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

Mitchell and Secretary, Department of Social Services (Social services second review) [2019] AATA 551 (28 March 2019)
Division:GENERAL DIVISION
File Number:2018/1845
Re:Jennifer Mitchell
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:28 March 2019
Place:Brisbane

The Tribunal affirms the decision under review.
......................[SGD]..............................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – 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)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
28 March 2019
INTRODUCTION

On 15 March 2017, Mrs Jennifer Mitchell (the Applicant) lodged a claim for the disability support pension (DSP).[1]
[1] Exhibit 1, T Documents, T 19, pages 80-111, DSP claim form.
The claim was rejected on 26 October 2017,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 4 December 2017.[3]
[2] Exhibit 1, T Documents, T 28, pages 143-144, Centrelink Notice: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T 35, pages 154-160, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on

8 March 2018.[4]
[4] Exhibit 1, T Documents, T 2, pages 3-8, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 3 April 2018.[5]
[5] Exhibit 1, T Documents, T 1, pages 1-2, Application for Review.
On 15 October 2018, a Hearing was held for this application. At the Hearing, the Applicant was represented by her husband, Mr Allan Mitchell. Both the Applicant and Mr Mitchell appeared by telephone and gave evidence under affirmation at the Hearing.
On 4 March 2019, Executive Deputy President Dr P McDermott RFD reconstituted the Tribunal[6] so that the matter would be determined by Member Mitchell. On 6 March 2019, a Directions Hearing was held. The parties did not wish to make further submissions.
[6] Section 19D of the Administrative Appeals Tribunal Act 1975 (Cth).
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of her claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s claim for DSP form[7] she lists the following disabilities, illnesses or injuries:[8]
-Osteoarthritis
-Polycystic ovarian syndrome
-Hemochromatosis
-Hypertension
-Crohn disease
-B12 deficiency
-Chronic fatigue syndrome
-Psoriatic arthritis
[7] Exhibit 1, T Documents, T 19, pages 80-111, DSP claim form.
[8] Exhibit 1, T Documents, T 38, page 107, DSP claim form.
A file assessment was undertaken by an Assessor, whose professional discipline is listed as ‘Occupational therapist’.[9] The Assessor issued an Assessment Services Recommendation for Disability Support Pension medical eligibility report dated

