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

Kaynak and Secretary, Department of Social Services (Social services second review) [2017] AATA 118 (31 January 2017)
Division:GENERAL DIVISION
File Number: 2014/5841
Re:Amanda Kaynak
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:31 January 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
SOCIAL SECURITY - disability support pension – whether medical conditions diagnosed, fully treated and stabilised at time of claim or within 13 weeks of that date – points to be allocated - decision affirmed
Legislation
Social Security Act 1991 section 94
Social Security (Administration) Act 1999 section 4 of Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Regina Perton, Member
31 January 2017

Amanda Kaynak lodged a claim for disability support pension (DSP) with Centrelink which was dated 16 September 2013 but deemed to have been lodged on 12 September 2013. On 21 January 2014 a Centrelink officer rejected Ms Kaynak’s claim (the original decision). Centrelink is the service provider which administers DSP for the Secretary, Department of Social Services (the respondent).
Ms Kaynak sought a review of the original decision by a Centrelink authorised review officer (ARO). On 2 April 2014 the ARO affirmed the original decision.
Ms Kaynak lodged an application for review of the ARO's decision with the Social Security Appeals Tribunal (SSAT) on 19 August 2014. On 18 September 2014 the SSAT (now known as the Social Security & Child Support Division) of the Administrative Appeals Tribunal (AAT1) affirmed the ARO's decision to refuse DSP on the basis that Ms Kaynak's impairments did not rate at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) on 12 September 2013 or within 13 weeks of that date (the relevant period).
On 11 November 2014 Ms Kaynak lodged an application for review of the SSAT’s decision with this Tribunal.
The issue before the Tribunal is whether Ms Kaynak satisfied the requirements for DSP during the relevant period. The Tribunal is not empowered to decide whether Ms Kaynak met the requirements at a later date or at the present time.
QUALIFICATION FOR DSP DURING THE RELEVANT PERIOD
Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP.
94(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)the person has a continuing inability to work
…
When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of section 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) allows a person who does not qualify for DSP at the date of application to do so within 13 weeks of that date.
In her claim form, Ms Kaynak described her health problems with a cancerous tumour in her bowel and a fistula that had ruptured between the bowel and vagina. She stated she was taking 15 to 20 differing tablets for pain relief and inflammation. She was to undergo radiotherapy and chemotherapy and have an operation which was scheduled for a short time after her claim.
A medical report from Dr M Lee of the Bendigo Health Service dated 9 December 2013 indicted that Ms Kaynak had been his patient since 12 November 2013 and of the practice some two months earlier. Dr Lee indicated that Ms Kaynak suffered from anal squamous cell carcinoma which was diagnosed in July 2013 and confirmed by an oncologist. Her current treatment was concurrent chemo – radiotherapy which had commenced in late October 2013. She had also undergone surgery in October 2013. Dr Lee described proposed ongoing treatment for the conditions and the impact on Ms Kaynak - affects endurance, need for care (pain management, symptom management).
Following the original decision by Centrelink, Ms Kaynak provided additional medical evidence relating to her condition. On 25 March 2014 Dr Harry Van Rensberg of the Fitzroy Street Medical Clinic in Kerang, where Ms Kaynak was then living, provided a medical report to the Centrelink Review Team.
I hereby wish to supply supplementary information regarding the current treatment plan for Amanda Kaynak.
Amanda was diagnosed with rectal adenocarcinoma in August 2013. She had surgical intervention with subsequent chemotherapy and radiotherapy in September/October 2013.
She has since developed complications of her condition and will require at least 2 further major surgical procedures before it is anticipated her treatment will be completed in the first instance.
She is being managed by a General Surgeon in Echuca as well as the Oncology Department of Peter MacCallum Cancer Centre in Bendigo.
At this point it is envisaged that her surgery will be performed over the next 12-18 months and the period of recuperation, could render her incapacitated for any form of employment for at least another 6 months.
I would thus recommend that her Disability Allowance be granted for a 24-month period and a review can be performed a few months prior to the expiry of same.
Dr Van Rensburg provided an updated report to Centrelink on 10 July 2014 expressing the view that he did not think it appropriate for a person with a significant cancer and going through treatment, to be actively seeking employment and proving that they can’t secure employment.
