Star and Secretary, Department of Social Services (Social services second review)
[2017] AATA 134
•8 February 2017
Star and Secretary, Department of Social Services (Social services second review) [2017] AATA 134 (8 February 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3676
Re:Vanessa Star
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr Conrad Ermert, Member
Date:8 February 2017
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Mr Conrad Ermert, Member
SOCIAL SECURITY - Disability Support Pension - cancellation - relevant date - whether conditions attract 20 impairment points - whether conditions fully diagnosed at the relevant date - decision affirmed
LEGISLATION
Social Security Act 1991
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Shi v Migration Agents Registration Authority [2008] HCA 31
REASONS FOR DECISION
Mr Conrad Ermert, Member
8 February 2017
INTRODUCTION
Miss Vanessa Star, the Applicant, received Disability Support Pension (DSP) payments from 2 June 2011. Miss Star had a history of cerebral palsy-hemiplegia left side from birth.
In May 2015 Centrelink commenced a review of Miss Star’s entitlements to DSP. Centrelink is the service provider for the Secretary, Department of Social Services (the Respondent). On 19 October 2015 an officer of Centrelink decided to cancel Miss Star’s DSP on the basis that her impairments did not attract a total of 20 impairment points under the Impairment Tables (the original decision).
Miss Star asked for a review of the original decision. On 8 December 2015 an Authorised Review Officer (ARO) of Centrelink affirmed the original decision. Miss Star sought a further review. On 9 June 2016 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision of the ARO.
This matter is a review of the AAT1 decision.
HEARING
At the hearing Miss Star appeared in person and gave evidence under affirmation. She was supported by her mother and brother. Ms Vincci Chan represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents), pages 1 to 157.
For Miss Star I took into evidence the following documents:
·Exhibit A1 – letter from Miss Star dated 19 December 2016 containing her submissions;
·Exhibit A2 – letter from Miss Star dated 22 December 2016;
·Exhibit A3 – Occupational Therapy Report of Sally Brown, Occupational Therapist, dated 30 December 1986;
·Exhibit A4 – Occupational Therapy Report of Sally Brown dated 31 January 1991;
·Exhibit A5 – letter from Miss Star dated 24 January 2017 with attached:
omedical report from Dr Peter Holsman received at this Tribunal on 25 January 2017; and
oCentrelink Medical Certificate by Dr Holsman dated 18 January 2017; and
·Exhibit A6 – medical report by Dr Gary Deed dated 31 August 2016.
For the Respondent I took in for consideration the Secretary’s Statement of Facts and Contentions dated 29 September 2016.
LEGISLATION
Relevant legislation is contained in:
·Social Security Act 1991 (the Act),
·Social Security (Administration) Act 1999 (the Administration Act), and
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
ISSUES
Section 94(1) of the Act details the requirements for qualification for DSP as follows:
(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…
The issues I must determine are whether, at the relevant date:
·Miss Star had physical, intellectual or psychiatric impairments; and if so
·The impairments attract a rating of at least 20 points under the Impairment Tables; and if so
·She had a continuing inability to work.
Relevant Date
The Respondent contends that the Tribunal must consider whether Miss Star was qualified for DSP on the date of cancellation and at no other time. The Respondent cites the decision of the High Court in the matter of Shi v Migration Agents Registration Authority [2008] HCA 31. At paragraphs 144 to 145 their Honours, citing the decision of the Federal Court in the matter of Joan Elizabeth Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, held that:
His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel was made. The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision.
Adopting the reasoning in Shi I find that the relevant date for the consideration of Miss Star’s qualification for DSP is 19 October 2015, that being the date on which her DSP was cancelled.
EVIDENCE
In giving her evidence, Miss Star read her letter taken in as Exhibit A1. She added that she was not told by Centrelink of a need for more medical evidence.
Ms Chan asked a number of questions arising from the report of the Job Capacity Assessment Report dated 14 August 2015. In regard to her upper limb impairments, Miss Star said:
·she was able to pick up a glass of water with her right hand;
·doing up buttons one handed was sometimes difficult;
·she could grasp items with her right hand;
·she was able to do embroidery with one hand by using a hoop and holding it against her breast; however she needs help threading the needle;
·she can use a keyboard with her right hand only;
·she can take a lid off a bottle using her right hand but only if it is not tight. She also finds it initially difficult to unscrew a bottle of water when the bottle is still full; and
·she can pour from a bottle but with difficulty.
