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

Matthews and Secretary, Department of Social Services (Social services second review) [2017] AATA 1156 (20 July 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3725
Re:Adrian Matthews
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr D. J. Morris, Member
Date:20 July 2017
Place:Perth

The decision under review is affirmed.
..........[sgd].........................................................
Mr D. J. Morris, Member
CATCHWORDS
SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully treated and fully stabilised – impairments do not total 20 or more points under Impairment Tables Determination - not qualified for DSP – decision is affirmed
LEGISLATION
Acts Interpretation Act 1901, s 36(1)
Social Security Act 1991, ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(3B), 94(5)
Social Security (Administration) Act 1999, Sch 2, cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr D. J. Morris, Member
20 July 2017
BACKGROUND

Mr Adrian Matthews applied for Disability Support Pension (DSP) on 22 October 2015. He underwent a face to face Job Capacity Assessment (JCA) on 18 February 2015 (T10, p.48). On 21 December 2015, the Department of Social Services (the Department) advised Mr Matthews that, having considered his application against the requirements for DSP, it had decided to reject his claim.
Mr Matthews sought a review by an Authorised Review Officer (ARO), an officer of the Department who had not been involved in the original decision. On 17 March 2016, the ARO affirmed the original decision. Mr Matthews sought a review by the Social Services and Child Support Division of this Tribunal (AAT1). A hearing was held on 7 July 2016 and AAT1 affirmed the decision.
Mr Matthews sought a review by the General Division of the Tribunal. A hearing was held on 21 June 2017. The Applicant represented himself. He gave affirmed evidence and was cross examined by the representative of the Respondent, Ms Sharon Sangha.
The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence.
Regard was also had to a document titled “Secretary’s Statement of Facts, Issues & Contentions”, dated 31 January 2017 and submitted to the Tribunal and the Applicant by the Respondent. There were three annexures to that Statement that the Tribunal admitted into evidence:
·Medical report of Dr Lucy Rosman dated 3 August 2016 (Exhibit R1);
·Bundle of documents submitted by the Applicant (Exhibit A1); and
·POS calculation Excel spread sheet (Exhibit R2).
Qualification for DSP under the Act
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying has –
(a)a physical, intellectual or psychiatric impairment; and
(b)impairment of 20 points or more under the Impairment Tables; and
(c)a continuing inability to work.
The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.
The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1) (c) and section 94(5) of the Act is work that is for at least 15 hours a week.
Therefore, for a person to be qualified for DSP, the person must have impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.
An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, this means the person’s impairment is then assessed under section 94(3B) of the Act to be a ‘severe impairment’. If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.
What is the period for considering the claim?
The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:
If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.
Therefore, the Tribunal must consider whether Mr Matthews was eligible for DSP on the date that he made his claim, 22 October 2015, or if not then eligible, whether he fulfilled the requirements for eligibility on another day in the thirteen week period after that date, commencing on 23 October 2015 and concluding on 21 January 2016. This is called the claim period.
Does the Applicant have a physical, intellectual or psychiatric impairment?
The Tribunal had before it a medical report by Dr Amanda Larke, general practitioner (T23, pp.84-94). Dr Larke listed the medical condition with the most impact on Mr Matthews as “post operative scarring after left sided neck disection [sic] for neck cancer”. She stated that the diagnosis dated 2008 and was confirmed by Dr James Saunders. Dr Larke said that treatment was regular analgesics – opioid medication and regular physiotherapy. She said that the Applicant had developed “acute an [sic] chronic pain due to this condition”, and that it limited movement around his left shoulder and gave him limited dexterity in hand movement.
Dr Larke listed a second condition as anxiety and depression with a date of onset of April 2015 and a confirmatory diagnosis by Ms Karen Hall. She stated that Mr Matthews had regular psychologist counselling and was taking daily antidepressant medication, reviewed by his general practitioner every two to four weeks. She said that this condition gave him “low mood, strained interpersonal relationships, crippling anxiety” and that he was unable to concentrate for more than 30 minutes. She felt that the underlying cause had been the financial stress Mr Matthews had faced since not being able to work since his cancer operation.
In the section of the medical report where the doctor lists other medical conditions that are generally well managed and cause minimal or limited impact on a person’s ability to function, Dr Larke listed “tinnitus – constant, untreatable ringing in ear”, “lower back strain”, “hepatitis B: stable, but limits some job opportunities.”
