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

[2015] AATA 495

Natoli and Secretary, Department of Social Services (Social services second review) [2015] AATA 495 (10 July 2015)

Division	GENERAL DIVISION
File Number	2014/5728
Re	Anthony Natoli
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Egon Fice Senior Member
Date	10 July 2015
Place	Melbourne

The Tribunal affirms the reviewable decision.

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

Senior Member

Catchwords

Social security – Disability Support Pension (DSP) – whether applicant has 20 impairment points – continuing inability to work – decision affirmed.

Legislation

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 s 5, 6, 7 and 8

Social Security (Administration) Act 1999 s 4

Social Security Act 1991 s 94

REASONS FOR DECISION

Egon Fice Senior Member

10 July 2015

1. Mr Anthony Natoli lodged an application with Centrelink for the Disability Support Pension (DSP) on 24 March 2014.  He claimed he suffered from the following conditions:

   ·left L4/L5 disc prolapse with L4 nerve root compression

   ·Hepatitis C

   ·depression/anxiety

   ·drug addiction/alcoholism

2. Mr Natoli recorded a past history of intravenous drug use (heroin); heroin use associated with chronic pain and secondary depression; Hepatitis C with abnormal liver function contributing to tiredness and depression and opiates replacement therapy (methadone).  He is also recorded as having excessive alcohol intake at times.  In fact, I had in evidence a Medical Certificate stating that Mr Natoli had been seen for intensive drug and alcohol counselling in relation to his long-standing opiate dependency and alcohol misuse.

3. In a letter dated 22 April 2014, a delegate of the Secretary of the Department of Social Services informed Mr Natoli that he was not eligible for the DSP.  That was because he had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables.

4. Mr Natoli sought internal review by an Authorised Review Officer (ARO).  On 9 September 2014 the ARO informed Mr Natoli that his application for review was unsuccessful.

5. On 29 April 2014 Mr Natoli applied for a review of the ARO decision by the Social Security Appeals Tribunal (SSAT).  On 13 October 2014 the SSAT affirmed the ARO’s decision.

6. Mr Natoli then lodged an application seeking review of the SSAT decision by this Tribunal which was received on 5 November 2014.

7. On hearing this matter on 17 June 2015, I gave an oral decision affirming the decision made by the SSAT.  Subsequently, Mr Natoli requested written reasons for my decision.  These are those reasons.

   QUALIFICATION FOR THE DISABILITY SUPPORT PENSION

8. An applicant for the DSP is assessed for eligibility as at the date the claim is lodged. However, if the applicant does not qualify for the payment at the time the claim is made, he or she may nevertheless qualify for the DSP if, because of the passage of time or the occurrence of an event, he or she becomes qualified for the payment within the period of 13 weeks after the day on which the claim was made (s. 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act)). In such a case, the applicant’s claim is taken to be made on the first day on which the applicant qualified for the payment. Given that Mr Natoli lodged his claim on 24 March 2014, the 13 week period in his case ends on 23 June 2014. If he does not qualify within that 13 week period, he must make a fresh claim if his circumstances alter.

9. In order for Mr Natoli to succeed in this application, he must meet the qualifying criteria set out in s. 94 of the Social Security Act 1991 (the Act). In so far as it is relevant to Mr Natoli’s claim, s. 94 provides:

   94 (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…

10. The expression continuing inability to work is defined in the Act as follows:

    94 (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) or the person is a reviewed 2008 – 2011 DSP starter who has had an opportunity to participate in a program of support – 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.

11. The expression severe impairment is defined as follows:

    94 (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.…

12. The expression actively participated in a program of support is defined in the following way:

    94 (3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in the legislative instrument made by the Minister for the purposes of this subsection.

13. I should also mention the guidelines (Social Security (Active Participation for Disability Support Pension) Determination 2014) (the Determination) made by the Minister for the purposes of the Act. Section 94(3D) of the Act provides:

    The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2) (aa).

