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

Thomas and Secretary, Department of Social Services (Social services second review) [2019] AATA 420 (19 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1841
Re:Valerie Thomas
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:19 March 2019
Place:Melbourne

The Tribunal affirms the decision under review.
....[sgd]....................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
SOCIAL SECURITY – Disability Support Pension refusal – medical impairments in qualification period – medical impairment qualification requirements – medical impairments not fully treated or stabilised during qualification period – failure to qualify for rating under Impairment Tables – decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Bobera and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] AATA 922
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
The Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
19 March 2019
INTRODUCTION

On 8 January 2018 the applicant, Mrs Valerie Thomas (Mrs Thomas), lodged a claim for Disability Support Pension (DSP) with the Department of Human Services (the Department). A Centrelink employee made the decision to reject the claim on 29 January 2018. On 5 February 2018 an Authorised Review Officer affirmed the decision to reject the claim (the ARO decision).
Mrs Thomas then sought a review of the ARO decision by the Social Services and Child Support Division of this Tribunal (the AAT1).
After conducting a hearing, on 16 March 2018 the AAT1 affirmed the decision to reject the claim (the AAT1 decision).
On 9 April 2018 Mrs Thomas sought a review of the AAT1 decision.
The AAT1 decision is now the subject of this review.
BACKGROUND
On 28 December 2017 Mrs Thomas contacted the Department and expressed an intention to lodge a claim for DSP.
On 8 January 2018 the applicant lodged a claim for DSP. Mrs Thomas listed her conditions as including:
(a)hypertension;
(b)depression;
(c)anxiety;
(d)venous blood pressure;
(e)COPD - lungs;
(f)PAD - artery disease;
(g)heart issues; and
(h)mobility issues.
RELEVANT LAW
The relevant law is set out in the:
(a)Social Security Act 1991 (the Act);
(b)Social Security (Administration) Act 1999 (the Administration Act);
(c)Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination).; and
(d)The Social Security (Active Participation for Disability Support Pension) Determination 2014.
ISSUE
The Administration Act provides, at clause 4(1) of Schedule 2, as follows:
If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
As Mrs Thomas first contacted the Department in respect of her claim on 28 December 2017, the respondent has conceded and the Tribunal agrees that the qualification period for her claim should extend from 28 December 2017 to 31 March 2018 (the qualification period). See: Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606; Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; and Bobera and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] AATA 922.
Therefore, the issue before the Tribunal is whether Mrs Thomas was qualified for DSP at any time during the qualification period.
This requires consideration of section 94 of the Act to determine whether the applicant had:
(a)a physical, intellectual or psychiatric impairment; and
(b)the impairment was fully diagnosed, treated and stabilised and attracted an impairment rating of at least 20 points under the Impairment Tables; and
(c)a continuing inability to work.
The Impairment Tables are set out in the Determination.
An explanation of the purpose of the Impairment Tables is set out in section 5(2) of the Determination, which states that the Impairment Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in section 94(1)(b) of the Act; and
(b)are function-based rather than diagnosis-based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.
Note: impairment is defined in section 3 to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
To apply the Impairment Tables the condition must be considered permanent and the impairment that results from the condition must be more likely than not, in light of all available evidence, to persist for more than two years (section 6(3) of the Determination). For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated and fully stabilised and be likely to last for more than two years (sections 6(4), (5) and (6) of the Determination).
In determining whether or not a condition is fully diagnosed and fully treated, subsection 6(5) of the Determination states that:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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 2 years.
