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

[2019] AATA 75

Peachy and Secretary, Department of Social Services (Social services second review) [2019] AATA 75 (31 January 2019)

Division:GENERAL DIVISION

File Number(s):      2018/0776

Re:Sharon Peachy

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:31 January 2019

Place:Sydney

The decision of the AAT1 is set aside and, in substitution, the tribunal orders that the applicant be granted a disability support pension with effect from 17 August 2017.

..........................[SGD].................................

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether impairment is fully diagnosed, treated and stabilised – whether applicant’s impairment attracts 20 points or more under the Impairment Tables – functions requiring physical exertion and stamina – chronic fatigue syndrome – mental illness – decision set aside 

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

31 January 2019

BACKGROUND

1. The applicant was born on 30 May 1961.

2. She lodged a claim for a disability support pension (DSP) on 18 May 2017 and after her claim was rejected went through the normal appeal process until she found herself before this tribunal.

3. The matter was heard in Sydney on 8 November 2018, when the applicant and her sister gave evidence; and on 9 November 2018 when her GP Dr Stephen Howe gave evidence.

   THE LAW

4. The period I have to look at is the claim period i.e. the period starting from the date of the applicant’s claim until 13 weeks later. In this case, from 18 May 2017 until 17 August 2017.

5. Subsection 94(1) of the Social Security Act 1991 (Cth) (the Act) as amended sets out the criteria. Namely:

   (a)The person must have a physical, intellectual or psychiatric impairment (there is no dispute there – the applicant has several); and

   (b)The impairment/s must be fully diagnosed, fully treated and fully stabilised as at the date of the claim period and they can be then rated under the Impairment Tables, contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

6. To qualify, the impairment/s must receive, either in total or for any one impairment, 20 points or more under the Impairment Tables. If a person gets 20 points or more under any one impairment table, then that person does not need to have participated in a program of support (POS) for at least 18 months within the three year period immediately prior to applying for a DSP.

7. If a person gets say 10 points under one table, 10 under another and 5 under a third table – i.e. 25 points in total, as he/she has not got 20 points under any one table he/she has to have done a POS.

8. A person also has to have a continuing inability to work. This is defined as being unable after two years to do any work at award wages or above, anywhere in Australia for 15 plus hours per week independently of a POS.

9. The applicant had not commenced a POS during the relevant period (mainly because she had medical certificates saying she was too unwell to attend or do any work) and therefore has not satisfied the requirements of a POS.

10. The tribunal is of the view, having looked at all the evidence both written and oral and having had the opportunity to assess the applicant, that she was not, is not and will not be able to undertake 15 plus hours of work within two years of the claim period, or indeed at any time in the future.

11. The tribunal notes that the Job Capacity Assessment Report of 27 October 2017 (see page 183 T-docs) assessed the applicant as having a future work capacity of eight to 14 hours per week within the next two years with intervention. Her medical reports and her own evidence also tend to support the view that it is highly unlikely she will ever work again, despite her stated desire to work.

12. The respondent, whilst acknowledging the applicant’s ailments and whilst volunteering at the hearing that she would qualify now, maintained that her various conditions were not fully treated or stabilised as at the claim period.

13. For the reasons that follow, the tribunal is of the view that the applicant qualified for 20 points under Table 1 – Functions requiring Physical Exertion and Stamina as at the claim period and therefore, having satisfied the other requirements, qualified for a DSP with effect from 17 August 2017.

    EVIDENCE

    Applicant

14. The applicant is 57 years old. She left school in year 10 but held down some very responsible jobs in the finance area, culminating in working for Qantas for 21 years before accepting a redundancy payment four years ago due to health issues.

15. The applicant’s weight went from about 55 kilos in 2014 to 37 kilos in a year, where it has remained for the last three years. It is not as if she does not eat well, but it appears to be connected to her medical issues.

16. The applicant told the tribunal she suffers and had suffered for a number of years from several conditions, namely haemochromatosis (diagnosed May 2016, per Dr Howe’s report of September 2016, see page 119 T-docs) which included symptoms common to chronic fatigue syndrome; widespread muscular-skeletal pain (diagnosed first in 2010, see page 119 T-docs); and depression (diagnosed by Dr Wheatley, clinical psychologist, September 2016, see page 121 T-docs).

