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

[2019] AATA 58

Ponchard and Secretary, Department of Social Services (Social services second review) [2019] AATA 58 (24 January 2019)

Division:GENERAL DIVISION

File Number(s):      2018/4918

Re:Adriana Ponchard

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:24 January 2019

Place:Sydney

The decision under review is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – spinal condition ­– mental health condition – carpal tunnel syndrome – skin condition and allergies – whether impairments fully diagnosed, treated and stabilised in the claim period – whether applicant’s impairments attract 20 points or more under the Impairment Tables during the relevant period – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch. 2, cl 4

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(Cth) ss 6, 10, 11

REASONS FOR DECISION

Professor R McCallum AO, Member

24 January 2019

INTRODUCTION

1. Mrs Adriana Ponchard lodged a claim for disability support pension (DSP) on 21 March 2017. On 16 October 2017, an employee of the Department of Human Services, which is better known as Centrelink, decided that Mrs Ponchard was not qualified for DSP.

2. Mrs Ponchard sought review from an authorised review officer (ARO). However, on 21 May 2018 the ARO affirmed the original decision on the basis that Mrs Ponchard did not have an impairment rating of 20 points.

3. Mrs Ponchard sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1). 

4. On 30 July 2018, the AAT1 affirmed the decision not to grant Mrs Ponchard DSP.

5. The AAT1 held that Mrs Ponchard’s spinal condition was fully diagnosed, treated and stabilised, and assessed this impairment at a rating of 5 points under Table 4 of the Impairment Tables. 

6. The AAT1 further held that Mrs Ponchard’s carpal tunnel syndrome was fully diagnosed, treated and stabilised, and assessed this impairment at a rating of nil points under Table 2 of the Impairment Tables.  

7. The AAT1 also held that Mrs Ponchard’s impairment of depression was not fully diagnosed, treated and stabilised during the claim period.

8. Finally, the AAT1 held that there was insufficient evidence to make an assessment of Mrs Ponchard’s skin condition.

9. Mrs Ponchard now appeals to the General Division of the AAT which is known as an AAT second review (AAT2).

   THE RELEVANT LEGISLATION

10. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

11. The criteria for DSP are set forth in section 94 of the SS Act. In Mrs Ponchard’s circumstances subsection 94(1) relevantly provides:

    94 Qualification for disability support pension

    1A 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;

    …

12. Put simply, I must be satisfied; first, that Mrs Ponchard has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Third, I must be satisfied that Mrs Ponchard has a continuing inability to work.

13. The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. In Mrs Ponchard’s circumstances, it relevantly provides as follows:

    2A 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)...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.

    …

14. The term “severe impairment” is explained in section 94(3B) of the SS Act as follows:

    3BA 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.

15. Participation in a Program of Support is explained in section 94(3C) of the SS Act as follows:

    3CA 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 for the purposes of this subsection.

16. “Work” is defined in subsection 94(5) as follows:

    work means work:

    (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)that exists in Australia, even if not within the person’s locally accessible labour market.

17. These definitions are complex but, in essence, unless a person has a severe impairment – that is a single impairment assessed at 20 points under an Impairment Table – the person must have participated in a program of support.

18. Finally, Mrs Ponchard’s impairments must be sufficient to prevent her from doing any work independently of a program of support for 15 hours a week within the next two years.

19. Two other matters require explanation. They are the 13 week qualifying period and the application of the Determination.

    THE 13 WEEK QUALIFYING PERIOD

20. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner; however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mrs Ponchard’s eligibility for DSP in the 13 week period commencing on the day on which Mrs Ponchard’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mrs Ponchard qualified for DSP between 21 March 2017 and 20 June 2017.

21. The date of the AAT2 hearing was 18 January 2019 which is more than 18 months after the end of the claim period.

22. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

23. In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    [33] The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

24. See also Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].

    THE IMPAIRMENT TABLES

25. The Determination is subordinate legislation which was made under the SS Act. Paragraph 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mrs Ponchard are worth 20 points under the Impairment Tables. This requires a few words of explanation.

26. In Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [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.

27. Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.

28. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider:

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

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

    (c)whether treatment is continuing or is planned in the next two years.

29. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

30. It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.

31. Paragraph 11(1)(c) of the Determination provides 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”.

32. Finally, Table 5 of the Impairment Tables is titled “Mental health function”. Its introduction provides in part as follows:

    Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

    Self-report of symptoms alone is insufficient.

    There must be corroborating evidence of the person’s impairment.