Dr Van Rensburg provided a further update on 15 September 2014 stating, amongst other things, that:
…
Amanda has now had a further review with the Surgical Team at Peter MacCallum and was recommended to be suitable to have surgery performed. This surgery has been scheduled as a routine procedure and placed on a waiting list. She was informed the surgery could occur by the end of this year, though no guarantees are provided, due to more acute cases taking preference over correcting surgery.
…
Amanda is also suffering severe anxiety with sleep disturbance. This is a reactive response to the physical and emotional challenges she has faced since being diagnosed with the carcinoma in August 2013
…
After the SSAT decision to affirm the original decision because it found that Ms Kaynak’s condition was not fully treated and stabilised as at September 2013, Dr Van Rensburg provided a medical certificate dated 12 January 2015 for the period 6 January 2015 to 6 July 2015. The certificate indicated that Ms Kaynak suffered from carcinoma of rectum/bowel and detailed further planned treatments involving surgery. He noted that Ms Kaynak had been his patient since September 2009 and a patient of the surgery since January 2008. No other condition was cited.
Dr Van Rensburg completed a Centrelink Medical Report in relation to DSP on 24 February 2015. The condition with the most impact was carcinoma of rectum with multiple post operative complications with the date of onset being early August 2013. He described future proposed surgery and described the current symptoms being severe pain radiating out to the lumber back and hips and reduced endurance and energy as well as effects on concentration and mental activity.
The second condition cited in the report dated 24 February 2015 was major depression with severe anxiety with a date of onset of September 2013 for which the treatment was medication. While Dr Van Rensburg stated that the diagnosis was supported by further specialist opinion, he noted that it was he himself who made the diagnosis. He stated that there are no relevant specialist reports available. Dr Van Rensburg stated that the impact on Ms Kaynak’s ability to function included no ability to engage in social interaction/work environment and reduced insight, concentration and decision making ability. He also stated that Ms Kaynak:
…requires intense psychotherapy which will last more than 24 months. Severe emotional scarring which will last forever.
On 27 February 2015 a report was signed by Dr Mark Shaw, Radiation Oncologist, describing Ms Kaynak’s cancer treatment.
On 1 July 2015 Ms Janine Arnold, general surgeon, provided a report:
Amanda became my patient on the 4^th September 2013 when I was called in to theatre as Graeme Dennerstein was operating on her for a rectovaginal fistula. This was due to squamous cell carcinoma of her anus which had caused the fistula. She would have had symptoms for between one and two years before she presented…She has been treated with chemotherapy, radiotherapy and had a diverting loop colostomy. Because the fistula healed following treatment the colostomy was reversed earlier this year which was unfortunately complicated by a mesh infection and required subsequent removal of the mesh. Happily she has no new hernia at this stage and her wound has healed up.
I expect it will be at least another 12 months for Amanda to fully recover before she will be right to go back to work. She will have frequent appointments every couple of months with radiation oncology and with me and I will spend the next 12 months keeping a close eye on her to make sure that her hernia does not recur.
When she is right to go back to work Amanda will not be able to do anything that involves heavy lifting…For the rest of her life she will be having regular follow ups from the cancer.
…
Dr Van Rensburg provided a further report on 27 July 2015 containing much the same information as previous reports but with an update on the operations performed in May 2015 and advising that she was seeing Dr Arnold regularly up to the date of the report.
The Tribunal accepts that Ms Kaynak was suffering from bowel cancer and related impairments during the relevant period. It appears that she was also suffering from depression/anxiety although this was not raised by Dr Lee in his report during the relevant period. Dr Van Rensburg named the condition in a report more than a year after the end of the relevant period. The Tribunal accepts that Ms Kaynak suffered from physical impairments and possibly a mental health condition at the time she lodged her claim for DSP. She therefore meets the requirements of section 94(1)(a) of the Act.
The Tribunal must next decide whether Ms Kaynak's medical conditions attract an impairment rating totalling 20 points, subject to satisfying the requirements under sections 6(3) and (4) of the Impairment Tables. The legislation only allows for impairment points to be assigned for a particular condition if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years (section 94(2) of the Act).
Section 6 of the Impairment Tables states that:
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.
…
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.
…
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.
(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
(bthe 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.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Section 8 of the Impairment Tables sets out what cannot be taken into account.
8Information that must not be taken into account in applying the Tables
(1)...
