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

[2017] AATA 1520

Spahich and Secretary, Department of Social Services (Social services second review) [2017] AATA 1520 (18 August 2017)

Division:GENERAL DIVISION

File Number(s):      2017/0925

Re:Nusreta Spahich

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:M J McGrowdie, Senior Member

Date:18 August 2017

Date of written reasons:        21 September 2017

Place:Sydney

The decision under review is affirmed.

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

M J McGrowdie, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – spinal condition – upper limb condition – lower limb condition – pain condition – applicant has physical and psychiatric impairments – applicant’s impairments are not fully treated and stabilised – rating cannot be given under impairment tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

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

REASONS FOR DECISION

M J McGrowdie, Senior Member

21 September 2017

1. The applicant seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (otherwise known as AAT1). The AAT1 decision found that the applicant did not qualify for the Disability Support Pension.

2. The key issue to be determined in this matter is whether the applicant satisfied section 94 of the Social Security Act 1991 (Cth) (the Act). Section 94 outlines the requirements the applicant must meet to qualify for the Disability Support Pension. These requirements are as follows:

   ·The applicant must have either a physical, intellectual or psychiatric impairment or impairments (s 94(1)(a)) and;

   ·The applicant’s impairment or impairments must be rated  20 points or more under the Impairment Tables (s 94(1)(b) and;

   ·The applicant must have a continuing inability to work (s 94(1)(c)).  

3. The applicant must satisfy these requirements during the claim period which is 13 weeks. The applicant lodged her claim for the Disability Support Pension on 13 April 2016. Consequently, the claim period is from 13 April 2016 to 13 July 2016. This means the Tribunal is only permitted to look at evidence from the period of 13 April 2016 to 13 July 2016 in assessing whether the applicant satisfies the requirements of section 94.

4. The respondent concedes and the Tribunal accepts that the applicant suffers from physical and psychiatric conditions. This means the applicant satisfies section 94(1)(a) of the Act. Consequently, the central question in this application is whether the applicant’s impairments can be rated 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). In order for the applicant’s impairments to be given a rating the condition must be permanent (Impairment Tables 6(3)). A condition is permanent if it is fully diagnosed, treated and stabilised during the claim period (Impairment Tables 6(4)).

5. For the reasons provided below the applicant’s mental health function, pain condition, spinal function, upper limb function and lower limb function cannot be considered fully treated and stabilised. This means they cannot be given a rating under the Impairment Tables. I will demonstrate why this is the case below.

   Consideration

6. The applicant’s spinal, upper limb, lower limb and pain conditions cannot be considered fully treated and stabilised. In a report dated 26 October 2015 regarding the Applicant’s spinal, upper limb, lower limb and pain conditions Dr Guirgis, orthopaedic surgeon, “strongly recommended” that the applicant be referred to a good multi-disciplinary pain clinic such as the program in the Royal North Shore Hospital.  In his report on 12 September 2016 Dr Guirgis reiterated this opinion. The report of 12 September 2016 is dated after the claim period.   

7. I note the applicant considered Dr Guirgis had resiled from his earlier opinion that attendance at a pain management clinic was necessary because pain management would likely involve additional medication that may compound the applicant’s other medical problems.  However, the documentary evidence indicates that Dr Guirgis considered the applicant would benefit from pain management during the claim period. On this basis, the applicant’s spinal, upper and lower limb and pain conditions were not fully treated and stabilised during the claim period. 

8. I will now consider the applicant’s mental health function. The Tribunal does not consider that the condition was fully treated and stabilised during the claim period. The reason for this is the applicant had not undertaken reasonable treatment for depression during the claim period.  This is demonstrated by the report of Dr Barbara Newton dated 26 August 2017. This report states the applicant commenced counselling on 27 July 2016.   This date is outside the claim period which ended on 13 July 2016. Given the applicant commenced counselling outside the relevant claim period it cannot be said that her depression was fully treated and stabilised during this period as the applicant’s condition may have improved from the subsequent counselling she received.

   Conclusion

9. It might be the case that upon lodgement of a fresh application to the Department the applicant would have the materials necessary for an assessment to be made that her conditions were fully treated and stabilised. However, in respect of this application that is not the case and therefore, I affirm the decision made by the Social Services and Child Support Division of the Tribunal on 23 January 2017 which rejected the applicant’s claim for the disability support pension.

   Decision

10. The decision under review is affirmed.

I certify that the preceding 10 paragraphs are a true copy of the reasons for the decision herein of M J McGrowdie, Senior Member

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

Associate

Dated: 18 August 2017

Date(s) of hearing:	18 August 2017
Applicant:	In person
Solicitors for the Respondent:	Ms G Heggen, Department of Human Services