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

[2017] AATA 1051

Ghazzawie and Secretary, Department of Social Services (Social services second review) [2017] AATA 1051 (29 May 2017)

Division:GENERAL DIVISION

File Number(s):      2016/1142

Re:Hayat Ghazzawie

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:29 May 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – cancellation – whether applicant qualified at date of cancellation – mental health condition – lower limb condition – endometriosis – whether fully diagnosed, treated and stabilised – decision under review affirmed

LEGISLATION

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

1. Ms Ghazzawie, the applicant, has been in receipt of the disability support pension (“DSP”) since 24 March 2011. She was granted DSP on the basis of impairments arising from her mental health condition (depression and post-traumatic stress disorder).

2. On 14 January 2016, the Administrative Appeals Tribunal, Social Services and Child Support Division (“SSCSD”) affirmed a decision of the Department of Human Services (“Department”) to cancel the applicant’s DSP from 29 July 2015 (“the Decision”). The basis of the decision was that the applicant ceased to satisfy the criteria for the disability support pension set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”) at the date of cancellation on 29 July 2015 (“Date of Cancellation”). The applicant seeks review of this decision.

3. Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

4. The applicant had to satisfy these criteria at the date of cancellation.

5. In assessing the applicant’s continued qualification for the disability support pension in 2016, the Department was required to apply the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”), pursuant to subsections 27(3) and (4) of the Act. The Impairment Tables are stricter than the tables which applied when the applicant was first granted the disability support pension on 24 March 20011.

6. The power for the Secretary to cancel the applicant’s DSP is contained in section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). The cancellation decision takes effect on the day on which it was made, in this case on the date of cancellation pursuant to ss 118(13) of the Administration Act.

7. The Secretary accepts that the applicant suffers from a number of conditions at the date of cancellation. She therefore satisfies subsection 94(1)(a) of the Act. The issue to be determined in these proceedings is whether the applicant satisfied section 94(1)(b) and (c) of the Act at the date of cancellation.

   IMPAIRMENT TABLES

8. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”. 

9. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

10. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

11. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. (Emphasis added)

12. For multiple conditions causing a common problem, subsection 10(5) and 10(6) of the Impairment Tables provides:

    (5)       Where two or more conditions cause a common or combined impairment, a         single rating should be assigned in relation to that common or combined      impairment under a single Table.

    (6)       …it is appropriate to assign a separate impairment rating for each condition          as this would result in the same impairment being assessed more than       once.

    MENTAL HEALTH CONDITION – PSYCHOL/PSYCHIATRIC DISORDER

13. The Secretary contends that the applicant’s mental health condition was not fully diagnosed, treated and stabilised at the date of cancellation.

14. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. The Introduction to table 5 of the Impairment Tables provides (inter alia) that a diagnosis of a condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

15. The applicant appeared very distressed during the hearing and fluctuated between hysteria, aggression and immense sadness. She was clearly in a lot of emotional distress and it was very difficult for her to concentrate for any period of time and provide evidence in a coherent manner. The applicant had her mother with her for support and it was with her assistance, that the hearing was able to proceed.

16. It is important to note that self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

17. In the Medical Report for DSP dated 16 February 2011, Dr John George, the applicant’s GP, diagnosed her with “severe depression, with labile behavioural problems, aggressive” with the date of onset recorded as 2010. In regards to current and future/planned treatment, Dr George noted “antidepressant, rehab for drug use, and counselling”. He recorded that the applicant was usually compliant with treatment and that the condition was expected to continue for more than 24 months.

18. At the Job Capacity Assessment (“JCA”) undertaken on 9 June 2015, and recorded in the JCA report dated 6 July 2015, the applicant reported that her current symptoms were “fluctuating mood, grief, tears easily, anger, irritability, and poor motivation. She reported poor sleep patterns, no social interactions, strained family relationships, inability to maintain friendships and low stress tolerance”.

19. In a letter dated 17 June 2015, Mr Tom Jones, a clinical psychologist, noted that the applicant had been reluctant to take the antidepressant medication prescribed by Dr George, and indicated that he will proceed with cognitive behavioural psychological treatment. He noted that the applicant was “ambivalent about the possibility of psychological treatment helping her”.

20. In a letter dated 3 August 2015, Mr Jones advises that he saw the applicant for a second time and recommended starting antidepressant medication, and indicated that he would continue CBT. Mr Jones advised that the applicant “will probably need inpatient detox treatment for marijuana dependence”.

21. There is in evidence a letter from Mr Jones dated 4 August 2014. I consider that this letter is incorrectly dated, and should read 4 August 2015. This is because the letter certifies that Mr Jones had begun treating the applicant on referral from her GP Dr John George, and the letter dated 17 June 2015, thanks Dr George for referring the applicant and states that she attended his practice (apparently for the first time) on 15 June 2015. In this letter dated 4 August 2015, Mr Jones diagnosed the applicant as suffering from “major depressive disorder, substance use disorder, and complex post-dramatic stress disorder”. Mr Jones indicated that the applicant would be treated with ongoing psychological cognitive behavioural therapy and medication management. He described the applicant’s prognosis as “guarded” and indicated that a clearer picture would emerge when she stopped non-prescribed substance use.

22. Dr George advised in his report dated 24 May 2016, that the applicant’s mental health condition was very difficult to assess. He estimated that the applicant would have a mild-moderate functional impact on activities involving mental health function.

