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

[2019] AATA 4618

Sharma and Secretary, Department of Social Services (Social services second review) [2019] AATA 4618 (8 November 2019)

Division:GENERAL DIVISION

File Number(s):      2019/2919

Re:Vivek Kumar Sharma

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:8 November 2019

Place:Sydney

Given the Applicant cannot demonstrate that his impairments attract at least 20 points under the Impairment Tables, the decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during qualification period – whether conditions fully diagnosed, treated, stabilised –  epilepsy – back and neck pain – depression and anxiety – whether impairment attracts 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Social Security Act 1991 (Cth) ss 26, 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Chris Puplick AM, Senior Member

8 November 2019

1. Mr Vivek Kumar Sharma (the Applicant) lodged a claim for the Disability Support Pension (DSP) on 26 October 2018. In this matter, the Secretary of the Department of Social Services is the Respondent.

2. The Applicant is 54 years of age. He is highly qualified, having degrees in science and engineering, and at one stage having worked as a specialist for IBM. However, he has not worked since 2007[1] and is currently in receipt of the Newstart Allowance.

   [1] Section 37 Documents (T Documents) at page 10.

3. Once a DSP claim is lodged, an assessment process begins to determine the eligibility of an applicant for DSP which must take place as at the date of the claim or within 13 weeks thereafter. That is, in this instance, any time between 26 October 2018 and 25 January 2019.

4. This is what may be referred to as “the qualification period”.

5. It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the Applicant’s health, changes in his status or acquisition of additional medical or psychological conditions.[2]

   [2] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.

6. These may be material factors in any future application/claim made for DSP but they are not germane to the present assessment, except to the extent that they may shed light on the Applicant’s condition during the qualification period.[3]

   [3] Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]–[29].

7. Whereas, in other matters before the Tribunal, decisions are to be based on the facts at the time of the Tribunal hearing, that is not the case in relation to the review of DSP matters. The Tribunal can consider only matters within or relevant to the qualification period and it has no legislative authority to do otherwise.

8. When the Applicant’s case was considered by the Respondent, following a Disability Support Pension Medical Assessment Recommendation (dated 2 November 2018),[4] a decision was made on 10 November 2018 to reject the Applicant’s claim for DSP (original decision; decision under review).[5] This rejection was based on an assessment that the claim was “manifestly medically ineligible” as the claimed conditions were “not fully diagnosed, treated and stabilised”[6] as required by the legislation (see below). The Applicant sought a review of this decision and this matter was examined afresh by an Authorised Review Officer (ARO) of the Respondent who, on 12 December 2018, affirmed the original decision.[7]

   [4] T Documents at pages 178–179.

   [5] Ibid at pages 180–181.

   [6] T Documents at page 178.

   [7] Ibid at pages 183–186.

9. The Applicant sought a further review of this decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) which, on 6 May 2019, affirmed the original decision.[8] The AAT1 only gave an oral decision in the matter and the Applicant then sought a written statement of AAT1’s reasons,[9] as he was entitled to do.[10]

   [8] Ibid at page 7.

   [9] Ibid at pages 8–11.

   [10] Administrative Appeals Tribunal Act 1975 (Cth) s 43(2A).

10. The Applicant then lodged an application to this Tribunal (the General Division of the Tribunal (AAT2)) on 27 May 2019 seeking a review of AAT1’s decision and the matter was heard on 29 October 2019. In any event, this Tribunal is not bound by the reasons or decisions of AAT1 and must consider the matter de novo, within the restrictions outlined above related to information which was current and relevant during the qualification period.

    THE DISABILITY SUPPORT PENSION SCHEME

11. In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act1991 (Cth) (the Act). Section 94 has three distinct limbs:

    94 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;

    (ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

12. In essence, these requirements or criteria amount to this:

    ·the person has a physical, intellectual or psychiatric condition;

    ·the person’s medical condition(s) attracts 20 points or more under the Impairment Tables (which are specific criteria, set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment). Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;

    ·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;

    ·the person has turned 16; and

    ·the person is an eligible citizen or qualifying resident.

