Harte; Secretary, Department of Social Services and (Social services second review) - [2017] AATA 693

Harte; Secretary, Department of Social Services and (Social services second review) [2017] AATA 693 (19 April 2017)
Division:GENERAL DIVISION
File Number(s): 2015/5221
Re:Secretary, Department of Social Services
APPLICANT

AndAnna Harte
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:19 April 2017
Date of written reasons: 17 May 2017
Place:Brisbane

The decision under review is set aside and substituted with the decision that the respondent did not qualify for disability support pension on 13 January 2015 or in the thirteen week period thereafter.
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Deputy President Dr P McDermott RFD
CATCHWORDS
SOCIAL SECURITY – disability support pension – physical and psychiatric impairments – whether respondent’s conditions are permanent – whether respondent’s impairment is of 20 points or more under the Impairment Tables – whether respondent has a continuing inability to work – decision under review substituted
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
CASES
Singh v Minister for Immigration and Border Protection [2016] FCA 108
ALU15 v Minister for Immigration and Border Protection [2016] FCA 204
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
17 May 2017
INTRODUCTION

This is a review of the decision made by the Social Services and Child Support Division (the “AAT1”) of the Administrative Appeals Tribunal on 3 September 2015.
That decision set aside a decision of the applicant to reject the respondent’s application for disability support pension (“DSP”) lodged on 13 January 2015.
LEGISLATION
This Tribunal exercises jurisdiction to review the first review of the AAT1 under section 179 of the Social Security (Administration) Act 1999 (Cth) (the “SSAA”).
The legislation I must administer is the SSAA, the Social Security Act 1991 (the “SSA”), and the Social Security Tables for the assessment of work-related impairment for disability support pension Determination 2011 (the “Determination”).
Section 94 of the SSA sets out the qualification criteria for DSP.[1] In relevant respects, section 94 provides as follows:
[1] Exhibit A, T-documents, T4 at p. 16.
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 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
Continuing inability to work
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--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)in all cases--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.
…
Severe impairment
(3B) A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Active participation in a program of support
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
BACKGROUND
The respondent made an application for DSP on 13 January 2015. In her claim form the respondent stated that she had posttraumatic stress disorder (“PTSD”). To be eligible to receive DSP, it was necessary that the respondent be qualified to receive DSP on the date of claim or within 13 weeks after making the application. This 13 week period (the “relevant period”) is prescribed by Clause 4, Schedule 2 of the SSAA and concluded on 13 April 2015.
The respondent ceased employment in December 2012 and was subsequently diagnosed by her general practitioner, Dr Bruce Spork, as suffering from PTSD from events that occurred at work.
The eligibility of the respondent to receive DSP under section 94 of the SSA depends in part on an assessment of her impairment. Under section 94(1) of the SSA she is to be assessed by reference to Table 5 of the Impairment Tables which are contained in the Determination, Table 5 relates to mental health function.
CONSIDERATION
Whether an adjournment is appropriate
On 18 April 2017, the day before the hearing, the respondent sought an adjournment of the hearing of this application. The respondent had put forward a number of grounds for seeking the adjournment including Cyclone Debbie, school holidays and being out of internet/phone range from 8-17 April 2017. In response to the late adjournment request, the Tribunal notified the parties that the question of whether an adjournment would be granted would be dealt with at the time of the hearing the next morning, and if not granted, the hearing would proceed at that time.
The applicant notified the Tribunal and the respondent that it opposed the respondent’s adjournment request. This notification was made after business hours on 18 April 2017 and was received by the Tribunal on the morning of the hearing.
The hearing of this application had been adjourned on previous occasions. The date of this hearing was set on 27 January 2017 when the respondent had agreed to the hearing date in April. At that time she would have been aware of the dates of school holidays. There is no evidence before me why Cyclone Debbie would have prevented the respondent from attending the hearing. If the respondent had no internet or phone access on or before 17 April 2017, she certainly had such access on 18 April 2017 when she sent her email to the Tribunal to seek the adjournment. The respondent could have attended the premises of the Tribunal as she lives in Brisbane.
I did not consider it a fair or an appropriate use of the resources of the Tribunal to grant the respondent another adjournment of the hearing. The applicant had engaged the services of a legal firm and had, for some time, arranged for the attendance of a medical specialist to give evidence; these expenses would be thrown away if an adjournment was granted.
On the morning of the hearing, less than half an hour before commencement, the respondent sent to the Tribunal a medical certificate from Dr Spork which states that the respondent “ís, in my opinion, unfit to attend a Court hearing on 19 April 2017”. At the outset of my consideration I ruled that the medical certificate was insufficient to warrant the grant of an adjournment. It was not appropriate to grant an adjournment to the respondent on the basis of a certificate which does not reveal any reason why a medical condition would prevent the respondent from attending the hearing. In making my decision I have had regard to a number of decisions of the Federal Court of Australia which emphasise the importance of providing reasons as to why a person who is suffering a medical condition is unable to attend a hearing in any medical certificate which is lodged in support of an application for an adjournment (see, e.g., Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [10] per Pagone J; ALU15 v Minister for Immigration and Border Protection [2016] FCA 204 at [6] per Collier J).
