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

[2017] AATA 3053

Mowbray and Secretary, Department of Social Services (Social services second review) [2017] AATA 3053 (8 December 2017)

Division:GENERAL DIVISION

File Number:           2016/4072

Re:Alan Mowbray

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:8 December 2017

Place:Melbourne

The Tribunal affirms the decision under review.

...........[sgd].............................................................

Miss E A Shanahan, Member

SOCIAL SECURITY – claim for disability support pension – Australian residency requirements not met – impairment rating less than 20 points – claim rejected – review by AAT Tier 1 affirmed – hearing on papers – decision affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Miss E A Shanahan, Member

8 December 2017

1. Mr Mowbray, now aged 56, has lodged two applications for the disability support pension (DSP), the first being in December 2012 and more recently that of 23 November 2015. His application in 2012 was rejected on the basis that he did not meet the requirements of s 94(1)(e)(ii) of the Social Security Act 1991 (the Act) of 10 years qualifying Australian residence or an exemption. In addition, he did not meet the requirement of an impairment rating for his medical conditions of 20 points or more under the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables).

2. Mr Mowbray was born in the United Kingdom and arrived in Australia on 24 July 2005. At the time he held a 010 Visa which is a Bridging Visa, and shortly thereafter obtained a 457 Visa allowing him to undertake temporary work for up to four years. He obtained a Permanent Resident Visa on 5 July 2006. Mr Mowbray had worked in the construction industry in England, having left school at 14.

3. Mr Mowbray’s second application for the DSP was lodged on 23 November 2015. The conditions claimed to be causing his disablement were thoracic vertebral scoliosis with intervertebral disc degeneration from the T7 to T10 levels and lumbar spinal facet joint osteoarthritis at the L4/5 level. In addition, he is said to have depression for some years but has not received treatment. In 2012 he underwent repair of an inguinal hernia and claims to have ongoing discomfort in relation to the scar and another small hernia of more recent onset. He has a past history of fluctuating tendonitis of the right elbow, involving the extensor tendon origin (tennis elbow).

4. Mr Mowbray’s application for the DSP lodged in November 2015 was rejected by a delegate of Centrelink on the basis that he did not attract an impairment rating of 20 points as required under the Impairment Tables. This decision was affirmed by an authorised review officer (ARO) on 28 April 2016 on the same basis of an impairment rating less than 20 points. His depression/anxiety condition was not considered to be fully diagnosed, treated and stabilised. Additionally, he still did not meet the 10 years residency in Australia, required by s 94(1)(e) of the Act.

5. Mr Mowbray applied to the Administrative Appeals Tribunal (Child Support and Social Security Division) (AAT Tier 1) for further review of the decision. This was undertaken on 18 July 2016 and the reviewable decision was affirmed.

6. Mr Mowbray lodged a further application for review with the General Division of the Administrative Appeals Tribunal on 4 August 2016.

7. The hearing had been set down for 7 July 2017 with Mr Mowbray attending in person but at his request this was changed to a telephone hearing. The hearing commenced on 7 July 2017 but within five minutes Mr Mowbray declared he could not go on as he was too anxious and upset to proceed. The hearing was aborted. The Tribunal suggested that the hearing proceed on the papers but the Secretary, Department of Social Services (the Secretary) initially objected. After further consultation, it was agreed that the Tribunal would proceed to a hearing on the papers on 28 September 2017.

   BACKGROUND TO THE APPLICATION

8. Mr Mowbray came to Australia at age 45, initially on a temporary visa but subsequently transferred to a 457 Visa which would suggest that he had obtained suitable employment soon after his arrival. He had left school at the age of 14, and thereafter worked in the United Kingdom in the construction industry. The details of his work are not known. His last known employment was as a trade counter salesman and he ceased work in approximately June 2011 when his employer restructured. There is no evidence that he has been employed thereafter.

9. Mr Mowbray lodged his first claim for the DSP on 8 December 2012, the claimed disabling medical conditions being:

   ·a spinal disorder resulting in chronic back pain and scoliosis;

   ·depression and anxiety of six years duration; and

   ·right elbow tenosynovitis (tennis elbow).

   Assessment at that time determined that while he had moderately severe intervertebral disc lesions involving the lower thoracic vertebra and the L4/5 level, this condition was not fully diagnosed, treated and stabilised. Similarly, his depression present for approximately six years, was not considered to be other than temporary. He had seen a psychiatrist on three occasions but had ceased attending because of the cost. In relation to the right elbow tendonitis the reporting general practitioner, Dr Lum, certified that this had minimal impact on Mr Mowbray’s ability to work. An impairment rating of zero was recommended and as Mr Mowbray did not meet the residency requirements, having only been in Australia on a Permanent Resident Visa for a period of just over six years, his claim was rejected.

10. Thereafter, he received Newstart Allowance payments, was assessed by the employment services section of the Department and was referred for employment services assistance which he attended for a short period.

11. The Medical Reports which accompanied the 2012 application were provided by the general practitioner Dr Lum. These included CT reports relating to the thoracic spine showing disc degeneration between T7 and T10 and severe changes at L4/5. According to Dr Lum’s report no steroidal anti-inflammatory medication had been prescribed and chiropractor treatment was being undertaken on a weekly basis. Referral had been made for assessment by a neurosurgeon at Box Hill Hospital, but Mr Mowbray did not attend this appointment.

12. Mr Mowbray’s depression and anxiety had been present for six years and while anti‑depressive medication had been recommended, Mr Mowbray had declined taking it on a cost basis. He had been seen by a psychologist on a few occasions, but on further enquiries it was found that the psychologist seen was not a clinical psychologist.

13. Mr Mowbray lodged his second application for the DSP on 23 November 2015 and this is the subject of this application for review by the General Division of the Administrative Appeals Tribunal. Once more the claimed conditions were for degenerative lumbar spine causing severe back pain with difficulties mobilising, depression, symptoms arising from a hernia repair, tennis elbow and what was termed knee joint degeneration.

14. In this application recent employment history was stated to be employment by NHP and the dates worked as a storeman were from 1 February 2009 to 1 May 2011. In the intervening period between 2012 and 2015 Mr Mowbray had undergone magnetic resonance imaging (MRI) of his lumbar spine and had been referred to a clinical psychologist who he first saw late 2015. He had undergone repair of an inguinal hernia in 2012 and claimed to be suffering from restriction and discomfort in relation to the surgical scar.

15. The 2015 application was supported by Mr Mowbray’s general practitioner, Dr Rob Jeffs, of Rosebud. Mr Mowbray had shifted in the intervening three years from Boronia to the Mornington Peninsula. Dr Jeffs provided a certificate, enclosed a copy of the recent MRI of the lumbar spine report dated 25 June 2015 and advised that Mr Mowbray was seeing a psychologist to deal with his depressive symptoms, had undergone a inguinal hernia repair and had degenerative joint disease. Dr Jeffs stated that Mr Mowbray had constant pain and stiffness in his back and a significant reactive depression.

16. The MRI of the lumbar spine revealed lumbar disc degenerative changes of varying degrees, predominantly at the L4/5 level where there was a marked reduction in disc space height, with a disc bulge at L4/5 and a minor bulge at L3/4. At both of the latter levels there was some encroachment on nerve roots due to foraminal stenosis not disc impaction. The levels of L2/3 and L1/2 were described as normal.

17. Mr Mowbray was seen by Dr John Choi, an orthopaedic surgeon who specialised in spine surgery on 19 May 2015. He had ordered the MRI. He described Mr Mowbray as a retired builder who presented with severe back pain of a few years’ duration with more recent worsening of his symptoms including radiation of pain to the right leg to the level of the ankle. Mr Mowbray said this was associated with tenesmus which is a sensation of unsatisfied defaecation, a symptom Mr Choi could not explain and considered to be unrelated to the back symptomatology. Treatment was to be determined once the MRI study had been performed.

18. It would appear that Mr Choi subsequently provided a report recommending the use of non-steroidal anti-inflammatory medication and physiotherapy. Mr Mowbray attended a couple of sessions of physiotherapy but again ceased on the basis of the cost of treatment.

19. On 16 February 2016 Mr Mowbray underwent a job capacity assessment (JCA) conducted by an occupational therapist and a psychologist. This was a face to face interview. In relation to the spinal disorder, it was noted that the diagnosis had been confirmed by MRI and the reports of Mr Choi were taken into consideration with the assessors determining that Mr Mowbray’s spinal disorder was fully diagnosed, treated and stabilised. In accordance with the Impairment Tables and the history given by Mr Mowbray an impairment rating of 10 points was recommended.

20. In relation to the anxiety and depressive disorders, it was noted that the symptoms of these conditions had been present for many years and that since the application for DSP had been lodged Mr Mowbray had seen the clinical psychologist Dr Adams. Dr Adams provided a report dated 23 February 2016, advising that he had seen Mr Mowbray on nine occasions since late September 2015 and provided counselling. The assessors accepted that the anxiety and depressive disorders were fully diagnosed and verified but as treatment had only recently commenced it could not be considered to be fully treated and stabilised and therefore an impairment rating could not be assigned.

21. These were only two conditions assessed on 16 February 2016. A temporary work capacity of 0-7 hours until 30 September 2016 was recommended and it was postulated that with treatment of the depression Mr Mowbray would be capable of working 15-22 hours per week within two years. It was recommended he be referred to a Disability Employment Network for employment advice and the seeking of appropriate employment.

22. On 12 October 2016 a further JCA, based on the file, was undertaken by a mental health nurse and an occupational therapist. This assessment related to the consideration of more recently claimed joint pathology and was said to have been conducted for the purpose of the lodgement of a new claim for DSP. It was noted that Mr Mowbray now had 10 years permanent residence in Australia, it was confirmed that his right elbow extensor tendonitis was well controlled and not incapacitating and his hernia problems had apparently resolved.

23. Mr Mowbray was complaining of bilateral knee joint pain, more severe on the right side and had undergone an MRI of the right knee on 26 August 2016. This had shown a small medial meniscal tear, chondral loss on the medial femoral condyle, partial loss in the medial tibiofemoral compartment, minor chondral fraying in the patella, mild superficial infrapatellar bursitis and a low grade anterior cruciate ligament sprain. All other knee joint ligaments were reportedly normal.

24. Mr Mowbray is said to be awaiting referral to an orthopaedic surgeon regarding his right knee. Treatment is currently simple analgesia and consideration is being given to investigation of his symptomatic left knee. A claim form for DSP was completed on 5 September 2016 at which time Mr Mowbray would have met the requirement of 10 years’ residence in Australia.

    DOCUMENTARY EVIDENCE

25. The relevant documentary evidence has been summarised under BACKGROUND TO THE APPLICATION.

    SUBMISSIONS

26. Mr Mowbray did not make any written submissions. He relied on his lodged claim forms for the DSP.

    The Secretary’s submissions

27. The Secretary addressed all of the reports and the evidence before the Tribunal as referred to under BACKGROUND TO THE APPLICATION. Similarly, the JCAs and the decisions of the AAT Tier 1 and prior to that those of the ARO of Centrelink were detailed. While Mr Mowbray had been referred for participation in a program of support with PVS Workfind in November 2012, this ceased when he was referred to Advanced Personnel Management, Boronia (APM) in 2013. He was exempted from participation with APM for medical reasons, and was exempted again from further arrangements with Wise Employment, Rosebud in 2015.

28. The Secretary identified the qualification period as being from 23 November 2015 to 22 February 2016 in accordance with the requirements outlined in the Social Security (Administration) Act 1999 (the Administration Act) s 13, s 41 and s 42. The Secretary relied on the decision in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 wherein the Federal Court made it clear that any subsequent evidence or change in health status was not relevant unless it cast light on the position during the relevant period.

29. The Secretary addressed the qualification criteria for DSP, the Impairment Tables and the earlier decisions. It was contended that the impairment rating of 10 points for Mr Mowbray’s spinal condition was in accord with the criteria under Table 4, in that he was able to perform overhead activities, turn his head and neck without moving his trunk, was able to bend and pick up light objects and could sit for more than 10 minutes.

30. In relation to the claimed depression and anxiety, the Secretary submitted that Mr Mowbray’s mental health conditions were not fully treated and stabilised in the qualification period. In the event that this Tribunal found the conditions to be fully diagnosed, treated and stabilised it was submitted that an impairment rating of 5 points under Table 5 would be the appropriate rating.

31. The claims in relation to the repaired hernia, the unproven recurrent hernia and the right elbow tendonitis were, on the basis of the reports of Dr Lum with respect to the hernia and Dr Jeffs and Dr Lum with respect to the right elbow tendonitis, considered to have no functional impact or at the most a minimal impact attracting a zero rating under the relevant tables.

32. The claim for bilateral knee osteoarthritis was accepted in terms of there being symptoms of this condition present within the qualification period but as the definitive investigations of the right knee had not taken place until 26 August 2016, the condition was not fully diagnosed let alone treated and stabilised and therefore did not attract an impairment rating during the qualification period.

33. Note was taken of the findings of right shoulder pathology diagnosed by ultrasound on 14 December 2016. This ultrasound did not show any evidence of tears in muscles or tendons but did reveal thickening of the tendons of biceps and supraspinatus and some thickening of the sub-deltoid bursa consistent with bursitis. Impingement was demonstrated on abduction and forward flexion. No treating doctor reports have been received relating to the right shoulder pathology and it would appear that the treatment being considered was physiotherapy and perhaps an intra-articular injection of steroids and Marcaine. No referrals have been made to an appropriate treating consultant, such as an orthopaedic surgeon.

