Whillier and Secretary, Department of Social Services (Social services second review)
[2016] AATA 769
•30 September 2016
Whillier and Secretary, Department of Social Services (Social services second review) [2016] AATA 769 (30 September 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5205
Re
Sarah Whillier
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Date 30 September 2016 Place Sydney The decision under review is affirmed.
.................................[sgd].......................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – application rejected by Centrelink – whether impairments permanent – whether impairments fully diagnosed, treated and stabilised – impairment tables – applicant suffers from chronic fatigue syndrome – applicant awarded 10 points under Table 1 – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) sub 94(1)(b)
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr L Bygrave, Member
30 September 2016
On 4 December 2014, Ms Sarah Whillier lodged a claim for the disability support pension.
The claim was rejected by Centrelink, both initially and on review, on the basis that Ms Whillier did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).
In a decision dated 1 September 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Ms Whillier did not satisfy sub 94(1)(b) of the Act and so she did not qualify for the disability support pension.
On 7 October 2015, Ms Whillier applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.
The matter was heard in Sydney on 2 September 2016. Ms Whillier attended the hearing in person. She had legal representation and was assisted by her mother, Ms Jennifer Rebecca Walls.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.
In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth) (Administration Act), to qualify for the disability support pension, Ms Whillier must satisfy the requirements of s 94 of the Act as at the date of her claim or within 13 weeks of lodging the claim, that is between 4 December 2014 and 5 March 2015 (the claim period).
The Respondent concedes and the Tribunal agrees that Ms Whillier suffers medical conditions that cause impairment and therefore, she satisfies sub 94(1)(a) of the Act at the time of her claim for disability support pension.
It follows that the determinative issues in this matter are whether, during the claim period, Ms Whillier had:
(a)an impairment rating of 20 points or more under the Impairment Tables; and
(b)a continuing inability to work as defined in s 94(2) of the Act.
Does Ms Whillier have medical conditions that can be rated at 20 points or more under the Impairment Tables?
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:
·has been fully diagnosed by an appropriately qualified medical practitioner; and
·has been fully treated; and
·has been fully stabilised; and
·is more likely than not to persist for more than two years.
The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.
The Introduction to each relevant Table requires that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’.
The medical report for disability support pension completed by Dr Christopher Cooper (General Practitioner) on 1 December 2014 listed Ms Whillier’s medical conditions as:
·chronic fatigue syndrome (CFS); and
·bipolar II disorder.
At the Tribunal hearing, Ms Whillier’s legal representative stated that she no longer wanted her bipolar II disorder to be considered for the purpose of this review.
Relying on the medical evidence before me, I now consider Ms Whillier’s CFS condition and the relevant rating under the Impairment Tables Determination.
Chronic fatigue syndrome (CFS)
Dr Cooper, in a medical report for disability support pension dated 1 December 2014, stated that Ms Whillier had CFS. The date of onset was noted as 1998 and the diagnosis was confirmed by Dr Roger Garcia (Clinical Immunologist) on 23 July 2013. Dr Cooper outlined that Ms Whillier experienced symptoms of fatigue, myalgia (muscle pain), arthralgia (joint pain) and headaches. Dr Cooper has been Ms Whillier’s treating General Practitioner since 2011.
In a report on 29 August 2013, Dr Joanna Guirguis (Consultant Psychiatrist) noted that Ms Whillier was diagnosed with CFS at the age of 11 years following:
… a period of intermittent hospitalisations at age 10, for symptoms including fevers, headaches, swollen glands, sore throat, nystagmus, vertigo, gait problems and hallucinations. A previous infection with EBV was later confirmed… She remained unwell throughout her childhood, resulting in missing large amounts of school from Year 5…
Ms Whillier provided a statement dated 26 November 2015 to the Tribunal, in which she described experiencing the following symptoms due to CFS:
Fatigue (going out one day, being worn out the next or next few days) and unrefreshing sleep
Exhaustion (from everyday activities like preparing a meal, showering, standing or sitting too long, etc.)