In regard to her lower limb impairments, Miss Star said she can stand for about 10 minutes, but leans more to one side.
Asked about her evidence to the AAT1 hearing which recorded she does 20 minutes of dance every second day, Miss Star said she has not managed 20 minutes of dancing since December 2015 as she is getting weaker. When asked whether the dancing was on her feet Miss Star said that she was doing modern dancing mainly on the floor.
Miss Star agreed she could walk for 15 to 20 minutes. She said she could not use public transport as she suffered from constipation, she had no energy and tired quickly. Asked about the lower limb functions listed in the JCA report of 14 August 2015 Miss Star said:
·it was not correct that she could walk without difficulty on a variety of terrains;
·it was not correct that she could walk without difficulty around the home and community;
·she could not kneel and squat;
·she needed to hold on to a railing when climbing stairs; and
·she did not use a walking stick or walking aids.
Asked why her evidence differed from that recorded by the JCA, Miss Star said he misunderstood what she said to him.
In her submissions Miss Star read her letter dated 19 December 2016. In addition she submitted that:
·she cannot pick up large bulky items such as a clothes basket;
·she needs help in tying shoelaces;
·she can not take the lid off a soft drink bottle unless it has previously been opened by someone else;
·she has to use her mouth to do things such as opening a plastic bag;
·she cannot do her hair without help;
·she suffered from Chronic Fatigue Syndrome and constipation at the time of the cancellation of her DSP and in support of her submission she referred to the report of Dr Holsman dated 18 January 2017;
·she has not been able to do domestic work for the last two years; and
·the JCA report contains a number of errors and the JCA made serious errors in his assessment of her impairments.
Ms Chan relies on the submissions in the Secretary’s Statement of Facts and Contentions. Referring to Miss Star’s evidence Ms Chan submitted that the contemporaneous assessment of the JCA should be preferred. Ms Chan submitted further that Ms Star’s reports of her impairments required corroborating evidence.
In regard to the conditions of Chronic Fatigue Syndrome and hypertension, Ms Chan contended that they were not fully diagnosed, fully treated and fully stabilised at the cancellation date.
Relying on the JCA report, Ms Chan contended that Miss Star did not have a continuing inability to work as she had been assessed as having a capacity for work within two years with intervention of 15 to 22 hours per week.
TRIBUNAL CONSIDERATIONS
Impairments (section 94(1)(a) of the Act)
The Respondent accepts that Miss Star suffers impairments and that she satisfies the provisions of section 94(1)(a) of the Act. I am satisfied that the medical evidence supports this concession and I find accordingly.
Impairment Rating (section 94(1)(b) of the Act)
I will now consider whether Miss Star’s impairments attract an impairment rating of 20 or more points in order to satisfy section 94(1)(b) of the Act.
Section 6(3)(a) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the impairment is permanent. Section 6(4) provides that a condition is permanent if the condition:
(a)has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)has been fully treated; and
(c)has been fully stabilised.
Cerebral Palsy – Left Hemiplegia
The Respondent accepts that the condition was fully diagnosed, fully treated and fully stabilised at the relevant date. The medical evidence supports this concession and I find accordingly.
The impairment from this condition affects both the upper and lower limbs. I will consider each in turn.
Upper Limb Function
The appropriate Impairment Table for the assessment of the upper limb impairment is Table 2 – Upper Limb Function. The Introduction to Table 2 provides that the self-report of symptoms alone is insufficient. There must be corroborating evidence which includes reports from the person’s treating doctor, medical specialists, allied health practitioners and the results of diagnostic and physical tests and assessments.
In making my assessment I note the corroborating evidence contained in the following reports:
·Dr P. Naidos dated 14 June 2011 which includes:
oLeft Upper Limb Monoplegia (birth defect);
oInability to use left upper limb; and
oUnable to use non-dominant upper limb at all.
·Dr R. Sukumaran dated 9 June 2015 which includes:
oCerebral palsy – Hemiplegia;
oDate of diagnosis – 27 February 1986 at birth; and
oNot able to use left hand and leg and deformity of left hand.
·Job Capacity Assessment Report dated 14 August 2015 which includes:
oMs Star reported minimal movement proximally in left shoulder, nil active movement in elbow and hand. … ;
oThere is a mild functional impact on activities using hands or arms.
