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

Morales and Secretary, Department of Social Services (Social services second review) [2017] AATA 2825 (1 December 2017)
Division:GENERAL DIVISION
File Number(s): 2017/1791
Re:Jocelyn Morales
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

WRITTEN REASONS FOR DECISION
Tribunal:Senior Member D. J. Morris
Date of decision: 1 December 2017
Date of written reasons: 5 January 2018
Place:Melbourne

The Tribunal finds that decision that the Applicant was not qualified for disability support pension was the correct decision, and it is affirmed.
.............[sgd]...........................................................
D. J. Morris
SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – several medical conditions – no condition fully treated or fully stabilised in claim period – not qualified for DSP – decision affirmed – written reasons requested
LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36(1)
Administrative Appeals Tribunal Act 1975 (Cth), s 43(2A)
Social Security Act 1991 (Cth), ss 94(1), 94(5)
Social Security Administration Act 1999 (Cth), Sch 2, cl 4(1)
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 2014 (Cth)
CASES
Negri v Secretary, Department of Social Services (2016) 70 AAR 103
REASONS FOR DECISION
Senior Member D. J. Morris
5 January 2018
PROCEDURAL BACKGROUND

Mrs Jocelyn Morales applied for Disability Support Pension (DSP) on 22 March 2016. An officer of the Department of Human Services (the Department), having considered her application, rejected it on 12 April 2016. This is the original decision.
Mrs Morales requested a review of the original decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision. The ARO affirmed the original decision to reject the claim on 3 November 2016.
Mrs Morales sought review by the Social Services and Child Support Division of this Tribunal (AAT1). On 28 February 2017 AAT1, after conducting a hearing, affirmed the original decision.
Mrs Morales then sought review by the General Division of the Tribunal. The hearing was held on 1 December 2017. Mrs Morales represented herself and was assisted by an Interpreter in the Tagalog language. The Respondent was represented by Mr Tim de Uray. Submissions were made by both parties.
At the conclusion of the hearing, the Tribunal gave an oral decision to affirm the decision under review. Under section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), Mrs Morales requested a statement in writing of the reasons of the Tribunal for its decision on 15 December 2017. The Tribunal therefore provides reasons in writing for the decision which, in accordance with section 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
In Negri v Secretary, Department of Social Services (2016) 70 AAR 103, Bromberg J considered decision of the Tribunal where an oral decision had been delivered and a statement of written reasons had been subsequently supplied. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour stated at [27]:
… as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
In preparing the written reasons which follow, the Tribunal is satisfied that they reflect the hearing held on 1 December 2017. New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.
This statement of reasons is divided into two parts. The first is the applicable law and the background to the matter. The second is a rendering of the reasons given by the Tribunal orally.
PART 1 – APPLICABLE LAW AND BACKGROUND TO HEARING
Qualification for DSP under the Act
In order to qualify for DSP, a person’s claim must be assessed under s 94(1) of the Social Security Act 1991 (the Act) and the qualification criteria for DSP must be satisfied. It must be established 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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
[…]
Mrs Morales' written claim for DSP was made on 22 March 2016 (although the handwritten date on her claim form is 4 April 2016, the 22 March date is recorded in a Department document at page 85 of the T-documents). The Impairment Tables under which her claim must be assessed are the Impairment Tables which came into force on 1 January 2012. These are set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
In terms of the criteria under section 94(1)(c) of the Act, no contention was made that Mrs Morales had participated in the supported wage system. She was therefore required to establish a ‘continuing inability to work’. Relevantly, section 94(2) of the Act provides 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) […] 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.
Section 94(3B) of the Act provides that:
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.
[…]
Consequently, if Mrs Morales is assigned 20 points under the Impairment Tables but does not have a ‘severe impairment’ for the purposes of section 94(3B) of the Act, then the Secretary must be satisfied that the Applicant has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014. If Mrs Morales does have a ‘severe impairment’, she is only required to satisfy sections 94(2)(a) and 94(2)(b) of the Act.
What is the relevant period for considering the claim?
The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:
If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.
Therefore, there are two questions for the Tribunal to consider. First, the Tribunal must consider whether Mrs Morales was qualified for DSP on the date lodged she lodged her claim, 22 March 2016. If not, the Tribunal must then consider whether, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act and the Interpretation Act, the Applicant become qualified on a day within the 13 week period from 23 March 2016 to 22 June 2016 (which will be called in this decision ‘the claim period’).
