Neil Lloyd and Secretary, Department of Social Services

[2015] AATA 214

[2015] AATA  214

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2563
Re	Neil Lloyd
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Prof R McCallum AO, Member
Date	10 April 2015
Place	Sydney

The Tribunal affirms the decision under review.

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

Prof R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairment rated 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Security Act 1991 (Cth) s 94(1)

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

CASES

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

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

REASONS FOR DECISION

Prof R McCallum AO, Member

10 April 2015

BACKGROUND

1. The Applicant, Neil Lloyd is in his early sixties. On 3 May 2013, he applied for the Disability Support Pension (DSP). On the application form, the Applicant stated that he had “Diabetic Type 2”. The Applicant lodged a medical report with his application form. The medical report is dated 2 May 2013, and it is signed by Dr Glennis Godfrey.

2. On 25 June 2013, a Job Capacity Assessment (JCA) was undertaken. The job capacity assessor assigned an impairment rating of five points for the Applicant's diabetes (non-insulin dependent) and the Applicant was considered to be fit for work at 15-22 hours per week.

3. On 4 August 2013, the Applicant's claim for DSP was rejected by Centrelink on the grounds that his impairments did not warrant a rating of 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 23 August 2013, the Applicant sought a review of the decision to reject his claim for DSP, and the original decision maker confirmed the decision. On 30 August 2013, the decision was referred to an Authorised Review Officer (ARO), and on 4 February 2014, the ARO affirmed the decision under review. The Applicant appealed to the Social Security Appeals Tribunal (SSAT) which on 2 May 2014 affirmed the decision under review.

4. On 21 May 2014, the Applicant sought review of the SSAT’s decision with this Tribunal. On 26 August 2014, a face to face JCA was undertaken for the purposes of the proceedings before this Tribunal. The assessor assessed the Applicant's diabetes as having a mild functional impact warranting a rating of five points under Table 1 of the Impairment Tables. The assessor also found that the Applicant's right shoulder pain warranted a rating of five points under Table 2 of the Impairment Tables. The assessor stated that the Applicant's depression was not fully diagnosed, treated and stabilised and it was not given a rating.

   THE LEGISLATION

5. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

6. The criteria for DSP are set forth in section 94 of the SS Act. In the Applicant's circumstances, section 94(1) relevantly provides:

   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;

   ...

7. Put simply, I must be satisfied, first, that the Applicant has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that the Applicant has a continuing inability to work.

   THE 13 WEEK QUALIFYING PERIOD

8. Section 94 of the SS Act must be read in conjunction with clause 4(1) of Schedule 2 of the Administration Act. Clause 4(1) provides:

   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.

9. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine the Applicant's eligibility for DSP in the 13 week period commencing on the day on which the Applicant applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether the Applicant qualified for DSP between 3 May 2013 and 2 August 2013.

10. This matter was heard by this Tribunal on 13 February 2015, which is more than 19 months after the Applicant made his claim. In these circumstances and given the material before me, I take this opportunity to refer to the relevant case law on the 13 week qualifying period.

11. In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:

    In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. 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. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

12. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:

    In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referable to the applicant's condition during the relevant period.

13. This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. His Honor stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period;

    [a]ny 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… The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.

14. Therefore, in determining the eligibility of the Applicant to receive a DSP I am confined to examining the Applicant's impairments during the 13 week qualifying period.

    THE CONCESSIONS BY THE RESPONDENT

15. In paragraph 19 of the Respondent's Statement of Facts and Contentions, it is conceded that “...during the claim period, the Applicant had a 'physical, intellectual or psychiatric impairment' as required by section 94(1)(a) of the Act”.

16. In paragraph 28, the Respondent concedes the Applicants impairments “...[a]ttract a combined impairment rating of 10 points. This includes a rating of 5 points under Table 1 for diabetes and 5 points under Table 2 for right shoulder pain”.

    ISSUES

17. The primary matter which I am required to decide is whether pursuant to section 94(1)(b) of the SS Act, the Applicant's impairments may be assigned a rating of 20 points or more under the Impairment Tables. If I find in the Applicant's favour, I am required to further decide whether the Applicant has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and related provisions.

    THE IMPAIRMENT TABLES

18. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 at [5]-[6], Senior Member Isenberg helpfully explains the operation of the Impairment Tables:

    ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

19. Importantly, an impairment can only be assigned a rating when the medical condition is permanent within the meaning of the Tables and the impairment resulting from the condition is likely to persist for more than two years. Subsection 6(4) of the Impairment Tables provides that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

20. Subsection 6(5) of the Impairment Tables provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.

21. Depression is covered by Table 5 of the Impairment Tables, which provides as follows:

    Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

    (i)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).

    (ii)Self-report of symptoms alone is insufficient.

    (iii)There must be corroborating evidence of the person's impairment.

22. In other words, for depression to be fully diagnosed, treated and stabilised during the claim period, it is necessary for there to be medical evidence from a psychiatrist or clinical psychologist concerning the depression and treatment undertaken.

