Oliver and Secretary, Department of Social Services (Social services second review)
[2020] AATA 761
•3 April 2020
Oliver and Secretary, Department of Social Services (Social services second review) [2020] AATA 761 (3 April 2020)
Division:GENERAL DIVISION
File Number: 2019/4320
Re:Jennifer Oliver
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Chris Puplick AM
Date:3 April 2020
Place:Sydney
The decision under review is affirmed.
..........[sgd]..............................................................
Senior Member Chris Puplick AM
CATCHWORDS
SOCIAL SECURITY – disability support pension – where applicant has medical conditions causing impairment – whether the impairment is fully diagnosed, fully treated and fully stabilised – whether the applicant has an impairment rating of 20 or more points according to the Impairment Tables – neck condition – lower back condition – irritable bowel syndrome – obesity – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Kara v Secretary, Department of Social Services [2020] AATA 393
Shi v Migration Agents Registration Authority [2008] HCA 31
SECONDARY MATERIALS
Guides to Social Policy Law – Social Security Guide – Version 1.263 – Released 27 March 2020
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member Chris Puplick AM
3 April 2020
Ms Jennifer Oliver (the Applicant) is seeking a review of the decision of the Social Services and Child Support Division of this Tribunal (AAT1) which, on 20 June 2019, upheld a decision by the Secretary, Department of Social Services (the Respondent) to refuse her application for the payment of Disability Support Pension (DSP).
The Applicant first applied for the DSP on 22 August 2018. She was assessed by a Job Capacity Assessor on 4 December 2018 who, after consideration of all of her reported impairments, came to the conclusion that she rated only 5 points on the Impairment Tables (see below).
This assessment was the basis of the Respondent rejecting the Applicant’s claim for DSP, which it did on 13 December 2018. This matter was then reconsidered by an Authorised Review Officer (ARO) of the Department who, on 18 February 2019, confirmed the rejection decision.
The Applicant applied to have this matter reviewed by the AAT1 on 13 March 2019 and that Tribunal upheld the rejection decision on 20 June 2019.
On 16 July 2019, the Applicant sought a review of that decision to this Tribunal which heard the application on 20 March 2020.
At the time of the hearing, the Tribunal was operating under restrictions arising from mandated responses to the COVID-19 pandemic and all parties were heard 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). Section 94 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;
Failure to meet any one of the section 94 requirements is fatal to a claimant’s 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 section 6 of the Impairment Tables[1] as follows:
[1] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (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.
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.
Ordinarily, in matters before the Tribunal, a decision is made on the evidence as it stands at the date of the Tribunal hearing itself. This means that the Tribunal may have before it material which was not before the original decision-maker .and the Tribunal can take that into account.[2] This is not the case in DSP matters.
[2] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
The legislation provides that what the Tribunal must consider is the state of the Applicant’s impairment at the time of the application and in the three months following,[3] namely between 20 August 2018 and 21 November 2018.
[3] Social Security (Administration) Act 1999 (Cth) sch 2, pt 2, cl 4.
Those dates constitute what I shall refer to as ‘the qualification period’.
The Tribunal cannot take into account any other contemporary material, reports or evidence, except to the extent that such material is relevant to the status of the Applicant’s health or impairment during the qualification period.[4]
[4] Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].
The Applicant’s Impairments
The Applicant claims a number of impairments, each of which must be considered by the Tribunal and potentially assessed[5] on the Impairment Tables. These are:
·neck condition: leading to compromised spinal and upper limb functioning;
·lower back condition;
·irritable bowel syndrome; and
·obesity.
[5] They may only be assessed if they are fully diagnosed, fully treated and fully stabilised.
Neck condition
The principal consideration for the Tribunal is the degree of impairment suffered by the Applicant as a result of her neck condition. This condition was described by Dr David Fitzgerald (an occupational physician who prepared a report for Comcare) as: ‘C6 radiculopathy’[6] and by the Respondent as ‘right C6 radiculopathy related to degenerative arthropathy.’[7]
[6] Section 37 Tribunal Documents (T documents), 204, (23 May 2018).
[7] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [33].
The Respondent accepts that this condition is fully diagnosed, fully treated and fully stabilised.
The Applicant has suffered from problems associated with this condition for many years and has received numerous treatments for it, including surgery in 2010.
