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

[2020] AATA 5947

Barnard and Secretary, Department of Social Services (Social services second review) [2020] AATA 5947 (11 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/3478

Re:Melinda Barnard

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date of decision:  11 December 2020

Date of written reasons:         21 December 2020

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, dated 20 April 2020, and substitutes a decision that the applicant is entitled to a Disability Support Pension because section 94 of the Social Security Act 1991 (Cth) is satisfied.

Deputy President Britten-Jones

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the respondent, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to provide a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for the decision have been transcribed. Some minor amendments and additions have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an ex tempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and the respondent as it is the reasons for the Tribunal’s decision.

I certify that the following thirty-eight [38] paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

.................[sgnd]..............................

Legal and Administrative Assistant

Date of hearing:	11 December 2020
Applicant’s Representatives:	Ms. M Barnard, Self-represented
Respondent’s Representative:	Mr. A Chan, Sparke Helmore Lawyers

ORAL DECISION OF DEPUTY PRESIDENT BRITTEN-JONES

1. This is an application for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, which was made on 30 April 2020.

2. The decision relates to an application for a Disability Support Pension (DSP) which was first brought on 2 October 2019.  That application was rejected.

3. The issues to be decided by the Tribunal are whether at the date of the claim, 2 October 2019, or within 13 weeks of that date, 1 January 2020 (Qualification Period), the applicant satisfied the three criteria for a DSP as provided in s 94 of the Social Security Act 1991 (the Act).  If any one of those three criteria are not met then the application for a DSP must be refused.

4. In respect of the first criteria the respondent accepts, and I find, that the applicant suffers an impairment and satisfies s 94(1)(a) of the Act on the basis that she has been diagnosed with Lynch Syndrome and complex Post Traumatic Stress Disorder (PTSD).

5. In respect of the second criteria in s 94(1)(b) of the Act it is a contested issue as to whether the applicant’s conditions were fully diagnosed, treated and stabilised during the Qualification Period. The focus of the hearing was the complex PTSD and the evidence from the clinical psychologist, Dr Mills.

6. There is reference in the impairment tables with respect to permanency of conditions which requires that a condition be fully diagnosed by an appropriately qualified medical practitioner.  I find that the condition of complex PTSD has been fully diagnosed by an appropriately qualified medical practitioner, namely, Dr Mills, and I do not think there is any real issue about that.  However, in order to be permanent the condition must be fully treated, and must have been fully stabilised, and the condition has to more likely than not be one that would persist for more than two years.

7. When considering whether a condition is fully diagnosed and fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, and not rely purely on self-reporting.  Here, there is corroborating evidence of the condition from Dr Mills.

8. When considering whether a condition is fully stabilised, one also has to look at whether reasonable treatment has been undertaken.

9. If the applicant’s condition is established as being permanent then reference to the impairment tables is required, and in this case the applicant contends that the complex PTSD gives her 20 points under table 5 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, which relates to mental health conditions.

   Evidence from the Applicant

10. With respect to factual findings, the majority of the oral evidence given by the applicant was not challenged.  The applicant said that her problems stemmed from the abuse she suffered by her grandfather starting at the age of two and continuing throughout her childhood.  She has blocked out her thoughts about this and cannot remember much of her childhood.  She said that in around 2010 she found Dr Mills and has been seeing her consistently since that time.  The evidence from Dr Mills is that it was in fact 2011, but not much turns on that.

11. In 2019 the applicant had numerous operations. The first operation was a full hysterectomy in July 2019 when she had a tumour the size of a grapefruit cut out from her uterus.  She has needed painkillers to suppress pain since that time.  Then in early November 2019 the applicant had a double mastectomy.  Issues have arisen with respect to the mastectomy and her breast reconstruction, and she has had a further six operations in the period up to the most recent operation of just two weeks ago.  That surgery has caused her pain and functional impairment in that the movement of her arms is impaired, so she has difficulty lifting and hanging out the washing.  It has also resulted in a worsening of her mental health, which she described as going from chronic to severe as a result of the surgery.  The applicant explained that her complex PTSD gets worse at times, but it is always there.

12. The applicant also explained how the mental health condition affects her day-to-day.  She said that on some days she just sits and stares at the wall and is too afraid to leave the house.  The only people who visit her are nurses and her best friend.  She has not formed a relationship with others because she does not trust people and rarely leaves the house.  She does not read the newspaper because she does not like what she sees in the world because it is too confronting.

13. She receives some assistance with the shopping from her 16-year-old son and her best friend.  Occasionally she gets the courage to go to the shops on her own.  The only hobby or pastime that she has is playing music on her piano.  She is incapable of planning for her future because at the moment she is just trying to recover from her surgery.

14. The applicant explained that she did not engage with her psychologist during the Qualification Period in late 2019 because of the operations which she was having.  She said that prior to her first operation in July 2019 she was seeing Dr Mills regularly, and that she re-engaged with her in early 2020 after her double mastectomy.  She said that, in effect, her therapy was on standstill in late 2019, but that her sessions with Dr Mills are very important to her, and she is frustrated that much of her time with her psychologist has in recent times been spent dealing with the issue of the DSP.

    Evidence from the Clinical Psychologist

15. Dr Mills is a clinical psychologist, and she wrote a comprehensive report on 23 April 2020.  She first saw the applicant in 2011 after being referred to her by the applicant’s general practitioner, who recommended that she receive the maximum amount of psychological counselling regarding what appeared to be PTSD.

