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

Rees and Secretary, Department of Social Services (Social services second review) [2017] AATA 1517 (19 September 2017)
Division:GENERAL DIVISION
File Number: 2017/0043
Re:Carolyn Rees
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member A C Cotter
Date:19 September 2017
Place:Brisbane

The Tribunal affirms the decision under review.
.................................[Sgd].......................................
Senior Member A C Cotter
CATCHWORDS
SOCIAL SECUITY – Disability Support Pension – cancellation – requirement that the person’s impairment is of 20 points or more under the Impairment Tables not met – where lower limb condition – mental health condition – thyroid condition – spinal condition – no severe impairment – 10 impairment points – requirement that the person has a continuing inability to work met – decision under review affirmed
LEGISLATION
Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth) Schedule 2, part 1, s 13
Social Security Act 1991 (Cth) ss 27, 94
Social Security (Administration) Act 1999 (Cth) ss 63, 80
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 5, 6, 8
CASES
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Natalizi and Secretary, Department of Social Services [2014] AATA 803
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Summers and Secretary, Department of Social Security [2014] AATA 165
REASONS FOR DECISION
Senior Member A C Cotter
19 September 2017
INTRODUCTION

Ms Carolyn Rees was granted Disability Support Pension from May 2000.
Following a review by the Department of Human Services, it was decided in June 2016 that she no longer qualified for that pension because she did not have the required number of impairment points under the Impairment Tables. Her pension was cancelled accordingly.
Ms Rees unsuccessfully sought reviews of that decision. She now seeks a review by the General Division of the Tribunal.
For the reasons outlined below, I believe that the decision to cancel her pension was correct, and should be affirmed.
BACKGROUND
As I mentioned earlier, Ms Rees had been receiving Disability Support Pension (“DSP”) since the year 2000.[1]
[1]
On 1 April 2016, the Department of Human Services (“Department”) issued a “Medical Report Disability Support Pension Review” form to be completed by Ms Rees and her doctor.[2]
[2] Exhibit 1, T Documents, T 41, page 229.
In her section of the form, Ms Rees listed her disabilities, illnesses and diseases as fracture to her tibia and fibula, and thyroid disease.[3] Her general practitioner,

