Borg and Secretary, Department of Social Services (Social services second review)
[2016] AATA 138
•8 March 2016
Borg and Secretary, Department of Social Services (Social services second review) [2016] AATA 138 (8 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/1217
Re
Joan-Anne Borg
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 8 March 2016 Place Sydney The decision under review is set aside and in substitution the Tribunal decides that during the claim period the Applicant satisfied s 94 of the Social Security Act 1991 (Cth) and was qualified for Disability Support Pension.
......................[sgd]..................................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – mental health condition – whether condition fully diagnosed, treated and stabilised - impairment ratings – applicant found to have a severe impairment – continuing inability to work – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
8 March 2016
On 4 June 2014 Ms Borg, who is currently 39 old, lodged a claim for Disability Support Pension (DSP) on the basis that she suffered a medical condition which was having an impact on her ability to function.
Ms Borg’s claim was rejected by Centrelink on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not 20 points or more under the Impairment Tables.
On 27 October 2014 an Authorised Review Officer decided that Ms Borg had a total impairment rating of 10 points for the condition of “major depression” so that she did not satisfy s 94(1)(b) of the Act.
In a decision dated 22 January 2015, the former Social Security Appeals Tribunal (“SSAT”) found that Ms Borg had a total impairment rating of 10 points under Impairment Table 5 and therefore she did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
In these proceedings Ms Borg seeks review of the SSAT decision.
At the hearing, Ms Borg, who was self-represented, was only able to give limited oral evidence. She presented as being depressed with a very flat affect, could barely speak and it was clear to the Tribunal that she had significant difficulty with her memory.
ISSUES
In order to qualify for DSP Ms Borg must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 4 June 2014 and 3 September 2014 (the claim period).
Section 94(1) of the Act provides that a 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)the person has a continuing inability to work as defined by the Act.
The Respondent concedes, and the Tribunal accepts, that Ms Borg suffers a medical condition that causes impairment and she therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.
Ms Borg suffers a mental health condition currently diagnosed as “Bipolar Affective Disorder”. She has no other relevant medical conditions.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, 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 a psychiatrist)”.
The Respondent contends that Ms Borg’s impairment, during the claim period, was 5 points under Impairment Table 5 so that she did not satisfy s 94(1)(b) of the Act.
The Respondent also contends that, during the claim period, Ms Borg could not satisfy section 94(1)(c) of the Act as she did not have a ‘continuing inability to work’ because she did not have a severe impairment as defined in the s 94(3B) of the Act and had not actively participated in a POS as required by 94(2)(aa) of the Act.
Therefore, the definitive issue in this matter is whether, during the claim period, Ms Borg had an impairment of 20 points or more under Impairment Table 5.
MENTAL HEALTH FUNCTION
Between 2 May 2012 and 10 October 2013 Drs Sharma and Lees, GPs, provided 13 Centrelink medical certificates stating that Ms Borg was unfit to work or study because she suffered from “depression” and was being treated with “Lexapro and counselling”.
In a letter dated 11 December 2013 Ms Crossley, registered psychologist noted, inter alia, the following:
Joan-Anne was assessed on the 9th October using DASS21(20,8,36) indicating she is in the severe range for depression and extremely severe for stress , when compared with the normal population…Joan-Anne reports experiencing depressive symptoms including low motivation, tiredness, tearfulness, irritability, a sense of hopelessness, and anxiousness. She also reports these symptoms have worsened since separation…Joan-Anne is attending counselling to assist in mental health recovery and in adjusting to single parenting demands.
A Job Capacity Assessment Report submitted on 20 December 2013 noted that Ms Borg advised that her symptoms had started in January 2012 following her marriage breakdown and that her condition has been getting worse due to “family-related” stressors.
Current symptoms were noted as “depressed mood, anxiety, social withdrawal, mood swings (including anger and irritability), lethargy, poor motivation, and previous suicidal ideation”.
In a Centrelink Medical Report dated 14 July 2014 Dr Wahaib, psychiatrist, noted that Ms Borg had been his patient since 18 January 2014 and listed “major depression and anxiety” as a medical condition that had a significant impact on Ms Borg’s ability to function but provided no relevant details.
Dr Wahaib noted that Ms Borg had been prescribed Venlafaxine from 18 January 2014 and Mirtazapine from 14 June 2014.
In a letter dated 19 October 2015 Dr Wahaib stated that Ms Borg was diagnosed with “adjustment disorder with depressive [sic]” on her first visit on 18 January 2014 when treatment with Venlafaxine was started.
Dr Wahaib noted that Ms Borg was recently diagnosed with “bipolar disorder” by another psychiatrist and commented that this “may clarify that her previous depression was a part of her bipolar disorder”. He also noted that he has not been Ms Borg’s treating psychiatrist since August 2014.
An undated discharge summary states Ms Borg was admitted to the Mental Health Unit at Wollongong hospital on the 17 October 2014 and discharged on the 29 October 2014.
The summary notes that Ms Borg is a 38 year old female with a history of chronic depression and post-partum depression who presents with “self harm attempts & threats...on the background of multiple psychosocial stressors”. She also has a history of self-harm attempts and threatening suicide as well as an actual suicide attempt 18 months ago.
