Janamba Hay and Secretary, Department of Social Services
[2014] AATA 822
•3 November 2014
[2014] AATA 822
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6682
Re
Janamba Hay
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 3 November 2014 Place Sydney The decision under review to refuse Ms Hay’s claim for the Disability Support Pension is affirmed.
...........................[sgd].............................................
Deputy President J W Constance
Catchwords
SOCIAL SECURITY – disability support pension – whether conditions permanent – whether conditions fully diagnosed, treated and stabilised – fluctuating condition – total impairment rating of 10 points - decision affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4
Cases
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Ms Hay has applied to the Tribunal for the review of a decision of the Social Security Appeals Tribunal which affirmed a decision of Centrelink to refuse her claim for the Disability Support Pension (‘DSP’).
Ms Hay applied for the pension on 26 February 2013. In her application she listed her conditions as “Immune deficiency with post-infections Fatigue Syndrome”.[1]
The Secretary accepts that, for the purpose of determining Ms Hay’s entitlement to a pension, her relevant disabilities are chronic fatigue syndrome and depression. However the Secretary denies that Ms Hay meets other eligibility criteria set out in the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
For the reasons which follow the decision refusing Ms Hay’s application for a Disability Support Pension will be affirmed.
THE LEGISLATION GOVERNING ELEGIBILITY FOR A DISABILITY SUPPORT PENSION
To be entitled to the pension Ms Hay must show that she met the eligibility requirements on the day she applied for the pension (i.e. on 26 February 2013) or within the 13 weeks immediately following that day.[2] I will refer to this period as “the relevant period”. It ended on 28 May 2013.
Section 94(1) of the Act provides that to qualify for the pension:
(a)a person must have a physical, intellectual or psychiatric impairment, or impairments; and
(b)the impairments must be rated at 20 points or more in accordance with the Impairment Tables; and
(c)the person must have a continuing inability to work as defined in the Act.
THE ISSUES
As the Secretary accepts that Ms Hay has the impairments to which I have referred, the first issue for determination is whether these impairments rate 20 points or more. If they do, it will then be necessary to decide whether Ms Hay has a continuing inability to work.
WHAT RATING IS APPLICABLE?
The Impairment Tables
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
The following subparagraphs of clause 6 are relevant in relation to the assessment of impairment ratings:
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
6(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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.
Note: For reasonable treatment see subsection 6(7)..
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is 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.
Evidence which may be considered in determining the correct rating within the relevant period
In Harris v Secretary, Department of Employment and Workplace Relations,[3] Gyles J stated that:
… the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
In the case of a condition such as chronic fatigue syndrome it may be appropriate to consider events which occurred before the relevant period notwithstanding that the rating has to be determined within that period. Clearly this is envisaged in the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension. Chapter 2 Part (B) of the Guidelines provide that “[t]he Tables can only be applied after a person’s medical history has been considered.”
Subsection 11(4) of the Tables also indicates that in assigning an impairment rating it is permissible to consider the history of the effects of episodic and fluctuating conditions:
(4) When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
Chronic fatigue syndrome
The Secretary agrees that this condition is permanent as it was fully diagnosed, fully treated and fully stabilised during the relevant period. I am satisfied that this is an appropriate concession.
The Secretary argues that the impairment should be rated 10 points under Table 1. This Table provides, in part:
10 points - There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20 points- There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
In a report dated 7 April 2014, Professor Andrew Lloyd stated that Ms Hay’s chronic fatigue syndrome causes neurocognitive difficulties in that “she can concentrate on a cognitively-demanding task for 30 minutes only”. This raises the question of whether an impairment rating should be assigned under Table 7, which concerns brain function. Table 7 provides, in part:
10 points- There is a moderate functional impact resulting from a neurological or cognitive condition.
(1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(a) memory;
Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
(b) attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
(c) problem solving;
Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
(d) planning;
Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
(e) decision making;
Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.
(g) visuo-spatial function;
Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
(h) behavioural regulation;
Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
(j) self awareness.
Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
Ms Hay’s evidence
Ms Hay was born in 1983 and currently lives with her mother, who acts as her full-time carer. She suffers from chronic fatigue syndrome and depression. She previously received DSP from 2000 to 2007. During this period, she suffered severe allergic rhinosinusitis as well as chronic fatigue syndrome.