The respondent completed a notice of withdrawal and submitted it just prior to the commencement of this hearing. She was then uncontactable on her contact number at the time of the commencement of the hearing. However, the notice of withdrawal form is only appropriate where an applicant no longer wishes to continue a proceeding before this Tribunal. In this case, Ms Harte is not the applicant, she is the respondent. I have regarded her completion of that form as making it clear that she no longer wishes to participate in these proceedings. It is also for that reason that an adjournment of the hearing would be inappropriate.
Whether a confidentiality order should be granted
As the respondent did not take part in the hearing of this application, there is no cogent evidence before me to justify a confidentiality order under section 35(2) of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”).
This Tribunal had previously advised the respondent at a directions hearing that if it comes apparent at the hearing that confidential information will be disclosed then it would be appropriate at that point to consider a confidentiality order.[2]
Whether the claimant has PTSD
[2] AAT Decision of Senior Member McCabe, 21 December 2015, paragraph 5
I agree with the comments of the member of the AAT1 who stated that the Tribunal finds this a very complex case. There have been a number of conflicting diagnoses of the respondent.
The opinion of Dr Spork that the respondent has PTSD is an opinion that was given some time after she ceased employment. In the report of 22 September 2014, Dr Spork diagnoses the respondent as having depression and anxiety as well as PTSD. Dr Spork again in his letter of 1 November 2016 gives his opinion that the respondent has PTSD. Dr Spork considers that she satisfies the diagnostic criteria consistent with PTSD. He also puts forward PTSD as the respondent’s primary condition and he gives the opinion that she remains functionally incapacitated from her symptoms.
Dr Spork in his letter of 1 November 2016 states that the PTSD was caused by events at work but does not actually outline what the stressful events in fact were. From the material before me it appears that there was a failure of the employer to renew the respondent’s employment contract because of a hiring freeze and there are unspecified allegations of workplace bullying. However, it is difficult for the Tribunal to come to a conclusion about whether there were stressful events when the respondent does not take part in this hearing.
I have considered the report of Dr Frank Varghese, Consultant Psychiatrist, dated 26 August 2016 as well as his evidence before the Tribunal. Dr Varghese has not seen the respondent as she failed to attend two appointments scheduled with him. The evidence before me does not satisfy me that the respondent had a justifiable reason for not keeping these appointments.
Dr Varghese is of the opinion that there is no evidence in the documentation that he has reviewed to support the contention that the respondent has PTSD. Dr Varghese has been asked to review all medical documentation relating to the mental health condition of the respondent, including material that has been produced to the Tribunal under summons.
In giving his evidence Dr Varghese explained that for there to be a diagnosis of PTSD there must be a traumatic event, and a number of examples of a traumatic event were given. Dr Varghese has concluded that “on the data available she has not suffered any experiences such that could give rise to PTSD”.[3] Certainly there is no evidence before this Tribunal that there was a traumatic event which would sustain a diagnosis of PTSD within the criteria of the DSM series of texts.
[3] Exhibit B, Report of Dr Varghese dated 26 August 2016 at p. 11
There have been some referrals to a clinical psychologist and it is important to have regard to this because the Introduction to Table 5 provides 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 a diagnosis has not been made by a psychiatrist. Dr Sally Frye, Clinical Psychologist, saw the respondent initially in 2013 and then in 2015. In her report dated 1 September 2015, Dr Frye does not state that the applicant has had PTSD.
As the opinion of Dr Spork that the applicant has PTSD is not supported by a clinical psychologist diagnosis or the opinion of a psychiatrist, I am precluded under the Determination from making a finding that the respondent had PTSD at the date of claim and during the relevant period. I also do not give weight to the opinion of Dr Spork who did not in his letter of 1 November 2016 outline what diagnostic criteria he relied upon to form his conclusion that the applicant had PTSD. I consider that Dr Varghese is correct in forming his conclusion that the applicant did not have PTSD.
Whether the claimant has an adjustment disorder
I will now turn to the diagnosis that Dr Frye in her report of 1 September 2015 made that the respondent suffers from adjustment disorder with mixed anxiety and depressed mood. This diagnosis was considered by Dr Varghese in his report and in giving evidence. Dr Varghese explains that in the normal course of events an adjustment disorder would resolve itself within a few weeks; at most, under the DSM criteria, an adjustment disorder would resolve itself within six months.
The respondent ceased her employment in December 2012. Even if the events at work gave rise to an adjustment disorder, there is no cogent evidence that could support a finding that she would still have an adjustment disorder at the time she lodged her claim for DSP on 13 January 2015 or within that 13 week qualifying period thereafter.
I conclude in reliance on the evidence of Dr Varghese in his report and his evidence in person, that at the time of claim and within the relevant period the respondent did not have an adjustment disorder. Dr Varghese is a psychiatrist of some standing in the profession and his evidence is unchallenged. The extensive curriculum vitae of Dr Varghese[4] was provided to the respondent prior to this hearing.
Whether the claimant has an anxiety condition
[4] Exhibit B, Curriculum Vitae (Abbreviated) 2016 of Dr Francis Varghese
