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

Opijnen and Secretary, Department of Social Services (Social services second review) [2020] AATA 657 (24 March 2020)
Division:GENERAL DIVISION
File Number(s): 2018/7249
Re:Lorele van Opijnen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member

Date:24 March 2020
Place:Perth

The Tribunal affirms the decision under review.
...........................[sgd].............................................
Brigadier A G Warner, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether Applicant’s impairments were fully diagnosed, treated and stabilised at the qualification period – whether Applicant’s impairments attract 20 points under the Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999 (Cth) – Schedule 2
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Table 4, Table 5
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
SECONDARY MATERIALS
Guides to Social Policy Law, Social Security Guide
REASONS FOR DECISION
Brigadier A G Warner, Member
24 March 2020
INTRODUCTION

Ms van Opijnen seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 6 November 2018 affirming a decision to reject a claim for Disability Support Pension (DSP) lodged on

14 March 2017.
A hearing was conducted on 16 December 2019. Ms van Opijnen participated by telephone conference and gave evidence on affirmation.
Ms Claire Campbell of MinterEllison, Sydney, represented the Respondent, and also participated by telephone conference.
BACKGROUND
On 14 March 2017, Ms van Opijnen who was born in 1956, lodged a claim for DSP. In her claim, she referred to her medical conditions as, “depression, anxiety + panic attacks,
co-morbid chronic pain, diabetes melitus, excessive alcohal consumption, canabis use [and] extreme arthritis in feet [sic]…” (T15/166).
On 9 June 2017, Ms van Opijnen participated in a Job Capacity Assessment (JCA) by video conference. The JCA report dated 14 June 2017 recommended the following:
a.Ms van Opijnen’s mental health conditions were fully diagnosed, treated and stabilised, and the impairment arising from the conditions rated 10 points under Table 5 of the Impairment Tables;
b.Ms van Opijnen’s spinal condition was fully diagnosed, treated and stabilised, and the impairment arising from the condition rated 10 points under Table 4 of the Impairment Tables;
c.Ms van Opijnen’s diabetes was fully diagnosed, treated and stabilised, and the impairment arising from the condition rated 0 points under Table 1 of the Impairment Tables;
d.Ms van Opijnen had 519 days (or approximately 17 months) of active participation in a program of support (POS) during the period 14 March 2014 to 14 March 2017; and
e.Ms van Opijnen had a baseline and future work capacity within two years with intervention of 0-7 and 8-14 hours per week respectively (T17/172-181).
On 8 September 2017, Ms van Opijnen’s claim for DSP was rejected on the basis that she had not actively participated in a POS for the necessary 18 months (T19/184).
Ms van Opijnen subsequently sought review of the decision by an Authorised Review Officer (ARO) of the Department (T26/225), and on 16 July 2018, an ARO affirmed the decision under review, finding that Ms van Opijnen did not meet the POS requirements at the time of her claim on 10 March 2017 (T21/187-193).
On 21 August 2018, Ms van Opijnen sought review of the decision by the AAT1.

