Collins and Secretary, Department of Social Services (Social services second review)
[2017] AATA 2277
•17 November 2017
Collins and Secretary, Department of Social Services (Social services second review) [2017] AATA 2277 (17 November 2017)
Division:GENERAL DIVISION
File Number: 2015/5701
Re:Estelle Collins
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
Date:17 November 2017
Place:Melbourne
The Tribunal affirms the decision under review.
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Miss E A Shanahan, Member
SOCIAL SECURITY – cancellation of disability support pension – applicant seeking unlimited portability – qualified for disability support pension December 2008 – no longer qualified under functional tables of 2011 – disability support pension cancelled – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables)
Cases
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2013] AATA 558
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Saad and Secretary, Department of Social Services, Re [2015] AATA 160
REASONS FOR DECISION
Miss E A Shanahan, Member
17 November 2017
1.Ms Collins’ disability support pension (DSP) was cancelled on 15 June 2015. This resulted from a reassessment of her eligibility under the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) following her enquiry regarding the indefinite portability of her DSP as she wished to relocate permanently to Jamaica.
2.In 2008, Ms Collins qualified for DSP. This was based on a job capacity assessment (JCA) performed on 12 December 2008 that recommended an impairment rating of 20 points each for both her psychological status, described as depression, and for her widespread osteoarthritis involving shoulders, hands, ankles and feet. A reassessment took place on 9 June 2015 and the Job Capacity Assessor recommended a total impairment rating of 15 points, constituted by 5 points under Table 2 of the Impairment Tables for the upper limbs and 10 points for the lower limbs under Table 3. As the psychiatric condition was considered not to be fully diagnosed, treated and stabilised, no impairment rating could be assigned.
3.Based on the recommendations of the JCA, the Centrelink officer determined that Ms Collins did not qualify for DSP as she did not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act). Following review by an authorised review officer (ARO), this decision was affirmed on 28 July 2015.
4.Ms Collins lodged an application for review with the Administrative Appeals Tribunal, Child Support and Social Security Division (AAT 1st Tier) on 4 August 2015. The AAT 1st Tier affirmed the impairment rating of 15 points for Ms Collins’ osteoarthritis, and that the psychiatric disorder was not fully treated and stabilised. On 30 October 2015, Ms Collins lodged an application with the General and Other Divisions of the Administrative Appeals Tribunal.
5.At the hearing of 4 September 2017, Ms Collins was represented by Mr R de Vietri of counsel, instructed by Mr H Tilemann, solicitor of Victoria Legal Aid (VLA). Ms B Lewis appeared for the Secretary. The Tribunal was provided with the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975, (the T and ST documents). Additionally, the Tribunal was provided with the clinical records of the applicant’s treating general practitioner, Dr J Garland; reports from a psychiatrist, Dr G Hogan; a clinical psychologist, Ms M Wright; and various reports of x-rays performed on 30 June 2015. Ms Collins attended the Tribunal and gave evidence in person. Ms Wright gave evidence by telephone.
BACKGROUND TO THE APPLICATION
Ms Collins is now aged 59. She left school after year 10 and attended a business college for 12 months. She then obtained employment with the Australian Taxation Office and worked there until 1981. Her first child was born in 1982 and her twin boys were born in 1991. Ms Collins has reared all three children by herself. Following the birth of the twins, she developed postnatal depression but was not referred to a psychiatrist until 1999 when the diagnosis was made retrospectively. She received treatment with the antidepressant Zoloft and thereafter took varying doses.
Ms Collins has been what she calls a binge-drinker of alcohol since 1976. She now drinks up to 30 375 ml bottles of alcoholic cider a day, two to three days per week. She believes the variety of cider that she drinks has an alcohol content of 3.9 per cent. On the day following an episode of binge-drinking, she feels unwell, does nothing around the house and neglects her personal care. Ms Collins has been encouraged by her general practitioner to attend Alcoholics Anonymous, which she did for a short periods, but has had no other treatment for her alcohol abuse.
