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

[2020] AATA 151

Zeibak and Secretary, Department of Social Services (Social services second review) [2020] AATA 151 (12 February 2020)

Division:GENERAL DIVISION

File Number:          2019/0036

Re:Georges Zeibak

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Member R West

Date:12 February 2020

Place:Melbourne

The Tribunal affirms the decision under review.

...........[sgd]...............................................
Member R West

Catchwords

SOCIAL SECURITY – disability support pension – Cervical Myelopathy – Obstructive Sleep Apnoea – whether conditions fully treated and stabilised in the qualification period –  whether impairments attract rating of 20 points or more under impairment tables – program of support not undertaken – whether applicant has a severe impairment – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133[2014] AATA 447

Negri v Secretary, Department of Social Services [2016] FCA 879

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 DECSION

Member R West

12 February 2020

BACKGROUND

1. This matter concerns a review of the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 6 December 2018 affirming the decision of an authorised review officer dated 24 September 2018 to refuse the Applicant’s claim for the Disability Support Pension (DSP) (Second Tier Review).

2. The relevant history of the matter is as follows:

   ·The Applicant made his original application for DSP on 16 April 2018.

   ·Centrelink assessed and refused the application on 5 September 2018 (Initial Decision).

   ·

   A Departmental authorised review officer (ARO) affirmed this decision on

   
   

   24 September 2018.

   ·A review of the Initial Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (First Tier Review) and a decision affirming the ARO Decision was handed down on 6 December 2018.

   ·

   The Applicant applied for a Second Tier Review of the Initial Decision on

   
   

   2 January 2019.

3. A hearing in relation to the Second Tier Review was held on 9 and 10 October 2019.  The Applicant was represented by Ms Sheeana Dhanji of counsel.  The Respondent was represented by Mr Nam Nguyen, a solicitor.

   LEGISLATION

4. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Social Security Act 1991 (the Act);

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

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (the Rules): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014; and

   ·Administrative Appeals Tribunal Act 1975.

   QUALIFICATION PERIOD

5. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999.

6. In this case the qualification period commenced on 16 April 2018 and ended on

   
   

   16 July 2018.

7. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of deterioration in the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

8. To qualify for a DSP an applicant must satisfy the requirements set out in s 94(1) of the Act as assessed during the qualification period.

9. In essence s 94(1) of the Act requires that:

   ·the Applicant have a physical, intellectual or psychiatric impairment; and

   ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

   ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

   ·the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

10. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.

11. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

12. In conducting the Second Tier Review the Tribunal has had regard to:

    a.the documents produced by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act)( T Documents);

    b.the oral evidence of:

    ·the Applicant;

    ·Ms Emma Kingston, occupational therapist; and

    ·Dr Ameer Abud, general practitioner.

    c.the following additional documents:

    ·     ambulatory sleep study report, dated 8 July 2014 (Exhibit A1);

    ·     statutory declaration of the Applicant (Exhibit A2);

    ·     report of Ms Emma Kingston, dated 28 May 2019 (Exhibit A3);

    ·     medical records, dated 30 July 2019 (Exhibit A4);

    ·     medical notes – 27 pages (Exhibit A5);

    ·     medical report of Dr Ameer Abud, dated 7 July 2019 (Exhibit A6); and

    ·     

    letter from Dr Megan Howden, Respiratory Physician, to Dr Abud, dated

    
    

    30 October 2014 (Exhibit A7).

13. The Applicant’s claim on review related to the following conditions:[3]

    ·Cervical Myelopathy; and

    ·Obstructive Sleep Apnoea.

    [3] The Respondent’s Statement of Facts, Issues and Contentions addressed three additional conditions, namely continence, erectile dysfunction and a psychological condition.  These conditions were not raised in the Applicant’s Statement of Facts, Issues and Contentions, and the Applicant confirmed at the outset of the hearing that his claim related only to Cervical Myelopathy and Obstructive Sleep Apnoea.

14. At the outset of proceedings the Tribunal raised with the parties the fact that Obstructive Sleep Apnoea had not been raised by the Applicant at any of the earlier stages and invited submissions as to the jurisdiction of the Tribunal to hear that aspect of the claim.  Following submissions by the parties, the Tribunal determined that it had jurisdiction to deal with the application as filed.

    Applicant’s submissions

15. The Applicant conceded that the Applicant had not participated in a program of support as defined in s.94(3C) of the Act and accepted that the Applicant’s claim of eligibility depended on the Tribunal being satisfied that he had a severe impairment.

16. The Applicant contended that his Cervical Myelopathy condition was fully diagnosed, treated and stabilised during the qualification period but conceded in his submissions that considered alone, his Cervical Myelopathy did not attract a severe impairment rating of 20 points under a single Impairment Table.

17. The Applicant argued that a severe impairment rating is not defined by or limited to a single condition and that the relevant matter for the Tribunal is whether the evidence demonstrated that there is an impairment that attracts a severe impairment rating of 20 points under the relevant Impairment Table, and in doing so the Tribunal is not restricted to a consideration of the Obstructive Sleep Apnoea condition alone.  The Applicant referred to s.5(2)(d) of the Rules and cited the decision of the Federal Court in Negri v Secretary, Department of Social Services [2016] FCA 879 in support of this submission.

18. The Applicant contended that his Obstructive Sleep Apnoea condition was fully diagnosed, treated and stabilised during the qualification period and that both that condition and his cervical myelopathy caused him fatigue amounting to an impairment that could be assessed under Table 1 of the Impairment Tables.  The Applicant contended that the evidence supported a finding that the appropriate rating for the impairment under Table 1 was a rating of 20 points.

    Respondent’s submissions

19. The Respondent contended that the Applicant’s Cervical Myelopathy was fully diagnosed during the qualification period but that it was not fully stabilised or treated.  In the alternative the Respondent submits that, if the Tribunal accepts that the condition was fully diagnosed, stabilised and treated, it would attract a functional impairment rating of 5 points under Table 2 and 10 points under Table 3 of the Impairment Tables. 

20. The Respondent further argued that, as the Applicant’s Cervical Myelopathy does not attract a severe impairment rating of 20 points under a single Impairment Table, the Applicant’s eligibility for the DSP rests solely on the question whether his Obstructive Sleep Apnoea attracts a severe impairment rating under a single Impairment Table. 

21. The basis of this argument is the Applicant’s admission that he had not actively participated in a program of support within the meaning of s. 94(1)(c)(i) of the Act. Under s. 94(1)(c)(i) eligibility for the DSP requires, relevantly, that the Applicant have a continuing inability for work. Under s.94(2) a person has a continuing inability for work because of an impairment if the person has either a severe impairment or has actively participated in a program of support, as defined in s.94(3C), and meets the other requirements of ss.94(2)(a) and (b).

22. The Respondent contends that the Applicant’s Obstructive Sleep Apnoea was fully diagnosed during the qualification period but was not fully treated and stabilised.  In the alternative the Respondent asserts that if the Tribunal accepts that the Applicant’s Obstructive Sleep Apnoea was fully diagnosed, treated and stabilised, it would attract a functional impairment rating of zero points under Table 1 of the Impairment Tables.

    CONSIDERATION

23. Having reviewed the evidence and considered the submissions of the parties[4] the Tribunal is satisfied that, even if it is accepted that the Applicant’s Cervical Myelopathy was fully diagnosed, treated and stabilised during the qualification period, it would not attract a severe impairment rating under Tables 2 and 3. 

    [4] Subsequent to the hearings on 9 and 10 October 2019 the parties filed written final submissions. 

24. The Tribunal finds that a rating of 5 points under Table 2 – Upper Limb Function is appropriate for the Cervical Myelopathy condition.  The evidence established that, during the qualification period, the Applicant had weakness in his fingers and the whole left arm making it difficult for him to reach objects on the top shelf or use a knife and fork or do up buttons.[5]  Shortly after the qualification period Dr Abud noted that he had limited use of his left hand, could not do up his buttons, use a knife and fork or carry a weight using his left hand.[6]  However there was no evidence that the Applicant had similar difficulties with the use of his right arm and there was no corroborating evidence that the Applicant had difficulty with most of the descriptors set out in Table 2 for a rating of 10 points.

    [5] Report of Dr Sachdev dated 18 June 2018 at T9 on p.60.

    [6] T13 at p. 71.

25. The Tribunal also finds that a rating of 10 points under Table 3 – Lower Limb Function is appropriate for the Cervical Myelopathy condition. Dr Sachdev reported in June 2018 that the condition affected the Applicant’s lower limbs at the knee and ankle and his power was globally reduced on the left side at 4+/5 but normal on the right side.[7]  Dr Abud noted in September 2018 that the Applicant had a left side weakness and that he shuffled and was at risk of falling.[8]  The Applicant gave evidence that during the qualification period he could climb the stairs in his townhouse, albeit cautiously, that he could walk to the local shops using a walking stick, and walk around the supermarket with the use of a stick or support from a shopping trolley.  He said that he could drive his car when he needed to attend appointments.  He said that he was able to use public transport and had caught the train to attend the Tribunal’s hearing.  He said he could do his own laundry and cook his meals.  The evidence did not establish that the Applicant satisfied the criteria for a rating of 20 points on Table 3.

    [7] T9 at p.60

    [8] T13 at p.71

26. As to the Applicant’s Obstructive Sleep Apnoea condition, the Respondent concedes that the condition was fully diagnosed.  This diagnosis was evidenced by the Ambulatory Sleep Study Report of Dr Geoff Williams dated 8 July 2014[9] and confirmed by Dr Abud in his oral evidence.  Accordingly the Tribunal finds that the Applicant’s Obstructive Sleep Apnoea condition was fully diagnosed during the qualification period.

    [9] Exhibit A1

27. Nevertheless, there is a preliminary question whether the Applicant’s Obstructive Sleep Apnoea condition was fully treated and fully stabilised during the qualification period. The Respondent asserts that the Applicant’s condition cannot be regarded as fully treated or fully stabilised during the qualification period because the Applicant had declined to use a CPAP machine[10] as recommended by Dr Williams in 2014[11] and had not pursued other options for treatment.

    [10] Continuous Positive Airways Pressure Machine

    [11] Exhibit A1

28. The Applicant acknowledged that he had been recommended to use the CPAP machine by Dr Williams and gave evidence that shortly after the sleep study (July 2014) he had borrowed a friend’s CPAP machine to try it.[12]  He gave evidence at the hearing that he tried the CPAP machine for a couple of nights but didn’t like it and felt uncomfortable wearing the mask.  He stated that in any event he could not afford to purchase his own CPAP machine.

    [12] Exhibit A2

29. Dr Abud gave evidence that he referred the Applicant to a respiratory specialist at Northern Hospital after he was diagnosed with Sleep Apnoea and the Applicant had attended one appointment but missed two others.  He said that he had recommended that the Applicant address the Sleep Apnoea condition by reducing his weight, giving up smoking and using the CPAP machine at night.  He stated that the Applicant had given up smoking two years earlier but continued vaping which would worsen his Sleep Apnoea.  Dr Abud stated that the Applicant had informed him that he had borrowed a CPAP machine from a friend and had tried it but didn’t like it and refused to use it.  Dr Abud gave evidence that while the use of a CPAP machine would not cure Sleep Apnoea its use would assist in alleviating the effects of it.  Dr Abud also stated that there were other treatment options available including surgery and possible dental treatment.

30. Dr Abud said that he had discussed the use of medication to treat the Applicant’s Sleep Apnoea on many occasions, although he was reluctant to prescribe some medication because it could make the Sleep Apnoea worse.  He said he suggested the Applicant try several different sleeping tablets.  The Applicant gave evidence that he tried three or four different sleeping tablets but did not obtain any relief.  He said that he tried each of them for a couple of nights and if they were not good he would stop using them as he didn’t like taking drugs.

31. Under s.6 of the Rules the Tribunal is required to consider, in relation to the question whether a condition has been fully treated, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years.

32. In the Applicant’s case the only treatment which has occurred in relation to the Applicant’s Sleep Apnoea is a two-night trial of a CPAP machine in 2014 conducted without medical supervision and the brief trial of several forms of medication.  The Applicant did not undertake a proper supervised trial of the CPAP machine, he did not explore possible surgical or dental treatments and he did not fully canvas the options available to address his condition by the use of medication.  The evidence does not show that any treatment is continuing or was planned for the Sleep Apnoea condition in the two years following the qualification period.

33. On this basis the Tribunal is satisfied that the Applicant’s Sleep Apnoea condition was not fully treated during the qualification period.

34. In assessing whether a condition is fully stabilised the Tribunal is required to consider whether the person has undertaken reasonable treatment, as defined in s.6(7) of the Rules.  If the person has undertaken reasonable treatment it is a question whether any further treatment would be unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.  If the person had not undertaken reasonable treatment the question is whether significant functional improvement to a level enabling the person to undertake work in the next two years is not expected even if reasonable treatment is undertaken or there is a medical or other compelling reason not to undertake reasonable treatment.

35. Section 6(7) of the Rules provides that reasonable treatment is treatment that:

    a.is available at a location reasonably accessible to the person;

    b.is at a reasonable cost;

    c.can reliably be expected to result in a substantial improvement in functional capacity;

    d.is regularly undertaken or performed;

    e.has a high success rate; and

    f.carries a low risk to the person.

36. The treatment options available to the Applicant in relation to his Sleep Apnoea include the ongoing use of a CPAP machine, appropriate medication, surgical intervention and dental treatment.

37. There is insufficient evidence presented in this case for the Tribunal to draw any conclusions regarding the reasonableness of the options of surgical intervention or dental treatment.  Both options were raised by Dr Abud in his evidence but there was no evidence regarding their applicability to the Applicant’s condition.

38. The use of a CPAP machine was, however, recommended by both Dr Williams and

    
    

    Dr Abud.   The use of a CPAP machine would meet all of the criteria in s.6(7) of the Rules, save perhaps for the requirement that it involve a reasonable cost.  The Applicant’s evidence was that he could not afford to purchase a CPAP machine.  He presented no evidence to support this assertion.  He did not inform the Tribunal of the likely cost of a CPAP machine or whether options are available to hire the machine rather than purchase it, and if so at what cost.  The Applicant’s financial circumstances were not explained, although the Tribunal notes that the Applicant was in paid employment as a storeman until March 2017 and thereafter was in receipt of the Newstart Allowance. 

1. The Respondent submitted in its written final submissions that the Applicant, as a recipient of the Newstart Allowance is entitled to a Health Care Card and eligible for a yearly payment toward the purchase or hire of essential medical equipment. This was not disputed by the Applicant.

2. The Respondent also provided the Tribunal with a link to a website which advised that a CPAP machine can be hired for $69 per 6 months.  The Applicant challenged the evidence of the cost of hiring the CPAP machine as it was not put to the witness during the hearing and asserted that the Tribunal should give it no weight. In considering this submission the Tribunal notes that the whole issue of the Sleep Apnoea condition was first raised in these proceedings.  It was not an issue in the First Tier Review hearing or in the Respondent’s earlier deliberations.  The Applicant’s Statement of Facts Issues and Contentions filed prior to the hearing made no mention of the Applicant’s capacity to pay for a CPAP machine.  The issue arose for the first time in the Applicant’s evidence.[13]  The Respondent referred to the website in its final written submissions.  The evidence is publicly available information. The Applicant had an opportunity to challenge the evidence in its reply submissions.   In the circumstances the Tribunal is satisfied, having regard to s.33(1)(c) of the AAT Act, that the evidence is relevant to the matters to be determined and its admission does not unfairly prejudice the Applicant.

   [13] Exhibit A1

3. The Respondent also sought to rely in its final written submissions on evidence regarding the Applicant’s travel overseas in August 2019 to dispute his assertion that he could not afford to purchase a CPAP machine.  This evidence was not put to the Applicant and he had no opportunity to respond to it.  Unlike the website material, the relevance and probative value of this evidence may well depend on the Applicant’s explanation for the travel.  The Tribunal accepts the Applicant’s submission that this evidence should not have been raised in final submissions after the close of the hearing and the Tribunal has no regard to it.

4. In conclusion, the Tribunal is satisfied that by electing not to use a CPAP machine the Applicant failed to undertake reasonable treatment in relation to his Sleep Apnoea condition.  This then raises the question under s.6(6) of the Rules whether significant functional improvement (to a level enabling the person to undertake work in the next two years) is not expected even if reasonable treatment is undertaken or there is a medical or other compelling reason not to undertake reasonable treatment.

5. The reason advanced by the Applicant for not using a CPAP machine was that he did not like it.  He advanced no medical or other compelling reason to not undertake the use of the CPAP machine.  The Applicant makes the point that treatment with a CPAP machine will not cure Sleep Apnoea, but will only help with sleep.  This submission misses the point.  The impairment to which the Applicant’s argument is directed is fatigue, to which the Applicant says both Sleep Apnoea and Cervical Myelopathy were contributors. If the use of a CPAP machine assists the Applicant’s sleep it would directly address the impairment and result in some degree of functional improvement. The evidence is that the use of a CPAP machine was recommended by Drs Williams and Abud to alleviate the effects of the Applicant’s Sleep Apnoea.  While the Tribunal cannot be sure of the extent to which the Applicant’s impairment might be improved by the use of a CPAP machine, it is satisfied that it is likely there would be an improvement, and therefore the Tribunal does not conclude that significant functional improvement is not expected from its use.

6. For these reasons the Tribunal finds that the Applicant’s Sleep Apnoea was not fully treated or fully stabilised during the qualification period and accordingly the condition cannot be given a rating under the Impairment Tables.

   CONCLUSION

7. The Applicant’s impairment resulting from his conditions of Cervical Myelopathy and Obstructive Sleep Apnoea do not attract a rating of 20 points or more under the Impairment Tables and therefore do not satisfy the requirements of s.94(1)(b) of the Act.

   DECISION

8. The Tribunal affirms the decision under review.

I certify that the preceding 46 (forty six) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 12 February 2020

Dates of hearing:	9 - 10 October 2019
Date final submissions received:	25 November 2019
Counsel for the Applicant:	Ms Sheeana Dhanji
Solicitors for the Applicant:	Ms Ajsela Siskovic Victoria Legal Aid
Solicitors for the Respondent:	Mr Nam Nguyen Sparke Helmore Lawyers