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

[2021] AATA 3922

Taulaga and Secretary, Department of Social Services (Social services second review) [2021] AATA 3922 (27 October 2021)

Division:GENERAL DIVISION

File Number:          2020/0502

Re:Ms   Jafraseal Taulaga

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member B. Pola

Date:27 October 2021

Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division, dated 23 December 2019.

...............[SGD]....................................

Senior Member B. Pola

Catchwords

SOCIAL SECURITY – Disability Support Pension – DSP – whether condition is fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Qualification Period  –  decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration Act) 1999 (Cth)

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

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133
Faulkner and Comcare [2007] AATA 1541

Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Senior Member B. Pola

27 October 2021

BACKGROUND

1. On 25 March 2019, the Applicant, Ms Jafraseal Taulaga, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Services Australia (herein referred to as the ‘Agency’)[1].

   [1]     Exhibit 1, T7, pages 49 to 79.

2. On 10 May 2019, the Applicant was advised by the Agency that their claim for the DSP was rejected on the basis of a lack of supporting medical evidence[2]. The Applicant provided several medical certificates, and additional medical evidence to the Agency, but the DSP application was again rejected on a further two occasions, being 12 June 2021 and                    4 September 2021 respectively, due to insufficient medical evidence[3].

   [2]     Exhibit 1, T11, pages 88 to 89.

   [3]     Exhibit 1, T17, pages 114 to 115; T22, pages 134 to 135.

3. The decision to reject the Applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by the Agency on    1 October 2019[4].

   [4]     Exhibit 1, T24, pages 137 to 142.

4. The Applicant applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) to review the Agency’s decision to reject their claim for the DSP.

5. On 23 December 2019, the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP[5].

   [5]     Exhibit 1, T5, pages 7 to 15.

6. The Applicant wrote to the Tribunal for a second review of this decision on  24 January 2020[6], with an application in the approved form being received on   29 January 2020[7].

   [6]     Exhibit 1, T1, page 1.

   [7]     Exhibit 1, T2, pages 2 to 3.

   JURISDICTION

7. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed a decision to reject the Applicant’s claim for the DSP.

8. The Applicant’s claim of 25 March 2019 has been reviewed in accordance with section 135 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’) by an ARO, and subsequently reviewed by the SSCSD of the Tribunal.

9. In accordance with section 179(1) of the Administration Act, the Tribunal has jurisdiction to review the Applicant’s DSP claim of 25 March 2019.

   ISSUES

10. The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to her claim lodged on 25 March 2019, with the relevant qualification period ending 13 weeks later, on 24 June 2019[8].

    [8]     The Qualification Period is discussed in later paragraphs of this Decision.

11. The issue for the Tribunal to resolve in respect of the Applicant’s claim for the DSP is:

    (a)Whether the Applicant had impairments during the Qualification Period in accordance with section 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as ‘the Act’)?

    (b)Whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (herein referred to as ‘the Determination’) within the Qualification Period? 

    (i)If so, did the Applicant have a continuing inability to work, as defined in section 94(2) of the Act, for the purpose of section 94(1)(c) of the Act?

    RELEVANT LEGISLATIVE PROVISIONS

12. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of section 94(1) of the Act:

    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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system…

13. To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables and a continuing inability to work which, in some specified circumstances, includes participation in a program of support.

14. Section 26(1) of the Act provides that, “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

15. It is the Tribunal’s role to stand in the shoes of the original decision-maker[9] and determine whether the decision was the correct or preferable one on the material before the Tribunal[10].

    [9]     Faulkner and Comcare [2007] AATA 1541 at [27].

    [10]    Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 (per Bowen CJ and Deane J).

16. Given this, the Tribunal must make its decision in accordance with the Determination, which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

17. Section 6(1) of the Determination provides that, “[t]he impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[11].

18. An Impairment Rating may only be assigned to an impairment if[12]:

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than two years.

    [12] Ibid, section 6(3).

19. Further, for a condition to be considered permanent, pursuant section 6(3)(a) of the Determination, the condition must also[13]:

    (a)be fully diagnosed by an appropriately qualified medical practitioner; and

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years.

    [13] Ibid, section 6(4).

20. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[14]:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.

    [14] Ibid, section 6(5).

