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

[2020] AATA 1161

Smith and Secretary, Department of Social Services (Social services second review) [2020] AATA 1161 (6 May 2020)

Division:GENERAL DIVISION

File Number(s):      2019/6752

Re:Jason Smith

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Damien O'Donovan

Date:6 May 2020

Place:Canberra

The decision under review is affirmed.

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Senior Member Damien O'Donovan

SOCIAL SECURITY – Disability Support Pension – multiple impairments suffered by the applicant – whether the impairments together form an impairment rating of 20 points under the Impairment Tables – Table 7 considered – Table 9 considered – confidence intervals on IQ testing - only the cognitive impairment able to be assigned an impairment rating - applicant does not meet the threshold of 20 points under the impairment tables – decision under review affirmed

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1994 (Cth) s 142
Social Security (Tables) for the Assessment if Work-related Impairment for Disability Support Pension) Determination 2011

Simon Whitaker, ‘Intellectual Disability: An Inability to Cope with an Intellectually Demanding World’ (University of Huddersfield, UK and South West Yorkshire Partnership NHS Foundation Trust, 1^st ed, 2013) Appendix II.

REASONS FOR DECISION

Senior Member Damien O'Donovan

6 May 2020

INTRODUCTION

1. Mr Smith applied for a Disability Support Pension (DSP) on 26 July 2018. His application identified a number of conditions from which he suffered including cognitive impairments which he had suffered from since childhood. On 19 December 2018, the respondent made a decision refusing the application for DSP because he did not meet the statutory requirements required to qualify. On 8 July 2018 that decision was affirmed on internal review by an Authorised Review Officer. The review decision was then subject to Tier 1 review in the Social Security and Child Support Division of the Administrative Appeals Tribunal (Tribunal). On 4 October 2019 Member Windsor made a decision, affirming the decision under review.

2. On 21 October 2019 Mr Smith applied to the General Division of the Tribunal for Tier 2 review.[1]

   [1] Which is provided for by section 142 of the Social Security (Administration) Act 1999.

3. The issue before the Tribunal is whether Mr Smith qualifies for the DSP in the period 26 July 2018 to 25 October 2018 (the qualification period).[2] To determine that issue it is necessary to address the criteria in section 94 of the Social Security Act 1991 (Cth) (the Act) and whether they were satisfied during the qualification period.

   [2] It is common ground between the parties that this is the relevant period to be considered.

4. Section 94 of the Act relevantly provides:

   (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…

5. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The Determination includes a number of rules which must be applied when determining the applicable impairment points. Where relevant these are discussed in the body of these reasons.

6. A hearing was conducted on 24 April 2020 by telephone.

7. I took into evidence the section 37 Tribunal Documents (T Documents) which included the Tier 1 decision of the Tribunal. I also took into evidence two supplementary T Documents being a Confidential Psychological Assessment Report dated 18 December 2018 by psychologist Ms Hannah Hall (ST1) and a report entitled Periods of Active Participation in a Program of Support covering the period 25 July 2015 to 25 July 2018 (ST2).

8. Mr Smith confirmed the correctness of the evidence which he gave at the Tier 1 review as recorded in the decision of the Tier 1 Tribunal and indicated that he did not have anything to add to that.

9. He also confirmed that he had assistance in filling out his application for Tier 2 review dated 21 October 2019. The only other evidence obtained during the course of the hearing from Mr Smith was that he confirmed that his learning difficulties had been present since childhood.

10. The respondent relied upon the material in the T Documents and the two supplementary T Documents identified above.

    CONSIDERATION

    Does Mr Smith have a physical, intellectual or psychiatric impairment?

11. It is not in dispute that Mr Smith suffers from a cognitive impairment (learning disability) which should be assessed under the Impairment Tables. Accordingly, paragraph 94(1)(a) of the Act was satisfied during the qualification period.

    Do Mr Smith’s impairment(s) attract 20 Points or more on the Impairment Tables?

12. Mr Smith claims to have a number of impairments which should be assessed under the Impairment Tables:

    (a)Cognitive Function;

    (b)Head Injuries;

    (c)Depression and Anxiety;

    (d)Speech impairment; and

    (e)Alcohol dependence.

13. Each needs to be considered to determine what impairment points (if any) they attract under the Determination.

    Cognitive Function

14. The respondent accepts that within the relevant period Mr Smith’s condition of cognitive impairment (learning disability) was permanent and contends that the appropriate Impairment Table to be used for assessing the disability is Table 7.

15. Mr Smith submits in his application for Tier 2 review that Table 9 is the correct Impairment Table to use.[3]

    Is Table 9 the appropriate Impairment Table?

