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

[2020] AATA 2471

Wignall and Secretary, Department of Social Services (Social services second review) [2020] AATA 2471 (27 July 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5772

2020/0574

Re:Gregory Wignall

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date:27 July 2020

Place:Brisbane

The Reviewable Decisions are affirmed.

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

Member R Maguire

Catchwords

SOCIAL SECURITY – Disability Support Pension – Social Security Act 1991 (Cth) – Impairment Tables – Absence of corroborating evidence – decision affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security Administration Act 1999 (Cth)

Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011)

Cases

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Wignall and Secretary, Department of Social Services (Social services second review) [2019] AATA 1979

REASONS FOR DECISION

Member R Maguire

27 July 2020

INTRODUCTION

1. The Tribunal has before it two related applications for review, bearing Tribunal file numbers 2019/5772, and 2020/0574.

2. On Monday 10 May 2019, Gregory Wignall (‘the Applicant’) lodged a claim for Disability Support Pension (‘DSP’)[1] in respect of ‘multiple chemical sensitivity’ (‘MCS’) and ‘spinal injury’ (‘the Second claim’). The qualification period for this claim is 10 May 2019 – 9 August 2019.

   [1] Exhibit 1, T Documents, T26, pages 186-218, DSP Claim form.

3. The Applicant had previously made an unsuccessful bid for DSP in respect of the same conditions. This Division of the Tribunal had previously adversely decided a claim for DSP (the First claim) made by the Applicant in respect of an earlier claim lodged on 7 February 2018 (‘the First claim’) based on the same conditions. On 18 July 2019, Member Mitchell affirmed a decision of the Social Services and Child Support Division of the Tribunal (‘SSCSD’) to reject this earlier claim for DSP: Wignall and Secretary, Department of Social Services (Social services second review) [2019] AATA 1979.[2]

   [2] Exhibit 1, T Documents, T32 pages 239-256. Decision of the Administrative Appeals Tribunal 2018/7309.

4. In determining the outcome of the First claim, Member Mitchell made the following findings:

   (a)at paragraph [40], the MCS and spinal conditions were fully diagnosed, fully treated and fully stabilised ; and

   (b)at paragraph [47], no impairment ratings under Tables 1, 4, 13, or 15 could be assigned due to insufficient corroborating evidence.

5. On 19 June 2019, before the review of the First claim as decided, the Second claim was rejected by the Department[3] on the basis that the Applicant had not actively participated in a program of support.

   [3] Exhibit 1, T Documents, T28, page 221, Centrelink Notice: Rejection of DSP claim.

6. The Second claim decision was reviewed by an Authorised Review Officer (‘ARO’) who affirmed the decision to refuse the application for DSP on 8 July 2020.[4]

   [4] Exhibit 1, T Documents, T30, pages 224-239, Authorised Review Officer Decision and Notes.

7. The Applicant sought a first-tier review of that decision by the SSCSD, which affirmed the decision of the ARO, on 9 September 2019.[5] This decision was premised on the fact the Applicant had not provided any further evidence subsequent to Member Mitchell’s decision, and there was an absence of corroborating evidence, and the SSCSD was unable to assign an impairment rating in respect of the MCS or spinal conditions.

   [5] Exhibit 1, T Documents, T2, pages 9-12, Decision of the SSCSD (AAT1).

8. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal by way of an Application for Review received on 12 September 2019.[6]

   [6] Exhibit 1, T Documents, T1, pages 1 – 8, Application for Review.

9. On 23 August 2019, the Applicant lodged a further claim for Disability Support Pension (‘DSP’)[7] in respect of ‘multiple chemical sensitivity’ (MCS) and ‘spinal injury’ (‘the Third claim’). The qualification period for this claim is 23 August 2019 – 22 November 2019.

   [7] Exhibit 1, T Documents, T19, pages 169-198, DSP Claim form.

10. The Third claim was rejected on 19 June 2019,[8] on the basis that the Applicant did not have an impairment rating of 20 points or more.

    [8] Exhibit 1, T Documents, T21, page 221, Centrelink Notice: Rejection of DSP claim.

11. The Third claim decision was reviewed by an Authorised Review Officer (‘ARO’) who affirmed the decision to refuse the application for DSP on 22 November 2019.[9]

    [9] Exhibit 2, T Documents, T23, pages 224-226, Authorised Review Officer Decision and Notes.

12. The Applicant sought a first-tier review of that decision by the SSCSD which affirmed the decision of the ARO on 17 January 2020,[10] and did not accept that the Applicant’s MCS condition was fully diagnosed, treated and stabilised and the spinal condition was fully diagnosed but not fully treated and fully stabilised.

    [10] Exhibit 1, T Documents, T2, pages 4-10, Decision of the SSCSD (AAT1).

13. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal by way of an Application for Review received on 31 January 2020.[11]

    [11] Exhibit 1, T Documents, T1, pages 1 – 14, Application for Review.

14. The Review of the second and third claims were heard together on 7 July 2020.

15. At the hearing, the Applicant appeared by telephone, was self-represented, and gave evidence under affirmation.

16. The Applicant gave evidence to the Tribunal consistent with his earlier written submissions.

17. The Applicant said that he suffers nosebleeds when he goes to shops, and the Covid 19 cleaning measures are aggravating his condition, exacerbating it greatly, and that avoiding chemicals is the only way to alleviate any of his symptoms. He has lost a low income health card, and has had to sell assets to try to keep going. Four doctors have refused to see him because they have been warned off by Centrelink.

18. The Applicant was cross examined by Mr Kyranis. He told Mr Kyranis that he started with his current GP,  Dr McFall about two years ago, and that his GP will not have any dealings with the Tribunal or Centrelink without a court order as he has been ‘scared off’ by them. He does not see Dr Brown anymore as he is a substantial distance away, some 1800 km.

19. Under cross examination, the Applicant said that he saw another doctor, who said he did not want to see him anymore, in about 2016. He also said that the MCS affects him more than the spinal condition. He can’t go to public buildings without getting an extreme reaction and cannot function in a work environment.

20. The Applicant said that his incontinence causes him to suffer minor leakage from the bowel every day, requiring him to go to the toilet 6-8 times every day.

21. When questioned regarding blackouts from MCS, the Applicant said that he still suffers in extreme cases, but now knows what causes them and it is not a great issue. He said that throat swelling causing choking is, however, a great issue, and takes him hours to get over. He avoids scenarios which cause blackouts and has not had one for four or five years.

22. The Applicant said that he still has a driver’s licence, and has never been hospitalised from a blackout. They only last a short period of time until he gets fresh air. He recalled an episode from 20 years ago when he passed out in a Bible study meeting. He also recalled a further episode from 30 years ago. He said there has only been four or five blackout episodes in 34 years, and they only occur in extreme circumstances. He stated the he has to drive using reverse cycle air-conditioning to exclude external fumes.

23. In closing submissions, Mr Kyranis confirmed that in respect of both claims, the Respondent accepted that the MCS condition was fully diagnosed, treated, and stabilised during the qualification periods, and that Tables 13 and 15 were the relevant Tables.  It was submitted that there was very limited medical evidence referable to the qualification periods and how it influenced his continence condition, or his blackouts and that both Tables required corroboration beyond mere self reporting, and points could not be assigned under either Table.

24. The Respondent also accepted that the Applicant’s Spinal condition was fully diagnosed, treated and stabilised for the relevant qualification periods, and the appropriate Table for assessment of impairments is Table 4. The Respondent further noted that medical reports on the point were made some six and a half years before the claims were lodged, and in essence were aged, and that zero points should be allocated for the applicable impairment rating under Table 4, owing to lack of any satisfactory contemporaneous corroboration.

25. The Applicant stated his intention to make claims every three months until he turns 67. He has at least two further claims in the system and ‘there might be more’ and he intends to continue to lodge further claims every three months until he turns 67.

26. The Applicant agreed with an observation by the Tribunal that there has not been any development in the evidence since this Tribunal’s decision in respect of the First claim.

27. The Tribunal notes that the evidence before the Tribunal at the time of the First claim was closely examined by Member Mitchell, and found wanting for lack of corroboration. The Tribunal also notes that Member Mitchell’s decision was not the subject of any appeal.

    THE LAW

28. The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (‘the Act’), the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘the Determination’).[12]

    [12] Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (“the Determination”).

29. The Administration Act requires that in order to receive DSP payments, an Applicant must be qualified for DSP either on the date of application, or become so qualified at some stage within the period of 13 weeks following,[13] (‘the qualifying period’).

    [13] Clause 4 of Schedule 2 of the Administration Act, discussed by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, and cases cited therein.

30. Section 94 of the Act prescribes the criteria that must be met during the qualifying period in order to receive payment of DSP. For present purposes, the relevant part of this section is:

    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 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;…

31. The Impairment Tables referred to in section 94 of the Act are set out in the Determination made under section 26 of the Act, and which came into force on 1 January 2012.

32. The Determination defines ‘impairment’ thus:

    impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.[14]

    [14] Section 3 of the Determination.

33. Section 5(2) of the Determination provides:

    (2)       The Tables:

    (a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

    (b)are function based rather than diagnosis based; and

    (c)describe functional activities, abilities, symptoms and limitations; and

    (d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

34. 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.[15]

    [15] Section 6(1) of the Determination.

35. The Impairment Tables 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.[16]

    [16] Section 6(2) of the Determination.

36. An impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent,[17] and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than two years.[18]

    [17] Section 6(3)(a) of the Determination.

    [18] Section 6(3)(b) of the Determination.

37. Section 8 of the Determination is headed ‘Information that must not be taken into account in applying the Tables.’ Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[19] Moreover, unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[20]

    [19] Section 8(1) of the Determination.

    [20] Section 8(2) of the Determination.

38. The determination provides that a condition is regarded as permanent, if it has been fully diagnosed by an appropriately qualified medical practitioner; and has been fully treated; and the condition has been fully stabilised; and the condition is more likely than not in light of available evidence to persist for more than two years.[21]

    [21] Section 6(4) of the Determination.

39. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next two years.[22]

    [22] Section 6 (5) of the Determination.

40. A condition is considered to be fully stabilised if either: [23]

    (a)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.

    [23] Section 6 (6) of the Determination.

41. Reasonable treatment is treatment that is: available at a location reasonably accessible to the person; is at reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[24]

    [24] Section 6(7) of the Determination.

42. The Determination sets out that, in selecting the applicable Table,[25] it is necessary to:

    (a)identify the loss of function; then

    (b)refer to the table related to the function affected; then

    (c)identify the correct impairment rating.

    [25] Section 10 of the Determination.

43. In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one table is used to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[26]

    [26] Sub-sections (3) and (4) of section 10 the Determination.

44. Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[27]

    [27] Sub-sections (5) and (6) of section 10 the Determination.

45. An impairment rating can only be assigned in accordance with the rating points in each impairment table; cannot be assigned between consecutive impairment ratings; and if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned as the higher rating must not be assigned unless all of the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each table.[28]

    [28] Section 11 of the Determination.

46. In order to have a continuing inability to work, which is required to satisfy section 94 (1)(c) of the Act, a person must meet the criteria of section 94 (2), which requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support; and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity during the next 2 years or 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.

47. A person’s impairment is considered to be a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single impairment table.[29]

    [29] Section 94(3B) of the Act.

48. The Administration Act sets out that qualification for DSP, and stipulates that assessment of the relevant impairment ratings is to be determined at the date of claim, or where a person is not qualified on that date, but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[30]

    CONSIDERATION

    [30] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.

    Applicant of Impairment Tables

49. In regard to both the Second and Third claims, the Respondent accepts that the Applicant’s MCS and spinal conditions were fully diagnosed, treated and stabilised during the qualification period and that paragraph 94 (1)(a) of the Act was satisfied during the qualification periods.[31]

    [31] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at page 6, paragraph 4.18-4.19; at page 9, paragraph 4.33. Exhibit 4, Secretary’s Statement of Issues Facts and Contentions at page 6, paragraph 4.18-4.19; at page 9, paragraph 4.33.

    Multiple Chemical Sensitivity Condition

50. The Respondent contends[32] that the appropriate Impairment Tables to consider the Applicant’s MCS condition are:

    (a)Table 13 – Continence Function; and

    (b)Table 15 – Functions of Consciousness.

    [32] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at page 6, paragraph 4.20. Exhibit 4, Secretary’s Statement of Issues Facts and Contentions at page 6, paragraph 4.20.

51. The Respondent further contends that, consistent with the decision of Member Mitchell in respect of the First claim, that no impairment rating can be assigned for the MCS condition under Tables 13[33], 15[34], and 1[35] as there is insufficient corroborating evidence.

    [33] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at page 6, paragraph 4.21; pages 7-8 paragraphs 4.22-4.26; Exhibit 4, Secretary’s Statement of Issues Facts and Contentions at page 7, paragraph 4.21; pages 7-8 paragraphs 4.22-4.26;

    [34] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at pages 8-9, paragraphs 4.27-4.30. Exhibit 4, Secretary’s Statement of Issues Facts and Contentions at pages 8-9, paragraphs 4.27-4.30.

    [35] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at page 9, paragraph 4.31. Exhibit 4, Secretary’s Statement of Issues Facts and Contentions at page 9, paragraph 4.31.

    Spinal Condition

1. The Respondent  also  accepts  that the Applicant’s  spinal condition  was fully diagnosed, treated and stabilised during the qualification periods[36], and contends that the appropriate Impairment Table to consider the Applicant’s spinal condition is Table 4 – Spinal function.  the Respondent contends that there is insufficient corroborating evidence to support an evaluation under this Table.[37]

   [36] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at page 9, paragraph 4.33. Exhibit 4, Secretary’s Statement of Issues Facts and Contentions at page 9, paragraph 4.33.

   [37] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at pages 9-10, paragraphs 4.35-4.37. Exhibit 4, Secretary’s Statement of Issues Facts and Contentions at pages 9-10, paragraphs 4.35-4.37.

2. The Respondent further contends that there is insufficient corroborating evidence of the functional impact of the Applicant’s conditions to rate any of the Applicant’s impairments under the Impairment Tables, and that the Applicant did not satisfy paragraph 94(1)(b) of the Act during the qualification periods.[38]

   [38] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at page 10, paragraphs 4.36-4.38. Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at page 10, paragraphs 4.36-4.39.

3. As noted above, at the hearing, the Applicant agreed with an observation by the Tribunal that there had been no development in the evidence since this Tribunal’s decision in respect of the First claim.

4. Towards the end of the hearing, the Tribunal was at pains to explain to the Applicant that the requirement for corroboration of evidence of impairment is a mandatory one, without which it will be very difficult for any Tribunal to find in his favour. The Applicant’s response was ‘if that’s the case we will just keep going on this circus until I am 67…’

5. The Tribunal then explained that should the Applicant continue to make claims in the absence of a development in evidence, such as a report prepared by the Jobs Capacity Assessor which provided objective evidence in favour of assigning ratings under the various Tables, it is quite likely that all of the claims he had lodged to date, and had foreshadowed lodging between the present and when he turns 67 are doomed to fail. The Tribunal informed the Applicant that it is important that he understands that it may be that at a future time, the Department decides to make an application under section 42B in respect of a future application by him, and were it to be granted, he might be precluded from bringing further applications to the Tribunal in the absence of further evidence such as the Tribunal had referred to. The Tribunal suggested to the Applicant that he take further legal advice in relation to the matter.

   DECISION

6. Having regard for the totality of the evidence, the Tribunal finds itself in concurrence with the submission by Mr Kyranis that there is insufficient corroborating evidence referable to the qualification periods so as to allow for the assignment of ratings under the various relevant Tables. The Tribunal therefore assigns 0 points in respect of each relevant Table.

7. It is therefore not necessary to consider section 94(1)(c)(i) of the Act.

8. Accordingly, the decisions under review are affirmed.

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

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

Associate

Dated: 27 July 2020

Date(s) of hearing:	7 July 2020
Date final submissions received:	23 March 2020
Applicant:	In person
Solicitors for the Respondent:	J Kyranis, Spark Helmore Lawyers