(1) Ms Star can manage most daily activities requiring the use of the hands and arms, but has some difficulty with the following:
a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag). MR indicated not able to use left hand, movement and dexterity affected. She reported some difficulty with lifting heavier objects.
b) handling very small objects (e.g. coins). MR indicated not able to use left hand, movement and dexterity affected. She reported some difficulty with this task.
c) doing up buttons. MR indicated not able to use left hand, movement and dexterity affected. She reported some difficulty with this task.
d) reaching up or out to pick up objects. MR indicated not able to use left hand, movement and dexterity affected. Because of the limited movement proximally in the shoulders and nil movement in elbow and hands, she has difficulty in reaching out and up to pick up heavier objects with both hands. She reported she is able to pick up a normal sized laundry basket with a very small load of wet washing.
Ms Star reported she is able to perform most daily tasks one-handed and some tasks using the left arm to prop. For example, she does embroidery and holds the frame under the left arm, she is able to use a sewing machine. She reported needing assistance with bilateral upper limb tasks that cannot be adapted, e.g. tying up her long hair, putting in her contact lenses where she is assisted by her mother or brother. She is able to write, unscrew a lid on a soft drink bottle and use a standard computer key board.
·Dr Peter Holsman dated 21 December 2016 which records:
osignificant hemiplegia; and
oaffects walking, food preparation, doing hair ie all daily activities.
The Respondent accepts that Miss Star’s impairments satisfy the requirements for a rating of five points under Table 2.
I am satisfied from the corroborated evidence that Miss Star has some difficulty with:
·picking up heavier objects such as a normally loaded laundry basket;
·handling very small objects;
·doing up buttons; and
·reaching out to pick up objects.
I find that Miss Star’s impairment attracts a rating of five points under Table 2.
In considering whether Miss Star’s impairment attracts a higher rating, I note the requirements in Table 2 for a rating of 10 points:
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.
I am satisfied from the corroborated evidence that Miss Star has difficulty with picking up a light but bulky object requiring the use of 2 hands together. The medical evidence is that she is unable to use her left arm and hand, in particular she has minimal proximal movement in her left shoulder and no movement in her left elbow and hand. Her own evidence is that she can sometimes use her left arm as a prop; however, I consider this insufficient to demonstrate that she is able, without difficulty, to pick up a bulky object requiring the use of 2 hands together.
From the evidence I am also satisfied that Miss Star has difficulty doing up buttons and is unable to tie shoelaces.
The Job Capacity Assessor (JCA) assessed that Miss Star was able to unscrew the lid on a soft-drink bottle. Miss Star’s evidence was that she could manage that function with her right hand but only if the lid had been previously opened by another person and that it was not screwed on tightly. The medical evidence is that she is unable to use her left hand. I am satisfied that Miss Star is unable, without prior assistance, to unscrew a lid on a soft-drink bottle.
Miss Star’s evidence is that she is able to pick up a 1 litre carton of liquid and to hold and use a pen and pencil using her right hand.
In her submissions to the Tribunal, Miss Star contends that she has difficulty using a standard computer keyboard. Her evidence was that she can use a keyboard with her right hand only. I am aware, however, that a number of normal functions on a standard computer keyboard require the use of two hands simultaneously. The medical evidence is that she is unable to use her left hand. I am satisfied that Miss Star would be unable to perform a number of normal functions on a computer keyboard and as a result accept that Miss Star has difficulty using a standard computer.
I am satisfied that Miss Star’s impairments satisfy the descriptors (1)(b), (1)(d), (1)(e) and (1)(f) for a rating of 10 points under Table 2.
In considering whether Miss Star’s impairment attracts a higher rating I am satisfied that at the relevant date the following applied to Miss Star:
·She does not have an impairment with both arms or hands, only the left;
·Although she has not had an amputation her condition renders her left arm and hand non-functional;
·There is insufficient evidence to support a finding of a severe difficulty in handling, moving or carrying most objects;
·There is no evidence regarding adaptations that may assist her in using a computer keyboard;
·She does not have severe difficulty in using a pen or pencil; and
·She does not have severe difficulty in turning the pages of a book.
I am unable to be satisfied that she meets the requirements for a rating of 20 points under Table 2.
I find that Miss Star’s Upper Limb Impairment attracts a rating of 10 points.
Lower Limb Function
The appropriate Impairment Table for the assessment of the lower limb impairment is Table 3 – Lower Limb Function. The Introduction to Table 3 provides that the self-report of symptoms alone is insufficient. There must be corroborating evidence which includes reports from the person’s treating doctor, medical specialists, allied health practitioners and the results of diagnostic and physical tests and assessments.
