Stretch; Secretary, Department of Social Services and (Social services second review) - [2017] AATA 1429

Stretch; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1429 (4 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/7017
Re:Secretary, Department of Social Services
APPLICANT

AndFrancis Stretch
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:4 September 2017
Place:Brisbane

I set aside the decision of the Social Services and Child Support division dated 30 November 2016 and substitute it with a decision that the respondent was not eligible for disability support pension.
..........................[SGD]...........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Eligibility – Whether respondent entitled to disability support pension under Agreement on Social Security between Australia and New Zealand – Whether also required to satisfy section 94(1) – Respondent has multiple conditions: diabetes, depression, spinal condition, osteoarthritis, heart condition and sleep apnoea – Whether applicant severely disabled under Article 2(2) of the Agreement – Whether severe impairment under section 94 of the Act – Whether continuing inability to work – Decision under review set aside and substituted.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
CASES
Tamua and Secretary, Department of Social Services [2016] AATA 757
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
4 September 2017
INTRODUCTION

I have to determine whether the respondent is entitled to disability support pension (“DSP”).
BACKGROUND
On 29 February 2016 the respondent lodged a claim for DSP. On 30 May 2016 this claim was rejected.
On 12 July 2016 an authorised review officer (the “ARO”) affirmed the decision to reject the claim. On 30 November 2016 the Social Services and Child Support Division of this Tribunal (the “AAT1”) set aside the decision of the ARO and made a decision to grant DSP to the respondent.
On 21 December 2016 the applicant made an application to this Tribunal for review of this decision.
LEGAL FRAMEWORK
The legislation that I must administer is the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) and the Social Security (International Agreements) Act 1999 (Cth) (“the International Agreements Act”).
There is a Ministerial Determination which must be considered.[1] The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) came into force on 1 January 2012. The Determination contains the Impairment Tables which are function based and are intended to determine the level of functional impact of impairments (section 5 of the Determination).
[1] See section 26 of the Act.
APPLICATION OF AUSTRALIAN SOCIAL SECURITY LAW
The AAT1 made the decision to grant DSP to the respondent in reliance on the decision of this Tribunal in Tamua and Secretary, Department of Social Services [2016] AATA 757. In that case the Tribunal decided (at [83]) that a person was entitled to DSP if they are ‘severely disabled’ for the purposes of Article 2(2)(a) of the Agreement on Social Security between the Government of Australia and the Government of New Zealand (“the Agreement”) in Schedule 3 of the International Agreements Act.
The Tribunal also decided that it was unnecessary for an applicant “to meet any additional requirement that might otherwise apply under s 94(1)(a) – (c) of the Act, as Article 2(2)(a) prevails over those provisions by operation of section 6 of the International Agreements Act.”
I respectfully do not adopt the reasoning in Tamua and Secretary, Department of Social Services [2016] AATA 757.
The Agreement does not displace the general operation of the social security law of Australia. Indeed, Article 2(1) of the Agreement confirms that the Agreement shall apply to the ‘social security law’ of Australia in relation to the benefit of DSP (Article 2(1)(a)(ii)). The only modification to the application of the social security law of Australia is found in paragraph 2 of Article 2(2) of the Agreement.
Article 2 of the Agreement is not a self-contained legislative regime relating to the entitlement of the respondent for DSP. That Article does not, for example, determine how an applicant would claim DSP or what the rate of payment of DSP is, such matters are governed by the application of the ‘social security law’ of Australia. That is why I have previously decided that the ‘start date’ of the payment of DSP to a New Zealand resident who is qualified to receive that benefit can only be determined by the application of sections 41 and 42 and Part 2 clause 3 of Schedule 2 of the Administration Act.[2]
[2] Takai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 746 at [12].
ELIGIBILITY FOR DISABILITY SUPPORT PENSION
The respondent is a New Zealand citizen who arrived in Australia on 25 December 2004. She remains in Australia under a visa subclass 444, which is neither a permanent visa nor a protected special category visa (“SCV”). The respondent does not qualify as an ‘Australian resident’ under the Act because section 7(2) of the Act defines an 'Australian resident' as a person who resides in Australia and who is an Australian citizen or the holder of a permanent visa or a special category visa holder who is a protected SCV holder[3] who was residing in Australia on 26 February 2001. The respondent does not satisfy any of these requirements to be a qualified as an 'Australian resident'. As the respondent is not an Australian resident she does not meet the residency requirement of section 94(1) (e-ea) of the Act which must be satisfied in order to be qualified to receive DSP. However, New Zealand citizens may qualify for DSP under Schedule 3 of the International Agreements Act.
[3] See s 7(2A), (2B), (2C), (2D).
Article 5(1) of Schedule 3 of the International Agreements Act provides that a New Zealand citizen who is not the holder of an Australian permanent visa but who is lawfully residing in Australia is an Australian resident for the purposes of the Australian social security law. The respondent is a New Zealand citizen lawfully residing in Australia and therefore is an Australian resident for the purposes of Article 5(1) of Schedule 3 of the International Agreements Act. The respondent will therefore qualify for DSP providing that she satisfies section 94 of the Act with the exception of the residency requirement in section 94(1)(e) of the Act, and Article 2 of Schedule 3 of the International Agreements Act.
