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

[2020] AATA 1849

Nicholson and Secretary, Department of Social Services (Social services second review) [2020] AATA 1849 (18 May 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5627

Re:Kristine Nicholson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:18 May 2020

Date of written reasons:        18 June 2020

Place:Sydney

The reviewable decision dated 23 August 2019 is affirmed.

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

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the Applicant has an impairment rating of 20 or more points according to the Impairment Tables  – whether the Applicant has a continuing inability to work – whether the Applicant was exempt from participating in a program of support – qualification period – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – ss 18B, 43(2), 43(2A), 43(2B)

Social Security Act 1991 (Cth) – ss 94(1)(b) and 94(1)(c)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 7(3)-(5)

Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – s 6(6) of Part 2

CASES

Fenton and Secretary, Department of Social Services [2018] AATA 4046

Negri v Secretary, Department of Social Services [2016] FCA 879

SECONDARY MATERIALS

The Social Security Guide – 3.6.2.112

WRITTEN REASONS FOR DECISION

Mr S Evans, Member

18 June 2020

1. Kristine Nicholson is the applicant in this matter. She applied for disability support pension (“DSP”) on 4 May 2018. At the time she made her claim she listed her conditions as chronic obstructive pulmonary disease (“COPD”), osteoporosis, rheumatoid arthritis.

2. On 20 June 2018, the Secretary of the Department of Social Services (“the Respondent” or “Centrelink”) determined that Ms Nicholson was manifestly ineligible for DSP because she did not have an impairment rating of 20 points or more.

3. At Ms Nicholson’s request, the decision was reviewed by an Authorised Review Officer (“ARO”) who determined on 13 June 2019 that the decision to reject her application for DSP was correct. Ms Nicholson sought review of the ARO’s decision before the Social Services and Child Support Division of this Tribunal (“AAT1”). On 23 August 2019, the AAT1 affirmed the ARO’s decision to reject Ms Nicholson claim for DSP. On 5 September 2019, Ms Nicholson sought review of the AAT1’s decision before the General Division of the Administrative Appeals Tribunal.

   HEARING

4. The matter was heard on 18 May 2020. Ms Nicholson was self-represented and both she and the Respondent appeared via telephone in accordance with the COVID-19 Special Measures Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).

5. At the hearing, Ms Nicholson was provided an opportunity to present her case. At the conclusion of the hearing, the Tribunal affirmed the decision under review and gave oral reasons for its decision as permitted under section 43(2) of the AAT Act. Ms Nicholson sought a statement in writing of the reasons for the decision under section 43(2A) of the AAT Act. The Tribunal therefore provides reasons in writing for the decision which, in accordance with section 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which these findings were based.

6. In accordance with the Federal Court decision in Negri v Secretary, Department of Social Services [2016] FCA 879, these written reasons are consistent with the oral decision given and do not contain altered or new reasoning, but it is hoped that they explain in a fuller way the reasons why the Tribunal decided to affirm the original decision to refuse Ms Nicholson’s application for DSP.

   CRITERIA TO BE APPLIED

   Qualification for disability support pension

7. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of DSP:

   94(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;…

8. The Impairment Tables[1] referred to in section 94(1)(b) of the Act, are used to assign ratings to determine the level of functional impact that a condition has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, fully treated and fully stabilised and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

   [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Impairment Tables”).

9. Subsection 6(6) of Part 2 of the Impairment Tables sets out the requirements for a condition to be fully stabilised:

   (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.

10. Reasonable treatment is defined at subsection 6(7) of the Impairment Tables as treatment that:

    (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.

    The qualification period

11. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

    
    
    

    As noted, Ms Nicholson lodged her claim for DSP on 4 May 2018 and that triggers the assessment process to determine the eligibility of the Applicant. Ms Nicholson must qualify for DSP on the date of the claim or within 13 weeks thereafter (i.e. 3 August 2018). I will refer to this as the “qualification period”.

12. The practical implications for this matter are that the Tribunal can only consider Ms Nicholson’s conditions and qualification for DSP during the qualification period.

13. Following this, the Tribunal notes that the medical reports that come into being after the relevant period are only pertinent to the extent that they refer to Ms Nicholson’s conditions during the qualification period.

    Continuing inability to work

14. Section 94(1)(c) of the Act requires that to be eligible for DSP a person must have a continuing inability to work. The requirement for a continuing inability to work is satisfied if the person has a severe impairment – meaning they have an impairment of 20 points or more under the Impairment Tables of which 20 points or more are under a single Impairment Table. Alternatively, they have actively participated in a “program of support” and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, in the next two years.

    ISSUES

15. The Tribunal must determine whether Ms Nicholson qualified for the DSP during the qualification period.

    EVIDENCE AND CONDITIONS

16. The Respondent accepts that Ms Nicholson had an impairment that meets the requirement of paragraph 94(1)(a) of the Act during the qualification period.

    Continuing inability to work

17. During the hearing, Ms Nicholson was taken through the requirements of section 94(1). Ms Nicholson explained to the Tribunal that she was of the understanding that she had an exemption from participating in a program of support as she was a foster parent. She confirmed that she had attended an employment training service and her program of support history provided by the Respondent indicates that she completed one day of activity in the three years prior to her application. The program of support history indicates that she was provided an exemption on three occasions. The Social Security Guide (“the Guide”) makes clear that exemptions do not count towards participation in a program of support. At 3.6.2.112 the Guide instructs as follows:

    Periods in which the person is disengaged from a program FOR ANY REASON, including but not limited to non-compliance with the program requirements or because they have an exemption, are not regarded as, and do not count towards, active participation. Any such periods will reduce the time counted as active participation for any POS the person has undertaken, however, this does not mean the whole program is to be disregarded.

