Nelson and Secretary, Department of Social Services (Social services second review)
[2016] AATA 721
•20 September 2016
Nelson and Secretary, Department of Social Services (Social services second review) [2016] AATA 721 (20 September 2016)
Division
GENERAL DIVISION
File Number
2016/1892
Re
Janice Nelson
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal D. J. Morris, Member
Date 20 September 2016 Place Perth The Tribunal affirms the reviewable decision.
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D. J. Morris, Member
CATCHWORDS
SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – 20 points under two Impairment Tables – no participation in a program of support – not qualified for DSP – decision affirmed
LEGISLATION
Social Security Act 1991 – s 94 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2) – s 94(5)
Social Security (Administration) Act 1999
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Summers and Secretary, Department of Social Services [2014] AATA 165
REASONS FOR DECISION
D. J. Morris, Member
20 September 2016
BACKGROUND DATES AND EVENTS
This matter concerns an application Ms Janice Nelson has brought to the Tribunal seeking a review of a decision that she is not qualified for Disability Support Pension (DSP).
On 4 June 2014, the Applicant underwent a Job Capacity Assessment (JCA1) conducted by the Department of Social Services (the Department). The JCA1 assessed that Ms Nelson was suffering from the following medical conditions: Charcot neuroarthropathy – left foot and ankle; diabetes mellitus; peripheral neuropathy; partial amputation of right first and second ray (foot); osteomyelitis.
On 14 November 2014, a second Job Capacity Assessment (JCA2) was conducted in respect of the Applicant. JCA2 assessed that Ms Nelson was suffering from: Charcot arthropathy of the left foot and ankle; diabetes mellitus; partial amputation of right first and second ray (foot); osteomyelitis.
On 5 August 2015, Dr Tony Davis, general practitioner, completed a medical report in which he listed two medical conditions of Ms Nelson: diabetes, which he said was the condition with the most impact, and cardiac failure.
On 8 August 2015, the Applicant lodged a claim for DSP.
On 31 August 2015 a third Job Capacity Assessment (JCA3) was conducted. JCA3 assessed that the Applicant was suffering from: Severe Charcot arthropathy of the left foot and ankle secondary to long standing diabetes mellitus; partial amputation of right first and second ray (foot) secondary to osteomyelitis; diabetes mellitus; and cardiac failure.
JCA1 recommended that there were no verified permanent, fully diagnosed, fully treated and fully stabilised conditions and therefore no impairment points could be assigned.
JCA2 recommended that Ms Nelson’s lower limb deficiencies warranted the assignment of 10 impairment points of the Impairment Tables Determination (see paragraph 20) under Table 3 – Lower Limb Function, but that her other conditions did not warrant the assignment of impairment points because they were not fully diagnosed, fully treated and fully stabilised.
JCA3 recommended that the Applicant be assigned 10 points for her lower limb condition under Table 3, 5 points under Table 7 – Brain Function, for her diabetes mellitus condition and 5 points under Table 1 – Functions requiring Physical Exertion and Stamina, for her cardiac condition.
On 9 September 2015, the Applicant’s claim for DSP was rejected. The Applicant requested a review of this decision by an Authorised Review Officer (ARO), an independent officer employed within the Department.
The ARO found that the Applicant should be assigned 10 impairment points under the Determination under Table 3; 5 points under Table 7; and 5 points under Table 1. Accordingly, the ARO found that Ms Nelson’s total impairment rating was 20 points but, as she had not been assigned 20 or more points under a single Impairment Table, she did not have a ‘severe impairment’ and had not met the program of support requirements.
On 22 October 2015, the ARO therefore affirmed the original decision.
On 9 December 2015, Ms Nelson applied for review to the Social Services and Child Support Division of this Tribunal (AAT1).
On 3 March 2016, AAT1 affirmed the original decision. AAT1 assigned the Applicant 10 points under Table 3 for her diabetes treated by Metformin, amputation of two toes on the right foot, podiatry for chronic ulcers and Charcot foot on the left foot. AAT1 also assigned 10 points under Table 1 for Ms Nelson’s cardiac condition. AAT1 found that the Applicant had correctly been assigned 20 points but had not actively participated in a program of support. The consequence was that AAT1 affirmed the original decision that the Applicant was not qualified for DSP.
On 12 April 2016, Ms Nelson appealed to the General Division of this Tribunal. That is this hearing.
HEARING
The hearing was held on 30 August 2016. Ms Nelson represented herself. The Respondent Secretary of the Department of Social Services was represented by Ms Sharon Sangha, of counsel.
Ms Nelson gave sworn evidence and was cross-examined by the Respondent.
THE LAW
Qualification for DSP under the Act
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has –
(a) a physical, psychological or mental impairment; and
(b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and
(c) a continuing inability to work.
The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.
The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.
So, therefore, for a person to be qualified for DSP, the person must have impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.
An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, that means the impairment is assessed to be a ‘severe’ impairment. If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.
What is the relevant period for considering the claim?
The Social Security (Administration) Act 1999 provides, at clause 4(1) of Schedule 2, as follows:
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.
