Abdulrahman and Secretary, Department of Social Services (Social services second review)

[2016] AATA 723

Abdulrahman and Secretary, Department of Social Services (Social services second review) [2016] AATA 723 (20 September 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3294
Re	Asmaa Abdulrahman
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	William Stefaniak AM RFD, Senior Member
Date	4 July 2016
Date of written reasons	20 September 2016
Place	Sydney

The decision under review is affirmed.

.................................[sgd].......................................

William Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation - whether impairments permanent – whether impairments fully diagnosed, treated and stabilised – impairment tables – Applicant claims to suffer from an ankle injury, hypercalcemia and depression – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

William Stefaniak AM RFD, Senior Member

20 September 2016

BACKGROUND

1. The Applicant, Ms Abdulrahman, was born in 1979. She has not had the easiest childhood. In fact, there were some quite traumatic events that occurred in relation to a forced marriage and some significant mental health issues arising out of problems experienced by her as a young adult and as a child.

2. The Applicant was in receipt of a disability support pension from 28 March 2011 until it was cancelled with effect from 27 February 2015. The pension was granted originally on the basis of impairments arising out of a condition of depression. Whilst the payment continued until 10 April 2015, the actual cancellation date is 27 February 2015.  That is the date that is the relevant date in terms of this appeal and the 13 week period following that date. I have to have regard to what the situation was as at the period from 27 February 2015 to the end of May 2015.

   EVIDENCE

3. The Applicant was reviewed in 2014. In late 2011, the law in relation to disability support pension’s was changed and very much tightened up by the then government, and a much harder system was put in place. Reviews were held, and quite a number of people were affected and had their disability support pensions cancelled.  As a result of the change of circumstances, in 2014 the Applicant’s disability support pension was reviewed, and as part of the review process a Job Capacity Assessment report was prepared on 13 October 2014. It was submitted on 9 December 2014.That report caused a lot of problems as far as the Applicant was concerned.

4. The assessment was done at Liverpool Centrelink office and it took the form of a face-to-face interview on 10 October 2014. The Applicant’s medical conditions were looked at.

5. Firstly, chronic pain of a permanent type. A medical report which Dr Gounder, her GP, made on 4 September 2014, stated that the pain in her body and bones was due to high calcium, familial hypocalciuric hypercalcemia. That diagnosis was made in January 2011.

6. The past treatment, as the Job Capacity Assessment report noted, were regular blood tests, recurrent hospital admissions, specialist consultations through the hospital, medications and supplements. Under the current treatment, there were recurrent hospital admissions which the client reported, regular blood tests, specialist consultations through the hospital, medications and supplements.  The Job Capacity Report ascertained that on average there were two hospital admissions a month and Dr Gounder reported that the client experienced bone pain which was treated with Panadeine Forte and Panadol.

7. However, the report of the assessor stated the Applicant does not take painkillers as she is afraid she would become dependent on medications. Dr Gounder was unable to provide any correspondence from the specialist and reported that there were multiple discharge letters from the hospital. The presented hospital discharge summaries were dated 24 February, 22 March, 7 May, 2 June, 3 July of 2014. The plan for future treatment was to continue with the current treatment. The symptoms as at 4 September 2014 were increased tiredness, dizziness and poor concentration.

8. Discussion with the treating doctor indicated muscle and general weakness, bone pain, lethargy and fatigue. The Applicant said she usually feels very tired and in pain and is unable to do basic activities due to feeling weak. Sometimes she required bed rest, and even during the assessment she would occasionally rest her head on the desk throughout the interview. The medical report from Dr Gounder indicated that the functional impact of the condition was likely to persist for the next 24 months, and within the next two years the effect on the patient’s ability to function was uncertain.

9. It was confirmed with the Health Professional Advisory Unit that the condition was fully diagnosed. However, they thought it was not fully treated or stabilised, and the available medical evidence indicated the Applicant is only receiving intermittent treatment when she presents to the casualty department in an acute situation, and there was limited medical information to confirm long-term treatment process. Dr Gounder on 13 October 2014 was also unable to provide any information regarding the past specialist consultations of the treatment plan.  She was also under the impression that the Applicant was suffering from chronic pain and was being treated with Panadeine Forte and Panadol.  It appears that the Applicant denied that. It was noted that the Applicant would benefit from further medications and a multidisciplinary team approach.

