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

[2015] AATA 716

Spells and Secretary, Department of Social Services (Social services second review) [2015] AATA 716 (1 September 2015)

Division	GENERAL DIVISION
File Number	2015/0548
Re	Sharon Spells
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	1 September 2015
Date of written reasons	16 September 2015
Place	Adelaide

The application is dismissed pursuant to subsection 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, as the Tribunal is satisfied that it has no reasonable prospect of success.

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Deputy President K Bean

CATCHWORDS

PRACTICE AND PROCEDURE – Application for dismissal on the basis of no reasonable prospect of success – Applicant unable to establish that her impairments attracted a rating of 20 points or more under the Impairment Tables for the purposes of disability support pension – No reasonable prospect of establishing an entitlement to disability support pension during the relevant period – Application for review dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 42B

Social Security Act 1991, s 94

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

REASONS FOR DECISION

Deputy President K Bean

16 September 2015

1. The applicant, Ms Spells, has a number of significant health issues, including subacromial bursitis and impingement in her right shoulder, depression and anxiety, and on 13 June 2014 she lodged a claim to be paid the disability support pension (DSP). However, that claim was rejected by Centrelink and Centrelink’s decision that Ms Spells was not qualified to receive DSP was subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 14 January 2015.

2. On 6 February 2015, Ms Spells applied to this Tribunal for review of the decision of the SSAT, giving rise to these proceedings.

3. To date, two preliminary conferences have been conducted in the matter. The matter has not yet proceeded to a final hearing, however, on 3 July 2015, the solicitor for the respondent, Mr Hay, notified the Tribunal and Ms Spells that the respondent was of the view that Ms Spells had no reasonable prospect of success and her application should be dismissed for that reason.

4. Following a telephone directions hearing on 14 July 2015, the matter was accordingly listed for hearing on 25 August 2015 to determine whether the application should be dismissed. On 21 July 2015, Mr Hay provided to the Tribunal and sent to Ms Spells an outline of submissions in support of the respondent’s position that the application should be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act), on the basis that it had no reasonable prospect of success.

5. I will first set out the statutory framework governing entitlement to DSP, before addressing the question of whether Ms Spells has any prospect of establishing an entitlement to DSP in the context of this application.

6. I should add that following the hearing on 25 August 2015, on 1 September 2015 I decided that Ms Spells’ application should be dismissed, and gave oral Reasons for that decision. On 7 September 2015, Ms Spells requested written Reasons, and in response to that request I have prepared this written version of the Reasons I gave on 1 September 2015.

   STATUTORY FRAMEWORK

7. In order to qualify for DSP, Ms Spells would need to show that she met the qualification requirements as at the date of her claim on 13 June 2014, or within 13 weeks of that date.[1]

   [1]     Social Security (Administration) Act 1999, Schedule 2, clause 4.

8. Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act) which, at the relevant time, relevantly provided as follows:

   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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   …

   Continuing inability to work

   (2)   A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: 

   (aa)  in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)   in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)   in all cases—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.

   Note:  For work see subsection (5).

   (3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to: 

   (a)   the availability to the person of a training activity; or

   (b)   the availability to the person of work in the person's locally accessible labour market.

   DOES MS SPELLS HAVE A REASONABLE PROSPECT OF SATISFYING THESE REQUIREMENTS?

9. The respondent does not dispute that Ms Spells suffers from physical impairments and therefore satisfies subs 94(1)(a) of the Act. However, the respondent contends that she has no reasonable prospect of establishing that she suffers from an impairment or a combination of impairments which attracts 20 points under the Impairment Tables.[2]

   [2]     The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

10. As Mr Hay has pointed out in his written and oral submissions, the SSAT concluded that Ms Spells had an overall impairment rating under the Impairment Tables of 10 points based on the impairment of her right shoulder. The SSAT acknowledged that she also suffered from gastro-oesophageal reflux but found that this attracted an impairment rating of 0 points. That Tribunal concluded that her condition of anxiety and depression was not fully diagnosed, treated and stabilised, and therefore no points could be allocated for this condition.

11. In the context of her application to this Tribunal, Ms Spells has obtained and supplied additional medical evidence including a letter from her General Practitioner, Dr Moy, dated 14 July 2015 and a report from her Psychologist, Ms Neldner, dated 10 April 2015.

12. With respect to Ms Spells’ psychological condition, in her letter, Ms Neldner stated:

    In consultation with her GP Sharon has agreed to trial antidepressant medication. She also continues to benefit from psychological therapy to address interpersonal issues and build assertiveness. I would anticipate over time her depression and anxiety will reduce to more manageable levels … .

13. As this report confirms that as at the date of the report Ms Spells had not yet trialled antidepressant medication but was intending to do so, it clearly supports the SSAT’s decision that Ms Spells’ anxiety and depression was not fully treated and stabilised at the time she lodged her claim for DSP or within 13 weeks of that date.

