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

[2017] AATA 428

Wise and Secretary, Department of Social Services (Social services second review) [2017] AATA 428 (16 February 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4325

Re:Sally Wise

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:16 February 2017

Date of written reasons:        7 April 2017

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 14 June 2016.

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Bill Stefaniak AM RFD, Senior Member

Catchwords

SOCIAL SECURITY - disability support pension – refused – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – decision under review affirmed

Legislation

Social Security Act 1991, s 94(1)

Secondary Materials

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

WRITTEN REASONS FOR ORAL DECISION

Bill Stefaniak AM RFD, Senior Member

7 April 2017

1. The decision under review is the decision of the Social Services and Child Support Division (SSCSD) of the AAT, and that was made on 14 June 2016.  That decision affirmed a decision of the authorised review officer, made on 18 November 2015 to reject the Applicant’s claim for a Disability Support Pension (DSP) lodged on 21 July 2015 with the Department of Human Services.

2. The issues I have to determine is whether the SSCSD’s decision was the correct or preferable decision, and I have to apply the qualification criteria for DSP contained in s 94(1) of the Social Security Act 1991 (Cth) (the Act) as amended.

3. I have to consider, whether, as at 21 July 2015, the date of application, or within 13 weeks after that date, which is by 20 21 October 2015, the Applicant had a physical, intellectual or psychiatric impairment for the purposes of s 94(1)(a) of the Act, and if so, whether the Applicant had an impairment rating of at least 20 points under the Impairment Tables, found in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (the Determination), and that is the Determination for the purposes of s 94(1)(b) of the Act.

4. I also have to determine if the Applicant gets over that hurdle as at July through to October 2015, whether she had a continuing inability to work as defined by s 94(2) of the Act for the purposes of s 94(1)(c) of the Act.

5. In terms of this particular case, the Applicant is in her late 50s and worked for over 30 years.  She lives with her 19 year old son, who, thank God is now working and supporting her because she spent about $16,000, on my calculations, of her superannuation in terms of supporting herself until she got DSP. She worked until about February 2015 and then she went on three months’ sick leave, attended Centrelink, and was encouraged by Centrelink staff to apply for DSP.

6. On 21 July 2015 she applied for DSP.  This was application number one.  On 16 July 2015 Dr Brent Wong prepared a medical report listing her conditions; peripheral neuropathy carpal tunnel and cervical spondylosis. On 21 July 2015 she lodged her claim for DSP, listing her conditions as hearing loss, arthritis, asthma, loss of balance and migraines.  The Job Capacity Assessment (JCA) report, which was done on 27 August 2015, looked at those conditions, and allocated impairment ratings as follows:

   ·Asthma – 0 points – Table 1;

   ·Migraines – 5 points – Table 1;

   ·Hearing loss – 5 points – Table 11

7. In relation to her neck disorder, the JCA said that it was not fully treated or stabilised, and felt that the chronic pain had not been fully treated or stabilised, and similarly with the carpal tunnel syndrome as well. It awarded zero points for these impairments accordingly. The claim was rejected.

8. She requested a review, and on 18 November 2015 the authorised review officer affirmed that decision.  The decision was affirmed by the SSCSD on 14 June 2016 and on 18 August 2016, the Applicant applied to the AAT for a second-tier review of that decision. 

9. In February 2016 the Applicant made a second claim for DSP. I am satisfied that the application was lodged, but it appears it was misplaced.

10. A third claim for DSP was made in 24 November 2016.  It was accepted as at and from 14 November 2016.  Clearly, in relation to that, the Department indicated that she received five points for hearing loss, five for speech, five for neck and five for table 1, physical exertion, which included migraines, chronic pain and asthma.  I certainly do not cavil with that.  The Applicant has given evidence that she has had some of the conditions for many, many years, especially in relation to hearing, and since she ceased work in February 2015 a lot of these conditions have got progressively worse.

11. I note the Respondent made reference in submissions to the fact that the first application in his view was a little bit premature in that the relevant medical evidence was not there to back it up, but clearly, as a result of the medical evidence, which is listed in the documents and which was gathered from around January 2016 onwards, the 20 points ultimately  awarded by the Department were well and truly justified, and accordingly, the Applicant was awarded DSP with effect from 14 November 2016. 

