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

[2016] AATA 226

Wu and Secretary, Department of Social Services (Social services second review) [2016] AATA 226 (8 April 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5743
Re	Yong Hua Wu
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr C Ermert, Member
Date	8 April 2016
Place	Melbourne

The Tribunal affirms the decision under review

.......................................................................

Mr C Ermert, Member

CATCHWORDS

SOCIAL SERVICES - Disability Support Pension - inquiry re indefinite portability - review of qualification for DSP - relevant date - cancellation of DSP payments - whether cancellation decision correct - decision affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

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

CASES

Freeman v Secretary, Department of Social Security [1988] FCA 294 (18 August 1988)

REASONS FOR DECISION

Mr C Ermert, Member

8 April 2016

INTRODUCTION

1. Mr Wu, the Applicant, has been receiving Disability Support Pension (DSP) payments since 1997.  As a result of his enquiry about the payment of DSP he received while overseas Centrelink reviewed his qualifications for the receipt of DSP.  Centrelink is the service provider for the Department of Social Services, the Respondent.

2. Following the review an officer of Centrelink advised Mr Wu on 21 May 2015 that he was no longer qualified for the receipt of the DSP as his impairment was assessed as not being sufficient to attract a total of 20 impairment points.  The officer cancelled Mr Wu’s DSP payments on the same day. 

3. Mr Wu requested a review of the cancellation decision.  On 23 July 2015 a Centrelink  Authorised Review Officer (ARO) affirmed the decision.  Mr Wu requested a review of the ARO’s decision by this Tribunal.  On 30 September 2015 the Tribunal, on its first review, affirmed the decision of the ARO.

4. This matter is the second review of the decision to cancel Mr Wu’s DSP payments.

   HEARING

5. At the hearing Mr Wu represented himself with the support of Ms Jian Ping Wang, his ex-wife and carer.  They both gave evidence under affirmation, with the assistance of an interpreter in the Mandarin language.  Ms Ailsa Bramley, a solicitor, represented the Respondent. 

6. 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). 

7. For Mr Wu I took in his statement dated 25 February 2016 with 56 pages of attachments (Exhibit A1).For the Respondent, I took in for consideration the Respondent’s Statement of Facts and Contentions dated 15 February 2015.

   LEGISLATION

8. The relevant legislation for this matter is contained in the:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act); and

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

9. Section 94 of the Act  relevantly prescribes the qualifications for DSP:

   (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.

10. A person’s impairment is assessed by reference to the Impairment Tables.

    RELEVANT DATE

11. In the Statement of Facts and Contentions the Secretary contends that the relevant date for consideration of whether Mr Wu satisfied the qualification criteria for DSP is 21 May 2015.  In considering this contention I note the decision of the Federal Court in Joan Elizabeth Freeman v Secretary, Department of Social Security [1988] FCA 294 (18 August 1988).

12. Freeman was an appeal from a decision of the Administrative Appeals Tribunal which affirmed an earlier decision of the Department to cancel the applicant’s widow’s pension. In his reasons Davies J. considered the relevant date to be applied. In his reasons for decision he said at 9:

    The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman’s widow’s pension at that time was the correct or preferable decision to have been made.  In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it.  But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow’s pension as at the date of the Tribunal’s decision.

13. Davies J continued at 12:

    The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit.  In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision.  However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration.  Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s.19.

14. Following the reasoning in Freeman, I must determine whether the decision to cancel Mr Wu’s DSP on 21 May 2015 was the correct or preferable decision.  The relevant date for this matter is therefore 21 May 2015.

    EVIDENCE

    Mr Wu

15. In his evidence Mr Wu said he had shown Impairment Table 11 to every medical specialist by whom he had been seen.  However  these reports only focus on his medical conditions in of themselves and not on their impact on his ability to function and hence any functional impairments he may have 

16. In answer to questions about his problems with balance Mr Wu said:

    ·The problems are very bad and he had fallen that morning;

    ·He falls about three times per month but it varies;

    ·He can stand without holding on to something but not for very long; and

    ·He has had dizzy spells for about 20 years but falls more regularly now, since 2015.

