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

[2018] AATA 3789

Payne and Secretary, Department of Social Services (Social services second review) [2018] AATA 3789 (24 September 2018)

Division:               General Division

File Number(s):  2016/1783

Re:Mr Michael Payne

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date of oral decision:            24 September 2018

Date of written reasons:        10 October 2018

Place:Sydney

The Tribunal affirms the decision under review.

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

Senior Member M Griffin QC

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualifies for a disability support pension – multiple medical impairments – whether applicant has permanent medical impairments which can be rated at 20 points or more under the Impairment Tables – whether applicant’s medical impairments are fully diagnosed, treated, stabilised and likely to persist for more than two years – decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth), s 42

Social Security Act 1991 (Cth), s 94

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 3, 6

WRITTEN REASONS FOR ORAL DECISION

Senior Member M Griffin QC

10 October 2018

INTRODUCTION

1. The following are supplementary reasons which amplify the oral decision given by the Tribunal on 24 September 2018.

2. A decision of the Administrative Appeals Tribunal at first tier review (AAT1) made on 23 March 2016, affirmed a decision to cancel the Applicant’s disability support pension (DSP) on 29 September 2015.

3. The issue to be decided is whether the Applicant qualified to receive DSP as at the date of cancellation, 29 September 2015, or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (the claim period).

4. This requires consideration of whether the Applicant satisfied the qualification criteria for DSP in section 94(1) of the Social Security Act 1991 (Act) as at the date of cancellation, in particular, whether the Applicant had:

   (a)a physical, intellectual or psychiatric impairment for the purpose of subsection 94(1)(a) of the Act; and

   (b)impairment/s that attracted a rating of at least 20 points for the purpose of subsection 94(1)(b) of the Act; and

   (c)a continuing inability to work, as defined in subsection 94(2) of the Act, for the purpose of subsection 94(1)(c) of the Act.

   BACKGROUND

5. The Applicant had been in receipt of DSP from 25 January 1996. The Applicant was granted DSP on the basis of impairments arising from the condition of Q fever, which he contracted whilst working in the meat industry in the 1980s, and which developed into chronic fatigue syndrome.

6. In 2015, the Applicant’s entitlement to DSP became subject to review.

7. In support of the review for his DSP, the Applicant provided a medical report completed by his general practitioner, Dr Brdarevic, on 6 January 2015. In that report, Dr Brdarevic identifies the following conditions as causing impairment to the Applicant’s ability to function:

   (a)“Chronic multiple discopathies to cervical and lumbo-sacral spine with Lt sciatica” onset 2003 (back and neck conditions). Dr Brdarevic noted under the ‘history’ of these conditions the occurrence of a motor vehicle accident in 2003.

   (b)“Bilateral knee injury R > L” onset 1986 (knee condition). Under the ‘history’ of this condition, Dr Brdarevic noted “playing football”.

   (c)“Lt. Shoulder reconstruction” was identified as a condition that was generally well- managed and caused minimal or limited impact.

8. On 14 August 2015, the Applicant underwent a Job Capacity Assessment (JCA). The JCA assessor made the following recommendations in relation to the Applicant’s conditions:

   (a)The back condition caused a mild impairment on the Applicant’s ability to function, and awarded 5 points under Table 4. The neck condition was taken into account in assigning this rating.

   (b)The knee condition caused a mild functional impact and attracted a rating of 5 points under Table 3.

   (c)The shoulder condition had limited impact on the Applicant’s ability to function and was awarded nil points.

   (d)Chronic fatigue was accepted as a permanent condition, but did not meet the criteria for a mild impairment rating, and so no points were awarded.

   (e)The following conditions also attracted a nil-point rating due to their limited impact on the Applicant’s ability to function: hypertension, hernia, epigastric pain.

   (f)The Applicant’s mental health condition (depression) was considered not to be permanent, and as such, was not assessed.

9. On 29 September 2015, the Department of Human Services (Department) wrote to the Applicant and informed him that his pension would be cancelled on the basis that he was not qualified for DSP as he did not have an impairment rating of at least 20 points.

10. The Applicant sought internal review of this decision on 14 October 2015, which was affirmed by an Authorised Review Officer (ARO) on 22 October 2015. The Applicant’s DSP was cancelled from 11 November 2015.

11. On 17 November 2015, the Applicant applied to the AAT1 for review. On 23 March 2016, the Applicant attended a hearing before the AAT1, and on the same day, the ARO’s decision was affirmed.

