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

[2021] AATA 3091

Smith and Secretary, Department of Social Services (Social services second review) [2021] AATA 3091 (30 August 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6452

Re:Julie Marie Smith

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member A Durkin

Date:30 August 2021

Place:Adelaide

The Tribunal sets aside the decision under review and in substitution decides that the Applicant qualifies for the Disability Support Pension as at 22 November 2019 when the Applicant first applied to the Department for that benefit.

...............................[Sgnd]........................................

Member A Durkin

SOCIAL SECURITY – disability support pension – whether medical conditions diagnosed, treated and stabilised during the qualification period - whether an impairment rating of 20 points or more existed under the Impairment Tables - decision under review set aside and substituted with a decision that the applicant qualifies for the DSP as at 22 November 2019.

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Secondary Materials

Social Security (Tables for the Assessment – Related Impairment for Disabilities and Support Pension) Determination 2011

REASONS FOR DECISION

Member A Durkin

30 August 2021

1. This is an Appeal from a decision of AAT 1, made on 16 September 2020, that the Applicant Ms Julie Smith was not qualified for the Disability Support Pension (“DSP”). 

2. Ms Smith had applied to the Department for the DSP on 22 November 2019. She identified her medical conditions which affected her ability to work as rotator cuff surgery, tennis elbow, T12/L1 chronic crush back fracture, blood clots, thoracic outlet syndrome and anxiety[1].

   [1] T10, p 137.

3. Centrelink determined, on 5 February 2020, that Ms Smith was not qualified for the DSP as she was short of the requisite twenty impairment points from the relevant impairment tables (see below).

4. Ms Smith sought internal review of that decision by an Authorised Review Officer (ARO) and on 15 May 2020 the ARO affirmed the original decision[2].

   [2] T3, p 16-22.

5. The Applicant then made a further application for review of that Determination.

6. The matter  came before Member Windsor for first tier review, whereby a hearing was conducted by telephone on 16 September 2020 and a decision published that date affirming the decision under review and thus confirming the decision to reject the application for DSP made by the ARO.

7. Section 94(1) of the Social Security Act 1991 (the “Act”) sets out the criteria by which an applicant would be qualified for the DSP. According to s 94(1)(a)-(c) of the Act the issues to be considered within the present review are:

   (a)Whether as at the date of the Applicant’s claim for DSP on 22 November 2019 (or within 13 weeks of that date) the Applicant had any physical, intellectual or psychiatric impairment;

   (b)If so, whether the Applicant’s impairment or impairments attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment – Related Impairment for Disabilities and Support Pension) Determination 2011 (the “Impairment Tables”); and

   (c)If the Applicant did so attract an impairment rating of at least 20 points, whether the Applicant had a continuing inability to work, work being defined in that section as:

   “... at least 15 hours per week on wages that are at or above the relevant minimum wage”.  

8. The Tribunal is bound to make the within assessment by consideration of the Applicant’s qualification for DSP within the qualification period between 22 November 2019 and 21 February 2020.  In the considerable material before the Tribunal there were reports from medical and allied professionals including from the Applicant’s treating physiotherapist, Dr Margaret Magarey, who wrote a report on 16 November 2019; which date, the Tribunal notes, was relatively proximate to the commencement date of the qualification period.  Dr Magarey had been treating the Applicant since February 2016 for a painful right shoulder, significant arm and anterior chest oedema following brachial vein thrombosis and ongoing issues with right lateral elbow pain.

9. The Applicant’s treating general practitioner, Dr Daniel James of the Owen Terrace Medical Practice in Wallaroo, provided to the Tribunal several reports. The more significant of the reports prepared by Dr James which the Tribunal has considered are those addressed “To Whom it May Concern” of 10 September 2020 and a report, similarly addressed though undated but which, by other material in the Tribunal’s file, the Tribunal was able to find emanated from approximately December 2020.  In his report of 10 September 2020 Dr James discusses the Applicant’s ongoing problems of anxiety and depression.  At AAT 1 Member Windsor found that:

   “As the Tribunal has no confirmation of any mental health care diagnosis from a clinical psychologist or a psychiatrist, the legislation dictates that the depression cannot be fully diagnosed as at the date of Ms Smiths DSP claim and therefore impairment points cannot be allocated”[3].

