Conaghan and Secretary, Department of Social Services (Social services second review)

Case [2017] AATA 64

Conaghan and Secretary, Department of Social Services (Social services second review) [2017] AATA 64 (25 January 2017)

Division:GENERAL DIVISION

File Number:           2015/3460

Re:Rochelle Conaghan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member J Sosso

Date:25 January 2017

Place:Brisbane

The Tribunal affirms the decision under review

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Senior Member J Sosso

Catchwords

SOCIAL SECURITY – disability support pension – cancellation – where Applicant has a number of somatoform conditions – whether Applicant’s conditions attract 20 points or more – whether conditions fully diagnosed, treated and stabilised – whether conditions permanent – impairment ratings – continuing inability to work – decision under review affirmed

Legislation

Social Security Act 1991, ss 27, 94
Social Security and Other Legislation Amendment Act 2011, s 2
Social Security (Administration) Act 1999, s 63, Sch 2 Pt 2 Cl 4

Cases

Bobera and Secretary, Department of Families, Housing,  Community Services and Indigenous Affairs

[2012] AATA 922


Freeman v Secretary, Department of Social

Security [1988] FCA 294; 19 FCR 342


Shi v Migration Agents Registration Authority

(2008) 235 CLR 286


Gallacher v Secretary, Department of Social Security

[2015] FCA 1123


Said and Secretary, Department of Family and Community Services

[2002] AATA 951 Croker and Secretary, Department of Employment and Workplace Relations [2007] AATA 1224


Berthlmawos and Secretary, Department of Social Security

[2016] AATA 116

Secondary Materials

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

REASONS FOR DECISION

Senior Member J Sosso

25 January 2017

INTRODUCTION

  1. Ms Rochelle Conaghan (the Applicant) seeks a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) of 1 July 2015 which affirmed the decision of the Department of Human Services (the Department) to cancel the Applicant’s disability support pension (DSP) on 15 April 2015.

  2. The Applicant was initially granted the DSP effective from 29 September 2010 – Exhibit 1 T17 p.165.

  3. The qualification criteria for the DSP are contained in s 94 of the Social Security Act 1991 (the Act). To be qualified for the DSP, inter alia, a person must have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables and a continuing inability to work.

  4. The Impairment Tables which were in force when the Applicant was initially granted the DSP were replaced by a Determination made in 2011 (Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination)), and which operated from 1 January 2012 – Cl 2, the Determination; s. 2, Social Security and Other Legislation Amendment Act 2011..

  5. On 26 September 2014 the Department commenced a review of the Applicant’s medical qualification for the DSP, and issued a notice under section 63 of the Social Security (Administration) Act 1999 requiring her to provide updated information about her medical condition – Exhibit 1 T16 p.162.

  6. In determining a person’s qualification to continue to receive the DSP the decision-maker must apply the instrument…

Details
AGLC
Conaghan and Secretary, Department of Social Services (Social services second review) [2017] AATA 64
Case
[2017] AATA 64
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against the cancellation of her Disability Support Pension (DSP). The applicant, who was awarded the DSP in September 2010, had claimed a number of conditions including somatoform disorder, central auditory processing disorder, asthma, and depression. The Secretary, Department of Social Services, was the respondent.

The primary legal issues before the Tribunal were whether the applicant’s diagnosed medical conditions attracted an impairment rating of 20 points or more under the relevant Impairment Tables, and whether these conditions were fully diagnosed, treated, and stabilised, and likely to persist for the foreseeable future. The Tribunal was required to determine the applicant's eligibility for the DSP as at the date of cancellation, considering all relevant evidence, including material presented after that date.

