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

[2017] AATA 2429

Trembath and Secretary, Department of Social Services (Social services second review) [2017] AATA 2429 (24 November 2017)

Division:GENERAL DIVISION

File Number:          2016/5976

Re:Rebecca Trembath

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:24 November 2017

Place:Brisbane

The decision under review is set aside and substituted with a decision that Ms Trembath qualified for DSP during the Qualification Period.

..............................[Sgd]..........................................

Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether impairments permanent – whether impairments attracted 20 points or more under the impairment tables during the relevant period – decision under review is set-aside and substituted

LEGISLATION

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)

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Member D K Grigg

24 November 2017

INTRODUCTION

1. On 21 March 2016 Ms Trembath lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]

   ·            right leg removed between the knee and ankle

   ·            very weak left leg

   ·            depression

   ·            toilet problems

   ·            showering and dressing problems

   [1]        Exhibit 1, T Documents, T26, pages 153–182, Ms Trembath’s Claim for DSP dated 21 March 2016.

2. Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Ms Trembath’s claim for DSP on the basis that she did not have impairments with a total impairment rating of 20 points or more.[2]

   [2]        Exhibit 1, T Documents, T6, pages 61–62, Rejection of claim for DSP dated 8 June 2016.

Claim History

1. Ms Trembath sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that
   

   [3]        Exhibit 1, T Documents, T7, pages 63–69, Decision of ARO dated 26 July 2016.

   Ms Trembath’s medical conditions were not permanent, as defined in the Social Security Act 1991 (Cth) (the “Act”), or did not attract an impairment rating of 20 points or more, and she did not meet the program of support requirements.[3]

2. Ms Trembath lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 2 August 2016.[4] The SSCSD rejected
   

   [4]        Exhibit 1, T Documents, T8, page 70, Letter from AAT to Centrelink regarding appeal dated 2 August 2016.

   [5]        Exhibit 1, T Documents, T2, pages 4–12, SSCSD’s Decision and Reasons for Decision dated 17 October 2016.

   Ms Trembath’s claim and affirmed the ARO’s decision on 17 October 2016.[5]

3. Ms Trembath has sought a review of the SSCSD’s decision by this Tribunal.[6]

   [6]        Exhibit 1, T Documents, T1, pages 1–3, Application for Review of Decision dated 7 November 2016.

ISSUES FOR DETERMINATION

1. Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-

   (a)Ms Trembath must have a physical, intellectual or psychiatric impairment;

   (b)Ms Trembath’s impairment/s must be of 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 (“Determination”);[7]

   (c)Ms Trembath has a continuing inability to work.

   [7] A legislative instrument made under the Act: see s 26(1).

2. The date for determining whether Ms Trembath meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 21 March 2016), unless Ms Trembath becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[8] Therefore, to qualify for DSP Ms Trembath must have met the Section 94 Requirements between 21 March 2016 and 20 June 2016 (“Qualification Period”).

   [8]        See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999

   (Cth).

3. It is important to keep in mind that medical evidence concerning the functional impact of Ms Trembath’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[9]

   [9]        See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on

   appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

DID MS TREMBATH HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?

What is an Impairment

1. The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]

   [10] Determination, s 3.

Ms Trembath’s medical conditions

Diabetes

1. In April 2015 Dr Pratt, General Practitioner, reported that Ms Trembath:[11]

   [11]       Exhibit 1, T Documents, T14, pages 117–120, Medical report of Dr Pratt dated 10 April 2015.

   (a)had diabetes mellitus which was likely to significantly reduce her life expectancy;

   (b)was newly on insulin and awaiting further review;

   (c)had planned to see a diabetic nurse; and

   (d)was likely to be impacted by the condition for more than 24 months and the effect on her ability to function was uncertain.

