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

[2017] AATA 1741

Perkins and Secretary, Department of Social Services (Social services second review) [2017] AATA 1741 (18 October 2017)

Division:GENERAL DIVISION

File Number:           2017/1012

Re:Michelle Perkins

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:18 October 2017

Place:Brisbane

The decision under review is affirmed.

........................................................................

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – right ankle condition - tendinitis – Major Depressive Disorder (chronic) - panic attack – asthma – cervical spine condition – lumbar spine condition – other conditions – 5 impairment points- decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth)

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Senior Member P E Nolan

18 October 2017

INTRODUCTION

1. Michelle Perkins (the “Applicant”) lodged a claim for the disability support pension (the “DSP”) on 16 May 2016. In the portion of the form where she was to list her disabilities, illnesses or injuries she wrote “all documentation is on file at Centrelink.”[1] The application was rejected. She seeks a review of the decision to reject her claim.

   [1] Exhibit 1, T Documents, T14, claim for DSP, p.173.

   HISTORY OF THE MATTER

2. The Applicant applied for DSP on 16 May 2016.[2] The claim was rejected.[3]

   [2] Exhibit 1, T Documents, T14, pages 148-177, Claim for DSP (lodged 16 May 2016), dated 10 May 2016

   [3] Exhibit 1, T Documents, T16, pages 186-187, Rejection of Claim for DSP, dated 3 August 2016.

3. The Applicant sought review of the decision by a Centrelink authorised review officer (“ARO”). The ARO affirmed the rejection on 30 September 2016.

4. The Applicant sought further review of the decision by the Administrative Appeals Tribunal’s Social Secuirty and Child Support Division (the “SSCSD”). On 2 February 2017 the SSCSD affirmed the ARO’s decision.

5. On 2 February 2017 the Applicant applied to this Tribunal.

   ISSUES FOR THE TRIBUNAL

   6.The issues for me to consider are:

   (a)whether, during the relevant period, the Applicant had a physical, intellectual or psychiatric conditions which was fully diagnosed, treated and stabilised;

   (b)whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;

   (c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and

   (d)whether the Applicant has a continuing inability to work.

   7.       Before determining the above, it is convenient to set out the relevant legislative framework.

   LEGISLATIVE FRAMEWORK

   8. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

   9.       The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 16 May 2016). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[4]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 16 May 2016 and 15 August 2016 (“the Relevant Period”). The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[5]

   [4] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999

   [5] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

   10.     The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[6] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[7] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[8]

   [6] See s 26(1) of the Act.

   [7] See s 5(2) of the Determination.

   [8] See s 6(1) of the Determination.

   11.     Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[9] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[10]

   [9] See s 6(3) of the Determination.

   [10] See s 6(4) of the Determination.

   12.     In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:

   (e)whether there is corroborating evidence of the condition;

   (f)what treatment or rehabilitation has occurred in relation to the condition; and

   (g)whether treatment is continuing or is planned in the next two years.[11]

   13.     A condition is “fully stabilised” if:

   (h)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

   (i)the person has not undertaken reasonable treatment for the condition and:

   (j)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

   (k)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[12]

   14.     “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[13] An impairment rating can only be assigned in accordance with the rating points in each Table.

   15. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

   [11] See s 6(5) of the Determination.

   [12] See s 6(6) of the Determination.

   [13] See s 6(7) of the Determination.

   CONSIDERATION

   Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

6. Despite the Applicant not listing her conditions on her application form for DSP, the Respondent accepted the Applicant has impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy section 94(1)(b) or (c) of the Act.[14] I accept the Applicant had impairments for the purpose of section 94(1)(a) of the Act.

   [14] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, dated 12 June 2017.

7. The Respondent contends that the Applicant had not completed a recognised program of support within the Relevant Period and would therefore, to qualify for DPS, need to have a severe impairment, that is an impairment of 20 points or greater, under one Table.

8. I will now consider whether the Applicant’s impairments can attract Impairment Points under the Tables.

   Lower limb conditions

9. The Applicant raises two lower limb conditions, Achilles tendinitis (right ankle condition) and arthritis of the left knee (left knee condition).

10. In a letter dated 4 October 2016, Dr Timothy Smith noted that, in addition to a spinal condition, the Applicant had “arthritis knees and ankles”.[15] In this letter Dr Smith was referring the Applicant to Mr Ben Jones, physiotherapist, for opinion and management of “arthritis knees and ankles”.[16]

    [15] Exhibit 1, T Documents, T40, page 240, Medical Report by Dr Smith, dated 4 October 2016.

