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

[2020] AATA 4532

Naylor and Secretary, Department of Social Services (Social services second review) [2020] AATA 4532 (11 November 2020)

Division:GENERAL DIVISION

File Number(s):      2019/3512

Re:Charmaine Naylor

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:11 November 2020

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – eligibility – previously eligible then cancelled – physical and psychiatric impairments – hepatitis C – diabetes – arthritis – heart and lung disease – anxiety and depression – whether impairments fully diagnosed, treated and stabilised – whether impairments attract 20 or more points – impairment tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2

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

CASES

Re Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

Dr I Alexander, Senior Member

11 November 2020

BACKGROUND

1. Ms Naylor, who is currently 63 years old, was granted Disability Support Pension (DSP) in May 2005.

2. On 3 July 2018, Centrelink notified Ms Naylor that she had been selected to participate in a payment review, which will check, and if necessary, update the information being used to assess her payment. She was asked to provide a completed Medical Report form and all supporting documents.

3. On 17 July 2018, Dr Dong, Ms Naylor’s treating General Practitioner (GP), completed a Medical Report, Disability Support Pension Review form.

4. On 15 August 2018, Ms Naylor signed a Consent to disclose medical information form and an Additional Medical Evidence for DSP Record (AME for DSP) was completed by a Department officer following a telephone conversation with Dr Dong.

5. On 15 August 2018, Ms Naylor attended a face to face Job Capacity Assessment (JCA). In the JCA report, submitted on 6 September 2018, the assessor recommended an impairment rating of five points under Table 1, arising from Ms Naylor’s coronary artery disease, and assessed her work capacity at 15-22 hours per week.

6. On 12 September 2018, Centrelink informed Ms Naylor that a decision had been made to cancel her DSP because she had been assessed as having an impairment rating of less than 20 points, with her last payment being made on 24 October 2018.

7. On 25 September 2018, an Authorised Review Officer (ARO) affirmed the original decision to cancel Ms Naylor’s DSP.

8. In a decision dated 22 May 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found that on 12 September 2018, Ms Naylor “did not meet the requirements for DSP” and, therefore, was “not eligible to continue DSP payments”.

9. In these proceedings Ms Naylor, who is self-represented, seeks review of the decision of the AAT1.

10. In view of the temporary changes with regard to the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, both parties attended the hearing by telephone.

    ISSUES/LEGISLATION

11. In order to qualify for the DSP, a person must satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

12. Subsection 94(1) of the Act provides that a person is qualified for DSP 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) …

    (i) the person has a continuing inability to work;

    (ii) …

    (d) the person has turned 16; and…

    …

13. There is no dispute that Ms Naylor suffered several medical conditions that caused some functional impairment and, therefore, she satisfied paragraph 94(1)(a) of the Act.

14. The medical conditions recorded in Dr Dong’s report in July 2018 included “acute myocardial infarction, diabetes, arthritis (back and both knees), anxiety and depression”. Additional conditions recorded in the AME for DSP record included “hepatitis C and COPD”.[1]

    [1] COPD – Chronic Obstructive Pulmonary Disease.

15. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

16. For the purposes of paragraph 6(3)(a), a condition is “permanent” if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than two years (paragraph 6(4)(d)).

17. The introduction to each relevant Table requires that “there must be corroborating evidence of the person’s impairment” and that “self-report of symptoms alone is insufficient” [emphasis added].

18. Also, the Introduction to Table 5 of the Impairment Tables, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

19. Section 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that, if the Secretary “is satisfied that a social security payment[2] is being, or has been, paid to a person who is not, or was not, qualified for the payment”, the Secretary “is to determine that the payment is to be cancelled or suspended”.

    [2] Including DSP.

20. The cancellation of Ms Naylor’s DSP was an adverse determination[3] and, therefore, pursuant to subsection 118(13) of the Administration Act, took effect “on the day on which it is made”, that is, 12 September 2018 (the date of cancellation).

    [3] Section 117 of the Administration Act: adverse determination means a determination under section 79, 80, 81, 81A or 82.

21. The principal issue for the Tribunal, in this matter, is whether “to cancel the pension, was the correct or preferable decision when it was made”,[4] therefore, the Tribunal should limit its consideration to the circumstances existing at the time the decision to cancel DSP was made.

    [4] Re Shi v Migration Agents Registration Authority [2008] HCA 31, [144]-[145].

22. Therefore, the determinative issue in this matter is whether on 12 September 2018, Ms Naylor satisfied subsection 94(1) of the Act and qualified for DSP.

    Hepatitis C

23. It is agreed that the condition of “hepatitis C” was permanent for the purposes of the Impairment Tables.

24. In the AME for DSP record, it is noted that the condition was fully treated and stabilised and that Ms Naylor is no longer under the care of the Liver Clinic.

25. In the JCA report, the assessor recorded that “treatment was successful over 10 years ago with minimal impacts on daily functioning. She reports she is independent in all daily tasks including home based duties, is able to travel independently in community.”

