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

[2020] AATA 3750

Wylie and Secretary, Department of Social Services (Social services second review) [2020] AATA 3750 (25 September 2020)

Division:GENERAL DIVISION

File Number(s):      2019/6023

Re:Andrea Lisa Wylie

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:25 September 2020

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – eligibility – physical and psychological impairments – whether impairments fully diagnosed, treated or stabilised – whether impairments attract 20 or more points – impairment tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Dr I Alexander, Senior Member

25 September 2020

BACKGROUND

1. On 15 May 2018 Ms Wylie, who was 54 years old at the time and is now 56 years old, lodged a claim for Disability Support Pension (DSP).

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not assessed at 20 points or more under the Impairment Tables.

3. In a decision dated 30 August 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found that Ms Wylie “does not meet the criteria in paragraph 94(1)(b) of the Act as she is not able to be awarded a total of 20 impairment points for her many medical problems during the relevant period”.

4. In these proceedings Ms Wylie, who is self-represented, seeks review of the decision of the AAT1.

5. In view of the temporary changes with regard to the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, both parties attended the hearing by telephone.

   ISSUES

6. In order to qualify for the DSP, a person must satisfy the requirements of section 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the Administration Act). That is, Ms Wylie must satisfy the requirements between 15 May 2018 and 14 August 2018 (the qualification period).

7. Section 94(1) of the Act provides that a person is qualified for DSP 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) …

   (i) the person has a continuing inability to work;

   (ii) …

   (d) the person has turned 16; and… 

   …

8. There is no dispute that Ms Wylie suffered several medical conditions during the qualification that caused some functional impairment and, therefore, she satisfied paragraph 94(1)(a) of the Act.

9. For present purposes the relevant medical conditions include a rectum disorder, degenerative spine disease, mental health symptoms, a diverticular disorder and impaired vision.

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

11. For the purposes of paragraph 6(3)(a), a condition is “permanent” if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than two years (paragraph 6(4)(d)).

12. The introduction to each relevant Table requires that “there must be corroborating evidence of the person’s impairment” and that “self-report of symptoms alone is insufficient” [emphasis added].

13. Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the 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)”.

14. The Respondent contends that during the qualification period Ms Wylie had a total rating of 15 points under the Impairment Tables with 5 points under Table 4, 5 points under Table 10 and 5 points under Table 13. Therefore, she did not satisfy section 94(1)(b) of the Act.

15. The Respondent also contends that, during the qualification period, Ms Wylie could not satisfy section 94(1)(c) of the Act as she did not have a continuing inability to work because she had not actively participated in a program of support (POS) as required by paragraph 94(2)(aa) of the Act.

16. Paragraph 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a POS within the meaning of subsection (3C)”.

17. Subsection 94(3B) of the Act provides that a person’s impairment is 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.

18. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.

19. It is agreed that, prior to the date of claim, Ms Wylie had been enrolled in a POS but had not actively participated for at least 18 months in a POS prior to the date of claim.

20. It follows that the determinative issue in this matter is whether, during the qualification period, Ms Wylie suffered a severe impairment, that is, an impairment of 20 points or more under a single Impairment Table and, if so, whether she had a continuing inability to work.

    Rectum condition  

21. The Respondent contends and the Tribunal accepts that, during the qualification period, Ms Wylie’s rectum condition was permanent for the purposes of the Impairment Determination.

22. I am satisfied that the available evidence supports a conclusion that during the qualification period, Ms Wylie suffered a mild functional impact on maintaining continence of the bowel and that a rating of 5 points under Impairment Table 13 can be assigned.

    Spine Condition

23. It is agreed that Ms Wylie suffers cervical and lumbar spine degenerative disease.

24. The Respondent contends and the Tribunal agrees that, during the qualification period, Ms Wylie’s lumbar spine condition was not permanent for the purpose of the Impairment Determination.

25. At the hearing Ms Wylie told the Tribunal that, currently, her most significant problem was impaired mobility because of severe lower back pain. She said that her back symptoms had becomes worse since late 2019.

26. With respect to Ms Wylie’s cervical spine condition the Respondent contends that during the qualification period the condition was not fully treated and fully stabilised.

