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

[2016] AATA 800

Simms and Secretary, Department of Social Services (Social services second review) [2016] AATA 800 (12 October 2016)

Division	GENERAL DIVISION
File Number	2016/0013
Re	Daniel SIMMS
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	D. J. Morris, Member
Date	12 October 2016
Place	Perth

The Tribunal affirms the reviewable decision.

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D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – program of support – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1991 – s 94

Social Security (Administration) Act 1999 – schedule 2 clause 4(1)

SECONDARY MATERIALS

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

REASONS FOR DECISION

D. J. Morris, Member

12 October 2016

BACKGROUND DATES AND EVENTS

1. Mr Daniel Simms applied for Disability Support Pension (DSP) on 13 July 2015.

2. On 15 January 2015 the Applicant had undergone a Job Capacity Assessment (JCA1).  JCA1 recommended that Mr Simms’ chronic pain condition was fully diagnosed but not fully treated at the time as he was engaged in treatment recommended by his pain specialist.  JCA1 recommended that the Applicant’s depressive condition was not verified (but, relevantly, see paragraph 27 below). JCA1 said no impairment points could be assigned.

3. On 25 August 2015 the Applicant underwent a second Job Capacity Assessment (JCA2).  JCA2 recommended that 5 impairment points be assigned for his depressive condition, and 10 points for his spinal condition, but that impairment ratings could not be assigned for his fibromyalgia condition or his respiratory condition, as these conditions were not fully diagnosed, fully treated or fully stabilised.

4. On 2 September 2015, his claim for DSP was rejected.  The Applicant requested a review of this decision by an Authorised Review Officer (ARO), an independent officer employed within the Department.

5. On 21 October 2015 the ARO affirmed the original decision, agreeing with the total assignment of 15 impairment points.

6. Mr Simms lodged a review with the Social Services and Child Support Division of this Tribunal (AAT1).  That hearing took place on 15 September 2015.

7. AAT1 decided that the correct impairment rating for Mr Simms’ conditions was 10 points for his depressive condition and 10 points for his spinal condition.  AAT1 agreed that the fibromyalgia condition was not fully treated and fully stabilised at the date of the claim.  However, AAT1 affirmed the original decision that the Applicant was not qualified for DSP because he had not undertaken a program of support.

8. Mr Simms appealed to the General Division of the Tribunal. That is this hearing.

   HEARING

9. The hearing was held on 30 August 2016 by telephone. The Applicant represented himself, gave affirmed evidence and was cross-examined by counsel for the Respondent, Ms Katherine Whittemore.

   THE LAW

   Qualification for DSP under the Act

10. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

11. 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 has –

    (a)  a physical, psychological or mental impairment; and

    (b) the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c) a continuing inability to work.

12. 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. This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

13. 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.

14. 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.

15. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, the impairment is assessed to be a ‘severe’ impairment. If a person is assigned 20 or more points under more than one Impairment Table (as AAT1 assigned to Mr Simms), then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    What is the relevant period for considering the claim?

16. The Social Security (Administration) Act 1999 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.

17. So the ‘window’ for assessing qualification for DSP in Mr Simms’ case is the period starting on 13 July 2015 and ending on 12 October 2015.  We will describe this as the ‘relevant period’.

    QUESTION AT ISSUE

18. Was the Applicant eligible for DSP on the date he lodged his claim (13 July 2015) or, applying the provisions of clause 4(1) of Schedule 2 of the Social Security(Administration) Act 1999, if he was not eligible on that date did Mr Simms become eligible on a date in the thirteen week period after lodging the claim, which ended on 12 October 2015?

    APPLYING THE LAW

    Does the Applicant have a physical, intellectual or psychiatric impairment?

19. In her medical report dated 9 October 2014, Dr Julie Gallagher, general practitioner, stated that Mr Simms was diagnosed with chronic back pain and bilateral radicular leg pains, and that this diagnosis had been confirmed by the pain clinic at Fremantle Hospital (but no medical professional was named).  Dr Gallagher also stated that the Applicant had been diagnosed with depression in 2006 but did not state by whom.  A third condition she cited was listed as “? fibromyalgia – awaiting diagnosis”.

20. Dr Stephanie Davies of the Pain Medicine Unit at Fremantle Hospital wrote a medical report on 14 November 2014 with the following confirmed diagnoses: Chronic low back pain and bilateral radicular lower limb pain L>R; L4/5 increased T2 posterior disc; Depression/Anxiety; Raised ferritin; Cranial MRI exclude MS – MRI 2013; Hyperlipidaemia diagnosed June 2014.