    [3] T1, folio 2.

16. Table 7 covers cases where a permanent condition results in functional impairment related to neurological or cognitive function. Table 9 is used where the person has a permanent condition resulting in low intellectual function (IQ score of 70 to 85) resulting in functional impairment, which originated before the person turned 18 years of age.

17. As Mr Smith’s condition originated before he was 18 years of age (and therefore meets one of the thresholds for consideration under Table 9), to apply Table 9 the key question is whether he has a ‘permanent condition resulting in low intellectual function (IQ score of 70 to 85)’.

18. The answer to that question depends upon the results of the IQ test administered by Ms Hannah Hall in December 2018. Ms Hall used the Wechsler Adult Intelligence Scale – fourth edition (WAIS-IV) to determine Mr Smith’s IQ. On its face, that report is not supportive of assessment under Table 9. Mr Smith’s Full Scale IQ result is expressed as ‘FSIQ=86; 95% confidence interval 82-90’.[4]

    [4] ST1, folio 282.

19. The Tribunal decision at Tier 1 took the view that the FSIQ result meant that Mr Smith met the intelligence threshold for assessment under Table 9 because some of the scores in the confidence interval fall within the 70-85 range specified by Table 9.[5] The Tribunal’s Tier 1 conclusion was expressed in the following terms - ‘it would be reasonable to use Impairment Table 9 to allocate impairment points, given the 95% confidence interval includes Mr Smith’s IQ’.[6]  I do not agree that that is the case.

    [5] Although for other reasons assessed the impairment under Table 7.

    [6] T2, folio 7.

20. Before explaining why, it is worth taking a moment to set out what the report of Ms Hall means when she records a single figure IQ (86) and broader 95% confidence interval (82-90), and how the results should be approached when applying the Table 9 requirements.

21. The presence of a confidence interval on a test score serves as a useful reminder that test scores are fallible. Confidence intervals recognise this and counter any tendency to treat the score obtained from a single test on a specific day as certain. They serve the purpose of quantifying this fallibility. Underlying the inclusion of a confidence interval is the idea that there is a difference between a person’s true IQ score and the IQ of a person measured on any particular day. It reflects the fact that there are limits on precision when using any tool and the administration of an IQ test is no different.

22. This is significant in the context of the DSP. As has been pointed out in relation to intellectual ability:[7]

    …true intellectual ability cannot be measured accurately in the low range. It follows from this that we should not be using cut-off points in diagnosis or making statements about what an individual’s IQ is without a lot of qualification with regard to the test error. However, as things are at the moment, with intellectual disability still being defined in terms of an IQ cut-off point, it is likely that psychologists will be called upon to make an estimate of what somebody’s true intellectual ability is.

    [7]Simon Whitaker, ‘Intellectual Disability: An Inability to Cope with an Intellectually Demanding World’ (University of Huddersfield, UK and South West Yorkshire Partnership NHS Foundation Trust, 1st ed, 2013) Appendix II.

23. That is what is required in this case under Table 9.

24. To qualify for assessment under Table 9, low intellectual function must be established. The IQ score which qualifies a person for such an assessment must be in the range from 70-85. In December 2018 the Mr Smith’s IQ was measured at 86, giving him an IQ score outside of the range. However, the person who administered the test has provided a confidence interval, reminding the reader that while this was the score Mr Smith achieved on that day, due to limitations in the testing his ‘true IQ’, that is, the IQ ascertainable with a less imperfect method of measurement, is somewhere in the range of 82-90. That view can be stated with 95% confidence.

25. The question then is, given that some of the numbers in that confidence interval fall below the 85 cut off point specified in the introduction to Table 9, does that mean that Mr Smith can be treated as having an IQ in the range of 70-85? The evidence in my view does not go that far.

26. To apply Table 9 I need to be satisfied that the pre-requisites specified in the introduction to the Table are established on the balance of probabilities. Given the results of Ms Hall’s testing, I could not be satisfied that the Mr Smitht’s ‘true’ IQ score falls within the 70-85 range on the evidence I have available. Even avoiding the trap of treating the single score achieved by Mr Smith on the single test administered as definitive, the evidence available makes it more likely than not that his IQ is above 85. The range of scores, for which the psychologist has a high level of confidence that Mr Smith falls within, contains 4 scores at or below the cut off (82-85) and 5 scores above (86-90). On the balance of probabilities the score will be 86 or above. Accordingly, the evidence sustains a finding that Mr Smith does not have an IQ score (true or based on the test administered) that would qualify him for the use of Table 9 of the Impairment Tables.

