Despot and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1874
•18 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1874
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/259
GENERAL ADMINISTRATIVE DIVISION ) Re NADA DESPOT Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr John Campbell, Member and Rear Admiral Tony Horton, Member. Date 18 October 2007
PlaceSydney
Decision The decision under review is set aside. Mrs Nada Despot is eligible for the disability support pension, the date of effect being 4 March 2005. ..............................................
Members
Dr John Campbell
CATCHWORDS
SOCIAL SECURITY – disability support pension – depression and post traumatic stress disorder – physical, intellectual or psychiatric impairment – diagnosed condition – impairment rating – decision under review is set aside.
LEGISLATION
Social Security Act 1991- Sections 94, Schedule 1B, Subsections 94(1)(a) 94(1)(b),94(1)(c),94(2),94(5),94(5)(a).
Social Security (Administration) Act 1999 – Section 15(4A)
CASE LAW
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13
Scott v Secretary, Department of Social Security (1999) 57 ALD 627
Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA 1076
Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
REASONS FOR DECISION
18 October 2007 Dr John Campbell, Member & Rear Admiral Tony Horton, Member
1. Mrs Despot was born in Croatia in 1956. Mrs Despot arrived in Australia with her daughter and son on special humanitarian visas in August 2003. Her husband was killed during the Civil War in 1992; his mother committed suicide in late 2003 or early 2004. In 1995 Mrs Despot was able to move to Serbia, where she lived and worked for eight years prior to moving to Australia.
2. Mrs Despot was granted a Newstart Allowance from 28 August 2003. On 4 March 2005, she lodged a claim for sickness allowance or disability support pension (“DSP”), claiming depression and post traumatic stress disorder. This claim was supported by two treating doctors’ reports: Dr P Tomasevic, General Practitioner, dated 18 May 2005, which diagnosed Mrs Despot with two conditions and by Dr M Sokolovic, Consultant Psychiatrist, dated 21 February 2005, wherein he noted he had been treating Mrs Despot since May 2004.
3. Following a Work Capacity/Participation Assessment Report by a Centrelink psychologist (Ms R Sarkis), the claim (for DSP) was refused on the grounds that the psychiatric condition was temporary. On 25 October 2005, this decision was affirmed. On 1 December 2005, an Authorised Review Officer re-affirmed the decision.
4. On 13 February 2006, the Social Security Appeals Tribunal (“SSAT”) found Mrs Despot’s psychiatric condition to be permanent, but only warranted an impairment rating of 10 points, insufficient, under subsection 94(1)(b) of the Social Security Act 1991(“the Act”), to enable Mrs Despot to be granted the DSP.
ISSUES
5. Appearing for Mrs Despot, Mr Colborne of counsel, as briefed by Mr Hynes of Legal Aid, submitted that the facts supported the contention that Mrs Despot had a permanent psychiatric condition and met the criteria in subsection 94 (1)(b) of the Act.
6. It was further submitted, in the Statement of Facts and Contentions that the Administrative Appeals Tribunal (“The Tribunal”) should consider whether an earlier claim by Mrs Despot for Newstart Allowance (4 September 2003), or a subsequent review form (15 December 2004) should be treated as a claim for DSP, pursuant to section 15(4A) of the Social Security (Administration) Act 1999.
7. Mr Bullock, appearing for the Secretary, Department of Employment and Workplace Relations, contended that Mrs Despot did not have a “continuing inability to work” pursuant to section 94(1)(c) of the Act and, even should the Tribunal determine that Mrs Despot’s psychiatric condition was permanent, and the impairment rating is 20 points, she could not meet the conditions of section 94 of the Act. As to the date of effect, should the Tribunal determine eligibility for DSP that date must then be the date of claiming that benefit.
8. With this background, we consider the relevant issues in this matter to be:
(a) At the date of claim (4 March 2005), or in the 13 week period thereafter (pursuant to section 94(1)(a) of the Act), did Mrs Despot have a permanent psychiatric condition?
(b) If so, what is the appropriate diagnosis of that condition?
(c) If a permanent psychiatric condition is accepted, is the impairment rating 20 points or greater under the impairment tables set out in schedule 1B of the Act?
(d) If so, does Mrs Despot have a continuing inability to work?
(e) If Mrs Despot is eligible for the DSP, what is the correct date for the commencement of payment, noting the deeming provisions in section 15(4A) of the Social Security (Administration) Act 1999.
