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

[2020] AATA 4954

Vasiliadis and Secretary, Department of Social Services (Social services second review) [2020] AATA 4954 (4 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/0368

Re:Georgina Vasiliadis

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member West

Date:4 December 2020          

Place:Melbourne

The Tribunal affirms the decision under review.

..............[sgd]....................................
Member R West

Catchwords

SOCIAL SECURITY – disability support pension – osteoarthritis of bilateral knees and feet –posterior vitreous detachment – GORD - left frozen shoulder -  haemorrhoidectomy - anxiety osteoarthritis of the hips – whether conditions fully diagnosed, treated and stabilised in the qualification period –  whether impairments attract rating of 20 points or more under Impairment Tables – decision affirmed.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447

Secondary Materials

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 (Cth)

REASONS FOR DECISION

Member West

4 December 2020

BACKGROUND

1. This matter concerns the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 10 December 2019 affirming the decision of Centrelink to refuse the Applicant’s claim for the Disability Support Pension (DSP).

2. The relevant history of the matter is as follows:

   ·The Applicant made his original application for DSP on 17 July 2018.

   ·The application was assessed and refused on 21 September 2018 (the Initial Decision).

   ·An authorised review officer (ARO) affirmed this decision on 6 November 2019 (the ARO Decision).

   ·A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (the First Tier Review) and a decision affirming the ARO Decision was handed down on 10 December 2019.

   ·The Applicant applied for a Second Tier Review by the General Division of the Administrative Appeals Tribunal on 18 January 2020.

3. A hearing in relation to the Second Tier Review was held by telephone on 26 November 2020.  The Applicant was self-represented.  The Respondent was represented by Mr Samuel Harvey of Services Australia.

4. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The Applicant and the Respondent each consented to the hearing proceeding on 26 November 2020 on the basis that it was conducted by telephone. The Tribunal determined pursuant to s.33A of the Administrative Appeals Tribunal Act 1975 (AAT Act) to conduct the hearing by telephone.

   LEGISLATION

5. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (the Rules): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;

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

   ·Administrative Appeals Tribunal Act 1975.

   QUALIFICATION PERIOD

6. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Administration Act.

7. In this case, the qualification period commenced on 17 July 2018 and ended on
   16 October 2018.

8. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

9. To qualify for a DSP, an applicant must satisfy the requirements set out in s 94(1) of the Act, as assessed during the qualification period.

10. In essence, s 94(1) of the Act requires that:

    ·the Applicant have a physical, intellectual or psychiatric impairment; and

    ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

    ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

    ·the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

11. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support; and the impairment is of itself sufficient to prevent the person from doing any work, or undertaking a training activity independently of the program of support within the next two years.

12. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    THE EVIDENCE AND SUBMISSIONS

13. In conducting the Second Tier Review, the Tribunal has had regard to the documents produced by the Respondent pursuant to s 37 and s.38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents and Supplementary T Documents), the oral evidence of the Applicant and the following documents  lodged by the Applicant:

    a. medical report of Dr Mark Ellis dated 29 July 2020 (Exhibit A1)

    b. radiological report of Dr Timothy Hooper dated 17 August 2020 (Exhibit A2)

    CONSIDERATION OF ISSUES

14. The Applicant’s claim on review relates to the following conditions:

    a.Osteoarthritis of bilateral knees and feet;

    b.Posterior vitreous detachment;

    c.GORD;

    d.Anxiety;

    e.Left frozen shoulder;

    f.Haemorrhoidectomy; and

    g.Osteoarthritis of the hips.

15. The first issue for determination for each condition is to assign a rating under the appropriate Impairment Tables for the Applicant’s claimed impairment.  An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period, the Applicant’s condition causing the impairment was permanent, that is, fully diagnosed, fully treated and fully stabilised, and likely to persist for more than two years.[3]

    [3] s 94(1) of the Act.

