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

[2023] AATA 369

McInnes and Secretary, Department of Social Services (Social services second review) [2023] AATA 369 (13 March 2023)

Appid: McInnes and Secretary, Department of Social Services

Mattertype:    Social services second review

Division:GENERAL DIVISION

File Number:2022/2457          

Re:Garry McInnes  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Member McLean Williams

Date13 March 2023

Place:Brisbane

The decision dated 4 March 2022 is affirmed.

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

Member McLean Williams

CATCHWORDS

SOCIAL SECURITY - Newstart allowance - overpayment –debt due to the Commonwealth – where conceded debt attributable solely to administrative error and recovery of debt waived – previous Tribunal decision set aside - Meaning of “setting aside” of a decision - question as to whether the setting aside of a decision extends to include the elimination of prior facts used in the formulation of the decision set aside - Question as to whether a subsequent decision maker can reconsider the same set of prior facts - Tribunal answer in the affirmative - decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992

Fanning and Secretary, Department of Social Services [2014] AATA 447

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Yazdari and Secretary, Department of Social Services [2014] AATA 34

REASONS FOR DECISION

Member Andrew McLean Williams

13 March 2023

introduction

1. By means of an Application for Review of a Decision filed before the Tribunal on 23 March 2022,[1] Mr Garry McInnes seeks a review of a decision made on 4 March 2022 by Member Doctor B Swanson in the Social Services and Child Support Division (‘SSCSD’) of the Tribunal,[2] thereby affirming a prior decision,[3] made on 15 October 2021 by an Authorised Review Officer (‘ARO’) as a Delegate of the Secretary of the Department of Social Services, wherein the ARO had determined that Mr McInnes was not eligible for a Disability Support Pension (‘DSP’), because he did not have a medical condition with an impairment rating of at least 20 points under the Impairment Tables.

   [1]  T1.

   [2]  T2, pp. 5 - 11.

   [3]  T40, pp. 172-176.

   Issues before the Tribunal

2. The hearing of this application for review took place by means of a telephone hearing, conducted on 18 November 2022.  The issues to be determined by the Tribunal remain whether Mr McInnes meets the qualification requirements for eligibility for DSP.

   factual background

3. Mr McInnes lodged a claim for DSP with the Department of Human Services (‘Centrelink’) on 31 May 2021.[4] 

   [4]  T31, pp. 122- 153.

4. On 30 June 2021, a Centrelink employee assessed that application, and determined that Mr McInnes was ineligible for DSP.[5]  Mr McInnes then sought an internal review of the refusal, and on 15 October 2021 an Authorised Review Officer (‘ARO’) within Centrelink considered and upheld the original refusal decision.[6] 

   [5]  T34, pp. 60-161.

   [6] T40, pp. 172- 176.

5. On 28 October 2021, Mr McInnes applied to the Social Security and Child Support Division (‘SSCSD’) of this Tribunal, for a further review, this time of the ARO decision.[7]  On 4 March 2022, Member Doctor B Swanson conducted a hearing in the SSCSD, by means of telephone, and received further oral evidence from Mr McInnes. 

   [7] T2, p. 10; T42, pp. 183-184.

6. On that same date Member Doctor B Swanson affirmed the decision of the ARO, that Mr McInnes was ineligible for DSP.  In the process, the SSCSD found that Mr McInnes suffers from medical conditions that include a cervical spine (neck) condition; a shoulder condition; depression, hearing loss; and low back pain.  Yet, the SSCSD also found that, none of these (other than the hearing loss) could be categorised on the available medical evidence as ‘fully diagnosed’, ‘fully treated’ or ‘fully stabilised’ for purposes of the DSP application that had been lodged with Centrelink on 31 May 2021.  As regards Mr McInnes’ hearing loss, the SSCSD determined that this condition did not cause sufficient functional impairment to score any impairment points. 

7. In consequence of the findings of the SSCSD on the medical evidence, Mr McInnes scored zero impairment points for all the conditions listed in his application for DSP dated 31 May 2021 and was therefore ineligible for DSP.

8. On 23 March 2022 Mr McInnes commenced this application, for review of the decision of the SSCSD, this time in the General Division of the Tribunal.[8] 

   [8] T1, pp. 1-4.

   Relevant Law

9. The applicable law governing claims for DSP is to be found in the Social Security (Administration) Act 1999 (‘the Administration Act’). Pursuant to sections 41 and 42, considering clause 3 in Schedule 2 of the Administration Act, qualification for DSP and impairment ratings must be assessed as at the date of the claim for DSP, which in this case was 31 May 2021. Subclause 4(1) of schedule 2 of the Administration Act, however, provides that a person may also become qualified within 13 weeks after the date of the application for DSP. This means in fact that there is a window of time – a “qualification period”. In Mr McInnes’ case this runs from 31 May 2021 until 30 August 2021.