Having considered the medical evidence, the Tribunal finds that Mr Matthews did have impairment at the time of his claim for DSP, namely an upper limb condition, a mental health condition, a condition affecting his lower back, tinnitus and hepatitis B. The Tribunal finds that he satisfied section 94(1)(a) of the Act at the claim period.
What is the correct rating under the Impairment Tables?
The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(2) provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.
Under section 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.
Section 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.
The Impairment Table Determination also provides, at section 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
The Tribunal must consider Mr Matthews’ medical conditions with reference to the Impairment Tables applicable to them.
Upper limb condition
Mr Matthews underwent radical surgery in 2008 for squamous cell carcinoma (SCC) of the neck. He had a modified neck dissection (T26, p.127). The Tribunal had before it a medical letter dated 8 August 2012 from Dr Raphael Chee of Genesis Cancer Care to Dr James Jooste, general practitioner (T4), which stated:
Diagnosis: T1 N2b M0 left tonsil SCC treated with tonsillectomy and left neck dissection, adjuvant radiotherapy completed, March 2009.
Thank you for referring Mr Adrian Matthews back to us for a review. He underwent radiotherapy under Dr Janelle Heywood just over three years ago for his tonsil cancer. He has done remarkably well and was last reviewed here a year ago.
Dr Larke, in a report dated 31 December 2014 (T5), referred to a very large left neck SCC requiring modified dissection, radical muscle dissection and muscle relocation. She reported that Mr Matthews “Has had all clear from oncology (cancer) department from Royal Perth Hospital.” Dr Larke said that Mr Matthews had an ongoing effect of decreased power and endurance in movement of his left shoulder.
Mr Matthews said in evidence at the hearing that he had arthritis in the shoulder and collarbone. He said that his left upper trunk is numb and the numbness follows down his left arm and to his left hand. He said that he had suffered nerve damage from his neck operation.
The Respondent conceded that Mr Matthews’ left side neck condition was fully diagnosed, fully treated and fully stabilised in the claim period.
The Tribunal considers on the independent medical evidence that this is a permanent condition and can be considered under the Determination. The relevant impairment table is Table 2 – Upper Limb Function. Considering the Descriptors for Table 2, the Tribunal note that Dr Larke reports that the Applicant could not carry an object over 5 kilograms, had limited head movement and limited shoulder strength, and impairment and weakness in driving (T7, p.24). She felt that as time progresses, this condition is likely to worsen in the next 2 years.
Mr Matthews said that he does basic cooking and cleaning at home; he washes dishes with his right hand but cannot undertake tasks such as changing bed linen or laundry. He does some very light gardening and occasionally walked to the local park. He said he can use a computer with difficulty because it hurts his shoulder to type. He goes to the supermarket once a week but is limited in what he can carry and will ask his stepmother, with whom he lives, to get bulkier items. He drives but said he was limited in his use of a motor car because of difficulties with his neck.
Mr Matthews said he had started a course of steroid injections in December 2015 and had three injections in 2015 and one about two months before the hearing (April 2017). He said this provided slight relief.
Mr Matthews had a face to face JCA on 4 December 2015. The Applicant told the assessor that he could handle coins with his right hand but with some difficulty with his left hand. He carried a water bottle into the assessment and was observed to unscrew the bottle top. His clinical psychologist, Ms Karen Hall, reported on 13 August 2015 (T18, p.64), that Mr Matthews had told her for “For much of this year, the most he managed was one hour at the computer on most days of any week”, however that comment was written in the context of the time of his operation so it is not clear to the Tribunal whether “this year” referred to 2008 or the year of Ms Hall’s report, 2015. In any event, this comment is based on what her patient told her was the situation. The Applicant’s contemporary evidence at the hearing is to be preferred: that he does not use a computer much because of pain, particularly in the left hand.
It would seem that there needs to be some separation of Mr Matthews’ shoulder difficulties, which appear still to be in the process of being treated in the claim period. However, the Tribunal believes there is a long-established and diagnosed discrete neck condition and notes the medical report about muscle damage and ‘relocation’, so considers an assessment as to the functional impact on Mr Matthews is the preferable approach to take.
