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

[2016] AATA 164

Gillespie and Secretary, Department of Social Services (Social services second review) [2016] AATA 164 (18 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3031
Re	Tamara Gillespie
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	18 March 2016
Place	Perth

The Tribunal affirms the decision under review.

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Senior Member CR Walsh

CATCHWORDS

SOCIAL SECURITY – disability support pension – applicant’s impairments (being epilepsy, ADHD, depression/anxiety and hepatitis C) were fully diagnosed, but not fully treated and fully stabilised in the qualification period – applicant’s impairments did not attract 20 points or more under the Impairment Tables in the qualification period – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2)

Social Security (Administration) Act 1999 – cl 4(1) of Schedule 2

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 – s 3 - s 6(1) – s 6(2) – s 6(3) – s 6(4) – s 6(5) – s 6(6) – s 6(7) – s 6(8)

CASES

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Senior Member CR Walsh

18 March 2016

INTRODUCTION

1. Ms Gillespie seeks review of a decision of the Social Security Appeals Tribunal (SSAT), dated 19 May 2015, that her claim for disability support pension (DSP) should be rejected because she did not qualify for DSP under s 94(1) of the Social Security Act 1991 (SSA) in the period from 22 August 2014 (being the date of her claim) to 21 November 2014 (being 13 weeks after the date of her claim) because her “impairments” (being epilepsy, attention deficit/hyperactivity disorder, depression/anxiety and hepatitis C), whilst “fully diagnosed”, were not “fully treated” and “fully stabilised” such that they did not attract at least 20 points under the Impairment Tables (Impairment Tables) in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination) in the qualification period.

   FACTURAL & PROCEDURAL BACKGROUND

2. Ms Gillespie was born on 29 April 1973.  She is currently 42 years old.

3. In September 2013, Ms Gillespie lodged a claim for DSP (Earlier DSP Claim).

4. On 30 April 2014, Centrelink rejected the Earlier DSP Claim on the basis that Ms Gillespie’s impairments did not attract the required 20 points under the Impairments Tables.

5. On 3 July 2014, Ms Gillespie sought a review of Centrelink’s decision dated 30 April 2014.

6. On 14 July 2014, Centrelink’s decision dated 30 April 2014 was affirmed by a Centrelink Authorised Review Officer (ARO).  Ms Gillespie did not apply to have this Centrelink ARO decision reviewed by the SSAT.

7. On 22 August 2014, Ms Gillespie lodged a further claim for DSP (Current DSP Claim).

8. On 28 August 2014, Ms Gillespie attended a face to face Job Capacity Assessment (JCA) which was conducted by a Qualified Social Worker and a Registered Psychologist.  The JCA assessors’ report (August 2014 JCA Report) states that Ms Gillespie suffered from:

   ·     Psychol/Psychiatric Disorder (which was found to be fully diagnosed, but not fully treated and fully stablised),

   ·     Attention Deficit/Hyperactivity Disorder (ADHD) (which was found to be fully diagnosed, but not fully treated and fully stabilised),

   ·     Epilepsy – Grand Mal, Tonic-Clonic (which was found to be fully diagnosed, but not fully treated and fully stabilised),

   ·     Hepatitis C (which was found to be fully diagnosed but nor fully treated and fully stabilised); and

   ·     a Respiratory Disorder (which was not found to be fully diagnosed, fully treated and fully stabilised). 

9. In the August 2014 JCA Report, the JCA assessors did not recommend that any impairment points be assigned to Ms Gillespie’s conditions under the Impairment Tables as they were not satisfied that any of her impairments were fully diagnosed, fully treated and fully stabilised in the qualification period, as required by the Impairment Determination.

10. On 9 October 2014, Centrelink rejected the Current DSP Claim on the basis that Ms Gillespie was not qualified for DSP under s 94(1) of the SSA (Original Decision).

