Anita DEVI and Secretary, Department of Social Services

[2015] AATA 222

[2015] AATA 222

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4736
Re	Anita DEVI
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	14 April 2015
Place	Sydney

The reviewable decision is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – Applicant not Australian resident – Australia’s social security agreement with New Zealand – whether Applicant severely disabled – whether Applicant’s condition rated 20 points or higher under the Impairment Tables - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

Social Security (International Agreements) Act 1999

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

14 April 2015

BACKGROUND

1. Ms Devi is a 49 year old woman who was born in Fiji but moved to New Zealand in November 1993.

2. On 30 March 2014 Ms Devi moved to Australia. She holds a subclass 444 visa but is not a protected Special Category visa (SCV) holder.

3. On 31 March 2014 Ms Devi lodged a claim for Disability Support Pension (DSP) on the basis that her medical conditions were having an impact on her ability to function. The conditions as described in the claim form included “back injury, asthma, depression, posttraumatic stress, diabetes and cardiovascular [sic]”.

4. On 5 May 2014 Ms Devi attended a face to face job capacity assessment (JCA). The assessor concluded that Ms Devi’s medical conditions warranted an impairment rating of 15 points and that she had a work capacity of 8-14 hours weekly.

5. On 8 May 2014 Centrelink rejected Ms Devi’s claim on the basis that she was not “severely disabled” as defined in Schedule 3 of the Social Security (International Agreements) Act1999 (the International Act) because she was assessed as being able to work for more than eight hours per week.

6. On 8 July 2014 an Authorised Review Officer (ARO) concluded that Ms Devi did not qualify for DSP because she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in that she did not have an impairment rating of 20 points or more.

7. On 19 August 2014 the Social Security Appeals Tribunal (SSAT) found that Ms Devi’s impairment rating was 5 points and that she did not qualify for DSP because she did not satisfy the stipulations of s 94 of the Act.

8. In this proceeding Ms Devi seeks review of the decision by the SSAT

9. Ms Devi attended the hearing alone and was able to give oral evidence.

   ISSUES

10. Ms Devi holds a subclass 444 visa but not a protected SCV.  Accordingly, she is not an “Australian resident” for the purposes of the Act.

11. Relevantly, Australia has a social security agreement with New Zealand, set out in Schedule 3 of the International Act (the New Zealand Agreement). If she is covered by the New Zealand Agreement, art5(1) will allow her to be assessed as an Australian resident.

12. Article 2(2) of the New Zealand Agreement provides that an Australian disability support pension and a New Zealand invalid’s pension shall be limited to cases where a person is severely disabled.

13. “Severely disabled” is defined in art (1)(1)(i) of the New Zealand Agreement as follows:

    “severely disabled” means a person who:

    (i) has a physical impairment, a psychiatric impairment, an intellectual  impairment, or two or all of such impairments , which makes the person , without taking into account any other factor, totally unable:

    (aa) to work for at least the next 2 years; and

    (bb) unable to benefit within the next 2 years form participation in a program of assistance or a rehabilitation program; or

    ….

14. If I accept for present purposes, without deciding, that Ms Devi satisfied the requirements of the New Zealand Agreement, then in order to qualify for DSP Ms Devi had to satisfy the requirements of s 94 of the Act at the date of the claim or within 13 weeks of lodging it (the claim period), in accordance with the requirements of the Social Security (Administration) Act 1999, (the Administration Act). The relevant timeframe is from 31 March 2014 to 30 June 2014.

15. Section 94(1)  of the Act states 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)the Health Secretary ……..

16. It is  agreed that Ms Devi suffers several medical conditions, including ischaemic heart disease (IHD), diabetes, fibromyalgia, depression, hypertension, post-traumatic stress disorder (PTSD), asthma, low back pain, a nasal condition and hypercholesterolemia. She therefore satisfies the requirements of s 94(1)(a) of the Act.

17. The respondent contends that during the claim period Ms Devi did not satisfy the requirements of s 94(1)(b) in that her impairment was not rated at 20 points or higher under the Impairment Tables.

18. Also section 94(2)(aa) of the Act states that a person has  a “continuing inability to work” because of an impairment if the Secretary is satisfied that  “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) - the person has actively participated in a program of support within the meaning of subsection (3C)”.  

19. Subsection 3B states that

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

20. There is no evidence that Ms Devi has participated in approved program of support. This means that her application can only succeed if during the claim period she suffered a severe impairment in respect of any of her medical conditions.