Vascular Disease - Right Leg Amputation & Left Leg Neuropathy

1. In September 2015 Dr Pratt reported that:[12]

   (a)Ms Trembath had acute arterial embolus in her right leg which was temporary;

   (b)Ms Trembath was having pain and difficulty walking and needed frequent follow-up with a specialist;

   (c)Ms Trembath had been admitted to hospital for an operation to insert a stent in her aorta and was still under follow-up with the vascular team in Brisbane with a possibility of readmission; and

   (d)future treatment was still to be decided.

   [12]       Exhibit 1, T Documents, T18, page 139, Medical Certificate of Dr Pratt dated 24 September 2015.

2. In November 2015 Dr Pratt reported that Ms Trembath had vascular insufficiency and that she was being followed up with the vascular team and it was possible that her toes and forefoot would be amputated.[13]

   [13]       Exhibit 1, T Documents, T20, page 146, Report of Dr Pratt dated 3 November 2015; T22, page 148, Medical Certificate of Dr Pratt dated 14 November 2015.

3. In March 2016 Dr Collins reported that Ms Trembath:[14]

   (a)had a right below knee amputation for ischaemia;

   (b)was mobilising with the wheelchair and in pain;

   (c)was having ongoing physiotherapy and rehabilitation with the aim for a prosthesis to enable mobilisation; and

   (d)was likely to show considerable improvement within 2 years.

   [14]       Exhibit 1, T Documents, T23, page 149, Medical Certificate of Dr Pratt dated 14 January 2016.

4. Hospital records indicate that Ms Trembath discharged herself after the amputation operation, against advice, and had refused inpatient rehabilitation.[15]

   [15]       Exhibit 1, T Documents, T27, page 185, Royal Brisbane and women's Hospital discharge summary dated 17 March 2016.

5. In July 2016 Ms Trembath met with Mr Ben Courtice, a Service Advisor with Disability Services from the Queensland Government, to discuss service options to assist Ms Trembath’s disability support requirements. In Mr Courtice’s letter to Ms Trembath dated 5 July 2016 he:[16]

   (a)confirmed that Ms Trembath was eligible to access services funded by disability services;

   (b)recommended that she discuss with her general practitioner whether access to occupational therapy or physiotherapy would be worthwhile;

   (c)recommended she discuss with her general practitioner access to psychology services through the Medicare funded mental health scheme; and

   (d)provided her with a community group activity calendar.

   [16]       Exhibit 1, T Documents, T33, pages 229–231, Letter from Mr Courtice to Ms Trembath dated 5 July 2016.

6. On 8 July 2016 Ms Trembath accessed occupational therapy services which included a home assessment and wheelchair assessment. The treatment provided included prescription of a manual wheelchair, review of the wheelchair, recommendations to modify her home for wheelchair use and prescription of a stump shrink sock. Mr Tomas Hennessey, who conducted the occupational therapy assessment, reported that:[17]

   [17]       Exhibit 1, T Documents, T33, page 232, Allied Health Service Provider Report prepared by Mr Hennessey dated 8 July 2016.

   (a)Ms Trembath uses a manual wheelchair to mobilise and can transfer using a pivot transfer;

   (b)has a motorised scooter to access the local community;

   (c)has a ramp installed at her house so she can access it with her chair;

   (d)the doorways within her house were being widened to allow for her wheelchair to mobilise to all required rooms;

   (e)Ms Trembath still requires assistance from her partner for showering, cooking, cleaning and transport;

   (f)Ms Trembath’s type II diabetes is medicated although not always effectively;

   (g)Ms Trembath has a fluctuating emotional state (partly due to medications) which can cause her alertness and endurance to fluctuate on a daily basis;

   (h)at times Ms Trembath finds she requires additional assistance and is quick to fatigue when doing tasks;

   (i)due to her diabetes Ms Trembath has peripheral neuropathy which reduces her feeling and coordination in her feet and somewhat in her hands;

   (j)Ms Trembath had a difficult time adjusting to the loss of her leg and the associated loss of independence;

   (k)Ms Trembath would benefit from support from disability services and may require allied health input to support a return to work.

