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

[2015] AATA 756

Scherma and Secretary, Department of Social Services (Social services second review) [2015] AATA 756 (9 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/1273
Re	Marianna Scherma
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	9 September 2015
Date of written reasons	29 September 2015
Place	Melbourne

The Tribunal sets aside the decision of the SSAT and substitutes a decision that the Applicant qualified for Disability Support Pension as of 3 September 2014.

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

Dr Damien Cremean, Senior Member

SOCIAL SECURITY — Disability support pension — Impairment Tables − severe impairment − continuing inability to work

Social Security Act 1991(Cth), sections 94(1)(b), 94(1)(c)

Social Security (Tables for the Assessment of Work-related Impairment for Disability

Support Pension) Determination 2011(Cth) (the Impairment Tables) 

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

29 September 2015

1. The Applicant seeks review of a decision by the Social Security Appeals Tribunal (SSAT) on 19 February 2015 affirming a decision of the Department of Human Services to reject her claim for Disability Support Pension (DSP) made on 3 September 2014.

2. The issue for determination is whether the Applicant qualified for DSP from 3 September 2014.

3. Section 94(1) of the Social Security Act 1991 (Cth) (the Act) sets out that DSP is payable to a person if

   (a)       the person has physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment rating 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.

4. The relevant period in this case is the 13 weeks from 3 September 2014 to 3 December 2014.

   The Respondent does not dispute that the Applicant satisfies s 94(1)(a) of the Act in suffering a number of medical conditions. These include multiple sclerosis (MS); non-insulin-dependent diabetes; cataracts; high cholesterol; GORD; and excess weight. The Applicant takes numerous medications for these conditions, many of which have side effects. She suffers vomiting spells and nausea, and takes Maxolon regularly for relief.

5. The Impairment Tables mentioned in s 94(1)(b) of the Act are in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011(Cth) (the Impairment Tables). The Respondent has conceded − though only at the hearing − that the Applicant also satisfies s 94(1)(b), with a rating of 20 Points according to the Impairment Tables.

6. The Applicant, who was self-represented, gave sworn evidence at the hearing, as did her partner Mr Keplar. The Respondent called no evidence and relied only on the T documents and other documents on file. The Applicant and her partner were questioned by Ms Zhou for the Respondent. The questioning was more in the nature of clarification of some issues. As a result, their evidence stands uncontradicted.

7. I am quite satisfied, having heard their evidence, that the Respondent’s concession as regards s 94(1)(b) was more than properly made.

8. Indeed, having heard the Respondent’s evidence, I am reasonably satisfied the Applicant qualifies for 20 points under Table 7 of the Impairment Tables and I believe that this matter could and should have been resolved earlier.

9. Table 7 of the Impairment Tables relates to Brain Function. This Table is used where a person has a permanent condition resulting in functional impairment related to neurological or cognitive function. It applies to the Applicant as her MS is a permanent condition. The Introduction to the Table specifies that self-report of symptoms alone is not sufficient and that there must be corroborating evidence of a person’s impairment, as does item 8 of Part 2 of the Tables. This requirement may, on occasion, cause difficulties for someone living on their own. But that is not the case with this Applicant.

10. Table 7 features five Descriptors, each with a points rating. A nil impairment rating is for someone suffering no functional impact resulting from a neurological or cognitive condition. A mild functional impact resulting from such a condition merits 5 impairment rating points. A moderate functional impact is given 10 points and a severe functional impact warrants 20 points. An extreme functional impact merits 30 points.

11. There is some overlap between these Descriptors, as is well known. The very nature of the subject makes it inevitable that a person can fall under more than one Descriptor in various ways. The Impairment Tables specify that if a person does fall between two impairment ratings then the lower of the two must be assigned and the higher must not be assigned unless all Descriptors for that level of impairment are satisfied. (See item 11(1)(c) of Part 2 of the Impairment Tables.)

12. The SSAT assigned the Applicant a rating of 5 impairment points to under Table 7 for the functional impact of her MS.  In other words, the SSAT considered her functional, neurological or cognitive impact to be mild. I disagree. I consider, having heard the evidence, that the functional impact of the Applicant’s MS is not mild, or even moderate, but severe. It unambiguously justifies an impairment rating of 20 points under Table 7.

13. In other words, I am satisfied that with a 20 point impairment rating, the Applicant needs frequent – at least daily − assistance and supervision and that she has severe difficulties in at least one of the items set out in paras (a) to (j).

14. During the relevant period the Applicant received daily assistance and supervision from Mr Keplar, a former officer in the U. S. Air Force. He continues to provide her with assistance and supervision, describing himself as her walking aid or stick. I interpreted this to mean that he is someone she constantly relies upon. He has helped her around the house in various ways on a daily basis for some years. Sometimes he even helps her in or out of the shower to the extent of wrapping a towel around her and conveying her to the bed.