PART 2 – THE HEARING
The Respondent tendered documents under section 37 of the AAT Act (T-documents and supplementary T-documents).
The Applicant provided a bundle of documents from St Vincent’s Hospital, Melbourne, with a covering sheet dated 8 November 2017. She also provided two letters relevant to her medical conditions: a letter from Neha Dave, registered psychologist, dated 8 August 2017 and a letter from Rebecca Fewster, physiotherapist, dated 14 August 2017.
The Respondent in written submissions conceded that Mrs Morales had impairments in the claim period and submits that she satisfied section 94(1)(a) of the Act.
The Tribunal considered the medical evidence in the T-documents and was satisfied that the Applicant had a back condition, a mental health condition, left eye cataract, carpal tunnel syndrome (CTS), herpes zoster and right plantar fasciitis at the time she made her claim for DSP. I therefore found that she satisfied section 94(1)(a) of the Act in having a physical and psychological impairment at that time.
Back condition
In his medical report dated 4 June 2012, Mrs Morales’ treating general practitioner, Dr Vincent Dinh, diagnosed a wedge crush spinal fracture, T2, caused by a motor vehicle accident in April 1994. Dr Dinh states that this condition makes it difficult for Mrs Morales to sit for long periods or lift heavy weights, and makes it hard for her to twist sometimes. Dr Dinh stated that the Applicant is medicated with analgesics as required. There was evidence in the T-documents that Mrs Morales had surgery in 1994 which was for the insertion of metal plates, and further surgery the following year for the removal of the plates.
Dr Ta Wei Hau of Burnside Medical Centre, Mrs Morales’ general practitioner, provided several medical certificates spanning the claim period and beyond, which record Mrs Morales experiencing lower back pain as an exacerbation of an existing condition.
There was a range of evidence before the Tribunal that satisfied me that this condition of Mrs Morales is a long-established and fully diagnosed condition for which she has had surgical intervention on two occasions. However, for her back condition to be classified as ‘permanent’ and able to be assigned points under the Determination, this condition must also be fully treated and fully stabilised at the time of the claim or within the thirteen week claim period.
Dr Hau stated in his medical certificate dated 20 October 2016 and again in another certificate dated 5 January 2017, well after the claim period, that the prognosis of Mrs Morales’ back condition was uncertain and it was, in his words, pending review. The Tribunal had before it a letter dated 1 March 2017 from Dr Hau which states:
Mrs Jocelyn Morales, age 52 yrs, needs to be reviewed by her neurosurgeon concerning her recent imaging results and final assessment of her disabilities. Unfortunately, she just received a letter informing her that her appointment is only on 11 July 2017. She needs to see the surgeon, before she can received [sic] the final assessment for her injuries and fitness for work.
I give significant weight to Dr Hau’s report in considering whether reasonable treatment is still pending or may lead to some improvement because he is Mrs Morales’ treating doctor and most familiar with her medical conditions and their impact on her. Given his professional assessment and noting the Job Capacity Assessor’s remark in a report dated 16 September 2016 that Mrs Morales has received minimal treatment over the past five years before her DSP claim, the Tribunal found that this condition was not fully treated. In addition, the condition may not have been fully stabilised in the claim period, and cannot be considered for the assignment of impairment points.
Mental health condition
There was reference in the T-documents to a psychological condition of the Applicant and some evidence that this condition might be connected to Mrs Morales’ back pain and perhaps her shingles. Dr Hau refers in his medical certificate of 3 August 2016 to a stress/adjustment reaction from a recent marital breakdown which affected the Applicant’s concentration span and stopped her studying. At the hearing Mrs Morales spokes about the effect of this relationship breakdown on her well-being.
The Determination requires that, before a mental health condition can be assessed under the relevant impairment table, Table 5, there must be a diagnosis by an appropriately qualified medical practitioner. Unless the primary diagnosis was made by a psychiatrist, that diagnosis must be corroborated by a clinical psychologist. I did not find that Dr Hau’s description in the medical certificate is compelling enough to be regarded as a specific diagnosis by him of a mental health condition. It is too vague, and it is not clear whether it was his opinion that this was a transitory condition, or something more enduring. Even if I was to accept this as a diagnosis, Dr Hau is not a psychiatrist so there would need to be a corroborative diagnosis from a clinical psychologist and there was none before the Tribunal. I cannot therefore consider this mental health condition further in regard to the Determination.
Eye condition
Dr Hau refers to cataracts of the left eye in his medical certificate dated 20 October 2016 and that the symptoms for Mrs Morales included blurring of vision and poor night vision. I noted that in the T-documents was a letter to the Applicant from Western Eye Specialists confirming a clinical appointment for an eye examination on 22 September 2016. Mrs Morales submitted a report by Ms Zoe Crasborn, occupational therapist, dated 25 July 2017 in which Ms Crasborn reported that the Applicant had told her she had had cataract surgery on her left eye in June 2017 and on her right eye initially in November 2015 but complications had occurred and Mrs Morales was due for corrective surgery later in July 2017.
