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

[2017] AATA 29

Ball and Secretary, Department of Social Services (Social services second review) [2017] AATA 29 (18 January 2017)

Division	GENERAL DIVISION
File Number	2014/4668
Re	Leanne Ball
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	18 January 2017
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether conditions are fully diagnosed, treated and stabilised - whether applicant's impairments are rated 20 points or more under the Impairment Tables - mental health function - functioning related to alcohol, drug and other substance use - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94(1)(a)

Social Security (Administration) Act 1999 (Cth), s 42, sch 2

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, ss 3, 6 and 11

REASONS FOR DECISION

Senior Member A Poljak

18 January 2017

INTRODUCTION

1. Ms Ball seeks review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 11 August 2014. The SSAT affirmed a decision made by Centrelink on 28 October 2013 to reject Ms Ball’s claim for the disability support pension (“DSP”) which was lodged on 17 June 2013.

2. Ms Ball’s claim for DSP was rejected on the basis that she did not satisfy the eligibility criteria set out on section 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have:

   (i)a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and

   (ii)a continuing inability to work as defined in the Act.

3. For Ms Ball to qualify for DSP, she had to satisfy these criteria on 17 June 2013, when she applied for the DSP, or within the following 13 weeks, that is, by 16 September 2013 pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that Ms Ball was qualified for DSP during the relevant period.

5. The Secretary accepts that Ms Ball suffered from medical conditions during the relevant period. She therefore satisfies section 94(1)(a) of the Act.

6. The issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

   IMPAIRMENT TABLES

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

8. Subsections 6(3) and 6(4) of the Impairment Tables provide that impairment can only be given a rating if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean :

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

11. The Macquarie Dictionary defines undertaken as, inter alia, committing oneself to, taking on, and promising to do a particular thing. I am of the view that to undertake something, there is a level of commitment to see it through.

12. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably assessable to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

13. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, subsection 11(1)(c) provides:

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    MENTAL HEALTH CONDITION

14. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

15. The Introduction to table 5 of the Impairment Tables provides (inter alia):

    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 by a psychiatrist). (emphasis added)

16. The Secretary contends that Ms Ball’s mental health condition was not fully diagnosed during the relevant period because there is no evidence of the diagnostic requirements pursuant to the Introduction of Table 5 being met. In other words, Ms Ball’s mental health condition has not been diagnosed by a clinical psychologist or psychiatrist.

17. I am not satisfied that Ms Ball’s mental health condition was not fully diagnosed, treated and stabilised during the relevant period for the following reasons.

18. Dr Lagaida, general practitioner, states in his report dated 29 July 2014, that Ms Ball suffers from anxiety, depression; post-traumatic stress disorder at that this diagnosis was confirmed by clinical psychologist Ms Rucha Lele in her letter dated 10 October 2013.

19. In a letter dated 10 October 2013, Rucha Lele, psychologist, confirmed that Ms Ball had attended five sessions focused psychological strategies, each an hour in length, following referral from her GP for depression. She further confirmed that Ms Ball was suffering from severe depression and anxiety and recommended that she speak to her GP regarding medication.

20. Although Dr Lagaida and Ms Ball thought that Ms Lele was a clinical psychologist, she unfortunately is not endorsed as a clinical psychologist by AHPRA. She is a registered psychologist. As a result, her evidence is not sufficient to diagnose Ms Ball’s mental health condition pursuant to the Introduction of Table 5 of the Impairment Tables.

21. I also have before me a medical certificate from Dr Kuljic dated 23 January 2016.  Ms Ball first saw Dr Kuljic, a psychiatrist, on 20 February 2015, some 18 months after the relevant period. The medical certificate states that Ms Ball has bipolar affective disorder. It however provides no further detail about how long Ms Ball has been suffering from this condition and whether or not Dr Kuljic considered the condition fully treated during the relevant period.

