Wilkie and Secretary, Department of Social Services (Social services second review)
[2016] AATA 529
•25 July 2016
Wilkie and Secretary, Department of Social Services (Social services second review) [2016] AATA 529 (25 July 2016)
Division
GENERAL DIVISION
File Number
2016/1231
Re
Miss Sharon WILKIE
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 25 July 2016 Place Melbourne The Tribunal affirms the reviewable decision.
........................................................................
Mr Conrad Ermert, Member
SOCIAL SERVICES - Disability Support Pension - relevant period - whether a physical, intellectual or psychiatric impairment - whether an impairment rating of 20 points - decision affirmed
LEGISLATION
Social Security Act 1991
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Conrad Ermert, Member
INTRODUCTION
On 7 June 2015, Miss Wilkie lodged a claim for Disability Support Pension (DSP) with Centrelink. Centrelink is the service provider for the Department of Social Services, the Respondent. In her claim she listed as her disabilities sleep apnoea, arthritis, back pain, nerve damage, lymphedema, depression and asthma.
On 27 July 2015, a Centrelink officer determined that Miss Wilkie was not qualified for DSP as she had not actively participated in a program of support. On 9 September 2015 a Centrelink authorised review officer (ARO) affirmed this decision. Miss Wilkie sought review of the ARO’s decision. On 13 January 2016, the Social Services and Child Support Division of this tribunal affirmed the ARO’s decision on the basis that Miss Wilkie’s impairments did not attract 20 points under the provisions of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
This matter is a review of the decision of the Social Services and Child Support Division of this tribunal.
HEARING
At the hearing Miss Wilkie represented herself and gave oral evidence to the Tribunal.
Ms Belinda Lewis, represented the Respondent.I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
For the Respondent I took in for consideration the Respondent’s Statement of Facts and Contentions dated 15 June 2016.
LEGISLATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).
Section 94 of the Act relevantly prescribes qualification for DSP, as follows:
(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;
A person’s impairment is assessed by reference to the Impairment Tables.
RELEVANT PERIOD
Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.
In this case the relevant period runs from 7 June 2015, the day on which the claim was lodged, to 7 September 2015.
ISSUES
The issues are whether, during the qualification period, Miss Wilkie:
·had any physical, intellectual or psychiatric impairments; and, if so,
·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so
·she had a continuing inability to work.
EVIDENCE
In her oral evidence Miss Wilkie described her problem with sleep apnoea. She said she has to sleep anywhere and at any time, up to 15 hours a day. She said she is a changed person as a result of her sleep apnoea. She cannot work as she may have to back to sleep even half an hour after starting. Miss Wilkie said she had to give up her job at Specsavers after five years because of her sleep apnoea.
In answer to questions Miss Wilkie said she goes shopping by herself but only for a few things at a time. She said she drives to the supermarket and parks in the car park. She does not use public transport as she does not need to.
Asked about work in the house Miss Wilkie said she has help with mopping and hanging out the washing but she does things herself like peeling the vegetables and folding the laundry. Miss Wilkie explained that the problem with housework was her back, not tiredness.
In regard to her back problem Miss Wilkie said she can bend over and has no trouble turning around except when her back gets sore. She said she can stand and walk but “when it starts I have to sit down”.
TRIBUNAL CONSIDERATIONS
Does Miss Wilkie have an Impairment? (section 94(1)(a)) of the Act
The Respondent concedes, correctly in my opinion, that during the relevant period
Miss Wilkie had impairments from a number of conditions which satisfied the requirements of section 94(1)(a) of the Act. The concession is supported by medical evidence, and I find accordingly.
Do the Impairments attract an Impairment Rating of 20 points or more?
(section 94(1(b)) of the ActI must now determine whether Miss Wilkie’s impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.
Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and if the impairment is more likely than not to persist for more than two years. Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised.
Section 6(5) of the Impairment Tables provides that for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner the following considerations apply:
(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 2 years.
I will consider each of the conditions in turn.
Severe Obstructive Sleep Apnoea / Daytime Sleepiness / Asthma
Ms Lewis reiterated the Respondent’s concession that during the relevant period this condition was accepted as being fully diagnosed, fully treated and fully stabilised. I am satisfied that this concession is supported by the available medical evidence and find accordingly. This means that an impairment rating can be applied for this condition under the relevant Impairment Table.
Ms Lewis submits that, based on the medical evidence, Miss Wilkie experiences frequent symptoms, including shortness of breath and fatigue, and is unable to walk far outside because of her shortness of breath. Ms Lewis contends that this level of impairment attracts a rating of 10 points under Impairment Table 1 – Functions Requiring Physical Exertion and Stamina. I accept that the evidence supports the submission. I must now determine whether Miss Wilkie’s impairment from this condition attracts a higher rating.