On 6 November 2018, the AAT1 affirmed the decision under review, finding that

Ms van Opijnen’s conditions resulted in a total impairment rating of 10 points as follows:
a. Ms van Opijnen's spinal condition was fully diagnosed, treated and stabilised, and the impairment arising from the condition rated 10 points under Table 4 of the Impairment Tables;
b. Ms van Opijnen's mental health conditions were fully diagnosed, but not fully treated or stabilised given the need for changes to her medication and ongoing psychological counselling; and
c. There was insufficient evidence of functional impairments directly resulting from Ms van Opijnen’s diabetes, and the condition could not be considered for an impairment rating (T2/2-8).
On 11 December 2018, Ms van Opijnen lodged an application for review with this Tribunal, stating: “I would like to request another hearing regarding the Review held on
6 December 2018 with Member M Jones. I feel this decision was incorrect and conducted when i [sic] was ill” (T1/1).
ISSUE
The Tribunal must decide whether Ms van Opijnen was qualified for DSP at the date of her claim, 14 March 2017, or within 13 weeks thereafter. This requires consideration of whether the requirements set out in s 94 of the Social Security Act1991 (the Act) are met; in particular, whether Ms van Opijnen has:
a.a physical, intellectual or psychiatric condition(s); and
b.condition(s) that are fully diagnosed, treated and stabilised that attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
c.a continuing inability to work (CITW).
LEGISLATION
The relevant legislation with respect to the current application is contained in:
a.the Act;
b.the Social Security (Administration) Act 1999 (the Administration Act);
c.the Impairment Tables; and
d.the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
Qualification criteria for DSP
Section 94 of the Act details the qualification for DSP and provides relevantly as follows:
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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
The qualification criteria set out in s 94(1) of the Act are conjunctive, and each element must be satisfied before a person can be accepted as qualified for DSP. As noted in the Guide to Social Security Law, at Instruction 3.6.3.05:
The determination of an impairment rating and the assessment of CITW are
2 distinct assessments based on 2 different DSP qualification criteria.
When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Note: For DSP qualification, both the minimum qualifying impairment threshold of 20 points and CITW criteria must be met and are of equal importance. Achieving an impairment rating of least 20 points does not mean that the person qualifies for DSP but merely indicates that the impairment-related qualification criterion has been satisfied. Achieving this rating does not mean the person will be unable to do any work of at least 15 hours per week in the next 2 years, either. What it does mean is that the person's impairment may have a significant functional impact in many work situations but depending on the person's individual circumstances, coping mechanisms and reasonable adjustments, that person may still be able to do work.
A rating of 20 points or more under the Impairment Tables
The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.
The Impairment Tables contain ‘Part 2 – Rules for applying the Impairment Tables’ which must be satisfied before an impairment rating can be assigned.
Paragraph 6(3) of the Rules to the Impairment Tables provides that an impairment rating can only be assigned for an impairment that arises from a condition that is permanent. ‘Permanent’ is defined in paragraph 6(4) of the Impairment Tables to have a specific meaning for the purposes of paragraph 6(3). Paragraph 6(4) provides that 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.
Paragraph 6(5) of the Rules to the Impairment Tables provides that, in determining whether a condition is fully diagnosed and fully treated for the purposes of paragraphs 6(4)(a) and (b), the following must 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.
Paragraph 6(6) of the Rules to the Impairment Tables states that a condition is fully stabilised if either:
(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:
(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.
When applying the Impairment Tables, the impairment must be assessed on the basis of what the person can, or could do. Assessment must not be made on the basis of what the person chooses to do or what others do for them (paragraph 6(1) of the Impairment Tables).
The existence of a diagnosed condition will not necessarily result in an impairment to which an impairment rating can be assigned under the Impairment Tables. Where a medical condition has no functional impact, no rating will be assigned (paragraph 6(8) of the Impairment Tables).
Qualification Period
Schedule 2, Part 2, Clause 4 of the Administration Act provides:
4 (1) 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.
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T-Documents’ (T1-T26, pp 1-231);
·Statement by Ms Lorele van Opijnen received 4 June 2019 (Exhibit A1);
·Medical report by Dr J.C. de Bruyn dated 8 August 2019 (Exhibit A2);
·Secretary’s Statement of Facts & Contentions dated 28 August 2019, including Attachment A – Program of support information (provided in an email to the Tribunal on 12 April 2019) (Exhibit R1); and
·The oral evidence of the Applicant.
CONSIDERATION
Qualification period
Ms van Opijnen lodged her claim for DSP on 14 March 2017, and consequently that claim must be assessed on her medical conditions at the date of claim or within 13 weeks of that date (the qualification period). The Respondent contends, and the Tribunal agrees, that the qualification period in this matter is 14 March 2017 to 13 June 2017 (Exhibit R1, para 16).
In the matter of Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 the AAT stated (at [34]):
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances
(Emphasis added).
In reference to the importance of the qualification period, the Respondent cites the case of Gallacher and Secretary, Department of Social Services [2015] FCA 1123, [25]-[29],

