Cooke and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 55 (28 January 2009)

Last Updated: 29 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 55

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/4987

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SARAH JOY COOKE

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Senior Member L Hastwell Dr E T Eriksen (Member)

Date 28 January 2009

Place Adelaide

Decision

The Tribunal sets aside the decision under review and remits the matter to the respondent on the basis that if all other eligibility requirements are satisfied on the date of application then Ms Cooke satisfies the requirement for DSP.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – genetic syndrome – Ehlers-Danlos Syndrome – permanent condition – diagnosed, treated and stabilised – psychological effects of disability – chronic pain – sublaxation of joints – difficulty in sitting or standing for long periods – limited education – continuous inability to work 15 hours per week – decision set aside
Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42

Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 164 ALR 572

REASONS FOR DECISION

28 January 2009

Senior Member L Hastwell Dr E T Eriksen (Member)

1. Sarah Cooke lodged a claim for Disability Support Pension (DSP) on 4 January 2007.
2. The treating doctor’s report lodged with the claim stated that she suffered from various disabilities associated with a condition known as Ehlers-Danlos Syndrome (EDS).
3. Centrelink rejected her claim for DSP on 7 February 2007. That decision was affirmed by an Authorised Review Officer (ARO) on 30 May 2007. The Social Security Appeals Tribunal (SSAT) affirmed the ARO decision on 22 September 2007. She seeks review of the SSAT decision to this Tribunal.

RELEVANT LEGISLATION

4. Section 94 of the Social Security Act 1991 (Cth) (the Act) sets out the requirements that must be satisfied for qualification for DSP. That part of the legislation that is relevant in this case is set out in the following provisions.
5. Section 94(1) of the Act provides as follows:

“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; ...”

6. The meaning of a “continuing inability to work” is defined in s 94 of the Act in the following terms:

“94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
94(3) In deciding whether or not a person has a continuing liability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person’s locally accessible labour market.
...
94(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
work means work:
(a) that is for at least 15 hours per week at award wages or above; and
...
(c) that exists in Australia, even if not within the person’s locally accessible labour market.”

THE IMPAIRMENT TABLES

7. The impairment tables under which an impairment point rating is assigned to a condition are contained in Schedule 1B of the Act. The preamble to those tables provide that a rating can only be assigned to a fully documented, diagnosed condition which has been investigated, treated and stabilised. In addition the condition must be considered to be permanent. Permanence is defined as the condition being more likely than not to persist for the foreseeable future and this is taken as lasting for more than two years.
8. The table used by Centrelink in this case in assessing the rating to be assigned to the condition, Table 20, deals with miscellaneous conditions including conditions that cause chronic fatigue or pain.
9. The respondent (the Department) has accepted that Ms Cooke has an impairment rating of 15 points under this table. The SSAT considered that she had an impairment rating of 20 points under this table. The symptoms required to attract either of these ratings are defined in Table 20 as follows:

“FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.”

10. Ms Cooke submits that Table 4 is also relevant in this case and that she has a moderate lower limb impairment which should attract a rating of 10 points. The relevant portion of Table 4 is as follows:

“TABLE 4 FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
...
TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 25-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.”

11. The Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides the rules for working out the start day of an entitlement to a Social Security benefit.
12. Section 42 of the Administration Act provides as follows:

“For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.”

13. Clause 4 of Schedule 2 of the Administration Act provides:

“4. Start Day – Early Claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.”

14. The effect of this section is that the Tribunal must be satisfied that Ms Cooke satisfied the requirements of s 94 of the Act either on the date that she made the claim for DSP or within 13 weeks of that date.

THE ISSUES TO BE DETERMINED IN THIS CASE

15. Ms Cooke satisfies the requirements of s 94(1)(a) of the Act in that it is acknowledged that she has a physical impairment. The central issues are:
    • does her impairment attract a rating of 20 points or more under the impairment tables; and
    • does she have a continuing inability to work as defined in the legislation?

