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

Tang and Secretary, Department of Social Services (Social services second review) [2020] AATA 3042 (19 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1594
Re:Zi Guang Tang
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Senior Member
Date:19 August 2020
Place:Sydney

The reviewable decision dated 24 February 2020, rejecting the applicant’s claim for disability support pension, is affirmed.
.............................................................[sgd]....................
Dr I Alexander, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – spine condition – lower limb condition – hearing impairment – whether mental health condition permanent – whether the Applicant had an impairment rating of at least 20 points – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Dr I Alexander, Senior Member
19 August 2020

On 8 April 2019 Mr Tang, who is now 62 years old, lodged a claim for Disability Support Pension (DSP).
The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.
In a decision dated 24 February 2020, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found Mr Tang had a total impairment rating of 15 points, with five points each under Table 3, Table 4 and Table 11, and therefore did not meet the requirements of s 94(1)(b) of the Act.
In these proceedings, Mr Tang, who is self-represented and was assisted at the hearing on 6 August 2020 by an interpreter in the Mandarin language, seeks review of the decision of the AAT1.
In view of the temporary changes with regard to the suspension of face-to-face Tribunal hearings during the COVID-19 crisis, all parties attended the hearing by telephone.
ISSUES
In order to qualify for DSP, a person must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (Administration Act). That is, Mr Tang must satisfy the requirements between 8 April 2019 and 8 July 2019 (the qualification period).
Section 94(1) of the Act provides that a person is qualified for DSP if, relevantly:
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) …
(i) the person has a continuing inability to work;
(ii) …
d) the person has turned 16; and…
There is no dispute that, during the qualification period, Mr Tang suffered medical conditions that caused some functional impairment and, therefore, he satisfied paragraph 94(1)(a) of the Act.
The medical conditions claimed by Mr Tang include the following:
·Spine condition -cervical and lumbar
·Lower Limb condition – right and left hip
·Hearing impairment
·Mental health condition
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is ”permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is “permanent” if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not, in light of available evidence, to persist for more than two years (paragraph 6(4)(d)).
The introduction to each relevant Table requires that “there must be corroborating evidence of the person’s impairment” and that “self-report of symptoms alone is insufficient”.
Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.
The Respondent contends that, during the qualification period, Mr Tang had a total impairment rating of 10 points under the Impairment Tables and, therefore, did not satisfy s 94(1)(b) of the Act.
Mr Tang submits that, during the qualification period, he had an impairment of 20 points under the Impairment Tables.
Therefore, the determinative issue in this matter is whether, during the qualification period, Tang suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
Spine condition
There is no dispute that, during the qualification period, Mr Tang suffered chronic pain because of a degenerative condition of the cervical and lumbar spine, that was permanent for the purposes of the Impairment Determination.
In a report dated 30 May 2018 Dr Giblin, orthopaedic surgeon, stated:
His neck bothers him if he looks around quickly or look up for any period of time. Craning activities such as reading or writing aggravate him. If he watches television or uses a computer, he can’t do it for long because his neck gets too sore.
…
His low back pain is moderately relieved by tablets, he can only lift light weights, he can walk for half a kilometre, sit for an hour and stand for an hour. He can manage journeys
…He has difficulty doing any vacuuming, mopping or cleaning. ….he has problems lifting heavy baskets of clothes or heavy bags of shopping
He is able to manage his personal care such as washing or dressing…
In a report dated 19 March 2019, Ms Schlotfeldt, physiotherapist stated, inter alia:
Long history of back and left groin and anterior thigh and knee pain. He also complains of cervical pain with dizziness. He has OA of both hips…He reports that all activities exacerbate his pain…
Reports that he goes out and walks around the shopping centre most days.
Examination:
…
Reluctant to move his back. His forward flexion is markedly reduced as is his extension. It elicits pain in his back and his groin bilaterally.
His cervical spine is also limited and elicits dizziness in all directions.
In a Job Capacity Assessment (JCA) report submitted on 8 July 2019, the assessor, a registered occupational therapist, stated, inter alia:
The claimant reported hip pain and limited mobility. He reported he is able to walk at a slow pace up to 15 minutes, standing up to 20 minutes and sit up to 30 minutes. The claimant reported he recently flew by aeroplane to/from China[1]. He reported he is able to access public transport without assistance. He reported he is able to perform light grocery shopping task without assistance. The claimant reported he is independent with personal care tasks most of the time. He reported his partner sometimes assists with washing his back.
The claimant was observed to walk with nil walking aid. He was observed to transfer on and off a chair without assistance. He sat for the duration of the assessment (approximately 30 minutes). He attended the assessment alone.
…
Impairment Table 4 – Spinal Function Recommended rating: 5