This condition is capable of being assessed on two of the Impairment Tables: Table 4 (spinal function) and Table 2 (upper limb function).
Section 10 of the Impairment Tables provide the following rules:
…
Single condition causing multiple impairments
(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Subsection 10(4) of the Impairment Tables is not without ambiguity in terms of how a single condition with multiple impairment presentations should be treated. Some clarity is given in the Social Security Guide which makes it clear that ‘the same impairment must not be assigned an impairment rating under more than one table.’[8]
[8] Social Security Guide 3.6.3.05 Guidelines to the Rules for Applying Impairment Tables page 15.
Turning first to the assessment on Table 4 (spinal function), the relevant parts of that Table are as follows:
Points
Descriptors
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least
one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
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.
Evidence as to the Applicant’s impairment in this area is provided in the reports of Dr Pillemer (orthopaedic surgeon);[9] Dr Malhotra (neurologist);[10] Dr Fitzgerald (occupational physician);[11] Dr McGrath (occupational and musculoskeletal physician)[12] and a Job Capacity Assessor.[13] Evidence was further given by the Applicant at the Tribunal hearing both in chief and under cross-examination by the Respondent’s representative.
[9] T documents, 165-169, (22 March 2017).
[10] Ibid 174, (11 May 2017).
[11] Ibid 200-206, (23 May 2018).
[12] Ibid 207-214, (14 June 2018).
[13] Ibid 257-265, (5 November 2018).
What that evidence establishes is that the Applicant is not able to “sustain overhead activities” (section 10(1)(a)). She is not capable of undertaking activities which require her to reach over head level for any sustainable period of time, albeit that she has some capacity to undertake some such tasks using her left hand/arm. The evidence reveals that the Applicant can generally move her head in all directions and look over her shoulder (as she did during her limited driving sessions in the qualification period), although she suffers a degree of pain and discomfiture as a result of some movements. During that period, she was capable of bending forward to pick up objects at knee height (again with some associated pain) and she has never had significant difficulties getting up out of a chair.
As the 10-point scale of Table 4 requires that the Applicant be impaired in ‘at least one’ of the specified criteria; the Applicant’s satisfaction of item 10(1)(a) is sufficient to qualify her for 10 points on the Table.
Turning my mind to the 20-point scale, while the Applicant cannot sustain over head activities, she is not unable to perform any such activities. The Applicant is able to use her left hand/arm (she is normally right-handed) and whilst there is some discomfort in doing so, she nevertheless can perform some functions. The Applicant confirmed this to both Dr Malhorta and the Job Capacity Assessor; and in oral evidence to the Tribunal. The Applicant can turn her head and neck and is capable of picking up light objects from a table or desk. The Applicant told the Tribunal that she is able to sit for a period of ten minutes, although on most occasions when she is at home, she lies down on her couch rather than just sitting on it.
This establishes that the Applicant does not meet the 20-point threshold on Table 4.
The Tribunal has noted a report by Dr Kumar Cherukuri of 8 October 2019 in which he reports some improvement in the Applicant’s neck condition related to the C5/6 small disc bulge; and the Applicant in her oral evidence agreed that this was the case.[14] It is to be hoped for the Applicant’s sake that these improvements in her condition continue.
[14] Letter of Dr Ravi Kumar Cherukuri to Dr Anna Putnis (8 October 2019).
Considering Table 2 (upper limb function), the Tribunal must consider assessments which lie at the lower end of the scale.
Points
Descriptors
0 There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5 There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
Evidence before the Tribunal suggests that the Applicant can in fact manage to handle most objects encountered on a daily basis without difficulty; although again with the caveat that some activities are painful for her. She is able to handle small objects such as coins (although she says she does not use them); she is capable of picking up an article such as a carton of liquid or a shopping bag; and she can reach out to pick up objects, although she has to use her left hand to complete these tasks. As for doing up buttons, the Applicant reports that her clothing is such that she does not wear buttoned apparel.
In these circumstances the Applicant cannot be awarded any points on Table 2.
Lower Back condition
Subsections 10(5) and (6) of the Impairment Tables provides:
Multiple conditions causing a common impairment
(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.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
Regarding this impairment, the Secretary’s contention is as follows:
The Secretary accepts the Applicant’s lower back condition was fully diagnosed, treated and stabilised during the qualification period. The Secretary however contends this condition warrants an impairment rating of nil points under Table 4, as this condition, and the Applicant’s neck condition cause a common impairment.