13. Failure to meet any one of these requirements is fatal to a claim for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.

14. In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:

    ·fully diagnosed and documented;

    ·fully treated; and

    ·fully stabilised.

15. These important terms are defined in the Impairment Tables[11] as follows:

    [11] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables) s 6.

    ...

    Impairment ratings

    (3) An impairment rating can only be assigned to an impairment if:

    (a) the person’s condition causing that impairment is permanent; and

    (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    Permanency of conditions

    (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

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

    (b) the condition has been fully treated; and

    (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.

    Fully diagnosed and fully treated

    (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to 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.

    Fully stabilised

    (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

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

    (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.

16. Each of these criteria must be met before an assessment can be made, and any points awarded, under the Impairment Tables.

17. A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:

    (a) … doing any work independently of a program of support within the next 2 years; and

    (b) … either:

    (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

18. It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.

    SUBMISSIONS BY THE APPLICANT

19. Apart from his evidence at the Tribunal hearing, the Applicant has been assiduous in setting out his own case in great detail and providing both submissions to the Tribunal and commentary on the findings and the procedures of AAT1 as well as the operations of the Department. The Applicant’s submissions appear as follows:

Description of submission	Date of submission	Length of submission (pages)	Reference
1	Applicant’s perspective of the issues	15 March 2019	30	T27, pp.187–216
2	Second submission to AAT1	22 March 2019	14	T28, pp.220–233
3	Miscellaneous email evidence	3 April 2019	33	T29, pp.235–267
4	Commentary on Department documents	3 April 2019	4	T29, pp.268–271
5	Request and submissions on medical conditions	12 April 2019	2	T30, pp.272–273
6	Reasons for AAT2 appeal	27 May 2019	4	T1, pp.3–6
7	Outline of important issues for AAT2 review	21 June 2019	3	Filed by the Applicant to AAT2 and the Respondent
8	Medical submissions on epilepsy and cardiac conditions	8 July 2019	8	Filed by the Applicant to AAT2 and the Respondent
9	Statement regarding “unfairness” at AAT1	11 August 2019	6	Filed by the Applicant to AAT2 and the Respondent
10	Request to modify AAT2 direction	30 August 2019	2	Filed by the Applicant to AAT2 and the Respondent
11	Submission to AAT2	22 September 2019	61	Filed by the Applicant to AAT2 and the Respondent
12	Special submission to AAT2	22 October 2019	3	Filed by the Applicant to AAT2 and the Respondent
13	Publicly available information about Epilim and Keppra side effects	24 October 2019	7	Filed by the Applicant to AAT2 and the Respondent
14	Updated special submission	24 and 27 October 2019	5	Filed by the Applicant to AAT2 and the Respondent
15	Questions for Respondent’s legal representative	29 October 2019	3	Handed to Tribunal and the Respondent at hearing

The Applicant’s conditions

1. The Applicant rests his claim for DSP on the basis that he suffers a variety of impairments arising from the following medical conditions:

   ·Epilepsy;

   ·Back and neck pain; and

   ·Depression and social anxiety.

2. The gravamen of the Respondent’s position is that:

   The assessor found that the conditions of epilepsy, back and neck pain, depression and social anxiety were not: fully diagnosed; fully treated; or fully stabilised at the time of the claim or 13 weeks thereafter.[12]

   [12] Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 15 October 2019 at para 6.

3. Each of these conditions must be considered separately.

   Epilepsy

4. Contrary to the initial statement of the Respondent,[13] it is clear that the Applicant’s condition of epilepsy was fully diagnosed at the time he lodged his claim. Indeed, the Respondent subsequently admits to this: “The Secretary concedes that epilepsy was fully diagnosed at the time of claim”.[14] It appears that the Applicant has suffered from epilepsy since, at least, 2000.

   [13] See para 21 above.

   [14]Respondent’s SFIC at para 41.

5. That given, the question becomes whether this condition was fully treated and fully stabilised during the qualification period. Critically, a condition is not fully treated and stabilised if treatment is continuing and planned over the next two years and if a course of such treatment could be expected to result in a significant functional improvement in the person’s condition.