DECISION
9. For the reasons outlined later in this decision we conclude that:
(a) Based primarily on the evidence of Mrs Despot, Dr Sokolovic and Dr Dinnen, Mrs Despot had a permanent psychiatric condition at the relevant date (4 March 2005);
(b)That disability met the criteria for eligibility for DSP; and
(c) The date of effect of payment of the benefit is 4 March 2005, which is the date the claim for DSP was lodged.
LEGISLATION
10. Section 94 of the Social Security Act 1991 provides;
94 Qualification for disability support pension
94(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f)the person is not qualified for disability support pension under section 94A.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
94(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
94(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support that:
(i) is designed to assist the person to prepare for, find or maintain work; and
(ii) is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
94(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre‑vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work‑related training (including on‑the‑job training).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
Person not qualified in certain circumstances
94(6)A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.
Note: a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3)).
11.Section 15(4A) of the Social Security (Administration) Act 1999 provides:
(4A) for the purposes of the social security law, if:
(a)a person makes a claim for an income support payment (the initial claim); and
(b)on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment); and
(c)the person subsequently makes a claim for the other income support payment (the later claim); and
(d)the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made the later claim on the day on which the initial claim was made.
MRS DESPOT’S EVIDENCE
12. Mrs Despot is 49 years of age and of Serbian descent. Mrs Despot completed her schooling at age 15. After competing her schooling, she worked as a packer in a fish factory for 17 years. In 1979, Mrs Despot married a Serbian-born industrial painter, Jovo Despot. They had two children, a daughter born in 1979 and a son born in 1985.
13. In 1992, Mrs Despot’s husband was killed during the Civil War. Four years later, Mrs Despot was able to move to Serbia, where she received some humanitarian assistance from the Red Cross. She initially worked “mainly on a farm” being paid “mainly in food”. Her evidence was that she later worked as a cleaner, including street cleaning. Mrs Despot described her health as poor after the death of her husband; she required medication in order to sleep and to calm down. In spite of her ill-health, she had to work to support herself and her two children. She ceased work about seven months before moving to Australia (that is in early 2003) due to her ill health. Some six months after arriving in Australia, her mother-in-law committed suicide.
14. Mrs Despot has not worked in Australia, and she considers herself “not fit” to do so, because of depression, nerves, sweating and fear. She has difficulty getting to sleep. She has bad dreams about the past, maybe four or five times a month, the dreams often encompassing vision of her mother and father dying. Mrs Despot stated she has been seeing Dr M Sokolovic, Consultant Psychiatrist, about once a month. Her prescribed medications include Diazepam for her psychiatric condition and Lupitor for her cholesterol.
15. Mrs Despot described an inability to mix with other people, other than occasionally seeing a Serbian neighbour. She goes out alone, only to shop or to see her doctor. She easily gets lost. She undertook English classes (suggesting about 300 hours of a 510 hour course) when she arrived in Australia, but sees her lack of English as a significant social and work handicap. She stated that she was to take an English test the next day following the hearing. We have difficulty in understanding why this was to occur, as we understand her English classes had concluded some two years previously.
16. In response to Mr Bullock’s observation that if she could work in Serbia why not in Australia, she expressed that her depressive state and lack of English were the reasons. When asked by the Tribunal whether she would like to work, Mrs Despot merely reiterated her view that she was not fit to do so, and, in any event, would need to become more proficient in English.
PSYCHIATRIC EVIDENCE AND CONSIDERATIONS
17. Both parties accept that Mrs Despot has psychiatric conditions of depression and post traumatic stress disorder (“PTSD”). The thrust of the difference between Mr Colborne and Mr Bullock is whether the treatment afforded, and being given to Mrs Despot, in respect of such conditions, was such as to lead to a conclusion that her condition was permanent, and even if so, did she have a continuing inability to work.
18. Mr Colborne relied on the opinions of Mrs Despot’s treating psychiatrist, Dr Sokolovic, and Dr Dinnen, Consultant Psychiatrist, the latter being called to give oral evidence. Mr Colborne further relied on a report of 2 February 2005 by a case manager on Personal Support Program (PSP) at Break Thru Employment Solutions, Ms Tilbury, who supported the conditions of depression and PTSD, and who considered it unlikely that Mrs Despot could work “within the next two years, if at all”.
19. The Respondent relied on an undated – but clearly prepared in response to the DSP claim - Work Capacity/Participation Assessment Report completed by Ms Sarkis, a psychologist employed by Centrelink, in which she concurred with the conditions of depression and PTSD, but considered they could not be classified as permanent “because they were not optimally treated and stabilised”. Mr Bullock further relied on a Psychological Assessment report completed on 7 August 2006 by Ms Wong, Clinical Psychologist, and on the oral evidence given by Ms Wong. Whilst Ms Wong agreed with the conditions of depression (chronic) and PTSD, she considered that such conditions had not been optimally treated or stabilised with evidence-based psychological treatment. She opined that further psychological treatment, particularly in respect of cognitive behaviour therapy, was appropriate in order to establish whether the conditions were permanent and whether Mrs Despot could work at the level required by the Act.
20. We consider it appropriate to draw at some length on the psychiatric and psychological opinions placed before us. Before doing so, we note that the report from Ms Tilbury dated 2 February 2005, referred to above; supports the application for DSP by Mrs Despot. Ms Tilbury referred to the impact, as of the loss of her husband as described by Mrs Despot, and the difficulties of settling into a new country, where she encountered difficulties in learning English because of tension headaches and an inability to concentrate. Ms Tilbury concludes thus:
From my perspective, it seems very unlikely that Nada will be able to work within the next two years, if at all. She needs to continue with her psychiatrists to try and resolve some war related issues and the depression that is linked to this. Until this happens, she is likely to continue to suffer headaches, nightmares, anxiety and depression
21. By inference, in our view, Ms Tilbury considers the psychiatric conditions, at the time of her comments, as being of a permanent nature, having been present for some years.
22. We also note the detailed and strong views of Dr Tomasevic in his treating doctor’s report dated 18 January 2005, wherein he states in respect of his diagnosis of depression:
the depression symptoms are a direct consequence of the patient’s experience in the tragic War in the former Yugoslavia. Husband killed ...in 1992. Receiving psychiatric therapy by Dr Sokolovic. Dysphoric, difficulty concentrating, headaches, insomnia, withdrawn, poor sense of self, bleak view of the future. These symptoms are ongoing, chronic and are severely debilitating. …Reduced cognitive function. Reduced ability to interact with and communicate with other people.
23. We further note, in respect of his diagnosis of PTSD that he refers to “flashbacks to the events in the war, nightmares, headaches, irritability, and insomnia, dysphoric and withdrawn.”
24. Dr Sokolovic has provided two reports, the first of 21 February 2005, effectively being at the time of the DSP claim, the second being dated 21 January 2007. His first report notes he first saw Mrs Despot on 7 May 2004, and “then as need arose”. At the outset, he notes he has no evidence of members of Mrs Despot’s family suffering hereditary somatic or mental illness, but he acknowledges the stresses imposed on her family in the Croatian/Serbian environment of the 1990s. His initial report refers to Mrs Despot being irritable, with trouble sleeping, and nightmares and flashbacks reflecting wartime experiences and her experience as a refugee. Such difficulties disturb her concentration, including the ability to learn English, and her cognitive functions.
25. Dr Sokolovic concludes that Mrs Despot has aesthetic personal traits and adjustment problems, and describes the focus of treatment as being on supportive and cognitive therapy, and the emphasis on Mrs Despot to become more active socially and physically, as a means of therapy. He noted that Mrs Despot had complained that medication, as prescribed, did not have the effect she expected, and that “more frequent appointments would review treatment, but she herself had to be, in effect, more pro-active.”
26. In his more recent report, Dr Sokolovic observes that follow-up appointments were not frequent, in part because of his unavailability, but also because “Nada did not appear to be greatly motivated for involvement in treatment”. The evidence of Mrs Despot was that she sees Dr Sokolovic once a month, and this is reasonably substantiated in an appointment card produced for Dr Dinnen.
27. Dr Sokolovic elaborates on the personal characteristics of Mrs Despot, as he finds them, (and as similarly described by Dr Dinnen in his earlier report of 29 August 2006) thus:
…her difficulties in appropriately grasping her circumstances and her needs (as described in Dr Dinnen’s report) demonstrate her ignorant attitudes and obvious lack of flexibility.
…involvement with the author has been simplistic from the beginning, with cooperation taking place only on the basest leveling the process of exploring her personal and medical history and even more so in the implementation of treatment with hopes of rehabilitation. This statement …should be taken as psychiatric description of her personal characteristics and her psycho-social capacity to be involved in the process of her treatment which it should be added she initially requested on her own behalf.
Nada never behaved rationally regarding the implementation of her own goals… …she never even attempted to co-operatively present her symptoms and social problems, only demanding that a pension be granted. …Nada never demonstrated the level of appropriate co-operation that was necessary to adjust efficiently to the Australian way of life.
…Nada’s behaviour was seen as a consequence of her poor grasp of the general principle of causality and the importance of personal intention and action regarding the achievement of a specific goal.
Despite attempts at supportive and cognitive therapy being applied in her mother tongue and tailored to her level of social functioning, they proved mostly futile. …she was largely unmotivated to take part in arranged treatment after she did not receive the DSP.
As stated there are many problems in applying an effective regimen of treatment with Nada, no doubt due to her low capacity to understand her social circumstances and the importance of appropriate co-operation in the process of treatment
28. Dr Sokolovic concludes his report by observing that Mrs Despot is in dire need of psychiatric treatment, as a requisite of a functional existence, regardless of her poor co-operation. Nonetheless, he has low optimism that a substantial improvement in psycho-social performance would occur.
29. Dr Dinnen saw Mrs Despot on 17 August 2006. He drew similar conclusions to Dr Sokolovic. He notes in his report that Mrs Despot appeared disinterested and bemused at the interview. When interviewed alone for a short period, she became “restive and made no attempt to co-operate”. An interview in the company of her daughter was “brief and abortive”. When interviewed in the presence of an interpreter, Mrs Despot showed “passive aggressive resistance to enquiry”, although at times she became more animated when speaking of matters unrelated to traumatic experiences.
30. Mrs Despot spoke of living in fear following her experiences, of sorrow, depression and a lack of sleep. Dr Dinnen records that Mrs Despot initially stated she had been unable to work since living in Croatia, but subsequently agreed that she had later carried out farm work in Serbia, something she could no longer undertake because she had no confidence. She stated her depression prevented her from attending English classes.
31. Dr Dinnen notes, seemingly with some approval, the comments earlier referred to by Dr Tomasevic in respect of the condition of Mrs Despot.
32. In his report, and again in oral evidence, Dr Dinnen expressed concern that, in the light of reports by Dr Sokolovic and a competent general practitioner, “who both assessed the condition of Mrs Despot as being intractable and untreatable” (Dr Dinnen’s words and assessment), Mrs Despot was subsequently referred to a psychologist (Ms Sarkis) for what he saw as a superficial evaluation as to her ability to work. He concluded his report with the statement that Mrs Despot is profoundly disturbed and has a serious psychiatric illness, that the diagnosed medical conditions are self- evident, and that her poor ability to function falls within the guidelines for impairment assessment which call for a function-based, rather than diagnosis-based, consideration.
33. In oral evidence, Dr Dinnen drew on the fact that Mrs Despot had a longstanding medical problem. Her psychiatric condition was illustrated by the difficulty in getting her history, and in her attitude; he seemingly placed much weight on her situation pre-Australia. From the information she provided, he noted that she had seen Dr Sokolovic 17 times. He considered the treatment was extensive and competent.
34. In response to Mr Bullock, Dr Dinnen accepted that Mrs Despot may have made some appointments (with Dr Sokolovic) which she may have not kept. Dr Dinnen maintained his opinion that a psychiatric rating of 20 points was justified, that whilst all criteria were not necessarily present, the clinical evidence was strong. In respect of the report by Ms Wong (which was not available to Dr Dinnen until after he had completed his assessment and report), Dr Dinnen said that he did not believe her use of standardised tests to provide an evaluation of psychological status, nor her opinion following examination, provided a basis upon which the adequacy of psychiatric treatment by the doctor with responsibility for patient care could be based. In response to the Tribunal, he re-affirmed his opinion that the psychiatric conditions of Mrs Despot were permanent, and that further cognitive therapy would lead to little change.
PSYCHOLOGICAL EVIDENCE AND CONSIDERATIONS
35. In the section of her Work Capacity/ Participation Assessment Report entitled “Barriers to economic and social participation”, Ms Sarkis assesses significantly reduced capacity to work, and to concentrate, a disconnection from regular community life and a disrupted family network, and limited, or perhaps no, motivation or ability to communicate in English. She generally considers intervention appropriate in a short timescale, and that the PSP program (under Break Thru Employment Solutions) should be continued. She suggests voluntary work might be considered after 12 months, but even with educational or vocational training, does not envisage a capacity to work in excess of 14 hours per week for more than 24 months.
36. Ms Sarkis views Mrs Despot’s condition as temporary. In doing so, she sees “serious symptomatology with significant interference with ability to work”, with a need for psychiatric treatment. Her conclusion is that the conditions of depression and PTSD have not been optimally treated or stabilised, hence a permanent impairment rating cannot be assigned. We note that her report does not provide the basis upon which this assessment of psychiatric treatment has been made.
37. Ms Wong provided a report on 28 August 2006 following an assessment of the circumstances of Mrs Despot on 7 August 2006. The hearing in this matter was adjourned in order that Ms Wong could give oral evidence, which she did on 14 August 2007. Ms Wong accepted the diagnosed conditions of depression and PTSD. As briefly mentioned when considering the report of Dr Dinnen, her report notes that Mrs Despot generally referred to the symptoms and circumstances as addressed in other reports, such issues as poor concentration, nightmares, anxiety, experiences during the war, fear, lack of security, avoiding interaction with others, lack of English. As referred to earlier, Ms Wong concluded that these psychiatric conditions had not been optimally treated by in particular cognitive behaviour therapy. In assisting her to reach this conclusion, Ms Wong referred to Mrs Despot having seen Dr Sokolovic regularly, the most recent appointment having been four days previously, and stated:
She said Dr Sokolovic prescribes medication and provides some counselling. However after much probing it appears that Dr Sokolovic does not provide sufficient or comprehensive counseling for the purposes of treating chronic anxiety and depression resulting from traumatic stress. It does not appear that Mrs Despot has received cognitive behaviour therapy or other evidence based psychological treatment for PTSD.
Mrs Despot said that she feels the treatment is not sufficient or effective in helping her to overcome her problems. She said that despite the medication, the psychiatric treatment has had little impact on her symptoms. She said that Dr Sokolovic told her that she will need long term drug and psychiatric treatment.
Mrs Despot said that prior to her war experiences, she had never experienced depression, anxiety or other psychological problems.
38. A later comment by Ms Wong is to the effect that Mrs Despot informed her:
she expects to have the symptoms for the rest of her life. She said that she felt the medication was not very effective and she has not sought alternative treatment. Ms Despot feels that she will have symptoms for the rest of her life and therefore will be unfit to work for the rest of her life.
39. The Psychometric Assessment indicated Mrs Despot level of anxiety to be very high “suggesting difficulties with physiological and emotional distress, moderate levels of obsessive-compulsive symptoms, high depression levels and difficulties with somatisation, hostility and phobic anxiety/avoidance.” The Beck Depression Inventory tests confirmed severe depression and severe anxiety. We note the observations that at interview, accompanied by her daughter, Mrs Despot interacted normally and whilst suggesting a depressive state, did not appear significantly anxious nor display undue stress. Ms Wong thought she appeared largely cognitively intact, but with a reduced concentration suggestive of depressive disorder.
40. Concluding her report, Ms Wong reiterated her view that psychological treatment to date has not been adequate and that cognitive behaviour therapy, considered the evidence-based treatment of choice for such conditions, was warranted, this to be done in conjunction with antidepressant medication. Such treatment would be undertaken with regular sessions with a clinical psychologist, the aim being to change negative and anxiety provoking thought patterns and to implement effective behavioural strategies. We think it important to remember at this point that in his initial report of 21 February 2005, Dr Sokolovic stated that the “focus of treatment was on supportive and cognitive therapy”.
41. Ms Wong is employed by Health Services Australia as a clinical psychologist, both in assessment and treating of patients. She is also in private practice, and has experience in the assessment and treating of PTSD. In oral evidence, she indicated that at interview, Mrs Despot had been “flat” and resistant to assessment. As she described it, her impression of Mrs Despot was somewhat similar to that recorded by Dr Sokolovic in his later report of 31 January 2007, wherein he referred to “ignorant attitudes and lack of flexibility”. Nonetheless, she believed the attitude shown to her by Mrs Despot was somewhat positive. She then spoke of the value, and widespread use in the psychological field of the Beck Depression/Anxiety Inventory tests as a means of identifying depression and anxiety levels, which she had already observed as being severe.
42. Ms Wong confirmed she had read both reports by Dr Sokolovic, but remained of the strong view that psychiatric treatment to date had been inadequate. Her conclusion was also based on the responses given to her by Mrs Despot. In response to the Tribunal, she suggested that the negative attitude of Mrs Despot was entrenched prior to arriving in Australia, but it thereafter became more pronounced.
CONSIDERATION AND FINDINGS
43. For Mrs Despot, Mr Colborne submitted that the agreed conditions of depression and PTSD were permanent, of an impairment rating of 20 points, and that she had a continuing inability to work. He opined that the view of the treating psychiatrist, Dr Sokolovic, particularly given the frequency of appointments, must prevail in this matter. That Dr Dinnen supported the opinions of Dr Sokolovic was further evidence of the appropriateness of the psychiatric assessment. He submitted that Ms Wong had no real option, in the circumstances, but to accept the views of Dr Sokolovic. He further opined that the views of Ms Sarkis must be treated with reservations, given the purpose of her assessment and her conclusion - the basis of which were not stated other than the observation that psychiatric care should continue - that the conditions were not permanent.
44. Neither the Applicant’s Statement of Facts and Contentions nor the final submission by Mr Colborne made reference to case law in respect of whether Mrs Despot met the criteria in section 94(1) of the Act. He made reference to case law in the matter of whether the date of the earlier claim for Newstart Allowance should become the date of commencement of the DSP, should the Tribunal find in favour of that benefit, and Mr Colborne left this consideration to the Tribunal. We will discuss this issue at the appropriate point in this decision.
45. Not surprisingly, Mr Bullock took the view that the observations and conclusions of Ms Sarkis were indeed relevant, and the conclusion by Ms Wong that psychiatric treatment to date had been inadequate, were substantive and reflective of her experience in the field and therefore the conditions could not be assessed as permanent. In particular, he supported the argument that further cognitive behaviour therapy was warranted.
46. In its Statement of Facts and Contentions, the Respondent argued that the opinions of Dr Dinnen in his report were at odds with the assessment of Dr Sokolovic, the treating psychiatrist. No further submission in respect of this view was forthcoming in final submissions.
47. The evidence that Mrs Despot had a significant psychiatric condition at the time she claimed DSP is quite substantial in our view. Whilst there is no medical evidence before us as to the circumstances in her life prior to migrating to Australia as a refugee, there is no dispute that she suffered from the effects of the Civil War in Croatia and the loss of her husband. Nor is there any dispute, other than in the degree perhaps that she suffers from a variety of psychiatric symptoms. We note she arrived in Australia in August 2003, was granted Newstart Allowance some days later, and became a patient of Dr Tomasevic in January 2004 and of Dr Sokolovic in May 2004. Thus, in relatively short order she was assessed, by Dr Tomasevic, as having a psychiatric condition.
48. Whether that condition is permanent, pursuant to the instructions in Schedule 1B of the Act, and, if so, at what impairment rating, must be established. The Respondent’s Statement of Facts and Contentions records acceptance of the former in respect of PTSD; Ms Sarkis and Ms Wong do not, on the basis that the condition requires further treatment and, as noted particularly by Ms Sarkis, is not stabilised.
49. We have difficulties with the contradictory opinions. Our concern stems from the suggestion that stabilisation is a finite situation. Ms Sarkis and Ms Wong argue that with further treatment, the circumstances of Mrs Despot will improve and “stabilise”. It seems to us that on the basis of the evidence before us from Drs Sokolovic and Dinnen – and we suggest Ms Sarkis and Ms Wong – further psychiatric treatment, be it cognitive behavioural therapy or otherwise, are likely to be an ongoing requirement to the point, one could argue, that stabilisation is never reached. On the evidence of Mrs Despot, as given variously to psychiatrists, and the psychologist and Ms Tilbury of Break Thru Employment Solutions, particularly in respect of her negative attitude, and the events that have contributed to that attitude, we consider the condition is permanent.
50. As to an impairment rating, we note that Dr Dinnen considers 30 points under table 6 of Schedule 1B of the Act could be argued, but settles for 20 points, which is sufficient to meet the criteria in section 94(1)b) of the Act. In his second report dated (31 January 2007), Dr Sokolovic endorses the conclusions of Dr Dinnen.