26 October 2017, recommending that that the Applicant’s claim for DSP was ‘manifestly medically ineligible’.[10]
[9] Exhibit 1, T Documents, T 27, pages 141-142, Assessment Services Recommendation for Disability Support Pension medical eligibility report.
[10] Exhibit 1, T Documents, T 27, pages 141-142, Assessment Services Recommendation for Disability Support Pension medical eligibility report.
A decision was made to reject the Applicant’s DSP application on 26 October 2017, on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[11]
[11] Exhibit 1, T Documents, T 28, pages133-134, Centrelink Notice: Rejection of DSP claim.
The Applicant sought review of the decision and provided further medical evidence. On 30 November 2017, a further file assessment was undertaken by an Assessor, whose professional discipline is listed as ‘Occupational therapist’.[12] The Assessor considered the additional medical evidence and issued an Assessment Services Recommendation for Disability Support Pension medical eligibility report, recommending that the Applicant’s claim for DSP should be rejected.[13]
[12] Exhibit 1, T Documents, T 33, pages 151-152, Assessment Services Recommendation for Disability Support Pension medical eligibility report.
[13] Exhibit 1, T Documents, T 27, pages 151-152, Assessment Services Recommendation for Disability Support Pension medical eligibility report.
On 4 December 2017, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[14]
·     Your conditions of seronegative spondyloarthropathy with Crohn’s Disease and psoriasis, abdominal cut nerve entrapment syndrome and depression are not accepted as being permanent as they have not been fully treated and stabilised.
·     You have not been assigned an impairment rating.
·     You do not have an impairment rating of 20 points or more.
[14] Exhibit 1, T Documents, T 35, pages 154-160, Authorised Review Officer Decision and Notes.
On 12 January 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[15] On the 8 March 2018, the SSCSD affirmed the decision under review.[16]
[15] Exhibit 1, T Documents, T 37, pages 162-163, Referral to Social Services & Child Support Division.
[16] Exhibit 1, T Documents, T 2, pages 3-8, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Following is a summary of the key requirements which relate to the Applicant.
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.Does the applicant have a physical, intellectual or psychiatric impairment;[17]
2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[18] and
3.Does the Applicant have a continuing inability to work?[19]
[17] Section 94(1)(a) of the Act.
[18] Section 94(1)(b) of the Act.
[19] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[20] The Impairment Tables 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.[21] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[22]
[20] Section 6(1) of the Determination.
[21] Section 6(2) of the Determination.
[22] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[23]
[23] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[24]
(a) have been fully diagnosed by an appropriately qualified medical practitioner; and
(b) have been fully treated; and
(c) have been fully stabilised; and
(d)more likely than not, in light of available evidence, to persist for more than 2 years.
[24] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and, whether treatment is continuing or planned in the next two years.[25]
[25] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[26]
(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.
[26] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliability be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[27]
[27] Section 6(7) of the Determination.
The rules for assigning impairment ratings to conditions which are considered permanent are set out in Part 2 of the Determination. Part 3 of the Determination sets out Impairment Tables.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[28]
[28] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referrable to an Applicant’s condition during the Relevant Period.[29]
[29] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, at [25]-[28].
Relevant Period
The Relevant Period in this matter commences on 15 March 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 15 June 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
Issues
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[30] The Respondent considers the Applicant’s impairments include chronic pain,[31] seronegative spondyloarthropathy,[32] abdominal pain,[33] spine[34] and mental health[35] conditions.
[30] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 7, paragraph 28.
[31] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 7-9, paragraphs 31-41.
[32] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 42-47.
[33] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 48-53.
[34] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraphs 54-58.
[35] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 12, paragraphs 59-62.
The remaining issues for the Tribunal to consider are:
1.Whether, within the relevant period did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Directions Hearing on 6 March 2019, Mr Mitchell advised the Tribunal that the Applicant had made a second claim for DSP some months after the claim currently being reviewed by this Tribunal, relying upon the same material and that claim had been granted. He said that he did not understand why DSP had not been granted in relation to the 17 March 2017 claim, however had subsequently been granted.
The circumstances surrounding the subsequent granting of DSP by the Respondent to the Applicant is not before the Tribunal.
The Tribunal has before it in this matter:
-Exhibit 1 – section 27 T Documents (pages 1-199)
-Exhibit 2 – section 38AA Supplementary T Documents (volume 1 pages 1-225, volume 2 pages 226-472)
-Exhibit 3 – Secretary’s Statement of Facts & Contentions dated 20 September 2018 (including attachments)
-Exhibit 4 – Medical Report of Dr Stacey Waugh dated 22 June 2018
-Exhibit 5 – Further Medical Report of Dr Stacey Waugh dated 22 June 2018 (including attachments)
-Exhibit 6 – Job Capacity Assessment Report dated 26 July 2018
-Transcript of Proceedings – Hearing by telephone conducted on 15 October 2018
In light of this evidence, the Tribunal is of the view that the Applicant’s claim for DSP, made on 15 March 2017, was made prematurely. I accept that the Applicant has a number of medical conditions of which both the conditions and pharmaceutical treatments impact upon her ability to function. However, the evidence before the Tribunal shows that during the Relevant Period the Applicant’s conditions were not fully treated and fully stabilised.
The Applicant’s impairments include chronic pain, seronegative spondyloarthropathy, abdominal pain, spine and mental health conditions. It is clear from the evidence before the Tribunal that these conditions were diagnosed during the Relevant Period.
The present issue for the Tribunal is whether at or during the Relevant Period (being 17 March 2017 to 17 June 2017) the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[36] As such the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be likely to persist for more than 2 years.[37]
[36] Section 6(3) of the Determination.
[37] Section 6(4) of the Determination.
The Applicant had been supported in making her claim for DSP by her general practitioner Dr Stacey Waugh. Dr Waugh appeared by telephone at the Hearing and gave evidence under affirmation. Dr Waugh provided a number of medical reports in support of the Applicant’s claim for DSP and these, together with her clinic notes, are before the Tribunal in evidence. Dr Waugh’s evidence at the Hearing indicated that the Applicant’s conditions were not fully treated and fully stabilised during the Relevant Period.
In summary Dr Waugh provided the following evidence in response to questions asked by the Respondent:[38]
[38] Only the evidence relevant to establishing whether the Applicant’s conditions were fully treated and fully stabilised will be summarised.
·     She first saw the Applicant in November 2016.
Seronegative spondyloarthropathy
·     The Applicant was diagnosed with seronegative spondyloarthropathy by Professor Kandia in February 2017.
·     She had deferred to Professor Kandia as he was a rheumatologist and she expected an opinion and management options to come from Professor Kandia.
·     Since diagnosis on 23 February 2017, the Applicant had been started on various medications to treat the spondyloartropathy.
·     The Applicant was at the recommended dose of sulfasalazine by 6 April 2017.
·     An alternative diagnosis was made by Dr Raymond that resulted in the Applicant stopping her sulfasalazine; however, it was restarted in July 2017 after further consultation with Professor Kandia.
·
In February 2017, there were other treatment recommendations that