10. The psycho-psychiatric disorder was diagnosed as permanent. Dr Gounder, again on 4 September 2014, had noted the depression, anxiety and panic attacks and OCD. The Applicant reported a past history of depression and substance abuse due to domestic violence. She ceased the substance abuse in 2004 and ended the abusive relationship she was in in that year. Onset of this depression was reported in 2008.

11. The past treatment was counselling and medications, and again, Dr Gounder indicated the Applicant consulted a psychologist once or twice but there was not any correspondence from any psychiatrist or a psychologist, and Dr Gounder was unable to provide any dates or names of past psychiatric or psychological consultations.

12. The Applicant also reported a trial of medication in the past but ceased this due to side effects. The current treatment was counselling by the GP and a health plan prepared by Dr Gounder. The client reported nil current treatments as at that time.

13. There was to be a follow-up with a psychologist referral and there was a note that she needs to take medication. There were symptoms noted of restlessness, anxiety and irritability, and the Applicant reported being forgetful, having a low mood, limited sleep and reduced concentration. Dr Gounder also reported that the Applicant was overwhelmed by her physical condition, which has exacerbated her mental health condition and therefore a mental health plan was prepared for her.

14. The report noted the functional impact of the condition was likely to persist for the next 24 months and within the next two years the effect of the condition on the patient’s ability to function is uncertain.  Again, this report and the assessment done by the Department, was that the condition was not considered as fully diagnosed, as the Applicant’s psychological condition was not confirmed by a clinical psychologist or a psychiatrist, as it had to be.

15. There was also mention of pain in the right ankle, but the evidence before me was that it had been assessed as minor and rated zero under the relevant Table.

16. Having perused the additional documentation in relation to the ankle, I am satisfied it would only attract a maximum of 5 points. At any rate the Applicant stated at the hearing that she was able to walk and stay on her feet for a considerable period of time and that it only played up on cold days. She stated she felt it was not a particular problem. I do agree it is a permanent injury and the Respondent also accepts this. 

17. I would not suggest that the Applicant get a job distributing pamphlets (as was one of the suggested jobs she could do on one of the forms she filled in). That might be a bit of a problem because it involves walking for long periods, but apart from that, from the reports in evidence, the ankle injury does not seem to be something where either party in this particular matter had any particular problem with. I assess that the functional rating is on a scale somewhere between zero and five. 

18. The Job Capacity Assessment made the following recommendations as at the date of cancellation. It said:

    (a)the chronic pain as a result of the hypercalcemia was not fully treated and stabilised as there was a lack of long-term treatment, and there were further treatment options available to the applicant;

    (b)in terms of the psychological condition, the depression, the anxiety, the panic attacks and the like, they also were not fully diagnosed, treated or stabilised, and the reason was that there was no diagnosis by a psychiatrist or a clinical psychologist and there was minimal treatment;

    (c)it further stated the ankle condition had been fully diagnosed, treated and stabilised and they had assigned a zero rating for that.

19. The Applicant was advised back in March 2015 that the Department was going to cancel her pension, with effect from 27 February 2015.

20. She sought a review which was unsuccessful. She sought a further review by the Social Security Appeals Tribunal (SSAT), which was conducted on 2 June 2015 by telephone. That also was unsuccessful, and she then appealed to the AAT.

    THE LEGISLATION

21. The criteria to get disability support pension is that a person has to have a physical, intellectual or psychiatric impairment.

22. The Respondent accepts that the Applicant suffered from impairments at the date of cancellation. The Respondent however maintains that the impairment has to total at least   20 points on the scale, which is set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

23. The schedule is about 100 pages for various illnesses and conditions, ranging from zero points up to 30. There are some 15 conditions covered. As well as satisfying the points required, a person also has to have a continuing inability to work, and an impairment has to be permanent. So even if a person got 30 points but were diagnosed as being better in 12 months, that is not classified as permanent and that person still would not get the disability support pension, because not only does one have to have an impairment and have it to a significant extent which attracts 20 points or more, but it has to be fully diagnosed by an appropriately qualified medical practitioner, it has to be fully treated, it has to be fully stabilised and in the light of the available evidence it has to persist for more than two years.

    CONSIDERATION

24. As far as the Applicant is concerned, that is where the problem lies. In relation to the hypercalcemia, even though the Applicant went to hospital many times, the disease was not fully treated and stabilised and there was a lack of long-term treatment. The documentation before the tribunal also indicated that it was felt that there were further treatment options available.

