Gobby and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 778
•3 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 778
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0436
GENERAL ADMINISTRATIVE DIVISION ) Re KELLIE GOBBY Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr A Frazer, Member Date3 November 2011
PlacePerth
Decision The Tribunal affirms the decision under review. …(sgd) Dr A Frazer..
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairment – applicant’s impairment is 40 points under Impairment Tables – applicant does not have a continuing inability to work – applicant not qualified for disability support pension – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94 and Sch 1B
REASONS FOR DECISION
3 November 2011 Dr A Frazer, Member Introduction
1. Ms Kellie Gobby, (“the applicant”), who is 41 years of age, lodged a claim for the disability support pension (“DSP”) in respect of her profound congenital deafness and her mental health illness on 22 February 2010.
2. On 12 April 2010 a Centrelink officer rejected her claim on the basis that although the applicant suffered from permanent impairments, namely profound congenital deafness and a mental illness, that rated more than 20 points on the Impairment Tables, the applicant did not have a continuing inability to work for more than 15 hours a week
3. On 17 May 2010, a Centrelink authorised review officer (“ARO”) affirmed the decision to reject the claim for DSP.
4. On 25 January 2011 the Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decision.
5. On 9 February 2011 the applicant made an application to this Tribunal for review of the SSAT’s decision.
6. The applicant is currently in receipt of Parenting Allowance.
The Relevant Legislation
7. Sections 41, 42 and Schedule 2 clause 3 of the Social Security (Administration) Act 1999 provide that the start day for a qualified DSP claimant is the date of claim. However, pursuant to Schedule 2 clause 4(1) of the Act where the person is not qualified on the date of claim but “will ..become qualified ..because of the passage of time or the occurrence of an event..” and “becomes so qualified” within 13 weeks of lodging a claim, the start day for a qualified DSP claimant is the day the person became qualified. This Tribunal must determine whether the applicant was qualified to receive DSP on 22 February 2010 or whether the applicant became so qualified within thirteen weeks, that is, by 24 May 2010.
8. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:
“ 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;
…
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(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.
…”
9. The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 13 - 14 below.
The Evidence
10.The evidence before the Tribunal comprised:
·the “T Documents” (T1-T17), pp 1- 184) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);
·the evidence of the applicant who was assisted by an Auslan interpreter.
·The evidence of the applicant’s partner, Mr Salvatore Gabriele, who was assisted by an Auslan interpreter
The applicant’s evidence
·The applicant told the Tribunal she lives at home with her partner, Salvatore Gabriele, and their young son who is around 18 months old. Their son was born in late March 2010. The applicant said she is now 20 weeks pregnant.
·The applicant said she has profound deafness since birth and communicates with lip-reading, Auslan or in writing. Her partner, Salvatore, is also deaf.
·The applicant attended Tuart Hill High School until the age of 16 which had a special deaf unit on site. The applicant then left school to take up a work experience opportunity at BankWest. The applicant remained in employment at BankWest for the next 20 years or so until she was made redundant in October 2009. At that time many staff were made redundant because of “problems in the business.” The applicant said she did not have any breaks in employment over this time although her role slightly changed over the years. Generally she worked as a data keyboard operator. The applicant explained it had been a very supported environment at BankWest. The applicant said she accepted the redundancy and did not look for other work because at that time she was pregnant and the baby was due in 4 months.
·The applicant said she cannot work now as she has a young child at home and another baby on the way. She has “too much on her plate”, responsibilities and has to be careful about how much she can take on.
·The applicant said that when she was pregnant with her son in June 2009 she ceased her anti-psychotic medication, Zyprexa. At that time the applicant and her partner were living in Sydney and they decided to come back to Perth.
·The applicant and her partner were living in Perth with their young son and the applicant was breast feeding and not on any medications. The applicant said she became unwell then with her mental illness around October 2010 and required a brief admission to Joondalup Hospital and then admission to the Mother Baby Unit at King Edward Hospital for around a month. During that time she recommenced Zyprexa and also started escitalopram, an anti-depressant. Since discharge, the applicant is under the care of Dr Rampono, a psychiatrist, and is doing well.
·The applicant said she has had mental health issues since she was young and can remember having some panic attacks over her childhood. The applicant said she was admitted to Royal Perth Hospital for some 10 days in February 2001 as she fell into a depression and became very stressed. She was commenced on an anti-psychotic medication, olanzapine. Later the applicant ceased her medications and then next deteriorated mentally in October 2002 when she was admitted to SCGH for 7 days and commenced on risperodone, a different type of antipsychotic.
