Mitchel and Secretary, Department of Social Services (Social services second review)
[2016] AATA 387
•9 May 2016
Mitchel and Secretary, Department of Social Services (Social services second review) [2016] AATA 387 (9 May 2016)
Division
GENERAL DIVISION
File Number
2015/3209
Re
Noel Mitchel
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Ms K Millar, MemberDate 9 May 2016 Date of written reasons 9 June 2016 Place Adelaide The Tribunal affirms the decision under review.
........... [Sgd] .............................................
Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Chronic headaches/migraine – Condition fully diagnosed, treated and stabilised during assessment period – Potentially attracted 20 points under Impairment Tables – No severe impairment – Program of support requirements not met – Decision under review affirmed.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, ss 41, 42 and Schedule 2, clause 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011Social Security (Requirements and Guidelines—Active Participation for Disability Support Pension) Determination 2011
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Deputy President K Bean
Ms K Millar, Member9 June 2016
The applicant, Mr Mitchel, has suffered headaches from childhood, and was eventually diagnosed with a subarachnoid cyst. Unfortunately none of the many treatments he has tried have given him any significant relief, and he continues to suffer from debilitating headaches every day.
Mr Mitchel contacted Centrelink about applying for a Disability Support Pension (DSP) on 19 December 2014 and lodged his claim on 31 December 2014.
Although accepting that Mr Mitchel suffers from a physical impairment, a Centrelink delegate found he did not meet the requirement that his impairment have a rating of at least 20 points under the Impairment Tables. This was because the delegate did not accept Mr Mitchel’s condition was fully diagnosed, treated and stabilised, which is necessary before impairment points can be assigned. This decision was affirmed by an Authorised Review Officer (ARO) on 12 February 2015.
The Social Security Appeals Tribunal (SSAT) affirmed the decision on a different basis on 27 May 2015, finding the condition was fully diagnosed, treated and stabilised but that the functional effect of the condition did not result in the required 20 impairment points.
On 29 June 2015, Mr Mitchel applied for a review of this decision and a hearing was held before us on 2 May 2016.
On 9 May 2016, we delivered our Decision and Reasons orally, and on 18 May 2016, Mr Mitchel requested written Reasons for our Decision. These Reasons have been prepared in answer to that request.
ISSUES AND STATUTORY FRAMEWORK
The issue before us is whether Mr Mitchel is qualified for DSP.
The time during which Mr Mitchel must become qualified for the DSP starts on the date he first contacted Centrelink about his payment,[1] and ends 13 weeks after this date.[2] Mr Mitchel first contacted Centrelink on 19 December 2014, and the 13 week period ends on 20 March 2015. This is the assessment period for the purpose of assessing Mr Mitchel’s claim for DSP.
[1] If a claim is made within 14 days of the first contact, the claim is deemed to have been made on the date of the first contact (subsection 13(1) of the Social Security (Administration) Act 1999 (Administration Act)).
[2] Administration Act sections 41 and 42, and Schedule 2, clause 4; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Section 94 of the Social Security Act 1991 (the Act) sets out the requirements to qualify for DSP. At the time Mr Mitchel applied for DSP, the requirements included at subs 94(1) were that:
(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 requirement that a person have a continuing inability to work differs depending on whether the person has a “severe impairment”, which means an impairment which attracts 20 points under one Impairment Table. Unless a person has a severe impairment, then for that person to be considered to have a continuing inability to work, the person must have actively participated in what is known as a “program of support” within the 36 months immediately prior to making their claim for DSP.
We will proceed to consider each of these requirements.
DOES MR MITCHEL HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Dr Becker, Mr Mitchel’s General Practitioner, has provided a medical report in which he confirms that Mr Mitchel has chronic headaches. Dr Moey, a Consultant Neurologist, has also reported that he suffers from migraine. The Secretary does not dispute, and we accept, that Mr Mitchel suffers from a physical impairment and satisfies subs 94(1)(a) of the Act.
AT THE RELEVANT TIME, DID MR MITCHEL HAVE AN IMPAIRMENT RATING OF 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
The requirements
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
The Impairment Tables set out rules about when an impairment rating can be assigned as well as a rating system for impairment. To be given a rating under the Impairment Tables, the impairment must be permanent and more likely than not to persist for two years (subs 6(3) of the Determination). To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner, be fully treated, fully stabilised and more likely than not to persist for more than two years (subs 6(4)).
