Prince and Secretary, Department of Social Services (Social services second review)
[2016] AATA 992
•6 December 2016
Prince and Secretary, Department of Social Services (Social services second review) [2016] AATA 992 (6 December 2016)
Division
GENERAL DIVISION
File Number
2016/2114
Re
Debra Prince
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D. J. Morris, Member Date 6 December 2016 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
D. J. Morris, Member
SOCIAL SERVICES – Disability Support Pension (DSP) – Whether qualified – whether impairments are fully diagnosed, fully treated and stabilised – whether impairments attract 20 points or more on Impairment Tables – inoperable brain lesion – other conditions – effect on functional ability – not qualified for DSP – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014REASONS FOR DECISION
D. J. Morris, Member
6 December 2016
BACKGROUND
Ms Debra Prince applied for Disability Support Pension (DSP) on 28 May 2015.
With her claim she also lodged a medical report done by Dr Joanne Love, her general practitioner. Dr Love named Ms Prince’s medical conditions as: subependymoma and ependymoma; cervical radiculopathy; anxiety; and a gynaecological condition.
On 23 July 2015 the Applicant attended a Job Capacity Assessment (JCA1). The Assessor’s opinion was that Ms Prince had a brain cancer/tumour was “permanent” but then said it was not fully diagnosed nor fully treated or fully stabilised at the time of the DSP claim. JCA1 considered the Applicant had a neck disorder that was temporary and a gynaecological disorder that was temporary. JCA1 also concluded that Ms Prince had a “permanent” anxiety condition which was not fully diagnosed at the time of claim. The Assessor was of the opinion that the Applicant had a temporary reduction in work capacity but within two years had a capacity, with intervention, of working 30-plus hours per week.
On 29 July 2015 an officer of the Department of Human Services (the Department) decided that Ms Prince was not eligible for DSP.
The Applicant sought a review by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.
A file assessment JCA (JCA2) was also conducted on 2 November 2015. JCA2 differed from JCA1 in concluding that Ms Prince’s brain lesion was permanent in that it was fully diagnosed, fully treated and fully stabilised. JCA2 concluded that her neck disorder was temporary and improving and that her gynaecological condition was temporary in that it was pending further investigation at the Royal Women’s Hospital. JCA2 considered the Applicant’s anxiety condition was not fully diagnosed. In terms of the permanent brain condition, JCA2 recommended the assignment of zero points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) because the condition caused no functional impact. JCA2 concluded that the Applicant had a temporary work incapacity to allow time for treatment, but that within two years she was capable with intervention of working more than 30 hours per week.
The ARO found that, of the Applicant’s medical conditions, only her brain lesion condition was permanent but it did not warrant an impairment rating. The ARO affirmed the original decision that Ms Prince was not eligible for DSP.
Ms Prince sought a review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). AAT1 conducted a hearing on 10 March 2016 and concluded that no impairment points could be assigned so the original decision was affirmed.
The Applicant sought a review by the General Division of the Tribunal, which is this hearing.
The hearing was held on 18 November 2016 by telephone. The Applicant represented herself, gave affirmed evidence and was cross-examined by the advocate for the Respondent, Mr Pietro Nacion.
The Respondent tendered documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence.
The following documents tendered by the Applicant were also admitted into evidence:
·Medical letter from Dr Kate Drummond, neurologist, to Dr Joanne Love, general practitioner, dated 3 October 2016 (Exhibit A1);
·Medical certificate signed by Dr Love dated 18 October 2016 (Exhibit A2).
·Medical report from Mrs Janne Ferguson, registered psychologist, dated 27 October 2016 (Exhibit A3);
·Covering letter from the Applicant dated 3 November 2016 (Exhibit A4).
What are the qualifications for DSP?
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act), in particular section 94.
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has a physical, psychiatric or intellectual impairment, that the impairment is awarded 20 points or more under the Impairment Tables, and the person has a continuing inability to work.
The Determination which sets out the Impairment Tables came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.
The applicable provisions relating to the Applicant’s ability to “work” are sections 94(1)(c) and section 94(5) of the Act. ”Work” refers to that which is for at least 15 hours a week.
Section 94 is a conjunctive section of the Act. This means that for a person to be qualified for DSP, the person must firstly have impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.