27. On consideration of the available evidence, which is somewhat limited, I am satisfied that, during the qualification period, the cervical spine condition can be considered to have been permanent for the purposes of the Impairment Determination

28. Furthermore, I am satisfied that there is sufficient evidence to support a conclusion that, during the qualification period, Ms Wylie suffered at least a mild functional impact on activities involving spinal function, and, therefore a rating of 5 points under Impairment Table 4 can be assigned.

    Diverticular disorder

29. A CT scan of the abdomen and pelvis performed on 2 June 2015 is reported as showing “Uncomplicated colonic diverticulosis” and that there were “no CT features to suggest diverticulitis”. 

30. At the hearing when asked about this condition Ms Wylie appeared to be unaware of the condition and attributed her intermittent abdominal pain to her rectum condition.

31. In my view, there is insufficient evidence before the Tribunal to allow for any meaningful assessment of this condition for the purposes of the Impairment Determination.

    Mental Health

32. In a letter dated 29 June 2017 Ms Parmar, clinical psychologist stated, inter alia, as follows:

    Thank you for referring this patient to me, I have seen Lisa for various difficulties including depression, anxiety and agoraphobia over the course of a few months. Lisa has progressed well with using stress management skills and cbt for her anxiety. She no longer suffers with agoraphobia… Lisa’s symptoms may vary on daily basis and continue to affect her, however, she is not falling into the criteria of any psychological disorder at this stage… [emphasis added]

33. At the hearing Ms Wylie confirmed that she had not been seen by a clinical psychologist or psychiatrist since June 2017.

34. In a letter dated 22 November 2018 Mr Lamarque, registered psychologist,[1] stated that he had seen Ms Wylie on a number of occasions and noted that she was “still experiencing difficulties in managing stressful situation[s]”. However, he provided no formal diagnosis.

    [1] Mr Lamarque is not endorsed as a clinical psychologist

35. On the available evidence I am satisfied that, during the qualification period, Ms Wylie’s mental health symptoms could not be considered to have been permanent for the purposes of the Impairment Determination and, therefore, a rating under the impairment tables cannot be assigned.

    Vision

36. In a letter dated 4 September 2018, Dr Kwon, eye physician and surgeon, stated inter alia as follows:

    Thank you for referring Mrs Wylie. She has been experiencing watering of both eyes. This has been present for the past one to two months. She has also noted a reduction in her right vision

    Her visual acuity is 6/12 in the right eye and 6/9 in the left eye. 

    Her epiphora is due to a bilateral allergic conjunctivitis associated with her hay fever. She has bilateral cataracts which do not require surgery at the moment… There is no obvious cause for her reduced vision apart from the cataracts. I have therefore suggested, for the first line of investigation, an OCT scan of the macular.

37. At the hearing, Ms Wylie told the Tribunal that her vision had continued to deteriorate over the last 12 months. She said that there had been no further investigations since September 2018 but her optometrist has recently referred her to Westmead Hospital Eye Clinic.

38. In my view the available evidence clearly demonstrates that, during the qualification period, the cause of Ms Wylie’s visual impairment was not fully diagnosed, treated and stabilised and, therefore, a rating under the Impairment Tables cannot be assigned

    CONCLUSION

39. For the reasons set out above I am satisfied that, during the qualification period, Ms Wylie had a total rating of 10 points under the Impairment Tables, with 5 points under Table 4 and 5 points under Table 13.

40. As Ms Wylie did not have an Impairment of 20 points or more under the Impairment Tables she did not satisfy section 94(1)(b) of the Act.

41. As Ms Wylie did not satisfy section 94(1)(b) of the Act during the qualification period, it is not necessary to consider whether she had a continuing inability to work.

    DECISION

42. For the reasons set out above, the Tribunal is satisfied that, during the qualification period, Ms Wylie did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

43. The decision under review is affirmed.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

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

Associate

Dated: 25 September 2020

Date(s) of hearing:	14 September 2020
Applicant:	By telephone
Solicitors for the Respondent:	Ms E Ulrick, Services Australia