Ms Collins had not seen a psychiatrist or psychologist for many years until she attended Dr Hogan in November 2015 after her DSP was cancelled. She saw a clinical psychologist in September 2016. Dr Hogan diagnosed a major depressive disorder and recommended trialling alternative antidepressants. He suggested the use of Pristiq, 100 mg per day with the dose to be increased to 200 mg per day if necessary to obtain a positive response. Following this recommendation, Ms Collins was prescribed and is currently taking Pristiq, 50 mg per day. Dr Hogan also recommended that if Pristiq was ineffective, she should be switched to fluoxetine, 20 to 40mg per day. This recommendation has not been instituted.
Ms Collins has multiple degenerative joint changes resulting in pain and restriction of movement. Investigation has confirmed the diagnosis of periarticular calcification of the left shoulder with bursitis and impingement but no muscle tear; degenerative changes are present in the left hand with subluxation of the first carpometacarpal joint (thumb) and advanced degenerative changes in the right first carpometacarpal joint; bilateral knee joint degeneration with a small right effusion; and advanced changes in the right ankle including soft tissue swelling and calcification. All changes are described as being degenerative and is more correctly termed osteoarthrosis. Treatment of the joint symptomatology has been analgesia only.
Ms Collins takes Panadol on a regular basis. She had a four month trial of Mobic, one tablet per day, without benefit. She has not had physiotherapy nor has she been referred to a specialist, such as an orthopaedic surgeon or rheumatologist. Her general practitioner has recently arranged for her to attend an orthopaedic surgical clinic in a public hospital, the booking being for November 2017.
Ms Collins lives in a two-storey, Victorian State Housing Commission home. As she has difficulty climbing stairs, she has shifted her bed to the downstairs lounge room. The bathroom is upstairs. She has sponge washes daily and showers upstairs only if going out. One son lives with her but only stays three nights per week. Ms Collins has no close friends. A neighbour had assisted her on the day of the hearing by washing her hair and styling it before she attended the Tribunal.
Ms Collins rarely goes out, lacks motivation, and frequently sleeps during the day for up to four hours. She watches television but does not concentrate on it and says her memory is poor. She often writes herself reminder notes. She gave evidence that if she was required to leave her house to work for 15 hours per week, she would commit suicide.
Ms Collins’ degenerative joint disease limits above shoulder movement as it causes pain, her right ankle and knees impacting on her ability to walk and climb stairs; and her thumb condition limits her ability to grip, unscrew lids, tie shoelaces, and similar activities. The limiting factor appears to be pain rather than any fixed decrease in movement. Ms Collins does not wear enclosed shoes and wears thongs at all times of the year. She was noted to be wearing socks with thongs at the hearing. She uses a shopping jeep to shop, which she does rarely, and also for support.
Ms Collins travelled overseas on three occasions in 2013 and four occasions in 2014. In 2014 she spent periods of seven to nine weeks in Jamaica. It was after her return from her last trip in August 2014 that she enquired about the permanent portability of her DSP so that she could live in Jamaica. This resulted in a reassessment conducted over a period of 10 months.
EVIDENCE BEFORE THE TRIBUNAL
Ms Collins gave evidence in person. Both her counsel, Mr de Vietri, and Ms Lewis concentrated their questions on her functional performance. Mr de Vietri asked Ms Collins how she could cope with picking up various objects. Ms Collins was asked whether she could pick up a 1 L bottle of milk, but said that as she didn’t use milk, the question was irrelevant. She used a small bottle opener to open her cider bottles; and she could lift a box to a certain height, but all such movements caused pain. Ms Collins completed most of her shopping by ordering online in order to avoid having to carry shopping bags. She could, however, manage to carry one bag containing, for example, several rolls of toilet paper and a loaf of bread. However, this would cause pain in her thumbs and shoulders.
In relation to picking up small objects such as coins, she said that she would eventually succeed after several attempts, and while she could write out shopping lists and the like by hand, it was painful to do so. She said that she would not do up buttons because it hurt. Ms Collins confirmed that she showered approximately once a week and rarely washed her hair. She was not able to tie shoelaces. Ms Collins could not recall how long she had been on antidepressant medication, nor could she recall how long she had attended the Bay Community Health Program. She said she was able to care for herself in other respects, in that she could dress herself; make her meals, although these were generally microwaved meals; and was visited by one friend on a regular basis.
