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

Raines and Secretary, Department of Social Services (Social services second review) [2022] AATA 81 (27 January 2022)
Division:GENERAL DIVISION
File Number: 2020/7097
Re:Kylie Raines
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:27 January 2022
Place:Brisbane

The decision under review is affirmed.
...........[SGD].............................................................
Senior Member P J Clauson AM
Catchwords
SOCIAL SECURITY – Disability Support Pension – Whether medical conditions fully diagnosed, fully treated and fully stabilised – Whether 20 points or more under the Impairment Tables during the Relevant Period – Where points cannot be assigned under the Impairment Tables – Decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133.
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
REASONS FOR DECISION
Senior Member P J Clauson AM
27 January 2022

On 27 May 2020, Ms Kylie Raines (the Applicant) applied for the Disability Support Pension (DSP).[1]
[1] Exhibit 1, T16.
On 10 June 2020, the Services Australia advised the Applicant that her application had been rejected.[2]
[2] Exhibit 1, T21 133-134.
On 22 June 2020, the Applicant provided further evidence and sought internal review of the decision and a Medical Eligibility Assessment Recommendation conducted on 16 July 2020 found that the Applicant was ineligible for the DSP on the basis that her conditions were not fully diagnosed, treated and stabilised (FDTS).[3]
[3] Exhibit 1, T22,135-137.
On 24 August 2020, an Authorised Review Officer (ARO) found that the Applicant’s fibromyalgia condition was not FDTS and that therefore there was no impairment rating.[4]
[4] Exhibit1, T30, 157-161.
The Applicant then sought review of the ARO’s decision by the Social Security and Child Support Division of this Tribunal (AAT1) and on 29 October 2020 the decision under review was affirmed by the AAT1.The AAT1 found that none of the Applicant’s conditions had been FDTS at the relevant time.[5] The Applicant then brought an application to this Tribunal for review of that decision on 10 November 2020.[6]
[5] Exhibit 1, T2, 3-14.
[6] Exhibit 1, T1, 1.
The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP.
The issue for this Tribunal to determine, considering the matter afresh, is whether the Applicant qualified for DSP at the date of her claim, 27 May 2020, or within 13 weeks thereafter, being up until 26 August 2020 (the Relevant Period).
BACKGROUND
On the Applicant’s DSP Claim Form she has listed the following disabilities, illnesses or injuries namely, Fibromyalgia and Ross River Fever.[7]
[7] Exhibit 1, T16, 116; T17, 123.
The Applicant has also agitated other conditions as follows:
(a)Irritable Bowel Syndrome;
(b)Anxiety;
(c)Vertigo
ISSUES
The issues for this Tribunal to consider are:
a.whether during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised, and if so;
b.whether during the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
c.whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table (or whether, alternatively, the Applicant had completed a Program of Support), and if so;
d.whether the Applicant has a continuing inability to work.
THE LEGISLATIVE FRAMEWORK
The governing legislation unless otherwise quoted, is the Social Security Act 1991
(the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
In order for the Applicant to qualify for the DSP certain relevant criteria set out in section 94 of the Act, must be met. They are:
(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)the person has a continuing inability to work.
The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified 13 weeks following the date of claim.[8] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[9]
[8] Administration Act s 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.
[9] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument. The relevant tables can be found in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth) (the Impairment Determination).
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[10] Essentially, 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] Impairment Determination, s 5(1)–(2).
[11] Impairment Determination, s 5(2).
[12] Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[13]
[13] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years.[14]
[14] Impairment Determination, s 6(5).
A condition will be considered 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 2 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 2 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.[15]
[15] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(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 Applicant.[16]
[16] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two impairment 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.[17]
[17] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if the person's impairment attracts 20 points or more under a single Impairment Table.[18]
[18] Social Security Act 1991, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.
CONSIDERATION