21. Katia Ishimaru, clinical psychologist, in a medical letter dated 8 April 2015 referred to the Applicant measuring in the severe range for depression and the extremely severe range for anxiety and stress.  Dr Shanker Sivaprakasam, general practitioner, stated in a medical certificate dated 21 May 2015 that the Applicant suffered from the following conditions, all of which he listed as chronic: Lumbar spondylosis and multilevel disc prolapses; Fibromyalgia; Anxiety and depression. In a separate letter dated 27 January 2015, Dr Sivaprakasam referred to Mr Simms having Major Depressive Disorder, Stress and Anxiety and said that he currently has a mental health plan active at Rockingham Psychology.

22. The Respondent, in his submission, accepted that the Applicant has impairments.

23. I find that Mr Simms does have impairments at the relevant time and therefore satisfied section 94(1)(a) of the Act.

    If so, what is the correct rating under the Impairment Tables?

24. When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.

25. In particular, Rule 6(3) provides that 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.

26. In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner, and the condition must be fully treated and fully stabilised, and the condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

    Mental health condition

27. Dr Michael Duke, psychiatrist, in a medico-legal report dated 6 October 2015, refers to a condition of major depression as of ‘some five years ago’.  After examining the Applicant, he diagnosed longstanding Major Depression, currently in partial remission DSM-IV 296.25.

28. Katia Ishimaru, clinical psychologist, on 8 April 2015, refers to seeing Mr Simms over several sessions (the Applicant advised JCA2 on 17 August 2015 that he had attended nine sessions at that time) in relation to his depressive condition and anxiety, and by a further letter dated 24 March 2015 referred to the various impacts on the Applicant, without stating a specific diagnosis, nor stating when these functional impacts were apparent. On the basis of Dr Duke’s diagnosis, I find that Mr Simms did suffer a depressive condition capable of being assessed under the Impairment Tables at the relevant date.

29. The Applicant gave evidence at the hearing about his daily life.  He told the Tribunal that he drives but does not drive for long distances – saying that a 10-15 minute trip would be the extent of his range. He said he spends his time at home tinkering with mobile telephones, for which he has some aptitude.  Friends will visit with software problems and he will try and fix their phones for them.  He has an interest in Formula 1 motor sport and formerly worked on supercar teams, when his health was better.  He told the Tribunal that he has a supportive family and saw them about once a month in the relevant period when they would visit to see their grandchildren.  He said he will try and play with his children sitting at a table, using plastic blocks and the like.  He enjoys reading popular fiction and named some of his favourite authors.  He spoke about how supportive his wife is with his health conditions and said he did not like having to rely on her so much.

30. Mr Simms gave evidence that he had friends and former work colleagues who came to visit him, about once or so a month during the relevant period.  He said that he had limited his social interactions because of his back pain and ‘felt judged’ because people cannot ‘see’ his physical disability.  He felt that people trivialise the problem he has because they don’t understand it.  Sometimes, he said, he found it hard to leave home and would become tearful.  If he had suicidal thoughts (which he said he had had in the past, but told JCA2 he had not had since undertaking his sessions with Ms Ishimaru), he said he would talk to his doctor.

31. On balance and on his own evidence, the Applicant is correctly assigned 5 impairment points under Table 5 for his mental health condition.  It has a ‘mild functional impact’ on him.  In regard to assigning a ‘moderate functional impact’, Mr Simms’ condition does not meet the Descriptor regarding interpersonal relationships by reason of the evidence about his work colleagues, friends and family.  He does not meet the Descriptors regarding concentration and task completion and work/training capacity by reason of his evidence about reading and playing with his children and he gave no evidence of conflicts at work – quite the opposite, he said he got on well at work with his colleagues and supervisors when he was working as a motor mechanic.  This is supported by the fact that some of his work colleagues still visit him.  He does meet the Descriptor in regard to self-care and independent living.  But under this part of the Determination, most of the Descriptors must be satisfied to be assigned a ‘moderate’ impairment rating, and they were not in the relevant period.

32. When faced with competing evidence in regard to Dr Duke’s assessment and the JCA and the Applicant’s own evidence, the Tribunal must on balance look to the functional impact of a condition, not solely the medical diagnosis.  I have no doubt that Mr Simms has had a long standing depressive condition, which he has found challenging, but the functional impact on him in the relevant period correctly warrants the assignment of 5 impairment points.

    Spinal condition

33. There is ample corroborative medical evidence of Mr Simms having a spinal condition as mentioned above in Dr Davies’ medical report.   For example, Dr Ai Tran, rheumatologist, refers to it in his medical letter of 11 March 2015:

    I note the MRI scan of the lumbar spine from January 2014 showing multi level disc disease. There as [sic] a shallow posterior disc protrusion at l3/4 [sic] and L4/5 and L5/S1 associated with mild disc dislocation.