    THE APPLICANT’S EVIDENCE

23. The Applicant gave sworn evidence, and he was the only person to give oral evidence at the hearing. I found him to be a truthful witness.

24. The Applicant said that he had walked to the Tribunal from Guildford, and that he had left his home at about 3:00 am. His speech was difficult for me to understand, and on occasions I had to ask him to repeat his answers.

25. The Applicant explained that he left school when aged fourteen. His father was violent towards him and his mother. He has never been married and he lives on his own. He last worked in April/May 2013 as a yard man but was made redundant. He said that he would wash 150 cars per day.

26. In relation to his Type 2 Diabetes, he said that he is tired all the time.  He stated that he wakes up up to five times during the night to go to the toilet because of the Diabetes. He said he averages about four hours sleep each night. He takes Diaformin, and he carries a puffer with him, and the puffer was with him at the hearing. He is able to walk without great difficulty, and it will be recalled that the Applicant walked to the Tribunal from Guildford. 

27. In relation to his right shoulder pain, the Applicant stated that he has arthritis in his right shoulder and that he is right-handed. The Applicant said that he can't really do anything with his right arm. He can't put it above his head. The Applicant said that when shopping he carries the groceries in his left hand. He uses a clothes horse on which he can hang his washing.

28. The Applicant said that he has suffered from depression since his childhood. He said that his brother and his mother also suffered from depression.

29. Following the conclusion of the hearing in this matter, the Applicant sent the Respondent additional medical reports and evidence relating to various conditions, all of which were prepared in February of this year. The Applicant requested that this material be provided to the Tribunal for consideration. After having reviewed this material, I have determined that it is not relevant to my decision as it was obtained well outside the claim period.

    THE MEDICAL EVIDENCE

30. I have examined the medical reports contained in the T-Documents, including the medical reports provided by the Applicant. These reports describe the medical conditions of the Applicant in some detail.

31. On the morning of the hearing, the Applicant handed over a further bundle of documents. After having considered the documents prior commencing the hearing,  I adjourned the hearing to allow the Respondent an opportunity to examine them. The bundle contained several medical certificates from this year which was well outside the claim period. I admitted the bundle of documents and briefly examined them with the assistance of the Respondent. 

    CONSIDERATION

32. With respect to the Applicant's impairments, I make the following findings.

    Type 2 Diabetes

33. I find that the Applicant suffers from Type 2 Diabetes. On his claim form dated 3 May 2013, the Applicant stated that he was “Diabetic Type 2”, and this was confirmed in the report of  Dr Godfrey dated 2 May 2013 which was filed with his claim form. The later medical reports confirm this diagnosis. I find that the diabetes was fully diagnosed, treated and stabilised during the claim period.

34. From the Applicant's evidence and from the medical reports, I find that his diabetes has a mild functional impact on his activities, mainly fatigue and loss of sleep. Accordingly, I assess the diabetes at five points under Table 1 of the Impairment Tables.

    Right Shoulder Pain

35. The Applicant did not specify that he suffered from right shoulder pain on his claim form. However I note the medical report from Dr John Robinson dated 13 August 2013. I also note Dr Robinson’s medical certificate dated 2 September 2013, which states that the onset of the right shoulder pain occurred on or about 16 April 2013. I also note the detailed medical report by Dr Chari dated 15 August 2013.

36. Having regard to the medical reports and to the oral evidence of the Applicant, I assess the Applicant's impairment of right shoulder pain as having a limited impact on his activities. He does suffer from pain, but can carry with his left arm and do household tasks. Accordingly, I assess the right shoulder pain at five points under Table 2 of the Impairment Tables.

    Depression

37. In his oral evidence, the Applicant said that he has suffered from depression since his childhood. However, depression is not noted on his claim form, nor is depression mentioned in the accompanying medical report by Dr Godfrey. From the medical evidence, it appears that it was not until 12 February 2014 that the Applicant's treating doctor, Dr Hany Hanna, referred him to Ms Caroline Sihavong, consultant psychologist. In his evidence, the Applicant said that he began visiting Ms Sihavong about a year ago in February 2014, well outside the claim period. He said that the counselling which he received from her has been helpful. He made an appointment to see a psychiatrist on 16 February 2015.

38. Having regard to this evidence, I find that the Applicant's depression was not fully diagnosed, treated and stabilised during the claim period. Accordingly it is not rateable under the Impairment Tables.

    CONCLUSION

39. I find that the Applicant's impairments are assessed at 10 points under the Impairment Tables and consequently he does not satisfy section 94(1)(b) of the SS Act and does not qualify for DSP.

40. Given my findings in relation to section 94(1)(b) of the SS Act it is not necessary for me to decide whether the Applicant has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and related provisions.

    DECISION

41. The decision under review is affirmed.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Prof R McCallum AO, Member

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

Associate

Dated 10 April 2015

Date of hearing	13 February 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services