16. After her initial session it was the opinion of Dr Mills that the applicant was in fact suffering from complex PTSD which refers to a constellation of symptoms that may result from prolonged chronic exposure to traumatic experiences, especially in childhood.  The exposure to that trauma occurred without the protective element of a supportive family environment. 

17. In the years that Dr Mills has known the applicant she said that she has consistently experienced difficulties maintaining intimate relationships, stable employment, and friendships.  She has also suffered from a range of physical health conditions that may be related to the sensitisation of the various nervous symptoms in the human body.

18. Dr Mills said in her report that she had treated the applicant for her complex PTSD by regular therapy for approximately 24 months from 2011 on a fortnightly or monthly basis, and that she made some progress, but the applicant continued to experience the major symptoms including hyper-vigilance and interpersonal distrust, emotional dis-regulation and a negative concept of self.

19. The intensity of the therapy has reduced so as to be manageable in the longer term.  She said in her report that they take regular breaks from therapy and re-engage, and that the most recent re-engagement was March 2020.  In her oral evidence Dr Mills explained that she saw the applicant at least on an annual basis and often more regularly.  In her report she was of the opinion that the applicant’s condition is still at the severe end of the scale of complex PTSD and has been exacerbated by the diagnosis and treatment she received for Lynch Syndrome.

20. Dr Mills said that the applicant continues to present as being in a chronic state of hyper-vigilance and can be rapidly triggered into a disabling level of anxiety, and at times she shuts down emotionally and can appear completely disconnected.

21. In her report, Dr Mills summarised that the applicant’s mental health difficulties continued to manifest at extreme levels, and that she struggles with hyper-vigilance and recurring panic attacks, flashbacks and intrusive thoughts. The report also said that the applicant is often sleep deprived as she experiences regular nightmares. Dr Mills reported that together they had not been able to make significant progress in the applicant’s functional capacity since her initial attendance in 2011.

22. Dr Mills explained in her oral testimony that efforts were made to achieve improvement in that intensive period of the first two years, but that thereafter when significant improvement was not achieved it was more a management process, and hence it was Dr Mills’ opinion, when asked in cross-examination, that she probably would have considered the applicant as satisfying the criteria for a DSP five years ago.

23. In her report Dr Mills said that the severity of her symptoms has remained consistent and that the addition of the most recent health issue has made it less likely that there will be any significant level of improvement.

24. Dr Mills said that the applicant is unable to engage in work and regularly requires a support person to be with her for most activities. This is despite the applicant having now undergone treatment that can effectively partially or fully manage complex PTSD, including trauma focused cognitive behaviour therapy as well as mindfulness practices and psycho-education.

25. Dr Mills recognised that it was possible that the applicant’s level of disability could change if she continues to engage in ongoing psychotherapy, but said that it was likely to be at a negligible level for the foreseeable future.  In oral testimony Dr Mills opined that any improvement over the next two years, given her condition and nature, was very unlikely.

26. Accordingly, Dr Mills concluded in her report that she was of the opinion that she met the current definition of permanent disability and said that it is highly unlikely that she will experience a significant level of improvement in function during the next two years.

    Fully Diagnosed Treated and Stabilised?

27. I have considered the evidence from the applicant and the evidence from Dr Mills, and, as I said earlier, have reached the conclusion that the condition of complex PTSD was fully diagnosed by an appropriately qualified medical practitioner, namely Dr Mills, during the qualification period.

28. With respect to whether or not the condition was fully treated and stabilised, Dr Mills has described the treatment by way of therapy in that intensive period since 2011 followed by the management of her condition in the period two years after that, and it is apparent from the report of Dr Mills that the applicant’s complex PTSD is at the severe end of the scale, and that that was the position prior to her series of operations in 2019 and 2020, and that it was still at that level when they re-engaged in 2020.

29. I consider that during the Qualification Period her condition of complex PTSD was fully treated and stabilised.

    Impairment

30. With respect to the impairment table number 5 relating to mental health function, the impairments suffered by the applicant have been stated by Dr Mills in her evidence, which has corroborated the evidence from the applicant, and therefore there is more than simply self-reported symptoms.

31. Dr Mills, as I note, is a clinical psychologist, who is eminently well-qualified to give opinions with respect to the mental health functions of the applicant.

32. It is apparent with respect to the table 5 framework that the applicant has difficulties in terms of self-care and living independently, and that her condition impacts on her ability to complete basic grocery shopping and other self-care tasks.

33. In terms of social and recreational activities and travel, it is apparent that the applicant rarely engages in any social activity. In fact, she said that she rarely leaves the house, and if she does it results in her being in a high state of anxiety.

34. In terms of inter-personal relationships, they are very minimal.  They have been severely impacted by her mental health function.  She has not developed any real relationships with other people because she rarely leaves the house. The only exceptions to her minimal interpersonal relationships are the nurses and her friend who come to see her.

35. In terms of concentration and completion of tasks, the applicant was asked about reading the newspaper and said that she just simply does not do it, as it is too confronting and too much for her. She is unable to think about the future and that is all as a consequence of her mental health condition.

    Conclusion

36. It is my finding that the applicant does achieve 20 points under table 5, and that there is a severe functional impact on activities involving mental health function for the reasons that I have set out.

37. I accept the opinion of Dr Mills, which accords with my finding.  I also accept the opinion of Dr Mills that the applicant has a continuing inability to work, and that achieving 15 hours per week over the next two years is very unlikely and not achievable.

38. It is my conclusion that the applicant is successful and should be granted a DSP. The earlier reviewable decision should be set aside and substituted with a decision that the applicant is entitled to a DSP because s 94 of the Act is satisfied.

    END OF ORAL DECISION