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

[2015] AATA 497

Wilson and Secretary, Department of Social Services (Social services second review) [2015] AATA 497 (10 July 2015) 

Division	GENERAL DIVISION
File Number	2014/6548
Re	Michele Wilson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member AC Cotter
Date	10 July 2015
Place	Brisbane

The Tribunal affirms the decision under review.

.........................[Sgd].........................................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – value of medical evidence – evidence inconsistent or contradictory – absence of cogent corroborating medical evidence – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 27, 94

Social Security (Administration) Act 1999 (Cth), s 63, 80

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

Guidelines to the Tables for the Assessment of Work-related Impairment

Guide to Social Security Law

CASES

McDonald v Director-General of Social Security (1984) 6 ALD 6

Summers and Secretary, Department of Social Services [2014] AATA 165

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

REASONS FOR DECISION

Administrative Appeals Tribunal

10 July 2015

INTRODUCTION

1. Michele Wilson is a long-term recipient of the Disability Support Pension (“DSP”), having been first granted it in July 1995.

2. On 20 November 2013, the Secretary of the Department of Social Services issued a Medical Report Disability Support Pension Review form (“Review Form”).  Ms Wilson and her doctor were to complete their respective sections and return them to the Department, which they did.

3. Following Ms Wilson’s Job Capacity Assessment (“JCA”) interview, a report was prepared assessing her impairments and inability to work. Subsequently, Centrelink advised her on 26 May 2014 that her DSP was cancelled as she did not have an impairment that rated 20 points or more under the Impairment Tables that were then in force.

4. Ms Wilson disputed Centrelink’s decision on the basis that her impairment should have been assessed according to the Table under which she was originally assessed some years earlier, and not an updated Table. Despite a review by both an Authorised Review Officer and then by the Social Security Appeals Tribunal, the decision to cancel the DSP was affirmed on both occasions. Ms Wilson has sought a review of the latter decision.

   THE LEGISLATIVE FRAMEWORK

5. Before identifying and considering the issues for determination, it is convenient to recall the principal provisions concerning the qualification criteria for DSP and its cancellation.

6. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the relevant Impairment Tables; and that the applicant has a continuing inability to work.

7. The Social Security (Administration) Act 1999 (Cth) (“Administration Act”) makes provision for the review of social security payments, such as DSP. It was under s 63 of that Act that the Review Form was given to Ms Wilson.

8. Section 27(3) of the Social Security Act in effect provides that where a person is given a notice under subsection 63(2) or (4) of the Administration Act, their qualification for DSP is to be assessed in accordance with the Impairment Tables which were in force at the time the notice was issued. In this case, that was 20 November 2013.

9. Under s 80 of the Administration Act, the Secretary may cancel or suspend a social security payment (including DSP) if the Secretary is satisfied that such payment is being paid to a person who is not, or was not, qualified for such payment. The applicant’s qualification for DSP is to be assessed as at the date of cancellation[1] (in this case, the date of Centrelink’s cancellation letter, 26 May 2014).

   [1] McDonald v Director-General of Social Security (1984) 6 ALD 6.

   ISSUES FOR CONSIDERATION

10. There is no dispute that as at 26 May 2014, Ms Wilson suffered from a number of physical impairments, including a bilateral hip condition, a neck condition, vertigo and high cholesterol. As such, she would be able to satisfy the first of the criteria listed in s 94 of the Act.

11. The principal question is whether those impairments attract a rating of 20 points or more under the relevant Impairment Tables. At the hearing, Ms Wilson made a considerable concession that only the bilateral hip condition needed to be considered for present purposes. Her doctor, Dr Andrew Reedy, acknowledged that the neck condition had only been preliminarily investigated. He said that it was a progressive degenerative process, such that the symptoms and condition would progress to deteriorate with time; treatment would need to be adjusted as the condition progressed.[2] As the condition was not fully diagnosed, treated and stabilised, it would not have been able to be assigned a rating under the Impairment Tables.  The other conditions presumably had minimal impairment on Ms Wilson’s ability to function, such that they also would not have been assigned a rating. In the circumstances, I believe that Ms Wilson’s concession was appropriate.

