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

Potter and Secretary, Department of Social Services (Social services second review) [2020] AATA 4428 (5 November 2020)
Division:GENERAL DIVISION
File Number: 2020/1053
Re:Mark Potter
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:5 November 2020
Place:Brisbane

The reviewable decision is affirmed.
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Senior Member P J Clauson AM
Catchwords
SOCIAL SECURITY – Social Security Act 1991 (Cth) – Social Security (Administration) Act 1999 (Cth) – Disability Support Pension – DSP – Whether the applicant’s impairments are worth twenty or more points – whether the applicant’s conditions were fully diagnosed, treated and stabilised – decision affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Secondary Materials
Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011)
REASONS FOR DECISION
Senior Member P J Clauson AM
5 November 2020

On 16 September 2019 the applicant, Mr Mark Potter, lodged a claim for Disability Support Pension (“DSP”) and listed his medical condition as “neurosyphillis” (sic) which affected his ability to work.[1]
[1] Exhibit 1, T23, page 170 and Exhibit 1, T38, page 265.
Provided with the applicant’s claim was a bundle of documents consisting of:
(a)Medical Evidence Checklist;
(b)Consent to Disclose Medical Information;
(c)Pathology Report, 17 June 2019, showing syphilis serology;
(d)Medical Certificate of Dr Phyu Oo (GP), dated 26 March 2019;
(e)Patient Health Summary, dated 16 September 2019.[2]
[2] Exhibit 1, T24, pages 201 to 2017.
The Department of Human Services, now Services Australia (“the Agency”), completed a Disability Support Pension Medical Eligibility Assessment Recommendation in respect of the applicant. The Counsellor recommended that insufficient evidence existed to establish that the applicant’s neurosyphilis condition was fully treated and stabilised.[3]
[3] Exhibit 1, T25 at page 208.
The applicant’s claim for DSP was rejected on 28 September 2019.[4]
[4] Exhibit 1, T26 at page 210.
The Agency completed a further Disability Support Pension Medical Eligibility Assessment Recommendation in respect of the applicant after the receipt of further evidence. On 22 October 2019, an Occupational Therapist gave a recommendation reflective of the previous assessment in September 2019.[5]
[5] Exhibit 1, T28 at page 215.
The applicant sought a further review of this determination. An Authorised Review Officer (“ARO”), on 26 November 2019, affirmed a decision to reject the applicant’s claim for DSP. The ARO found that the applicant’s neurosyphilis was not fully treated and fully stabilised, but did not assess the applicant’s additional conditions of:
(a)Gouty arthritis; and
(b)Anxiety and depression;
as insufficient medical evidence existed in relation to the diagnosis, treatment and functional impact relative thereto.[6]
[6] Exhibit 1, T33 at page 233.
The applicant sought a further review of this decision by the Social Services and Child Support Division of this Tribunal (“AAT1”) on 13 November 2019.[7]
[7] Exhibit 1, T34 at page 229.
A hearing was conducted by the AAT1 on 29 January 2020 to review the Agency’s decision to reject the applicant’s DSP claim.
The AAT1, on even date, found in rejecting the applicant’s claim for DSP that:
the applicant’s gouty arthritis condition was fully diagnosed, fully treated and fully stabilised and could be assigned five points under Table 2 of the Impairment Tables;
(b)the applicant’s mental health condition was not fully diagnosed, fully treated and fully stabilised;
(c)the applicant’s tertiary syphilis condition was fully diagnosed, but was not fully treated and fully stabilised.[8]
[8] Exhibit 1, T2 at page 4.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.
The Social Security (Administration) Act1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant Impairment Ratings are to be determined as at the date of claim, in this case 16 September 2019. There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging a claim, in which case the start date for DSP is the date the person becomes qualified.[9] Therefore, the Relevant Period for considering whether the applicant qualified for DSP is between 16 September 2019 and 13 weeks thereafter, namely 16 December 2019 (“the Relevant Period”).
[9] See sections 41 and 42 and clause 3 and clause 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act1999 (Cth).
It is well-established (and, indeed, mandatory in a legislative sense) that the applicant’s condition, and thus assessment of attributable impairment points, must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at para. [34]:
“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 12 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”. (Tribunal’s underlining)
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination2011 (“the Determination”), a legislative instrument made under the Act.[10] The Tables are function-based rather than diagnostic-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[11] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[12]