Ms Collins in response to the Tribunal’s question advised that her overseas visits had been to Jamaica and Fiji. She normally stayed in Fiji for a period of two weeks and Jamaica for six or more weeks.
Ms Lewis asked the same questions as those outlined in the Impairment Tables. Ms Collins said did she use a computer and while this caused pain in her hands she could type on a keyboard. She also confirmed that she took a long time to get dressed, up to 20 minutes. She often had several cups of coffee in order to get going. In her overseas travels between 2014 and 2015, she had taken one of her children with her on three occasions but otherwise had travelled overseas by herself. She was able to attend her local general practitioner by herself and without any assistance.
Otherwise, Ms Collins’ evidence was as summarised under BACKGROUND TO THE APPLICATION.
Ms Monica Wright – clinical psychologist
Ms Wright had seen Ms Collins on 16 September 2016. She had been asked to make an assessment and to determine whether it was possible to extrapolate from this Ms Collins’ psychological status at the time of the cancellation of her DSP.
Ms Wright had obtained the physical and mental health history outlined under BACKGROUND TO THE APPLICATION and had been supplied with reports from the treating general practitioner. Ms Wright had Ms Collins perform self-reporting questionnaires designed to measure the severity of depression, anxiety and stress (DASS-21). This revealed an elevation of her depression and anxiety scores and a stress score of 19. All were said to be in the extremely severe range. A Beck Anxiety Inventory (BAI) was conducted and this revealed what was described as a profile of concerning anxiety. Ms Wright made a diagnosis of a major depressive disorder with anxious distress of moderate degree. The condition was deemed to be permanent. Ms Wright was of the opinion that the same diagnosis of the same severity would have been made at the time of cancellation of Ms Collins’ DSP on 15 June 2015.
Ms Wright, having assessed Ms Collins’ mental health function, recommended an impairment rating of 20 points.
In her evidence to the Tribunal Ms Wright described herself as a clinical psychologist, Division One nurse and a trauma specialist. She described Ms Collins as being disorganised, dishevelled and edentulous (no teeth). Ms Wright had not had access to the reports of the psychiatrist Dr Hogan who saw Ms Collins in November 2015, but had noted the reference to Dr Hogan’s opinion in the JCA report of 24 February 2016.
Ms Wright affirmed her diagnosis as provided in her report and her opinion that no further treatment was likely to improve Ms Collins’ psychiatric condition.
Ms Wright said she had looked at the mental health impairment criteria attracting an impairment rating of 20 points in Table 5 and had made her assessment considering all of the requirements, (a) to (f). The Tribunal asked Ms Wright how she had found that Ms Collins satisfied 1(b) of the Table 5 impairment rating for 20 points, in relation to travel. Ms Wright revealed that she had no knowledge of Ms Collins’ overseas travel let alone the frequency with which she did so. Having been informed of these events, she agreed that 1(b) of the table was not satisfied. Ms Wright also reconsidered her conclusion in relation to 1(e) of Table 5, concerning planning and decision-making, given Ms Collins had revealed an ability to organise overseas travel.
Ms Lewis brought to Ms Wright’s attention the content of Dr Hogan’s report and his recommendation that a different antidepressant be trialled. She asked Ms Wright if this should have been followed and Ms Wright answered yes. Ms Wright agreed that alcohol abuse was a contributory factor to Ms Collins’ major depressive disorder and that despite Ms Collins’ physical impairments, she could benefit from employment in terms of her mental health.
DOCUMENTARY EVIDENCE
The relevant documentary evidence has been referred to under BACKGROUND TO THE APPLICATION. However, it is noted that although the treating general practitioner, Dr Garland, had recommended an impairment rating of 10 points for the upper limb and 10 points for the lower limb in 2016, having participated in a telephone conversation with the JCA, he had not later challenged or disagreed with their assessment of 5 and 10 points respectively.
