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

[2020] AATA 3046

Sutcliffe and Secretary, Department of Social Services (Social services second review) [2020] AATA 3046 (20 August 2020)

Division:GENERAL DIVISION

File Number:          2019/6089

Re:Sidney Sutcliffe

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member 

Date:20 August 2020

Place:Sydney

The Tribunal affirms the decision under review.

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

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – right pontine stroke – hypertension – hypercholesterolemia – depression – reasonable treatment available – impairments not fully diagnosed, fully treated and fully stabilised – impairments cannot be assigned an impairment rating – program of supports not completed – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Mr S Evans, Member

20 August 2020

INTRODUCTION

1. The applicant, Sidney Sutcliffe, applied for the disability support pension (“DSP”) on 26 April 2018.  His application was rejected by a delegate of the Secretary of the Department of Social Services (“the Respondent” also known as “Centrelink”) on 14 May 2018.  Mr Sutcliffe sought review of the decision to reject his application, which was affirmed by an Authorised Review Officer (“ARO”) on 13 May 2019.  Mr Sutcliffe appealed the decision of the ARO to the Social Services and Child Support Division of the Tribunal (“AAT1”) which made the same findings as the ARO.  Mr Sutcliffe now seeks review of the decision of the AAT1 at the General Division of this Tribunal. 

2. Unless otherwise stated, the statements of fact which follow are based on the evidence of Mr Sutcliffe. 

3. For reasons I shall explain, the decision under review will be affirmed. 

   HEARING

4. The matter was heard on 6 July 2020. Mr Sutcliffe was self-represented and both he and the representative of the Respondent appeared via telephone in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).

   CRITERIA TO BE APPLIED

   Qualification for disability support pension

5. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of DSP:

   (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;…

6. The Impairment Tables[1] referred to in paragraph 94(1)(b) of the Act, are designed to assign ratings to determine the level of functional impact that an impairment has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, fully treated and fully stabilised and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

   [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Impairment Tables”).

7. Subsection 6(6) of Part 2 of the Impairment Tables sets out the requirements for a condition to be fully stabilised:

   (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b)the person has not undertaken reasonable treatment for the condition and:

   (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

8. Reasonable treatment is defined at subsection 6(7) of the Impairment Tables as treatment that:

   (a)is available at a location reasonably accessible to the person; and

   (b)is at a reasonable cost; and

   (c)can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)is regularly undertaken or performed; and

   (e)has a high success rate; and

   (f)carries a low risk to the person.

   The qualification period

9. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by schedule 2, part 2, clause 4 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

10. As noted, Mr Sutcliffe lodged his claim for DSP on 26 April 2018 and that triggers the assessment process to determine the eligibility of the applicant. Mr Sutcliffe must qualify for DSP on the date of the claim or within 13 weeks thereafter (i.e. 26 July 2018). I will refer to this as the “qualification period”.

11. The practical implications for this matter are that the Tribunal can only consider Mr Sutcliffe’s conditions and qualification for DSP during the qualification period.

12. Following this, the Tribunal notes that the medical reports that come into being after the relevant period are only pertinent to the extent that they refer to Mr Sutcliffe’s conditions during the qualification period.

    Continuing inability to work

13. Paragraph 94(1)(c)(i) of the Act requires that to be eligible for DSP a person must have a continuing inability to work.

14. Subsection 94(2) of the Act states that the requirement for a continuing inability to work is satisfied if either, the person has a severe impairment – meaning they have an impairment of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table; or alternatively, they have actively participated in a “program of support” and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, in the next two years.

    ISSUE

15. The issue for the Tribunal to determine is whether Mr Sutcliffe qualified for the DSP during the qualification period.

    EVIDENCE AND CONDITIONS

16. Mr Sutcliffe was a credible witness who did his best to assist the Tribunal in providing evidence.  Mr Sutcliffe told me that he applied for DSP shortly after he had a stroke. 

17. Mr Sutcliffe is separated and lives alone.  He was working variously as a truckdriver and bricklayer until he had a stroke in March 2018.  He told me that he has worked for 53 years.

18. The Respondent accepts, and based on the evidence the Tribunal agrees, that Mr Sutcliffe had the following impairments during the qualification period and satisfied paragraph 94(1)(a) of the Act:

    (a)Right pontine stroke;

    (b)Hypertension;

    (c)Hypercholesterolemia; and

    (d)Depression.

