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

Mani and Secretary, Department of Social Services (Social services second review) [2019] AATA 3675 (20 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5997
Re:Jone Mani
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:20 September 2019
Place:Sydney

The decision under review is affirmed.
...............[sgd].........................................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – eligibility for disability support pension – whether impairments fully diagnosed, fully treated and stabilised – whether applicant has an impairment rating of 20 points or more under the Impairment Tables – osteoarthritis – fatigue – diabetes – applicant unable to satisfy the qualification criteria under s 94 of Social Security Act 1991 – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S Evans, Member
20 September 2019
INTRODUCTION

Jone Mani (“the Applicant”), made a claim for Disability Support Pension (“DSP”) on 5 April 2018 on the basis of his inability to stand or walk long distances for a period of time and analgesia causing drowsiness and fatigue.
Mr Mani’s claim was rejected by the Department of Human Services (“the Department”) also known as (“Centrelink”) on the basis that he did not have an impairment rating of 20 or more points in July 2018. The decision was affirmed by a Centrelink Authorised Review Officer (ARO) that same month.
Mr Mani sought review of the ARO’s decision in the Social Services & Child Support Division of the Tribunal (“AAT1”) which affirmed the decision in October 2018.
Mr Mani now appeals in the General Division of the Tribunal. The question for the Tribunal to consider is if Mr Mani qualified for the DSP at the time he made the application or the qualification period that follows.
The hearing was held in Sydney on 22 July 2019. Mr Mani attended in person and gave evidence under oath. I found him to be a reliable witness. He was accompanied by his nephew who assisted with transport.
For the reasons that follow, the decision under review is affirmed.
BACKGROUND
Mr Mani was born in 1959 and he suffered an injury to his right foot in a car accident in 1986. His most recent work was as an industrial spray painter.
THE LEGISLATION
Qualification for disability support pension
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.
In order to qualify for the DSP Mr Mani must first have one or more physical, intellectual or psychiatric impairments. Second, these impairments must be rated at least 20 points or more under the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”). Third, he must have a continuing inability to work.
In the interests of completeness I will detail the relevant sections of the Social Security Act 1991 (Cth) (“the Act”) below, but in these terms the eligibility criteria can be daunting and complicated. Noting that the complexity of the eligibility criteria means that any summary risks a degree of oversimplification, in essence to be eligible for DSP, at the time of qualification, normally from the date of application and for 13 weeks after, an applicant must:
(i)Have had conditions which are “permanent”. Permanent in this context means the conditions were fully diagnosed by an appropriate medical practitioner, fully treated, fully stabilised and likely to persist for more than two years.
(ii)For a condition to be “fully stabilised”, generally the person must have undertaken reasonable treatment for the condition and there is no expectation that significant improvement to a level enabling to person to undertake work in the next two years is not expected.
(iii)If a condition meets these requirements, (meaning it is deemed permanent), the medical conditions can be assigned a rating against the Impairment Tables which are designed to determine the level of functional impact of an impairment.
(iv)If an Applicant is assigned an impairment rating of 20 points or more against the relevant Impairment Tables, they may qualify for the DSP.
(v)If the impairment rating included at least 20 points under a single Impairment Table, the Applicant has a “severe” impairment.
(vi)If the impairment rating is of 20 points or more but from more than one Impairment Table, the Applicant may be required to have completed a program of support (“POS”) or have actively participated in such a program for at least 18 months in order to qualify.
Legislation
The qualifying requirements for the DSP are set out in section 94(1) of the Act. It must be established that Mr Mani:
(a)has a physical, intellectual or psychiatric impairment; and
(b)that 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;
In relation to section 94(2) of the Act, a person has a ‘continuing inability to work’ if:
(a)…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.
Under section 94(3B) of the Act, participation in a POS is not required if the person has a severe impairment of 20 points or more under a single impairment table. The examples provided in this section encompass three scenarios:
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Where a person’s impairment is not a severe impairment, however, they must have actively participated in a POS. Active participation in a POS generally means participation for 18 months in the 36 months immediately before the applicant made the claim for DSP.
Impairment Tables
The Impairment Tables referred to in section 94 of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The Impairment Tables assign ratings reflecting the level of functional impact a condition has on an applicant. Only medical conditions that are permanent can be allocated points under the Impairment Tables.
A condition is “permanent” if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and is likely to persist for more than 2 years. An “appropriately qualified medical practitioner” is a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition.
The phrases “fully diagnosed” and “fully treated” are defined in s 6(5) of the Impairment Tables as follows:
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraph 6(4)(a) and (b), the following is to be considered:
(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 2 years.
The phrase “fully stabilised” is defined in s 6(6) of the Impairment Tables as follows:
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition   is fully stabilised if:
(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 2 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 2 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.
Relevantly, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborative evidence.
A diagnosed condition which results in no impairment should be assessed as having no functional impact and an impairment rating of zero must be assigned.
THE ISSUES THAT HAVE TO BE DECIDED
The issues for determination by the Tribunal are:
(a)What is the relevant period for Mr Mani’s claim?
(b)Did Mr Mani have a physical, intellectual or psychiatric impairment(s) as defined under the act during the relevant period?
(c)If yes, were his impairment(s) capable of being assigned 20 or more points under the Impairment Tables during the relevant period?
(d)If Mr Mani’s impairment(s) is/are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (in which case it qualifies as ‘severe’)?
(e)If Mr Mani did not have a severe impairment during the relevant period, but his impairment(s) attract a rating of 20 points or more, does he have a continuing inability to work or has he participated in a POS?
What is the relevant period for Mr Mani’s claim?
Mr Mani’s claim for the DSP was made on 5 April 2018 and that triggers the assessment process to determine the eligibility of the Applicant. Mr Mani must qualify for DSP on the date of the claim or within 13 weeks thereafter to 5 July 2018. I will refer to this as ‘the relevant period’.
The Tribunal notes that Medical reports that come into being after the relevant period are only pertinent to the extent that they refer to the claimant’s condition during the relevant period.
Did Mr Mani have a physical, intellectual or psychiatric impairment during the relevant period?
The term “impairment” is not defined in the Act. However s 3 of the Impairment Tables defines “impairment’ to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The Respondent accepts, and based on the information before it the Tribunal agrees, that Mr Mani had impairments during the qualification period and therefore satisfies s 94(1)(a) of the Act during the relevant period.
It follows that I am required to decide is whether any of Mr Mani’s impairments were fully diagnosed, treated and stablised during the relevant period. If I find that one or more of Mr Mani’s impairments were fully diagnosed, treated and stabilised during the relevant period, I am required to assess them under the appropriate Impairment Tables.
My consideration of Mr Mani’s medical conditions and the impairment effect of each follows.
MR MANI’S MEDICAL CONDITIONS
In his application Mr Mani’s listed his disabilities or medical conditions that significantly affect his ability to work as an ‘inability to stand or walk long distances or periods of time and analgesia causing drowsiness/fatigue’[1].
[1] T-documents, p.258.
Osteoarthritis
Mr Mani has difficulty walking and according to an April 2018 medical certificate from Dr Robert Scragg he has ‘chronic pain in both feet and ankles/difficulty walking’ and an ‘inability to stand or walk long distances or periods of time’.
Mr Mani indicated that the pain was initially the result of a motor vehicle accident which occurred 30 years ago. He testified that his right foot was broken in five different places as a result of the accident.
The Respondent accepts, and based on the evidence before it the Tribunal agrees, that Mr Mani’s condition, osteoarthritis, is fully diagnosed, treated and stabilised. A letter from Centrelink to Mr Mani titled ‘Your Review Outcome’[2] makes this clear the rationale:
Your bilateral foot osteoarthritis has been assessed as fully diagnosed, treated and stabilised. The MRI report from Dr Dimmick dated 19 September 2013 confirms the diagnosis. The DSP medical report from Dr Needham dated 28 March 2014 notes that you have limited capacity for walking and standing and that you walk with a pronounced limp.
[2] T-documents, p. 285.
As the condition is fully diagnosed, fully treated and fully stabilised it falls to the Tribunal to consider an appropriate rating under Impairment Table 3 - Lower Limb Function based on medical evidence which has been presented.
Prior to the hearing, Mr Mani presented a report from Dr Geoffrey Needham[3], consultant in rehabilitation and pain medicine dated 31/5/19 which states:
[the Applicant] suffers from severe instability of right ankle due to gradual deterioration due to lisfrac injury. He is unable to stand or walk safely without his walking aid. He has severely limited standing time and walking distance. I believe he [sic] has severe functional impact on his activities.
[3] Exhibit A1.
Dr Needham’s report is similar to one he addressed to Centrelink in August 2013[4]:
Mr Jone Mani suffers from old right food lisfranc disruption with secondary joint degeneration and persistent pain on the weight bearing such that he is indefinitely unfit for work duties.
[4] T-documents, p. 150.
The T-documents include a December 2018 report from Dr Needham in which he states:
…in relation to his old right Lisfranc injury causing major foot deformity. He [Mr Mani] reported benefit from PalexiaSE 250 mg bd which is the maximum dosage for this medication and he is also taking Lyrica 150 mg bd with benefit. I would support further use of these medications while remaining effective and well tolerated. He is proceeding with attendances at the Orthotic Clinic at Westmead Hospital and I remain of the opinion that his is permanently unfit for any employment of a type for which he is trained or qualified. I would support his application for a disability support pension.
I note that this is not the first time that Mr Mani has applied for DSP. To aid understanding of an appropriate impairment rating an excerpt of Impairment Table 3 (Lower Limb Function) is reproduced below from the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The excerpt describes functional impairments and provides an appropriate allocation of points against them. As mentioned, there are strict rules which must be followed by all decision makers, including the Tribunal, for applying the Impairment Tables.

