Betts and Secretary, Department of Social Services (Social services second review) - [2019] AATA 1000

Betts and Secretary, Department of Social Services (Social services second review) [2019] AATA 1000 (27 May 2019)
Division:GENERAL DIVISION
File Number: 2018/5127
Re:Ms Sandra Diana Betts
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:27 May 2019
Place:Melbourne

The Tribunal affirms the decision under review
....................[sgd]....................................................
Ms Anna Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – back pain, asthma/cough, generalised anxiety disorder/depression and osteoporosis (left hip pain)– whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Cases
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Kirvan and Secretary, Department of Social Services [2014] AATA 721
Cole and Secretary, Department of Social Services [2014] AATA 252
O'Cass and Secretary, Department of Social Services (Social services second review) [2016] AATA 876
Hansen and Secretary, Department of Social Services (Social services second review) [2016] AATA 1091
Secondary Materials
Guide to Social Security Law, Department of Social Services, Version 1.242 - Released 20 March 2018
REASONS FOR DECISION
Ms Anna Burke AO, Member

Ms Betts (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant her a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act).
On 5 June 2017, Centrelink found that Ms Betts was not entitled to the DSP as she did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 8 February 2019. Ms Betts was self-represented and Ms Kellie Latta, Solicitor of Sparke Helmore, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Latta.
THE ISSUES IN CONTENTION
The issues in contention are whether Ms Betts:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Ms Betts is 58 years of age, lives with her husband and has two adult daughters. She has completed a Bachelor of Applied Science and Physiotherapy, a Graduate Diploma in Occupational Health & Safety Management and a Graduate Diploma in Civil Ceremonies. She last worked in 2009, in numerous part-time physiotherapist positions. She is a registered marriage celebrant and is currently enrolled in a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Betts and Secretary, Department of Social Services (Social services second review) [2019] AATA 1000
Case: [2019] AATA 1000
Decision Date: 27 May 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application for a Disability Support Pension (DSP) by Ms Betts against the Secretary, Department of Social Services. Ms Betts sought the DSP based on a range of physical and psychiatric impairments, including back pain, asthma, anxiety, depression, and osteoporosis. The central dispute revolved around whether Ms Betts' conditions met the criteria for a DSP, specifically concerning the severity of her impairments and whether she had undertaken a required program of support.

The legal issues before the Tribunal were whether Ms Betts suffered from a physical, intellectual, or psychiatric impairment; whether her conditions were fully diagnosed, treated, and stabilised, and likely to continue for at least two years; whether these conditions attracted a rating of 20 points or more under the Impairment Tables; and whether she had a continuing inability to work. The Tribunal also considered the definition of the "relevant period" for assessing these criteria, which for non-severe impairments, was the 36 months preceding the DSP claim.

The Tribunal found that Ms Betts did suffer from impairments, including mental health conditions, spinal and respiratory issues, and lower limb disorders, satisfying the initial requirement under section 94(1)(a) of the Social Security Act 1991. However, the critical determination was whether these impairments attracted a rating of 20 points or more under the Impairment Tables, as required by section 94(1)(b). While acknowledging the significant impact of her daughter's murder on her mental health and the exacerbation of her alcohol use disorder, the Tribunal did not find that her conditions, as presented and assessed by the medical evidence, met the threshold for a 20-point impairment rating under the Impairment Tables. The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

