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

[2024] AATA 238

Wade and Secretary, Department of Social Services (Social services second review) [2024] AATA 238 (22 February 2024)

Division:GENERAL DIVISION

File Number:2023/5488          

Re:Mr Aaron Wade  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Tribunal:Senior Member B. Pola

Date:22 February 2024

Place:Brisbane

DECISION

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal affirms the decision of the Social Services and Child Support Division dated 12 July 2023.

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

Senior Member B. Pola

CATCHWORDS

SOCIAL SERVICES – Eligibility for Disability Support Pension – Appeal of decision of Social Services and Child Support Division – where purported impairments included chronic testicular pain and mental health conditions – where evidence indicates varying views as to source of pain – where mental health conditions not diagnosed by psychiatrist or clinical psychologist – conditions not fully diagnosed – section 94(1)(b) of Social Security Act 1991 (Cth) not satisfied - decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (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 Act 1991 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Senior Member B. Pola

22 February 2024

BACKGROUND

1. On 2 November 2022, the applicant, Mr Aaron Wade, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Services Australia (herein referred to as the “Agency”)[1].

   [1] Exhibit TR1, T20, page 110-139.

2. On 16 November 2022, the applicant was advised by the Agency that his claim for the DSP was rejected on the basis of insufficient evidence[2]. Following this the applicant submitted further medical evidence to the Agency for review in support of his claim[3].

   [2] Exhibit TR1, T33, page 436.

   [3] Exhibit TR1, T22, page 146; T24, page 327; and T27, page 335.

3. The decision to reject the applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by the Agency on 28 April 2023[4].

   [4] Exhibit TR1, T29, pages 343 to 347.  

4. The applicant applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’), to review the Agency’s decision to reject his claim for the DSP. On 12 July 2023, the SSCSD of the Tribunal affirmed the decision to reject the applicant’s claim for the DSP[5]. The Tribunal notes the scope of the SSCSD review was limited to assessing the applicant’s medical eligibility for the DSP.

   [5] Exhibit TR1, T2, pages 7 to 16.

5. The applicant applied to the General Division of the Tribunal for a second review of this decision on 10 August 2023[6].

   [6] Exhibit TR1, T1, pages 1 to 6.

   JURISDICTION

6. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed an earlier decision of the respondent to reject the applicant’s claim for the DSP.

7. The applicant’s claim of 2 November 2022 has been reviewed in accordance with section 135 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’) by an ARO, per their decision dated 28 April 2023. The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published its reasons on 12 July 2023.

8. In accordance with section 179(1) of the Administration Act, the Tribunal therefore has jurisdiction to review the applicant’s DSP claim of 2 November 2022.

   ISSUES

9. The issues before the Tribunal for consideration is whether the applicant was medically qualified to receive the DSP in relation to his claim lodged on 2 November 2022 and ending 13 weeks later, on 1 February 2023 (herein referred to as the ‘Qualification Period’)[7], that is:

   (a)Whether the applicant had impairments during the Qualification Period in accordance with section 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as the ‘Act’)?

   (b)Whether the applicant’s impairments attract 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 (Cth)[8] (herein referred to as the ‘Determination’) within the Qualification Period for the purpose of section 94(1)(b) of the Act? 

   (i)If so, did the applicant have a continuing inability to work as defined in section 94(2) of the Act, for the purpose of section 94(1)(c) of the Act?

   [7] The Qualification Period is discussed in later paragraphs of this decision.

   [8] The Tribunal notes a new Determination took effect from 1 April 2023, but for the purposes of the present

   RELEVANT LEGISLATIVE FRAMEWORK

10. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of section 94(1) of the Act:

    94 Qualification for disability support pension

    (1)A 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;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system

11. To be medically qualified for the DSP, a person must therefore have a physical, intellectual, or psychiatric impairment, that has a total rating of 20 points or more under one (or several) Impairment Tables, and a continuing inability to work which, in some circumstances, includes participation in a Program of Support (herein referred to as ‘POS’).

12. Section 26(1) of the Act provides that, “…the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

13. It is the Tribunal’s role to stand in the shoes of the original decision-maker[9] and determine whether the decision was the correct or preferable one based on the material before it[10].

    [9]  Faulkner and Comcare [2007] AATA 1541 at [27].

    [10] Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 (per

14. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

15. Section 6 of the Determination provides that, “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”[11]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[12].

    [11] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension)

    [12]  Ibid, section 6(2).

16. An Impairment Rating may only be assigned to an impairment if[13]:

    (a)the person’s condition causing the impairment is permanent; and

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

    [13]  Ibid, section 6(3).