Applying the Descriptors in Table 2, Mr Matthews is assigned 5 impairment points for his upper limb condition. On the evidence of his treating general practitioner and other assessments, he has some difficulty with all of the examples mentioned. It may also be that he has difficulties with some of the Descriptors in the 10 point part of the matrix, however his difficulties in the claim period were only with his left hand and this part of the Table requires most of the examples to be satisfied.
Mental health condition
Dr Larke referred Mr Matthews to a clinical psychologist, Ms Hall, in relation to assessment and treatment of his depression and anxiety in the context of chronic pain and financial distress following his neck operation. Ms Hall records (T18) that she first saw Mr Matthews on 24 July 2015 and had seen him on a number of occasions subsequently. She records:
On the 24th July 2015, Adrian was administered a DASS21 and scored in the extremely severe range for anxiety, and in the moderately severe range for depression and generalised stress. His most severe symptoms were difficulty experiencing any positive feelings, low mood, a dry mouth, trembling, nervousness, a racing heart, and a feeling of fear.
Ms Hall reported that after his cancer operation, Mr Matthews was unable to return to his previous occupation running a home renovation business. She determined that he had Generalised Anxiety Disorder and depression.
Mental health conditions are assessed under Table 5 of the Determination. That impairment table requires diagnosis by a qualified medical practitioner including a psychiatrist and corroboration, if the diagnosis was not by a psychiatrist, by a clinical psychologist. I am satisfied that the diagnosis by Dr Larke and confirmed by Ms Hall satisfies the requirement for assessment under Table 5.
Mr Matthews gave evidence at the hearing that he believed his anxiety and depression stemmed from the scarring from his 2008 operation. He said that his general practitioner recommended he see a psychologist but he did not do so until 2015. Mr Matthews said that he lived independently and attended some social events such as visiting the local hotel for a meal with friends. He sees his brother every four or six weeks and other family members less frequently.
The Respondent referred the Tribunal to a more recent report from Ms Hall dated 13 October 2016 (Exhibit A1) which stated:
Adrian was prescribed antidepressant medication in mid-2015, which has reduced his level of anxiety from extremely severe to severe, as measured by a clinical interview on the 27th June 2016. However, given the deterioration of his health, the dyslexia, financial distress, and the extent of the loss in so many areas of his existence following surgery, the medication has been unable to provide significant relief to the level of his anxiety and is not expected to in the future.
The Respondent contended that this change in the level of anxiety meant that the condition was not fully treated or fully stabilised in the claim period. The Tribunal does not accept this argument, especially as the professional view of the treating clinical psychologist, written some nine months after the claim period, only alters her description from “extremely severe” to “severe”. The Tribunal notes a history of antidepressant medication and 21 psychology consultations since mid-2015. The Respondent noted that Mr Matthews only commenced consulting Ms Hall in July 2015 but that fact is not germane to Dr Larke’s advice that this condition was of long-standing, the corroborative diagnosis of Ms Amanda Walters, clinical psychologist, earlier in July 2015 of depression, and Ms Hall’s own professional view that it stemmed from the cancer diagnosis and subsequent radical surgery nine years ago, and follow-up treatment. The better view, which the Tribunal adopts, is that this is a permanent condition which is stable and being treated and for which there may be some improvement in coming years, but not (yet) in any known definitive outcome by Mr Matthews’ medical advisers.
The Tribunal has considered Mr Matthews’ mental health condition against the Descriptors set out in Table 5 of the Determination. Mr Matthew lives independently and gave no evidence of difficulties with self-care. He has a circle of friends with whom he socialises, and family with whom he keeps in contact and there was also scant evidence of difficulty travelling to unfamiliar environments. There was little evidence of difficulties with decision-making and planning in the claim period. Ms Hall stated in her 13 August 2015 (T8, p.65):
“…he described difficulties distinguishing left from right, telling the time, following directions, reading a map, and his spelling, reading skills, and hand writing were poor.”
However, the introduction to Table 5 states “Self-report of symptoms alone is insufficient.” There was no evidence before the Tribunal that these described symptoms had been corroborated by cognitive testing. Mr Matthews’ own evidence to the hearing was that he can manage most household chores except for some for which he has difficulty owing to shoulder and neck pain, not for reasons of anxiety and depression. He told the Tribunal that he would go out with friends to a hotel for a counter-meal; he shopped regularly and used a computer, at least for some time, and the social media site Facebook.
The Tribunal is not convinced that an assignment of 5 impairment points is warranted under the Descriptors, in the absence of corroborating evidence which, crucially, must be based on more than simply what a person tells their treating medical adviser.

