Pickering and Secretary, Department of Social Services (Social services second review)
[2018] AATA 4223
•13 November 2018
Pickering and Secretary, Department of Social Services (Social services second review) [2018] AATA 4223 (13 November 2018)
Division:GENERAL DIVISION
File Number: 2018/2467
Re:Sharon Pickering
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member C Edwardes
Date:13 November 2018
Place:Perth
The decision of AAT1 is affirmed.
.........................[sgd]...............................................
Member C Edwardes
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification period – psychiatric condition – chronic back condition – fully diagnosed, treated and stabilised – New Zealand agreement – severely disabled – continuing inability to work rating – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(1)(b), s 94(1)(c)(i), s 94(2), s 94(3B),
s 94(3C)Social Security (Administration) Act 1999 (Cth) – s 179, Sch 2 Cl 4 (1)
Social Security (International Agreements) Act 1999 (Cth) – Sch 3 – Art 1(1)(m), Art 1(2), Art 2(2)CASES
Al-Janabi and Secretary, Department of Social Services [2017] AATA 1541
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634)
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75
Tamua and Secretary Department of Social Services [2016] AATA 757
Ulukut and Secretary, Department of Social Services [2014] AATA 399SECONDARY MATERIALS
Department of Social Security, Guide to Social Policy Law: Social Security Guide (Department of Social Security, Version 1.250, 5 November 2018)
Social Security (Active Participation for Disability Support Pension) Determination 2014 – s 5, s 7(1), s 7(2)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, s 6(1), s 6(2), s 6(3), s 6(4), s 6(5), s 6(6),
s 6(7), s 7, s 8, s 8(1), s 10, s 11, s 11(1)(c) Table 4, Table 5.REASONS FOR DECISION
Member C Edwardes
13 November 2018
THE APPLICATION
This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 26 April 2018, in which the AAT1 affirmed a decision to reject the Applicant’s claim for a Disability Support Pension (DSP).
INTRODUCTION
The Applicant is a New Zealand national who arrived in Australia on 5 November 2015 on a special category visa (T91, 465).
On 24 March 2017, the Applicant lodged a claim for a DSP involving the following medical conditions: Spinal Disorder, Mental Health, Hearing Loss, Carpel Tunnel Syndrome, Asthma, Shoulder and Upper Arm disorder (T72, 359-389).
The claim was rejected by an officer of the Department of Human Services (Centrelink), and the Applicant was advised of this rejection by a letter dated 4 August 2017 (T78, 411-413). Under the heading “[t]he reason for this decision” in the letter advising the Applicant of the rejection dated 4 August 2018, the Centrelink officer stated that (T78, 411):
To be paid Disability Support Pension under the Agreement, you must:
·have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment tables in social security law
·have actively participated in a Program of Support
·be considered to be severely disabled
·have been living in Australia or New Zealand when you became severely disabled, and
·have lived in New Zealand for at least one year before you were assessed as severely disabled.
The Applicant requested a review of the decision by the Centrelink officer (T80, 416). The review was undertaken by an Authorised Review Officer (ARO) and the Applicant received notification of this decision on 20 November 2017 (T81, 417-424).
On 12 May 2017, the ARO made the following findings (T81, 419):
·You are a citizen of New Zealand.
·You claimed Disability Support Pension on 24 March 2017 under the International Agreement with New Zealand.
·Your conditions of a spinal disorder, a partial hearing loss, a mental health condition, a shoulder disorder, carpel tunnel syndrome and asthma are not accepted as being permanent as they have not been fully treated and stabilised.
·You do not have an impairment rating of 20 points or more.
·You do not have a severe impairment.
·You do not have a continuing inability to work 8-14 hours per week or more because of your impairment.
As a result of the decision of the ARO, the Applicant lodged an application with the AAT1 on 30 May 2017 (T84, 427-435).
In a decision dated 26 April 2018, the AAT1 determined (T2, 16):
47.At the time of her claim for DSP, Ms Pickering’s medical conditions generated no points under the Impairment Tables. This is less than the required 20 points and means she does not satisfy paragraph 94(1)(b) of the Act.
48.On the basis that her main impairments of chronic pain and mental health issues were considered not fully treated or stabilised at the time of her claim, and the fact that she took on part-time work after the claim, the tribunal is satisfied that she did not satisfy the criteria for a ‘severe’ impairment contained in the NZ agreement.
On 8 May 2018 (T1, 1-2), the Applicant applied to the General Division of the Administrative Appeals Tribunal (Tribunal) for a review of the AAT1 decision dated 26 April 2018 (T1, 1-6).
In the Applicant’s application for second review of decision, the Applicant stated (T1, 5):
I believe that I meet the eligibility criteria for the Disability Support Pension. I have numerous health conditions which prevent me from working.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Social Security Act1991 (the Act), the Administration Act and the Social Security (International Agreements) Act 1999 (the New Zealand Agreement).
The Tribunal has jurisdiction to hear this matter pursuant to section 179 Administration Act.
Section 94 of the Act provides the criteria for DSP, relevantly:
(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) …
Assessing impairments and assigning an impairment rating
The Impairment Tables referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables.”
Section 94(1)(b) of the Act obliges the Tribunal to determine whether the impairments of the Applicant are worth 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
5 … The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
6 The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Sections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Sections 6(5), 6(6) and 6(7) fall under the heading “Applying the Tables.” Section 8(1) of the Determination (under the heading “Information that must not be taken into account in applying the Tables”) stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using Impairment Tables and how to assign impairment ratings. In particular, s 11(1)(c) of the Determination states that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied;…”
Continuing inability to work
As set out above in s 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to s 94(2) of the Act:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – 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. (Emphasis added.)
“Severe impairment” is defined in s 94(3B) of the Act:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. (Original emphasis.)
Section 94(3C) of the Act states that “a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister…”
Relevantly, sections 5(11), 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally that a person is to participate in a program of support (POS) for 18 months in the 36 months prior to the date of the relevant claim for DSP.
Article 2(2) of Sch 3 of the New Zealand Agreement states that:
2.For the purposes of this Agreement an Australian disability support pension and a New Zealand supported living payment shall be limited to cases where:
(a)the person is severely disabled;
(b)the person was a resident of one of the Parties at the date they became severely disabled; and
(c)the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.