25. With the psychological condition a diagnosis by a psychiatrist or a clinical psychologist and not by the Applicant’s GP Dr Gounder, was what was required for the Applicant to qualify.

26. Unfortunately, the applicant did not give the Tribunal additional documentation or reports that might have assisted. It should be noted here  – (and I thank the legal representative for the Respondent for the assistance given to the Tribunal and the Applicant on behalf of the Department for providing telephone numbers) that the Tribunal was able ring up as many doctors on behalf of the Applicant as could be located and whom the applicant had actually seen, to see what could be gleaned in terms of how the Applicant’s conditions were as at February to May last year, what their prognosis was, what their diagnosis was, and whether any of that was relevant to the period from 27 February 2015 to late May 2015.

27. This is also important as to any treatment from hereon in.  I am sure the Applicant would be delighted if someone could develop a miracle drug that would help her get over her depression and help her to get over the calcium problem that she has. That would be the best thing that could happen to her and would enable her to go out and work. She said as much in her evidence - “I wish I would be able to work”. I do note from her evidence that she has not worked in any capacity since 2004.

28. I also appreciated the frustration that the Applicant felt at losing her pension. She is not alone in that. Many people really feel frustrated when the rules change They have something that they have been granted and then it is taken away, and they have to go through all these various meetings, see all these different people and chase up all this additional paperwork just to qualify to get something they had before. But, those are the rules and that is the law.

29. One of the doctors contacted by the Tribunal was Dr John Tidmarsh, a very experienced doctor who is a specialist in his field in relation to the calcium problems. His evidence also appears at page 118 of the T documents. He does work for the South Western Sydney Local Health District out of Bankstown Lidcombe Hospital.

30. He told the Tribunal a great deal about hypercalcemia, and the fact that the Applicant had a particularly rare form of calcium problem, namely, that her calcium and corrected calcium is 2.85mmol/L and 2.93mmol/L respectively when it should be about 2.6mmol/L. She is at the top of the range. Now, normally there is not much that can be done and not much that needs to be done with most people, but in her instance, every time she went to a hospital she had to get an intravenous injection to lower the calcium.

31. In terms of treatment, there really is not a huge amount of treatment that can occur for a person in her situation. Dr Tidmarsh he had seen the Applicant on a number of occasions, supervised her and referred her to other people. I should note that Dr Tidmarsh was giving evidence without reference to his notes nevertheless he seemed well and truly across his subject.

32. He thought he had actually referred the Applicant to Professor Flack and he had seen her afterwards, but it turned out that if that had occurred, Professor Flack when he was rung up and spoken to, did not seem to have much knowledge of what he had actually treated her for, and was not able to assist the Tribunal much as a result.

33. Dr Tidmarsh gave a lot of detailed evidence. He also gave evidence that the calcium condition could cause constipation, depression in some people, kidney stones, passing of water and that it was very hard to overcome and it was not easy to treat. He said that the Applicant was a very rare case and he felt that she should be followed up further in the endocrine clinic in Bankstown. He reiterated that her calcium was elevated and it was not much of a problem with some people but for her it caused thirst, incontinence, nausea, possible kidney stone problems, and it needed to be followed up further. He was not sure whether there was any treatment but he felt the person to see in the first instance was Dr Rory Clifton-Bligh at Royal North Shore Hospital.

34. He went on to say that when the Applicant next went to Bankstown Hospital she really needed to get them to contact Rory Clifton-Blight of the Royal North Shore Hospital as he is an expert. He in fact might even know of some treatment that is available.

35. At this stage however, Dr Tidmarsh simply was unable to actually tell the Tribunal one way or any other what treatment, if any, was available.

36. When I asked him about her ability to work, he thought it would be very, very difficult, but he would not say that it was impossible for her to do work. He just was not too sure what sort of work the Applicant could do.

37. Dr Tidmarsh went a long way to saying that this particular condition was such that it would be very hard for the Applicant to get work but he was not prepared to say at the end of the day that she could not do something. Again, he felt the person to see in relation to this was Dr Rory Clifton-Bligh.

38. Dr Tidmarsh also felt that whilst it was unlikely, there may be a treatment and that there may be a drug that could assist, and if there was one, then Dr Rory Clifton-Bligh would be the man to see.

39. As a result of Dr Tidmarsh’s evidence, whilst the Applicant has come close qualifying for DSP, even as at 27 February 2015, in relation to this particular ailment, there is still that window of opportunity, hopefully, in terms of it being treated, maybe by some new drug.

