Brookes and Secretary, Department of Social Services (Social services second review)
[2016] AATA 972
•25 November 2016
Brookes and Secretary, Department of Social Services (Social services second review) [2016] AATA 972 (25 November 2016)
Division
GENERAL DIVISION
File Number
2016/0647
Re
Jessica BROOKES
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D. J. Morris, Member,
Date 25 November 2016 Place Perth The Applicant was not qualified for DSP on the date of cancellation, so the reviewable decision is affirmed.
.....(Sgd)........................................
D. J. Morris, Member
CATCHWORDS
SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – health condition not fully treated or stabilised at date of cancellation – not qualified for DSP – decision affirmed
LEGISLATION
Social Security Act 1991 – s 94(1) – s 91(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(3B)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – r 5 – r 6
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
D. J. Morris, Member
BACKGROUND
Miss Jessica Brookes seeks a review of the decision to cancel her Disability Support Pension (DSP) on 31 August 2015.
The hearing was held on 10 October 2016. The Applicant was represented by her mother, Ms Joanne Brookes. The Respondent was represented by Ms Bernadette Rayment. The Applicant gave evidence under affirmation and was cross-examined by counsel for the Respondent.
The Tribunal considered documents submitted by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents).
The Respondent submitted the Secretary’s Statement of Facts, Issues and Conventions dated 21 September 2016 which was admitted into evidence (Exhibit R1) and which contained the following annexures:
·Medical Certificate from Dr Lucinda Townsley, general practitioner, dated 14 June 2016 (Annexure A);
·Email correspondence between the Applicant and Edith Cowan University staff of various dates (Annexure B);
·Learning and Assessment Plan from Edith Cowan University dated 18 May 2011 (Annexure C);
·Edith Cowan University Academic Record for the Applicant, undated (Annexure D);
·Letter from Deb Duffy, Equity, Diversity and Disability Officer, Edith Cowan University, dated 15 July 2016 (Annexure E);
·Statement by the Applicant headed ‘Edith Cowan University’, undated (Annexure F);
·‘Statement for AAT’ from Ms Joanne Brookes, undated (Annexure G).
FACTS
The Applicant was granted DSP on 30 October 2009 after being diagnosed with anxiety, depression and panic disorder.
Miss Brookes underwent a Job Capacity Assessment in 16 November 2009. Her anxiety condition was assessed as permanent, fully diagnosed, treated and stabilised. This condition was recommended a rating of 20 points under Table 6 – Psychiatric Impairment in Schedule 1B to the Social Security Act 1991 (since repealed) and the assessor at that time considered that the Applicant has a baseline capacity for work of 8-14 hours a week and that her future capacity within 2 years with intervention was 8-14 hours a week.
In 2011 the Minister made a new legislative instrument, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). This Determination came into effect on 1 January 2012. It replaces the old tools of assessment used in the assessment of the Applicant in 2009 and sets out the rules for assessing impairments for persons applying for DSP, and for medical reviews of persons who are in receipt of DSP.
On 15 May 2015 the Department of Social Services (the Department) provided the Applicant with a Program of Support and Medical Report Disability Support Pension Review form to be completed by her doctor.
Dr Anjan Sharma, general practitioner, completed the report on 10 June 2015 and indicated that Miss Brookes suffered from “Anxiety & depression and Bipolar”, that the impact of the condition was likely to persist for 3 to 12 months and likely to significantly improve within the next 2 years.
On 17 July 2015 the Applicant underwent a face to face Job Capacity Assessment (JCA) conducted by a registered psychologist. The assessor found that her mental health condition was fully diagnosed, fully treated and fully stabilised and recommended a rating of 10 points for ‘moderate functional impact’ under Table 5 – Mental Health Function, in the Determination (the Impairment Tables).
On 31 August 2015 the Department advised the Applicant that her DSP had been cancelled as her rating on the Impairment Tables was less than the required 20 points. This is the original decision.
Miss Brookes sought a review of the original decision by an Authorised Review Officer (ARO), an independent officer in the Department who was not involved in the original assessment.
On 21 October 2015 the ARO affirmed the original decision, noting that the types of work appropriate to the Applicant may be more limited owing to her health condition but finding that her condition warranted the allocation of 10 points under the Impairment Tables and that she had the capacity to undertake light semi-skilled work of 15-22 hours a week in the next two years.
Miss Brookes sought a review by the Social Services and Child Support Division of this Tribunal (AAT1).
AAT1 conducted a hearing on 14 January 2016 and found that the Applicant’s mental health condition was fully diagnosed but not fully treated nor fully stabilised at the date of cancellation and therefore could not be assigned points under the Impairment Tables. AAT1 affirmed the decision that Miss Brookes was not qualified for DSP on the date of cancellation.
The Applicant requested a second review by the General Division of the Tribunal. That is this hearing.
