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

Tziavaras and Secretary, Department of Social Services (Social services second review) [2022] AATA 1154 (13 May 2022)
Division:GENERAL DIVISION
File Number: 2019/2730
Re:Arthur Tziavaras
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date: 13 May 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.....[sgd]...................................................................
R Cameron, Senior Member
Catchwords
DISABILITY SUPPORT PENSION - section 94(1)(a) - did the applicant have any physical, intellectual or psychiatric impairments – yes – section 94(1)(b) - did the applicant attract 20 points or more under the impairment tables – yes – does the applicant has a continuing inability to work – no – does not satisfy requirements for disability support pension - decision affirmed
Legislation
Social Security Act 1991 (Cth)
Cases
Secretary, Department of Social Services and Trenter [2016] AATA 292
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
R Cameron, Senior Member
13 May 2022
INTRODUCTION

The applicant seeks a review of a decision made by the Social Services and Child Support Division (“Tier 1”) of this Tribunal on 3 May 2019. Tier 1 affirmed a decision made by the Department of Human Services on 28 September 2018 (“cancellation date”) cancelling the applicant’s disability support pension (“DSP”).
ISSUES FOR DETERMINATION
In an application such as this there are several issues that must be considered by the Tribunal. They are as follows:
(a)Was the applicant qualified for the DSP under section 94 of the Social Security Act 1991 (Cth) (“the Act”) on the cancellation date.
(b)As at the cancellation date:
(i)did the applicant have any physical, intellectual or psychiatric impairments, and if so,
(ii)did the applicant’s impairments attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”), and if so,
(iii)did the applicant have a continuing inability to work.
QUALIFICATION CRITERIA
Qualification for a DSP is set out in section 94(1) of the Act. A person qualifies for the DSP if:
(a)they have a physical, intellectual or psychiatric impairment and
(b)the impairment attracts an impairment rating of 20 points or more from the Impairment Tables; and
(c)the person has a continuing inability to work.
The criteria are conjunctive and therefore, if all of them are not satisfied an applicant will not qualify for the DSP.
In assessing a person’s impairment for the purposes of section 94(1)(b) of the Act the Impairment Tables must be applied. Amongst other things, it requires an application of Rule 6 of the Impairment Tables which provide as follows:
“(3) An impairment rating can only be assigned to an impairment if:
(a) the persons condition causing the 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.
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in the light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) 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;
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) whether 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 a 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.”
There was both documentary and oral evidence before the Tribunal.
The documentary evidence consisted of two reports of the applicant’s treating general practitioner, Dr Yousif, dated 6 July 2019 and 18 July 2019, together with a letter of instruction to him, the applicant’s witness statement made on 24 March 2022, and the documents lodged by the respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”).
The applicant and Dr Yousif gave evidence at the hearing of this application.
CONSIDERATION
Does the applicant suffer a physical, intellectual or psychiatric impairment - section 94(1)(a) of the Act?
The respondent accepts that the applicant suffers from impairments and therefore section 94(1)(a) of the Act is satisfied.[1]
Does the applicant attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
[1] See paragraph 4.30 of the respondent's Statement of Facts, Issues and Contentions, dated 20 January 2020 (‘respondent’s SFIC’).
Left hip osteoarthritis
The respondent accepts that the applicant suffers from long-standing left hip osteoarthritis; and that such condition was fully diagnosed, treated and stabilised as at the cancellation date.[2]
[2] See paragraph 4.31 of the respondent's SFIC..
An x-ray of the left hip dated 27 December 2017 recorded as follows:
“There is abnormal alignment with superior subluxation of the femoral head and superior displacement of the acetabulum, likely long-standing. Marked flattening and compression of the femoral head is present indicative of avascular necrosis and there is marked degenerative joint space reduction and the hip joint with the joint almost ankylosed. Screws are in position at the upper left femoral neck, but the femoral neck is markedly narrowed and contracted. Appearances would suggest AVN following previous surgery was secondary marked degenerative changes.”
A medical certificate signed by Dr Turnbull, on 3 January 2018, diagnosed the applicant as suffering from severe osteoarthritis and left hip avascular necrosis. The certificate noted the date of onset as 3 January 1971. It also records that the applicant had been referred to Frankston Hospital for a possible hip replacement.
A report from Mr Crick, an orthopaedic surgeon, dated 17 August 2018, was in evidence before the Tribunal. He found that the applicant has severe osteoarthritis of the left hip which was nearly ankylosed. He also observed that the applicant was starting to experience some pain in his back as well as in his knee on that side and opined that it was almost certainly because of the stiffness at his hip. He expressed the opinion that a total hip replacement may be a worthwhile consideration but that it would be quite complex surgery. Apart from arranging an MRI scan of the applicant’s left hip, he recommended that it would also be worthwhile obtaining an MRI of his spine due to previous concerns about the sciatic nerve.