17. In answer to questions about his hearing and ear infection problems Mr Wu said:

    ·He has suffered chronic middle ear mastoiditis for the last 40 years, and it has been getting worse in the last 10 years;

    ·He cannot have a normal life because he cannot communicate with people and cannot work;

    ·He nearly died from a machine accident at work because he could not hear the warning sounds;

    ·He would not be able to hear the fire alarm in the apartment building;

    ·He is not able to understand his wife at home, she writes notes to him to communicate;

    ·He is not able to communicate with the psychologist. He talks to his wife who writes the psychologist’s responses for him or else yells at him when they get home; and

    ·He has been referred for cochlear ear implant assessments in April and May 2016.

18. In regard to other medical investigations Mr Wu said he has recently had a colonoscopy in regard to a lump in his anus.  He said this was a new condition.

    Ms Wang

19. Ms Wang said that she usually speaks to Mr Wu in a very loud voice.  She said he often misunderstands her.  He does not hear sirens, loud traffic noise or bells.  Ms Wang said Mr Wu has a lot of falls. 

20. Ms Wang said Mr Wu has very few friends.  She said that, even though his hearing condition is stable and they have explained his condition to them, people are not comfortable with it and have stopped being friends.  She said that Mr Wu is upset about this.

21. In regard to Mr Wu’s depression Ms Wang said that his condition is stable with his medication but there is not a single day that he feels happy.  She said he gets irritated and has even cut his clothes with scissors. 

22. In regard to other conditions Ms Wang said that Mr Wu is always tired.  He has lung problems and has bleeding when he goes to the toilet.  His colon has been recently investigated.            

23. Ms Bramley asked how often Mr Wu fell.  Ms Wang said it was hard to tell as sometimes it was worse than other times.  She said his last fall before that on the morning of the hearing was 10 or more days previously.  His falls are now more frequent than before.

    TRIBUNAL CONSIDERATIONS

24. The Respondent concedes that at 21 May 2015 Mr Wu had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:

    1.Hearing loss;

    2.Hepatitis B; and

    3.Tuberculosis / calcification.

25. I am satisfied that the medical evidence supports this concession and I find accordingly.

26. I must now determine whether Mr Wu’s impairments attract an impairment rating of 20 points or more under the Impairment Tables, according to section 94(1)(b) of the Act.

27. 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 the impairment is likely 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 stabilised.

28. I will consider each condition in turn.

    Hearing Loss

29. The Respondent accepts that at the relevant date Mr Wu’s hearing loss had been diagnosed by an appropriately qualified medical practitioner with supporting evidence from a specialist.  I note the report of Dr Chiang dated 18 February 2015 (T-Documents page 40) which records a diagnosed condition of profound hearing loss confirmed by a specialist GP.  There are numerous reports of audiological investigations including that of Dr Salter dated 5 October 2015 (Exhibit A1).  All reports support the diagnosis of the condition of profound hearing loss.

30. I am satisfied that the condition has been fully diagnosed. 

31. In his report dated 18 February 2015 (T-Documents page 42) Dr Chiang describes the current treatment of the condition as conservative and states that the impact of the condition is expected to persist for more than five years.  Although Mr Wu has more recently been referred for investigation regarding cochlear ear implants there were no such referrals extant at the relevant date.  I accept that at the relevant date Mr Wu’s condition was fully treated and stabilised.  Accordingly I am able to assign an impairment rating from the Impairment Tables. 

32. The relevant table is Table 11 – Hearing and other Functions of the Ear. 

33. The Respondent concedes that Mr Wu’s condition attracts a rating of 10 points.  In her oral submissions Ms Bramley submitted that the medical evidence supported a rating of 10 points but not a rating of 20 points. 