The only radiological imaging that has been undertaken to assess Ms Collins’ joint pathology has been plain x-rays and ultrasounds. No CT (Computerised Tomography) imaging or MRI (Magnetic Resonance Imaging) has been performed. MRI is considered the superior means of assessment for soft tissue abnormalities, and CT scanning for bony structure.
The Tribunal has been provided with the general practice clinical records from 2005 to 2016, which reference liver function tests, anti-inflammatory markers and rheumatology markers dating back to the year 2002. None of the entries include any objective evidence of the range of movement of any of Ms Collins’ affected joints or any of the ligaments related to these joints. The entries merely state pain in joints and occasionally some swelling. There is no assessment of the functional impact of the joint disease.
RELEVANT LEGISLATION
Section 94 of the Act provides for the criteria for qualification for DSP. The Act states:
94 Qualification for disability support pension
(1)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)one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...
SUBMISSIONS
Mr de Vietri submitted that Ms Collins was clearly totally incapacitated for work, this being a constant feature of her evidence and that of her treating doctors. The question as to whether her mental health function was fully diagnosed, treated and stabilised was said to be irrelevant and it was submitted that any further treatment would be tinkering around the edges as nothing would ever cure Ms Collins’ anxiety or major depressive disorder.
Mr de Vietri expressed his doubt that major depressive disorder could ever be stabilised. Given the overall picture of Ms Collins’ mental disorder, it was submitted that her depression should be considered to be fully diagnosed, treated, and stabilised, and attracting a 20 point impairment rating as delineated in Table 5.
In making these submissions, Mr de Vietri relied on the decision of Deputy President Forgie in Re Eid and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 wherein Deputy President Forgie addressed the relevance of job capacity assessments and their evidentiary weight. In particular Mr de Vietri relied on paragraph 88 wherein Deputy President Forgie said:
...Provided there is a diagnosis at some stage and the evidence shows that the person suffered from the condition in the relevant period that meets the description of being a condition that is fully diagnosed.
However, Deputy President Forgie also said that although the diagnosis had been made after the date of application for DSP, all of the evidence in Re Eid indicated that the condition, whatever name it attracted, had been fully treated and stabilised as of that date. In relation to the concept of ‘fully treated and stabilised’ Mr de Vietri relied on the decision of Judge Gyles in Harris v Secretary Department of Employment and Workplace Relations (2007) 158 FCR 252, a decision handed down on 22 March 2007. Mr de Vietri relied on paragraph 18 wherein Judge Gyles said:
...No doubt, the decision maker is entitled to make its own investigation of the claim and to form a view adverse to the claimant based upon that investigation. […] That is a very different thing from the decision maker rejecting a claim because it speculates that a hypothetical third party might come to an adverse opinion. [...] If further investigations were required, it was up to the Department to organise them.
As the Secretary had determined that the depression, if treated and stabilised, would only attract 10 points, Mr de Vietri submitted that that was sufficient to satisfy the qualification requirements for DSP under the Act. This was contended on the basis that in combination with the osteoarthrosis and the agreed impairment ratings of 5 points for her upper limbs and 10 points for her lower limbs, Ms Collins would meet the requirements of s 94(1)(b) having a total of 25 impairment points in the functional rating. He contended there was no evidentiary material before the Tribunal to conclude other than a minimum of 20 points.
Ms Lewis addressed the evidence before the Tribunal and the content of the Secretary’s Statement of Facts, Issues and Contentions.
Ms Lewis contended that Ms Collins’ psychiatric disorder was not fully treated and stabilised and that Ms Wright’s evidence and opinion was diminished by the fact that she did not have all of the information available; in particular the opinion of Dr Hogan, the psychiatrist who had seen Ms Collins in late 2015. Dr Hogan had suggested various changes in antidepressant medication but this had not been trialled and at the date of the cancellation of Ms Collins’ DSP, no reasonable treatment had been advised or accepted. It was submitted that Ms Wright did not have the expertise or the medication knowledge to support her conclusions and final opinion.
