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

[2021] AATA 4154

Neville and Secretary, Department of Social Services (Social services second review) [2021] AATA 4154 (11 November 2021)

Division:General Division

File Number:          2020/6918

Re:Vicki Neville

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member B. Pola

Date:11 November 2021

Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division, dated 21 October 2020.

..........[SGD]...........................

Senior Member B. Pola

Catchwords

SOCIAL SECURITY – Disability Support Pension – DSP – whether condition is fully diagnosed, fully treated, and fully stabilised – whether 20 points or more under the Impairment Tables during the Qualification Period – decision under review affirmed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2013 (Cth)
Social Security (Administration Act) 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Campbell and Secretary, Department of Family and Community Services [2004] AATA 1201
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133
Faulkner and Comcare [2007] AATA 1541

Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Senior Member B. Pola
11 November 2021

BACKGROUND

1. On 25 August 2020, the Applicant, Ms Vicki Neville, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Services Australia (herein referred to as the ‘Agency’)[1].

   [1]     Exhibit R1, Section 37 T Documents, T12, pages 52 to 83.

2. On 2 September 2020, the Applicant was advised by the Agency that her claim for the DSP was rejected[2].

   [2]     Ibid, T15, pages 87 to 88.

3. The decision to reject the Applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by the Agency on 11 September 2020[3].

   [3]     Ibid, T17, pages 90 to 94.

4. The Applicant applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) to review the Agency’s decision to reject their claim for the DSP.

5. On 21 October 2020, the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP[4].

   [4]     Ibid, T2, pages 5 to 9.

6. The Applicant applied to the Tribunal for a second review of this decision on  6 November 2020[5].

   [5]     Ibid, T1, pages 1 to 4.

   JURISDICTION

7. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed a decision to reject the Applicant’s claim for the DSP.

8. The Applicant’s claim of 25 August 2020 has been reviewed in accordance with section 135 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’) by an ARO, and subsequently reviewed by the SSCSD of the Tribunal.

9. In accordance with section 179(1) of the Administration Act, the Tribunal has jurisdiction to hear the Applicant’s DSP claim of 25 August 2020.

   ISSUES

10. The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 25 August 2020, with the relevant qualification period ending 13 weeks later on 24 November 2020[6].

    [6]     The Qualification Period is discussed in later paragraphs of this Decision.

11. The issues for the Tribunal to resolve in respect of the Applicant’s claim for the DSP are:

    (a)Whether the Applicant had impairments during the Qualification Period in accordance with section 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as ‘the Act’)?

    (b)Whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (herein referred to as ‘the Determination’) within the Qualification Period? 

    (i)If so, did the Applicant have a continuing inability to work as defined in section 94(2) of the Act, for the purpose of section 94(1)(c) of the Act?

    RELEVANT LEGISLATIVE PROVISIONS

12. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of section 94(1) of the Act:

    94       Qualification for disability support pension

    (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 …

13. To be medically qualified for the DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables and a continuing inability to work which, in some circumstances, includes participation in a program of support.

14. It is the Tribunal’s role to stand in the shoes of the original decision-maker[7] and determine whether the decision was the correct or preferable one, on the material before the Tribunal[8].

    [7]     Faulkner and Comcare [2007] AATA 1541 at [27].

    [8]     Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.

15. Section 26(1) of the Act provides that, “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

16. Given this, the Tribunal must make its decision in accordance with the Determination, which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination relevant to this application.

17. Section 6 of the Determination provides 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 or what others do for the person”[9]. Further, the Impairment Tables in the Determination 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[10].

    [9]     Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), section 6(1).

    [10] Ibid, section 6(2).

18. An Impairment Rating may only be assigned to an impairment if[11]:

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

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

    [11] Ibid, section 6(3).

19. Further, for a condition to be considered permanent pursuant section 6(3)(a) of the Determination, the condition must also[12]:

    (a)be fully diagnosed by an appropriately qualified medical practitioner; and

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years.

    [12] Ibid, section 6(4).

20. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[13]:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.

    [13] Ibid, section 6(5).

21. A condition is considered fully stabilised if[14]:

    (a)either the 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; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [14] Ibid, section 6(6).

22. Reasonable treatment is a treatment that[15]:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional           capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    [15] Ibid, section 6(7).

23. Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Section 6(9) of the Determination further sets out the circumstances to be considered in relation to pain.

