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

[2016] AATA 468

Kandasamy and Secretary, Department of Social Services (Social services second review) [2016] AATA 468 (4 July 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4583
Re	Sivagowre Kandasamy
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	4 July 2016
Place	Melbourne

The Tribunal affirms the decision under review. Mrs Kandasamy does not meet the eligibility criteria for the Disability Support Pension.

……………[sgd]………………….

Miss E A Shanahan, Member

SOCIAL SECURITY – pensions, allowances, benefits –  Disability Support Pension – eligibility review following request/enquiry regarding travel overseas for longer than six weeks – reassessment of qualifications for Disability Support Pension – medical conditions of vasovagal syncope and migraine unchanged – impairment rating total of 15 points under the current tables – Disability Support Pension cancelled – decision affirmed.

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

Miss E A Shanahan, Member

4 July 2016

1. Mrs Kandasamy qualified for the Disability Support Pension (DSP) as of 11 January 2008.  The incapacitating medical conditions were migraine and an anxiety state.  Her other conditions of vasovagal syncope and hypothyroidism although considered to be permanent received a rating of zero on the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) as they had no impact on her ability to function. 

2. Since then Mrs Kandasamy has undergone several reviews of her eligibility which was confirmed until her enquiry of 23 October 2014 regarding permanent portability of her DSP.  She was advised that medical review and assessment would be necessary and informed of the risk of cancellation. 

3. Mrs Kandasamy’s reassessment in accordance with medical reports and a Job Capacity Assessment (JCA) resulted in a total impairment point rating of 15, with an assessment of a work capacity of 15 to 22 hours per week within two years with medical intervention.  As a result, Mrs Kandasamy’s DSP was cancelled by a decision dated 16 February 2015.  Payments of the Disability Support Pension were to cease on 30 March 2015. 

4. Mrs Kandasamy requested the review of this decision on 19 February 2015 and the decision was affirmed by an Authorised Review Officer (ARO) on 7 March 2015.  Mrs Kandasamy sought review by the Administrative Appeals Tribunal, Social Services and Child Support Division (First Tier Review). The matter was heard on 27 July 2015 and the decision was affirmed.  Mrs Kandasamy lodged her application for a Second Tier Review by the Administrative Appeals Tribunal on 1 September 2015.

5. At the hearing Mrs Kandasamy was self-represented and Ms Belinda Lewis appeared for the Secretary, Department of Social Services (the Secretary). The Tribunal was provided with documentation lodged pursuant to s 37 (T-documents), in accordance with the Administrative Appeals Tribunal Act 1975 (Cth).

6. Mrs Kandasamy tendered progress notes from her treating psychiatrist Dr Zarrar Chowdary dated 9 December 2015 (Exhibit A1).  Mrs Kandasamy gave evidence before the Tribunal.

   BACKGROUND TO THE APPLICATION

7. Mrs Kandasamy qualified for the DSP in January 2008.  In an earlier JCA she had been assessed as having an impairment rating of 20 points, 10 of which were allotted for anxiety associated with vasovagal attacks, which was said to prevent her from performing any activities of daily living.  Her migraine said to occur up to three times per week, also attracted a rating of 10 points.  Mrs Kandasamy was assessed as not having a continuing inability to work and had a current work capacity of 8 to 14 hours per week, according to the occupational therapist who performed the assessment. 

8. The JCA reassessment on 5 April 2012 affirmed an impairment rating for migraine. The other conditions were not felt to be contributory in terms of her ability to function and did not attract an impairment rating.  Apparently, Mrs Kandasamy was assigned 30 points under the then Table 21 of the Impairment Tables in 2011 for her migraine. 

9. Mrs Kandasamy’s next review commenced in 2014 after her enquiry regarding indefinite overseas portability of her DSP.  Further medical reports were requested from her treating general practitioner Dr Shahed Alam who confirmed that she still suffered from vasovagal syncope and migraines in which impacted on her ability to work.  While her general practitioner had also diagnosed anxiety and depression treated by counselling, there was no record of her having been seen by a psychologist or a psychiatrist.  These requirements have been incorporated in the interval between 2012 with her last review and 2014 in accordance with introduction of the new Impairment Tables. 

10. Reassessment by a JCA and consultation with the Health Professional Advisory Unit in February 2015, acknowledge that while the symptoms of vasovagal syncope migraine were unchanged the Impairment Tables had been replaced and were now functionally based.  As a result, Mrs Kandasamy attracted 5 points in impairment rating because of her fainting episodes and 10 points under Table 1 for her migraine. 

11. As the anxiety and depression had not been corroborated or diagnosed by a clinical psychologist or psychiatrist it was not considered fully diagnosed in order to attract assessment under Table 5. All other conditions reported namely, hypothyroidism, gastro oesophageal reflux, epicondylitis were considered to be fully treated and stabilised, having no impact on her ability to work. As Mrs Kandasamy did not attract 20 points in impairment rating as required by s 94(1)(b) of the Social Security Act 1991(Cth) (the Act) her DSP was cancelled.

12. On 7 March 2015, the ARO determined, based on Mrs Kandasamy’s work record and ability to function independently, that she had the capacity to undertake light skilled work of at least 15 hours per week in the next two years.

13. Since the cancellation of her DSP Mrs Kandasamy has been seen by a clinical psychologist, Mr Peter Wilson, who made a diagnosis of major depression and also recommended that she be seen by a psychiatrist. 

14. Dr Chowdary, a psychiatrist, provided a report on 28 October 2015 also diagnosing a profound major depressive disorder that had been untreated and undertreated for many years.  Dr Chowdary set about altering Mrs Kandasamy’s medication increasing her dosage of antidepressants over a period of months, with the last change in medication being in February 2016.

15. A review of Mrs Kandasamy’s other medical conditions was undertaken by Dr Robert Leftkovits, a general physician, who reported on 28 May 2015, that no organic problems requiring further treatment existed, and was of the opinion that all her problems related to her depression, her gastro oesophageal reflux, cholesterol issues and thyroid problem were describable as being well managed and stable. Further, Dr Leftkovits opined that she was not fit for work for the next two to three months at least.

16. Several further reports have been received from Dr Alam, her general practitioner, identifying her major problems as migraine for which she is taking Topamax, Imigran and Voltaren, anxiety and depression with recent referrals of a psychologist and psychiatrist and what was described as occasional vasovagal syncope, of which she had suffered a total of 11 episodes since 2003, the last one being on 2 February 2016, when she awoke on the floor of her toilet and found she had a lump on her left forehead. 

17. Mrs Kandasamy had no recollection of the events leading up to this particular attack as she had not experienced any aura.  She attended the Alfred Hospital were a physical examination was normal and a CT scan of her head and neck did not reveal any abnormality, although she was found to have a 1.9 centimetre incidental opacity in her left adrenal gland which is thought most likely to be a non-functional adenoma and was to be followed up by a further CT scanning in May 2016. 

    EVIDENCE BEFORE THE TRIBUNAL

18. Mrs Kandasamy gave evidence before the Tribunal, outlining her symptomatology which has been summarised under ‘BACKGROUND TO THE APPLICATION.’  She informed the Tribunal of her attendance with Dr Chowdary and the titration of her antidepressant medication, her dosage of Sertraline having been increased in December 2015 and again in February 2016. 

19. Mrs Kandasamy explained she was living in Government housing with her husband but in a separated under the same roof arrangement.  Her husband also receives the DSP and both of them have been working up to the limits for recipients of the DSP. In November 2014, she was working up to 12 hours per week as a home care services provider but ceased such work as of 29 March 2015 following her involvement in a motor vehicle accident in which her car was written off. 

20. Mrs Kandasamy stated that her concentration has diminished since this motor vehicle accident.   While her car was insured and has been replaced, she still has to pay off the original vehicle purchase loan.  She has been extremely worried as a result of her financial situation.  Mrs Kandasamy also told the Tribunal she had not noted any benefit to date from her psychiatric counselling or the antidepressant medication.  

    DOCUMENTARY EVIDENCE

21. The relevant documentary evidence has been referred to under the heading in ‘BACKGROUND TO THE APPLICATION.’ 

    RELEVANT LEGISLATION

22. The Social Security Act 1991 (Cth) provides for the eligibility for the DSP stating as follows:

    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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

    SUBMISSIONS

23. Mrs Kandasamy did not make any formal submissions.

24. Ms Lewis relied upon the Statement of Facts and Contentions of the Secretary and the reassessment of Mrs Kandasamy following her request for indefinite portability of her DSP, which had resulted in accordance with the now operative new Impairment Tables, which on the functional basis have attracted an impairment rating totalling 15 impairment points. As such Mrs Kandasamy does not satisfy the requirements of s 94(1)(b) of the Act.

    TRIBUNAL CONSIDERATIONS AND DELIBERATIONS

25. The evidence before the Tribunal indicates that Mrs Kandasamy definitely satisfies s 94(1)(a) of the Act in that she suffers from relatively infrequent bout of vasovagal syncope (fainting) and migraine which is not fully controlled with medication.  Her other physical conditions are well controlled and do not contribute to any incapacity for work. 

26. Mrs Kandasamy has a lengthy history of depression going back decades and has had no treatment for this until late 2015, following the cancellation of her DSP.  There is no question that she suffers from a major depressive disorder but this has not been treated or stabilised, nor was it diagnosed prior to her qualifications for the DSP by a clinical psychologist or psychiatrist as is now required by changes to the Act. 

27. Prior to Mrs Kandasamy’s motor vehicle accident she was able to work between 8 and 12 hours per week as a personal care attendant but has not done so since the motor vehicle accident. 

28. The Tribunal agrees that the appropriate impairment rating is 15 points. Therefore, Mrs Kandasamy does not satisfy s 94(1)(b) of the Act and her DSP was correctly cancelled. While her condition of major depressive disorder is accepted it is not fully treated and stabilised as at the time of cancellation, nor in fact at the time of the hearing. It may be that her response to treatment is poor and that she eventually does requalify for a DSP, but both Dr Chowdary and Mr Wilson, the psychologist, were of the opinion that it was too early to determine her prognosis.

29. The Tribunal affirms the decision under review as being correct and preferable.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated 4 July 2016

Date of hearing	28 April 2016
Advocate for the Applicant	Mrs Sivagowre Kandasamy
Advocate for the Respondent	Ms Belinda Lewis