    [2] Exhibit 3, report of Dr Andrew Reedy dated 19 February 2015.

12. The Secretary also made a significant concession, to the effect that Ms Wilson had a continuing inability to work as at 26 May 2014. That was because she was to be assessed in that respect by reference to the pre-1 July 2005 definition of “work”.[3] As a result of that concession (which I consider to be appropriate), the third criterion under s 94 of the Act is also satisfied.

    [3] The earlier pre-1 July 2005 definition defined “work” as work that is for at least 30 hours a week on wages at or above the relevant award wage. See Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions dated 13 May 2015, paragraphs [47] – [51].

13. Consequently, the remaining issues for me to determine are:

    a)What are the applicable Impairment Tables to which recourse is to be had? and

    b)By reference to those Tables, what rating is to be assigned to Ms Wilson’s bilateral hip condition?

    CONSIDERATION

    What Impairment Tables are applicable?

14. For the Secretary, it was contended that the appropriate Impairment Tables to be considered were those that were in force from 1 January 2012. As the Secretary had given Ms Wilson the appropriate notice under s 63(4) of the Administration Act, it was said that s 27(3) of the Act in turn operated to require the Secretary to apply the legislative instrument in force under s 26 of that Act on the day the notice was given (namely, 20 November 2013). At that date, the legislative instrument which was in force under s 26 of the Act was the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“2011 Determination”), which came into effect from 1 January 2012.

15. It was contended for Ms Wilson that that approach was unfair, in that her disability had remained unchanged over the years, and that only the Tables had changed; in effect, the “goal posts” were being shifted. She also pointed to a statement in the Department’s Guide to Social Security Law (“Guide”) which says that DSP recipients (such as herself) with a DSP start date on or before 10 May 2005 qualify and continue to be reviewed against “the old (including 30 hours) qualification rules for DSP”.[4]

    [4] See Exhibit 1, Section 37 Documents, T3, pages 25 – 27, Section 6.2.5.03 DSP – Application of DSP Qualification Rules at Review.

16. While I understand Ms Wilson’s objection, I am also mindful of the fact that the DSP system should not remain static or be immune from change. It is necessary to undertake, from time to time, reviews of recipients’ conditions and circumstances, to ensure that the system operates consistently and fairly in respect of all recipients, irrespective of how long they have been receiving the pension. As Woodward J observed in McDonald v Director-General of Social Security:

    It is not inconsistent with the notion of permanent incapacity that the pensioner’s position should be reviewed from time to time. Unexpected improvements in the person’s condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent.[5]

    [5] (1984) 6 ALD 6, [13].

17. Regardless of the merits or otherwise of Ms Wilson’s argument, I am required to make my decision in accordance with the relevant legislation. The wording of s 27(3) is clear and unambiguous – any review of a person’s DSP qualification is to be undertaken according to the Tables in force at the time the review notice is given.

18. Nor do I think that section can be overridden by guidelines, as Ms Wilson suggests; the provisions of the Act are paramount. In any event, I agree with the contention of the Secretary that the passage from the Guide on which Ms Wilson relies has to be read in the context of the paragraphs which precede it, dealing with what elements are to be applied at review concerning the criterion for Continuing Inability to Work. Indeed, an earlier passage in the same section of the Guide expressly states that the revised Impairment Tables introduced by the 2011 Determination “apply to people issued with an assessment notice to participate in a medical review on or after 1 January 2012.”[6]

    [6] See Exhibit 1, Section 37 Documents, T3, page 25, Guide to Social Security Law.

19. For those reasons, I accept the Secretary’s contention that the applicable Impairment Tables are those introduced by the 2011 Determination and which came into effect from 1 January 2012 (“2012 Tables”).

    What rating is to be assigned?