    Osteoarthritis of bilateral knees and feet

16. The Respondent accepts that the Applicant’s osteoarthritis of bilateral knees and feet was fully diagnosed, treated and stabilised during the qualification period and asserts that the condition can be assigned an impairment rating of 5 points under Table 3 of the Impairment Tables.

17. The Applicant was diagnosed with osteoarthritis of bilateral knees and feet by Dr Anna Manolopoulos, orthopaedic surgeon, in her report dated 11 May 2018.[4] Dr Manolopoulos reported that the Applicant had received steroid injections to her knee but they did not help much with the pain.  The Applicant’s treating doctor reported on 7 March 2018 that the Applicant had received treatment for the condition including analgesia, physiotherapy and hydrotherapy.[5]

    [4] T21 of the T Documents,  page 87.

    [5] T18 of the T Documents, page 79. 9

18. On the basis of this evidence, the Tribunal is satisfied that the Applicant’s osteoarthritis of bilateral knees and feet was fully diagnosed, treated and stabilised during the qualification period and can be assigned an impairment rating under Table 3 of the Impairment Tables.

19. The Applicant gave evidence to the Tribunal in response to specific questions regarding the criteria set out in Table 3– Lower Limb Function.

20. The Applicant stated that she walks for 20 to 30 minutes twice per week, using her walking stick which she holds with her right hand.  She said she can walk around inside her house, although she experiences pain.  She said she is able to go shopping and can walk around with the aid of her walking stick or holding onto a trolley.  She further stated that she avoids going to the shops because she is nervous, and her husband and daughter usually go to the supermarket.  She said she can stand from a sitting position on a kitchen chair without assistance; and can stand for 10 minutes or so but with some pain.  She said she can climb stairs if she is very careful, but she does not like to do so because she has a fear of falling.  She said she can use public transport in the form of the train and tram but she is unable to get into  a bus.  She said she can drive her car and can get in and out of the car but does so slowly.  She said she is able to attend to her personal needs without assistance.

21. The Applicant’s evidence was broadly consistent with the information she reportedly gave to a job capacity assessor in September 2018[6] that:

    a.she was able to stand for up to 20 minutes;

    b.could walk up to 30 minutes at a slow pace;

    c.she had significant difficulty climbing stairs;

    d.she was able to stand from a sitting position without assistance; and

    e.she did not use a walking aid but at that stage was considering using a walking stick.

    [6] T25 of the T Documents,  page 129. 9

22. On the basis of this evidence, the Tribunal is satisfied that the appropriate rating for the Applicant’s condition under Table 3 is 5 points, that is a mild functional impact.  She satisfies the descriptors in (1)(c) and (2)(b).  The evidence does not establish that the Applicant meets any of the descriptors for 10 points in (1) or (2) or any of the descriptors for 20 points in (1)(a) or (2).

    Posterior Vitreous Detachment – Table 12 – Visual Function

23. The Respondent accepts the Applicant has a posterior vitreous detachment eye condition but asserts that the condition cannot be assessed under the Impairment Tables because the condition was not diagnosed until after the qualification period.

24. The evidence shows that the condition was first noted by the Applicant’s treating doctor,
    

    [7] T29 of the T Documents, page 138.

    [8]T30 of the T Documents, page 140.. 0

    Dr Harris, in his medical certificate of 20 November 2018.[7]  The condition was subsequently diagnosed by an ophthalmologist, Dr Mark Ellis, on 26 November 2018.[8]  These diagnoses were each made after the conclusion of the qualification period on 16 October 2018.  However, Dr Ellis noted that the Applicant’s symptoms were of long standing and the Tribunal accepts that his diagnosis related to the Applicant’s condition during the qualification period, albeit that it was not made until shortly afterwards.

25. The Applicant gave evidence that she experiences migraines resulting from stress or from reading and that she has floaters and spots in her vision which are frustrating and require her to be cautious to ensure she distinguishes between what she is seeing, the floaters and spots.  The Applicant did not raise any specific impairment other than feeling uncomfortable and her need to be careful.  Dr Ellis’s report of 26 November 2018 concludes with the statement that:

    I have reassured her that her eyes are fine and she should come back and see me in a couple of years.

