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

[2019] AATA 3407

Prothero and Secretary, Department of Social Services (Social services second review) [2019] AATA 3407 (11 August 2019)

Division:GENERAL DIVISION

File Number(s):      2019/0033

Re:Glen Prothero

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:  11 August 2019

Place:Brisbane

The Tribunal affirms the decision under review.

....................[sgd].....................................

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether Applicant had 20 impairment points – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member P E Nolan

11 August 2019

INTRODUCTION

1. The Applicant seeks a review of a Decision of the Social Services Child Support Division of the Administrative Appeal Tribunal (AAT1) dated 6 December 2018.

2. The effect of that Decision was to affirm a Decision dated 29 June 2018 made by the Department of Human Services (the Department) to cancel the Applicant’s Disability Support Pension (DSP). As such the relevant date for cancellation to be assessed is
   28 June 2018.

   HISTORY OF THE MATTER

3. The Applicant was granted DSP from February 2011 due to a degenerative lumbar spine condition that at that time attracted a rating of 20 points under Table 4 of the Impairment Tables.

4. However on 1 January 2012, the legislation was amended and a new version of the Impairment Tables was introduced. This changed the critical aspect of DSP by making it more difficult to attract 20 points.

   ISSUES FOR THE TRIBUNAL

5. The Applicant has a long standing degenerative spinal condition of the lumbar spine. The Secretary correctly conceded that the condition was fully diagnosed, treated and stabilised at the date of the Decision (the Relevant Date). The only issue is whether the disability attracts 20 points pursuant to the Tables.

   LEGISLATIVE FRAMEWORK

6. 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; the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

7. The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) 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, 1 December 2017). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[1] Therefore the relevant period for considering whether the Applicant qualified for DSP is between 1 December 2017 and 2 March 2018 (“the Relevant Period”). The applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[2]

   [1] Sections 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Social Scurity (Administration) Act 1999 (Cth); Fanning and Secretary, Department of Social Services [2014] AATA 447, [33].

   [2] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34].

8. Previous decisions of both the Tribunal and the Federal Court have emphasised that 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 13 weeks which followed it. Evidence, such as medical reports that come into being after the relevant period, may still be relevant, but only insofar as they are referable to an applicant’s condition during the Relevant Period.

9. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[3] 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.[4] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chooses to do or what others do for them.[5]

   [3] Section 26(1) of the Act.

   [4] Section 5(2) of the Determination.

   [5] Section 6(1) of the Determination.

10. 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.[6] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately 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.[7]

    [6] Section 6(3) of the Determination.

    [7] Section 6(4) of the Determination.

11. In determining whether a condition has been fully diagnosed and fully treated, the following factors 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.[8]

    [8] Section 6(5) of the Determination.

12. 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 and:

    (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.[9]

    [9] Section 6(6) of the Determination.

13. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[10]  An impairment rating can only be assigned in accordance with the rating points in each Table.

    [10] Section 6(7) of the Determination.

14. 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.

    CONSIDERATION

15. The Applicant testified both before this Tribunal and AAT1. The evidence he gave from what I can gather doesn’t differ and in my opinion his evidence is credible and believable. The relevant factors are that the Applicant:

    (a)lives alone;

    (b)has help from his neighbours;

    (c)cannot drive a vehicle due to the medication that he is on but if driven to the supermarket he is able to navigate around the supermarket and undertake shopping;

    (d)can get dressed although not reach overhead - he can reach as far as his head;

    (e)indicated in evidence that he is able to comb his hair and perform other functions consistent with that;

    (f)can sit for more than 10 minutes without having to get up and walk;

    (g)could bend forward but isn’t in a position to comment on whether or not he can do up a shoe due to the fact that in Cairns where he lives people wear thongs due to the heat; and

    (h)can move around and is able to get up out of a chair without requiring any assistance.

16. As such, on his evidence, he is well outside the range of a 20 point function that could be described as severe. In the past he has been attributed 5 points and in my opinion this is correct. He gave evidence at the hearing that the medical statements contained within the material supported his contention. This is correct. The difficulty is that the contention is that not one of them allows him to be classified as having a severe functional impairment. There is no question that the medical evidence going further than what he described himself and on that evidence alone he is not within the required conditions to determine that he has a severe functional impact.

17. With respect to his lower limb function, that can be disposed of quickly. On his evidence there is a lot more further medical examination required. Dr S. Rudolphy described the condition as being due to cartilage wear and tear and apparently there is a need for arthroscopy which the Applicant indicated he hasn’t been able to get done. As such his evidence taken alone is to the effect that the condition is not fully treated and this is confirmed by the doctor’s report.

    CONCLUSION

18. The Application must be dismissed. The medical experts do not differ from the conditions as described by the Applicant although I suspect he gets confused about this. In essence his evidence puts him outside the range of a severe impairment and the doctor’s effectively support what he says his conditions are. It is just unfortunate that under the current legislation he doesn’t come within the framework required to give him a DSP.
    
    
    

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

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

Associate

Dated: 11 August 2019

Date of hearing:	12 July 2019
Applicant:	In person
Advocate for the Respondent:	Ms Daphne Jones-Bolla
Solicitors for the Respondent:	Department of Human Services