Kelly and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 88 (5 February 2010)

Last Updated: 8 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 88

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3365

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MAREE KELLY

Applicant

And

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

Respondent

DECISION

Tribunal

Dr R McRae, Member

Date 5 February 2010

Place Melbourne

Decision

The Tribunal affirms the decision under review.

(sgd) Roderick McRae
Member

SOCIAL SECURITY - disability support pension – qualifying period - fibromyalgia – whether fully diagnosed, treated and stabilised - continuing inability to work - whether able to work 15 hours per week - decision under review affirmed.

Social Security Act 1991 s 94(1) and Schedule 1B

Social Security (Administration) Act 1999 Schedule 2 Clause 4

A Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension paragraphs 4, 5

REASONS FOR DECISION

5 February 2010

Dr R. McRae, Member

1. On 19 August 2008 a Centrelink officer rejected Ms Maree Kelly’s (the Applicant) claim for a Disability Support Pension (DSP) because she failed to satisfy s 94(1) of the Social Security Act 1991 (the Act). Centrelink acts as the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent). The Applicant sought a review of that decision. A Centrelink authorised review officer (ARO) affirmed the decision on 12 January 2009 after receipt of an updated medical report. The Applicant then sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 12 June 2009 the SSAT also affirmed the decision. The Applicant now seeks a review of the SSAT decision by this Tribunal.
2. The issue before the Tribunal is whether the Applicant was entitled to DSP according to the requirements of s 94(1) of the Act at the time of the claim on 4 June 2008 or within the following 13 weeks (the qualifying period). The Tribunal’s decision is that the Applicant was not entitled to DSP at the time of claim for DSP.
3. The Applicant was self-represented and attended the Tribunal by telephone with the permission of the Tribunal. Mr Ben Dubé, a solicitor from Sparke Helmore Lawyers, represented the Respondent. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).

BACKGROUND

4. The Applicant is a 49-year-old Australian woman who receives Newstart Allowance. She operated her own cleaning business on the Gold Coast until April 2008. The Applicant submitted a claim for DSP on 2 June 2008, claiming that she was disabled because of myofascial pain, arthritis, tendonitis and anxiety/stress disorder (T8).
5. The Applicant’s general practitioner (GP), Dr MacKenzie, provided a treating doctor’s report dated 2 June 2008 (T9), which reported myofascial pain, arthritis and tendonitis requiring an exercise program, acupuncture and avoidance of aggravating factors, and an anxiety/stress disorder requiring treatment of nil other than exercises and diversions.
6. Ms Debbi Vivian, a job capacity assessor employed by Centrelink, reviewed the Applicant’s circumstances on 4 June 2008, including the recent medical information. Ms Vivian provided a revised job capacity assessment (JCA). She assessed the Applicant as having no medical conditions that were fully diagnosed treated and stabilised, and a work capacity of 15 - 22 hours per week (PT10). The subsequent medical report, dated 20 November 2008 from the Applicant’s new GP, Dr P Dobie, referred to fibromyalgia. Diagnosis confirmed by rheumatologist. Current treatment was physiotherapy. This report stated chronic anxiety with nil treatment had minimal or limited impact on ability to function.

LEGISLATION

7. Clause 4(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that:

(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

8. Section 94(1) of the Act provides that:

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) ...

9. Chapter 1 of the Guide to the Tables for the Assessment of Work-Related Impairment of Disability Support Pension (the Guide) provides that:

Work is defined in section 94(5) of the Social Security Act 1991. For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.

10. Paragraphs 4, and 5 of The Introduction to the Tables For The Assessment Of Work-Related Impairment For Disability Support Pension (the Impairment Tables) provide that:

...

4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged. (emphasis added)
5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
...

APPLICANT’S SUBMISSIONS

11. The Applicant stated that she had seen the SSAT decision. She stated that my doctor knows I go hard to stay on top of my health, and he thinks I should be on DSP. It was her last resort to claim for DSP. She believed she was stabilised at the time she claimed DSP. She had no new evidence about her eligibility for DSP. She considered the JCA to be unrealistic.

RESPONDENT’S SUBMISSION

12. The Respondent submitted that the Applicant did not have medical conditions that were fully documented, diagnosed, investigated, treated and stabilised in the qualifying period, as required by the Act. She did not achieve the required 20 impairment points according to the Guide. She did not have a continuing inability to work for at least 15 hours per week in the qualifying period. The Respondent also submitted that there was no impairment that would have prevented the Applicant from undertaking educational or vocational training. Therefore, the Applicant failed to satisfy s 94(1) of the Act.

FINDINGS

13. The Applicant claimed DSP on 2 June 2008. Her qualifying period was to 1 September 2008 (the qualifying period).
14. Doctors Mackenzie and Dobie performed reasonably contemporaneous medical assessments. Ms Vivian embraced their findings and conclusions in performing her JCA.
15. The Applicant has received a new diagnosis related to her symptoms and a new treatment plan in the period between 2 June 2008 and 20 November 2008.
16. During the qualifying period there were alterations in diagnosis, investigation and treatment of the Applicant’s conditions. Therefore, it is not possible to regard the conditions as being fully treated and stabilised during the qualifying period as required by the Act.
17. No impairment rating can be assigned for the medical conditions claimed for DSP.

CONCLUSION

18. The Applicant does not satisfy s 94(1)(b) of the Act in that the conditions for which she is claiming DSP were not fully documented, diagnosed, investigated, treated and stabilised in the qualifying period.
19. The Tribunal concludes that, at the time of her claim for DSP and the 13 weeks following, the Applicant did not satisfy the requirements necessary to qualify for DSP.

DECISION

20. Accordingly, the decision to reject the claim for DSP was the correct decision. The Tribunal affirms the decision of the SSAT made on 12 June 2009.
    

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of

Dr R McRae, Member

(sgd): Dianne Eva

Clerk

Date of Hearing 3 December 2009

Date of Decision 5 February 2010

Advocate for the Applicant Self Represented

Advocate for the Respondent Mr B Dubé, Centrelink Legal Services