A condition is only considered fully stabilised if, pursuant to subsection 6(6) of the Determination:
(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.
Note: For reasonable treatment see section 6(7).
Reasonable treatment is defined in section 6(7) of the Determination:
(i)For the purposes of section 6(6), reasonable treatment is 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.
EVIDENCE
The Tribunal received into evidence documents lodged by the Department (T-documents and Supplementary T-documents) and also:
(a)A medical report from Mr Neil Roberts dated 6 June 2018; and
(b)A “Carer Payment and/or Carer Allowance, Medical Report” completed by Dr Eng Wee Keh (Dr Keh) on 16 August 2018.
(c)A Patient History Report regarding prescriptions issued between 19 May 2015 and August 2017; and
(d)A discharge summary dated 30 July 2017.
The Tribunal also heard oral testimony from the applicant and her husband, Mr Thomas.
CONSIDERATION
The Secretary in written submissions did not dispute that Mrs Thomas had impairments in the qualification period and accepts that she satisfied section 94(1)(a) of the Act.
The Tribunal considered the medical evidence in the documents received into evidence, and in particular the medical report completed by Dr Keh on 11 July 2016. The report confirms Mrs Thomas’ conditions as generalised anxiety, ischaemic heart disease, labile hypertension, right superficial femoral complete occlusion and asthma. The Tribunal has also considered the evidence given by Mrs Thomas at the hearing. The Tribunal is satisfied that at the time of Mrs Thomas’ claim she suffered from the conditions described by Dr Keh. On the basis of the medical evidence before the Tribunal, the Tribunal finds that Mrs Thomas satisfies section 94(1)(a) of the Act in having physical and psychological impairment as at the date she made her claim for DSP.
The question then turns to whether the conditions were fully diagnosed, treated and stabilised, and if so, whether they collectively attract an impairment rating of at least 20 points under the Impairment Tables.
Anxiety/depression
On 18 April 2012, Ms Anne Silbereisen, a senior psychologist at North West Area Mental Health Service, provided a risk assessment, report and treatment plan to Mrs Thomas’ GP which noted Mrs Thomas’ longstanding symptoms of depressions and anxiety and set out a treatment plan which included:
psychoeducation, mindfulness based cognitive therapy, cognitive behaviour therapy, acceptance and commitment therapy, motivational counselling and couple counselling.[1]
[1] Supplementary T 1 Documents (ST) 1, p193
The respondent conceded, and the Tribunal accepts, that these conditions can be considered diagnosed for the purpose of the Impairment Tables.
However, despite the diagnosis, there was no evidence before the Tribunal that the treatment plan was implemented or reviewed further at any time nor was there any evidence that Mrs Thomas addressed her condition through the consistent use of prescribed medicine. In fact, in her evidence Mrs Thomas told the Tribunal that she took a different path from medication. She referred to having had adverse reactions to medication, including hallucinations. She told the Tribunal that she would occasionally take Valium; and when things got particularly bad she would present to emergency. In addition, the T Documents make reference to further treatment in relation to Mrs Thomas’ anxiety but this occurs after the end of the qualification period.
For these reasons, the Tribunal finds that Mrs Thomas anxiety and depression were not fully treated or stabilised during the qualification period.
As the Tribunal has made this finding Mrs Thomas’ anxiety and depression does not qualify for an impairment rating under the Impairment Tables.
Heart, vascular condition/ hypertension
The respondent concedes and the Tribunal accepts that Mrs Thomas been diagnosed with heart, vascular and hypertension related conditions for the purpose of the Impairment Tables. There are a number of references to these conditions in the medical records before the Tribunal as follows.
In a letter dated 9 August 2011, vascular surgeon, Mr Roger Bell, advised that Mrs Thomas has a short distance claudication of the right leg due to a superficial femoral artery occlusion. In addition, Mr Bell noted that Mrs Thomas needed to attend to her vascular risk factors – ensuring blood pressure and cholesterol levels remain within normal limits, and that she stop smoking.[2]
[2] T Documents (TD) 7, p24.
On 27 July 2017, interventional cardiologist, Dr Chris Lim, recommended medical therapy for small branch vessel stenosis, aggressive antihypertensive therapy, that Mrs Thomas should stop smoking, and that there be a follow up with a cardiologist in 4 to 6 weeks.[3]