11. On 27 November 2014, Ms Gillespie requested a review of the Original Decision by a Centrelink ARO.

12. On 25 February 2015, a Centrelink ARO affirmed the Original Decision (ARO Decision).

13. On 22 April 2015, Ms Gillespie applied to the SSAT for a review of the ARO Decision.

14. On 19 May 2015, the SSAT affirmed the ARO Decision (SSAT Decision).  In summary, the SSAT found:

    48.At the time of her claim for DSP, Ms Gillespie’s medical conditions generated no points under the Impairment Tables.  This is less than the required 20 points and means she does not satisfy paragraph 94(1)(b) of the Act.

15. On 18 June 2015, Ms Gillespie applied to this Tribunal for a review of the SSAT Decision.

    ANALYSIS

    Qualification for DSP – s 94(1) of the SSA

16. The requirements for qualification for DSP are set out in s 94(1) of the SSA, as follows:

    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

    …………

    [Emphasis added]

17. For Ms Gillespie to qualify for DSP, she will need to satisfy s 94(1)(a), (b) and (c) of the SSA, as set out above, on the date she claimed DSP (being 22 August 2014) or within 13 weeks of that date (being 21 November 2014):  refer to paragraphs 18 and 19 below.

    Qualification Period

18. Clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (SSAA) provides:

    4.        Start date - early claim

    (1)       If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)       the person becomes so qualified within that period;

    The claim is taken to be made on the first day on which the person is qualified for the social security payment.

19. The effect of cl 4(1) of Schedule 1 to the SSAA is that Ms Gillespie’s qualification for DSP under s 94(1) of the SSA is to be determined, in this case, during the period from 22 August 2014 (being the date of her DSP claim) to 21 November 2014 (being 13 weeks from the date of her DSP claim), inclusive (Qualification Period).

    Does Ms Gillespie have any “impairments” for the purposes of s 94(1)(a) of the SSA in the Qualification Period?

20. The term “impairment” is not defined in the SSA. However, s 3 of the Impairment Determination defines “impairment” to mean:

    A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.

21. It is not in dispute that Ms Gillespie suffered from the following “impairments” in the Qualification Period and, therefore, satisfied s 94(1)(a) of the SSA:

    ·     Epilepsy;

    ·     ADHD;

    ·     Depression and anxiety; and

    ·     Hepatitis C.

    Did Ms Gillepsie’s impairments attract at least 20 points under the Impairment Tables for the purposes of s 94(1)(b) of the SSA in the Qualification Period?

22. A person’s level of impairment must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Impairment Determination.

23. The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered: s 6(2) of the Impairment Determination.

24. Importantly, section 6(3) of the Impairment Determination states:

    Impairment ratings

    (3)       An impairment rating can only be assigned to an impairment if:

    (a)       The person’s condition causing that impairment is permanent; and

    Note:  for permanent see subsection 6(4).

    (b)The impairment that results from that condition is more likely than not, in light of available evidence, to persist, for more than 2 years. [Emphasis added]

25. A condition will be “permanent” if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and “likely to persist for more than 2 years”: s 6(4) of the Impairment Determination.

26. An “appropriately qualified medical practitioner” means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Determination.

27. In determining whether a condition has been “fully diagnosed” and “fully treated”, the following must be considered:

    (i)whether there is corroborating evidence of the condition;

    (ii)what treatment or rehabilitation has occurred in relation to the condition; and

    (iii)whether treatment is continuing or is planned in the next 2 years: s 6(5) of the Impairment Determination.

28. In relation to what is meant by “fully stabilised”, s 6(6) of the Impairment Determination provides:

    Fully Stabilised

    (6)For the purposes of s 6(4)(c) and s 11(4) of the Impairment Tables Determination, a condition is fully stabilized if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.  [Emphasis added]

29. Section 6(7) of the Impairment Determination provides that “reasonable treatment” , for the purposes of s 6(6) of the Impairment Determination, is treatment that:

    (a)       is available at a location reasonably accessible to the person; and

    (b)       is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)       is regularly undertaken or performed; and

    (e)       has a high success rate; and

    (f)        carries a low risk to the person.