23. Mr Jones notes in a letter dated 30 November 2016, that he treated the applicant on six occasions between 15 June 2015 and 29 November 2016. He opined that “without the benefit of hindsight, as at the 29/7/15, her mental health conditions were already stabilised to the extent that no further treatment after 29/7/15 was likely to lead to a significant functional improvement within two years from that date”. Mr Jones says that in regards to treatment, from at least early 2015 Dr Jon George, her GP, had been prescribing medication. First it was benzodiazepine and then antidepressant medication, which commenced from mid-2015, and is continuing. He advised that the antidepressant medication has not led to a significant improvement in her symptoms. In regards to diagnosis, Mr Jones advises that as they applied in July 2015, the applicant suffers from “major depressive disorder, substance use disorder and post-traumatic stress disorder”. He notes that “the substance use disorder is now in remission”. He also advised that the other two disorders of post-traumatic disorder and major depressive disorder still applied.

24. In his report dated 30 November 2016, Mr Jones also found that the applicant’s level of impairment was severe. He advised that the applicant was unable to live alone without family support; her social/recreational activity is extremely limited; she refuses invitations to social events; she only has one female friend; it is very difficult for her to concentrate on tasks and conversations for more than 10 minutes; she frequently takes to her bed, avoiding activity for long periods and frequently flares up in anger when attempting to interact with family members; and her overall planning and decision-making is severely dysfunctional.

25. Having regard to all the evidence, particularly that of Mr Jones, I am satisfied that the applicant’s mental health condition of “major depressive disorder, substance use disorder and post-traumatic stress disorder” was fully diagnosed at the cancellation date, but I am not satisfied that it was fully treated and stabilised.

26. In regards to her prescription medication, the applicant advised at hearing that she was taking the medication Dr George prescribed for her. In response to Mr Jones’s comment in his report dated 17 June 2015, that she was reluctant to take antidepressant medication, the applicant stated that this was inaccurate and said that she had only stopped taking Endep because of the side-effects and preferred Valium.  She reiterated many times that she takes all of her prescribed medication but nothing seems to help her.

27. At hearing, the applicant confirmed, and I accept, that her substance abuse ceased some time ago. This is consistent with the evidence of Mr Jones in his report dated 30 November 2016. However, in regards to these proceedings, I must consider the applicant’s condition as it was at the date of cancellation. Mr Jones’ report dated 30 November 2016 may assist her with any future application for the DSP, but it does not assist in regards to her substance abuse for the purpose of these proceedings.

28. From the evidence available it is plain that, at the date of cancellation, the applicant was dealing with substance abuse issues. This is supported by the evidence of Mr Jones. In the letter dated 3 August 2015, he advised that the applicant would “probably need inpatient detox treatment for marijuana dependence”. In the report dated 4 August 2015, he suggested that the applicant was still taking non-prescribed substances at that time. As stated by Dr John, a “clearer picture would emerge of the applicant’s prognosis when she stopped non-prescribed substance use”. Based on this evidence, I am not satisfied that at the date of cancellation, the applicant’s mental health condition can be regarded as fully treated and fully stabilised.

29. It follows that an impairment rating cannot be assigned to this condition.

    LOWER LIMB CONDITION – RIGHT KNEE CONGENITAL WEAKNESS

30. The Secretary accepts and I agree, that the applicant’s limb condition was fully diagnosed, treated and stabilised at the date of cancellation.

31. In the Program of Support and Medical Review for DSP dated 4 April 2015, Dr George indicated that the diagnosis was confirmed and supported by the further specialist opinion of orthopaedic surgeon, Dr Neville Rowden.  In regards to the impact on ability to function, Dr George noted that the applicant was “unable to stand, walk long distances; pain affected daily life and function”.

32. In the more recent letter from Dr George dated 24 May 2016, he says that “there is mild functional impact on activities using lower limbs” as the applicant “has difficulty walking to local facilities; she requires occasional rest when walking around shopping Malls. Her ability is reduced in climbing stairs. She can stand for more than 10 minutes; however she could not perform the duties as a hairdresser”.

33. In the JCA report dated 6 July 2015, it is noted that the applicant reported “she cannot stand for more than five minutes. She explained that she can walk for up to 2 hours and then need to sit and rest. The client also reported that after climbing five steps she experiences right knee pain”.

34. Based on the evidence before me and having regard to the descriptors contained in Table 3 of the Impairment Tables, I find that the applicant has a mild functional impact as a result of the lower limb condition, which equates to an impairment rating of 5 points.

    ENDOMETRIOSIS

35. In the Program of Support and Medical Review for DSP dated 4 April 2015, Dr George nominated endometriosis is the applicant’s second condition and recorded that the date of onset was 2011. He noted that in regards to current treatment, the applicant was awaiting a “laparoscopy for definitive diagnosis”. Regarding the impact of this condition on the applicant’s ability to function, Dr George recorded that the condition was expected to persist for 3 to 12 months.

36. Based on this evidence, I’m not satisfied that this condition is permanent. Accordingly the condition of endometriosis cannot be awarded any impairment points under the Impairment Tables.

    CONTINUING INABILITY TO WORK

37. As the applicant’s impairments do not rate 20 or more points on the Impairment Tables, it is therefore not necessary to consider whether she had a continuing inability to work at the date of cancellation. 

    DECISION

38. For all of the reasons given above, I affirm the decision under review.  The applicant may apply for DSP again at any time. 

    Senior Member A Poljak

    29 May 2017

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak.

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

Associate

Dated: 29 May 2017

Date(s) of hearing:	14 March 2017
Advocate for the Applicant:	Shaima Baymen
Solicitors for the Applicant:	Hailey Musgrove, Department of Human Services