Re Covenden and Secretary, Department of Social Services
[2018] AATA 353
•2 March 2018
Covenden and Secretary, Department of Social Services (Social services second review) [2018] AATA 353 (2 March 2018)
Division:GENERAL DIVISION
File Number: 2017/2770
Re:Neermaladevi Covenden
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:2 March 2018
Place:Sydney
The decision under review is affirmed.
........................[sgd]................................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – refusal of disability support pension – whether conditions fully diagnosed, treated and stabilised – whether conditions 20 points or more under the Impairment tables – gastrointestinal conditions – upper limb – spinal condition – other conditions – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Chris Puplick AM, Senior Member
2 March 2018
INTRODUCTION
This matter concerns a refusal of the Disability Support Pension to Mrs Neermaldevi Covenden and is a Second Tier level review of that decision.
In these proceedings Mrs Covenden was self-represented but had the support and assistance of her daughter (Ms Kesrie Covenden) and a friend (Ms Lynette Mary Spice). The Secretary was represented by Ms Elizabeth Ulrick.
TIMETABLE
Relevant history of the matter is as follows:
·Mrs Covenden made her original application for the DSP on 3 May 2016;
·This was assessed and rejected by the Department on 20 June 2016;
·This original decision was reviewed by an Authorised Review Officer and confirmed on 18 January 2017;
·Mrs Covenden then made a request for a by the Tribunal (Social Services & Child Support Division) (First Tier Review) who affirmed the decision;
·Mrs Covenden applied for a second tier review on 15 May 2017;
·The Second Tier review was heard by this Tribunal on 23 February 2018.
LEGISLATION
The relevant legislation to which I have paid attention in making my decision are:
·Social Security Act 1991 (the Social Security Act );
·Social Security (Administration) Act 1999 (the Administration Act); and
·Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables)which are made by the Minister under section 26(1) of the Social Security Act which came into effect on 1 January 2012.
LIMITATIONS
Whilst in general, this Tribunal makes its decision on the facts before it at the date of the hearing, in this case, the relevant legislation (Schedule 2 of the Administration Act) specifies that the decision must be made in relation to a period which commenced on the day the application was lodged (3 May 2016) and for a period of 13 weeks thereafter.
This is called the qualification period and it commenced on 3 May 2016 and ended on 2 August 2016.
Anything which occurred, was reported or assessed after that date is thus rendered nugatory and cannot be taken into account by this Tribunal.
As a result Supplementary T Documents 1 4, although relevant to Mrs Covenden’s present condition do not allow me to make any findings relevant to the qualification period.[1]
[1] The Secretary provided judicial authority for this position in paragraphs 18-22 of the Secretary’s Statement of Facts, Issues and Contentions.
MRS COVENDEN’S EVIDENCE
Mrs Covenden gave lengthy evidence to the Tribunal in an opening statement and was cross-examined by the Secretary’s representative.
She reported that as a result of the increasing distress and disability suffered by her over a period of time she was dismissed from her paid employment which involved collecting blood for a pathology company. She told the Tribunal that as a result of her losing her job and after the payment, by way of lump-sum, of her superannuation entitlements, she felt that she had been “hit by a ton of bricks”.
She reported that over a period of time her condition worsened, so much so, that she now finds herself dependent upon family members to support her in most of her daily activities such as food preparation, dressing and showering. She stated that “being in constant pain is not a happy medium” and that as she had “always been an independent person, now to be dependent on someone is very hurtful”.
It was explained to Mrs Covenden that the Tribunal could only take into account those matters which were on foot in the qualifying period. In relation to this period, Mrs Covenden’s responses indicated that her degree of impairment was substantially less than presents at the moment, and that although she suffered a degree of on-going pain she was nevertheless generally able to function, although at a slower and less optimal level, than usual. She also admitted that in the period just after the qualifying period she was able to travel overseas, in the company of family members, to the United States (23 August 2016 – 8 September 2016) and Indonesia (23 December 2016 – 3 January 2017) without too much difficulty.
DSP QUALIFICATION
In order to qualify for the DSP an applicant must meet certain qualifications or requirements which are set out in section 94(1) of the Social Security Act.
In essence these requirements or criteria are:
·The person has a physical, intellectual or psychiatric impairment;
·The person rates 20 points or more on the Impairment Tables;
·The person has a continuing inability to work or the Secretary is satisfied that the person is participating in a programme known as the supported wage system;
·The person has turned 16; and
·The person is an eligible citizen or resident.
The Secretary agrees that Mrs Covenden has a physical, intellectual or psychiatric impairment and that she should be assessed using the Impairment Tables. It is also agreed that Mrs Covenden meets requirements 4 and 5 above. The matter of item 3 is in dispute and I will return to it in due course.
In evidence Mrs Covenden has claimed to be affected by a number of conditions which she seeks to have assessed in relation to their value on the Impairment Tables.
These various Tables set out the criteria for the awarding of Points ranging from Nil to 30 points.