[10] See section 26(1) of the Act.
[11] section 5(2) of the Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (“The Determination”).
[12] See section 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an Impairment Rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[13] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriate qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[14]
[13] See section 6(3) of the Determination.
[14] See section 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:
(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.[15]
[15] See section 6(5) of the Determination.
A condition is “fully stabilised” if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)the person has not undertaken reasonable treatment for the condition:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[16]
[16] See section 6(6) of the Determination.
“Reasonable treatment” is treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.[17]
[17] See section 6(7) of the Determination.
An Impairment Rating can only be assigned in accordance with the Rating Points in each Table. A rating cannot be assigned between two consecutive Impairment Ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[18]
[18] See section 11(1) of the Determination.
In respect of the requirement that the applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
ISSUES FOR THE TRIBUNAL
The issues for me to consider are:
(a)whether, during the Relevant Period namely, from 16 September 2019 when the applicant lodged his claim for DSP or within 13 weeks thereafter to 16 December 2019, the applicant was qualified to receive DSP;
(b)the applicant was entitled to receive the DSP depending upon whether he satisfied section 94 of the Act insofar as, in particular, whether the applicant has:
(iii)a physical, intellectual or psychiatric impairment or impairments that are fully diagnosed, fully treated and fully stabilised;
(iv)the impairments flowing from the applicant’s condition or conditions warrant an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the applicant completed a program of support; and
(d)whether the applicant has a continuing inability to work (CITW).
CONSIDERATION
Did the applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The respondent accepted that the applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the respondent contended that the applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the applicant did not satisfy section 94(1)(b) or (c) of the Act.[19]
[19] See Exhibit 3, Respondent’s Statement of Issues, Facts and Contentions, pages 7 to 11 inclusive.
I accept that the applicant had an impairment or impairments for the purposes of section 94(1)(a) of the Act and I will deal with the calculation of Impairment Points by reference to each of the applicant’s various medical conditions.
Condition 1 - Gouty Arthritis - Table 2, Condition Impacting Upper Limb Function
The Tribunal has considered the medical evidence available to it in relation to this condition, in particular:
(a)The applicant’s reporting in the Employment Services Assessment Report (“ESAR”) carried out on 15 June 2019 wherein he deposed that his gouty arthritis condition was well managed with medication and that he had not suffered an episode for about two years. He also stated therein that the condition was permanent and affects his joints and this can affect the way he uses his hands;[20]
(b)The medical report (undated) by Dr Zaer provided to the Agency on 21 October 2019 reports that the applicant’s gouty arthritis condition is confirmed to make the applicant’s holding or manipulating objects difficult. This confirms the finding of the ESAR;[21]
(c)Dr Zaer’s Medical Certificate dated 8 November 2019 reporting that the applicant’s gouty arthritis condition is a source of pain, stiffness and swelling in the applicant’s joints;[22]
(d)Dr Zaer’s evidence in the AAT1 hearing on 29 January 2020 where he made the observation about the applicant that he was able to live independently, hold a pencil, unscrew the lid of a soft drink bottle and could carry a one litre carton of liquid.[23]
[20] Exhibit 1, T17 at page 151.
[21] Exhibit 1, T27 at page 213.
[22] Exhibit 1, T31 at page 220.
[23] Exhibit 1, T2 at page 7.
The Tribunal accepts the evidence relating to this condition and is satisfied that the applicant suffers from mild impairment under Table 2 of the Impairment Tables from this condition. It is noted for completeness the descriptors under Table 2 relating to the degree of impairment suffered by the applicant are as follows:
“There is mild functional impact on activities using hands or arms if -
1. The person can manage most daily activities requiring the use of the hands or arms, but has some difficulty with most of the following:
(a)Picking up heavier objects (for example, a two litre carton of liquid or carrying a full shopping bag);
(b)Holding very small objects (e.g. coins);
(c)Doing up buttons;
(d)Reaching up or out to pick up objects.”