So the ‘window’ for assessing qualification for DSP in Ms Nelson’s case is the period starting on 6 August 2015 and ending on 5 November 2015. We will describe this as the ‘relevant period’.
QUESTION AT ISSUE
Was the Applicant eligible for DSP on the date she lodged her claim, 6 August 2015, or, applying the provisions of clause 4(1) of Schedule 2 of the Social Security(Administration) Act 1999, if she was not eligible on that date did she become eligible on a date in the thirteen week period after lodging the claim, which ended on 5 November 2015?
APPLYING THE LAW
Does the Applicant have a physical, intellectual or psychiatric impairment?
Dr Matthew Skinner, Physician, Sir Charles Gairdner Hospital, provided a medical report dated 25 March 2014 which was before the Tribunal. Dr Skinner diagnosed the Applicant with the following conditions: Diabetic foot infection; Osteomyelitis; Non-healing ulcer; Amputation 28 January 2014; Charcot joints; Diabetes – peripheral neuropathy.
Dr Vijay Panicker, Endocrinologist, of Sir Charles Gairdner Hospital provided a medical report dated 1 May 2014 which was also before the Tribunal. Dr Panicker diagnosed: Charcot neuroarthropathy left foot and ankle; Peripheral neuropathy secondary to diabetes mellitus. Dr Panicker also referred in his report to the amputation of two toes. There was corroborative evidence from Ms Janice Robertson, Senior Podiatrist at Sir Charles Gairdner Hospital, in a letter dated 8 April 2015 and in a medical report dated 13 January 2015 of Ms Tamsin Keevil and Ms Rachele Humbert, Podiatrists at the same hospital.
The Respondent, in his submission, accepted that the Applicant has impairments.
Based on the consistent medical evidence before me, I find that Ms Nelson does have impairments and she therefore satisfies section 94(1)(a) of the Act.
If so, what is the correct rating under the Impairment Tables?
When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.
In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and 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.
In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner, and the condition must be fully treated and fully stabilised, and a person must have a continuing inability to work.
Charcot foot and related condition
The Applicant’s foot condition is fully diagnosed as outlined above. The amputation of the great and second toe on her right foot took place in 2014 and she must now wear a permanent cast. This is therefore a chronic condition requiring continuing monitoring and treatment but, applying the provisions of Rules 6(5) and 6(6) of the Minister’s Determination, I find that it fulfils the requirements of being fully treated and fully stabilised.
The correct Impairment Table to assess the Applicant’s foot condition is Table 3 – Lower Limb Function. The Impairment Tables contain Descriptors which, under Rule 5(3) are applied to assign impairment ratings on the basis of what a person can or cannot do. The Impairment Tables are function-based, not diagnosis-based.
The Applicant gave evidence of her reduced mobility because of her foot condition. She said it has had an impact on her ability to drive. She said she can use public transport (and did use it that day to attend the hearing) but drives her car to the appropriate bus stop because she could not walk there.
She said she found it hard to stand to dress in the morning and had to give up her previous employment as a real estate property manager, because she could no longer visit properties to undertake inspections because of her mobility difficulties.
In terms of her domestic situation, Ms Nelson said she lived alone in her family house as her children are now adults. She cooks for herself and does basic chores “with difficulty and very slowly” Since her foot condition developed around two and a half years ago, her daughter-in-law has visited once a week to vacuum and clean the bathrooms. She formerly did all the gardening herself and mowed the lawns but can no longer do this and employs a gardener to mow and weed and the like. In her leisure time the Applicant said that she reads, does jigsaw puzzles and uses her computer.
She finds difficulties with exercising: she used to play sport, do gardening and enjoyed walking, but can no longer undertake any of these activities because of foot pain and perilous balance. She drives to the local shops and will use a supermarket trolley as a support to aid her balance; she limits her shopping to small amounts. She gave evidence to the hearing that she had walked several blocks from her bus stop to where the hearing was held, but had to stop several times to rest.
Applying the Descriptors in Table 3, there is evidence of a ‘moderate’ functional impact from this condition. The Applicant can use public transport and drive, and is able to walk around a shopping centre, and she can stand for more than 5 minutes, but does have difficulty with standing for much longer (see paragraph 45 below). The ‘severe’ functional impact part of that Table is not satisfied, because Ms Nelson can walk, stand without assistance, and gave evidence that she can use public transport without a person helping her. The correct assignment of impairment points under Table 3 for this position is therefore 10 impairment points.
Diabetes condition
The medical report of Dr Tony Davis dated 30 March 2015 was before the Tribunal. In that report Dr Davis says the Applicant was diagnosed with diabetes in 2008. Ms Nelson gave evidence that her diabetes mellitus was stable and monitored all the time. She is not on insulin but watches her diet and has periodic endocrinology reviews.
I find that her diabetes condition is permanent. It is fully diagnosed, fully treated and fully stabilised. I cannot take into account the impacts on her daily activities from her Charcot foot condition and partial amputation in terms of assessing points for her diabetes condition. The Determination makes this plain in Rule 10:
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
On the evidence, I find that her diabetes condition results in no impairment and, applying Rule 11(5) of the Minister’s Determination, it must therefore be assigned zero points.
