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

[2016] AATA 344

Mongan and Secretary, Department of Social Services (Social services second review) [2016] AATA 344 (27 May 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3881
Re	Heather Mongan
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Bernard McCabe
Date	27 May 2016
Place	Brisbane

The decision under review is set aside. In substitution, the Tribunal finds the applicant satisfies the criteria in s 94(1) of the Social Security Act 1991 (Cth).

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Deputy President Bernard McCabe

Catchwords

SOCIAL SECURITY – disability support pension – whether applicant has 20 impairment points under one table – whether applicant has continuing inability to work – applicant has 25 points under multiple tables – applicant has continuing inability to work – decision under review set aside

Legislation

Social Security Act 1991 (Cth) s 94(1)

Secondary Materials

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

REASONS FOR DECISION

Deputy President Bernard McCabe

27 May 2016

1. Ms Heather Mongan applied for the disability support pension (DSP) on 25 November 2014. In order to qualify for the DSP, she must satisfy the medical criteria in s 94(1) of the Social Security Act 1991 (Cth) as at the date of claim (which, for the purposes of this exercise, means within 13 weeks of the claim being lodged). The Secretary of the Department of Social Services accepts Ms Mongan satisfied most of the medical criteria save the last: the Secretary says Ms Mongan does not have a continuing inability to work within the meaning of s 94(1)(c) because she has not actively participated in a program of support for the requisite time.

2. The Secretary accepts Ms Mongan suffers from a range of health problems, including fibromyalgia, osteoarthritis, and anxiety and depression. All of those conditions have been fully diagnosed, fully treated and fully stabilised. The Secretary agrees at least 25 points should be awarded under the impairment tables published in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

   How many impairment points should be allocated?

3. The Secretary originally assessed Ms Mongan as being entitled to 25 impairments points as follows: fibromyalgia (10 points under table one and 5 points under table 2); osteoarthritis (0 points under table 1) and anxiety and depression (10 points under table 5). The job capacity assessor said the applicant was capable of 0-7 hours of work at the time with the possibility she might undertake 8-14 hours per week in the future. On review, the first tier of this Tribunal concluded the applicant should be allocated 5 points in respect of osteoarthritis but otherwise affirmed the decision. That meant the first tier review was satisfied the applicant should be allocated 30 points.

4. There is no question the applicant has enough points to satisfy the requirement in s 94(1)(b). But if the applicant is awarded 20 points or more under one impairment table, she is said to have a severe impairment and will be excused from the requirement in s 94(1)(c) that she participate in a program of support.

5. I should therefore consider whether the evidence establishes 20 points can be allocated under the one table in respect of either fibromyalgia or anxiety and depression. There is no suggestion that any other condition (even conditions not regarded as fully diagnosed, fully treated or fully stabilised) would attract 20 points.

6. The fibromyalgia condition arose out of a bout of glandular fever. The applicant explained at the hearing she experiences aches and pains all over her body. She regularly experiences pain in her lower and upper limbs and in her back. She says she is foggy and lethargic and cannot walk far. She can walk the short distance to the shops from the car park but experiences problems with mobility inside the shops – not that she visits the shops regularly because her husband takes care of the grocery shopping. She said she did not lift anything above shoulder-height because her arms were so heavy. She had difficulty opening containers and lifting small loads. She also said she experienced difficulty driving.

7. I acknowledge those self-reports tend to suggest the applicant may satisfy the descriptors for a 20 point impairment under table one, although they are unlikely to satisfy the descriptors attached to a 20 point impairment in table two, which deals with upper limb issues. But I am not permitted to rely on uncorroborated self-reports when making my assessment.

8. The job capacity assessor concluded the applicant was entitled to 10 points under table one because she was unable to meet all of the descriptors that would need to apply if she were to be awarded 20 points. Dr Kuriakose, her general practitioner, confirms the applicant’s evidence that she experiences brain fog, poor concentration, memory loss and lethargy: exhibit one at pp 88-94. Dr Ng, the treating rheumatologist, reaches essentially the same view: exhibit one at p 78. That means Ms Mongan will have difficulty sustaining even clerical or sedentary tasks. Dr Kuriakose also confirms the applicant has poor balance. That would affect her mobility in a shopping centre, for example. Dr Kuriakose also refers to joint and muscle pain that affects moving and standing: exhibit one at p 61. 

