (3 August 2018)
Division: GENERAL DIVISION
File Number(s): 2017/7222
Re:Thiam Hock Loh
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Member Richard West
Date:3 August 2018
Place:Melbourne

The Tribunal affirms the decision under review.
…………………[sgd]……………………………………
Member
Catchwords
SOCIAL SECURITY – refusal of disability pension – whether conditions rate 20 points or more under Impairment Tables – Chronic Myeloid Leukaemia – cardiac and respiratory disorders – pleural effusions – meaning of ‘assistance’ - decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
Cases
Re Arkell and Secretary, Department of Social Service [2017] AATA 1987
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Covenden and Secretary, Department of Social Services [2018] AATA 353
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Nelson and Secretary, Department of Social Service [2016] AATA 721
Re Spry and Secretary, Department of Social Service and Anor [2014] AATA 722
Re Summers and Secretary, Department of Social Services [2014] AATA 165
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Member Richard West
3 August 2018
BACKGROUND

This matter concerns the refusal of the Disability Support Pension (DSP) to the Applicant and is a Second Tier Review of that decision.
The relevant history of the matter is as follows:
·The Applicant made his original application for DSP on 9 December 2016.
·Centrelink assessed and refused the application on 12 July 2017 (Initial Decision).
·A Departmental Authorised Review Officer affirmed this decision on 28 August 2017.
·The Applicant requested a review of the Initial Decision by the Administrative Appeals Tribunal (Social Services & Child Support Division) (the First Tier Review) on 5 October 2017.
·The First Tier Review affirmed the Initial Decision on 17 November 2017.
·The Applicant applied for a Second Tier Review of the Initial Decision on 5 December 2017.
·I conducted the Second Tier Review on 14 June 2018.
In the proceedings the Applicant was self-represented. The Secretary was represented by Mr Daly, a solicitor with the Department of Human Services.
LEGISLATION
I have had regard to the following relevant legislation in making this decision:
·Social Security Act 1991 (SS Act);
·Social Security (Administration) Act 1999 (SSA Act);
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) (Impairment Tables): a determination made by the Minister under s. 26(1) of the SS Act which came into effect on 6 December 2011;
·Social Security (Active Participation for Disability Support Pension) Determination 2014 (2014 Determination); and
·Administrative Appeals Tribunal Act 1975.
QUALIFYING PERIOD
A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter. This is called the qualifying period.[1]
[1] See ss. 37, 42 and clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999
In this case the qualifying period commenced on 9 December 2016 and ended on 10 March 2017.
In assessing whether a condition is stabilised and likely to persist for the future, the Tribunal must look at the situation during the qualifying period, having regard to the evidence available at the time. Evidence of deterioration in the claimant’s condition subsequent to the qualifying period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the claimant’s condition during the qualifying period. [2]
[2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].
DSP QUALIFICATION
To qualify for a DSP an applicant must satisfy the requirements set out in s. 94(1) of the SS Act as assessed during the qualifying period.
In essence s. 94(1) requires that:
·      the Applicant have a physical, intellectual or psychiatric impairment;
and
·      the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than 2 years;
and
·      the Applicant has a severe impairment (an impairment rating at least 20 points on a single Impairment Table); or
·      the Applicant’s impairments together rate at least 20 points on the Impairment Tables;
and
·       the Applicant has a continuing inability to work; or
·       the Secretary is satisfied that the Applicant is participating in the supported wage system.
Section 94(2) of the Act provides that a person has a ‘continuing inability to work’ because of an impairment if the person has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next 2 years.
Section 7 of the 2014 Determination provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the 3 years immediately prior to the date of claim.
RESPONDENT’S CONTENTIONS
The Applicant’s claim form[3] listed the following conditions in support of his claim for a DSP:
·chronic myeloid leukaemia;
·muscle cramps due to medications;
·anxiety and sleeplessness; and
·heart disease, including two arterial stents.
[3] T19 at page 107
The Respondent has accepted that the medical evidence establishes that during the qualifying period the Applicant suffered from the following conditions which were fully diagnosed, fully treated and fully stabilised:
·chronic myeloid leukaemia (CML);
·ischaemic heart disease (IHD); and
·hypertension.
The Respondent contends that the functional effects of CML and IHD overlap and attract a single rating of 10 points under the Impairment Tables.
The Respondent asserts that the Applicant’s psychological condition was not fully diagnosed, treated or stabilised during the qualifying period because the diagnosis has not been confirmed by a clinical psychologist or psychiatrist.
The Respondent further submits that the Applicant’s other conditions, namely pleural effusions and elevated cholesterol, were either not fully diagnosed, treated and stabilised; and/or did not have a functional impact which would attract any points under the relevant Impairment Table.
The Respondent submits that, as the Applicant did not have a severe impairment during the qualifying period, and has not satisfied the program of support requirements in