40. The Applicant was encouraged to go and see Dr Tidmarsh and Dr Rory Clifton–Bligh and be further re-examined by them, have them look over any previous papers and to obtain updated reports from them. Dr Tidmarsh said he was happy to see her and assist further in that regard and also help her see Dr Clifton–Bligh.

41. Accordingly, I advised the Applicant to go Bankstown Lidcombe Hospital, to see Dr Tidmarsh and to follow up on this. As a result of Dr Tidmarsh’s evidence, I suspect there is not a huge amount more the Applicant needs to satisfy the Department, but at this stage, as of now, but also as at 27 February 2015, the condition was and is not fully diagnosed and fully treated (although it now is very close in relation to that).

42. The Tribunal also rang up a number of people to see if they could be of any assistance in relation to the question of depression. The Tribunal was fortunate to talk to Dr Sringery, a psychiatrist. He is the man who can see the Applicant and prepare an updated report in relation to her current psychiatric situation.

43. Dr Sringery saw the Applicant on two or three occasions. He said there had been a big gap, between the first and the second occasions. She had been referred to him by Dr Gounder and he gave evidence as to borderline personality disorder, chronic childhood - chaotic childhood, substance abuse as a teenager, and anti-social conduct disorder.

44. He stated she had compulsive disorder and symptoms of depression. She was scared to take any medication because of her previous substance abuse. That in itself is a problem. He did suggest that she see a psychologist for her disorder as that could be something that can help and may mean she would not have to take some types of medication. Clearly any medication she took would have to be compatible with her calcium problems.

45. Dr Sringery did feel an appropriate anti-depressant medication would help, along with psychotherapy from a psychologist. He said it would not be 100 per cent successful in fixing up everything but it could go a long way. When I asked him might that help her in getting into the workforce, he said it would not necessarily help her get into the workforce. He noted that she was tired and lethargic. He indicated the anti-depressants might not help the calcium problems and she needed to be careful with what she actually took. He indicated that he did not think she had actually seen a psychiatrist before.

46. I asked him whether he would be happy to see her and he said he would.  He appreciated the need if he did see her to give proper documentation in relation to any future application for a DSP or other relevant pension that she might make.  I found him to be a very helpful witness, a very useful person to talk to, but again, the evidence he gave indicated that the Applicant still needed to do more work in relation to getting an updated psychiatrist report or one from a clinical psychologist which unfortunately the Applicant has not done. Dr Gounder, is not a clinical psychologist or a psychiatrist, and so again, the need for a specialists report is critical.

1. As at 27 February 2015, or indeed as at today, there was no report done by a suitably qualified person. Nor was there anything to actually indicate that she was fully diagnosed by an appropriately qualified medical practitioner who could attest to the fact that she had been fully treated, and her condition had been fully stabilised.

2. In terms of her mental health, maybe it has not been fully stabilised and it is more likely than not, in the light of available evidence, to persist for more than two years. I am certainly satisfied the problem has been going on for more than two years, but the Applicant has to satisfy what is in the legislation and her inability to do so in 2014 led to her disability support pension being cancelled. 

3. Accordingly, as at the relevant time last year (February to May inclusive) I am satisfied that the Applicant does not qualify for a DSP as a result of section 94(1)(b) and (c), and specifically for the purposes of paragraph 6(3) of the Impairment Tables, paragraph 6(4) provides that the condition has to be certified by an appropriately qualified medical practitioner as permanent (likely to persist for at least 2 more years), fully diagnosed, fully treated and fully stabilised and for the reasons given above, this has not been done.

4. I should say, I am at least satisfied as to the 2 years requirement.

5. The Applicant was also encouraged to go back and see Dr Sringery. He is ready, willing and able and is indeed expecting to see her in relation to helping her with any issues regarding her mental health problems. She was also encouraged to see Centrelink in case she needed to undertake the 18 months program of work employment training and have them help and explain to her what she needed to do, if she could not get 20 points for any one condition. Whilst to me she clearly had real problems with the calcium deficiency it was not readily apparent what table that may fall under.

   DECISION

6. The formal order will be that the decision of the SSAT dated 2 June 2015 is affirmed, and further, I note that as at the date of cancellation, 27 February 2015, the applicant was not qualified for a disability support pension.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of William Stefaniak AM RFD, Senior Member

................................[sgd]........................................

Associate

Dated 20 September 2016

Date(s) of hearing	4 July 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services