30. The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned: s 6(8) of the Impairment Determination.

31. It is not in dispute that Ms Gillespie’s impairments (being epilepsy, ADHD, depression and anxiety and hepatitis C) were “fully diagnosed” in the Qualification Period.  However, as set out above, before an impairment rating can be assigned to an impairment under the Impairment Tables it must not only be “fully diagnosed” but also be “fully treated” and “fully stabilised” in the relevant qualification period. 

32. In order to satisfy s 94(1)(b) of the SSA, Ms Gillespie’s impairments must attract an impairment rating at least 20 points under the Impairment Tables in the Qualification Period.  Consequently, medical evidence concerning the functional impact of Ms Gillespie’s impairments after the Qualification Period cannot be considered by the Tribunal for the purposes of this particular application, although medical evidence which post-dates the Qualification Period may be considered by the Tribunal if it “casts light on” the functional impact of Ms Gillespie’s impairments in the Qualification Period:  see Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 per Gyles J at [1].

33. The medical evidence relevant to the functional impact of each of Ms Gillespie’s impairments in the Qualification Period, and the appropriate impairment rating to assign to each of her impairments for that period, is in turn considered below.

    1.        Epilepsy

34. It is not in dispute that in the Qualification Period Ms Gillespie suffered from epilepsy and that this condition was “fully diagnosed”.

35. The relevant issue for consideration by the Tribunal is whether Ms Gillespie’s epilepsy was also “fully treated” and “fully stabilised” in the Qualification Period and whether it attracted any impairment points under the Impairment Tables in that period. 

36. In a DSP Medical Report, dated 2 August 2014, Dr Barry Fatovich, indicated that Ms Gillespie had been diagnosed with “Epilepsy (temporal lobe)” in January 1979, recommended that she be referred to her neurologist at St John of God Hospital for “further specialist opinion” and noted that Ms Gillespie’s epilepsy condition impacted upon her ability to function as follows:

    at risk of fits, especially when stressed.  Affects her ability to concentrate, decision making and problem solving.  At times involuntary loss of consciousness (blackouts)+ seizures.

37. In his 2 August 2014 DSP Medical Report, Dr Fatovich also indicated that the impact of Ms Gillespie’s epilepsy on her ability to function was expected to persist for “More than 24 months” and within the next two years the effect of this condition on Ms Gillespie’s ability to function was expected to “Remain unchanged”.

38. The August 2014 JCA Report records the following prognosis in relation to Ms Gillespie’s epilepsy condition:

    Dr Fatovich is re-referring Tamara to her Neurologist following reports of ‘blackouts’. Unclear prognosis and cause of blackouts at this point.

39. A medical report of Dr Janavi Dunuwille, Consultant Neurologist, Department of Neurology at Sir Charles Gardiner Hospital, dated 6 October 2014, indicates that Ms Gillespie had had a number of recent seizures and made suggestions about adjustments to her current medication, Carbamazepine, and possible additions to her medication improve seizure control, as follows:

    On review today Tamara states that she has been having a few seizures every month.  The seizures are commonly partial seizures with infrequent generalised tonic clonic seizures.  Tamara is on Carbamazepine CR 200mg bd and is tolerating the medication well with no reported side effects……

    ……..

    In order to improve seizure control further, I have asked Tamara to increase her dose of Carbamazepine to the next target dose of 300mg.  This will be done in a gradual manner and I have given Tamara a written schedule to follow…….If abnormal liver function tests preclude the increase in the dose of Carbamazepine, I would suggest the addition of Levetiracetam to her current dose of Carbamazepine.  Levetiracetam can be commenced at an initial dose of 250mg bd increasing to 500mg bd within one week.

40. Ms Gillespie’s evidence before the SSAT (on 19 May 2015) included the following:

    ·In recent months the epilepsy has got a bit out of control.  She has had numerous grand mal seizures, up to one a fortnight. This has resulted in numerous attendances at various emergency departments and Derbarl Yerrigan Health Service.

    ·She feels that the increasing stress in her life triggers her epileptic seizures.  She has recently increased the dose of Tegretol to try and prevent them happening:  SSAT Decision at [30].