The purpose of this hearing, therefore, is to review the original decision of the Department’s officer that the Applicant was not qualified for DSP on the date of cancellation, 31 August 2015. Was that decision the correct decision?
Qualification for DSP under the Act
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 (the Act) and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has:
(a)a physical, intellectual or psychiatric impairment;
(b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and
(c)a continuing inability to work.
In respect of a ‘continuing inability to work’, if Miss Brookes is assigned 20 points under the Impairment Tables but does not have a ‘severe impairment’ for the purposes of section 94(3B) of the Act – that is, if she is not assigned 20 or more points under a single Impairment Table – then the Secretary must be satisfied that the Applicant has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014.
Does the Applicant have a physical, intellectual or psychiatric impairment?
The Tribunal had before it a medical report dated 10 June 2015 from Dr Anjan Sharma, general practitioner. Dr Sharma stated that Miss Brookes had been diagnosed with anxiety, depression and bipolar affective disorder in 2004 and that the diagnosis had been confirmed by Dr Joseph Lee, psychiatrist. Dr Sharma, in answers to questions in the report, stated that the impact on the Applicant’s ability to function is expected to persist for 3 to 12 months and that within the next 2 years the effect on Miss Brookes’ ability to function is expected to “significantly improve”. Dr Sharma based his assessment on how compliant the Applicant is with her medication and how often she sees her doctor to seek help to improve her condition.
The Secretary led with this report in his submissions. The Tribunal notes that, while Dr Sharma had access to medical notes at the practice, the Applicant’s evidence was that this was the first and only occasion on which he had seen her as a patient and the reason she saw him was that her then regular general practitioner was ‘too busy’ that day to fill out the medical report. The Tribunal takes this into account, without reflecting on Dr Sharma’s professional qualifications, which are not in psychiatry, and it affects the weight that the Tribunal places on his expectation about the prognosis for the Applicant, in terms of timeframe.
The Tribunal did however have before it a letter dated 11 September 2015 from Dr Joseph Lee, consultant psychiatrist, who provided corroborative evidence of the diagnosis and that he had historically seen the Applicant, although not regularly.
The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act at the time of her application.
On the basis of the medical evidence, I find that Miss Brookes satisfied this requirement of the legislation.
What is the correct rating under the Impairment Tables?
The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, Rule 5(2)).
Rule 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Rule 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.
Under Rule 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.
Rule 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.
The Impairment Tables Rules also provide, at Rule 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Table 5 – Mental Health Function
The Respondent contended that the Applicant had not undertaken reasonable treatment for her mental health condition. The Secretary argued that she had not regularly seen a psychiatrist or a clinical psychologist or undergone recommended counselling.
In evidence, Miss Brookes told the Tribunal about her daily life. She said that she did not recall telling the JCA about undertaking casual work and believes the assessor was mistaken in recording that. She said there may be a misunderstanding in that she had hoped to undertake an internship if her university studies went better but this did not eventuate.
She told the Tribunal that she was able to spend about six hours a week at university and any more would exhaust her. She praised the approach Edith Cowan University had taken with tailoring her support to suit her health conditions, which she said had been of great assistance in completing her course.
Miss Brookes told the Tribunal about memory problems she had at home and that she would assist her mother with household tasks if prompted, but often forgot. She told the Tribunal she would shop with her mother, who suffers from arthritis, but found it challenging. She could go independently to the shops if an urgent item was required. She said she spent a lot of time on her computer, looking at the Internet and talking to friends online. The Applicant said she could go into the city if she had ‘psyched’ herself up beforehand.
She told the Tribunal that she had obtained her provisional driver licence. Her father had visited each weekend and taken her out for driver instruction so that she completed the requisite hours before her test. She now drives herself, but generally only locally. When she travelled to the university campus she travelled by bus but used headphones to block out ambient noise.
Miss Brookes said she had undertaken some counselling at high school and knew how to undertake breathing techniques to lower her anxiety. She said that counselling in the past had triggered unwelcome flashbacks and she didn’t want to evoke those memories again, which is why she had been reluctant to re-engage with a counsellor.
She said that she had made two good friends at university and had been a bridesmaid at the wedding of one of them.
The Respondent said that there was no evidence that the Applicant saw her general practitioner regularly in the period leading up to the cancellation, but I note that Dr Townsley now refers to “regular ongoing care” in her medical certificate of June 2016.
The Tribunal also had before it a letter to Centrelink dated 6 October 2015 from the Applicant’s current general practitioner, Dr Townsley, which said:
“Thank you for seeing Jessica, 24 yrs, who has severe anxiety and depression and reviewing your recent decision. She has bipolar affective disorder which is not stabilised and is neeing [sic] medication adjustments in order to try and improve her mental state. Unfortunately Jessica is not in a position to be put on jobseekers at this time as she is so severely affected by her condition and in, fact, your recent decision has led to a deterioration in her mental state that has prompted her psychiatrist to adjust her meds.” (Emphasis added.)
