Re Kirvan and Secretary, Department of Social Services
[2014] AATA 721
•4 January 2017
Smolski and Secretary, Department of Social Services (Social services second review) [2017] AATA 13 (4 January 2017)
Division
GENERAL DIVISION
File Number
2016/0040
Re
Paul Smolski
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D. J. Morris, Member
Date 4 January 2017 Place Melbourne The Tribunal affirms the decision under review.
[sgd]....................................................................
D. J. Morris, Member
SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – not qualified for DSP – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 37
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 cl 4 of Schedule 2
Secondary Materials
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011Cases
Re Kirvan and Secretary, Department of Social Services [2014] AATA 721REASONS FOR DECISION
Mr D. J. Morris, Member
4 January 2017
BACKGROUND DATES AND EVENTS
The Applicant, Mr Paul Smolski, applied for Disability Support Pension (DSP) on 22 December 2014.
The Department of Social Services (the Department) rejected Mr Smolski’s claim on 9 February 2015.
He sought a review of that decision by an Authorised Review Officer (ARO), an officer of the Department who was not involved in the original decision.
On 18 May 2015 the ARO affirmed the original decision, on the grounds that the Applicant was not medically qualified for DSP.
Mr Smolski then applied to the Social Services and Child Support Division of the Tribunal (AAT1). After a hearing, on 26 November 2015 the Tribunal affirmed the original decision.
The Applicant then lodged an application for a second-tier review in the General Division.
The hearing was held on 16 November 2016. The Applicant gave evidence and was cross-examined. Mrs Diane Smolski was present as Mr Smolski’s advocate, and she made submissions and gave evidence. The Respondent was represented by Mr James Henderson.
The Respondent submitted documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), which were admitted into evidence.
The Applicant submitted the following documents which were admitted into evidence:
·Medical letter dated 9 May 2016 from Dr Russell Buchanan to Dr Brian Stewart (Exhibit A1).
·Medical certificate dated 9 April 2016 from Dr Ferdinandus Pranadi (Exhibit A2).
·Letter from Mrs Diane Smolski lodged with the Tribunal on 20 June 2016 (Exhibit A3).
After the hearing, in compliance with a Direction, the Applicant submitted the following documents on 23 November 2016:
·Letter dated 22 November 2016 from Mrs Diane Smolski and Mr Paul Smolski (MFI-A1).
·Letter undated from Samanthah Kavanagh, MatchWorks (MFI-A2).
·Letter from Samanthah Kavanagh, MatchWorks, with handwritten annotation from Dean Crewther, site manager, dated 17 November 2016 (MFI-A3).
·Centrelink Employment Pathway Plan for Paul Smolski dated 11 October 2012 (MFI-A4).
·Centrelink Employment Pathway Plan for Paul Smolski dated 7 March 2012 (MFI‑A5).
·Official Letter of Completion dated 5 July 2013 from Lynette Bayly, Director, Student Connections at Victoria University, Melbourne (MFI-A6).
The Respondent also submitted the following document, in compliance with a Direction from the Tribunal, on 21 November 2016:
·Respondent’s Further Submissions dated 17 November 2016 and a covering letter to the Applicant of the same date (MFI-R1).
THE LAW
Qualification for DSP under the Act
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.
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 applying has –
(a)a physical, psychiatric or intellectual impairment; and
(b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and
(c)a continuing inability to work.
The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination). This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.
The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1) (c) and section 94(5) of the Act is work that is for at least 15 hours a week.
So, therefore, for a person to be qualified for DSP, the person must 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.
An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, which means the impairment is assessed to be a ‘severe’ impairment under section 94(3B). If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.
What is the relevant period for considering the claim?
The Social Security (Administration) Act 1999 (the Administration Act) 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.
Therefore, the issue before the Tribunal is: was the Applicant eligible for DSP on the date he lodged his claim (22 December 2014) or, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act, if he was not eligible on that date did Mr Smolski become eligible on a date in the thirteen week period after the day of lodging the claim, which ended on 24 March 2015? In these reasons, this period is described as the ‘relevant period’.
APPLYING THE LAW
Does the Applicant have a physical, psychiatric or intellectual impairment?
The Tribunal had before it a medical report of 18 January 2015 completed by Dr Ferdinandus Pranadi, the Applicant’s general practitioner. Dr Pranadi reported that Mr Smolski suffered from Asperger’s Syndrome, with a diagnosis date of July 2000 by Dr John Mathai, psychiatrist. Dr Pranadi also reported Chronic Fatigue Syndrome (CFS) with the diagnosis corroborated by Dr Angelos Sharobeam, general practitioner, and Dr Ian Glaspole, respiratory physician, in 2013. These were the two medical conditions that Dr Pranadi thought had the most impact on the Applicant’s functional ability. He also reported that Mr Smolski had the following other medical conditions which he felt were generally well managed and cause minimal or limited impact on his functional ability: Ehlers-Danlos Syndrome (EDS), irritable bowel syndrome (IBS), fatty liver, an anxiety condition and orthostatic intolerance.