In a note dated 11 June 2015 Dr Sherpa stated that Ms Borg was suffering from “Bipolar Affective Disorder and Major depressive disorder for which she sees Psychiatrist (Dr Ali Al-Taie) and is taking medications for these conditions”.
Dr Sherpa does not indicate when Dr Ali Al-Taie started treating Ms Borg and does not provide any details about treatment.
There is no correspondence from Dr Ali Al-Taie before the Tribunal and at the hearing Ms Borg was not able to remember any details of her consultations or treatment other than having attended on a monthly basis.
Ms Borg told the Tribunal she now has a new psychiatrist, “a professor”, but could not remember his name or when she started seeing him. She explained that in October 2015 she was admitted to hospital for eight electroconvulsive therapy (ECT) treatments and that since then she has had some difficulties with recent memory.
In a response to a request from Legal Aid Ms Crossley provided a comprehensive assessment of the impact of Ms Borg’s condition on activities of mental health function with particular reference to the descriptors in Impairment Table 5.
The report is dated 6 July 2015, however, in a letter dated 15 August 2015, Ms Crossley states that her opinion was based on Ms Borg’s presentation as at May 2014. In the report she states that she undertook an initial consultation with Ms Borg on 8 May 2012 and counselled her on a monthly basis over the next two years including on 14 May 2014.
I note that the relevance of the date 14 May 2014 is unclear other than the fact that it was the date indicated in the request from Legal Aid.
In relation to Impairment Table 5 Ms Crossley states the following:
(a)self-care and independent living, I consider a moderate level of difficulty exists;
(b)social/recreational activities and travel, I consider a moderate level of difficulty, going out alone infrequently and not actively involved in social activities;
(c)interpersonal relationships, I consider a severe level of difficulty, with Ms Borg having very limited social contact and involvement unless organised for her;
(d)concentration and task completion, Ms Borg has a severe level of difficulty not being able to concentrate on a task or conversation for more than 10 minutes;
(e)behaviour, planning or decision making, I consider a severe level of difficulty, with Ms Borg having frequent behaviour and mood difficulties, including temper outbursts, depression withdrawal and poor judgement;
(f)work training capacity, Ms Borg has a severe level of difficult, having been unable to attend work on a regular basis over the last three years.
Ms Crossley also stated:
Based on the information available I would not recommend Ms Borg be suitable for education, vocational training or vocational rehabilitation or work- related training in the next two years. Ms Borg’s condition has been present for a minimum of three years, based on the information provided, and Ms Borg has reported a worsening of her symptoms in the last 12 months, leading up to her hospitalisation.
CONSIDERATION
The medical evidence in this matter is somewhat limited however I am satisfied that the available evidence supports a conclusion that Ms Borg has suffered a significant mental health condition for many years. In the past the diagnosis has been uncertain and the condition appears to have been relatively unresponsive to treatment.
In January 2014 Ms Borg was seen by a psychiatrist who diagnosed “major depression with anxiety” and initiated new antidepressant treatment.
The available evidence suggests that Ms Borg’s condition deteriorated over the next two years so that in October 2015 she required ECT therapy.
During 2015 a new diagnosis of “Bipolar Affective Disorder” was made and with hindsight her past symptoms could well be explained as part of the onset of her currently diagnosed condition.
Although the available evidence tends to suggest that, during the claim period, Ms Borg’s condition may not have been fully treated and stabilised, the Respondent concedes, and the Tribunal agrees, that the condition was permanent for the purposes of the Impairment Determination at that time. The Introduction to Table 5 notes that “the signs and symptoms of mental health impairment may vary over time” and it is well recognised that the treatment of mental conditions often requires adjustment to deal with any progression of symptoms, poor symptom response or adverse drug reactions.
I am satisfied that, during the claim period, Ms Borg had significant functional impairment as a result of her condition and that there is no evidence to suggest that there was any improvement in her impairment since the end of the claim period. If anything, the available evidence tends to suggest that her impairment has probably increased.
In my view, the most persuasive evidence with respect to a rating under Impairment Table 5, during the claim period, is the report provided by Ms Crossley and I accept her assessment that, just prior to the date of claim, Ms Borg had severe difficulties with most of the descriptors in Impairment Table 5.
Accordingly, I am satisfied that, during the claim period, there was a severe functional impact on Ms Borg’s activities involving mental health function so that a rating of 20 points under Table 5 can be applied.
On the available evidence I am also satisfied that Ms Borg’s impairment, during the claim period, was, of itself, sufficient to prevent her from doing any work and undertaking any training during the two years after the date of claim so that sections 94(2)(a) and 94(2)(b) of the Act were satisfied.
It follows that I am satisfied that, during the claim period, Ms Borg satisfied sections 94(1)(b) and 94(1)(c) of the Act so that she did qualify for DSP.
DECISION
For the reasons set out above the decision under review is set aside and in substitution the Tribunal decides that during the claim period Ms Borg satisfied section 94 of the Act and qualified for DSP.
I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ..............................[sgd]..........................................
Associate
Dated 8 March 2016
Date(s) of hearing 24 February 2016 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Support Pension
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Mental Health Condition
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Severe Impairment
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