A SUMMARY OF THE RELEVANT EVIDENCE

16. Ms Cooke’s grandmother, Mrs Johnson, acted as her advocate. Ms Cooke also gave evidence and provided a statutory declaration to the Tribunal (Exhibit A5). Documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) were received as Exhibit R1. Other exhibits will be referred to where relevant.
17. Subsequent to the hearing, some further medical information was received by the Tribunal with the consent of both parties. This further medical information has also been taken into account by the Tribunal in reaching its conclusion. These additional documents were Ms Cooke’s medical notes from the Southern Fleurieu Family Practice, her medical notes from the Bayside Family and Medical Musculoskeletal Practice, and a medical report from Dr Norman Broadhurst.
18. EDS, from which Ms Cooke suffers, is a genetic condition which is also known as familial articular hypermobility syndrome. Although she was born with this condition and, on her account, she has been plagued with symptoms for many years, the condition was only diagnosed in late 2006 after genetic testing was carried out.
19. As a child, Ms Cooke experienced aches and pains in her joints and an inability to sit comfortably. While other children could sit on the floor with their legs crossed, she describes having to sit with her legs angled out to the side like a frog because of her inability to sit comfortably in many positions. She had trouble sitting on a chair with a straight back as she would suffer intense pain and so she had to frequently change her position and move from her chair, which resulted in difficulties in her schooling. Teachers interpreted her restlessness to be poor behaviour as her condition was undiagnosed at the time and for many years thereafter. Other children considered that she was “freakish”. She had trouble making friends. She spent a great deal of time in the sick bay because of the chronic migraines that she suffers from.
20. The lack of medical understanding of EDS in her school years resulted in her being marginalised and it has affected her self-esteem. She describes herself as still being resentful of authoritative figures, and she has difficulty dealing with Centrelink staff and medical personnel. She has developed a dislike of using phones, even to make a doctor’s appointment.
21. She summarises her symptoms and physical problems in her statutory declaration as follows:
    • pain throughout her body on a daily basis;
    • an inability to sit in a normal position;
    • an inability to stand for prolonged periods;
    • an inability to lift her arms and carry moderate to heavy weights;
    • an inability to perform everyday tasks, eg making her bed, hanging out washing or cleaning a house; and
    • debilitating headaches which she suffers between one and three times per week.
22. Ms Cooke left school in the middle of year 10 with no idea of what she could possibly do as a job. She lacked confidence in doing most jobs at that point. She had tried some work experience at a wildlife park, but found the work too physically demanding.
23. Her grandmother then bought the Post Office at Myponga to see if she could work there. Ms Cooke started working there, but soon found it exacerbated her backache and chronic migraines and she could not sort the mail because of the chronic back pain caused by standing for any period of time.
24. She commenced a course of treatment with a chiropractor in September 2007 and she is still undergoing a lengthy process of treatment. She had previously tried hydrotherapy, which gave her minimal relief. She has tried physiotherapy, but found that the exercises caused her pain. For example, if she did lateral weight lifting it could cause her shoulders to dislocate. Paragraph 16 of her statutory declaration outlines the treatment options that she has pursued over a period of years.
25. She can sit for about 10 minutes before she has to change position. She suffers pain in her back, neck, hip and knees. She enjoys drawing and she draws with her knees raised as she cannot sit normally, and cannot sit on her feet. Her fingers become sore and she has to crack her knuckles to release the tension in the joints. Quite often she sits in the front row if she is going to the movies or she sits on the floor as that is the only comfortable position she can find.
26. Her condition has also caused her to suffer from depression. She took anti-depressants for a while, but has not persisted with them because of the effect. She has not seen a psychologist. She does not go out very often. She sits at home and draws and writes, but even this hurts her back and neck. She is now living in Adelaide and sharing a house with friends. They catch buses into town. She does not want a driver’s licence and she does not believe she would be able to obtain one. Repetitive movements cause problems for her and she continues to suffer migraines approximately every second day. She does not believe that she could keep up with a normal job because of her condition.
27. Her predominant interest at present is in illustrating a story that she has written that she wants to turn into a comic. She enjoys sketching and colouring on the computer. She is currently looking at TAFE courses. There is a costuming course that she is interested in and she has some artistic ability.
28. She said that Dr Broadhurst told her that there is not a lot that can be done for her condition. He gave her some exercises which involved stretching and repetitive movements. She found that these caused her pain and so she stopped the exercises.
29. At the time of the hearing she had been issued with a three-month sickness certificate because of her condition and she was not required to seek employment.
30. Mrs Johnson also gave evidence to the Tribunal and provided a lengthy written submission.
31. She has done a lot to assist her granddaughter to find a path through her schooling and to find a place in the workforce. She described the only possible treatment for her granddaughter’s condition as being palliation. She has researched EDS through the internet. She told the Tribunal that there are no exercises that will strengthen her granddaughter’s connective tissues. Her own reading indicates that none of the therapies have a high success rate and that her granddaughter’s pain is likely to worsen over time.
32. She saw first hand her granddaughter’s attempts to work at the Myponga Post Office and it was quickly evident to her that she could not work for any significant period of time because of her physical problems and her pain. At one stage she found her granddaughter lying on a concrete floor because of the back pain she was experiencing.