Simply having a medical or psychiatric condition is not, in and of itself, sufficient to qualify for assessment. In each case the condition in issue must be
·Fully diagnosed
·Fully treated and
·Fully stabilised.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 6(4).
This means that a condition, which is still under treatment or where the prospect of further or on-going treatment is evident, will not qualify to move to the assessment phase.
The Secretary contends that this results in Mrs Covenden being assessed as earning only 10 points in the Tables where a minimum of 20 is required for qualification for the DSP.
It is the responsibility of this Tribunal to make its own assessment of the possible points score on the Impairment Tables in relation to each of the medical or psychiatric impairments claimed by Mrs Covenden.
There are seven claimed impairments which I must consider.
Gastrointestinal Conditions: Dyspepsia and gastro-oesophageal flux disease (GORD)
There is evidence before the Tribunal and it is conceded by the Secretary that this condition is fully diagnosed, fully treated and fully stabilised (FDTS)
As a result it can be assessed for impairment under Table 10 (Digestive and Reproductive Functions)
It is clear to the Tribunal, and conceded by the Secretary that Mrs Covenden clearly reaches the threshold for the awarding of five points on this Table The next level of impairment under this Table is ten points and there are three criteria established, of which at least two must be met in order to score the 10 points.
(a)The person’s attention and Concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal Care needs associated with the digestive or reproductive system Condition;
(b)The person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system Condition;
(c)The person is often (once per month) absent from work, education or training activities due to the digestive or reproductive system Condition.
The Secretary concedes that Mrs Covenden meets the first condition but not the other two and as such does not qualify for 10 points. There is evidence in several letters from Dr Taylor, consultant psychiatrist that Mrs Covenden suffers from a degree of impairment which, in my opinion, would qualify Mrs Covenden under the second condition however these are impairments which arise from conditions other than those directly associated with her gastrointestinal status. Even if they were indirectly related to this underlying condition, and this would ordinarily bring her into the ten point range, as all Dr Taylor’s correspondence post-dates the qualifying period the Tribunal cannot have regard to it nor rely upon it as helping in the assessment of her impairment during the qualifying period. There is no such corroborative evidence on this point that goes to her condition during the qualifying period.
I affirm the five point rating for Ms Covenden’s gastrointestinal condition.
Upper Limb Condition
These conditions are conceded by the Secretary as FDTS.
This moves the Tribunal to consideration of Impairment Table 2 (Upper limb function)
The evidence reveals Mrs Covenden suffers from some impediments to normal painless functioning as set out the medical certificate completed by Dr Safi (a general practitioner) on 22 June 2015[3] and the reports of Dr O’Neill, consultant rheumatologist, dated 12 and 22July 2016[4].]
[3] Tribunal documents at p. 112.
[4] Tribunal documents at pp. 164-166.
In order to achieve five points, an applicant must meet what the table states as “most” of four specified criteria – that is three of them must be met. The criteria are:
1The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)Picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)Handling very small objects (e.g. coins);
(c)Doing up buttons;
(d) Reaching up or out to pick up objects.
The Secretary concedes only that Mrs Covenden meets the test established in item 1(a), however the Tribunal is am of the opinion, on the relevant material before it, that Mrs Covenden qualifies in relation to items 1(a) and 1(d) but two out of four does not meet the test of being “most”.
As a result I affirm the Secretary’s assessment of a rating of nil points for this condition.
Spinal Condition
These conditions are osteoarthritic change with L5/S1 (anterolisthesis) are accepted by the Secretary as FDTS.
The Tribunal must now turn to Table 4 (Spinal Function) and it is clear on the evidence, and the Secretary agrees, that Mrs Covenden qualifies for five points.
To qualify for ten points Mrs Covenden would have needed to show impairment related to at least one of the 4 items there specified as follows:
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
An overall reading of her complete medical history is highly suggestive of the fact that she may, even during the qualifying period, have reached one of these criteria, but as there is no actual corroborative evidence to allow me to reach such a conclusion, I cannot so conclude. The Tribunal notes that, in any event, the evidence of Dr O’Neill, in the report dated 12 July 2017,[5] may not support such a conclusion.
[5] T documents, p 164.
I affirm the five point rating.
Lower Limbs
In regards to these conditions the Secretary contends that that lower limb osteoarthritis was fully diagnosed but not fully treated or stabilised.
This conclusion is supported by the medical reports from Dr Tjeuw, consultant rheumatologist, dated 26 May 2017 and Dr Safi dated 13 June 2017[6] that Mrs Covenden was receiving on-going treatment for this condition and further treatment was planned. Indeed, Mrs Covenden had a double knee replacement in August 2017 although she says that she is unable to walk up the stairs in her own home and lives entirely on the ground floor.
[6] Supplementary Tribunal Documents, pp214, 217.
As further treatment was pending and indeed undertaken after the claim period, the Tribunal finds that the condition was fully diagnosed but not fully treated or stabilised and is therefore unable to assign an impairment rating.