Ms Hay gave evidence that during the relevant period she was bed-ridden for most of the time and had been in that state for the previous 18 months. She rested in bed for up to 19 hours per day. She left her home to visit her doctor. She watched some television but was unable to read other than for very short periods.
Ms Hay’s last employment prior to the relevant period was as a Brand Ambassador. This work required her to attend a nearby store, but required minimal physical exertion. She worked approximately 14 hours per week between 14 May 2012 and 30 September 2012.[4]
Report of Dr Hiley, General Practitioner
Accompanying Ms Hay’s claim for the DSP was a Treating Doctor’s Report from Dr Hiley dated 11 February 2013. Dr Hiley diagnosed Ms Hay as suffering from chronic fatigue syndrome with a date of onset of 2000. She noted that Ms Hay suffered from symptoms of severe fatigue, insomnia and mood fluctuations. Furthermore, Dr Hiley noted that Ms Hay had been receiving treatment for her condition from a psychologist, Ms Draper, since 2012.
Dr Hiley provided a later report dated 18 March 2014 which related to Ms Hay’s condition at that time, ten months after the relevant period.
Job Capacity Assessment Report [5]
On 7 March 2013 (i.e. within the relevant period) Ms Hay attended a face-to-face Job Capacity Assessment. The author of the report recommended an impairment rating of 10 points in respect of the chronic fatigue syndrome on the basis that Ms Hay suffered “a moderate functional impact on activities requiring physical exertion or stamina.”
In the supporting reason summary it was reported that:
Client has experienced a chronic/recurrent course of symptoms since 2000, of variable intensity. Client remains susceptible to work pressure and relapses of her condition. She is able to undertake all ADL’s independently ie: self care. She is able to walk ‘around the block’ and utilise public transport when necessary. Assistance is provided by her mother for some activities ie –shopping, cleaning during exacerbations of extreme fatigue. Client reported wake sleep cycle is disrupted with usual waking hours ranging from 3-4 hours per day/night hours. The client stated physical exertion one day results in days of bed rest to rest to recouperate [sic].
Report of Ms Draper, Psychologist [6]
Ms Hay attended seven therapeutic sessions with Ms Draper between 19 November 2012 and 18 February 2013.
On 18 February 2013 Ms Draper reported, in part:
Janamba presented as a well groomed, bubbly individual who has been frustrated by the system. …She reportedly experiences difficulty with sleep and is often very fatigued. Janamba reports that if she pushes herself too far, she ends up collapsing in bed for a few days due to this exertion.
Report of Professor Lloyd, Consultant Infectious Diseases Physician
Ms Hay first consulted Professor Lloyd in September 2013.
In his report dated 7 April 2014, Professor Lloyd stated in part:
I have applied Table 1 (Functions requiring Physical Exertion and Stamina) and designated 10 points (moderate functional impact). I have also applied Table 7 (Brain Function) and designated 10 points (moderate functional impact).
Consideration of the evidence
I do not accept that Ms Hay’s recollection of her condition during the relevant period and for the previous 18 months is accurate. She attended CRS Australia on 8 April 2013 and 30 April 2013 on referral for a Vocational Rehabilitation program to assist her returning to part-time work.[7] She also attended for the same purpose on 2 October 2012 and 17 December 2012. Her previous part-time work, which was facilitated by CRS Australia, ended on 30 September 2012.[8] Ms Hay attended seven therapeutic sessions in the four months leading up to the relevant period.
On the basis of the reports of Dr Hiley and Ms Draper, the Job Capacity Assessment Report and the opinion of Professor Lloyd, I am satisfied that Ms Hay’s chronic fatigue syndrome should be accorded an impairment rating of 10 points in accordance with Table 1. Taking into account this evidence I am not satisfied that the impairment should be rated above 10 points.
The issue which remains in dispute is whether there should be an additional rating of 10 points under Table 7.
