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

Case [2020] AATA 676

Searles and Secretary, Department of Social Services (Social services second review) [2020] AATA 676 (20 March 2020)

Division

GENERAL DIVISION

File Number:

2019/1167

Re

Vicki Searles

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal

Member I Thompson
Date 20 March 2020
Place Adelaide

The Tribunal sets aside the decision under review.

......................[sgnd]...............................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - pensions benefits and allowances - disability support pension -disability support pension – cancellation of existing payment - medical review – whether Tribunal satisfied that applicant not qualified for DSP as at the date of cancellation – decision under review set aside

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

CASES

Conaghan and Secretary, Department of Social Services (Social services second review) [2017] AATA 64

Crossland and Secretary, Department of Family and Community Services [2004] AAT 864

Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606

Re Hamal and Secretary, Department of Social Service [1993] AATA 283; (1993) 30 ALD 517

Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500

Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444

Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

20 March 2020

INTRODUCTION

  1. This is an application for review of Centrelink’s 27 September 2018 decision to cancel Ms Searles’ disability support pension (DSP) under s 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

  2. Ms Searles was granted the DSP on 29 August 2006 due to a spinal disorder. Centrelink commenced a review in January 2018 and decided on 27 September 2018 that Ms Searles no longer qualified for the DSP. She sought a review of that decision and a Centrelink authorised review officer (ARO) affirmed the decision to cancel the DSP. The ARO identified two conditions, namely spinal disorder and asthma. The ARO found that the condition of spinal dysfunction/lower back spinal nerves dysfunction and cervical radiculopathy are permanent and a rating of 10 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) was appropriate. The ARO did not consider Ms Searles’ asthma could be assigned an impairment rating.

  3. Ms Searles applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for a review of Centrelink’s decision. The AAT1 concluded that the spinal condition was permanent and fully diagnosed, treated and stabilised and applied 10 impairment points under Table 4 of the Impairment Tables. The AAT1 concluded that the asthma condition did not cause sufficient impairment to attract impairment points and that a condition of anxiety and depression was not fully diagnosed, treated and stabilised at the relevant time. In all, the AAT1 concluded that Ms Searles did…

Details
AGLC
Searles and Secretary, Department of Social Services (Social services second review) [2020] AATA 676
Case
[2020] AATA 676
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of the Secretary, Department of Social Services' decision to cancel Ms Searles' disability support pension (DSP). Ms Searles had been granted the DSP in 2006 due to a spinal disorder. Following a review, Centrelink determined in September 2018 that she no longer qualified for the pension, a decision affirmed by an authorised review officer. Ms Searles subsequently applied to the Administrative Appeals Tribunal (AAT), which affirmed the cancellation decision, finding she did not meet the required 20 impairment points under the Impairment Tables. This Tribunal was asked to review the AAT's decision.

The primary legal issue before the Tribunal was whether Ms Searles was qualified for a DSP as at the date of the cancellation of her existing payment. This required determining if her impairments, specifically a spinal disorder and asthma, met the criteria set out in the Social Security Act 1991, including having an impairment of 20 points or more under the Impairment Tables and a continuing inability to work. The Tribunal also had to consider whether her conditions were fully diagnosed, treated, and stabilised, as stipulated by the Impairment Tables.

The Tribunal found that the AAT had erred in its assessment of Ms Searles' eligibility. While the AAT had correctly identified her spinal condition and asthma, and acknowledged the spinal condition was permanent, it had not been satisfied that the condition was fully stabilised. The Tribunal noted that the definition of "fully stabilised" requires that any further reasonable treatment is unlikely to result in significant functional improvement. The Tribunal was not satisfied that Ms Searles was not qualified for the DSP at the date of cancellation.