14. With respect to Ms Spells’ shoulder condition, the applicable Table of the Impairment Tables is Table 2, which relevantly provides as follows:

Points

Descriptors

10

There is a moderate functional impact on activities using hands or arms.

(1)      The person has difficulty with most of the following:

(a)      picking up a 1 litre carton full of liquid;

(b)      picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)      holding and using a pen or pencil;

(d)      doing up buttons or tying shoelaces;

(e)      using a standard computer keyboard;

(f)       unscrewing a lid on a soft-drink bottle.

20

There is a severe functional impact on activities using hands or arms.

(1)      Most of the following apply to the person:

(a)      the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

(b)      the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

(c)      the person has difficulty using a computer keyboard despite appropriate adaptations;

(d)      the person has severe difficulty using a pen or pencil;

(e)      the person has severe difficulty turning the pages of a book without assistance.

1. The SSAT relevantly recorded Ms Spells’ evidence about her shoulder condition as follows:

   Ms Spells said she can consistently with the left hand lift about a 1 L container. Writing causes aching in her right hand and arm. She can complete a one-page form slowly but this takes probably three times as long as it previously did. Ms Spells said she can manage doing up laces; buttons she has difficulty with and she gets aching in the hands. She does not use a computer. She has a device to help her with removing the lids from bottles and jars; she cannot do this just using her hands. She said she is unable to lift a bulky light object with two hands. She is able to rest a book and turn the pages. She said her left hand gets tired during the day.[3]

   [3]     T2/6.

2. The SSAT also recorded the following from Dr Moy’s report of 5 June 2014:

   Ms Spells has right shoulder subacromial bursitis and impingement. Onset during 2010, diagnosis confirmed. Current treatment is exercise as prescribed by physiotherapist, Brufen, Panamax, Panadeine Forte. Past treatment is physiotherapy and painkillers and hydrotherapy. Future treatment is exercises and painkillers as required, consider further physiotherapy. Surgeons consider no further surgery will be of benefit. Current symptoms are pain in the right shoulder only partially controlled by painkillers. Wakes several times a night with pain. Cannot lift shoulder beyond 90°. Pins and needles in right hand, reduced strength right hand. Cannot open jars, needs to hold onto plates with both hands to prevent dropping them. The condition happened when Ms Spells fell off a table in July 2010. She is unable to perform many tasks of daily living including opening jars, unable to hang up washing above shoulder height, other house work is painful for example mopping and sweeping. Unable to garden. Unable to drive more than one hour without a 45 minute break due to shoulder pain. The condition is expected to affect function for more than 24 months and over that time the effect on function is expected to remain unchanged.[4]

   [4]     T2/7 and T56/379 – 381.

3. As to the appropriate rating in light of the evidence before it, the SSAT concluded as follows:

   The evidence of Ms Spells is that she has difficulty lifting light objects and will tend to drop them. She is not able to do actions needing the use of two hands together. She can use a pen or pencil but it is significantly more difficult than in the past. She has difficulty and aching with the movements to do up buttons, she needs device assistance to unscrew the lids on bottles and cannot do this without assistance. Most of the descriptors for a moderate functional impact are met.

   For there to be a severe functional impact, Ms Spells would need to have limited movement or coordination in both arms or both hands, or a non-functional hand, would need to have severe difficulty handling and carrying most objects, have severe difficulty with a computer keyboard (Ms Spells does not use a computer), have severe difficulty using a pen or pencil (she is much slower at writing than she used to be but is able to complete the task), or would need to have severe difficulty with turning the pages of a book without assistance (she can do this independently). Most of the descriptors for a severe functional impact are not met and there is not a severe functional impact.

   Impairment rating assigned is 10 points.[5]

   [5]     T2/9 at [30], [31] and [32].

4. I note that Dr Moy’s letter of 14 July 2015 is consistent with the evidence before the SSAT and its conclusions. In that letter, Dr Moy relevantly states:

   Because of (sic) the movement of both of her shoulders is now significantly restricted Sharon is unable to perform any occupation which involves the following:

   1.     Overhead movments (sic) eg putting objects in high cupboards

   2.     Sustained use of of (sic) arms even at chest level eg hairdressing (her previous occupation)

   3.     Lifting and carrying of all but the lighest (sic) loads

   Sharon may be suitable for a desk job (although she is currently not skilled for most desk jobs) as long as she had a 5 minute break from sitting every hour.

   She may also be be (sic) suitable for a job where she is on her feet most of the time as long as it did not involving lifting, carrying or overhead movements.

5. Significantly, in this letter Dr Moy does not indicate any impairment or restriction which would be consistent with Ms Spells having an impairment attracting a rating of 20 points under Table 2.