   [3] T2, p 15, para 42.

10. This Tribunal accepts that this is so. 

11. The relevant impairments for consideration by this Tribunal are of the use of the hands and arms and the spinal function.

12. In the report of 10 September, Dr James notes that the Applicant had undergone rotator cuff decompression on 20 October 2015 under the care of Orthopaedic Surgeon, Dr Richard Crowley.

13. Dr James notes that the Applicant was subsequently diagnosed with a thrombosis provoked by this surgical intervention. The Applicant was also diagnosed with a thoracic outlet syndrome.  He notes the diagnosis of that condition by Dr Gareth Crouch, a Cardio-Thoracic Congenital Cardiac Surgeon at the Royal Adelaide Hospital.

14. In paragraph (f) of this report, Dr James states:

    “Julie has ongoing functional difficulties that impact a range of daily living tasks and continues to significantly limit her capacity to perform tasks. Thus Julie’s chronic condition has severely restricted her from doing many of her usual tasks.  She will barely be able to continue doing the 15 hours that she is doing now”. 

15. It seems from this report that Dr James at the time (September 2020) was of the understanding that the Applicant was able to perform 15 hours work.  As will be seen below this was not the evidence that Ms Smith gave to this Tribunal.  Further, in his report of 18 December 2020, Dr James states:

    “Julie is unable to complete even 15 hours of work because of pain, fatigue, swelling, numbness of arms, elbow, hands and fingers”. 

16. In consideration of the requirements for qualification for the DSP, as contained in s 94 of the Act, this Tribunal was satisfied that Ms Smith has a number of physical impairments as described hereabove and as diagnosed by Dr James and set forth in his report of 10 September 2020. Thus the requirements of s 94(1)(a) are satisfied in the Applicant’s case.

17. Turning to the requirements of s 94(1)(b) and consideration of the Applicant’s impairment rating under the relevant Impairment Tables:

    (i)Ms Smith gave evidence to this Tribunal by video link as did Dr James.  The Applicant’s evidence to this Tribunal was that she is in pain every day from any task which requires use of the arms.  She stated in respect of her arms that she does not have “duration” which the Tribunal took to be a resilience or capacity to endure with work involving prolonged use of the arms;

    (ii)The Applicant is a self-employed hairdresser which, she noted in her evidence to the Tribunal was fortunate as she needed many breaks and was able, as a self-employed person, to take them.  Her work was at an aged care home run by Eldercare and by Star of the Sea Home for the Aged.  The Tribunal had before it the contracts of employment in respect of those engagements and notes that the latter does not set out any particular hours to be worked;

    (iii)The Applicant’s evidence to this Tribunal was that she had “swelling” of the upper limbs every day and that she could not do any housework on her working days.  Her evidence to this Tribunal was that 13 hours a week was her “max” and that accordingly she will accept appointments only to that capacity.

18. Subsequent to the taking of evidence on 25 June 2021, Ms Smith forwarded to this Tribunal a number of handwritten documents including diary extracts.      

19. Ms Smith said that she was able to do 4 ½ hours work over Tuesday, Wednesday and Thursday and giving herself an hour for lunch.  Her evidence to this Tribunal was that she can do the 13 hours that she is performing but her own experience has shown that she is not able to achieve 15 hours of work.

20. Mr Visser for the Respondent questioned the Applicant in this respect and particularly by reference to the level of her impairment under the relevant tables of the Impairment Guidelines.  The Applicant gave evidence in response to questions from Mr Visser that in respect of her upper limb condition her symptoms varied from time to time.  She confirmed that she has adjusted her work activities to suit her impairments and has altered most things that she does.  Her evidence was that she had a flare-up of her condition on 16 June 2019 and has not been able to sustain 15 hours of work since.

21. Mr Visser also asked the Applicant about “job plans” that were prepared during the qualification period in question which indicated that she was doing 15 hours of self-employment. 