[3] TD 12, p30.
On 8 September 2017, interventional cardiologist, Dr Om Narayan noted that Mrs Thomas was an inpatient with labile uncontrolled blood pressure with a longstanding history of hypertension which is poorly controlled and peripheral vascular disease. Dr Narayan noted that Mrs Thomas:
…was sent home on multiple medications… Since being sent home, however, she has decided, on her own accord, to cut the doses of these medications in half. In fact, I’m not entirely sure she is taking any or all of these medications. It appears she has multiple fixed ideas about the place of medications in the treatment of heart disease and hypertension….She is very dismissive regarding the role of medication for the treatment of heart disease.
…Valarie poses multiple management challenges. Foremost is her overall reluctance to take medications as prescribed and her self-described sensitivities to medications. I am not convinced that there is an organic reaction that she experiences to any of her medications. It appears that the main issue is that she has a psychological aversion to taking medications and is distrustful of medications and doctors in general. In addition, she clearly has strong risk factors for cardiovascular disease. I have recommended that she have a 24-hour blood pressure monitor to more accurately quantify her blood pressure burden and to characterise the pattern of blood pressure over the course of the day.[4]
[4] TD 13, p, 32 and ST 1, p 181.
Mrs Thomas was not able to elaborate on the ongoing impact of these conditions, or the treatment she has received in respect of the conditions, in any meaningful way in her oral testimony. She told the Tribunal that she didn’t undertake the recommended blood pressure test and that she wasn’t able to use the monitor. She also said that the medication she had been prescribed didn’t work for her.
There is no other probative evidence before the Tribunal as to effective treatment that Mrs Thomas has undertaken in the management of these conditions.
For these reasons, the Tribunal is satisfied that Mrs Thomas’ heart, vascular and hypertension related conditions were not fully treated and stabilised during the qualification period.
Again, as the Tribunal has made this finding the conditions do not qualify for an impairment rating under the Impairment Tables.
Asthma
The respondent concedes, and the Tribunal accepts, that the asthma condition is fully diagnosed. The Tribunal notes the report of a pulmonary function test dated 15 June 2015, that reported the existence of a moderate small airways obstruction.[5]
[5] TD 11, p 28.
However, there is very scant further evidence in relation to the condition, including the extent of any treatment; and no medical evidence in relation to the functional impact of the condition.
For these reasons, the Tribunal is satisfied that Mrs Thomas’ asthma condition was not fully treated and stabilised during the qualification period.
Again, as the Tribunal has made this finding, the condition does not qualify for an impairment rating under the Impairment Tables.
Other medical conditions
There were other medical conditions that were raised by the applicant or mentioned in the materials before the Tribunal, including diabetes, thyroid disease, general mobility issues including a spine and lower leg condition, and also an eye condition.
The Tribunal is not satisfied that there was sufficient evidence in respect of these conditions available to the Tribunal for them to be assessed as fully diagnosed, treated and stabilised during the qualification period.
Again, as the Tribunal has made this finding, these conditions do not qualify for an impairment rating under the Impairment Tables.
CONCLUSION
For the reasons set out above, the Tribunal finds that each of the conditions on which Mrs Thomas’ DSP claim is based are either not fully diagnosed, treated or stabilised and therefore do not qualify for an impairment rating under the Impairment Tables. Accordingly, Mrs Thomas’ DSP claim cannot succeed. In these circumstances, it is not necessary for the Tribunal to go on to consider whether Mrs Thomas had a continuing inability to work at the time of her claim.
DECISION
The Tribunal affirms the decision under review.

46. I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

…[sgd]…………………………………….
Associate
Dated: 19 March 2019

Date of hearing: 12 October 2018

Applicant:
In person

Solicitors for the Respondent:
Mr Cameron Munro
Department of Human Services

[2019] AATA 420

19 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	12 October 2018
Applicant:	In person
Solicitors for the Respondent:	Mr Cameron Munro Department of Human Services