Article 1(1)(m) of Sch 3 of the New Zealand Agreement states:
Severely disabled means a person who:
I.has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
II.to work for at least the next 2 years; and
III.unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
IV.is permanently blind;…
Article 1(2) of Sch 3 of the New Zealand Agreement states that “[i]n the application by a Party of this Agreement in relation to a person, any term not defined in this Article shall, unless the context otherwise requires, have the meaning assigned to it in the social security law of either Party”.
Article 5(1) of Sch 3 of the New Zealand Agreement states:
‘Australian resident’ has the meaning given to that term in the social security law of Australia, but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia on a special category visa.
Qualification Period
Section 94 of the Act must be read in conjunction with Sch 2, Cl 4(1) of the Administration Act. In accordance with the requirements in Sch 2, Cl 4(1) of the Administration Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was lodged with Centrelink, and concluding 13 weeks after that day. In the present case, the 13 week period is from the 24 March 2017 to 23 June 2017 inclusive, and is known as the “Qualification Period”.
For a claim to be successful, a person must be qualified for DSP during the Qualification Period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1].
The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
ISSUES
The key issue for the Tribunal to determine is whether the Applicant was qualified for DSP during the Qualification Period for the purposes of s 94(1) of the Act.
This requires consideration of whether at the time of the Qualification Period:
(a)the Applicant had a physical, intellectual or psychiatric impairment;
(b)if so, whether the impairment(s) attracted a rating of at least 20 points under the Impairment Tables;
(c)whether the Applicant meets the criteria for “severely disabled” pursuant to Sch 3 of the New Zealand Agreement; and
(d)whether the Applicant had a “continuing inability to work”.
EVIDENCE
The application for review was heard in Perth on 19 October 2018. The Applicant appeared in person and was assisted by an advocate, Ms Hall. The Respondent was represented by Mr Burgess of Sparke Helmore.
The Tribunal would like to thank all parties for the assistance they provided during this hearing.
The Tribunal has the following evidence before it:
·Exhibit A1 – a letter from Dr Davies dated 7 August 2018.
·Exhibit R1 – the T documents (T1- T92 pp1-485).
·Exhibit R2 – the Respondent’s Statement of Facts, Issues and Contentions dated 7 September 2018, including Attachments A and B.
·Exhibit R3 – Annexure A of the Respondent’s Statement of Facts, Issues and Contentions – the Job Capacity Assessment Report (JCA) dated 6 July 2018.
The Tribunal also had before it an email dated 11 July 2018 which states that:
The Secretary’s position aligns with the assessor’s recommendations [the JCA dated 6 July 2018]. In particular:
•The chronic spinal condition is fully diagnosed, treated and stabilised and causes a moderate impairment under Table 4.
•The mental health condition is fully diagnosed, treated and stabilised and causes a moderate impairment under Table 5.
•Ms Pickering’s capacity for ‘any work’, within two years, with appropriate intervention and support, is greater than 15 hours per week.
•Ms Pickering’s active participation in a program of support in the three years before lodging her claim was for a period less than 18 months.
This means that the Secretary now agrees that Ms Pickering satisfies the requirement in s 94(1)(b) of the Social Security Act 1991 to have an impairment of 20 points or more under the impairment tables.
However, the Secretary does not agree that Ms Pickering has a continuing inability to work per s 94(1)(c) of the Act. Further, the Secretary does not agree that Ms Pickering satisfies the superadded requirement in paragraph 2 of article 2 of the social security agreement with New Zealand to be ‘severely disabled’ (as defined in article 1).
This means that the Secretary’s view that Ms Pickering did not qualify for disability support pension and her claim was correctly rejected is unchanged.
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Respondent made the following contentions in respect to the jurisdictional matters of this application (R2, 6-11):
34.The respondent accepts that the applicant was a New Zealand citizen lawfully residing in Australia during the qualification period. The respondent notes the evidence indicates that (at the time of his claim) the applicant had an aggregate of more than 10 years residence in Australia and/or New Zealand.
35.In terms of the relationship between the Act and the New Zealand Agreement, section 6 of the International Agreements Act 1999 (of which the New Zealand Agreement is a part) provides that the provisions of a scheduled international social security agreement have effect despite anything in the social security law, only insofar as the provision is in force and affects the operation of social security law.
36.There are two issues regarding application of the New Zealand Agreement which are relevant to the present matter, each of which are addressed below.
Whether a person must satisfy Article 2(2) of the New Zealand Agreement and paragraphs 94(1)(a) (b) and (c) of the Act to qualify for DSP – or only satisfy Article 2(2)
37.The respondent contends that a person must satisfy Article 2(2) of the New Zealand Agreement and paragraphs 94(1)(a), (b) and (c) of the Act to qualify for DSP.
38.As Article 2(2) of the New Zealand Agreement does not affect paragraphs 94(1)(a) (b) and (c) of the Act, the requirement for a person to have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables and a continuing inability to work, continues to apply and must be satisfied to qualify for DSP under the New Zealand Agreement.
39.However, contrary to the above, the respondent notes the decision of Deputy President Alpins in Tamua and Secretary, Department of Social Services [2016] AATA 757 (‘Tamua’). Deputy President Alpins found that Article 2(2) of the New Zealand Agreement overrides paragraphs 94(1)(a) (b) and (c) of the Act, such that a person need only demonstrate that they were severely disabled (totally unable to work for the next two years solely due to their impairment) in order to qualify for DSP. At paragraph 26:
… Having regard to the Full Court’s reasoning in Mahrous, and reading the provision of Article 2(2) and the other terms of the Agreement with s6 of the International Agreements Act and s94 of the Act according to the principles of interpretation applicable to international agreements to which the Full Court referred, I accept Mrs Tamua’s submission that she will be entitled to a disability support pension if she satisfied the terms of Article 1(2)(a) (the other provisions of that Article not being dispute (sic)) and that, by operation of s6 of the International Agreements Act, it is unnecessary for her to establish, in addition, that she satisfied s94(1)(a), (b) and (c) of the Act.