10. It is only on the basis of medical evidence from within the qualification period that eligibility for DSP can be assessed.[9]  In the event that Mr McInnes’ circumstances have changed after 30 August 2021, then the appropriate course would be to lodge a fresh application for DSP, and to commence the process of assessing eligibility anew, rather than trying to further agitate the claim that was lodged previously, on 31 May 2021.[10]

    [9]   Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992, at [34]; Yazdari and Secretary, Department of Social Services [2014] AATA 34, at [35].

    [10] T2, p.10; T31.

11. It is section 94(1) of the Social Security Act 1991 (‘the Act’) that sets out the eligibility criteria for DSP. 

12. Section 94(1) provides that a person will qualify for DSP if (and only if):

    (a)the applicant has a physical, intellectual or psychiatric impairment(s);

    (b)the impairment(s), as have been found to exist, attract an impairment rating of 20 points or more from the “Impairment Tables”; and

    (c)the applicant has a ‘continuing inability to work’ (‘the eligibility criteria’).

13. It is to be noted that the eligibility criteria for DSP are cumulative, such that if any one of these are not met, then the applicant will not qualify for DSP.

14. Reference to the “Impairment Tables” in s.94(1) is to the Impairment Tables prepared in accordance with s.27 of the Act. These have been in effect since 1 January 2012. The Impairment Tables themselves specify rules for their use, and the Impairment Tables may only be applied after the applicant’s medical history has been considered; the condition causing the impairment has been assessed to be “permanent”; and the impairment has been assessed as likely to persist for more than two years.[11] In relation to a permanent condition, the Rules provide that this is the case when the condition has been “fully diagnosed”, “treated and stabilised” and likely to persist for more than 2 years.[12]

    [11] Subsections 6(2) – (3) of the Rules.

    [12] Subsections 6(3) – (7) of the Rules.

15. Subsection 6(6) of the Act provides that a condition is fully stabilised if:

    (a)the applicant has undertaken reasonable treatment for their condition with any further, reasonable, treatment being unlikely to result in significant functional improvement enabling the applicant to undertake work within the next two (2) years; or

    (b)the applicant has not undertaken reasonable medical treatment for the condition, and:

    i.significant functional improvement to a level enabling the applicant to undertake work in the next two (2) years is not expected to occur, even if the applicant were to undertake reasonable medical treatment; or

    ii.there is a medical or other compelling reason for the applicant not to undertake reasonable medical treatment.

16. Regarding subsection 6(6), the reasonable medical treatment is that treatment which, for the applicant:

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

    (b)is of reasonable cost;

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

    (d)is regularly undertaken or performed by the applicant;

    (e)has a high success rate; and

    (f)carries a low risk to the applicant.

17. In the matter of Fanning and Secretary, Department of Social Services [2014] AATA 447, it was noted at [33] that:

    ‘The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years”. While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision’.

18. In the matter of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 it was stated at [1] that:

    ‘… the Applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time’.

19. It is not in contention that Mr McInnes has impairments, and that paragraph 94(1)(a) of the Act was satisfied by Mr McInnes during the qualification period.[13]  However, that is not the end of the matter.  Impairments must still attract 20 or more points on the Impairment Tables, and result in “a continuing inability to work”.

    [13] Respondent’s SFIC, paragraph [37].

    Spinal Condition

20. Although the Applicant has cervical spine disease and C6/7 radiculopathy, this was not fully treated and stabilised during the qualification period (31 May 2021 – 30 August 2021) in the manner required by Subsections 6(3) – (7) of the Rules for applying the Impairment Tables; such that it cannot be assigned an impairment rating under the Impairment Tables. 

21. On 18 November 2020, Dr Jed Robusto, neurosurgeon, noted that Mr McInnes’ cervical spine condition was not able to be assessed at that stage and he recommended a review of Mr McInnes in approximately a further six months (approximately May 2021).[14]  A letter from the Sunshine Coast Hospital and Health Service in December 2020 also indicated that at that time Mr McInnes was still on a waitlist for elective surgery, likely to occur within a year after his name having been added to the surgical waitlist.[15] 

    [14] T19, p. 95.

    [15] T22, p. 100.

22. In February 2021, Mr McInnes was prescribed a strengthening exercise program (ie physiotherapy) to improve his range of motion and for pain management, which was then scheduled for a review consultation on 24 March 2021.[16]  In a report dated 21 June 2022 Dr Sean Stephens, neurosurgery PHO stated that Mr McInnes was still awaiting review at the Sunshine Coast University Hospital regarding his shoulder, and still required assessment at the neurosurgery clinic.  Dr Stephens stated that whilst “there is currently no absolute indication for surgical decompression…this is not an unreasonable option”. 

    [16] T25, p. 106.

23. In all the circumstances, the available medical evidence does not support a circumstance in which Mr McInnes’ spine condition can satisfy s.94(1)(b) or (c).