I have carefully considered the opinion of Professor Lloyd in this regard. In April 2014 he reported that Ms Hay “can concentrate on a cognitively-demanding task for 30 minutes only.” [9] Professor Lloyd further reported that the chronic fatigue syndrome “has been present for more than a decade in a static but disabling pattern.” However, he did not indicate in his report how he assessed Ms Hay’s overall functional ability, particularly in view of her periods of employment and study, and her successful completion of a tertiary qualification. Professor Lloyd did not have the opportunity to assess Ms Hay during the relevant period.
In considering Professor Lloyd’s opinion I have taken into account the following provision of the Introduction to Table 7:
For neurological or cognitive conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
In her report dated 11 February 2013, which accompanied Ms Hay’s application for the DSP, Dr Hiley provided the following detail on how the condition and its treatment currently impacted on Ms Hay’s ability to function:
Limited endurance due to chronic fatigue, made worse with any exertion, may sleep for many hours with no energy.
Dr Hiley made no reference to an impact on Ms Hay’s cognitive function at that time even though the application form asked for specific reference to, and consideration of, the impacts on “neurological function/cognitive function (e.g. concentrating, decision making, memory, problem solving)”.
Further, the Job Capacity Assessment Report issued after an assessment carried out on 7 March 2013 made no reference to an impact on cognitive function. No rating was given under Table 7.
Having considered the evidence to which I have referred, I am not satisfied that Ms Hay’s chronic fatigue syndrome can be assigned an impairment rating under Table 7.
Depression
In order for this condition to be considered fully diagnosed, there must be a diagnosis from an appropriately qualified medical practitioner, which includes a psychiatrist. Where the diagnosis has not been made by a psychiatrist, the diagnosis must be made with evidence from a clinical psychologist.
Accompanying Ms Hay’s claim for the DSP was a report from Ms Draper, Psychologist, dated 18 February 2013.[10] Ms Draper does not provide a diagnosis of depression herself, however, noted that Ms Hay had attended seven sessions of therapy at Uplift Psychological Services between November 2012 and February 2013. Ms Draper is not a clinical psychologist.
A further report from Dr Hiley, dated 29 January 2014, provides a date of onset for depression of November 2000.[11] Dr Hiley noted that the diagnosis was supported by the opinion of Ms Horsfield, who is a clinical psychologist. Ms Hay has been treated by Ms Horsfield at the UNSW Fatigue Clinic for mood disorder management from 9 January 2014. This is well outside the relevant period.
At the time of Ms Hay’s claim, and in the 13 weeks thereafter, there was no evidence from Ms Horsfield or another appropriately qualified psychiatrist or clinical psychologist to support a diagnosis of depression. Furthermore, there is insufficient evidence of treatment during the relevant period to suggest that the condition was fully treated or stabilised. In fact, the commencement of mood disorder management therapy after the relevant period suggests that the condition was not fully treated and stabilised at the relevant time. On this basis, an impairment rating cannot be assigned to Ms Hay’s depression.
CONTINUING INABILITY TO WORK
As I have decided that Ms Hay’s impairments do not warrant a combined rating of 20 or more impairment points, it is not necessary to consider whether she has a continuing inability to work
CONCLUSION
For the reasons stated, I am satisfied that the impairments suffered by Ms Hay rated a total of 10 points during the relevant period. On this basis, the decision to refuse her application for DSP will be affirmed.
It should be noted that this decision does not prevent Ms Hay making a further application for DSP. If she does so, under the law at present her eligibility will be assessed during the period of 13 weeks following her new application.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of
Deputy President J W Constance............................[sgd].............................................
Associate
Dated 3 November 2014
Date(s) of hearing 15 August 2014 Date final submissions received 29 August 2014 Applicant In person Solicitors for the Respondent D McLaren; Department of Human Services
[1] Exhibit R1 p.107
[2] See s.42 and clause 4 of Schedule 2 of the Administration Act.
[3] [2007] FCA 404, [1]
[4] Exhibit R1 p.133.
[5] Exhibit R1 p.135.
[6] Exhibit R1 p.134.
[7] Exhibit R1 p.298.
[8] Exhibit R1 p.133.
[9] Exhibit R1 p.293.
[10] Exhibit R1, p.134.
[11] Exhbit R1 p. 287.
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