Chronic Pain
The nature and aetiology of chronic pain is as complex and difficult to determine as is its assessment for these purposes.
The current impairment tables were made in December 2011 and came into effect on 1 January 2012. Prior to that, assessments for DSP purposes were made using tables set out as Schedule 1B of the Social Security Act. Those contained, at Table 20 a specific set of criteria for a range of conditions which included “chronic fatigue and pain.”
There is no such pain-specific table in the current Tables and so I have to rely on the current Guide to Social Security Law, Guideline 3.6.3.05, to assist the Tribunal to come to an assessment in this area.
The Secretary relies upon these (under the heading “Assessing functional impact of pain”) to conclude that Mrs Covenden’s chronic pain is not a separate medical condition but rather a function or symptom of her other ailments, both physical and psychological.
These Guidelines noted above provide:
Chronic pain can also be a symptom of a permanent condition. Where a person experiences chronic pain as a result of a permanent condition, such as rheumatoid arthritis, chronic pain is not a separate diagnosis but rather a symptom of the underlying autoimmune disorder.[7]
[7] Statement of Facts, Issues and Contentions at para 57.
There are several references to Mrs Covenden’s pain issues in various medical reports, however none of them contradicts the Secretary’s assertions that these may be symptomatic of an underlying physical cause rather than a separate chronic condition. Additionally, the the Secretary relies on numerous comments from Dr Taylor (although only one of these is made within the qualifying period) which link this pain, in part, to the condition of major depression and, accordingly, the Tribunal is unable to take the matter further. Nor is the Tribunal able to be sure about the aetiology of this pain problem during the qualifying period. Due to the paucity of evidence, particularly on impacts of function, the Tribunal is unable to assess the effects of this condition with an impairment rating.
Mental Health
The issue here is Mrs Covenden’s long-standing condition of major depression.
The Secretary agrees that this condition is fully diagnosed but asserts that it is not fully treated or fully stabilised. This contention is supported by the reports from Ms Cruickshank, psychologist, dated 4 April 2016[8] and Dr Taylor dated 30 June 2016[9] both of whom attest to Mrs Covenden’s ongoing treatment during the qualifying period, which is the only period, to which I can have regard.
[8] Tribunal documents, p 114.
[9] Tribunal documents, p 162.
As treatment continues and is likely to have some impact on function (although the effects of such treatment is unknown) the Tribunal cannot assign an impairment rating as it finds the condition is not fully treated and stabilised during the claim period.
Chest Pain
The Secretary contends that this issue is not fully diagnosed and cites reports from Dr Kyat, cardiologist, dated 2 October 2014[10] and Ms Kim, physiotherapist, dated 14 January 2015[11] to this effect.
[10] Tribunal documents, p 106.
[11] Tribunal documents, p 109.
Mrs Covenden, in her own submission to the Tier 1 hearing by this Tribunal, agreed with this conclusion.[12]
[12] Tribunal documents, p 10.
As the condition is not fully diagnosed, it cannot be assigned an impairment rating.
SUMMARY AND CONCLUSION
This leads to the conclusion that, at the time when the DSP was refused in the first instance and taking into account the binding limitations of the qualifying period, Mrs Covenden had an impairment rating of ten points, which is well below the threshold of 20 points required by the legislation.
The issue of section 94(1)(c) of the Social Security Act, being the “Continuing inability to work” requirements was raised by the Secretary in the Statement of Facts, Issues and Contentions and commented upon briefly by Mrs Covenden in her final submission to the Tribunal. In those comments she said that she was unaware of any such requirements at the time she lodged her original application. In addition she stated that at that time she was “in no fit condition” to do any work, regardless of what any Job Capacity Assessment stated.[13]
[13] Tribunal documents, pp 150-159 and 170-181
Given the Tribunal’s conclusions about Mrs Covenden’s non-qualification for the DSP in terms of Impairment Table points, and the absence of any claim that she might meet a 20 point score across one or more of the impairment tables, it is not necessary to interrogate the requirements of the Social Security (Active Participation for Disability Support Pension) Determination 2014 and so I will not do so.
The Tribunal has no doubt that since August 2016 Mrs Covenden’s health has deteriorated and that her multiple conditions are such that she suffers significant impairments compromising her ability to live and enjoy life to the fullest.
Her current condition may, and the Tribunal is in no positon to determine, now render her eligible for the DSP pending an assessment on the basis of a new application which she is free to make.
Mrs Covenden is fortunate to have the love and support of her family members and the Tribunal thanks them for their participation in these proceedings, despite their undoubted regret and disappointment at what must be the inevitable outcome.
On the basis that the evidence clearly establishes that Mrs Covenden fails to meet the 20 point requirement on the Impairment Tables the Tribunal affirms the First Tier Review decision.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member.
............................[sgd]............................................
Associate
Dated: 2 March 2018
Date of hearing: 23 February 2018 Advocate for the Applicant: Ms K Covenden and Ms L Spicer Solicitors for the Respondent: Ms E Ulrick, Department of Human Services
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