Kanawati and Secretary, Department of Social Services (Social services second review)

[2020] AATA 3135

Kanawati and Secretary, Department of Social Services (Social services second review) [2020] AATA 3135 (26 August 2020)

Division:GENERAL DIVISION

File Number(s):      2020/2510

Re:Halla Kanawati

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:26 August 2020

Place:Sydney

The reviewable decision dated 7 April 2020, rejecting the Applicant’s claim for disability support pension, is affirmed.

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

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether mental health condition permanent – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

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

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr I Alexander, Senior Member

26 August 2020

BACKGROUND

1. Ms Kanawati, who is now 51 years old, provides constant care for her elderly father and is currently receiving income support in the form of Carer Payment and Carer Allowance.

2. On 4 November 2019, Ms Kanawati lodged a claim for Disability Support Pension (DSP).

3. The claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not 20 points or more under the Impairment Tables.

4. In a decision dated 7 April 2020, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found Ms Kanawati had a total impairment rating of zero points and, therefore, did not meet the requirements of s 94(1)(b) of the Act and did not qualify for DSP.

5. In these proceedings Ms Kanawati, who is self-represented, seeks review of the decision of the AAT1.

6. In view of the temporary changes with regard to the suspension of face-to-face Tribunal hearings during the COVID-19 crisis, both parties attended the hearing by telephone.

   ISSUES

7. In order to qualify for DSP, a person must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (Administration Act). That is, Ms Kanawati must satisfy the requirements between 4 November 2019 and 3 February 2020 (the qualification period).

8. Section 94(1) of the Act provides that a person is qualified for DSP if, relevantly:

   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)    …

   (i) the person has a continuing inability to work;

   (ii) …

   d)    the person has turned 16; and… 

   …

9. There is no dispute that, during the qualification period, Ms Kanawati suffered a medical condition that caused some functional impairment and, therefore, she satisfied paragraph 94(1)(a) of the Act.

10. Ms Kanawati claimed that she suffered a mental health condition which has been diagnosed as “Persistent Depressive Disorder Social Phobia and Panic Disorder with Agoraphobia”.

11. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “‘permanent” (paragraph 6(3)(a)).

12. For the purposes of paragraph 6(3)(a), a condition is “permanent” if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than two years (paragraph 6(4)(d)).

13. The introduction to each relevant Table requires that ”there must be corroborating evidence of the person’s impairment” and that “self-report of symptoms alone is insufficient”.

14. Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

15. The Respondent concedes and the Tribunal accepts that, during the qualification period. Ms Kanawati had a mental health condition that was fully diagnosed.

16. However, the Respondent contends that, during the qualification period, Ms Kanawati’s mental health condition was not fully treated and not fully stabilised and, therefore, not “permanent” for the purposes of the Impairment Determination.

17. Therefore, the determinative issue in this matter is whether, during the qualification period, Ms Kanawati suffered a “permanent” impairment of 20 points or more under Impairment Table 5 (Mental Health Function) and, if so, whether she had a continuing inability to work.

    Mental Health condition

18. In  a medical certificate dated 23 September 2019, Dr Yu-Yu Tin, general practitioner, stated that Ms Kanawati ”has been suffering from major Depression and Anxiety disorder”.

19. In a report dated 2 February 2020, Ms Breen, clinical psychologist, stated:

    In December 2019, Ms Kanawati was referred to me by her General Practitioner for treatment. To date she has attended two sessions with me. She is currently receiving Cognitive Behavioural Therapy incorporating mindfulness meditation. She has another appointment booked.

    Ms Kanawati describes symptoms consistent with a Persistent Depressive Disorder, Social Phobia and Panic Disorder with Agoraphobia…Ms Kanawati has had severe symptoms for six years with further deterioration in her symptoms over the past six months She has had Social Phobia with avoidance since she was a young child.

    …

    Ms Kanawati is not on pharmacotherapy for her mental health issues. She stated she has trialled Lovan and Cymbalta in the past. In the past she attended a psychologist for a couple of appointments. Her prognosis is unclear due to her only having attended two appointments…

    [emphasis added]

20. In a letter dated 17 March 2020, Ms Breen stated, inter alia, as follows:

    Ms Kanawati continues to attend sessions with me. She has attended five sessions under a mental health plan. Ms Kanawati follows up with skills covered. Her presentation is severe, however, and so no progress has been observed…Ms Kanawati is unlikely to demonstrate much improvement over time…Fortunately due to her dedication to her father, she has been able to continue to provide care to him as part of her carers role.

21. In a letter to Dr Lam, general practitioner, dated 27 March 2020, Ms Breen stated:

    Ms Kanawati has attended five sessions. She will be attending your practice today for a mental health review. I hope you will consider it appropriate to approve further sessions under a mental health plan…

22. In a letter dated 4 August 2020, Ms Breen stated, inter alia:

    Ms Kanawati has attended seven sessions with me between December 2019 and today. At her appointment today she reported no improvement in her mental state since I last saw her in April 2020. She has not followed up with graded exposure or behaviour activation tasks set during sessions. Her attendance has not been regular which has a significant impact on the efficacy of psychological therapy. This poor attendance is likely to be related to the severity of her symptoms.

    CONSIDERATION

23. The Tribunal accepts that Ms Kanawati has suffered significant mental health symptoms for many years and that her symptoms had increased in the six months prior to her application for DSP in November 2019.

24. The difficulty for Ms Kanawati is that her mental health condition was not formally diagnosed, by an endorsed clinical psychologist, until December 2019, during the qualification period.

25. Ms Breen’s report of 2 February 2020 clearly demonstrates that, prior to December 2019, Ms Kanawati had not had any consistent, reasonable treatment for her symptoms.

26. The Tribunal notes Ms Breen’s subsequent assessments that indicate Ms Kanawati’s symptoms have not improved with psychological therapy and that she appears to continue to suffer significant functional impairment.

27. However, the Tribunal is required to  “look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks)”.[1]

    [1] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at 34

28. The evidence before the Tribunal demonstrates that reasonable treatment was not started until her confirmed diagnosis in December 2019, during the qualification period, and that by the end of the qualification period, she had attended for only two sessions with further treatment being planned.

29. I am satisfied that the available evidence clearly points to a conclusion that, during the qualification period, Ms Kanawati’s mental health condition was not fully treated and fully stabilised and, therefore, the condition was not “permanent” for the purposes of the Impairment Determination.

30. Therefore, a rating under Impairment Table 5 cannot be assigned. This means that, during the qualification period, Ms Kanawati did not satisfy section 94(1)(b) of the Act and did not qualify for DSP. As the qualification criteria for DSP are cumulative, it is not necessary to consider whether Ms Kanawati had a continuing inability to work during the qualification period.

    DECISION

31. For the reasons set out above, the Tribunal is satisfied that, during the qualification period, Ms Kanawati did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

32. The decision under review is affirmed.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 26 August 2020

Date(s) of hearing:	13 August 2020
Applicant:	In person
Solicitors for the Respondent:	Services Australia