in which the Federal Court affirmed the principle that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period (Exhibit R1, para 19).
These authorities and others relevantly cited by the Respondent (see R1/15) establish that a decision maker, such as the Tribunal, can only consider an applicant's qualification for DSP within the qualification period. If the applicant's circumstances have subsequently changed, it may be appropriate for the applicant to lodge a fresh claim for DSP.
Assessment of physical, intellectual or psychiatric impairment
At the outset, the Tribunal reviewed the decisions of the ARO (T21) who determined that Ms van Opijnen’s impairments attracted 20 impairment points, and the AAT1 at first review, which determined an impairment rating of 10 points (T2). However, this Tribunal’s review is de novo, and this allows the Tribunal to reconsider the application afresh according to the law, the policy and the facts. The Tribunal’s consideration is detailed in the paragraphs below.
The Respondent accepts that, during the qualification period, Ms van Opijnen suffered from a number of physical and psychiatric impairments such that she satisfied s 94(1)(a) of the Act. Having regard to the evidence, the Tribunal agrees.
Chronic Back Pain
The Respondent concedes that Ms van Opijnen's chronic back pain was fully diagnosed, treated and stabilised during the qualification period (Exhibit R1, para 31).

The Respondent’s position is consistent with the medical evidence and so the Tribunal agrees.
In determining functional impairment under Table 4 – Spinal Function, the Tribunal has regard to the following:
a.
In oral evidence before a previous AAT1 hearing (20 May 2016),

Ms van Opijnen said that she was able to bend to pick up something she had dropped, but not on a repetitive basis, and that she could probably sit for more than 30 minutes depending on the chair and whether it was a good day (T10/121).
b.In a medical report dated 25 May 2016, Dr J.C. de Bruyn listed chronic back pain from 1986 as a condition that was generally well managed and caused minimal or limited impact on Ms van Opijnen’s ability to function (T11/132).
c.The JCA report dated 13 June 2017 concluded that Ms van Opijnen’s back condition met the descriptors for a moderate functional impact on activities involving spinal function, and recommended 10 impairment points (T17/177).
d.
In medical evidence provided in a DSP Record dated 12 July 2017

Dr de Bruyn stated that Ms van Opijnen was “able to sit & drive short local but not longer & less comfortable in a non-supportive chair” and was “unable to sustain work @ or above shoulder height”. Dr de Bruyn opined that Ms van Opijnen “would meet descriptors for Moderate – impact i.e. 10 points – Table 4” (T18/182-183).
e.
The AAT1 decision records that Ms van Opijnen gave oral evidence to that Tribunal on 6 November 2018 that she was capable of living alone, managing her own cooking and light housework, sitting for about

15 minutes, driving a car and caring for her grandchildren when they came to stay (T2/6, 8).
f.In the decision dated 16 July 2018, the ARO notes that Ms van Opjinen’s Disability Employment Services provider advised during a discussion with the ARO that Ms van Opjinen had been observed to care for and run around with her grandchild with no signs of difficulties (T21/193).
In relation to this condition, Ms van Opijnen told the Tribunal that she is able to do less than the Respondent contends, and does not do heavy work of any sort. She said that she does a little bit of cooking because she lives on her own, does some handwashing and her daughter helps with other washing, and she is unable to mop her floors.