The Tribunal applied the principles established in cases such as *Bobera* and *Freeman*, emphasising that its role was to stand in the shoes of the original decision-maker and consider the matter afresh. It noted that while subsequent evolution of a condition might be relevant to the weight given to evidence, the assessment must focus on the applicant's circumstances at the time of the original DSP application and cancellation. The Tribunal accepted the respondent's concession that the applicant suffered from physical and psychiatric impairments, satisfying a threshold requirement of the Act. However, as the applicant's impairments were not found to attract a rating of 20 points or more under the Impairment Tables, the Tribunal did not need to consider the further issue of diagnosis, treatment, and stabilisation.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The Secretary, Department of Social Services (the Respondent) was represented by Ms Donna Smith, Senior Government Lawyer. Ms Smith also prepared the Secretary’s Statement of Facts & Contentions (SSFC) dated 24 November 2016, which has been of great assistance to the Tribunal.BACKGROUND The Applicant is a 22 year old female who was awarded the DSP in September 2010. Her claim was originally for the following conditions: somatoform disorder, central auditory processing disorder, asthma and depression – Exhibit 1 T5 p.66. In the Job Capacity Assessor (JCA) Report for that claim, dated 22 September 2010, the JCA determined that the Applicant suffered from a “Psychol/Psychiatric Disorder – Other” and a “Learning Disability”, each of which was considered to be fully diagnosed, treated and stabilised – Exhibit 1 T6 p.70. I note that a different Impairment Determination applied for the assessment of that claim than applies for the present application. Following the Department’s review of the Applicant’s medical qualification for the DSP, a medical report from Dr Julian Chin, dated 10 October 2014 was provided by the Applicant - Exhibit 1 T7 pp.75-84. Dr Chin was the Applicant’s GP, and is based in Pottsville, New South Wales. In response to Question 4: “Does the patient have one or more medical conditions that have a SIGNFICANT IMPACT on their ability to function…?”, Dr Chin outlined two classes of conditions having the greatest impact on the Applicant: pseudo-seizures – conversion disorder, chronic headaches and anxiety (p.77) and central auditory processing disorder (p.80). Dr Chin stated that the onset of the pseudo-seizures was approximately 2009, and that the clinical features of the condition were chronic headaches as well as being prone to seizures (pp.77-78). He further opined that the impact of this condition was involuntary loss of consciousness, altered consciousness and problems with coordination (p.79). Dr Chin stated that the condition was expected to persist for more than 24 months and within that period the impact on her ability to function was expected to remain unchanged (p.79). As to the central auditory processing disorder, Dr Chin estimated that onset of this condition was 1997 (p.80) and had resulted in hearing impairment (p.81). The impact of the condition on the Applicant’s ability to function was stated to be concentrating, decision making, memory, problem solving affected and language delays (p.82). Again, Dr Chin was of the opinion that this condition would persist for more than 24 months and the impact on the Applicant’s ability to function was not expected to change in that time period (p.82). Subsequently, the Applicant had a face to face interview with a JCA who produced a report dated 27 March 2015 – Exhibit 1 T9 p.91. It is worth noting that the JCA was a registered psychologist – Exhibit 1 T9 p.91. The JCA recommended the Applicant be awarded a total impairment rating of 10. The rationale for this recommended rating is as follows (p.96):“Previous Job Capacity Assessment report dated 20/09/2010 was reviewed for this assessment. This past assessment allocated 20 points under Table 6, psychiatric impairment (old impairment tables) for the condition of Somatoform Disorder. The current assessment recommends that the conditions of Psychoseizures – conversion disorder/Chronic headaches – anxiety, are not full diagnosed, treated and stabilised at this time. The conditions have not been confirmed by a Psychiatrist or Clinical Psychologist, and psychiatric/psychological interventions, may assist with significantly improving this condition in the next 2 years. The current assessment indicated that there is a moderate impairment on Communication Function and allocated 10 points under table 8. This is consistent with the past assessment where a moderate impairment was recommended and 15 points were allocated under Table 9 using the old impairment tables. The past assessment has recommended a baseline work capacity of 0-7 hours per week, with a future work capacity with intervention of 8-14 hours per week. This differs from the current assessment as the baseline work capacity recommended is 8-14 hours per week, with a future work capacity with intervention of 15-22 hours per week.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the Applicant’s impairments were not capable of being assigned a rating of 20 points or more under the Impairment Tables, it is not necessary for the Tribunal to address this issue.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”CONSIDERATION The central question to be determined by the Tribunal is whether the Applicant was qualified for the DSP on the day it was cancelled, namely 15 April 2015 and not at the time the cancellation decision was reviewed by the Tribunal – Freeman v Secretary, Department of Social Security [1988] FCA 294; 19 FCR 342 at [9] per Davies J. In reaching its decision the Tribunal is not limited to considering the material that was presented to the original decision-maker. The Tribunal’s mandate is to stand in the shoes of the original decision-maker and consider the matter afresh and in so doing receive such evidence that is relevant and of value, including evidence produced after 15 April 2015 – Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ. In particular, the Tribunal is at liberty to admit into evidence and consider medical reports prepared after 15 April 2015 provided that those reports relate to the Applicant’s medical condition at the time the original cancellation decision was made – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.Does the Applicant suffer a physical, intellectual or psychiatric impairment? The Respondent accepts that the Applicant suffers from physical and psychiatric impairments and therefore satisfies the requirements of s 94(1)(a) of the Act - SSFC para 34. Having regard to the evidence before the Tribunal, I agree that concession was properly made.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables?1. Central Auditory Processing Disorder