22. The Applicant’s evidence was that the two nursing homes described above are her only work and that she sees no customers at her home. She maintained that she would not cope working at home in a home salon.  She stated that she has tried to do so but could not achieve this and she has tried to do 15 hours of work per week but has not been able to sustain this. This Tribunal accepts that evidence.

23. The Applicant also noted that her work at Eldercare in Minlaton also required two hours of driving and that the consequent effect on her upper limb and spinal condition was such that this contributed to her restraint of hours worked per week.

24. Mr Visser put to the Applicant that she could do 15 hours of work in a different job. True it is that the legislation does not require only that the Applicant be unable to sustain work for 15 hours per week in their chosen calling, but that the test is more general than this.

25. In terms of education and training the Applicant’s evidence was that she has been a hairdresser since she was 18 years old and had completed schooling to Year 11.  She had previously worked in a pharmacy. Her hairdressing career had been interrupted for a considerable period of time after she had turned 18 on account of her having three children.

26. The Tribunal noted that at AAT1, in paragraph 18 of the decision of 16 September 2020, there is recorded detail of the Applicant’s restrictions on activity and general impairment. This Tribunal accepts the matters set forth therein in consideration of s 94(1)(b) and the assessment under the Impairment Tables.

27. Table 2 deals with upper limb function.  By reference to Dr Daniel James’ report (undated but oriented to 18 December 2020) under the heading of “Upper Limbs” Dr James corroborates from a medical perspective the Applicant’s own evidence of the functional impact on activities using the hands and arms.  Contrary to the assessment made at AAT 1, this Tribunal finds that the relevant level of impairment is more appropriately allocated within the “moderate” assessment and thus attracts 10 impairment points.

28. Table 4 describes “Spinal Function” and, again, owing to the evidence of the Applicant which this Tribunal accepts, and owing to the medical corroboration in Dr Daniel James’ report of 18 December 2020, this Tribunal concludes that the Applicant is more appropriately placed in the “moderate” part of Table 4 and that the assessment would therefore attract 10 impairment points.

29. Thus, in respect of s 94(1)(b), it is this Tribunal’s assessment that Ms Smith’s impairment is appropriately rated at 20 points under the relevant Impairment Table.

30. Accordingly, this Tribunal is next required to consider the provisions of s 94(1)(c).

31. This Tribunal finds that s 94(1)(c)(ii) is not applicable in the matter before this Tribunal.

32. The question then remains whether the Applicant has a continuing ability to work for a minimum of 15 hours per week. On account of a different finding in respect of s 94(1)(b) at AAT 1, that Tribunal did not proceed to consider the requirements of s 94(1)(c).

33. In its submission to this Tribunal, the Respondent, in paragraph 4.61 of its Statement of Issues, Facts & Contentions,  accepted that the Applicant had a strong work ethic but contended that the Applicant would be able to perform “light clerical work which would involve minimal sitting and enable her to frequently alternate between sitting and standing for at least 15 hours per week”.  As noted above, it does not appear that the Applicant has any experience or training in respect of such clerical work and, moreover, the impairments which afflict her are not focussed upon her capacity to sit and stand or alternate between same but are primarily directed towards the head and neck and the upper limbs.

34. In his report of 10 December 2020, Dr James expressed the view that the Applicant was unable to complete “even 15 hours of work”, which assessment is corroborative of the Applicant’s evidence before this Tribunal that she had attempted to perform 15 hours work, including during the qualification period of 22 November 2019 to 21 February 2020, and found it beyond her physical capacity. This Tribunal accepts that evidence and finds that pursuant to s 94(1)(c)(i) the Applicant has a continuing inability to work, as defined within s 94 of the Act.

    DECISION

35. The decision under review is set aside and a decision substituted that the Applicant qualifies for the Disability Support Pension as at 22 November 2019 when the Applicant first applied to the Department for that benefit.

I certify that the preceding 35 (thirty five) paragraphs are a true copy of the reasons for the decision herein of Member A Durkin.

   ……………[Sgnd]……………………

  Administrative Assistant Legal

 Dated:  30 August 2021

Date of hearing:	25 June 2021
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Christian Visser, SERVICES AUSTRALIA