21. It follows that the definitive issues in this proceeding are whether during the claim period :

    (i) Ms Devi’s medical conditions would attract a rating of 20 points or more under the Impairment Tables; or

    (ii) any of her conditions caused a “severe impairment” so that  a rating of  20 points or more could be applied under a single Impairment Table.

    Ms Devi’s Evidence

22. At the hearing Ms Devi explained that since arriving in Australia she has been living with her daughter, her daughter’s husband and two grandchildren.

23. In giving her evidence Ms Devi was alert, demonstrated good verbal skills, a remarkable memory and was able concentrate and remained co-operative for more than three hours.

24. She explained that she had not taken her morning antidepressant medication as it would have made her drowsy.

25. In respect of her IHD Ms Devi described twice weekly episodes of non-specific chest pain. This is immediately relieved by Nitrolingual spray which usually gives her a headache.

26. She stated that she was admitted to hospital in New Zealand on one occasion and was scheduled to have a cardiac angiogram, but this was postponed because she came to Australia. Since arriving in Australia she has been admitted to hospital for chest pain on one occasion, in May 2014.

27. Ms Devi explained that she has suffered diabetes since 2007 but this condition is well controlled with a vegetable diet, oral medication (Metformin) and daily injections of insulin (Lantus), usually administered by her daughter. She is able to inject the insulin herself but her daughter does this because she is a nurse.

28. Ms Devi described the only complication of this condition being occasional symptoms of hypoglycaemia and weight gain.

29. Ms Devi explained that her fibromyalgia was diagnosed in 2002. It manifests as non-specific generalised pain, particularly in the shoulders, and has been treated with painkillers such as codeine and morphine. Ms Devi was unable to provide a satisfactory description of the functional impact of this condition.

30. Ms Devi explained that a doctor diagnosed her with asthma in November 1993 when she arrived in New Zealand and was hospitalised for three days. She indicated that her asthma is well controlled with regular Bricanyl and Symbicort inhalers and intermittent Ventolin Nebuliser when she wheezes, which tends to occur in summer and winter or with changes in the weather.

31. Ms Devi claimed that she has suffered a lumbar spine condition for more than six years. The condition manifests mainly as lower back pain which she describes as constant, radiating to the legs particularly on the left and associated with numbness and tingling.

32. Ms Devi claimed that the impairment resulting from her lumbar spine condition is so severe that she now requires a walker or walking stick to move around the house and a wheelchair when leaving the house.

33. I note, however, that on the day she attended the hearing Ms Devi appeared to be able walk unaided.

34. Treatment for this condition includes taking regular Panadol Osteo, intermittent oral morphine (Ordine) and, in the past, corticosteroid injections which apparently had no effect.

35. Ms Devi stated that she would like to see an orthopaedic surgeon but has been unable to find a surgeon who bulk bills and she cannot afford the usual consultation fee of $350. 

36. Ms Devi stated that the pain tends to be completely relieved when she lies down, particularly when she is asleep. She explained that she generally sleeps uninterrupted from about 7.30pm to 8.00 am each day. After a light breakfast she goes back to sleep and generally sleeps until her grandchildren wake her up in the afternoon.

37. Ms Devi explained that her daughter’s house has two levels and the bathroom is on the upper level. She is able to go to a downstairs toilet by using her walker and that daughter showers her in the laundry while she sits on a stool.

38. In terms of her hypertension and hypercholesterolemia, Ms Devi agreed that these conditions are well controlled with oral medication and cause no functional impairment.

39. In respect of her mental health conditions Ms Devi explained that she is not an outgoing person and has had significant difficulties with family relationships and suffered significant abuse. During the hearing, however, when describing her difficulties with her lower back pain she said “mentally I am OK”.

40. Her current treatment includes Escitalopram and Alprazolam which she has been taking for some years and which she is reluctant to change or reduce in dosage.

41. In her evidence Ms Devi did not actually describe any significant functional impairment in respect of her mental health conditions and attributed most of her functional impairment to her lumbar back pain. 

42. She did, however, describe an episode that occurred about one month ago when she tried to cut her wrists. She called a friend who, in turn, called the police. They arrived at the house and found that she was unharmed. The following day she was visited by the local mental health care team.

43. Ms Devi did not give any evidence with respect to her nasal condition.

    Medical Evidence

44. In a Centrelink Medical Report dated 4 April 2014 Dr Seneviatne, GP,   notes that Ms Devi has been his patient since 2 April 2004 and lists “Major Depression and anxiety and posttraumatic stress disorder” as the medical condition that has the greatest impact on her.

