Prasanta Chattopadhyay and Secretary, Department of Social Services
[2015] AATA 158
•19 March 2015
[2015] AATA 158
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1094
Re
Prasanta Chattopadhyay
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 19 March 2015 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS – social security – disability support pension – ulcerative colitis – diabetes mellitus – glaucoma – hypertension – cardiac disease – whether conditions fully diagnosed treated and stabilised – impairment ratings – program of support – active participation – exemptions – decision under review affirmed
Legislation
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011Guide to Social Security Law
REASONS FOR DECISION
Senior Member J F Toohey
Background
Mr Prasanta Chattopadhyay suffers from ulcerative colitis, diabetes mellitus, glaucoma, cardiac disease and hypertension. On 28 March 2013, he applied for a Disability Support Pension (DSP). Centrelink decided he did not qualify for the payment. In January 2014, the Social Security Appeals Tribunal affirmed that decision.
The legislation concerning DSP is in the Social Security Act 1991 (the Act). Section 94 provides that, to qualify for DSP, a person must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
To qualify for DSP, Mr Chattopadhyay had to satisfy these criteria on 28 March 2013 when he applied, or within the following 13 weeks, that is by 27 June 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the claim period.
The Impairment Tables
I will first consider whether Mr Chattopadhyay had an impairment rating of 20 or more points during the claim period.
5. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. There are 15 Tables which are used to assess the functional impact of various impairments. According to whether the impact is nil, mild, moderate, severe or extreme, an impairment is assigned a rating of zero, five, ten, twenty or thirty points.
6. A rating can only be given to an impairment if the condition causing it is permanent: cl 6(3)(a). Permanent means that the condition is fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised, and is more likely than not to persist for more than two years: cl 6(4).
7. When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation the person has had for the condition; and whether treatment is continuing or is planned in the next two years: cl 6(5).
Fully stabilised means either:
(i)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
(ii)the person has not undertaken reasonable treatment for the condition and:
i.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.
Did Mr Chattopadhyay’s impairments rate 20 or more points during the claim period?
Ulcerative colitis
9. It is agreed, and I am satisfied on the basis of reports from Mr Chattopadhyay’s treating doctor, that this condition was fully diagnosed, treated and stabilised during the claim period and that it should be rated five points.
Diabetes mellitus
10. It is agreed, and I am satisfied, that Mr Chattopadhyay’s diabetes was fully diagnosed, treated and stabilised during the claim period. The Secretary contends that it should be rated five points. Mr Chattopadhyay says it should rate 10 points. The relevant Table is Table 1 - Functions requiring Physical Exertion and Stamina.
On 29 May 2013, Mr Chattopadhyay attended an interview with a Job Capacity Assessor at Centrelink. According to her report, Mr Chattopadhyay told her he could walk a kilometre to his local shops. Giving evidence before the Tribunal, Mr Chattopadhyay said he told the Assessor he had to stop frequently along the way. He gave evidence that he could perform most activities of daily living but at a slower pace. He said the frequency of his symptoms depended on factors like stress and diet, and his other medical conditions.
12. I accept Mr Chattopadhyay’s evidence and am satisfied that he experiences occasional shortness of breath, fatigue and cardiac pain which make it difficult for him to walk any distance. I also accept that he has difficulty performing physically active tasks such as climbing a flight of stairs or doing heavy household activities.
13. I am satisfied that this condition meets the criteria for a rating of five points on Table 1 because he has occasional difficulty walking without stopping for a rest and performing physically active tasks and is able to perform most work-related tasks other than those involving heavy lifting.
14. As to whether this condition has moderate functional impact, and so rates 10 points, Table 1 requires that Mr Chattopadhyay:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion).
15. The differences between ratings of five and ten points are essentially ones of degree and depend on whether symptoms are occasional or frequent, and what degree of “difficulty” is required in performing day to day household activities.
16. If an impairment falls between two ratings, the lower must be assigned and the higher may not be assigned unless all the descriptors for that level of impairment are satisfied: Determination, Part 2: Rules for Applying the Impairment Tables, cl 11.
17. On balance, I find this condition rated five points during the claim period. I am not satisfied that its impacts reach the level of frequency or difficulty necessary to attract ten points. For the reasons discussed below, even if I were to find it rated 10 points, Mr Chattopadhyay’s claim could not succeed.
Glaucoma and cataracts
18. Mr Chattopadhyay has glaucoma, which was diagnosed in 1998, and cataracts. In a report dated 11 March 2013, his general practitioner, Dr Prabhu Rajendran, included this condition in that part of his report related to conditions which are generally well-managed and which cause minimal or limited impact on the ability to function.
19. The Secretary contends that this condition was not fully treated and stabilised during the claim period. Documents from Concord hospital show that Mr Chattopadhyay underwent elective left trabellectomy (sic) on 18 July 2013 (after the claim period) and was to be followed up one week later.