While the Secretary had accepted that Ms Collins’ osteoarthrosis of her upper and lower limbs was fully diagnosed, treated and stabilised and attracted a 5 point and a 10 point impairment rating respectively, the evidence raised at the hearing cast doubt on whether these conditions were fully diagnosed, treated and stabilised.
Ms Lewis relied on the JCA’s recommendations that Ms Collins had a baseline work capacity of 8 to 14 hours per week with a capacity to work 15 to 22 hours per week within 2 years with intervention. She acknowledged that the report of Dr Hogan of 22 November 2015 expressed the opinion that it was unlikely that Ms Collins would be capable of employment in the future. However, she submitted that Dr Hogan’s report was provided five months after the cancellation of DSP and he had only seen Ms Collins on the one occasion and thus, such a conclusion might be premature. It was also contended that Ms Wright’s opinion should not be accepted on the basis that it was provided 15 months after the date of cancellation and that she had not been provided with all the medical opinion then available.
Ms Lewis argued that the inability to undertake any work had to relate to the impairments resulting from the medical conditions as assigned in s 94(1)(b). The decision in Harris was distinguished as it was based on the Impairment Tables existing in 2007, rather than the current tables which came into effect on 1 January 2012. Harris was further distinguished on the basis that Ms Collins had seen a psychiatrist, had been assessed and treatment had been recommended. This was in contrast to Harris, where the decision-maker rejected the claim on the basis that a hypothetical third party might provide an adverse opinion.
In the course of the hearing, it became apparent that VLA had obtained an occupational health assessment of Ms Collins’ physical conditions. The professed need to obtain this report had been the basis for the adjournment of the hearing listed for December 2016. The Tribunal was informed that this had been arranged but that VLA could not find the report provided by Ms P-V Houston, an occupational therapist. The report was said to have been dated 3 June 2017. This was discussed in the course of the hearing and Mr de Vietri informed the Tribunal that Ms Collins would not be relying on the contents of this report. He apologised for the absence of the report. The Tribunal requested that an effort be made to locate the report and to provide it to Ms Lewis with a copy to the Tribunal.
The report was subsequently provided to the Tribunal. In summary, Ms Houston had attended Ms Collins’ home, taken a history, assessed the home supports, summarised the treatment undertaken, and addressed the criteria contained in the relevant the Impairment Tables. Regarding the osteoarthritis, Ms Houston was of the opinion that the JCA was accurate in the assignment of 5 impairment points under Table 2 for upper limb function, and 10 points under Table 3 for lower limb function. However, she noted that various treatments had been suggested but not undertaken and that a referral to an orthopaedic surgeon would be appropriate.
It was additionally noted that there had been no effort to provide Ms Collins with mobility aids or in-house modifications that would assist her. Given the length of time that Ms Collins had, as Ms Houston put it, fallen through the net in relation to treatment of the physical conditions, it was concluded that her employability was minimal. Despite this, Ms Houston considered that it would be beneficial for Ms Collins to see appropriate specialists for further opinion and management.
The parties did not make submissions in relation to Ms Houston’s report.
TRIBUNAL’S DELIBERATIONS AND DECISION
The Tribunal accepts that Ms Collins satisfies s 94(1)(a) of the Act in that she has evidence of degenerative osteoarthrosis effecting her left shoulder, both thumbs, both knees and her right ankle and was diagnosed in the past with a major depressive disorder. The latter was confirmed by a psychiatrist in late 2015, following the cancellation of her DSP.
The presence of degenerative osteoarthrosis has been confirmed radiologically by plain x‑rays of the joints involved and ultrasounds of the left shoulder and the ankle. Ms Collins has chronic pain in these joints, and impaired movement and function which impact on her mobility, her sleep and her efforts to support herself. However, it was her evidence that she can perform all the activities of daily living, albeit slowly. In relation to the severity and impact of the osteoarthrosis, reliance has been placed on Ms Collins’ self-reporting of her symptoms and their impact on mobility, there being no evidence provided to the Tribunal in the form of physical examination of any of the joints involved. No expert evidence and/or opinion, such as an assessment by a rheumatologist or an orthopaedic surgeon has been provided.