21. A condition is considered fully stabilised if[15]:

    (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 two 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 two 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.

    [15] Ibid. section 6(6).

22. Reasonable treatment is a treatment that[16]:

    (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.

    [16] Ibid, section 6(7).

23. Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Section 6(9) of the Determination sets out the circumstances to be considered in relation to pain.

24. Sections 7 to 11 of the Determination provide guidance as to how the Impairment Tables should be used to assess information and evidence, and how to assign Impairment Ratings.

25. In particular, section 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

26. Section 11(1)(c) of the Determination provides that in assigning an Impairment Rating, “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

    Continuing inability to work

27. As previously detailed in paragraph 13 of this decision, section 94(1)(c)(i) of the Act states that in order to qualify for the DSP, a person must have a, “continuing inability to work”. Section 94(2) of the Act requires that:

    (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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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.

28. A severe impairment is defined in section 94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

29. Section 94(3C) of the Act states that:

    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

30. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as the ‘Participation Determination’) came into effect from   3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support.

    QUALIFICATION PERIOD

31. Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[17].

    [17]    Social Security (Administration Act) 1999 (Cth), Part 2, clause 4(1)(d).

32. For the purposes of this decision, the day which the Applicant’s claim for the DSP was lodged with Centrelink was 25 March 2019[18], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 24 June 2019.

    [18]    Exhibit 1, T7, pages 49 to 79.

33. This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered if it is referrable to the Applicant’s condition during the Qualification Period[19].

    [19]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at [31].

    CONSIDERATION

34. The application was initially heard in Brisbane via telephone on 27 July 2021, with the Applicant represented by her mother, Ms T Taulaga. The Respondent was represented by Ms Jasmine Forsyth of Mills Oakley Lawyers.

35. Towards the conclusion of the hearing on the first day, it became apparent that the Tribunal should hear evidence from one of the Applicant’s physicians, Dr Ming-Wei Lin (Clinical Immunologist and Immunopathologist). The Tribunal sought to clarify her clinical opinion, submitted by the Applicant in the form of a letter dated 23 June 2021, with respect to her diagnoses and assessment of the Applicant’s functional impairment; observing that Dr Lin and treated the Applicant for a number of years[20].

    [20]    Exhibit 7.

36. The Tribunal stood the hearing down on 27 July 2021 to hear evidence from Dr Lin, who made herself available for the resumed hearing on 10 August 2021. Upon the conclusion of the second day of the hearing on 10 August 2021, Tribunal issued a direction which timetabled written closing submissions to be received from the Applicant and the Respondent as follows:

    (a)Applicant’s closing submissions due on or before close of business 31 August 2021;

    (b)Respondent’s closing submissions due on or before close of business 21 September 2021; and

    (c)Applicant’s closing submissions in reply due on or before close of business on                   12 October 2021.

37. In making a final decision, the Tribunal has considered oral submissions made by the Applicant, the Applicant and Respondent’s representative, in addition to Dr Lin who appeared as a witness. The Tribunal also considered written and documentary evidence submitted by the parties, as well as their closing submissions, which are outlined in the Exhibit Register, contained in Annexure 1 of these reasons.

    Section 94(1)(a) of the Act (physical, intellectual or psychiatric impairment)

38. The Tribunal is of the view, upon reflection of the medical evidence before it, that the Applicant had an impairment during the Qualification Period as a result of their Common Variable Immune Deficiency, with IgA and IgG deficiency and bronchiectasis (herein referred to as ‘CVID’). The Tribunal is of the view the Applicant satisfies section 94(1)(a) of the Act, observing the Respondent was also of this view[21].

    [21]    Exhibit 2, page 8, paragraph 41.

39. It is worth nothing at the outset that the Tribunal heard evidence from the Applicant’s mother that her son (the Applicant’s brother) sadly passed away from the same condition of CVID in late 2018.

    Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

40. The Tribunal will outline a brief history of the medical evidence relating to the Applicant’s CVID condition.

41. A letter dated 15 October 2010 from Associate Professor Dennis Raymond (a Consultant Paediatrician), stated the following[22]:

    … In summary, this is a child who appears to have familial IgA IgG deficiency. I have not sighted a recent chest x-ray, would be worried about the possibility of suppurative lung disease and I need to see some x-rays and I will almost certainly talk to a respiratory physician and appears to have some problems with chronic ear infections as well. I am referring her over to the immunology clinic at Children's Hospital who will be seeing her relatively shortly to try and see where we can go with all of this…

    [22]    Exhibit 1, T13, page 93.