The Respondent, in his contentions, accepted that Mr Smolski had impairment, namely Asperger’s Syndrome, and other medical conditions, and submitted that he satisfies section 94(1)(a) of the Act.
On the basis of the medical evidence before the Tribunal, I find that Mr Smolski did satisfy section 94(1)(a) of the Act in the relevant period. He did have impairment, namely Asperger’s Syndrome, CFS, EDS, IBS, fatty liver, an anxiety condition and orthostatic intolerance.
If so, what is the correct rating 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 (and the criteria are different for some assessments), the condition must be fully treated and fully stabilised, and the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Asperger’s Syndrome condition
The Tribunal had before it a number of medical reports which recorded the diagnosis of Asperger’s Syndrome, notably an assessment conducted by Dr Akinsola Akinbiyi, consultant psychiatrist, on 22 October 2014.
Dr Akinbiyi’s opinion was that the Asperger condition:
“…is going to affect Paul’s ability to hold a job and in strange situation he might decompensate.”
Dr Akinbiyi considered that the Applicant did not have any psychotic or manic symptoms and during the examination showed “fairly good insight and judgement”.
Dr Pranadi in his report dated 23 April 2015 said that this condition affected the Applicant’s ability to concentrate, handle new situations and be able to express himself physically or mentally. He considered the impact of the condition on Mr Smolski’s ability to function was likely to persist for more than 24 months and the effect is expected to remain unchanged.
This condition causes the Applicant continuing difficulty in remembering things and concentrating on the one hand, but on the other, with persistence, he managed to finish secondary school and has undertaken academic study.
The most appropriate impairment table to assess Mr Smolski’s Asperger Syndrome seems to me to be Table 7 – Brain Function. On the basis of the evidence of the Applicant and his mother, Mrs Smolski, I find there is a moderate functional impact on Mr Smolski. He has difficulties with concentration and memory tasks and planning. I do not consider that there is a severe functional impact because, militating against assigning higher ratings on these Descriptors is the fact that Mr Smolski gave articulate and cogent evidence at the hearing about his medical history and the impact on his daily life, although he did find difficulty in recalling a number of past events.
The Tribunal finds that 10 points should be allocated for this condition.
Chronic Fatigue Syndrome and Ehlers-Danlos Syndrome
Mr Smolski’s CFS was the second condition recorded by Dr Pranadi. The Respondent submitted that the CFS condition was not fully treated or fully stabilised at the time of claim as the Applicant did not see Dr Russell Buchanan until May 2016, well after the relevant period.
Mrs Smolski gave evidence that the Applicant saw Dr Buchanan in relation to his EDS, not his CFS condition and that the specialist Mr Smolski saw in relation to his CFS condition was Dr O’Callaghan, consultant physician.
In examining Dr Buchanan’s medical letter of 9 May 2016 (Exhibit A1), it is clear that Dr Buchanan ‘rates’ Mr Smolski’s health conditions in the following order:
1. Joint hypermobility
2. Asperger’s syndrome
3. Fibromyalgia/chronic fatigue
He records that the Applicant had a bout of Epstein-Barr virus “2 or three years ago” and hepatitis and some other conditions connected with intense fatigue. Dr Buchanan recommends that Mr Smolski see a specialist sleep physician and he:
“will almost certainly need the use of blue light therapy. I have spoken with sleep physicians at The Austin who are willing to try, and we see what happens.’
Dr Buchanan, however, concentrates on the condition he views as the primary condition for Mr Smolski, his hypermobility issue.
Having carefully considered Dr Buchanan’s letter, earlier correspondence from Dr O’Callaghan, the submissions from the Respondent and the evidence from Mrs Smolski and the Applicant, I find that with respect AAT1 did err in concluding that because the Applicant was still waiting to see Dr Buchanan in the relevant period, that contributes to the conclusion that his CFS is not fully treated. I conclude that the principle reason Mr Smolski was consulting with Dr Buchanan, whose particular expertise is in rheumatology, was because of his EDS, although Dr Buchanan did summarise a variety of other past and present medical conditions applicable to Mr Smolski.
Dr Albert Leung, a physician with specialist expertise in rheumatology, reviewed Mr Smolski in February 2015 in relation to his CFS, noting it came about following a bout of glandular fever in April 2013, and recommended to Dr Sufian Habib at Altona Superclinic that he should see Professor Michael Oldmeadow at the Alfred Hospital and that he should have a review by a dietician for a FODMAPP (sic) diet. A FODMAP diet is a special diet developed for people with IBS.