Dr Edward Guirguis, described the condition having the most significant impact on Ms Rees’ ability to function as “right knee pain”.[4]
[3] Exhibit 1, T Documents, T 41, page 230, Ms Rees’ Medical Report Disability Support Pension Review form dated 9 June 2016.
[4]
Ms Rees attended a face to face assessment with a Job Capacity Assessor (“JCA”), a physiotherapist, on 30 May 2016. The JCA considered the knee condition to be fully diagnosed, treated and stabilised and recommended that 10 impairment points be assigned in respect of it.[5] No points were recommended in respect of the thyroid condition as it was considered fully diagnosed but not fully treated.[6] Nor were any points assigned in respect of a mental health condition (depression), which was thought to be not fully diagnosed, treated and stabilised.[7] The JCA assessed Ms Rees’ baseline work capacity at between eight and 14 hours per week. With intervention, her capacity for work within two years was also assessed at between eight and 14 hours per week.[8]
[5]
[6] Ibid, page 223.
[7] Ibid, page 223.
[8] Ibid, pages 226-227.
On 14 June 2016, Ms Rees‘ DSP was cancelled on the ground that she did not have an impairment rating of 20 points or more under the Impairment Tables.[9]
[9] Exhibit 1, T Documents, T 42, pages 233-234, letter from Department to Ms Rees dated 14 June 2016.
Ms Rees unsuccessfully sought a review of that decision by an Authorised Review Officer (“ARO”), who affirmed the original decision.[10] An application to the Social Services & Child Support Division (“SSCSD”) of this Tribunal was also unsuccessful, with the ARO’s decision being affirmed.[11]
[10] Exhibit 1, T Documents, T 46, pages 239-244, letter (and notes) from Authorised Review Officer to Ms Rees dated 17 August 2016.
[11] Exhibit 1, T Documents, T 3, pages 4-9, Social Services & Child Support Division decision and reasons for decision dated 6 December 2016.
Ms Rees now seeks a review of the SSCSD’s decision by the General Division of the Tribunal.
THE LEGISLATIVE FRAMEWORK
Under s 80(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for that payment, the Secretary is to determine that the payment be cancelled. The question of whether the person is qualified or not is to be determined as at the day on which the cancellation occurs.[12] In this case, that is 14 June 2016. It is irrelevant that a person may later again fulfil the requirements for a grant.[13]
[12] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
[13] See Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 at 673-674.
Section 94 of the Social Security Act 1991 (Cth) (“SS Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the person has a physical, intellectual or psychiatric impairment; that the person’s impairment is of 20 points or more under the Impairment Tables; and that the person has a continuing inability to work.
The documents sent to Ms Rees relating to the review of her eligibility for DSP constituted a notice under s 63(2) of the Administration Act.[14] Under s 27(3) of the SS Act, if a person is receiving DSP and receives a notice under s 63(2) of the Administration Act, the Secretary, in assessing their qualification for that pension, must apply the Impairment Tables in force at the time the notice is given.[15] At that time (1 April 2016), the Impairment Tables in force were those made under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), whereas Ms Rees’ original grant of DSP had been assessed under different requirements.
[14]
[15] See also Natalizi and Secretary, Department of Social Services [2014] AATA 803 at [3].
The Impairment Tables under the Determination are function based, rather than diagnostic based,[16] and describe functional activities, abilities, symptoms and limitations.[17] They are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.[18]
[16] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2)(b).
[17] Ibid, s 5(2)(c).
[18] Ibid, s 5(2)(d).
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.[19] 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 be more likely than not, in light of available evidence, to persist for more than two years.[20]
[19] Ibid, s 6(3).
[20] See ibid, s 6(4).
The following factors are to be considered in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated: 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.[21]
[21] See ibid, s 6(5).
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 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.[22]
[22] Ibid, s 6(6).
“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.[23]
[23] See ibid, s 6(7).
The presence of a diagnosed condition will not necessarily result in a rating being assigned under the Impairment Tables. If an impairment has no functional impact, then no rating will be assigned.[24]
[24] See ibid, s 6(8).
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.[25]
[25] See ibid, s 8(1).
ISSUES FOR THE TRIBUNAL
The central issue for my determination is whether, at the date of cancellation

(14 June 2016), Ms Rees was qualified for DSP. That in turn leads to a consideration of each of the requirements in s 94(1) of the SS Act.
The Secretary accepts that, at the date of cancellation, Ms Rees had impairments, and so satisfied the first of the requirements, in paragraph (a) of s 94(1) of the SS Act.[26] Having regard to the material before me, I believe that is an appropriate concession to make.
[26] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions dated 12 July 2017, [5.1].
It is also accepted by the Secretary that Ms Rees has a continuing inability to work for the purpose of s 94(1)(c) of the SS Act.[27] Again, I consider that concession to be reasonable and appropriate, having regard to the relevant requirement which existed at the time of the original grant,[28] the terms of the relevant amending legislation which preserved that requirement for pre-1 July 2006 recipients like Ms Rees[29], and the JCA’s most recent assessment of work capacity.[30] I therefore accept that Ms Rees would satisfy the third of the requirements for DSP, relating to continuing inability to work.
[27] Ibid, [7.1].
[28] Prior to 1 July 2006, “work” was defined in s 94(5) of the Social Security Act 1991 (Cth) to mean “work that
is for at least 30 hours per week on wages that are at or above the relevant minimum wage and that exists in
Australia, even if not within the person’s locally accessible labour market”.
[29] See Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth), Schedule 2, part 1, s 13.
[30] See Exhibit 1, T Documents, T 40, pages 226-227, Job Capacity Assessment Report dated 31 May 2016.
Consequently, the only issue that remains for my consideration is whether, at the relevant time, Ms Rees’ impairments attracted a total of 20 points or more under the Impairment Tables made under the Determination. In turn, that raises the question of whether each of her conditions were, at the date of cancellation, fully diagnosed, treated and stabilised, as those terms are understood under the rules for applying the Impairment Tables.
CONSIDERATION
Having identified the outstanding issues, I turn to consider what, if any, impairment points should be assigned in respect of each of the conditions from which Ms Rees suffers.
Lower limb condition
It is not in dispute that this condition was fully diagnosed, treated and stabilised at the date of cancellation.[31] It can therefore attract impairment points under the Impairment Tables.
[31] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions dated 12 July 2017, [6.3].
The relevant table to assess the condition is Table 3 (Lower Limb Function).
The Secretary contends that, having regard to that table, Ms Rees’ condition had, as at the cancellation date, a moderate functional impact on her activities using lower limbs. As such, it was said to attract 10 impairment points under Table 3.[32]
[32] Ibid, [6.4].
In support of that contention, the Secretary relied on the report of Ms Rees’ doctor which was submitted to the SSCSD, as well as Ms Rees’ self-reports to the JCA and the SSCSD.
In her undated report submitted to the SSCSD hearing on 6 December 2016,