The Tribunal has concluded that in regard to the applicant’s gouty arthritis condition, he suffers from a mild impairment in accord with Table 2 of the Impairment Tables and the condition attracts a rating of five points thereunder.
Condition 2 - Anxiety and Depression - Table 5 - Condition Affecting Mental Health Function
Regarding this condition, the Tribunal notes the Medical Certificate of Dr Lourdus Chinappa Siddham dated 10 February 2011[24] where he records the applicant’s condition of depression with symptoms described as “low mod (sic), unable to concentrate, stress anhedonia”. The Certificate also notes the treatment regime of antidepressants and psychotherapy. A further Medical Certificate by Dr Siddham dated 29 March 2011 also notes a diagnosis of major depression with a history of anhedonia, low mood, no energy, anxiety, low self-esteem and confidence and noted that medication with daily medication of Lexapro and counselling were the treatments being undertaken.[25]
[24] Exhibit 1, T4 at page 67.
[25] Exhibit 1, T5 at pages 69 and 70.
The Tribunal has also taken account of the Medical Certificate of Dr Jayante Karambhe dated 23 September 2013[26] wherein in relation to the applicant’s depression conditions, that Doctor notes that the applicant’s medication with Lexapro had ceased approximately one year before and that the applicant’s symptoms consisted of sad mood, depression and abnormal sleep and that future or planned treatment was noted as “Psychologist”.
[26] Exhibit 1, T15 at page 129.
The Tribunal has also noted a further Medical Certificate issued by Dr Farzin Zaer in relation to the applicant, however, undated and received by the Department on 21 October 2019, wherein his depression condition is noted among his other conditions in the following terms:
“His anxiety and depression also affects his work capacity, memory and inability to work in an office environment. He gets panic attacks in public.”[27]
[27] Exhibit 1, T27, page 213.
For a condition to be able to be assessed under Table 5 of the Impairment Tables, it is necessary for the mental health condition to be diagnosed by an appropriately qualified medical practitioner (including a Psychiatrist), with evidence from a Clinical Psychologist (where not made by a Psychiatrist). This is a mandatory requirement and must, in the absence of the prescribed diagnosis by the Psychiatrist or Clinical Psychologist, Table 5 cannot be invoked. The Tribunal notes that it has no such evidence before it relating to the Qualification Period as Dr Zaer is a General Practitioner and therefore, his evidence can not be singularly relied upon for the purposes of Table 5. It is noted that the applicant has been to see a Psychiatrist at a time outside the Qualification Period. The Tribunal has considered the medical reports of Dr L. Sanjay Nandam which both provides a diagnosis of “Neurocognitive Disorder secondary to neurosyphilis”.[28]
However, no diagnosis of a mental health condition was enunciated in either of these medical reports. The Tribunal notes the Secretary’s contention that the applicant’s anxiety and depression conditions were not fully diagnosed during the Qualification Period and thus, no Impairment Rating is able to be assigned to it.
[28] See Exhibit 3, attachments A and B, Respondent’s statement of Facts, Issues and Contentions,
In relation to the pharmacological treatment received by the applicant for his mental health condition as claimed, it is noted that as mentioned herein earlier, he had been prescribed Lexapro at some time in the past with a dosage uncertain but perhaps on a 10 milligram per day regime based upon the Certificate of Dr Karambhe[29] where he noted the applicant’s discontinuance of use of Lexapro around 2012. The Tribunal has no medical evidence of any continued use of any antidepressants other than the PBS Patient Summary[30] wherein it is noted that the applicant had prescribed to him Mirtazapine tablets in two scripts of 30 tablets each on 27 December 2018 and 21 February 2019 respectively. Although the applicant was prescribed these medications, no evidence is before the Tribunal indicating that they were being administered conjunctively with the other co-related treatments for Anxiety Disorders as recommended in the Guidelines issued by the Royal Australian and New Zealand College of Psychiatrists (“RANZCP”).[31]
[29] See Exhibit 1, T15, at page132.
[30] Exhibit 2, ST Docs atpage 18.
[31] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions at paragraphs 45-46.
The Guidelines recommended treatment for such disorders consist of Cognitive Behaviour Therapy (“CBT”) as part of the psychological counselling for mild anxiety, increasing to a continuation of psychological counselling by way of CBT and antidepressants (SSRI’s or SNRI’s) for moderately severe or severe anxiety.[32] The Guidelines also suggest that for treatment of Mood Disorders, psychological counselling is appropriate for mild episodes of Major Depressive Disorder and for moderate to severe episodes should be applied conjunctively with antidepressants.
[32] Ibid,