Dr Spork in his report of 22 September 2014 opines that the respondent has a depression and anxiety condition. Dr Frye in her report of 1 September 2015 refers to the respondent having a mixed anxiety and depressed mood.
Dr Varghese points out in his report that the respondent does not appear to be suffering from any underlying physical condition that would give rise to emotional symptoms. He considered that question requires further investigation once there has been a full psychiatric evaluation. To date there does not appear to be any such psychiatric evaluation. Dr Varghese in his report addresses the issue of whether the respondent suffers from an anxiety condition. His opinion is that on the data available the respondent’s functioning has been reasonably good making it unlikely that there is any underlying generalised anxiety that could have been exacerbated.
I conclude in reliance on the evidence of Dr Varghese, that at the time of claim and during the relevant period, the respondent did not have an anxiety condition.
Whether the claimant has depression
Dr Varghese has also made observations as to whether the respondent does have depression. In his report, which I found to be fair and balanced, he hypothesised about whether the respondent was suffering from depression with secondary anxiety. Dr Varghese said the general practitioner and psychology notes did describe some symptoms which are commonly seen in major depression. Dr Varghese points out that it is of critical importance in a mental health exam in assessing the depth of depression to understand the longitudinal history and determine whether there is a single episode or more than one episode.
One of the difficulties that prevents me from making a finding that the respondent has a major depression condition has been the decision of the respondent to not complete a DASS or other psychological questionnaire such as a Kessler questionnaire. The respondent has refused to complete such a questionnaire. Dr Varghese has pointed out that without such a questionnaire before him he is unable to give a definitive diagnosis that the respondent has a depression condition.
Dr Frye has only seen the respondent on a number of occasions before completing her report. Dr Frye first saw the respondent some time in 2013 and then on two occasions in 2015 before issuing her report. Certainly there is no diagnosis of any major depression. The report of Dr Frye does not set out any longitudinal history which is important in analysing whether the respondent does have major depression.
I do not consider that the evidence before me enables me to make a finding that at the time of claim and during the relevant period the respondent was suffering from major depression.
While I do not consider that at the time of her claim and during the relevant period the respondent was suffering from a depression condition, I have, in fairness to the respondent, considered that there may be the possibility of the respondent having a depression condition. If there is a depression condition I should consider the permanency of the condition. I do not consider that there is evidence before me that warrants a conclusion that there is a depression condition which is permanent. I consider that if there is a major depression condition, then the condition has not been fully treated and fully stabilized within the meaning of section 6(4) of the Determination.
If the respondent has a major depression condition then Dr Varghese does not consider it to be a long term condition as against being an episodic condition. He states that a major depression condition would respond well to psychiatric treatment and even untreated the tendency is towards the remission of the condition. The pharmacy records that are in evidence do not disclose that there has been a concerted course of treatment of antidepressants. Dr Varghese has given his opinion that the appropriate treatment of a depression condition could be antidepressant medication and that with antidepressant medication a condition could resolve itself within six months.
Under section 6(4)(d) of the Determination, one matter to consider in determining whether the condition is permanent is whether the condition is more likely than not on the available evidence to persist for more than two years. Having regard to Dr Varghese’s opinion that a depression condition could be certainly treated within that two year time period, I do not conclude that the condition can be regarded as being permanent.
Whether an impairment rating can be assigned to the mental health condition
The evidence before me does not enable me to assign an impairment rating for a mental health condition of the respondent. I am therefore unable to make a finding that 94(1)(b) of the SSA is met. The respondent was not qualified for disability support pension on that ground alone.
Whether the claimant has a continuing inability to work
I wish briefly to outline some aspects of section 94(1)(c) of the SSA. I do not consider that there is cogent evidence before me that the respondent has a continuing inability to work.
Dr Spork in his letter of 1 November 2016 has given his opinion that her condition does not support “regular, stable and reliable employment” but the sentence in which he expresses that conclusion has been redacted.[5] I do not give great weight to this report as the letter has been redacted in parts, including the addressee of the letter.
[5] Exhibit D, Letter of Dr Bruce Spork dated 1 November 2016 at p. 2

I rely upon the report of Dr Varghese who opines that if the respondent has suffered major depression then with appropriate treatment there is no reason that she cannot return to normal functioning including work. Dr Varghese also considered that there is no reason why she could not return to employment in any field for which she is trained.
CONCLUSION
The respondent does not qualify for DSP at the date of her claim or within a 13 week period thereafter.
DECISION
I set aside the reviewable decision made on 3 September 2015 and substitute a decision that the respondent did not qualify for DSP on 13 January 2015 or within a 13 week period thereafter.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated: 17 May 2017

Date(s) of hearing: 19 April 2017

Solicitors for the Applicant: Sparke Helmore

Respondent: In person

Date(s) of hearing:	19 April 2017
Solicitors for the Applicant:	Sparke Helmore
Respondent:	In person