27. Further, even if I were to treat the IQ score as merely a means of illustrating what constitutes ‘low intellectual function’ rather than a binding rule which excludes the use of Table 9 if a score above 85 is obtained or likely, the psychologist assessed Mr Smith’s intellectual function as ‘low average’ rather than low.

28. In these circumstances, I am satisfied that Table 9 cannot be used for assessment of Mr Smith’s impairment.

    How many points does Mr Smith attract under Table 7?

29. The appropriate Table for assessing Mr Smith is Table 7. Table 7 is used where there is a permanent condition resulting in functional impairment related to neurological or cognitive function. That is established in Mr Smith’s case. Mr Smith has a permanent condition resulting in functional impairment related to neurological or cognitive function. That impairment has been assessed by a medical practitioner and there is corroborating evidence of that impairment in the psychological testing administered by Ms Hall. Mr Smith’s evidence is that he has had the problem as long as he can remember. So much is accepted by the respondent.

30. Mr Smith gave evidence on Tier 1 review and confirmed that evidence in these proceedings about the effect of the impairment. The relevant evidence recorded was:

    (a)He has had learning problems all his life and he left school at a young age.

    (b)Everywhere he is sent he has to fill in multiple forms. He is unable to concentrate long enough to do this. He gets frustrated explaining over and over that he is unable to do it.

    (c)He cannot complete the courses he is sent to because it gives him anxiety.

    (d)He forgets things very quickly. If things are too involved his brain can’t keep up and he loses the information.

    (e)Despite these problems he is an organised person. He is reliable. He pays his bills on time. He is able to budget for his shopping. He can check if he has been charged the right amount. He was able to get to work on time in the past.

    (f)He is able to live alone, feed and dress himself, and he has had full care of his daughter in the past.

    (g)He can drive and he can catch public transport easily. He can ask if he is not sure about something.

    (h)He finds routine things are OK. He is fine in his own environment.

    (i)He rides his bike a lot. He enjoys kayaking and camping.

    (j)He does not mix with a lot of people, although he used to. He is a member of a club and he sometimes takes his daughter there for dinner.

    (k)He cannot use computers or search engines, but he can use Google Maps and can ask Google something if he needs to.

    (l)He has had quite a few head injuries and been knocked out quite a few times.

    (m)He does not consider that he is dependent on alcohol or that its use affects his functioning. He has had drug and alcohol counselling in the past, sometimes court ordered.

31. The psychologist, Ms Hall, as well as administering the Wechsler Adult Intelligence Scale – fourth edition (WAIS-IV) to determine Mr Smith’s IQ, made the following findings:

    (a)Mr Smith reported difficulty learning new tasks and needs to be shown simple tasks a number of times before being confident to do them alone.

    (b)Mr Smith reports difficulty organising things, doing timesheets and trying to manage money.

    (c)Mr Smith reported difficulty dealing with social interactions.

    (d)Mr Smith reported difficulty keeping directions and instructions in his head.

    (e)Mr Smith struggles in large groups and is better suited to participation or work in small groups.

    (f)Mr Smith’s literacy skills are poor.

    (g)Mr Smith has difficulty understanding complex instructions.

    (h)Mr Smith cannot learn under pressure and he can only store a limited amount of information.

    (i)Mr Smith is more likely to benefit from aides such as mind maps, diagrams and video and film material, which would be easier for him to process.

32. General Practitioner (GP), Dr Celestine Ezekwe, provided a medical certificate dated 26 June 2019 noting that Mr Smith cannot perform any exercise that requires him to read and write and that he cannot fill out forms.[8]

    [8] T26, folio 215.

33. The respondent contends that the evidence establishes that Mr Smith’s condition should be rated as mild and therefore attracts only 5 points under Table 7. I disagree.

34. In order to attract 10 points under Table 7 (as the Tribunal found on Tier 1 review) a person must need occasional assistance (less than once a day) with day to day activities and have moderate difficulties with one of the nine descriptors listed at that impairment rating.

35. The respondent concedes that Mr Smith has moderate difficulties with the comprehension descriptor listed in Table 7 as attracting 5 points. This difficulty is corroborated in Ms Hall’s report. Accordingly, the requirement for moderate difficulties with at least one descriptor is met.

36. The respondent also accepts that Mr Smith has provided evidence of a need for occasional assistance with day to day activities such as filling out forms. What the respondent does not accept is that Mr Smith’s need for occasional assistance is corroborated. The respondent submits that subsection 8(1) of the Determination which is one of the rules for applying the Impairment Tables, is that the evidence of Mr Smith must be corroborated before a 10-point rating under Table 7 can be given.