34. In his submissions Mr Wu disagreed with the assessment of 10 points.  He submitted that the assessment was not reasonable, that it had been made by administrative personnel and was not in accordance with the assessments of the medical specialists. 

35. I am satisfied that the medical evidence supports an impairment rating of 10 points.  I must now consider whether I can assign the next higher rating of 20 points.

36. For a rating of 20 points Table 11 requires there to be a severe functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device or technology or sign language interpreting.  The descriptors in the table are:

    1The person:

    (a)Has severe difficulty hearing any conversation even at raised volume in a room with no background noise (that is, is unable to hear someone speaking to them in a loud voice, or is not able to hear someone shouting a warning (e.g. ‘Look out!’); and

    (b)Is unable to hear sounds needed for personal or workplace safety (e.g. a smoke alarm, fire evacuation siren, or car or truck horn); and

    (c)Is reliant on captions to follow a television program or movie; and

    (d)Needs to use a captioned telephone; and

    (e)Is completely reliant in all situations on a recognised sign language (e.g. Auslan), lip reading other non-verbal communication method (E.g. note taking) to converse with others; or

    2The person has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold on to a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).

37. In considering the evidence I note the Introduction to Table 11 which provides that self-report of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment.  The examples given of corroborating evidence are reports from medical practitioners and the results of audiological assessments undertaken by medical specialists. 

38. The corroborated evidence relevant to Mr Wu’s condition on 21 May 2015 is contained in the following reports:

    ·Dr Chiang dated 18 February 2015 (T-Documents page 41) which records severe hearing loss and balance problems;

    ·Health Professional Advisory Unit (HPAU) dated 8 April 2015 (T-Documents page 60) which records:

    oIn a discussion with Dr Chiang on 01/04/15 he stated that the customer has tried hearing aids, but found them difficult to wear due to recurrent discharge from the ears.  He stated he generally has to raise his voice when communication with the customer whose wife attend consultations and assists with communication. 

    ·Job Capacity Assessment (JCA) Report dated 8 April 2015 (T-Documents pages 62 to 64) which records:

    oClient reported that he consults an ENT specialist once every few months to obtain a prescription for ear drops and to check his hearing and balance … ;

    oThe client was able to converse with Mandarin interpreter without having the interpreter repeat any questions, he was able to converse with interpreter over the phone and in a face to face situation with limited background noise.  He stated that he has good hearing in his left ear and no hearing in his right ear.  He stated that he can hear a fire alarm or a smoke alarm indoors however may not hear it if it was outside the house.  He stated that he can hear a truck horn if it was close by, and can hear well over the phone better than face to face.  He does not rely on Auslan interpreter … he does not need to use a telephone with a T-switch and he is not reliant on lip-reading or sign language.

39. I note the report of Dr Chiang that Mr Wu has a severe hearing loss.  I accept that the description severe relates to the extent of Mr Wu’s hearing loss however I find no evidence that the descriptor relates to the impact of the condition on Mr Wu’s ability to function. 

40. There is no corroborated evidence that Mr Wu is unable to hear someone speaking to them (him) in a loud voice, or is not able to hear someone shouting a warning (descriptor (1)(a)).  The evidence of the JCA is that Mr Wu was able to converse with the interpreter both over the telephone and in a face to face situation with limited background noise. 

41. Mr Wu is recorded by the JCA as being able to hear indoor fire and smoke alarms and truck horns close by.  I do not accept that Mr Wu meets the requirements of descriptor (1)(b).

42. Mr Wu has presented no evidence that he is reliant on captions to follow a television program or movie (descriptor (1)(c)), that he needs to use a captioned telephone (descriptor (1)(d)), or is reliant on lip reading or sign language (descriptor (1)(d).  The JCA report records that Mr Wu does not meet these requirements. 