42. Several years later, a letter dated 5 March 2014 from Dr Sam Mehr (a consultant Paediatric Allergist/Immunologist/Immunopathologist) states that upon review of the Applicant (who was fourteen years of age at the time), a diagnosis of, “… common variable immunodeficiency on IVlg and bronchiectasis”[23] was appropriate. The Tribunal observes this letter also detailed the treatment and medication the Applicant was undergoing at the time, which included, amongst other things, physiotherapy and medications.

    [23]    Exhibit 1, T13, pages 94 to 95.

43. In a further letter, dated 4 July 2016, Dr Mehr states the Applicant received treatment in hospital for a, “chest tune up”. It further states that given the Applicant’s ongoing issues with bronchitis/bronchiectasis as a result of their CVID, the Applicant was to receive the, “same dose of IVIg every three weeks”, in addition to the continuation of various medications to manage her condition[24]. 

    [24]    Ibid, page 96.

44. A letter to Dr Homsi of 31 March 2017 from the Westmead Children’s Hospital in Sydney refers to a further hospital admission of the Applicant and states she must adhere to prescribed medical treatments in order to avoid further hospitalisations as a result of her CVID. The Tribunal refers to the following comments[25]:

    We emphasised the importance of being compliant with her treatment to avoid a hospital admission. We discussed the options with Jafraseal. She is keen to trial 2 weeks of outpatient physiotherapy through our hospital and the home and I have also placed her on oral antibiotics. I will review her in 2 weeks' time in the Chest & Asthma Clinic to decide whether she needs a hospital admission or IV antibiotics and intensive chest physio…

    [25]    Ibid, page 97.

45. A follow up letter to Dr Homsi, dated 10 April 2017, from the Westmead Children’s Hospital in Sydney, subsequently states that the relevant physician was pleased with the Applicant’s commitment to her prescribed treatment[26].

    [26]    Ibid, pages 98 to 99.

46. A letter dated 26 July 2017 from Dr Peter Hsu (from the Department of Allergy and Immunology at the Children’s Hospital at Westmead, Sydney), provided the following diagnosis and clinical history of the Applicant[27]:

    I am writing regarding Jafraseal, now aged 17 years of age with common variable immunodeficiency. As you know, she was diagnosed with CVID at around six years of age and has received regular intravenous immunoglobulin since that time. She's noted to have bronchiectasis early on, although her lung function has been relatively stable until the last 1 - 2 years. The main reason for the decline in lung function is her poor compliance to therapy, particularly chest physic nebulised hypertonic saline and other inhaled medications. Over the last year, Jafraseal has noticed increased symptoms of cough. She coughs on a daily basis and often bringing up yellow or greenish phlegm. She has noticed decreased exercise tolerance in that she is only able to do warm up exercise such as squatting and lunges for 10 minutes rather than 30 minutes. She gets short of breath after 30 minutes of walking. She is no longer playing rugby as she felt unfit to do so.

    Jafraseal herself knows the treatment that she's supposed to be on including hypertonic saline, alvesco puffer and chest physio. She also however admits that she does not do any of this at home. The reason for this is that she feels it's pointless doing these treatments and while she did not offer any specific reason for her feeling this way, I feel that the reason for this is complex and may be related to current and past family issues and conflicts, as well as bullying and identity issues at school amongst her peers. In some way, Jafraseal may be not doing her treatment as a form of protest to her parents …

    [27]    Ibid, pages 100 to 101.

1. Dr Hsu’s letter to Dr Homsi outlined a plan for the Applicant with respect to her ongoing treatment to manage her condition[28]:

   … 1. In consultation with the respiratory team, we have decided that she will be admitted to the hospital next week for a period of tune up with IV antibiotics with a PICC line as well as regular chest physio.

   2. At the end of that period well will perform a high resolution CT to assess her lungs, since she has not had a CT scan for a few years. In doing so, I wanted to exclude known pulmonary complication of CVID such as interstitial lung disease, lymphoproliferative disease or granulomatous lung disease.