24. Sections 7 to 11 of the Determination provide guidance as to how the Impairment Tables should be used to assess information and evidence, and how to assign Impairment Ratings.

25. In particular, section 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

26. Section 11(1)(c) of the Determination further provides that in assigning an Impairment Rating, “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

    Continuing inability to work

27. As previously detailed in this decision, section 94(1)(c)(i) of the Act states that to qualify for the DSP, a person must have a, “continuing inability to work”. Section 94(2) of the Act requires that:

    (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.

28. A severe impairment is defined in section 94(3B) of the Act:

    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.

29. Section 94(3C) of the Act states that:

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

30. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as ‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support.

    QUALIFICATION PERIOD

31. Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[16].

    [16]    Social Security (Administration Act) 1999 (Cth), Part 2, clause 4(1)(d).

32. For the purposes of this application, the day which the Applicant’s claim for the DSP was lodged with Centrelink was 25 August 2020[17], concluding 13 weeks after that day. The Tribunal finds the 13 week period ended on 24 November 2020.

    [17]    Exhibit R1, Section 37 T Documents, T12, pages 52 to 83.

33. This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referrable to the Applicant’s condition during the Qualification Period[18].

    [18]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at [31].

    CONSIDERATION

34. The application was heard in Brisbane via telephone on 18 October 2021. The Applicant was self-represented, and the Respondent represented by Ms Maleah Underhill from Services Australia. The Tribunal has considered oral submissions and evidence of Applicant in addition to the oral submissions of the Respondent, as well as written evidence outlined in the Exhibit Register, contained in Annexure 1 of these reasons.

    Section 94(1)(a) of the Act (physical, intellectual or psychiatric impairment)

35. The Tribunal is of the view, upon reflection of the medical evidence before it, that the Applicant had impairments during the Qualification Period and satisfies section 94(1)(a) of the Act, observing that the Respondent was also of this view[19].

    [19]    Exhibit R2, Respondent Statement of Facts, Issues and Contentions, page 7, paragraph 33.

36. The Tribunal observes the following relevant impairments to this application, being:

    (a)Bilateral hip osteoarthritis; and

    (b)Pelvic floor instability.

    Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

37. The Tribunal will now consider each impairment identified with respect to the application of section 94(1)(b) of the Act, and in particular, whether they meet the relevant provisions contained within the Determination.

    (a)       Bilateral hip osteoarthritis

38. The Tribunal refers to the following submitted medical evidence with respect to the Applicant’s bilateral hip osteoarthritis:

    (a)A radiology report of 21 May 2020 which made findings that the Applicant had, “Degenerative changes are seen in both hip joints. Small effusions and mild synovitis notes. Gluteal tendons are intact”. The report further stated that[20]:

    [20]    Exhibit R1, Section 37 T Documents, T4, pages 35 to 36.

    … [A] comparison is made with the previous study dated 26/10/2018. Since the previous study, there has been moderate progression of a bilateral OA. There is a further narrowing of the joint spaces and further subchondral cystic change. New areas of collapse are seen in both femoral heads likely due to a degree of avascular necrosis. Orthopaedic review recommended…

    [Tribunal insertion]

    (b)An Employment Services Assessment Report, dated 19 June 2020, stated the following with respect to the Applicant’s osteoarthritis, and background to her previous employment[21]:

    [21]    Ibid, T7, page 43; page 45.

    …  Medical certificate by GP, Dr C Greeff (28/05/2020) confirms moderate to severe Osteoarthritis of the hips. Symptoms include bilateral hip pain and mobility impairment. Treatment has included physical therapy and is currently on a waiting list for orthopaedic review. Vicki was unsure of her what waiting period category is and advised that her GP is trying to have her seen sooner due to the severity of hip condition. She reported she takes Panadol Osteo and NSAID's, has previously had physiotherapy (five sessions) and continues to undertake recommended exercises. She reported a limited walking and standing tolerance…

    … Vicki reported a Grade 10 education and has completed a course in home/community care. She resigned from her most recent job as a home carer in May 2020 due to her hip condition as she could not longer sustain the physical nature of the role. She reported past experience including cleaning, factory and as a swimming instructor for many years. She is not sure of what she is suited too given her physical limitations and is concerned that an employer would not employ her knowing that she may require surgery in the future…

    (c)A medical certificate dated 4 August 2020, from Dr C Greeff (General Practitioner) diagnosing the Applicant with, “Bilateral servere OA hip”, with the condition described as, “Temporary exacerbation of a permanent condition”. Current treatment included, “supportive, analgesia” and planned treatment included, “hip replacement surgery extensive waiting time”. Dr Greeff stated the following with respect to prognosis, “More than 24 months – cat 3 waiting list”, and that the Applicant was unfit for work/study for the period of 4 August 2020 to 4 November 2020[22].