Dr Joseph Lee, in his letter to Dr Townsley of 11 September 2015, having seen the Applicant for review, discussed the Applicant decreasing her lamotrigine medication, because she told him it affected her study and functioning. He stated
“Her bipolar disorder has not been well controlled over the last one-odd [sic] years with rapid mood cycling of depressive, high and mixed states, co-morbid with obsessive compulsive-like symptoms. Her panic disorder, however, has appeared well controlled. Her mood disorder and associated OC symptoms have had a considerable impact on her functioning. I discussed with her the treatment options.” (Emphasis added.)
Dr Lee goes on to detail changes to medication and for that to then be reviewed depending on the Applicant’s response and tolerance and that he would review her in two months (i.e. November 2015).
Dr Townsley in her medical certificate of 14 June 2016 (Annexure A) said that the Applicant’s mental health condition “has been stable over the past several months”. Dr Townsley does not refer to the date of cancellation, which is what this hearing must focus on, but it does seem that the medical monitoring of Miss Brookes’ condition has improved under Dr Townsley’s care.
Conclusion
The medical evidence from both the Applicant’s psychiatrist and general practitioner both make clear that her mental health condition, while fully diagnosed, was neither fully treated nor fully stabilised at the date the DSP was cancelled. The Applicant’s medical advisers are still changing her medication with a view to improving her mental well-being.
I accept the Applicant’s contention in her request for review and in the hearing that changing of medication for patients with long-standing mental health conditions does not, of itself, mean that the condition is not stabilised. The Tribunal notes that sometimes new drugs are prescribed which may, in clinical assessment, be thought to work better. Equally, medication is sometimes changed because patients may build up a resistance which reduces the therapeutic effects. However, I cannot ignore written conclusions by the Applicant’s general practitioner and psychiatrist that her condition was not stable at the time in question.
The regrettable outcome for the Applicant is that her mental health conditions, as a consequence, cannot satisfy the requirement of being “permanent” with the meaning of that word in the Determination. That does not mean that I do not accept the existence of a long-standing and corroborated medical condition, but it does mean that in terms of qualification for DSP, it cannot be assigned points under the Impairment Tables on the relevant date because of the lack of treatment and stabilisation.
The Determination states, at Rule 6(7) what “reasonable treatment” means:
For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
I consider that the Applicant has not undertaken reasonable treatment for her consideration in the lead up to the cancellation. She had not regularly seen her psychiatrist or a counsellor and she had adjusted her own medication.
Even if I were to find that the condition was fully stabilised, the Applicant’s evidence of its functional effect on her ability would militate against assignment of 20 or more impairment points. Under Table 5, most of the Descriptors for ‘severe’ functional impairment are not met: the Applicant is able to undertake self-care, she has interpersonal relationships, and she has shown by her creditable completion of a university course (albeit at a university which went to significant lengths to assist her when her health challenges affected her study), that she is able to concentrate, complete tasks and plan and make decisions.
The Tribunal’s role is to consider whether the original decision was the correct decision in law and, where there is discretion, that any such discretion was exercised preferably. I would note, however, that the Applicant referred several times in evidence to making her own assessments about appropriate care for her condition, such as whether or not to undertake recommended counselling, and Dr Lee’s statement that she changed her own medication. I note Miss Brookes and her mother both said one of the reasons the Applicant had not re-engaged with a counsellor was that she was very concerned not to go to the wrong counsellor, because of the damage that can be done with evoking past memories. I understand that concern but maintain that it would be in the Applicant’s best interests to re-engage with medical professionals who can help her to improve her situation and better treat and stabilise her health challenge.
I find that no impairment points can be allocated at the date of cancellation for Miss Brookes’ mental health condition.
For a person to be qualified for DSP, the requirements of section 94(1) of the Act, as stated above, must each be met.
As the Tribunal has found that the Applicant did not satisfy the requirements of section 94(1)(b) of the Act in the relevant period, it is not necessary for me to go on to consider whether she had participated in a program of support. The regrettable outcome for her is that the reviewable decision must be affirmed.
The Applicant faces not insignificant health barriers, but she has shown that she can improve her situation. She is now a graduate. She has attained her driver licence. She has made good friends at university. The Tribunal found her an articulate and frank witness. With her own attitude, her functional abilities should improve with positive medical care and advice, and it is to be hoped her new general practitioner will assist in that.
DECISION
The Applicant was not qualified for DSP on the date of cancellation, so the reviewable decision is affirmed.
I certify that the preceding 55 (fifty five) paragraphs are a true copy of the reasons for the decision herein of ...(Sgd)................................................
Administrative Assistant
Dated 25 November 2016
Date(s) of hearing 10 November 2016 Advocate for the Applicant Ms J Brookes Representative for the Respondent
Ms B Rayment Solicitors for the Respondent Mills Oakley
Key Legal Topics
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Administrative Law
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Appeal
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Judicial Review
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