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

[2019] AATA 1336

Voller and Secretary, Department of Social Services (Social services second review) [2019] AATA 1336 (19 June 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6057

Re:Terence Voller

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:19 June 2019

Place:Sydney

The decision under review is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – myasthenia gravis – fibromyalgia – where impairments fully diagnosed, treated and stabilised – whether impairments are of 20 points or more under the Impairment Tables – where impairments not assessable as severe – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)

CASES

Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

19 June 2019

INTRODUCTION

1. The Applicant, Mr Terence Voller was born in the United Kingdom. He immigrated to Australia in 2012.

2. On 9 October 2017, Mr Voller lodged a claim for disability support pension (DSP).  In his application, Mr Voller wrote that he suffered from myasthenia gravis and fibromyalgia. Myasthenia gravis is a long-term neuromuscular disease which leads to skeletal muscle weakness, usually in the eyes, facial and swallowing muscles. Fibromyalgia is a group of conditions which causes generalised pain and muscle stiffness. The symptoms include tiredness and poor sleeping.

3. On 11 March 2018, the Department of Human Services, which is better known as Centrelink, refused his application holding that he did not meet the residence requirements.

   Mr Voller seeks reviews

4. Mr Voller sought review from an authorised review officer (ARO). On 24 August 2018, the ARO varied the original decision holding that Mr Voller’s impairments had a mild adverse functional impact on activities requiring physical exertion or stamina and assigned an impairment rating of 5 points under Table 1 of the Impairment Tables which are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). Table 1 of the Impairment Tables is titled “Functions Requiring Physical Exertion and Stamina”.

5. Mr Voller appealed to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT). On 11 October 2018, the AAT first review (AAT1) held that Mr Voller’s impairments had a moderate adverse functional impact on activities requiring physical exertion or stamina and assigned an impairment rating of 10 points under Table 1 of the Impairment Tables.

   Mr Voller obtains DSP

6. Mr Voller made a further application for DSP on 29 August 2018. Subsequently, Mr Voller was granted DSP from the date of this further application.

7. In other words, Mr Voller was subsequently granted DSP and the payments were backdated to 29 August 2018.

8. The Tribunal does not have before it any of the papers dealing with the subsequent application for DSP, its granting and its backdating.

9. Presumably, Mr Voller was granted DSP because it was concluded that his impairments had a severe adverse functional impact on activities requiring physical exertion or stamina and they were assigned an impairment rating of 20 points under Table 1 of the Impairment Tables.

   Mr Voller’s present appeal

10. Mr Voller has appealed to the General Division of the AAT which is known as an AAT second review (AAT2). Mr Voller asserts that the AAT1 was in error in not granting him DSP from the date of his first application on 9 October 2017.

11. Therefore, the issue before the Tribunal is whether Mr Voller should be awarded DSP from 9 October 2017 up to 29 August 2018. Put another way, should Mr Voller’s DSP be backdated to 9 October 2017?

    The relevant legislation

12. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

13. The criteria for DSP are set forth in section 94 of the SS Act. In Mr Voller’s circumstances subsection 94(1) relevantly provides:

    Qualification for disability support pension

    1A person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)one of the following applies:

    (i)     the person has a continuing inability to work;

    …

14. Put simply, I must be satisfied, first, that Mr Voller has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Third, I must be satisfied that Mr Voller has a continuing inability to work.

15. Finally, Mr Voller’s impairments must be sufficient to prevent him from doing any work independently of a program of support for 15 hours a week within the next two years.

    The 13 week qualifying period

16. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner; however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Voller’s eligibility for DSP in the 13 week period commencing on the day on which Mr Voller’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Voller qualified for DSP between 9 October 2017 and 8 January 2018.

17. The date of the AAT2 hearing was 11 June 2019 which is one year and five months after the end of the claim period.

18. In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    [33] The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

19. See also Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].

    THE HEARING

20. Mr Terence Voller attended the hearing via telephone and represented himself.

21. The Respondent was represented by counsel.

22. At the outset of the hearing, counsel for the Respondent informed the Tribunal that Mr Voller had been in receipt of DSP since 29 August 2018. This was the first occasion on which the Tribunal had been made aware that Mr Voller was receiving DSP.