26. I am satisfied that, on the date of cancellation, Ms Naylor suffered no functional impairment as a result of this condition and therefore a rating of zero points under the Impairment Tables can be assigned.

    Diabetes

27. It is agreed that the condition of “Type 2 diabetes” was permanent for the purposes of the Impairment Tables.

28. In her Medical Report, Dr Dong noted that Ms Naylor had been on regular medication since 2000.

29. In the AME for DSP record, it is noted that: “Type 2 diabetes – stable minimal impacts on daily functioning”.

30. In my view, there is insufficient evidence before the Tribunal for any reasonable assessment in respect of the functional impact of this condition and, therefore, I find that a rating under the Impairment Tables cannot be assigned.

    Arthritis

31. It is agreed that Ms Naylor suffers osteoarthritis of the knees and back and that the condition was permanent for the purposes of the Impairment Tables.

32. In the AME for DSP record, the following is noted:

    Osteoarthritis – knees and back – sit 30 mins, stand 15-20 mins walk 15 mins does not need assistance, can do daily activities including vacuuming, bed changing, not heavy eg yard work, some difficulties with stairs at times; uses adapted gait, ADLs can vacuum, change beds – self-paced.   

33. In the JCA report, the assessor confirmed similar functional capacity as recorded above:

    Claimant reports: – sitting for at least 30 mins. Claimant was observed to sit for 60 mins duration at the interview …difficulties with kneeling and squatting …advised she takes care on stairs and uses an adapted gait …..can bend to the floor with care …..can hang up laundry, access overhead cupboards, independently rise to standing, undertake grocery shopping …. can drive locally up to 30 mins[5]., is able to use public transport.

    [5] At the hearing, Ms Naylor told the Tribunal she still has a licence and owns her own car.

34. I accept that Ms Naylor has some functional impact on activities involving lower limb and spinal function, however, on the available evidence, which is somewhat limited, I am not persuaded that the described impact reaches the threshold of the descriptors for mild functional impact in Impairment Tables 3 and 4.

35. Therefore, I am satisfied that a rating of zero points under the Impairment Tables can be assigned.

    Heart – Lung disease

36. In a letter to Dr Dong, dated 16 March 2017, Dr Changsiri, cardiologist stated, inter alia, the following:

    Thank you for referring Mrs Naylor who has a history of STEMI in August 2013 with stenting of her left circumflex artery. In the last 6 months she has been well and denies angina or undue shortness of breath and is working on stopping smoking. [emphasis added]

37. In a letter dated 17 July 2018, Dr Changsiri stated, inter alia, the following:

    In 2013 Charmaine had an acute heart attack requiring coronary stenting. Since then on yearly review she has been well with no unstable symptoms and no clinical evidence of a repeat heart attack. She has been compliant with medications but suffers from significant shortness of breath on exertion likely from her significant smoking history since her teenage years. [emphasis added]

38. In the AME for DSP record, the following is noted:

    Minimal shortness of breath on exertion. Under care of cardiologist, yearly, stable, can walk for min 30 mins, can ascend descend stairs, able to manage daily activities, walk round supermarket, local community. [emphasis added]

39. In a letter dated 22 April 2020, Dr Changsiri stated that Ms Naylor:

    … has had history of smoking and severe shortness of breath on minimal exertion. Currently she is being worked up for a pulmonary embolus but ultimately her shortness of breath is likely related to emphysema. [emphasis added]

40. At the hearing, Ms Naylor told the Tribunal that she had a scan in May 2020 which revealed that she has “blood clots” and is now being treated with a “blood thinner”. This appears to be the likely cause of shortness of breath on exertion.

41. I am satisfied that the evidence before the Tribunal demonstrates that, at the date of cancellation, the cause of Ms Naylor’s shortness of breath was not fully diagnosed and fully treated and, therefore a rating under Impairment Table 1 cannot be assigned.

    Anxiety/Depression

42. In a letter dated 6 September 2019, Ms Dean, clinical psychologist, stated that Ms Naylor’s current symptoms “meets  criteria for the diagnoses of Generalised Anxiety Disorder and Major Depressive Disorder (DSM V)” and has attended six sessions “focussed on cognitive behavioural therapy for mood management” .

43. Clearly, at the date of cancellation, Ms Naylor’s mental health condition had not been diagnosed by a psychiatrist or clinical psychologist and, therefore, a rating under Impairment Table 5 cannot be assigned.

    CONCLUSION

44. For the reasons set out above, I am satisfied that, at the date of cancellation, Ms Naylor did not have an impairment rating of 20 points or more and, therefore, did not satisfy paragraph 94(1)(b) of the Act and did not qualify for DSP.

    DECISION

45. For the reasons set out above, the Tribunal is satisfied that on 12 September 2018, the decision to cancel Ms Naylor’s DSP was correct.

46. The decision under review is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

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

Associate

Dated: 11 November 2020

Date of hearing:	3 November 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Ms R Alam, Services Australia