    IMPAIRMENT RATING OF 20 OR MORE POINTS

14. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) establishes, in Part 2, rules for applying those tables.  The significant aspects of the Impairment Tables are as follows:

    5 Purpose and design of the Tables

    (2) 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.

    Note: impairment is defined in section 3 to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.

    (3)In the Tables:

    (a)…

    (b)The first line of each descriptor, which is formatted in italics, describes the level of impact of the impairment to be identified by reference to the particular examples of functional activities, abilities, symptoms and limitations contained in the numbered paragraphs below it, if any; and…

    6 Applying the Tables

    (1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do what others do for the person.

    (2)The 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.

    (3)An impairment rating can only be assigned to an impairment if:

    (a)the person’s condition causing that impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

    (4)For the purposes of paragraph 6 (3)(a) a condition is permanent if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

15. The expressions fully diagnosed and fully treated; fully stabilised; and reasonable treatment are defined in subsections (5) to (7) respectively.

16. Sections 7 and 8 of the Impairment Tables set out information which must be taken into account in applying the Tables and information that must not be taken into account in applying the Tables respectively.  Relevantly, they provide:

    7 Information that must be taken into account in applying the Tables

    (1) Subject to subsection (2), in applying the Tables the following information must be taken into account:

    (a)the information provided by the health professionals specified in the relevant Table; and

    (b)any additional medical or work capacity information that may be available; and

    (c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.

    8 Information that must not be taken into account in applying the Tables

    (1) Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

    (2) Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.

    Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.

    Lumbar spine condition

17. Dr F Bramwell, Mr Natoli’s General Practitioner, diagnosed Mr Natoli as having L4/L5 disc prolapse with L4 nerve root compression.  As to future/planned treatment, Dr Bramwell recorded that Mr Natoli should have an MRI and possibly a neurosurgical referral if his symptoms worsened.  She recorded Mr Natoli’s symptoms as daily pain in his lower back with radiation down the back of his left leg and limitation of flexion and rotation of the lumbar spine.

18. Dr Bramwell recorded Mr Natoli’s prognosis as being uncertain and that further deterioration may necessitate neurosurgical review and possibly surgery.  At the time of completing her medical report on 6 June 2014, Dr Bramwell said that Mr Natoli was currently in the process of referral to the neurosurgical unit at the Western Hospital.  At the time of Mr Natoli’s hearing before the SSAT, Mr Natoli’s oral evidence was that he was still waiting for the neurosurgical appointment.

19. I also had in evidence a CT scan of Mr Natoli’s lumbo-sacral spine which was done on 19 June 2013.  Those findings are consistent with what Dr Bramwell reported.

20. As is made clear from ss. 6(3) and (4) of the Impairment Tables, impairment ratings may only be allocated in respect of the medical condition causing an impairment where the condition has been fully diagnosed; fully treated; fully stabilised; and is more likely than not to persist for more than 2 years.  It is clear from Mr Natoli’s own evidence as well as Dr Bramwell’s evidence that during the 13 week qualifying period (the qualifying period), Mr Natoli’s lower back condition did not meet those requirements.  It follows I must find that the decision made by a Job Capacity Assessor (JCA) in a report dated 22 April 2014 refusing to allocate impairment points to this condition was correct.

    Hepatitis C

21. Mr Natoli was diagnosed with Hepatitis C on 27 February 2014.  In her report, Dr Bramwell said that the future planned treatment for Mr Natoli was to conduct a work up for Hepatitis C Genotype 1 A treatment.  She also reported that unless Mr Natoli had successful treatment, his condition would persist for more than 24 months.  The reported symptoms experienced by Mr Natoli as a consequence of this disease were tiredness, lethargy and occasional nausea.  As far as his ability to function is concerned, Dr Bramwell said Mr Natoli’s condition would contribute to tiredness and depression.

