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

[2016] AATA 171

HYCJ and Secretary, Department of Social Services (Social services second review) [2016] AATA 171 (3 March 2016)

Division	GENERAL DIVISION
File Number	2014/2815
Re	HYCJ
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	3 March 2016
Date of written reasons	23 March 2016
Place	Sydney

The Tribunal affirms the decision under review.

........................................................................

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – disability support pension – post traumatic stress disorder with depression and anxiety – whether fully diagnosed treated and stabilised – applicant did not appear at the hearing – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975

Social Security (Administration) Act 1999
Social Security Act 1991

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member J F Toohey

23 March 2016

1. The Tribunal has made an order under s 35(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act) prohibiting the publication of information tending to reveal the identity of the applicant in these proceedings.

2. These written reasons reflect reasons given orally at the conclusion of a hearing on 3 March 2016. 

   INTRODUCTION

3. This matter first came before the Tribunal on 2 July 2015 when it was adjourned so that further information could be obtained from the applicant’s treating doctors concerning the diagnosis of her psychiatric condition.  For various reasons, it took longer than expected to obtain that information, and the hearing resumed on 3 March 2016. 

4. The applicant did not appear at the resumed hearing.  Notice of the resumed hearing had been sent to the last address she had provided to the Tribunal.  As well, Tribunal staff left messages on her mobile telephone in the days before the hearing, and attempted to contact her by email, to confirm her attendance. 

5. I am satisfied that the applicant had appropriate notice of the resumed hearing.  It would be open to the Tribunal to dismiss the application under subsection 42A(2) of the AAT Act for the applicant’s failure to appear.  However, in all the circumstances, I think it may be more helpful to her to determine her application on the information before me and provide her with reasons for my decision.

   THE APPLICANT’S CLAIMS FOR DISABILITY SUPPORT PENSION

6. The applicant suffers from the following medical conditions: post-traumatic stress disorder (PTSD) with depression and anxiety; chronic fatigue syndrome; diabetes type II; atopic rhinitis; eczema; hypertension; irritable bowel syndrome; and anaemia.

7. The applicant applied for Disability Support Pension (DSP) on 29 November 2012.  Centrelink decided she did not qualify for the pension on that date or in the thirteen weeks following, that is, by 14 February 2013 (see s 42 and Sch 2 of the Social Security (Administration) Act 1999).  I will call this the first claim period.  On 23 April 2014, the Social Security Appeals Tribunal affirmed that decision.

8. On 14 October 2013, the applicant made a second claim for DSP.  Centrelink determined that she qualified for the payment and granted her claim.  In particular, Centrelink was satisfied that her chronic fatigue syndrome was fully diagnosed treated and stabilised, and rated 20 points on a single Impairment Table in the Social Security Act 1991 (SS Act).

   The first hearing

9. When the matter came before the Tribunal on 2 July 2015, the applicant acknowledged that her chronic fatigue syndrome was not fully treated and stabilised during the first claim period.  She maintained, however, that her PTSD with depression and anxiety was fully diagnosed treated and stabilised at that time and should have rated 20 points on a single Impairment Table.  On that basis, she said, she qualified for the DSP when she made her first claim.

10. Information in medical reports before the Tribunal, in particular from Dr F, a psychiatrist, suggested that the applicant’s PTSD with depression and anxiety was long-standing and may have been fully treated and stabilised during the first claim period.  Given that only eight months separated the end of the first claim period and the date on which the applicant was granted DSP, I decided to adjourn the hearing to obtain further information from Dr F and from Mr B, a clinical psychologist whose report indicated he had been treating the applicant for some time.

    Relevant legislation

11. I do not propose to go into the legislation in detail.  It is found in s 94 of the SS Act.  It is enough to say that the applicant acknowledged at the first hearing that she had not completed a program of support prior to making her first claim.  Active participation in a program of support for 18 months in the three years prior to making a claim for DSP is a criterion of a continuing inability to work.  A continuing inability to work is the second limb of the qualification criteria for DSP, the first being an impairment rating of 20 points or more.

12. If a person’s impairments rate 20 points or more on a single Impairment Table, she or he is not required to have completed a program of support in order to have a continuing inability to work.

13. The applicant acknowledged at the first hearing that, as she had not actively participated in a program of support, her claim turned on whether or not any of her conditions rated 20 points or more during the first claim period. 

14. In order to be assigned a rating, a condition must be permanent, meaning that it is fully diagnosed, treated and stabilised: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. 

    Was the applicant’s PTSD with depression and anxiety fully diagnosed, treated and stabilised during the first claim period?

15. The Secretary says that, other than her hypertension, none of the applicant’s conditions was fully diagnosed, treated and stabilised during the first claim period.  Whether or not that is correct, the medical evidence does not suggest that any condition other than her PTSD with depression and anxiety (and her chronic fatigue syndrome which she acknowledges was not fully treated and stabilised) was severe enough to rate 20 points or more on any single Impairment Table.

16. Medical evidence indicates that the applicant has seen a number of doctors and psychologists over a long period but that is not of itself sufficient to find that her condition was fully diagnosed, treated and stabilised during the first claim period.

17. In response to the Tribunal’s enquiry, Mr B provided a report dated 31 July 2015 with a copy of an earlier report dated 8 May 2012 which confirmed that he saw the applicant on 13 March 2012 and 8 May 2012.  In his more recent report, he said “no formal diagnosis was made”; he would not rule out PTSD as the applicant’s symptoms “could have” been a result of that condition, but “no assessment was undertaken in this regard, as no regular treatment eventuated”.

18. Dr F spoke to the Tribunal by telephone at the resumed hearing.  He first saw the applicant in May 2013, two months after the end of the first claim period.  He gave evidence that she was not at that time on any medication; she had tried a number of medications but said all had side effects and she believed nothing further would help her.  From her point of view, he said, her condition was fully diagnosed, treated and stabilised.  From his point of view, however, new medication had become available that he was “very keen” to try.  He said he firmly believed that, given the opportunity, he could have helped the applicant but she declined his advice.

19. I have no reason to doubt Dr F’s evidence.  Even if I accepted that the applicant’s condition was fully diagnosed during the first claim period – and there is no clear evidence that it was – I am satisfied it was not fully treated and stabilised.  It follows that it cannot be assigned a rating on the Impairment Tables.  It follows that the applicant’s claim must fail.

    CONCLUSION

20. For these reasons I affirm the decision under review.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

...............................[sgd].........................................

Associate

Dated 23 March 2016

Dates of hearing	2 July 2015 & 3 March 2016
Applicant	In person
Solicitors for the Respondent	Ms Alicia Fletcher, Department of Human Services