The Applicant’s claim is that she suffers from Ross River Fever, fibromyalgia, irritable bowel syndrome and vertigo. The effect of these conditions, she says, are that her physical exertion and stamina, and her mental health are affected. The Tribunal is to consider whether the Applicant had impairments arising from those conditions she has agitated for the purposes of section 94(1)(a) of the Act during the Relevant Period.[19] The Tribunal must also determine whether or not, during the Relevant Period, those impairments attracted an impairment rating of 20 points or more under the Impairment Tables,[20] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[19] Exhibit 4, [2(a)].
[20]Social Security Act 1991, s 94(1)(b).
The Secretary accepts that the Applicant did have impairments and that paragraph 94(1)(a) of the Act was satisfied during the Qualification Period.[21]
[21] Exhibit 4, [34].
I will now consider whether the Applicant’s Impairments were permanent, in that they were FTDS.
Were the Applicant’s conditions fully diagnosed, treated and stabilised, such that they could be considered permanent?
Fibromyalgia
The Tribunal has had regard to the Employment Services Assessment Report of 28 July 2020 in which the assessor recorded that the Applicant reported on that date that she was trialling Endep and had engaged in a pain management programme with ‘Pain and Gain’.
This treatment is confirmed by the letter of Joyce McSwan of the Persistent Pain Program (PPP) to the Applicant’s GP Dr Stuart Lee of the 21 February 2021.[22] It is further noted by the Tribunal that in that letter, Ms McSwan outlines the Applicant’s need for psychological support and a recommendation is made therein for the Applicant to be referred to a psychologist with a special interest in pain management, Ms Rebecca Mailli of Mindtime Psychology. Ms McSwan requests a referral for the Applicant under her Mental Health Care Plan for this treatment. Ms McSwan also indicates that she is keen to try the Applicant on palmitoylethanolamide and described by Ms McSwan as “an evidence based supplement for neuroinflammation and sensitivities”.[23]
[22] Exhibit 1, ST5, 29-30.
[23] Ibid, 30.
The letter from Ms McSwan is provided to Dr Lee some 6 months post the relevant period and indicates clearly that reasonable treatment is still being proposed, discussed and employed by the Applicant’s treating professionals with regard to her fibromyalgia condition.
The Tribunal has considered Dr Lee’s responses to the medical questionnaire dated 12 October 2020,[24] wherein he stated that the Applicant’s fibromyalgia condition was fully treated and stabilised without assigning a date as to when this status may have been reached in relation to the condition. The Tribunal has considered this opinion together with the evidence of the same Doctor as expressed in the medical certificate,[25] completed by him post the questionnaire responses dated 18 September 2020, wherein in relation to the Applicant’s fibromyalgia condition he reported as follows: ‘under specialist rheumatologist management, medication, graduated exercise program through persistent pain clinic, psychologist.’
[24] Exhibit 1, T2; ST 2.
[25] Exhibit1, T36.
The Tribunal has accepted the evidence in the September report as clearly indicating that the Applicant’s treatment was ongoing at that time and that was likely to continue. Given that Dr Lee gave no indication at any point in either of the medical certificates of the time at which he considered the fibromyalgia condition to be fully treated and stabilised and the fact that the later report speaks to current and ongoing treatment for the condition, the Tribunal finds that the condition was not fully treated and stabilised during the relevant period.
The view of the Tribunal in this regard is further reinforced by the report of Dr Lee dated 31 March 2021[26] where he opines that ‘there is no further treatment that can be added to meaningfully improve Kylie’s symptoms’. This report is dated a significant time outside of the Qualification Period (5 months) and makes no mention of an earlier date prior to the report upon which he considered the Applicant’s fibro myalgia condition to be fully treated and stabilised.
[26] Exhibit 1, ST3 26-27.
The Tribunal decides therefore that the 31 March 2021 would be the only date upon which the condition could be said to have been declared fully treated and stabilised by her treating medical practitioner. The Tribunal is therefore unable to conclude that the Applicant’s fibromyalgia condition was permanent during the Relevant Period. The Tribunal is accordingly unable to assign any points to this condition under the Impairment Tables.
Irritable Bowel Syndrome
The Applicant has been diagnosed with Irritable Bowel Syndrome by Dr Ibrahim Abdool, gastroenterologist, as evidenced by his report of the 17 May 2016.[27] The Respondent accepts that the Applicant’s IBS was fully diagnosed during the Relevant Period.[28]
[27] Exhibit 1, T2, 33.
[28] Exhibit 4, 46.
The Respondent however, contends that the Applicant’s IBS was not fully treated and stabilised during the Relevant Period.
The Respondent relies upon the undated chronic disease management plan prepared by the Applicant’s GP Dr Khine Kyaw,[29] and received by the Agency on the 22 June 2020 in which a number of treatment options for this condition were outlined including, inter alia, GP/Specialist review, engagement with a dietician and with a gastroenterologist.