17. Further, for a condition to be considered permanent pursuant section 6(3)(a) of the Determination, the condition must also[14]:

    (a)be fully diagnosed by an appropriately qualified medical practitioner; and

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years.

    [14]  Ibid, section 6(4).

18. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[15]:

    (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 two years.

    [15]  Ibid, section 6(5).

19. A condition is considered fully stabilised if[16]:

    (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 two 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 two 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.

    [16]  Ibid, section 6(6).

20. Reasonable treatment is a treatment that[17]:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional            capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    [17] Ibid, section 6(7).

21. Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Section 6(9) of the Determination sets out circumstances to be considered in relation to pain.

22. Sections 7 to 11 of the Determination provide guidance as to how the Impairment Tables should be used to assess information and evidence and how to assign Impairment Ratings.

23. In particular, section 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

24. Meanwhile section 11(1)(c) of the Determination provides that in assigning an Impairment Rating, “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”.

    Continuing inability to work

25. As previously detailed in earlier reasons of this decision, section 94(1)(c)(i) of the Act states that in order to qualify for the DSP, a person must have a, “continuing inability to work”. Section 94(2) of the Act stipulates that:

    (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.

26. A “severe impairment” is defined in section 94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

27. Section 94(3C) of the Act states that:

    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.

28. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as the ‘Participation Determination’) came into effect on   3 January 2015, and sets out the requirements for ‘active participation’ for those people required to demonstrate they have actively participated in a POS.

    QUALIFICATION PERIOD

29. Schedule 2, Part 2, section 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[18].

    [18] Social Security (Administration Act) 1999 (Cth), Schedule 2, Part 2, section 4(1)(d).

30. For the purposes of this decision, the day which the applicant’s claim for the DSP was lodged with Centrelink was 2 November 2022[19] and concluded 13 weeks after that day. The Tribunal finds the 13-week period ended on 1 February 2023.

    [19] Exhibit TR1, T20, page 110-139.

31. This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered if it is referable to the applicant’s condition during the Qualification Period[20].

    [20] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012]   

    CONSIDERATION

32. The application was heard in Brisbane on 31 January 2024 with all parties appearing by telephone as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant was self-represented, and the respondent was represented by Mr Chris West from Sparke Helmore. The Tribunal considered oral submissions made by the applicant and respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (marked as Annexure 1 at the end of these reasons).

    Section 94(1)(a) of the Act (physical, intellectual, or psychiatric impairment)

33. It is not in contention that the applicant suffers from a number of impairments relevant to this application with respect to his medical eligibility for the DSP[21]. The Tribunal finds the following impairments relevant to this application after review of the evidence:

    (i)Chronic testicular pain; and

    (ii)Mental Health conditions.

    Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

    [21] Exhibit R1, page 8, paragraph 42.

34. The Tribunal will now consider each impairment identified with respect to the application of section 94(1)(b) of the Act, and whether they meet the relevant provisions contained within the Determination.

    (i) Chronic testicular pain

35. Evidence before the Tribunal confirms the applicant has suffered from scrotal pain from as early as 2005. From this period the applicant has been treated by a number of physicians, with diagnoses varying from epididymal cysts in 2006[22], to a moderate varicocele including some small cysts in 2008[23]. There are various documented incidents of the applicant reporting pain to treating physicians from 2005 through to March 2022[24].

    [22] Exhibit TR1, T22, page 225.

    [23] Exhibit TR1, T22, page 172.

    [24] Exhibit TR1, T11, pages 61 to 65; T13, page 89; and T22, page 302.

36. On 2 March 2022 the applicant was assessed at Bundaberg Hospital by a surgeon who was of the opinion the applicant’s epididymal cysts were not the cause of his chronic pain, and that the applicant required an operation to repair a hernia[25]. On 29 June 2022 the applicant underwent surgery for treatment of his hernia[26].

    [25] Exhibit TR1, T22, pages 168 and 169.

    [26] Exhibit TR1, T22, page 299.

37. In submissions to the Tribunal the applicant stated that the hernia operation he underwent was not successful as the mesh used in the procedure did not hold well due to the length of the surgery. The Tribunal notes there is no corroborative medical evidence referable to the Qualification Period of this application to support the claims of the applicant. The applicant also told the Tribunal that he was taking pain medication to treat his symptoms.

38. A medical certificate from the applicant’s treating General Practitioner dated  10 January 2023, diagnosed the applicant with “... right groin & hip pain Difficulty controlling urine/faeces…”, with symptoms of pain and incontinence. Further, this certificate confirms the applicant underwent hernia repair, with the applicant due to undergo a further MRI. The treating GP stated that the applicant’s condition was temporary[27].

