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

[2016] AATA 140

Fletcher and Secretary, Department of Social Services (Social services second review) [2016] AATA 140 (9 March 2016)

Division	GENERAL DIVISION
File Number	2015/1235
Re	Toni-Marree Fletcher
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	9 March 2016
Place	Brisbane

The Tribunal affirms the decision under review.

…………………[Sgd]……………………………

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether conditions are fully diagnosed, treated and stabilised – value of medical evidence – whether continuing inability to work.

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94

Social Security (Administration) Act 1999 (Cth) ss 41, 42

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

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Senior Member A C Cotter

9 March 2016

INTRODUCTION

1. In October 2014, Miss Toni-Marree Fletcher lodged a claim for Disability Support Pension (“DSP”). Her claim form listed her disabilities as Depression, Post-Thrombotic Syndrome and Post-Traumatic Stress Disorder (“PTSD”).[1]

   [1] Exhibit 1, T Documents, T 21, page 92, Claim for DSP dated 23 October 2014.

2. A supporting medical report completed by Miss Fletcher’s general practitioner, Dr James Young, confirmed the conditions having a significant impact on her ability to function as “PTSD, Borderline Personality disorder” and “Post-thrombotic syndrome [right] leg”.[2]

   [2] Exhibit 1, T Documents, T 20, pages 69 and 72, medical report of Dr James Young dated 20 October 2014.

3. The following month, Miss Fletcher attended a face to face assessment with a Job Capacity Assessor (“JCA”), who recommended that her impairments be assigned 15 impairment points (being five points in respect of the psychiatric conditions and 10 points in respect of the Post-Thrombotic Syndrome affecting her right leg). The assessor also formed the view that Miss Fletcher had a baseline work capacity of eight to 14 hours per week, and 15 to 22 hours per week, with intervention, within two years.[3]

   [3] Exhibit 1, T Documents, T 22, pages 108-113, JCA report dated 13 November 2014.

4. In November 2014, Miss Fletcher’s claim was rejected on the ground that she did not have an impairment rating of 20 points or more.[4]

   [4] Exhibit 1, T Documents, T 23, pages 114-115, Centrelink letter to Miss Fletcher dated 13 November 2014.

5. The decision to reject the claim was affirmed by an Authorised Review Officer (“ARO”),[5] and the Social Security Appeals Tribunal (“SSAT”).[6] Dissatisfied with the result, Miss Fletcher now seeks a review of the SSAT’s decision by this Tribunal.

   [5] Exhibit 1, T Documents, T 24, pages 116-119, ARO’s letter to Miss Fletcher dated 15 December 2014.

   [6] Exhibit 1, T Documents, T 2, pages 3-8, SSAT’s decision and reasons for decision dated 18 February 2015.

6. Before I address the issues raised by Miss Fletcher’s application, it is timely to highlight the key legislative provisions.

   THE LEGISLATIVE FRAMEWORK

7. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has: a physical, intellectual or psychiatric impairment; an impairment of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

8. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 27 October 2014). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[7] Therefore, the relevant period for considering whether Miss Fletcher qualified for DSP is between 27 October 2014 and 26 January 2015.

   [7] See ss 41 and 42, and cll 3 and s 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

9. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), a legislative instrument made under the Act.[8] The Tables are function based, rather than diagnostic based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[9] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[10]

   [8] See s 26(1) Social Security Act 1991 (Cth).

   [9] See s 5(2) Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘Determination’).

   [10] See s 6(1) Determination.

10. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[11] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[12]

    [11] See s 6(3) Determination.

    [12] See s 6(4) Determination.

11. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[13]

    [13] See s 11(1) Determination.

12. As regards the requirement that an applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:

    (a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B)); and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.

13. Under s 94(3B) of the Act, a person’s impairment is considered “severe” if their impairment is of 20 points or more under the Tables, of which 20 points or more are under a single Table.

