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

[2017] AATA 2377

Beattie and Secretary, Department of Social Services (Social services second review) [2017] AATA 2377 (26 September 2017)

Division:GENERAL DIVISION

File Number:           2017/0271

Re:Robyn Beattie

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, Member

Date:26 September 2017

Date of oral reasons:            3 November 2017

Place:Perth

The decision under review is affirmed.

...(Sgd).......................................

Brigadier AG Warner, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant had any physical, intellectual or psychiatric impairments – whether applicant’s impairments attract impairment rating of at least 20 points under the Impairment Tables – whether applicant has continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94 – s 94(1)(b) – s 94(1)(c)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 6 – Table 5

ORAL REASONS FOR DECISION (EDITED)

Brigadier AG Warner, Member

3 November 2017

Brigadier AG Warner, Member: This hearing was conducted on 26 September 2017.  Ms Beattie participated by telephone conference.

1. Ms Beattie seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, which made a decision on 15 November 2016 to affirm a decision of an Authorised Review Officer to cancel Ms Beattie’s Disability Support Pension from 8 June 2016.  In the present proceedings, the Tribunal must decide whether, as at the date of cancellation of Ms Beattie’s DSP on 8 June 2016, she had any physical, intellectual or psychiatric impairments and, if so, whether Ms Beattie’s impairments attract an impairment rating of at least 20 points under the Impairment Tables and, if so, whether Ms Beattie had a continuing inability to work.

2. The statutory provisions relevant to this review are contained in the Social Security Act 1991 and also the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. In section 94 of the Act, it sets out that the first requirement for qualification for the DSP is that a person has an impairment at the time they lodged their claim or at the time, in this case, that the DSP was cancelled. The Respondent accepts, and the Tribunal is satisfied, that Ms Beattie meets this requirement as it is agreed that she had a number of conditions.

3. The second requirement for DSP is also in section 94 of the Social Security Act 1991 and this provides that the person’s impairment must rate 20 points or more against the Impairment Tables at the time the DSP was cancelled.  The Impairment Tables can be found in the Determination.  To apply the Impairment Tables, the condition, or impairment, must be considered permanent and in the Determination the word ‘permanent’ does not have its usual meaning.  For the purposes of the Determination for a condition to be permanent, it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and be fully stabilised and likely to last for more than two years.  This is covered in s 6 of the Determination. 

4. There is also a requirement that an applicant for DSP must have a continuing inability to work pursuant to section 94(1)(c) of the Act. 

5. In relation to the application currently before the Tribunal, Ms Beattie stated as follows:

   I was cut off disability after my assessment, in which the person conducting the assessment stated that she was not going to accept the professional psychiatric assessment of me deeming me 24 per cent, which was lodged by her assessment.  I rang AAT disputing the wrongful decline of the proof of disability, including mental and physical regarding my claim.  As it took a long time in which I started to gather these files and documents, I was cut off by Centrelink and gained them before AAT assessment to be told she would not accept.  I am now in poverty, cannot work and was told by a person I spoke with in December I would hear within two weeks regarding this matter and it could take four months.  I also re-lodged all documents to Centrelink, which were taken, and now due to no replies contacted Member of Parliament and will also be contacting the Ombudsman.  The unfair treatment by this assessor was unfair and what was written in my cancellation was not entirely correct.

6. At first review, the AAT1 found that Ms Beattie had five impairment points and that she, therefore, failed to satisfy s 94(1)(b) of the Act.  The Respondent also contends that Ms Beattie’s overall impairment rating is five points.  However, this Tribunal is not bound by the AAT1 determination and considers the matter afresh.  Before considering Ms Beattie’s conditions, the Tribunal makes clear that it is looking at whether Ms Beattie satisfied sections 94(1)(b) and (c) of the Act, as at 8 June 2016, and at no other time. If Ms Beattie’s conditions or circumstances have changed since the date of cancellation, the appropriate course of action would be lodgement of a fresh DSP claim.

7. The Tribunal has before it the following evidence:

   ·The “T Documents” (T1-T42, pp1-214) (Exhibit 1);

   ·Supplementary “T Documents” (ST1-ST5, pp 215-232) (Exhibit 2);

   ·Email from Robyn Beattie dated 18 August 2017, enclosing report of Dr Gavin Watson dated 10 August 2017 (Exhibit 3);

   ·Secretary’s Statement of Facts and Contentions, including Annexes A and B, dated11 August 2017;

   ·Medical Report by Dr Kit Frazer dated 22 June 2016; and

   ·The oral evidence of the Applicant.

8. The Tribunal considers Ms Beattie an honest witness, and expresses its sympathy for her in her very difficult circumstances.

9. The Tribunal now considers Ms Beattie’s conditions.  The first condition is migraine.  In the medical report for DSP dated 16 October 2008, Dr O’Brien records a diagnosis of migraine.  In another medical report dated 7 September 2016, Dr Ken Jones, a GP, stated that Ms Beattie’s problems include chronic migraine.  The Job Capacity Assessment (JCA) report dated 25 May 2016 considered that the migraine condition was fully diagnosed but not fully treated and stabilised.  In saying that, the JCA remarked:  “Client reports weekly episodes, despite being managed on medication by GP and is awaiting neurological review at Sir Charles Gairdner Hospital”.

10. The JCA report, dated 26 July 2017, concluded as follows: 

    Although medical evidence by Dr K Jones indicates this condition is stable and will not resolve (indicating fully stabilised) there is no submitted medical evidence to confirm Ms Beattie has had consultation with a specialist of any kind, despite having had an earlier referral to access neurological review which was not followed up. Advice from my contributing assessor indicates that neurological review, pain management intervention and migraine specific therapy may result in improved function within the next two years. Therefore this condition is assessed as not fully treated or stabilised.

11. Having considered the evidence, the Tribunal agrees and concludes that this condition cannot be rated under the Impairment Tables.

12. The second condition is the thumb condition, or hand condition/arthritis.  The medical evidence indicates that this condition was diagnosed after the cancellation of Ms Beattie’s DSP. An X-ray report dated 21 June 2016 indicated that Ms Beattie was referred due to pain and locking and Dr Roche Helberg, a radiologist, stated in a report that: “There is bilateral severe osteoarthritis involving the first carpometacarpal joints”.

13. Further, in a medical report dated 7 September 2016, Dr Jones stated that: “The applicant’s problems include severe arthritis hands”.

14. The Job Capacity Assessment report dated 26 July 2017 remarked that:

    The client has been referred for further specialist assessment of symptoms affecting the shoulder, neck, low back, elbows and hands.  Advice from a contributing assessor indicates that diagnosis specific intervention may result in improved function. Consequently this condition is assessed as not fully diagnosed.

15. Before the Tribunal Ms Beattie said that she was awaiting treatment with respect to her hand and did not know if she would have surgery.  She told the Tribunal that she has an appointment on 19 October 2017.  There is no evidence before the tribunal of treatment for this condition prior to the date of cancellation and a medical report by Dr T Falconer, orthopaedic surgeon, dated 7 April 2017 confirms that: “She has not had any type of injections or steroids or being investigated for any inflammatory arthropathy”. 

16. Dr Falconer reported that he had referred Ms Beattie to a rheumatologist at Sir Charles Gairdner Hospital.

17. With respect to this condition, the Job Capacity Assessment report remarks that: “… diagnosis specific intervention may result in improved function. Consequently, this condition is assessed as not fully diagnosed”.

18. The Tribunal concludes that at the date of cancellation this condition was not fully diagnosed, treated and stabilised and, therefore, cannot be rated under the Impairment Tables.