In his evidence, the Respondent asked Mr Smolski why the suggestion of seeing Professor Oldmeadow was not pursued. Mr Smolski said he had no memory of that suggestion. Mrs Smolski said that they had made inquiries about blue light therapy but that was not available.
On balance, given the history of the Applicant’s CFS dating back to April 2013 and the various attempts to improve his situation, and the fact that to a certain extent his suite of medical conditions do overlap, especially the symptoms of CFS and EDS, the Tribunal concludes that Mr Smolski’s CFS and EDS conditions do combine to satisfy the definition of a ‘permanent’ condition affecting the Applicant’s functional ability capable of assessment under the Impairment Tables in the relevant period. As I have said above, Dr Pranadi listed the EDS condition as in his opinion causing ‘minimal’ functional impact, unlike the CFS, but I think it is reasonable, and consistent with Rule 5 of the Determination, to consider the effect of these conditions together in terms of functional impact; the tables not based principally on diagnosis (although there are some specific provisions about diagnosis), they are based on assessing functional ability.
There was a sparseness of oral evidence at this hearing on the functional effects of the CFS; Mr Smolski did not give particular evidence about it, concentrating on his contention that he was seeing Dr Buchanan in relation to his EDS.
It is clear to the Tribunal that EDS is a permanent condition, without a known cure. It is also clear from the medical evidence that many of the effects of the EDS on Mr Smolski have been considered by his medical advisers to be linked to his CFS and his earlier glandular fever.
As the purpose of the impairment tables is to consider a person’s impairment and the effect on the person’s daily activity, the Tribunal has decided to assess the general functional impact of these two conditions together under Table 1 – Functions Requiring Physical Exertion and Stamina.
Dr Sharobeam in his medical letter to Dr Pranadi dated 24 April 2014 referred to various symptoms of lethargy, drowsiness and daytime somnolence. The Applicant told Dr Sharobeam that he can drop off to sleep instantly without warning. Mrs Smolski told Dr Sharobeam that this can even occur in the middle of a conversation.
The Tribunal finds that the requirements in the Descriptors are met for the allocation of 10 impairment points under Table 1. Mr Smolski experiences frequent symptoms that affect his daily life, and have affected him daily since 2013, in spite of a variety of medical interventions and courses of treatment. He has difficulty in performing day to day household tasks owing to his chronic tiredness; however, he can perform certain sedentary tasks which do not require significant exertion, so an allocation of 20 impairment points under this table is not warranted.
Other conditions
Putting aside the Applicant’s EDS condition, which has been considered above, Dr Pranadi concluded in his medical assessment in connection with the DSP claim that Mr Smolski’s other medical conditions of fatty liver, IBS and anxiety and orthostatic intolerance did not have a significant functional impact on his daily life. This conclusion was not disputed in evidence and was supported by the Respondent. In evidence, Mr Smolski did not dispute that these conditions were generally well managed and said he has been recommended a dietary regimen to assist with his fatty liver.
The Tribunal concludes, applying Rule 11(5) in the Determination, and separating out the EDS condition, that a zero rating must be assigned to these other conditions.
The Tribunal therefore finds that the Applicant is correctly allocated 20 impairment points, 10 points under Table 7 and 10 points under Table 1. Mr Smolski therefore satisfies section 94(1)(b) in the relevant period.
However, given the Applicant has not been allocated 20 points under a single impairment table in satisfaction with section 94(3B), he does not have ‘severe impairment’. It is necessary, therefore, to consider whether he satisfied the provisions in the Act relating to a continuing inability to work.
Program of Support
A person has a ‘continuing inability to work’ if the Secretary of the Department is satisfied that he or she has participated in a program of support and their impairment is of itself sufficient to prevent the person from doing any work independent of a program of support, or undertaking a training activity, within the next 2 years.
The Respondent submitted that in the three year period immediately prior to lodging the DSP claim, Mr Smolski had spent ‘some 13 months’ participating in activities that satisfy the requirements of a program of support.
Prior to the hearing, the Applicant provided an undated an unsigned letter from MatchWorks, an employment services provider, to the Department which stated:
Since working with Paul it does seem unlikely that we would be able to assist him with gaining suitable ongoing employment, due to his health barriers.
The Tribunal directed that better information be obtained, if possible, from MatchWorks. Mr Dean Crewther, site manager, provided an annotated copy of a letter stating that the earlier letter had been created and sent on 11 August 2015 from MatchWorks Werribee branch (MFI-A3).
The Tribunal also had before it two 2012 Employment Pathway Plans relating to the Applicant’s engagement with Wesley Employment Services (MFI-A4 and MFI-A5).