    THE HEARING

33. Mrs Adriana Ponchard attended the hearing. She was accompanied by her sister Mrs Alicia Medeiros.

34. Mrs Ponchard gave evidence by oath. I find that she did her best to assist the Tribunal.

35. Ms Michelle Fisher who is a clinical psychologist, gave evidence by affirmation over the telephone.

36. Ms Fisher said that she had been practising as a psychologist for about twenty years. In giving her evidence to the Tribunal, Ms Fisher said that she did not have Mrs Ponchard’s file with her, and that she only had before her the two reports from June and December 2018. However, she also relied upon her recollections of Mrs Ponchard.

37. The evidence of Mrs Ponchard and Ms Fisher will be discussed below.

    CONSIDERATION

38. Paragraph 5.1 of the Respondent’s Statement of Facts, Issues and Contentions is as follows:

    The Secretary accepts that, at the qualification period, the Applicant had physical, intellectual or psychiatric impairments for the purpose of s 94(1)(a) of the Act arising from the following:

    (a)Spinal condition;

    (b)Mental health condition;

    (c)Carpal tunnel syndrome;

    (d)Skin conditions and allergies.

39. Having regard to the medical evidence before the Tribunal and the oral evidence of Mrs Ponchard and of Ms Fisher, I find that Mrs Ponchard has the following impairments:

    (a)Spinal condition,

    (b)Mental health conditions,

    (c)Carpal tunnel syndrome, and

    (d)Skin conditions and allergies.

40. The first issue which I am required to decide is whether any of Mrs Ponchard’s impairments were fully diagnosed, treated and stabilised during the claim period. If I find that one or more of Mrs Ponchard’s impairments were fully diagnosed, treated and stabilised during the claim period, I am required to assess them under the relevant Impairment Tables.

41. The second issue which I am required to decide is whether Mrs Ponchard has a continuing inability to work. It will only be necessary to address this second issue if Mrs Ponchard obtains an assessment of 20 points or more under the Impairment Tables.

42. I shall now examine Mrs Ponchard’s impairments

    Spinal Condition

43. There are before the Tribunal CT scans, whole body bone scans, MRI scans and medical reports concerning Mrs Ponchard’s spinal condition.  I note the report from Dr Liew who is a rheumatologist dated 30 December 2013, and also the reports from Dr Teychenne who is a neurologist dated 29 August 2016 and 14 October 2016. 

44. It is clear that Mrs Ponchard suffers from disk and spinal degeneration. Having regard to the medical evidence and the oral evidence from Mrs Ponchard, it is clear that she also suffers from neck and spinal pain.

45. I find that Mrs Ponchard’s spinal condition was fully diagnosed during the claim period.

46. A more difficult question is whether her spinal condition was fully treated and stabilised during the claim period. While investigations have been ongoing, none of the doctors have suggested spinal or neck operations. Mrs Ponchard has received physiotherapy in the past within the scope of her Medicare plan, and I note the reports from Mr Peter Wang who is a physiotherapist dated 8 May 2014 and 19 December 2014.

47. In all of the circumstances, I have come to the view that Mrs Ponchard’s spinal condition was fully treated and stabilised during the claim period. Therefore, I am required to assess it under Table 4 of the Impairment Tables which is titled “Spinal function”.

48. The descriptors for a moderate impact on activities for 10 points, and the descriptors for a severe impact on activities for 20 points, are as follows:

    There is a moderate functional impact on activities involving spinal function.

    1The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (a)(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or

    (b)(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c)(c) the person is unable to bend forward to pick up a light object placed at knee height; or

    (d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).…

    …

    There is a severe functional impact on activities involving spinal function.

    1The person is unable to:

    (a)perform any overhead activities; or

    (b)turn their head, or bend their neck, without moving their trunk; or

    (c)bend forward to pick up a light object from a desk or table; or

    (d)remain seated for at least 10 minutes.

49. From the evidence of Mrs Ponchard, I find that she does not satisfy the descriptors for a severe functional impact on her spinal activities.

50. Mrs Ponchard does have some difficulties with overhead activities, but in her evidence she said that she can raise her arms to shoulder height, and that she can raise her left arm higher than her right arm.

1. Mrs Ponchard said that she can dress herself with the assistance of her daughter who clips on her bra. Mrs Ponchard said that her daughter assists her with lower limb dressing and also assists her in washing her hair.

2. Mrs Ponchard said that she can drive a car for about 15 minutes and can move her head to see the traffic. Mrs Ponchard said that she can reach out and pick up a light object from a table, but that she has to do this gradually.

3. Mrs Ponchard sat throughout the hearing, albeit with some pain. There were several breaks in the hearing, but certainly Mrs Ponchard did sit for 30 minutes between breaks. Mrs Ponchard was able to stand up and sit down in a chair without assistance. 