20. At the hearing, argument centred on the appropriate impairment rating which should be assigned under the 2012 Table 3 (Lower Limb Function). For the Secretary, it was conceded that Ms Wilson’s hip condition is permanent, such that it could attract an impairment rating. Having regard to the evidence, it was contended that 10 points should be assigned. Ms Wilson maintained that her rating should remain at 20 points.

21. In completing his section of the Review Form, Dr Reedy confirmed his diagnosis that Ms Wilson was suffering from chronic degenerative osteoarthritis in the left and right hips. He noted that she had a total left hip replacement in 1994 and was awaiting a right total hip replacement. In response to the question about the condition’s impact on Ms Wilson’s ability to function, Dr Reedy noted, “cannot lift >5 kg, cannot squat, kneel, bend”.[7]

    [7] Exhibit 1, Section 37 Documents, T23, pages 94 – 105, medical report Dr Andrew Reedy dated 16 January 2014.

22. A face-to-face JCA interview was conducted with Ms Wilson on about 21 May 2014. During that interview, Ms Wilson reported, among other things, the following:

    (a)being unable to sit for more than 15 minutes or stand still for more than two to three minutes (although she could be on her feet longer if she were able to walk around);

    (b)being able to drive only short distances (saying that if she needed to travel further, someone else needed to drive and she would need to take a break every 45 minutes);

    (c)experiencing some instability on her feet (saying that she used a walking stick when her symptoms were exacerbated), with a history of falls;

    (d)experiencing some difficulty mobilising stairs;

    (e)having difficulty with squatting and kneeling;

    (f)requiring assistance to stand up, in that she would have to hold on to a chair to stand;

    (g)being able to manage most activities of daily life, except for vacuuming and cleaning the bath (which her daughter does); and

    (h)being independent in self-care.[8]

    [8] Exhibit 1, Section 37 Documents, T27, pages 112 – 117, Job Capacity Assessment Report dated 21 May 2014.

23. In a discussion with the Authorised Review Officer on 19 June 2014, Ms Wilson described the following functional impact on her. She said that she:

    (a)was able to do all household jobs, with the exception of vacuuming and cleaning the bath;

    (b)had difficulty putting on her shoes but was otherwise able to dress without assistance;

    (c)required assistance to get up from the floor, but was able to get up from a sitting position without assistance;

    (d)only used a walking stick when her symptoms were exacerbated;

    (e)had difficulty negotiating stairs and uneven paths while walking unaided;

    (f)required assistance from her daughter when doing the grocery shopping and also used a supermarket trolley for support;

    (g)was unable to stand or sit still for more than two minutes;

    (h)was only able to drive for a maximum of 20 minutes at a time and then would require a five-minute break to recover.[9]

    [9] Exhibit 1, Section 37 Documents, page 33, letter from Authorised Review Officer to Ms Wilson dated 24 June 2014.

24. Dr Reedy painted a far more pessimistic picture of Ms Wilson’s functional impairment. In response to a letter from Centrelink,[10] he stated that the “symptoms of the hip pain and mobility problems, had a major impact on Mrs. Wilson’s ability to undertake simple everyday functions, such as shopping / cleaning / house work and personal care”.[11] He went on to say that she “often required assistance of Family Members to undertake these duties in a safe and practical manner”. When asked to comment on functional impairment under Table 3, he described the functional impact as “severe”. Presumably referring to the descriptors for 20 points, he said that Ms Wilson “is not able to undertake (1)(a)(i-iii) in a safe manner without assistance”. Those descriptors state that the person is unable to do any of the following: walk around a shopping centre or supermarket without assistance; walk from the carpark into a shopping centre or supermarket without assistance; and stand up from a sitting position without assistance. Dr Reedy said that for Ms Wilson to attempt those functions unassisted would endanger her safety, as had been evidenced by “several falls and minor injuries proceeding May 2014.”

    [10] Exhibit 3, Centrelink letter dated 12 February 2015.