17. The tribunal is not concerned about other ailments that were either managed effectively and had/have little functional impact and/or where there is little medical evidence in relation to them.

18. The applicant gave the tribunal a detailed history of the steps she had taken medically to overcome her ailments since 2014. She had taken various medications, tried herbal remedies, had numerous blood tests and tried physio, all to little avail.

19. She described what she could and could not do as at the claim period and gave evidence that her conditions, if anything, had worsened since then.

20. As at the claim period she had trouble sleeping and would wake up tired. She could drive to the local shops, about four minutes’ drive away, park right outside and get the elevator into the shops. She could push a trolley around leaning on it for support and collect items from the shelf like milk, bread, orange juice etc. She would go to the shops twice a week. (One trip would be to get perishables such as milk, bread, orange juice etc. and the next trip would be to get non-perishables like washing powder and toilet paper.)  

21. She would drive into her garage and walk up the two steps into her house to transfer the groceries piece by piece.

22. She could make herself a basic meal such as a big sandwich and she used a dishwasher to wash up.

23. Her nephew had adjusted items in the home to help her use them better (e.g. placing her clothes line at head height and her clothes drier at shoulder height).

24. She said she had trouble bending down and she used a little stick tweezer contraption to pick up small objects off the ground. She could just bend down to touch her knees with her hands whilst standing up.

25. She has trouble siting for long as she has no meat on her bones.

26. She said she needed help to get on and off trains and needed a person to physically help her on and off.

27. She has had a few falls in recent times and is nervous because of her lack of balance. She had a bad fall in April 2017 where she damaged her head on the freezer and hurt her knees. As she is so thin any fall will rip her skin off.  

28. Apart from needing someone to help her on and off trains (and stay with her in case she falls over), she also cannot get any bags she is taking with her on and off trains and others have to do it for her.

29. If she is traveling down to Shellharbour to see her nephew, he will have to meet her at the station and she needs help to get on the train in Sydney. 

30. She cannot carry anything heavy and her sister had to carry the T-docs to this hearing.

31. Her mother died of pancreatic cancer and two of her siblings have the same blood disease she has.

32. She said she tried volunteer work but couldn’t do it as she was too “doddery” and had trouble concentrating as well.

33. The applicant spoke of her balance issues in cross-examination and reiterated that she did not have cause to tell the AAT1 about her problems with trains. She confirmed she could not use buses as they were harder than trains to get on and off.

34. She also gave evidence of all the programs she had done in an attempt to overcome her medical problems and the fact that she had exhausted her avenues for improvement by June 2017.

    Ms Keany

35. Ms Keany is the older sister of the applicant. She accompanied her to the tribunal.

36. Ms Keany said for the last two years the applicant was unsteady on her feet, needed to lean on someone to walk, had deteriorated mentally and was frail, fragile and lacking in stamina.

37. She has trouble crossing the road and needs a person to help her do so and Ms Keany has to loop her arm with that of the applicant to support her walking. She said her sister lacks stamina.

38. Since the claim period she had got worse and her gait is worse – she slides her feet rather than being able to put one foot in front of the other.

39. She has been “doddery” for two years and it’s getting worse.

40. She said the applicant likes going out with her 93 year old uncle but he is in better shape than she is.

41. She suffers, and has for the past few years, from malnutrition “and we don’t know why”.

42. She finds it too difficult to even sit in the sun now.

43. It is worthy of note that after hearing this evidence the representative of the respondent said that he would give her 20 points under Table 1 now.

    Dr Stephen Howe

44. Whilst he could not appear by phone on the day, Dr Howe kindly made his time available the next day by phone. His evidence I found most convincing in a number of ways.

45. First, it became patently apparent to the tribunal that the applicant had a condition, covered by Table 1, that not only had been fully diagnosed, treated and stabilised as best it could by the time of the claim period; but as a result of several comments by the doctor showed that points could be awarded for it as at the claim period.

46. The tribunal notes the applicant‘s evidence that for whatever reason she did not tell the AAT1 about her problem with trains. That is unfortunate as it may have led to the matter being resolved there and then.