20. A report from Dr Rajendran on 25 August 2014 shows that Mr Chattopadhyay had chronic glaucoma. He underwent left trabeculectomy and cataract surgery on 18 July 2013 and subsequent needle revision in selective left trabeculoplasty. Dr Rajendran reported he “is going to need further operations to control and stop the condition from getting worse I am unable to comment if the condition is ever going to improve and would request input from his eye specialist”.
21. An undated report from Dr Linda Zheng, ophthalmology intern at Concord Hospital, confirms Dr Rajendran’s report of surgery and follow-up in July 2013. She stated Mr Chattopadhyay was currently on numerous eye drops to manage his glaucoma and he was due for a right trabeculectomy and right cataract surgery the following month. She noted that he had also seen Dr Michael Chilov, retinal specialist, for a fluorescein angiography and laser of his left eye on 20 September 2013 due to central serous chorioretinopathy.
22. On the basis of these reports, I am not satisfied that Mr Chattopadhyay’s glaucoma and cataracts were fully treated and stabilised for the purposes of the Impairment Tables during the claim period. That is not to say that it might not be considered fully treated and stabilised now.
Cardiac disease/hypertension
23. Mr Chattopadhyay was diagnosed with cardiac disease in about 2009. At that time his treating specialist prescribed medication and suggested he see Mr Chattopadhyay again in three or four years’ time. In the meantime, his medication is adjusted, and the dosage increased or decreased as necessary, and he has quarterly blood tests arranged by Dr Rajendran. In April 2014 Mr Chattopadhyay underwent an angiogram and had a stent inserted.
24. I note that Dr Rajendran did not mention cardiac disease in the report he completed in support of Mr Chattopadhyay’s claim for DSP and nor did Dr Bridget Simpson, general practitioner, in her report of 22 January 2014. This suggests that, at best, the condition had minimal impact at that time.
25. In any event, Mr Chattopadhyay was essentially under observation from about 2009 and did not undergo any further procedure until 2014. He told me he underwent the angiogram because he was feeling terrible at the time; he saw Dr Simson who arranged for him to have an x-ray followed by an ECG, a CT scan and then an angiogram. Given these further investigations and the procedure he then underwent in April 2014, I am not satisfied this condition was fully treated and stabilised during the claim period.
26. Mr Chattopadhyay’s hypertension appears to have been fully diagnosed, treated and stabilised during the claim period but it had minimal impact. Mr Chattopadhyay says it is aggravated by stress, such as when he was having difficulties at work, but his blood pressure “as such is under control”. I find it rates nil points.
Continuing inability to work
27. I find that, at most, Mr Chattopadhyay’s conditions rated 10 points during the claim period. This means that his claim cannot succeed and it is not necessary to decide whether he also had a continuing inability to work. For completeness, I will deal briefly with this part of the claim.
28. The meaning of continuing inability to work is set out n s 94(2) of the Act. It includes the requirement that, unless a person has a severe impairment, meaning one which rates 20 points or more under a single Impairment Table, he or she has actively participated in a program of support: s 94(2)(aa).
29. For the reasons set out above, none of Mr Chattopadhyay’s impairments rates 20 points on a single Impairment Table. It follows that, in addition to having a combined impairment rating of 20 or more points, unless he is exempt from this requirement, he must also have completed a program of support in order for his claim to succeed.
30. The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Determination) sets out the requirement for active participation in a program of support. Ordinarily, a person must have participated in a program of support for at least 18 months in the 36 months immediately before claiming DSP: cl 5(1) and (2).
31. Clauses 5(3) to (5) of the Determination provide that there are three exceptions to this:
(i)where the person has completed a program that ran for a period shorter than 18 months;
(ii)where the program was terminated before the person made the claim because he or she was unable solely because of his or her impairment to improve his or her capacity to find, gain or remain in employment through continued participation in the programme;
(iii)where the person was participating in the program at the time of their claim and was prevented solely because of his or her impairment from improving his or her capacity to find, gain or remain in employment through continued participation in the program.
32. A person may be exempted from participating in a program of support for reasons such as ill health. Centrelink records show that, at 28 March 2013 when he claimed DSP, Mr Chattopadhyay had participated in a program of support for just over three months in the 36 previous months. From 30 May 2011 to 1 May 2014, he was granted a temporary medical incapacity exemption. However, these periods do not count towards completion of a program of support: Guide to Social Security Law, 3.6.2.112.
Conclusion
33. For these reasons, I am not satisfied that Mr Chattopadhyay had an impairment rating of 20 points of more during the claim period, and nor did he have a continuing inability to work. It follows that I must affirm the decision to refuse his claim.
34. Nothing about this decision prevents Mr Chattopadhyay applying for DSP again either now or in the future,
1. I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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Associate
Dated 19 March 2015
Date(s) of hearing
28 January 2015
Representatives for the Applicant
Ms Kirsty MacDonald, Advocate
Representatives for the Respondent
Ms Alicia Fletcher, Government Lawyer
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