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

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

(c)       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.

10

There is a moderate functional impact on activities using lower limbs.

(1)       At least one of the following applies:

(a)     the person is unable to walk far outside their home and needs to    drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)       the person is unable to stand for more than 5 minutes; and

(2)       The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)       This impairment rating level includes a person who can:

(a)       move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

On 8 June 2018 Dr Scragg reports that Mr Mani is ‘able to stand for no more than 20-30 minutes before needing to sit down’, and that he ‘is able to walk to public transport if no more than 10-15 minutes away’, and that he ‘has difficulty with navigating stairs, walking on uneven terrains, kneeling and squatting’[5]. Mr Mani uses a walking stick to mobilise. I find that Mr Mani meets 1(a), (b) and (c) and 2(b) in the 5 point impairment table.
[5] T-documents, p. 268.
These functional abilities and impairments fit with what the Impairment Table 3 describes as a ‘mild functional impact on activities using lower limbs’ and therefore it is appropriate to assign an impairment rating of 5 points for his osteoarthritis.
I note that the Job Capacity Assessment that was conducted in February 2016 following a previous application for DSP recommended an impairment rating of 10[6] under Table 3. I have considered the evidence carefully and it is my conclusion that Mr Mani does not currently meet the criteria for a moderate rating of 10 points under Impairment Table 3. The evidence before the Tribunal leads me to conclude that he would not meet the requirements stipulated in section 1 of a moderate rating as he is able to walk for 20-30 minutes, use stairs without assistance and stand for more than five minutes.
[6] T-documents, p. 214.
For the reasons set out above I am satisfied that Mr Mani’s lower limb condition merits a rating of 5 points under the Impairment Table 3 Lower Limb Function.
Fatigue
On his DSP application[7] Mr Mani lists ‘analgesia causing drowsiness/fatigue’ as one of the conditions that significantly affects his ability to work. Mr Mani testified that he suffers from fatigue as a consequence of the medication that he takes for his osteoarthritis.
[7] T-documents, p 258.
This is confirmed in a Centrelink Medical Certificate[8] dated 6 May 2019 from Dr Hung Ma who has seen Mr Mani since November 2012. Dr Ma lists this as a symptom of Mr Mani’s foot pain and difficulty walking which is addressed above. An almost identical certificate was provided by Dr Ma on 10 July 2018.
[8] Exhibit A2.
In the absence of further medical information about this condition I am not satisfied that the applicant’s fatigue was fully treated and stabilised during the relevant period. No impairment rating can be assigned to this condition.
Diabetes

Mr Mani did not identify diabetes in his initial claim for DSP. ‘Type 2 diabetes’ was listed separately as a condition based on information provided by Dr Scragg[9] which was dated 8/6/2018. It is noted that the condition is ‘well managed and has nil impact on [Mr Mani’s] ability to function’.
[9] T-documents, p. 268.
The diagnosis of non-Insulin dependent diabetes has been confirmed and the Secretary accepts that this condition is fully diagnosed, treated and stabilised, but as it has no functional impact it does not attract any points under Table 1 (Functions requiring Physical Exertion or Stamina).
CONCLUSION
The legislation is such that satisfying each of the requirements outlined earlier is essential in order for an application for DSP to be successful. It is the Tribunal’s role to take into account the particular circumstances and facts of each case, making sure that the rules are applied equally to each case.
Whilst I find that Mr Mani had a physical impairment as required under section 94(1)(a) of the Act during the relevant period, Mr Mani does not meet the threshold requirement of 20 points or more under the Impairment Tables. Consequently it is not necessary for me to consider if he had a continuing inability to work during the relevant period. It follows that his claim for DSP cannot succeed.
DECISION
For the reasons above, I am satisfied that the Applicant does not qualify for DSP under section 94(1) of the Act.
The decision under review is affirmed.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

......................[sgd]..................................................
Associate
Dated: 20 September 2019

Date(s) of hearing: 22 July 2019

Applicant: In person

Solicitors for the Respondent: Mr L Dennis - Department of Human Services

[2019] AATA 3675

20 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Statutory Construction

Standing

Date(s) of hearing:	22 July 2019
Applicant:	In person
Solicitors for the Respondent:	Mr L Dennis - Department of Human Services