22. In reply to a request for further consideration of Ms Ball’s condition as presented during the relevant period, Dr Kuljic states in an email dated 22 August 2016, that he assessed Ms Ball for the first time 28/02/2015, what is well behind the date stated in your request. Based on that fact, I will not be able to respond to your questions. Unfortunately this evidence does very little to assist Ms Ball with her application and these proceedings. Dr Kuljic, although a psychiatrist, provides very little evidence regarding Ms Ball’s mental health condition.

23. At hearing, Ms Ball advised that she had sent to the Tribunal via post, a more detailed report from Dr Kuljic. This report has not been received.

24. Based on the evidence before me I am not satisfied that Ms Ball’s mental health condition was fully diagnosed, fully treated and fully stabilised during the relevant period and as such an impairment rating cannot be given for this condition under the Impairment Tables.

    DRUG DEPENDENCY

25. The Secretary accepts that at the relevant period Ms Ball’s condition of drug dependency was fully diagnosed, fully treated and fully stabilised. The question in these proceedings is the level of functional impact of the condition having regard to the Impairment Tables.

26. Ms Ball has been on a maintenance methadone program for approximately 19 years, and continues to be. Dr Bassa, her GP methadone prescriber, in a letter dated 19 December 2014, states that Ms Ball has a severe functional impact from drug use and satisfies the severe criteria in the table 6 of the tables. He says that she has physical, psychological and cognitive impairment as a result of her long-term drug use which has a significant impact on her ability to function on a daily basis. Amongst other things, he describes her low self-esteem and confidence, physical health issues, and her social phobia.

27. Dr Lagaida states, in a letter dated 23 December 2014, that Ms Ball had severe to extreme difficulty adjusting to daily life after the death of her long-term companion support person, which had and continues to have a severe effect on her ability to function on a daily basis.

28. It is very difficult to separate Ms Ball’s mental health condition from any psychological or cognitive impairment as a result of drug dependency. Particularly since there is evidence before me that Ms Ball suffered significant grief and trauma as a result of the death of her long-term companion, friend and support person in 2013. Without sufficient evidence from a clinical psychologist or psychiatrist addressing her mental health condition, I need to put these factors aside for the purposes of assessing her functional impact as a result of her drug dependency.

29. The evidence shows that her remission is long-standing and that she is able to complete most daily activities of daily living. She has not used illegal substances for many years.

30. Her daughter wrote in the letter received by the Tribunal on 9 September 2014 that Ms Ball was able to provide care and assistance to her friend during his illness in March 2013. She would help him with everything from taking him to doctor’s appointments, shopping, medications, chores, showering and using the bathroom.

31. For a severe functional impact rating to be warranted under Table 6 of the Impairment Tables, I need to be satisfied that most of the criteria for that rating apply. Having regard to the evidence before me, I am not satisfied that Ms Ball meets the criteria, being that her remission is only very brief if it occurs, that she spends most of her time using, procuring or recovering from the effects of drugs or other harmful substances, and that she neglects her personal care, hygiene, nutrition and general health.

32. Having regard to Table 6 of the Impairment Tables, I find that Ms Ball has moderate functional impact as a result of her drug dependency. Based on the evidence of Dr Bassa, I am satisfied that Ms Ball is in receipt of treatment and is in sustained remission as she has been on a maintenance Methadone program for approximately 19 years and is able to complete most activities of daily living. Accordingly, her functional impact warrants a rating of 10 points.

    CONCLUSION

33. As Ms Ball’s conditions do not rate 20 or more points under the Impairment Tables, it is not necessary for me to consider whether she had a continuing inability to work during the relevant period.  It follows that her claim for DSP cannot succeed.

34. I affirm the decision under review. 

35. Ms Ball may apply for DSP again at any time.

I certify that the preceding 35 (thirty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated 18 January 2017

Date of hearing	11 November 2016
Applicant	In person
Advocate for the Applicant	Ms K Dibb
Solicitors for the Respondent	Ms V Lan and Ms A Fletcher, Department of Human Services, Department of Human Services