40.The respondent respectfully submits that the approach taken in Tamua is incorrect for the following reasons:
a)Contrary to the conclusion reached in Tamua, it is not apparent from the reasoning in the Full Federal Court decision of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (2013) FCAFC 75 (‘Mahrous’) that Article 2(2) of the New Zealand Agreement provides an independent basis for a person to qualify for DSP by overriding paragraphs 94(1)(a)(b) and (c) of the Act;
b)In Mahrous, the Court found that Article 12(4) of the New Zealand Agreement overrode the ordinary residency requirement in paragraph 94(1)(e)(ii) of the Act, such that a person who had accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand could qualify for DSP under the New Zealand Agreement, subject to satisfying Article 2(2) and any other relevant provision of the social security law that had not been overridden by the New Zealand Agreement (see particularly paragraphs 51, 60 and 61 of Mahrous):
60 …The effect of Article 12(4) is that where a person has ‘accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand’ that person can seek a disability support pension as of right, providing he or she satisfies Article 2(2) (and any other relevant provision of the social security law that has not been overridden by the Agreement).
c)Article 2(2), rather than Article 12(4) of the New Zealand Agreement, is the relevant provision that limits qualification for DSP. Article 2(2) is a ‘provision of limitation’ as opposed to a provision that offers an ‘alternative qualification’ criterion. The respondent submits that this presents a significant contrast.
d)The respondent notes in Mahrous the Court acknowledged that Article 2(2) of the New Zealand Agreement operated to limit the circumstances in which a person could qualify for DSP:
61. Article 2(2), not Article 12(4), is the provision of the Agreement that limits, in express terms, the availability of a disability support pension under the Agreement…
e)If the approach set out in Tamua were followed, New Zealand citizens would be treated more favourably under the New Zealand Agreement than Australian citizens who apply for DSP under the Act. Specifically, a person would only need to address the question of work capacity and would not be required to demonstrate that their impairments were fully diagnosed, fully treated, or fully stabilised, that they had an impairment rating of at least 20 points under the Impairment Tables or that they had satisfied the program of support requirement. The respondent submits that this approach is unfair and at odds with the objective behind the payment of DSP.
41.Although the Tribunal in Tamua noted that Mahrous draws a distinction between the operation of Article 12(4) and Article 2(2), the Tribunal did not identify the nature of that distinction. In fact, the Tribunal concluded that Article 2(2) operates in essentially the same way as Article 12(4) by providing an independent basis on which a person may qualify for DSP instead of having to meet the relevant requirements of section 94 of the Act.
42.Contrary to the conclusions of the Tribunal in Tamua, the respondent submits that it is not apparent from Mahrous that the Court considered that Article 2(2) provides a basis upon which a person might qualify for DSP, rather than simply operating as a threshold limitation on a person’s ability to rely on the provisions of the New Zealand Agreement to qualify for DSP. The respondent contends that Mahrous suggests the opposite.
43.As indicated above, Mahrous established that Article 2(2) of (sic) operates as a limitation on the circumstances in which a person can claim DSP under the New Zealand Agreement. In rejecting the argument that Article 12(4) operated as a threshold limitation on the ability of a person claiming DSP to rely on the provisions of the New Zealand Agreement, the Court observed:
60… The effect of article 2(1)(a)(ii) is that a person (who falls within article 3) may, under the Agreement, claim a disability pension for which the Social Security Act makes provision. The effect of article 12(4) is that where a person has ‘accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand’ that person can seek a disability support pension as of right, providing he or she satisfies article 2(2) (and any other relevant provision of the social security law that has not been overridden by the Agreement).
61Article 2(2), not article 12(4), is the provision of the Agreement that limits, in express terms, the availability of a disability support pension under the Agreement. …
44.The Court’s comments were made in response to the respondent’s argument that Article 12(4) (at pargraph 44) ‘operated to limit the people who could make a claim for [DSP] under the Agreement; and… had no other operation’. In this context, the Court’s statement that Article 2(2) rather than Article 12(4) is the relevant provision that limits the availability of the DSP under the New Zealand Agreement suggesting that Article 2(2) performs a limitary function and does not operate as an alternate basis to qualify for DSP. Further, the Court’s reference (at paragraph 60) to other ‘relevant provision[s] of the social security law… not… overridden by the Agreement’ explicitly acknowledges that other relevant provisions of the Act will still continue to operate.
45.This conclusion is supported by the fact that Mahrous appears to proceed on the basis that both the residence requirements in Article 2(2)(b)-(c) as well as Article 12(4) or subparagraph 94(1)(e)(ii) of the Act had to be met for the applicant in that matter to qualify for DSP under the New Zealand agreement.
46.The Court in Mahrous clearly indicated that there is a distinction between the operation of Article 2(2) and Article 12(4). If the Tribunal’s approach in Tamua in relation to the operation of Article 2(2) is accepted, it is difficult to discern the nature of the distinction identified by the Court.
47.The decision of Tamua proceeds on the basis that the Court’s reasoning in Mahrous cannot be confined to Article 12(4) of the New Zealand Agreement, and that the Court’s reasoning in respect of Article 12(4) is ‘equally apposite’ to Article 2(2) (at paragraphs 21 and 31). This conclusion appears to stem from an understanding that a person may qualify for DSP under the New Zealand Agreement or the Act (at paragraph 19).
48.While a person may rely on the New Zealand Agreement to qualify for DSP where they otherwise would not qualify for DSP under the Act, the respondent maintains that the New Zealand Agreement cannot be interpreted to provide a complete and alternative set of eligibility criteria for DSP.
49.The respondent submits that the Court in Mahrous explicitly acknowledges that a person may have to meet criteria under both the New Zealand Agreement and the Act to qualify for DSP ([60]). The respondent therefore submits that Mahrous is not authority for a general proposition that, so long as a person meets all the relevant requirements of the New Zealand Agreement, they do not need to comply with any of the requirements of the Act. The respondent reiterates that such a proposition would result in unequal and unfair treatment of Australian residents who are required to meet the requirements of subsections 94(1)(a)(b) and (c) of the Act.
50.The respondent maintains that Mahrous was principally concerned with the interaction of Article 12(4) of the New Zealand Agreement and the residence requirement in subparagraph 94(1)(e) of the Act. The respondent respectfully submits that the Court’s reasoning in relation to Article 12(4) is not ‘equally apposite’ (sic) to Article 2(2).
51.If the Tribunal finds that the applicant meets the extended meaning of Australian Resident under Article 5 of the New Zealand Agreement, the respondent contends the applicant must still satisfy:
a)Section 94 of the Act, save for the residency requirement in paragraph 94(1)(e) of the Act, as it is accepted that the applicant satisfies Article 12(4) of the Agreement; and
b)Article 2(2) of the New Zealand Agreement.
52.Therefore, the respondent respectfully submits the correct and preferable approach is that, on its proper construction, Article 2(2) of the New Zealand Agreement does not override paragraphs 94(1)(a), (b) and (c) of the Act and that, in order to qualify for DSP under the New Zealand Agreement, the applicant must still satisfy both Article 2(2) of the New Zealand Agreement and paragraphs 94(1)(a), (b) and (c) of the Act.
