Hill and Secretary, Department of Social Services (Social services second review) - [2016] AATA 242

Hill and Secretary, Department of Social Services (Social services second review) [2016] AATA 242 (18 April 2016)

Division

GENERAL DIVISION

File Number(s)

2015/3428

Re

Linda Hill

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member A C Cotter

Date 18 April 2016

Place Brisbane
The decision under review is affirmed

..........................[sgd]..............................................
Senior Member A C Cotter
CATCHWORDS

SOCIAL SECURITY - Disability Support Pension – whether 20 points or more under impairment tables during the relevant period – whether fully diagnosed treated and stabilised – whether severe impairment – continuing inability to work – where applicant has not completed a program of support – decision under review affirmed
LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 5, 6, 10, 11
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Richardson and Secretary, Department of Families, Community Services and Indigenous Affairs [2013] AATA 220
Kumar and Secretary, Department of Social Services [2014] AATA 442
REASONS FOR DECISION
Senior Member A C Cotter
18 April 2016
INTRODUCTION

Ms Linda Hill lodged a claim for Disability Support Pension (“DSP”) on 13 December 2013.[1] Following an inquiry by Ms Hill, it was subsequently discovered that although the lodgement was recorded by Centrelink, the documents were unable to be located.[2] She was given new paperwork to complete, with a new claim being lodged on 26 March 2014.[3]
[1] Exhibit 1, T Documents, T 46, page 275, electronic file note dated 13 December 2013.
[2] Exhibit 1, T Documents, T 46, page 274, electronic file note dated 26 March 2014.
[3] Exhibit 1, T Documents, T 33, pages 189-217 Claim for DSP dated 24 March 2014.
The claim subsequently lodged by Ms Hill described her disabilities as Sjögren’s syndrome and PTSD (Post-Traumatic Stress Disorder).[4]
[4] Ibid, page 201.
A medical report completed by Ms Hill’s general practitioner, Dr Juliana Crispin, in support of her claim nominated the conditions having the greatest functional impact on Ms Hill as “PTSD- Major depressive disorder” and “Sjogren’s syndrome” (sic.).[5]
[5] Exhibit 1, T Documents, T 31, pages 180 and 183, medical report of Dr Juliana Crispin dated 5 December 2013.
In May 2014, Ms Hill attended a face to face assessment with a Job Capacity Assessor (“JCA”), who recommended that a total of 15 impairment points be assigned to her impairments, being five points in respect of Sjögren’s syndrome (incorrectly described as Sjogren-Larsson syndrome) and 10 points in respect of PTSD.[6]
[6] Exhibit 1, T Documents, T 34, page 221, JCA report dated 12 May 2014.
Ms Hill’s claim was subsequently rejected on the basis that she did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Hill and Secretary, Department of Social Services (Social services second review) [2016] AATA 242
Case: [2016] AATA 242
Decision Date: 18 April 2016

CaseChat Overview and Summary

In the case of Hill and Secretary, Department of Social Services, the applicant, Ms Hill, appealed a decision to deny her Disability Support Pension. The dispute centred around whether Ms Hill's impairments met the criteria for the pension, specifically whether her impairments attracted 20 points or more under the relevant Impairment Tables and if she had a continuing inability to work. The matter was heard by the Administrative Appeals Tribunal.

The primary legal issues were whether Ms Hill's impairments attracted 20 points or more under the Impairment Tables and if she had a continuing inability to work. The Tribunal also had to consider if Ms Hill's impairments were fully diagnosed, treated, and stabilised, and whether they were severe enough to warrant an exception to the requirement of actively participating in a Program of Support.

The Tribunal found that Ms Hill's mental health conditions were not fully diagnosed, treated, and stabilised at the relevant times, and thus could not attract impairment points. Regarding her Sjögren’s syndrome, the Tribunal noted that while Ms Hill had the condition, it did not significantly impair her ability to work. The Tribunal concluded that Ms Hill did not meet the requirements for the Disability Support Pension as she did not have 20 points or more under the Impairment Tables and did not have a continuing inability to work. The decision under review was affirmed.

As a result, Ms Hill's appeal was dismissed, and the original decision denying her Disability Support Pension was upheld.

Orders

Orders of the court

The decision under review is affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As a result, Ms Hill could not be found to have had a continuing inability to work, even if (contrary to my conclusion above) she were able to attract 20 points or more under the tables. She therefore did not satisfy the last of the requirements for DSP in s 94(1) of the Act.CONCLUSION I do not consider that Ms Hill qualified for DSP in respect of either of her claims, as she did not have 20 points or more under the Impairment Tables at the relevant times. None of her impairments being “severe”, as that term is understood under the Act, I do not think that she satisfied the requirement, in respect of either claim, that she actively participated in a POS for 18 months in the 36 months preceding each claim. It therefore could not be said that she had a continuing inability to work in respect of either claim. Consequently, she did not qualify for DSP at the relevant times. Accordingly, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The remaining issues for me to consider are therefore:(a)Whether, at the relevant times, Ms Hill’s impairments attracted 20 impairment points or more under the relevant Impairment Tables; and(b)If so, whether Ms Hill had a continuing inability to work within two years of the relevant periods.CONSIDERATIONMs Hill’s Contentions At the hearing, Ms Hill appeared for herself by telephone. She contended that there were a variety of errors in the findings of both the ARO and the SSAT. While I indicated that I was hearing the matter afresh and was not bound by the earlier findings, I asked her to provide me with some examples, which she did. I pointed out that some of the examples she gave me were in fact accurate, which Ms Hill readily acknowledged once that was pointed out to her. Nevertheless, she told me there were other errors that she wanted to highlight. Conscious of the time involved in that process, I adjourned the matter and directed that Ms Hill provide further written submissions. I indicated that while the content of her submissions were a matter for her, I would expect her to at least address what emerged during the hearing as the “live” issues, namely whether she could establish that any of her impairments were “severe” (in the sense understood under s 94(3B) of the Act, of attracting 20 points or more under a single table) and if not, whether any of the exceptions to the program of support requirement were applicable in her case. Ms Hill’s submissions were contained in an email she sent to the Tribunal on 15 March 2016, marked to my attention. Where Ms Hill has made a specific submission in respect of an issue, I refer to it in the following discussion.Did Ms Hill’s impairments attract 20 points or more under the Impairment Tables? I address this issue by reference to the impairments arising from Ms Hill’s mental health conditions and her Sjögren’s syndrome.Mental health conditions The SSAT concluded that at the time of her claims, Ms Hill’s mental health conditions were not fully diagnosed, treated and stabilised, and as such, could not be assigned any impairment points. Having considered the evidence before me, I am inclined to agree. Dr Crispin’s supporting medical report nominated “PTSD-Major depressive disorder” as the condition having the most impact on Ms Hill’s ability to function. She stated that the diagnosis had been confirmed by a psychiatrist, Dr Mohamed Milad. Ms Hill’s current treatment was listed as “Psychotherapy. Nil medications”; and the report indicated that she may need further psychiatric support in the future. Dr Crispin noted that Ms Hill’s relevant history dated back to 1989, following a family tragedy. Ms Hill suffered a breakdown as a consequence and was hospitalised in a psychiatric unit in Lismore. Dr Crispin noted that Ms Hill “refused” to take any medications. She concluded that it would be difficult for Ms Hill to adjust and to work under pressure or in a group; her anxiety attacks were “very high”. Dr Crispin thought that the impact of the condition would persist for more than 24 months.[23][23] Exhibit 1, T Documents, T 31, pages 180-182, medical report of Dr Juliana Crispin dated 5 December 2013.

Division	GENERAL DIVISION
File Number(s)	2015/3428
Re	Linda Hill
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member A C Cotter
Date	18 April 2016
Place	Brisbane