45. Dr Seneviatne notes that the conditions have been present for more than 20 years but indicates that he relies for his information solely on Ms Devi’s self-report.

46. Dr Seneviatne describes the symptoms as “poor concentration, poor memory, severe anxiety and depression” and notes that Ms Devi has been treated with Citalopram and Xanax for 18 to 20 years

47. Apart from the reported symptoms Dr Seneviatne provides no meaningful assessment of any functional impact resulting from Ms Devi’s condition.

48. Dr Seneviatne also lists “insulin dependent diabetes” as a medical condition causing major impact.  Apart from referring to “occasional hypoglycaemic symptoms” he provides no other assessment of functional impact.

49. Dr Seneviatne also lists “hypertension, asthma, low back pain and right shoulder pain” as medical conditions which are generally well managed and cause minimal or limited impact on ability to function.

50. An MRI of the lumbar spine performed on 23 October 2013 is reported as showing “a small L5-S1 protrusion with HIZ lesion. Slight compression of the right S1 nerve root in the lateral recess at the L5-S1 level due to facet artropathy plus flavum hypertrophy”.

51. A CT scan of the lumbo-sacral spine performed on the 8 May 2014 is reported as showing “disc degenerative changes, diffuse disc bulge at L4/5 with moderate canal stenosis and mild bilateral crowding”.

52. On 12 May 2014 Ms Devi was admitted to Blacktown Hospital complaining of chest pain. This lasted for 5-10 minutes before resolving spontaneously.

53. The hospital discharge letter stated that she was released on 13 May 2014 and noted that her ECG and other relevant investigations were normal.

54. An outpatient CT coronary angiogram (CTCA) was arranged for 19 May 2014.

55. In January 2015 Ms Devi was examined by Dr Cranswick, senior specialist cardiologist. In his letter to Ms Devi’s GP dated 7 January 2015 Dr Cranswick made the following summary of her health issues:

    ·Difficult problem-frequent symptoms related to stress/depression

    ·Minor CAD on CTCA – angina normal coronary  arteries/diabetic small vessel disease v GORD

    ·Snorer BMI 44 –Obstructive sleep apnoea /Limited mobility LS disc disease

    ·Challenge  to establish diet weight loss exercise program

56. Dr Cranswick outlined a management plan which includes a change in medication, echocardiogram, stress echo and assessment by an endocrinologist and weight management specialist.

57. In a letter dated 29 January 2015 Dr Seneviatne stated that on 28 April 2014 Ms Devi complained of depressed mood as she was missing her frail mother in New Zealand. On 6 May she complained of lower back pain.

58. I note that in her evidence Ms Devi said that her mother was living in Australia with her son’s family.

59. Dr Seneviatne stated that Ms Devi said that her back pain and depression cause her great discomfort and anguish.

60. Dr Seneviatne indicated that Ms Devi should not lift more than 10 kg and that excessive bending or squatting would not be advisable. He said that she would benefit from losing weight and undertaking a back exercise program to strengthen her core muscles.

61. In a medical certificate dated 29 January 2015 Dr Cheng, GP, expressed the opinion that Ms Devi is qualified for 20 points for her major depression because of poor memory and concentration, as well as multiple medical conditions.

62. In a very brief letter dated 30 January 2015 Dr Obeid noted that Ms Devi had been attending his clinic for three  months  and expressed the opinion that she “has no capacity to work and she requires complex treatment and follow up”.

63. Dr Obeid listed Ms Devi’s various medical conditions, indicating that he had referred her to appropriate specialists for additional opinions and assessments, but provided no other relevant information.

64. In a letter to Ms Devi’s current GP dated 7 February 2015 Dr Kumar, consultant psychiatrist, diagnosed major depression and benzodiazepine dependence.

65. Dr Kumar noted that Ms Devi was

    still struggling with depressive symptoms and though she is on very high doses of an antidepressant (Escitalopram 80 mg daily) and a benzodiazepine  (Alprazolam 3 mg daily) she feels her symptoms are still ongoing. She is however a bit reluctant to [is there a word missing here?] any changes, especially Alprazolam. There is a history of self-harm attempts, though Anita denies any current thoughts, plans or intent of self- harm.