If a person is assigned 20 or more points under one Impairment Table, that assignment means the impairment is assessed to be a ‘severe’ impairment under section 93(3B). If a person is assigned 20 or more points across more than one Impairment Table, then the provisions of section 94(2) of the Act apply to her or his claim. Sections 94(2) and 94(3C) of the Act, and the Social Security (Active Participation for Disability Support Pension) Determination 2014 set out the requirements for a person to participate in an approved program of support.
What is the relevant period for considering this claim?
The Social Security (Administration) Act 1999 provides, at clause 4(1) of Schedule 2, as follows:
If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Applying this provision, if Ms Prince is found not to have been qualified for DSP on the date she lodged her claim, 28 May 2015, but she became eligible on a date within the thirteen week period thereafter, concluding on 28 August 2015, then her claim is deemed to have been made on the date she became so qualified.
In these Reasons, I will call this timeframe ‘the relevant period’. The Applicant must be qualified in this relevant period for her claim to be successful. Changes in medical conditions that occur later are not relevant to this claim, but they may be relevant to a future claim.
APPLYING THE LAW
Does the Applicant have a physical, intellectual or psychiatric impairment?
The medical reports before the Tribunal and the Applicant’s evidence support the contention that she suffers from impairments arising from her brain lesion; a neck condition; a gynaecological condition; and an anxiety condition.
The Respondent accepted the presence of these conditions.
On the independent medical evidence before the Tribunal I find that Ms Prince satisfied the requirements of section 94(1)(a) of the Act in the relevant period by having a neck pain condition, a gynaecological condition, an anxiety condition, and a brain lesion.
What is the correct rating of her impairment or impairments under the Impairment Tables?
When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Determination.
In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.
In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed, by an appropriately qualified medical practitioner, fully treated and fully stabilised.
In addition, Rule 11(5) provides that where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.
Medical and other evidence
Neck pain condition
On 16 January 2015 a magnetic resonance imaging scan (MRI) of the Applicant’s cervical spine conducted by Dr Firkin found “Postero-right lateral disc protrusion at C5/6 without evidence of neurological compromise.”
In her medical report dated 28 May 2015, Dr Love recorded a diagnosis of cervical radiculopathy with a date of onset of 7 July 2014. Dr Love said that the Applicant was undergoing physiotherapy in relation to her neck condition, which she had commenced on 19 May 2015.
Dr Love said that the neck condition caused numbness and left arm pain and headaches and that the pain was aggravated with movement. She said that the effect on Ms Prince was likely to persist for between 13 months and 2 years and within the next two years the impact on her would fluctuate.
Ms Prince gave evidence to the Tribunal about her disc problem. She agreed with Dr Love’s conclusion that the numbness she had experienced was related to the disc problem. She told the Tribunal that initially there was discussion about possible surgery but then it was determined to treat the condition with physiotherapy and confirmed that she had commenced physiotherapy in “late April, early May” in 2015. She said she can move her neck without significant restriction and can do household chores such as put clothes on the line and drive.
The Applicant told the Tribunal that the physiotherapy had largely taken her headaches away and removed the tension in her neck. She said not all the pain had been removed but it had significantly improved. Ms Prince also told the Tribunal that she had more recently found that she had blocked sinuses which she believed had contributed to her balance problem and vertiginous feelings. She told the Tribunal that she was taking medication to improve her sinuses.
In terms of the Applicant’s neck condition, her evidence about improvement with treatment and the more recent discovery that a sinus disorder may have contributed to some of the symptoms, together with the proximity of her commencement of physiotherapy to the date of claim, leads me to conclude that her cervical radiculopathy was not fully diagnosed, fully treated or fully stabilised in the relevant period as required under Rule 6. Treatment was continuing at the time. Accordingly, no impairment points can be assigned for this condition.
Gynaecological condition
The Applicant underwent a procedure on 4 July 2014 for a gynaecological disorder. Dr Love in an addendum to her medical report dated 28 May 2015 said that there had been complications after the procedure and that at that time Ms Prince was awaiting an appointment at the Royal Women’s Hospital and was taking pain control medication. Dr Love said that there would be an impact for up to two years but it was expected to improve.
Ms Prince gave evidence that she saw a specialist at the Royal Women’s Hospital in March and June 2015 and had an MRI on 11 August 2015. She said that Dr Love had suspected she might have a hernia which could be repaired.
Given that the Applicant was awaiting treatment at the time of claim for DSP in relation to this condition, and on her own evidence continued to engage in specialist appointments and treatment after the relevant period, I cannot determine that this condition is ‘permanent’ in terms of the requirements of the Determination and so it cannot be assigned impairment points.