s. 94(3C) of the SS Act, he does not satisfy the requirements of s. 94(1)(c) of the SS Act that he have a continuing inability to work, a necessary qualification for a DSP.
ISSUES
In deciding whether the Applicant is entitled to a DSP the Tribunal must be satisfied that he either has:
a.a severe impairment (an impairment rating at least 20 points on a single Impairment Table); or
b.impairments which together rate at least 20 points on the Impairment Tables.
The Determination makes it clear that the Impairment Tables can only be used to assess functional capacity resulting from a permanent condition. A condition is permanent only if it is fully diagnosed (by an appropriately qualified medical practitioner), fully treated and fully stabilised and likely to persist for more than 2 years.
The medical evidence in relation to the plural effusion condition is limited. A radiologist’s report following a CT scan on 25 August 2014 noted small to moderate sized pleural effusions are seen bilaterally, slightly greater on the left side.[4] A subsequent radiologist’s report of 12 September 2015 noted small to moderate sized bilateral basal pleural effusions.[5]
[4] T6 at page 61
[5] T13 at page 73
The Applicant’s treating doctor, Dr Lim, reported in September 2015 that the Applicant was suffering chest discomfort, shortness of breath, palpitations, recurring pleural effusion which was “tapped yesterday”.[6] In her report of 29 September 2016 Dr Lim simply noted that the Applicant suffered pleural effusion as a reaction to Dasatinib. This observation was confirmed by Dr Liew, consultant physician cardiologist, in her report of 10 August 2017.[7]
[6] T14 at page 75
[7] T34 at page 155
The Applicant referred to pleural effusion in his statement of 30 October 2017,[8] saying that he had been treated for ‘lung problems’ by Dr Ho of the Dandenong Respiratory Group for pleural effusion, increased coughing and respiratory symptoms since May 2014. He added that the fluid retention in his lungs was attributed to weakening of the heart condition, which in turn was triggered by CML medications; although he did not specifically mention Dasatinib (a chemotherapy medication for the treatment of CML).
[8] T38 at pages 166-172
On the basis of the evidence I am satisfied that the condition of pleural effusion was fully diagnosed during the qualifying period. However, I am not satisfied that the evidence is sufficient to conclude that it was fully treated or fully stabilised. Accordingly, I have not had regard to the Applicant’s pleural effusion in assessing his impairment under the Impairment Tables.
In the case of the Applicant’s mental health condition, Table 5 requires a diagnosis by a clinical psychologist or a psychiatrist. The evidence is that the Applicant was diagnosed by Dr Jenny Lim, a general practitioner, with anxiety and depression from 3 June 2015. However, the Applicant did not commence seeing Mr Jacob Topy, a psychologist at the Connect Health & Community Centre until 9 May 2017 and Dr Sandra Rubenstein, a clinical psychologist, until September 2017. This evidence does not establish that the Applicant’s psychological condition was diagnosed by a clinical psychologist or psychiatrist during the qualifying period. Accordingly, I have not had regard to the Applicant’s psychological condition in assessing his impairment under the Impairment Tables.
I am also satisfied that there is insufficient evidence to establish that the Applicant’s elevated cholesterol had a functional impact attracting any rating points on the relevant Impairment Table (Table 1). Therefore, I have not had regard to the Applicant’s elevated cholesterol in assessing his impairment under the Impairment Tables.
Having reviewed the medical evidence I accept the Respondent’s contention that the Applicant’s CML and IHD were fully diagnosed, fully treated and fully stabilised during the qualifying period. I now turn to consider the rating that should be attributed to these conditions under Table 1 of the Impairment Tables. In doing so I note that the medical evidence indicates that there is commonality between the nature of the Applicant’s impairment arising from both conditions. The Respondent contends that the functional effects of CML overlap with the functional effects of IHD and that they should attract a single rating.
The Determination provides at s. 10(5) that where two or more 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. It further provides in s. 10(6) that it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
The medical evidence establishes that during the qualifying period the Applicant suffered from:
·symptoms of lethargy, cramping and shortness of breath;[9]
·lethargy, depression and anxiety;
·as a result of taking imatinib: insomnia, muscle cramps and dry eyes;[10]
·shortness of breath (due to both the side effects of his medication and his IHD) on completion of activities of daily living such as changing sheets on the bed and sweeping;[11]
·lethargy, depression and anxiety from CML;
·significant muscle cramps, chest tightness and ongoing shortness of breath which could be contributed to by chronotropic incompetence;[12] and
·chest discomfort and shortness of breath on exertion and palpitations.[13]
[9] T23 at page 117
[10] T26 at page 121
[11] T28 at page 126
[12] T34 at page 155
[13] T22 at page 116 and T24 at page 118
Having considered this evidence, I find that the Applicant’s CML and IHD cause a common or combined impairment, and a single rating should be assigned in relation to that common or combined impairment under a single table, being Table 1.
The Applicant gave evidence about his background and the effect of his conditions.
He stated that he was born in 1954. He has a Bachelor of Science and is trained as a water engineer. He worked in that field in Malaysia before migrating to Australia in 2000. He returned to Malaysia in 2005 to work but returned to Australia in 2008 when his heart condition required him to have two stents implanted. He said that he was diagnosed with CML in 2010. He worked as a printing assistance in 2013-2014 and as a cashier for 8-10 hours per week up until 2014. He said that he sought assistance from Centrelink to find employment and was advised to apply for the DSP.