    [27] Exhibit TR1, T24, pages 327 and 328.

39. The Tribunal notes the submitted evidence of the applicant with respect to this condition, being a letter of 16 October 2023 from his treating General Practitioner for whom the applicant had been a patient since 28 July 2023.[28] The Tribunal notes that this letter postdates the Qualification Period for this application, therefore it is not able to be considered as part of this application.

    [28] Exhibit A1.

40. The Tribunal is of the view the applicant’s condition is not considered fully diagnosed in accordance with the Determination, in circumstances where there are differing diagnoses leading up to the Qualification Period for this application, and a lack of corroborative evidence which has determined the source of the applicant’s chronic pain. Further, with respect to the applicant’s claims regarding his chronic pain, in the evidence before the Tribunal there are conflicting opinions as to the applicant’s reported symptoms and the opinion of treating physicians as to what pain would be experienced given his condition[29].

    [29] Exhibit TR1, T22, page 189-192.

41. In addition to the above, the Tribunal is of the view there is a lack of corroborative evidence to suggest the applicant’s condition had been optimally treated, and in turn considered fully treated or fully stabilised. Therefore, the Tribunal was unable to assess the condition or assign an Impairment Rating as part of this application.

    (ii) Mental Health conditions

42. The applicant gave evidence to the Tribunal that he suffered a brain injury as a result of an assault he had suffered in 1994. The applicant submitted to the Tribunal that as a result of this he has suffered Post Traumatic Stress Disorder, and psychiatric issues. The applicant told the Tribunal that he is taking olanzapine to treat his mental health conditions, and that he is currently living in transit accommodation.

43. In evidence before the Tribunal, the applicant was admitted for assessment to Bundaberg Hospital for a mental state examination on 23 September 2022, conducted by a registered nurse, who documented the following assessment of the applicant[30]:

    “… Aaron presents with a mood that is reactive to his physical and social circumstances. He reported lots of frustration about his ongoing pain and homelessness which has resulted in poor sleep, low energy, low mood, and anhedonia on the background of his repaired hernia. These are his ongoing stressors and he is optimistic that his physical health would be well managed and his homelessness will be resolved. No evidence of psychosis, no acute risks noted and has full capacity to make decisions. However, further deterioration of physical issues and financial constraints may put at imminent risk of self-harming/suicide..”

    [sic]

    [30] Exhibit TR1, T22, page 265 to 266.

1. A medical certificate from the applicant’s treating General Practitioner on 14 September 2022 diagnosed the applicant with psychosis, symptoms of which included, “… Depression symptoms, AH and delusions- Feels unsafe as Aliens…”[31]. [sic]

   [31] Exhibit TR1, T18, page 103.

2. The introduction to Table 5 – Mental Health Function within the Determination stipulates:

   “… The diagnosis of the 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)…”  

3. The Tribunal observes the applicant does not have a diagnosis from a psychiatrist or clinical psychologist referable to the Qualification Period for this application. In the absence of a diagnosis from a psychiatrist or clinical psychologist referable to the Qualification Period, any mental health condition of the applicant cannot be considered diagnosed. Therefore, the Tribunal was unable to assess the condition or assign an Impairment Rating as part of this application.

   Summary

4. The Tribunal has found that none of the applicant’s conditions were able to be assigned Impairment Ratings under section 94(1)(b) of the Act.

5. As the Tribunal has found that the applicant does not satisfy section 94(1)(b) of the Act, there is no need to consider the remaining relevant provisions.

6. Although the Tribunal has found the applicant was not successful in his application for the DSP on this occasion, the Tribunal notes that this decision does not prevent the applicant from making a new claim for the DSP.

   DECISION

7. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division dated 12 July 2023, to decline the applicant’s claim for the Disability Support Pension.

   I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

   ……………[SGD]….……………

   Associate

   Dated: 22 February 2024

   Date of hearing:  31 January 2024

   Applicant:  Mr Aaron Wade (self-represented)

   Solicitor for Respondent:                  Mr Chris West (Sparke Helmore)

   Annexure 1 – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
R1.	Respondent Statement of Facts, Issues and Contentions (18 pages)	R	21.11.2023	20.11.2023
R2.	Program of Support Calculator document (1 page)	R	-	20.11.2023
A1.	Medical Letter (1 page)	A	16.10.2023
Tr1.	Section 37 T-Documents (T1-T33; pp 1-453)	-	-	18.09.2023

   application, the earlier Determination was in force during the Qualification Period for this application.

   Bowen CJ and Deane J).

    Determination 2011 (Cth), section 6(1).

   AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA  
   404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at
[31].