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

[2020] AATA 369

Saric and Secretary, Department of Social Services (Social services second review) [2020] AATA 369 (27 February 2020)

Division:GENERAL DIVISION

File Number(s):      2018/7737

Re:Jadranka Saric

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I Fletcher

Date:27 February 2020

Place:Perth

The decision under review is affirmed.

............................[sgd]............................................

Member I Fletcher

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification period – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s conditions attract 20 points under the impairment tables – reviewable decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(2)(a), 94(2)(aa), 94(3)(a), 94(3)(b), 94(5)
Social Security (Administration) Act 1999 (Cth) – Sch 2 part 2 cl 4(1)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations
(2007) FCA 404
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606

SECONDARY MATERIALS

Guides to Social Policy Law: Social Security Guide, Guidelines to the Tables for the Assessment of Work–related Impairment for Disability Support Pension, Department of Social Services, version 1.261 – s 3.6.3.05
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Part 2; Tables 4, 5; rr 6(1), 6(3), 6(4), 6(5), 6(6)

REASONS FOR DECISION

Member I Fletcher

27 February 2020

INTRODUCTION

Decision under review

1. A decision made by the Administrative Appeals Tribunal (the Tribunal), Social Services and Child Support Division (the AAT1) on 10 December 2018 affirming a decision to reject a claim for disability support pension (DSP) lodged on 30 December 2016 by Ms Saric (the Applicant).

   Issues

2. The issue to be decided in this matter is whether the Applicant was qualified for DSP at the date of her claim, 30 December 2016, or within 13 weeks thereafter, namely 31 March 2017. This requires consideration of whether the requirements set out in s 94 of the Social Security Act 1991 (Cth) (the Act) are met; in particular, whether the Applicant has:

   (a)a physical, intellectual or psychiatric condition(s); and

   (b)condition(s) that are fully diagnosed, treated and stabilised that attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and

   (c)a continuing inability to work (CITW).

   BACKGROUND

3. On 30 December 2016 the Applicant lodged a claim for DSP with the Department of Human Services (Centrelink) (T13/184 - 213).The Applicant was referred for a job capacity assessment (JCA), and on 7 February 2017, her capacity to work was assessed (T14/214-222). The JCA made the following recommendations in respect of the Applicant's conditions and work capacity (T14/214 - 222):

   (a)the Applicant's lumbar spine condition was fully diagnosed, treated and stabilised (FDTS), and the impairment arising from the condition rated 5 points under Table 4 of the Impairment Tables;

   (b)the Applicant's left knee condition was fully diagnosed, but not fully treated or stabilised;

   (c)the Applicant's depression was not fully diagnosed, treated or stabilised; and

   (d)the Applicant's baseline and future work capacity within two years with intervention was 8-14 and 15-22 hours per week respectively.

4. O

   n 2 April 2017, the Applicant’s claim for DSP was rejected on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables

   
   

   (T15/223 -224).

5. On 24 July 2017, the Applicant requested a review of the decision.  On 31 July 2018, an Authorised Review Officer (ARO) affirmed the decision to reject the Applicant’s claim for DSP (T26/288), and provided further medical evidence in support of her application.

6. On 26 June 2018, the Applicant attended a face to face assessment with a Job Capacity Assessor who produced a report agreeing with the previous recommendations of the previous JCA (T20/234-243).

7. On 31 July 2018, the ARO affirmed the decision under review (T21/244-249).

8. On 31 August 2018, the Applicant applied to the AAT1 for an independent review of Centrelink's decision.

9. The AAT1 considered the matter and on 10 December 2018 and affirmed the decision under review by the ARO.

10. The Applicant subsequently applied to the General Division of the Administrative Appeals Tribunal (the AAT2) on 19 December 2018 for a review of the decision by AAT1

    
    

    (T1/1-10).

11. On 6 February 2020, the Tribunal conducted a hearing at which the Applicant gave evidence via telephone. The Applicant was accompanied by Mr Bojan Saric, her son and representative who also participated by telephone. The Tribunal was assisted by a Croatian interpreter. 

    MATERIALS BEFORE THE TRIBUNAL

12. At the hearing, the Tribunal accepted the following documents into evidence;

    (a)a copy of submission, dated 17 June 2019 (Exhibit A1);

    (b)a copy of submission, dated 10 June 2019  (Exhibit A2);

    (c)a copy of a letter to Dr Max Prnich, dated 7 June 2019 (Exhibit A3);

    (d)

    a copy of the Respondent’s Statement of Facts, Issues and Contentions, dated

    
    

    5 August 2019, including (Exhibit R1)

    (e)a copy of Program of Support calculations, dated 22 May 2019 (Exhibit R2);

    (f)

    a copy of Government-contracted Doctor Disability Medical Assessment, dated

    
    

    21 October, 2019 (Exhibit R3);

    (g)

    a copy of the Job Capacity Assessment Report, dated 2 October 2019

    
    

    (Exhibit R4).

    RELEVANT LEGISLATION

13. The relevant legislation is contained in:

    (a)Social Security Act 1991 (Cth);

    (b)Social Security (Administration) Act 1999 (Cth) (the Administration Act);

    (c)the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth); and

    (d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).