[1] At the hearing, Mr Tang confirmed that he travelled to China unaccompanied and stayed for one month with his mother who paid for some medical treatment.
The available evidence, which is somewhat limited, suggests during the qualification period, Mr Tang suffered mild functional impact on activities involving spinal function. I am not persuaded that there is sufficient evidence to support a conclusion that, during the qualification period, Mr Tang suffered moderate functional impact on activities involving spinal function.
Therefore, a rating of five points under Impairment Table 4 can be assigned.
Lower limb condition
There is no dispute that Mr Tang has degenerative changes in both hips[2].
[2]Section 37 documents page 264: MRI Right and Left Hip 29 November 2017
In her report of 19 March 2019, Ms Shhlotfeltd stated that Mr Tang had “OA in both hips” with the left worse that the right. She also noted that in December 2018 he was offered a “left total hip replacement” but was not “keen” to go ahead with the operation.
The Respondent submits that during the qualification period Mr Tang’s hip condition was not fully treated and stabilised on the basis that he had refused the option of a hip replacement, which is “reasonable treatment” as defined in Paragraph 6(7) of the Impairment Determination.
I accept that hip replacement is “reasonable treatment” however, as it is not clear to the Tribunal why Mr Tang has refused the operation, I intend to proceed on the basis that during the claim period his hip condition was permanent for the purposes of the Impairment Determination.
In my view the limited available evidence suggests that, during the qualification period, Mr Tang suffered mild impact on activities involving lower limb function. Therefore, a rating of five points under Impairment Table 3 can be assigned.
Hearing impairment
There is no dispute that, during the qualification period, Mr Tang suffered hearing impairment that was permanent for the purposes of the Impairment Determination.
In a letter dated 23 December 2017 Dr Arman-Anum, audiologist, stated inter alia as follows:
Mr Tang presented at National Hearing Care Hornsby, for an initial audiological assessment on the 5^th October, 2017. He reports a hearing deterioration…
…
Otoscopy revealed discharge and perforation in both ears.
Pure Tone Audiometry showed moderate to profound sensorineural hearing loss in his right ear and a moderate to profound mixed hearing loss in his left ear.
Speech audiometry revealed excellent speech discrimination with amplification…
…
…on 13^th December Mr Tang was fitted with fully subsided binaural hearing devices…on the 22^nd December 2017 Mr Tang communication abilities have significantly improved while using these hearing aids. He is able to hear well in quiet situations and group situation [sic] however still has some difficulty in the aided condition in the presence of background noise.
In a letter, dated 14 February 2018, Ms Edelstein, audiologist, noted improvement in the left ear hearing thresholds with “mild to moderate sensorineural hearing loss” and “mild to severe sensorineural hearing loss” in the right ear.
At the hearing Mr Tang confirmed that he continues to use bilateral hearing aids and appeared to have no difficulty participating in the hearing using a mobile phone.
On the available evidence, I am satisfied that, during the qualification period, Mr Tang suffered mild impact on activities involving hearing function and, therefore, five points under Impairment Table 11 can be assigned.
Mental Health condition
Mr Tang submits that, during the qualification period, he suffered a mental health condition causing significant functional impairment. He relies on three reports by Ms Yan Jiang, registered psychologist, dated 16 September 2020, 14 May 2020 and 7 July 2020.
In the report dated 16 September 2019, Ms Jiang stated that Mr Tang attended two appointments on the 21 and 28 August 2019 for “mental health assessment and intervention recommendations”.
After administering screening tests, Ms Jiang concluded:
The preliminary assessment, together with Mr Tang’s self-report and clinical observations, suggest that he is experiencing severe mixed depression and anxiety. The results also suggest that Mr Tang has experienced some level of cognitive impairment…
Ms Jiang recommended that Mr Tang be referred to a neurologist or neuropsychologist to “further examine his cognitive impairment and possible causes, which will help inform the intervention”.
The difficulty for Mr Tang is that Ms Jiang is not an endorsed clinical psychologist and, therefore, not qualified to make a psychiatric diagnosis for the purposes of the Impairment Determination.
Furthermore, Ms Jiang’s first assessment was performed almost 2 months after the end of the qualification period and, as Ms Tang’s mental health symptoms had, clearly, not been fully treated and fully stabilised at that time, a rating under Impairment Table 5 cannot be assigned.
CONCLUSION
For reasons set out above I am satisfied that, during the qualification period, Mr Tang had a total impairment rating of no more than 15 points.
As Mr Tang did not have an impairment of 20 points or more during the qualification period, he did not satisfy s 94(1)(b) of the Act and, therefore, it is not necessary to consider whether he had a continuing inability to work.
DECISION
For the reasons set out above, the Tribunal is satisfied that, during the qualification period, Mr Tang did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

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Associate
Dated: 19 August 2020

Date(s) of hearing: 6 August 2020

Applicant: By telephone

Solicitors for the Respondent: Services Australia

[2020] AATA 3042

19 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Standing

Statutory Construction

Remedies

Date(s) of hearing:	6 August 2020
Applicant:	By telephone
Solicitors for the Respondent:	Services Australia