15. Simply put, there were things she could not do around the house by herself due to reduced functionality – including reduced cognitive capacity − brought on by her MS. Showering during the relevant  period was especially exhausting for the Applicant. She could fold some clothing but could not hang clothes on the clothesline and could not do any vacuuming. I would think much of the decision-making concerning household chores has devolved upon Mr Keplar. The Applicant has no children from her former marriage to call upon for assistance. Because of his military background, Mr Keplar has brought a certain discipline to his relationship with the Applicant in planning the household chores and obligations.  They organise household bills and file them away together.  Otherwise the bills might be forgotten or overlooked and not paid.

16. The Applicant and Mr Keplar were witnesses of truth, not people given to exaggeration. Mr Keplar gave compelling evidence about what was happening to the Applicant during the relevant period. It should be emphasised that Table 7 relates only to Brain Function, meaning that purely physical difficulties caused by the Applicant’s MS are not taken into account, either directly or indirectly.

17. The Applicant’s own evidence about her mental state now and during the relevant period is corroborated by Mr Keplar’s evidence. It is not a requirement of Table 7 that corroboration may only be by medical report.  There is a medical report by Dr Karin Jones dated 15 September 2011 in which she writes of the Applicant’s MS: Fatigue is a significant issue on a daily basis, with tiredness, dizziness, and with some cognitive difficulties. I note particularly the references to dizziness and some cognitive difficulties. Those references are significant because Dr Jones wrote her report three years before the relevant period began and there is no suggestion the Applicant’s condition ever improved after that time.

18. It cannot be contended, moreover, that doing household chores requires only physical capacities, and no cognitive skills. Such activities may be tedious but they are not mindless. The description given by the Applicant in an attachment to her claim form (Q.88) for DSP is, I consider accurate, in light of her evidence and that of Mr Keplar: I am severely limited in ability to work and/or study; I am severely limited in my mobility, capacity to lift/carry, day to day living and ability to remember names and words. The fact that her MS severely impacted upon her cognitive function during the relevant period is also indicated − very significantly in my opinion   − by the fact that she had to close her import/export business in July 2014, shortly before the beginning of the relevant period. She found she could no longer cope. That business, I understand, had been up and running for some eight years. The loss of mental acuity that led her to take this drastic step in July must have been pronounced because it was only with great regret that she did so. But in the end she had no choice. No-one can rationally maintain that running a business does not require varied skill sets including mental or cognitive skills of a high enough order. Yet I accept that it was her MS that led to the Applicant’s closing down her business. Already, as I have noted, some three years before, Dr Jones reported that she was experiencing dizziness and suffering some cognitive difficulties.

19. I find that the Applicant falls within paragraph (a) of the 20 point Descriptor under Table 7, which is memory. I do not rely on her difficulties during the hearing in remembering her place of birth in Sicily or the name of a particular medication she is taking. The Examples given in paragraph (a) are not exhaustive, only indicative. In many instances, as also is well known, cases will not fall exactly within the parameters of an Example yet will come under the heading nonetheless.  I am satisfied that the Applicant fits substantially within Example 1 if this is read reasonably: The person is unable to remember routines, regular tasks and instructions. I consider this applies to the cognitive aspect(s) of the household duties for which she was given daily assistance by Mr Keplar during the relevant period. Those activities would probably involve routines and tasks and perhaps also instructions and the Applicant needed help with them. But the fact that the Applicant satisfies the Descriptor is also demonstrated significantly, or alternatively, by her closing her import/export business. I infer from the evidence that her mental capacity to deal with business matters, including the routines, tasks and instructions encountered in the normal course of business, was  so diminished that the only course was to close it.

20. I consider that her closing her business also, or alternatively, bears upon paragraphs (d) and/or (e) of the 20 point Descriptor under Table 7 — respectively planning and decision making. Again, the Examples given under both these paragraphs are not exhaustive, only indicative. Under paragraph (d) the Example is: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip). But I infer, and find as reasonably open on the evidence, that it was precisely because the Applicant had that very sort of difficulty that she needed help around the house and/or was forced to close down her business.  Dr Jamel, in her medical report in support of the Applicant’s DSP application of 2 September 2014, at the very beginning of the relevant period, noted planning as one area affected by the Applicant’s disability. I think it fair to say planning itself requires some degree of organisation. Under paragraph (e) the Example it is noted: The person is unable to prioritise and make complex decisions and often displays poor judgement resulting in negative outcomes for self or others. I infer, and find as reasonably open on the evidence, that it was probably for want of that capacity that the Applicant closed down her business. Running a business calls for the ability to prioritise and to…make complex decisions. Running the business had simply got beyond the Applicant and this must have been clearly evident by July 2014. There may well have been occasions during that period — often enough perhaps — when she was displaying poor judgement. That would not surprise me. Again this was only shortly before the relevant period.  Indeed Mr Keplar said in his evidence that, during the period, the Applicant could no longer work because she would or could be a danger to herself or to others. That, I think, means that negative outcomes may have resulted already or could or would result if she continued working during the relevant period or beyond.