OTHER RELEVANT EVIDENCE

33. Dr Brenton Martin provided the treating doctor's report that accompanied the application. He has been Ms Cooke’s treating doctor for many years. In that report (T19) he expressed the opinion that because of her conditions, it would be more than 24 months before she could work for even 8 to 14 hours per week. He confirmed the EDS from which she suffers and that it leaves her with constant fatigue and weakness of muscles, lethargy joint aches and pains and associated depressive symptoms. At that point she had been seen by an orthopaedic surgeon and a genetic medical expert, Professor Haan. She had been referred to physiotherapy and to a cardiologist.
34. His medical notes provided some medical history back to the year 2000. It is evident that pain and problems with her joints have been ongoing for a number of years. She was referred for orthopaedic opinion in mid-2004 because of shoulder pain and recurrent subluxation of her left shoulder for two years.
35. From approximately 2003 onwards, there is a theme of Ms Cooke requiring treatment for depression and for various muscular problems. There is a reference to her suffering from constant cervical back pain and thoracic pain in April 2006. There is reference to hyperextension of her elbow and wrists and to cervical and thoracic back pain around the same time. It was not until 2006 that EDS was diagnosed.
36. By December 2006 she had been seen by the Genetic Clinic at the Royal Adelaide Hospital, and EDS had been diagnosed. Dr Martin’s notes record that she had been told that she could not work for more than four hours per day and could not sit or stand for long periods of time.
37. In mid-2006 Dr Martin had referred Ms Cooke to see an orthopaedic surgeon, Dr Cundy, for an opinion as to the management of her hypermobile joints. At that stage there was not a clear diagnosis of EDS and Dr Cundy’s report recommended exercise to improve her overall fitness. It was Dr Cundy who suggested a genetic assessment and a paediatric assessment and, it appears, made the referral to the Genetic Clinic.
38. In his report to Dr Cundy of 1 December 2006, Professor Haan of the South Australian Clinical Genetics Service confirmed that Ms Cooke had definite and significant joint hypermobility and that she suffers from either EDS type 3 or a differential diagnosis would be familial articular hypermobility syndrome. Weight loss and regular exercise were recommended, and he suggested that she make contact with the Commonwealth Rehabilitation Service to look at potential avenues for employment.
39. He suggested that her pain be managed by rest and by use of pain relief or anti-inflammatory medication. He confirmed that she had significant joint hypermobility.
40. Dr Martin’s notes in November 2007 record that Ms Cooke had neck and spinal problems with posture and damage consistent with a woman of 40 years of age. This appears to have been reported by the chiropractor.
41. Dr Broadhurst, a musculoskeletal physician, saw Ms Cooke upon referral from Dr Martin made in November 2007. In a report dated 4 June 2008, Dr Broadhurst commented that it would be reasonable that she be granted DSP and he offered to clarify some further issues. In a subsequent report dated 2 July 2008 he comments as follows:

“... Her condition of Erlos Daulos [sic] syndrome is a permanent condition and there is no treatment that will result in a cure for this condition which is likely to deteriorate with the passage of time.
The condition is plagued by chronic daily pain, subluxations do occur at various joints.”

42. In a further treating doctor’s report prepared in March 2007 (T20), Dr Charles Christie expressed the view that she suffered from chronic pain on a daily basis and could not sit or stand for more than 30 minutes. He also diagnosed her as suffering from depression.