23. Counsel for the Respondent made the following two concessions. First, that Mr Voller satisfied section 94(1)(a) of the SS Act because the Secretary accepted that he had the impairments of myasthenia gravis and fibromyalgia.

24. Second, that Mr Voller’s impairments were fully diagnosed, treated and stabilised during the claim period, and accordingly are assessable under Table 1 of the Impairment Tables pursuant to paragraph 94(1)(b) of the SS Act.

25. Having regard to the medical evidence before the Tribunal, I find that during the claim period, Mr Voller suffered from myasthenia gravis and fibromyalgia. I further find that during the claim period, these impairments had been fully diagnosed, treated and stabilised, and accordingly are assessable under Table 1 of the Impairment Tables pursuant to paragraph 94(1)(b) of the SS Act.

26. As Mr Voller has not undertaken a program of support, in order to qualify for DSP, I must be satisfied that during the claim period, his impairments had a severe adverse functional impact on activities requiring physical exertion or stamina. If so, they will be assigned an impairment rating of 20 points under Table 1 of the Impairment Tables.

    CONSIDERATION

27. This is an unusual matter because Mr Voller was awarded DSP from 29 August 2018 onwards. As I noted above, none of the papers concerning Mr Voller’s further application and subsequent granting of DSP are before the Tribunal. Accordingly, my decision in this matter does not in any way affect Mr Voller’s receipt of DSP from 29 August 2018 onwards.

28. The sole issue which I have to decide as I stand in the shoes of the Secretary is whether Mr Voller qualified for DSP during the claim period, that is from 9 October 2017 to 8 January 2018. Given the Secretary’s concessions and my findings, the only question for the Tribunal is (given that Mr Voller has not participated in a program of support), whether Mr Voller’s impairments of myasthenia gravis and fibromyalgia are assessable as severe under Table 1 of the Impairment Tables. In other words, are his impairments assessable at 20 points under Table 1 of the Impairment Tables?

    The evidence of Mr Voller

29. Mr Voller gave evidence by affirmation over the telephone.

30. In his evidence before the Tribunal, Mr Voller said that his impairments have not deteriorated since the claim period. In cross-examination, he was taken to a letter by Dr Maung dated 21 March 2018 which is after the end of the claim period. Omitting formal parts, the letter is as follows (unedited):

    Terence has requested a letter for disability support pension. I have been seeing Terrence in Young District Medical Centre and Young District Hospital since 2016 for various reasons.

    He was diagnosed with myasthenia gravis in UK but it has been stable. He has been seen by Dr Raymond White, Rheumatologist (Sydney) and Dr Neil Griffith, Neurologist (Liverpool) for his extreme tiredness.

    He was diagnosed fibromyalgia because of his fatigue, impaired memory and some gastro intestinal symptom. He has 2-3 attack I month. During the attack, he is bed bound and extremely fatigue with generalised pain.

    He was admitted to Liverpool Hospital on 15/02/2018 and the consultant agreed with diagnosis of Fibromyalgia.

    Currently fibromyalgia affects the following functions:

    Severe functional impact on Physical exertion due to Fatigue and and he is unable to walk shopping car park, or for daily activities

    Moderate functional impact on cognitive function affecting memory requiring constant reminder and supervision; misplacing thing or unable to remember regular task or instruction

    Moderate functional impact on producing voice due to laryngeal muscle weakness affecting his language and communication.

    Mild- Moderate Abdominal pain affecting his daily life and was admitted to hospital for abdominal pain and CT abdomen (17/10/17) shows swollen caecum.

    Because of above mentioned issues he has to abandon his lundary business and his wife need to looks after him especially durig the attack.

    Please find the supporting documents and investigations for your reference.

31. In response, Mr Voller said that Dr Maung was in error writing that he had given up his work in his wife’s laundry business.

32. I note two reports from Dr Gana, general practitioner, dated 29 August 2018 and 11 January 2019. In the 29 August 2018 report, Dr Gana stated that she had taken over care of Mr Voller from Dr Maung and was now Mr Voller’s general practitioner. The 29 August 2018 report is seven months after the end of the claim period, and the 11 January 2019 report is 12 months outside the claim period.  It may be that Mr Voller’s impairments have grown more debilitating after the end of the claim period.