Professor Kandi was willing to undertake.
·     On 18 July 2017, Professor Kandia wanted to undertake a systematic approach to medication, and that by making recommendations for further treatment he was expecting some functional improvement.
·     When asked by the Respondent: “You would agree that in June 2017 that the Applicant had not undertaken all reasonable treatments for her spondyloarthropathy?” Dr Waugh responded: “Well for most patients with an inflammatory arthritis, that’s the first level of treatment and she was at the maximum of that treatment.” The Respondent further asked: “Yes, but further treatments were recommended, weren’t they?” Dr Waugh responded: “They were in the following months.”[39]
[39] Transcript pages 20-22.
Chronic pain
·     Dr Waugh prescribed the Applicant NORSPAN patches from December 2016 in relation to her chronic pain.
·     On 10 January 2017, Dr Zorrington advised that opioids are a poor choice for chronic pain and recommended that the Applicant should avoid them.
·     On 30 January 2017, Dr Waugh prescribed Duragesic patches to the Applicant because she was having a bad reaction to NORSPAN.
·     The Respondent noted that both NORSPAN and Duragesic patches are opioids. However, Dr Waugh responded “how do you expect to treat chronic pain without opioid medication, especially in [the Applicant’s] case?”
·     On 23 February 2017, Professor Kandia recommended that the Applicant be weaned off the opioid analgesia. Dr Waugh started to ween the Applicant off the Duragesic patches around March 2017 in favour of oxycontin and Endone tablets because “the problem was that I couldn’t really ween her off the medication because her pain levels were so elevated”.
·     On 13 September 2017, Dr Waugh recommended the Applicant to ATODS to help her stop taking Endone as it was having negative side effects. This exercise proved difficult.
·     Until the Applicant was at least referred to ATODS and had her appointment her pain mediation could not be considered optimised[40]
[40] Transcript pages 22-23.
Abdominal pain
·     On 31 March 2017, the gastroenterology team at Cairns Base Hospital recommended the Applicant attend a pain clinic.
·     On April 2017, the Applicant had another hospital admission related to abdominal pain. During this admission a further recommendation was made in relation to the Applicant attending a pain clinic.
·     On 26 May 2017, the Applicant was still waiting on an appointment date at the North Queensland persistent pain clinic.
·     On 20 October 2017, the Applicant attended an assessment with the pain clinic.
·     Dr Waugh was deferring to a pain specialist because their expertise is particularly recommended as an appropriate treatment for chronic pain conditions and she was also keen for them to perhaps try some neuo frequency ablation therapy on the Applicant’s abdominal pain
·     When asked by the Respondent: “Had [the Applicant] by June 2017 undertaken all reasonable treatment for her chronic pain condition?” Dr Waugh replied: “No. No, she hadn’t.”[41]
[41] Transcript pages 23-24.
·     The Applicant had guided injections to the abdomen in February 2017, 10 May 2017, 28 May 2017 and February 2018.[42]
[42] Transcript page 30.
Spine
·
When asked by the Responded: “It only became apparent to you that

