Metcalfe and Secretary, Department of Social Services (Social services second review)
[2019] AATA 3945
•30 September 2019
Metcalfe and Secretary, Department of Social Services (Social services second review) [2019] AATA 3945 (30 September 2019)
Division:GENERAL DIVISION
File Number: 2019/1962
Re:Troy Metcalfe
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Belinda Pola, Senior Member
Date:30 September 2019
Place:Brisbane
The decision under review is affirmed.
.........................[sgd]...............................................
Senior Member Belinda Pola
Catchwords
SOCIAL SECURITY – disability support pension – DSP – whether condition is fully diagnosed, fully treated and fully stabilised – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fanning and Secretary, Department of Social Services [2014] AATA 447
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Smalldon and Secretary, Department of Social Services [2015] AATA 2REASONS FOR DECISION
Belinda Pola, Senior Member
30 September 2019BACKGROUND
1. The Applicant, Mr Metcalfe, lodged a claim for the Disability Support Pension (‘DSP’) on 10 July 2018[1]. A Job Capacity Assessor conducted a file review and prepared a Disability Support Pension Medical Assessment Recommendation in respect of the Applicant on 17 July 2018[2].
[1] Exhibit 1, T21, pages 102 to 132.
[2] Exhibit 1, T22, pages 133 and 134.
2. On 28 July 2018, the Department of Human Services rejected the Applicant’s claim for the DSP[3]. This decision was reviewed and affirmed by an Authorised Review Officer (‘ARO’) from Centrelink on 16 October 2018[4].
[3] Exhibit 1, T23, pages 135 and 136.
[4] Exhibit 1, T27, pages 141 to 146.
3. On 25 October 2018, the Applicant requested that the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (‘Tribunal’) review the Department of Human Services decision to reject his claim for the DSP[5]. The SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim on 11 March 2019[6].
[5] Exhibit 1, T28, pages 147 and 148.
[6] Exhibit 1, T2, pages 4 to 12.
4. The Applicant applied to the Tribunal for a second review of this decision on 9 April 2019[7].
[7] Exhibit 1, T1, pages 2 and 3.
JURISDICTION
5. This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.
6. Section 179(1) of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’), provides that:
Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
7. The Tribunal has jurisdiction to hear this application.
ISSUES
8. The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to his claim lodged on 10 July 2018, and ending 13 weeks later on 9 October 2018.
9. For the purposes of this application and the evidence submitted and provided orally to the Tribunal, it is clear the Applicant had impairments during the qualification period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’). Indeed, the Respondent accepted that the Applicant had impairments for the purposes of s94(1)(a)[8].
[8] Exhibit 2, page 2 paragraph 12, and page 6 paragraph 35.
10. The remaining issues for the Tribunal to consider are:
(i)Whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) within the qualification period; and
(ii)If so, did the Applicant have a continuing inability to work?
RELEVANT LEGISLATIVE PROVISIONS
11. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s 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; and
…
12. To be medically qualified for a DSP a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.
13. Section 26(1) of the Act provides that “the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.
14. It is the Tribunal’s role to stand in the shoes of the original decision-maker[9] and determine whether the decision was the correct or preferable one on the material before the Tribunal[10]. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.
[9] Senior Member Hunt in Faulkner and Comcare [2007] AATA 1541 [27].
[10] Bowen CJ and Deane J in Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409,419.
15. Section 6 of the Determination states that “the impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[11]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[12].
[11] Section 6(1) of the Determination.
[12] Section 6(2) of the Determination.
16. An impairment rating may only be assigned to an impairment if[13]:
(a) the person’s condition causing the impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of
(c) evidence, to persist for more than 2 years.
[13] Section 6(3) of the Determination.
17. Further, for a condition that is considered permanent in s6(3)(a) of the Determination, the condition must also[14]:
(a) be fully diagnosed by an appropriately qualified medical practitioner; and
(b) be fully treated; and
(c) be fully stabilised; and
(d) be more likely than not, in light of available evidence, to persist for more than 2 years.
[14] Section 6(4) of the Determination.
18. When considering a condition that has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[15]:
(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.
[15] Section 6(5) of the Determination.
19. A condition is considered fully stabilised if[16]:
(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.
[16] Section 6(6) of the Determination.
20. Reasonable treatment is a treatment that[17]:
[17] Section 6(7) of the Determination.
(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.
21. Section 6(8) of the Determination states that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.
22. Sections 7 to 11 of the Determination specify how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.
23. In particular, s8(1) of the Determination stipulates that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.
24. While s11(1)(c) of the Determination states that in assigning an impairment rating “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.
Continuing inability to work
25. As previously detailed in paragraph 11 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a ‘continuing inability to work’. Section 94(2) of the Act requires that:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—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.
26. A severe impairment is defined in s94(3B) of the Act:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
27. Section 94(3C) of the Act states that:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
28. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘POS’).
QUALIFICATION PERIOD
29. Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the qualification period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[18].
[18] Part 2, clause 4(1)(d) of the Administration Act.
30. For the purposes of this decision, the day which the Applicant’s claim for DSP was registered with Centrelink was 10 July 2018, and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 9 October 2018.
31. This means that for a claim to be successful, the person must be qualified for DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[19].
[19] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012) [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007) [1]; Fanning and Secretary, Department of Social Services [2014] AATA 447 (4 July 2014) [31].
CONSIDERATION
32. The Application was heard in Brisbane on 3 September 2019, with the Applicant appearing via telephone as he had been admitted to a Department of Veteran Affairs (‘DVA’) hospital located in Strathpine for mental health treatment. The Respondent was represented in person by Mr Rick McQuinlan. The Tribunal considered oral submissions made by both the Applicant and the Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).