    [16] Exhibit 1, T Documents, T40, page 240, Medical Report by Dr Smith, dated 4 October 2016.

11. The Respondent concedes the Applicant’s right ankle condition was fully diagnosed in the Relevant Period. The Applicant was diagnosed with Achilles tendinitis with a date of onset being in 2013.[17] Based on the x-ray and medical certificate from Dr Smith, and the Respondent’s concession, I am satisfied the condition is fully diagnosed. However the Respondent contends that the condition was not fully treated or stabilised in the Relevant Period. [18]

    [17] Exhibit 1, T Documents, T21 page 225, X-ray, dated 19 November 2013 and T31 page 255, Medical certificate by Dr Smith, dated 21 October 2015.

    [18] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions. [29].

12. The Respondent contends that the Applicant’s left knee condition was not fully diagnosed, fully treated or fully stabilised.[19]

    [19] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions. [29].

13. In the medical report of Dr Smith, he does not make reference to the severity of the conditions, nor is there evidence before the Tribunal of specialist referral or intervention.

14. On the basis of the referral made in the letter of Dr Smith dated 4 October 2016 being two months after the Qualification Period, and in the absence of adequately persuasive evidence demonstrating otherwise, I am lead to conclude that the right ankle condition was not fully treated and stabilised, and that the left knee condition was not fully diagnosed, treated and stabilised within the Relevant Period.

15. The Applicant’s lower limb conditions can not attract a rating under the Impairment Tables.

    Mental health conditions

16. The Respondent, helpfully, concedes that the Applicant’s mental health condition was fully diagnosed, treated and stabilised during the Relevant Period.[20] The Applicant has been diagnosed with Major Depressive Disorder (chronic) and Panic Attack.[21]

    [20] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 12 June 2017. [37]-[40].

    [21] Exhibit 1, T Documents, T38, page 272, Medical report by Dr Bird, dated 12 April 2016.

17. Having considered the evidence before me, I agree. I am satisfied with the grounds on which the Respondent bases this concession, being a consideration of the longstanding nature of the condition, the established treatment and established management. I am therefore satisfied that the Applicant’s mental health conditions can attract an Impairment Rating.

18. I am not persuaded that the Applicant’s impairment can meet the descriptors for a 20 point rating under Table 5. The Applicant gave evidence that she has little to no trouble with attending to self-care, and she also is generally able to get along with people.

19. The Applicant has troubles with concentration and task completion. She gave evidence at the hearing that, during the Relevant Period, she was having breathing troubles and chest pains and that she did not understand the cause but later realised that this was the presentation of anxiety. The Applicant said at the hearing that her anxiety is now well managed.

20. When asked whether she was able to travel to unfamiliar surroundings, the Applicant said that “it depends.” She told the Tribunal that she does hold a drivers licence but chooses not to drive far. She can drive short distances to her local shops. She described how her driving was limited mostly due to her back injury (I will address the Applicant’s spinal injury shortly).

21. When asked about her interpersonal relationships, the Applicant said that it “feels like she has had a breakdown”, and that there was a lot going on in her family around that time, she felt “withdrawn”. Although she mostly keeps to herself, she does visit her son every day, she goes to the shops, with a friend who helps her, most days. She tries to do an activity such as going to the shop most days as a “physical and social outlet”.

22. The Applicant, at the hearing, agreed with Dr Smith’s assessment, assigning 20 points to her mental health condition.

23. However, the totality of evidence before me leads me to conclude the Applicant has mild difficulties with self care and independent living. The Applicant’s close friend’s provided evidence in relation to the assistance they provide within the household.

24. I am also led to conclude, as the Respondent contends, that the Applicant has moderate difficulties with social/recreational activities and travel, concentration and task completion and mild difficulties with behaviour, planning and decision making and work/training capacity (based on the descriptors in Table 5).

25. I have concluded that 5 points is the appropriate rating for this impairment.

    Conditions affecting physical exertion and stamina

26. The Respondent concedes that the Applicant’s asthma condition was full diagnosed, treated and stabilised during the Relevant Period, but says that 0 points should be assigned.[22]

    [22] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [46].

27. The Applicant’s asthmatic symptoms exist but are infrequent.[23] Based on the medical evidence before me and the Applicant’s oral evidence, I am led to conclude that the condition warrants 0 points.

    [23] Exhibit 1, T Documents, T40, page 280, Medical report by Dr Smith, dated 4 October 2016.

    Spinal conditions

28. The Respondent contends that the Applicant’s spinal conditions were fully diagnosed, but not fully treated or stabilised during the Relevant Period.[24]

    [24] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [51].

