Hodge and Secretary, Department of Education, Employment and Workplace Relations

[2009] AATA 267

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 267

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/0226

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ABIGAIL HODGE

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date22 April 2009

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
  Senior Member

SOCIAL SECURITY ‑ application for disability support pension – decision made on documents lodged – absence of evidence of qualification under s94 at date of claim or within 13 weeks – decision affirmed

Social Security Act 1991 s 94, s 94(2) and Sch 1B

Social Security (Administration) Act 1999 Sch 2 Cl 4 (1), s 41 and s 42

Administrative Appeals Tribunal Act 1975 s 34J

REASONS FOR DECISION

22 April 2009 Mr John Handley, Senior Member           

1.      Ms Abigail Hodge, the applicant in these proceedings, applies to review a decision made by the Social Security Appeals Tribunal (SSAT) on 9 May 2006.  The SSAT then decided to affirm a decision previously made by an Authorised Review Officer (ARO) of Centrelink that she did not qualify for Disability Support Pension (DSP).

2. Both parties have requested that this application be decided on the documents that have been lodged by both of them and by regard also to their written submissions (refer s 34J of the Administrative Appeals Tribunal Act 1975). In addition to the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 a number of reports have been received by Dr Woon, Dr Miller and Miss Natividad.  Written submissions have been lodged by the respondent on 10 February 2009.  The respondent also lodged a Statement of Facts and Contentions on 15 October 2008.  The applicant's mother lodged a written response to the respondent's submissions on 27 March 2009.  These documents will be referred to in the reasons which will follow.

3.      The applicant is presently 22 years of age having been born on 10 December 1986.  She lodged a claim for DSP on 30 November 2005 when she was then two weeks short of her 19^th birthday. The diagnosed injury or illness of schizophrenia is not in dispute. The issue under review by these proceedings is whether the applicant qualified for DSP, having regard to the provisions of s 94 of the Social Security Act 1991 (the Act), at the date of claim or within 13 weeks of it, refer Schedule 2 Cl 4 (1) on Social Security (Administration) Act 1999 (the Administration Act).

4.      It would appear from the medical reports that the applicant suffered deterioration in her illness in July 2007 and subsequently lodged a further claim for DSP in March 2008 which was successful and from that date DSP payments have been made.  By these proceedings the applicant seeks to recover DSP between 30 November 2005 when she first claimed (and was denied) and March 2008 (when she again claimed and succeeded).

5.      In her claim for DSP (T5), the applicant recorded that she was then a student and previously worked as a waiter and as a barista.  Dr Woon, who had treated the applicant from June 2005 (T6) reported, in support of her claim for DSP, that the applicant was likely to have persisting fluctuations in function for between 3 and 24 months.  Dr Whitehead, the applicant's treating general practitioner (T7), reported that the applicant was not then able to work or to seek work but thought that the condition would somewhat improve.  Dr Lane who examined the applicant at the request of the Commonwealth, reported that the condition was not then stable, that it should improve and that the applicant would benefit from vocational rehabilitation, on the job training, an adult short course and psychological counselling.

6. The ARO (T13) decided on the basis of the medical reports (refer above) that the applicant's condition could not then be regarded as stabilised and was incapable of attracting an impairment rating under the Impairment Tables, which are found at Schedule 1B of the Act (refer later at paragraph 11).

7.      Dr Woon in a report Centrelink of 11 January 2006 (T10) reported that the applicant was then attending the Albert Road Clinic at four days per week and was participating in a Health Day Program.  It was her opinion, at the date of this report, that the applicant would be unable to work or study full time within the next two years.  In a report of 22 November 2007 Dr Woon recorded that the applicant had not been able to work consistently between December 2005 and November 2007.  In a report of 3 October 2007, Dr Woon recorded that the applicant did attend the Health Day Program for 10 weeks between January and March 2006, that she had had three brief casual jobs each lasting approximately two weeks and was able to return to secondary education for most of 2006.  She noted that the applicant's symptoms deteriorated significantly in July 2007 and there were episodes of aggression which required inpatient treatment.  The applicant was also asked to leave her school.

8.      Dr Miller is a psychiatrist who examined on behalf of the Commonwealth and provided a report of 18 January 2008.  It was her opinion that at the date of the claim in November 2005 and in the subsequent 13 week period, whilst the applicant may have been assessed then as having an impairment of 30% under Table 6 of the Impairment Tables, the condition could not then have been regarded as stable nor was it fully documented.  It was her opinion that the condition did stabilise between 2006 and 2007 but the applicant suffered a relapse in July 2007 and at January 2008 it was her opinion that the applicant would then qualify for DSP having regard to the effects of the relapse in July 2007 and the chronicity of the illness.  It was her opinion at January 2008 that the applicant had no capacity for work or retraining.