53.In addition to the submissions made above, recent decisions of the Tribunal have accepted that the correct and preferable approach is that a person must satisfy both Article 2(2) of the New Zealand Agreement and paragraphs 94(1)(a), (b) and (c) of the Act.
54.In the decision of Al-Janabi and Secretary, Department of Social Services [2017] AATA 1541 (‘Al-Janabi’) Deputy President Walsh found as follows:
27. Having considered the New Zealand Agreement as a whole, the Tribunal is not persuaded that article 2(2) provides an alternative means of qualification for disability support pension. It seems unlikely this was ever intended. Indeed, the alternative view would lead to a situation where an Australian citizen, born in Australia and who had lived most of their life here, could rely on the New Zealand Agreement to qualify for disability support pension, if they happened to have lived in New Zealand for 12 months or more as a child, for example. It is difficult to discern why such an individual, who would not need to rely on the New Zealand Agreement to meet the necessary residency tests, should be relieved of requirements to have an impairment rating of at least 20 points under the Impairment Tables and a continuing inability to work (including meeting the program of support requirements if they did not achieve an impairment rating of 20 points under a single Table). And, as the Secretary submits, it is difficult to see why it would be intended that a person who relies on the New Zealand Agreement would not have to meet the requirements for any condition/s to be fully diagnosed, fully treated and fully stabilised before impairment might be assessed, these requirements applying to claimants relying on the Act alone. These ordinary requirements derive from the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination); the relevant determination not being part of the social security law, it is therefore not picked up in the New Zealand Agreement.
…
29.The Tribunal considers article 2(2) to be a provision of limitation. Whilst it is arguable that its scope ‘covers’ the same territory as paragraph 94(1)(c) of the Act dealing with inability to work, it seems to the Tribunal that it adopts a narrower test generally. This is because it imports a test of total inability to work for the next two years, whereas the Act is concerned with a work test of 15 hours per week. Article 2(2) therefore involves a subset of the field of coverage of paragraph 94(1)(c). On that basis, it can be appropriately construed as a true limitation provision, having effect in addition to the ordinary requirements that a claimant meet paragraphs 94(1)(a), (b) and (c) of the Act.
55.The respondent also notes the decision of Secretary, Department of Social Services and Stretch [2017] AATA 1429. Deputy President McDermott found (at paragraphs 9- 11):
I respectfully do not adopt the reasoning in Tamua and Secretary, Department of Social Services [2016] AATA 757.
The Agreement does not displace the general operation of the social security law of Australia. Indeed, Article 2(1) of the Agreement confirms that the Agreement shall apply to the ‘social security law’ of Australia in relation to the benefit of DSP (Article 2(1)(a)(ii)). The only modification to the application of the social security law of Australia is found in paragraph 2 of Article 2(2) of the Agreement. Article 2 of the Agreement is not a self-contained legislative regime relating to the entitlement of the respondent for DSP. That Article does not, for example, determine how an applicant would claim DSP or what the rate of payment of DSP is, such matters are governed by the application of the ‘social security law’ of Australia. That is why I have previously decided that the ‘start date’ of the payment of DSP to a New Zealand resident who is qualified to receive that benefit can only be determined by the application of sections 41 and 42 and Part 2 clause 3 of Schedule 2 of the Administration Act
56.However, in contrast to Deputy President Walsh and Deputy President McDermott, Member Grigg of the Brisbane Tribunal has continued to adopt the approach taken in Tamua in decisions such as Hamdullah and Secretary of the Department of Social Services [2017] AATA 2032; Mitchell and Secretary of the Department of Social Services [2017] AATA 2562 and Cowan and Secretary, Department of Social Services [2018] AATA 1328.
57.Irrespective of the approach which the Tribunal ultimately decides to take in the present application, the respondent submits that the applicant fails to qualify for DSP in either case.
On the basis of the arguments before it, the Tribunal does not accept that Art 2(2) is to be treated as a separate pathway to access disability support for a New Zealand resident. Rather, the Tribunal finds that to qualify for disability support under the New Zealand Agreement, the Applicant would need to meet the criteria of Art 2(2) and sections 94(1)(a), (b) and (c) of the Act.
The Tribunal agrees with the submission of the Respondent that it would be inconceivable that New Zealand citizens would be assessed more favourably than Australian citizens.
The Respondent submitted the following relating to the term “severely disabled – totally unable to work” (R2, 12-14):
58.The meaning of ‘totally unable to work’ in Article 1(1)(l) is not expressly defined in the New Zealand Agreement or the Act. As such, there are three different approaches which have emerged, having regard to:
a.the Act (an inability to perform 15 hours of work per week);
b.The Guide (an inability to perform 8 hours of work per week); and
c.the New Zealand Agreement / Tamua (an inability to perform any work at all).
59.The respondent submits that it is open to the Tribunal to find that the phrase ‘totally unable to work’ in Article 1(1)(l) of the New Zealand Agreement requires that a person must be completely unable to perform any work at all in order to be considered ‘severely disabled’ for the following reasons:
a)Article 1(2) of the New Zealand Agreement provides that any term not defined in the Article shall, unless the context otherwise requires, have the meaning assigned to it in the social security law of either Party. At first instance, as the phrase, ‘totally unable to work’, and the term, ‘work’, are not defined in the New Zealand Agreement, one may conclude that the definition of ‘work’ in sub-section 94(5) of the Act applies to mean work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia. However, if the definition of ‘work’ in subsection 94(5) of the Act were applied, it would remove the object or plain meaning from ‘severely disabled’ and the phrase ‘totally unable to work’ in that the work capacity test for a severely disabled person would be no different to that which applies for Australian residents claiming DSP. The respondent submits that the context otherwise requires that a different meaning be assigned to the term ‘work’ in these circumstances, as anticipated by Article 1(2) of the New Zealand Agreement.
b)The definition of ‘severely disabled’ in Article 1(1)(l) of the New Zealand Agreement mirrors the definition of ‘severely disabled’ in subsection 23(4B) of the Act; which applied only to assess whether a person qualified for the (now defunct) ‘special needs disability support pension’ in section 773 of the Act.
c)A ‘special needs disability support pension’ was available as a separate and distinct type of disability support pension until 20 September 2000 for those who had not resided in Australia at any time after 7 May 1973, were first severely disabled when in Australia or temporarily absent and were considered by the Department to be in special need of financial assistance.
