Sesay and Secretary, Department of Social Services (Social services second review)
[2017] AATA 483
•13 April 2017
Sesay and Secretary, Department of Social Services (Social services second review) [2017] AATA 483 (13 April 2017)
Division
GENERAL DIVISION
File Number
2016/3252
Re
Amadu Sesay
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D. J. Morris, Member
Date 13 April 2017 Place Melbourne The decision under review is affirmed.
[sgd]..................................................
D. J. Morris, Member
SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully stabilised – whether conditions have functional impact – reasonable treatment recommended but not undertaken – not qualified for DSP – decision affirmed
LEGISLATION
Acts Interpretation Act 1901, s 36(1)
Social Security Act 1991, ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999, Sch 2, cl 4(1)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
D. J. Morris, Member
13 April 2017
BACKGROUND
On 16 October 2015 Mr Amadu Sesay applied for a Disability Support Pension (DSP). On 3 December 2015, having assessed his claim, the Department of Social Services (the Department) rejected it. The Department reconsidered the matter and on 9 December 2015 confirmed the rejection of Mr Sesay’s claim for DSP. This was the original decision.
Mr Sesay sought a review of this decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision. On 15 February 2016 the ARO affirmed the original decision.
Dissatisfied with that decision, he sought a review by the Social Services and Child Support Division of this Tribunal (AAT1). A hearing was held on 26 May 2016 and AAT1 affirmed the decision to refuse Mr Sesay’s claim for DSP.
Mr Sesay has now sought a review by the General Division of the Tribunal. That is this hearing. It was made clear at the commencement of the hearing that the Tribunal’s task is to consider whether the original decision was the correct and preferable decision.
The hearing was held on 11 January 2017. The Applicant represented himself. He gave affirmed evidence and was cross examined by the representative of the Respondent, Mr Tim Noonan.
The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence.
Following the hearing, the Applicant was given leave to provide further particular medical evidence and the Respondent was granted leave to reply. This information has been taken into account by the Tribunal.
Qualification for DSP under the Act
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying has –
(a) a physical, intellectual or psychiatric impairment; and
(b) the impairment or impairments must attract a rating of 20 points or more under the Impairment Tables; and
(c) a continuing inability to work.
The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.
The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1) (c) and section 94(5) of the Act is work that is for at least 15 hours a week.
So, therefore, for a person to be qualified for DSP, the person must have impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.
An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, this means the impairment is assessed to be a ‘severe’ impairment under section 94(3B). If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support. A person who does not have 20 or more points under one Table must have participated in a program of support in compliance with the Act and the Determination.
What is the relevant period for considering the claim?
The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:
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.
Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.
Therefore, the two questions for the Tribunal to consider are: was Mr Sesay qualified for DSP on the date he lodged his claim, 16 October 2015? If not qualified on that date, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act and the Interpretation Act, did Mr Sesay become qualified on a day in the thirteen week period after the day he lodged the claim, a period which ended on 16 January 2016? I will call this period ‘the claim period.’
Does the Applicant have a physical, intellectual or psychiatric impairment?
In his application for DSP, Mr Sesay listed ‘lower back injury dics [sic] prolapses L4-L5 dics [sic] prolapses” as a medical condition he had. Dr Victor Salib, the Applicant’s general practitioner, wrote a medical report which was not dated but which the Respondent submitted was written around 12 October 2012. In that medical report, Dr Salib said that L4/L5 broad based disc prolapse causing minor impingement upon the anterior aspect of the spinal theca and on Rt L4 nerve root was the condition with the most impact on Mr Sesay. At the time of the report, Dr Salib stated that the Applicant was awaiting an appointment with the physiotherapy department at St Vincent’s Hospital and that he may need a laminectomy. He said the effect on Mr Sesay of this condition was that he had difficulty sitting and standing for prolonged periods and difficulty bending or lifting. The other condition that Dr Salib listed in his report that Mr Sesay had was haemorrhoids which he stated had “frequent flare up.”
The Tribunal also had before it a medical certificate signed by Dr Salib on 14 September 2012 which listed “L4-5 disc prolapse with impingement on exiting L4 nerve root” and said that this condition was an exacerbation of an existing condition.
Mr Sesay also provided to the Department a report from Professor Rosemary Dennerstein, AO, consultant psychiatrist, dated 8 October 2015. Professor Dennerstein stated that she examined the Applicant on 7 October 2015 and her diagnosis was that he had chronic adjustment disorder with mixed anxiety and depressed mood. She considered that the psychiatric disorder was secondary to the chronic pain disorder.
The Tribunal had before it other medical evidence corroborative of the fact that Mr Sesay had a back injury in the claim period. The Tribunal therefore finds that Mr Sesay satisfied section 94(1)(a) of the Act in that he had impairments, namely a back injury, haemorrhoids, and a depressive condition, at that time.
What is the correct rating under the Impairment Tables?
The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.
Under section 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.
Section 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.
The Impairment Table Determination also provides, at section 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Back condition
Mr David de la Harpe, orthopaedic surgeon, wrote a medical letter to Dr Salib dated 26 November 2014. He said:
Amadu complains of ongoing back pain and bilateral leg pain. His medications include Endone, Lyrica, Brufen and Codalgin Forte. He did some physiotherapy which he did not find beneficial and some hydrotherapy was done through St Vincent’s Hospital which he felt was helpful however the hydrotherapy has not been ongoing. An epidural injection was performed by a neurosurgeon at St Vincent’s Hospital which Amadu said did not help. Socially he now looks after his elderly mother.
