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

Newson and Secretary, Department of Social Services (Social services second review) [2022] AATA 1529 (3 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1977
Re:Owen Newson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:3 June 2022
Place:Sydney

The decision under review is affirmed.
...................................[sgd].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – whether applicant qualifies for disability support pension – whether conditions fully diagnosed, treated and stabilised during the qualification period – whether impairments were of 20 points or more under s 94(1)(b) – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 6, 11, pt 3
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Chris Puplick AM, Senior Member
3 June 2022
BACKGROUND

Mr Owen Newson (the Applicant) suffered a serious spinal injury in February 1995 as a result of a skateboarding accident. Centrelink records show that he was, intermittently, in receipt of a variety of social service payments (primarily Newstart Allowance and thereafter Jobseeker Payment) commencing in 1994.[1]
[1] Tribunal documents (T-documents) at 200-201. In his application to this Tribunal the Applicant claims that “I took my name off it (DSP) when I was 18 so I could work” (T-documents at 2). However he is mistaken in this regard as the record shows that he was never previously granted the DSP, his payments at the time being Newstart Allowance.
On 10 December 2018 the Applicant lodged an application for the Disability Support Pension (DSP) on the grounds of impairments arising from his original 1995 accident. His claim was assessed initially by a Job Capacity Assessor (JCA)[2] and rejected by the Respondent on 19 February 2019. This rejection decision was confirmed by an Authorised Review Officer (ARO) of the Department on 9 October 2020.
[2] Ibid at 137-146.
On 3 December 2020 the Applicant appealed to the Social Services and Child Support Division of this Tribunal (AAT1) for a review of that decision. On 2 March 2021 the AAT1 confirmed the correctness of the rejection decision. The Applicant then, on 30 March 2021 lodged an appeal for a review of that AAT1 decision and the matter was heard by this Tribunal on 1 June 2022.
In accordance with the Tribunal’s COVID-19 protocols the hearing was conducted via Microsoft Teams, with the Applicant appearing by telephone.
THE DISABILITY SUPPORT PENSION SCHEME
In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act1991 (Cth) (the Act). Subsection 94(1) has three distinct limbs:
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;
In essence, these requirements or criteria amount to this:
·the person has a physical, intellectual or psychiatric condition;
·the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria, set out in the Impairment Tables[3] made under section 26 of the Act, established to assess the level of impairment. Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;
·the person has a continuing inability to work, or the Secretary is satisfied that the person is participating in a program known as the supported wage system;
·the person has turned 16; and
·the person is an eligible citizen or qualifying resident.
[3] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables).
Failure to meet any one of these requirements is fatal to an application for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:
·fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These important terms are defined in the Impairment Tables[4] as follows:
[4] Impairment Tables s 6.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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 2 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 2 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.
Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.
The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities and symptoms and limitations upon them. They are designed to assign ratings (points) to determine the level of functional impairment and not to assess conditions. Impairment itself is a measure of loss of functional capacity affecting a claimant’s ability to work resulting from the relevant claimed condition.
The Impairment Tables establish a series of ratings which range from 0 points (no functional impact), through 5 points (mild functional impact), 10 points (moderate functional impact), 20 points (severe functional impact) to 30 points (extreme functional impact). The Impairment Tables themselves provide that a rating must be given at one of these levels only and that “a rating cannot be assigned between consecutive impairment ratings”.[5] This means that there can be no intermediate rating such as 15 points i.e. only either 10 or 20 points can be allocated according to the criteria established for each.
[5] Impairment Tables 11(1)(b).
A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:
(a) … doing any work independently of a program of support within the next 2 years; and
(b) … 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.
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
Finally, the DSP scheme has a temporal element to it in that any claim must be assessed with reference to a specific time framework. The Social Security (Administration) Act 1999 (Cth) provides that a claim must be assessed taking, as a starting point, the day upon which the DSP application was made and considering the applicant’s eligibility from that date forward within a 13-week period thereafter. This is referred to as the “qualification period”. Only evidence which relates to the applicant’s condition during this period can be considered by the Tribunal and any evidence which post-dates the period must, to be accepted, relate specifically to that period.[6]
[6] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
In this instance, the qualifying period commences on the day which the Applicant lodged their application, namely 10 December 2018 and concludes on 11 March 2019.
THE CLAIMED IMPAIRMENTS
The Applicant claims that he suffers impairments as a result of:
(a)a degenerative lumbar spine condition with scoliosis,
(b)right shoulder glenohumeral joint osteoarthritis, and
(c)right knee anterior cruciate ligament (ACL) deficiency.
The Respondent accepts that each of these conditions was fully diagnosed during the qualification period, and so it is not incumbent upon the Tribunal to do other than accept that each of the conditions has been properly diagnosed and established as such.[7]
[7] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [33], [40] and [46] respectively.
The Respondent also accepts that the spinal and shoulder conditions were fully treated and stabilised during the qualification period but that the knee condition, while fully diagnosed was not fully treated and stabilised.[8]
[8] Ibid.
Thus, the matters for the Tribunal are:
(a)what rating (points) should be assigned for each of the two conditions accepted as fully diagnosed, treated and stabilised;
(b)whether the assessment that the knee condition is fully diagnosed but not fully treated and stabilised correct, and if not, what if any, rating should be assigned to it;
(c)whether the Applicant meets the 20-point threshold test established by the Act; and
(d)if so, whether the Applicant meets the continuing inability to work test.
The Spinal condition
Assessment of the spinal condition is made using Impairment Table 4 – Spinal Function. The Respondent accepts that the Applicant qualifies for no more than 10 points on this Table.[9] The next highest level of rating is 20 points for which the criteria are:
[9] Ibid at [33].