47. Dr Howe has attended to her medical needs for 19 years. He said he knew her when she was able to function and said she was then “a hard working lady”.

48. He confirmed that he knew as at the claim period that she could not “get on and off a train without human help”.  

49. He spoke about the venesection therapy she had and stated point blank that she can’t work – that she couldn’t as at the claim period and can’t now.

50. He confirmed as at the claim period and now that she is unsteady on her feet, always uses a lift and uses a walking stick.

51. He further confirmed, and the tribunal is grateful to him for this clear statement, that her condition could just as easily be described as “chronic fatigue syndrome“.

52. He said she has some stamina but a trip to see him would “do her for the day”.

53. To my mind the doctor clearly established a causal effect between her physical exertion and stamina on the one hand and her inability to use public transport.

54. As indicated earlier, the haemochromatosis condition was diagnosed earlier in June 2016 by Dr Howe. I also note his evidence that it could just as readily be said to be chronic fatigue syndrome and his description thereof in relation to the symptoms and functional impairments amounts to the same.

55. It is clear to me from the evidence that the applicant has had this condition (which I will for simplicity’s sake refer to as CFS), since prior to the claim period; that her attempts to treat it have all been to no avail; and that I agree with Dr Howe’s assessment that her condition was fully treated and stabilised and that has been the case since at least the claim period if not prior to it (see medical certificate from Dr Howe dated 14 July 2017, see page 175 T-docs).

56. Further, although it was felt prudent for her to continue to have venesection therapy (see Dr Ramakrishna’s report dated 7 August 2017 but referring to a consultation on 20 July 2017, see page 176 T-docs) this appears to have been a part of her past, present and future planned treatment (see Dr Howe’s report of 14 July 2017, see page 175 T-docs) and thus would tend to fall under existing continuing treatment to help with the maintenance of  her condition  (at a certain level)  rather than a new treatment that may lead to a significant improvement in the condition.

57. At any rate we know there has been no improvement in the condition since the claim period and if anything it has gotten worse.

58. Further, that whilst the applicant may only get 10 points for mental health and possibly her back condition (although I would tend to agree with the respondent that it is all tied up with her CFS) as at the claim period, because of her problem with public transport she would get 20 points under Table 1.

59. She satisfies Table 1 in my view because as at the claim period, she usually experienced symptoms such as shortness of breath and fatigue when performing light physical activities and due to that she was unable to:

    (iii)    use public transport without assistance;

    and

    (b)has or is likely to have difficulty sustaining work related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

60. The tribunal has seen her sit for a maximum of 40 minutes and there was evidence that this was so as at the claim period and indeed before (see report of Dr Howe dated 15 June 2016, page 116 T-docs).

61. The tribunal had further evidence before it that she had tried to do volunteer work along the line of (b) above in paragraph 59, but has failed to be able to do the work due to her lack of stamina and “dodderiness”.

62. Moreover the tribunal finds the applicant to be a truthful and honest witness who, it is satisfied, contributed significantly for many years to the Australian workforce during her time at  Qantas and would desperately love to work again but can’t.

63. Her debilitating illness is a tragedy to both her and her community, as she has talent that sadly can’t be used. The tribunal can’t see her doing any job that would satisfy the criteria of section 94 of the Act.  

64. As the tribunal is awarding her 20 points for Table 1 and as a result of my other findings above, it follows that the decision under review will be set aside and that the applicant be granted a DSP from 17 August 2017.

65. The reason for this is that there was significant evidence before the tribunal that her main condition may not be said to be fully treated and fully stabilised until mid-July 2017 (i.e. during the claim period) and this tribunal’s view that having her DSP run from the later date is of some benefit to the hard pressed Australian taxpayer .

    DECISION

66. The decision of the AAT1 is set aside and, in substitution, the tribunal orders that the applicant be granted a DSP with effect from 17 August 2017.

I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

.........................[SGD]........................................

Associate

Dated: 31 January 2019

Date(s) of hearing:	8 and 9 February 2019
Applicant:	In person
Solicitors for the Joined Party:	Sparke Helmore