Unfortunately, there is no evidence before the Tribunal which would indicate such a plan of treatment had been engaged with by the applicant. The Tribunal has no cogent evidence of psychological counselling intervention, either alone or with the support of antidepressants as recommended in the RANZCP Guidelines.
Evidence was provided that the applicant, at the Qualification Period, was awaiting a Headspace appointment for this condition. It is the view of the Tribunal that this points to the fact that that condition is not fully diagnosed, fully treated and fully stabilised as at the Qualification Period. The Tribunal is therefore unable to conclude that the applicant’s mental health condition was, at the Qualification Period, fully diagnosed, fully treated and fully stabilised. Therefore, no Impairment Rating under Table 5 of the Impairment Tables can be applied to the condition.
Condition 3 - Neurosyphilis - Table 7, Brain Function
The Tribunal accepts that the applicant’s condition of neurosyphilis has been fully diagnosed during the Qualification Period and relies upon the Medical Certificates of:
Dr Supreet Bajwa diagnosing the applicant with “Tertiary syphilis (late)” dated 21 March 2019;[33]
(b)Dr Zoltan Orovec diagnosing the applicant with “Neurosyphilis”;[34]
(c)Dr Fazin Zaer diagnosing the applicant with “Neurosyphilis” dated 20 August 2019;[35]
(d)Dr Fazin Zaer’s undated Medical Certificate provided to the Agency on 21 October 2019 diagnosing the applicant with “Neurosyphilis”.[36]
[33] Exhibit 1, T20 at page 165.
[34] Exhibit 1, T20 at page 167.
[35] Exhibit 1, T22 at page 169.
[36] Exhibit 1, T27 at pages 212 to 213.
The applicant was hospitalised in the Maryborough Hospital from 25 March 2019 until he was discharged on 1 April 2019,[37] during which time he was treated for his neurosyphilis condition which caused him symptoms of confusion, seizures and headaches. He was treated with IV Benzyl Penicillin for 14 days and his condition was described in the Discharge Report by Dr Phyu Oo as “temporary”. That report was dated 26 March 2019.[38] Further to this Certificate, the Certificate of Dr Zoltan Orovec dated 12 June 2019[39] also noted the condition of neurosyphilis as “temporary”. That report also concluded further that the applicant’s symptoms were estimated to affect his ability to work for a period of “less than three months”.
[37] Exhibit 1, T24, page 205.
[38] Exhibit 1, T24 at page 205.
[39] Exhibit 1, T21 at page 167.
This is contrasted with Dr Zaer’s undated medical report received by the Agency on 21 October 2019[40] which contained the opinion that neurosyphilis is “a degenerative condition which has been thoroughly treated and has no hope of improving”.[41] However, Dr Zaer, in a further Medical Certificate dated 8 November 2019[42], stated that the condition was “a temporary exacerbation of a chronic condition” and with an “uncertain prognosis”. Dr Zaer, it is then noted, referred the applicant to the Royal Brisbane and Women’s Hospital (“RBWH”) for “opinion and management”.[43] It is noted in his evidence to the Tribunal that Mr Potter did not manage to attend the RBWH for that purpose.
[40] Exhibit 1, T27.
[41] Exhibit 1, T27 at page 213.
[42] Exhibit 1, T27 at page220.
[43] Exhibit 1, T27 at page 214.
Dr Zaer, in his evidence to the AAT1, gave us his reasoning for making the applicant’s referral to the RBWH as outlined at paragraph 22 of the AAT1 Reasons for Decision as:
“… Mr Potter’s syphilis was still being actively managed and that, while there was evidence of neurological involvement, the nature and extent of the involvement and whether or not it was permanent remains unclear. The purpose of the RBWH referral was to further investigate this and obtain advice regarding ongoing management.”[44]
[44] Exhibit 1, T2 at page 8.
The applicant told the Tribunal that he could not get into the RBWH but had been receiving ongoing Penicillin treatment locally for the neurosyphilis condition and that he had gained an improvement in his condition and that that treatment had ceased.
It is clear to the Tribunal from this evidence that it was far from certain what the state of the applicant’s neurosyphilis was with regard to the extent of his symptoms of a neurological nature, whether they were temporary or permanent and what treatment for the ongoing management of his constitution may have been. Also, it is to be noted that Dr Nandam, the applicant’s Psychiatrist, notes in his February 2020 report[45] that the applicant’s depressive symptoms and psychosis (auditory hallucinations), which were attributable to his neurosyphilis, had “largely resolved” with the Penicillin treatment.
[45] Exhibit 3, Attachment A, Respondent’s Statement of Facts, Issues and Contentions.
The Tribunal, given that the applicant still had to receive specialist review and assessment and advice on treatment and management for his neurosyphilis condition at the time of the Qualification Period, has decided that the condition was not fully treated and fully stabilised at that time. Given also that the Penicillin treatment had alleviated certain of the applicant’s neurological symptoms, it would seem, at the Qualification Period, that it would have been unreasonable to conclude that specialist intervention and further reasonable treatment choices were unlikely to result in significant functional improvement for the applicant. Thus, the Tribunal decides that the applicant’s neurosyphilis condition was not fully treated and fully stabilised as at the Qualification Period.
As the applicant does not have a total of 20 or more points under the Tables, he does not satisfy the requirement under section 94(1)(b) of the Act (the second of the requirements for DSP). He does not therefore qualify for DSP via this Application.
CONTINUING INABILITY TO WORK
Given that this applicant does not reach 20 points or more at the relevant Qualifying Period, it is not necessary for me to consider whether he satisfies the remaining criteria for DSP.
I would further observe that although the applicant has failed to reach 20 points or more via this application, it may be that his conditions may have worsened or become fully diagnosed, treated and stabilised since the Qualification Period for this DSP claim. The applicant may benefit from lodging a fresh claim for DSP with additional and more recent medical evidence.
CONCLUSION
The applicant does not qualify for DSP because his conditions can only be assigned five Impairment Points during the Qualification Period.
Accordingly, the decision under review is affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

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Associate
Dated: 5 November 2020

Date of hearing: 28 October 2020

Date final submissions received: 22 July 2020

Applicant: By Phone

Solicitors for the Respondent: Mr A Summers, Services Australia

[2020] AATA 4428

5 November 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies

Date of hearing:	28 October 2020
Date final submissions received:	22 July 2020
Applicant:	By Phone
Solicitors for the Respondent:	Mr A Summers, Services Australia