9.      Ms Natividad completed a report on 29 May 2007 and was of the opinion, then, based on other reports, that the condition should be regarded as being temporary, that the applicant had a capacity to work between 15 and 22 hours per week and it was anticipated that she would obtain a capacity to work for more than 30 hours per week.  In an opinion expressed in a report of 20 February 2008 having reviewed the reports of Dr Woon and Dr Miller, she noted that the applicant attended a program at the clinic of Dr Woon between January 2006 and March 2006 and the impact of that participation could not then be determined.

10.     In a letter to Mr Noonan, an advocate of Centrelink, on 27 March 2008, Ms Natividad was of the opinion that the applicant's condition should be regarded as having been permanent from July 2007, that there was no capacity then or subsequently for any work or retraining and the impairment should be regarded as 20% under the Impairment Tables.  It was her opinion that the applicant qualified for DSP at July 2007.

conclusion and reasons for decision

11. Qualification for DSP is to be found within the provisions of s 94 of the Act. All relevant parts must be achieved which for the purposes of this application include an impairment of 20% or more and continuing inability to work. The latter qualification has a meaning given to it by s 94 (2) which includes the impairment preventing undertaking any work within two years and either the impairment is sufficient to prevent the undertaking of educational or vocational training or if the impairment does not prevent such an undertaking the training would be unlikely to enable the person to work within the next two years.

12. Schedule 1B of the Act has an Introductory Part to the Tables which refers to a condition being regarded as being permanent if it has been diagnosed, treated and stabilised. A condition shall be considered as stabilised if there is unlikely to be any significant functional improvement with or without treatment within two years.

13. The provisions however of s 41 and s 42 and Clause 4 of Schedule 2 of the Administration Act are inflexible. Payment can only be made if there is qualification at the date of claim or within 13 weeks of it.

14. Whilst Dr Miller was of the opinion that the applicant did have an impairment of 20 points or more under the Impairment Tables at the date of claim or within 13 weeks of it, the condition could not then be regarded as stable. She also noted that the applicant was able to undertake educational training. It follows that pursuant to s 94 (2) the impairment was not then sufficient to prevent the applicant from undertaking educational or vocational training.

15.     In her report of 11 January 2006, Dr Woon was of the opinion that the applicant would be unable to work or study full time for the next two years.  But she has not ever given an opinion of whether there was an impairment of 20 points or more.  It would not appear, having regard to her reports of 3 October 2007 and 22 November 2007, (because of continuing treatment and the reports of fluctuations in symptoms), that the applicant could be reasonably assessed as having an impairment, then, which was stable and treated and over which an opinion could be reasonably given of functional improvement being unlikely.

16.     Ms Natividad in her report of 29 May 2007 was of the opinion that the applicant then had a work capacity of between 15 and 20 hours per week and was attending a job network provider.

17. On the medical evidence lodged the applicant cannot qualify under s 94. She cannot demonstrate at 30 November 2005 when the claim was made or within 13 weeks of that date, that she had an impairment of 20% or more which was responsible for an inability to work for two years or the impairment prevented an undertaking of educational or vocational training or such training would be unlikely to qualify her for work within two years.

18.     It would appear that the applicant has had a qualification for DSP before March 2008.  Dr Miller was of the opinion that such qualification existed at January 2008.  Ms Natividad was of the opinion that such a qualification commenced at July 2007.  But the applicant is presently on DSP by reason of a claim made in March 2008 and payments have been made from that date.

19.     I have no doubt that the condition of schizophrenia was properly diagnosed at 30 November 2005 and it would appear that the condition could then be regarded as permanent.  It is wrong for persons to refer to that condition as temporary.  To do so confuses diagnosis with symptoms.  Schizophrenia is a condition which is well recognized as fluctuating from time to time as manifested by the symptoms suffered by the patient.  The sentiments expressed by the applicant's mother in her submissions of 21 March 2009 are well put and deserve the attention of decision‑makers.  Assessment of the condition of schizophrenia should be approached with an eye to the reality of the illness and a sense of compassion.

20. However, only when the condition attracts 20 impairment points and there is a continuing inability to work and an impairment from undertaking training will a person qualify for DSP under s 94. All of the qualifying parts of s 94 must be satisfied. Unfortunately on the medical evidence lodged in these proceedings the applicant cannot qualify at 30 November 2005 or within 13 weeks subsequently. The decision under review must therefore be affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed:         Grace Carney Personal Assistant

Heard on the Papers                 6 April 2009
Date of Decision  22 April 2009