Tulay Polat and Secretary, Department of Social Services

[2014] AATA 609

[2014] AATA  609

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0594
Re	Tulay Polat
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	28 August 2014
Place	Sydney

The decision of the Social Security Appeal Tribunal made 23 January 2014 is affirmed.

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

Senior Member A K Britton

CATCHWORDS

SOCIAL SECUIRTY — Disability Support Pension — Whether the Applicant’s conditions were diagnosed, fully treated and stabilised — What rating should be assigned the Applicant’s conditions under the impairment tables — Whether the Applicant suffers a “severe impairment” — Whether the Applicant has undertaken a program of support — Whether any exceptions apply to the Applicant in regards to undertaking a program of support

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Social Security Act 1991 (Cth) – ss 94(1)(b); 94(1)(c)(i); 94(2)(aa); 94(3B); 94(3C)

Social Security (Administration) Act 1999 (Cth) – ss 13; 42; cl 4(1) of Sch 2;

SECONDARY MATERIALS

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

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Senior Member A K Britton

28 August 2014

1. Ms Tulay Polat applies to the Administrative Appeals Tribunal for review of the decision made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal (SSAT), to reject her claim for disability support pension (DSP) made on 1 August 2013.

2. To qualify for DSP Ms Polat must demonstrate that she has:

   an impairment of 20 points or more (s 94(1)(b) of the Social Security Act 1991 (Cth) (the Act)), and

   a “continuing inability to work” because of that impairment (s 94(1)(c)(i)), and

   undertaken a “program of support” unless found to have a “severe impairment” (s 94(2)(aa)).

3. Whether Ms Polat satisfies the above requirements must be assessed by reference to the 13-week period from the day she made her claim, that is, 1 August 2013 to 30 October 2013 (ss 13, 42 and cl 4(1) of Sch 2 of the Social Security (Administration) Act 1999 (Cth)). In these reasons I will refer to this period as “the assessment period”.

4. Ms Polat’s impairment must be assessed under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Tables). For the reasons that follow I have concluded that Ms Polat has a total impairment rating of 20 points but not a “severe impairment”, namely, an impairment totalling at least 20 points under a single impairment table (s 94(3B) of the Act). It follows that a critical issue to be decided in these proceedings is whether Ms Polat has undertaken a “program of support”.

5. Ms Polat claims that during the assessment period she suffered from the following conditions:

   ·back pain and osteoporosis

   ·right shoulder condition

   ·coeliac disease

   ·endometriosis

   ·depression

   ·migraine

6. A precondition to assigning an impairment rating under the Tables, is that the claimed condition be “permanent”, that is, fully diagnosed, treated and stabilised and more likely than not, in light of the available evidence, to persist for more than two years (ss 6(3) and 6(4) of the Tables). It is agreed that with the exception of migraine and depression, all Ms Polat’s claimed conditions were permanent, during the assessment period. It is also agreed that while Ms Polat’s GP made a diagnosis of depression, that condition was not “fully diagnosed” within the meaning of the Tables, because, as required by the Introduction to Table 5, the GP’s diagnosis was not supported by a clinical psychologist, nor was the diagnosis made by a psychiatrist.

   What is the appropriate impairment rating to assign to Ms Polat’s claimed conditions?

   Right shoulder condition

7. The Secretary contends that this condition has a mild functional impact on activities undertaken by Ms Polat using hands or arms as measured under Table 2. Ms Polat on the other hand contends that her condition meets the descriptors for moderate functional impact under the Table.

8. Table 2 of the Tables provides in part:

   Table 2 – Upper Limb Function

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

1        The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

1        The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)   picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)   handling very small objects (e.g. coins);

(c)    doing up buttons;

(d)   reaching up or out to pick up objects.

10

There is a moderate functional impact on activities using hands or arms.

1        The person has difficulty with most of the following:

(a)   picking up a 1 litre carton full of liquid;

(b)   picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)    holding and using a pen or pencil;

(d)   doing up buttons or tying shoelaces;

(e)    using a standard computer keyboard;

(f)     unscrewing a lid on a soft-drink bottle.