12. It may well be, as a result of when that medical evidence came about, that it would also be relevant to the second claim, which was lost in February 2016, and that may well be of relevance in terms of assessing any compensation the Applicant may be entitled to in respect of the lost claim. In relation to this appeal, in summary, firstly, I can be satisfied that there is a physical or psychiatric or intellectual impairment.  There is certainly a series of physical ones; I am satisfied as to that.  The next point is the Applicant has to satisfy the Tribunal, standing in the shoes of the decision maker, and that as at the relevant period being July 2015 until October 2015, she qualified for 20 points under the Impairment Tables.

13. Now, if she got 20 points for one particular table, that would mean she is pretty severely disabled.  She would not have to worry about the second part of the equation.

14. Because she does not, and there is no way I can construe, looking at the evidence in this matter as at that time, or even indeed now, that she would get 20 points for any one area alone, even if she qualified for 20 points in total, or more, she then has to satisfy the requirements in relation to a program of support.  At present I think she can only do about seven hours a week of work, which well and truly qualifies her for the DSP, but quite often, as is the case here, with relevant support she was assessed by the JCA report as being able to do 15 to 22 hours.

15. At the time she applied for DSP in July 2015 she had to be engaged in a program of support and participated in that for at least 18 months within the three year period prior to the date of the claim for DSP.  She had done a very good job, much better than most of the ones I see here, in terms of completing 441 days out of 547.  So she was not too far short, but she was short.

16. It should be noted that a person does not necessarily have to do that 18 months in three years because if the program of support is terminated prior to the claim, in other words, the officer responsible for putting the Applicant through the program, says their impairment is such that prevents the person  from undertaking any program of support, and says in effect  “please send her away, she cannot do it; her disabilities are such that she cannot participate in a program”;  the legislation enables that provision to be waived.

17. In this case I note there has not been any documentation to suggest that.  It was based very much as they are in terms of the medical evidence at the time; that is how, in this case, the 15 to 22 hours per week with support are actually assessed, but it was certainly hoped that a program could be found, and she valiantly did that, and indeed, with considerable pain in  her hands because of the carpal problems, after the period in July 2015 undertook a computer course on a regular basis until December 2015 and continued to do about one day a week until she finished the course in about June 2016. With regard to her lost February 2016 claim, this leads me to believe on that basis, given that the computer course took up most of the relevant extra 70 days or so the Department has assessed where needed, that for the period February 2013 to February 2016 she would most likely have met the requirements there, as she indeed did, (although she seemed to be 30 days short) for the period November 2013 to November 2016.

18. The Department has recognised, correctly in my view, the Applicant to be an honest person who was trying her best and waived the other 30 days because she had made a substantive effort and was virtually there. The Respondent conceded that it was quite possible it was in fact more than that because of the way the three year periods are worked out. So it may well be she was over the statutory number, but at any rate this does not matter as the department did waive the 30 days. 

19. However for this application there is a problem.

20. During the hearing, the Tribunal went through the Impairment Tables and attempted to apportion points to evidence of the relevant impairments suffered by the Applicant in the relevant period.

21. The Applicant’s evidence was that prior to July 2015, she had problems with her hearing. Indeed, she has now actually got a better hearing aid and she can hear a lot better, but she has had hearing problems for many years.

22. In terms of her speech, the problem goes all the way back to her childhood, and it relates to the kernicterus. She directed the Tribunal to a document from December 2014, included in the T-Documents, that does make reference to that. It is a letter from Dr Stacey Jankelowitz, consultant neurologist, who indicated ‘on examination [the Applicant] was dysarthric’, and that relates to her speech. It does not go into anything further.

23. In the JCA report of 7 December 2016, the assessor states:

    The person has mild difficulty in producing speech and has minor difficulty with being understood due to speech production or content.  MR states [the Applicant] has dysarthria resulting from deafness and cerebellar issues relating to her kernicterus and varies from mild to moderate, depending on her level of fatigue.  MR states she has mild difficulties producing speech.  MR states minor difficulty with being understood due to speech production and content due to dysarthria.  This was demonstrated in the assessment today and the client confirmed this difficulty.

24. I must say, and I will go through the tables, that this is very much what I discerned sitting here today, and in November/December last year the assessor decided that five points should be allocated, and that certainly would be the case today.

25. The Applicant asks that because a reference was made to that condition back in December 2014, that five points should be awarded back in July 2015.