41. Ms Gillespie provided the Tribunal with a further letter from Dr Fatovich, dated 5 June 2015. This letter post-dates the Qualification Period and does not address the functional impact of Mr Gillespie’s epilepsy condition in the Qualification Period.  For the reasons provided above (in paragraphs 18 and 19), this evidence cannot be considered by the Tribunal in relation to this application.  In any event, nothing in that letter establishes that Ms Gillespie’s epilepsy condition was “fully treated” and “fully stabilised” in the Qualification Period.

42. Based on the relevant evidence, the Tribunal finds that Ms Gillespie’s epilepsy condition did not attract any impairment points under the Impairment Tables in the Qualification Period as that condition was not “fully treated” and “fully stabilised” in the Qualification Period.

    2.        ADHD

43. It is not in dispute that Ms Gillespie suffered from ADHD and that this condition was “fully diagnosed” in the Qualification Period.  The medical evidence shows that Ms Gillespie was diagnosed with ADHD by Dr Chris Carter on 3 August 2009.

44. The relevant issue for consideration by the Tribunal is whether Ms Gillespie’s ADHD was also “fully treated” and “fully stabilised” in the Qualification Period and whether it attracted any impairment points under the Impairment Tables in that period. 

45. The August 2014 JCA Report records the following prognosis in relation to Ms Gillespie’s ADHD condition:

    Dr Fatovich has referred Tamara for a psychiatric review, there is nil current treatment.  Treatment is likely to lead to significant functional gains.  There is nil new evidence to suggest that there is confirmed diagnosis of ADHD by a qualified health professional.  Ambiguity re diagnosis as Dr Fatovich lists ADHD as comorbid with depression.

46. Ms Gillespie’s evidence before the SSAT (on 19 May 2015) in relation to her ADHD condition included the following:

    ·She was diagnosed with ADHD seven years ago.  She went to a psychiatrist and was put on Ritalin which seemed to help.

    ·However about two years after starting her on Ritalin the psychiatrist stopped it abruptly and subsequently assaulted her.

    ·Since then she has been treated by her GP, Dr Fatovich, who has put her on Endep for this condition.  She takes that on a regular basis.

    ·……..

    ·She realises that her current treatment is less effective than Ritalin.  However her GP is not allowed to prescribe Ritalin and she is reluctant to attend another psychiatrist because of her past experience.  SSAT Decision at [33].

47. The SSAT Decision states:

    36.At Ms Gillespie’s specific request, the [SSAT] contacted her GP, Dr Fatovich, soon after the hearing. Dr Fatovich advised that the Ritalin had been stopped because of Ms Gillepsie’s regular use of cannabis, which was a dangerous combination.  Dr Fatovich agreed that further psychiatric referral for help in management would be useful and will try and persuade Ms Gillespie to take that path.

48. Based on the relevant evidence, the Tribunal finds that Ms Gillespie’s ADHD condition did not attract any impairment points under the Impairment Tables in the Qualification Period as that condition was not “fully treated” and “fully stabilised” in the Qualification Period.

    3.        Depression and anxiety

49. It is not in dispute that in the Qualification Period Ms Gillespie suffered from depression and anxiety and that this condition was “fully diagnosed”. 

50. The relevant issue for consideration by the Tribunal is whether Ms Gillespie’s depression and anxiety was also “fully treated” and “fully stabilised” in the Qualification Period and whether it attracted any impairment points under the Impairment Tables in that period.

51. The August 2014 JCA Report records the following prognosis in relation to Ms Gillespie’s depression and anxiety condition:

    Dr Fatovich has referred Tamara for a psychiatric review, current treatment is not effective thus changes may be required.  Appropriate treatment is likely to lead to significant functional gains – Dr Fatovich is uncertain if these functional losses are temporary 13-24 months or permanent 24+ months.  He is uncertain of the long term prognosis.  There is a lack of current information by an appropriately qualified health professional.

1. The SSAT noted in the SSAT Decision (at [38]) that in the few weeks prior to her hearing before the SSAT (on 19 May 2015), Ms Gillespie had:

   been an inpatient at the psychiatric ward of Royal Perth Hospital” and “had been admitted for surgical drainage of a boil, but her depressed state was noticed and she was transferred for psychiatric care. She was in hospital for 16 days.