Ms van Opijnen said that her gardening is done by her son and son-in-law, and her neighbour, daughter and friends assist with her shopping.
Ms van Opijnen told the Tribunal that a recent holiday in 2016 provided by her family involved three and a half hours on a plane, but like other people she had been able to move around. She had taken painkillers with her, and found being in a hotel with a swimming pool enjoyable and relaxing.
The Tribunal finds that the impairment resulting from Ms van Opijnen’s chronic back pain attracts 10 impairment points under Table 4 as she satisfies descriptor (1)(a) for moderate functional impact. The Tribunal notes that this assessment is consistent with the JCA conducted on 13 June 2017 (T17/177), the AAT1 decision (T2/7) and the Respondents present contentions (Exhibit R1, para 32). The Tribunal is satisfied that the evidence does not support a higher rating under Table 4 at the qualification period.
Mental health conditions
The Respondent concedes that Ms van Opijnen’s mental health conditions were fully diagnosed, treated and stabilised during the qualification period (Exhibit R1, para 35). The Respondent further contends that the appropriate impairment rating arising from the conditions attracted a rating of 10 points at best under Table 5 of the Impairment Tables during the qualification period, on the basis that Ms van Opijnen had no more than moderate difficulties in each of the areas described in descriptors in (1)(a) – (f) of Table 5 (Exhibit R1, para 36).
In relation to consideration of an appropriate impairment rating, the Respondent also submits that the Tribunal should place limited weight on Ms van Opijnen’s self-reports and medical evidence suggesting a significant functional impact, having regard to the following evidence:
(a)A file note from the Applicant's DES provider dated 3 June 2016 that documents the Applicant as having said that her “psych knows all the ‘tricks for DHS’ and knows what to say to get her the pension”;
(b)A file note from the Applicant's DES provider dated 5 September 2016 that the Applicant was “very upset that she wasn't paid DSP and is constantly seeking angles to try and get a reversal of the original decision by DHS”; and
(c) A file note from the Applicant's DES provider dated 19 September 2016 that confirmed the Applicant had been the “number one choice” for a job she had applied for, and that this had “little to no effect on her”. The DES provider noted that it was going to be a long road to find the Applicant's motivation as she was fixated on trying to get the DSP
(Exhibit R1, para 39)

In its consideration of Ms van Opijnen’s mental health conditions, the AAT1 stated in its decision dated 6 November 2018:
35. The tribunal noted that in relation to the earlier DSP claim the condition of depression was not considered for an impairment rating as the diagnosis had not been confirmed by a psychiatrist or clinical psychologist.
36. The tribunal is satisfied that this requirement has now been met. Letters from consultant psychiatrist Dr Erihana Ryan have confirmed the presence of several mental health problems including depression, dysphoria, anxiety and adjustment disorder (T2/8).
Having regard to Dr Erihana Ryan’s evidence (T12/134-137, T13/138) the Tribunal agrees with the AAT1 and finds that at the qualification period Ms van Opijnen’s mental health conditions were fully diagnosed.
In her letter to Dr de Bruyn dated 26 October 2016, Dr Ryan recommended:
…review and consideration of change of her medical management of pain to withdraw Tramadol, as Tramadol prevents the effective use of Anti-depressants. This will entail replacement with other medications for pain management. Once this has been achieved however, I recommend the change of her Duloxetine to Mirtazapine to be increased according to her response…and that she be referred to a Psychologist for psychological treatment to assist in the management of the depression and anxiety (T13/138).
From the evidence before the Tribunal, it does not appear that Dr Ryan’s recommendations were implemented as at the qualification period. Further, in his letter dated 7 April 2017 (some three weeks after the lodgement of Ms van Opijnen’s DSP claim), Dr de Bruyn stated: “Her depression and anxiety is also not managed yet…” (T16/171).
In a further letter to the Tribunal/Centrelink dated 8 August 2019, Dr de Bruyn stated:

“The psychiatrist report is stating that she has depression and a poor prognosis. I do agree with that statement and am of the opinion that you should focus on the diagnosis confirmed for your assessment and not on the suggested management”
(Exhibit A2).
However, the Tribunal can only assign an impairment rating under the Impairment Tables where the relevant condition is permanent, that is, fully diagnosed, fully treated and fully stabilised. The Rules to the Impairment Tables (Rules 6(3), 6(4), 6(5) and 6(6)) preclude the assignment of a rating based on diagnosis alone (T3/27-28). In these circumstances, Ms van Opijnen’s mental health conditions, although fully diagnosed, cannot be considered fully treated or fully stabilised. It follows that they do not attract impairment points.
Other Conditions
The material before the Tribunal raises a number of other conditions suffered by

Ms van Opijnen – including diabetes, reflex, hypertension, arthritis in feet and substance abuse (see paragraph 4 above). With the exception of diabetes, the Tribunal finds that there is insufficient evidence to make an assessment as to whether the conditions were fully diagnosed, treated and stabilised during the qualification period.
The JCA Report dated 13 June 2017 reports that the diabetes condition was diagnosed in 2014 and is fully diagnosed, fully treated and fully stabilised. The report cites a telephone conversation with Dr de Bruyn on 12 July 2017 in which he verified that the condition was optimally treated and unlikely to impact on function – zero points. The JCA assessor recommended an impairment rating of zero points (T17/177).
The Tribunal notes that diabetes was the only other condition assessed in

Ms van Opijnen’s JCA on 13 June 2017 (T17/172-181). With respect to Ms van Opijnen’s other conditions, the Respondent contends that there is no evidence to suggest that the impairments arising from the conditions caused anything more than minimal or no impact on her ability to function during the qualification period. Having regard to the evidence, the Tribunal agrees.
The Tribunal finds that Ms van Opijnen’s other conditions do not attract impairment points under the Impairment Tables.

Overall Impairment Rating
The Tribunal finds that Ms van Opijnen’s conditions at the qualification period attract a total impairment rating of 10 points during the qualification period, being 10 points under Table 4 – Spinal Function. As this is less than the 20 points required to satisfy s 94(1)(b) of the Act, Ms van Opijnen does not qualify for the DSP.
Continuing Inability to Work
Section 94(1)(c) of the Act requires that Ms van Opijnen have a CITW because of her impairments. Consequent to the Tribunal finding that Ms van Opijnen’s medical conditions do not attract 20 impairment points and that she is not qualified for the DSP, it is not necessary for the Tribunal to consider the issue of CITW.
In the Secretary’s Statement of Facts & Contentions dated 28 August 2019,

the Respondent contends that Ms van Opijnen did not have a CITW during the qualification period (Exhibit R1, para 43), and provides detailed and comprehensive submissions supporting that contention (Exhibit R1, paras 44-62).
Much of Ms van Opijnen’s evidence before the Tribunal related to the issue of CITW, and particularly her engagement with her Disability Employment Services (DES) provider.

Ms van Opijnen expressed confusion, disappointment and disagreement with elements of the relevant evidence, particularly statements made by the DES provider. The Tribunal appreciates Ms van Opijnen’s submissions and makes mention of them in these reasons for completeness, but as stated at paragraph [46] above, it is not necessary for the Tribunal to weigh those submissions in determining Ms van Opijnen’s qualification for DSP.
CONCLUSION
The Tribunal finds that at the qualification period, Ms van Opijnen’s conditions rated

10 points under the Impairment Tables and therefore she did not satisfy s 94(1)(b) of the Act, and consequently does not qualify for the DSP.
DECISION
For the above reasons, the Tribunal affirms the decision of the Social Services & Child Support Division of this Tribunal made on 6 November 2018.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

.........................[sgd]...............................................
Associate
Dated: 24 March 2020

Date(s) of hearing: 16 December 2019

Applicant: In person

Counsel for the Respondent: Claire Campbell

Solicitors for the Respondent: MinterEllison

[2020] AATA 657

24 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date(s) of hearing:	16 December 2019
Applicant:	In person
Counsel for the Respondent:	Claire Campbell
Solicitors for the Respondent:	MinterEllison