THE JOB CAPACITY ASSESSMENT REPORTS

43. There are two job capacity assessment reports contained at T18/176-198. The first report was dated December 2006. In that report the condition of musculoskeletal disorder was accepted as being permanent and the condition of depression was considered to be temporary. Ms Cooke was assessed as having a work capacity of 8 to 14 hours per week, with limitations due to her permanent and ongoing function or restrictions associated with EDS. Light, less skilled work was recommended. It was considered that her future capacity for work with intervention was 15 to 22 hours per week within 24 months.
44. The second job capacity assessment report of April 2007 confirmed the permanency of her musculoskeletal disorder and attributed an impairment rating of 15 to that disorder. Impairment Table 20 was used for this assessment. The condition of depression was assessed as being temporary. Her future capacity for work with intervention was assessed as being from 23 to 29 hours per week, and her current capacity for work as being 15 to 22 hours per week. Vocational rehabilitation was recommended on the basis that she requires a number of specialised disability specific interventions as delivered in a case managed program of assistance (T18/195).

DISCUSSION

45. The Tribunal accepted Ms Cooke’s evidence. The Tribunal also observed the significant discomfort she was in throughout the hearing as she was unable to sit normally or stand for any extended period of time. She presented as a genuine witness and as a young person who was genuinely afflicted by an unusual and distressing disability.

WHAT TABLES SHOULD BE USED FOR THE PURPOSE OF ASSESSING MS COOKE’S IMPAIRMENT?

46. Centrelink and the SSAT have used Table 20 of the impairment tables, in assessing an impairment rating for Ms Cooke’s disability. Table 20 is designed to assess conditions that cause chronic fatigue or pain. It has been quite appropriately used.
47. Mrs Johnson argues that Ms Cooke should also be allocated 10 points under Table 4, which is the table used to assess function of the lower limbs. She argues that Ms Cooke has stability and mobility problems with her lower limbs that come within the definition of causing moderate interference with walking and with, in particular, sitting and squatting.
48. There was no evidence that Ms Cooke’s walking is affected. The Tribunal accepts that Ms Cooke does suffer some instability of her lower limbs and, to some degree, her upper limbs because of her condition. The Tribunal is not satisfied that her disability puts her within the particular category in Table 4 as submitted by Mrs Johnson.
49. To attract a rating under Table 20, the Tribunal must be satisfied that Ms Cooke’s condition has been documented and diagnosed, which it has. The Tribunal must also be satisfied that it must be investigated, treated and stabilised.
50. Her condition has been documented, diagnosed, investigated and treated. It has stabilised in the sense that it will never be stable and it is a condition that, on Dr Broadhurst’s account, will worsen with time. It is an unusual syndrome and physiotherapy, hydrotherapy and even chiropractic treatment have done little to assist Ms Cooke. She has tried to do exercises suggested by the physiotherapist, but they have caused problems. This is a condition of long standing and, in the Tribunal’s view, it is permanent within the meaning of the legislation. It is more likely than not to persist with the foreseeable future and for more than two years.
51. Having considered all the evidence, the Tribunal is satisfied that 20 points should be allocated to Ms Cooke’s condition under Table 20. She has significant symptoms. Doctors have commented that her self-care is sometimes affected. She completes many daily activities with some difficulty and cannot do some at all. Her symptoms cause significant interference with her ability to perform or persist with work-related tasks and her symptoms are such that it is likely that she would have significant periods of absence from work.

DOES MS COOKE HAVE A CONTINUING INABILITY TO WORK?