The Secretary notes that subsection 10(5) of the Impairment Tables provides that where two or more conditions cause a common or combine impairment, a single rating should be assigned in relation that common or combined impairment under a single Table (T3, p34).
The Secretary contends the Applicant’s neck condition and lower back condition cause a common impairment in relation to her spinal function. Accordingly, as per subsection 10(5) of the Impairment Tables, a single rating under Table 4 should be assigned.
The medical evidence supports the Secretary’s contention that this impairment is linked to the neck condition and cannot be characterised as a separate impairment. Thus the Applicant’s lower back condition and neck condition has to be dealt with on a single Table.
The question then arises as to whether examination of this condition takes the assessment beyond the 10 points already determined. The next step in the scale, the 20-point descriptors appear above at [24].
As has already been described, none of the items are beyond the Applicant’s capabilities and hence the 20-point threshold is not reached here either.
Taken individually, the assignment might be of 10 points for each of the neck condition and lower back condition, but the Tribunal is bound by the Rules to treat them as arising from the same aetiology and hence confine assessment to one Table only, with the result that the award of 10 points must be taken to cover both impairments. No additional points can be awarded.
Irritable bowel syndrome (IBS) and Obesity
These two conditions can be considered together. In evidence to the Tribunal, the Applicant indicated her surprise that these matters were even under consideration, in that her original DSP application was confined to the problems associated with her neck and lower back. The Applicant told the Tribunal that she had made four unsuccessful applications for the DSP and that these two conditions had been added along the way.
The Secretary agrees that each condition is fully diagnosed but that neither is fully treated or fully stabilised.
The evidence before the Tribunal supports that contention.
In relation to the former, the Applicant notes the onset of some difficulties with bowel control resulting from her 2010 operation; and that she has not consulted any specialist physicians or been prescribed any specific medication or treatment regime in regards to her IBS. The Applicant states that advice from her general practitioner and others is to the effect that there is little that can be done to address or alleviate this condition, and that may well be so. However, the Applicant has not taken such steps to seek specialist advice or to embark upon any course of treatment such that the impairment could be accepted as being fully treated and fully stabilised.
In relation to the Applicant’s issues with obesity, she reports that she has consulted a dietician in relation to regimes and programmes which might help her reduce her weight. She has also tried some exercise regimes, including swimming and walking, although these are no longer options for her due to the pain they cause. The Applicant advised that she had forthcoming appointments with a dietician and that she was also taking steps to manage a more recent diagnosis of diabetes. Again, this evidence establishes that further treatment options are open to the Applicant; and that not all avenues to address the issue have been exhausted. Hence, as with the IBS, this condition cannot be accepted as being fully treated and stabilised.
Apart from her own direct and helpful evidence to the Tribunal, the Applicant also supplied a number of letters of support from various people (including her mother) who confirmed a great deal about what she said about her current degree of impairment and difficulty. A number of these referred back to the qualification period; but none were in a position to comment directly upon the nature of treatments provided to the Applicant.
Considerations
Taking all of the Applicant’s impairment issues together, the Tribunal concludes that the Applicant’s overall impairment rating must be set at 10 points. This is awarded in relation to the neck condition and encompasses consideration of the lower back issues. None of the other impairments are rateable.
The failure of the Applicant to reach the requirement of 20 points for award of the DSP alleviates any necessity to consider matters related to the Program of Support (POS) and the Applicant’s participation, or otherwise, in such.
Without further comment, the Tribunal expresses its sympathy with the Applicant’s bewilderment at why, in any event, she should have been expected to have been in a POS for 18 months prior to the date of her DSP application when, at the time, she was in full-time employment[15] – at Centrelink, no less.
[15] Equally see Kara v Secretary, Department of Social Services [2020] AATA 393.
DECISION
The decision under review is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chris Puplick AM
.............[sgd]...........................................................
Associate
Dated: 3 April 2020
Date of hearing: 20 March 2020 Date final submissions received: 20 March 2020 Applicant: In person Solicitors for the Respondent: Ms Elizabeth Ulrick, Services Australia
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