1. In these proceedings Ms Polat agreed that the SSAT’s reasons for decision (Polat and Secretary, Chief Executive Centrelink (Unreported, Social Security Appeals Tribunal, Member Glasson, 23 January 2014)), accurately records her account of symptoms given at the hearing before the SSAT in January 2014, namely that she:

   ·uses her left arm and hand for many activities, despite being right handed;

   ·has no difficulty with showering, hair washing, dressing, doing up buttons, using utensils and handling coins;

   ·has never used a computer;

   ·is able to unscrew a bottle of soft drink or water provided it has already been opened by somebody else;

   ·cannot carry shopping bags;

   ·cannot pick up or carry heavy objects;

   ·experiences pain in her right arm “night and day”; and

   ·her right arm becomes very tired.

2. Ms Polat claims the pain she experiences in her right shoulder is now much worse than during the assessment period and she now also experiences numbness in her right arm.

3. An assignment of 10 points under Table 2 requires a finding that the person has difficulty with most of the seven listed activities under the descriptor, “moderate functional impact”. If the account given by Ms Polat to the SSAT is accepted it would appear that she has difficulty with four of the seven listed activities.

4. Orthopaedic surgeon, Dr Verc Kinzal, in a report dated 25 February 2013, wrote that recently taken X-rays revealed that Ms Polat has “advanced arthritic changes with a completely deformed humoral head”. On examination Dr Kinzal found restricted movement in Ms Polat’s right arm. In Dr Kinzal’s opinion, were it not for her relative youth, Ms Polat would benefit from a “total shoulder replacement”.

5. While neither Dr Kinzal nor Dr Geoffrey Needham, a consultant in rehabilitation and pain medicine whom Ms Polat consulted in 2012, expressly addressed the issue of functional impairment, they accepted that Ms Polat’s shoulder condition causes her significant pain and on testing found significant restrictions in movement. Their opinions are consistent with Ms Polat’s account of reduced right arm function on account of pain.

6. Ms Polat’s GP, in a report dated 26 July 2013 provided to Centrelink in support of Ms Polat’s claim for DSP (the GP’s original report), wrote that Ms Polat’s right shoulder condition has “minimal impact” on her functional capacity but did not set out the basis for that opinion. That opinion is at odds with the opinion of Drs Kinzal and Needham and Ms Polat’s self-report.

7. Having regard to the totality of the evidence I accept Ms Polat’s claim that throughout the assessment period she had difficulty with most of the activities listed under the descriptor “moderate functional impairment” in Table 2. I find that Ms Polat’s shoulder condition had a moderate functional impact on activities involving her upper limbs, and assign an impairment rating of 10 points.

   Endometriosis

8. The Secretary endorses the finding made by the SSAT that Ms Polat’s endometriosis had a moderate functional impact on her ability to perform activities requiring physical exertion or stamina, and the appropriate rating under Table 1 is 10 points. Ms Polat on the other hand contends that the condition has a severe impact on her ability to perform activities requiring physical exertion or stamina.

9. Table 1 provides:

   Table 1 - Functions requiring Physical Exertion and Stamina

Points

Descriptors

5

There is a mild functional impact on activities requiring physical exertion or stamina.

1        The person:

(a)   experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)        walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)       performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)   is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

1        The person:

(a)   experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)        is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)   is able to:

(i)        use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

20

There is a severe functional impact on activities requiring physical exertion or stamina.

1        The person:

(a)   usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)        walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)       walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)      use public transport without assistance; or

(iv)      perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)    has or 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.

1. Ms Polat agrees that the SSAT in its reason for decision accurately recorded the history she gave at the hearing in January 2014, namely that:

   ·she developed pelvic pain and heavy bleeding about a year after the birth of her son;

   ·she remains in the care of a gynaecologist;

   ·she still has heavy periods;

   ·she has no energy because of her pain and is unable to look after her son and her husband; and

   ·she is very forgetful.

2. In 2012 and 2013 Ms Polat underwent a number of surgical procedures to treat her endometriosis. Gynaecologist, Dr Nesrin Varol, in a report dated 11 July 2013 wrote that Ms Polat suffers from “severe pelvic endometriosis with chronic pelvic pain”. He wrote that her claim that chronic pain consistently limits her abilities to work is “in keeping with patients suffering from this condition”.