33. I am not required to decide whether Mr Voller’s conditions deteriorated after the claim period.

34. Mr Voller maintained in his evidence that his impairments have not deteriorated, and he gave the following evidence on what he can and cannot do. 

35. In his evidence, Mr Voller said that he can walk for about 30 metres before he has to rest. He said that when walking he always uses a walking stick.

36. He said that he can drive a car, and usually his wife drives them to and from her dry-cleaning business which is seven minutes away by car. Mr Voller said that sometimes he drives the car, especially when he goes home in the middle of the day to rest.

37. Mr Voller said that he does clerical work at his wife’s business for an hour and a half in the morning and then he rests. He then often does clerical work for a further one and a half hours in the afternoon.

38. Mr Voller said that on several days each month he is not well enough to go to the dry-cleaning business to perform clerical work.

39. On occasions if he is tired, Mr Voller said that he will catch a taxi from his wife’s dry-cleaning business back to their home.

40. Mr Voller said that he goes with his wife to an IGA supermarket to do the shopping. He holds onto the trolley which keeps him stable. He said that they usually park in a disabled parking position which is close to the door of the IGA. If a disability parking spot is not available they can park close by, and his wife can also let him get out of the car at the door of the supermarket.

41. Mr Voller also said that his wife brings their laundry to her dry-cleaners for washing. However, Mr Voller added that he and his wife share the task of folding and putting away their washed clothes.

    The severe descriptors in Table 1

42. The descriptors for a severe rating of 20 points under Table 1 are as follows:

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

    1The 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.

    Findings

43. Having regard to Mr Voller’s evidence, I find that his impairments are not assessable as severe under Table 1 of the Impairment Tables.

44. First, under descriptor 1(a)(i), I must be satisfied that Mr Voller  is unable to walk around a shopping centre or supermarket without assistance.

45. From his evidence before me, Mr Voller can walk unaided around the IGA supermarket hanging onto the shopping trolley without assistance from another person.

46. I am not satisfied that Mr Voller is unable to walk around a supermarket without assistance.

47. Second, under descriptor 1(a)(ii), I must be satisfied that Mr Voller is unable to walk from the carpark into a shopping centre or supermarket without assistance.

48. From his evidence before the Tribunal, Mr Voller said that he does walk from a disability car parking spot to the IGA store and that the disability car parking spot is close to the door. Mr Voller also said that he can walk about 30 metres before he has to rest.

49. I am not satisfied that Mr Voller is unable to walk from the car park to the supermarket without assistance.

50. Third, under descriptor 1(a)(iii), I must be satisfied that Mr Voller is unable to  use public transport without assistance.

51. In his evidence, Mr Voller said that on occasions he uses ordinary taxies to go from the dry-cleaning business to his home.

52. I am not satisfied that Mr Voller is unable to use public transport without assistance.

53. Finally, under descriptor 1 (a)(iv), I must be satisfied that Mr Voller is unable to perform light day to day household activities (e.g. folding and putting away laundry or light gardening).

54. In his evidence before the Tribunal, Mr Voller said that his wife brings home their washed clothes from the dry-cleaning business. He said that he and his wife share the folding and putting away of their clothes.

55. I am not satisfied that Mr Voller is unable to perform light day to day household duties.

56. As Mr Voller does not fulfil descriptor 1(a) he cannot be assessed as severe under Table 1 of the Impairment Tables.

57. For completeness, I note that descriptors 1(a) and 1(b) are joined by the conjunction “and”. Thus to obtain a rating of severe, Mr Voller must fulfil the criteria set out in descriptors 1(a) and 1(b) of Table 1.

58. Under descriptor 1(b), I must be satisfied that Mr Voller 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 three hours.

59. In his evidence before the Tribunal, Mr Voller said that he usually performs clerical tasks at the dry-cleaning business for one and a half hours in the morning, and then after resting at home, he often does another one and a half hours of clerical work in the afternoon.

60. On his evidence before me, I am satisfied that Mr Voller 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 three hours.

61. However, as I have noted above, as he does not fulfil the criteria specified in descriptor 1(a) of Table 1 of the Impairment Tables, he cannot obtain a rating of severe, that is, of 20 points under the Table.

    DECISION

62. The decision under review is affirmed.

I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated: 19 June 2019

Date(s) of hearing:	11 June 2019
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services