52. The remaining issue for the Tribunal to consider is whether Ms Cooke, having satisfied the requirement of having a physical condition that attracts an impairment rating of 20 points or more under the tables, also has a continuing inability to work as defined by the legislation.
53. The Tribunal finds that Ms Cooke will not be in a position to work for 15 hours or more in the workplace within the next two years. Her treating doctor supports this position. The impairment in itself does not prevent Ms Cooke from undertaking educational or vocational training during the next two years. The Tribunal acknowledges that she psychologically feels that there is little that she can do because of her experiences at school, her experience when she tried to work in her grandmother’s Post Office, and her experience when she did some job experience in a wildlife park. Nevertheless, she is young, she has artistic skills and she has acknowledged that she is actively looking for a TAFE course that may lead her into the workforce.
54. The Tribunal is mindful of the limited education that Ms Cooke completed. She has also suffered significant psychological effects as a result of EDS. This, combined with her disability, puts her at a disadvantage in terms of gaining qualifications. She will also require appropriate disability specific support to assist her in pursuing vocational aspirations.
55. The Tribunal is satisfied that the impairment is not such that it should prevent her from undertaking educational or vocational training or on-the-job training during the next two years. However, given the nature of the disability, there will need to be disability specific allowances made for her.
56. The job capacity assessment report of 2007 was done prior to Dr Broadhurst’s assessment. It acknowledged the need for a referral to the Disability Employment Network for assistance to find and maintain employment. It was clearly contemplated in that report that she may apply for DSP, but that any application should await the outcome of her referral to Dr Broadhurst.
57. Both job capacity assessment reports acknowledged that Ms Cooke also suffers from depression as a temporary condition and that psychological counselling would be needed over time. The condition may be temporary, but it is persistent and longstanding and adds to the difficulty that Ms Cooke faces in doing appropriate vocational training.
58. In the job capacity assessment report of Judy Felgenhaur in December 2006 (T18), which was done for the purpose of the application for DSP, Ms Felgenhaur formed the view that Ms Cooke did require specialist disability employment intervention. She expressed the view that the future capacity for work with intervention was to work 15 to 22 hours per week with disability specific vocational services intervention. At that point there was some prospect of the Post Office purchase by her grandmother giving her some options for employment. The JPET program had been recommended.
59. The issue is whether on-the-job training or vocational or educational training could put Ms Cooke in a position where within two years she could work for 15 hours or more per week.
60. The Tribunal takes note of the fact that not only does Ms Cooke suffer from EDS, but she also suffers from depression, which has not been fully treated over time. This also impacts on her ability to function in any educational program or on-the-job training.
61. In Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 164 ALR 572 Drummond J of the Federal Court commented in relation to s 94(2)(b)(ii) in the following terms at page 580:

“... If there is available training of a kind capable of fitting the claimant within a two year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within two years?
If so, the applicant will not be eligible for the pension. But if there is a two year retraining course available to the claimant but his impairment is sufficient by itself to prevent him completing that course within that two year period, he will qualify for the pension. Training that necessarily takes an able bodied person longer than two years to complete is not training of the kind covered by this provision.”

62. Given all the circumstances of this case, and given the psychological sequelae that Ms Cooke suffers from as a result of the impairment, the Tribunal finds that, on the balance of probabilities, it is going to take her more than two years to undertake a training activity to the point that she is able to work for at least 15 hours per week at award wages or above in the workforce.
63. Dr Broadhurst reports that her condition will deteriorate. Her ability to concentrate and maintain enthusiasm for any educational or vocational program is going to be limited by her depression and the symptoms of her syndrome.
64. The Tribunal hopes that Ms Cooke, who is still very young, will ultimately find her place in the workforce, but the Tribunal is satisfied that it will take substantial disability specific intervention and that it is more likely than not that it will take more than two years for Ms Cooke to be trained to a point where she will be coping with and managing in the workforce for 15 hours or more per week.
65. In the circumstances, the Tribunal is satisfied that Ms Cooke satisfies the requirements of the legislation. She has a disabling illness that she has spent many years trying to manage and it has a significant effect on her ability to cope in the classroom and to cope in the workforce. Disability specific intervention and vocational and educational options that allow her extra time and support in pursuing any course are likely to eventually put her in a position where she can function in the workforce at some level. That is unlikely to be within a period of 24 months from the time that she made application.

DECISION

66. In the circumstances the Tribunal sets aside the decision under review and remits the matter to the respondent on the basis that if all other eligibility requirements are satisfied on the date of application that Ms Cooke satisfies the requirement for DSP.
    

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Dr E T Eriksen (Member)

Signed: .........J Coulthard..............................................

Associate

Date of Hearing 5 August 2008

Date of Decision 28 January 2009

Advocate for the Applicant Mrs C Johnson (Applicant's grandmother)

Advocate for the Respondent Ms M Welfare

Centrelink Legal Services and Procurement Branch