6. At the dismissal hearing, Ms Spells did not dispute the accuracy of the SSAT’s summary of the evidence she gave. She appeared to acknowledge that the difficulties and limitations recorded by the doctors and by the SSAT were accurate and fairly represented the effects of her right shoulder condition. As I understand it, Ms Spells does not contend that she has “severe difficulty” handling, moving or carrying most objects. Nor does she contend that she has “severe difficulty” using a pen or pencil, or turning the pages of a book. Indeed, it was my understanding that she conceded at the dismissal hearing that she did not meet the criteria for a 20 point rating under Table 2. In addition, I note that she conceded in correspondence to the Tribunal received on 30 June 2015:

   We have all come to the conclusion that I will never get my 20 points that Centrelink have insisted on. …

7. In the treating doctor’s report supplied in support of her claim for DSP, Dr Moy also indicated that Ms Spells was suffering from “gastro-oesophageal reflux” but indicated that this caused minimal or limited impact on her ability to function.[6] Accordingly, there is nothing to suggest that the SSAT’s conclusion that this condition attracted a rating of 0 points was incorrect. Furthermore, on the evidence before me, there are no other conditions from which Ms Spells suffered at the relevant time which have resulted in impairments for the purposes of the Impairment Tables.

   [6]     T56/385.

8. Unfortunately, subsequent to the SSAT hearing, Ms Spells suffered a very nasty dog bite on her right leg which has caused nerve damage, cellulitis and other problems. However, Ms Spells acknowledged at the dismissal hearing that this took place in April 2015, after the relevant assessment period, and so is not relevant for the purposes of assessing her entitlement to DSP in the context of this application.

9. Accordingly, having carefully reviewed the available material, I have come to the conclusion that there is no reasonable prospect of Ms Spells establishing in the context of this application that, during the relevant period, she suffered an impairment attracting 20 points under the Impairment Tables. I note that Ms Spells has effectively acknowledged that that conclusion is correct.

10. As I have already explained, establishing the existence of an impairment attracting 20 points under the Impairment Tables is a mandatory requirement for the payment of DSP. Unless a person establishes that they do suffer the required level of impairment, the legislation provides that they are not qualified to receive DSP and cannot be paid DSP. As discussed with Ms Spells at the hearing, that requirement applies to all applicants for DSP, regardless of their circumstances, and the Tribunal has no power or discretion to relax or dispense with that requirement. Effectively, the Parliament has decided that only those persons who establish the requisite level of impairment are to be paid DSP.

11. As I have concluded that Ms Spells has no prospect of establishing the required level of impairment, I have also concluded that she has no prospect of establishing an entitlement to DSP in the context of her current application. For completeness, I note that even if she was able to establish an impairment attracting 20 points, Ms Spells would also need to establish that she had a continuing inability to work within the meaning of the legislation, and that she had satisfied the program of support requirements (unless she was able to establish a “severe impairment”). Although it is not necessary for me to consider these issues in any detail, I note that the material before me, in particular the letter from Dr Moy dated 14 July 2015, strongly suggests that Ms Spells would not be able to establish a continuing inability to work, as it suggests that she would be able to work more than 15 hours per week in some form of employment. In addition, the material provided by the respondent suggests that Ms Spells would have great difficulty in meeting the applicable program of support requirements.

12. In these circumstances, I have concluded that I should dismiss Ms Spells’ application to the Tribunal on the basis that it has no reasonable prospect of success and no purpose would be served by allowing the application to proceed to a final hearing.

13. At the dismissal hearing, Ms Spells drew attention to some of the reasons why she was in need of and deserving of additional income support. These included the difficulty of finding appropriate work near where lives, and that she has worked for approximately 40 years, since her teenage years. Understandably, she submitted that it was not unreasonable for her to seek additional income support given her current circumstances and health problems. As I explained to Ms Spells at the hearing, however, the Tribunal is not at liberty to grant DSP based on how deserving a particular applicant may be, or the difficulty of their general circumstances. As I have been at pains to explain, the legislation lays down strict criteria for the payment of DSP and gives no discretion to the Tribunal in applying those criteria.

14. As also discussed with Ms Spells at the hearing, it is open to her to lodge a further claim for DSP at any time, and it may be that she will meet the qualification requirements at some time in the future. However, I am satisfied that she did not qualify for DSP at the time she lodged her claim on 13 June 2014, or within 13 weeks of that date, and she has no reasonable prospect of establishing that she did. In these circumstances, I have decided to dismiss her application pursuant to s 42B of the AAT Act.

    DECISION

15. The application is dismissed pursuant to subs 42B(1)(b) of the AAT Act, as the Tribunal is satisfied that it has no reasonable prospect of success.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Associate

Dated 16 September 2015

Dates of hearing	25 August 2015 and 1 September 2015
Applicant	In person
Solicitors for the Respondent	Mr A Hay Department of Human Services Program Litigation and Review Branch