A further report from Mr Crick, dated 5 October 2018, was in evidence. He recorded that the applicant was experiencing significant pain within the left hip as well as limitation in his regular activities. He also recorded that an MRI scan did not suggest any major issue with the applicant’s spine. He noted degenerative changes at multiple levels but no neurological impingement. He suggested that it may be worthwhile for the applicant to attend a Case Conference at the Frankston Hospital so that he could receive multiple surgical opinions at the same time.
The applicant contends that he should be allocated 10 points under Table 3 (Lower Limb Function) of the Impairment Tables for a moderate functional impact on activities using lower limbs. He also concedes he is unlikely to satisfy the severe impairment rating under Table 3.[3]
[3] See paragraph 71 of the applicant’s Statement of Facts, Issues and Contentions, dated 5 December 2019 (‘applicant’s SFIC’)..
The respondent contends, having regard to the available evidence, that the impairment resulting from the left hip osteoarthritis suffered by the applicant also causes a moderate functional impact on activities using lower limbs attracting a rating of 10 impairment points under Table 3.[4]
[4] See paragraph 4.34 of the respondent’s SFIC.
The Tribunal agrees that the impairment suffered by the applicant does attract 10 points under Table 3 of the Impairment Tables. Apart from the concession made by the applicant that he is unlikely to satisfy the severe impairment rating under Table 3, there is other evidence before the Tribunal that enables it to reach this conclusion.
There was the Additional Medical Evidence for the DSP provided by Dr Turnbull to Centrelink on 3 January 2018.[5] Dr Turnbull reported that the applicant:
(a)was independent in all activities of daily living and that he lived alone;
(b)had difficulty with mobilising and used a walking stick sometimes;
(c)could stand up from a sitting position unassisted;
(d)could walk around a shopping centre/supermarket unassisted; and
(e)could only stand for approximately five minutes.
[5] Document T19.
In a Job Capacity Assessment Report dated 7 September 2018,[6] the assessor, a rehabilitation counsellor, recorded the following information as a result of an interview that he conducted with the applicant:
(a)he was able to walk inside and around a supermarket independently;
(b)he tends to use a walking stick or a supermarket trolley for support when shopping, however, does not require a walking stick around his home; and
(c)his capacity for standing is limited to approximately five minutes due to pain.
[6] Document T20.
The applicant gave evidence to a similar effect when he was in the witness box. He stated that he can get around the local shops. Usually, this is facilitated by parking next to the trolleys and he leans on a trolley in a similar manner to a walker, which assists him with his mobility.
He said he can stand up for about five minutes without support but by that time it will be extremely painful, and he needs to rest afterwards to recover. He uses a walking stick to get around, particularly when he is outside his house. To stand from a sitting position he required the use of an aid but not the assistance of another person.
Spinal Condition
This condition gave rise to most debate between the parties during the hearing of this application.
The applicant approached the matter from two directions. Firstly, it was contended that the hip condition from which the applicant suffers impacted upon spinal function so as to attract the operation of Table 4 of the Impairment Tables (Spinal Function). Secondly, it relied upon the evidence principally of Dr Yousif that there was also arthritis or deterioration of the applicant’s lumbar spine.
The respondent contends that the applicant’s back condition was not fully diagnosed, treated or stabilised as at the cancellation date.
The respondent contends that there was no impact on spinal function in a way that attracted the assessment under Table 4, and that any assessment should be confined solely to Table 3. In particular, it relied upon the report from Mr Crick dated 5 October 2018 which reported that an MRI scan did not suggest any major issue with his spine. Dr Yousif, who gave evidence to the Tribunal at the hearing of the application, was adamant that the applicant had mild disc disease, which he said was osteoarthritis. He also gave evidence to the effect that the hip condition was a condition which impaired the applicant’s spinal function. It was not suggested to him that the condition was not fully diagnosed, treated and stabilised. This evidence was not challenged when he was in the witness box. The Tribunal does not see any real tension between the opinion of Dr Yousif and what is recorded in Mr Crick’s report of 5 October 2018. Mr Crick did not expressly say there was no mild disc disease or osteoarthritis of the spine. He simply stated there was no major issue with the spine.
The applicant gave evidence that he has had issues with his back for a long time. He gave evidence to the effect that he has not been able to bend his back properly for quite some time. He said he can bend it a bit to the right and not much to the left. He has found ways of picking things up rather than by bending his back, mostly trying to bend using his right leg. Either way, he experiences significant pain. Bending his back, he is just able to touch his knees or pick something up if, as he put it, “his life depended on it”, but he would be in extreme pain. He can bend down to table height using only his back, but the applicant described it as being “pretty painful”.
Applying Table 4 of the Impairment Tables, it is useful to examine the introduction, which states that it is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving the spinal function, that is, bending or turning the back, trunk or neck.