d)To afford further guidance in its application, the Guide at Instruction 1.1.S.110 provided that a person was ‘severely disabled’ if their impairment prevented them from doing any work for 8 hours or more for the next 2 years and prevented the person from benefitting from training, education or rehabilitation to the extent of being unable to work at least 8 hours a week.
e)To qualify for a ‘special needs disability support pension’ a person therefore needed to satisfy a stricter inability to work test than that which applied to ordinary disability support pensions – much like the present case with the New Zealand Agreement. Although the legislation did not expressly state it, the Department applied a more generous 8 hour inability to work test for ‘special needs disability support pension’ applicants as per The Guide.
f)There is a clear intention to distinguish between the work capacity requirements for the ‘severely disabled’ and Australian residents applying for DSP, such that the test to be considered ‘severely disabled’ is more demanding. This supports the approach that an Australian DSP under the New Zealand Agreement is limited to only those who are ‘severely disabled’ and have no or zero capacity to work.
60.The Administrative Appeals Tribunal in Mohamed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 470 observed at paragraph 23:
The definition of severely disabled in Article 1, para 2 is qualified in that the person must be ‘totally’ unable to work. There is no guidance given in either the Act or the International Agreement as to what number of hours of work, if any, qualifies as ‘totally’ unable. The Macquarie Dictionary (4th edn.) defines ‘totally’ to mean ‘wholly; entirely; completely’. It is therefore reasonable to suggest that ‘totally’ unable to work would mean the applicant could not work at all;
61.Although it has been respectfully submitted that the Tribunal may have erred regarding the relationship between Article 2(2) of the New Zealand Agreement and the Act in Tamua, it is open that the Tribunal correctly concluded at paragraphs 36 and 73 that the phrase ‘totally unable to work’ should be given its ordinary meaning and effect such that it requires a person to be unable to work for any hours at all.
62.It is therefore open for this Tribunal to concur with the approach in Tamua that the definition of ‘severely disabled’ in the Guide is inconsistent with the definition of ‘severely disabled’ insofar as it may be applicable to Article 1(1)(l) of the New Zealand Agreement upon its plain meaning and proper construction.
63.The respondent further observes that McInnis FM in Materek v Secretary to the Department of Family and Community Services [2003] FMCA 14 noted the Tribunal’s attempt to combine both the definition of ‘severely disabled’ and the policy that imposes an inability to work 8 hours or more per week in order to give effect to a workable definition of ‘severely disabled’ in a beneficial jurisdiction. Notwithstanding, McInnins FM correctly observed:
17. It is clear from the reading of that section that the legislation does not in fact define what is meant by ‘severely disabled’ in the manner described by the tribunal; that is, the legislation does not define ‘severely disabled’ as being ‘unable to work for the next two years up to eight hours per week’. (emphasis added)… Ironically, if one were to strictly interpret the legislative provision to which I have referred, then the suggestion of an inability to work for up to 8 hours per week would not be relevant given that the section specifically refers to a person being severely disabled if that person (sic) totally unable to work…
64.Irrespective of the meaning which the Tribunal ultimately decides to apply to ‘totally unable to work’ in the present application (e.g. zero hours, inability to perform 8 hours or 15 hours), the Respondent submits the Applicant is unable to satisfy any test.
Having considered the above arguments, the Tribunal determines that the term “totally unable to work” should be interpreted literally. The Tribunal takes the view that this term applies to a person who is unable to work for any hours at all.
The Tribunal notes the findings of AAT1 in respect to each of the medical conditions (T2, 15-16):
Chronic back pain
35.The tribunal noted that Ms Pickering’s DSP claim was lodged in March 2017, at which time she was attending the pain clinic at RPH where new treatments were being tried as described in the above extracts.
36.The tribunal determined that, at the time of the DSP claim, the problem of widespread pain could not be considered fully treated or fully stabilised. It does not warrant impairment points.
37.The tribunal was aware of strongly worded letters from Professor Schug, dated 5 December 2017 and 3 April 2018, in which he stated that he thought Ms Pickering was unable to work and should be granted DSP. The tribunal noted a letter from Dr Andrew Davies, dated 25 April 2018, expressing a similar opinion.
38.The tribunal noted that these letters were written a considerable time after the DSP was lodged. They may have relevance to a future DSP claim.
Psychiatric condition
46.The tribunal determined that, at the time of the claim, the problems of depression and PTSD were diagnosed by an appropriately trained health professional. However the conditions were not fully treated and not fully stabilised, and therefore generate no impairment points.
Evidence at the hearing
The Respondent claimed that the Applicant had not completed a POS and therefore needed 20 impairment points from a single table to qualify for DSP.
The Respondent relied on its Statement of Facts, Issues and Contentions, and contended that the Qualification Period relevant to this matter was 24 March 2017 to 24 June 2017.
Ms Hall opened by outlining the Applicant’s case. She conceded that at the time the DSP claim was submitted, not all of the medical evidence had been made available to Centrelink.
The Applicant had been under the care of Dr Davies since 2016 and has been treated by Dr Armstrong (Psychiatrist) and Ms Pearson (Occupational Therapist).
The Applicant has submitted a new DSP application, with the same treating professionals as in the current claim providing the medical evidence.
Ms Pickering attempted to give evidence but was unable to do so. She could not remember what she wanted to say.
The Tribunal observed the Applicant closely from the commencement of the hearing. It observed that the Applicant:
·was clearly unwell;
·could not concentrate;
·could not make eye contact;
·was unable to sit still;
·had her dog in the Tribunal for emotional support; and
·held her head in her hands during the hearing.
In the Tribunal’s view, the Applicant’s condition reflected the commentary of Dr Davies (A1). However, it is not clear if this is as a result of deterioration of the condition or if it is the condition of the Applicant at the time of the DSP claim in March 2017.
CONSIDERATION
The Tribunal finds that the Qualification Period for this matter is for the period beginning 24 March 2017 and ending 23 June 2017.
The Tribunal will now consider all the evidence before it, both written and oral from the Applicant and Respondent.
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
It is not in dispute that the Applicant suffers from a spinal condition and a psychiatric condition.
There are numerous medical reports and other reports which attest to the fact that the Applicant suffers from these conditions.
The Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination
Spinal condition
The Applicant told the AAT1 that (T2, 12-14):
•Back, neck and shoulder problems arose following a motor vehicle accident (MVA) in 2009. She was a passenger in a taxi on her way to the airport to catch a flight to New Zealand to attend a family function. The taxi hit a lamppost and she noticed neck pain immediately.
