Lu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 190

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 190

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1197

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ms Gui Zhen Lu

Applicant

And Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

Respondent

DECISION

Tribunal  M D Allen, Senior Member

Date14 March 2011

PlaceSydney

Decision For the reasons given orally at the conclusion of the Hearing this day, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is AFFIRMED.

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

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY:  Claim for disability support pension denied.  Applicant did not have impairment of 20 points or more during relevant period and did not have a continuing incapacity to work.  Diagnosed conditions have not been fully documented - investigated, treated and stabilised.

CATCHWORDS

Social Security Act 1991, Ss 94(1)

Social Security (Administration) Act 1999, s4(1)

REASONS FOR DECISION

14 March 2011

At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         .............[sgd]............................
  K. Lynch, Associate

Date of Hearing  14 March 2011
Date of Decision  14 March 2011
Date of Written Reasons  22 March 2011
Representative for the Applicant           Ms Gui Zhen Lu (self)
Representative for the Respondent      Centrelink Advocacy Service

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN:  

1.    By an application made 30 December 2010, the Applicant sought review of a decision by the Social Security Appeals Tribunal (“SSAT”) of 10 March 2010 affirming a prior determination, to reject the Applicant’s claim for Disability Support Pension (“DSP”). 

2. The qualifications for DSP are set out in section 94 of the Social Security Act 1991 (“SSA”). Subsection 94(1) SSA provides, inter alia, that the Applicant must have a physical, intellectual or psychiatric impairment. It is not disputed in this matter that the Applicant does have such impairments. The subsection also provides that those impairments must rate at 20 points or more under the Impairment Tables which are to be found at Schedule 1B SSA. In particular, the notes at the commencement of the Impairment Tables state, inter alia, that:

“A rating can only be assigned for a fully documented, diagnosed condition which has been investigated, treated and stabilised.”

3. A further restriction upon the Applicant’s right to a DSP is imposed by Schedule 2 of the Social Security (Administration) Act 1999 which provides in section 4 that the assessment of the degree of impairment is to be restricted to a period commencing on the day when the claim is made and extending for a period of 13 weeks thereafter.  The result in this matter is therefore, that one must look at the Applicant and her degree of impairment as she was in the period 8 September 2009 to 8 December 2009.  If the Applicant considers that her condition has deteriorated since making her claim, her remedy is to make a new claim supported by new material.

4.    At the time she made her claim, the Applicant’s treating doctor, Dr Lau, listed three main conditions which affected her ability to work.  They were major depression, cervical and thoracic spondylosis and cerebral atherosclerosis. 

5.    So far as the Applicant’s depression is concerned, on 5 February 2010, Ms Sally Ng, registered psychologist, reported as follows: 

“Gui Zhen (Jane) was referred by her family doctor, Dr B. Lau, to my psychological service in November 2008.  From November 2008 to March 2009, she came to my practice location in Auburn and from August to December in 2009, she had treatment sessions in my practice location in Eastwood.  At present, she has had a total of 10 sessions.”

6.    Ms Ng concludes her report by stating: 

“Comparing with the commencement of the treatment course, Jane has shown more settling down in the later part of the treatment…It is advised that she will be benefited from the ongoing psychological treatment”

7.    Given the context of that report, it cannot be said that at the time the Applicant applied for a DSP, her major depression had been fully treated and stabilised. 

8.    A more recent report by Dr Lau states that the movement in the Applicant’s neck is limited to 75 per cent or more of normal range of movement, although as stated previously, the Applicant’s degree of impairment must be assessed as in the period 8 September 2009 to 8 December 2009. 

9.    The Applicant was again assessed by Centrelink officers on 9 December 2010.  The persons carrying out the assessment were a physiologist, Ms Nucifora, and a registered psychologist, Ms Gomez.  A review of both her cervical and thoraco-lumbosacral spine was carried out.  Although these reports are well outside the assessment period, I am content to rely upon them for the purposes of today’s proceedings.  Using Table 5.1, the Applicant was found to have a loss of quarter of normal range of movement giving her an impairment rating of five.  Assessed under Table 5.2 for the thoraco-lumbosacral spine, the Applicant was found to have a loss of one-quarter of normal range of movement giving a rating of five.  So far as her atherosclerosis is concerned, the Applicant was assessed under Table 20, “Miscellaneous”, and the rating was nil. 

10. A sum total of that is, that as the depression cannot be given an impairment rating and is not fully treated and stabilised as at the assessment period, and indeed I would say that even at present as the assessment report makes clear, and being content to say that the assessments of December 2010 give an indication of the Applicant’s degree of impairment in the assessment period, she has impairment ratings of nil for atherosclerosis, and indeed, the condition would need further investigation before any impairment could be allocated. 

11. For her spinal conditions, however, she has an impairment rating of 10.  This then leads to an impairment rating of 10 for all conditions which, not amounting to 20, has the result that the Applicant does not qualify for Disability Support Pension.  Consequently, the decision under review is affirmed.

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