The issues in contention are whether Ms Betts:(a)has a physical, intellectual or psychiatric impairment;(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and(d)has a continuing inability to work.BACKGROUND Ms Betts is 58 years of age, lives with her husband and has two adult daughters. She has completed a Bachelor of Applied Science and Physiotherapy, a Graduate Diploma in Occupational Health & Safety Management and a Graduate Diploma in Civil Ceremonies. She last worked in 2009, in numerous part-time physiotherapist positions. She is a registered marriage celebrant and is currently enrolled in a Juris Doctor at RMIT. In August 2009, Ms Betts’ daughter was murdered and her killer dumped her dismembered body parts from a pier Ms Betts discovered her daughter had been murdered after reading a newspaper article about a leg that had been found off Phillip Island which had a distinct tattoo on the foot. After further investigation of internet articles and Facebook posts Ms Betts contacted police about her suspicions that the body part belonged to her daughter. Following DNA testing, the police confirmed that her daughter had been murdered. On 2 May 2017, Ms Betts lodged an application for DSP, citing her medical conditions as: (a)major depression, post-traumatic stress disorder, anxiety, alcohol use disorder – 20% whole person impairment; (b)hypertension;(c)hypothyroid autoimmune disorder;(d)type 1 insulin-dependent diabetes;(e)decreased oxygen diffusion - lung parenchymal dysfunction; (f)shortness of breath on exertion; (g)left total knee joint replacement;(h)left hip recurrent trochanteric bursitis; (i)C3-C4 severe left facet joint degeneration, hypertrophy, osteophytes and narrowing left intervertebral foramen; (j)C4-C5: broad-based disc bulge, left side bony hypertrophy, disc space narrowing and marginal osteophytes; (k)C5-C6: broad disc protrusion into neural foramen bilaterally, right facet joint osteophytes, and narrowing intervertebral foramen; (l)grade 1 retrolisthesis of C5 on C6; (m)C5-C6 severe spinal stenosis due to posterior osteophytes, 8 mm anterior-posterior (sagittal) diameter of spinal cord space (approximately 4 mm flattening as normal = 12mm);(n)right C5 neural foraminal stenosis; (o)left mild-moderate C5 neutral foraminal stenosis from facet and disc degeneration; (p)C6-C7: right lateral disc protrusion with uncovertebral joint degeneration; (q)C6 severe neural foraminal stenosis; (r)C7 right neural foraminal stenosis;(s)right C6 nerve compression; (t)C5, C6, C7 upper limb radiated nerve pain and occasional paraesthesia right>left;(u)occasional effects handwriting hand; (v)mild lumbar scoliosis. Convex to right; (w)L5-S1 circumferential disc bulge, L4-L5 and L5-S1 advanced facet disease and disc disease; (x)recurrent right>left radiating sciatic nerve pain and paraesthesias, buttocks and lower limbs; and (y)right 2nd and 3rd toes adducted, 2nd over 1st frequently.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

The relevant period means:(a) in relation to a person (other than a reviewed 2008‑2011 DSP starter) whose impairment is not a severe impairment—the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the personTHE TRIBUNAL’S CONSIDERATION AND FINDINGSEvidence before the Tribunal The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, supplementary T documents, additional medical reports, as well as other information and numerous cases provided by Ms Betts.DOES MS BETTS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT? Section 94(1)(a) of the Act provides that to qualify for the DSP, in the first instance, a person must suffer from an impairment. The parties accept that Ms Betts was suffering from a mental health condition, alcohol use disorder, spinal condition, respiratory condition and lower limb disorder - left hip and knee during the qualifying period. Accordingly, the Tribunal finds that Ms Betts meets the requirements of s 94(1)(a) of the Act. As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables. Mental health/alcohol use disorder Doctor Stephen Adlard, consultant psychiatrist, in a medico-legal report of 6 July 2016, states:She said her daughter… was brutally murdered by a man… who had murdered twice before, and was on parole at the time of [her daughter’s] death. [Her daughter’s] body was dismembered and not fully recovered and it took some time for the body parts that were found to be confirmed to be [her daughter’s]. Following [her daughter’s] death, Ms Betts describe significant psychiatric symptoms which have persisted despite treatment and the passage of time. She now describes lowered and anxious mood, impaired sleep, recurrent distressing thoughts about her daughter, some hyperarousal, subjectively impaired cognition, some guilt and ongoing anger related to the justice system.I note that Ms Betts drank alcohol excessively prior to the death of her daughter, and she stated that she drank about 1 L of wine per day. Nonetheless she was heavily involved in a number of activities including working a number of jobs part-time and being involved with a political party and other social/community groups. Her alcohol intake has dramatically increased since the death of her daughter and now she has very hazardous levels of alcohol use, approximately 2.5 L of wine per day (about 20 standard drinks). In terms of her psychiatric conditions, I think it likely, based on history given, that Ms Betts had a couple of episodes of what were probably either brief depressive episodes or brief Adjustment Disorders in 1996 and 2000, from which she appeared to recover well. She clearly had an Alcohol Use Disorder prior to the death of her daughter. I think following the murder of her daughter she has developed an aggravation of her pre-existing Alcohol Use Disorder, and she also developed Major Depressive Disorder. There are some features of traumatisation though she does not meet the criteria for Post Traumatic Stress Disorder.…In my view, Ms Betts needs ongoing psychiatric treatment and particularly she needs treatment to address her serious alcohol use. I would recommend that she see a psychiatrist who also has expertise in managing Alcohol Use Disorders. I think she will need medication to control excessive alcohol use as well. The antidepressants, anti-alcohol medication and consultation with a psychiatrist (approximately two years for a total of approximately 40 sessions) would in my view cost $15,000.…She has a quite limited lifestyle now and she is not able to work. In my opinion there is no way she could work with her level of psychiatric distress and her excessive alcohol use. I note that while she drank excessively prior to the death of her daughter, she was still able to work and involve herself in a number of social and community activities, and this has changed quite substantially since the murder of her daughter.