34. The Secretary accepted that Mr Mowbray had suffered from anxiety and depression for many years and that the condition was now fully diagnosed and verified, Mr Mowbray having seen Dr Adams, a clinical psychologist, in late 2015. Dr Adams had provided a report dated 23 February 2016 confirming that treatment in the form of counselling had commenced and nine sessions had been provided. It was noted that treatment with the anti-depressant Sertraline was commenced in January 2016. Treatment with Dr Adams was to continue for several more sessions before an assessment of any response was expected. This was confirmed by Dr Adams in a second short report dated 21 March 2017.

35. The Secretary contended that in the qualification period, as defined, Mr Mowbray’s total functional impairment rating for the spine was 10 points as all other conditions were either non-contributory or not fully treated and stabilised. In addition Mr Mowbray had not completed a program of support prior to his application for the DSP, nor had he satisfied the residency requirement of s 94(1)(e). On this basis the Tribunal should, it was contended affirm the decision under review.

    RELEVANT LEGISLATION

36. Qualifications for DSP are outlined in s 94 of the Act which states:

    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

    ...

    (e)the person either:

    (i)     is an Australian resident at the time when the person first satisfies paragraph (c); or

    (ii)     has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

    (iii)     is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

    (A)     is not an Australian resident; and

    (B)     is a dependent child of an Australian resident;

    and the person becomes an Australian resident while a dependent child of an Australian resident; and

    ...

    (3B)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.

    Example 1:       A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

    Example 2:       A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

    Example 3:       A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

    Active participation in a program of support

    ...

    (5)       In this section:

    program of support means a program that:

    (a)is designed to assist persons to prepare for, find or maintain work; and

    (b)either:

    (i)     is funded (wholly or partly) by the Commonwealth; or

    (ii)     is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

    TRIBUNAL’S DELIBERATIONS AND DECISION

1. Based on the documentation provided the Tribunal accepts that s 94(1)(a) of the Act has been satisfied, in that Mr Mowbray has proven osteoarthritis of his thoracic and lumbar spine and his right knee, and has been diagnosed with anxiety and depression. As the latter is said to be secondary to his physical complaints, it would be more correctly termed an adjustment disorder with anxious and depressed mood.

2. Mr Mowbray does not satisfy s 94(1)(b) as several job capacity assessments have  determined and recommended at the most a 10 point impairment rating on the basis that the only condition that is fully diagnosed, treated and stabilised is the spinal osteoarthritis and on his symptoms a 10 point impairment rating is attracted under Table 4. This particular rating has been accepted by the AAT Tier 1 Tribunal.

3. Clearly this Tribunal has not had the benefit of hearing from Mr Mowbray in person.

4. All the treatment that has been recommended by his general practitioners and consultants has been reasonable. The Tribunal accepts that Mr Mowbray has not pursued most of the recommended therapy as he cannot afford the fees charged. However, treatment is available in public hospital facilities such as the Rosebud Hospital or the Frankston or Peninsula Hospital as it is now known. Mr Mowbray was referred to a neurosurgeon at the Box Hill Hospital, a public facility, but for reasons that are unclear he did not attend.

5. The Tribunal has found it difficult to discern exactly what treatment Mr Mowbray is currently having, other than the anti-depressant Sertraline and counselling from Dr Adams. It is not clear from the reports as to whether he is taking non-steroidal anti‑inflammatory drugs and analgesics as recommended and presumably prescribed by Dr Jeffs.

6. It is accepted by this Tribunal that Mr Mowbray’s right extensor tendonitis affecting his elbow and his left knee osteoarthritis are not under consideration as the elbow condition has been determined by the general practitioner to not be of impact on his functional abilities and his left knee osteoarthritis condition is suspected but not yet proven by investigation.

7. Given that s 94(1)(b) is not satisfied in relation to the required rating of 20 points, it is not necessary for the Tribunal to proceed to consideration of whether s 94(1)(c) regarding a continuing incapacity for work is satisfied.

8. While the Tribunal has some reservations with respect to s 94(1)(b) requirements based on the absence of any assessment by treating doctors, there still exists the overriding and insurmountable fact that Mr Mowbray did not satisfy the residency requirements of s 94(1)(e) in the qualification period. The Tribunal has no power to ignore or set aside this requirement.

9. It would appear that Mr Mowbray has lodged a further claim since attaining his 10 year residency, but the requirements with respect to the psychiatric disorder and knee osteoarthritis remain in relation to their not being fully treated and stabilised, and further evidence will be required to support his new application. 

I certify that the preceding 45 (forty‑five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

..........[sgd]..............................................................

Associate

Dated: 8 December 2017

Date of hearing:	28 September 2017 (On the papers)
Applicant:	Mr Alan Mowbray
Advocate for the Respondent:	Mr Cameron Munro, Department of Human Services