    CONSIDERATION

    The qualification period

14. The Applicant lodged her claim for DSP on 30 December 2016.

15. Schedule 2, Part 2, Clause 4 of the Administration Act provides:

    (1) 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.

16. It follows that the Applicant's claim for DSP must be assessed based on her medical conditions as at the date of claim or within 13 weeks of that time (the qualification period) (See Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 (17 August 2009) at [7] to [8]).

17. The Respondent contended that the qualification period is 30 December 2016 to 31 March 2017.

18. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen stated at [34]:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

    (Emphasis added.)

19. Bobera was cited with approval in the case of Fanning and Secretary, Department of Social Services [2014] AATA 447, where Deputy President Handley made the following relevant observations:

    31. In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an Applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referrable to the Applicant's condition during the qualification period.

    32. This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 Gyles J [Harris] stated at [1] that as an Applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    33. The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (Emphasis removed). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the qualification period is not directly relevant to the Tribunal’s decision.

20. In Gallacher and Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle (as discussed in Fanning and Harris above) that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period.

21. The Respondent contended that these decisions establish that a decision maker, such as the Tribunal, can only consider the Applicant's qualification for DSP within the qualification period. If the Applicant's circumstances have subsequently changed, it may be appropriate for her to lodge a fresh claim for DSP.

    Qualification for DSP

22. The qualification criteria for DSP are set out in s 94(1) of the Act, which relevantly provides as follows:

    Qualification for disability support pension

    (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; ...

23. The qualification criteria for DSP are cumulative, and if any one of the criteria is not satisfied the person will not be qualified for DSP. The Guides to Social Policy Law: Social Security Guide, Guidelines to the Tables for the Assessment of Work–related Impairment for Disability Support Pension, Department of Social Services at s 3.6.3.05 relevantly notes:

    Impairment & continuing inability to work

    The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.

    Paragraph 94(1)(a) – a physical, intellectual or psychiatric impairment

24. The Respondent accepted that, during the qualification period, the Applicant suffered from physical and psychiatric impairments such that she satisfied s 94(1)(a) of the Act.

    Paragraph 94(1)(b) – a rating of 20 points or more under the Impairment Tables

25. The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.

26. The Impairment Tables contain ‘Part 2 - Rules for applying the Impairment Tables’ which must be satisfied before an impairment rating can be assigned.

27. Paragraph 6(3) of the Rules to the Impairment Tables provides that an impairment rating can only be assigned for an impairment that arises from a condition that is permanent. Permanent is defined in paragraph 6(4) of the Impairment Tables to have a specific meaning for the purposes of paragraph 6(3). Paragraph 6(4) provides that a condition is permanent if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;

    (b)the condition has been fully treated;

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

28. Paragraph 6(5) of the Rules to the Impairment Tables provides that, in determining whether a condition is fully diagnosed and fully treated for the purposes of paragraphs 6(4)(a) and (b), the following must be considered:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

29. Paragraph 6(6) of the Rules to the Impairment Tables states that a condition is fully stabilised if either:

    (a)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)if the person has not undertaken reasonable treatment for the condition:

    (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.

30. When applying the Impairment Tables, the impairment must be assessed on the basis of what the person can, or could do. Assessment must not be made on the basis of what the person chooses to do or what others do for them (paragraph 6(1) of the Impairment Tables).

31. The existence of a diagnosed condition will not necessarily result in an impairment to which an impairment rating can be assigned under the Impairment Tables. Where a medical condition has no functional impact, no rating will be assigned (paragraph 6(8) of the Impairment Tables).

    Condition 1 - Anxiety, depressive episodes and panic disorder – Table 5 – Mental Health Function

32. The Tribunal has determined on the evidence outlined below that the Applicant's mental health condition was not fully diagnosed, treated and stabilised during the qualification period. On that basis, an impairment rating cannot be assigned.

33. In respect of the diagnosis, the Introduction to Table 5 of the Impairment Tables provides in part:

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

34. In this instance, despite its longstanding nature, the Applicant's mental health condition was not diagnosed by an appropriately qualified medical practitioner for the purposes of Table 5 until the report of Dr Kostov, psychiatrist, dated 5 July 2017 (T16/226 – 227). That is more than three months outside the qualification period. Dr Kostov did not treat the Applicant during the qualification period. His diagnostic opinion is therefore only relevant to the extent that it relates to the Applicant's condition at the time of his report. This was acknowledged by the Applicant’s representative, who stated at the Tribunal hearing that he could not understand why the Applicant’s General Practitioner had not referred the Applicant to a psychiatrist.

35. The Tribunal noted that the Applicant's condition was not fully treated or stabilised during the qualification period as there was no evidence of reasonable treatment, which would include a sustained period of psychological counselling. Whilst it is accepted that the Applicant's condition was treated on a long term basis with medication, the Tribunal was mindful of the comment of Dr Kostov that, ‘it is important that the approach is not only on a psychopharmacological level’ (T16/227). In this instance, the Applicant did not seek psychological therapy (such as cognitive behaviour therapy) until consulting Dr Kostov which was after the qualification period. At the consultation, the Applicant’s medication was changed, and on 2 November 2017, she reported to Dr Kostov a ‘significant improvement’ with the use of Lumin 40mg at night (T17/228).