    [11] Letter Dr Andrew Reedy to Centrelink dated 19 February 2015. Exhibit 3.

25. Following receipt of Dr Reedy’s letter, a JCA file assessment was conducted on 23 March 2015. Noting the obvious discrepancies between Dr Reedy’s assessment and Ms Wilson’s self-report to the earlier JCA assessor and the Authorised Review Officer, the file assessor contacted Dr Reedy. He confirmed that he had not actually seen Ms Wilson for some two years prior to receiving the request to complete the Review Form. He said that he had consulted with Ms Wilson on two occasions after a couple of “minor falls”, but that was a number of years ago.  Ms Wilson had moved away from his practice and was now about one hour’s distance away, so he did not anticipate seeing her frequently. He agreed that he could not be sure of her current functioning abilities, given the limited consultations with her in the preceding two years.[12]

    [12] Exhibit 4, Job Capacity Assessment Report dated 30 March 2015, pages 7 – 8.

26. The file assessor also contacted Ms Wilson on 23 March 2015 to discuss her overseas travel since 2004. Ms Wilson confirmed that she had travelled to New Zealand during 2004, 2005, 2007, 2010, 2011 and 2014 to see family and that she had two trips to Holland in 2006 (six weeks) and 2010 (eight weeks) to see her mother, who had since passed away. On all of those occasions, she said that she always had assistance from the airline (by means of a wheelchair and staff member to ensure safe passage) when embarking and disembarking the aircraft. However, once she had left the airport, she was independent in her mobility and had no specific assistance while staying overseas; she was fully independent in her activities of daily life.[13]

    [13] Exhibit 4, Job Capacity Assessment Report dated 30 March 2015, page 8.

27. Based on his review of the material and from his discussions with Dr Reedy and Ms Wilson, the file assessor assigned 10 points under Table 3 to Ms Wilson’s impairment.[14]

    [14] Exhibit 4, Job Capacity Assessment Report dated 30 March 2015, pages 4 – 6.

28. The first question I need to consider is what weight should be attached to the medical report of Dr Reedy. He readily conceded that he had not seen Ms Wilson for some two years and that he could not be sure of her current functioning abilities given his limited consultations over that time. In light of that concession, I have serious doubts as to the value of his evidence of Ms Wilson’s functional abilities as at the relevant date of 26 May 2014. That doubt is only reinforced by the fact that a number of the conclusions he reached are inconsistent with, or contradicted by, Ms Wilson’s own self-report, as highlighted in the JCA Report of 30 March 2015. For those reasons, I attach little weight to Dr Reedy’s opinion.

29. Where does that leave the assessment of Ms Wilson’s impairment? As mentioned already, the Secretary concedes that her impairment attracts 10 points under Table 3 of the 2012 Tables. Based on the JCA Report of 21 May 2014 and the self-reporting of Ms Wilson at that time, I am satisfied that the Secretary’s concession is appropriate and that Ms Wilson’s impairment would attract at least 10 points (moderate functional impairment). Ms Wilson is unable to walk far outside of her home and needs to drive to local shops and appointments; she is unable to stand for more than five minutes; she can move around independently, with a walking stick; and may require additional time and effort to move around a workplace. That said, the question remains whether the descriptors for 20 points (severe functional impact) are able to be satisfied.

30. Relying on the Guide,[15] the Secretary contends that in order to meet the 20 point descriptors in Table 3, all the points below (1)(a) must apply and the person must also require assistance to use public transport. (2)(a) and (b) outline the assistance required by a person who either uses a wheelchair or walking aid. In that context, “assistance” means assistance from another person, rather than any aids or equipment the person has and usually uses.[16]

    [15] Guide to Social Security Law, at 3.6.3.30 (Guidelines to Table 3).

    [16] Guide to Social Security Law, at 3.6.3.30 (Guidelines to Table 3). See also Summers and Secretary, Department of Social Services [2014] AATA 165 at [16].