Daily headaches and migraines
Muscle pain/Myalgia (esp. legs, neck, shoulders, arms)
Joint pain/Arthralgia (esp. neck, upper and lower spine, pelvis, knees)
Sleep disturbances (broken sleep, insomnia, hypersomnia)
Swollen, sore eyes, esp. on waking
Swollen lymph nodes
Abdominal pain
Sensory sensitivity (photosensitivity, audio sensitivity, smells, movement, temperature), and on bad days sensory overload
Concentration and cognitive impairments (‘brain fog’, inability to understand simple instructions, verbal and syntactical problems for both speech and writing, etc.)
Dizziness/vertigo (unsteadiness esp. on waking or from fatigue, dizziness, blacking out)
Poor circulation (cold hands and feet, tingly nerves esp. when tired.)
Low blood pressure
Erratic appetite
Difficulty coping with temperature extremes
Ms Whillier noted that this list is ‘highly changeable’ and she tries ‘to manage as much as possible, within balance’.
In her statement of 26 November 2015, Ms Whillier also diarised the effect of CFS on her functionality during the claim period from December 2014 to March 2015. Relevantly, she observed that in December 2014 she was ‘low in energy, with approx. a 1:3 ratio of activity days: rest days’. On 1 January 2015, she ‘experienced a switch from low to high mood, and the energy that often comes with that’, with a reference to her bipolar II disorder. Ms Whillier further stated that in January 2015, she applied for many jobs, ‘spent some time catching up with friends’ and ‘arranged a community theatre project’. She also ‘started working on her fitness’, ‘practised [her] aerial climbing skills’ and ‘got some friends to teach … [her] the basics of basketball’. Ms Whillier recorded that from February to May 2015, she ‘applied for many jobs’, ‘worked (unpaid, voluntary) on the theatre project’ where she was ‘in control of scheduling and could do much of the work from home and at odd hours … [totalling] perhaps up to 15 hours a week some weeks, less on others’.
At the Tribunal hearing, Ms Whillier explained that she returned to Australia in November 2014 after a period of 15 months studying and travelling overseas. She was exhausted in December 2014 and was experiencing pain, headaches and low energy. While she attended a couple of social events for short periods, Ms Whillier said she mostly spent time resting and sleeping in her room.
Ms Whillier told the Tribunal that her CFS ‘waxes and wanes’ and in January 2015, her symptoms improved. She said she wrote and was the director for a theatre production in January to May 2015. The amount of time she spent on this activity – approximately five hours writing and 15 hours auditioning people for roles – differed to her written statement dated 26 November 2015. Ms Whillier acknowledged that she advertised her availability to house-sit on ‘Trusted Housesitters’ webpage in January-February 2015, and attained her driver’s licence on 29 January 2015.
Ms Walls, who is Ms Whillier’s mother, also gave evidence at the Tribunal hearing. Ms Walls reiterated that Ms Whillier experiences fluctuating symptoms associated with CFS. Ms Walls said that she tends to do most or all of the household chores as these tend to exhaust her daughter and she prefers that her daughter uses her energy to participate in social activities.
A report by Dr Cooper dated 15 January 2016 ‘written at the request of Ms Whillier in her application for Disability Support Pension’ described the following functional impacts of her CFS during the claim period:
1.unable to walk short distances … unassisted due to myalgia, arthralgia, dizziness and fatigue;
2.unable to perform light household duties … due to debilitating fatigue;
3.unable to undertake light work [for] more than 2 hours ...
Dr Sandra Armstrong (Medical Adviser/General Practitioner) reviewed Ms Whillier’s medical evidence and provided a report dated 9 February 2016. Dr Armstrong also spoke with Dr Cooper by telephone on 2 February 2016. She summarised the telephone discussion in her report as follows:
He [Dr Cooper] told me that Ms Whillier’s functional capacity varies significantly. She was quite disabled during December 2014- looked extremely fatigued & was only out of bed 1 hour daily. The immunologist had advised her against going overseas, so she did surprisingly well to manage her overseas study. However Dr Cooper said that of course he could not say whether she was well or not during this time. It could be difficult to say whether her lethargy is due to depression, BPAD or CFS, but Dr Cooper said in his opinion most of her disability is due to CFS. Dr Cooper said it was also very difficult to state what her ‘average condition’ would be [as is typical, she only comes to appointments when she is unwell], but he thought she had severe episodes about 1/3 – 1/2 time, where she would be unable to walk around a shopping centre & perform light ADLs [activities daily living]. Other times she is not too bad and at times even a bit elevated. She has talked of working for 2 hours and then having to be in bed for 2 days. Ms Whillier usually comes to appointments with her mother, occasionally travels by bus. Dr Cooper did believe that she would not improve enough to be able to work at least 15 hours/week within 2 years.
Dr Armstrong reported on 9 February 2016 the following conclusion about the functional impact of Ms Whillier’s CFS:
I consider that after taking into account the evidence of the variations in the severity of the functional severity from Ms Whillier’s self-reports, the medical evidence, my phone conversations with her treating doctors, the evidence found on the internet, and thereby assessing an overall functional impact, that the appropriate rating on table 1 during the relevant period, was 10 points on table 1 [functions requiring physical exertion and stamina] for a moderate impairment, as in the AAT1 decision. Ms Whillier may have been severely impaired during December 2014 [and perhaps this could be expected after a return from prolonged overseas travel, in someone who has CFS], but this does not seem to be a reflection of her overall functional impairment. She would meet descriptors a(ii) [frequent symptoms with difficulty performing day to day household activities] at the 10 point level, and she is able to use public transport, and walk around a shopping centre and perform work-related tasks of a sedentary nature. The descriptors at the severe impairment level would not be met, as she does not usually experience symptoms when performing light physical activities, etc. [emphasis in original]
The medical evidence of Dr Cooper and Dr Armstrong, corroborated by the evidence of Ms Whillier and Ms Walls, observes the fluctuating condition of Ms Whillier’s CFS symptoms. The Impairment Tables Determination at paragraph 11(4) states in relation to episodic and fluctuating conditions:
When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The evidence in Ms Whillier’s statement dated 26 November 2015 also highlights the difficulty in assessing her CFS during the claim period due to the interaction between her CFS and bipolar II condition, which she said can make both conditions ‘somewhat less typical’. Ms Whillier indicated in her statement and at the Tribunal hearing that she experienced a period in January and February 2015 where her CFS and bipolar II disorder intersected, which alleviated some of her CFS symptoms.
On the basis of the evidence before me, I am satisfied that Ms Whillier’s CFS was fully diagnosed, fully treated and fully stabilised during the claim period. The relevant Impairment Table to assess Ms Whillier’s condition is Table 1 – Functions requiring Physical Exertion and Stamina. In accordance with the information in Table 1 – Functions requiring Physical Exertion and Stamina and considering the ‘overall functional impact of those impairments’ during the claim period, I find that Ms Whillier’s CFS condition had a moderate functional impact on activities requiring physical exertion or stamina and assign an impairment rating of ten points.
CONCLUSION
For the reasons set out above, I am satisfied that Ms Whillier did not meet the requirements of sub 94(1)(b) of the Act during the claim period as her impairments were not 20 points or more under the Impairment Tables.
As I find that Ms Whillier did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether she had a continuing inability to work.
If Ms Whillier’s circumstances change, she is entitled to submit a new application for disability support pension at any time.
DECISION
32. The decision under review is affirmed.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member .................................[sgd].......................................
Associate
Dated 30 September 2016
Date(s) of hearing 2 September 2016 Solicitors for the Applicant Gown and Gavel Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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