LXHB and Secretary, Department of Social Services (Social services second review) [2015] AATA 750 (25 September 2015)

Last Updated: 28 September 2015

LXHB and Secretary, Department of Social Services (Social services second review) [2015] AATA 750 (25 September 2015)

Division	GENERAL DIVISION
File Number(s)	2013/6762
Re	LXHB
	APPLICANT
And	Secretary, Department of Social Services
	RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	25 September 2015
Place	Hobart

The Tribunal affirms the decision under review

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Ms A F Cunningham (Senior Member)

CATCHWORDS

Social Security – disability support pension – failure to satisfy qualification requirements – decision under review affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2001

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

REASONS FOR DECISION

1. The Applicant has appealed a decision of the Social Security Appeals Tribunal dated 25 November 2013 which affirmed a Centrelink decision to cancel her Disability Support Pension (DSP) on the basis that she no longer met the qualification criteria under the new legislation.
2. The application for review was received on the 20 December 2013 which included a typed written letter from the Applicant who is unrepresented. The Applicant has also submitted voluminous correspondence in support of her application.

BACKGROUND

3. On 29 January 2015 directions were made requiring the Respondent to file all medical evidence and any other documents on which the Respondent intends to rely together with a Statement of Facts and Contentions on or before 5 March 2015. The Applicant was directed to file and serve all medical evidence and any other documents on which she intends to rely at the hearing, together with a witness statement limited to 15 pages on or before 30 April 2015.
4. A Statement of Facts and Contentions and a List of Authorities was received from the Respondent on 2 March 2015. The Applicant failed to comply with the Tribunal’s directions and continued to submit various correspondence. On 5 May 2015 the Tribunal made further directions requiring the Applicant to file and serve all medical evidence and any other documents on which she intends to rely at the hearing and a witness statement limited to 15 pages on or before 30 June 2015. A further direction was made with the consent of both parties that the hearing would be held on the papers. The Applicant was advised that the Tribunal would only consider the contents of the Applicant’s 15 page witness statement and any medical reports filed. The Tribunal’s directions were confirmed in a letter to the Applicant dated 6 July 2015 which required that the Applicant respond to the letter on before 16 July 2015. The Applicant was advised that if she failed to comply with the terms of the letter by that date, the Tribunal may proceed to dismiss her application for review.
5. The Applicant failed to comply with the directions of the Tribunal in that she did not submit a single witness statement limited to 15 pages. The only medical report received was from Doctor Yvonne White, Consultant Psychiatrist who stated that she did not consider that the Applicant has a psychiatric diagnosis.
6. The Tribunal has decided not to dismiss the application but will determine the application for review on the basis of the documentation received in accordance with the Tribunal’s directions. The T-documents are received pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
7. The Social Security Appeals Tribunal (SSAT) was convened by Dr L Cretan, a member with medical qualifications. Dr Cretan found that there was no evidence of an impairment rating of 10 points for the Applicant’s back condition and nor was there sufficient evidence to support a finding of fact that the Applicant has a heart condition. The SSAT concluded that the Applicant did not satisfy the qualification requirements under the provisions of the Social Security Act 1991 (the Act) for DSP.

ISSUE

8. The issue for the Tribunal to determine is whether the Applicant was qualified for DSP on the day on which DSP was cancelled, 15 March 2013.