12. By application dated 7 April 2016, the Applicant applied to this Tribunal for review of the AAT1’s decision.

13. Consideration of whether to cancel a pension requires consideration of whether the person is qualified at the date of cancellation and no other time. It is irrelevant that a person may subsequently (after cancellation) again fulfil the requirements for a grant.

    ISSUE

14. Therefore, the issue in dispute is whether the Applicant satisfied section 94 of the Act as at the date of cancellation, 29 September 2015.

    RELEVANT LEGISLATION

    Qualification criteria for disability support pension

15. The qualification criteria for DSP are set out in section 94 of the Act.

    Section 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

16. As the Applicant’s DSP was cancelled following a review of his qualification for DSP, the Applicant’s qualification must be assessed under the current Impairment Tables.

17. The Impairment Tables describe functional activities, abilities, symptoms and limitations.

18. Impairment is defined at section 3 of the Impairment Tables to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.

19. The Impairment Tables contain ‘Part 2 - Rules for applying the Impairment Tables’ which must be satisfied before an impairment rating can be assigned.

20. Subsection 6(3) of the Impairment Tables provides that an impairment rating can only be assigned for an impairment that arises from a condition that is permanent.

21. Permanent is defined in subsection 6(4) of the Impairment tables to have a specific meaning for the purposes of subsection 6(3).  Subsection 6(4) provides that a condition is permanent if the condition:

    (a)has been fully diagnosed by an appropriately qualified medical practitioner;

    (b)has been fully treated;

    (c)has been fully stabilised; and

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

    CONSIDERATION

    Issue 1 – Do the medical impairments rate at least 20 points under the Impairment Tables?

22. The Secretary accepted that the Applicant had a number of conditions as at the date of cancellation and thereby meets subsection 94(1)(a) of the qualification criteria. However, the Secretary contends that at the date of cancellation, the Applicant achieved an impairment rating of 5 points, and accordingly, he does not meet the criterion under subsection 94(1)(b) of the Act.

23. On the whole of the evidence, the Tribunal agrees with the Secretary’s submissions.

    Condition 1 – back and neck conditions

24. The evidence is that although this impairment is present, its severity warrants 5 or fewer points.

    Condition 2 – knee condition

25. This condition was and is not yet still fully treated and stabilised and as such, cannot be assigned an impairment rating. The condition must be permanent, that is, it must be fully treated. Surgery has been recommended but not undertaken by the Applicant.

    Condition 3 – Q fever and chronic fatigue syndrome

26. The Applicant contracted Q fever in 1982 following his work in the meat industry and this caused the Applicant to experience fatigue and stomach pains. However, there is an absence of medical evidence relating either to Q fever or chronic fatigue relevant to the date of cancellation.

    Other conditions which have limited impact on the Applicant’s ability to function

27. There is limited medical evidence identifying the extent of any treatment or impacts arising from these conditions.

28. There is a lack of clear evidence to support a finding that any of the conditions cause the Applicant any significant functional impairment.

    Mental health condition

29. There is no evidence of a diagnosis of a mental health condition by a clinical psychologist or psychiatrist, nor evidence of treatment for any mental health condition, as at the day of cancellation. Accordingly, the Applicant cannot be assessed for a mental health condition under Table 5.

    Continuing inability to work

30. As the Applicant’s impairments do not attract an impairment rating of at least 20 points under the Impairment Tables, it is not necessary to consider whether he also has a continuing inability to work as required by subsection 94(1)(c).

    CONCLUSION

31. The evidence demonstrates that the Applicant has a total impairment rating of 5 points. Whilst the Applicant suffers from long-standing medical conditions and has been in receipt of DSP for a lengthy period of time, the Tribunal is required to assess the Applicant as at the date of cancellation, 29 September 2015. Impairments that are not fully diagnosed, treated or stabilised cannot be rated under the Impairment Tables.

32. It is; however, open to the Applicant to seek relevant medical treatment for conditions causing impairment, and to test one’s eligibility for DSP at any time.

33. The statement made to the Tribunal by Dr Baker supports such a course by the Applicant.

    DECISION

34. The decision of the AAT1 of 23 March 2016 such that the Applicant did not qualify for DSP at the time of cancellation, 29 September 2015, is affirmed.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 10 October 2018

Date(s) of hearing:	24 September 2018
Applicant:	In person
Solicitors for the Respondent:	‘Ms Solicitor’