JOLEAT YOUNAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 111

[2012] AATA 111 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/1065
Re	JOLEAT YOUNAN
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	M D Allen, Senior Member
Date	24 February 2012
Place	Sydney

The decision under review is set aside and in substitution the Tribunal decides that the Applicant be paid disability support pension as from 6 August 2010.

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

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY - application for disability support pension - whether incapacities are fully treated and stabilised - decision under review set aside

LEGISLATION

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

Social Security (Administration) Act 1999 (Cth) Sch 2

CASES

Secretary, Department of Family and Community Services v Michael (2000) 116 FCR 500

REASONS FOR DECISION

M D Allen, Senior Member

24 February 2012

1. By application made 23 March 2011 the Applicant sought review of a decision by the Social Security Appeals Tribunal (SSAT) that affirmed a prior determination that she was not entitled to payment of disability support pension (DSP).

2. The criteria for the grant of DSP are set out at s 94 of the Social Security Act 1991:

   (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

   (d) the person has turned 16; and

   (e) the person either:

   (i) is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A) is not an Australian resident; and

   (B) is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (f) the person is not qualified for disability support pension under section 94A.

   (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (a) 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

   (b) 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.

   (3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)  the availability to the person of a training activity; or

   (b)  the availability to the person of work in the person’s locally accessible labour market.

   (4)  A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

   (a)  is unlikely to need a program of support that:

   (i)  is designed to assist the person to prepare for, find or maintain work; and

   (ii)  is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

   (b)  is likely to need such a program of support provided occasionally; or

   (c)  is likely to need such a program of support that is not ongoing.

   (5)  In this section:

   training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

   (a)  education;

   (b)  pre‑vocational training;

   (c)  vocational training;

   (d)  vocational rehabilitation;

   (e)  work‑related training (including on‑the‑job training).

   work means work:

   (a)  that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b)  that exists in Australia, even if not within the person’s locally accessible labour market.

   Person not qualified in certain circumstances

   (6)  A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

3. The Impairment Tables referred to in para 94(1)(b) SSA are found in Schedule 1B to the said Act.  Paragraph 4 of the Introduction to the Tables states that for a rating to be assigned the condition must be a fully documented and diagnosed condition which has been investigated, treated and stabilised.

4. Paragraph 5 of the Introduction provides that for any condition to be assessed it must be permanent.  Paragraph 5 further states “… once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future”.

5. A significant limiting factor in assessing the Applicant’s entitlement to DSP is Schedule 2 of the Social Security (Administration) Act 1999 which provides in section 4 that the assessment of the degree of impairment is restricted to a period commencing on the day the claim is made and extending for a period of 13 weeks thereafter.  The result in this matter is that I must look at the Applicant’s degree of impairment in the period 6 August 2010 to 5 November 2010.  (I note the SSAT decision refers to a claim received on 23 July 2010.  The claim at T5 before me is noted as received on 6 August 2010 at Centrelink Fairfield.)

6. At the same time the Applicant lodged her claim with Centrelink she lodged a report from her treating General Practitioner (GP) Dr Menashi.  In that report Dr Menashi nominated the following conditions as impacting upon her ability to function, namely:

   (a)Chronic lower back pain

   (b)Chronic anxiety and adjustment disorder.

7. In his report Dr Menashi stated that the Applicant also suffered from recurring abdominal pain; skin allergy; and in October 2009 she had surgery to remove a tumour from her right breast.

8. The Applicant’s lumbar condition was reported upon by consultant rheumatologist Dr Rozario in a report to the Applicant’s GP dated 8 April 2010.  In that report Dr Rozario states that an MRI showed degenerative changes in the Applicant’s spine at L3/L4 and L4/L5 but added “the objective abnormalities are only minor”.

9. A physiotherapist’s report dated 15 February 2010 stated:

   “On our initial assessment, Ms Younan presented with the following:

   Restricted all neck and back ROM by 50%

   Painful Neck and Back with extensive Para-spinal muscle spasm.

   Difficulty with repetitive movements of Neck and Back along with decreased functional ability of all of her daily activities.

   …

   Her Back still very painful and tender along with decreased her functional tolerance to carry weights or with any repetitive movement.

   Ms Younan has very low functional ability, which restricts her ability to carry out her daily activities. She may need some assistance to help her in her daily activities.”

10. The SSAT stated at [21] of its decision:

    “The Tribunal accepted the evidence that Ms Younan has seen a number of specialists regarding her chronic pain and is continuing to see Dr Rozario, her rheumatologist, regarding her management.  She has had physiotherapy but found it increased her pain.  She may have steroid injections in the spine but the Tribunal considered it unlikely that this or other treatments will significantly alter her functioning within the next two years.  The Tribunal therefore decided that her chronic pain from osteoarthritis and lumbar spondylosis is a permanent condition within the meaning of the Act and can be rated under the Tables.”

    And in these proceedings the Respondent stated that the Applicant’s main symptoms from her back condition appeared to be general chronic pain more appropriately rated under Table 20 of the Impairment Tables (Miscellaneous Condition) than under Table 5 (Spinal Function).

11. At [31] of the Respondent’s Statement of Facts, Issues and Contentions the concession is made that:

    “Given Miss Younan’s description of her daily activities and Dr Rozario’s assessment of the condition, an impairment rating of TEN points appears to best match the reported loss of function.”

    I agree with this assessment.

12. Although the SSAT found that the Applicant’s chronic anxiety and adjustment disorder was a permanent condition it assessed it at a NIL rating.

13. The Respondent submitted that the Applicant’s anxiety state had not been fully treated and stabilised hence could not be assigned an impairment rating.

