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

Negro and Secretary, Department of Social Services (Social services second review) [2020] AATA 1911 (16 June 2020)
Division:GENERAL DIVISION
File Number:2019/1641
Re:Renea Negro
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:16 June 2020
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 19 February 2019, is affirmed.
.................................[SGD]...............................
Member S Barton
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s impairments were fully diagnosed, treated and stabilised at the qualification period – whether Applicant’s impairments attract 20 points under Impairment Tables – whether Applicant has continuing inability to work – program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(3E), 94C
Social Security (Administration) Act 1999 (Cth) – ss 41, 179
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Re Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services, version 1.265
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – paras 5, 6(1), 10, 10(3),
REASONS FOR DECISION
Member S Barton
16 June 2020
BACKGROUND

This is a review of a decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division (the AAT1) dated 19 February 2019 (Reviewable Decision) that affirmed a decision made by an Authorised Review Officer (ARO) of the Department of Human Services (the Department), rejecting the Applicant’s claim for Disability Support Pension (DSP) lodged on 13 March 2018.
FACTS
Ms Renea Negro (the Applicant) is a 45 year old mother of three, born in 1974. In April 2016, she presented to a consultant rheumatologist with complaints of lethargy, aching and tender points. The rheumatologist formed an opinion that her symptoms were in keeping with a diagnosis of fibromyalgia syndrome.
On 13 March 2018, the Applicant lodged a claim for the DSP, citing her condition of fibromyalgia. On 30 April 2018, the Department rejected the Applicant’s claim for the DSP.
This decision was reviewed by an ARO from the Department of Human Services and was affirmed on 12 November 2018.
On 16 November 2018, the Applicant sought a review of the decision by the ARO.
The AAT1 affirmed the decision of the ARO on 19 February 2019. On 27 March 2019, the Applicant applied for a second review by the Tribunal.
JURISDICTION
The application for review is made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth) (the Act). Therefore, the Tribunal is satisfied that it has jurisdiction to consider this application.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Wednesday 29 April 2019. The Applicant appeared via teleconference and was self-represented.
The Applicant gave oral evidence.
The Respondent was represented by Ms L Hinwood via teleconference.
The Administrative Appeals Tribunal (the Tribunal) admitted the following documents into evidence at the hearing:
(a)Applicant’s submission, dated 21 May 2019 (Exhibit A1);
(b)Respondent’s Statement of Facts, Issues and Contentions, dated 22 January 2020 (Exhibit R1);
(c)Respondent’s submission, dated 30 July 2019 (Exhibit R2);
(d)Respondent’s submission, dated 13 June 2019 (Exhibit R3); and
(e)section 37 documents (T documents) numbered T1 to T32, comprising 293 pages, dated 20 May 2019 (Exhibit R4).
ISSUES
The issues before the Tribunal are whether, during the period of 13 March 2018 to

12 June 2018, the Applicant had:
(a)a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act;
(b)an impairment rating of at least 20 points under the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Tables); and
(c)a continuing inability to work for the purposes of s 94(1)(c)(i) of the Act.
QUALIFYING PERIOD FOR THE DSP
The Social Security (Administration) Act 1999 (Cth) (the Administration Act), states at