2. Ms Gillespie provided the Tribunal with a copy of a medical report of Dr Dodd, Consultant Psychiatrist, dated 26 November 2015. This report is based on an assessment conducted on 1 October 2015 and records that Dr Dodd previously saw Ms Gillespie in December 2011. This report post-dates the Qualification Period and does not address the functional impact of Ms Gillespie’s depression and anxiety condition in the Qualification Period.  For the reasons provided above (in paragraphs 18 and 19), this report cannot be considered by the Tribunal in determining this application.

3. Based on the relevant evidence, the Tribunal finds that Ms Gillespie’s depression and anxiety condition did not attract any impairment points under the Impairment Tables in the Qualification Period as that condition was not “fully treated” and “fully stabilised” in the Qualification Period.

   4.        Hepatitis C

4. It is not in dispute that in the Qualification Period Ms Gillespie suffered from hepatitis C and that this condition was “fully diagnosed”. 

5. The relevant issue for consideration by the Tribunal is whether Ms Gillespie’s hepatitis C was also “fully treated” and “fully stabilised” in the Qualification Period and whether it can be assigned any impairment points under the Impairment Tables. 

6. The August 2014 JCA Report records the following prognosis in relation to Ms Gillespie’s hepatitis C condition:

   ….based on the available information, this condition is yet to be assessed by specialist and treated with Interferon.  GP listed this condition as well managed with minimal impact even without future treatment.

7. Ms Gillespie’s evidence before the SSAT (on 19 May 2015) was that she had only recently been accepted into a hepatitis C treatment program at St John of God Hospital and that she anticipated starting treatment soon: SSAT Decision at [41]. In such circumstances, it cannot be said that Ms Gillespie’s hepatitis C condition was “fully treated” and “fully stabilised” in the Qualification Period.

8. Ms Gillespie also told the SSAT (on 19 May 2015) that she “was not aware of any symptoms or functional impairments” relating to her hepatitis C condition.  As such, even if Ms Gillespie’s hepatitis C condition was fully treated and fully stabilised in the Qualification Period it is unlikely to attract any impairment points under the Impairment Tables as it had, on Ms Gillespie’s own evidence, no more than a minimal functional impact on her in the Qualification Period.

9. Ms Gillespie’s evidence before this Tribunal in relation to the future treatment of her hepatitis C condition was that she would be commencing her treatment in about six months’ time and that the treatment would take at least six months.  Ms Gillespie said that the hepatitis C treatment was “a long process, not a short one”.

10. Based on the relevant evidence, the Tribunal finds that Ms Gillespie’s hepatitis C condition did not attract any impairment points under the Impairment Tables in the Qualification Period as that condition was not “fully treated” and “fully stabilised” in the Qualification Period.

    Conclusion – Impairment points

11. For the above reasons, the Tribunal finds that Ms Gillespie’s impairments did not attract any impairment points under the Impairment Tables in the Qualification Period. 

12. It follows that Ms Gillespie did not satisfy s 91(1)(b) of the SSA in the Qualification Period and did not qualify for DSP in the Qualification Period.  This does not mean that Ms Gillespie will not be successful in claiming DSP in the future, if she were to lodge a fresh claim with Centrelink and provided Centrelink with the necessary medical evidence.

    Does Ms Gillespie have a “continuing inability to work” for the purposes of s 94(1)(c) of the SSA in the Qualification Period?

13. Since the Tribunal has found that Ms Gillespie’s impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period it is unnecessary for it to consider whether Ms Gillespie had a “continuing inability to work” (as defined in s 94(2) of the SSA) for the purposes of s 94(1)(c) of the SSA at that time.

    DECISION

14. For the above reasons, the Tribunal affirms the SSAT Decision.

I certify that the preceding 65 (sixty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

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Administrative Assistant

Dated 18 March 2016

Date(s) of hearing	16 March 2016
Applicant	In person
Representative for the Respondent	Ms K Whittemore
Solicitors for the Respondent	Mills Oakley Lawyers