37. Subsection 8(1) provides:

    Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

38. I accept that this rule means that Mr Smith is required to provide corroborating evidence concerning his need for assistance in filling out forms. I am satisfied that there is corroborating evidence of such a need. T26 provides that evidence.[9] In these circumstances I am satisfied that Mr Smith does qualify for a 10-point rating under Table 7.

    [9] See T26.

39. I am not satisfied that Mr Smith qualifies for a 20-point rating under Table 7. To qualify for such a rating a person needs frequent (at least once a day) assistance and supervision and must have severe difficulties with at least one of the descriptors listed. There is no evidence which would support the conclusion that Mr Smith needs assistance and supervision at least once a day. Mr Smith lives independently and requires only occasional assistance with day to day activities.

40. Accordingly, if Mr Smith is to meet the 20-point threshold it will be necessary for him to qualify for additional points in relation to his other conditions.

    Head Injuries

41. In relation to Mr Smith’s head injuries the respondent submits that there is insufficient evidence of any functional impairment arising out of the condition which is separate from Mr Smith’s cognitive functional impairment. I accept that submission.

42. As the Tribunal noted in its Tier 1 decision, there is good evidence that Mr Smith has suffered multiple head injuries and there is medical evidence that these injuries could be implicated in Mr Smith’s limited attention and concentration. However, as these impairments have already been formally assessed by Ms Hall and are included in the impairment points already allocated to Mr Smith under Table 7 in relation to his learning disability, no change to the rating results if this condition is included.[10]

    [10] See s 10(5) of the Determination.

    Depression and Anxiety

43. The respondent contends that Mr Smith’s condition of depression and anxiety was not permanent during the period 26 July 2018 and 25 October 2018, therefore no impairment points can be allocated.

44. To make good on this submission the respondent contends that the Introduction to Table 5 (under which mental health conditions are dealt with) requires the diagnosis of the condition to be made by an appropriately qualified medical practitioner being a psychiatrist or clinical psychologist. This does not precisely reflect the introduction to Table 5 which provides as follows:

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

45. Nothing however turns on the difference in phrasing.

46. The evidence on Mr Smith’s anxiety consists of:

    (a)On 22 December 2017, Dr Jawaid (GP) reports Mr Smith has anxiety, with treatment listed as diazepam and ‘psychologist if agrees’;[11]

    (b)On 16 January 2018, Dr Jawaid reports Mr Smith has anxiety, and lists him as attending a psychologist and counselling as treatment.

    [11] T14, folio 158.

47. There is no confirmation of the diagnosis by either a psychiatrist or a psychologist.

48. Under the rules for applying the Impairment Tables, the following requirements are set out:

    (a)An impairment rating can only be assigned if the person’s condition causing that impairment is permanent (s 6(3)(a));

    (b)A condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner (s 6(4)(a));

    (c)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner…for the purposes of paragraph 6(4)(a)…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) what treatment is continuing or is planned in the next 2 years (s 6(5)).

1. In the present case there is no diagnosis by an appropriately qualified medical practitioner. The introduction to Table 5 makes clear that where a GP’s diagnosis is relied upon, evidence from a psychologist must also be provided. None has been provided to support the opinion of Dr Jawaid. Consequently, the condition cannot be regarded as permanent and (applying s 6(3)(a)) no impairment rating can be assigned for the condition.

   Other conditions

2. In relation to Mr Smith’s claimed conditions of speech impairment and alcohol dependence the evidence of the conditions is limited. In relation to alcohol dependence, Mr Smith’s evidence at Tier 1 review, which was confirmed as accurate before me, was that ‘he has a few drinks but he does not consider he is dependent on alcohol or that its use affects his functioning.’[12]

   [12] T2, folio 6.

3. There is no medical evidence giving a diagnosis of alcohol dependence.

4. Equally there is no medical evidence to support the claim of speech impairment.

5. Accordingly, there is not sufficient evidence to establish that either of these conditions are permanent such that an impairment rating can be assigned in relation to them.

   OVERALL IMPAIRMENT RATING

6. Consequently, the only condition in respect of which Mr Smith can be assigned an impairment rating is his impaired cognitive functioning (learning disability). I have assigned that condition 10 points under Table 7. No other points can be assigned in relation to the other conditions in respect of which impairment is claimed.

7. As an applicant requires 20 impairment points to be entitled to receive the DSP, Mr Smith does not satisfy the requirements of section 94(1) of the Act during the period 26 July 2018 - 25 October 2018.

8. The decision under review is affirmed.  

I certify that the preceding 56 (fifty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

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Associate

Dated:  6 May 2020

Date(s) of hearing:	24 April 2020
Applicant	In Person
Respondent	Ms Dinkha, Services Australia