19. Turning to Ms Beattie’s spine condition, medical evidence with respect to this spine condition is detailed comprehensively in the Respondent’s Statements of Facts and Contentions dated 11 August 2017 at paragraphs 65 to 72 and is not disputed.

20. The evidence indicates that as at the date of cancellation there was no medical evidence that Ms Beattie had been diagnosed with a spinal condition.  There is no medical evidence that she had undertaken any treatment for such a condition prior to the date of cancellation.  Treatment first occurred in November 2016 with a guided facet joint injection and a referral for physiotherapy.  Ms Beattie was also referred for a specialist review which occurred in April 2017.

21. Relevantly, the Job Capacity Assessment report dated 26 July 2017 concluded that:

    … this is a permanent condition and has been diagnosed via radiological report this condition is assessed as permanent and fully diagnosed… advice from a Contributing Assessor indicates specialist assessment, pain management intervention and a comprehensive physical therapy program may improve function. Consequently this condition is assessed as not fully treated or stabilised.

22. Having regard to all the information before it, the Tribunal concludes that at the date of cancellation, the spinal condition was not fully diagnosed, treated and stabilised and, therefore, cannot be rated under the Impairment Tables.

23. The Tribunal next considers the condition of swollen feet.  A Perth Radiological Clinic report by Dr Ramon Sheehan dated 29 November 2016 showed that Ms Beattie had: “Feet pain and swelling and ice cold sensation and red/blue colour change to LBP. Right buttock ache posterior thigh and groin”.

24. However, there is no medical evidence that Ms Beattie was suffering from this condition at the date of cancellation, nor is there evidence that treatment had been undertaken for this condition at the date of cancellation.  The Tribunal is satisfied that this condition cannot be rated under the Impairment Tables. 

25. The Tribunal next considers the condition of chronic palpitations. 

26. Dr Ken Jones in a medical report dated 7 September 2016, stated that Ms Beattie’s “problems include chronic palpitations”.  In a further report on 9 December 2016, Dr Jones noted: “Palpitations under investigation”. In a third medical report, dated 11 June 2017, Dr Jones reports Ms Beattie has “ongoing palpitations of unknown aetiology.  Investigation continues.  This may be a physiological shift symptom of anxiety”.

27. There is no medical evidence before the Tribunal to indicate that Ms Beattie was suffering from this condition at the time of cancellation, and no evidence of a diagnosis being made or that any treatment had been undertaken prior to the date of cancellation of the DSP.  The Tribunal is satisfied that this condition cannot be rated under the Impairment Tables. 

28. The Tribunal now considers the shoulder tumour condition.

29. Ms Beattie told the Tribunal that this condition had been diagnosed recently.  A medical report by Dr Gavin Watson dated 10 August 2017 states as follows:

    The imaging appearances are consistent with a chondroid series tumour.  The lesion is probably enchondroma but the relatively extensive endosteal scalloping and expansion would raise the possibility of a low-grade chondrosarcoma.  Orthopaedic referral for further management is recommended.

30. Having considered the relevant evidence, the Tribunal is satisfied that at the time of the cancellation of the DSP, this condition was not fully diagnosed, treated or stabilised and, therefore, cannot be rated under the Impairment Tables in the present proceedings.

31. The Tribunal now considers the mental health condition.

32. The Respondent accepts that Ms Beattie’s mental health condition of depression and anxiety was fully diagnosed, treated and stabilised on the date of cancellation and, having regard to the evidence, the Tribunal agrees.  In determining Ms Beattie’s impairment under Table 5, Mental Health Function, the Tribunal has regard to the following evidence:

    ·In the Job Capacity Assessment report dated 25 May 2016, the assessor considered that Ms Beattie’s mental health condition caused her moderate impairment attracting 10 points under Table 5.

    ·In a medical report dated 23 April 2016, Dr Jones, a general practitioner, records the impact of the applicant’s depression on her ability to function and symptoms as:

    Poor endurance, low mood, decision-making difficulties, fatigue, highly anxious, no recent relationships, fears relationships lacks trust, insomnia, chronic and loss of drive.