    ISSUES FOR THE TRIBUNAL

14. It is accepted that, at the relevant time, Miss Fletcher had physical and psychiatric impairments arising from the conditions already mentioned.[14] Consequently, the first of the requirements, in s 94(1)(a), is satisfied.

    [14] See Exhibit, 2, Secretary’s Statement of Facts and Contentions dated 1 February 2016, paragraph [23].

15. Therefore, the remaining issues for me to consider are:

    (a)whether, at the relevant time, Miss Fletcher’s impairments attracted 20 points or more under the Impairment Tables; and

    (b)if so, whether Miss Fletcher had a continuing inability to work.

16. I address those issues below.

    CONSIDERATION

    Did Miss Fletcher’s impairments attract 20 points or more?

17. I deal with this question by reference to the conditions described above.

    Depression, PTSD and Borderline Personality Disorder

18. It is not in dispute that these conditions were fully diagnosed, treated and stabilised at the relevant time,[15] such that impairment points could be assigned under the relevant table, Table 5 (Mental Health Function). The conditions are long standing, dating back to at least 2006, when Miss Fletcher’s psychologist, Mr Matthew Wagner, first commenced providing therapy.[16] In addition, Miss Fletcher has also been under the care of psychiatrists, including Dr Mark Scurrah,[17] and Dr Stephen Huntsman,[18] who have trialled different medications as well as recommended periods of hospitalisation at Palm Beach-Currumbin Clinic.

    [15] Ibid, paragraph [32].

    [16] See Exhibit 2(c), Attachment C to Secretary’s Statement of Facts and Contentions dated 1 February 2016: letter from Mr Matthew Wagner dated 23 June 2015.

    [17] Exhibit 1, T Documents, T 4, page 42 and T 8, page 50, letters from Dr Mark Scurrah dated 2 January 2008 and 26 May 2008.

    [18] Exhibit 1, T Documents, T 16, page 62, letter from Dr Stephen Huntsman dated 14 March 2012.

19. As I mentioned earlier, following an assessment in November 2014, the JCA recommended that five impairment points be assigned under Table 5. That view was based on Miss Fletcher’s self-report, that she lived independently, but “sometimes” neglected her self-care and nutrition; that she was very anxious about travel to unfamiliar environments; that she had interpersonal difficulties “at times” with “occasional” arguments; that although she had poor concentration, she was able to concentrate on craft work for up to 45 minutes; and that she had “occasional” mood difficulties. Miss Fletcher also told the JCA that she was able to drive to and walk around a shopping centre for short periods.[19]

    [19] Exhibit 1, T Documents, T 22, page 110, JCA report dated 13 November 2014.

20. The ARO also spoke to Miss Fletcher in December 2014 and noted that she told her that she “will go out and do what she has too [sic]”. Miss Fletcher said that while she could live independently and could prepare meals, she could not stand too long; her ex-partner did “stuff” around the house.[20]

    [20] Exhibit 1, T Documents, T 25, page 120, ARO notes dated 15 December 2014.

21. At the hearing before me, Miss Fletcher contended that a number of the statements attributed to her by the JCA and ARO about her ability to function were incomplete and therefore inaccurate. In particular, she said that the JCA did not report that her ex-partner did a lot for her and received a Carer’s Allowance. While she acknowledged that she was able to concentrate on craft work for up to 45 minutes, she said that was with taking breaks. Miss Fletcher said that if she went out, she would have to have someone with her as otherwise she would suffer panic attacks; she could not use public transport, as she would suffer a “massive panic attack”.

22. Those comments are similar to what Miss Fletcher told the SSAT hearing in February 2015. She said that she lived with her ex-partner who did a lot of the cooking and cleaning because she was unable to. As he was out from about 7:00 am to 5:00 pm daily, she would be alone at home. She said that she could not go out on her own. She would drive her car to her brother’s house and then he would go with her to appointments or wherever she needed to go. She confirmed that she did some cooking and cared for her cat. She did some knitting but when she was depressed, she would stay in bed. That happened three or four days a week. She said that she usually showered about once a week due to her depression.[21] 

    [21] Exhibit 1, T Documents, T 2, page 6, SSAT’s decision and reasons for decision dated 18 February 2015, paragraph [17].

