Blake and Secretary, Department of Social Services (Social services second review)
[2018] AATA 1822
•18 June 2018
Blake and Secretary, Department of Social Services (Social services second review) [2018] AATA 1822 (18 June 2018)
Division:GENERAL DIVISION
File Number: 2017/4001
Re:Tristian Blake
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:18 June 2018
Place:Sydney
The decision under review is affirmed.
....................[sgd]................................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – applicant’s impairments total twenty points or more under the Impairment Tables – fibromyalgia – type II bipolar disorder – no continuing inability to work at date of claim – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 42, schedule 2
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr L Bygrave, Member
18 June 2018
INTRODUCTION
The applicant, Ms Tristian Blake, lodged a claim for disability support pension on 17 May 2016.
On 1 September 2016, the Department of Human Services (Centrelink) rejected Ms Blake’s claim for the disability support pension on the basis that she did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). An authorised review officer of Centrelink affirmed this decision on 6 February 2017.
Ms Blake then applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and on 8 June 2017, the SSCSD affirmed Centrelink’s decision to reject Ms Blake’s claim for disability support pension.
On 10 July 2017, Ms Blake lodged an application for review to the General Division of the Tribunal.
The matter was heard in Sydney on 7 June 2018. Ms Blake did not have legal representation; she attended the hearing in person and gave oral evidence with the support of her husband.
RELEVANT LEGISLATION
Qualification for disability support pension
To qualify for the disability support pension, Ms Blake must satisfy the criteria in subsection 94(1) of the Act, which requires her to show she has:
(a)a physical, intellectual or psychiatric impairment; and
(b)an impairment rating of 20 or more points according to the Impairment Tables; and
(c)a continuing inability to work.
Further, Ms Blake must satisfy these criteria on 17 May 2016 when she applied for the disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (the claim period).
Rules for assigning impairment ratings
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).
The Impairment Tables Determination includes instructions and rules for assessing impairment and corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.
An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).
When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the next two years: subsection 6(5).
Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).
Relevant to this matter, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that 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).
The Secretary concedes, and the Tribunal agrees, that Ms Blake suffers medical conditions that cause impairment and therefore she satisfied paragraph 94(1)(a) of the Act during the claim period.
It follows that the determinative issues in this matter are whether Ms Blake had during the claim period:
·an impairment rating of 20 points or more under the Impairment Tables; and
·a continuing inability to work as defined in subsection 94(2) of the Act.
CONSIDERATION
Issue 1 – Do the impairments rate at least 20 points under the Impairment Tables?
The evidence before the Tribunal shows that Ms Blake has fibromyalgia and bipolar II disorder. I now consider each of these medical conditions and their relevant rating in accordance with the Impairment Tables Determination.
Fibromyalgia
Dr Mark Liew (rheumatologist) provided reports dated 30 December 2015, 7 August 2017 and 28 September 2017. In his report on 30 December 2015, Dr Liew diagnosed Ms Blake with severe fibromyalgia, noting that she provided ‘…more than 10 years history of unresolving intense/incapacitating widespread pain to the musculoskeletal system, in particular to the neck, low back, shoulders and hips’.[1] Dr Liew further noted that Ms Blake was taking Lyrica 200mg nocte ‘with some benefit’ but the medication causes her ‘some drowsiness and poor concentration in the morning and some difficulty with balance for good early part of the morning’.
[1] Exhibit T, T10.
On 7 August 2017, 12 months after the claim period, Dr Liew described Ms Blake as reporting the following functionality:
She says she has been unable to sustain any activities for more than 15 minutes at a time and she could only sit 30-40 minutes at a time, stand up to 15 minutes at a time and walk… 20-30 minutes at a time before she would need to stop and rest from increased pain and fatigue. She says she has not been able to lift any objects above the chest level due to pain and stiffness to the shoulders. She also stated that she had difficulty with rising from sitting due to the pain to the posterior-lateral aspect of the hips down to the knees. She also indicates that she had difficulty with bending, turning or lifting objects more than 5 kgs due to back pain. Examination again revealed that she was using a walking stick for stability.[2]
[2] Exhibit A2.
Dr Liew further reported on 28 September 2017 that he assessed Ms Blake with ‘a severe functional impact (20 points) on activities requiring physical exertion or stamina’ based on her reporting of her disabilities.[3]
[3] Exhibit A3.
At the Tribunal hearing, Dr Liew gave oral evidence affirming his written reports and opining that Ms Blake’s fibromyalgia and associated symptoms/functionality had not changed between May 2016 and September 2017.
