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Spry and Secretary, Department of Social Services and Anor [2014] AATA 722 (3 October 2014)
Last Updated: 3 October 2014
[2014] AATA 722
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2013/4383
Re
Dorothy Spry
APPLICANT
And
Secretary, Department of Social Services
And
RESPONDENT
Erica Spry
OTHER PARTY
DECISION
Tribunal
Senior Member CR Walsh
Date
3 October 2014
Place
Perth
The Tribunal affirms the decision under review.
....(Sgd) CR Walsh............................................
Senior Member CR Walsh
CATCHWORDS
Social security – disability support pension – applicant’s physical impairments (being diabetes and ischaemic heart disease) did not attract 20 points or more under the “Impairment Tables” on the date she claimed DSP or within 13 weeks thereafter – decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c)
Social Security (Administration) Act 1999 – clauses 3 & 4 of Part 2 of Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 6(3) – s 6(4) – s 6(5) – s 6(6) – s 6(7) – Table 1 – Table 5
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Summers and Secretary, Department of Social Services [2014] AATA 165
REASONS FOR DECISION
Senior Member CR Walsh
3 October 2014
INTRODUCTION
Ms Spry seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 23 July 2013, which affirmed a decision of a Centrelink authorised review officer (ARO), dated 16 April 2013, rejecting Ms Spry’s claim for disability support pension (DSP) on the basis that she did not satisfy all of the requirements for qualification for DSP, in s 94 of the Social Security Act 1991 (SSA), on the date she claimed DSP.[1]
Specifically, the SSAT decided that whilst Ms Spry suffered from physical impairments arising from diabetes and ischaemic heart disease (and she therefore satisfied s 94(1)(a) of the SSA), her physical impairments did not attract 20 points or more under the “Tables for Assessment of Work Related Impairment” (Impairment Tables) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination) on the date she claimed DSP or within 13 weeks thereafter, as required by s 94(1)(b) of the SSA.
BACKGROUND
By Claim for Disability Support Pension or Sickness Allowance form, dated 8 March 2013 (and lodged with Centrelink on 11 March 2013), Ms Spry claimed DSP from Centrelink (DSP Claim).
In the DSP Claim, Ms Spry stated that:
the “disabilities, illnesses or injuries” she had were “heart condition, legionaries disease, hypertension, unable to heavy lift, diabetes, suffers with body hand and feet cramps in cold water, high cholesterol – unable to take medication because of allergies, stress, body weakness”;
the treatment she was currently receiving for her disabilities, illnesses or injuries were “daily medications morning and night, regular health checks, annual review with cardiologist specialists”; and
the treatment she was currently receiving for her disabilities, illnesses or injuries affected her ability mobility, capacity to lift/carry and day to day living as she had “body tiredness most times after taking medications”.
On 19 March 2013, Ms Spry attended a “Job Capacity Assessment” (JCA) with a Registered Psychologist and a Registered Nurse, a JCA Assessor, at Centrelink.
In the “Job Capacity Assessment Report”, dated 26 March 2013 (JCA Report), the JCA Assessors found that Ms Spry had two permanent medical conditions, being “Diabetes – Non Insulin Dependent” and “Ischaemic Heart Disease”. The JCA Report is discussed in further detail below, under the heading “Medical evidence”.
On 28 March 2013, a Centrelink officer rejected the DSP Claim on the basis that Mr Spry’s permanent medical condition that was fully diagnosed, treated and stabilised (being her “Ischaemic Heart Disease” condition) did not have an impairment rating of 20 points or more under the Impairment Tables (Original Decision).
Ms Spry requested an internal review of the Original Decision by a Centrelink ARO and, on 16 April 2013, the ARO affirmed the Original Decision (ARO Decision).
On 13 June 2013, Ms Spry applied to the SSAT for a review of the ARO Decision.
On 23 July 2013, the SSAT affirmed the ARO Decision for the reason that Ms Spry’s permanent medical conditions did not attract 20 points or more under the Impairment Tables such that she did not did not satisfy s 94(1)(b) of the SSA (SSAT Decision).
On 29 August 2013, Ms Spry applied to this Tribunal for a review of the SSAT Decision. Ms Spry’s stated “Reasons for Application” were:
I don’t believe all health details have been taken into account as no face to face assessment has been conducted. Please see attached new specialist reports.
Ms Spry passed away on 8 November 2013.
On 13 June 2014, Ms Spry’s daughter, Ms Erica Spry, was made a party to the proceedings.
ANALYSIS
Relevant period
A person’s qualification for DSP is required to be assessed based on his or her relevant impairment as at the date that the person claims DSP, or within 13 weeks of that time: see clause 4 of Part 2 of Schedule 2 to the Social Security (Administration) Act 1999. [2]
Consequently, Ms Spry’s qualification for DSP is to be assessed based on her physical impairments in the period from 11 March 2013 (being the date the DSP Claim was lodged) to 10 June 2013 (being 13 weeks after the date of the DSP Claim) (Relevant Period).
Medical evidence
The following medical evidence is relevant to the DSP Claim as it relates to Ms Spry’s physical impairments up to and including the Relevant Period. Any medical evidence provided by Ms Spry after the Relevant Period, is irrelevant to this application and cannot be considered by the Tribunal: see paragraph 14 above.
JCA Report
In the JCA Report, the JCA Assessor concluded that:
In relation to Ms Spry’s diabetes, the condition was fully diagnosed but not fully treated or stabilised. The JCA Assessor reported that the condition was being treated with oral medications, regular health checks and specialist appointments. Future treatment involved possible initiation of insulin injections. The JCA Assessor noted that Dr Woodland indicated that symptoms of shortness of breath and fatigue would improve if Ms Spry commenced insulin use, which she had declined.
In relation to Ms Spry’s ischaemic heart disease, the JCA Assessor found that the condition was fully diagnosed, treated and stabilised. The JCA Assessor noted that Dr Woodland indicated that Ms Spry was able to perform light day to day household activities, such as folding and washing, without support. Dr Woodland also indicated that Mr Spry could walk from a car park into a supermarket without assistance. The JCA Assessor reported that as Ms Spry did not meet the required criteria for an impairment rating of 20 and assigned an impairment rating of 10 points to this condition.
As regards to Ms Spry’s mood disorder (i.e. depression), The JCA Assessor said that although Ms Spry claims she suffers from clinical depression, this condition had not been confirmed by a psychiatrist or clinical psychologist and hence was not regarded as fully diagnosed, treated and stabilised. Ms Spry stated that she does not participate in counselling or use medication for this condition and she indicated that she “works on it herself”.
Ms Spry’s baseline work capacity was assessed by the JCA Assessor as 8 – 14 hours per week. The JCA Assessor noted during a telephone discussion with Dr Woodland, on 26 March 2013, Dr Woodland said that Ms Spry had no present capacity to work. However, there was documentary medical evidence of this. The JCA Assessor also noted that due to the impairment rating of 10, the JCA Assessor was restricted to assigning a minimum baseline work capacity of 8 – 14 hours per week.
Ms Spry’s capacity for work within 2 years with intervention was assessed by the JCA Assessor as 8 – 14 hours per week and suitable work was described as “light less skilled”.
(i) Medical evidence on diabetes
In a report dated 11 March 2013 (11 March 2013 Report), Dr Woodland, general practitioner, noted that:
Ms Spry’s condition with the most impact is diabetes.
Current treatment for this condition is medications, regular health checks and specialist appointments.
Future treatment includes regular reviews, and initiation of insulin.
The condition impacts on Ms Spry’s ability to function by poor exercise tolerance and poor endurance.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months and, within the next 2 years, the effect on Ms Spry’s ability to function is expected to fluctuate.
In a report dated 28 March 2013 (28 March 2013 Report), Dr Keane, general practitioner, noted that:
Type II diabetes is the second condition with the most impact on Ms Spry.
The date of onset of this condition was 9 January 1999.
Current treatment is listed as oral medications.
Future treatment includes ongoing oral medication and insulin if weight reduction is not successful in 3 months.
The condition impacts on Ms Spry’s ability to function because of limited endurance and fatigue.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months and, within 2 years the effect on Ms Spry’s ability to function is expected to remain unchanged.
The condition will not improve however, with current medication, the condition is expected to stabilise.
In a second report dated 17 May 2013 (17 May 2013 Report), Dr Woodland noted that:
Diabetes is the second condition with the most impact on Ms Spry.
Current treatment for this condition was regular doctor review, medications and review by diabetes educator.
Future treatment was listed as proposed introduction of insulin.
The condition impacts on Ms Spry’s ability to function due to poor exercise tolerance, poor endurance and leg fatigue.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months and, within 2 years the effect on Ms Spry’s ability to function is uncertain.
(ii) Medical evidence on ischaemic heart disease
In the 11 March 2013 Report, Dr Woodland noted that:
The second condition which impacts on Ms Spry is ischaemic heart disease.
The onset of this condition was 1 November 2007.
Current treatment for this condition is medications, regular GP review and specialist reviews.
Future treatment includes yearly review.
Current symptoms include recurrent chest pain, shortness of breath, fatigue and exhaustion.
The condition impacts on Ms Spry’s ability to function because of poor endurance and fatigue.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months and, within the next 2 years, the effect on Ms Spry’s ability to function is expected to fluctuate.
In the 28 March 2013 Report, Dr Keane noted that:
Ischaemic heart disease is the condition with the most impact on Ms Spry’s ability to function.
The date of onset of this condition was 1 November 2007.
Current treatment is listed as medications, specialist review and regular clinic review.
Future treatment includes regular clinic review, and regular weight reduction documentation/review.
The condition impacts on Ms Spry’s ability to function because of limited endurance and fatigue.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months.
In the 17 May 2013 Report, Dr Woodland noted that:
Ms Spry’s second condition was coronary heart disease.
Current treatment for this condition was regular doctor review, medications, cardiac rehabilitation and cardiology review.
Future treatment includes review by cardiologist and monitoring blood cholesterol.
The condition impacts on Ms Spry’s ability to function due to poor endurance, decrease exercise tolerance, unable to do heavy lifting and chest pains.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months and, within the next 2 years, the effect on Ms Spry’s ability to function expected to deteriorate.
(iii) Medical evidence on dyslipidaemia, hypertension and proteinuria
These conditions were not mentioned in the 11 March 2013 Report or the 28 March 2013 Report.
However, in 17 May 2013 Report, Dr Woodland noted that these conditions were generally well managed with minimal or limited impact on Ms Spry’s ability to function.
Qualification for DSP
The requirements for qualification for DSP are set out in s 94 of the SSA, which states:
94 Qualification for disability support pension
(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
...
Physical impairment – s 94(1)(a)
It is common ground that Ms Spry had two “physical impairments” within the meaning and for the purposes of 94(1)(a) of the SSA, being diabetes and ischaemic heart condition, during the Relevant Period.
What is in dispute, and what the Tribunal must consider, is whether during the Relevant Period Ms Spry’s physical impairments attracted 20 points or more under the Impairment Tables, as required by s 94(1)(b) of the SSA. If “yes”, the Tribunal must then consider whether Ms Spry had a “continuing inability to work” on the date of the DSP Claim (or within 13 weeks thereafter) within the meaning and for the purposes of s 94(1)(c) of the SSA.
Impairment is of 20 points or more under the Impairment Tables – s 94(1)(b)
An impairment rating can only be allocated to an impairment, for the purposes of satisfying s 94(1)(b) of the SSA, if the condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years: see s 6(3) of the Impairment Determination.
Section 6(4) of the Impairment Determination states that a condition is “permanent” if:
(a) the condition has been “fully diagnosed” by an appropriately qualified medical practitioner;
(b) the condition has been “fully treated”;
(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.
The phrases “fully diagnosed” and “fully treated” are defined in s 6(5) of the Impairment Determination as follows:
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 paragraph 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition, and
(b) what treatment or rehabilitation has occurred in relation to the condition, and
(c) whether treatment is continuing or is planned in the next 2 years. [Emphasis added]
The phrase “fully stabilised” is defined in s 6(6) of the Impairment Determination as follows:
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) 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
(b) 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. [Emphasis added]
The phrase “reasonable impairment” is defined for the purposes of s 6(6) of the Impairment Determination in s 6(7) of the Impairment Determination as follows:
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person. [Emphasis added]
Table 1 of the Impairment Determination, titled “Functions requiring Physical Exertion and Stamina”, is used to assign an impairment rating to an impairment where a person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion and stamina. Broadly, the impairment rating assigned to an impairment under Table 1 ranges from 0 points to 30 points depending on the level of “functional impact on activities requiring physical exertion and stamina” - being either “no” functional impact (0 points), “mild” functional impact (5 points), “moderate” functional impact (10 points), “severe” functional impact (20 points) or “extreme” functional impact (30 points).
Table 5 of the Impairment Determination, titled “Mental Health Function”, is used to assign an impairment rating to an impairment where a person has a permanent condition resulting in functional impairment due to a mental health condition. Broadly, the impairment rating assigned to an impairment under Table 5 ranges from 0 points to 30 points depending on the level of “functional impact on activities involving mental health function” - being either “no” functional impact (0 points), “mild” functional impact (5 points), “moderate” functional impact (10 points), “severe” functional impact (20 points) or “extreme” functional impact (30 points).
Ms Spry’s diabetes
The medical evidence supports a finding that in the Relevant Period Ms Spry’s diabetes condition was “fully diagnosed”, but not “fully treated” and “fully stabilised”. This is because:
The medical evidence establishes that current treatment for Ms Spry’s diabetes included oral medications and regular health checks and specialist appointments.
The medical evidence establishes that future treatment included the introduction of insulin (see the 11 March 2013 Report, the 17 May 2013 Report and the 28 March 2013 Report). Ms Spry indicated that insulin was to be introduced if control could not be achieved through strict dieting, which was still being attempted.
The JCA Report stated that Dr Woodland indicated that Ms Spry’s symptoms of shortness of breath and fatigue will improve if Ms Spry commences insulin use, which she has declined to date.
In the JCA Report, the JCA Assessor concluded that whilst Ms Spry’s diabetes had been “fully diagnosed” by a qualified medical practitioner, it had not been “fully treated” and “fully stabilised”. This was because treatment designed to stabilise Ms Spry’s diabetes was still being undertaken in the Relevant Period, with further reasonable treatment (prescription of insulin) proposed.
Based on the relevant medical evidence, Ms Spry’s diabetes was not “fully treated” and “fully stabilised” during the Relevant Period for the purposes of s 6(4) of the Impairment Determination, such that it cannot be assigned a rating under Table 1 of the Impairment Tables for the purposes of s 94(1)(b) of the SSA, as the diabetes had “no” functional impact on activities requiring physical exertion and stamina.
Ms Spry’s ischaemic heart disease
The medical evidence supports a finding that Ms Spry’s ischaemic heart condition was fully diagnosed, treated and stabilised during the Relevant Period: see the 11 March 2013 Report.
The JCA Report stated that Dr Woodland indicated that Ms Spry was able to perform light day to day household activities, such as folding washing without support. Dr Woodland also indicated that Ms Spry could walk from a car park into a supermarket without assistance.
In the JCA Report, the JCA Assessor stated that Ms Spry did not meet the required criteria for an impairment rating of 20 points in Table 1 of the Impairment Determination (i.e. there was no “severe” functional impact on activities involving mental health function) and, as such, Ms Spry was assigned an impairment rating of 10 points under Table 1 of the Impairment Determination (i.e. for “moderate” functional impact on activities involving mental health issues).
There is no evidence that suggests that Ms Spry was, during the relevant Period, unable to use public transport without assistance, or unable to walk around a shopping centre or supermarket without assistance. In this context, “assistance” means assistance from another person: Summers and Secretary, Department of Social Services [2014] AATA 165. Consequently, the appropriate impairment rating under Table 1 of the Impairment Tables is 10 points.
Ms Spry’s depression
As during the Relevant Period, Ms Spry’s condition of mood disorder/depression was not fully diagnosed, treated and stabilised as required by s 6(4) of the Impairment Determination.
The “Introduction to Table 5” of the Impairment Tables contains a mandatory requirement 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).
Self-report of symptoms alone is insufficient.
There must be corroborating evidence of the person’s impairment.
Ms Spry claimed that she suffers from depression but there is no evidence of a diagnosis by a psychiatrist or a clinical psychologist of any mental health condition, nor was this condition referred to in any of the medical reports. In the absence of such evidence, no rating can be assigned for this condition under Table 5 of the Impairment Tables.
Ms Spry stated that she does not participate in counselling or use medication for this condition and indicated to the JCA Assessor that she “works on it herself”: see outline of JCA Report above. Since there is no evidence from a clinical psychologist or a psychiatrist of the diagnosis, the mandatory requirement in Table 5 of the Impairment Tables has not been met.
Ms Spry’s depression has not been fully diagnosed, treated and stabilised. As such, no impairment points can be allocated under Table 5 of the Impairment Tables.
Other conditions
In relation to Ms Spry’s dyslipidaemia, hypertension and proteinuria, Dr Woodland noted in the 17 May 2013 Report that these conditions were generally well managed and caused minimal or limited impact on Ms Spry’s ability to function.
There is insufficient medical evidence available to consider these conditions as fully diagnosed, treated and stabilised during the Relevant Period. In any event, the evidence does not indicate that there is any functional impairment arising from these conditions and accordingly no impairment points should be assigned in respect of these conditions.
Conclusion
For the above reasons, during the Relevant Period Ms Spry’s ischaemic heart disease was “fully diagnosed”, “fully treated” and “fully stabilised” which was assigned an impairment rating of 10 points under Table 1 of the Impairment Determination because it had “moderate” functional impact on activities requiring physical exertion or stamina by Ms Spry. It follows that, during the Relevant Period, Ms Spry did not satisfy s 94(1)(b) of the SSA, which requires that the relevant physical impairment/s be assigned an impairment rating of 20 points or more. Consequently, the DSP Claim must fail.
Continuing inability to work
Since the Tribunal finds that Ms Spry’s physical impairments could not be assigned an impairment rating of 20 points or more under the Impairment Tables for the Relevant Period, it is unnecessary for it to consider whether Ms Spry has a “continuing inability to work” within the meaning and for the purposes of s 94(1)(c) of the SSA or if she satisfies the other requirements for qualification for DSP, in s 94 of the SSA, during the Relevant Period.
Ms Spry’s dealings with Centrelink
At the hearing, evidence was given by Ms Jenny De Marchi, a former disability officer at Centrelink, Kimberley and someone who knew Ms Spry for at least 20 years before she passed away.
According to Ms De Marchi, at no time was a “face to face” medical assessment of Ms Spry conducted by Centrelink. The assessments were either by telephone or a “file assessment”. In Ms De Marchi’s view, had Ms Spry been assessed by Centrelink “face to face”, her deteriorating condition would have been obvious and the deficiencies in the medical reports would have been identified.
Ms De Marchi also noted that Centrelink never explained to Ms Spry that if she lodged a fresh DSP claim, all medical evidence up to and including the date of the new claim, and 13 weeks thereafter, could be considered by Centrelink in determining Ms Spry’s eligibility to DSP.
The Tribunal has no jurisdiction to deal with any complaints that Ms Spry, or her daughter, may have had or have regarding Ms Spry’s dealings with Centrelink. The Tribunal has no general review or decision-making power and is limited to reviewing the decision under review. It has no independent discretion. The appropriate avenue for a person to pursue in such cases is through the Commonwealth Ombudsman. There are also two Commonwealth schemes whereby persons adversely affected by the actions of Commonwealth officers may receive compensation.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh.
......(Sgd) A Tran..............................
Dated 3 October 2014
Date of hearing
2 October 2014
Representative for the Applicant
Unrepresented/Deceased
Representative for the Respondent
Mr S Vahala
Solicitors for the Respondent
Australian Government Solicitor
Representative for the Other Party
Self
Last Updated: 3 October 2014
[2014] AATA 722
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2013/4383
Re
Dorothy Spry
APPLICANT
And
Secretary, Department of Social Services
And
RESPONDENT
Erica Spry
OTHER PARTY
DECISION
Tribunal
Senior Member CR Walsh
Date
3 October 2014
Place
Perth
The Tribunal affirms the decision under review.
....(Sgd) CR Walsh............................................
Senior Member CR Walsh
CATCHWORDS
Social security – disability support pension – applicant’s physical impairments (being diabetes and ischaemic heart disease) did not attract 20 points or more under the “Impairment Tables” on the date she claimed DSP or within 13 weeks thereafter – decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c)
Social Security (Administration) Act 1999 – clauses 3 & 4 of Part 2 of Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 6(3) – s 6(4) – s 6(5) – s 6(6) – s 6(7) – Table 1 – Table 5
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Summers and Secretary, Department of Social Services [2014] AATA 165
REASONS FOR DECISION
Senior Member CR Walsh
3 October 2014
INTRODUCTION
Ms Spry seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 23 July 2013, which affirmed a decision of a Centrelink authorised review officer (ARO), dated 16 April 2013, rejecting Ms Spry’s claim for disability support pension (DSP) on the basis that she did not satisfy all of the requirements for qualification for DSP, in s 94 of the Social Security Act 1991 (SSA), on the date she claimed DSP.[1]
Specifically, the SSAT decided that whilst Ms Spry suffered from physical impairments arising from diabetes and ischaemic heart disease (and she therefore satisfied s 94(1)(a) of the SSA), her physical impairments did not attract 20 points or more under the “Tables for Assessment of Work Related Impairment” (Impairment Tables) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination) on the date she claimed DSP or within 13 weeks thereafter, as required by s 94(1)(b) of the SSA.
BACKGROUND
By Claim for Disability Support Pension or Sickness Allowance form, dated 8 March 2013 (and lodged with Centrelink on 11 March 2013), Ms Spry claimed DSP from Centrelink (DSP Claim).
In the DSP Claim, Ms Spry stated that:
the “disabilities, illnesses or injuries” she had were “heart condition, legionaries disease, hypertension, unable to heavy lift, diabetes, suffers with body hand and feet cramps in cold water, high cholesterol – unable to take medication because of allergies, stress, body weakness”;
the treatment she was currently receiving for her disabilities, illnesses or injuries were “daily medications morning and night, regular health checks, annual review with cardiologist specialists”; and
the treatment she was currently receiving for her disabilities, illnesses or injuries affected her ability mobility, capacity to lift/carry and day to day living as she had “body tiredness most times after taking medications”.
On 19 March 2013, Ms Spry attended a “Job Capacity Assessment” (JCA) with a Registered Psychologist and a Registered Nurse, a JCA Assessor, at Centrelink.
In the “Job Capacity Assessment Report”, dated 26 March 2013 (JCA Report), the JCA Assessors found that Ms Spry had two permanent medical conditions, being “Diabetes – Non Insulin Dependent” and “Ischaemic Heart Disease”. The JCA Report is discussed in further detail below, under the heading “Medical evidence”.
On 28 March 2013, a Centrelink officer rejected the DSP Claim on the basis that Mr Spry’s permanent medical condition that was fully diagnosed, treated and stabilised (being her “Ischaemic Heart Disease” condition) did not have an impairment rating of 20 points or more under the Impairment Tables (Original Decision).
Ms Spry requested an internal review of the Original Decision by a Centrelink ARO and, on 16 April 2013, the ARO affirmed the Original Decision (ARO Decision).
On 13 June 2013, Ms Spry applied to the SSAT for a review of the ARO Decision.
On 23 July 2013, the SSAT affirmed the ARO Decision for the reason that Ms Spry’s permanent medical conditions did not attract 20 points or more under the Impairment Tables such that she did not did not satisfy s 94(1)(b) of the SSA (SSAT Decision).
On 29 August 2013, Ms Spry applied to this Tribunal for a review of the SSAT Decision. Ms Spry’s stated “Reasons for Application” were:
I don’t believe all health details have been taken into account as no face to face assessment has been conducted. Please see attached new specialist reports.
Ms Spry passed away on 8 November 2013.
On 13 June 2014, Ms Spry’s daughter, Ms Erica Spry, was made a party to the proceedings.
ANALYSIS
Relevant period
A person’s qualification for DSP is required to be assessed based on his or her relevant impairment as at the date that the person claims DSP, or within 13 weeks of that time: see clause 4 of Part 2 of Schedule 2 to the Social Security (Administration) Act 1999. [2]
Consequently, Ms Spry’s qualification for DSP is to be assessed based on her physical impairments in the period from 11 March 2013 (being the date the DSP Claim was lodged) to 10 June 2013 (being 13 weeks after the date of the DSP Claim) (Relevant Period).
Medical evidence
The following medical evidence is relevant to the DSP Claim as it relates to Ms Spry’s physical impairments up to and including the Relevant Period. Any medical evidence provided by Ms Spry after the Relevant Period, is irrelevant to this application and cannot be considered by the Tribunal: see paragraph 14 above.
JCA Report
In the JCA Report, the JCA Assessor concluded that:
In relation to Ms Spry’s diabetes, the condition was fully diagnosed but not fully treated or stabilised. The JCA Assessor reported that the condition was being treated with oral medications, regular health checks and specialist appointments. Future treatment involved possible initiation of insulin injections. The JCA Assessor noted that Dr Woodland indicated that symptoms of shortness of breath and fatigue would improve if Ms Spry commenced insulin use, which she had declined.
In relation to Ms Spry’s ischaemic heart disease, the JCA Assessor found that the condition was fully diagnosed, treated and stabilised. The JCA Assessor noted that Dr Woodland indicated that Ms Spry was able to perform light day to day household activities, such as folding and washing, without support. Dr Woodland also indicated that Mr Spry could walk from a car park into a supermarket without assistance. The JCA Assessor reported that as Ms Spry did not meet the required criteria for an impairment rating of 20 and assigned an impairment rating of 10 points to this condition.
As regards to Ms Spry’s mood disorder (i.e. depression), The JCA Assessor said that although Ms Spry claims she suffers from clinical depression, this condition had not been confirmed by a psychiatrist or clinical psychologist and hence was not regarded as fully diagnosed, treated and stabilised. Ms Spry stated that she does not participate in counselling or use medication for this condition and she indicated that she “works on it herself”.
Ms Spry’s baseline work capacity was assessed by the JCA Assessor as 8 – 14 hours per week. The JCA Assessor noted during a telephone discussion with Dr Woodland, on 26 March 2013, Dr Woodland said that Ms Spry had no present capacity to work. However, there was documentary medical evidence of this. The JCA Assessor also noted that due to the impairment rating of 10, the JCA Assessor was restricted to assigning a minimum baseline work capacity of 8 – 14 hours per week.
Ms Spry’s capacity for work within 2 years with intervention was assessed by the JCA Assessor as 8 – 14 hours per week and suitable work was described as “light less skilled”.
(i) Medical evidence on diabetes
In a report dated 11 March 2013 (11 March 2013 Report), Dr Woodland, general practitioner, noted that:
Ms Spry’s condition with the most impact is diabetes.
Current treatment for this condition is medications, regular health checks and specialist appointments.
Future treatment includes regular reviews, and initiation of insulin.
The condition impacts on Ms Spry’s ability to function by poor exercise tolerance and poor endurance.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months and, within the next 2 years, the effect on Ms Spry’s ability to function is expected to fluctuate.
In a report dated 28 March 2013 (28 March 2013 Report), Dr Keane, general practitioner, noted that:
Type II diabetes is the second condition with the most impact on Ms Spry.
The date of onset of this condition was 9 January 1999.
Current treatment is listed as oral medications.
Future treatment includes ongoing oral medication and insulin if weight reduction is not successful in 3 months.
The condition impacts on Ms Spry’s ability to function because of limited endurance and fatigue.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months and, within 2 years the effect on Ms Spry’s ability to function is expected to remain unchanged.
The condition will not improve however, with current medication, the condition is expected to stabilise.
In a second report dated 17 May 2013 (17 May 2013 Report), Dr Woodland noted that:
Diabetes is the second condition with the most impact on Ms Spry.
Current treatment for this condition was regular doctor review, medications and review by diabetes educator.
Future treatment was listed as proposed introduction of insulin.
The condition impacts on Ms Spry’s ability to function due to poor exercise tolerance, poor endurance and leg fatigue.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months and, within 2 years the effect on Ms Spry’s ability to function is uncertain.
(ii) Medical evidence on ischaemic heart disease
In the 11 March 2013 Report, Dr Woodland noted that:
The second condition which impacts on Ms Spry is ischaemic heart disease.
The onset of this condition was 1 November 2007.
Current treatment for this condition is medications, regular GP review and specialist reviews.
Future treatment includes yearly review.
Current symptoms include recurrent chest pain, shortness of breath, fatigue and exhaustion.
The condition impacts on Ms Spry’s ability to function because of poor endurance and fatigue.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months and, within the next 2 years, the effect on Ms Spry’s ability to function is expected to fluctuate.
In the 28 March 2013 Report, Dr Keane noted that:
Ischaemic heart disease is the condition with the most impact on Ms Spry’s ability to function.
The date of onset of this condition was 1 November 2007.
Current treatment is listed as medications, specialist review and regular clinic review.
Future treatment includes regular clinic review, and regular weight reduction documentation/review.
The condition impacts on Ms Spry’s ability to function because of limited endurance and fatigue.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months.
In the 17 May 2013 Report, Dr Woodland noted that:
Ms Spry’s second condition was coronary heart disease.
Current treatment for this condition was regular doctor review, medications, cardiac rehabilitation and cardiology review.
Future treatment includes review by cardiologist and monitoring blood cholesterol.
The condition impacts on Ms Spry’s ability to function due to poor endurance, decrease exercise tolerance, unable to do heavy lifting and chest pains.
The impact of the condition on Ms Spry’s ability to function is expected to persist for more than 24 months and, within the next 2 years, the effect on Ms Spry’s ability to function expected to deteriorate.
(iii) Medical evidence on dyslipidaemia, hypertension and proteinuria
These conditions were not mentioned in the 11 March 2013 Report or the 28 March 2013 Report.
However, in 17 May 2013 Report, Dr Woodland noted that these conditions were generally well managed with minimal or limited impact on Ms Spry’s ability to function.
Qualification for DSP
The requirements for qualification for DSP are set out in s 94 of the SSA, which states:
94 Qualification for disability support pension
(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
...
Physical impairment – s 94(1)(a)
It is common ground that Ms Spry had two “physical impairments” within the meaning and for the purposes of 94(1)(a) of the SSA, being diabetes and ischaemic heart condition, during the Relevant Period.
What is in dispute, and what the Tribunal must consider, is whether during the Relevant Period Ms Spry’s physical impairments attracted 20 points or more under the Impairment Tables, as required by s 94(1)(b) of the SSA. If “yes”, the Tribunal must then consider whether Ms Spry had a “continuing inability to work” on the date of the DSP Claim (or within 13 weeks thereafter) within the meaning and for the purposes of s 94(1)(c) of the SSA.
Impairment is of 20 points or more under the Impairment Tables – s 94(1)(b)
An impairment rating can only be allocated to an impairment, for the purposes of satisfying s 94(1)(b) of the SSA, if the condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years: see s 6(3) of the Impairment Determination.
Section 6(4) of the Impairment Determination states that a condition is “permanent” if:
(a) the condition has been “fully diagnosed” by an appropriately qualified medical practitioner;
(b) the condition has been “fully treated”;
(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.
The phrases “fully diagnosed” and “fully treated” are defined in s 6(5) of the Impairment Determination as follows:
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 paragraph 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition, and
(b) what treatment or rehabilitation has occurred in relation to the condition, and
(c) whether treatment is continuing or is planned in the next 2 years. [Emphasis added]
The phrase “fully stabilised” is defined in s 6(6) of the Impairment Determination as follows:
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) 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
(b) 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. [Emphasis added]
The phrase “reasonable impairment” is defined for the purposes of s 6(6) of the Impairment Determination in s 6(7) of the Impairment Determination as follows:
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person. [Emphasis added]
Table 1 of the Impairment Determination, titled “Functions requiring Physical Exertion and Stamina”, is used to assign an impairment rating to an impairment where a person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion and stamina. Broadly, the impairment rating assigned to an impairment under Table 1 ranges from 0 points to 30 points depending on the level of “functional impact on activities requiring physical exertion and stamina” - being either “no” functional impact (0 points), “mild” functional impact (5 points), “moderate” functional impact (10 points), “severe” functional impact (20 points) or “extreme” functional impact (30 points).
Table 5 of the Impairment Determination, titled “Mental Health Function”, is used to assign an impairment rating to an impairment where a person has a permanent condition resulting in functional impairment due to a mental health condition. Broadly, the impairment rating assigned to an impairment under Table 5 ranges from 0 points to 30 points depending on the level of “functional impact on activities involving mental health function” - being either “no” functional impact (0 points), “mild” functional impact (5 points), “moderate” functional impact (10 points), “severe” functional impact (20 points) or “extreme” functional impact (30 points).
Ms Spry’s diabetes
The medical evidence supports a finding that in the Relevant Period Ms Spry’s diabetes condition was “fully diagnosed”, but not “fully treated” and “fully stabilised”. This is because:
The medical evidence establishes that current treatment for Ms Spry’s diabetes included oral medications and regular health checks and specialist appointments.
The medical evidence establishes that future treatment included the introduction of insulin (see the 11 March 2013 Report, the 17 May 2013 Report and the 28 March 2013 Report). Ms Spry indicated that insulin was to be introduced if control could not be achieved through strict dieting, which was still being attempted.
The JCA Report stated that Dr Woodland indicated that Ms Spry’s symptoms of shortness of breath and fatigue will improve if Ms Spry commences insulin use, which she has declined to date.
In the JCA Report, the JCA Assessor concluded that whilst Ms Spry’s diabetes had been “fully diagnosed” by a qualified medical practitioner, it had not been “fully treated” and “fully stabilised”. This was because treatment designed to stabilise Ms Spry’s diabetes was still being undertaken in the Relevant Period, with further reasonable treatment (prescription of insulin) proposed.
Based on the relevant medical evidence, Ms Spry’s diabetes was not “fully treated” and “fully stabilised” during the Relevant Period for the purposes of s 6(4) of the Impairment Determination, such that it cannot be assigned a rating under Table 1 of the Impairment Tables for the purposes of s 94(1)(b) of the SSA, as the diabetes had “no” functional impact on activities requiring physical exertion and stamina.
Ms Spry’s ischaemic heart disease
The medical evidence supports a finding that Ms Spry’s ischaemic heart condition was fully diagnosed, treated and stabilised during the Relevant Period: see the 11 March 2013 Report.
The JCA Report stated that Dr Woodland indicated that Ms Spry was able to perform light day to day household activities, such as folding washing without support. Dr Woodland also indicated that Ms Spry could walk from a car park into a supermarket without assistance.
In the JCA Report, the JCA Assessor stated that Ms Spry did not meet the required criteria for an impairment rating of 20 points in Table 1 of the Impairment Determination (i.e. there was no “severe” functional impact on activities involving mental health function) and, as such, Ms Spry was assigned an impairment rating of 10 points under Table 1 of the Impairment Determination (i.e. for “moderate” functional impact on activities involving mental health issues).
There is no evidence that suggests that Ms Spry was, during the relevant Period, unable to use public transport without assistance, or unable to walk around a shopping centre or supermarket without assistance. In this context, “assistance” means assistance from another person: Summers and Secretary, Department of Social Services [2014] AATA 165. Consequently, the appropriate impairment rating under Table 1 of the Impairment Tables is 10 points.
Ms Spry’s depression
As during the Relevant Period, Ms Spry’s condition of mood disorder/depression was not fully diagnosed, treated and stabilised as required by s 6(4) of the Impairment Determination.
The “Introduction to Table 5” of the Impairment Tables contains a mandatory requirement 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).
Self-report of symptoms alone is insufficient.
There must be corroborating evidence of the person’s impairment.
Ms Spry claimed that she suffers from depression but there is no evidence of a diagnosis by a psychiatrist or a clinical psychologist of any mental health condition, nor was this condition referred to in any of the medical reports. In the absence of such evidence, no rating can be assigned for this condition under Table 5 of the Impairment Tables.
Ms Spry stated that she does not participate in counselling or use medication for this condition and indicated to the JCA Assessor that she “works on it herself”: see outline of JCA Report above. Since there is no evidence from a clinical psychologist or a psychiatrist of the diagnosis, the mandatory requirement in Table 5 of the Impairment Tables has not been met.
Ms Spry’s depression has not been fully diagnosed, treated and stabilised. As such, no impairment points can be allocated under Table 5 of the Impairment Tables.
Other conditions
In relation to Ms Spry’s dyslipidaemia, hypertension and proteinuria, Dr Woodland noted in the 17 May 2013 Report that these conditions were generally well managed and caused minimal or limited impact on Ms Spry’s ability to function.
There is insufficient medical evidence available to consider these conditions as fully diagnosed, treated and stabilised during the Relevant Period. In any event, the evidence does not indicate that there is any functional impairment arising from these conditions and accordingly no impairment points should be assigned in respect of these conditions.
Conclusion
For the above reasons, during the Relevant Period Ms Spry’s ischaemic heart disease was “fully diagnosed”, “fully treated” and “fully stabilised” which was assigned an impairment rating of 10 points under Table 1 of the Impairment Determination because it had “moderate” functional impact on activities requiring physical exertion or stamina by Ms Spry. It follows that, during the Relevant Period, Ms Spry did not satisfy s 94(1)(b) of the SSA, which requires that the relevant physical impairment/s be assigned an impairment rating of 20 points or more. Consequently, the DSP Claim must fail.
Continuing inability to work
Since the Tribunal finds that Ms Spry’s physical impairments could not be assigned an impairment rating of 20 points or more under the Impairment Tables for the Relevant Period, it is unnecessary for it to consider whether Ms Spry has a “continuing inability to work” within the meaning and for the purposes of s 94(1)(c) of the SSA or if she satisfies the other requirements for qualification for DSP, in s 94 of the SSA, during the Relevant Period.
Ms Spry’s dealings with Centrelink
At the hearing, evidence was given by Ms Jenny De Marchi, a former disability officer at Centrelink, Kimberley and someone who knew Ms Spry for at least 20 years before she passed away.
According to Ms De Marchi, at no time was a “face to face” medical assessment of Ms Spry conducted by Centrelink. The assessments were either by telephone or a “file assessment”. In Ms De Marchi’s view, had Ms Spry been assessed by Centrelink “face to face”, her deteriorating condition would have been obvious and the deficiencies in the medical reports would have been identified.
Ms De Marchi also noted that Centrelink never explained to Ms Spry that if she lodged a fresh DSP claim, all medical evidence up to and including the date of the new claim, and 13 weeks thereafter, could be considered by Centrelink in determining Ms Spry’s eligibility to DSP.
The Tribunal has no jurisdiction to deal with any complaints that Ms Spry, or her daughter, may have had or have regarding Ms Spry’s dealings with Centrelink. The Tribunal has no general review or decision-making power and is limited to reviewing the decision under review. It has no independent discretion. The appropriate avenue for a person to pursue in such cases is through the Commonwealth Ombudsman. There are also two Commonwealth schemes whereby persons adversely affected by the actions of Commonwealth officers may receive compensation.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh.
......(Sgd) A Tran..............................
Dated 3 October 2014
Date of hearing
2 October 2014
Representative for the Applicant
Unrepresented/Deceased
Representative for the Respondent
Mr S Vahala
Solicitors for the Respondent
Australian Government Solicitor
Representative for the Other Party
Self