26. On the basis of this evidence, the Tribunal is satisfied that a finding of more than a nil rating under Table 12 of the Impairment Tables is not substantiated.

    GORD – Digestive and Reproductive Function

27. The Respondent accepts that the Applicant has a reflux condition but contends that the condition was not fully treated and stabilised during the qualification period and is incapable of being assigned an impairment rating under the Impairment Tables.

28. The Applicant’s condition was noted by Dr Harris in a patient summary dated 25 July 2017,[9] but there is no further medical information on treatment or the prognosis of the Applicant’s condition. The Applicant confirmed in her evidence that she was awaiting the results of further tests and then a specialist review as noted in the AAT 1 decision.[10]

    [9] T17 of the T Documents, page 75.

    [10] T12 of the T Documents, page 10.  0

29. On the basis of this evidence, the Tribunal is not satisfied that the condition was fully treated or fully stabilised during the qualification period and it cannot be assessed under the Impairment Tables.

    Anxiety

30. The Applicant was diagnosed with a mental health condition by Dr Harris on 20 November 2018.[11]  He recommended that the Applicant be reviewed by a psychologist.[12]
    

    [11]T29 of the T Documents, page 138. 8

    [12] T32 of the T Documents, page 148. 8

    The Applicant confirmed in her evidence that her condition had not been assessed by a psychiatrist or a clinical psychologist.  She did state that she had seen a girl in Greensborough for some counselling in mid-2019 but she was not sure of the person’s qualifications.

31. The Introduction to Table 5 – Mental Health Function makes it clear that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner, being a psychiatrist or a clinical psychologist.  In the absence of such a diagnosis, the condition cannot be assessed under Table 5.

    Left frozen shoulder

32. The Respondent does not dispute that the Applicant has an upper limb condition. However, the Applicant confirmed in her evidence that her left frozen shoulder condition developed in the months before the AAT1 hearing in December 2019, and therefore significantly after the qualification period.  Accordingly, the condition i cannot be assessed under the Impairment Tables for the purpose of the Applicant’s current claim.

    Haemorrhoids

33. The Applicant confirmed in her evidence what she had previously told the Tribunal during the AAT 1 hearing,[13] that she had haemorrhoids which were surgically removed and, following a review by her surgeon, she was advised that she had fully recovered.  The Applicant stated in her evidence that she still experiences difficulties and still has issues but she did not give any specific evidence related to her haemorrhoid condition.  The Applicant did not provide any medical evidence of any ongoing functional impairment following surgery.

    [13] T2 of the T Documents, page 11.

34. On the basis of this evidence, the Tribunal is not satisfied that there is any functional impairment related to her condition which can be rated under the Impairment Tables.

    Osteoarthritis of the hips

35. The Applicant confirmed in her evidence to the Tribunal that, while she experienced  pain in her hips, she had not been diagnosed with an arthritic condition in relation to her hips, and there was no medical evidence to support this aspect of her claim.

    CONCLUSION

36. The total impairment rating for the Applicant’s conditions under the Impairment Tables is therefore 5 points.

37. For the reasons discussed, the Tribunal is satisfied that the Applicant has a physical, intellectual or psychiatric impairment as required by s 94(1)(a) of the Act, but she does not meet the qualification criterion for a DSP under s 94(1)(b) of the Act, namely that she have an impairment or impairments which rate 20 points or more under the Impairment Tables. Accordingly, the Applicant was not qualified for a DSP at the date of her claim or within the qualification period.

38. It is unnecessary for the Tribunal to consider the other matters raised in the Respondent’s submissions.

    DECISION

39. The Tribunal affirms the decision under review.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the written reasons for the decision of Member Richard West

..............[sgd]........................

Associate

Dated:  4 December 2020

Date of Hearing:	26 November 2020
Applicants:	Self Represented
Advocate for the Respondent	Samuel Harvey
Solicitors for the Respondent	Services Australia