    Right pontine stroke

19. An Ambulance Electronic Medical Record dated 23 March 2018 reports that Mr Sutcliffe presented with “headaches, dizziness, slurred speech” and had a history of hypertension and hypercholesteremia.  A NSW Health discharge form confirms that Mr Sutcliffe was discharged from hospital on 26 March 2018 and was to take an MRI/MRA. 

20. An MRI was performed on Mr Sutcliffe on 14 May 2018 and the following day Dr Viral Upadhyay provides a written diagnosis of “subacute right pontine stroke” and notes that Mr Sutcliffe “has mild incoordination of his left upper limb”. In a separate letter of the same date, Dr Upadhyay writes to Dr Sadia Suleman and recommends Mr Sutcliffe sees Dr Khan for a “stroke workup with regard to transthoracic echocardiogram and a 24 hour Holter”.

21. A medical certificate completed on 23 May 2018 by Dr Suleman states Mr Sutcliffe’s planned treatment as “referral to cardiologist, sleep studies”.

22. A further medical certificate completed on 5 June 2018 by Dr Upadhyay at the Nepean Hospital’s Department of Neurology states that Mr Sutcliffe’s prognosis is “good if [he] continues on treatment”.

23. A GP management plan dated 20 July 2018 is provided by Dr Ajay Wadhera from the St Clair Medical Practice which includes measures to improve Mr Sutcliffe’s mobility and increase muscle tone through exercise physiotherapy. 

24. On 24 October 2018, Dr Upadhyay writes to Dr Suleman reporting that Mr Sutcliffe “has residual deficits from his previous right pontine stroke” and recommends “completing the stroke work up with an echocardiogram” prior to review in four weeks.

25. The Respondent submits that the further review and investigation recommended on 15 May 2018, the referral to a cardiologist and sleep study by Dr Suleman on 23 May 2018 and the physiotherapy treatment was reasonable treatment.  Mr Sutcliffe does not dispute that the treatment was not completed.  He confirmed at the hearing that he attended exercise physiotherapy on up to five occasions, but he said that the heat in the pool and humidity made him dizzy.  He also confirmed that he did not complete the sleep studies.  He also ceased consulting Dr Suleman and began seeing Dr Valliappan as of October 2018. 

26. Reasonable treatment is that which is accessible to the applicant, can be reliably expected to result in substantial improvement in functional capacity and carries a low risk to the person.  There is nothing before the Tribunal that would indicate that the treatment Mr Sutcliffe did not undertake or complete for his right pontine stroke was not reasonable treatment.  As the evidence supports the Respondent’s contention that Mr Sutcliffe had not commenced or continued the reasonable treatment during the qualification period this condition cannot be considered fully diagnosed, treated and stabilised and is therefore ineligible to be assigned an impairment rating. 

    Hypertension and hypercholesterolemia

27. The Ambulance Electronic Medical Record dated 23 March 2018 confirms Mr Sutcliffe has a “history of hypertension and hypercholesteremia however is non compliant with medications”.  The Respondent accepts that both conditions were diagnosed, but submits they were not fully treated or stabilised at the time of claim or during the qualification period in part because Mr Sutcliffe was not taking the medication that had been prescribed. 

28. The GP Management plan from Dr Wadhera dated 20 July 2018 recommends that the prescribed medication be taken for both conditions and a diet low in salt and saturated fats to assist with both the hypertension and hypercholesterolemia. 

29. It is submitted on behalf of the Respondent that as there is an absence of evidence that indicates whether Mr Sutcliffe was compliant with his medication after the discharge from Nepean Hospital on 26 March 2018, it should not be accepted by the Tribunal that he has complied.  It is also submitted that there is no evidence of Mr Sutcliffe seeing a dietician. 

30. As Mr Sutcliffe was expected to work with Dr Wadhera to alter his diet, I do not consider his failure to see a dietician is indicative of his condition not being fully treated or stabilised.  There is no evidence to indicate that Mr Sutcliffe had altered his diet or taken his medication such that the efficacy of these treatments was able to be ascertained during the qualification period. 

31. For these reasons I find that these conditions were not fully diagnosed, treated and stabilised during the qualification period. 

    Depression

32. The only evidence before the Tribunal relating to Mr Sutcliffe’s depression is a letter from Dr Valliappan who is a general practitioner.  For a condition to be eligible to be assigned an impairment rating it is required to have been diagnosed by an appropriately qualified medical practitioner, which would be a psychiatrist or a general practitioner with evidence from a clinical psychologist.  