7. Dr Pratt provided a response to questions from Basic Rights Queensland on 14 July 2016. In that response Dr Pratt reported that Ms Trembath:[18]

   (a)has been unable to walk without her leg;

   (b)has neuropathy in her left leg and walking on this is likely to result in another operation on her left leg;

   (c)is wheelchair bound;

   (d)is unlikely to be independent of mobilisation given she has disease in her remaining leg that may require amputation;

   (e)is prevented solely by this impairment from working even 15 hours a week in any job in the next 2 years; and

   (f)is unable solely because of her impairment to improve her capacity for, find or maintain work through participation in a program support.

   [18]       Exhibit 1, T Documents, T32, pages 225–227, Basic Rights Queensland letter from Dr Pratt dated 14 July 2016.

8. In August 2017 Dr Simon Quinn, Vascular Surgeon, reported that given that Ms Trembath:[19]

   … has undergone a below knee amputation her vascular surgical situation is currently diagnosed and stabilised. She is unlikely to experience significant improvement in her level of function. There is no further vascular surgical treatment required, nor none being offered at the moment… A below knee amputation for arterial disease is a devastating event for somebody in their mid-30s and I do hope that she is managing well.

Left foot pain

[19]       Exhibit 3, letter from Dr Quinn to Dr Pratt dated 11 August 2017.

1. In April 2015 Dr Pratt reported that Ms Trembath:[20]

   (a)had left foot pain secondary to her diabetes (likely to be diabetic neuropathy) and there was a planned referral to an orthopaedic specialist;

   (b)was treating the pain with analgesics and had had x-rays;

   (c)had pain on walking and walks with a pronounced gait;

   (d)can only walk short distances and has poor endurance and constant pain; and

   (e)is likely to be affected for more than 24 months and the effect of the condition on her ability to function is expected to deteriorate.

   [20]       Exhibit 1, T Documents, T14, pages 121–123, Medical Report of Dr Pratt dated 10 April 2015.

2. Dr Pratt, reported that given the normal x-ray results it is unlikely that an orthopaedic specialist would be able to help. Dr Pratt also reported that Ms Trembath’s poor mental health was contributing to poor diabetes control.[21]

   [21]       Exhibit 1, T Documents, T14, pages 122–123, Medical Report of Dr Pratt dated 10 April 2015.

3. An x-ray of Ms Trembath’s left foot was performed on 23 December 2014 and found no abnormalities.[22]

   [22]       Exhibit 1, T Documents, T16, page 129, X-Ray Report dated 23 December 2014.

4. Ms Trembath was seen by Ms Kymberly Cracknell, Podiatrist, in June 2015. Ms Cracknell reported that:[23]

   (a)Ms Trembath complained of pain in her feet after breaking all her toes;

   (b)Ms Trembath was unable to show her any images or give any comprehensive history;

   (c)she suspected Ms Trembath’s generalised pain in her feet and legs is neuropathic pain; and

   (d)as a result of the diabetic assessment further investigation may be needed with the Doppler/Vascular Specialist/Neurologist in relation to a reduction in Ms Trembath’s vascular and neurological status.

   [23]       Exhibit 1, T Documents, T19, page 141, Report of Ms Cracknell dated 12 June 2015.

5. In May 2016 Dr Pratt reported that Ms Trembath:[24]

   (a)had diabetic neuropathy which was permanent;

   (b)had pain in her left leg;

   (c)may require further surgery (namely amputation) and was awaiting further vascular surgery review.

   [24]       Exhibit 1, T Documents, T28, page 189, Medical certificate of Dr Pratt dated 3 May 2016.

6. In May 2016 Dr Pratt reported that Ms Trembath has nerve damage in her remaining leg and that she may lose that leg in the future.[25]

   [25]       Exhibit 1, T Documents, T29, page 192, Letter from Dr Pratt to Coastal Life Therapies dated 27 May 2016.

7. Dr Pratt provided a response to questions from Basic Rights Queensland in July 2016, and reported that Ms Trembath has neuropathy in her left leg and walking on her left leg is likely to result in another amputation.[26]

Depression

[26]       Exhibit 1, T Documents, T32, pages 225–227, Basic Rights Queensland letter from Dr Pratt dated 14 July 2016.