The Tribunal therefore finds, while this is a permanent condition, no impairment points are allocated to it in the claim period.
Condition affecting lower back

Dr Larke referred to Mr Matthews suffering from “lower back strain”. In her view (T19, p.75) this was a condition that was generally well managed and caused minimal or limited impact on Mr Matthews’ ability to function in August 2015, when she made her report. Dr Larke reported this condition as evincing “occasional spasm” and that it had “mild impact” (T7, p.42).
Mr Matthews told the hearing that his back condition was under control and he saw a chiropractor frequently. The Tribunal finds under section 11(5) of the Determination that zero points should be assigned for this condition.
Tinnitus
Dr Larke listed tinnitus as a condition of Mr Matthews. The Applicant told the Tribunal that he had been to hearing specialists but “there is nothing they can do”. He said that he has an application on his mobile telephone which plays music which is meant to help. Dr Larke (T19, p.75) described the symptoms of this condition as “constant, untreatable ringing in ears”, but said that this condition causes minimal functional impact.
There was a dearth of medical reports before the Tribunal relating to this condition. It may well have an impact on Mr Matthews but not one that is easily quantifiable in the claim period in the absence of independent audiology tests which could enable assessment under Table 11 – Hearing and other Functions of the Ear. The introduction to Table 11 requires supporting evidence from an audiologist or an Ear, Nose and Throat Surgeon, and none was before the Tribunal in this review.
The Tribunal therefore did consider this condition further for the assignment of impairment points.
Hepatitis B condition
The Tribunal had before it a medical certificate signed by Dr Larke dated 1 April 2015 (T13). She diagnosed Hepatitis B with a date of onset “unknown, believed early 2014”. This diagnosis was corroborated by a serology report (T20, p.80) of February 2015 which was consistent with “acute or chronic Hepatitis B infection”. This is a notifiable disease and Dr Larke said the prognosis was uncertain and that the condition was “asymptomatic, would need to be declared in certain occupation.”
There was little evidence of functional impact on Mr Matthews of this condition, and in his own opening submissions to the hearing he said it was “under control”. The Tribunal finds that zero points are assigned for this condition under the Determination.
Conclusion
The Tribunal finds that the Applicant is assigned a total of 5 impairment points for his medical conditions in the claim period.
Section 94(1)(b) of the Act requires the assignment of 20 or more impairment points to a claimant at the time he made his claim or in the 13 weeks thereafter. As Mr Matthews did not meet the requirements of section 94(1)(b) at that time, his application for DSP cannot succeed. Each part of section 94 must be satisfied for a person to be qualified for DSP. As this claim fails to meet the requirements of section 94(1)(b), it is not necessary for the Tribunal to go on to consider whether Mr Matthews had satisfied section 94(1)(c), a continuing inability to work, in the claim period.
The Tribunal finds that the original decision was correct as Mr Matthews was not qualified for DSP on the date he made his claim and he did not become qualified in the 13 week period after that date.
DECISION
The decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Morris, Member

......[sgd].............................................................
Administrative Assistant - Legal
Dated: 20 July 2017

Date of hearing: 21 June 2017

Applicant: In person

Representative for the Respondent:
Ms S Sangha

Solicitors for the Respondent: Mills Oakley Lawyers

[2017] AATA 1156

20 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Procedural Fairness

Date of hearing:	21 June 2017
Applicant:	In person
Representative for the Respondent:	Ms S Sangha
Solicitors for the Respondent:	Mills Oakley Lawyers