29. An x-ray, by Dr Simon Dupre, radiologist, of the Applicant’s lumbar spine revealed:

    Mild degenerative disc narrowing at L5/S1 and L1/L2 and L2/L3

    Mild convex bowing of the lumbar spine to the right centred at L3

    Mild bilateral facet joint arthropathy at L5/S1 (right > left)[25]

    [25] Exhibit 1, T Documents, T30, page 254, X-ray right ankle and lumbosacral spine, dated 19 October 2015.

30. Further radiography, by Dr Tony Bretherton, confirms the identification of the lumbar spine condition and also evidences a cervical spine condition, in the form of minor degenerative changes.[26]

    [26] Exhibit 1, T Documents, T34, page 268, CT spine, dated 2 February 2016.

31. The Tribunal concludes the Applicant’s lumbar and cervical spinal conditions are fully diagnosed.

32. The Applicant’s treatment thus far has included; pain medication physiotherapy, acupuncture, chiropractic intervention and physiotherapy. The Applicant was referred to an orthopaedic surgeon; however she was unable to attend the appointment due to the cost. I accept that such medical consolations can be costly, and would not expect a recipient of social security payments to be able to always meet the costs. However, there is no evidence before me to suggest that an alternative was sought through the public system.

33. The Applicant was also referred to a physiotherapist, two months after the Relevant Period. The physiotherapist, Mr Pesu, reported that significant improvements could be made to the Applicant’s lower back pain.[27]

    [27] Exhibit 1, T Documents, T47, page 291, Letter from Mr Pesu, dated 20 December 2016.

34. While I recognise that the Applicant suffers back pain, and that the condition is fully diagnosed, the Tribunal must conclude that due to the further investigations recommended, the ongoing active review beyond the Relevant Period, the cervical and lumbar spinal conditions were not fully treated or stabilised within the Relevant Period, and thus no points can be assigned.

    Learning Impairment

35. The Applicant was diagnosed with a learning impairment; this is noted by Dr Philip Bird, consultant psychiatrist.[28] The doctor discusses some of the condition’s history and some of the impact it has on the Applicant, however beyond Dr Bird’s discussion of potential treatment there is little before me to establish what treatment is being undertaken.

    [28] Exhibit 1, T Documents, T38 page 273, Medical report by Dr Bird, dated 12 April 2016

36. On the evidence before me, I conclude that the condition was not fully diagnosed or fully stabilised in the Relevant Period and therefore can not be assigned an impairment rating.

    Gastro-Oesophageal Reflux, Irritable Bowel Syndrome and Chronic Sinitis

37. The Respondent contends that these conditions are not fully treated, diagnosed and stabilised, and should therefore not be assigned an impairment rating.

38. On the evidence before me, these conditions were diagnosed after the Relevant Period.[29] Although I do accept that these conditions are real and not fanciful, there is little to evidence how the conditions are being treated and how they impact the Applicant.

    [29] Exhibit 1, T Documents, T42, page 284, GP Management Plan, dated 4 October 2016.

39. I can not conclude that they were fully diagnosed, treated and stabilised within the Relevant Period, and therefore for the purposes of this review the conditions can not be assigned impairment ratings.

    Conclusion on points

40. The Applicant’s mental health condition attracts an impairment rating of 5 points. No other condition has been assigned a rating above 0 points.

41. This means that the Applicant is deemed to have not had a severe impairment, for the purposes of the Act, within the Relevant Period, nor do the Applicant’s conditions attract 20 points as an accumulation across the Tables.

42. It is possible that since the Relevant Period, the Applicant may be able to better demonstrate the permanency of her conditions and how they impact on her. Developments since that timeframe could assist her if she were to make a fresh application for the DSP.

    Continuing Inability to Work?

43. Given that this Applicant does not reach 20 points or more at the Relevant Period, it is not necessary for me to consider whether he satisfies the remaining criteria for DSP.

44. I note that in any case the Applicant, in the Relevant Period, had participated in a program of support for approximately 393 days.[30] The Tribunal is satisfied that, and as the Respondent contends, this does not meet the participation requirements of DSP.

    [30] See Exhibit 1, T Documents, T20, page 224, Program of Support Summary.

    CONCLUSION

45. The Applicant does not qualify for DSP because his conditions can only be assigned 5 impairment points during the Relevant Period.

46. Accordingly, the decision under review is affirmed.

I certify that the preceding 55 (fifty - five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

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Associate

Dated: 18 October 2017

Date of hearing:	5 July 2017
Applicant:	By phone
Solicitors for the Respondent:	Ms Julia Driver Department of Human Services

(Cth).

[2012] AATA 922 at [34]