The Determination sets out at subs 6(6) when a condition is considered fully stabilised. A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years (subs 6(6)(a)).
Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity (subs 6(7)(c)) and that has a high success rate (subs 6(7)(e)).
Is the condition fully diagnosed, treated and stabilised?
Dr Becker and Dr Moey have diagnosed a condition of chronic headaches/migraine, and the Secretary accepts that Mr Mitchel’s condition has been fully diagnosed, as do we. However, the Secretary disputes that Mr Mitchel’s condition was fully treated and stabilised in the assessment period.
Mr Mitchel said in his evidence that he has sought a number of treatments over the years, and in fact has pursued all available treatment. This has included having a shunt inserted to reduce intracranial pressure, and undergoing further surgery to have the shunt replaced.[3]
[3] Exhibit 4, Report of Dr Moey dated 26 June 2014.
Mr Mitchel acknowledged that as at the assessment period, he was undergoing a further, more experimental form of treatment, namely Botox injections administered by Dr Moey, with the aim of reducing tension in his neck and shoulders and thereby relieving his headaches. These injections were administered between September 2014 and March 2015, with the last injection occurring on 6 March 2015, only about two weeks before the end of the assessment period.
The Secretary contends that, as treatment with Botox injections was ongoing in the assessment period, Mr Mitchel’s condition was not fully treated and stabilised. The Secretary also relies on a report of Dr Moey dated 6 January 2016, in which Dr Moey stated “I have exhausted all treatment options”. The Secretary contends that it was not until the date of that report that the condition was fully treated and stabilised.
The Secretary also points to the fact that as at the assessment period, Mr Mitchel had not attended the Pain Clinic at the Royal Adelaide Hospital (RAH), but he had done so since. The Secretary contends that this was another form of treatment which had not been explored as at the assessment period, with the result that the condition was not fully treated and stabilised.
However, Dr Becker gave evidence that the Botox injections were given as a trial in an attempt to reduce Mr Mitchel’s pain, in the absence of any other options. While it was hoped that these would result in a temporary improvement, this was not necessarily expected to be the case and nor was it expected that the injections would result in any long term improvement in Mr Mitchel’s pain such that he would be able to work.
Similarly, on the material before us, we find that the subsequent referral to the RAH Pain Clinic was done with a view to seeing if anything further could be done to help and support Mr Mitchel, rather than with the expectation this was likely to result in a significant functional improvement to a level enabling Mr Mitchel to undertake work in the next two years. Although it is not strictly relevant for our purposes, we note that in the event, attending the Pain Clinic has not resulted in any improvement in Mr Mitchel’s condition.
In summary, we consider that as at the assessment period neither the Botox treatment nor attendance at the RAH Pain Clinic were likely to result in significant functional improvement to a level that would allow Mr Mitchel to undertake work in the next two years. We are therefore satisfied that his condition was fully diagnosed, treated and stabilised and that an impairment rating can be assigned to his condition.
What is the appropriate impairment rating?
One of the challenges in this matter is defining the precise functional impacts of Mr Mitchel’s headaches on him and determining which Impairment Tables are applicable. Often the impairment flows directly from the condition, such as depression leading to an impairment of mental health function, however the impairment caused by headache, or indeed by any pain condition, is not as obvious.
The introduction to the Impairment Tables makes specific comment about assessing the functional effect of pain. It says in relation to pain:
Assessing functional impact of pain
6(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
In addition to his primary symptom of debilitating pain, Mr Mitchel cites problems with his concentration, memory, vision and stability as a result of his condition, and we have considered what impairment may result in each of these areas. Having regard to Mr Mitchel’s complaints, and the medical evidence, we have determined that Tables 1, 7, 12 and 15 are all potentially relevant.
Table 7 – Brain Function
This Table captures impairments relating to concentration and memory, amongst others.
We note that the impairment of Mr Mitchel’s concentration is supported by the report from Dr Becker as well as by Dr Becker’s oral evidence, in which he said the main impact of Mr Mitchel’s headaches is on his concentration.
However, with respect to any impairment of memory, we note there is no medical evidence before us to corroborate Mr Mitchel’s evidence that he has a problem with his memory, as distinct from problems with concentration. Therefore, while we accept that he may suffer problems with his memory, we find that there is insufficient medical evidence to allow us to take that impairment into account in allocating points under Table 7. This follows from the fact that the introduction to Table 7 requires corroborating medical evidence of a person’s impairment.