1. In December 2013 Dr Lloyd-Morgan, General Practitioner, reported that Ms Trembath had severe depression which resulted in poor concentration, poor memory and mood swings.[27]

   [27]       Exhibit 1, T Documents, T12, pages 102–104, Medical Report of Dr Lloyd–Morgan dated 5 December 2013.

2. In May 2016 Dr Pratt referred Ms Trembath to Coastal Life Therapies for assessment and management of her anxiety and depression. Dr Pratt advised Coastal Life Therapies that:[28]

   (a)Ms Trembath was managing reasonably well with medication until the amputation of her right leg;

   (b)it has now hit her that she may also lose her left leg; and

   (c)she needs to be kept motivated in order to proceed to eventual fitting of a leg prosthesis which will be required if she is ever to walk again.

   [28]       Exhibit 1, T Documents, T29, page 192, Letter from Dr Pratt to coastal life therapies dated 27 May 2016.

3. In a Mental Health Plan prepared by Dr Pratt in May 2016, Dr Pratt records:[29]

   (a)Ms Trembath’s depression and anxiety has been exacerbated by her amputation;

   (b)Ms Trembath has had a past history of depression, mood swing personality, and borderline personality disorder;

   (c)Ms Trembath scored 44 on a K10 test tool (which is an anxiety and depression checklist).[30]

   Polycystic Ovarian Syndrome

   [29]       Exhibit 1, T Documents, T29, pages 195-199, Mental Health Plan dated 27 May 2016.

   [30]       According to Beyond Blue this indicates a high level of depression and anxiety:

4. In December 2013 Dr Lloyd-Morgan, General Practitioner, reported that Ms Trembath had polycystic ovarian syndrome but that it was well managed and caused minimal or limited impact on her ability to function.[31]

   Chronic Pain Syndrome

   [31]       Exhibit 1, T Documents, T12, page 105, Medical Report of Dr Lloyd–Morgan dated 5 December 2013.

5. In December 2013 Dr Lloyd-Morgan, General Practitioner, reported that Ms Trembath had chronic pain syndrome related to back pain for which specialist review was pending.[32]

   [32]       Exhibit 1, T Documents, T12, page 99, Medical Report of Dr Lloyd–Morgan dated 5 December 2013.

Conclusion on Impairments

1. The Secretary accepts that Ms Trembath suffers from a physical impairment for the purposes of section 94(1)(a) at the Qualification Period.[33]

   [33]       Exhibit 2, Secretary's Statement of Facts and Contentions dated 28 July 2017, para 30.

2. In light of the above medical evidence I conclude that at the Qualification Period,

   
   

   Ms Trembath suffered from a Diabetes Impairment, Right Leg Amputation Impairment and Left Leg Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.

3. In relation to the chronic pain condition, there is little to no medical evidence to establish whether this condition was fully treated, or stable during the Qualification Date. There is also insufficient corroborating evidence regarding how this condition affected

   
   

   Ms Trembath’s functional capacity during the Qualification Period.

4. In relation to Ms Trembath’s polycystic ovarian syndrome, the medical evidence indicates that this condition is having little or no impact on Ms Trembath’s ability to function and therefore cannot be considered an Impairment for the purposes of the Act.

5. In relation to Ms Trembath’s anxiety and depression, Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health 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). While there is a reference in Dr Lloyd-Morgan’s report of December 2013 to Ms Trembath having previously seen a Dr West, Psychiatrist, in 2011, there is no evidence of any diagnosis having been made by Dr West or of any other clinical psychologist or psychiatrist prior to or during the Qualification Period. Further, there is no evidence that Ms Trembath has had reasonable treatment for her mental health conditions such that it could be said that her mental health conditions were fully stabilised as at the Qualification Period. The Tribunal acknowledges that Ms Trembath was diagnosed by a Psychiatrist, Dr Jenkins, in October 2016 with major depression and anxiety and complex post-traumatic stress disorder (which is completely understandable given her impairments). However, this assessment was made after the Qualification Period. Even if it was accepted that Ms Trembath was diagnosed during the Qualification Period, she had not, at that time, had reasonable treatment for the condition and as a result, no impairment rating can be assigned.

