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

[2022] AATA 4220

Loone and Secretary, Department of Social Services (Social services second review) [2022] AATA 4220 (18 October 2022)

Division:GENERAL DIVISION

File Number:          2022/1050

Re:Danny Loone

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Mr A. Maryniak KC, Member

Date:18 October 2022

Date of written reasons:        9 December 2022

Place:Melbourne

The Tribunal affirms the decision under review.

........................[sgd]................................................

Mr A. Maryniak KC, Member

Catchwords

SOCIAL SECURITY - Disability support pension - Impairment Tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 - where only one claimed condition fully diagnosed, treated and stabilised - where other conditions not fully diagnosed, treated and stabilised - whether condition attracted sufficient points in Impairment Tables to qualify - decision affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Mr A. Maryniak KC, Member

9 December 2022

1. This is an application for review of a decision of this Tribunal of 11 January 2022 to affirm the rejection of the Applicant’s claim for Disability Support Pension (‘DSP’).

2. The Tribunal is to determine whether the Applicant qualified for DSP during the period 11 March 2021 to 10 June 2021 (‘the Qualification Period’).

3. The Tribunal has considered the documentary evidence before it, the testimony of the Applicant and his General Practitioner, Dr Mercado, and the submissions of the parties.

4. As the Tribunal explained during the hearing, the Tribunal may only consider evidence which goes to the Applicant’s functional impairments during the Qualification Period and not after that. Further, the Tribunal informed the Applicant that this Decision does not prevent him from lodging a new application for DSP which would be based on a later qualification period.

5. On 11 March 2021, the Applicant lodged a claim for DSP relating to his type 2 diabetes, hip replacement and tendons in wrist. During the hearing, the Applicant also made reference to his left and right shoulder conditions and Dr Mercado gave evidence regarding those, together with reference to a blood pressure issue and high cholesterol.

6. Dr Mercado’s evidence, and in particular his post Qualification Period report of 28 June 2022, establishes that further investigations were pending at that time regarding the Applicant’s multiple joint pains to his shoulder, hips and wrist. He also confirmed that in respect of the type 2 diabetes, as at 10 September 2021, the Applicant had been referred to an Endocrinologist for treatment. Again, this post-dates the Qualification Period.

7. In respect of the Applicant’s mental health conditions, Dr Mercado confirmed that as at 28 June 2022, the Applicant was awaiting a review by a Psychotherapist. This is consistent with the report of Dr Hyde dated 24 March 2022 which indicated that further assessment and collateral information was required in order to clarify diagnosis and treatment. This is also consistent with the reports of Mr Nolan, Accredited Mental Health Social Worker, dated 13 July 2022 and 24 August 2022 which indicated that further counselling, assessment and psychological support was required to manage symptoms.

8. The key consideration is whether the evidence relating to the Qualification Period establishes impairments within that period which satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (‘the Act’). Whilst the Respondent accepts that s 94(1)(a) of the Act is satisfied, it contends that s 94(1)(b) is not satisfied as the Applicant’s conditions have either not been fully diagnosed, treated and stabilised or do not attract a rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).

9. The Respondent accepts, and the Tribunal finds, that the Applicant’s left hip post-total joint replacement was fully diagnosed, treated and stabilised during the Qualification Period. On the evidence, particularly that within the report of Dr Hutchinson, Orthopaedic Surgeon, dated 10 May 2021, and having considered the impairment requirements in Table 3 of the Impairment Tables, the Applicant’s hip condition attracts 5 points.

10. In respect of the left wrist and left upper limb condition, on the evidence including that of Dr Mackie, Orthopaedic Surgeon, such evidence only supports a finding that such conditions were not fully diagnosed, treated or stabilised during the Qualification Period, hence no points can be allocated.

11. Equally the evidence, including that discussed above at paragraph [6], does not support a finding that the Applicant’s type 2 diabetes was fully diagnosed, treated or stabilised during the Qualification Period. Therefore, no points can be allocated.

12. With regard to the mental health condition, the evidence, including that discussed above at paragraph [7], does not permit a finding that during the Qualification Period such condition was fully diagnosed, treated or stabilised, hence no points can be allocated.

13. As to the shoulder conditions, which were essentially only raised during the hearing, there is insufficient evidence to permit the Tribunal to conclude that during the Qualification Period such conditions were fully diagnosed, treated or stabilised. Again, no points can be allocated.

14. In conclusion, the allocation of 5 points does not satisfy s 94(1)(b) of the Act and therefore, the correct or preferable decision is to affirm the decision under review.

15. As indicated earlier, this Decision does not prevent the Applicant from lodging a new application for DSP should he wish to do so. Such a new application could be based upon an updated body of medical evidence if such evidence is obtained by the Applicant.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

.......................[sgd].................................................

Associate

Dated: 9 December 2022

Date of hearing:	17 October 2022
Applicant:	Self-represented
Advocate for the Respondent:	Mr James Bernasconi
Solicitors for the Respondent:	Services Australia