Article 2(2) of Schedule 3 of the International Agreements Act provides that New Zealand citizens must be 'severely disabled' before they qualify for DSP. Article 1(1)(m) of Schedule 3 of the Agreements Act defines a severely disabled person as a person who:
(i)has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(ii)to work for at least the next 2 years; and
(iii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(ii) is permanently blind;
Section 94 of the Act provides that in order to be qualified to receive DSP the a person must have:
(a)a physical, intellectual or psychiatric impairment (section 94(1)(a) of the Act);
(b)an impairment rating of at least 20 points (section 94(1)(b) of the Act); and
(c)a continuing inability to work (section 94(1)(c) of the Act).
The Administration Act provides that the start day for a claimant who qualifies to receive DSP is the date on which they contact the Department regarding the payment, the deemed date of claim: see sections 13, 41, 42 and Schedule 2 clause 3 of the Administration Act. The respondent will be entitled to receive DSP if she was qualified to receive that benefit as at the deemed date of the claim. If she was not qualified to receive DSP on that date she will nevertheless be entitled to receive DSP if she becomes qualified within thirteen weeks of lodging a claim. In that event, the start day is the day that the respondent becomes qualified to receive the social security benefit (Schedule 2 clause 4(1) of the Administration Act).
ASSESSMENT PERIOD
On 29 February 2016 the respondent lodged her claim for DSP. I am therefore required to review the evidence before me to determine whether she became qualified at any time within the thirteen week period from that date which commenced on 29 February 2016 and ended on 30 May 2016 (“the relevant period”).
ISSUES FOR DETERMINATION
I must determine a number of matters including:
(a)whether the respondent, as at the date of her claim (or within 13 weeks of that date), had a physical, intellectual or psychiatric impairment;
(b)whether the respondent had an impairment rating of at 20 points or more under the Impairment Tables;
(c)whether the respondent had a continuing inability to work; and
(d)whether the respondent was “severely disabled” within the meaning of Article 1(1) of Schedule 3 of the International Agreements Act.
WHETHER THE RESPONDENT HAS AN IMPAIRMENT
I find that the respondent had within the relevant period a physical, intellectual or psychiatric impairment as required by section 94(1)(a) of the Act. To make this finding I rely upon the medical evidence which states that the respondent had a procedure on her spine as well as having diabetes.
ASSESSMENT OF IMPAIRMENTS
I am next required to consider whether within the relevant period the impairments of the respondent can be assigned an impairment rating of 20 points or more under the Impairment Tables as required by section 94(1)(b) of the Act.
Osteoarthritis
Dr Sonny Feng, the general practitioner of the respondent, in his certificate dated 23 April 2016 has referred to the osteoarthritis condition. The decision of the ARO on 12 July 2016 stated that the respondent was awaiting specialist intervention.
Dr David Jones, an occupational medicine specialist, reviewed the medical evidence concerning the osteoarthritis condition. Dr Jones has reviewed the medical documentation and has concluded that there had not been any formal investigation of her symptoms and she had not undergone a specialist assessment. I accept his assessment which was not challenged by the respondent.
Section 6(3) of the Determination provides that an impairment rating can only be assigned if the condition causing that impairment is permanent. Section 6(4) of that Determination provides that a condition is permanent if it has been fully treated and fully stabilised. In these circumstances the condition cannot be assigned an impairment rating. Having regard to these requirements I cannot assign an impairment rating to the osteoarthritis condition.
Spinal condition
The respondent underwent a surgical procedure for the spine. In his hospital discharge report dated 3 August 2015 Dr Cooks confirmed that the respondent had undergone a L3/4 Hemilaminectomy and L4 Rhizolysis with L4/5 Bilateral Laminotomy procedure.
Dr Feng has written a number of reports concerning the spine. In his medical certificates dated 23 September 2015 and 23 April 2016 he has reported her as suffering from ‘disc prolapse lumbar spine post-surgery’. In the medical certificate of 23 September 2015 Dr Feng stated that the condition was temporary and would show improvement within the next two years. Dr Feng in the medical certificate of 23 April 2016 also reported chronic pain and numbness and weakness to both legs and that the respondent was on a lot of analgesic. Before the ARO, the respondent indicated that she was awaiting specialist review. She also indicated that she was able to walk around a shopping centre and was unable to stand for more than 20 minutes.
Dr Jones reviewed the medical evidence concerning the spinal condition. In his report and in his oral evidence before the tribunal he explained that there was a lack of corroborating medical evidence concerning the extent of the spinal impairment and to support an assessment of her functional impairment under Table 4. Dr Feng confirmed that the respondent had reported to him that she was in a lot of pain for back pain.
The need for corroborating medical evidence of reported symptoms is emphasised in section 8 of the the Determination. Dr Jones has assessed the condition of the respondent and considers the medical evidence supports a conclusion that there is a mild functional impact on lower limb function under Table 3 and mild functional impact on spinal function under Table 4. On that basis, Dr Jones states that the respondent can be assigned an impairment rating of 5 points under Table 3 and 5 Points under Table 4.
Depression
