Jennifer Mansell and Secretary, Department of Social Services
[2014] AATA 230
•17 March 2014
[2014] AATA 230
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3618
Re
Jennifer Mansell
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date of decision 17 March 2014 Date of written reasons 17 April 2014 Place Melbourne For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the reviewable decision.
............[sgd].....................................
Miss E A Shanahan, Member
SOCIAL SECURITY – disability support pension (DSP) – multiple medical conditions – none fully treated and stabilised – no impairment rating raised – most conditions attributed to the treatment of Hepatitis C infection – expected improvement on conclusion of treatment – decision affirmed
Legislation
Social Security Act 1991 sections 94(1), 94(2) and 94(3B)
REASONS FOR DECISION
Miss E A Shanahan, Member
17 April 2014
The hearing was conducted on 17 March 2014 by telephone, as Ms Mansell was not well enough to travel to the Tribunal. Ms Mansell was self-represented and Ms Randall-Smith appeared for the Secretary, Department of Social Services (the Respondent). The Tribunal was provided with the documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).
BACKGROUND TO THE APPLICATION
Ms Mansell was suffering from a number of medical conditions (set out in detail below). She lodged a claim for disability support pension (DSP) with Centrelink on 24 January 2013. The claim was rejected by the primary decision maker on 12 March 2013. Ms Mansell sought a review by an authorised review officer (ARO). On 1 May 2013 the ARO affirmed the decision.
Ms Mansell sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 20 June 2013 the SSAT affirmed the ARO’s decision. The SSAT determined that all of Ms Mansell’s conditions were not fully treated or stabilised and the vast majority of the medical conditions based on the report from the Eastern Health Service (T13) were expected to resolve on cessation of Interferon. The SSAT noted that Ms Mansell had by then ceased Interferon but had not experienced any improvement in her symptomatology.
Ms Mansell was suffering from the following medical conditions:
·Hepatitis C infection/positive antigenicity with associated fatigue;
·Depression, diagnosed and treatment commenced on 3 December 2012 by Dr Babb, psychiatrist;
·Thyroiditis presenting as thyrotoxicosis and diagnosed on 1 February 2013 (T8); and
·Pilonidal sinus requiring long term drainage, diagnosed in September 2012, with associated proctalgia (T13).
Ms Mansell had commenced anti-viral treatment for her Hepatitis C status in August 2012. She was receiving Interferon and Ribavirin. During 2013 she was admitted to hospital on numerous occasions. She estimates she spent 100 days in hospital during that year. She has to date had five admissions to hospital in 2014. Her ill-health prevented her from continuing to work in a call centre.
Centrelink had two job capacity assessments (JCA) performed in 2013. The first of these, on 6 March 2013 (T15), considered only the Hepatitis C infection and depression. The Hepatitis C infection was considered to be permanent and the depression temporary. The second JCA, on 9 April 2013 (T18), considered the Hepatitis C infection (which was deemed permanent), her depression (also deemed permanent) and thyrotoxicosis or hyperthyroidism (which was deemed temporary). The job capacity assessors considered none of these conditions had been fully treated and stabilised. The second JCA stated that the depression and the thyrotoxicosis were most probably due to the treatment of the Hepatitis C with Interferon because those conditions are well-known adverse reactions to such treatment. Therefore, those conditions should improve and possibly resolve on cessation or completion of the course of Interferon. The course was due to be completed in August 2013. The job capacity assessors concluded that as none of the conditions were fully treated or stabilised they did not attract an impairment rating under s 94 of the Social Security Act 1991 (the Act).
The JCAs also assessed Ms Mansell as having a baseline work capacity of 23-29 hours per week, increasing to 30 or more hours within two years, with intervention.
Ms Mansell’s application for review by the Social Security Appeals Tribunal (SSAT) was unsuccessful as the SSAT determined that all conditions were not fully treated or stabilised and the majority of the medical conditions, based on the report from the Eastern Health Service (T13), were expected to resolve on cessation of Interferon. The SSAT decision of 20 June 2013 noted that Ms Mansell had by then ceased Interferon but had not experienced any improvement in her symptomatology.
In her evidence to this Tribunal, Ms Mansell confirmed that she had completed her course of Interferon but had not, in the ensuing eight and a half months, experienced any improvement in her thyroid function; her bowel symptoms included the pilonidal sinus or her depression. She reported that her thyroid function fluctuated between hyper‑activity and hypo‑activity; her antidepressant medication dosage had been increased; and the pilonidal sinus drain tube was still in situ some 18 months after its original insertion. To date in 2014, she has had five surgical procedures in the form of removal of large bowel polyps, replacement of the pilonidal sinus drain tube and has undergone a large bowel mucosal biopsy which had resulted in the diagnosis of Crohn’s disease. Ms Mansell informed the Tribunal that she had a strong family history of Graves’ disease, which is thyrotoxicosis associated with exophthalmia.
Ms Mansell remains severely symptomatic and unable to work.
LEGISLATION
The qualifying criteria for DSP are provided by s 94 of the Act:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and ...
Section 94(2) also requires a continuing inability to work stating:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(bin all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Section 94(3B) defines severe impairment as:
Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. ...
There is also active participation in a program of support which is not relevant in this instance.
TRIBUNAL’S DELIBERATIONS
It is clear to the Tribunal, and the respondent agrees, that Ms Mansell meets the requirements of s 94(1)(a) of the Act. However, based on the then current expert medical opinion, the majority of these conditions were considered to be side-effects or adverse reactions to the treatment of Ms Mansell’s Hepatitis C with Interferon. The medical expectation was that these conditions, namely thyroiditis, the depression and the proctalgia and any underlying proctitis would resolve or markedly improve on cessation of Interferon. This was the opinion held during the relevant period of Ms Mansell’s application for DSP, in January 2013 and for the following 13 weeks which ended in April 2013.
Based on the evidence then available to the Secretary and the SSAT, Ms Mansell did not meet the qualifying criteria for DSP in the period under review. The Tribunal agrees.
The Tribunal suggested to Ms Mansell that she could lodge a further application for DSP. She informed the Tribunal that she had done so and that approximately three weeks ago her application had been successful and she is now in receipt of the DSP.
The Tribunal affirms the decision under review.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member .............[sgd]...............................
Associate
Dated 17 April 2014
Date of hearing 17 March 2014 Applicant By telephone Solicitor for the Respondent Ms Julia Randall-Smith, Australian Government Solicitor
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