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

[2023] AATA 758

Harvey and Secretary, Department of Social Services (Social services second review) [2023] AATA 758 (14 April 2023)

Division:GENERAL DIVISION

File Number(s):2022/6475      

Re:Sarah Harvey  

APPLICANT

Secretary, Department of Social Services And  

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:14 April 2023

Place:Sydney

The decision under review is affirmed

.................................[SGD].......................................

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension (DSP) application – whether the applicant qualified for the DSP during the relevant qualification period – back condition – mental health conditions – whether the applicant has a physical, mental or psychiatric impairment – whether the applicant’s disabilities may be assigned a relevant impairment rating – whether the applicant has a continuing inability to work or is participating in a relevant program of support – applicant’s conditions not able to be assigned impairment ratings – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

CASES

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

14 April 2023

Senior Member A Poljak

1. Sarah Harvey, the applicant, seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) on 11 July 2022. The SSCSD affirmed a decision made by the Department of Social Services and affirmed by an Authorised Review officer on 22 February 2022, refusing the applicant’s claim for the disability support pension (DSP) which was lodged on 15 December 2021.

2. The applicant’s claim for DSP was rejected on the basis that she did not satisfy the eligibility criteria set out in section 94 of the Social Security Act 1991 (Cth) (the Act). 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 for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and a continuing inability to work as defined in the Act.

3. For the applicant to qualify for DSP, she had to satisfy these criteria on 15 December 2021, when she applied for the DSP, or within the following 13 weeks, that is, by 16 March 2022 pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the qualification period).

4. As there is a temporal element, the applicant’s qualification for DSP can only be assessed in the qualification period, and if there is any deterioration or change to her medical conditions suggesting she may have become qualified at a later time, this is irrelevant to the Tribunal’s consideration of her impairments at the qualification period (see Shi v Migration Agents Registration Authority [2008] HCA 31, [144] – [145]).

5. The Secretary accepts that based on the medical evidence, the applicant had physical, intellectual, or psychiatric impairments and satisfied paragraph 94(1)(a) of the Act at the qualification period. The issues to be determined in these proceedings is whether the applicant’s conditions rate 20 or more points under the Impairment Tables and whether she has a continuing inability to work as defined in the Act.

   IMPAIRMENT TABLES

6. The first issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables. 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 results from a person’s condition’. 

7. Subsections 6(3) and 6(4) provide that an 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.

8. 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.

9. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

   (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.

10. Reasonable treatment is defined in subsection 6(7) as 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.

    Back Condition

11. It is accepted that the applicant’s spinal stenosis was fully diagnosed as per the medical report of Dr Modur, GP, dated 17 November 2021. The condition was also confirmed by a CT lumbosacral spine which took place on 15 February 2022.

12. While current treatment was listed as analgesia and physiotherapy in a medical certificate by Dr Modur dated 20 December 2021, there is no evidence in relation to whether all reasonable treatment had occurred by the qualification period such that the condition can be considered fully treated and stabilised.

13. The evidence shows that in February 2022, Dr Sanki recommended the applicant ‘may benefit from a CT guided epidural injection of corticosteroid. The patient may also benefit from CT guided injections of their L5-S1 facet joints and CT guided perineural injections of the L5 nerve roots bilaterally’. At hearing, the applicant advised that she received a cortisone injection after the qualification period and that it seemed to ‘help a lot’. Additionally, the applicant advised at hearing that she started physiotherapy for her back sometime in early 2022. She advised that she was only entitled to four free sessions a year but found that it ‘helped a lot’.

14. It follows that no impairment rating may be assigned to this condition.

    Mental Health Conditions

15. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. The Introduction to Table 5 of the Impairment Tables 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 the diagnosis has not been made by a psychiatrist).

16. The applicant has been diagnosed with several mental health conditions, namely, generalised anxiety, post-traumatic stress disorder (PTSD), borderline personality disorder (“BPD”), depression and suicidal ideation.

17. Other than, BPD, the applicant’s mental health conditions have not been diagnosed by an appropriately qualified medical practitioner. The applicant’s BPD was diagnosed by Nadine Bou-Antoun, psychologist, and by Dr Jayalath, psychiatrist.

18. As for treatment, the applicant’s condition of BPD was not fully treated and stabilised at the qualification period. The applicant was either engaging in or still yet to complete, recommended treatment.

19. In a report dated 22 February 2022, Ms Ladkani, Clinical Psychologist, described the applicant’s attendance for treatment during the qualification period and that the applicant would be ‘continuing her therapeutic journey in order to consolidate and maintain her stability and therapeutic gains’.

20. In a report dated 20 November 2021, Dr Jayalath noted that the applicant was compliant with her medication, namely Pristiq and Lamotrigine and that her ‘mood and anxiety symptoms have improved.’ Dr Jayalath opined that she would benefit from a Dialectical Behavioural Therapy (DBT) group. He further advised that he was leaving the practice but noted that the applicant could see another consultant at the practice.  

21. I note that the applicant received a free referral to another psychiatrist for treatment, however the applicant did not feel comfortable with the psychiatrist and decided not to see her.     

22. Nadine Bou-Antoun recommended the implementation of DBT in a treatment plan for the applicant. At hearing, the applicant advised that she commenced DBT therapy with Nadine but stopped treatment when Nadine went on maternity leave. At that time the applicant said she had not concluded DBT and was actively engaged in the treatment. Since then, the applicant advised that obtaining treatment has not been easy due to the expense. She stated that since having her National Disability Insurance Scheme (NDIS) plan approved on 22 July 2022, she now sees a psychologist and receives DBT every fortnight. This however does not fall within the qualification period.

23. For these reasons, the applicant’s mental health condition was not fully treated and stabilised during the qualification period. No impairment rating may be assigned to this condition.

    Conclusion

24. As at the qualification period, the applicant did not have any medical conditions that were fully diagnosed, treated, and stabilised and as such, impairment ratings cannot be assigned. Accordingly, the applicant did not satisfy paragraph 94(1)(b) of the Act at the qualification period.

    Continuing Inability to Work

25. The qualification criteria for DSP are cumulative, and if any one of the criteria are not satisfied the person will not be qualified for DSP. Since no impairment rating may be assigned to the applicant, it is not strictly necessary for me to consider whether she had a continuing inability to work during the qualification period. 

26. In any event, I accept that the applicant satisfied paragraph 94(2)(aa) of the Act at the qualification period. The relevant period for a program of support (POS) (the three-year period prior to the date of lodgement of claim), is the period 15 December 2018 to 14 December 2021. During this time, the applicant had completed a POS (attendance 845 days) as evidenced by the information provided by the Department of Employment, Skills, Small and Family Business and therefore the exemption provisions in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) are not relevant.

27. The applicant satisfied paragraph 94(2)(aa) of the Act at the qualification period and therefore satisfied subparagraph 94(1)(c)(ii) of the Act.

28. The applicant did not satisfy the continuing inability to work requirement under paragraph 94(2)(a) and subparagraph 94(1)(c)(i) of the Act as there is no corroborating evidence that her impairment is of itself sufficient to prevent her from doing any work or undertaking any training activity independently of a program of support within the next two years.

29. As the applicant did not satisfy paragraph 94(1)(b) of the Act at the qualification period, her claim for DSP cannot succeed.

    Decision

30. The decision under review is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.............................[SGD]...........................................

Associate

Dated: 14 April 2023

Date(s) of hearing:	23 March 2023
Advocate for the Applicant:	Mr J Reed
Solicitor for the Respondent:	Ms S Navaratnam, Services Australia