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

Blake and Secretary, Department of Social Services (Social services second review) [2020] AATA 831 (15 April 2020)
Division:GENERAL DIVISION
File Number(s):2019/0382
Re:Helen Blake
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:The Hon. S Parry, Member
Date:15 April 2020
Place:Hobart

The decision under review is affirmed.
..............................[sgd]........................................
The Hon. S Parry, Member
SOCIAL SECURITY - disability support pension – qualification – medical – whether applicant is qualified to be paid disability support pension – whether the applicant’s impairments were fully diagnosed, treated and stabilised – whether the applicant’s impairments attract 20 points or more under the Impairments Table – Decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2014
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
The Hon. S Parry, Member
15 April 2020
DECISION UNDER REVIEW

This is a review of a decision of the Social Services and Child Support Division of the Tribunal (AAT1) dated 7 December 2018, which affirmed a decision of the Department of Human Services (the Department) made on 14 September 2017, to reject Ms Blake’s claim for disability support pension (DSP) lodged on 3 March 2017.
ISSUES
In determining whether the AAT1’s decision is the correct and preferable decision, the General Division of the Administrative Appeals Tribunal (the Tribunal) must apply the qualification criteria for DSP in section 94(1) of the Social Security Act 1991 (the Act). In particular, it must consider whether, as at 3 March 2017 (the date of claim) or within 13 weeks after that date being 2 June 2017 (the qualification period), Ms Blake:
(a)had a physical, intellectual or psychiatric impairment for the purpose of paragraph 94(1)(a) of the Act; and
(b)had an impairment rating of at least 20 points on the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) for the purpose of paragraph 94(1)(b) of the Act; and
(c)had a continuing inability to work, as defined in section 94(2) of the Act, for the purpose of paragraph 94(1)(c) of the Act.
FACTS
On 3 March 2017, Ms Blake lodged a claim for DSP. In the claim form Ms Blake listed her medical conditions as “anxiety disorder, panic attacks, osteoarthritis in knees and associated pain in back and hips, side effects from medications”. On 14 September 2017, the Department rejected Ms Blake’s DSP claim.
Ms Blake sought review of this decision and on 27 August 2018, an Authorised Review Officer (ARO) affirmed the decision made by the Department to reject Ms Blake’s DSP claim.
Ms Blake sought review of the ARO decision and the matter was heard by the AAT1 on 7 December 2018. On the same day the AAT1 affirmed the ARO’s decision to reject Ms Blake’s DSP claim.
On 21 January 2019, Ms Blake applied to this Tribunal for review of the AAT1 decision.
LEGISLATION, POLICY AND LAW
The relevant legislation is set out in the following instruments:
(a)the Act;
(b)the Social Security (Administration) Act 1999 (the Administration Act);
(c)the Impairment Tables; and
(d)the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2014 (POS Determination).
Government policy set out in the Guide to Social Security Law is also relevant, and should be applied, unless there are cogent reasons not to do so.
Qualification for DSP
The qualification criteria for DSP are set out in section 94 of the Act, which provides:
94. Qualification for disability support pension
1A 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
Qualification period
Ms Blake’s claim for DSP must be assessed based on her medical conditions at the date of the claim, or within the qualification period outlined at paragraph 2 of these reasons. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 the Tribunal stated (at [34]):
In the consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
The Tribunal makes it clear in Bobera that it can only consider an applicant’s qualification for DSP within the qualification period. This approach was affirmed by the Federal Court in Gallacher v Secretary, Department of Social Services [2015] FCA 1123. In that decision, Besanko J approved previous observations by the Tribunal that medical reports produced after the qualification period are only relevant to the extent they are referrable to the person’s condition during the qualification period.
Bobera was again cited with approval in Fanning and Secretary, Department of Social Services [2014] AATA 447, where Deputy President Handley stated (at [33]):
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years”. While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
Accordingly, the Respondent contended that at the time of claim and within 13 weeks thereafter, the medical evidence did not support the finding that Ms Blake qualified for DSP.
Impairment Tables
The Impairment Tables are made under section 26(1) of the Act. Paragraph 6 of the Impairment Tables sets out rules for assessing the level of functional impairment of conditions and assigning impairment ratings.