3. While I accept that Ms Polat suffers significant and chronic pelvic pain the evidence does not support a finding that she usually experiences fatigue when performing light physical activities and is unable to undertake one or more of the tasks listed under the descriptor for “severe functional impairment” in Table 1. I find that during the assessment period Ms Polat’s endometriosis had a moderate functional impact on activities requiring physical exertion or stamina and assign an impairment rating of 10 points.

   Coeliac Disease

4. The Secretary contends that, as found by the SSAT, the evidence about Ms Polat’s coeliac disease is consistent with the descriptors for “no functional impact”, assessed under Table 10. Ms Polat on the other hand argues that she is significantly impaired by coeliac disease. She testified that the condition affects all aspects of her life and her concentration is “zero”. While she concedes that she is currently attending an English language course for about 20 hours per week, she says she is unable to concentrate because of the symptoms of coeliac disease. Later in evidence she nominated a frequent need to go to the toilet as a symptom of her condition, which made attendance at class difficult.

5. Table 10 provides in part:

   Table 10 - Digestive and Reproductive Function

Points

Descriptor

0

There is no functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

1        The person is not usually interrupted at work or other activity by symptoms or personal care needs associated with a digestive or reproductive system condition.

5

There is a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

1        At least one of the following applies:

(a)   the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or

(b)   the person is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.

10

There is a moderate functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

1        At least two of the following apply to the person:

(a)   the person’s attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

(b)   the person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;

(c)    the person is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.

1. The claims made by Ms Polat about the impact of her coeliac disease on her daily activities are largely uncorroborated. The claim made in these proceedings that she needs to make frequent unscheduled visits to the toilet is both unsupported and inconsistent with the account Ms Polat gave to the SSAT in January 2014. The explanation for the apparent discrepancy may lie in the fact that the condition has deteriorated and Ms Polat is confusing current symptoms with those experienced in the assessment period. Whatever the explanation, as instructed by s 8(1) of the Tables, absent corroboration the reported symptoms cannot be taken into account in assessing Ms Polat’s level of impairment.

2. I find assessed under Table 10 during the assessment period, Ms Polat’s coeliac disease had no functional impact.

   Back pain and osteoporosis

3. Ms Polat contends that this condition has a severe functional impact on activities involving spinal function as assessed under Table 4. The Secretary contends that the condition had nil functional impact.

4. There is little available material about what the Secretary and the SSAT describe as Ms Polat’s “back pain osteoporosis”. While the evidence reveals that Ms Polat suffers from shoulder osteoporosis, none of the medical reports make any express reference to Ms Polat suffering osteoporosis in the spine (see for example reports of Dr Vera Kinzal, 25 February 2013 and 15 April 2013, and Dr Chan, 27 March 2012).

5. Despite the concession made by the Secretary I am not convinced that Ms Polat’s “back pain osteoporosis” was fully diagnosed during the assessment period. Even if I am wrong, there is no evidence to corroborate Ms Polat’s claim that the purported condition had a severe (or even mild) functional impact on activities involving spinal function as measured under Table 4.

   Migraine

6. In these proceedings Ms Polat claimed she suffered from migraine during the assessment period and submitted that this condition should be taken into account in the assessment of her level of impairment.

7. The GP’s original report made no mention of migraine. The ARO who assessed Ms Polat in November 2013 wrote that Ms Polat’s migraine had not been fully treated or stabilised. The migraine issue was apparently not raised by Ms Polat in proceedings before the SSAT.

8. On the available material it is unclear whether Ms Polat was diagnosed as suffering from migraine during the assessment period. Nor is there evidence that the condition was treated or stabilised. Not being satisfied that the condition is permanent an impairment rating cannot be assigned.

   Has Ms Polat actively participated in a program of support?

9. Because Ms Polat does not have a “severe impairment” to qualify for DSP she must demonstrate that she has “actively participated in a ‘program of support’” (POS) (ss 94(1)(c)(i) and 94(2)(aa)).