The criteria for 5 impairment points under Table 7, as it relates to concentration is that:
There is a mild functional impact resulting from a neurological or cognitive condition.
(1)The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:
…
(b) attention and concentration;
Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.
Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.
The criteria for 10 impairment points is that:
There is a moderate functional impact resulting from a neurological or cognitive condition.
(1)The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
…
(b) attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
As we have already mentioned, Dr Becker, in both his medical report and oral evidence, said that the primary effect of the condition on Mr Mitchel relates to his ability to concentrate. This was evident during the hearing as after approximately an hour Mr Mitchel started having difficulty completing sentences and appeared to be in pain. After two to three hours he was holding his head and required the assistance of his wife, Mrs Mitchel, in making closing submissions.
Mr Mitchel has also provided a written statement describing the effect of his condition, and we have had regard to this statement[4], in particular the severity of his pain in the first two hours of the day, his sensitivity to light and the increase to his level of pain on standing from sitting, or moving from lying down to sitting.
[4] Exhibit 6.
We note that during his evidence, Mr Mitchel said he nevertheless manages activities such as bathing, cleaning, laundry and tasks around the house without help because he persists despite the pain. He can also do shopping for a small number of items.
On the evidence before us, we consider that Mr Mitchel satisfies the criteria for a 10 point rating under this Table. We note that although he tries to be as independent as possible, he requires occasional assistance from his wife, particularly when he is in severe pain, and she does all of the cooking and most of the shopping. The evidence also demonstrates that he has difficulty with sustained concentration, particularly when he has a severe headache.
Table 12 – Visual Function
In regard to vision, Dr Becker gave evidence that vision had not been a feature in his consultations with Mr Mitchel. Dr Moey reports that Mr Mitchel suffers visual aura as a result of migraine, but also does not report a loss of vision.
However, a report of Associate Professor Boyce (a Consultant Neurologist), provided for insurance purposes and completed after the assessment period, confirms that Mr Mitchel is progressively losing the vision in his right eye.
Noting that Associate Professor Boyce’s report was completed about six months after the assessment period, we have ultimately concluded that there is insufficient medical or other evidence to corroborate a loss of vision during the assessment period as required by the introduction to Table 12.
Table 15 – Functions of Consciousness
Mr Mitchel has also been assessed under Table 15, the introduction to which states:
Table 15 is to be used where the person has a permanent condition resulting in functional impairment due to involuntary loss of consciousness or altered state of consciousness, (e.g. epilepsy, some forms of migraine, or poorly controlled diabetes mellitus, transient ischaemic attacks).
One of the difficulties with applying this Table to Mr Mitchel is that even a 5-point rating under the Table requires that the person has “episodes of altered state of consciousness”. On the evidence before us, we have reservations as to whether Mr Mitchel’s headaches do in fact result in episodes of “altered state of consciousness”, or simply debilitating pain which affects his ability to function.
However, even assuming that Mr Mitchel does suffer from episodes of altered consciousness, it is clear that a maximum of 5 points could be allocated under this Table. That is, because in order to attract a rating of 10 points, a person must be assessed as “unlikely to be granted a driver’s licence …”.
We note that Mr Mitchel currently holds a driver’s licence, which was renewed in the last two months after a medical report was provided from Dr Becker, and he also held a licence during the assessment period. Mr Mitchel and Dr Becker both gave evidence that Mr Mitchel has undertaken not to drive when he has a headache. Mr Mitchel says it was suggested by doctors at the hospital that his licence be cancelled but that he had “begged” that his licence not be removed. Mr and Mrs Mitchel explained that they live some distance from Gawler and they both need to be able to drive. Nevertheless, as he holds a licence and held one at the relevant time, it is clear that Mr Mitchel could not be allocated a rating of 10 or more points under Table 15.
Table 1 – Functions requiring Physical Exertion and Stamina
We note that the impact of chronic pain conditions can also be assessed under Table 1. The relevant criteria in Table 1 relate to walking or performing physically active tasks and are not especially well suited to capturing the impact of Mr Mitchel’s headaches. However, we note from Mr Mitchel’s evidence that he is restricted to light or low impact activities and some physical activities, such as standing up while trying to weed the garden, cause a severe exacerbation of his headache. We also consider his report of these symptoms to have been corroborated by the medical evidence before us, including Dr Becker’s evidence.