23. In January 2015, Mr Wagner provided a report saying that Miss Fletcher had returned to treatment after “intermittent contact” in 2014. She reported to him that her anxiety had been steadily rising over the preceding three months and that she was experiencing severe agoraphobia with panic attacks and would not leave her home without company.[22]   

    [22] Exhibit 1, T Documents, T 26, page 121, report of Mr Matthew Wagner dated 3 January 2015.

24. In response to inquiries by the Secretary’s representatives, Mr Wagner provided two further reports. His report of 23 June 2015 expressed the opinion that it was highly unlikely that Miss Fletcher would work again due to her psychological issues. He noted that “at times” she had difficulty leaving her home due to crippling panic attacks.[23] 

    [23] Exhibit 2(c), Attachment C to Secretary’s Statement of Facts and Contentions dated 1 February 2016, report of Mr Matthew Wagner dated 23 June 2015.

25. Mr Wagner’s report of 10 August 2015 described Miss Fletcher’s symptoms then and during the relevant period as “severe and debilitating’. He noted that “concentration and task completion were reported to [be] extremely poor, with little ability to focus being present”. He said that her behaviour, planning and decision making were also poor. Recreational/social activities were reported to be minimal and travel was done in company. She told him that she had good support from her family and a few friends with whom she largely interacted online. Miss Fletcher told Mr Wagner that her ability to clean her house had deteriorated significantly. Suffering from agoraphobia, she found it difficult to leave her home without company and support from her family, even to do basic chores, such as shopping or attending appointments.[24] 

    [24] Exhibit 2(a), Attachment A to Secretary’s Statement of Facts and Contentions dated 1 February 2016, report of Mr Matthew Wagner dated 10 August 2015.

26. It is difficult to reconcile what Miss Fletcher is reported to have told the JCA and the ARO with what Mr Wagner recounted some nine months later. One possible explanation is that her condition deteriorated over that time. Mr Wagner’s report of January 2015 noted that, after intermittent contact in 2014, Miss Fletcher had returned to treatment. He remarked that her symptoms appeared in part related to the recent breakdown in her relationship and ongoing emotional abuse from her ex-partner. In his June 2015 report, he noted that “at times” Miss Fletcher had difficulties leaving her home. However, by the time of his August report he noted that she struggled to leave her home without company and support, even to do basic chores.

27. In those circumstances, and bearing in mind the relevant period for consideration, my inclination is to prefer the self-reporting of Miss Fletcher to the JCA and ARO at the time, supported by their written contemporaneous notes of those discussions.

28. Following receipt of advice from the Health Professional Advisory Unit,[25] the Secretary submitted that, Miss Fletcher’s psychiatric impairments attracted a maximum of 10 points under Table 5 (Mental Health Function).[26]

    [25] See Exhibit 2(b), Attachment B to the Secretary’s Statement of Facts and Contentions dated 1 February 2016, report of Health Professional Advisory Unit dated 21 September 2015.

    [26] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 1 February 2016, paragraph [36].

29. On the other hand, Miss Fletcher contended that she met most of the descriptors for severe functional impact (20 points). She told me that she needed help most of the time with self-care and independent living. She had no social/recreational activities or travel and her interpersonal relationships were “non-existent”. As to concentration and task completion, she said that she could concentrate for 45 minutes, with breaks, on craft work, but could do no more than that. She told me that she had started, but had yet to finish, a Certificate II in Business (by correspondence). Having regard to the report of Dr Young and Miss Fletcher’s self-reports to the JCA and ARO, I am satisfied that her psychiatric impairments would attract at least 10 points under Table 5. 