4. I do find that Mrs Ponchard satisfies the moderate descriptors and so I assess her spinal function at 10 points under Table 5.

   Mental Health Conditions

5. Mrs Ponchard has been treated for her depression with psychological counselling by Ms Alba Felet who is a psychologist. I note the reports dated 29 January 2015 and 6 April 2017.

6. However, Mrs Ponchard did not see Ms Michelle Fisher who is a clinical psychologist until 5 June 2018. Although this first visit with Ms Fisher occurred almost twelve months after the end of the claim period, I accept Ms Fisher’s diagnosis that Mrs Ponchard has suffered from depression and post-traumatic stress disorder (PTSD) for several years.  I note Ms Fisher’s reports dated 13 June 2018 and 1 December 2018.

7. Accordingly, I find that Mrs Ponchard suffered from depression and PTSD during the claim period.

8. However, on the evidence before me, I find that Ms Ponchard’s depression and PTSD were not fully treated and stabilised during the claim period.

9. In her evidence, Ms Fisher said that she had been undertaking counselling sessions with Mrs Ponchard, including a counselling session in December 2018 which is 17 months after the end of the claim period.

10. In her report dated 13 June 2018, Ms Fisher wrote that Mrs Ponchard

    … reported feeling depressed every day. She reported that she experienced passive suicidal ideation on a daily basis, however, she assured me that she wouldn't act on these thoughts because she felt she needed to be there for her children and mother.

11. In cross-examination, Ms Fisher was asked whether Mrs Ponchard should have been referred to a psychiatrist. Ms Fisher said that it was up to Mrs Ponchard’s general practitioner to determine whether Mrs Ponchard should see a psychiatrist. She added that a clinical psychologist can treat depression and PTSD.

12. As psychological counselling was continuing at least up until December 2018, I find that Mrs Ponchard’s depression and PTSD were not fully treated and stabilised during the claim period which was from 21 March to 20 June 2017.

    Carpal Tunnel Syndrome

13. In a report dated 29 August 2016, Dr Teychenne reported that Mrs Ponchard suffered from mild carpal tunnel syndrome.  In a report dated 22 May 2017, Dr Fitch reported that Mrs Ponchard had suffered from bilateral carpal tunnel syndrome since 15 May 2017.

14. I therefore find that Mrs Ponchard’s carpal tunnel syndrome was fully diagnosed during the claim period.

15. However, I further find that Mrs Ponchard’s carpal tunnel syndrome was not fully treated and stabilised during the claim period. There is no medical evidence before the Tribunal of such treatment during or immediately after the claim period.

    Skin Conditions and Allergies

16. In a report dated 15 March 2018, Dr Phillip Artemi who is a dermatologist diagnosed Mrs Ponchard with eczema. Dr Artemi wrote in part as follows:

    The patient's eczema has flared and is extending in areas.

    I have today reiterated general measures and stressed the importance of short warm showers and regular use of emollient.

    In addition I have commenced Keflex for secondary infection and will trial tacrolimus for the face and Eleuphrat cream for the areas of the limbs and trunk.

    If it is not improved next month Adriana will call me. I did also discuss phototherapy which would be the next option.

17. I find that as this diagnosis of eczema was not made until after the claim period, it was not fully diagnosed during the claim period. Therefore, it was also not fully treated and stabilised during the claim period.

18. In relation to Mrs Ponchard’s skin allergies, I note the brief comments of Dr Katzen who is an ear, nose and throat specialist in reports dated 27 May 2013 and 17 June 2013. However, there is no detailed discussion of her skin allergies and there is insufficient medical evidence before the Tribunal to enable me to make a finding that the skin allergies were fully diagnosed, treated and stabilised during the claim period. 

    Conclusion

19. As Mrs Ponchard’s impairments are not assessed at 20 points under the Impairment Tables, she does not comply with paragraph 94(1)(b) of the SS Act and accordingly does not qualify for DSP.

20. Therefore, it is not strictly necessary for me to determine whether Mrs Ponchard has a continuing inability to work within the meaning of subparagraph 94(1)(c)(i) and attendant provisions of the SS Act.

21. However, I note that Mrs Ponchard has not been enrolled in a program of support.  Without enrolment in a program of support, Mrs Ponchard cannot qualify for DSP unless one of her impairments is assessed as severe; that is, warranting 20 points under a single Impairment Table. Therefore, I suggest to Mrs Ponchard that if she wishes to claim DSP in the future, she should enrol in a program of support.

    DECISION

22. The decision under review is affirmed.

I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated: 24 January 2019

Date(s) of hearing:	18 January 2019
Applicant:	In person
Solicitors for the Respondent:	Sarah Pringle, Department of Human Services