On examination he has a normal stance and normal gait with a range of movement of 45˚ of lumbar flexion and 10˚ of extension of the lumbar spine. There is no neurological abnormality in the lower limbs. His last MRI scan was performed at St Vincent’s over 12 months ago and it will thus be necessary to obtain a fresh MRI scan.
The Applicant also submitted a medical letter to Dr Salib from Stephen Harper, physiotherapist, dated 1 June 2015. Mr Harper said:
Thank you for referring Amadu for physiotherapy under an EPC plan. He has attended for assessment and treatment of his chronic LBP, his presentation was consistent of discogenic LBP as has been the case previously. He has generally responded well to physiotherapy in the past, hopefully some further manual therapy will provide effective pain relief.
Mr Sesay also submitted a further undated document signed by Mr Harper stating that:
Amadu has now completed his physiotherapy under the EPC plan. He gets good short term relief from physiotherapy reporting better pain free function following traction in particular. He has a regime of stretches and exercises to continue with as part of a self-management program I have given him. Hopefully with this and some understanding of the cause of his LBP he will be able to more effectively manage his pain.
In December 2014 he was offered a plan to help treat his pain by the Barbara Walker Centre for Pain Management. This included physiotherapy and psychology sessions, pain education and a psychiatry review. There was a paucity of evidence about whether the Applicant had participated in the “concerted rehab program…including core stability work combined with a gym and hydrotherapy program” that Mr de la Harpe recommended on 3 December 2014, before or during the claim period.
Me Sesay said in his evidence that AAT1 was wrong in its conclusion that he had not participated in a rehabilitation program. He said that he had in fact been to Williamston Physiotherapy and they “told me they couldn’t assist me.” The Tribunal does not dispute this evidence but there was no independent corroboration that this was the physiotherapist’s considered view, other than an imprecise and undated letter from Mr Harper which was submitted after the hearing.
On 12 July 2016 Mr Sesay’s general practitioner, Dr Salib, wrote a medical report to a law firm in relation to Mr Sesay’s health and, in that report, stated:
Hopefully with rehabilitation and pain management with multiple disciplinary team he may have a capacity to do non physical work with the restrictions mentioned.
While this is clearly dated after the claim period, it is medical evidence that supports a conclusion that – without disputing the genuineness of Mr Sesay’s back pain – on the papers before the Tribunal, this condition was not fully treated nor fully stabilised in the claim period because other treatments were still being recommended. Consequently, the Applicant’s back condition did not fulfil the requirements of being “permanent” under the Determination, at that time, and therefore cannot be assigned an impairment rating.
Haemorrhoid condition
In his medical report dated by the Respondent as 12 October 2012, Dr Salib records a haemorrhoid condition as another condition with a confirmed diagnosis. Dr Salib said that the condition has “frequent flare up” and is being treated with medication, that it fluctuates, and that Mr Sesay may need surgery.
The Tribunal considers that this is a fully diagnosed condition, on the medical evidence, but it was plainly not fully treated nor fully stabilised in the claim period because Mr Sesay’s medical adviser suggested surgery may be required. Accordingly, impairment points cannot be assigned for this condition because it does not meet the requirements of section 6(4) of the Determination.
Depressive condition
During cross-examination, Mr Sesay was asked about treatment for his mental health condition. He said that he started taking antidepressants at the end of 2014 and had seen a psychologist at St Vincent’s Hospital in 2014 but not more recently. He told the Tribunal that he had an appointment to see a specialist psychologist. Mr Sesay said that he believed his back condition has led to depression and that he was taking steps to address this.
The Tribunal had before it a medical report dated 8 October 2015 by Professor Dennerstein, consultant psychiatrist. She concluded:
His psychiatric disorder is secondary to his Chronic Pain Disorder.
…..
The psychiatric injury does not cause incapacity for him to return to pre-injury employment or for suitable employment. The Chronic Pain Disorder is causing the incapacity in employment.
On the basis of this evidence of professional assessment, the Tribunal is unable to find that Mr Sesay’s mental health condition can be assigned impairment points because it is stated by an appropriately qualified medical practitioner with significant expertise in diagnosing and treating mental health conditions to be directly linked to a condition, namely Mr Sesay’s back condition, which was not fully treated nor fully stabilised in the claim period.
Conclusion
The Tribunal finds that the Applicant is assigned a total of zero impairment points for his medical conditions in the claim period. Section 94(1)(b) of the Act requires the assignment of 20 or more impairment points to a claimant at the time he made his claim or in the 13 weeks thereafter. Consequently, Mr Sesay did not meet the requirements of section 94(1)(b) at that time, so this application for DSP cannot succeed.
As section 94 is conjunctive (meaning that a person claiming DSP must meet each part of the section) and Mr Sesay did not meet section 94(1)(b) in the 13 week claim period, it is not necessary for the Tribunal to go on to consider whether he had satisfied the requirements of section 94(1)(c) of the Act in regard to a continuing inability to work.
The Tribunal notes that Mr Sesay has a long-standing and chronic back condition. However, treatment courses were still being offered to him in the claim period. The Tribunal heard significant evidence about the impact on his daily life of his back condition and is not unsympathetic to his predicament. However, for a claim for DSP to succeed, an Applicant needs medical evidence that his condition or conditions are fully treated and fully stabilised and that no significant functional improvement to a level enabling him to undertake work in the next 2 years is likely.
The Tribunal finds that the original decision was correct; Mr Sesay was not qualified for DSP on the date of his claim and nor did he become qualified in the 13 week period thereafter.
DECISION
The decision under review is affirmed.
45. I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Member D. J. Morris.
…..…............[sgd]...................................
Associate
Dated 13 April 2017
Date of hearing 11 January 2017 Applicant By phone Advocate for Respondent Mr T Noonan
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Jurisdiction
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Procedural Fairness
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