Charlyne Ross and Secretary, Department of Social Services

[2015] AATA 434

[2015] AATA 434

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5665
Re	Charlyne Ross
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	22 June 2015
Place	Brisbane

The Tribunal remits the decision to the respondent for reconsideration in accordance with these reasons pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth).

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Whether conditions fully diagnosed, treated and stabilised – Borderline personality disorder, depression and agoraphobia – Decision remitted to respondent for reconsideration

LEGISLATION

Social Security Act (1991) (Cth) s 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

REASONS FOR DECISION

Senior Member Bernard J McCabe  

22 June 2015

1. Mrs Charlyne Ross is very unwell, and she cannot work. She lodged a claim for the disability support pension (“the DSP”) on 1 May 2014 but it was rejected because Centrelink, on behalf of the Secretary of the Department of Social Services, concluded Mrs Ross was unable to satisfy the so called “medical criteria” in s 94(1) of the Social Security Act 1991 (“the Act”). Mrs Ross asked this Tribunal to revisit the decision.

   The medical criteria in s 94 of the Act

2. The application must be assessed against the medical criteria at the time the applicant made the application for DSP, and in the 13-week period that followed. In this case, then, my focus is on the applicant’s condition in the period May through to the end of July 2014 (the “Assessment Period”). I am not permitted to consider the applicant’s position at the time of the hearing: it is often the case that an applicant’s condition or circumstances have worsened in the period following the Assessment Period. If that is so, it may be necessary for the applicant to make a fresh application so the change in her condition can be taken into account.

3. Section 94(1) imposes three requirements that must be satisfied before someone can be granted the DSP. The first requirement – that the applicant experience a physical, intellectual or psychiatric impairment - is clearly satisfied in this case. Mrs Ross suffers from borderline personality disorder, major depression and agoraphobia. It is the second requirement (in ss 94(1)(b)) that creates particular difficulty.

4. The second requirement is that a minimum of 20 points must be assigned under one or more of the impairment tables published in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Determination”). Ms Smith, who represented the Secretary, conceded Mrs Ross would be assigned 20 points under table 5 (the table that measures the extent of impairment as a consequence of mental health function) if the Tribunal were satisfied the conditions resulting in the impairment had been fully diagnosed, fully treated and fully stabilised at the relevant time. Ms Smith pointed out s 6(3) of the Determination says points cannot be assigned if the person’s condition is not permanent, or if the impairment that results from the condition is likely to last for less than two years. Section 6(4) says a condition will not be permanent unless:

   (a)it has been fully diagnosed by an appropriately qualified medical practitioner;

   (b)has been fully treated; and

   (c)has been fully stabilised.

5. A condition will not be regarded as being fully stabilised unless the person has undertaken reasonable treatment within the meaning of s 6(7), or the reasonable treatment is unlikely to result in significant functional improvement. When assessing whether treatment is reasonable, one must consider whether the treatment:

   (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.

6. The Secretary accepts the applicant suffers from a borderline personality disorder. The condition has been fully diagnosed. But the Secretary says that condition has not been fully treated and fully stabilised. The Secretary also says

   ·the applicant’s major depression was not, at the relevant time, fully diagnosed by an appropriately qualified medical practitioner, and that it was not fully treated and fully stabilised during the Assessment Period; and

   ·the agoraphobia condition was not fully diagnosed, fully treated or fully stabilised during the relevant period.

7. In those circumstances, the Secretary says the impairment points could not be assigned, which means the application must fail.

8. I will say at once that I am satisfied the applicant’s major depression was fully diagnosed by an appropriately qualified medical practitioner. The diagnosis was initially made by a psychiatrist in 1992 when she was a serving member of the RAAF: exhibit one at pp 108-110. On 11 September 2014, that diagnosis was repeated by a clinical psychologist. Given that evidence, I am satisfied I can safely infer the applicant experienced that condition during the Assessment Period.