•A replacement taxi was found and she continued her journey to the airport and flew to New Zealand as planned. In New Zealand she sought medical attention and got some pain killing medication.
•On returning to Australia she returned to work and saw her regular GP, Dr Oehlers, who diagnosed ‘whiplash’ neck and a low back strain. She had X-rays and scans. Treatment was with painkillers, hydrotherapy and physiotherapy. In addition she had injections into her shoulders. She sought legal advice about making a claim through the motor vehicle insurance system.
•Her symptoms persisted and Dr Oehlers referred her to a pain specialist, Dr Hamzah. He did further tests and she had several injections into her back. At this time she was still working, despite having a lot of pain.
•In 2010 she had another MVA. She was the driver and was hit from the rear whilst stationary. This stirred up her previous symptoms.
•As a result of the legal situation she was required to see doctors at the request of her lawyers and at the request of the insurance company. These included Dr Slinger and Dr Rosenthal.
•Ongoing treatment for her pain was medication from the GP with physiotherapy, swimming and exercises at various times. She tried a variety of things including acupuncture, and chiropractic.
•She stopped work for a while but then in 2012 got another job as a caretaker at Foundation Housing. After working there for some time she injured herself in a fall and exacerbated her pre-existing injuries. She lodged a claim for workers’ compensation (WC) following this injury. The WC insurers sent her to see a specialist, Dr Meyerkort, about her symptoms. He said they were all due to the previous MVAs.
•Since ceasing work with Foundation Housing she worked as a foster carer for a while but had problems when the children attacked her. In 2017 she worked for a short time for the Multiple Sclerosis society.
•Dr Oehlers went into part retirement and she started seeing another GP, Dr Francis Mwaura, at Ballajura Family Practice. Because of disputes with the insurers for workers’ compensation claim and the MVA claim, her income ceased and she could no longer afford private care. She now relies on Street Doctor and Homeless Health Care for GP services. For some time she has lived in a women’s refuge but is currently sleeping in her car and relying on charitable organisations for food.
•Dr Mwaura referred her for more physiotherapy and also to the spinal clinic and the pain clinic at RPH. She saw a neurosurgeon who said that her pains were due to widespread arthritis and that surgery would not help.
•She came under the care of Professor Schug and his team in the pain clinic at RPH. She had further tests, X-rays, scans and psychological treatment. She had facet joint injections which gave some relief and subsequently had rhizotomy procedures.
•She attends the clinic when necessary, mainly to obtain prescriptions for medications to deal with the pain.
•She still has a lot of pain with headaches, neck pain, shoulder pain and low back pain being the main areas. She can walk for about 20 minutes on a good day. On a bad day she needs a cane for support. She can sit for 20-30 minutes. She drives her car, mainly for short trips. She uses wing mirrors when driving but can turn her head to some degree.
The Tribunal notes that the AAT1 stated that “[t]he Tribunal determined that, at the time of the DSP claim, the problem of widespread pain could not be considered fully treated or fully stabilised. It does not warrant impairment points” (T2, 15).
There is a range of medical advice as to the causes and treatment regimes for this condition before the Tribunal. In particular, the Tribunal notes the correspondence from Dr Oehlers (GP), Dr Slinger (orthopaedic surgeon), Dr Rosenthal (rehabilitation physician) and Dr Meyerkort (occupational physician).
The JCA of 11 July 2017 described this condition as “fully diagnosed but not fully treated and stabilised as the client [the Applicant] is expected to benefit from further current/planned treatment” (T77, 400-401).
The Tribunal notes that this view was further confirmed by the ARO on the 20 November 2017 (T81, 420).
Dr Davies’ report dated 25 April 2018 (T87, 439-440) states:
… Since 2009 she has had extensive treatment including various analgesics, physiotherapy, chiropractic therapy, hydrotherapy, facet joint injections, rhizotomies and psychological interventions. She remains under the care of Prof Shug at Royal Perth Hospital. I cannot immagine a pain condition that has been more fully treated or stabilised as Ms Pickering’s.
The Respondent made the following submissions in respect to this medical condition (R2, 17-18):
80.The Secretary accepts that the applicant suffered from a fully diagnosed, chronic back condition during the qualification period. The following evidence is relevant:
a)On 15 July 2016, Dr Zhuang (spinal registrar) wrote that lower back pain would be a focus of treatment, the applicant was to see the pain service and surgery was not indicated. (T67/350)
b)On 24 April 2017, Prof Schug noted that facet joint injections had a ‘good but temporary response’ and so he had booked ‘bilaterial rhizotomies’. Prof Schug also prescribed medication. (T74/395)
c)On 26 October 2017, Prof Schug wrote that the rhizotomy on 29 June 2017 had increased the applicant’s pain and she had been admitted for two days. The applicant remained ‘in significant pain despite exercising, walking and swimming’. Prof Schug doubted that the applicant would return to ‘meaningful employment’.
81.It is open to the Tribunal to find that the condition was fully treated and stabilised during the qualification period. The applicant had accessed reasonable treatment and further treatment was not likely to result in significant functional improvement.
82.On 25 April 2018, Dr Davies wrote that the applicant ‘struggles to sit and drive a car for 30 minutes and is unable to sustain overhead activities.’ (T87/439) Accepting that this is referable to the impairment during the qualification period, it indicates a moderate impairment of 10 points under Table 4 as descriptor (1)(a) is satisfied.
83.The applicant does not have a severe impairment under Table 4. This would require that she be unable to perform any overhead activities (descriptor (1)(a)) or be unable to remain seated for at least 10 minutes (descriptor (1)(d)). Dr Davies’ evidence is not consistent with this level of impairment.
The Tribunal finds that this condition is fully diagnosed, treated and stabilised. Whilst the Applicant was unable to give evidence, the Tribunal observed that the Applicant was unable to sit for long periods of time during the hearing and clearly was experiencing discomfort.
The Tribunal has considered the written submissions before it and the evidence that the Applicant provided to AAT1.
The Tribunal notes the assessment of Professor Schug dated 26 October 2017 in which he states: “…we are now dealing with an ongoing severe chronified (sic) back pain condition which will make the likelihood of Miss Pickering being able to return to meaningful employment rather unlikely” (T79, 414-15).
On this basis, the Tribunal finds that this condition can be described as fully diagnosed, treated and stabilised and generates an impairment rating of 10 points under Table 4 of this Determination.