   3. I have asked her to keep a diary of what she's doing in terms of physio and nebulisers.

   4. We would also consider placement of a port given that her IV accesses is often difficult for monthly immunoglobulin therapy…

   [28]    Ibid.

2. A few months following this, a letter from Dr Vishal Saddi to Dr Hornsi, dated   28 August 2017 (copied to Dr Hsu and Mehr, respectively), stated that he was pleased with the Applicant’s compliance with recommended treatment and her stable lung function[29].

   [29]    Exhibit 1, T13, pages 102 to 103.

3. The Tribunal observes that the Applicant stated she moved to Townsville from Sydney to live with her parents around March 2019[30].

   [30]    Transcript (27 July 2021), page 20, lines 13 to 16.

4. A letter dated 27 February 2019 from Dr A Singh (a Resident Medical Officer at Townsville Hospital) states the following with respect to the Applicant[31]:

   I write to inform you that Ms Jafraseal Taulaga [DOB redacted] suffers from CVID, a disease which results in her being immunosuppressed and unable to combat infections in a normal way…

   [Tribunal redactions]

   [31]    Exhibit 1, T9, page 85.

5. A medical certificate, dated 23 May 2019, from Dr S Cunningham, based in the Townsville Hospital, states that the Applicant has a permanent condition of CVID and that she suffered from symptoms of, “increased risk of infection”, with prescribed treatment of, “Prophylactic Antibiotics, Immunoglobin Infusions”[32].

   [32]    Exhibit 1, T15, page 107.

6. A further medical certificate, dated 3 June 2019, from Dr Emma Wallace at Pinnace Medical Centre in Townsville, states that the Applicant suffers from a permanent condition that will likely persist for two years or more of, “IgA IgG deficiency, CVID”, and that the prognosis was uncertain. Dr Wallace stated that the Applicant’s symptoms were, “Recurrent respiratory tract infections”[33].

   [33]    Ibid, page 111.

7. The Tribunal observes the Applicant’s planned treatment was to continue with monthly intravenous antibiotics at the hospital and that it was Dr Wallace’s opinion that the Applicant was unfit for work/study from 3 June 2019, to 3 September 2019. Further to this, Dr Wallace indicated that the Applicant was unable to do eight hours or more of any other work per week. With respect to being asked to identify any factors which may impact the Applicant’s participation with respect to returning to work, Dr Wallace stated, “… Unable to work do to risk of serious life threatening infection…”[34].

   [34]    Ibid.

8. In a letter dated 18 July 2019 from Dr Wallace, and a patient health summary from the Applicant’s Medical Centre (which contains the Applicant’s medical history)[35], she stated the following with respect to the Applicant[36]:

   Jafraseal suffers from common immunodeficiency (CVID) with IgA and IgG deficiency which was diagnosed by paediatrician Dr Dennis Raymond in Sydney. She also suffers from bronchiectasis, a chronic incurable condition as a result of this.

   On a daily basis Jafraseal has to complete chest physio and saline nebuliser twice a day, every day for the rest of her life.

   On a 4 weekly basis Jafraseal is required to attend The Townsville Hospital day unit for 4-6 hours where she receives intravenous immunoglobulin to manage her condition.

   Jafraseal is required to take prophylactic antibiotics ,bactrim and Azithromicin every Monday, Wednesday and Friday.

   Depending on the time of year, Jafraseal will also require Intravenous antibiotics and hospital admission to manage a severe lung infection.

   Jafraseal currently has to travel to Sydney to meet with her specialist immunologist while she is awaiting transfer of care to Brisbane.

   [35]    Although his letter postdates the Qualification Period for this application, it is directly referrable to the

   Applicant’s condition prior to and during the Qualification Period. It was on this basis that the Tribunal  

   accepted the medical evidence. With reference to Harris and Secretary, Department of Employment and

   Workplace Relations [2007] FCA 404 at [1].

   [36]    Exhibit 1, T19, pages 122 to 124.

9. A review of the Applicant’s medical history, in the Tribunal’s opinion, indicates that her condition of CVID is considered permanent and fully diagnosed with respect to meeting the relevant requirements in the Determination, given confirmation of a diagnosis from numerous specialists over the Applicant’s life, as outlined by the Tribunal in the above reasons of this decision.