Dr Louise Bleier expressed the view that Ms Rees’ lower limb condition attracted

10 impairment points under Table 3. She described the symptoms as: being unable to drive; experiencing pain when bearing weight and after walking for 15 minutes; and using an electric wheelchair at shopping centres. She noted Ms Rees’ knee was unstable and that she needed to lean on the left leg all the time. She was unable to sit unless leaning on the left buttock with her spine twisted.[33]
[33] Exhibit 1, T Documents, T 48, page 249, report of Dr Louise Bleier, undated.
Ms Rees told the JCA that her standing tolerance was approximately 10 to 15 minutes. She said that she was unable to squat or kneel and was reliant on an elbow crutch when her symptoms were exacerbated or she had to walk considerable distances.[34]
[34] Exhibit 1, T Documents, T 40, page 224, Job Capacity Assessment Report dated 31 May 2016.
At the SSCSD hearing on 6 December 2016, Ms Rees reported that she walks with a bad limp. She avoids stairs. If there is a ramp, she will use it, otherwise she needs help from her husband to negotiate the stairs. She said that she is able to walk to her letter box and down the street for about six house blocks before she has to stop and rest. She no longer drives because of her weak right leg. When standing, she stands on her left leg. She can sit down for 10 to 15 minutes and can stand from the sitting position unaided. She was using a single Canadian crutch at the time of cancellation. She sometimes goes to the shopping centre with her husband; she walks into the centre and walks around, but not for very long. She will only do a little amount of shopping.[35]
[35] Exhibit 1, T Documents, T 3, page 7, Social Services & Child Support Division decision and reasons for decision, dated 6 December 2016, [19] and [20].
Some of those matters were qualified, or further explained, by Ms Rees during the hearing before me. She told me that her husband drives to the shopping centre and assists her to get out of the car. She walks into the centre with his assistance and using her crutch. She walks with her husband to the centre’s information section where they can borrow a wheelchair. If there is an electric wheelchair available, she will borrow that. However, more likely they borrow a manual wheelchair which her husband pushes. As regards her ability to stand from the sitting position, Ms Rees said she does so using support, such as a chair, table or wall, or with assistance from a person.
Based on those reports of symptoms, I agree that Ms Rees at least satisfies the descriptors for 10 points under Table 3.
The question is whether there is sufficient evidence to satisfy the descriptors for 20 points under the table. That prescribes that the person requires assistance to use public transport and is unable to do any of the following: walk around a shopping centre or supermarket without assistance; walk from the carpark into a shopping centre or supermarket without assistance; stand from a sitting position without assistance. In that context, “assistance” means assistance from another person, rather than any aids or equipment the person has and usually uses.[36]
[36]Summers and Secretary, Department of Social Security [2014] AATA 165, [17] (SM Bell).
While Ms Rees gave evidence about those matters, the difficulty is that self-report alone is insufficient. Corroborating evidence is required.[37] Dr Guirguis’ report was silent on the matters referred to in the descriptor.[38] The report of Dr Bleier submitted to the SSCSD was equally unhelpful in that regard.[39]
[37] See Introduction to Table 3 (Lower Limb Function).
[38] Exhibit 1, T Documents, T 39, pages 212-221, Medical Report Disability Support Pension Review by Dr Edward Guirguis dated 9 May 2016.
[39]Exhibit 1, T Documents, T 48, page 249, report of Dr Louise Bleier, undated.
Prior to the hearing before me, Ms Rees obtained a further report from Dr Bleier, who rated her impairment as severe. The doctor noted that Ms Rees cannot go shopping without a wheelchair; cannot stand for more than 10 minutes; and walks with the aid of a walking stick.[40]
[40] Exhibit 2, medical report of Dr Louise Bleier dated 12 June 2017.
With respect to Dr Bleier, I am not persuaded by her report. I say that for the following reasons.
First, the report is not specifically referable to Ms Rees’ condition as at the date of cancellation; indeed, its tone suggests that it is reporting on her current, rather than past, condition. While that is understandable (given that Ms Rees told me that she first consulted the doctor sometime after the date of cancellation and prior to the SSCSD hearing), it also casts doubt as to relevance of the report and the weight (if any) to be attached to it.
Second, besides being inconsistent with her own earlier report and with Ms Rees’ own self-reports to the SSCSD in particular, the report fails to identify the basis on which the assessment of severe impairment is based. It makes no specific reference to Table 3 and in fact, fails to address several of the key descriptors for severe impairment (such as whether assistance is required from another person to use public transport or to stand from a sitting position).
In those circumstances, and in the absence of further corroborating evidence, I am not satisfied that there is sufficient evidence to satisfy the descriptors for 20 points under Table 3.
Consequently, I find that, at the date of cancellation, Ms Rees had 10 impairment points in respect of her lower limb condition.
Mental health condition
The Secretary contends that there is no corroborating evidence that a diagnosis for a mental health condition (depression) has ever been made by a psychiatrist or a clinical psychologist, as required by the Introduction to Table 5 (Mental Health Function). As a consequence, it is said that this condition was not fully diagnosed at the date of cancellation, such that no impairment points could be assigned in respect of it.[41]
45.
The Secretary also submits that, even if the condition were fully diagnosed, it was not fully treated and stabilised at the date of cancellation. There is no evidence, it is said, that