LEGISLATION

9. The relevant legislation to this application is the Social Security Act 1991 (The Act) and the Social Security (Administration) Act 1999 (Administration Act). Also of relevance is the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2001 (the Determination).
10. The qualification provisions are contained in subsection 94 (1) of the Act. The provisions are conjunctive and a failure to satisfy any one results in a failure to qualify. The Secretary concedes that the Applicant satisfies subsections (a), (c), (d), (da) and (e). The Secretary contends however that the Applicant fails to satisfy subsection (b) in that her impairment rating is less than 20 points.
11. Section 23 of the Act provides that Impairment Tables mean the Tables determined by an instrument under subsection 26 (1) of the Act. The Determination referred to above is the relevant legislative instrument. The Determination contains the Tables in Part 3 and the rules for applying the Tables in Part 2. It provides inter alia, that an impairment rating can only be assigned if the condition causing the impairment is permanent and the impairment that results from that condition is more likely than not to persist for more than two years (Part 2 clause (6)(3)).
12. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner and is fully treated, stabilised and the condition is likely to persist for more than two years (Part 2 clause (6)(4)).
13. In determining whether a condition has been fully diagnosed and treated the Determination provides that consideration be given to any corroborating evidence of the condition, whether treatment or rehabilitation has occurred and whether treatment is continuing or is planned in the next two years (Part 2 clause (6)(5)). The Introduction to Table 4 states that self-reporting of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment. Examples of corroborating evidence include a report from the person’s treating doctor, a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment and a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

CONSIDERATION

14. The Applicant’s application for DSP was supported by a medical report completed by her general practitioner Dr Catherine J Broun on 14 January 2013. The diagnosed condition is described as “low back pain” with an unknown date of onset. Dr Broun stated that the diagnosis is presumptive, that the patient had not consulted her before regarding this spinal problem and that she had no documentation e.g. x-rays. Further, that all details stated in the report regarding clinical history and impact on ability to function had been provided by the patient with little detail in the report regarding past and current treatment with future/planned treatment described as “possible spinal treatment in Melbourne”. A careful perusal of all documentation submitted by the Applicant and that contained in the T-Documents has not revealed any other relevant medical evidence in support of the Applicant’s claim.
15. The Tribunal concurs with the finding of the SSAT that there is no evidence to support an impairment rating of 10 points for the Applicant’s back condition under Table 4 – spinal function. There is no objective evidence which corroborates Dr Broun’s diagnosis which the Tribunal notes is based on the Applicant’s own reporting as to her symptoms and history. There is also insufficient evidence to make a finding with respect to the Applicant’s claimed angina and heart failure condition which the treating doctor noted was based on past history given by the patient.
16. Although there is no provision in the current Social Security legislation which places an evidential onus of proof upon the Applicant, nevertheless an Applicant who has challenged a decision under review must accept responsibility to place before the Tribunal all relevant material upon which the Tribunal can make a decision. In this case the Applicant has failed to do so and nor has she complied with the directions of the Tribunal to provide relevant documentary evidence.
17. There is no material upon which the Tribunal can make a finding that either of the Applicant’s claimed conditions is permanent in that they have been fully diagnosed by an appropriately qualified medical practitioner, fully treated, stabilised and the condition is likely to persist for more than two years. As noted in previous determinations regarding the Applicant’s claim, the Tables clearly state that self-reporting of symptoms alone is insufficient. Although Dr Broun advised a diagnosis of low back pain in the medical report accompanying the Applicant’s claim for DSP, Dr Broun stated that she has relied upon the history and description of symptoms provided by the Applicant and that she had no corroborating documentation.
18. Despite the SSAT’s finding that there is insufficient evidence to satisfy a diagnosis of back condition, the Secretary has conceded that the Applicant meets the qualification requirement in subsection 94 (1) (a) that the Applicant has a physical impairment. For the reasons outlined above, this Tribunal however concurs with the findings of the SSAT that there is insufficient evidence to confirm a diagnosis of either a physical, intellectual or psychiatric impairment that is fully diagnosed, fully treated, fully stabilised and likely to persist for more than two years. Accordingly an impairment rating cannot be assigned. It is unnecessary to consider the remaining qualification requirements of section 94. As the Applicant fails to satisfy the qualification requirements of subsection 94 (1) of the Act, the Tribunal affirms the decision under review.

I certify that the preceding eighteen

(18) paragraphs are a true copy of

the reasons for the decision herein of

Ms A F Cunningham, Senior Member.

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Administrative Assistant

Dated

Date of Hearing Hearing on the Papers

Solicitor for the Applicant Self-represented

Solicitor for the Respondent Mr Brian Sparkes, Program Litigation and Review Branch