14. By report dated 16 July 2011 Dr Alhajali, psychiatrist, stated that the Applicant suffered from major depression, anxious personality traits and chronic pain.  He recommended that the Applicant commence anti-depressant medication and undergo a course of cognitive behavioural therapy.

15. The Applicant has been under the care of her general practitioner, Dr Menashi, since 2007.  In a report dated 8 February 2012 he stated:

    “This is to certify that Ms Younan has been suffering from depression illness she has been suffering for years and her conditions has not changed and is fully treated and stabilised.

    This condition cannot be considered as temporary as its been ongoing for more than 2 years.

    The change in the antidepressants is due because of the specialist review and also because she noted no change with Zoloft and also because of her gastric side effects and her abdominal pain she is trying to avoid any medication that causes her stomach upset in the last 4 years.”

16. In his report of August 2010 Dr Menashi stated that the Applicant’s anxiety state had a date of onset in 2008, and was being treated by counselling support and Zoloft (an antidepressant).

17. Notwithstanding the report of Dr Alhajali, I am satisfied that the Applicant’s anxiety and depression had been fully diagnosed, investigated and treated by Dr Menashi.  There is a question regarding cognitive behaviour therapy.  Dr Menashi says in his report that the Applicant did undergo that treatment but the Applicant says she did not.

18. Notwithstanding this discrepancy, what is clear from Dr Menashi’s latest report is that he is managing the Applicant’s condition.  The requirement in [6] of the Introduction to the Impairment Tables is that any further reasonable medical treatment is likely to lead to significant functional improvement.  The Applicant’s treating General Practitioner does not suggest that there is any such treatment.

19. As I am satisfied that the Applicant’s psychiatric illness is permanent, and is being appropriately treated, the condition needs to be assessed.  Table 6 of the Impairment Table allocates a rating of 10 to the following symptoms, namely:

    “Moderate and regular symptoms and generally functioning with some difficulty.  (eg. Noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships).  May have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work. (eg. Short periods of absence from work).”

20. Dr Alhajali’s report of 16 July 2011 noted the following symptoms:

    “She gives history of depression in the last 12 months.  Her symptoms gradually evolved over the last 12 months.  She has been feeling depressed in her mood, unhappy, with poor sleep and poor appetite, she reports losing significant weight since, her clothes have become wide on her.  She also has been lacking motivation, unable to do her house work and looking after her mother as she used to do.  She feels tired and fatigued and has been complaining of various aches and pains in her body.  She has been more withdrawn and isolative, not wanting to mix or socialise with others.  She reports gradual decline in her memory and concentration.  She has not been able to cope with stress as before and on occasions she reports hearing her late father’s voice talking to her which helps her to calm down.  On occasions she feels life is too difficult and wish to die, she denies any suicidal thoughts.  She also denies psychotic or manic symptoms.”

21. The Applicant stated that she had become forgetful and was always fearful.  When mixing with people she gets nervous and shouts at them.  If she sees people she just wants them to go and if she goes out she wants to come home quickly.

22. The report of Dr Alhajali is outside the period of 13 weeks mandated by Schedule 2 to the Administration Act, however the symptoms he records relate to “the last 12 months”. Dr Menashi in his original report to the Respondent also referred to lethargy, irritability and insomnia. Given the medical reports and the Applicant’s evidence, I am satisfied that a rating of TEN is applicable to the Applicant’s psychiatric illness.

23. As the Applicant’s psychiatric illness and chronic pain together give a rating of 20 points, I must consider whether the Applicant had a current inability to work at the relevant dates.

24. In making this assessment I cannot take into account other medical conditions affecting the Applicant, and the part-incapacity from those conditions would play in assessing her ability to work.  See Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500 at 501 and 507.

25. The most recent job capacity assessment of the Applicant was conducted on 11 October 2011.  At that assessment the assessor considered that the Applicant’s psychiatric illness was not permanent.  As discussed above I have found that it is.

26. Notwithstanding the fact that the psychiatric illness was found not to be permanent (and hence unable to be assessed), the job capacity assessor determined that it would be difficult for the Applicant to maintain full time employment.

27. A job capacity assessment conducted on 10 August 2010 found that the Applicant had a temporary reduced work capacity of 0 to 7 hours per week.  It was thought by the assessor then that that degree of incapacity was temporary until she had counselling.  The Applicant’s work capacity should then increase to 8-14 hours per week for the next two years.

28. The latest report of Dr Menashi refers to the Applicant’s psychiatric illness and states that it is fully treated and stabilised.  In particular he states “We have tried everything for the last 5 years without benefit, she is impaired by her physical and mental conditions.”

29. I am satisfied that the assessments provided by the work capacity assessor are unduly optimistic. Events have shown that the Applicant’s degree of impairment as at August 2010, when the first assessment was done, has not improved, and there is no evidence to suggest the Applicant will improve in the future. I am satisfied that she was at 6 August 2010 incapable of working more than 7 hours a week, and that the said impairments would have prevented her from any work as defined by Ss 94(5) SSA within the next two years from that date. I am further satisfied, given the reports before me, that given the impairment occasioned by her psychiatric illness she would be incapable of undertaking any training activity either in August 2010 or an any future time, and if she were forced to undertake such training it would be a total failure and it would not enable her to work, either within two years or at all.

30. The degree and duration of the Applicant’s impairment is such that she qualifies for a DSP.  The decision under review is set aside and the Tribunal substitutes its own decision namely that the Applicant is to be paid DSP as and from 6 August 2010.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of     M D Allen, Senior Member.

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

Associate

Dated  24 February 2012

Date of hearing	14 February 2012
Applicant	In person
Representative for the Respondent	Centrelink Legal Services