Paragraph 6(1) states that a person’s impairment must be assessed considering the person’s abilities and not what they choose to do or not to do or what others do for the person.
Paragraph 6(3) states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent (in accordance with paragraph 6(4) of the Impairment Tables) and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years.
Therefore, if an applicant’s condition causing the impairment is not “permanent”, the impairment resulting from this condition cannot be assigned an impairment rating.
Paragraph 6(4) provides the meaning of “permanent” for the purposes of paragraph 6(3). A condition is permanent if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner;
(b)has been fully treated;
(c)has been fully stabilised; and
(d)is more likely than not, in light of available evidence, to persist for more than two years.
Under paragraph 6(5), in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
Paragraph 6(6) defines “fully stabilised” for the purposes of paragraphs 6(4)(c) and paragraph11(4) of the Impairment Tables. It provides that a condition is fully stabilised if:
(a)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.
Paragraph 6(7) provides that, for the purposes of paragraph 6(6) of the Impairment Tables, reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
Paragraph 8 of the Impairment Tables sets out information that is not to be considered in applying the Impairment Tables. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence and, unless required under the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
IMPAIRMENTS
The Tribunal notes that the Respondent accepted that Ms Blake had impairments during the qualification period for the purpose of section 94(1)(a) of the Act, arising from several conditions, which are discussed below.
Condition 1 – Osteoarthritis
Numerous Centrelink medical certificates from Dr Bennett (GP) between September 2015 and February 2017 note that Ms Blake suffers from “osteoarthritis knees/hips” for which treatment is listed as “analgesia”. The symptoms are described as “pain” and the condition is designated as “recurring”. On this basis, the Job Capacity Assessment (JCA) conducted on 24 May 2017, was satisfied that Ms Blake’s osteoarthritis condition was fully diagnosed during the qualification period.
The Respondent agreed with the recommendations from the JCA and accepted that Ms Blake’s osteoarthritis condition was fully diagnosed during the qualification period. This is not contested.
The Respondent contended that Ms Blake’s osteoarthritis condition was not fully treated and stabilised during the qualification period for multiple reasons. These are set out below:
(a)Firstly, there is a lack of medical evidence before the Tribunal to suggest that Ms Blake had engaged in reasonable treatment, with treatment being limited to analgesia only. Ms Blake had not trialled any other treatments, such as specialist review to consider surgical intervention, engagement in conservative treatment modalities such as physiotherapy and hydrotherapy, as well as pain management. It could be asserted that such treatments are reasonable treatments which are likely to improve Ms Blake’s mobility and functioning, and alleviate some of the symptoms associated with her osteoarthritis condition.
(b)Secondly, Ms Blake’s Medicare Patient History records show that she last saw Dr Shaddock, a radiologist, for her knee on 23 March 2015. The Medicare code associated with that service is “57521”, which is a “Category 5 – diagnostic imaging service” involving “foot, ankle, leg, or femur (r)(k)”.
(c)Thirdly, Ms Blake told the AAT1 that she attended physiotherapy several years ago, and that she had not followed up with a specialist appointment to investigate other options for managing the ongoing and widespread pain related to her osteoarthritis.
Considering paragraph [26] (a), (b) and (c) above, the Tribunal finds it reasonable to accept that Ms Blake’s osteoarthritis condition was not fully treated and stabilised during the qualification period.
In relation to the impairment caused by her osteoarthritis, Ms Blake reported the following to the JCA on 24 May 2017:
(a)she is unable to carry a load of laundry;
(b)she mobilises with a limp, and uses one crutch;
(c)she avoids stairs where possible; and
(d)she holds a rail when negotiating a ramp.
In a letter dated 14 January 2019, Dr Bennett states that “[Ms Blake] has difficulty getting up from a sitting position without assistance”, but does not indicate whether this is the assistance of an aid or another person, and further, that she cannot mobilise independently, nor remain seated for “longer periods”.
In a medical report for Carer Allowance / Carer Payment dated 14 January 2019, Dr Bennett indicates that Ms Blake is:
Able to reach toilet/commode, undress sufficiently, clean self, dress and leave.
Able to independently transfer from bed to chair and back.
Walks with help of one person (verbal or physical)
Unable to use stairs