20

There is a severe functional impact on activities involving spinal function.

(1)       The person is unable to:

(a)       perform any overhead activities; or

(b)       turn their head, or bend their neck, without moving their trunk; or

(c)       bend forward to pick up a light object from a desk or table; or

(d)       remain seated for at least 10 minutes.

In his evidence to the Tribunal on 1 June 2022, the Applicant agreed that he could perform the overhead activity of at least showering and washing his hair; that when driving (which he did once or twice a week) he was able to move his head from side to side without difficulty (albeit with occasional pain); that he could bend forward and pick up a light object; and that he was able to sit for ten minutes, either in front of the television, or while driving. He also reported that, at least once a week it was his practice to drive a short distance to a bowling club where he played bowls (underarm) for a short period of time. In all of these activities he experienced some degree of pain or discomfort, and he was often not able to sustain the activity for prolonged periods, but nevertheless was able to undertake them.
The JCA noted in February 2019 that the Applicant was “unable to sustain overhead activities” [10] but that he could at least manage short-term activities.
[10] T-documents at 141.
In cross-examination the Applicant was asked about a diagnosis made by Dr Faiz Noore (dated 27 February 2019) in which it was reported that, at the time, the Applicant could walk for a distance between 100 meters and one kilometre, sit for 30 minutes and while struggling with household chores was able to complete them.[11] He agreed that such was the case during the qualifying period.
[11] Ibid at 147.
A report by Dr Michael Davies (a neurosurgeon) dated 10 September 2018 also refers to the Applicant’s “good range of forward flexion but lumbar extension is restricted secondary to pain.”[12]
[12] Ibid at 126.
There is no evidence that the Applicant is prevented from undertaking the activities described in the 20-point criteria, albeit some of them involve pain and discomfort when being undertaken. The use of the conjunctive “or” does not allow any one of the criteria to stand on its own as allowing an applicant to meet the prescribed level of impairment but, in any event, none of the described activities is beyond the Applicant’s capacity.
The correct rating for this impairment is 10 points.
The right shoulder condition
This has been assessed as attracting five points on the relevant Impairment Table 2 – Upper Limb Function. The 10-point criteria are:

10

There is a moderate functional impact on activities using hands or arms.