He said that he volunteers at community centres in Springvale and Dandenong two days per week from 9.30 am to 1.30 pm. He assists clients of the centre to organise micro-financial loans and in that role meets with the clients and enters their data onto the system. He also organises pamphlets and other material which is available at the centre. He said that he travels to the centre by bus. His house is a five-minute walk from the bus stop and the bus takes him right to the centre which is part of a shopping centre. He has a laptop computer which he uses at home to access the internet.
He said that he takes a combination of medication for his heart condition and CML. He suffers from side effects of sleeplessness, loss of weight, poor concentration, shortness of breath, depression and anxiety. He said he takes herbs and is treated with acupuncture and massage to improve his strength.
He has separated from his wife but they live under one roof. He said that he and his wife cook separately but she does most of the housework. He mows the lawns usually about once per month. He does his own washing. He does his own shopping at the supermarket when he attends the centre to carry out his voluntary role.
He is able to walk unaided but says he has to stop after about 10 minutes as he experiences shortness of breath. He gave evidence that he has travelled to Malaysia on four occasions since 2016 to attend to personal matters and family events.
The Applicant was provided with a copy of the Determination and referred to Table 1. He was also given a brief adjournment to consider the table before making his final submissions.
He submitted that his functional impairments should be assessed as 20 points. He said that he cannot work on a continuous basis for three hours. When he volunteers he only does one or two cases per day and takes breaks when he needs to. He stated that when he walks he seeks assistance from railings and sits down to rest when a chair is available. He contended that this should be regarded as ‘seeking assistance’.
The Respondent addressed the issue of whether the use of railings and a chair could be ‘seeking assistance’ within the meaning of the Table in a supplementary written submission filed with the Tribunal following the hearing. The Applicant filed a brief written response to the matters raised in the Respondent’s supplementary submission. I have had regard to both submissions.
The Respondent submitted that the term ‘assistance’ as used in Table 1 should be taken to mean assistance from another person. The Applicant submitted that it should include the assistance from tools or another person or both depending on the circumstances.
Section 9 of the Tables requires that a person’s impairment be assessed with the person wearing any aids, equipment or assistive technology that the person usually uses. Clearly, the term ‘assistance’ does not include the use of such aids, equipment or assistive technology.
In this case the Applicant refers to railings and a chair as assistance needed for him to walk around a shopping centre or supermarket. Such ‘aids’ are a usual feature of public buildings such as shopping centres and normal access could be assumed to include their use. The term ‘assistance’ requires that something additional needs to be provided to enable the person to access the facility. In Re Summers and Secretary, Department of Social Services[14] Senior Member Bell concluded that ‘assistance’ refers to assistance from a person. I concur with this interpretation and accordingly find that “assistance” in the context of Table 1 does not include access to railings and chairs in a shopping centre or supermarket.
[14] [2014] AATA 165 at [16] and applied in Re Spry and Secretary, Department of Social Service and Anor [2014] AATA 722, Re Nelson and Secretary, Department of Social Service [2016] AATA 721 and Re Arkell and Secretary, Department of Social Service [2017] AATA 1987.
Having considered the evidence, I find that the Applicant’s combined impairments of CML and IHD attract a rating of 10 points under Table 1, indicating a moderate functional impact on activities requiring physical exertion. I do not accept the Applicant’s submission that the evidence supports a finding that the functional impact of his conditions warrants 20 points. He is clearly able to use public transport without assistance, including multiple instances of international air travel. He indicated that he regularly performs some light day-to-day household activities such as cooking and doing the washing without asserting that this usually causes him shortness of breath, fatigue or cardiac pain. His evidence was that he could walk to and from a supermarket and do his shopping without assistance other than hold a hand rail or sitting down to rest when a chair was available. For the reasons discussed above, I do not accept that this amounts to a need for ‘assistance’ within the meaning of Table 1.
I accept the Applicant’s evidence that he can work at his own pace in doing his voluntary work and needs to take a break from time to time. However, his evidence indicates that he is able to perform tasks of a clerical, sedentary or stationary nature for up to 4 hours. His need for breaks is not at odds with common employment practices which provide employees with flexibility in how they carry out their duties.
For these reasons, I find that the Applicant did not satisfy the requirements set out in

s. 94(1) of the SS Act during the qualifying period and I affirm the decision to refuse to grant him a disability support pension.
DECISION
The decision under review is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

...........................[sgd].............................................
Associate
Dated: 3 August 2018

Date(s) of hearing: 14 June 2018

Date final submissions received: 13 July 2018

Applicant: Self-represented

Solicitors for the Respondent: Matthew Daly - Department of Human Services

Date(s) of hearing:	14 June 2018
Date final submissions received:	13 July 2018
Applicant:	Self-represented
Solicitors for the Respondent:	Matthew Daly - Department of Human Services