RWYM and Secretary, Department of Social Services
[2013] AATA 776
[2013] AATA 776
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4748
Re
RWYM
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 1 November 2013 Place Brisbane The decision under review is affirmed.
............................[Sgd]............................................
Senior Member Bernard J McCabe
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowance – Disability support pension – Whether applicant’s impairment rating is of 20 points or more – Decision affirmed
LEGISLATION
Social Security Act 1999 (Cth) s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Bernard J McCabe
1 November 2013
The applicant was a long-term recipient of the disability support pension (“the DSP”) until it was cancelled on 12 October 2012. The cancellation decision followed a medical review. The review led the respondent to conclude the applicant was unable to satisfy the criteria in s 94 of the Social Security Act 1991 (Cth) (“the Act”). The decision was affirmed by an authorised review officer and the Social Security Appeals Tribunal.
The applicant has now asked this Tribunal to reconsider her eligibility for DSP.
In the course of my review, I am required to focus on the applicant’s condition and circumstances at the time of the cancellation decision in October 2012. Her current condition and circumstances are not the issue. It is often the case that a person’s condition has worsened since the date on which the assessment was made, especially if there has been a lengthy delay between the decision and the Tribunal’s review. These proceedings were brought on quickly because the applicant is experiencing financial hardship, but the point must still be made: for the purposes of these proceedings, I am focused on how the applicant was in October 2012, not how she is now.
The so-called medical criteria which govern eligibility for DSP in a case like this are set out in s 94 of the Act. Subsection 94(1), insofar as it is relevant, reads:
(1) A person is qualified for disability support pension if:
(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) one of the following applies:
(i) the person has a continuing inability to work; …
I will deal with each of the requirements imposed by that section in turn. Firstly, the applicant has a number of physical and psychiatric impairments. I have been provided evidence relating to her psychiatric condition (which has been characterised as anxiety and/or depression) and several physical conditions, including a lower back impairment, a knee condition and chronic cholelithiasis and cholecystitis (which is effectively a gall bladder condition).
The next requirement is that the applicant’s condition(s) must attract at least 20 points under the Impairment Tables. A copy of the Impairment Tables is found in exhibit one at pp 58-83. Section 6 of the Impairment Tables details how the tables are to be applied. Subsection 6(3) provides a person may only be assigned an impairment rating in respect of a condition if the condition is permanent and is likely to persist for at least two years. Subsection 6(4) explains a condition may only be regarded as permanent for the purposes of the Impairment Tables if it has been:
(a)Fully diagnosed by an appropriately qualified medical practitioner (ie, a psychiatrist or a clinical psychologist);
(b)Fully treated (which requires consideration of the treatment or rehabilitation that has occurred in relation to the condition and whether treatment is continuing or planned in the next two years: see subs 6(5)); and
(c)Fully stabilised (which means, relevantly, the person has undertaken reasonable treatment without the prospect of significant improvement to the point where the person could undertake work in the next two years: see subs 6(6)).
The respondent commissioned a job capacity assessment which concluded the applicant attracted an impairment rating of 10 points in relation to her back condition in October 2012 (although the respondent now says a lower impairment rating was probably justified) and 5 points in relation to her knee condition. The respondent says the psychiatric and gall bladder conditions do not attract a rating.
I am satisfied the applicant does not attract 5 points under the table relating to knees.
She gave evidence at the hearing that she did not require the assistance of a walking stick in October 2012 and she was able to stand for up to an hour. If I accept that evidence – and I have no reason to doubt it – it means she was not eligible to receive 5 points under table 3 of the Impairment Tables, which deals with lower limb function. The correct rating is therefore 0 points in relation to her knee condition as at October 2012.
The applicant gave evidence about her ongoing back problems. She also arranged for oral evidence from her physiotherapist who started seeing her in April 2013.
The physiotherapist suggested she thought the applicant was currently unable to work at all, although she explained that was also partly because the applicant lacked skills.
That evidence does not help me decide the issue before me in any event, which deals with the applicant’s condition in October 2012, about six months before the physiotherapist began to see the applicant. I note the physiotherapist mentioned in her evidence that the applicant had experienced a fall not long before the applicant presented for treatment in April 2013. The physiotherapist said the applicant’s back condition (and perhaps her knee condition) became much worse as a result of that fall. If that is so, the assessment of the applicant’s condition in October 2012 becomes even harder.
Mr Burgess, who represented the Secretary at the hearing, suggested the applicant was not entitled to 10 points although he conceded the Centrelink job capacity assessor had awarded 10 points. I agree there are some difficulties with the way in which the job capacity assessor appears to have gone about the assessment and applied the Impairment Tables, but I would be reluctant to disturb that conclusion in these circumstances without the opportunity to question the assessor. I am inclined to accept that conclusion for present purposes.
The applicant’s gall bladder condition has been diagnosed but it has not been fully treated and fully stabilised within the meaning of the Impairment Tables. The applicant is on a waiting list for surgery, the waiting list was expected to be shorter than two years when the decision to cancel the DSP was made: there is no reason to doubt that this is still the case. There is also no reason to doubt the surgery is reasonable treatment. It is not appropriate to assign an impairment rating in relation to the gall bladder condition in those circumstances.
That leaves only the applicant’s psychiatric condition. The respondent points out the medical documentation offered up by the applicant at the time of the review in 2012 did not refer to a psychiatric condition, although it is accepted she suffered from psychiatric problems in the past. (Her original application in 2001 included a rating of 10 points under the Impairment Tables that were in force at the time in relation to anxiety disorder.) The applicant says she took medication for several years after 2001 but did not seek treatment thereafter until 2012. A diagnosis referring to depression was made by the applicant’s general practitioner in 2012 after the cancellation decision. The respondent points out table 5 of the Impairment Tables requires that the diagnosis must be made by a psychiatrist or by a medical practitioner with the advice of a clinical psychologist (exhibit one at p 75). The applicant did not start seeing a clinical psychologist (she is currently seeing two) until after the cancellation of the DSP in October 2012. The treating doctor’s report completed by the general practitioner does not appear to have been completed with reference to the advice of a psychologist.
Even if I accept the applicant’s condition was diagnosed in October 2012, I must still be persuaded the applicant’s condition is fully treated and stabilised. I do not think the evidence admits of that conclusion. The applicant did not commence taking medication until she began to see the psychologist in late 2012 (the medication having been prescribed by her general practitioner). It cannot be said the applicant was fully treated in October 2012 when the cancellation decision was made.
It is not appropriate to assign an impairment rating under table 5 of the Impairment Tables, which deals with mental health function. That means the applicant was entitled at most to 10 impairment points in October 2012. That is not enough to satisfy the criteria in s 94 of the Act. She was therefore not qualified to receive the DSP at that point.
For the sake of completeness, I note the Secretary conceded the applicant had a continuing inability to work under the rules applicable to a claimant in her position.
I accept that is so.
CONCLUSION
The applicant says her health is getting worse. She also referred to the difficulties of getting a job at her age (she is 61) in circumstances where she does not have formal qualifications. She says she needs the DSP because she is in financial difficulty and cannot afford to live.
It is possible the applicant’s condition has reached the point where a fresh application might have a different outcome, but that is not a question for me in these proceedings. The current application cannot succeed. The decision under review must be affirmed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe ............................[Sgd]............................................
Associate
Dated 1 November 2013
Date of hearing 28 October 2013 Applicant In person Advocate for the Respondent Mr Ashley Burgess, Departmental Advocate
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