31. The Secretary goes on to say that the medical evidence and Ms Wilson’s own reporting do not support a finding that she is either unable to walk from a carpark into a shopping centre without assistance from another person, or that she requires assistance from another person to stand up from a sitting position.[17]

    [17] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions dated 13 May 2015, paragraph [38].

32. In response, a number of arguments were advanced by Ms Wilson. I do not accept them, for the reasons I outline below.

33. First, it was contended on behalf of Ms Wilson that, because of her situation of effectively being on her own and caring for her disabled daughter, she had no option but to do some of the household tasks in question. While I understand Ms Wilson’s argument, s 6(1) of the 2011 Determination makes it clear that the impairment of a person must be assessed on the basis of what they can do, or could do, not on the basis of what they choose to do or what others do for them.

34. Second, it was suggested on behalf of Ms Wilson that the Guide on which the Secretary relies is simply a policy guideline that is entitled to be ignored. No reason was advanced as to why the Guide should be ignored in this instance. It is well established that although policy is not binding, it will ordinarily be followed unless there is a cogent reason not to do so.[18] In the absence of any compelling reason to the contrary, I propose to follow the Guide in this instance.

    [18] See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

1. Third, the reference to “shopping centres” in the descriptors was relied upon to draw a distinction between Ms Wilson’s situation in a country or regional town, compared with shopping towns or malls in the capital or major cities. I do not think this takes the matter very far; what is important is the description of the activity in question, rather than the names or labels to be attached to particular buildings or structures. In any event, the descriptors also refer to “supermarkets”, a term that would no doubt apply equally to grocery stores in suburban Brisbane as it would to stores in regional Queensland.

2. Having addressed Ms Wilson’s contentions, I return to the Secretary’s submission that there is insufficient evidence to support an impairment rating of 20 points. I accept that submission based on the absence of cogent medical evidence to corroborate Ms Wilson’s claims and on the JCA Reports and Ms Wilson’s own self-reporting. Without intending to be exhaustive, and purely by way of illustration, I highlight the following matters which support a finding that Ms Wilson is unable to satisfy the 20 points descriptors:

   (a)Ms Wilson is able to get up from a seated position without assistance from another person;[19]

   (b)she is able to do all household duties (except vacuuming and cleaning the bath);[20]

   (c)she is independent in self-care,[21] and can dress without assistance (although she experiences some difficulty putting on her shoes);[22] and

   (d)she has made multiple overseas trips, most recently to New Zealand, during which she remained independent in her travel (apart from embarking and disembarking the aircraft) and independent in her own self-care.[23]

   [19] Exhibit 4, JCA Report dated 30 March 2015, page 5, and Exhibit 1, Section 37 Documents, T6, page 33, Authorised Review Officer’s letter to Ms Wilson dated 24 June 2014.

   [20] Exhibit 1, Section 37 Documents, T27, page 113, JCA Report dated 21 May 2014, page 2.

   [21] Exhibit 1, Section 37 Documents, T27, page 113, JCA Report dated 21 May 2014, page 2.

   [22] Exhibit 1, Section 37 Documents, T6, page 33, Authorised Review Officer’s letter to Ms Wilson dated 24 June 2014.

   [23] Exhibit 4, JCA Report dated 30 March 2015, pages 6 and 8.

3. On that basis, I do not consider that Ms Wilson satisfies the descriptors for 20 points. I do, however, assign a rating of 10 points to her impairment. It therefore follows that Ms Wilson did not qualify for DSP as at 26 May 2014 and that the Secretary was correct in cancelling her DSP. The decision of the Social Security Appeals Tribunal is therefore affirmed.

   CONCLUSION

4. The decision of the Social Security Appeals Tribunal dated 24 July 2014 is affirmed.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter.

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Associate

Dated 10 July 2015

Date of hearing	9 June 2015
Solicitors for the Applicant	Ms R Flood, Southern Downs Employment Service (Disability)
Solicitors for the Respondent	Mr A Burgess, Sparke Helmore Lawyers