Anxiety condition
Dr Love in her addendum to her medical report of 28 May 2015 also refers to an anxiety condition and that the diagnosis of this condition had been confirmed by Mrs Janne Ferguson. Dr Love said that Ms Prince had been receiving counselling since April 2012 and that the side-effects of the condition were disturbed sleep, poor concentration and poor decision-making. Dr Love’s view was that this condition was expected to last more than two years and expected to fluctuate.
The Determination provides that a mandatory requirement for the assessment of a mental health condition in relation to DSP is that any diagnosis must be made by a psychiatrist or a clinical psychologist. The Australian Health Practitioner Regulation Agency records show that Mrs Ferguson is a general psychologist. The Applicant in her evidence at the hearing said she had not yet seen a psychiatrist or a clinical psychologist but was on a waiting list. She said she had made telephone contact with a clinical psychologist but had built up a rapport with Mrs Ferguson so went back to see her. This is quite understandable and the Tribunal makes no reflection whatsoever on Mrs Ferguson’s professionalism or the care that she is giving Ms Prince, but the Determination is binding in terms of the assessment of a mental health condition in qualification for DSP, so in the absence of the required corroborative diagnosis I am unable to assign impairment points for the Applicant’s anxiety condition in the relevant period.
Brain lesion
Dr Love reported that Ms Prince was diagnosed with a subependymoma or cavernoma by Dr Tanya Yuen, neurosurgeon, on 16 January 2015.
An MRI scan on 16 January 2015 conducted by Dr Firkin first recorded the presence of an abnormal brain lesion:
Conclusion: No specific cause for vertigo or the abnormal symptoms over the forehead and occipital regions is identified but a small hyperintense mass lesion at the lower end of the aqueduct extending into the fourth ventricle raises the possibility of a likely subependymoma. Neurosurgical review and further imaging with CT scanning and a post contrast study of the brain on MR is suggested.
On 5 February 2015 Ms Prince had a further MRI, this time conducted by Dr Meakin, which finished:
Conclusion: Stable subependymal mass at the junction of the cerebral aqueduct and 4th ventricle to the right of midline…The most probable differential diagnosis includes subependymoma and ependymoma. A metastasis is considered unlikely as this is a solitary lesion with no enhancement or vasogenic oedema.
Dr Yuen wrote to Dr Love on 22 June 2015 saying that on review the Applicant was unchanged neurologically. Dr Yuen said in relation to a new MRI that the lesion was still a similar size but “this time there is some enhancement”.
The Applicant submitted a more recent medical letter from Dr Kate Drummond (Exhibit A1). This letter, written on 3 October 2016, says, in part:
As you know, we have been watching a presumed cavernoma on her inferior colliculis and fourth ventricle. This has shown no change on an MRI scan now six months after the last. Debra feels well and has made some changes in her personal life that have been beneficial for her. Thus, I will see her again in one year with a further MRI scan. I would be very happy to see her earlier if you are at all concerned about her…
In her evidence, Ms Prince said her condition was extremely unstable between January and March 2015 but she feels a lot better now. She said it was so debilitating at the time the lesion was first diagnosed and felt she had been handed, in her words, a ‘death sentence’ which was enormously stressful for her and her children.
Ms Prince said she had been advised by the specialists at the Department of Neurosurgery in the Royal Melbourne Hospital that the MRI tracking of the lesion showed the lesion hasn’t altered in size and that their view was that the “slight enhancement” recorded earlier was within the margin of human error when reading an MRI and that subsequent imaging had shown no change. She said she feels more confident about her health as time goes on.
In discussing how her brain lesion has affected her daily life, Ms Prince said she felt she had become a “before” and “after” person. She said she would wake up with a headache which could be caused by her sinuses or could be as a result of her neck condition. She said she was much more positive than she was eighteen months ago when she thought death was imminent.
Dr Yuen in her letter of 30 March 2015 to Dr Love said:
Since she had surgery [for a gynaecological condition] in July 2014 she has had episodes of neck pain and vertigo as well as fatigue. These episodes have subsequently subsided with rest and recuperation.
…
It is unclear what the lesion is though the lack of change over two months and lack of hydrocephalus suggest a more benign nature. I do not think the lesion is causing her symptoms.