26. The Respondent says it is a five word sentence and it does not really go into it any more than just stating the name of the issue, and submits that it needs a bit more than that. That is a logical submission in terms of the thrust of what the Applicant was submitting. I will go through the various Impairment Tables in relation to this impairment.

27. As I said, the Applicant has said that she has had these conditions for a long time, but more recently they are certainly progressively getting worse since July 2015.

28. In relation to the actual conditions; I thank the Respondent for the table they prepared listing the various assessments made at the various times in this matter - it has been particularly helpful.

29. In relation to Table 11, Hearing, the July 2015 application and the assessment made by the Department allocates five points, and that remains the case in all the other assessments all the way through, and I think everyone agrees with that.  In terms of the hearing loss, it means mild functional impairment; for example, the person has some difficulty hearing a conversation at an average volume in a room with background noise, and may use a hearing aid, and has difficulty hearing conversations when using a standard telephone, particularly in a room with background noise, or has occasional difficulties with balance, which she has, which occasionally interferes with communication ability or routine activities.  Certainly I agree that is the case with the Applicant.

30. Ten points is not applicable because the Applicant herself has said she does not have difficulty hearing a conversation at average volume in a room which is silent, and one needs to have that problem to qualify for 10 points.  And further, while she can lip read, she is not really reliant on lip reading in any way, so five points I think is fair, and I will allocate that.

31. In terms of speech, I think I have already indicated that while she has five points there now, as a result of the JCA report, back in July 2015 she did not.  In relation to speech:

    For there to be a mild functional impact on communication in the person’s main language.

    (1)  At least one of the following applies:

    (a) the person has some difficulty understanding complex words and long sentences (e.g. a complex newspaper article)…

32. I do not think that is the case here. It says further:

    (b) the person has mild difficulty in producing speech and has minor difficulty with being understood due to speech production or content.

33. The Applicant does speak with an accent characteristic of people who have this speech impediment often due to hearing, and certainly I think this satisfies (b), above. Can she therefore get 10 points?  For there to be a moderate function; the person needs to have difficulty understanding day-to-day language, and the example given in the Impairment Table is:

    Please take this book out to Jane at the front desk and ask her to give you some paper clips and bring them back in here.

34. The Applicant has no problem with that; that was the phrase I used for her and she clearly understood it fully. Or she may need instructions repeated or broken down. She also would need a stutter or a stammer and difficulty coordinating speech movements and damage to speech structures, making it slow or sometimes difficult for strangers to understand, or she uses sign language.  That is not the case here, so certainly 10 points would not be relevant.

35. I note what the Respondent says in relation to the fact that it is simply a one word in a five word sentence, but it does describe what is then referred to again, in the report of the JCA on 7 December 2016, and this is beneficial legislation, and I think there is a further reference to this problem, being a problem for many years, because it is linked to the kernicterus, which goes right back to childhood, and that is referred to earlier. I think it would not be drawing too much of a long bow to accept that the reference to that, and the December 2014 statement, would be sufficient to indicate that the problem was there in July 2015, and therefore a diagnosis of five points could be given.

36. In relation to the neck under Table 4, the Applicant had been granted five points by the SSCSD.  The Respondent indicates that the SSCSD was actually going on a medical report in March 2016, and if that is so, and that is what they hung their hat on, that would be relevant for the second application, the lost application, and indeed was probably one of the documents that the Applicant handed in, but may be a problem for this.  The Department, through the job capacity assessment, indicated that that particular problem was not fully treated and had not been fully stabilised as at July 2015.

37. The Applicant’s doctor, Dr Wong, had indicated it has minimal effect on what she was doing then, and Dr Lawson, who was contacted by telephone to give evidence during the hearing, without notice, basically indicated that it might be difficult for the Applicant to be awarded even five points, although it seems that that may not have been indicated to the Applicant when Dr Lawson saw her in August 2015. Dr Lawson saw the Applicant on seven occasions up to August 2015.

38. The Applicant has certainly described, and it is possible if this was teased out further, that as at July to October 2015, she did have some difficulty in activities over head height; for example she cannot put the washing on the line, or bend to knee level.  I recall seeing a comment indicating she could turn her trunk. Now, she does have to turn her trunk too, because she has trouble moving her head separately and needs to turn her trunk, so that might also qualify her.

