Janice Edwards and Secretary, Department of Social Services

[2014] AATA 698

[2014] AATA 698

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4846
Re	Janice Edwards
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D Letcher, QC, Senior Member
Date	25 September 2014
Place	Sydney

The decision under review is set aside and in substitution the Tribunal decides that the Applicant was qualified for disability support pension with start date 16 November 2012.

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

Mr D Letcher, QC, Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – whether applicant had a continuing inability to work – decision set aside

LEGISLATION

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 42; Sch 2 cl 4

CASES

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Lawson and Secretary, Department of Social Services (AAT 11767, 11 April 1997)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr D Letcher, QC, Senior Member

25 September 2014

1. The applicant notified her intention to lodge a claim for Disability Support pension (“DSP”) on 16 November 2012. Her claim, lodged on 19 November 2012, was rejected by Centrelink, an Authorised Review Officer and the Social Security Appeals Tribunal (“SSAT”). She seeks review of the SSAT decision.

   LEGAL BACKGROUND

2. The applicant’s condition was assessed by both Centrelink and the SSAT in accordance with the criteria set out in s 94 of the Social Security Act1991 (“the Act”) and the Impairment Tables found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”). Under this criteria the applicant must establish an impairment rating of 20 points or more, as well as a continuing inability to work (“CITW”), as a result of health conditions existing at the date of notice of intention to claim, or during the following 13 week period through to 15 February 2013 (“the relevant period”): s 42 and Sch 2 of the Social Security (Administration) Act 1999.

3. Unlike many other reviews undertaken by the Administrative Appeals Tribunal (“the AAT”), this tribunal is not able to undertake a hearing based upon the state of the applicant’s health conditions at the hearing date. The Applicant’s state of disability at the time of the hearing is not the issue. Under the Social Security (Administration) Act1999 the role of the AAT is to decide whether the applicant establishes a case for a pension only as at the time of the notice to claim DSP or in the 13 week period thereafter: Re Lawson and Secretary, Department of Social Services (AAT 11767, 11 April 1997) and Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922. That is, the applicant’s health conditions as assessed after 15 February 2013 are irrelevant to these proceedings and cannot be considered by the Tribunal except in so far as they throw light on the conditions during the relevant period.

4. For an impairment rating to be assigned, the condition causing the impairment must be considered “permanent” as defined in the Impairment Tables, meaning each and every of the following:

   (a)fully diagnosed by a health practitioner qualified to make such a diagnosis;

   (b)fully treated – meaning given all reasonable treatment which might be of some effect;

   (c)unlikely to improve within the next two years (“stabilised”); and

   (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years

5. Unless a health condition satisfies each of the criteria (a), (b), (c) and (d), it cannot be given an impairment rating under the Impairment Tables.

6. In deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:

   (a)whether there is authoritative diagnosis and corroborating evidence of the condition;

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next two years.

7. In deciding whether a condition is stabilised, the Tribunal must consider whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years that would enable the person to undertake work in the next two years.

8. In order to establish a CITW where the person’s impairment is not a severe impairment, the Tribunal must be satisfied that the applicant has actively participated in a “Program of Support”, and the impairment is of itself sufficient to prevent the person from doing any work or training activity independently of a program of support within the next two years.

9. However, a CITW assessor is required to disregard the effect of any impairment that has not been assigned a rating. That is, unless a condition is “permanent” (as defined above), it will not be taken into account when assessing CITW.

   FACTUAL BACKGROUND

10. The applicant made a further DSP application with additional evidence on 3 March 2014 and that application was accepted. Consequently, the effect of a successful review would be payment of the appropriate amount (less any other benefit received) for the period 16 November 2012 to 2 March 2014.

11. As noted above, evidence as to the applicant’s condition in 2014 is relevant in this application only insofar as it throws light on her condition as it was during the relevant period 16 November 2012 – 15 February 2013. The applicant and medical witness were well aware of this distinction and gave their evidence accordingly.

12. The applicant is a 49 year old mother of two children separated from her partner and living in a country centre of New South Wales. The applicant originally claimed disabilities of “back pain injury” and “depression” and in the course of a job capacity assessment a loss of function of her right leg was noted. The applicant believed that the leg problem affected her back although assessors thought that the back pain radiated into the leg. In any event, prior decision-makers assessed the leg difficulty as permanent and assigned it an impairment rating of 5 points. The respondent did not accept that view before the Tribunal. The applicant gave evidence of extreme difficulty climbing stairs, standing for more than 10 minutes, shopping and overall she was unable to move freely and effectively by reason of pain and restriction in her right leg. I believe a proper assessment leads to a rating of 5 points under Table 3 for lower limb function.

13. In 2011 the applicant suffered a back injury at work and all decision-makers (and the respondent before this Tribunal) agreed that her lower back disability was “permanent” within the meaning of the Act and it should be assigned an impairment rating of 10 points under Table 1 for functions requiring physical exertion and stamina.