22. In a letter to the Australian Government Department of Human Services dated 19 March 2015 Dr Bramwell said that no treatment for Mr Natoli’s Hepatitis C infection had commenced at that date.  She did not consider him suitable for treatment due to the risk of exacerbating his depression.  She was hopeful that when a non-Interferon based regime became available, he could be considered for treatment.

23. Dr Bramwell was of the view that Mr Natoli’s Hepatitis C infection contributed to his daily fatigue and poor appetite although there were also other contributing factors, such as opiate dependency, depression and chronic pain with sleep disturbance.  She said that Mr Natoli struggled to perform daily functions such as cleaning the house, cooking and shopping.  While the struggle occurred on a daily basis, it did fluctuate in severity.  The overall opinion was that Mr Natoli had moderately severe symptoms which did impact on his daily life and quality of life.  Her assessment was that on average he was impacted to a level of 10 points as of March 2014.  Dr Bramwell also stated that she believed Mr Natoli was not able to work for at least 15 hours per week or participate in vocational or educational training.  She expected there would be deterioration in severity of the disease and symptoms over time.

24. Given Dr Bramwell’s diagnosis and analysis, I find that this condition is fully diagnosed; has been fully treated; is fully stabilised (subject to deterioration over time); and in light of available evidence, will persist for more than 2 years.  Accordingly, it is appropriate to allocate points under the Impairment Tables and the 10 points suggested by Dr Bramwell is appropriate given the moderate functional impact which this condition has on Mr Natoli’s daily functioning.

    Drug and alcohol abuse

25. In her medical report dated 6 June 2014, Dr Bramwell diagnosed Mr Natoli as having opiate dependency commencing prior to 2009.  Mr Natoli commenced methadone treatment on 10 July 2013.  She said Mr Natoli had daily withdrawal symptoms prior to dosing which he relieved by dosing with methadone.  The planned treatment was stated to be continuing with methadone substitution for the long term and drug and alcohol counselling.  Dr Bramwell reported that chronic opioid dependence decreased motivation, endurance and concentration.  She said this condition was expected to persist for more than 24 months.

26. I also had in evidence a letter from Western Health (Mr B Roberg) dated 8 September 2014 confirming Mr Natoli’s treatment at Drug Health Services.  In that letter, Mr Roberg recounted file notes written by Mr Natoli’s counsellor, Ms L Cooper, who was no longer with that service.  Mr Natoli attended counselling sessions with Ms Cooper between February and June 2014.  At the commencement of counselling, Mr Natoli reported drinking 10 standard drinks of alcohol daily, smoking ½ g cannabis daily and injecting heroin once a week.  He also reported being on 65 mg of methadone.

27. Ms Cooper’s file notes indicated Mr Natoli demonstrated limited insight into the nature and risks associated with his substance abuse/dependence.  He demonstrated difficulty with attention span, concentration and impulse control.  There were also multiple indicators of an acquired brain injury, including memory issues and impaired insight into the effects of behaviour/choices or situation.  Mr Roberg said that the indicators for an acquired brain injury would require further investigation and formal diagnosis.

28. The evidence before me indicates that Mr Natoli’s drug and alcohol abuse should be regarded as having been fully diagnosed by an appropriately qualified medical practitioner; being fully treated; fully stabilised and is more likely than not, in light of available evidence, to persist more than two years.

29. On 9 September 2014 an ARO with Centrelink determined that Mr Natoli should be assigned 10 points under the Impairment Tables for this condition.  Table 6 of the Impairment Tables deals with functioning related to alcohol, drug and other substance use.  Although cognisant of the fact that Table 7 (Brain Function) should be used where a person has a permanent neurological impairment resulting from previous alcohol, drug or other half harmful substance use, the fact that Mr Natoli has continuing harmful substance use disorders, and that there is a program of active treatment in place, I find Table 6 is appropriate for this condition.  I also find that as a consequence of this condition, Mr Natoli experiences a moderate functional impact.  He regularly uses substances and as a result experiences difficulties performing physical or cognitive tasks.  His evidence before the SSAT was that he would spend half a day drinking or seeking heroin, felt unmotivated, had poor appetite, forgot appointments, would not shower for a week or brush his teeth and often felt restless.  A moderate functional impact results in an impairment rating of 10 points for this condition.

