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

[2024] AATA 113

McDeniel and Secretary, Department of Social Services (Social services second review) [2024] AATA 113 (24 January 2024)

Division:GENERAL DIVISION

File Number(s):      2023/0293

Re:Alexander McDaniel

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:24 January 2024

Place:Sydney

The decision under review is affirmed.

............................[SGD]............................................

Senior Member A Poljak

Catchwords

SOCIAL SECURITY – disability support pension (DSP) application – whether the applicant qualified for the DSP during the relevant qualification period – alcohol dependence – GORD and liver cirrhosis – anxiety – back pain – obesity - whether the applicant has a physical, mental or psychiatric impairment – whether the applicant’s disabilities may be assigned a relevant impairment rating – whether the applicant has a continuing inability to work or is participating in a relevant program of support – applicant’s conditions not able to be assigned impairment ratings – decision under review affirmed.

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination)

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

Cases
Shi v Migration and Registration Authority [2008] HCA 31

REASONS FOR DECISION

Senior Member A Poljak

24 January 2024

1. Alexander McDaniel, the applicant, seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 7 December 2022. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) and affirmed by an Authorised Review officer (“ARO”) on 30 September 2021, refusing the applicant’s claim for the disability support pension (“DSP”) which was lodged on 24 June 2021.

2. The applicant’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual, or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work, as defined in the Act.

3. For the applicant to qualify for DSP, he had to satisfy these criteria on 24 June 2021, when he applied for the DSP, or within the following 13 weeks, that is, by 23 September 2021 pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the qualification period”).

4. As there is a temporal element, the applicant’s qualification for DSP can only be assessed in the qualification period, and if there is any deterioration or change to his medical conditions suggesting he may have become qualified at a later time, this is irrelevant to the Tribunal’s consideration of his impairments at the qualification period (see Shi v Migration and Registration Authority [2008] HCA 31 at [144] – [145]).

5. The Secretary accepts that based on the medical evidence, the applicant had physical, intellectual, or psychiatric impairments and satisfied paragraph 94(1)(a) of the Act at the qualification period. The issues to be determined in these proceedings is whether the applicant’s conditions rate 20 or more points under the Impairment Tables and whether he has a continuing inability to work as defined in the Act.

   IMPAIRMENT TABLES

6. The first issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

7. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

8. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

9. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

   (a)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.

10. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    MEDICAL CONDITIONS

    Alcohol Abuse

11. The applicant was fully diagnosed with “alcohol abuse” by Dr Wilson, General Practitioner, as per his health summary sheet dated 25 June 2021, which records his condition under the heading “current active problem”; date of onset “YRS”; and under the heading “social” that the applicant is a “non-drinker”.

12. At hearing, the applicant was open about his issues with alcohol abuse. He explained that his treatment to date included the use of Antabuse for approximately eight and a half months in 2010; attendance at Alcohol Anonymous meetings in “early 2000’s”; and self-treatment. The applicant advised that he stopped drinking two years ago, on or about January 2022 (post qualification period). The John Hunter Hospital Discharge Summary dated 7 February 2022 noted that the applicant presented with withdrawal symptoms from an “alcohol binge” for two weeks after more than four months of abstinence.

13. There is insufficient medical evidence in relation to the applicant’s treatment and prognosis, with reference to the qualification period. His condition was not fully treated and stabilised during the qualification period. No impairment rating may be assigned to this condition.

    Liver Cirrhosis and GORD

14. The applicant’s hepatomegaly, fatty liver and cirrhosis of the liver was fully diagnosed as per the ultrasound report dated 12 April 2021 and the applicant’s GORD was fully diagnosed as per Dr Wilson’s health summary sheet dated 24 June 2021. However, the conditions were not fully treated and stabilised during the qualification period.