[29] Exhibit 1, T23 139-141.
It is contended by the Respondent that there is limited medical evidence relating to any treatment and prognosis received by the Applicant for this condition during the relevant period and nor is any evidence from a dietician or a gastroenterologist relating to the relevant period. The effect of that, says the Respondent, is to mean that the Tribunal cannot be satisfied that this condition was fully treated and stabilised during the Relevant Period.
Dr Stuart Lee, the Applicant’s GP, provided responses to a medical questionnaire dated 12 October 2020,[30] in which he stated that the Applicant’s IBS condition was fully treated and stabilised. However, the Respondent contends that there is no specific date stipulated upon which Dr Lee claims this condition to be fully treated and stabilised.
[30] Exhibit 1, T2,15-30; ST2, 2-25.
The Respondent contends that although the response of Dr Lee alludes to the Applicant undergoing changes to her diet and having removed allergens therefrom and having undertaken multiple visits to the dietician between 2016 and 2020 and lists visits in June and September 2020, there are no corroborative reports from these consultations. The Respondent also contends that there is no direct evidence to corroborate the recommended treatment strategies or which outlines the Applicant’s prognosis at the conclusion of the Relevant Period.
The Respondent contends that although a later report of Dr Lee dated the 31 March 2021 (5 months outside the Relevant period) states that in relation to the Applicant’s IBS condition that ‘there is (sic) no further treatment options that would improve Kylie’s condition’, Dr Lee provides no date at which he considers the Applicant’s IBS to be fully treated and stabilised and thus, the Tribunal cannot be satisfied that the Applicant’s IBS was fully treated and stabilised during the Relevant Period.
The Tribunal has considered the evidence available to it in relation to the Applicant’s IBS and finds that there is evidence (although without any detail) of dietary management by a dietician with visits listed for a consultation in June and September 2020, though noting that the September 2020 visit is outside of the Relevant Period. There is reference to the removal of allergens form the Applicant’s diet. The Tribunal finds that there are no substantive reports from the Applicant’s treating medical professionals relating to the program of treatments provided to the Applicant for this condition, nor is there any evidence of like type relating to the prognosis for the condition which would allow the Tribunal to determine that the IBS condition was fully treated and stabilised during the relevant period.
The Tribunal therefore finds that the Applicant’s IBS condition was not fully treated and stabilised during the relevant period. Accordingly, because the condition was not permanent at that time, no points can be assigned to the Applicant’s IBS under the Impairment Tables.
Anxiety Disorder
The Respondent contends that in relation to the Applicant’s anxiety condition, that it was not fully diagnosed during the Relevant Period. The difficulty for the Applicant, so contends the Respondent, is that notwithstanding the medical questionnaire completed by Dr Stuart Lee dated 12 October 2020,[31] the Impairment Tables require evidence from a clinical psychologist if the diagnosis is not made by a psychiatrist. The Applicant’s anxiety disorder had been diagnosed by a psychologist Ms Joanne Collier, but there is no evidence of diagnosis by a clinical psychologist. The net result of that submission, which I accept, is that the Applicant’s anxiety condition had not been fully diagnosed in accordance with the requirements of the Impairment Tables at Table 5.
[31] Exhibit 1, T2, 15-30.
The Tribunal notes that there is a report prepared by Dr Linn Aslund, clinical psychologist, dated 26 May 2021,[32] which noted that the Applicant had participated in her first session of psychological and counselling on that date and was to receive six sessions after which she would report progress to Dr Lee. The difficulty for the Applicant, however, is that the report post-dates the Relevant Period by some nine months. The referral from Dr Lee to Dr Aslund may well provide some evidence of an appropriate diagnosis as at 31 March 2021, however, it does not advance the Applicant’s status to FDTS as at the qualification period.
[32] Exhibit 5, ST6 32.
The Applicant told the Tribunal at the hearing that she did suffer from anxiety through her concerns generated by her fibromyalgia condition and the consequential financial strain that in turn placed upon her. The Tribunal however, must consider all of the evidence in relation to the conditions agitated before it and this requires consideration of the statutory requirements prescribing the processes for diagnosis of a condition. It is the case as in this matter where a claim for DSP is made based around Table 5 conditions that, to ground the claim before any other considerations, the condition must be diagnosed in accordance with the requirements outlined above in paragraph 64.