Having regard to this evidence, we are satisfied that Mr Mitchel experiences symptoms when performing physically demanding activities and that due to these symptoms, he has at least occasional difficulty with such tasks. Accordingly, we consider that he meets the criteria for a rating of 5 points under this Table.
Other impairments
Dr Becker also gave evidence that Mr Mitchel had been referred to an ear, nose and throat surgeon due to problems with his balance. Dr Moey does not refer to Mr Mitchel having problems with his balance, although Associate Professor Boyce says Mr Mitchel suffers postural hypotension.
We have considered whether this aspect of Mr Mitchel’s condition could also attract impairment points. However, as corroborating medical evidence of an impairment of balance due to his condition is not apparent from the medical reports as at the assessment period, we do not consider we can assign impairment points to this impairment.
Conclusion
As at the assessment period, we consider that Mr Mitchel’s impairments potentially attracted up to 10 points under Table 7, up to 5 points under Table 15 and up to 5 points under Table 1, giving a maximum of 20 points.
However, as he does not have an impairment attracting 20 points under one Table, in order to qualify for DSP, Mr Mitchel must also demonstrate that as at his date of claim he met the program of support requirements.
DID MR MITCHEL MEET THE PROGRAM OF SUPPORT REQUIREMENTS?
In order to meet these requirements, Mr Mitchel would need to show that, as at his date of claim, he:
·Had actively participated in a program of support for 18 of the previous 36 months;
·Had completed a program of support which went for less than 18 months;
·Had been participating in a program of support which was terminated before his date of claim due to his degree of impairment; or
·Was participating in a program of support at the date of his claim but continuing participation would not assist him to find work given the degree of his impairment.[5]
Unfortunately, on the material before us, Mr Mitchel does not meet any of these requirements.
[5] Social Security (Requirements and Guidelines—Active Participation for Disability Support Pension) Determination 2011, section 5.
The relevant Centrelink records show that he was briefly engaged in a program of support between January and March 2012. There is little before us to indicate precisely why this program ended, but Mr Mitchel explained in his evidence that he was still employed until early 2013 in any case.
It is clear on the evidence that Mr Mitchel was not participating in a program of support when he lodged his DSP claim in December 2014, had not participated in one for 18 months out of the 36 months prior to lodging his claim, had not completed a program of support before lodging his claim, and nor had he been participating in a program of support which was terminated due to the effects of his impairment.
As he had not met these requirements, it accordingly follows that Mr Mitchel did not satisfy the terms of subs 94(1)(c) of the Act, and did not qualify for DSP during the assessment period. Even though we have found that Mr Mitchel’s impairments did potentially attract a rating of 20 points under the Impairment Tables, it follows that we must nevertheless affirm the decision under review, denying his claim for DSP.
ADDITIONAL COMMENTS
We should add that, in light of our conclusions, clearly if Mr Mitchel did engage in a program of support with a view to satisfying these requirements, he may qualify for DSP in the context of a future claim.
We should also note in this context that reference was made at the hearing to Mr Mitchel receiving one or more lump sum insurance payments. This raises the possibility that Mr Mitchel may in any event be subject to a preclusion period, during which DSP may not be payable to him, regardless of whether he qualifies for it. We do not need to consider this issue further, but it may arise in the event Mr Mitchel does put in a further claim for DSP.
Finally, we acknowledge the point made by both Mr and Mrs Mitchel during the hearing, that Mr Mitchel has pursued all available treatment in an attempt to improve his condition, but has been left in a situation where it is medically impossible for him to work. They pointed out that this is not a matter of choice for him and implied that in circumstances where a person is clearly unable to work for medical reasons, they should qualify for income support which is not linked to job-seeking requirements, i.e. the DSP.
We see the force in this point. However, as we sought to explain at the hearing, the Parliament has enacted legislation which requires that, in order to qualify for DSP, a person must not only demonstrate that they are unable to work, but also that they suffer impairments attracting 20 points under the Impairment Tables and, in the case of a person who does not have a severe impairment, that they have met the program of support requirements. The legislation is binding on us, and we have no discretion to depart from it.
DECISION
The decision under review is affirmed.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean and Ms K Millar, Member .......... [Sgd] ..................................
Associate
Dated 9 June 2016
Dates of hearing 2 and 9 May 2016 Applicant In person Solicitors for the Respondent Mr A Parker
Department of Human Services
Freedom of Information and Litigation Branch
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