21. I have assigned an impairment rating of 20 points under Table 7 to the Applicant. This is higher than the impairment rating of 5 points given by the SSAT which on the medical evidence provided by the Applicant concluded that the Applicant’s MS is fully diagnosed, treated and stabilised. I agree with that aspect of the SSAT decision. The SSAT figure is that provided by Dr Jamel of the Westmeadows Medical Centre in her reports of 1 May 2015 and 28 July 2015. In both reports Dr Jamel awarded an impairment rating of only 5 points. But I regard both reports as unsatisfactory in this respect. I do not consider, in any event, that I am obliged to accept Dr Jamel’s rating as conclusive, particularly if I have sworn evidence before me leading to a different view. Moreover, Dr Jamel was not called as a witness and has not had her views tested. It would have been helpful to question her. Nor were her clinical notes tendered in evidence.

22. Dr Jamel’s two reports date only from this year although both say the Applicant’s rating was the same as in September 2014. How this might be said of one patient amongst many in the course of a (presumably) busy practice I am unable to say. As I have said Dr Jamel did not attend the hearing either in person or by telephone. The first report is unhelpful. It assigns a points rating of 5 without explanation. Very possibly this set the stage for the second report. The second report again assigns 5 points, this time though with brief explanations as to each of all the paragraphs [(a) to (f)] in the 5 point impairment Descriptor.  Only one of the paragraphs need be satisfied and I cannot explain why Dr Jamel went on to look at all six of them.  She may have had difficulty understanding the legislative requirements. This indeed was indicated in the Applicant’s evidence. She also said that Dr Jamel appeared annoyed at having to do a second report.

23. I accept the evidence given before me, and the inferences which I may reasonably draw from it, in preference to Dr Jamel’s point ratings. I arrive at a different rating — 20 Points. Likewise I accept such evidence in preference to the 5 points figure given in the Job Capacity Assessment dated 17 October 2014.This report (the author of which was not called as a witness either) seems to have fastened upon Dr Jamel’s reference to a lack of concentration in her report of September 2014, even though in that very report she had ticked planning as one of the areas of cognitive impact. The Job Capacity Assessment in assigning 5 Points is thus deficient.

24. My reasoning, on the evidence, leads to the Applicant having a severe impairment which merits 20 points. Hence no question arises of the Applicant’s needing to participate in a program of support under s 94(2)(aa) of the Act.

25. I am satisfied, on the evidence also, that the Applicant meets the requirements of s 94 (1)(c) of the Act. As a matter of practicality, she has a continuing inability to work and had that throughout the relevant period. I refer again to her need to close her business. I consider also, having seen and heard from the Applicant, that her impairment is such that of itself it suffices to prevent her from doing any work independently of a program of support or from undertaking a training activity during the next two years. (See s 94(2)(a)(b)(i) of the Act.)  I reject the analysis in the Job Capacity Assessment that the Applicant has a current work capacity of 15-22 hours per week. I have seen and heard from the Applicant and I regard that analysis as fanciful or unreal.  During the relevant period, and since then, the Applicant has not been able to tell from day to day how ill she might be. As far back as September 2011 she was already suffering dizzy spells and some cognitive difficulties and that was four years ago now.  The Applicant says she could work on a good day but says she has not had many of those. Two or more years from now, she still will not be able to tell whether the day ahead will be a good one or not (except perhaps on the day itself). Her condition is permanent and will not improve. In her second report Dr Jamel says that the Applicant’s condition may stay the same or even deteriorate over the next two years. It severely restricts her capacity to work in any real way. She cannot offer an employer any guarantee of attendance. I am satisfied that if she worked she would or could do harm to herself or others as Mr Keplar said. She is not a prospect for employment in any meaningful or real or practical way.

26. It follows from these reasons — the Applicant satisfying ss 94 (1)(a)(b) and (c) of the Act − that she is entitled to DSP and the decision of the SSAT which is under review must be set aside.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Cremean

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

Administrative Assistant

Dated 29 September 2015

Date of hearing	9 September 2015
Applicant	In person
Advocate for the Respondent	Ms Julie Zhou – Department of Human Services