66. Dr Kumar also noted that Ms Devi “was easy to engage in a conversation and was able to articulate her thoughts rationally and logically. She described her mood as low and her affect was depressed and teary. There were no psychotic symptoms and no acute thoughts of self-harm or suicide. Her insight and judgement was fair”.

67. Dr Kumar stated that he was concerned about the high dosage of antidepressants, which Ms Devi feels is not working, as well as her ongoing dependence on Alprazolam. I note that Dr Kumar made no reference to Ms Devi’s regular use of morphine.

68. Dr Kumar indicated that he thought Ms Devi’s medications needed changing, however this should be done in an inpatient setting. He asked her GP to refer Ms Devi to Blacktown Health Services with a view of admitting her to hospital.

69. In a letter dated 12 February 2012 Dr Dowley, ENT specialist, noted that Ms Devi  presented in 2009 complaining of a right sided nasal obstruction, the  result of a previous nasal injury following an assault. In July 2010 an operation to correct a deviated nasal septum was performed.

70. In August 2011 Ms Devi was still complaining of nasal obstruction and rhinorrhoea and she had a second operation in October 2011. On postoperative review she was found to have good nasal airways with a straight nose.

71. In February 2012 Ms Devi again presented with complaints of nasal obstruction, a bent nose and nasal pain. On examination Dr Dowley noted that Ms Devi’s nose was again bent to the left and much narrower than before surgery. However, he found that the nasal septum was straight and that her airways were good bilaterally.

72. Dr Dowland was unable to explain Ms Devi’s complaints and referred her to another specialist for a second opinion, as well as to the regional pain specialist. Dr Dowland commented that he was unhappy about operating on Ms Devi again because he was concerned about her post-operative compliance.

    JCA Reports

73. The JCA report submitted on 6 May 2014 noted that Ms Devi presented well and was cooperative and casually well groomed. She responded well to questions by the assessor with good memory and reasonable levels of concentration.

74. Ms Devi said that she lives alone and is able to self–care with occasional self-neglect, can travel to various appointments independently but prefers to walk.

75. The assessor noted that Ms Devi does have strained interpersonal relationships with occasional arguments and tension and may experience some difficulties completing education or training due to unusual behaviour patterns.

76. In the JCA report submitted on 3 June 2014 Ms Devi’s mental health condition was considered to have a mild to moderate functional impact on her activities involving mental health function based on self-report.

77. Ms Devi reported that she had not been seeing a psychiatrist in New Zealand for more than a year and was looking forward to re-engaging with a psychiatrist in Australia.

78. Ms Devi is said to have reported that she lives alone and is able to self-care but she does rely on family and neighbourhood support to provide food and assistance in cleaning her home. She also indicated that there are days when she prefers not to leave her bed.

79. The assessor noted an apparent contradiction in Ms Devi’s statements in that she claimed that she is isolated and homebound yet referred to positive relationships with neighbours who visit her and to  her attendance at a prayer group.

80. The assessor also comments on some discrepancy between Ms Devi’s self-report and her apparent level of functioning as evidenced by her “ability to make travel arrangements for herself, organise accommodation, adjust to living in a new country and obtaining new treating professionals independently”. 

81. In respect of lower back pain Ms Devi is reported as stating that she needs assistance to cook and clean and - her tolerance for sitting, standing and walking is very limited.  Ms Devi also stated that although she has a current driver’s licence she gets lifts rather than use public transport as she prefers travelling by car.

    CONSIDERATION

82. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) sets out Tables for establishing work related impairment and DSP eligibility.

1. Paragraph 6(3)(a)  of the Determination stipulates that that an impairment can only be assigned a rating if the condition causing the impairment is “permanent”.

2. For the purposes of paragraph 6(3)(a) a condition is permanent if:

   ·the condition has been fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

   ·the condition has been fully treated (paragraph 6(4)(b)); and

   ·the condition has been fully stabilised (paragraph 6(4)(c)).

3. The Introduction to each Table states that “[s]elf-report of symptoms alone is insufficient” and [t]here must be corroborating evidence of the person’s impairment”.

4. Moreover, the Introduction to Table 5 of the Determination, which is to be used where a “person has a permanent condition resulting in functional impairment due to a mental health condition”, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.

5. In my view the evidence indicates that during the claim period Ms Devi’s medical conditions of hypertension, diabetes, asthma and hypercholesterolemia were permanent conditions within the meaning of the Act.