Again, based on Ms Collins’ self-reported symptomatology and the impact on her functional abilities, the Tribunal agrees with the total impairment rating of 15 points that were assigned under Tables 2 and 3.
In relation to Ms Collins’ depression and anxiety, it is noted that this became symptomatic in 1992, but a diagnosis was not made until about 1999 or 2000. The diagnosis was made by her then general practitioner, who prescribed antidepressants. Confirmation of the diagnosis by a psychiatrist of the depression was not forthcoming, according to the general practitioner, until 2008 or 2009. The evidence in relation to antidepressant medication suggests that she has not been receiving therapeutic doses of these medications.
Since the cancellation of her DSP, Ms Collins has seen a psychiatrist, Dr Hogan, who has confirmed the diagnosis of a major depressive disorder and suggested various changes to her treatment which have not been instituted. Dr Hogan was of the opinion that she was probably totally incapacitated for work but did not commit himself on that question, given the absence of a full regime of treatment of the psychiatric condition.
Ms Collins’ binge-drinking, which amounts to having up to 30 or more standard drinks twice a week, has not been treated other than a referral to Alcoholics Anonymous, at which her attendance was sporadic. She had not been referred to a drug and alcohol rehabilitation unit.
While the Tribunal notes that the Secretary has accepted the recommended impairment ratings in relation to the osteoarthrosis, there is considerable evidence suggesting that none of the medical conditions are fully diagnosed, treated and stabilised.
The clinical psychologist Ms Wright was of the opinion that Ms Collins is totally incapacitated for any form of work due to her major depressive disorder and anxiety, and that she is severely incapacitated to the point of attracting a 20 point impairment rating under Table 5 of the Impairment Tables. This is not accepted by the Tribunal as Ms Wright was not provided with the information relating to Ms Collins’ frequent overseas trips, nor had she been provided with the report of the psychiatrist Dr Hogan. When informed of Ms Collins’ overseas travel at the hearing she indicated that she had to change some of her assessment criteria based on this information.
Based on the evidence before the Tribunal, Ms Collins did not satisfy the criteria of s 94(1)(b) of the Act at the time of cancellation of her DSP.
The Tribunal rejects Ms Collins’ submissions in relation to the decision of Re Eid on the basis that Deputy President Forgie’s conclusion, that the diagnosis was that condition a person suffered from at some relevant period, was made on the basis that the condition had been fully treated and stabilised at that date. Without supporting evidence from a psychiatrist or a clinical psychologist Ms Collins’ major depressive disorder as at 15 June 2015 had not been fully diagnosed as required by Table 5 of the Impairment Tables, nor had it been fully treated and stabilised. Similarly, Harris can be distinguished in that the decision of Judge Gyles was made in 2007, before the legislative changes to the Impairment Tables in 2011. These changes resulted in the assessment of medical conditions being on a functional basis, and included the requirement that mental disorders be diagnosed by a psychiatrist or a clinical psychologist.
The Tribunal accepts the principle from the Federal Court decision in Freeman v Secretary, Department of Social Service (1988) 19 FCR 342, that should the Tribunal determine that a decision to cancel was the correct or preferable decision, no further matter remained for the Tribunal’s consideration. This decision remains good law and has been followed by the Tribunal in various decisions, including Saad and Secretary, Department of Social Services [2015] AATA 160. As the Tribunal has determined that Ms Collins did not satisfy s 94(1)(b) of the Act as of the date of cancellation of her DSP, no further consideration of the application is required.
The Tribunal affirms the decision under review.
I certify that the preceding 55 (fifty‑five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
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Associate
Dated: 17 November 2017
Date of hearing: 4 September 2017 Counsel for the Applicant Mr R de Vietri Solicitor for the Applicant Mr H Tilemann Solicitors for the Applicant: Victoria Legal Aid Solicitor for the Respondent: Ms Belinda Lewis Solicitors for the Respondent: Department of Human Services
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