A Health Professional Advisory Unit (HPAU) assessment of the medical evidence was undertaken by Dr Sandra Armstrong (medical adviser), who provided a report on 7 February 2018. Based on the evidence, Dr Armstrong considered Ms Blake’s condition of fibromyalgia was fully diagnosed, fully treated and fully stabilised during the claim period, and the appropriate rating in accordance with Table 1 – Functions requiring Physical Exertion and Stamina was 10 points. Dr Armstrong contended:
…information on [Ms Blake’s] social media is inconsistent with a severe functional impairment, in particular the mandatory descriptor at the 20 point level which requires difficulty in sustaining work-related tasks of a sedentary nature for a continuous shift of at least three hours.[4]
[4] Exhibit R2.
Dr Armstrong particularly referred to Ms Blake’s as a game developer and noted her attendance at gaming conventions, including a convention in the United States of America from 30 September 2016 until 2 October 2016, and questioned whether Dr Liew was aware of these activities when he assessed Ms Blake as having a severe impairment. I note that Dr Armstrong did not examine or speak to Ms Blake as part of her process in compiling her medical report/assessment.
At the Tribunal hearing and in her written statement, Ms Blake said she lives with her husband and during the claim period was studying online at home two days a week. She said she studied in one to two hours ‘spurts’ due to fatigue and pain, particularly in her back. She only leaves their home alone to attend medical appointments or appointments with her job employment provider, which requires her to take a bus from near her home to the train station and then walk approximately 20 minutes (at her pace) with the aid of a walker.
In terms of household chores and daily living, Ms Blake told the Tribunal that she is largely reliant on her husband. She said that he will often message her during the day to remind her to eat and do activities around their home. She is unable to undertake heavier chores such as cleaning, washing clothes/sheets or washing up dishes, but said she may hang up socks, tidy the bed, or sit and fold light clothing for ten minutes if she is not feeling too fatigued. She travelled to the United States of America with her husband for two weeks in May 2015 and three weeks in September to October 2016. The trip in 2016 was to visit family and to attend a gaming convention. Ms Blake acknowledged that Dr Liew was not aware of her activities in terms of study and casual work from home as a game developer during the claim period.
Based on the medical evidence, I am satisfied that Ms Blake’s condition of fibromyalgia was fully diagnosed, fully treated and full stabilised during the claim period. I assign 10 points in accordance with Table 1 of the Impairment Tables Determination, which assesses functions requiring physical exertion and stamina.
Bipolar Type II
Dr Paul Friend (psychiatrist) provided a report dated 21 November 2012, setting out that Ms Blake reported long-standing feelings of depression that impairs her concentration and memory. Dr Friend diagnosed Ms Blake with type II bipolar disorder and recommended she commence Lamictal as a mood stabiliser.
Dr Armstrong’s assessment of Ms Blake’s medical records on 7 February 2018 noted that:
·Ms Blake had appointments with Dr N Anwar (psychiatrist) on 25 October 2015, P Lamarque (clinical psychologist) on 29 June 2016, and S Port (clinical psychologist) on 18 November 2016 and 24 November 2016.
·A chronic disease management plan by Dr Samaranayake (general practitioner) dated 7 April 2016 set out that Ms Blake was prescribed Lamotrigine 100 mg twice daily.
As Dr Anwar, P Lamarque or S Port did not provide written reports, Dr Armstrong’s assessment questioned whether these medical practitioners provided Ms Blake with possible treatment or management advice. Dr Armstrong also contended that Ms Blake may be non-compliant with her medication and therefore considered that Ms Blake’s condition of bipolar type II was not fully treated and stabilised. Dr Armstrong, in a further assessment report dated 19 April 2018, opined from a review of Ms Blake’s pharmacy history that:
… her type II bipolar disorder was not fully treated and stabilised, as of the qualification period, as it seems that her compliance with Lamotrigine was erratic, especially in the 6 month period prior to the end of the qualification period.[5]
[5] Exhibit R3.
At the Tribunal hearing, Ms Blake gave clear and considered evidence about her mental health. She confirmed this has been a long-standing condition since her childhood and, following the diagnosis by Dr Friend that she has bipolar type II disorder, she has been compliant with medication as prescribed by her general practitioners. Ms Blake acknowledged seeing the specialists set out in Dr Armstrong’s report, but confirmed she had not seen anyone on a regular or semi-regular basis. She explained that this was partly due to the cost and partly due to it being difficult to see psychologists because she ‘is not sure what to say as everything is difficult all the time’ and it is ‘hard to talk to strangers’. Ms Blake said she has been compliant with her medication as prescribed by her medical practitioners, noting that she understood the importance of medication compliance for her mood and well-being. She contended that the pharmacy reports before the Tribunal, and relied upon by Dr Armstrong, were not complete. I note that Dr Armstrong did not examine or speak with Ms Blake about her medication for bipolar type II disorder. I found Ms Blake’s evidence to the Tribunal was genuine and honest, and I am satisfied that she complied with all reasonable treatment and her condition was fully stabilised during the claim period.