30. The question here is whether her psychiatric impairments were, at the relevant time, sufficiently severe to meet the descriptors for 20 points under the table. I do not think that they were. While her ex-partner lived with her and undertook various household duties, he was away for a large portion of each day. Miss Fletcher confirmed to the ARO that she could live independently, and told her that she could prepare meals. She told the JCA that she in fact lived independently but sometimes neglected self-care. She also told the JCA that she was able to drive to and walk around a shopping centre for short periods. As to social activities and interpersonal relations, Miss Fletcher reported that she had a small local support group;[27] she told Mr Wagner that she had good support from her family and a few friends, with whom she largely interacted online.[28] As regards concentration and task completion, it is clear from what she told the JCA that she was able to concentrate on tasks for more than 10 minutes, even with breaks. Having regard to those matters, I am not satisfied that, at the relevant time, Miss Fletcher’s psychiatric impairments met most of the descriptors for severe functional impairments (20 points) under Table 5.

    [27] Exhibit 1, T Documents, T 22, page 112, JCA report dated 13 November 2014.

    [28] Exhibit 2 (a), Attachment A to Secretary’s Statement of Facts and Contentions dated 1 February 2016, report of Mr Matthew Wagner dated 10 August 2015.

31. I therefore find that, at the relevant time, Miss Fletcher’s psychiatric impairments attracted 10 points (moderate impairment) under Table 5.

    Post-Thrombotic Syndrome – right leg

32. Again, there is no dispute that this condition was fully diagnosed, treated and stabilised at the relevant time.[29]  Dr Young reported that the diagnosis had been confirmed by Miss Fletcher’s vascular surgeon, Dr Deepak Williams, and that the current and past treatment involved elevation, the use of stockings and the treatment of ulcers and infection as they arose. Dr Young noted future or planned treatment as “nil” and that the condition was expected to persist for more than 24 months with an uncertain prognosis.[30]

    [29] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 1 February 2016, paragraph [41].

    [30] Exhibit 1, T Documents, T 20, 72-73, medical report of Dr James Young dated 20 October 2014.

33. The Secretary agreed with the findings of the JCA, ARO and SSAT that the impairment attracted 10 points under Table 3 (Lower Limb Function).[31] I also agree with that assessment. Miss Fletcher told the JCA that she was unable to walk far outside her home and needed transport to local shops; she had a maximum tolerance of about 200 metres. She was able to drive to and walk around a shopping centre for short periods.[32] She told the ARO that she could walk for five to 10 minutes and could stand for about 10 minutes before she had to sit.[33] Having regard to those matters, I believe that Miss Fletcher satisfied the descriptors for moderate functional impact (10 points) under the table.

    [31] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 1 February 2016, paragraph [43].

    [32] Exhibit 1, T Documents, T 22, page 110, JCA report dated 13 November 2014.

    [33] Exhibit 1, T Documents, T 25, page 120, ARO’s notes dated 15 December 2014.

34. Miss Fletcher submitted that her impairment should be assigned 20 points, saying that no acknowledgement had been made for the swelling in her leg. Nor, she said, was there any component for the pain she suffered in her leg. As to the former, the JCA report specifically mentioned swelling as an important issue for Miss Fletcher, noting that she was required to regularly elevate her leg during the day.[34] With respect to an allowance for pain, the Secretary’s representative pointed to s 6(9)(b) of the Determination, which notes that while there is no table dealing specifically with pain, “chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected”. Based on that provision, it is clear that the impairment in respect of Miss Fletcher’s right leg is properly considered under Table 3. I therefore do not consider that either of the submissions raised by Miss Fletcher warrants an increase in the allocation of points under Table 3.

    [34] Exhibit 1, T Documents, T 22, page 110, JCA report dated 13 November 2014.

1. For those reasons, I find that this impairment attracted 10 points under Table 3.

   Summary

2. To summarise, I consider that, at the relevant time, Miss Fletcher had 20 impairment points (10 points under each of Tables 5 and 3). She therefore satisfied s 94(1)(b) of the Act, being the second of the requirements for DSP.

3. It is therefore necessary to consider whether she would have satisfied the last of the key requirements for DSP qualification, namely a continuing inability to work.

   Did Miss Fletcher have a continuing inability to work?