Dependent for assistance with bathing
In a letter dated 21 March 2019, Dr Bennett noted “[Ms Blake] has ’severe functional impact on activities using lower limbs’. She requires assistance to walk from the carpark to the shops and the supermarket using either a stick or the trolley for support. She needs the supports in store. This has been the case for the last 7 years”.
In a letter dated 23 May 2019, Dr Bennett provided the following evidence of the functional impairment of Ms Blake’s osteoarthritis during the qualification period:
Specifically, the disabilities she experiences have a severe functional impact on activities using the lower limbs, as previously stated.
Ie. unable to walk around the shopping centre or supermarket without assistance; unable to walk from the carpark into a shopping centre or supermarket without assistance; unable to stand up from a sitting position without assistance.
In a further letter dated 27 June 2019, Dr Bennett repeats the comments made in his 21 March 2019 letter, but adds that Ms Blake requires: “personal assistance to walk from the carpark to the shops and the supermarket using either a stick or the trolley for support.”
There is inconsistency with the earlier and latter reports of Dr Bennett. The report of 27 June 2019 in relation to the reference of “personal assistance”, conflicts with Dr Bennett’s earlier reporting that Ms Blake only required the assistance of a stick or trolley for support when walking from the carpark to the shops and around the supermarket, and was independent in toileting and in transferring from bed to chair and back.
Further, Ms Blake’s letter dated 26 July 2019 confirms that, at the time of claim, she did not meet all of the descriptors in (1)(a) of the 20 point rating as she was able to walk into and around a shopping centre, stand up from a sitting position with the use of a cane and did not require the assistance of another person to walk or stand up. The letter states as follows:
From the time of the falls I CANNOT:
Walk over any uneven ground, for up or down stairs can only manage low steps without aid, by person or cane, railings etc.
Sit on upright chairs, including computer chairs for any length of time with leg down (leg and back pain, also shoulders neck, can sometimes lead to migraines) which increases the longer I sit, too much time and the pain killers don’t alleviate the pain.
Stand without assistance from table, chair or cane.
Sit on low furniture, need a person to help me up if I do.
Shopping is mainly done online, as I can’t mobilise around shops anymore, (cannot walk that far) can only walk short distances with cane.
At the time of submitting my original application February 2017, I could make it round the supermarket using my cane, but still needed my daughter with me as I could not bend to lower shelves, or reach up to higher ones.
Use public transport at all (steps are too deep) would need a person to assist with a bus that lowers. As I am not steady enough on my feet (as a result of damage to ankle and knee plus medications).
Mobilise independently around a workplace, my daughter is always with me and guides me, keeps watch for obstacles.
It is reasonable to conclude that Ms Blake does not meet all of the requirements in the 20 point descriptors under Table 3, as she was, at the time of claim, able to perform the following activities without the assistance of another person:
(a)walk around a shopping centre or supermarket;
(b)walk from the car park into a shopping centre, and;
(c)stand up from a sitting position.
The Tribunal accepts the contention of the Respondent that the weight of the medical evidence supports a finding of a moderate functional impact, attracting an impairment rating of 10 points under Table 3.
Condition 2 – Mental health condition
On 15 March 2014, Ms Blake was assessed by Dr Evenhuis (consultant psychiatrist), for the purpose of a workers’ compensation claim. Dr Evenhuis noted that:
From a diagnostic point of view, Ms Blake did not describe the full range of symptoms required to make a diagnosis of Major Depressive Disorder but she did describe prominent depressive symptoms. She describes situational panic but her avoidance behaviour appears to relate more to her concern about attending interviews than it does to her experience of panic. Hence, she does not clearly meet the diagnostic criteria for a Panic Disorder. The most appropriate diagnosis would appear to be that of a Chronic Adjustment Disorder with Depressed and Anxious Mood. However, she is at risk of developing both Major Depression and Panic Disorder…
Ms Blake qualifies for a diagnosis of Chronic Adjustment Disorder with Depressed and Anxious Mood. A possible differential diagnosis is that of a Major Depressive Episode with features of anxiety.
The Tribunal notes that the Respondent accepted that Ms Blake’s mental health condition was fully diagnosed during the qualification period. However, consistent with Dr Evenhuis’ report, the appropriate diagnosis is chronic adjustment disorder with depressed and anxious mood.