Mental Health
The Applicant told AAT1 (T2, 150):
•She has had mental health problems most of her life. As a little girl in New Zealand she was different from other children. She had to take medicine which her mother said was for ‘naughty girls’.
•[Redacted].
•In her early twenties she ‘went off the rails’ and had psychiatric care and counselling. She took antidepressant medication for some time.
•Following the MVAs and subsequent chronic pain from 2009 she became depressed. Her GP, Dr Oehlers treated her with antidepressants and referred her to a psychiatrist, Dr Perica, who she saw on a frequent basis until 2012 when she could no longer afford to see him. He put her on tablets which she took for a while.
•When she began treatment through the pain clinic at RPH she was treated with an antidepressant, Duloxetine. She currently gets some help from an occupational therapist at Homeless Healthcare.
•She feels sad, tearful and angry most of the time.
The Tribunal notes many pieces of correspondence relating to this condition from her GP and Psychiatrist. The reports show the Applicant as suffering from depression and post-traumatic stress disorder (PTSD).
The Tribunal notes the JCA report of 11 July 2017, which determined that the condition was fully diagnosed but not fully treated and stabilised. The report stated that “[t]he client would be expected to benefit from frequent, regular psychological counselling over a significant period of time in order to optimise her mental health functioning” (T77 402).
The Tribunal notes the ARO report of 20 November 2017, confirming the finding of the JCA (T81, 417-421).
The Tribunal notes the report of Dr Davies of 7 August 2018 which states (A1):
I refer to my letter dated 25 April 2018.
After consultation with Dr Nigel Armstrong (Psychiatrist), Ms Jane Pearson (Occupational Therapist) and further assessment I feel that at the time of writing this letter I under-estimated the degree of impairment that Ms Pickering has from her mental health conditions.
I am of the opinion that at the time of her application for the DSP, Ms Picking (sic) was experiencing severe functional impact from her mental health condition. The reason for this is that she
1.requires regular support to (sic) from family, friends and a support worker to live independently
2.she is severely socially impaired and participates in few if any recreational activities.
3.she has almost no social contacts outside professional support.
4.she finds concentrating for 10 minutes extremely tiring and
5.she is unable to participate in work or training.
Since the time of applying for DSP Ms Pickerings (sic) mental state has deteriorated further and she is now struggling with planning and decision making.
I feel that due to my initial under-estimation of Ms Pickering’s impairment that she was incorrectly only allocated 10 points on table 5 and that she should be correctly allocated 20 points.
The Tribunal notes the contentions of the Respondent (R2, 18-21):
84.The Secretary accepts that the applicant suffered from a fully diagnosed psychiatric illness during the qualification period.
85.On 6 April 2016, Adele Summers (clinical psychologist) diagnosed ‘somatic symptom disorder with insomnia and depression’ and made a management plan with the applicant. (T61/342)
86.On 14 March 2018, Dr Armstrong (psychiatrist) wrote: (T85/437)
The depressive symptoms which Sharon experiences can be best conceptualised as either suffering from Depression with mixed depressive and anxiety symptoms or a chronic adjustment disorder with mixed depression and anxiety symptoms. The treatment in both cases involves antidepressant medication (Sharon is on Duloxetine 120mg mane) and psychotherapy which she is unable to access because of her itinerant lifestyle and financial situation. Whilst Sharon’s depressive antidepressant medications and psychotherapy would be of some assistance in alleviating Sharon’s depressive symptoms one of the fundamental reasons why she is depressed is from psychosocial reasons. Sharon’s back pain which has not improved over the last 9 years with treatment is likely to continue and therefore she would always experience a depressive syndrome because her back pain negatively impacts on her quality of life and ability to sustain independence.
87.While Dr Armstong’s formulation differs from that of Ms Summers, both diagnoses are of a depressive condition which results from the applicant’s physical and social stressors and have the same recommended treatment. It follows that the condition was fully diagnosed by an appropriately qualified medical practitioner during the qualification period as required by the Rules and the introduction to Table 5.
88.Further, it is open to the Tribunal to find that the condition was fully treated and stabilised during the qualification period. While the applicant had not undergone reasonable treatment, Dr Armstrong’s opinion is that significant functional improvement was not expected and this opinion is referable to the qualification period.
89.Ms Summers and Dr Armstrong’s reports provide corroborating evidence of impairment, enabling an impairment rating to be assigned under Table 5.
90.There is also information about impairment in two reports from Dr Davies (GP) dated 25 April 2018 (T87/439) and 7 August 2018 (Attachment B). Dr Davies writes that his ‘purpose … is to support Ms Pickering’s appeal against Centrelink’s decision not to grant her the disability support pension in the absolute strongest possible terms.’ The Tribunal must only rely on Dr Davies’ reports to the extent that they contain evidence of the applicant’s symptoms and Dr Davies’ clinical opinion based on those symptoms.
91.The applicant suffered from a moderate impairment under Table 5. The following evidence is relevant to the each descriptor (sic):
a)Self-care and independent living – Ms Summers wrote on 6 April 2016 that the applicant ‘finds it difficult to find the motivation to engage in any usual activities of daily living.’ (T61/341) This is consistent with the example for a mild impairment that ‘[t]he person lives independently but may sometimes neglect self-care, grooming or meals.’ On 14 March 2018, Dr Armstrong did not indicate that the applicant’s condition affected her ability to care for herself. (T85/436) Inconsistent with these reports, on 25 April 2018, Dr Davies wrote that the applicant ‘requires extensive support to be able to function in the community’. On 7 August 2018, Dr Davies further wrote that the applicant ‘requires regular support to from [sic] family, friends and a support worker to live independently’ (Attachment B). However, Dr Davies does not specify if this support is needed due to the applicant’s psychiatric symptoms, financial situation or physical condition. There is no corroborating evidence that the applicant requires ‘an occasional visit’ or ‘regular support … at least twice a week’ as a result of her psychiatric condition per the examples for the moderate and severe descriptors, respectively.
b)Social/recreational activities and travel – the applicant reported ‘limited socialising and no engagement in hobbies/interests’ to Ms Summers. She had travelled to New Zealand the previous year to visit her family. (T61/341) Dr Armstrong considered that the applicant ‘ha[d] lost pleasure in life’. (T85/436) Dr Davies wrote that the applicant ‘is severely socially impaired and participates in few if any recreational activities.’ (Attachment B) This evidence is all consistent with the example for a moderate impairment that ‘[t]he person goes out alone infrequently and is not actively involved in social events.’ The evidence is not consistent with the example for the severe descriptor.