It seems to me, on the medical evidence, that the Applicant’s brain lesion condition fulfils the requirements of being permanent. According to Dr Love’s advice on 13 August 2015, the lesion is a position where it cannot be operated on and, if it grows or starts to cause a bleed, the only treatment available, according to the reports before me, would be palliative in nature. The fact that there was some lack of precision in what type of lesion it was at the outset does not change the fact that it has now been confirmed by several MRIs and neurologists and is enduring.
The medical evidence is that the lesion is not expected to change in the next two years and reasonable treatment is being undertaken by Ms Prince, to the extent that the word ‘treatment’ can be applied to six monthly, and now yearly, MRI scans. I interpret Dr Drummond’s letter (Exhibit A1) as establishing a monitoring regimen and that approach will only alter if the intrinsic characteristics of the lesion change. Although this letter is outside the relevant period it is directly referrable to a relevant condition, as assessed by successive MRIs in the relevant period.
The Tribunal is therefore fully satisfied to find that Ms Prince’s brain lesion condition is permanent, within the meaning of the Determination.
However, on the Applicant’s own evidence and supported by medical reports, the symptoms of numbness, vertigo and her neck pain all seem unconnected to the brain lesion condition and are now considered to be symptoms of other conditions which are in the process of being treated, at varying pace, both in the relevant period and currently. The new evidence in the hearing from Ms Prince of a sinus condition contributes to my finding that her other identified medical conditions were not fully treated or stabilised at the time of claim or in the thirteen week period thereafter.
In terms of the brain lesion, the Applicant gave evidence about some effects on her daily activities but they were not corroborated by her medical advisers Rule 8(1) of the Determination states:
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
…
In her medical report of 28 May 2015, Dr Love descried the clinical features of the lesion as Headaches, poor balance, intermittent vertigo. However, on later evidence, each of these symptoms may now be attributed to Ms Prince’s neck and sinus conditions which are being treated and are improving. In terms of her anxiety condition, diagnosed by Dr Love to exist since 2012, the initial diagnosis of the lesion would be reasonably likely to have contributed to that, as would the time it took to pin down the cause of her neck and balance problems, but on her own evidence her stress level has significantly decreased as her health has improved.
I do not doubt that being told of the presence of the brain lesion, in the position it is in, would be greatly affecting to anyone, and especially when, at the time of the claim, it was not clear whether the lesion was growing. However, the presence of a medical condition, even one that is inoperable, where it does not have an effect on a person’s functional activities which is both corroborated and directly attributable to the condition, and which is measurable under the relevant Impairment Table, means that, under Rule 11(5), no impairment rating can be assigned for the brain lesion condition in terms of qualification for DSP.
The purpose of DSP is to provide income support when a person, because of an impairment or impairments, is functionally unable to work. The mere existence of a medical impairment et ipsum is not sufficient qualification for the benefit. I am not convinced on the evidence before me that the Applicant is unable to work because of this condition.
I find that no impairment points can be assigned to Ms Prince for her medical conditions in the relevant period. Therefore, the requirement that a DSP claimant must satisfy section 94(1)(b) of the Act is not met.
PROGRAM OF SUPPORT REQUIREMENT
The Applicant contended that she had participated in a program of support including undertaking tertiary study in the eighteen months before her claim. The Respondent disputed this but as Ms Prince’s claim has not satisfied section 94(1)(b) of the Act, it is not necessary for me to go on to consider whether or not she has participated in a program of support to the satisfaction of the Act.
CONCLUSION
For a person to be eligible for DSP, each sub-part of section 94 of the Act must be satisfied. As found above, section 94(1)(a) is satisfied, and I believe was satisfied in the relevant period – the Applicant had a permanent impairment, a brain lesion. However, section 94(1)(b), the assignment of 20 or more impairment points, was not satisfied in the relevant period.
All parts of section 94 must be satisfied for a person to be qualified for DSP. The regrettable outcome for Ms Prince is that this claim for DSP cannot succeed. I note the evidence to the Tribunal that the lesion has stabilised and Ms Prince’s evidence that she is getting on top of her other health challenges; these are all positive signs for her.
DECISION
The Tribunal affirms the decision under review.
62. I certify that the preceding 61 (sixty‑one) paragraphs are a true copy of the reasons for the decision herein of Member D. J. Morris.
[sgd].....................................................................
Associate
Dated 6 December 2016
Date of hearing 18 November 2016 Applicant In person Advocate for Respondent Mr Pietro Nacion (by phone)
Sparke Helmore
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
0
0