   DO MS TREMBATH’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?

How are Impairment Ratings Assessed?

1. The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[34] They are function based[35] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[36]

   [34] Determination, s 4(2) and 5(2)(a).

   [35] Determination, s 5(2)(b) and (c).

   [36] Determination, s 5(2)(d).

2. I can only assign an Impairment Rating to an impairment if:[37]

   (a)Ms Trembath’s condition causing that impairment is “permanent”; and

   (b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   [37] Determination, see s 6(3).

1. Ms Trembath’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[38]

   (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;

   (b)the condition has been fully treated;

   (c)the condition has been fully stabilised; and

   (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   [38] Determination, see s 6(4).

2. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[39] the following must be considered:[40]

   (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.

   [39] For the purposes of ss 6(4)(a) and (b) of the Determination.

   [40] Determination, see s 6(5).

3. A condition is fully stabilised[41] if:[42]

   (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[43]; or

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

   [41] For the purposes of ss 6(4)(c) and 11(4) of the Determination.

   [42] Determination, see s 6(6).

   [43]       For reasonable treatment see s 6(7) of the Determination.

4. Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.

5. Before applying the Tables, I must first consider Ms Trembath’s medical history, in relation to the condition causing the Impairments.[44]

   [44] Determination, see s 6(2).

Are Ms Trembath’s Impairments Permanent and Likely to Persist For At Least 2 Years?

1. The medical evidence establishes that Ms Trembath’s Diabetes Impairment is permanent. The Secretary accepts that Ms Trembath’s Diabetes Impairment has been fully diagnosed, fully treated and fully stabilised.[45]

   [45]       Exhibit 2, Secretary's Statement of Facts and Contentions dated 28 July 2017, para 37.

2. The evidence also indicates that Ms Trembath’s Right Leg Amputation and Left Leg Neuropathy are also a result, at least in part, from the Diabetes Impairment.

3. In relation to Ms Trembath’s Right Leg Amputation Impairment, the Secretary accepts that has been fully diagnosed, but contends that it has not been fully treated or fully stabilised.[46]

   [46]       Exhibit 2, Secretary's Statement of Facts and Contentions dated 28 July 2017, para 31.

4. Considering the evidence of Dr Pratt[47] and Dr Quinn,[48] the Tribunal finds that
   

   [47]       Exhibit 1, T Documents, T32, pages 225–227, Basic Rights Queensland letter from Dr Pratt dated 14 July 2016.

   [48]       Exhibit 3, Letter from Dr Quinn to Dr Pratt dated 11 August 2017.

   Ms Trembath’s Right Leg Amputation Impairment is permanent. There is nothing further from a surgical point of view that can be done and the only other possible “treatment” is for Ms Trembath to use a prosthesis to improve her mobility. However, the evidence clearly indicates that Mr Trembath is not able to use a prosthesis because she is unable, due to her left leg neuropathy impairment, to use her left leg to stand.

5. According to the Determination, a condition is fully stabilised[49] if:[50]

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

   (iii)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[51]; or

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

   [49] For the purposes of ss 6(4)(c) and 11(4) of the Determination.

   [50] Determination, see s 6(6).

   [51]       For reasonable treatment see s 6(7) of the Determination.

6. No significant functional improvement is expected, regardless of what treatment
   Ms Trembath trials. Therefore, an Impairment Rating can be assigned.

7. In relation to Ms Trembath’s Left Leg Neuropathy Impairment, the only treatment referred to as available for Ms Trembath is to have her left leg amputated. This is not going to improve her ability to function.

8. In the circumstances the Tribunal finds that Ms Trembath’s Left Leg Impairment was fully diagnosed, fully treated and fully stabilised during the Qualification Period. Therefore, an impairment rating can be assigned.