4. Although Miss Fletcher’s impairments attracted 20 points in total under the tables, none of those impairments were rated “severe”, in the sense that they attract at least 20 points under a single table (see s 94(3B) of the Act).

5. Under s 94(2)(aa) of the Act, where a person’s impairment is not severe, they are required to have actively participated in a program of support (“POS”). If they have not done so, they cannot be found to have a continuing inability to work.

6. A person is considered to have actively participated in a POS if they have satisfied the requirements set out in a legislative instrument made by the Minister for the purposes of s 94(3C) of the Act. The Minister may also make relevant guidelines under s 94(3E).

7. The relevant legislative instrument made by the Minister is the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) (“Active Participation Determination”).

8. Effectively, the Active Participation Determination requires a person who has claimed DSP to have participated in, and complied with, a POS for at least 18 months during the three years before the claim was made.

9. According to the POS Referral History produced by the Secretary,[35] Miss Fletcher actively participated in a POS for less than two months in the 36 months prior to 27 October 2014, being the date of claim.

   [35] Exhibit 1, T Documents, T 31, page 142, POS Referral History.

10. There are certain exceptions set out in s 5 of the Active Participation Determination. The only one which is potentially relevant in the present case is s 5(5), which says that the requirements are satisfied if, at the date of claim, the person is participating in the POS and is prevented, solely because of their impairment, from improving their work capacity through continued participation in the program. However, I do not think that exception is applicable here, as it appears that Miss Fletcher was not participating in a POS at the time of claim. Miss Fletcher contended that during the relevant period, she was on workers’ compensation and therefore could not participate in a POS. I do not believe that justifies her failure to participate.

11. In those circumstances, I find that Miss Fletcher did not actively participate in a POS and therefore, did not satisfy s 94(2)(aa) of the Act. As such, she was not qualified for DSP.

12. Even if I am wrong in that conclusion, I note that the JCA formed the view that although Miss Fletcher’s baseline capacity to work was assessed at eight to 14 hours per week, she thought that with disability-specific intervention (including workplace modifications), Miss Fletcher’s work capacity might increase within two years to 15-22 hours per week.[36] “Work” being relevantly defined as work that is at least 15 hours per week on wages that are at or above the relevant minimum wage,[37] the JCA opinion therefore meant that Miss Fletcher did not have a continuing inability to work.

    [36] Exhibit 1, T Documents, T 22, page 111, JCA report dated 13 November 2014.

    [37] See s 94(5) Social Security Act 1991 (Cth).

13. While Mr Wagner considered that Miss Fletcher’s work capacity was nil given her struggles to leave home, there is no evidence which contradicts the view of the specialised JCA on the possible effects of intervention. In fact, in her report clinical psychologist Dr Terene McMah of the Health Professional Advisory Unit expressed the opinion that it is “likely that vocational counselling and rehabilitation will be required in order to support Ms Fletcher to return to suitable paid employment”.[38]

    [38] Exhibit 2(b), Attachment B to Secretary’s Statement of Facts and Contentions dated 1 February 2016: report of Dr Terene McMah of the Health Professional Advisory Unit dated 21 August 2015, page 10/10.

14. Nor do I consider there is any evidence to suggest that Miss Fletcher was prevented from undertaking a training activity by reason of her impairment, or if she was not so prevented, that such activity would be unlikely to enable her to work within two years of the relevant period.

15. For those reasons, I do not think that Miss Fletcher met any of the relevant requirements under paragraphs (2)(aa), (a) or (b) of s 94 during the relevant period, such that she did not have a continuing inability to work under s 94(1)(c) of the Act.

    CONCLUSION

16. For the reasons outlined above, I consider that at the relevant time, Miss Fletcher did not meet the requirements of s 94(1)(c) of the Act, in that she did not have a continuing inability to work. As a result, she did not qualify for DSP.

17. Accordingly, the decision under review is affirmed.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

............................[Sgd]............................................

Associate

Dated  9 March 2016

Date of hearing	8 February 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services