33. In cross-examination from the Respondent, the Applicant confirmed that his day to day activities were consistent with evidence previously provided to the SSCSD of this Tribunal[20]. At the time of the application, he confirmed that his day to day activities would include rest, with the Applicant only able to provide limited help with domestic duties, such as vacuuming, hanging clothes on the line, and light gardening maintenance; with his wife undertaking most of the domestic duties. The Applicant confirmed he was unable to drive long distances and required rest after 45 minutes, and he was able to walk about 1 kilometre. He advised that he was able to attend to his own self-care including, showering, dressing and toileting.
[20] Exhibit 1, T2, pages 7 and 8, paragraphs 16 to 23.
34. The Tribunal is satisfied after review of the evidence before it that the Applicant suffered impairments during the qualification period in terms of s94(1)(a) of the Act. Indeed, the Respondent accepted that the Applicant had impairments for the purposes of s94(1)(a)[21]. The Respondent considered the following impairments relevant to the Application:
[21] Exhibit 2, page 2 paragraph 12, and page 6 paragraph 35.
·Spinal condition;
·Lower limb condition; and a
·Mental health condition.
35. The Tribunal notes that the Applicant did not stipulate his mental health condition in his original DSP application[22]. The Tribunal notes the evidence presented throughout Exhibit 1, verifying the Applicant’s mental health condition[23]. As mentioned in paragraph 32 of this Decision, the Applicant participated in the hearing via telephone from hospital where he was receiving treatment for his mental health condition.
[22] Exhibit 1, T21, page 126.
[23] Exhibit 1, T4 pages 56 and 61, T13 page 85, and T14 page 87.
36. For each of the impairments above, the Tribunal needs to consider whether they satisfied s94(1)(b) and (c) of the Act.
37. The Tribunal will now consider each of these impairments in accordance with s94(1)(b) of the Act, in particular whether each of these impairments meet the relevant provisions contained within the Determination as outlined in paragraphs 14 to 24 of this Decision.
Spinal condition
38. On the basis of submitted evidence from Doctor’s Attanayaka[24], Dupre[25], Morgan[26] and Zeller[27]; the Tribunal accepts that the Applicant’s spinal condition had been fully diagnosed at the time of the application for the DSP. The Respondent also accepted that the Applicant’s spinal impairment was fully diagnosed in the qualification period[28].
[24] Exhibit 1, T9, page 72.
[25] Exhibit 1, T17, page 91.
[26] Exhibit 1, T11, page 76.
[27] Exhibit 1, T20, page 101.
[28] Exhibit 2, page 8, paragraph 49.
39. The Tribunal considered evidence from the Applicant in relation to a preliminary consultation appointment on 27 September 2018 with the Royal Brisbane and Women’s Hospital (‘RBWH’) Multidisciplinary Pain Centre[29]. The Applicant indicated that he attended the preliminary appointment, but that there was a long wait time to receive treatment (up to 12 months). The Applicant advised he was currently seeking treatment in Kingaroy (as it was closer to his home). No treatment was undertaken in the qualification period.
[29] Exhibit 1, T24, page 137.
40. The Applicant’s evidence was that he was receiving treatment for his spinal condition outside the qualification period for the DSP application.
41. The Tribunal finds that the Applicant’s spinal condition was not fully treated and in turn, not fully stabilised during the qualification period in accordance with the Determination. Therefore, no impairment rating could be assigned for the Applicant’s spinal condition.
Lower limb condition
Submitted evidence in relation to the Applicant’s lower limb condition included a:
· Report from Dr Attanayaka[30] noting issues with the Applicant’s lower limbs, which did not provide a diagnosis; a
[30] Exhibit 1, T9, page 72.
· Medical Certificate from Dr Morgan[31] describing the Applicant’s conditions which did not provide a diagnosis; and an
[31] Exhibit 1, T10, page 73.
· X-Ray report from Dr Jones[32] that noted the Applicant showed “low grade traction perisotites is seen in the cortex of the shafts of the tibia without evidence of stress fractures” and “no evidence of stress fractures in the feet with ankle uptake normal”, which did not provide a diagnosis of the Applicant’s lower limb condition.
[32] Exhibit 1, T16, page 90.
On the basis of submitted evidence from Doctors Attanayaka, Morgan and Jones, the Tribunal finds that there was no diagnosis of the Applicant’s lower limb condition as required by the Determination. Therefore no impairment rating could be assigned for the Applicant’s lower limb condition.
Mental Health condition
The Applicant participated in the hearing from hospital where he was receiving treatment for his mental health. The Applicant provided evidence that he had begun taking medicine to treat his anxiety in January 2019, falling outside the qualification period.
Submitted evidence to the Tribunal contained a medical certificate from Dr Morgan (a General Practitioner) of 22 September 2017, diagnosing the Applicant with anxiety and depression[33].
[33] Exhibit 1, T13, page 85.
Table 5 of the Determination[34] expressly stipulates that the diagnosis of a mental health condition (or impairment) “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)”. [emphasis added]
[34] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, page 22.
In the absence of evidence from the Applicant of a diagnosis made by a psychiatrist or evidence from a clinical psychologist; the Tribunal finds that the Applicant’s mental health condition was not fully diagnosed, therefore an impairment rating could not be assigned for the Applicant’s mental health condition.
None of the identified impairments can be assigned impairment ratings under s94(1)(b) of the Act.
There is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola
…………[sgd]………………
Associate
30 September 2019
Date of hearing: 3 September 2019
Applicant: Telephone
Solicitors for Respondent: Mr McQuinlan
Department of Human Services‘Annexure 1 – Exhibit Register’
Exhibit
Number
Description
1
Section 37 T Documents received 9 May 2019 (paged 1 to 207)
2
Secretary’s Statement of Facts. Issues and Contentions dated 7 August 2019 (paged 1 to 16)
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Appeal
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6
4