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

[2016] AATA 677

Tierney and Secretary, Department of Social Services (Social services second review) [2016] AATA 677 (2 September 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0406
Re	Tanya Tierney
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Cunningham
Date	2 September 2016
Place	Hobart

The decision under review is affirmed.

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Ms A F Cunningham, Senior Member

CATCHWORDS

Social Security - disability support pension- qualification requirements - claimed conditions of lumbosacral back pain with bilateral sciatica - mixed anxiety and depression - total impairment rating of 10 points - decision and review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975

Social Security Act 1991

Social Security (Administration) Act 1991

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

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Senior Member Cunningham

1. The Applicant, Tanya Tierney seeks the review of a decision of the Social Services and Child Support Division (first-tier review) made on 11 December 2015 which affirmed a decision of Centrelink not to grant her claim for disability support pension (DSP). The Applicant claims that the first-tier reviewer failed to take account of all of the information that she had provided.

2. The first-tier reviewer rejected Ms Tierney’s application on the basis that her conditions fail to attract the required impairment rating of 20 points under the Impairment Tables. The Respondent contends that the decision under review should be affirmed.

3. Ms Tierney appeared in person at the hearing and tendered two further medical reports namely from Dr Toby Gardner, General Practitioner dated 4 April 2016 and Dr Michele Dicker, Psychologist dated 15 December 2015. The Respondent was represented by Ms Lewis and tendered the T Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

   LEGISLATION

4. The qualification requirements for DSP are contained in subsection 94 (1) of the Social Security Act 1991 (the Act.  The provisions provide as follows…

   SOCIAL SECURITY ACT 1991 - SECT 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; and

   (d)  the person has turned 16; and

   (da)  in a case where the following apply:

   (i)  the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;

   (ii)  the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market;

   (iii)  if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e)  the person either:

   (i)  is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)  has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)  is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)  is not an Australian resident; and

   (B)  is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea)  one of the following applies:

   (i)  the person is an Australian resident;

   (ia)  the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)  the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

5. The requirements set out in subsection 94 (1) are conjunctive and a failure to satisfy any one will result in failure to qualify the DSP.

6. Other relevant legislation is contained in the Social Security (Administration) Act 1991 (Administration Act) and the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination). Also of relevance is government policy as set out in the Guide to Social Security Law.

7. Sections 41, 42 and Schedule 2 Clause 3 of the Administration Act provide that the qualification period derives from the date of the claim for DSP being 16 April 2015 and extends for a period of 13 weeks that is, until 16 July 2015.

   CONSIDERATION

8. In the medical report accompanying Ms Tierney’s application to DSP, Dr Gardner listed her conditions as lumbosacral back pain with bilateral sciatica and mixed anxiety and depression. The date of onset of Ms Tierney’s back condition is stated to be from aged eight. Treatment has involved physiotherapy, osteopathy and analgesic medication. Dr Gardner states that Ms Tierney suffers from chronic back pain, fatigue, sciatica, limitation of liability, sensory disturbance of the lower limbs, some cognitive impairment and that she is unable to sit or stand for long periods.

9. The stated date of onset for Ms Tierney’s mixed anxiety and depression condition is 1996. The diagnosis was confirmed by Clinical Psychologist, Holly Guest. Ms Tierney has been on antidepressant medication since 1996 and suffers low mood, poor concentration, short-term memory impairment, impaired decision-making, emotional liability, fatigue and migraines. Other conditions that are generally well-managed and cause minimal or limited impact on ability to function are listed as neck pain and cervical radiculopathy-bilateral and moderate asthma.

10. The Secretary accepts and the AAT agrees that the Applicant suffers from impairments within the meaning of subsection 94 (1) (a).

11. The next issue to determine is whether Ms Tierney’s impairments can be rated at 20 points or more under the Impairment Tables. In order for an impairment to attract an impairment rating under the Impairment Tables, the impairment must be considered permanent in that it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years (subsection 6 (3) of the Impairment Determination).

12. An impairment rating is assessed in accordance with the Impairment Tables made pursuant to the Impairment Determination. The Tables describe functional activities, abilities, symptoms and limitations and assign ratings to determine the functional impact of the impairments.