The Respondent contended that Ms Blake’s mental health condition was not fully treated and stabilised during the qualification period for the reasons set out below:
(a)Dr Evenhuis noted in his report that “under normal circumstances, a course of approximately 8 sessions of [CBT] therapy is recommended but given the chronicity of Ms Blake’s symptoms, she is likely to require a more protracted course of treatment”. Dr Evenhuis also noted that Ms Blake may derive benefit from a “[selective serotonin reuptake inhibitor (SSRI)] antidepressant such as escitalopram [Lexapro] or sertraline…”.
(b)Ms Blake’s Prescription Benefits Scheme records show that she was consistently prescribed the antidepressant escitalopram (Lexapro) by Dr Bennett between October 2014 and May 2019. A letter from Dr Bennett dated 2 November 2017 states “[Ms Blake] has had no benefit from the medications that were recommended by her specialist psychiatrist”. Despite this long-term course of medication, and Dr Bennett’s observation that Ms Blake has had no benefit from it, there is no evidence of any medication or dosage review by a specialist, such as a psychiatrist.
(c)A “general history” attached to Ms Blake’s claim for DSP notes that “anxiety medication has since been reduced – at higher doses, I have falls, at lower doses anxiety symptoms and panic attacks not controlled enough to enable even part time work…”.The Respondent contended that such a change in dosage should have been reviewed by a specialist to ensure Ms Blake’s symptoms were appropriately controlled. Ms Blake’s MPH report reveals that no consultations with a psychiatrist were undertaken between 14 August 2014 and 7 August 2019.
(d)Ms Blake’s MPH report reveals that in the two and a half years prior to her claim for DSP, she attended only one session with registered psychologist Ms Desiree Taylor, on 17 January 2017. The Respondent contended that psychotherapy, such as cognitive behavioural therapy (CBT), is an effective treatment approach for a range of mental health issues, including anxiety and depression. The clinical guidelines endorsed by the Royal Australian and New Zealand College of Psychiatrists recommend that persistent mood disorders be treated with pharmacological treatment (for example, SSRIs) in conjunction with psychological counselling. CBT involves identifying and challenging unhelpful thoughts that impact on a person’s mood, and is provided by counsellors, psychologists and therapists over a number of sessions.
There is no evidence before the Tribunal that Ms Blake has undertaken the recommended course of psychotherapy in the two and a half years prior to lodging her DSP claim. Ms Blake attended only two sessions with clinical psychologist Ms Desiree Taylor after the qualification period ended. Therefore, the Tribunal accepts that as Ms Blake has not undertaken reasonable treatment including psychological counselling and psychiatric review, her mental health condition was not fully treated and stabilised during the qualification period.
There is limited evidence before the Tribunal regarding the functional impact of Ms Blake’s mental health condition. In response to the Respondent’s ‘Dear Doctor’ letter dated 16 April 2019, Dr Bennett noted, “[Ms Blake’s] mental health issues have resulted in her becoming isolated and needing assistance to leave home”. In her claim for DSP, Ms Blake identifies “anxiety disorder – leading to panic attacks, depression, migraines and stress headaches (agoraphobia) – panic attacks most prevalent when having to leave house, or when put under any stress whatsoever, and more particularly when alone”.
In an Employment Services Assessment conducted on 16 February 2016, Ms Blake reported the impact of her mental health condition as “extreme difficulties managing stress, which triggers acute symptoms and difficulties coping…difficulties leaving her home, and … does not leave her house without being with another person”. Ms Blake also reported that she has “difficulties driving, experiencing panic attacks regularly and feeling overwhelmed…ongoing low mood, difficulties concentrating, feeling confused, and of reduced memory”.
Ms Blake’s self-report states that her current medication “alleviates the non-stop crying but does not control the panic attacks”, and on bad days the larger doses of medications “make [her] brain foggy, and affects [her] short term memory…ability to concentrate, and some cognitive functions”.
Ms Blake reported to the JCA on 24 May 2017 that she has impaired concentration and memory, that she socially isolates herself, is not able to live independently, has frequent anxiety and panic attacks and is unable to increase her medications due to significant side effects, which cause her legs to tremble which can lead to significant falls.
The Tribunal notes that without corroborative evidence of impairment, limited weight can be given to Ms Blake’s self-report.
The Tribunal notes that Dr Evenhuis’ report is of limited assistance in assessing the level of Ms Blake’s functional impairment during the qualification period, as it pre- dates her DSP claim by approximately three years.
The Tribunal accepts the contention of the Respondent that the weight of the medical evidence supports a finding of a mild functional impact of Ms Blake’s mental health condition, attracting an impairment rating of 5 points under Table 5.
CONCLUSION
The Tribunal finds that Ms Blake did not have any fully diagnosed, treated and stabilised conditions during the qualification period and accordingly no impairment rating can be assigned under the Impairment Tables to any resulting impairments.
The Tribunal finds that Ms Blake does not have an impairment rating of 20 points and did not satisfy section 94(1)(b) of the Act, therefore it is unnecessary to consider whether Ms Blake has a continuing inability to work under section 94(1)(c) of the Act.
Accordingly, the Tribunal affirms the decision under review.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. S Parry, Member

.......................[sgd].............................
Associate
Dated: 15 March 2020

Date(s) of hearing: 25 September 2019

Applicant:
By phone

Solicitor for the Respondent: Brian Sparkes

[2020] AATA 831

15 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date(s) of hearing:	25 September 2019
Applicant:	By phone
Solicitor for the Respondent:	Brian Sparkes