6. The evidence before the Tribunal demonstrates that the Applicant has been prescribed a variety of medications to address this condition (Epilim[15] and Keppra[16]). There is also evidence to show that the Applicant was, on several occasions, non-compliant with his prescribed medication regime and has on occasion “self ceased medication”.[17]

   [15] T Documents at page 109.

   [16] Ibid at page 125. The Tribunal notes a comment of Dr Millar on a prescription dated 15 December 2017 to the effect that Keppra was being prescribed because “the condition must have failed to be controlled satisfactorily by other anti-epileptic drugs” (T Documents at page 276).

   [17] Ibid at page 144.

7. In a Discharge Referral, dated 27 September 2018, Dr Khoo at Liverpool Hospital indicates that the Applicant was presented with a plan to manage his epilepsy in the following terms:[18]

   Plan:

   1Follow up with GP to review patient progress in 1–2 days post discharge

   – GP to kindly review medications

   – Restart Keppra 1000mg nocte as per his usual dose, GP to uptitrate dose if required

   2If any concerns or deterioration in symptoms, please return to emergency department as required

   3Patient educated about importance of compliance with medication and cannot drive as he has had a seizure, he would require follow up with neurologist in order to have clearance to drive

   4Restart Keppra 1000mg nocte – patient informed

   [18] Ibid at pages 144–145.

8. A further plan was outlined in another Discharge Referral dated 4 July 2019 by Dr Jayawardana as follows:[19]

   Plan

   Discharged home

   Emphasis on ensuring antiepileptic compliance

   Outpatient neurology follow up – GP to kindly organise

   Return precautions discussed and agreed

   [19] Respondent’s SFIC at Attachment C – ED Discharge Referral at page 2.

9. The Applicant states that in relation to the question of “self-medication” he occasionally varied (halved or otherwise reduced) his dosage of Keppra because of its side-effects,[20] and he submitted some documentation about these side effects downloaded from the internet and by way of a manufacturer’s statement containing consumer medicine information.[21]

   [20] Ibid.

   [21] See para 19 above, row 13 of the table.

10. He also states that his seizures cause him loss of memory and this is reflected in his failure to remember if he has taken his medication and, indeed, this reinforces his need for DSP with “a suitable part-time, on call carer”.[22]

    [22] T Documents at page 188.

11. The AAT1 raised the issue of why the Applicant had apparently failed to attend a specialist review with Dr Hassan (a neurologist) which had been the subject of a referral by Dr Darmo on 24 October 2018.[23] The Applicant stated in oral evidence and elsewhere[24] that this was due to financial reasons, making a note on one of Dr Darmo’s reports implying that the specialist fee would be $250.00 and the Medicare rebate only $130.00.[25]

    [23] Ibid at page 147.

    [24] Ibid at page 239.

    [25] Ibid at page 147.

12. The Applicant also makes numerous references to a diagnosis of basal ganglia calcification, something which is also noted in the medical report of Dr Khoo at Liverpool Hospital.[26] In particular, the Applicant claims that this condition reveals that “a crucial part of the brain has a shows (sic) damage”.[27] He goes on to say that this is a “rare condition” and accounts for his feelings of tiredness, memory loss and general debilitation.

    [26] T Documents at page 145.

    [27] Ibid at page 211.

13. There is, however, no corroborative medical evidence regarding the effects of this condition or how it might generally or specifically contribute to any degree of functional or other impairment for the Applicant. There is no commentary on any treatment which might be apparent for such a condition.

14. All this is confirmatory of the Respondent’s assertion that the condition (epilepsy) cannot qualify, under the terms of the Act and Impairment Tables, as being fully treated and stabilised.

    Back and neck pain

15. Again, there appears to be considerable evidence to the effect that the Applicant does suffer from problems associated with some form of degenerative arthritis,[28] with evidence of “severe multilevel spondylotic charge particularly at the L4/5 level”[29] as shown in various x-rays and examinations. There is also evidence of “thoracic scoliosis convex to the right” with “anterior wedging of at least two mid thoracic vertebral bodies with anterior and lateral osteophytosis identified".[30]

    [28] Ibid at page 291.