13. In determining whether a condition has been fully diagnosed, treated and stabilised consideration must be given to any corroborating evidence of the condition, what treatment has occurred, and whether the treatment is continuing or planned in the next two years (subsection 6 (5) of the Impairment Determination), or if there would be unlikely to be significant functional improvement that would enable the person to work in the next two years (subsection 6 (6) of the Impairment Determination).

14. The Tables make it clear that self-reporting of symptoms alone is insufficient and there must be corroborating evidence of a person’s impairment. The symptoms reported by a person in relation to the condition can only be taken into account where there is corroborating medical evidence (Section 8 of the Impairment Determination and the Introduction to the Tables).

15. The term “impairment” is not defined in the Act. Section 3 of the Impairment Determination defines “impairment” to mean:

    A loss of functional capacity affecting a person’s ability to work.

16. The impairment rating assessed by the Job Capacity Assessor in her report of 23/6/15 for Ms Tierney’s spinal disorder was 10 points. For a severe functional impact rating of 20 points there must be evidence that the person is unable to perform any overhead activities; or turn their head or bend their neck without moving their trunk; or bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes. Ms Tierney provided no evidence with respect to these criteria but referred to the fact that Dr Gardner had reported that she was unable to sit or stand for long periods. In his more recent report which postdates the qualification period, Dr Gardner states that Ms Tierney was in obvious discomfort on each occasion that she saw him and on multiple occasions was unable to straighten after sitting in the waiting room. Further that she is unable to sit for more than 10 minutes in a chair without having to either get up out of the chair or reposition herself.

17. This evidence is of no assistance however in the review of the impairment rating under Table 4.   It does not satisfy or address the criteria for a severe functional impact rating and in any event, postdates the qualification period.  The Tribunal agrees that the evidence supports an impairment rating of 10 points under Table 4 for Ms Tierney’s spinal function.

18. The first-tier reviewer determined that an impairment rating could not be assigned for Ms Tierney’s anxiety and depression because the condition was not considered fully treated when she made her claim for DSP or within the ensuing 13 weeks. Detailed reasons are set out in the Decision from paragraphs 29 to paragraphs 34.

19. Whilst it is Ms Tierney’s contention that the decision maker failed to take account of all relevant evidence, she was unable to direct the AAT to the evidence that supported her claim, apart from the handwritten note appearing at the bottom of psychologist, Michelle Dicker’s report of 15 December 2015 stating that:

    “In my opioin (sic) Tanya is unfit for work and can not (sic) work the amount is(sic) asked of her 15 hours p/w.”

    The words ‘unfit for work’ and ‘cannot work’ are underlined. The wording and nature of the notation suggest to the AAT that these words were not in fact written by psychologist, Michelle Dicker. In any event the report postdates the qualification period and therefore does not assist the AAT in its determination.  The report does not address the descriptors of the relevant Impairment Table, Table 5 – mental health function but recommends a further six sessions in addition to psychological support “to assist Tanya during this period of transition”.

20. In considering whether a condition has been fully treated subsection 6 (5) of the Impairment Determination states that regard must be had to what treatment has occurred in relation to the condition and whether the treatment is continuing or is planned in the next two years. Subsection 6 (6) of the Impairment Determination  provides that for a condition to be fully stabilised there must be evidence that either the person has undertaken reasonable treatment for the condition or that 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.

21. Whilst there is evidence that Ms Tierney’s long-standing mental health condition has been diagnosed by a Clinical Psychologist, the evidence with respect to the qualification period is that Ms Tierney was being referred for psychological counselling. Accordingly the Tribunal can neither be satisfied that Ms Tierney’s mental health condition was either fully treated or fully stabilised during the qualification period such as to attract an impairment rating.

22. The evidence is that Ms Tierney’s spinal condition attracts an impairment rating of 10 points which is less than the 20 points required under the Act. As each and all of the qualification requirements must be satisfied in order to qualify for DSP, the Tribunal determines to affirm the decision under review.

23.     I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Cunningham

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Administrative Assistant
Dated   

Date of hearing	26 July 2016
Applicant	Self-represented
Solicitor for the Respondent	Ms Belinda Lewis