9. It is unclear whether the applicant’s agoraphobia condition is fully diagnosed because it has not been the subject of much discussion in the medical evidence. The condition appears to be treated as if it is secondary to one of the other two diagnosed conditions. (That is how the symptoms appear to be regarded in a psychiatric report prepared in 1993, at any rate: exhibit one at p 117.) I will proceed on that basis: while it may not be a stand-alone condition that can lead to the assignment of impairment points under the mental functioning table, the symptoms are properly taken into account as part of the applicant’s borderline personality disorder and major depression.

10. The real question here is whether the applicant’s borderline personality disorder and major depression conditions are fully treated and fully stabilised. I will deal with the borderline personality disorder first.

11. The clinical psychologist who prepared a report on behalf of the applicant recommended Mrs Ross undergo intensive dialectical behavioural therapy and continued psychological support, including “IPT” (inter-personal therapy) and cognitive behavioural therapy: exhibit one at pp 144-145.

12. The applicant says none of that was feasible. To begin with, she was not eligible to participate in the publicly-funded dialectical behaviour therapy program: see exhibit one at p 97. While the same therapy is available from private providers, Mrs Ross says she cannot afford it. On that basis, the respondent conceded at the hearing that dialectical behavioural therapy was not reasonable treatment for the purposes of the Determination. But the cost of accessing assistance is also an issue for the other forms of treatment recommended in the report. Mrs Ross is entitled to a limited number of sessions with a psychologist each year under Medicare. She explained in her evidence that she has availed herself of that treatment in the past but 12 sessions is not enough: she says a psychologist cannot provide the sort of intensive assistance required within that time frame. The psychologist report concurred: it recommended the applicant see a psychologist at least fortnightly over a lengthy period: exhibit one at p 144. Mrs Ross suggested that sort of limited assistance actually did more damage than good because she was forced to continually explain herself to a new treating specialist who had to take a history and investigate the case before commencing treatment.

13. I accept the applicant’s borderline personality disorder is fully diagnosed, treated and stabilised. No reasonable treatment options will make a difference to her prognosis. She simply cannot afford the more intensive treatment options that might make a difference, and which are not publicly funded.

14. That leaves only the question of the major depression. The applicant has taken medication in the past, but she has only recently seen a psychiatrist to trial new medication. Her treatment is now in the hands of her general practitioner. The evidence does not suggest the condition was fully treated and it certainly was not fully stabilised during the Assessment Period. It is possible the applicant’s functioning – which was already compromised by the borderline personality disorder – was even more severely compromised by an episode of major depression. But the evidence as to any interaction between the two conditions is not clear cut. The evidence does not enable me to reach a concluded view as to the contribution (if any) the applicant’s major depression made to the extent of her impairment during the Assessment Period.

15. The job capacity assessors approached the task on the basis that the personality disorder did not attract an impairment rating: exhibit one at pp 98-102. But, for reasons I have explained, I am satisfied the impact of the personality disorder should be assessed as a stand-alone condition without regard to the depression condition which was not yet ripe for assessment.

16. I propose remitting the decision to the respondent for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975. That reconsideration should proceed on the basis of the findings I have made – in particular, that the applicant’s borderline personality disorder was fully diagnosed, treated and stabilised during the Assessment Period, and the major depression was fully diagnosed at that point but not fully treated and stabilised. The respondent should then commission a fresh assessment from a clinical psychologist who will consider a transcript of the evidence given at the hearing and consult with the applicant’s treating doctors to determine whether 20 points should be awarded under table 5 in respect of the applicant’s borderline personality disorder.

17. If that assessment concludes the applicant’s borderline personality disorder results in the allocation of 20 or more impairment points, the question of her continuing inability to work for the purposes of s 94(1)(c) should also be reassessed having regard the evidence given at the hearing about the applicant’s work and study history.

18. The respondent should make a decision following the reassessment within 28 days of the date of these reasons. That is a short period, which seems appropriate given the urgency of the applicant’s circumstances, but it may be extended upon application to the Tribunal. If the applicant wishes to cover every eventuality and submit a fresh claim for the DSP with up-to-date evidence about her major depression condition, there may be some economy in dealing with the remittal and the fresh application in the one process.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated   22 June 2015

Date of hearing	29 May 2015
Applicant	In person
Solicitors for the Respondent	Donna Smith, Department of Human Services