15. There is no medical evidence from a gastroenterologist or liver specialist addressing the applicant’s conditions, treatment plan/options or expected prognosis. The applicant advised at hearing that he first saw a liver specialist in 2023, outside of the qualification period. I also note that in the Discharge Summary from John Hunter Hospital from 7 February 2022, it was noted that the applicant was on a “waitlist for outpatient gastroenterology follow up”. The applicant advised that he saw the specialist through Mater Hospital, “most likely” in 2023. He said there was a delay in seeing the specialists, mostly due to COVID, but now “everything has happened in last 1-2 years”. While I accept that there has been a delay in seeing specialists, the current reports are not available in these proceedings and may have little relevance when considering them in the context of the qualification period. The reports may prove relevant for any recent or new claim for DSP.

16. For these reasons, no impairment rating may be assigned in this claim for DSP.

    Lower Back Pain

17. The applicant reports lower back pain and states that he takes Celebrex for the condition. He explained at hearing that he has used a friend’s mobility scooter to move around and would not be able to drive a motor vehicle because sitting for any period of time would cause him pain. As for treatment, the applicant advised that he does have a care plan and has a referral for physiotherapy. To date, he has not attended any physiotherapy sessions due to COVID restrictions and the lack of availability of his physiotherapist.

18. The applicant’s lower back pain was not fully diagnosed. There is insufficient medical evidence from relevant imaging of the lumbar spine or a specialist review. The condition is also not fully treated or stabilised as the applicant has yet to receive physiotherapy treatments as part of his care plan. It follows that no impairment rating may be assigned to this condition.

    Obesity

19. The applicant’s obesity was fully diagnosed as per Dr Wilson’s health summary sheet dated 24 June 2021. Obesity was listed as a current active problem, however, the condition was not fully treated and stabilised during the qualification period as there is insufficient medical evidence in relation to the recommended treatment for his condition and his prognosis during the qualification period. It follows that no impairment rating may be assigned to this condition.

    Anxiety

20. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. The Introduction to Table 5 of the Impairment Tables provides that a diagnosis of a condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

21. The applicant’s anxiety has not been diagnosed by an appropriately qualified medical practitioner. As such, the applicant’s anxiety cannot be considered as fully diagnosed, treated, and stabilised during the qualification period. No impairment rating may be assigned to this condition.

    Conclusion

22. As at the qualification period, the applicant did not have any medical conditions that were fully diagnosed, treated, and stabilised and as such, impairment ratings cannot be assigned. Accordingly, the applicant did not satisfy paragraph 94(1)(b) of the Act at the qualification period.

    Continuing Inability to Work

23. The qualification criteria for DSP are cumulative, and if any one of the criteria are not satisfied the person will not be qualified for DSP. Since no impairment rating may be assigned to the applicant, it is not strictly necessary for me to consider whether he had a continuing inability to work during the qualification period. 

24. In any event, I note that the applicant did not satisfy paragraph 94(2)(aa) of the Act at the qualification period. The relevant period for POS (the three year period prior to the date of lodgement of his DSP claim), is the period 24 June 2018 to 23 June 2021 because during this period he had not started a POS, as evidenced by the information provided by the Department of Employment, Skills, Small and Family Business and therefore the exemption provisions in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) are not relevant.

25. The applicant does not satisfy paragraph 94(2)(aa) of the Act at the qualification period and therefore does not satisfy subparagraph 94(1)(c)(ii) of the Act.

26. The applicant did not satisfy the continuing inability to work requirement under paragraph 94(2)(a) and subparagraph 94(1)(c)(i) of the Act as there is no corroborating evidence that his impairment is sufficient to prevent him from doing any work or undertaking any training activity independently of a program of support within the next two years. The Employment Services Assessor considered the applicant to have a baseline work capacity of 8 to 14 hours per week and a work capacity of 15 to 22 hours per week within two years with intervention.

27. As the applicant did not satisfy paragraph 94(1)(b) and (c) of the Act at the qualification period, his claim for DSP cannot succeed.

    Decision

28. The decision under review is affirmed.

29.     I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.............................[SGD]...........................................

Associate

Dated: 24 January 2024

Date of hearing:	22 January 2024
Applicant:	Self-represented
Solicitor for the Respondent:	Ms S Navaratnam, Services Australia