Consequently, the Tribunal set aside the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.EVIDENCE Ms Searles gave evidence to the Tribunal. She is now 49 years old. She has a large family with five children, the youngest age 12. For the last 30 years she has devoted herself to bringing up her children, four of whom still reside with her. Two of them have additional needs which increase her role and responsibilities as full-time parent and carer. She has also assisted actively with the day-to-day care of other family members. Ms Searles told the Tribunal she has had problems with her back for over 20 years. She suffered from spasms, throbbing and a burning, stabbing sensation in her back. There were occasions when she could not walk and needed a walking frame to move from one room to another. She took anti-inflammatory medication and Panadeine Forte to reduce the pain. When she was granted the DSP in 2006, Ms Searles was having problems with her back which have continued in the intervening years until the cancellation in September 2018. She has tried various types of treatment. In the early stages she had physiotherapy and chiropractic treatment and she also tried hydrotherapy. She has regularly consulted her general medical practitioner for medication. Ms Searles has relied on medication for treatment since the onset of the back and neck problems. In the early stages she consulted a hospital pain clinic and received a recommendation for treatment by administration of morphine. She was and still is unimpressed by that prospect and resists it. At one point she was referred to a neurosurgeon or a neurologist and she was placed on a waiting list. She has been waiting without success for 14 years to get off the waiting list and into a consultation with the specialist. The medication prescribed by her general medical practitioner has been the consistent and most successful method for dealing with the pain. At the time of the DSP cancellation Ms Searles was continuing to have difficulty with her back and her neck. She had difficulty sitting, walking and carrying out every day, domestic tasks. In evidence, she said that her legs would give way on her, the legs felt numb and she would have to take medication and rest until the pain went away. Her left arm would go numb and she got migraines and neck pain which she attributes to a bulging disc. She attempts to ensure that she keeps her neck in an upright position. In describing the impact of her medical conditions at the time of the DSP cancellation and through to the present time Ms Searles said that she can sit for 10 minutes but she cannot sit still. She said that she cannot move her head in all directions because of the pain that she has in her neck and shoulders. Effectively she has half range of movement of her head amounting to about 45° in each direction. In relation to overhead activities she acknowledged that she can wash her hair and she demonstrated how she places her hands on her hair in the shower. In ordinary day-to-day activities she cannot do any overhead activities. If she has to try any overhead activity, such as getting an item from a shelf in the supermarket, she resorts to balancing herself by holding onto the trolley and reaching up and out to the shelf. She said that she cannot hang washing on the clothesline and she has not used the clothesline for four years. She puts the clothes into a clothes dryer. Bending forward to pick up light objects causes pain. She has asthma and uses a puffer to control it.

Decision

Reasons for decision

This is an application for review of a decision to cancel Ms Searles’ DSP under s 80 of the Act. For the reasons set out above the Tribunal is not satisfied that Ms Searles was not qualified for the DSP at the date of cancellation. DECISION The Tribunal sets aside the decision under review.

Ratio Decidendi

Legal Principle Established

This is an application for review of Centrelink’s 27 September 2018 decision to cancel Ms Searles’ disability support pension (DSP) under s 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Ms Searles was granted the DSP on 29 August 2006 due to a spinal disorder. Centrelink commenced a review in January 2018 and decided on 27 September 2018 that Ms Searles no longer qualified for the DSP. She sought a review of that decision and a Centrelink authorised review officer (ARO) affirmed the decision to cancel the DSP. The ARO identified two conditions, namely spinal disorder and asthma. The ARO found that the condition of spinal dysfunction/lower back spinal nerves dysfunction and cervical radiculopathy are permanent and a rating of 10 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) was appropriate. The ARO did not consider Ms Searles’ asthma could be assigned an impairment rating. Ms Searles applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for a review of Centrelink’s decision. The AAT1 concluded that the spinal condition was permanent and fully diagnosed, treated and stabilised and applied 10 impairment points under Table 4 of the Impairment Tables. The AAT1 concluded that the asthma condition did not cause sufficient impairment to attract impairment points and that a condition of anxiety and depression was not fully diagnosed, treated and stabilised at the relevant time. In all, the AAT1 concluded that Ms Searles did not meet the requisite 20 points on the Impairment Tables and the decision of the Centrelink ARO was affirmed. Ms Searles applied to this Tribunal for a review of the AAT1 decision claiming that that decision was wrong. The hearing took place on 20 February 2020. Ms Searles attended the hearing and was self‑represented. Mr Visser represented the Respondent, the Secretary, Department of Social Services. Ms Searles gave evidence. She called five witnesses, four of whom gave evidence in person and the other one by telephone. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.LEGISLATION AND ISSUES The Social Security Act 1991 (the Act) sets out the qualification criteria for DSP. Section 94(1) of the Act provides that an applicant must have:(a)a physical, intellectual or psychiatric impairment;(b)an impairment of 20 points or more under the Impairment Tables; and(c)a continuing inability to work. Under s 94(2) of the Act a person is regarded as having a “continuing inability to work” if:(a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and(b)they have actively participated in a “program of support”.The second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.