(1)       The person has difficulty with most of the following:

(a)       picking up a 1 litre carton full of liquid;

(b)       picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)       holding and using a pen or pencil;

(d)       doing up buttons or tying shoelaces;

(e)       using a standard computer keyboard;

(f)       unscrewing a lid on a soft-drink bottle.

Again, in cross-examination before the Tribunal the Applicant agreed that he could pick up a one litre carton full of liquid (he reported being able to lift two litres but not five) with either hand. He agreed that he could do up his buttons and tie his shoelaces. He agreed he had no difficulty using a pen or pencil and that he could easily send messages or play games on his mobile phone for a short period of time. From his description of how he shops it is clear that he is able to pick up light but bulky objects.
These answers were consistent with the report of Dr Hamish Rae (dated 23 March 2017) following the Applicant’s shoulder surgery earlier that year.[13]
[13] Annexure A to the Respondent’s SFIC.
It is clear that the Applicant can perform most, if indeed not all, of the activities prescribed in the moderate impairment rating.
The correct rating for this impairment is 5 points.
The knee condition
It is accepted that the Applicant had problems with an ACL which was fully diagnosed during the qualification period. He has since recorded similar problems with his left knee.
However this condition cannot be regarded as fully treated and stabilised as there is evidence that the Applicant has been planning, and continues to plan, for this condition to be treated by surgery.
The Applicant faces a dilemma in this respect because he currently occupies a public housing unit on the third floor of a block, access to which requires him to climb two flights of stairs (with approximately 20 steps in each). He feels that it would be unrealistic for him to have knee surgery until such time as the housing authorities can arrange his transfer to accommodation which would be on ground floor level. There is nothing unreasonable about this.
The JCA report indicates that arrangements had been made for repair of the ACL by Dr Stackpool (orthopaedic surgeon) which was to take place in January 2019 (after 18 months on the waiting list), but this had to be cancelled for the reasons stated above.[14]
[14] T-documents at 140; Annexure B to the Respondent’s SFIC.
The fact that the Applicant agrees that he is awaiting surgery and that there is some confidence that this surgery will be beneficial, means that the condition cannot be regarded as being fully treated and stabilised.
The Tribunal cannot assign a rating to the Applicant in this respect and therefore no points can be allocated for this impairment – it must therefore record a rating of 0 points.
CONCLUSIONS
The Applicant suffers three significant impairments which compromise his quality of life. Two of those are fully diagnosed, treated and stabilised and taken together they rate an impairment score of 15 points.
This falls below the statutory minimum requirement of 20 points and the Applicant fails on the second limb of the subsection 94(1) requirements. As the requirements are cumulative, the Applicant cannot qualify for the DSP.
In turn, this means that there is no requirement for the Tribunal to consider the third limb of the DSP scheme, namely the issue of continuing inability to work.
The Tribunal understands the frustrations of the Applicant in terms of his current accommodation arrangements. The necessity to navigate two flights of stairs, given his conditions, is unduly burdensome. This is added to the fact there is evidence that he has been assaulted in that particular environment[15] and that this has added to his burden of suffering. It is hoped that this unfortunate situation can be rectified in a fashion which would allow the Applicant to undertake further treatment which might make life easier for him.
[15] Ibid at 147.
The Applicant is not prevented, should any of his impairments manifest themselves in a more severe fashion, from making further applications for the DSP which would be evaluated in accordance with the statutory requirements as at the time of their making.
DECISION
The decision under review is affirmed.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.......................................[sgd].................................
Associate
Dated: 3 June 2022

Date(s) of hearing: 1 June 2022

Applicant: In person

Solicitors for the Respondent: Mr T Chang, Services Australia

[2022] AATA 1529

3 June 2022

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Administrative Law

Statutory Interpretation

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Judicial Review

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Date(s) of hearing:	1 June 2022
Applicant:	In person
Solicitors for the Respondent:	Mr T Chang, Services Australia