Ms Rees had undertaken reasonable treatment for this condition, including trialling of appropriate medication, counselling, cognitive behavioural therapy, specialist care or review or other alternative reasonable treatment.[42]
[41] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions dated 12 July 2017, [6.8].
[42] Ibid, [6.9]
The material before the Tribunal reveals that Dr Guirguis prepared a Mental Health Treatment Plan for Ms Rees in May 2016, just over a month before the date of cancellation. That plan involved a referral to a psychologist, Ms Sylvia Willing.[43] Dr Guirguis sent the referral the same day, asking Ms Willing for “an opinion and management”. It noted that Ms Rees was suffering from depression and had previously been on an antidepressant. She had stopped taking that drug because of side effects and was not keen to start medications again. Dr Guirguis thought she would benefit from cognitive behavioural therapy.[44] Ms Rees told me that she saw Ms Willing who told her that she was unable to do reports and referred her back to Dr Guirguis. She was subsequently referred by Dr Bleier to a psychologist in her practice. Ms Rees told me that following consultations with that psychologist, she is now able to cope better and that she has managed to control her depression and get back to “a very good condition”.
[43] Exhibit 1, T Documents, T 37, pages 209-210, Mental Health Treatment Plan by Dr Edward Guirguis dated 9 May 2016.
[44] Exhibit 1, T Documents, T 38, page 211, referral letter, Dr Edward Guirguis to Ms Sylvia Willing dated 9 May 2016.