10. With respect to assessing whether the Applicant’s CVID was fully treated and fully stabilised prior to or during the Qualification Period for this application, the Tribunal observes that the Respondent had, in their initial submissions (prior to hearing evidence of Dr Lin) accepted that the Applicant’s CVID condition was fully treated and fully stabilised during the qualification period, stating that, “… the most recent available evidence is indicative of relative compliance with treatment recommendations…”. The Respondent had at first contended that the Applicant’s condition of CVID ought be assessed as having a moderate functional impact and that the Applicant be assigned 10 points under the relevant Impairment Table (Table 1 – Functions requiring Physical Exertion & Stamina)[37]. The Respondent’s position was retracted upon hearing evidence from Dr Ming Wei Lin on the second day of the hearing[38].

    Letter from Dr Lin dated 23 June 2021

    [37]    Exhibit R2, page 8, paragraphs 43 to 47.

    [38]    Transcript (10 August 2021), page 61, lines 13 to 16.

11. A letter was submitted from Dr Ming Wei Lin, who treats the Applicant for their CVID. She is a Clinical Immunologist and Immunopathologist graduate from the University of Sydney, a staff specialist in the Department of Immunology at Westmead Hospital in Sydney and a Clinical Associate Professor with the University of Sydney[39]. Dr Lin’s letter of 23 June 2021 states[40]:

    … I am a Clinical Immunologist at Westmead Hospital and as one of Ms Taulaga’s treating physicians, I am writing to support her application for a Disability Pension.

    Ms Taulaga has Common Variable Immunodeficiency (CVID). This is a primary immunodeficiency, manifests by the person’s inability to produce normal levels of functioning antibodies (immunoglobulins). Whilst the cause of this is unknown and believed to be polygenic, Ms Taulaga’s elder brother passed away from the complications of the disease, which may include terminal and irreversible lung failure or bronchiectasis. The treatment for CVID is monthly lifelong supplemental immunoglobulin, which Ms Taulaga is receiving, prophylactic antibiotics and regular specialist follow-up to screen for and prevent complications of the illness.

    Unfortunately, as Ms Taulaga has been suffering with the illness for a few years with intermittent exacerbations, this has taken a toll on her health and exercise tolerance. She has been hospitalised on multiple occasions with pneumonia requiring intravenous antibiotics. As such, there has been objective decline in her serial lung function over time. This has led to severe functional impact on activities requiring physical exertion or stamina. She experiences shortness of breath and fatigue when performing light physical activities and, due to these symptoms, she is unable to walk long distances, perform light day to day household activities and is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

    I support Ms Taulaga’s application for a disability pension as she is not medically fit to work. I am sure my opinions will be supported by her other physicians who have been involved with her care over the years…

    Oral Evidence of Dr Lin

    [39]    Ibid, page 41, lines 4 to 8.

    [40]    Exhibit 7.

12. At the resumed hearing of 10 August 2021, the Tribunal heard evidence from Dr Lin, which is summarised as follows:

    (a)Dr Lin took over from Dr Peter Hsu, who had been previously treating the Applicant as a child. The extent of Dr Lin’s involvement with the Applicant’s treatment has been for the past, “couple of years”, around the time the Applicant turned eighteen years of age (observing the Applicant is currently twenty-one years of age)[41].

    [41]    Transcript (10 August 2021), page 41, lines 10 to 38.

    (b)Dr Lin officially authorises the Applicant’s use of immunoglobulin replacements and communicates with the Applicant’s treating physician in Townsville, Dr Rebecca Burns[42].

    [42]    Ibid. lines 40 to 47.

    (c)Dr Lin was questioned as to her letter of 23 June 2021 and was asked to clarify what she had meant when she stated that, “… there has been objective decline in her serial lung function over time…”. Initially, Dr Lin explained to the Tribunal that she did not have specific time frames to qualify this statement and that she had mentioned this in her letter because she had been corresponding with the Applicant’s treating respiratory physician in Townsville and had formed that opinion with respect to correspondence outlining the Applicant’s hospitalisations[43].  Under further questioning, Dr Lin confirmed that when she referred to the Applicant’s serial lung function declining over time, she had meant since the time she had been treating the Applicant (from around the age of eighteen years)[44].