10. At the close of the hearing Ms Polat claimed that she had participated in an English language course run by Navitas English and asserted that as a consequence she satisfied the requirement to have actively participated in a POS. I decided to allow Ms Polat the opportunity to obtain evidence to support that claim and invited both parties to comment on that evidence. Written submissions were received from both parties.

11. Before examining this material it is first necessary to examine the statutory provisions relating to the POS requirement.

12. A POS is defined by s 94(5) of the Act to mean a program that:

    (a)is designed to assist persons to prepare for, find or maintain work; and

    (b)either:

    (i)      is funded (wholly or partly) by the Commonwealth; or

    (ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

13. Section 94(3C) of the Act provides:

    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.

14. The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (POS Determination) was made under s 94(3C) of the Act. Section 5 of the POS Determination provides:

    Requirements for active participation

    1A person has actively participated in a program of support if:

    (a)    the person has:

    (i)complied with the requirements of the program of support; and

    (ii)participated in a program of support during the 36 months ending immediately before the relevant date of claim; and

    (b)    subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and

    (c)    subsection (6) is satisfied in relation to the person and the program of support.

    2     This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.

    ….

1. By the combined operation of s 94(3C) of the Act and s 5 of the POS Determination, Ms Polat must demonstrate that she either (i) participated in one or more POS for a period of not less than 18 months in the 36 months prior to making her claim for DSP (i.e. 1 August 2010 to 1 August 2013); or (ii) one of the exemptions listed in s 5 of the POS Determination applies.

2. In support of her claim that she satisfies the requirement of having actively participated in a POS, Ms Polat relies on a letter prepared by the assistant manager of Navitas English dated 10 July 2014, which states that Ms Polat was enrolled in Certificate II in the Spoken and Written English course (the course) in May 2011, and, her first and last date of attendance was 8 August 2011 and 12 December 2012, respectively.

3. The Secretary contends that there is no evidence to support Ms Polat’s contention that the course meets the requirements set out in s 94(5) of the Act. For current purposes I will assume but not decide that the course constitutes a POS.

4. Ms Polat acknowledges that her participation in the course fell short of the requisite duration by about four months.

5. Section 5 of the POS Determination lists a number of exemptions to the 18 month requirement. To rely on those exemptions Ms Polat must demonstrate:

   ·she completed the course, and its duration was  less than 18 months (s 5(4)); or

   ·before she made her claim for DSP her participation in the course was terminated because she was unable, solely because of her impairments, from improving her capacity to find or gain employment through continued participation in the course (s 5(5)); or

   ·when she made her claim for DSP she was participating in the course and was prevented solely because of her impairments, from improving her capacity to find or gain employment through continued participation in the course (s 5(6)).

6. None of the above exemptions apply to Ms Polat.  She claims she had no option but to start the course late because of a combination of personal reasons and a lack of suitable child care. Those circumstances are not covered by any of the exemptions listed above.

7. In addition, Ms Polat argues she should be exempted from the 18 month requirement because she was assessed as unfit for work for 12 months by Centrelink job capacity assessors (JCA) in September 2012 and August 2013. The reports prepared by the assessors make no mention of Ms Polat being unable to participate in a POS and indeed contain a recommendation that she be referred to an employment service for assistance with job seeking or studies (see T 13 and T 27 of the documents produced by the Secretary under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth)).

8. The available evidence does not support a finding that Ms Polat participated in the course for the requisite period. It follows that one of the mandatory criteria for DSP is not satisfied and Ms Polat does not qualify for DSP.

   Conclusion

9. I accept that Ms Polat is experiencing significant health problems. However she does not meet one of the statutory criteria for DSP, namely having undertaken a POS of sufficient duration in the three years before making her claim for DSP. I accept that she holds the genuine belief that she is incapacitated for work and qualifies for DSP. As explained at the hearing, the Act imposes strict requirements on qualifying for DSP, which have been tightened significantly in the last few years. Ms Polat does not satisfy those requirements and the Tribunal does not have power to waive them. Accordingly the decision under review must be affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

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

Associate

Dated 28 August 2014

Date(s) of hearing	9 July 2014
Date final submissions received	18 August 2014
Applicant	In person
Solicitors for the Respondent	Sparke Helmore