6. All of these conditions were diagnosed in New Zealand some years ago and I am satisfied that both Ms Devi’s evidence and the somewhat limited contemporaneous medical evidence lead to the conclusion that these conditions are fully treated and fully stabilised and are generally well managed with minimal or limited impact on Ms Devi’s ability to function.

7. This means that the rating under the Impairment Tables for each of these conditions is 0 points.

8. In respect of the diagnosis of fibromyalgia or shoulder condition I am not satisfied there is sufficient reliable evidence for the Tribunal to make an informed decision as to whether during the claim period this condition was fully diagnosed, treated and stabilised, which means that no impairment rating can be assigned

9. Ms Devi’s IHD appears not to have been fully diagnosed until May 2014, during the claim period, following a CT coronary angiogram.  In January 2015 Dr Cranswick examined Ms Devi and in his letter of 7 January 2015 provided a thorough assessment of her condition and recommended a comprehensive management plan.

10. As Ms Devi’s condition was not fully diagnosed until the claim period and the new treatment recommendations were not made until six months after the end of the claim period, in my view, it would be difficult to conclude that the condition was fully treated and stabilised during the claim period. This means that no impairment rating can be assigned.

11. In respect of Ms Devi’s nasal condition I find that there is insufficient evidence before the Tribunal to make any meaningful assessment of the condition during the claim period and therefore an impairment rating cannot be assigned.

12. In her oral evidence Ms Devi described a degree of physical impairment which is clearly not consistent with the JCA reports submitted in May and June 2014. There is no obvious explanation for this inconsistency and the contemporaneous reports from the various GPs offer no assistance.

13. Ms Devi attributes most of her claimed physical limitations to her lumbosacral spine condition. This is somewhat problematic as the  radiological investigations done in October 2013 and May 2014 are not entirely consistent with Ms Devi’s claimed impairment.

14. If her impairment is as claimed the only plausible explanation would be that her condition has significantly deteriorated since the previous assessments, and this would require further investigation and specialist assessment.

15. In addition, Ms Devi’s statement that she sleeps most of the time as a means of relieving her back pain is somewhat unconvincing and inconsistent with well-established medical practice with respect to the treatment of lower back pain.

16. Ms Devi’s apparent excessive sleeping is more likely to be related to her mental health condition and may be medication related.

17. In her evidence Ms Devi admitted that she did not take her antidepressant or benzodiazepine medication before the hearing so that she would not be drowsy, and during the hearing she was clearly alert and showed good memory and concentration.

18. Dr Kumar, in his report of 7 February 2013, raised concerns about the high dose of antidepressants and benzodiazepine dependence.

19. For the above reasons I am not satisfied that during the claim period Ms Devi’s lumbar spine condition was fully treated and stabilised and therefore an impairment rating cannot be assigned.

20. In respect of Ms Devi’s mental health condition I accept that she has had many years of treatment for depression, PTSD and anxiety. The issue before the Tribunal however is whether, during the claim period, her condition was fully diagnosed, fully treated and fully stabilised and if so, what was the degree of functional impact on activities involving her mental health function.

21. Ms Devi’s oral evidence was not helpful on this issue.

22. The reports of the various GPs were also unhelpful as they provided no independent assessments and simply repeated Ms Devi’s self-reports of poor memory and poor concentration, problems not observed  during Ms Devi’s presentation at various assessments and the Tribunal hearings.

23. The most helpful document was Dr Kumar’s report, in which he made a more current diagnosis, namely, “major depression and benzodiazepine dependence”.

24. He raised concerns about Ms Devi’s current treatment and noted her reluctance to change from the benzodiazepine Alprazolam.

25. Dr Kumar recommended a change of treatment, noting  that such a change would require admission to an inpatient facility.

26. In my view, Dr Kumar’s assessment clearly leads to the conclusion that Ms Devi’s mental health condition was not fully treated and stabilised during the assessment period and therefore an impairment rating cannot be assigned.

27. For reasons set out above I am satisfied that during the claim period Ms Devi did not have a rating of 20 points or more under the Impairment Tables and therefore did not satisfy the requirements of section 94(1)(b) of Act and was not qualified for DSP.

28. It follows that I do not have to decide whether Ms Devi was “severely disabled” pursuant to the New Zealand Agreement.

    DECISION

29. The reviewable decision is affirmed.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Dr  Ion Alexander, Member

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

Associate

Dated 14 April 2015

Date of hearing	6 March 2015
Applicant	In person
Solicitor for the Respondent	Mr S Davidson, Program Litigation and Review Branch, Department of Human Services