34. Mr Simms gave evidence that he can dress himself, but not socks and shoes, which his wife helps him with owing to his back injury.  He can put a t-shirt on by putting his arms through it but cannot lift it over his head.  His wife assists him into and out of the shower.  He has had rails installed in the shower.  In terms of household chores, the Applicant said he cannot vacuum but would do dishes to help out.  He said he cannot do washing because he cannot bend into the washing machine or hang clothes up.  He said he could use public transport and did so to attend medical appointments at Fiona Stanley Hospital, but usually did so accompanied by his wife, who is his carer.  He agreed that he did attend the AAT1 hearing by himself and travelled to it by bus and train.

35. He gave evidence that he uses Canadian crutches (which is also referred to in Dr Duke’s medical report).  At the end of 2014 had acquired a wheel-chair; he did not use it commonly in the relevant period but uses it every few weeks.

36. He said he usually catches the train if he needs for any reason to go into the central part of Perth. JCA2 said that Mr Simms can sit, including in a car, for 30 minutes. JCA2 reported that the Applicant’s visits to Fiona Stanley Hospital involved a public transport trip, including transfers, of some 40 minutes, each way.

37. Considering the Descriptors in Table 4 – Spinal Function, on the evidence Mr Simms correctly meets the ‘moderate functional impact’ rating.  He is able to sit in or drive a car for at least 30 minutes and is unable to sustain overhead activities.  He does not meet the Descriptors for ‘severe functional impact’ under this Table because he can bend forward to pick up a light object from a desk or table, as he told the Tribunal for example when playing with his children, and he also can remain seated for at least 10 minutes.  He is correctly assigned 10 impairment points for his spinal condition.

    Other conditions

38. In spite of Dr Gallagher’s annotation, I find on the other medical reports before the Tribunal that Mr Simms’ Fibromyalgia condition was fully diagnosed in the relevant period, but the Applicant told the JCA on 21 May 2015 that he was still expecting to see his rheumatologist, Dr Tran, who wanted to investigate the condition further and wanted the Applicant’s spinal condition to settle down first.  Accordingly, I cannot find that this condition was fully treated or fully stabilised in the relevant period.

39. In terms of his sleep apnoea, in his medico-legal report of 6 October 2015, Dr Farhan Shahzad, occupational health practitioner, reported that Mr Simms had been diagnosed ‘over the last two months’ and a CPAP machine was recommended.  This condition accordingly cannot be assessed as fully treated and fully stabilised in the relevant period and so cannot be rated under the Impairment Tables.

40. I find that Mr Simms in the relevant period is therefore correctly assigned a total of 15 impairment points, 10 points under Table 4 and 5 points under Table 5.

41. He therefore does not satisfy section 94(1)(b) of the Act.

    Continuing inability to work

42. It is not necessary for me to go on to consider whether Mr Simms had a continuing inability to work in the relevant period, because I have found that he was correctly assigned 15 impairment points.  For completeness, however, I note that the Applicant conceded during the hearing that he had not undertaken a Program of Support, which is required for a person to qualify for DSP where a person may be assigned 20 or more impairment points but is not assigned 20 points under a single impairment table.

43. Section 94(2)(aa) of the Act states that in a case where a person’s impairment is not a severe impairment within the meaning of subsection (3B), the Secretary of the Department must be satisfied that the person has actively participated in a program of support. The phrase ‘program of support’ is defined in section 94(5) of the Act.

44. Therefore I note that the Applicant did not satisfy the provisions of section 94(2)(c) in terms of ‘a continuing inability to work’ in the relevant period.

    CONCLUSION

45. There is no doubt that Mr Simms faces significant health challenges, but the Tribunal must look at the functional impact at the time a claim for DSP is made and thirteen weeks thereafter.  I cannot take into account subsequent changes in an Applicant’s health unless that is directly referrable to the relevant period.

46. Section 94(1) is a conjunctive subsection of the Act – each part of it must be satisfied for a person to be qualified for DSP. As the Applicant did not satisfy each part of the subsection in the relevant period, the original decision was correct. Mr Simms was not qualified for DSP in that relevant period.

    DECISION

    The reviewable decision is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member

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Administrative Assistant - Legal

Dated 12 October 2016

Date of hearing	8 September 2016
Applicant	In person
Representative for the Respondent	Ms K Whittemore
Solicitors for the Respondent	Mills Oakley Lawyers