    [29] Ibid at page 102.

    [30] Ibid at page 139.

16. If the Respondent is persisting in the claim that this condition is not fully diagnosed, to this extent, the Tribunal would disagree with the Respondent.

17. This finding is consistent with that of the AAT1 which determined “the condition to be fully diagnosed at the date of claim”.[31]

    [31] Ibid at page 10, para 11.

18. However, the Respondent is correct in asserting that there is insufficient evidence before the Tribunal relating to the treatment or management of this condition. There is a report from Dr Habib, dated 28 February 2019 (that is, just over one month outside the qualification period), which suggests a course of no-surgical intervention to address this condition with an emphasis on “periodic physiotherapy and regular home-based exercises” to minimise the impact of pain without resort to further medication.[32]

    [32] T Documents at page 278.

19. In this instance, there is no basis upon which to conclude that the condition is fully treated and stabilised.

    Depression and social anxiety

20. Once again, it is the prescriptive provisions of the Act which pose a difficulty for the Applicant in advancing his claim in relation to this condition. There are clear medical reports from Dr Lim (dated 22 September 2015),[33] Dr Habib (dated 28 February 2019)[34] and Dr Hartley (dated 1 March 2019)[35] which indicate that the Applicant suffered from depression, a lack of motivation, psychological issues related to pain and general social anxiety needing the development of a mental health treatment plan.

    [33] Ibid at page 118.

    [34] Ibid at page 278.

    [35] Ibid at page 279.

21. When asked by the Tribunal why the Applicant had not sought advice from a psychiatrist he replied that “a psychiatrist might not suit me – I do this my own way”. He also stated that, due to the level of medication he was already taking, he did not want to be prescribed anything else.[36]

    [36] This addresses a point of concern raised by AAT1 in its decision (T Documents at page 10, para 16).

1. However, for a diagnosis of some form of a mental health condition to be assessable under the Impairment Tables, such a diagnosis has to be made by “an appropriately qualified medical practitioner”.[37] This term is further defined, to mean “a psychiatrist” or, if the diagnosis is made by a general practitioner, it must be supported by evidence from a “clinical psychologist”.[38]

   [37] Impairment Tables at Table 5–Mental Health Function, Introduction to Table 5.

   [38] Ibid.

2. The Tribunal accepts that the Applicant does face a range of mental health challenges but he has relied exclusively upon his general practitioners to manage these conditions and has been hostile to further medication or formal psychiatric intervention.

3. The Respondent, correctly, contends that none of the medical practitioners who have proffered a diagnosis of depression or anxiety in relation to the Applicant, so qualify for the purposes of the Impairment Tables. Given that this is the case, the Applicant’s application cannot go forward in relation to this condition as it lacks the necessary diagnostic credentials.

   Other conditions

4. The Applicant has raised questions in relation to his suffering from asthma, pain in his joints, chest pains and breathing difficulties.[39] There is no accompanying clear diagnosis of any of these conditions as they relate to the Applicant’s condition during the qualification period, nor is there any evidence before the Tribunal related to their ongoing treatment or management.

   [39] See medical report of Dr Lim dated 19 May 2015 – asthma, joint pain, wheezing (T Documents at page 109) and medical report of Dr Hartley dated 22 June 2019 – chest pains (Respondent’s SFIC at Attachment E).

5. These other conditions cannot be regarded as fully diagnosed, treated and stabilised for the purposes of attracting an impairment rating.

   The Applicant’s analysis

6. The Applicant has taken the trouble to examine the Impairment Tables and tried to self-establish a score on each of the relevant tables for his various impairments. Although the Tribunal has found that none of his conditions qualify for assessment under any of the Impairment Tables because they are not fully treated and stabilised, and in some cases not fully diagnosed, it nevertheless believes that it should explain to the Applicant why his own submissions on these points are not valid, even if the conditions were to be qualifying conditions.