s 41 that: ‘…a social security payment becomes payable to a person on the person’s start day in relation to the social security payment’. The start date is determined by Schedule 2 of the Administration Act, which provides a general rule for a start day as the day on which a claim is made. However, clause 4, states:
(1) 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.
The effect of this provision is to create a 13-week qualification period for the application (the Qualification Period). This window of time, and its subsequent effect, was described by Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [253]:
It is to be noted at the outset that, by virtue of s 42 and Schedule 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim... and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time...
This judgement has been cited by Senior Member Isenberg (Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 [8]) and by Deputy President Handley (Fanning and Secretary, Department of Social Services [2014] AATA 447 [31]) when they considered applications for the DSP. The effect of clause 4, as supported by previous decisions, is to restrict consideration of the Applicant’s claim to the 13-week time period after the claim was made and to consider evidence only insofar as it relates to the Applicant’s condition during that period. The practical outcome of this is captured by Member Breen’s observation in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.
The Tribunal, therefore, restricts its examination of the claim made by the Applicant to the period from 13 March 2018 and the following 13 weeks until 12 June 2018.
QUALIFICATION CRITERIA FOR DSP
The qualification requirements for the DSP are set out in s 94 of the Act:
(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.
These qualifications are conjunctive; they are linked not by ‘or’ but ‘and’, and so a successful applicant for the DSP must meet each requirement.
Section 26(1) of the Act allows the Minister, by legislative instrument, to determine the Impairment Tables referred to in s 94(1)(b) and the rules for applying them. The Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) provides those Tables and the rules for their use.
The purpose and general design principles of the Impairment Tables are set out in Paragraph 5. The tables are based on function rather than diagnosis, describe functional activities, abilities, symptoms and limitations, and assign ratings to determine the functional impact of the impairment.
Paragraph 6(1) of the Determination states that ‘[t]he 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’ (emphasis added).
An impairment rating can only be assigned if the condition causing the impairment is permanent, which is, for the purposes of the Tables, if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated and fully stabilised; and it is more likely than not, in light of available evidence, to persist for more than two years.
Paragraph 6(5) of the Determination states that when determining ‘whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated’ consideration must be given to the following:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment and rehabilitation has occurred; and
(c)whether treatment is continuing or is planned in the next 2 years.
DOES THE APPLICANT QUALIFY FOR THE DSP?
The Tribunal accepts that, for the purpose of s 94(1)(a) of the Act, the Applicant had an impairment during the period of 13 March 2018 to 12 June 2018. The Tribunal notes this is not disputed by the Respondent.
In order to assess the Applicant’s impairment against the relevant Impairment Tables, the Tribunal must, in accordance with paragraph 6(3) of the Determination, be satisfied the condition is permanent and will persist for more than two years. As detailed in paragraph 6(4) of the Determination, a condition is permanent if the condition has been fully diagnosed, fully treated, fully stabilised and, on the basis of the available evidence, likely to persist for more than two years.
The Tribunal accepts that the condition was fully diagnosed. However, there is limited evidence before the Tribunal to conclude that it was fully treated.
On 18 April 2016, the Applicant received the diagnosis of fibromyalgia from rheumatologist Dr John Hayes, and was referred to the Fibromyalgia Support Network and prescribed Endep (Exhibit R2, p 137).
In her submission, the Applicant stated: ‘as for the prescription medication, I myself will be no doubt needing it later on, but as for taking anything atm [at the moment], helping myself naturally is the best for myself’ (Exhibit A1, p 1).
In the hearing, the Applicant stated that she did not want to take prescription medication simply to qualify for the DSP and that she was not willing to take the medication due to its effect on her.
On 6 February 2018, the Applicant’s general practitioner, Dr Cory Watkins, stated in a Medical Certificate that the Applicant’s treatment for her condition consisted of
‘tumeric [sic]’ (Exhibit R2, p 141).
The Tribunal also notes that the Respondent has provided evidence that the Applicant did not commence the medication as prescribed (Exhibit R1, Annex B).
With respect to the Fibromyalgia Support Network, the Applicant stated that she did not follow this recommendation, but had joined several groups on Facebook related to fibromyalgia.
On 28 February 2018, the Applicant’s general practitioner, Dr Watkins, advised that he had referred the Applicant back to Dr Hayes for a review and to a psychologist to assist with coping strategies (Exhibit R2, p 142). In his referral to Dr Hayes, Dr Watkins stated (Exhibit R2, p 147):
Thank you for seeing… [the Applicant], who you saw 2 years ago for her fibromyalgia.
She is currently applying for the centrelink [sic] disability support pension.
I would also appreciate if you could recommend any further strategies to help with her pain and fatigue.
The Tribunal infers from this referral that the Applicant did not see Dr Hayes for nearly two years after her diagnosis. The Respondent provided evidence showing the next consultation with Dr Hayes took place on 5 June 2018 (Exhibit R1, p8 & Annex A). Two consultations with a relevant specialist over a two-year period does not reflect an active pursuit of treatment options.
The Applicant was referred to clinical psychologist, Dr Vivienne Bainbridge (Exhibit R2, p143). The Respondent provided evidence that the Applicant attended a session with Dr ‘Jean’ Bainbridge on 20 March 2018 (Exhibit R1, p 9 & Annex A). In the hearing the Applicant stated that she did not pursue this option because ‘talking about my past does nothing about my pain’.
Based on the evidence before the Tribunal, the Applicant has not taken the treatment opportunities available to her for fibromyalgia. The Applicant has opted instead for her own self-treatment and support, which falls short of the treatment and rehabilitation required. By her own admission, the Applicant has not pursued the medical options available to her. Moreover, there is no evidence of any appropriate medical treatment being continued or planned over the next two years.
The Tribunal cannot find the Applicant’s condition permanent because there is no evidence that it was fully treated and fully stabilised during the Qualification Period, and as such, the Applicant’s impairment cannot be assessed against the Impairment Tables. As a result, the Applicant does not satisfy s 94(1)(b) of the Act and does not meet the medical requirements necessary to receive the DSP.
CONCLUSION
The Reviewable Decision, being the decision of the AAT1 dated 19 February 2019, is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

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Associate
Dated: 16 June 2020

Date of hearing:

29 April 2020

Applicant:

Counsel for the Respondent:

Self-represented

Ms L Hinwood

Solicitors for the Respondent: Services Australia

[2020] AATA 1911

16 June 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Standing

Procedural Fairness