It is plain that treatment was still awaited in the qualification period, so Mrs Morales’ eye condition cannot be assessed under the relevant impairment table, Table 12 – Visual Function. Additionally, the introduction to Table 12 requires that the diagnosis of an eye condition capable of assignment of points must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist, and that evidence was not before the Tribunal.
Carpal Tunnel Syndrome condition
In his medical certificate of 20 October 2016, Dr Hau diagnosed CTS and reported that symptoms of the condition are ‘numbness of hand’. The Tribunal had a paucity of other information about this CTS condition, when it first was reported, and no evidence regarding surgical intervention to alleviate symptoms such as a release, or clinical advice that such intervention was not desirable. Mrs Morales confirmed in her submission that she had not had any surgery for this condition. With the lack of evidence of treatment, noting the requirements of section 6(4) of the Determination, I therefore did not consider the functional impact of this condition further.
Herpes zoster
The Tribunal had before it a diagnosis of right-sided dermatomal shingles in a medical letter from specialist pain physicians at the Barbara Walker Centre for Pain Management at St Vincent’s Hospital, dated 1 November 2017. I also had regard to a medical certificate of Dr Hau dated 5 January 2017 which indicates that Mrs Morales has shingles with painful lesions over the right groin and thigh. However, there was a dearth of information about when this condition manifested (other than these reports subsequent to the claim period), the prognosis and particular treatment either from Mrs Morales’ general practitioner or a specialist consultation by a dermatologist. The Tribunal had insufficient evidence to decide whether this is a treatable or intractable condition and so I did not consider this condition further in respect of assigning points under Table 14 – Functions of the Skin, which would be the relevant impairment table in the Determination.
Right plantar fasciitis
AAT1 referred to a letter from Dr Xia dated 31 January 2017 regarding a referral for right plantar fasciitis and a referral for podiatry services, but this letter was not before the Tribunal. There was also an absence of information on medical assessment, treatment or any interventions available, or any specific detail regarding the impact of this condition on Mrs Morales’ ability to function. I therefore did not consider this condition further in relation to the assignment of impairment points.
Conclusion
The Determination sets out in section 6(4) how the permanency of conditions must be assessed. As I explained to Mrs Morales at the hearing, ‘permanent’ in this sense has a special meaning. It does not mean that the Applicant does not have impairments, especially in relation to her long-established back condition. But the problem in regard to her claim is that there is insufficient corroborative medical evidence before the Tribunal that was relevant to the claim period. Some of the later medical documents that Mrs Morales had submitted may be relevant to a future claim, but not to the claim made in March 2016, which is the subject of this review.
I found that the requirements of section 94(1)(b) of the Act were not satisfied because zero impairment points could be assigned on the date she made her claim for DSP or in the thirteen week period thereafter. Even if the Tribunal is incorrect on this point, there is no reasonable prospect that 20 or more points could be assigned under one impairment table, which would obviate the requirement in section 94(1)(c) of the Act for Mrs Morales to have undertaken a program of support for eighteen months in the three year period before she lodged her claim. The Department records submitted by the Respondent reveal that Mrs Morales has not undertaken such a program of support.
The Tribunal makes the point that it may be frustrating for people who are awaiting consultation appointments, especially with specialists, in relation to particular continuing medical conditions. However, unless there is evidence from medical professionals that there is not likely to be any significant functional improvement in the person’s condition to a level enabling the person to undertake work in the next two years or there is a medical or other compelling reason for the person not to undertake reasonable treatment, the decision-maker is unlikely to conclude that a condition is fully stabilised. The outcome, understandably disappointing as it will be for Mrs Morales, is that her claim dated 22 March 2016 cannot succeed. The claim does not satisfy section 94(1)(b) of the Act.
DECISION

The Tribunal finds that the original decision that the Applicant was not qualified for DSP in the claim period was the correct decision, and it is affirmed.

37. I certify that the preceding 36 (thirty‑six) paragraphs are a true copy of the written reasons for the decision of Mr D. J. Morris

................[sgd]........................................................
Associate
Dated: 5 January 2018

Date of hearing: 1 December 2017

Applicant: In person

Advocate for the Respondent: Mr Tim de Uray

[2017] AATA 2825

1 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing:	1 December 2017
Applicant:	In person
Advocate for the Respondent:	Mr Tim de Uray