    Depression

30. While Dr Bramwell in her medical report of 18 March 2014 diagnosed Mr Natoli as having depression, the Secretary nevertheless submitted that his depression was not fully diagnosed, treated and stabilised during the qualifying period.  That was because the introduction to Table 5, which deals with mental health function, states that the diagnosis of the condition must be made by an appropriately qualified medical practitioner (which includes a psychiatrist), with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.  The expression appropriately qualified medical practitioner is a defined term in the Impairment Tables and it means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition.  In the absence of an appropriately qualified person to make the diagnosis, an impairment rating cannot be allocated.  The Secretary submitted that Dr Bramwell did not fall within the description an appropriately qualified medical practitioner given that she was a general practitioner.

31. Furthermore, in the brief statement made by Dr Bramwell in the medical report completed for the purposes of Mr Natoli’s DSP application, she noted that he had responded successfully to antidepressant medication.  I also note that the introduction to Table 5 of the Impairment Tables states that there must be corroborating evidence of the person’s impairment.  It provides examples of such evidence.  I did not have any corroborating evidence of Mr Natoli’s impairment arising from depression.  Accordingly, I find that no impairment rating can be allocated to this condition for the qualifying period.

    Impairment rating

32. As I have found Mr Natoli should be allocated 10 points for his Hepatitis C impairment and 10 points for drug and alcohol abuse, he satisfies the qualifying criteria set out in
    s. 94(1)(b) of the Act. Therefore the only remaining relevant criterion is that set out in
    s. 94(1)(c). I should also explain that although Mr Natoli has a total of 20 points allocated under the Impairment Tables, he does not satisfy the definition of having a severe impairment.  That is because he does not have an impairment rating of 20 points or more under a single Impairment Table.

    Continuing inability to work

1. To satisfy the requirement to have a continuing inability to work because of an impairment, Mr Natoli must satisfy the criteria set out under s. 94(2) of the Act. It is this particular requirement which causes Mr Natoli great difficulty. Because he does not have a severe impairment as that expression is defined in s. 94(3B), he must have actively participated in a program of support within the meaning of s. 94(3C), and the program of support must have been wholly or partly funded by the Commonwealth. Furthermore, the impairment of itself must be sufficient to prevent Mr Natoli from doing any work independently of a program of support within the next two years.

2. The current legislative instrument referred to in s. 94(3C) of the Act is the Determination dated 15 December 2014. The requirements for active participation are set out in Part 2. Relevantly, it provides:

   7 Requirements for active participation

   (1)A person has actively participated in a program of support if the person satisfies the following requirements:

   (a)the person has:

   (i)     complied with the requirements of the program of support; and

   (ii)    participated in a program of support during the relevant period;

   (b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;

   (c)subsection (6) is satisfied in relation to the person and the program of support.

   (2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.

   Note: A period during which a person does not participate in a program of support is not to be counted (see section 8).

   …

   (5) This subsection is satisfied in relation to a person and a program of support if:

   (a) at the end of the relevant period, the person is participating in the program of support; and

   (b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.