The evidence before the Tribunal is insufficient for the Tribunal to make a finding that the Applicant’s anxiety condition was, during the qualification period, FDTS. The Tribunal therefore, cannot assign any points under the Impairment Tables to the Applicant’s anxiety condition.
Vertigo
The Applicant in her evidence to the Tribunal alluded to her having amongst other issues which she seemed to broadly associate with the fibromyalgia condition, ‘dizzy spells’.[33]
[33] Transcript of proceedings, P-16.
A medical report by Dr John O’Niell, Ear, Nose and Throat Surgeon dated 9 February 2015,[34] to Dr Andrew Rogger-Davies GP, made comment upon the Applicant’s suffering from ‘a humming in the head’ which was intermittent and frustrating. Dr O’Niell remarked further that; ‘She hasn’t noticed a major change in her hearing and she doesn’t get any dizziness now although if she is moving around a lot she will get a feeling like motion sickness rather than any spinning. She isn’t unwell with it.’
[34] Exhibit 1, T2, 31-32.
Dr Lee the Applicant’s treating GP in his reports of the 12 October 2020,[35] and 31 March 2021 respectively,[36] treats the Applicant’s vertigo condition as a standalone condition. Both reports note that the condition was diagnosed by Dr John O’Niell ENT surgeon, in February 2015 as confirmed to the Tribunal in Dr O’Niell’s report.[37] The Tribunal has before it no medical evidence as to any reasonable treatments suggested or applied to the Applicant’s vertigo condition during the relevant period.
[35] Exhibit 1, ST2, 5.
[36] Exhibit 1, ST3, 26.
[37] Ibid.
The Tribunal has considered the evidence both from the Applicant and from the medical reports relating to the vertigo condition agitated by the Applicant. It is noted that Dr Lee holds the view that in the post qualification period no further treatment would be of assistance to the Applicant for her condition. The report of Dr O’Niell does not unequivocally define the condition of vertigo in the Applicant and in fact, states that the Applicant did not have dizziness but a ‘humming’ in her head’ and a feeling of ‘motion sickness’ when she moved about rather than ‘spinning’. It is the finding of the Tribunal that given the paucity of evidence before it regarding this condition the Tribunal cannot be satisfied that condition was fully diagnosed, treated, and stabilised during the relevant period.
CONCLUSION
As each of the Applicant’s conditions were not fully diagnosed, treated and stabilised, the Applicant cannot be assigned a total of 20 or more impairment points under the Tables, she does not satisfy the requirement under section 94(1)(b) of the Act. Therefore, she does not qualify for DSP via this application. Given this conclusion, it was not necessary for me to consider whether the Applicant had a continuing inability to work.
DECISION
The decision under review is affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

.............[SGD]...........................................................
Associate
Dated: 27 January 2022

Date of hearing: 16 June 2021

Applicant: By Telephone

Solicitors for the Respondent: Mr Samuel Harvey

Services Australia

[2022] AATA 81

27 January 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies

Date of hearing:	16 June 2021
Applicant:	By Telephone
Solicitors for the Respondent:	Mr Samuel Harvey
Services Australia