39. Accordingly, it would appear that it is possible for her to get five points as a result. There would probably need to be further evidence from Dr Lawson when he perhaps had more time to reflect, shall I put it that way, because it was a fairly brief conversation, and he was in the middle of seeing patients when the Tribunal spoke to him. However, looking at what Dr Wong stated, it does appear that there is some strong evidence that this condition wasn’t fully stabilised.  So whilst there is a possibility of five points, I would have some difficulty finding that, the way the evidence panned out.

40. In relation to the asthma and the chronic pain, the migraines and the physical exertion, she has been awarded five points for migraines all the way through until the most recent assessment  at the end of last year, when she gets five points for physical exertion, which is basically Table 1.  Table 1 covers all of that and for very good reason.  I will look briefly at Table 1, just to see if as at July to October 2015, she can qualify for maybe 10 points. 

41. To qualify for 5 points for physical exertion:

    The person needs to experience occasional symptoms, like mild shortness of breath, fatigue, when performing physically demanding activities and due to these symptoms the person has occasional difficulty walking to local facilities, eg, a corner shop or around a shopping mall, without stopping to rest, or performing physically active tasks, climbing a flight of stairs, vacuuming floors or mowing the lawn, and is able to perform most work related tasks, other than tasks meaning heavy manual labour.

42. Well, she certainly cannot do the heavy manual labour, but she certainly can do household tasks; this is as at July 2015, albeit with some difficulty (it is harder now).  As at 2015, she said that she would have difficulty walking to the shops without having a rest.  She goes to the shops, 500 metres away from her house, and has to stop twice.  Certainly she would therefore qualify for five points, and no one really disputes that.

43. Does she have a moderate functional impact? I also should note that the medical documentation refers to a mild functional impact too, so clearly the doctors are having regard to the tables, and that reinforces some of the points that have been given.  Does she have a moderate functional impact?

44. She would need to experience frequent symptoms, shortness of breath, fatigue, when performing day to day activities around the home.  She would be unable to walk far outside the home and would need to drive or get other transport to local shops or community facilities.

45. That seems to be somewhere a little bit less than walking 500 metres and stopping twice.  It seems to imply getting outside the home, but probably not going much further than 30 or 50 metres; probably needing to get a bus or something to go the extra 450 metres.  Also:

    Has difficulties performing day to day household activities.

1. Now, changing the sheets on a bed is given as an example, as is sweeping paths.  She can sweep paths; if she can sweep the floor she can sweep the path, but changing sheets; she certainly has difficulty doing that but that is not so much because of the physical stamina, it is because of her other problems, mainly the neck problems and also the carpal issues there.  That is why she has to sit down on the bed, but it is not actually a Table 1 issue.

2. The rules here are if someone is between five or 10 points, the lower points are given.   Back at the end of 2011, Federal Parliament agreed that the laws in relation to DSP be tightened up. That was because there were nearly as many people on DSP as were on Newstart.  In fact, figures were somewhere around 700,000 on each. So the rationale was, firstly, Newstart is a lot cheaper, so it saves the taxpayer money, and secondly, rather than just look at the financial bottom line, it is far better if someone can work, that they do work rather than just sit at home and mope around on DSP.  If they can get out and do some useful labour and work then that is better for the country, it is better for them, they will feel better, they will feel healthier, they get more money and everyone wins.  So there was that aim as well.

3. From 1 January 2012 the new laws came into force.  It is a lot harder now to get DSP than it would have been 10 years ago, and for those reasons.  So that is the rationale behind it.

4. Carpal tunnel, Table 2, had not been stabilised, and today we heard there is still talk, as there was two years ago, of some surgery, and the Applicant has an appointment in May and it is not definite whether there will be surgery or not. There is some argument now that surgery probably is not going to do anything, but that is still a work in progress, so I think there is no evidence there to support using the tables yet because clearly that has not been fully stabilised at the relevant time.

5. Similarly there are a couple of new ailments that may need to be considered; mental health and cognitive impairment. These are not fully diagnosed yet and with mental health particularly, we do need something from a psychiatrist or a clinical psychologist to indicate what the problem is so it then can be assessed.