[the Applicant] was suffering pain in her lumbar spine after her spondyloarthropathy condition began to respond to rheumatological medication?” Dr Waugh replied: “Well, I was aware of it from the start because that was one of my first investigations but I felt that her inflammatory arthritis was contributing more to her problem and after we treated that and things started to improve, then it became obvious, yes, there was a lot more pain going on with her back.”
·     In June 2017, further testing could have been done for the Applicant’s spine condition but the priority was looking at the Applicant’s inflammatory arthritis. Dr Waugh did not look for further issues until this was “a little more under control”.
·     When asked by the Respondent: “so you would also agree that all reasonable treatment had not been undertaken as at June 2017?” Dr Waugh replied: “I hadn’t done anything with her back at that point, no.”[43]
Mental Health
·     Dr Waugh had been treating the Applicant with antidepressant medication since February 2017; however, had not sent her to see a psychologist or psychiatrist due to cost.[44]
[43] Transcript page 29.
[44] Transcript page 30.

The Respondent contended that none of the Applicant’s conditions were fully treated or fully stabilised during the Relevant Period and therefore the resulting impairments cannot attract an impairment rating under the Impairment Tables.[45]
[45] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 7, paragraph 29.
Based on the medical evidence before the Tribunal, I am not satisfied that the Applicant’s chronic pain, seronegative spondyloarthropathy, abdominal pain, spine and mental health conditions were fully treated and fully stabilised during the Relevant Period. The Applicant had not completed all recommended treatments in relation to ATOIDS, the pain clinic and medication trials or seen a psychiatrist or clinical psychologist, nor was her medication stabilised. Accordingly, the Applicant’s chronic pain, seronegative spondyloarthropathy, abdominal pain, spine and mental health conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Continuing inability to work
As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
It is important to keep in mind that the Tribunal is limited to considering the Applicant’s conditions during the Relevant Period. In this case the Relevant Period is between
15 March 2017 and 15 June 2017. This limitation relates to the diagnosis of the conditions, progress of treatment and how the conditions impacted upon the Applicant at that time. I accept that the Applicant’s conditions have deteriorated since the date of her initial claim and that she has had ongoing treatment for her conditions. Although, between 15 March 2017 and the date of the Hearing of this matter (being 15 October 2018) the Applicant had provided a significant amount of medical evidence in relation to the treatments she had undertaken after 15 June 2017 and the resulting functional impacts caused by her conditions, the Tribunal is limited to looking at the situation during the Relevant Period.
Based on the medical evidence before the Tribunal as it relates to the Applicant’s chronic pain, seronegative spondyloarthropathy, abdominal pain, spine and mental health conditions, during the Relevant Period, I find that these conditions:
(a)were not fully treated or fully stabilised during the Relevant Period;
(b)therefore, could not be considered permanent for the purposes of applying the Impairment Tables; and
(c)I am unable to assign impairment points for these conditions.
I find that the Applicant’s impairments do not attract 20 points or more under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

......................[SGD]..............................
Associate
Dated: 28 March 2019

Date of hearing: 15 October 2018

Advocate for the Applicant: Mr Allan Mitchell, By phone

Advocate for the Respondent:
Ms Jacky Vetter

Solicitors for the Respondent: Department of Human Services

[2019] AATA 551

28 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	15 October 2018
Advocate for the Applicant:	Mr Allan Mitchell, By phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Department of Human Services