    (d)Dr Lin stated the following when questioned as to her opinion regarding the decline in the Applicant’s lung function[45]:

    … has been the fact that she hasn’t been as diligent with her healthcare, to put it politely, as I would like her to be….I think a lot of it is also because – not necessarily the natural evolution of the illness but because she hasn’t been turning up for her infusions. So the nature of this condition is that it’s an inherited genetic condition and you don’t make normal antibodies, so you need replacement antibodies every month. If you don’t get it, and the antibodies only last three to four weeks in your body, so the antibodies that you get from blood donors only last you three to four weeks. If you don’t receive the blood donor’s immunoglobulins or antibodies, you get sick because your own body doesn’t make enough. So part of the reason her lung function is declining is because she keeps getting infections, and every time she keeps getting lung infections she gets bronchiectasis, which is scarring and fibrosis of the lung, which is why she coughs all the time and she’s short of breath…

    [Tribunal underline for emphasis]

    (e)When questioned as to her assessment of the Applicant’s functional impact, Dr Lin stated[46]:

    … I guess it’s basically mainly from what she can do, what she tells me she can do, and I mean I haven’t officially assessed that with an OT or physio and maybe she needs that, I don’t think anybody can give you a comprehensive assessment – any doctor can give you a comprehensive assessment unless it’s done by a CTO or an ETO, which is an exercise physiologist, I think that’s the only way we’re going to get an objective measure. So it’s mainly by personal subjective reports.

    [Tribunal underline for emphasis]

    [43]    Ibid, page 42, lines 39 to 43.

    [44]    Ibid, page 43, lines 5 to 10.

    [45]    Ibid, lines 24 to 46.

    [46]    Ibid, page 44, lines 4 to 11.

13. The Tribunal is of the view that the evidence of Dr Lin, with respect to the Applicant not being diligent with treatment for their condition (i.e. not turning up for infusions), leads to the conclusion that the Applicant’s CVID condition could not be considered fully treated, nor fully stabilised, prior to, or during the Qualification Period. Further, the Tribunal observes that Dr Lin also stated that the opinion in her letter, dated 23 June 2021, was based on the Applicant’s self-reported symptoms, with respect to her evidence transposed in the above paragraph.

14. As the Tribunal has found that the Applicant’s condition of CVID could not be considered fully treated and stabilised prior to or during the Qualification Period, an Impairment Rating could not be assigned.

    Summary

15. The Tribunal has found the Applicant’s CVID condition was not able to be assigned an Impairment Rating under section 94(1)(b) of the Act.

16. As the Tribunal has found that the Applicant did not satisfy section 94(1)(b) of the Act, there is no need to consider the remaining relevant provisions.

    DECISION

17. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division, dated 23 December 2019.

    I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    ………[SGD]...………………

    Associate

    Dated: 27 October 2021

    Date of hearing:  27^th July & 10^th August, 2021

    Applicant:  Ms J Taulaga (via telephone)

    Applicant’s representative:     Ms T Taulaga (via telephone)

    (Applicant’s mother)

    Solicitor for Respondent:       Ms Jasmine Forsyth (via telephone)

    Mills Oakley              

    Annexure 1 – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	T Documents (pages 1 to 189)	R	–	18 May 2020
2	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 14)	R	24 May 2021	24 May 2021
3	Letter from Dr Ming-Wei Lin (one page)	A	15 May 2020	18 May 2020
4	Letter from Dr Brynes (one page)	A	28 August 2020	7 September 2020
5	Letter from Dr Ming-Wei Lin (one page)	A	21 January 2021	8 March 2021
6	Letter from Dr Ming-Wei Lin (duplicate of exhibit 5 with handwritten notations) and extract of impairment table ‘physical exertion or stamina’ (two pages)	A	21 January 2021	31 May 2021
7	Letter from Dr Ming-Wei Lin (one page)	A	23 June 2021	28 June 2021
8	Applicant Written Submissions	A	30 August 2021	30 August 2021
9	Respondent Further Written Submissions	R	21 September 2021	21 September 2021
10	Applicant Closing Submissions	A	–	11 October 2021