    Shoulder Condition

24. Although Dr Jed Robusto had diagnosed Mr McInnes as suffering from bilateral subacromial[17] pain condition on 18 November 2020,[18] Mr Ian Seels, a physiotherapist in the public system on the Sunshine Coast stated in a report dated 20 May 2021 that further physiotherapy treatment was recommended.[19] Similarly, in a medical certificate dated 11 December 2020 Dr Sawsan Sami Zoghbar specified the condition was ‘temporary’ with an ‘uncertain prognosis’, and that the Applicant was ‘still awaiting surgery’.[20] 

    [17] ie: the shoulder capsule.

    [18] T19, p. 95

    [19] T28, p.112.

    [20] T20, p. 96.

25. On 20 May 2021 Mr Seels also reported that Mr McInnes had declined shoulder surgery, and Mr McInnes was discharged from the physiotherapy clinic with a recommendation that he see an orthopaedic surgeon for review of his shoulder.  There is no evidence before the Tribunal that Mr McInnes has had a further orthopaedic review of his shoulder condition as was recommended by Mr Seels, such that the Tribunal concludes that the available evidence is not sufficient for the Tribunal to conclude that Mr McInnes’ shoulder condition is yet at the stage where it can be said to be fully treated and stabilised, as at the end of the qualification period.

    Depression

26. The introduction to Table 5 (Mental Health Function) of the Impairment Tables requires that a diagnosis of a mental health condition must be made by a psychiatrist or medical practitioner, with assistance from a clinical psychologist.[21]  Yet, the evidence is that Mr Mcinnes was not even seen by a psychiatrist or a psychologist until 26 May 2021 when he saw Dr Tiyatiye (psychiatrist) for the first time, at which time Dr Tiyatiye recommended that Mr McInnes undergo further psychological treatment, in an effort to improve his presenting symptoms.[22]  There is no evidence that Mr McInnes has yet done that.  In those circumstances Mr McInnes’ psychological symptoms also could not be claimed to be fully treated or stabilised in the qualification period.

    [21] T3, p. 38.

    [22] T14, p. 78; T17, p. 88; T29, pp. 115-116.

    Alcohol Use Disorder

27. In his report dated 26 May 2021, Dr Tiyatiye also reports, inter alia, that Mr McInnes has alcohol use disorder, and recommended that Mr McInnes engage with the local community alcohol and other drugs service (‘AODS’) to reduce his alcohol use; to be coupled with some medication changes, and “reasonable therapeutic engagement with a psychologist focussing on CBT and lifestyle modification”.[23]  Yet there is no evidence that Mr McInnes subsequently engaged with a local AODS or that he has undertaken any psychology focussing on CBT, such that it cannot be stated that all reasonable treatment has been attempted.  In these circumstances Mr McInnes’ alcohol use disorder is also not fully treated or stabilised, and he cannot be assigned an impairment rating under Table 6 (‘Functioning related to alcohol, drug, and other substance use’) of the Impairment Guides.

    [23] T29, pp. 113-117; Cognitive behavioural therapy (‘CBT’)

    Hearing Loss

28. In an audiology report dated 30 December 2018, Mr Selvanthan, audiologist, diagnosed Mr McInnes as having sustained bilateral ‘mild to moderately severe’ sensory neural hearing loss, and hearing aids were fitted.  Testing after the fitting of those hearing aids was reported having been successful.[24]  Mr McInnes did however continue to complain of difficulty with hearing, yet a follow up audiological assessment[25] as was conducted on 30 August 2021 revealed normal middle ear functioning, with the hearing aids fitted. 

    [24] T7, pp. 68-69.

    [25] T38, p. 169

29. Although Mr McInnes’s hearing loss condition qualifies as fully diagnosed, treated, and stabilised within the qualification period, these ‘normal’ audiometry results result in zero points under Table 11 (Hearing loss and other functions of the ear) of the Impairment Tables.

    Determination

30. As the Tribunal has found that on the available medical evidence Mr McInnes does not have an impairment rating of 20 points arising in relation to any of his claimed impairments it becomes unnecessary for the Tribunal to consider whether the Applicant has a continuing inability to work, under s.94(1)(c) of the Act, by reason that the requirements of s.94(1) are cumulative, and not in the alternate.

31. As Mr McInnes does not satisfy s.94(1)(b) or (c) of the Act during the qualification period in relation to any of his claimed impairments, he is ineligible for DSP on the application for DSP that was lodged by him on 31 May 2021. In simple terms, this application was one that was commenced prematurely, before the medical evidence was ripe enough to enable the claim to be successful.

32. This finding by the Tribunal does not preclude Mr McInnes making another application for DSP, at some stage in the future, when he is able to obtain medical evidence that the claimed condition(s) qualify as “fully diagnosed”, “treated and stabilised” and “likely to persist for more than 2 years”.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

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

Associate

Dated: 13 March 2023

Dates of hearing:	12 May 2022
Applicant:	By videoconference
Solicitor for the Respondent:	Georgia Wilson, SDSS Litigation Branch