    (d)A patient health summary of the Applicant, dated 13 August 2020, indicates a past history of, “Severe, chronic bilateral hip pain – on Cat 3 waiting OA”[23].

    (e)A letter from the Sunshine Coast Health Service to the Applicant dated 14 August 2020, confirms the Applicant was on the “category 2” wait list to see the Orthopaedics General clinic, which states that she would expect an appointment within 90 calendar days[24].

    (f)A further medical certificate dated 28 May 2020, from Dr Greeff diagnosing the Applicant with, “Mod-Severe Osteoarthritis”, with a date of onset of “28/5/2020”, that the condition was, “Temporary exacerbation of a permanent condition”. Dr Greeff stated the Applicant had symptoms of, “Bilater hip pain and mobility impairment” [sic], and that past treatment included, “on orthopaedic waiting list”, with current treatment described as, “physical therapy awaiting Hip replacement surgery – long waiting times”. Dr Greef further stated that the Applicant’s prognosis was, “More than 24 months”, and that the Applicant was unfit for work/study for the period of 28 May 2020 to 28 August 2020[25].

    (g)A letter from Dr Greeff of 24 September 2020 states that the Applicant[26]:

    … is suffering from sever[e] bilateral Osteo Arthritis of her hips. It is a debilitating condition and she ha to give up her job as a carer due to injury risk for both her and clients. She is on a very long waiting list in the public sector see an orthopaedic specialist for hip replacement surgery. The waiting times are extensive and we are not expecting her to receive a hip replacement within the next 2 years. She is unable to return to the workforce at this stage due to pain an mobility impairment…

    (h)A medical certificate dated 6 November 2020, from Dr S Oedekovem diagnosing the Applicant with, “Bilateral severe OA hip”, and stating that the condition was, “an exacerbation of a permanent condition”, with symptoms of, “bilateral hip pain”. Dr Oedekovem further stated that current treatment included, “supportive, analgesia, regular exercise”, and planned treatment included, “hip replacement surgery extensive waiting time”. Dr Oedekovem stated that the Applicant was unfit for work/study for the period of 6 November 2020 to 6 February 2020[27].

    [22]    Ibid, T8, page 47.

    [23]    Ibid, T9, page 48.

    [24]    Ibid, T11, page 50.

    [25]    Ibid, T5, page 38.

    [26]    Ibid, T18, page 95.

    [27]    Ibid, T19, page 96.

1. There is evidence from Dr Greeff, in the letter of 24 September 2020, to suggest the Applicant left her previous employment because of this condition. This is supported by the Applicant’s employment separation certificate, dated 16 June 2020[28].

   [28]    Ibid, T6, page 40 to 41.

2. The Applicant indicated in her claim for the DSP of 25 August 2020, that her treatment included, “Physiotherapist Dr Andrew Pike”[29], however there was no corroborating evidence to confirm this treatment had taken place. The Tribunal questioned the Applicant as to whether there was any supporting evidence that she had from her appointments with a physiotherapist to corroborate any treatment she had received, and the Applicant confirmed that there was not[30].

   [29]    Ibid, T12, page 79.

   [30]    Transcript (18 October 2021), page 9, lines 35 to 43.

3. The Tribunal notes the Applicant confirmed that she was using a wheelie-walker to assist her in moving around, consistent with the evidence she had provided the SSCSD of the Tribunal[31].

   [31]    Ibid, page 9, lines 45 to 46; page 10, lines 1 to 3; page 11, lines 9 to 14.

4. During cross-examination, the Applicant confirmed that she was still on a waiting list for surgery. However, she stated that she had recently met with a surgeon in August 2021 and that she was expecting to be contacted for a further appointment within six weeks of meeting this surgeon to discuss having the surgery at the Sunshine Coast Hospital[32]. The Applicant also stated that she had been placed on a waiting list with the Mater Hospital in Brisbane, with an expected wait list time of twelve months[33].