There is a mild functional impact on activities involving spinal function if the person has some difficulty in bending to knee level and straightening up again without difficulty. The applicant’s evidence, which was not challenged, demonstrates that he does have some difficulty bending to knee level and straightening up again without difficulty. Therefore, the Tribunal considers that the functional impact of his spinal condition is such that it attracts five impairment points under Table 4.
Psoriasis
The respondent has accepted that the applicant’s condition of psoriasis was fully diagnosed, treated and stabilised as at the cancellation date.[7]
[7] See paragraph 4.47 of the respondent's SFIC.
The applicant has suffered from psoriasis all his adult life. A report from a dermatologist, Dr Meehan, dated 1 May 2019, that was in evidence described the condition as widespread and severe.[8] The applicant accepted that, in terms of Table 14 of the Impairment Tables (Functions of the Skin), this description does not address the relevant criteria for a severe impairment rating. The Tribunal accepts the contention of the applicant that it does indicate, to some degree, the level of severity of his condition and the impact that it has on his day-to-day life.
[8] It should be noted that Dr Meehan in that report observed that the applicant had been referred to him from the Monash Medical Centre for a trial of narrowband UVB phototherapy, as the applicant's condition had failed to respond to topical and oral treatments. Dr Meehan also observed that the frequency of treatment by way of phototherapy obviously has a significant impact on the applicant's capacity to work.
Dr Yousif stated the condition is not curable and that the applicant has a severe rash on his body. He described the impact overall as moderate, within the meaning of Table 14. He explained in his evidence that psoriasis can hamper the applicant’s life when it flares up and does occasionally need urgent attention. It will hamper daily activity until there is a noticeable improvement. Triggers which cause a flareup can include trauma, stress, infection or sunburn. When that happens, it does severely impact him until it goes into remission.
The applicant gave evidence that he has tried a variety of medications to treat the condition, without success. As at the cancellation date, he stated that his condition was not really under control. He had been undergoing phototherapy and was applying various creams and ointments which had some limited effect, but overall was not doing much at all. The applicant contends that the condition is no better now than it was at the cancellation date.
A medical certificate from Dr Yousif dated 26 October 2018 records that the psoriasis condition was under management from a dermatologist.
The applicant conceded that he is still independent in activities of daily living. However, he is limited in outside activities. For instance, he said he has not been able to swim for many years.
The respondent contends that the impairment rating applicable under Table 14 is a mild rating which attracts five points.[9]
[9] See paragraph 4.49 of the respondent's SFIC
On the other hand, the applicant contends that his psoriasis is least likely to cause him minor difficulties to parts of his body that are not his hands in performing activities, consistent with the degree of functional impact a person is likely to experience as a result of mild allodynia. He contends that either a moderate rating or, alternatively, a mild rating should be applied under Table 14.
When one examines the mild and moderate descriptors in Table 14, it is difficult to see that there is a moderate functional impact on activities requiring healthy, undamaged skin as identified. There was no specific evidence before the Tribunal directly addressing each of the descriptors in the moderate category. It seems, to the Tribunal, the position confronted by the applicant is more a case of mild functional impact on activities requiring healthy and damaged skin. He does have minor difficulties performing various activities in the relevant sense contemplated by a five-point rating. The Tribunal considers that a five-point rating is the most appropriate one to apply.
Overall Impairment Rating
By reason of the foregoing matters the Tribunal concludes that as at the cancellation date the applicant’s overall impairment rating was 20 impairment points. He therefore satisfies section 94(1)(b) of the Act.
The Tribunal must now determine whether the applicant had a continuing inability to work, as required by section 94(1)(c) of the Act.
(iii) Does the applicant have a continuing inability to work – section 94(1)(c) of the Act?
The applicant gave evidence that after his DSP was cancelled, he managed to obtain a job working in a laboratory at Dandenong. He works three shifts of seven hours each per week. He finds this work nonetheless exhausting. The respondent relies upon this as supportive of its contention that the applicant has a capacity to work 15 hours or more and did so within two years from the cancellation date.
Section 94(2) of the Act defines a continuing inability to work. Its terms need not be reproduced for the purposes of these reasons.
The source of disagreement between the parties involves the application of section 96 of the Act. Section 96 of the Act relevantly provides:
“Continuation of disability support pension.
(1) This section applies to a person if:
(a) the person is receiving disability support pension; and
(b) the person would, apart from this section, cease to be qualified for disability support pension because a person obtains paid work that is for:
(i) at least 15 hours per week; but
(ii) less than 30 hours per week.
(2) A person to whom this section applies continues to be qualified for disability support pension.”
The applicant contends that section 96 of the Act is applicable, and provides protection to a party, whether the paid work undertaken by them occurred at the time of cancellation of the DSP or it was obtained afterwards. As the applicant put it, it postdates the cancellation which is the case in this matter.

