Karen Peniamina and Secretary, Department of Social Services
[2014] AATA 542
[2014] AATA 542
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1047
Re
Karen Peniamina
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 7 August 2014 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Claim for disability support pension – Relevant date of assessment – Posttraumatic stress disorder not fully diagnosed or treated in relevant period - Diagnostic requirements for posttraumatic stress disorder – Condition not permanent – Significance of International Agreement between Australia and New Zealand - Applicant not qualified for disability support pension – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 7, 23, 26, 27, 94
Social Security (Administration) Act 1999 (Cth) ss 13, 37, Sch 2, cls 3, 4
Social Security (International Agreements) Act 1999 (Cth) Sch 3, Arts 2, 3
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
7 August 2014
BACKGROUND AND ISSUES
On 23 July 2013, Karen Peniamina (“the applicant”) arrived in Australia from
New Zealand on a sub-class 444 visa. She had been in receipt of an Invalid Benefit in New Zealand. On 23 August 2013, the applicant spoke to a Centrelink officer about the disability support pension which is a social security payment under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth)
(“the Administration Act”).[1] She made a claim for the disability support pension on
29 August 2013. Centrelink rejected that claim on 9 October 2013. That decision was affirmed, on 10 January 2014, by an authorised review officer and, on 12 February 2014, by the Social Security Appeals Tribunal (“SSAT”).
[1] See s 23 of the Act and ss 37(3) and (4)(h) of the Administration Act.
Subsequently, following a further claim by the applicant, the DSP was granted with effect from 4 April 2014. The issue for the Tribunal is whether the disability support pension may be paid to the applicant in relation to her first claim.
LEGISLATION
The qualifications for disability support pension are set out in s 94 of the Act which, in so far as relevant, reads:
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
(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
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(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
(b) in 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.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of 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
The term “Australian resident” takes its meaning from s 7(2) of the Act which reads:
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
To qualify for the disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the claim or in the period of
13 weeks from the day of the claim.[2] This was from 23 August 2013[3] until
22 November 2013 (“the relevant period”). It is not in dispute that, both before and after she came to Australia, the applicant has suffered from psychiatric impairment as required by s 94(1)(a) of the Act or that she meets the age requirement of s 94(1)(d) of the Act.
It is also common ground that the applicant is not an Australian resident as required by
s 94(1)(e) of the Act and defined in s 7(2) of the Act. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”)[4] as required by
s 94(1)(b) of the Act.
[2] See Sch 2, cls 3 and 4 of the Social Security (Administration) Act 1999 (Cth).
[3] The date of contact with Centrelink and set in accordance with s 13 of the Administration Act.
[4] For the requirement to apply these Tables, which came into force on 1 January 2012, see ss 26 and 27(3) of the Act.
The procedures to be followed in applying the Impairment Tables are set out in s 6 of the Determination which falls under “Part 2 – Rules for applying the Impairment Tables” (“the Rules”). That section reads:
6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see
section 7.Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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 reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
SUBMISSIONS
The applicant conceded that she had not been able to produce medical reports from a psychiatrist or a clinical psychologist sufficient to satisfy the requirements in the Determination for an appropriate psychiatric diagnosis or for her treatment of that condition. This was despite her belief that she suffered from posttraumatic stress disorder before and since coming to Australia. She also conceded that she had not had the benefit of appropriate treatment until after the relevant period and submitted that this was in large part due to poor advice from a doctor she consulted shortly after arriving in Australia. She said that she has benefited somewhat from recent cognitive therapy treatment by a psychologist such that she has been able to find employment for 25 hours per week. She stated that her circumstances had greatly improved with the granting of disability support pension in April this year.