In making my assessment I note the corroborating evidence contained in the following reports:
·Dr R. Sukumaran dated 9 June 2015 which records that Miss Star is not able to use her left leg.
·Job Capacity Assessment Report dated 14 August 2015 which records:
(1) Ms Star reported she can:
a) walk without difficulty on a variety of different terrains and at varying speeds; and
b) walk without difficulty around the home and community; and
c) kneel or squat and rise back to a standing position without difficulty; and
d) stand unaided for at least 10 minutes; and
e) use stairs without difficulty.
Ms Star reported nil difficulties with regards to function of the lower limbs.
·Dr Peter Holsman dated 21 December 2016 which records that her condition affects walking; and
·Dr Peter Holsman dated 22 December 2016 which records that her condition limits mobility.
I do not accept the report of Dr Sukumaran that Miss Star is not able to use her left leg. Miss Star’s evidence is that she can use her left leg, albeit with some difficulty. She states that she can walk with a limp and stand leaning to one side. Clearly the opinion of Dr Sukumaran indicates a far more serious impairment than even Miss Star claims for herself.
However, I also have reservations about the report of the JCA, who assesses that Miss Star has nil difficulties with her lower limb function. The medical evidence is that Miss Star is unable to use her left leg (Dr Sukumaran) and that her walking is affected and mobility is limited (Dr Holsman). Her own evidence is that she walks with a limp and leans to one side when standing.
Ms Chan urges me to accept the assessments of the JCA as they are contemporaneous with the condition at the relevant date. However, as a result of my reservations about the JCA report, in considering the lower limb function I give less weight to the JCA report and prefer the opinion of Dr Holsman.
I am conscious of the fact that Dr Holsman’s report was compiled after the relevant date. However, Miss Star’s condition is of very long standing and I am satisfied that her impairment will not have altered significantly in the time between the relevant date and the date of Dr Holsman’s report.
The descriptors in Table 3 for a rating of five points are:
(1) At least one of the following applies:
a) the person has some difficulty walking to the local facilities (e.g. shops or bus-stop); or
b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
a) the person is unable to stand for more than 10 minutes;
b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
I am satisfied from the corroborated evidence that Miss Star has some difficulty with walking to the local facilities, walking around a supermarket and climbing stairs, satisfying subsection (1). However, in her own evidence Miss Star confirmed that she is able to stand for 10 minutes and walk unaided for 15 minutes. In addition, Miss Star does not use a lower limb prosthesis or a walking stick. Accordingly, I cannot be satisfied that she meets either of the requirements of subsection (2). As a result, I must find that Miss Star does not meet the requirements for a rating of five points.
I find that the impairment for Miss Star’s lower limb function is zero points.
Other Conditions
Other conditions claimed by Miss Star in her submissions are Chronic Fatigue Syndrome (CFS) and neutrally medicated hypertension (hypertension).
The earliest diagnoses for these conditions are those contained in the report of Dr Deed dated 31 August 2016. This date is nine months after the relevant date. Although the conditions may have existed at the relevant date they were not diagnosed at the time of the relevant date.
Section 6 of the Impairment Tables provides that an impairment rating can only be assigned to an impairment if the person’s condition is permanent. Section 6(4) provides that a condition is permanent if, amongst other things, the condition has been fully diagnosed by an appropriately qualified medical practitioner. In this case at the relevant date the conditions of CFS and hypertension had not been diagnosed by a medical practitioner. Accordingly, I am unable to assign an impairment rating to these conditions.
Total Impairment Rating
At the relevant date Miss Star’s impairments attract the following ratings:
·upper limb function – 10 points;
·lower limb function – zero points; and
·CFS and hypertension – not diagnosed, unable to assign ratings.
The total of 10 points is insufficient to satisfy subsection 94(1)(b) of the Act which requires a total of 20 points to qualify for DSP.
CONCLUSION
At the relevant date Miss Star was not qualified for the DSP. Accordingly, the decision to cancel her DSP was correct at that time.
This does not preclude Miss Star from making a new application for DSP with the support of medical reports relating to her current condition.
DECISION
I affirm the decision under review.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member
[sgd]........................................................................
Associate
Dated: 8 February 2017
Date of hearing: 27 January 2017 Applicant: In person Advocate for the Respondent: Ms Vincci Chan
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Standing
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