14. As to the claim in respect of depression, the application was supported by a medical report of the applicant’s general practitioner, Dr Alam, noting “Anxiety and Depression” with a date of onset of 24 October 2012 and symptoms of “sleep problem, tiredness, anxious, financial issues”. He noted a history of “stress & anxiety – separated from partner, children don’t talk to her, unable to see grand children – sad, depressed” and issues with concentration and tiredness. Her treatment at the time was a drug “Pristiq – antidepressant” and “counselling”. His opinion was that the current impact of the condition was expected to last for more than 24 months and the future effect on the applicant’s ability to function was uncertain. It was Dr Alam who prescribed the medication and conducted the counselling.

15. The applicant gave evidence to the Tribunal that at the relevant time she was “just depressed, not able to get out and do anything. Lucky I had family around me at that time…”. She was unable to “read a book for a couple of minutes, can’t concentrate on anything … makes you wild and depressed …”. She was cross-examined directly on the descriptors set out in Table 5 - Mental Health Function. I was impressed by her responses.

16. As to “(a) self care and independent living”, she volunteered that she had been fostering a child but this turned out to be a 14 year old nephew who actually helped her, she “didn’t cook much, sometimes I’d just have a coke”, her mother and sister “came and did things” and then she moved in with her daughter. I thought this showed a very significant deficit.

17. As to “(b) social/recreational activities and travel” the applicant said that she had gone to the “badge draw” at the local club with her mother or sister once or more a week but this appeared to be her only social outing and her shopping was restricted by her physical problems. I thought she fell clearly within the subparagraph (b) example of “travels alone only in familiar areas (such as the local shops or other familiar venues).”

18. Subparagraph “(c) interpersonal relationships” includes examples of “limited social contacts” and “difficulty interacting with other people”. This applicant was at the time awaiting trial on a serious charge involving an alleged knife assault on her estranged partner (now acquitted), was not on speaking terms with her children and she was not permitted to see her grandchildren. Whatever the rights and wrongs of these situations they certainly point to grave multiple interpersonal difficulties.

19. Subparagraph “(d) concentration and task completion” – Dr Alam noted “issues with concentration” in his report and the applicant said she could not concentrate enough to read a book for 10 minutes.

20. Subparagraph “(e) behaviour, planning and decision-making” – the applicant described herself as “wild and depressed”, “not able to get out and do anything” and this picture was not affected by cross-examination.

21. Subparagraph “(f) work/training capacity” – this applicant had engaged in community activities, an educational course and fulltime employment in 2011 but quite clearly she was unable to do any of that by November 2012.

22. It is my view that the applicant satisfied each of the criteria for a “severe functional impact on activities involving mental health function” resulting in an impairment rating of 20 points under Table 5. I note that the requirement for 20 points is only “severe difficulties with most of the following” (my added emphasis) and I have found that she had severe difficulties with all of the criteria which followed.

23. Dr Sinha, consultant psychiatrist, examined the applicant on 15 April 2013 and diagnosed Adjustment Disorder with depressed mood and alcohol use and chronic pain. That examination was outside the relevant period but Dr Sinha was asked whether he was able to express an opinion on the balance of probabilities as to the applicant’s condition in the relevant period. He said that he could and that his opinion was that her condition was “more severe in the earlier time”. He said that the Pristiq medication in that period and the counselling was unlikely to change her condition for the better in the next one or two years. In my view, this is evidence that, at the relevant time, the applicant’s mental health condition was fully diagnosed, fully treated and stabilised. The fact that after the relevant period the brand of medication was changed and the counselling was continued by a psychologist does not alter that conclusion.

    FINDINGS AND CONCLUSIONS

24. The SSAT rejected the applicant’s first claim on the basis that her mental health condition had not been fully treated or stabilised in the relevant period. That decision was made on 26 June 2013 and it relied upon the letter of Dr Sinha of 15 April 2013, which was written well outside the relevant period. The SSAT should not have adopted that approach. It is the condition of the applicant during the relevant period of 16 November 2012 to 15 February 2013 and the opinions held on the basis of the facts established at that time which are the relevant factors. In fact, in his evidence to the Tribunal Dr Sinha said that he agreed with Dr Alam’s view expressed in November 2012 that even with the full treatment offered the applicant’s condition was not likely to improve in the next one or two years.

25. I find that at the relevant time the applicant had health conditions impacting severely on her functioning that were able to be assigned an impairment rating. Most importantly, the applicant is to be assigned an impairment rating of 20 points under Table 5, 10 points under Table 1 and 5 points under Table 3. The assignment of 20 points under Table 5 means that the applicant’s impairment is a “severe impairment” under s 94(3B) of the Act and she is not required to prove active participation in a program of support under s 94(3C). During the relevant period, she was unable to participate in any work or program of preparation for work. It was the opinion of Dr Alam (expressed in his report of 16 November 2012) that the impact of her mental health condition would persist for more than 24 months. That view has been borne out by the later opinion of Dr Sinha.

26. My decision is that the reviewable decision of the Social Security Appeals Tribunal dated 4 July 2013 should be set aside. The correct decision is that the applicant be granted Disability Support Pension with start date 16 November 2012.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher, QC, Senior Member

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

Associate

Dated 25 September 2014

Date of hearing	26 August 2014
Applicant	Self-represented, appeared by telephone
Solicitor for the Respondent	Mr D McLaren, Department of Human Services