33. Ms Beattie is recorded as having reported to the assessor in the Job Capacity Assessment as follows:

    Client reports she lives independently, drives and has had casual employment as a Patient Services Support Worker at Sir Charles Gairdner Hospital since December 2013 on a casual basis. Client reports she only works 1-2 days per fortnight however Departmental Earnings records show an average of 22 hours per week for the past 3 months.

    … client reports intermittent social isolation, e.g. last went out socially on New Year’s Eve with her son and his girlfriend and has one supportive friend.

    Client reports she has had occasions of interpersonal relationship difficult at work.

34. Ms Beattie’s provided the following evidence to the AAT1 on 22 November 2016:

    ·In regard to her capacity for self-care and independent living, Ms Beattie was able to live independently in her own home and manage her acts of daily living. This represented no functional impact in the domain.

    ·In regard to social and recreational activities and travel, Ms Beattie was fearful of public transport but was able to drive a car and travel to local shops. She did not go out much at present but previously would go to the Joondalup shops every second day. She had one close friend who lived near that she visited. She had otherwise restricted her social activities and was fearful of relationships. This represented mild functional impact in the domain.

    ·In regard to interpersonal relationships, Ms Beattie lived with one child and had good relationships with three of her four children and had friends, although she did not see them often apart from the one friend who lived near her home. However she did not have a partner due to trust issues. This represented mild functional impact in the domain.

    ·In regard to concentration and task completion, Ms Beattie experienced panic attacks, poor self-esteem and motivation and did not like crowds or being around men in the workplace. This represented moderated functional impact in the domain.

    ·In regard to work related impact, Ms Beattie had been able to work up to 22 hours a week as a patient support worker in a hospital over the 2.5 year period prior to cancellation of her DSP. However, during this period there had been days when she had left work due to a panic attack or migraine. This represented mild functional impact in the domain.

35. A letter from Dr Jones dated 18 June 2017 where Dr Jones was responding to a request from the Respondent for a detailed description of the symptoms suffered by Ms Beattie as at 8 June 2016.  In that letter, Dr Jones listed symptoms of:

    Impaired mobility, depressed mood, severe anxiety with social isolation, suicidal ideation, panic disorder, diminished motivation and loss of confidence.

    He noted that these were described and verbatim by the patient.

36. Although the Respondent contends that little weight ought to be attached to Dr Jones’ letter, or evidence that I just described, the Tribunal notes that in his letter Dr Jones did not reject, or dispute, Ms Beattie’s stated symptoms and his letter also states that the functional impacts are expected to persist more than two years from 8 June 2016.

37. Having regard to all the evidence, including the Dr Jones letter dated 18 June 2017 and Ms Beattie’s oral evidence and having carefully considered Table 5, the Tribunal is reasonably satisfied that Ms Beattie suffers a moderate functional impact on activities involving mental health function, thereby attracting 10 points.  This is because the Tribunal considers that she has moderate difficulties with, at the time of cancellation, self-care and independent living, social and recreational activities and travel, interpersonal relationships and work training capacity. For completeness, the Tribunal also carefully considered the requirements for a severe functional impact and is reasonably satisfied that Ms Beattie does not have severe difficulties with most of the seven criteria listed. 

38. It follows from the reasons given, that the decision to cancel Ms Beattie’s DSP was the preferable and correct decision. The Tribunal, therefore, affirms the decision under review. 

I certify that the preceding  38 (thirty eight) paragraphs of the oral reasons for decision are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

..(Sgd)................................................

Administrative Assistant

Dated: 3 November 2017

Date of hearing:

Date of Receipt of Request
For Written Reasons

26 September 2017

27 September 2017

Applicant:

By telephone

Representative for the 
Respondent:

Ms A Wong

Solicitors for the Respondent:

Mills Oakley Lawyers