6. They are two relatively new matters which have been raised which have not been fully diagnosed yet.  There may well be no reason to do that, given that the Applicant now has been granted a DSP, but I would imagine that with any sort of pension there are always reviews, so I would encourage the Applicant to perhaps talk to a psychiatrist in relation to that, and whoever does the cognitive impairment, just see what, if any points, need to be allocated for that when she may come up for a review.

7. The Applicant has given evidence today indicating that since her first application, things have not gotten better, they have got worse. She is valiantly doing her best but it is highly unlikely that any of these matters are going to improve. Some, and everyone agrees, have been fully diagnosed and stabilised, and she has got points for them.

8. So clearly if there are some further problems the Applicant needs to have those newer ailments treated for her own wellbeing.  The Tribunal was quite impressed by the fact that she has got a new hearing aid, she is now taking some medication which really helps in terms of pain, and that over the last year or so, clearly some of the medicines that she is using, some of the treatment she is getting is having a very positive effect, which is great.  It is not going to make the conditions go away; it is not going to enable her to go back to work, but it is going to make life a lot easier and less painful.

9. So having had a look at all of the evidence, and going through all those impairment tables, I can quite easily see where I would give an additional five points for speech, which in  addition to the 10 points already allocated before (5 points for migraines and 5 points for hearing loss) would get her up to 15 points.

10. Whilst I initially thought I would agree with the SSCSD, in relation to the neck problems, Table 4, I think there is considerable strength in the Respondent’s submission that that does appear to be from a more recent medical report after October 2015, and the doctor did not help either.  But then again, Dr Wong indicated, and he seems very keen to assist you all the way through, that the Applicant was managing it fairly well in July to October 2015, although it has got worse since then.

11. So I think a diagnosis of not fully treated and stabilised is a reasonable one, and it is probably more likely than not that a zero rather than a five rating would be, if one had to rate it, the applicable rating as at July to October 2015.

12. Accordingly, I would have difficulty awarding 20 points, I would rate the Applicant as having 15, for the reasons stated above.

13. But, even if I was able to award  20 points, we go back now to the 441 days out of the 547 required and the fact that none of the people providing the training, or the work, had written in to say, “Look, she simply can’t do it” at that point in time.

14. So sadly, as at July 2015, I think the SSCSD, (and most of their reasoning I would agree with; I have made a couple of alterations) basically did get it right, and that means that decision has to be affirmed.

15. I will, however, say that in relation to February 2016, while it is highly unfortunate that the Department seems to have lost her application, she does seem to have a remedy there, and it would seem to me that the medical evidence that was sent in, and certainly does relate to that first part of 2016, and the period we are looking at would be mid-February to mid-May last year, would very much put the Applicant in a similar sort of situation to the one she was in in later 2016, when the Department allocated her 20 points.

16. Further, it would certainly seem on that medical evidence, especially as to the neck, (see the March 2016 reports) that five points could certainly be awarded there, and I would think, because I have given you five points for speech, clearly it would seem that had that application been assessed the Applicant may well have got 20 points then and there.

17. Also, the additional hours of work put in by the Applicant in attending and participating in the computer course, would put her in exactly the same situation, give or take a day or two, that she was in when the Department decided to waive the 30 days short, and it would seem that she would obviously have a very good chance of having qualified for DSP earlier.

18. That would mean a simple mathematical adjustment in terms of the difference between $947 and Newstart per fortnight over that relevant period of time, and that would be probably a reasonable figure to look at in terms of compensation in terms of that error of misplacing her application.

19. Accordingly, should it be established that the Applicant would have been ticked off for DSP as of February 2016 (and the evidence points that way) the logical thing would be to award a sum that reflected the nine month period from February to November 2016, when she would have been entitled to DSP, less whatever she actually did receive for Newstart.

20. In my view, those would be the issues to look at, as far as I see, in terms of any compensation that she may be entitled to.  I certainly cannot suggest anything other than what the Respondent suggested in relation to that, and again I thank counsel for the Respondent and the Department in this matter for being a model litigant.

    CONCLUSION

21. In terms of the 2015 matter, which is what I am dealing with, I would have to agree with the submission made by the Respondent, and as I said earlier, the formal order in this matter is that the decision of the SSCSD, dated 14 June 2016, that the Applicant did not qualify for DSP during the relevant period, is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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Associate

Dated: 7 April 2017

Date(s) of hearing:	16 February 2017
Applicant:	In person
Solicitors for the Respondent:	Clayton Utz