33. It appears that Mr Sutcliffe has participated in two mental health consultations with a psychiatrist but, in the absence of any evidence regarding a diagnosis or treatment, I cannot consider the condition for an impairment rating. 

    CONSIDERATION

34. When determining an application for DSP, the Tribunal is constrained by the requirements of the Act. The Respondent accepts, and the Tribunal agrees, that Mr Sutcliffe suffers impairments such that he met the requirement of paragraph 94(1)(a) of the Act during the qualification period.

35. However, as these conditions were not fully diagnosed, treated and stabilised during the qualification period, Mr Sutcliffe did not meet the requirement of paragraph 94(1)(b) of the Act during the qualification period.

36. As Mr Sutcliffe’s conditions do not attract 20 points under the Impairment Tables, it is not necessary to consider whether he had “a continuing inability to work” under paragraph 94(1)(c)(i) of the Act. However, it is of relevance to any future application Mr Sutcliffe may submit that he has not completed a program of support. In order to satisfy the requirements in subsection 94(2) of the Act, Mr Sutcliffe will, on current indications, be required to have a severe impairment, meaning he has an impairment which attracts 20 points under a single Table. Based on the evidence before the Tribunal, the functional impacts of Mr Sutcliffe’s impairments are most acute as they relate to his right pontine stroke.

37. At the hearing, Mr Sutcliffe confirmed that he is able to walk with the aid of a walking stick or walking frame.  He suffers from dizziness since having the stroke and occasionally falls down when he is walking.  He tries to take elevators instead of stairs and does his own shopping and twice a week goes to the supermarket.  He is regularly able to take the train independently to meet his friend in the city, something that he has not been able to do since Covid-19.  When Mr Sutcliffe goes out of the house, he will plan his route so that he has somewhere to sit down and rest if required.  

38. A Medical Attendant’s Statement of 12 November 2018 outlined Mr Sutcliffe’s functional capacity.  He was assessed as being able to lift up to 5 kilograms, push and pull up to 10 kilograms, stand for up to 15 minutes and walk for 10 to 15 minutes with walking aids.  He can kneel, reach above his shoulders and drive for up to 20 minutes but was unable to bend, squat, climb or walk on uneven surfaces. 

39. Mr Sutcliffe also suffers from chronic fatigue and is assisted by his neighbours in domestic chores such as gardening.  Mr Sutcliffe confirmed that he is able to drive, though he prefers not to.  He is also independent in self care and daily living needs.  He told me that he stopped driving to the shops two months ago because he felt dizzy.  He had kept his car because he hoped that his condition improved such that he was comfortable driving again; but he indicated that he was less confident that would happen now. 

40. To qualify for 20 points under Table 1, an applicant is, amongst other things, required to experience symptoms such that they are unable to walk around a shopping centre without assistance, walk from a carpark into a shopping centre without assistance, use public transport without assistance or perform light day to day household activities.  The evidence suggests that Mr Sutcliffe can perform these activities, albeit with some difficulty. 

41. Noting that the Tribunal is unable to allocate an impairment rating for Mr Sutcliffe’s right pontine stroke for the reasons stated above, should the Tribunal have been able to do so, 10 points would be the appropriate rating. 

    CONCLUSION

42. For the reasons set out above, during the qualification period, Mr Sutcliffe was not eligible to receive DSP.  

43. Mr Sutcliffe told me that his condition has deteriorated since making the application.  He has found the process of applying for the DSP both “humiliating and frustrating”.  Mr Sutcliffe presented as a proud individual who is understandably frustrated by the limitations placed on him by his conditions and is finding adjusting to them challenging.  This has been compounded by his inability to return to his physically demanding occupation and the requirements of his unsuccessful DSP application.

44. Mr Sutcliffe said he has limited funds and is not receiving any support from Centrelink.  Based on his evidence, this application would appear to be the only avenue through which Mr Sutcliffe has sought assistance from Centrelink.  As he was informed at the hearing, there are other forms of income support for which he may be eligible and for which the application process is less onerous.  Alternatively, it is open to him to make another application for DSP if he chooses to do so. 

    DECISION

45. For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 20 August 2020

Date of hearing:	6 July 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Dr Stephen Thompson, Services Australia