Mr Ashley Burgess, for the respondent, submitted that the applicant did not satisfy the
20 point impairment requirement in s 94(1)(b) of the Act or the work requirement in
s 94(1)(c) of the Act. As to the first of those provisions, he submitted that the Rules precluded the allocation of an impairment rating because the condition of posttraumatic stress disorder was not diagnosed, during the relevant period, in the manner required and had not been fully treated until some time after the relevant period. As to the second matter, Mr Burgess referred to a Job Capacity Assessment Report (“JCA”), dated
25 September 2013, completed by M, a psychologist, in which M assessed the applicant as having a capacity for work within two years of 15 to 22 hours per week. Mr Burgess also submitted that the applicant was not a resident of Australia but that, potentially, she was able to take advantage of the Social Security Agreement (“the International Agreement”) between Australia and New Zealand[5] as contained in Sch 3 of the
Social Security (International Agreements) Act 1999(Cth). However, he also submitted that this did not assist the applicant because she was unable to satisfy the work test in the Agreement which requires that an applicant for the disability support pension be “severely disabled”.
[5] See Article 3 of the International Agreement.
CONSIDERATION
As noted above, the Rules require that, for an impairment rating to be allocated to a condition, it must be permanent in the sense that it has been fully diagnosed, fully treated and fully stabilised.[6] Psychiatric conditions are rated under Table 5 of the Impairment Tables, the Introduction to which reads:
Table 5 – Mental Health Function
[6] See s 6(3)-(6) of the Rules.
Introduction to Table 5
· Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
· 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).
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
o supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
o interviews with the person and those providing care or support to the person.
· In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
· The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
· The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
· For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
On 28 August 2013, a general practitioner, Dr Sergey Bromberg, diagnosed the applicant with posttraumatic stress disorder. That, in itself, is not sufficient for the diagnosis to be accepted for the purposes of Table 5 as the requirement therein is that the diagnosis be made by a psychiatrist or a clinical psychologist. It is not disputed that the first occasion when that was done was through psychiatrist, Dr Sandeep Chand, in his report of
8 March 2014. Clearly, that was outside of the relevant period. The authorised review officer and the SSAT, in their respective decisions, found that the applicant’s psychiatric condition was not fully diagnosed in the relevant period and I agree with that finding. They also found that that she had not been fully treated but, rather, had been treated for periodic acute episodes of psychiatric symptoms. That was conceded by the applicant and I agree with that conclusion. It follows that the applicant’s circumstances do not meet the terms of s 94(1)(b) of the Act.
In the JCA completed on 25 September 2013, M assessed the applicant as having a baseline work capacity of 8-14 hours per week and as having a capacity to work
15-22 hours per week within two years with intervention in light skilled work such as in a telemarketing/call centre. On that undisputed evidence, I am also satisfied that the applicant did not have a continuing incapacity to work during the relevant period. It follows that her circumstances do not meet the terms of s 94(1)(c) of the Act.
The findings in relation to ss 94(1)(b) and (c) are sufficient to affirm the decision that the applicant is not qualified for the disability support pension in the relevant period.
A further requirement of s 94 of the Act is that the applicant be an Australian resident as defined in s 7(2) of the Act.[7] It is common ground that the applicant was not an Australian resident during the relevant period. However, as submitted by Mr Burgess, the International Agreement has potential relevance in this matter. Article 2(1) thereof makes the International Agreement applicable to the Acts forming the social security law in so far as those Acts provide for, apply to or affect certain benefits including the disability support pension. However, the ambit of that applicability is limited by Art 2(2) of the International Agreement which, in so far as potentially relevant in this matter, reads:
2. For the purposes of this Agreement an Australian disability support pension … shall be limited to cases where:
(a) the person is severely disabled;
[7] See paragraph 4 (above).
Article 1 of the Agreement sets out the following definition which, in so far as potentially relevant in this matter, reads
“severely disabled” means a person who:
(i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(aa) to work for at least the next 2 years; and
(bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
On the evidence set out above concerning the applicant’s work capacity, I am satisfied that, in the relevant period, the applicant was not totally unable to work for at least the next two years and that, accordingly, was not severely disabled. It follows that the terms of the International Agreement do not benefit the applicant.
DECISION
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 Mr R G Kenny, Senior Member .............................[Sgd]........................................
Associate
Dated 7 August 2014
Date of hearing 22 July 2014 Applicant In person Solicitors for the Respondent Mr Ashley Burgess, Department of Human Services
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