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

[2016] AATA 503

De Jong and Secretary, Department of Social Services (Social services second review) [2016] AATA 503 (19 July 2016)

Division	GENERAL DIVISION
File Number	2015/6495
Re	Pelangi de Jong
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	19 July 2016
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Miss E A Shanahan, Member

SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – reassessment of qualification for disability support pension – incapacitating condition ̶ epilepsy – application of Table 15 – impairment rating of 10 points – requirements of s 94(1)(b) not satisfied – decision affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011

Cases
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

REASONS FOR DECISION

Miss E A Shanahan, Member

19 July 2016

1. Ms de Jong was granted the disability support pension (DSP) in April 2011, having been assessed as having an impairment rating of 20 points for the condition of complex epilepsy.

2. In accordance with s 63 of the Social Security (Administration) Act 1999 (the Administration Act) the Secretary, Department of Social Services (the Department) initiated re-assessment of Ms de Jong’s qualifications for the DSP. A job capacity assessment (JCA) performed on 6 May 2015 recommended that Ms de Jong had an impairment rating of 10 points under Table 15 of the Social Security (Tables for the Assessment of Work Related Impairment for  Disability Support Pension) Determination 2011 (the Impairment Tables). The JCA also determined that Ms de Jong had a baseline work capacity of 15 to 22 hours per week.  On 3 July 2015 a Centrelink delegate cancelled Ms de Jong’s DSP.   On 27 July 2015 Ms de Jong requested a review of this decision and on 4 August 2015 an Authorised Review Officer (ARO) affirmed the decision.

3. Ms de Jong applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT first tier) for a review of the ARO’s decision.

4. The AAT first tier review affirmed the decision under review.  Ms de Jong then lodged a further application with the General and Other Division of the AAT for a second tier review. 

5. At the hearing, Ms de Jong was self-represented and Mr Cameron Munro of the FOI Litigation Branch of the Department of Human Services appeared for the Department. The Department provided the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and Ms de Jong provided a report from a social worker dated 9 February 2016.  Ms de Jong gave evidence before the Tribunal. 

   BACKGROUND TO THE APPLICATION

6. Ms de Jong has suffered from epilepsy since age 13. A formal diagnosis was not made until 2006, when she was investigated in a hospital in New South Wales and a diagnosis of focal epilepsy with frequent complex partial seizures and infrequent grand mal seizures was made.  She states that she suffers partial seizures two to three times per week and occasionally several on one day.  During these partial seizures she cannot speak, experiences auditory hallucinations, makes strange guttural sounds and dissociates from her surroundings but does not lose consciousness.  The seizures last for variable times and may be of less than one minute duration or up to five to 10 minutes duration.  As previously stated, the grand mal episodes are infrequent.

7. Ms de Jong takes anti-epileptic medication and has done so since her diagnosis was made. She considers her control to be variable although she is said to be compliant in taking her medication.  There has recently been a change in her prescribed anti-epileptic medications.  In 2009 she underwent magnetic resonance imaging (MRI) of her brain and was found to have changes in the left hippocampus, the features being in keeping with a diagnosis of temporal lobe epilepsy. 

8. Ms de Jong left school after year 10 and states the reason she did not continue was because of the effect of her epilepsy.  Between 2009 and 2010 she undertook a Diploma of Beauty Therapy, following which she worked for approximately 12 months but found, as she says, being a beautician was not for her.  In 2012 she commenced a Bachelor of Health Science (Naturopathy) and currently undertakes 20 to 22 hours of formal involvement in the course per week.  She believes her level of concentration has deteriorated and she is finding it more difficult to cope with her studies.  She attributes this to either the epilepsy itself or to the side effects of the anti-epileptic medication.  She takes Tegretol 400 milligrams at night and 600 milligrams in the morning and since 2015 has also been taking Zonegran.  It is not quite clear what she is taking at present as her general practitioner says her regime is Tegretol, Vimpat and Zonegran. 

9. Ms de Jong attends the Neurology Clinic at St Vincent’s Hospital in Melbourne. It has been suggested that she would be a suitable candidate for electrode implantation to her brain, but would first need to undergo cerebral mapping to confirm the focal site of her epilepsy.  She is somewhat reluctant to undertake brain surgery and has not yet made a definite decision, although she is on the hospital waiting list for the mapping procedure.

10. Ms de Jong claims that as a result of her epilepsy she has developed anxiety and depression, or what is probably better described as an adjustment disorder. She has noted a slowing of cognitive function which may be related to her medication. Since starting her naturopathy study she has not done any remunerative work in any capacity. 

11. Ms de Jong has attended public hospital accident and emergency departments following a grand mal tonic-clonic seizure. She says the last one she experienced was approximately one month before the hearing and she regained consciousness 15 minutes after the seizure commenced.  She is not incontinent of urine or faeces during these episodes.

12. While Ms de Jong is enrolled for 18 hours per week of formal study, she is also doing one subject on line which results in her commitments being at least 20 hours per week and for the past few weeks she says she had been on the computer 24/7. 

13. Ms de Jong contemplates finishing her Bachelor of Health Science in early 2017.  Following the cancellation of her DSP, she applied for and is receiving Austudy and also some financial support from her father.

14. Ms de Jong has given evidence that she can perform all the activities of daily living without any difficulties.  Following a grand mal seizure she may have what she calls post‑ictal trauma when she feels very jittery. This may last up to one week.  She had visited her general practitioner twice in the month prior to the hearing but on both occasions this was to obtain certification for extension of time to complete assignments. 

15. A Job Capacity Assessment (JCA) was performed on a face to face basis with an occupational therapist on 6 May 2015.  The assessor had available the earlier reports from 2011 when Ms de Jong first qualified for the DSP and more recent reports from the treating general practitioner and obtained a full medical history relating to the seizures.  The assessor recommended an impairment rating of 10 points under Impairment Table 15. Ms de Jong was also assessed as having a baseline work capacity of 15 to 22 hours with recommended work such as light semi-skilled roles in retail or beauty therapy, for which she was already qualified.  No points could be assigned for the claimed depression and anxiety as Ms de Jong had not seen a clinical psychologist or a psychiatrist as required for the diagnosis of a mental disorder under the Impairment Tables.

16. Further reports were received much later in the year, including a supporting letter from Dr Plummer, neurologist at St Vincent’s Hospital, who confirmed that Ms de Jong’s epilepsy was not fully controlled and impacted on her ability to study.  He suggested this should be taken into consideration when reassessing her qualification for DSP.

17. In October 2015 Ms de Jong was seen by Dr Hettiarachchi, a consultant psychiatrist.  Dr Hettiarachchi listed Ms de Jong’s symptoms as palpitations, restlessness, inability to relax, with occasional tearfulness, lack of energy and enjoyment and changes in sleep pattern.  Ms de Jong gave a history that her epileptic seizures were triggered by tiredness and sleep deprivation.  Dr Hettiarachchi made a diagnosis of a generalised anxiety disorder with early depression and anxious personality traits.  Anti-depressive medication was recommended but this has been rejected by Ms de Jong.  Dr Hettiarachchi also recommended cognitive behaviour therapy but this does not appear to have been commenced, although Ms de Jong has had two attendances with a social worker, Mr Peter Carlon, in the form of counselling. 

    EVIDENCE BEFORE THE TRIBUNAL

18. Both Ms de Jong’s evidence and that of the treating doctors have been summarised under BACKGROUND TO THE APPLICATION.

    RELEVANT LEGISLATION

19. Section 94 of the Social Security Act 1991 (the Act) provides the relevant criteria for qualification for DSP and 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...

20. Formal submissions were not provided by Ms de Jong.

    TRIBUNAL DELIBERATIONS

21. On the evidence provided, Ms de Jong satisfies s 94(1)(a) of the Act, having been diagnosed with complex epileptic seizures commencing at the age of 13 and confirmed diagnostically by appropriate investigation in 2006. Her symptomatology is not fully controlled and while she is thought to be compliant, there is some doubt in the Tribunal’s mind as she in her evidence stated that her seizures were more common when she did not take her medication.

22. The Tribunal agrees with the JCA that based on Table 15 of the Impairment Tables Ms de Jong attracts an impairment rating of 10 points. At the time of cancellation of her DSP, Ms de Jong’s claimed anxiety and depression had not been diagnosed by a clinical psychologist or psychiatrist and therefore could not attract an impairment rating. 

23. As a result, Ms de Jong did not satisfy s 94(1)(b) of the Act and her DSP was correctly cancelled on 3 July 2015.

24. The diagnosis of a generalised anxiety disorder has now been made by a psychiatrist. Despite recommendations with respect to treatment, this has been restricted to counselling by a social worker and Ms de Jong has declined to take the recommended anti-depressant medication.  While her epilepsy has been considered to be permanent and fully treated and stabilised, there is now the consideration of further treatment in the form of cerebral electrode insertion to control Ms de Jong’s epilepsy. From a strictly medical viewpoint, she may not be considered as fully treated and stabilised. 

25. The Tribunal affirms the decision under review. 

26.     I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the written reasons herein of Miss E A Shanahan, Member.

[sgd]............................................

Associate

Dated   19 July 2016

Date of hearing	20 May 2016
Applicant	In person
Advocate for the Respondent	Cameron Munro
Solicitors for the Respondent	Department of Human Services