3. Insofar as it applies to a person whose impairment is not a severe impairment, relevant period is defined by the Determination as follows:

   relevant period means:

   (a)in relation to a person (other than a reviewed 2008 – 2011 DSP starter) whose impairment is not a severe impairment – the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person; or…

4. I had in evidence records of Mr Natoli’s attendance with a program of support provider funded by the Commonwealth.  Mr Natoli commenced a Disability Employment Services Program with Advanced Personnel Management (APM) on 17 March 2014. In a letter dated 11 March 2015, Mr Michael O’ Keeffe, Site Manager at APM, reported that Mr Natoli had been referred to engage in the Disability Employment Services Program delivered by that organisation.  However, he had a temporary medical incapacity exemption between 21 February 2014 and 21 May 2014.  Mr O’Keeffe stated that Mr Natoli’s impairments were certainly a factor preventing him from improving his capacity to find, gain or remain in employment but he was unsure if it was solely due to those impairments.  He also said that he was unaware, at the date of his letter, of other factors which may limit Mr Natoli’s ability to benefit from the services provided by an agency.  In a further letter dated 19 May 2015, Mr O’Keeffe confirmed that Mr Natoli commenced a program with APM on 17 March 2014 after transitioning from a different employment service provider.  Mr O’Keeffe also explained that Mr Natoli had only attended his initial appointment with APM a week or so before lodgement of his DSP application.  For that reason, Mr O’Keeffe said it was difficult for his consultant to form an opinion that Mr Natoli would have been prevented from improving his capacity to find, gain or remain employed solely due to his impairments.

5. Prior to his transfer to APM, Mr Natoli received employment assistance from CRS Australia, a Commonwealth Government agency.  His first contact with that agency appears to have been on 4 June 2013 although he did not commence a program of support until 18 July 2013 when he transferred from Werribee to Footscray.  At best, the documents and evidence indicated that Mr Natoli may have participated in a program of support for less than eight months in the 36 month period prior to lodging his claim for the DSP on 24 March 2014.  Furthermore, the evidence does not disclose that Mr Natoli was prevented, solely because of his impairments, from improving his capacity to prepare for, find or maintain work through continued participation in a program of support.  There was no evidence before me that Mr Natoli was participating in the program administered by the Commonwealth known as the supported wage system during the relevant period.  Therefore, I find that Mr Natoli does not satisfy the requisite qualification set out in

   
   

   s. 94(1)(c) of the Act.

6. The evidence before me also discloses that Mr Natoli does not satisfy the remaining continuing inability to work provisions set out in s. 94(2) of the Act.  The word work is defined in the Act and it means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and that exists in Australia, even if not within the person’s locally accessible labour market.

7. An Employment Services Assessment report made by a registered occupational therapist on 22 June 2012 following a face-to-face assessment found that Mr Natoli had a baseline work capacity of 15 – 22 hours per week.  That report also found Mr Natoli’s capacity for work within two years with intervention to be 30+ hours per week.

8. Centrelink had another Employment Services Assessment report made by a registered psychologist on 20 June 2013.  That report states Mr Natoli’s baseline work capacity was 15 – 22 hours per week.  His work capacity within two years with intervention was reported as 23 – 29 hours per week.

9. A job capacity assessment report assessed Mr Natoli’s job capacity as at 22 April 2014, after taking into account reports prepared by Dr Bramwell, within two years with intervention, to be 15 – 22 hours per week in light semi-skilled work.

10. Given the above objective evidence and because there was no contradictory evidence other than Mr Natoli’s numerous oral statements in the course of the hearing that he was not capable of working the hours assessed by various job capacity assessors, I find that Mr Natoli does not meet the provision set out in s. 94(2)(a) of the Act regarding an inability to do any work independently of a program of support within the next 2 years.

    CONCLUSION

11. In light of the findings I have made above, I have come to the conclusion that Mr Natoli does not meet the qualifications set out in s. 94(1) of the Act for payment of the DSP. Accordingly, I find that the decision made by the SSAT on 13 October 2014 was the correct decision although at that time Mr Natoli was only given 15 impairment points under the Impairment Tables. I affirm that decision.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Egon Fice Senior Member

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

Associate

Dated 10 July 2015

Date of hearing	17 June 2015
Applicant	In person
Advocate for the Respondent	Ms V Chan, FOI and Litigation Branch