I further considered the medical evidence and Ms Blake’s evidence to the Tribunal in view of the functional impact of her bipolar type II condition. I note that, during the claim period, Ms Blake was able to undertake part-time online study from home and she subsequently set up (together with her husband) a game development company, at which she works from home for approximately one and a half days per week. She said her social engagement is primarily her husband and online posts.
Based on the evidence before the Tribunal, I am satisfied that Ms Blake’s mental health condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with Table 5 – Mental Health Function, I assign 10 points for this condition.
The Tribunal is satisfied Ms Blake meets the requirement of paragraph 94(1)(b) of the Act for a rating of 20 points or more under the Impairment Tables.
Issue 2 – Does Ms Blake have a continuing inability to work?
Pursuant to paragraph 94(1)(c) of the Act, Ms Blake must have a continuing inability to work because of her impairment.
Pursuant to subsection 94(2) of the Act, a person has a ‘continuing inability to work because of an impairment’ where:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Subsection 94(3B) provides that a person’s impairment is ‘a severe impairment if the person’s impairment is of 20 points of more under the Impairment Tables, of which 20 points or more are under a single Impairment Table’.
As the Tribunal has found Ms Blake does not suffer from a severe impairment because she does not have an impairment rating of at least 20 points from one of the Impairment Tables, the Act requires that she has participated in a program of support.
The requirements for active participation in a program of support are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Active Participation Determination). To meet the requirements for active participation, Ms Blake must have participated in a program of support for at least 18 months in the three years before she lodged her claim for disability support pension on 17 May 2016, and her impairment must prevent her from improving her capacity to find, gain or remain in employment through continued participation in the program.
Centrelink records show that Ms Blake completed 136 days of a program of support in the period from 16 May 2013 to 16 May 2016.[6] Based on this evidence, the Tribunal is not satisfied that Ms Blake has completed the requirements of a program of support.
[6] Exhibit ST, ST1.
Subsection 7(5) of the Active Participation Determination also provides that the requirements of a program of support are satisfied if, at the end of the claim period, Ms Blake was participating in a program of support and was prevented, solely because of her impairment, to improve her capacity to prepare for, find or maintain work through continued participation in the program.
Ms Blake provided a letter from Mr Luke Papallo (DES counsellor, Afford Employment) dated 10 August 2017, which outlined that Ms Blake ‘has displayed willingness to attempt approaches in improving her mental, emotional and physical well-being, but is still nowhere near capable enough to sustain meaningful employment’.[7] Ms Blake told the Tribunal that she commenced her program of support with Afford Employment on 4 January 2017. As this was more than seven months after Ms Blake lodged her claim for disability support pension, I find that subsection 7(5) of the Active Participation Determination is not relevant in this matter.
[7] Exhibit A1.
The next issue the Tribunal must consider is whether Ms Blake’s impairment is of itself sufficient to prevent her from doing any work independently of a program of support within the next two years; and either her impairment is of itself sufficient to prevent her from undertaking a training activity during the next two years, or such activity is unlikely to enable her to do any work independently of a program of support within the next two years.
The Job Capacity Assessment (JCA) Report dated 30 August 2016 stated that Ms Blake had a temporary work capacity of 0-7 hours per week, a baseline work capacity of 8-14 hours per week and a capacity for light less skilled work within two years with intervention of 15-22 hours per week.
Clearly, I have a letter from Mr Papallo dated 10 August 2017 and an ‘Information about participation in a program of support’ form completed by Afford Employment on 22 November 2017, which provides information about Ms Blake’s difficulties in completing a program or support or undertaking work or training independent or of program or support. However, as I must make an assessment of Ms Blake’s capacity as at the date of her claim for disability support pension, I rely on the JCA Report on 30 August 2016 and I am satisfied that the information before the Tribunal relating to the claim period indicated that with targeted and supported intervention specifically aimed at accommodating Ms Blake’s impairment she may be able to undertake training or work within the next two years as defined by the Act.
For this reason, I cannot conclude Ms Blake had a continuing inability to work at the date of her claim.
CONCLUSION
I am not satisfied that Ms Blake was qualified to receive the disability support pension during the claim period.
If Ms Blake’s circumstances change, she is entitled to submit a new application for the disability support pension.
DECISION
The decision under review is affirmed.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 18 June 2018
Date(s) of hearing: 7 June 2018 Applicant: In person Solicitors for the Respondent: J Eslick - Department of Human Services
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