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

[2021] AATA 3065

Young and Secretary, Department of Social Services (Social services second review) [2021] AATA 3065 (27 August 2021)

Division:GENERAL DIVISION

File Number:          2020/2823

Re:Erin Young

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member S Barton

Date:27 August 2021

Place:Perth

The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 23 April 2020, is affirmed.

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Member S Barton

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – assigning impairment ratings – whether the Applicant suffers from permanent impairments that attract 20 points or more under the Impairment Tables – Impairment Table 4 – Spinal Function – back pain – Applicant found not to meet eligibility requirements – Reviewable Decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 23(1), 26(1), 94(1), 94(1)(a), 94(1)(b), 94(1)(c)

Social Security (Administration) Act 1999 (Cth) – ss 80(1), 179

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5, 6(1), 6(5), 6(6), 10

CASES

Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1

Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SECONDARY MATERIALS

Department of Education, ‘Home Education’, Registration (Web Page, 22 December 2015) < FOR DECISION

Member S Barton

27 August 2021

BACKGROUND

1. This is a review of a decision made by the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal), dated 23 April 2020 (Reviewable Decision) that affirmed a decision to reject the Applicant’s claim for a disability support pension (DSP).

   FACTS

2. Ms Erin Young (the Applicant) is 39 years of age and lives with her teenage daughter, whom she home schools. In April 2015, the Applicant suffered an injury to her back during a workplace incident, resulting in chronic pain, exacerbated by a second injury in 2016 (Back Condition).

3. On 5 June 2019, the Applicant lodged a claim for a DSP with Services Australia (Centrelink) (T19/120).

4. On 29 August 2019, Centrelink rejected the Applicant’s claim for a DSP noting that she had failed to respond to correspondence (Original Decision). The Applicant sought review of the decision by an Authorised Review Officer (ARO) and provided further medical evidence (T26/135).

5. On 5 March 2020, an ARO affirmed the Original Decision (ARO Decision), determining that the Applicant’s conditions could not be assigned an impairment rating of at least 20 points under the Impairment Tables, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (T41/172) (Impairment Tables).

6. On 17 March 2020, the Applicant applied for review of the ARO Decision to the AAT1 (T43/180). On 23 April 2020, the AAT1 affirmed the ARO Decision, finding the Applicant’s Back Condition to be permanent with an impairment rating of 10 points under the relevant Impairment Table, being Table 4 – Spinal Function (T3/8–13) (AAT1 Decision).

7. On 11 May 2020, the Applicant applied for a review of the AAT1 Decision in the General Division of the Tribunal (AAT2) (T2/6-7).

   JURISDICTION

8. The application for review was made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth) (the AdministrationAct). Therefore, the Tribunal is satisfied that it has jurisdiction to review the Reviewable Decision.

   MATERIAL BEFORE THE TRIBUNAL

9. The application was heard on Wednesday 23 June 2021. The Applicant was

   
   

   self-represented, gave oral evidence and was cross-examined. The Respondent was represented by Mr A Quanchi, who appeared by telephone.

10. The Tribunal admitted the following documents into evidence at the hearing:

    (a)Section 37 documents (T-documents) numbered T1 to T50, comprising 229 pages (Exhibit R1);

    (b)Respondent’s Statement of Issues, Facts and Contentions, dated 18 September 2020 (Exhibit R2);

    (c)Correspondence between the Applicant and Tribunal, with attachments, dated 11 August 2020 (Exhibit A1);

    (d)Application for Second Review of the Decision, dated 11 May 2020 (Exhibit A2);

    (e)Letter from Reynolds Road Seven Day Medical Centre, dated 8 May 2020 (Exhibit A3); and

    (f)AAT1 Decision, dated 23 April 2020 (Exhibit A4).

    ISSUES

11. The issues before the Tribunal are:

    (a)whether the Applicant had a physical, intellectual or psychiatric impairment or impairments for the purpose of s 94(1)(a) of the Social Security Act 1991 (Cth) (the Act);

    (b)if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of at least 20 points under the relevant Impairment Tables; and

    (c)whether the Applicant had “a continuing inability to work” for the purposes of s 94(1)(c) of the Act.

    LEGISLATION

12. The legislation applicable to this matter is contained in:

    (a)the Act;

    (b)the Administration Act; and

    (c)the Impairment Tables.

    Qualification for DSP

13. The qualification requirements for a DSP are set out in s 94(1) of the Act:

    (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;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; …

14. The criteria contained within s 94(1) of the Act are conjunctive, meaning for a DSP application to be successful, an applicant must satisfy each sub-section.

    Impairment tables

15. Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.

16. Section 26 of the Act states:

    Impairment Tables

    (1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.

    (2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.

    Rules for applying Impairment Tables

    (3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).

    (4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.

17. The Minister has determined tables as contemplated by s 26 of the Act in the form of the Impairment Tables. The Impairment Tables also set out rules as to how to apply the Impairment Tables.

18. The purpose and general design principles of the Impairment Tables are set out in s 5 and describe the functional impacts associated with certain types of conditions, and assigns ratings to determine the level of functional impact of the impairment on an applicant.

19. “Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.

20. Section 6(1) of the Impairment Tables states that “[t]he impairment of the person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do …” (emphasis added). An impairment rating can only be assigned if the condition is permanent (s 6(3) of the Impairment Tables).

21. With regard to the permanency of conditions, ss 6(4), 6(5) and 6(6) state:

    Permanency of conditions

    (4)For the purposes of paragraph 6(3)(a) a condition is permanent if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and …

    (c)the condition has been fully stabilised; and …

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    (Notes omitted.)

    Fully diagnosed and fully treated

    (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (e)whether there is corroborating evidence of the condition; and

    (f)what treatment or rehabilitation has occurred in relation to the condition; and

    (g)whether treatment is continuing or is planned in the next 2 years.

    Fully stabilised

    (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (h)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (i)the person has not undertaken reasonable treatment for the condition and:

    (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

22. Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when assessing impairments. It is first necessary to identify the loss of function, for example, lower limb function or upper limb function, refer to the Impairment Tables related to that function and then to identify the correct impairment rating.

    Qualification Period

23. Section 80(1) of the Administration Act provides that where the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.

24. The qualifying period for assessing whether or not a person is qualified for a payment has been the subject of a number of decisions in both the Federal Court and the High Court. In Freeman v Secretary, Department of Social Security (1988) 15 ALD 671, the Court found, 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 to 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 s19.

25. Referring to this decision, in Shi v Migration Agents Registration Authority (2008) 25 CLR 286, the High Court found, at [144]:

    In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account…

    The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision.

    (Footnotes removed.)

26. The effect of these decisions is described by Deputy President Forgie in Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066, at [48]:

    Applying these principles to the decision I am required to review, it seems to me that the inherent nature of the decision and the statutory context in which it is made confine me to evidence that relates to Mr Baum’s condition, impairment and work capacity during that 13 week period. That does not mean that all of the evidence in the form of reports, assessments or records had to be generated in that period. What it means is that they must relate to that period.

27. Following these established precedents, the Tribunal is restricted in its consideration of the Applicant’s condition at the date of her claim, or within 13 weeks of that claim, which provides the Tribunal with a qualification period of 5 June 2019 to 4 September 2019 (Qualification Period). Following the practice in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [31], cited with approval in Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, medical reports generated after a qualification period must be relevant to that period.

28. More than two years have lapsed since the conclusion of the Qualification Period. Since then, the Applicant’s condition may have deteriorated to such an extent that she is now eligible for a DSP. However, this is not relevant to the consideration of the current application.

29. The challenge for the Tribunal, in limiting its consideration to the Qualification Period, is to ensure that it is not considering the Applicant’s condition as it might have later become, but as it was during the Qualification Period. It should also be noted that an Applicant’s recollection of their condition may become less precise and accurate over time, which may present added difficulties when considering their relative impairment during the Qualification Period.

    DOES THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?

30. As detailed above, the Applicant injured her back in incidents at her workplace in April 2015 and approximately a year later in 2016, and has suffered chronic pain since (A4/4, T8/105, T10/107, T13/110, T14/111).

31. Relevantly, the Tribunal notes the advice of anaesthetist and pain management specialist, Dr Roger Tan, on 12 October 2018, who found that the Applicant was suffering from “significant pain over the same region and in the same nature”, having reviewed her eight months earlier (T13/110). Dr Tan stated that, as he had previously advised, there was no interventional pain surgeries recommended at that point. While recommending she continue seeing a clinical psychologist, Dr Tan stated that the Applicant was “looking for a cure for her pain which I [Dr Tan] have told her is not possible. This pain will likely improve over a period of 12 months but I [sic] would be difficult to predict a possible resolution of pain at this stage” (T13/110).  

32. On 8 May 2020, the Applicant’s general practitioner advised that there were no further treatments available to her, except ongoing long-term analgesia and exercise at home (T46/184).

33. The Tribunal accepts that, for the purpose of s 94(1)(a) of the Act, the Applicant suffered from a physical impairment, being her Back Condition. The Tribunal accepts that the condition has been fully diagnosed, fully treated, fully stabilised and, on the basis of the available evidence, likely to persist for more than two years. The Tribunal notes this is not disputed by the Respondent, who accepts that the Applicant meets the criteria of s 94(1)(a) (R2/7).

34. The Applicant treats her condition with a medication regime and has also been offered various home exercise activities.

    IMPAIRMENT RATING

35. Having satisfied s 94(1) of the Act, it is necessary to determine whether this impairment attracts an impairment rating of 20 points or more under the Impairment Tables. The Respondent contends that the functional impact arising from the Applicant’s condition should be assessed under Table Four – Spinal Function (Table Four). The Tribunal agrees that this is the most appropriate table.

36. Table Four is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving the back, trunk or neck. An impairment rating of 20 is assigned when there is a severe functional impact on activities involving spinal function and the person is unable to do at least one of the following:

    (a)perform any overhead activity; or

    (b)turn their head, or bend their neck without moving their trunk; or

    (c)bend forward to pick up a light object from a desk or table; or

    (d)remain seated for at least 10 minutes.

37. There is a moderate functional impact when a 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; or

    (b)the person has difficulty moving their head to look in all directions; 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.

38. In the Applicant’s Job Capacity Assessment Report (JCA Report), submitted on 7 February 2020, the assessor examined the Applicant’s impairment against Impairment Table Four, ascribing a moderate functional impact on her activities with 10 impairment points (T36/160–6).

39. The Assessor, a physiotherapist, observed that (T36/161):

    … [the Applicant] was able to bend past knee level in standing a few times; she was also able to rotate her trunk with some restrictions and difficulty. [The Applicant] had difficulty with sustained trunk extension. Assessor also observed [the Applicant] to be pacing in a hunched position throughout the appointment, and she was able to gradually straighten up overtime - [the Applicant] stated her pain was aggravated with being stuck in heavy traffic before coming … she reported she normally drives her daughter to school, which is around 20min each way (40min return with no break); she stated she manages this whilst using medications. [The Applicant] reported she tidies the house, takes the laundry down and can do light tasks. Her pain levels fluctuate. She also shops, but does small shops and try to do it within an hour. She reported her daughter assists with this.

40. The Assessor found that the Applicant was able to sit in a car for 30 minutes and was unable to sustain overhead activities, concluding there was a moderate functional impact and it attracted a rating of 10 points (T36/162–3).

41. In the AAT1, the Applicant gave evidence that she relied heavily on Tramadol tablets to function during the day (A4/4). It also noted she could drive a car and manage a journey of up to 30 minutes and managed some domestic tasks and shopping with help from her daughter. She also tried to walk her dog for 10 to 15 minutes each day.

42. However, during the AAT2 hearing, the Applicant provided evidence to the Tribunal that her chronic back pain restricted her activities beyond that identified by the JCA Report and what was recorded in the AAT1. During the hearing the Applicant was asked about her daily routine and she provided the following evidence (transcript/15–6):

    MEMBER: So what did the average day look like for you during that period? What time would you wake up?  

    APPLICANT:   I didn’t really sleep. You don’t sleep much. So I was up and down all night. It wasn’t really – (indistinct) time I could get up because I was up and down.  But honestly, my days were just trying to push through it. That was my days. And trying not to give up on my daughter.

    MEMBER: So did you have a routine that you adhered to, to help you push through it?  

    APPLICANT:   No, it was just – I had my normal meds in the morning, I’d take them at about 7:00, 7:30.

    MEMBER:      Yes?  

    APPLICANT:   Then it would just be painkillers throughout the day. There was not much I could do.

    MEMBER: So what – you’d wake up, you’d obviously have a restless and sleepless night and then you’d get up around 7:30 you said and you’d take your medication.  What would you do after that?  

    APPLICANT:   I’d just make a coffee, put my heat bag on and go back to bed.

    MEMBER:      Okay?  

    APPLICANT:   Wake my daughter up at about 8 o’clock so she’s got to get up and get dressed. Such is life.

    MEMBER:      She would make herself breakfast?  

    APPLICANT:   Yes.

    MEMBER:      Then she would depart for school no doubt?  

    APPLICANT:   Some days. That’s why I home schooled her last year to help with the pain and because she missed so much. She was so far behind.

    MEMBER: Okay. So she would go off to school. What would you do then if she went off to school?  

    APPLICANT:   Probably take pain killers most of the time and try and get to sleep or cry myself to sleep.  Either or … 

    MEMBER: … did you have lunch generally? Would you make yourself some lunch?  

    APPLICANT:   No, not really.

    MEMBER: Okay. So you were essentially existing for, you know, you said you’d have a coffee in the morning. You wouldn’t have lunch. What would happen around dinner time?  

    APPLICANT:   We’d just put stuff in the oven and then [her daughter] would take it out and have her dinner and that was about it. It was mainly oven food.

1. The Applicant also stated during the hearing, that she was only able to drive for 20 minutes on her medication or she would have to stop because she would fall asleep (transcript/13). When asked by the Respondent’s representative about daily chores around the house, the Applicant stated that (transcript/12):

   I couldn’t really do anything. There wasn’t much I could do at all actually. I could try and fold the washing but I had to stop because my back would hurt but I wouldn’t put away, I’d leave it on the coffee table for [her daughter] to do it.

2. When asked about walking her dog during the AAT2 hearing, the Applicant revised her response to the AAT1, replying “I think I tried it a couple of times and I stopped because he’d pull on my arm. So not very well. We got about – not even five minutes down the road” (transcript/15).

3. The Tribunal is presented with conflicting evidence. The JCA Report, made four months before the Qualification Period, assigned an impairment rating of 10 points, an assessment confirmed by the AAT1 based on the evidence before it. More recently in her evidence at the AAT2 hearing, the Applicant has described her condition as more consistent with that of a severe impairment, which would attract an impairment rating of 20 points. However, there is no medical evidence before the Tribunal that would support that assessment during the Qualification Period. The Tribunal is also mindful of other material before it that helps build an understanding of the Applicant’s relative impairment during the Qualification Period.

4. During the relevant Qualification Period, the Applicant resided in the suburb of [suburb redacted] (T17/116). The Applicant provided a number of bank transaction statements from within the Qualification Period, notably between 5 June 2019 and 22 July 2019 (T30/148–54). These statements show numerous visits, almost daily, to shops in the neighbouring suburb of [suburb redacted], and also trips to destinations that would take anywhere from 10 to 15 minutes to over 30 minutes by vehicle. These statements also show her credit card was used in June 2019 and July 2019 in [suburb redacted], [suburb redacted], [suburb redacted], [suburb redacted], [suburb redacted], [suburb redacted], [suburb redacted], [suburb redacted], [suburb redacted], [suburb redacted] and [suburb redacted].

5. The transactions suggest that during the period of 5 June 2019 to 22 July 2019, the Applicant made at least 21 visits to [suburb redacted], five to [suburb redacted], five to [suburb redacted], three to [suburb redacted], three to [suburb redacted], two to [suburb redacted], two to [suburb redacted], two to [suburb redacted], one to [suburb redacted], one to [suburb redacted], one to [suburb redacted] and one to the [destination redacted]. 

6. These bank statements suggest that the Applicant was able to travel in a car anywhere from 15 minutes to over 30 minutes, visit various retail outlets, and presumably return home, sitting in a car for another 15 to 30 minutes. The pattern of life suggested by the transactions in June 2019 and July 2019 is inconsistent with the evidence the Applicant provided to the Tribunal.    

7. The Applicant also advised that she home schooled her daughter from 2020 (transcript/13). In Western Australia, the Department of Education provides for moderators to visit home schooled children and monitor the educational program provided to each child (Department of Education, 2015). Although the Qualification Period under consideration is June 2019 to September 2019, there is no suggestion that the Applicant’s condition has improved since that time. As such, given the daily routine described by the Applicant in her evidence to the Tribunal, it seems curious that the Applicant would be able to provide an educational program to her daughter, who would have been in Year 9 in 2020, to the satisfaction of the local authorities, if she were effectively bed ridden during that period.

8. The available evidence from the JCA Report and various medical reports, coupled with the evidence provided to the AAT1 and the pattern of life demonstrated by the transaction statements, do not support a conclusion that the Applicant’s Back Condition could be assigned an impairment rating of 20 points. Put simply, there is no evidence before the Tribunal to suggest that the Applicant’s impairment attracted an impairment rating of more than 10 points during the Qualification Period.

9. During the Qualification Period the Applicant was surely suffering from chronic pain, disrupting her quality of life, but it is not open to the Tribunal to conclude that this had any more than a moderate functional impact according to the relevant Impairment Table.  

10. It should be noted that the Applicant’s condition may have deteriorated, in which case it is open to her to re-apply for a DSP.  

    CONCLUSION

11. The Tribunal finds that the Applicant suffered from an impairment during the Qualification Period, being the Back Condition, and that the Back Condition was fully diagnosed, treated and stabilised. However, the Applicant’s Back Condition only attracts an impairment rating of 10 points under Table 4 of the Impairment Tables. Therefore, the Applicant does not meet the eligibility requirements for a DSP during the Qualification Period. 

12. As the Applicant’s Back Condition does not attract an impairment rating of 20 points or more, it is not necessary for the Tribunal to consider whether the Applicant had a continuing inability to work under s 94(1)(c) of the Act.

    DECISION

13. The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, dated 23 April 2020, is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

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Associate

Dated: 27 August 2021

Date of hearing:	23 June 2021
Applicant:	Self-represented by telephone
Counsel for the Respondent:	Mr A Quanchi
Solicitors for the Respondent:	Services Australia