Using the Impairment Tables

1. The level of impact of Ms Trembath’s Impairment needs to be assessed against the descriptors[52] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[53]

   [52] Determination, see ss 3 and 5(3).

   [53] Determination, see ss 3 and 5(3).

2. Section 6 of the Determination sets out the rules governing the determination of impairment.

3. The 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.[54]

   [54] Determination, see s 6(1).

4. I am obliged by the Determination to take the following information into account in applying the Tables:[55]

   (a)the information provided by the health professionals specified in the relevant Table; and

   (b)any additional medical or work capacity information that may be available; and

   (c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.

   [55] Determination, see s 7.

5. I must not take into account the following information in applying the Tables:[56]

   (a)symptoms reported by Ms Trembath in relation to his condition where there is no corroborating evidence;

   (b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Trembath’s local community.

   [56] Determination, see s 8.

6. Which Tables are appropriate are determined by:[57]

   (a)identifying the loss of function; then

   (b)referring to the Table related to the function affected; then

   (c)identifying the correct impairment rating.

   [57] Determination, see s 10(1).

7. Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[58]

   [58] Determination, see s 10(3).

8. 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.[59]

   [59] Determination, see s 11(1).

9. The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[60]

   [60] Determination, see s 11(3).

10. Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[61]

    [61] Determination, see s 11(5).

Relevant Impairment Table and Impairment Rating

1. The relevant table for the purposes of assigning an impairment rating to Ms Trembath’s Impairments is Table 3 which deals with lower limb function.

2. The introduction to Table 3 provides:

   ·   Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

   ·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

   ·   Self-report of symptoms alone is insufficient.

   ·   There must be corroborating evidence of the person’s impairment.

   ·   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

   oa report from the person’s treating doctor;

   oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);

   oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;

   oresults of diagnostic tests (e.g. X-Rays or other imagery);

   oresults of physical tests or assessments.

   ·     For the purposes of this Table lower limbs extend from the hips to the toes.

3. Dr Pratt reported in July 2016 that Ms Trembath:[62]

   (a)has been unable to walk without her leg;

   (b)has neuropathy in her left leg and walking on this is likely to result in another amputation;

   (c)is wheelchair bound;

   (d)is unlikely to be independent of mobilisation given she has disease in remaining leg that may require amputation;

   (e)should be awarded 30 points under Table 3;

   (f)is prevented solely by this impairment from working even 15 hours a week in any job in the next 2 years; and

   (g)is unable solely because of her impairment to improve her capacity for, find or maintain work through participation in a program support.

   [62]       Exhibit 1, T Documents, T32, pages 225–227, Basic Rights Queensland letter from Dr Pratt dated 14 July 2016.

4. At the hearing Ms Trembath told the Tribunal that:

   (a)she can never walk again;

   (b)Dr Quinn wants to remove her left leg, but she said no;

   (c)she cannot stand up;

   (d)she does not leave the house;

   (e)she has to have help to dress, wash and go to the toilet; and

   (f)she started rehabilitation at home shortly after the surgery but the more exercise she did the less mobility she had.

5. To obtain a 30-point rating Ms Trembath must be unable to mobilise independently. This is not the case however as Ms Trembath is able to mobilise using a wheelchair.

6. To obtain a 20-point rating the evidence must show that Ms Trembath is unable to do any of the following:

   (a)walk around a shopping centre or supermarket without assistance;

   (b)walk from the carpark into a shopping centre or supermarket without assistance;

   (c)stand up from a sitting position without assistance; and

   (d)requires assistance to use public transport.

7. A 20-point rating includes a person who requires assistance to:

   (a)move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

   (b)move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

8. A JCA conducted face-to-face with Ms Trembath by a Qualified Social Worker, Registered Psychologist and Accredited Exercise Physiologist on 20 May 2016 reported:

   (a)Ms Trembath had pain and loss of stability and balance;

   (b)Ms Trembath’s mobility was affected;

   (c)Ms Trembath told them:

   (i)She falls at times;

   (ii)Has difficulty reaching stoves and cupboards due to being in wheelchair;

   (iii)Can stand briefly to transfer to wheelchair; and

   (d)Ms Trembath would have difficulty using public transport.