43. The only medical evidence in regard to descriptor (2) regarding balance is the report by Dr Chiang which records that Mr Wu has balance problems.  The evidence of Mr Wu and Ms Wang is that Mr Wu falls due to balance problems on about three occasions per month or about 10 day intervals.  Mr Wu’s own evidence was that he can stand without holding on to something although not for long.

44. I am not satisfied that there is evidence sufficient to satisfy the requirements of descriptor (2).

45. I find that Mr Wu does not satisfy the requirements for an impairment rating of 20 points from Table 11.  Accordingly I find that the correct rating for Mr Wu’s hearing condition is 10 points.

    Hepatitis B and Tuberculosis

46. The Respondent contends there is no evidence to suggest either of these conditions has an impact on Mr Wu’s functional capacity.  In her submissions Ms Bramley contended the medical evidence was that the conditions were well controlled and had minimal impact on Mr Wu’s ability to function.  Mr Wu made no submissions regarding these conditions.

47. The report of the HPAU provided a useful summary of the available medical evidence as follows:

    Chronic Active Hepatitis B is noted in an earlier medical report completed by Dr Chiang (15/09/97).  Clinical features at the time were noted to be lethargy and inability to carry out normal (work) duties.  The diagnosis is confirmed in specialist reports (Dr Iser, gastroenterology, 07/05/04; 19/03/04; 20/02/04), which indicated the customer was a patient at St Vincent’s Hospital Liver Clinic at that time.  Dr Iser noted a family history of hepatoma.  The customer was noted to be a long term Hepatitis B carrier, with no chronic inflammation or overt symptoms, other than some weight loss.  Dr Iser’s initial report also confirmed that the customer reported he had been previously treated for tuberculosis in China as a child. Dr Iser indicated that there were no signs of chronic liver disease at that time.  …

    In a discussion with GP Dr Chiang on 01/04/15 he stated there were no more recent specialist reports, suggesting that the customer may not have ongoing follow up or recent specialist review.  It is reasonable to conclude that the customer may have remained asymptomatic. …

    With no recent medical evidence regarding the current status, treatment or functional impacts of the condition, however, this opinion suggests that this condition may be considered fully diagnosed but not fully treated and stabilized.  Similarly regarding a reported past history of tuberculosis, there is no past or current medical evidence available to verify this or any other respiratory diagnosis.

48. From the medical evidence relating to the relevant date I am satisfied that the conditions of Hepatitis B and Tuberculosis are fully diagnosed but not fully treated and stabilised and I find accordingly.  As a result the conditions are not permanent in the relevant terms of the Act and I am unable to assign an impairment rating to these conditions.

    Mental Health Condition

49. Ms Wang gave evidence of Mr Wu’s mental health condition.  However her evidence was that Mr Wu first sought psychological help for the condition after he was informed that his DSP payments were cancelled.  This condition was clearly not diagnosed at the relevant date and I find accordingly.  As the condition was not diagnosed at the relevant date I am not able to assign an impairment rating.

    Total Impairment Rating

50. For Mr Wu’s conditions at the relevant date I have found the following:

    (a)Hearing loss – 10 impairment points under Table 11;

    (b)Hepatitis B – not fully treated and stabilized, unable to assign a rating;

    (c)Tuberculosis – not fully treated and stabilized unable to assign a rating; and

    (d)Mental health condition – not fully diagnosed, unable to assign a rating.

1. The total impairment rating at the relevant date is 10 impairment points.

   CONCLUSION

2. The total impairment rating at the relevant date 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.  Mr Wu does not satisfy the requirements of section 94(1)(b) of the Act.  As a result, he 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.

3. The result is that at the relevant date Mr Wu was not qualified to receive DSP.  As a result the decision to cancel his DSP payments was correct and I find accordingly.

   DECISION

4. I affirm the reviewable decision.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member

.......................[sgd].................................................

Associate

Dated   8 April 2016

Date(s) of hearing	18 March 2016
Applicant	In person
Advocate for the Respondent	Ms Ailsa Bramley, solicitor