Dr Feng in his medical certificate dated 23 April 2016 has referred to the depression condition of the respondent which he considers is a result of the inability of the respondent to work. Dr Feng’s letter of 16 September 2015 also refers to the ‘past history’ of the respondent and lists that in 2003 she had depression.
The Determination provides that any condition of depression must be diagnosed by an appropriately qualified medical practitioner, with evidence from a clinical psychologist, if the condition is not diagnosed by a psychiatrist. There is no evidence from a psychiatrist or clinical psychologist of the respondent’s condition to corroborate the diagnosis of depression by the respondent’s general practitioner.
The depression condition cannot be assigned an impairment rating where there is no diagnosis of the condition which is made in accordance with the Determination.
Diabetes
Dr O’Rourke, neurosurgeon, in his report dated 9 March 2016 has confirmed that the respondent has insulin dependent diabetes but no longer suffered from pancreatitis.
Dr Jones reviewed this report and considers that the diabetes condition is permanent as it has been fully diagnosed, treated and stabilised.
Section 6(3) of the Determination enables an impairment rating to be assigned to an impairment if the condition causing that impairment is permanent. Dr Jones has reported that there is no evidence of any functional impairment caused by the diabetes condition. His assessment was not challenged by the respondent.
In these circumstances I agree with his assessment that the diabetes condition should be assigned 0 points under Table 1.
Heart condition
Dr Feng in his letter dated 16 September 2015 has referred to the heart conditions of angina and ischaemic heart disease of the respondent. Dr Jones has reviewed the medical documentation and has concluded that there had not been any formal investigation of the respondent’s heart disease. I accept his assessment which was not challenged by the respondent.
In these circumstances the condition cannot be assigned an impairment rating. Section 6(3) of the Determination provides that an impairment rating can only be assigned if the condition causing that impairment is permanent. Section 6(4) of that Determination provides that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. Having regard to these requirements not being satisfied I cannot assign an impairment rating to the heart condition.
Sleep apnoea condition
Dr Feng in his letter dated 16 September 2015 has referred to the sleep apnoea condition of the applicant. The applicant uses a nose peg.
Dr Jones has reviewed the medical documentation and has concluded that the condition has not been fully treated. In his report and evidence he pointed out that the usual treatment is the use of a positive airways pressure device, which has not been used by the respondent. Dr Jones also remarked that an alternative treatment is mandibular advancement.
Dr Jones was not challenged on his conclusion that the condition has not been fully treated. I accept his reasoned conclusion that the condition was not fully treated. Section 6(3) of the Determination provides that an impairment rating can only be assigned if the condition causing that impairment is permanent. Section 6(4) of that Determination provides that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. Having regard to my finding that the condition was not fully treated I cannot assign an impairment rating to the sleep apnoea condition.
Total impairment rating
I have concluded that the respondent cannot be assigned at least 20 points for her impairments and she therefore does not satisfy section 94(1)(b) of the Act. It is therefore not necessary to consider whether the applicant can be regarded as having a continuing inability to work as required by section 94(1)(c)(i) of the Act.
SEVERE IMPAIRMENT
I have earlier mentioned that Article 2(2) of the Agreement provides that New Zealand citizens must be 'severely disabled' before they qualify for DSP. Article 1(1) of the Agreement defines severely disabled person as one who has an impairment which makes the person, without taking into account any other factor, totally unable to work for at least the next two years.
I cannot make a finding that the applicant is 'severely disabled' under Article 2(2) of the Agreement having regard to the opinion expressed by Dr Jones, an occupational medicine specialist, in his report dated 14 April 2017 that the respondent does have some work capacity and was not unable to work for the two year period. In his report Dr Jones stated that the respondent’s principal disabling factor was chronic back pain which with adequate pain control would not prevent her from being able to undertake light or relatively sedentary work for more than 8 hours per week.
In giving evidence Dr Jones again expressed his view that the respondent had the capacity to do sedentary work. His evidence was not challenged before the Tribunal.
Dr Feng, the general practitioner of the respondent, confirmed when he gave evidence that he had not undertaken an assessment of the work capacity of the respondent and he also expressed the opinion that she “may be able to do office work” but was unable to resume her duties at the distribution centre of her previous employer.
Having regard to this medical evidence from both Dr Jones and Dr Feng, I cannot be satisfied that the respondent is totally unable to work for at least the next two years. As Article 2(2) of the Agreement is not satisfied the respondent is not entitled to DSP.
DECISION
I set aside the decision of the Social Services and Child Support division dated 30 November 2016 and substitute it with a decision that the respondent was not eligible for disability support pension.
47.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.......................[SGD]............................................
Associate
Dated: 4 September 2017

Date(s) of hearing: 23 August 2017

Solicitors for the Applicant: Department of Human Services

Respondent: In person

Date(s) of hearing:	23 August 2017
Solicitors for the Applicant:	Department of Human Services
Respondent:	In person