·The applicant moved to Sydney in 2003 as “she wanted to try new things” and felt she was being “put back” in Perth. The applicant met her partner, Salvatore, in Sydney. The applicant said she ceased her medications in July 2005 and became psychotically unwell again. She was visited at home for a few weeks by a mental health nurse and also had the support of her psychiatrist, Dr Gilandas. She remained on olanzapine and an antidepressant, Cipramil, was also started. At this time the applicant needed about 3 weeks off work.
The Relevant Medical Evidence
11. The T Documents which contain discharge summaries from Royal Perth Hospital and Sir Charles Gairdner Hospital, several reports from Dr Gilandas, psychiatry medical officer and other mental health practitioners from Cantebury Community Health Centre and reports from the Joondalup Hospital and the King Edward Hospital, from Drs Stanojevic and Rampono.
12. An additional medical report from Dr Rampono dated 8 March 2011 which confirms that the applicant suffered from a “Major Depressive disorder with Psychotic Symptoms, around October 2010 and requires treatment with long term antipsychotic and antidepressant medications.
A Job Capacity Assessment dated 2 March 2010 by a registered psychologist.
The Impairment Tables
13. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:
“1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …
2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. …
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
·evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.
TABLE 12. HEARING FUNCTION
Testing to be carried out without a hearing aid.
Assignment of work-related impairment rating
Percentage Loss of
Binaural Hearing Rating0 - 24.9 NIL
25 - 34.9 FIVE
35 - 44.9 TEN
45 - 54.9 FIFTEEN
55 - 64.9 TWENTY
65 - 74.9 TWENTY FIVE
75 - 84.9 THIRTY
85 - 94.9 THIRTY FIVE
95 - 100 FORTY
…
14.Table 6, which is used to assess psychiatric impairment, is as follows:
“It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. … Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
Rating Criteria
NILMild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends.) Medical therapy or some supportive treatment from treating doctor may be required.
TENModerate and regular symptoms and generally functioning with some difficulty (eg noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work (eg short periods of absence from work).
TWENTYPsychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
THIRTYSerious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg speech is at times obscure, illogical or irrelevant).
FORTYMajor chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious impairment in communication (eg sometimes incoherent or unresponsive) or judgement (eg acts grossly inappropriately).”
Analysis
Impairments
15. It is common ground that, at all material times, the applicant has profound congenital deafness and a mental illness, categorised as a depressive disorder with psychotic episodes, which are permanent impairments, within the meaning of para (a) of s 94(1) of the Act.
16. The first matter for the Tribunal’s determination is whether the applicant, when she applied for the DSP and over the next 13 weeks, had a total impairment, by reason of the abovementioned conditions, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.
Deafness
17. It is common ground that the applicant has profound congenital deafness which does affect the applicant’s employment options however she has been in employment for approximately 25 years. It is common ground this impairment attracts an impairment rating of 40 points under Table 12 of the Impairment Tables.
Mental Illness
18. The Tribunal has considered the long term nature and the severity of the applicant’s mental illness. The Tribunal is mindful that usually the applicant is well and functions at an extremely high level. The applicant is able to continue working in a full time capacity requiring minimal time off from work. The applicant has also successfully developed relationships and managed to live and work in 2 cities in Australia. The Tribunal notes however that the applicant does require long term mood stabilising medication. The Tribunal must assess the applicant’s impairment due to her mental illness at the time of the application for DSP and the 13 week qualifying period.
19. On balance, the Tribunal considers that at the time stated above the applicant’s mental health impairment attracted a rating of Nil points under Table 6 of the Impairment Tables.
20.The applicant therefore satisfies para (b) of s 94(1) of the Act.
21. The Tribunal must also consider whether the applicant satisfies para (c) of s 94(1) of the Act.
22. The Tribunal notes that the applicant has worked most of her adult life. The applicant has some skills as a computer operator and data processor. The applicant has demonstrated that over the 25 years of her working life she has required minimal time off work due to her impairments. On balance, the Tribunal has decided that provided the applicant continues with her medication regime and accesses ongoing support from her mental health providers it is likely that she can work in the longer term
23. The applicant therefore does not satisfy para ( c) of s 94 (1) of the Act at the time of her claim and therefore was not qualified for DSP.
Decision
24.For the above reasons the Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member
Signed: …(sgd) T Freeman...
AssociateDate of Hearing 11 August 2011
Date of Decision 3 November 2011
Representative of the Applicant Self-representedRepresentative for the Respondent Ms M Conlon
Centrelink
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