Cardiac condition
Dr Tony Davis’s medical report of 5 August 2015 states that Mr Nelson was diagnosed with cardiac failure by Dr Yuli Ten, cardiologist, on 22 May 2015 and that she was examined by Dr Ten on 11 June 2015.
Ms Nelson said that she gets extremely tired and breathless; she told the Tribunal that she could use one or two stairs but no more than that, and avoided staircases. As mentioned above in describing her foot problem, she said she could not walk too far and could not stand for long periods. Dr Davis’s earlier medical report of 30 March 2015 corroborates that:
Ms Nelson can only stand for 10-15 minutes at a time before needing to sit.
A medical report dated 8 April 2015 by Janine Robertson, Senior Podiatrist, at Sir Charles Gairdner Hospital, was before the Tribunal. Ms Robertson said that the Applicant’s:
balance, strength and mobility are poor. Though able to accomplish basic personal tasks such as shopping, she is unable to do this without the support of a shopping trolley to assist her to and from her vehicle. She is unable to use public transport safely, and has neither adequate strength nor balance to use stairs.
Her exercise tolerance is significantly diminished due to instability, lack of strength and shortness of breath. She can accomplish only minimal, basic domestic tasks before tiring. She has difficulty moving to and from a seated position without adequate support. She is unable to perform any gardening duties.
The Applicant gave evidence that when she visited her grandchildren she could play with them but now had to do so from a sitting position, because otherwise she would become too fatigued.
I am satisfied that the cardiac condition is fully treated and fully stabilised, though I note Dr Davis’s medical report of 5 August 2015 that the condition was responding to medication but that “natural history is for some deterioration over time”. Dr Davis was stating his professional prognosis, not expressing a view that the condition was not stable.
The correct table to assess Ms Nelson’s cardiac condition is Table 1 – Functions requiring Physical Exertion and Stamina. On the medical evidence before me and the oral evidence given at the hearing, and applying the Descriptors in the Determination, the cardiac condition has a moderate functional impact on the Applicant. She can no longer walk any significant distance, garden or vacuum, and is confined to more sedentary activities in her leisure time.
The Applicant said she is able to use public transport and walk around a supermarket, provided she paced herself and used a trolley as support. Using the trolley as a support cannot be classified as ‘assistance’ in the context of assessing functional impact under the Determination because assistance in this context necessarily means assistance from another person. In this regard I agree with the conclusion of Senior Member Bell in Summers and Secretary, Department of Social Services [2014] AATA 165. She said [at 17]:
The conclusion that “assistance” refers to assistance from a person and not from an object or physical aid is inescapable.
This interpretation is consistent with the intention of Rule 9 in the Determination, that a person using aids such as hearing aids, or a cane, or spectacles, or, in this case, using a shopping trolley as a balance support, is not to be taken as “assistance” in terms of assessing functional impact under the Impairment Tables.
Taking the medical evidence and the evidence given by the Applicant at the hearing into account, I find that the correct assignment of impairment points for the Applicant’s cardiac condition under Table 1 is 10 points; the condition has a moderate functional impact.
I therefore find that the Applicant should be correctly assigned 20 impairment points, 10 points under Table 1 – Functions requiring Physical Exertion and Stamina, and 10 points under Table 3 – Lower Limb Function.
She therefore satisfies section 94(1)(b) of the Act.
Continuing inability to work
Where a person is assigned 20 or more impairment points but is not assigned 20 points under a single impairment table, the person does not have a ‘severe’ impairment, so the provisions of section 94(2) of the Act relating to a ‘continuing inability to work’ must be considered.
Section 94(2)(aa) of the Act states that in a case where a person’s impairment is not a severe impairment within the meaning of subsection (3B), the Secretary of the Department must be satisfied that the person has actively participated in a program of support. The phrase ‘program of support’ is defined in section 94(5) of the Act.
The Applicant confirmed that she had not undertaken a program of support. The Respondent referred to a reference in JCA3 which stated “Ms Nelson not keen to engage in a DMS [Disability Management Service] program”. The Applicant disputed this assertion, and there was no concrete evidence before me that she had in fact expressed this view.
I found Ms Nelson a candid and open witness. She is clearly frustrated with the mobility challenges her medical conditions have delivered, and I have sympathy for her in that. I do not accept the Respondent’s assertion that the Applicant was not willing to engage in a DMS program, but that is not material to my decision because, factually, the Applicant has not participated in a program of support. Therefore she did not satisfy the provisions of section 94(2)(c) of the Act in terms of ‘a continuing inability to work’ in the relevant period.
CONCLUSION
Section 94(1) is a conjunctive subsection of the Act – each part of it must be satisfied for a person to be qualified for DSP. As the Applicant did not satisfy each part of the subsection in the relevant period, the disappointing result for her is that the original decision was correct. She was not qualified for DSP in that relevant period.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member .......[Sgd].................................................................
Administrative Assistant
Dated 20 September 2016
Date of hearing 30 August 2016 Applicant In person Representative for the
RespondentMs S Sangha Solicitors for the Respondent
Mills Oakley Lawyers
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