c)Interpersonal relationships – the applicant reported to Ms Summers that she had become ‘irritable and angry’ towards her siblings and no longer enjoyed a close relationship with her son. (T61/342) The applicant also reported to Dr Armstrong that she was ‘irritable’. (T85/436) Dr Davies wrote that the applicant ‘has almost no social contacts outside professional support’. (Attachment B) This evidence is all consistent with the example for a moderate impairment that ‘[t]he person has difficulty making and keeping friends or sustaining relationships’. The evidence is not consistent with the examples for the severe descriptor that social contact must be organised for the applicant or that she requires a companion to engage in social interaction.
d)Concentration and task completion- neither Ms Summers nor Dr Armstrong wrote that the applicant had any difficulty providing a history or reported difficulty with concentration and task completion. The reasons for decision of the Tribunal on first review indicate that the applicant gave extensive oral evidence. However, Dr Davies wrote that the applicant had ‘poor memory and concentration’ (T87/440) and subsequently that ‘she finds concentrating for 10 minutes extremely tiring’. (Attachment B) Dr Davies does not say if he has administered cognitive testing or referred the applicant for investigation of the symptoms. At its highest, the evidence is consistent with the examples for the moderate descriptor which refer to difficulty concentrating for more than 30 minutes or following complex instructions.
e)Behaviour, planning and decision-making – Ms Summers observed that ‘[t]here was no evidence of thought disorder or perceptual disturbance … [the applicant] admitted to suicidal ideation, with very low intent.’ (T61/342) Dr Armstrong wrote that the applicant ‘has transient suicidal ideation but she states that she doesn’t act on them because she has a dog.’ (T85/436) This evidence is consistent with the moderate descriptor. The evidence is not consistent with the example for the severe descriptor that ‘[t]he person’s behaviour, thoughts and conversation are significantly and frequently disturbed’.
f)Work/training capacity – the examples for the mild and moderate descriptors relate to interpersonal conflict at work due to mental illness. The example for a severe descriptor is that ‘[t]he person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.’ Ms Summers and Dr Armstrong’s reports do not contain relevant evidence. Dr Davies wrote that the applicant ‘is unable to participate in work or training’ but did not specify on what factual basis he formed this opinion. (Attachment B) There is no evidence that this descriptor is met at any level.
92.As four descriptors out of six are met at the moderate level, the applicant has a moderate impairment of 10 points under Table 5.
The Tribunal notes in the more recent JCA report of 6 July 2018, that the medical condition of Mental Health is now categorised as fully diagnosed, treated and stabilised on the basis of advice from the Applicant’s treating psychiatrist (R2). The Tribunal accepts from the JCA report that the Applicant has undergone a range of treatments for this medical condition and it is highly unlikely that the Applicant’s capacity to function will significantly improve.
The Tribunal having considered all the medical evidence before it finds the medical condition of Mental Health as fully diagnosed.
The Tribunal has considered the evidence relating to this condition very carefully. It notes that Dr Davies states that he underestimated the degree of impairment the Applicant had at the time of her DSP claim in March 2017 and also states that her medical condition “had deteriorated further and [the Applicant] is now struggling with planning and decision making” (A1).
This puts the Tribunal in a quandary. The Tribunal has to consider the evidence provided at the time the claim was made. The Tribunal notes that whilst it can consider the more relevant medical advice, it has to ensure that this advice is not tainted by the deteriorating condition of the Applicant as she currently presents.
The Tribunal notes Dr Davies’ observations about the current state of the Applicant (A1).
On this basis, having assessed all the medical evidence before it, the Tribunal is satisfied that the condition of Mental Health is fully diagnosed but was not fully treated or stabilised during the Qualification Period.
Other conditions
The Tribunal notes also that the following medical conditions – Carpel Tunnel Syndrome, Asthma, Hearing Loss and Shoulder and Upper Arm disorder formed part of the Applicant’s DSP claim.
The Tribunal notes that these conditions were not considered by AAT1.
The JCA report of 11 July 2017 assessed these conditions accordingly:
·shoulder and upper arm – fully diagnosed, but not fully treated and stabilised.
·Carpel Tunnel Syndrome – not fully diagnosed, treated and stabilised.
·Asthma – not fully diagnosed, treated and stabilised.
·Hearing Loss – fully diagnosed but not fully treated and stabilised (T77, 399-410).
The ARO found there was insufficient medical evidence to determine if these conditions were fully treated and stabilised (T81, 420).
The Tribunal also notes the JCA report of 6 July 2018 states that, in respect to Hearing Loss, this medical condition is assessed as fully diagnosed but not fully treated and stabilised (R3). The report draws attention to the fact that hearing aids would improve this condition significantly (R3). There is no evidence to suggest that this treatment has occurred (R3).
The Tribunal notes that the JCA report also states that, in regards to the medical conditions of Carpel Tunnel Syndrome, Asthma and Shoulder and Upper Arm disorder, there is little medical evidence available to allow for a proper assessment to be made (R3).
The Tribunal notes however, that Dr Davies refers to the Shoulder and Upper Arm in his letter (T87, 439). He appeared to indicate that this condition was fully diagnosed, treated and stabilised, and described it as “[the Applicant] has a mild functional impairment … and should get at least 5 points for this condition”.
Having considered the medical evidence before it, the Tribunal is not satisfied that the conditions of Shoulder and Upper arm, Carpel Tunnel Syndrome, Asthma and Hearing Loss are fully treated and stabilised. Therefore, no impairment ratings can be assigned.
Whether the Applicant has a continuing inability to work
The Tribunal finds that the Applicant has 10 impairment points under Table 4 of the Impairment Tables. Therefore, the Applicant does not satisfy s 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider s 94(1)(c) of the Act and determine whether the Applicant has a continuing inability to work. Further, as the Applicant does not satisfy s 94(1)(b) of the Act, the Tribunal does not need to consider whether the New Zealand Agreement would apply.
DECISION
For the reasons considered above, the Applicant does not qualify for DSP. The decision of AAT1 is affirmed.
I certify that the preceding 86 (eight-six) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
...........................[sgd].............................................
Administrative Assistant Legal
Dated: 13 November 2018
Date of hearing: 19 October 2018 Representative for the Applicant: Melissa Hall Advocate for the Applicant: Unitingcare West Representative for the Respondent: Ashley Burgess Solicitors for the Respondent: Sparke Helmore
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