9. Considering the evidence available the Tribunal finds that an appropriate rating for Ms Trembath’s Lower Limb Impairments is 20 points.

10. The Tribunal has not assigned a separate Impairment Rating for the Diabetes Impairment because its main functional impacts, on the evidence, relates to her lower limb function.

WERE MS TREMBATH’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?

1. To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. The Tribunal has found that Ms Trembath’s Impairments were permanent for the purposes of the act and attracted a 20-point impairment rating, and therefore satisfies section 94(1)(b).

DID MS TREMBATH HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?

1. Section 94(2) of the Act sets out when a person has a continuing inability to work because of an impairment. It provides:

   (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.

   Note:          For work see subsection (5).

2. Therefore, to satisfy section 94(1)(c), Ms Trembath must have:

   (a)completed a program of support and have an impairment which is sufficient to prevent her from undertaking a training activity during the next 2 years or a training activity is unlikely, because of the impairment, to enable her to do any work independently of a program of support within the next 2 years; or

   (b)a “severe impairment” which is sufficient to prevent her from undertaking a training activity during the next 2 years or a training activity is unlikely, because of the impairment, to enable her to do any work independently of a program of support within the next 2 years.

3. The requirements for a program of support, as referred to in s 94(3C) of the Act, are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in section 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (section 8, POS Determination).

4. The relevant period in this case is the 36 months prior to the date of the DSP claim.

   
   

   Ms Trembath must have actively participated in a program of support for at least 18 months in the 3 years prior to 21 March 2016. Centrelink records confirm that Ms Trembath has not participated in a POS since November 2009.[63]

   [63]       Exhibit 1, T Documents, T50, page 236, Program of Support Summary.

5. However, because the Tribunal has found that Ms Trembath’s Impairments have attracted 20 points under one single Impairment Table (i.e. it is a “severe impairment” as defined in s 94(3B)), she is not under an obligation to have completed a POS.

1. In the case of a severe impairment a person has a continuing inability to work pursuant to section 94(2) if:

   (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.

1. The term 'work' is defined in subsection 94(5) of the Act, as work:

   (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b)that exists in Australia, even if not within the person's locally accessible labour market.

2. The JCA assessed Ms Trembath as having a future work capacity of at least 15 hours per week within the next two years with intervention.[64] However, the JCA found none of Ms Trembath’s Impairments were permanent so the Tribunal attaches little weight to the JCA report. Further, the JCA assessment does not accord with the evidence of:

   (a)Dr Pratt that Ms Trembath is:

   (i)prevented solely by her Right Leg Amputation Impairment from working even 15 hours a week in any job in the next 2 years; and

   (ii)is unable solely because of her impairment to improve her capacity for, find or maintain work through participation in a program support; and

   (b)Dr Quinn that Ms Trembath is unlikely to experience significant improvement in her level of function.

   [64]       Exhibit 1, T Documents, T31, page 220, JCA Report dated 7 June 2016.

3. In the circumstances the Tribunal finds that Ms Trembath has a continuing inability to work and satisfies section 94(1)(c) of the Act.

DECISION

1. Ms Trembath’s claim succeeds because she did qualify for DSP during the Qualification Period under section 94.

2. The decision under review is set aside and substituted with a decision that Ms Trembath qualified for DSP during the Qualification Period.

I certify that the preceding 82 (eighty-two) paragraphs are
a true copy of the reasons
for the decision herein of
Member D K Grigg

.................................[Sgd].......................................

Associate

Dated: 24 November 2017

Date of hearing:

20 October 2017

Applicant:

By telephone

Solicitors for the Respondent:

Ms Jasmine Forsyth,
Senior Government Lawyer

Department of Human Services