51. Ms Sarkis makes no recommendation as she does not consider the conditions permanent, but the tenor of her report is such as to support such an assessment of functional limitations. We consider 20 points under Table 6 of Schedule 1B of the Act to be appropriate, and hence Mrs Despot meets the criteria in subsection 94(1)(b) of the Act.
52. The Respondent’s Statement of Facts and Contentions dealt at some length with case law in respect of the interpretation of “continuing inability to work” as defined in subsections 94(1)(c), 94(2) and 94(5) of the Act, and contends that Mrs Despot does not meet the criteria. Reference is made to the decision in Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA 1076, wherein that Tribunal preferred the evidence of the work capacity assessor to that of a medical practitioner. In the matter before us, we consider appropriate regard must be had to the evidence of the treating psychiatrist, but in any event, the Work Capacity/Participation Assessment Report by Ms Sarkis of Centrelink clearly states that in her opinion the capacity of Mrs Despot to work, with or without intervention, is limited to 8 – 14 hours per week for more than two years. Subsection 94(5)(a) of the Act prescribes that “work” is to “for at least 30 hours per week…”. Ms Tilbury of Break Thru Employment Solution considers it “very unlikely that Nada will be able to work within the next two years, if at all”.
53. We accept the position of the Respondent that “work” does not mean that for which a person is trained or skilled, but rather the capacity to undertake any work. Both Ms Sarkis and Ms Tilbury have given their opinions on that understanding. On the basis of these clear opinions, and the evidence before us, we find that Mrs Despot had, at the date of claim, a continuing inability to work, a situation that pertains to the present. Accordingly, she meets all the criteria in section 94 of the Act and is eligible for the DPS.
54. It remains for us to consider whether the commencement date for the DSP should be 4 March 2005 or deemed to commence at an earlier date under the provisions of section 15(4A) of the Social Security (Administration) Act 1999. To back date the claim for DSP to the date when the initial claim was made for Newstart allowance (4 September 2003) would, in our view, require that the conditions relevant to the criteria in section 94 of the Act be present at that time. Whilst it is accepted that Mrs Despot had psychological problems on arrival in Australia resulting from the circumstances in her life in Croatia and Serbia, the extent and severity of those problems cannot be determined. That is also the position put to us by the Respondent in the Secretary’s Statement of Facts and Contentions.
55. Further, it was some months later that Mrs Despot first saw Dr Tomasevic (January 2004) and some months later again before she was referred to Dr Sokolovic (March 2004). In the circumstances, we do not believe a deemed claim for DSP to be granted from the date of lodgment of the claim for Newstart Allowance can be upheld, and decide accordingly.
56. The Applicant (in the Statement of Facts and Contentions) submitted that in accordance with the Full Federal Court decision in Secretary, Department of SocialSecurity vCooper (1990) 26 FCR 13, followed by the Federal Court in Scott v Secretary, Department of Social Security (1999) 57 ALD 62, the construction of section 15 of the Social Security (Administration) Act 1999 (as it now is) should be considered in a generous fashion rather than being a rigid definition of a claim. Whilst we generally agree with those views, the decision in this matter must be based on the legislation before us. The Applicant further submitted that the Tribunal had the power to consider that a benefit review form could constitute an “initial claim”.
57. We do not subscribe to this view. Section 15 of the Social Security (Administration) Act 1999 refers only to an “initial claim”. In this instance, the only evidence before us in respect of any earlier documentation – prior to the submission of the DSP claim on 4 March 2005 – is a document entitled Review – Newstart/Youth Allowance. We do not think it meets the definition of “initial claim”. Even if we are wrong, the fact that we have no medical records or opinions prior to the reports by Dr Tomasevic and Dr Sokolovic as to Mrs Despot’s psychiatric or psychological condition precludes such an option.
58. For the reasons given, our decision is that Mrs Nada Despot is eligible for the DSP, the date of effect being 4 March 2005.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ..............................................
AssociateFelicia Daniele
Date/s of Hearing: 14 May and 14 August 2007
Date of Decision: 18 October 2007
Counsel for the Applicant: Mr C Colborne
Solicitor for the Applicant: Mr C Hynes, Legal Aid
Solicitor for the Respondent: Mr K Bullock, Centrelink legal Services
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