JULIE VELLA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 265

[2013] AATA 265  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5557
Re	JULIE VELLA
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	1 May 2013
Place	Brisbane

The Tribunal affirms the decision under review.

............................[Sgd]............................................             Ms Lee Cross, District Registrar

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Conditions not fully diagnosed – No impairment rating able to be allocated – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 4, Sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr M Denovan, Member

INTRODUCTION

1. The applicant, Ms Julie Vella, suffers from anxiety and depression with panic attacks. On 27 July 2012, Ms Vella enquired, by telephone, about her eligibility for disability support pension (“DSP”). On 3 August 2012, she lodged an application for DSP. The respondent rejected the claim.

2. On 10 October 2012, an authorised review officer affirmed the decision, as did the Social Security Appeals Tribunal on 12 November 2012.

3. The application for review of the decision by the Administrative Appeals Tribunal was lodged on 7 December 2012.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

4. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for disability support pension. Insofar as it is relevant for present purposes, s 94 of the Act (as it appeared at the relevant date) provides that the applicant:

   ·must have a physical, intellectual or psychiatric impairment;

   ·her impairment must be of 20 points or more under the Impairment Tables;[1] and

   ·she must have a continuing inability to work.

   [1] See Social Security Act 1991 (Cth), s 23, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.

5. Under sch 2, cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date. For the applicant’s claim for DSP, that period is from 27 July 2012 to 26 October 2012.

6. Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), which was made by the Minister pursuant to s 26(1) of the Act on 6 December 2011, it is necessary to determine whether Ms Vella’s condition or conditions can be regarded as being permanent and the impairment resulting from the condition/s is likely to persist for more than two years.

7. Ms Forsyth, for the respondent, contends depression and anxiety cannot be considered permanent conditions because they have not been diagnosed by either a clinical psychologist or a psychiatrist. Further, this condition has not been fully treated during the 13 week relevant period.

8. A condition is permanent if it has been fully diagnosed, treated and stabilised and is likely to persist for more than two years.[2] 

   [2] See cl 6(4) of the Determination.

9. In deciding whether a condition has been fully diagnosed and fully treated, the following is to be considered:[3]

   (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.

   [3] See cl 6(5) of the Determination.

10. A condition is  fully stabilised if:[4]

    (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 treatment.

    [4] See cl 6(6) of the Determination.

11. The issues that I must determine are:

    ·what, if any, physical, intellectual or psychiatric impairments Ms Vella has;

    ·whether all or any of those conditions are permanent, and if so what ratings they should be allocated; and

    ·        if she has 20 impairment points or more, whether she has a continuing      inability to work.

    APPLICANT’S CASE

12. Ms Vella ran a health food shop for four years, located in Queensland. It was financially successful, closing down when it was bought out in 2011. Ms Vella was advised to see a doctor when her business closed to discuss depression as it was thought that she might be at risk of mental health problems because of her change in circumstances. 

13. Ms Vella moved to Melbourne because she thought she would have more employment opportunities there. She was from Melbourne and has family living there. About six months after living there she saw a doctor because she was feeling down and felt depressed. The doctor opined her depression and anxiety were related to a cosmetic procedure; however Ms Vella believes that was only part of the problem. She feels the experience with EACH Employment Services was exacerbating her depression and anxiety.

14. Ms Vella was referred to a medical centre for counselling. Unfortunately, she did not get the same counsellor for any length of time. She had seven sessions of counselling, provided by three different counsellors. No reports are available by any of those providers. Ms Vella said that her doctor referred her to a psychiatrist; however she rang the clinic and was told by either the nurse or receptionist that the psychiatrist would keep her on the same mediation that her GP had prescribed. Ms Vella decided there was no point in attending the psychiatrist and so did not follow through with the referral.

15. Ms Vella found two jobs whilst in Melbourne. Both jobs where in retail. The first was selling clothing, with Ms Vella staying in the position for two weeks. The second was a part-time job selling jewellery; Ms Vella stayed for about six weeks. Ms Vella found it stressful as she was rung on her phone by the employment agency, which wanted to send other people to apply for positions at the same stores. She felt harassed as she was repeatedly rung and asked about how she found the jobs and whether other positions were available. She was aware that other people were applying for positions in the same shops. She also felt that too much was expected of her, perhaps because the employers knew that she had previously run her own business.[5]

    [5] See Exhibit 2.

16. Ms Vella returned to Queensland and now lives with her 28-year-old daughter. Her current general practitioner, Dr Pascoe, has referred her to a psychiatrist, Dr B Kann. Ms Vella has not yet made an appointment because she has not enough money to pay for the first consultation fees. Ms Vella was uncertain when she would be in a position to be able to make this appointment, although she said she would definitely go and see Dr Kann because her mental health had deteriorated and she needed to see a psychiatrist. Ms Vella said she expected she would go in the next month. Dr Pascoe has commenced her on an antidepressant for panic attacks, citalopram and temazepam, the same medications he says the psychiatrist would prescribe her. Dr Pascoe told her that she would remain on medications for 18 to 24 months and it would take her the same amount of time to get better. Ms Vella asked Dr Pascoe about seeing a psychologist; however he told her that there was no need in addition to the referral to the psychiatrist as if she wanted to talk with someone she could talk to him.

17. Ms Vella has a driver’s licence; however she told me that for the last six months she has not driven due to a lack of confidence associated with her anxiety.

    CONSIDERATION

18. Pursuant to the Introduction to Table 5 of the impairment tables contained in the Determination in relation to a mental health condition, the diagnosis, if made by a general practitioner, must be done with evidence from a clinical psychologist. Alternatively, a psychiatrist can make the diagnosis.

19. There are two medical reports supporting Ms Vella’s application for DSP, both from Dr Mohsin, dated 2 August 2012[6] and 23 August 2012,[7] respectively. In both reports Dr Mohsin states a diagnosis of anxiety and depression is confirmed. 

    [6] See Exhibit 1, T-document 8, pp. 32-39, esp. p. 33.

    [7] See Exhibit 1, T-document 14, pp. 53-60, esp. p. 54.

20. Unfortunately, Ms Vella does not recall the names of any of the psychologists who treated her in Melbourne, so we have no way of knowing whether any of them are clinical psychologists. Even if one or more of them are, it would be necessary to have a report confirming that at least one of them agreed with the diagnosis provided by Dr Mohsin before it could be said that the condition has been fully diagnosed. As Ms Vella’s depression and anxiety has not been fully diagnosed during the required 13 week period pursuant to the legislative requirements, then the condition cannot be regarded as permanent and an impairment rating cannot be given.

    DECISION

21. The decision under review is affirmed.

I certify that the preceding  21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

......................[Sgd]................................................

Associate

Dated 1 May 2013  

Date of hearing	17 April 2013
Applicant	By telephone
Solicitors for the Respondent	Ms Donna Smith, departmental advocate, by telephone