7. In short, this arises from the failure of the Applicant to address his scoring to the points classifications which are set out in the Impairment Tables themselves. While there is no doubt that the Applicant is genuine in his belief that he suffers measurable impairment as a result of his conditions, he must relate that to the specifics of the Tables.

8. To give just two examples: in the first place, the Applicant believes that he should be assessed under ‘Table 10 – Digestive and Reproductive Function’ because of problems with “fatty liver tissue”.[40] However, there is no evidence before the Tribunal which deals with this alleged impairment.

   [40] See para 19 above, row 11 of the table (at page 28 of Applicant’s submissions to AAT2).

9. Secondly, the Applicant makes several references to the pain which he experiences[41] and seeks, indirectly, to have this assessed as a factor in determining his impairment rating. This was a feature of his oral evidence to the Tribunal. Prior to the adoption of the current Impairment Tables on 1 January 2012, there was a provision in Schedule 1B (under Table 20) of the now superseded version of the Social Security Act 1991 (Cth) to deal with the issue of pain as a separate impairment. The current Impairment Tables in paragraph 6(9), however, makes it clear that all pain issues must be dealt with, not separately but, in relation to some specifically diagnosed condition.

   [41] T Documents at pages 198 and 274.

10. The Applicant’s reliance on Google as an authoritative source for the diagnosis, or appropriate management and treatment of his conditions, has not served him well.[42]

    [42] Ibid at pages 190 and 211.

11. A large part of the Applicant’s many submissions outline his concerns or complaints about the operation of the Department, his employment service provider, AAT1 and its operations and some of the medical practitioners he consulted. None of these matters are relevant to the present determination and none will be considered.

12. There is no doubt that the Applicant suffers from epilepsy and that he has had a number of serious seizures or incidents as a result, and has sometimes needed emergency treatment by ambulance officers.[43] He has listed some of these incidents in his submissions,[44] although the Tribunal notes the comment of Dr Millar to the effect that:

    Pt. is poor historian, unsure re frequency of seizures or any recent seizures.[45]

    [43] See para 19, row 11 of the table (at pages 40 and 43 of Applicant’s submissions to AAT2).

    [44] T Documents at pages 187, 206 and 212-213.

    [45] See para 19 above, row 11 of the table (Medical report of Dr Millar dated 22 January 2018).

    CONSIDERATIONS

13. Analysis of the evidence related to the Applicant’s conditions leads to a conclusion that both his epilepsy, and his back and neck conditions, have been fully diagnosed. The former is conceded by the Respondent and the latter has been so determined to the satisfaction of this Tribunal.

14. There is also evidence that the Applicant suffers from a variety of general mental health conditions which he has characterised as “depression and social anxiety”. However, these diagnoses have not been made by practitioners who meet the qualifications required for their acceptance as valid diagnoses by the legislation. In that respect, these condition(s) cannot be accepted as being fully diagnosed.

15. The epilepsy, and back and neck conditions, are subject to ongoing assessment and treatment and there is reason to believe that with appropriate treatment, agreed to and adhered to by the Applicant, there is a possibility of functional improvement (not a cure) in his condition. As such these impairments, while real and impactful on the Applicant’s daily life, cannot be accepted as fully treated and stabilised.

16. This means that, again, although recognising that the Applicant does live a life impaired or compromised by his health conditions, it is not possible to assign any of them a formal rating under the Impairment Tables.

17. In turn, this obviates the necessity for the Tribunal to go on and undertake an examination of the third limb of subsection 94(1) of the Act regarding any “continuing inability to work”. The Tribunal notes that the Respondent, “for completeness”,[46] has undertaken such an analysis but the Tribunal declines to make a finding in relation to the matter as it is not required to do so.

    [46] Respondent’s SFIC at para 59.

    DECISION

18. For the reasons stated above, given the Applicant cannot demonstrate that his impairments attract at least 20 points under the Impairment Tables, the decision under review is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 8 November 2019

Date(s) of hearing:	29 October 2019
Applicant:	In person
Solicitors for the Respondent:	Ms B Salaji, Department of Human Services