The applicant relies upon, amongst other contentions, a passage from a decision of Member McCallum in Secretary, Department of Social Services and Trenter (‘Trenter’).[10]
“As I interpret section 96 of the SS Act, if I had found that Mr Trenter’s above the left knee amputation to be assessed at 20 points under the impairment tables, I would have further found that he could work for more than two years for 15, but not more for more than 30 hours each week and still retain DSP which is subject to a means test.”
[10] [2016] AATA 292 at [77].
The respondent contends that section 96 does not apply because the applicant was not in receipt of the DSP when he obtained the work in a laboratory in Dandenong. The respondent also contended that the applicant’s DSP was cancelled on the basis of his medical eligibility.
The respondent further contends that the reasoning in Trenter can be distinguished because the applicant in this matter was not in paid work of more than 15 hours per week when his DSP was cancelled. It contends that section 96 does not apply to those whose DSP was cancelled and they then subsequently undertake paid work of no more than 30 hours per week. The Tribunal agrees that Trenter can be distinguished. It can be distinguished on its facts because the applicant in that case was working more than 15 hours per week prior to the cancellation of his DSP, unlike the applicant in this matter.
In construing a section such as section 96 it is important to look at the actual language used. The fulcrum of section 96(1)(a) is that the person is receiving the DSP at the time that the person obtains paid work. Unlike Trenter, who was in paid work at the time that his DSP was cancelled, that is not the case with the applicant in this matter. He obtained work subsequent to the cancellation, which was on the basis of his medical eligibility. The Tribunal agrees with the respondent’s submission that section 96(1) and 96(2) do not apply because when the applicant obtained paid work of at least 15 hours per week but less than 30 hours per week, he was not in receipt of the DSP which is a prerequisite or trigger to the application of the section.
This is not a case where the applicant has continued to meet the requirements for a DSP and increased his hours of work above 15. Section 96 does not apply to an applicant whose DSP is cancelled and who subsequently secures paid work of no more than 30 hours per week.
It should also be noted that the Job Capacity Assessment Report, dated 7 September 2018, referred to earlier, recorded that the applicant had a capacity to work from 15 to 22 hours per week in a light, appropriate and more sedentary role with reduced time constraints.[11]. The Tribunal considers that there is no reason not to accept the recommendations contained in that report. It is also consistent with the fact that the applicant, on his own admission, is working three 7 hour shifts per week.
[11] See PT20 Job Capacity Assessment report dated 7 September 2018
Therefore, the Tribunal concludes, that the applicant had a capacity to work 15 hours or more per week within two years of the cancellation date. He therefore did not have a continuing inability to work as required by section 94(1)(c) of the Act.
DECISION
Accordingly, the Tribunal affirms the reviewable decision.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.....[sgd].............................................
Associate
Dated: 13 May 2022

Dates of hearing:

24 March 2022

Advocate for the Applicant:

Solicitor for the Applicant:

Advocate for the Respondent:

T Noonan

Victoria Legal Aid

C Farrell

Solicitor for the Respondent: Sparke Helmore

[2022] AATA 1154

13 May 2022

Key Legal Topics

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Administrative Law

Statutory Interpretation

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Statutory Construction

Appeal