36. The Applicant also saw Dr Perica, psychiatrist, on 20 August 2018 which was seventeen months after the qualification period. Dr Perica diagnosed Post Traumatic Stress Disorder (PTSD) which had become increasingly worse and was manifesting with the features of major depression, anxiety, panic attacks and social phobia (T23/251).

37. The Tribunal accepts that, during the qualification period, the Applicant's only form of treatment for the mental health condition was pharmacological, and she was yet to consult an appropriately qualified medical practitioner for the purposes of Table 5.

38. The Tribunal finds that the Applicant’s anxiety, depressive episodes and panic disorder were not fully diagnosed treated and stabilised during the qualification period. Therefore, the Tribunal finds that the Applicant’s mental health condition cannot be assigned an impairment rating according to the relevant Impairment Tables.

    Condition 2 - Lumbar Spine Pain – Disc Degeneration L4/5, L5/S1 – Table 4 – Spinal Function

39. Based on the medical evidence examined by the Tribunal it accepts that the Applicant's lumbar spine condition was fully diagnosed, treated and stabilised during the qualification period.

40. When considering the appropriate impairment rating, the Tribunal noted the findings of the JCA, ARO and AAT1, and agrees that the impairment arising from the condition is rated as 5 points under Table 4 of the Impairment Tables during the qualification period. This rating is consistent with the Applicant's self-reports to the JCA on 7 February 2017 and

    
    

    16 April 2018, which were reported as follows (T14/218; T20/235):

    Ms Saric describes mild difficulties with some daily activities. Self care is unaffected. She does not drive, however is able to access public transport and walk in the community for at least twenty minutes. She describes that she is able to undertake daily chores, breaking some down into smaller parts across the week. She does not undertake the heavier chores such as mowing the lawn, although she is able to do some light gardening, such as weeding and watering. She is able to manage a few steps or stairs with the use of a handrail.

    and

    Ms Saric advised she is capable of walking down to the park with a friend and advised of a tolerance of half an hour. She reported being able to climb a short flight of stairs. She undertakes limited travel, stating it is not necessary to travel much or far. She is able to use public transport and attended the appointment independently. She advised her doctor has recommended losing weight for its benefits on mobility. Ms Saric was observed to sit for the duration of the appointment, which extended to an hour.

    Other Conditions

1. The Tribunal notes that the Applicant's knee and right hip pain were not fully diagnosed, treated or stabilised during the qualification period. This is based on there being no evidence of reasonable treatment having been undertaken by the Applicant for these conditions prior to the qualification period, nor any evidence detailing her functional impairment (if any) or prognosis if she were to undergo reasonable treatment.

2. On that basis, an impairment rating cannot be assigned.

3. Further, the latest medical evidence documents the onset of a number of new medical conditions outside the qualification period, including: gout, pancreas divisum and diabetes (T16/227, T1/12). Any conditions which arose outside the qualification period can only be considered in the context of a new claim.

   Overall Impairment Rating

4. The Tribunal has determined that the Applicant had a total impairment rating of 5 points under the Impairment Tables during the qualification period. As this is less than 20 points, she therefore fails to satisfy s 94(1)(b) of the Act at the date of her claim.

   Continuing Inability to Work

5. As the Applicant failed to satisfy s 94(1)(b) of the Act and is ineligible for the DSP at the qualification period, the Tribunal did not address the continuing inability to work

   CONCLUSION

6. While the applicant was ineligible to receive the DSP at the qualification period,

   
   

   30 December 2016 to 31 March 2017, medical evidence has suggested a deterioration in the Applicant's functioning well after the qualification period, which is consistent with the following:

   (a)the report of Dr Perica dated 20 August 2018 that confirmed the Applicant's features of PTSD had become increasingly worse (T23/251);

   (b)the report of Dr Kostov dated 9 August 2018 that the Applicant's previously-existing anxiety had become even more pronounced (T1/14); and

   (c)the evidence of Mr Saric, the Applicant's son, at the AAT1 hearing on
   15 November 2018, and at this Tribunal hearing it had become apparent that the Applicant had become worse in the past 18 months and as a result saw Dr Perica (T2/21).

7. The Tribunal noted the fact that the Applicant made a new application for DSP which was assessed by a Government contracted doctor on 21 October 2019 (Exhibit R3), and a JCA was undertaken on 2 October 2019 (Exhibit R4). These exhibits were admitted as evidence when tabled at the Tribunal hearing. Both reports confirm that the Applicant’s condition has deteriorated since the qualification period.

   DECISION

8. The decision under review is affirmed.

I certify that the preceding 48 (forty - eight) paragraphs are a true copy of the reasons for the decision herein of Member I Fletcher

..............................[sgd]..........................................

Associate

Dated:  27 February 2020

Date(s) of hearing:	6 February 2020
Advocate for the Applicant:	Relative
Counsel for the Respondent:	Ms Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers