Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Social Security Act 1991(Cth)

Social Security (Administration) Act 1999

Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Re Fanning v Secretary, Department of Social Services [2014] AATA 447

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

1. Ms Lear lodged a claim for the disability support pension (DSP) on 20 November 2017. Centrelink rejected the claim. Ms Lear sought a review of that decision and a Centrelink authorised review officer (ARO) affirmed the decision to reject the claim.
2. Ms Lear applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for a review of Centrelink's decision. Her application failed and the AAT1 affirmed the decision under review.
3. Ms Lear applied to this Tribunal for a review of the AAT1 decision.
4. The hearing took place by telephone on 19 March 2020. Ms Lear was self-represented and gave evidence by affirmation. She had the support of her social worker during the hearing. The Secretary was represented by Ms Odgers. The Tribunal received in evidence as exhibits various medical and associated reports, Centrelink reports and documents.

1. Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The qualification period in this case is 20 November 2017 to 19 February 2018.
2. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:
   • (a) They have an inability to work due to their accepted impairments for 15 hours or more a week; and
   • (b) They have actively participated in a "program of support".
3. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
4. Accordingly, Ms Lear will qualify for the DSP if the Tribunal is satisfied that she has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the impairment tables and, finally, that she has a continuing inability to work.
5. Ms Lear's claim for DSP listed her disabilities and medical conditions as "cardiac, heart monitor, arthritis in hands, my fingers are bent, numb leg caused by my crooked spine, continuous black-outs ."[1]
6. In the statement of facts and contentions the Secretary accepted that Ms Lear has physical impairments and satisfies s 94(1)(a) and 94(1)(b) of the Act. The Secretary contended that:-
   • the condition of aortic incompetence was fully diagnosed, treated and stabilised with an impairment rating of 5 points under Impairment Table 1;
   • the condition of osteoarthritis of the hand was fully diagnosed, treated and stabilised with an impairment rating of 5 points under Impairment Table 2;
   • the spinal condition was fully diagnosed, treated and stabilised with an impairment rating of 10 points under Impairment Table 4;
   • The conditions of urinary incompetence, chronic obstructive airway disease and pancreatic disorder were not fully diagnosed, treated and stabilised and any impairments from those conditions could not be assigned an impairment rating.
7. Further, the Secretary contended that Ms Lear could not satisfy s 94(1)(c) of the Act because she had not actively participated in a program of support which is a requirement of s 94(2) (aa) of the Act.
8. Accordingly, the Secretary contended that Ms Lear did not have a continuing inability to work and was not qualified for the DSP during the qualification period.
9. The main issue for determination is whether Ms Lear's impairments could be assigned 20 points or more under the Impairment Tables during the qualification period and, if so, whether she had a continuing inability to work**.**

1. Decisions of the Tribunal such as Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (Bobera)[2] affirmed by the Federal Court in Gallacher v Secretary, Department of Social Services[3] indicate that the Tribunal must consider Ms Lear's qualification for DSP within the qualification period, that is the 13 week period from 20 November 2017 to 19 February 2018.
2. The way in which the Tribunal must assess evidence of treatment after the qualification period has been discussed in a number of decisions. For example, in Re Fanning and Secretary, Department of Social Services,[4] Deputy President Handley stated that:[5]

"The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether "any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years". While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision." (emphasis added)

1. The applicable impairment rating, if any, for each of Ms Lear's conditions will be considered in turn by reference to the Impairment Tables.

1. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.
2. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person's condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.
3. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual's capacity to work.
4. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.
5. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
6. Consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an impairment rating.

1. Medical certificates dating back to 2012 refer to back pain. For example, a certificate compiled on 9 November 2012 by Dr Kavanagh, general medical practitioner, states that Ms Lear's condition with most impact was spinal stenosis and degenerative back pain.[6] Symptoms at that time were pains in the back and stiffness with past and current treatment by way of various types of medication and physiotherapy.
2. A letter from Dr Sathananthan, a general medical practitioner with Pangula Mannamurna, noted Ms Lear's lumbosacral disc prolapse in mid-2014 as 'moderate L4-5.[7] Correspondence from the Spinal Assessment Clinic, Royal Adelaide Hospital , on 13 April 2016 noted Ms Lear's history since 2012 of low back pain which was initially intermittent but now constant with pins and needles and numbness in the right leg and foot. On examination there was global restriction of lumbar range and arrangements were made for a L4/5 epidural and follow up. Treatment included Panadol Osteo three times daily together with physiotherapy and exercises.[8]
3. Subsequently, a note by Dr Sathananthan on 22 January 2018[9] mentions chronic low back pain with further review to be scheduled if treatment was not effective. The treatment comprised medication and continuing physiotherapy and while there was discussion about nerve root injection it was not to be pursued at that stage. According to the note, Ms Lear commented that her back condition is progressively worsening, there was no radiation down the legs, and she was receiving a lot of help at home with cooking, cleaning and household tasks. A further medical certificate dated 10 April 2018 repeated a diagnosis of spinal stenosis and degenerative back pain with symptoms including chronic low back pain and right leg pain.[10]
4. A Job Capacity Assessment Report (JCA) dated 8 February 2018[11] followed a face to face assessment conducted with Ms Lear. According to the JCA report, Ms Lear said that she could walk one kilometre without using a walking stick, sit for about 30 minutes turn her head without moving her trunk, bend to coffee table height though not repetitively, and could not put items on a high shelf.
5. A support plan for Ms Lear under the auspices of the Commonwealth Department of Health was generated on 12 January 2018. At that time, Ms Lear was 63 years old. The report[12] included a summary of the impact of her impairments on her activities of daily living. It mentioned her chronic back pain and right leg numbness. In the context of both her back pain and other problems, concerns were expressed about her ability to manage domestic cleaning and heavy domestic tasks, her capacity to adjust to reduced physical capacity and the ability to manage a daily, healthy diet. Goals and strategies were suggested. The report noted that sometimes she catches the bus into town and likes to remain active in the community, she participates in bingo and does voluntary work crocheting blankets, and she does the grocery shopping with her daughter.
6. In evidence, Ms Lear told the Tribunal about the impact of her back condition during the qualification period. She struggled with overhead movements. Although she could hang out the washing, she suffered pain in the process. She had some difficulty bending forward as her hips started to ache. She could move her head although her neck would hurt a bit. Previously she would regularly walk five kilometres but that was down to one kilometre and less. She was not using a walker at that time, however she is now. She said that she could get out of a chair without assistance.
7. Impairment Table 4 - Spinal function, is used where a person has a permanent condition which has a functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck. The diagnosis must be made by an appropriately qualified medical practitioner.
8. A moderate functional impact on activities involving spinal function attracts 10 points as set out in Impairment Table 4 as follows:

There is a moderate functional impact on activities involving spinal function.

(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following:

(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); 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 (if not independently mobile in a wheelchair).

1. As previously indicated, the Secretary conceded that Ms Lear should be assigned 10 points under Table 4 in relation to impairments arising from her spinal condition. The evidence supports that contention. The descriptors (1) (a) and (c) as above, would be applicable.

1. The medical notes dated 18 December 2017 by Dr Sathananthan referred to osteoarthritis in both of Ms Lear's hands. The hands were very sore after cleaning and cooking and a recommendation was made for a consultation with an occupational therapist. On 23 January 2018 Ms Lear had a cortisone injection in the left wrist which was temporarily bandaged for immobilisation together with medication to help with inflammation.[13]
2. A medical certificate dated 10 April 2018 listed a diagnosis of osteoarthritis of the hands with pain and deformity resulting in an inability to perform fine motor movements of the hands such as opening jars and gripping objects.[14]
3. The JCA report[15] noted that Ms Lear is right hand dominant and that the problems with her right hand were worse than with her left hand. According to the report, she told the assessor that she could manage all aspects of her personal care, perform light housework and make her bed. She could pick up a box of tissues and sign her name. Holding items with a handle could be problematic. She dropped cups of coffee. This was during the qualification period.
4. Similarly, the Department of Health aged care support plan, in January 2018, referred to reduced hand function including difficulty with buttons, zips, and clips while noting also that Ms Lear struggled to manage meal preparation and cooking. The report referred to severe arthritis in both hands affecting strength and function with difficulty holding coffee mugs and opening things.[16]
5. In her evidence to the Tribunal Ms Lear described the difficulties she has with her hands. Those difficulties have worsened from the time of the qualification period to the time of giving evidence. She said that her fingers are bent, and she had problems holding onto things.
6. Impairment Table 2 is used for a permanent condition which results in functional impairment when a person performs activities requiring the use of hands or arms the diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not enough.
7. As previously indicated, the Secretary conceded that the upper limb condition was fully diagnosed, treated and stabilised in the qualification period. The Tribunal considers that this concession is correct.

1. In relation to mild functional impact, Impairment Table 2 states as follows:

There is a mild functional impact on activities using hands or arms.

(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

• (a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
• (b) handling very small objects (e.g. coins);
• (c) doing up buttons;
• (d) reaching up or out to pick up objects.

1. During the qualification period the evidence supports a finding that Ms Lear had some difficulty with the activities specified in the descriptors (1) (a) (b) and (c). The Tribunal is satisfied that there was a mild functional impact on activities using hands or arms. The appropriate rating is five points under Impairment Table 2

FUNCTIONS REQUIRING PHYSICAL EXERTION AND STAMINA

1. In 2015 Ms Lear was examined by cardiologists following complaints of episodes of chest pain. A loop recorder implant was fitted with the aim of detecting the cause of her episodes. A professor of cardiovascular medicine, Dr Selva-Nayagam, reported that it was unlikely that Ms Lear had significant coronary artery disease and he based that view on the results of an angiogram from two years previously.[17] In February 2016 he reported that on examination nothing sinister was found.[18]
2. On 27 February 2017, Dr Selva-Nayagam reported that Ms Lear was complaining of chest pain lasting for 10 to 20 minutes when she was doing housework.[19] She did not have exertional breathlessness. Further investigations were scheduled. On 3 November 2017 Dr Selva-Nayagam reported that her chest pain episodes have settled down, she had almost completely stopped smoking, while medication including aspirins would continue.[20]
3. The Department of Health support plan (12 January 2018) referred to Ms Lear having shortness of breath and a heart condition which requires cardiac monitoring. The shortness of breath was occurring after physical activity. Fortnightly assistance for domestic cleaning was suggested. A functional and home assessment conducted by an occupational therapist in March 2018 noted that Ms Lear was experiencing shortness of breath. She reported having to sit down intermittently on the footpath to take rest breaks when she was walking in the community.[21]
4. Ms Lear told the Tribunal about her cardiac problems and the way they had affected her. She recalled going for tests at the Flinders Medical Centre, however more recently she was concerned as she had not heard from the cardiac specialists about current and future treatment. She acknowledged that her episodes of chest pain were less frequent and less severe by the end of 2017 she had problems with breathlessness and occasional fainting
5. The JCA report on 8 February 2018 noted Ms Lear's comment that she has chest pain all the time, that she is able to manage public transport, maintain responsibility for her personal care and carry out light housework.
6. Impairment Table 1 concerns functions requiring physical exertion and stamina.
7. The Tribunal agrees with the secretary's contention that the cardiac condition was fully diagnosed treated and stabilised in the qualification period.
8. For a mild functional impact on activities requiring physical exertion or stamina, Impairment Table 1 provides the following descriptors

There is a mild functional impact on activities requiring physical exertion or stamina.

(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i) walking (or mobilizing in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

1. The reports from medical specialists, as summarised, confirm a diagnosis of a cardiac condition. During the qualification period Ms Lear was experiencing occasional symptoms including shortness of breath, fatigue and cardiac pain which affected her activities such as walking and heavier household work. The evidence supports a finding that there was a mild functional impact on those activities which is consistent with a rating of five points under Impairment Table 1.

1. Urological condition - Ms Lear gave evidence about urinary problems from which she suffers. She has worn incontinence pads for the past two years. Medical reports and notes indicate that specialist referrals commenced in 2015 with treatment reported in October 2016 from a physiotherapist. Further referrals were arranged in April 2017 and November 2017.[22] Treatment and further assessments continued in 2018. By January 2019 the specialist in urogynaecology at the Flinders Medical Centre reported that Ms Lear would be discharged back to the care of her general medical practitioner for monitoring of the overactive bladder.[23] In April 2019, a report by a urologist[24] followed assessment of microscopic haematuria and concluded that in the absence of any further problems, she be discharged to the care of her general medical practitioner.
2. The Secretary acknowledged that within the qualification period, Ms Lear was experiencing a range of urological symptoms for which she was referred for review and treatment to gynaecologists and urologists. The secretary contended that it was not until April 2019 that the urological conditions were fully diagnosed, treated and stabilised.
3. The Tribunal finds that there is insufficient corroborating medical evidence to make findings that this condition was fully diagnosed, treated and stabilised during the qualification period. Accordingly, no impairment rating can be given.
4. Chronic obstructive airway disease - The limited medical evidence comprises reports from 2012 and 2013 indicating emphysema. The Tribunal is not satisfied that there is enough evidence to conclude that this condition was fully diagnosed, treated and stabilised in the qualification period.
5. Pancreatic disorder - The medical reports from 2015 and 2016 were received in evidence. On 9 September 2015, a physician, Dr Charnley provided a report concerning Ms Lear's pancreatitis in which he noted that there was no history of acute episodes of pancreatitis. Dr Charnley considered that the condition of pancreatitis was secondary to previous consumption of alcohol which had since reduced and subsequently ceased. He reported that there was no need for any further investigations.[25]
6. The only other medical evidence relating to pancreatitis arose out of a CT scan of Ms Lear's abdomen and pelvis on 30 July 2018.[26] In the absence of any other corroborative evidence, the Tribunal is satisfied that the condition was diagnosed, though not fully treated and stabilised in the qualification period. No impairment rating can be assigned.

1. Ms Lear has a total rating of 20 points across the Impairment Tables. However, she does not have an assessment of 20 points or more under one Table and does not meet the definition of having a severe impairment under s94 (3b) of the Act.
2. In order to have a continuing inability to work, as defined in s 94(2) of the Act, Ms Lear must have actively participated in a program of support and her impairment must be sufficient from preventing her from doing any work or training activity independently of a program of support within the next two years.
3. The next step is to consider whether Ms Lear had actively engaged in a program of support for 18 months out of a period of 36 months preceding her DSP application, as required by Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination**)**. The relevant period for consideration is 19 November 2014 to 19 November 2017.
4. The Secretary contended that Ms Lear had not participated in a program of support for at least 18 months during the three years leading up to the date of the DSP claim. In fact, Ms Lear was not engaged with a designated provider at any time. This was confirmed by correspondence from the Department of Human Services[27] and not disputed by Ms Leah.
5. Further, there was no evidence to suggest that ss 7(3), 7(4) and 7(5) of the POS Determination apply to Ms Lear's circumstances. Those subsections provide an alternative pathway to compliance with the requirements of the program of support. There is no evidence which indicates that the exceptions could be applicable
6. The Tribunal finds that the program of support requirement has not been met.

1. The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
2. As outlined previously, the Tribunal finds that Ms Lear's spinal condition was fully diagnosed treated and stabilised during the assessment period. The applicable rating for the upper limb condition is 10 points.
3. Ms Lear's condition of osteoarthritis of the hands was fully diagnosed, treated and stabilised during the qualification period. The applicable rating is five points.
4. Ms Lear's cardiac condition was fully diagnosed, treated and stabilised in the qualification period. The applicable rating is five points.
5. The Tribunal finds that s 94(1)(b) of the Act is satisfied as Ms Lear has a cumulative rating of 20 points under the Impairment Tables.
6. Ms Lear does not have a severe impairment within the meaning of s 94(2)(aa) of the Act as she does not have an impairment of 20 points or more under a single Impairment Table. There was a need for her to actively participate in a program of support within the meaning of s 94(3C) of the Act. However, Ms Lear does not meet the requirements for participation in a program of support and does not satisfy the criteria for a continuing inability to work within the meaning of s 94(1)(c) of the Act.
7. Accordingly, she has not qualified for DSP at the time she made her claim and during the assessment period.
8. As Ms Lear was not qualified for the DSP at the time she lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

70. The Tribunal affirms the decision under review.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

Respondent's representative: Ms L Odgers, Department of Human Services

[2] [2012] AATA 922.

[3] [2015] FCA 1123.

[4] [2014] AATA 447.