The descriptors in Table 1 for a rating of 20 points are:
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.
Miss Wilkie’s evidence is that she is able to walk from a carpark and do her own shopping in a supermarket without assistance. She said she does not use public transport because she does not need to, but not because she is unable to do so without assistance. Miss Wilkie said she does her own light household activities albeit with assistance for some of the heavier tasks. Her evidence was that her difficulties with these tasks were not as a result of the exertion or breathlessness, but as a result of the problems from her back condition.
To attract a rating of 20 points Miss Wilkie would have to satisfy both sections 1(a) and 1(b) of Table 1. From the evidence I find that Miss Wilkie does not satisfy the descriptors contained in section 1(a) and as a consequence cannot satisfy the requirements for a severe functional impact attracting a rating of 20 points. As a result I find that Miss Wilkie’s impairments from her sleep apnoea, daytime sleepiness and asthma conditions attract a rating of 10 points.
Back Condition
Ms Lewis reiterated the Respondent’s concession that during the relevant period this condition was accepted as being fully diagnosed, fully treated and fully stabilised. I am satisfied that this concession is supported by the available medical evidence and find accordingly. This means that an impairment rating can be applied for this condition under the relevant Impairment Table.
The Respondent submits that this condition can be assigned five points under Table 4 – Spinal Function based on the medical evidence that she is unable to bend without discomfort or difficulty. I accept that there is sufficient evidence to support this rating. I must now consider whether the impairment attracts a higher rating.
The descriptors in Table 4 for a rating of 10 points are:
1The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)The person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)The person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)The person is unable to bend forward to pick up a light object placed at knee height; or
(d)The person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
Miss Wilkie’s evidence is that she drives to the supermarket to do her shopping. There is no evidence of any time limitation to her ability to drive. There is no evidence specific to her ability to sustain overhead activities however Miss Wilkie did not indicate any difficulties in this regard. She said her problems related to her ability to walk and stand when her back got too sore. Miss Wilkie’s expressed no problems with her ability to turn or bend over to pick up light objects. She gave no evidence of needing assistance to get up out of a chair.
In the absence of evidence in support of the descriptors I am unable to find that Miss Wilkie’s impairment attracts a rating of 10 points. Accordingly I find that Miss Wilkie’s back condition attracts a rating of five points.
Lymphedema
Ms Lewis reiterated the Respondent’s concession that during the relevant period this condition was accepted as being fully diagnosed, fully treated and fully stabilised. I am satisfied that this concession is supported by the available medical evidence and find accordingly. This means that an impairment rating can be applied for this condition under the relevant Impairment Table.
In considering this condition I note the following reports:
·Dr Tina Shattock dated 12 May 2014 which records:
Difficulty walking prolonged distances
…
Unable to wear comfortable footwear, limiting endurance and dexterity, can not walk > 50m.; and
·Dr Tina Shattock dated 24 February 2015 and 10 June 2015 which list lymphedema as a condition that is generally well managed and that causes minimal or limited impact on ability to function.
From the medical evidence I find that the condition causes minimal impact on Miss Wilkie’s ability to function. I find the condition attracts an impairment rating of zero points.
Depression
The Introduction to Table 5 – Mental Health Function requires that the diagnosis of a mental health 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). In this case there is no evidence that Miss Wilkie’s condition of depression has been diagnosed by a psychiatrist and there is no evidence from a clinical psychologist. Accordingly I find that the condition is not fully diagnosed and therefore not permanent in the terms of the Tables. As a result I am unable to assign an impairment rating to this condition.
Total Impairment Rating
For Miss Wilkie’s conditions during the relevant period, I have found the following levels of impairment:
(a)Severe Obstructive Sleep Apnoea / Daytime Sleepiness / Asthma – 10 impairment points;
(b)Back Condition – five impairment points;
(c)Lymphedema – zero impairment points; and
(d)Depression – not fully diagnosed, treated and stabilised – unable to assign an impairment rating.
Therefore, the total impairment rating in the relevant period is 15 impairment points.
CONCLUSION
The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act. In order to satisfy section 94(1) of the Act, all of the sub-sections must be satisfied. Miss Wilkie does not satisfy the requirements of section 94(1)(b) of the Act. As a result, she cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1) of the Act.
The result is that during the relevant period Miss Wilkie was not qualified for DSP and I find accordingly.
If Miss Wilkie’s conditions have changed since the relevant period she is entitled to submit a new application for DSP with Centrelink at any time.
DECISION
I affirm the reviewable decision.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member ........................................................................
Associate
Dated 25 July 2016
Dates of hearing 19 July 2016 Applicant In person Advocate for the Respondent Ms Belinda Lewis
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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