9. I have some doubts over whether the applicant could:

   ·sustain work related tasks of a clerical or sedentary nature for any length of time given the state of her concentration and memory; or

   ·mobilise effectively around a shopping centre on her own.

10. Even so, there is not enough evidence before me to establish the applicant was unable to use public transport or perform light household activities at the relevant time. (The Secretary pointed out in the Statement of Facts, Issues and Contentions that the applicant had told the first tier review in this Tribunal that she could do some light household chores on good days.) I accept she may experience difficulty doing those things now, but there is not enough evidence before me to be satisfied she was so disabled at the start of last year when the assessment must be made. It follows I cannot find she was entitled to 20 impairment points under table one. I do not think I would be justified in allocating more than 10 points in respect of the anxiety and depression conditions given the applicant’s treating psychologist said the symptoms were “moderate” at the relevant time. Once again, I accept the applicant’s health may have deteriorated since that time, but I am required to consider how she was at the beginning of last year after the application was received.

11. It follows I cannot be satisfied the applicant should be allocated 20 points or more under a single impairment table at the relevant time. I am satisfied the applicant is entitled to a minimum of 25 points under multiple tables.

    Is there a continuing inability to work?

12. The requirement in s 94(1)(c) contains several elements. The Secretary says the problem in this case is the applicant has not actively participated in a program of support for 18 months over the 36 month period preceding the date of claim.

13. The applicant did actively participate in a program of support for about 4 months. She was enrolled in a program at the time she made the claim. She did not complete the program and was never formally exited. I note that she was required to move from Matchworks, her provider, to a new provider in August 2015 when Matchworks ceased to provide those services. She did not commence on the program with Epic (the new provider) after attending an initial assessment, and no appointments were scheduled for her because she was unable to participate at the time.

14. Dr Kuriakose says the applicant would not improve any more with the help of a support program: attachment B to the Secretary’s Statement of Facts, Issues and Contentions. The Secretary pointed out Dr Kuriakose’s opinion was provided in October 2015, the better part of a year after the claim and outside the 13 week period. I note Dr Kuriakose has been the applicant’s treating doctor for some time and he specifically said the applicant’s symptoms had not improved over the last few years. The Secretary said I should prefer the advice provided in a letter from Matchworks dated 13 October 2015 (attachment C to the Statement of Facts, Issues and Contentions). The letter said:

    Ms Mongan presented with a number of health barriers upon commencement that were directly affecting her ability to find and maintain employment, and these activities were negotiated at a level that would allow increased capacity for employment during employment assistance.

15. The Secretary says that letter meant the applicant’s capacity for work improved while she was participating in the program of support provided by Matchworks. The letter suggested the applicant was not:

    …prevented, solely because of…her impairment, from improving…her capacity to prepare for, find or maintain work through continued participation in the program.

16. I was not so sure about all this. I asked the Secretary to arrange for a representative of Matchworks to give evidence at the hearing. Mr Paul Hethorn explained he was in charge of the disability services employment program for Matchworks in Queensland at the relevant time. He explained the applicant’s case worker was a lady named Cindy. Mr Hethorn was not aware of Cindy’s experience or background; she no longer worked for the company. He was unable to provide details of the assessment that had been carried out on the applicant and the records were unclear over whether the applicant was likely to improve her capacity.

17. I am not satisfied I should rely on the report provided by Matchworks. The basis of the report was unclear and the witness called to explain the opinion was unable to do so. I prefer the opinion of Dr Kuriakose. It is consistent with the opinion of Dr Ng and Dr Kuriakose’s opinion could have been given during the relevant period because the applicant’s condition is essentially unchanged. The applicant is unlikely to improve her work capacity through a program of support because of her acknowledged impairments. I am satisfied she is properly excused from participating in the program of support requirement in light of s 7(5) of the Social Security (Active Participation for Disability Support Pension) Determination 2014.

18. The applicant has been assessed as having a work capacity of 0-7 hours; there is no reason to suppose she is going to improve on that figure through participation in a program of support. I am satisfied she has a continuing inability to work for the purposes of s 94(1)(c) of the Act.

    Conclusion

19. The applicant satisfies the criteria in s 94(1). The decision under review should be set aside. Subject to her meeting the other eligibility requirements, I decide in substitution the applicant is entitled to receive the disability support pension.

1.       I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

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Associate

Dated 27 May 2016

Date of hearing	18 February 2016
Applicant	In person
Advocate for the Respondent	Ms C Campbell, Department of Human Services