I agree with, and accept, the Secretary’s submission that there is no corroborating evidence of a diagnosis of depression having been made by a psychiatrist or a clinical psychologist as required by the Introduction to Table 5. Dr Guirguis is a general practitioner; I understand that Ms Willing is a registered psychologist, but not a clinical psychologist.[45] There is no report from Ms Rees’ current psychologist. In any event, that would only relate to post-cancellation consultations and treatment, as she was referred by Dr Bleier (who likewise only commenced treating Ms Rees after the relevant date). I therefore do not consider that this condition was fully diagnosed as at the date of cancellation.
[45] See Exhibit 1, T Documents, T 3, page 9, Social Services & Child Support Division decision and reasons for decision dated 6 December 2016, [32].
Nor do I think the condition was fully treated and stabilised at that date, as would appear from the treatment Ms Rees has received and the corresponding improvement in her condition since the date of cancellation.
I therefore do not believe that the mental health condition could be considered to be fully diagnosed, treated and stabilised as at the date of cancellation. Accordingly, no impairment points can be assigned in respect of this condition.
Thyroid condition
There is no dispute that the thyroid condition was fully diagnosed at the date of cancellation.[46] In his letter of referral to Ms Willing, Dr Guirguis confirmed that Ms Rees had suffered from Graves’ Disease and had a thyroidectomy in 1995.[47]
[46] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions dated 12 July 2017, [6.15].
[47] Exhibit 1, T Documents, T 38, page 211, letter from Dr Edward Guirguis to Ms Sylvia Willing dated 9 May 2016.
However, there is doubt about whether the condition was fully treated and stabilised at the date of cancellation. At her assessment by the JCA, Ms Rees expressed concerns about the current management of the condition.[48] She explained to me at the hearing that she was still experiencing difficulties, taking a mixture of drugs for her thyroid condition (Thyroxine) and pain relief (Morphine and Pethidine). She described the situation as unstable, with the mixture of dosages being fine for a time before the dosages had to be varied again. She said that although her thyroid condition had not improved, she was feeling a lot better with the support of Dr Bleier.
[48] Exhibit 1, T Documents, T 40, page 223, Job Capacity Assessment Report dated 31 May 2016.
The problem is that, apart from the brief reference in Dr Guirguis’ referral letter to

Ms Willing, there is no corroborating evidence as to past treatment, and whether treatment is continuing or planned within the next two years. Without that, it is difficult to determine whether Ms Rees’ condition has been fully treated and stabilised.
In the absence of sufficient evidence that the condition is fully treated and stabilised, I do not consider that any impairment points can be assigned in respect of this condition. Even if they could be assigned, there is no corroborating evidence that the condition had any functional impact as at the date of cancellation.
Spinal condition
In her undated report submitted to the SSCSD hearing, Dr Bleier noted a diagnosis of osteoarthritis and scoliosis of the lumbar spine.[49] However, there is no evidence as to when that diagnosis was made, and in particular, whether it was before the date of cancellation.
[49] Exhibit 1, T Documents, T 48, page 251, medical report of Dr Louise Bleier, undated.
Nor is there any corroborating evidence as to past or continuing treatment, or treatment planned within the next two years.
In the absence of that corroborating medical evidence, it cannot be said that this condition was fully diagnosed, treated and stabilised at the date of cancellation. Therefore, no impairment points can be assigned in respect of this condition.
Summary - overall impairment points
In summary, I find that as at the date of cancellation, Ms Rees’ conditions attracted a total of 10 impairment points.
She therefore failed to satisfy the requirement in s 94(1)(b) of the SS Act that she have 20 or more impairment points under the Impairment Tables. Consequently, she was not qualified for DSP as at the date of cancellation.
CONCLUSION
I do not consider that, at the date of cancellation, Ms Rees had 20 or more impairment points under the Impairment Tables. She therefore did not qualify for DSP as at that date.
The cancellation of her DSP was correct. Accordingly, the decision under review is affirmed.
I appreciate that this decision will be disappointing and frustrating for Ms Rees. However, it should not discourage her from lodging a fresh claim in the future.

I certify that the preceding 61 (sixty - one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

...............................[Sgd].........................................
Associate
Dated: 19 September 2017

Date of hearing: 31 August 2017

Applicant: By phone

Solicitors for the Respondent: Mr Jake Kyranis
Sparke Helmore

Exhibit 1, T Documents, T 46, page 240, letter from Authorised Review Officer to Ms Rees dated
17 August 2016,

Exhibit 1, T Documents, T 39, page 214, Medical Report Disability Support Pension Review form by
Dr Edward Guirguis dated 9 May 2016.

Exhibit 1, T Documents, PT 40, pages 223-224 and 225, Job Capacity Assessment Report dated
31 May 2016.

Exhibit 1, T Documents, T 41, page 229, Medical Report – Disability Support Pension Review form dated
1 April 2016.

[2017] AATA 1517

19 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	31 August 2017
Applicant:	By phone
Solicitors for the Respondent:	Mr Jake Kyranis Sparke Helmore