   [32]    Ibid, page 8; page 9, lines 1 to 12.

   [33]    Ibid.

5. The Tribunal observes that with respect to the Applicant’s evidence regarding the current status of her expected surgery, it is likely that this surgery will occur within two years from the date on which she made her claim for the DSP, being 25 August 2020.

6. The Tribunal is satisfied that the Applicant’s bilateral hip osteoarthritis was fully diagnosed as at the Qualification Period for this application for the DSP. However, in circumstances where the Applicant is still awaiting surgery to treat the condition, the Tribunal does not consider the condition fully treated or fully stabilised, prior to or during the Qualification Period for this application.

7. To this point, the Tribunal observes authority with respect to applicants awaiting surgery for conditions, and refers to Campbell and Secretary, Department of Family and Community Services[34], where Member Hunt stated the following:

   …I am satisfied that at 3 September 2003 Mr Campbell could not demonstrate satisfaction of the criterion that he had permanent conditions or injuries warranting an impairment rating of 20 points under the Tables. It follows that he cannot satisfy section 94(1)(b). He cannot satisfy this requirement until his condition has been fully investigated, treated and stabilised. As he is awaiting surgery the injury or injuries requiring surgery have not been stabilised and, it follows, cannot be found to be permanent…

   [34] [2004] AATA 1201 at [31].

8. The Tribunal further notes that aside from the Applicant awaiting surgery following the Qualification Period for this application, there is also a lack of corroborating medical evidence confirming the Applicant’s functional impairment, or results from tests undertaken by appropriately qualified medical practitioners assessing the Applicant’s impaired function.

9. The Tribunal is of the view that the Applicant’s bilateral hip osteoarthritis cannot be considered fully treated and fully stabilised prior to, or during the Qualification Period for this application. The Tribunal is of the view that an Impairment Rating could not be assigned in accordance with the relevant Impairment Table for the Applicant’s condition.

   (b)      Pelvic floor instability

10. The only corroborative medical evidence before the Tribunal with respect to the Applicant’s bilateral hip pelvic floor instability is a patient health summary of the Applicant, dated           13 August 2020, which simply states that the Applicant had a past history of, “Pelvic floor instability”[35].

    [35]    Exhibit R1, Section 37 T Documents, T9, page 48.

11. The Tribunal is of the view that there is an absence of a formal diagnosis of the Applicant’s pelvic floor instability and a lack of available medical evidence to find that the condition was fully treated and fully stabilised prior to, or during the Qualification Period for this application. There is no further medical evidence before the Tribunal from an appropriately qualified medical practitioner indicating:

    (a)a prognosis for the Applicant’s pelvic floor instability;

    (b)whether the condition is considered permanent;

    (c)whether the Applicant has received optimal treatment and the condition is stabilised; and

    (d)corroborative evidence before the Tribunal confirming past or current treatments.

12. Therefore, this condition cannot be considered fully diagnosed, fully treated, or fully stabilised, and does not meet the requirements to be assigned an Impairment Rating in accordance with a relevant Impairment Table.

    Summary

13. As the Tribunal has found that none of the Applicant’s conditions satisfied the requirements of section 94(1)(b) of the Act, there is no need to consider the remaining relevant provisions.

    DECISION

14. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division, dated 21 October 2020.

    I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    ……….[SGD]….……………

    Associate

    11 November 2021

    Date of Hearing:  18 October 2021

    Applicant:  Ms Vicki Neville (self-represented) (via telephone)

    Solicitor for Respondent:       Ms Maleah Underhill (via telephone)

    Services Australia

    Annexure 1 – Exhibit Register

Exhibit Number	Description of Exhibit	Party	Date of Document	Date of Receipt
R1	Section 37 T Documents (pages 1 to 134)	R	09 December 2020	09 December 2020
R2	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 14)	R	29 April 2021	29 April 2021
A1	Applicant Submission – Centrelink Medical Report: Mobility Allowance (pages 1 to 1)	A	15 April 2021	09 June 2021
T1	Tribunal Direction	–	17 March 2021	–
T2	Tribunal Direction	–	04 May 2021	–
T3	Tribunal Direction	–	26 May 2021	–
T4	Tribunal Direction	–	09 June 2021	–