The Tribunal also received from the Applicant evidence from Victoria University that he had successfully completed the qualification of Certificate IV in Interactive Digital Media and would graduate in 2013.
The Tribunal notes that this qualification is included in the Employment Pathway Plans. The Tribunal directed the Respondent to make submissions on his position on this tertiary study and whether the time spent undertaking it can be counted towards satisfying the Program of Support requirements.
When considering what constitutes active participation in a program of support, the Tribunal has regard to section 94(3C) of the Act which provides that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of that section. Section 94(5) of the Act provides that a program of support means a program that is designed to assist persons to prepare for, find or maintain work; and either (i) is funded (wholly or partly) by the Commonwealth; or (ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
The Minister has made a legislative instrument under section 94(3C) of the Act and it is called the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (the PoS Determination). Part 3 of the PoS Determination requires the Secretary, in considering whether a person has actively participated in a program of support for the purposes of section 94(2)(aa) of the Act to take into account certain specific considerations. Relevantly in this case, the program of support must have been provided by a designated provider and must have been specifically tailored to address the person’s level of impairment, individual needs and barriers to employment.
Mr Smolski submitted that the time he spent studying for his Certificate IV in Interactive Digital Media should be taken into account in calculating whether he had satisfied the program of support provisions in the Act.
The difficulty for the Applicant is that Victoria University is not a designated provider listed in Part 1 of the PoS Determination and the University is not funded, wholly or partly, by the Commonwealth for the purposes of providing programs of support designed to assist people to prepare for, find, or maintain work. The Respondent submitted that the Certificate IV completed by Mr Smolski is a mainstream course of general education and it was not specifically tailored to address the Applicant’s level of impairment, individual needs and barriers to employment.
In ReKirvan and Secretary, Department of Social Services [2014] AATA 721 at [26]-[28], Deputy President Bean found that a TAFE Certificate III in Property Services did not constitute a program of support. Relevantly, she said:
However, as I have indicated previously, the second criterion is that the program was “specifically tailored to address the person’s level of impairment, individual needs and barriers to employment” and the third criterion is that the program “provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment (including self-employment)”.
Although I have carefully considered this question, I am not satisfied that the Property Services course undertaken by Ms Kirvan satisfied either of those requirements. Ms Kirvan freely acknowledged in her evidence that the Property Services course she undertook was a general course offered by TAFE and was not specifically tailored to her needs or circumstances. Accordingly, there is simply no evidence before me which would allow me to conclude that this course met the criteria specified at subs 6(b) and (c) of the Guidelines.
It follows that the course undertaken by Ms Kirvan satisfies only two of the four criteria which the Tribunal is required to have regard to in deciding whether she has “actively participated in a program of support” for the purposes of subs 94(2)(aa) of the Act, and a proper application of the Guidelines therefore militates heavily against a conclusion that Ms Kirvan has met the requirements of subs 94(2)(aa). In these circumstances, I have concluded that I am not satisfied that Ms Kirvan has actively participated in a program of support for the purposes of subs 94(2)(aa) of the Act in the context of her claim for DSP lodged in May 2013.
While the course undertaken by Mr Smolski at Victoria University was cited in his Employment Pathway Plan, the Tribunal did not have evidence before it that this course was specifically tailored to assist him to find work, nor that it provided vocational, rehabilitation or employment services, in terms of the language in Part 3 of the Determination. It is to his credit with his health challenges that he has completed this course, but I cannot be satisfied that it is a course that can be taken into account in terms of the PoS Determination. The time spent undertaking it cannot therefore contribute to completion of the program of support in satisfaction of the qualifications for DSP under the Act.
Section 94(1) is a conjunctive subsection of the Act – each part of it must be satisfied for a person to be qualified for DSP. The disappointing outcome for the Applicant is that his claim for DSP does not succeed. As he did not satisfy each part of the subsection in the relevant period, the original decision was correct. Mr Smolski was not qualified for DSP at the relevant period.
The Tribunal has no doubt that the Applicant has very significant health challenges, and it is to be hoped that if as MatchWorks apparently concludes that they are unable to offer him any more assistance because of his continuing health challenges that the Secretary will take this into account in any fresh application he may make for DSP.
DECISION
The Tribunal affirms the decision under review.
65. I certify that the preceding 64 (sixty‑four) paragraphs are a true copy of the reasons for the decision herein of Member D. J. Morris.
…..…...................................................
Associate
Dated 4 January 2017
Date of hearing 16 November 2016 Applicant In person Advocate for Respondent Secretary, Department of Social Services,
Mr J Henderson
Key Legal Topics
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Administrative Law
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Judicial Review
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Procedural Fairness
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