18. As none of the exemptions in subsection 7(3)-(5) of the Social Security (Active Participation for Disability Support Pension 2014 (Cth) apply, Ms Nicholson does not meet the requirements for having participated in a program of support. Consequently, she is required to demonstrate she has a severe impairment in order to satisfy section 94(1)(c) of the Act.

    Chronic obstructive pulmonary disease (“COPD”)

19. Ms Nicholson identified that COPD was the condition which caused her the greatest impairment. Dr Peter Braude is a consultant physician who reported in November 2014[2] that the condition was being treated at that time. The diagnosis is confirmed by Dr Gupta who is a consultant respiratory, sleep and general physician in June 2018[3].

    [2] T5 at p 92.

    [3] T10 at p 128.

20. In June 2018, Dr Quevedo-Micua[4] noted that Ms Nicholson had been “counselled to try to stop smoking”. Ms Nicholson conceded at the hearing she had recently stopped smoking and a report from Dr Prowse mentions that as of 26 February 2019, she continued to smoke[5]. The Respondent contends that her failure to follow the medical advice of her treating practitioners by ceasing to smoke means that the condition cannot be found to be fully treated and stabilised. The Respondent points the Tribunal to Fenton and Secretary, Department of Social Services [2018] AATA 4046 (Fenton). in which the applicant had similarly ceased smoking after the qualification period. In Fenton Member Taglieri determined:

    On the balance of the evidence received, the Tribunal is satisfied that the Applicant did not completely cease smoking until after the 13 week qualification period. The Tribunal considers the evidence the Applicant gave to the SSCSD more likely to be reliable as it was given at a time more proximate to the events of giving up smoking. Further, the Applicant did not give a date or approximate date when giving evidence on 19 October 2018.

    The Tribunal finds that the Applicant probably ceased smoking towards the end of 2017, outside of the qualification period. Regrettably for the Applicant, that means that during the qualification period the condition of COPD cannot be taken at law to be fully treated, and for that reason the Tribunal is not persuaded that the condition is permanent for the purpose of his claim of 12 May 2017.

    [4] T14 at pp 133-134.

    [5] T16 at p 137.

21. It is not in contention that Ms Nicholson continued to smoke during the qualification period and as in Fenton, her COPD is not able to be assigned an impairment rating as it was not fully treated and stabilised during the qualification period.

    Rheumatoid arthritis and osteoporosis

22. Rheumatologist Dr Prowse reported in April 2019 that Ms Nicholson suffered from rheumatoid arthritis with a date of onset June 2013.[6] He also confirmed a diagnosis of osteoporosis from July 2013. In relation to Ms Nicholson’s arthritis, Dr Prowse reported in April 2019 “it looks reasonable at present” before noting some ankle swelling.

    [6] T18 at p 142.

23. In February 2019, Dr Prowse noted that Ms Nicholson had “pain [in] both ankles, forefoot, right shoulder and upper arm” and recommended that she take prednisolone 7.5mg/day.

24. The evidence supports the Respondent’s contention that changes were being made to Ms Nicholson’s medication after the qualification period and that the changes had led to a decrease in symptoms and as such the rheumatoid arthritis was not fully treated during the qualification period.

25. Similarly, in relation to Ms Nicholson’s osteoporosis, following an assessment in June 2018, Dr Gupta wrote that Ms Nicholson “needs an endocrinologist for her osteoporosis”. There is no evidence to support that Ms Nicholson saw an endocrinologist following this assessment. As such, the Tribunal concludes that this condition was not fully treated and stabilised.

    Diverticulitis

26. Ms Nicholson told the Tribunal that she suffers from diverticulitis. This was not mentioned in her DSP claim but Ms Nicholson has provided a report from Dr Diu at the Taree Medical Centre from September 2019 which confirms a diagnosis of chronic colitis. He writes that a formal review and investigation was undertaken by gastroenterologist Dr Prematilake in 2016 and there has been no improvement in symptoms since that time.

27. There is a dearth of evidence relating to this condition and the Respondent submits that it is not relatable to the qualification period, which the Tribunal accepts.  Consequently the Tribunal is not able to confirm the condition was fully diagnosed, treated and stabilised or make a determination under the Impairment Tables based on this evidence.

    CONCLUSION

28. It was emphasised to the Applicant during the hearing that in order to qualify for DSP, the Tribunal would require evidence consistent with the rules for the application of the Impairment Tables. Without this evidence, the rigid eligibility criteria would not be met.

29. Based on the evidence before it, the Tribunal finds that treatment was either outstanding or still in progress for the Applicant’s most severe impairments including her mental health condition, bladder and gastrointestinal conditions and chronic pain. Consequently, these conditions cannot be found to be fully diagnosed, treated and stabilised and were not able to be assigned an impairment rating during the qualification period.

30. Because Ms Nicholson does not meet the threshold requirement of 20 points under the impairment tables, her claim for DSP was not successful.

    DECISION

31. For the reasons stated above I affirm the decision under review.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 18 June 2020

Date(s) of hearing:	18 May 2020
Applicant:	By telephone
Solicitors for the Respondent:	Mr T Hillyard