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
Bowel cancer and related conditions
The medical evidence indicates that there had been a diagnosis for this condition before the claim was lodged but the condition was not fully treated and stabilised in the relevant 13 week period. Dr Van Rensburg, Ms Arnold and Dr Lee provided updates which indicated Ms Kaynak was being treated well beyond the relevant period.
The respondent submitted that the Tribunal should not accept that Ms Kaynak’s bowel cancer and related conditions were fully treated and stabilised during the relevant period. The Tribunal concurs with the respondent. The impact of the condition on Ms Kaynak was profound. The Tribunal notes the comments made by Ms Kaynak’s medical treaters that she should be able to access DSP but the legislation does not allow impairment points to be assigned until the condition is fully treated and stabilised. Therefore, no points can be awarded for the condition.
Depression / anxiety
Table 5 of the Impairment Tables covers mental health function. The preamble at the start of the table states:
·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.
As indicated earlier, Dr Van Rensburg provided a report in February 2015 stating that Ms Kaynak suffered from major depression and anxiety with a diagnosis in September 2013. There had been no mention of the mental health condition in any of his earlier reports nor in the report of Dr Lee.
Ms Kaynak submitted that the Tribunal should be able to award points in relation to depression and anxiety. When her case was already with the Tribunal, Ms Kaynak put considerable effort and time into gathering documents relating to assessments of her mental health following domestic violence and family stresses in the years prior to her claim for DSP. After the initial hearing, the Tribunal allowed time for Ms Kaynak to try and obtain the information she believed would assist in showing that she had been diagnosed by relevant professionals well before the date of claim. The Tribunal extended the date on a number of occasions to allow Ms Kaynak to pursue her quest as she was finding it difficult to obtain the information she believed would result in her obtaining recognition and points for her mental health condition.
The Tribunal held a number of directions hearings following the original hearing. On 27 October 2015 Ms Kaynak provided a number of historical medical certificates. Doctors’ notes from as far back as 1998 and documents prepared in 2002 and 2003 relating to gynaecological and gastrointestinal treatments were also submitted. There are mentions of a possible work-related stress illness in 2000, including a letter dated 30 August 2000 from her union to her doctor relating to stress related illness for which the employer’s insurer had denied liability. In his response, Dr Jonathan Upfal states that he placed Ms Kaynak on anti-depression therapy in August 1999. Dr Brendan Crocket, from the same clinic, stated in a report dated 15 September 2000 that Ms Kaynak began on Efesor – an anti-depressant in February 2000 and my colleague noted she has depression and anxiety related to marital difficulties. There are also reports relating to physical injuries suffered in 2006 following an assault.
The Tribunal was also provided with a report dated 9 December 2012, prepared for Victoria Legal Aid, by Pamela Matthews of Victorian Forensic and Clinical Consulting. The report was prepared in relation to driving offences. In a paragraph headed Mental State, Ms Matthews states:
This neatly dressed woman presented with labile mood, congruent affect and spoke in a dramatic manner. She reports depression beginning with domestic violence in the relationship with her former husband but as more severe since she left him six years ago. Her appetite and weight is variable, and she is not suicidal. A somewhat disorganised historian Ms Kaynak does not present with formal thought disorder, delusional constructs or other indications of psychosis. Cognition is estimated to be average with some insight.

Later in the report, Ms Matthews suggests that Ms Kaynak needs immediate supportive rehabilitation which includes a referral under a Medicare Mental Health Plan for counselling directed at treating Ms Kaynak for Post Traumatic Stress Disorder in regards to her violent marriage… She also suggests housing transfers and other considerations.
Ms Kaynak also provided a statement made by her mother on 14 January 2015. Her mother, who lives in Darwin, described the difficulties her daughter has experienced due to her cancer treatment and how she has managed with help from family. She then goes on to state:
…
We are not a wealthy family but because Mandy has not been granted a pension, during the time of her illness, we have all assisted with rent, living and medication expenses. When Mandy had to stay (approximately) 10 to 12 weeks in Bendigo Patient Accommodation, and I was there for 6 of those weeks, these costs were solely born by me.
Apart from being ill and along with the added burden of not having the financial capacity to cover her own living and medication expenses, has caused my daughter extreme stress and mental anguish to the point where she has stress attacks and cry’s all the time. As mother this has been very hard for me to see and cope with particularly, when the majority of the time I am 3000kms away at the end of the pone.
Ms Kaynak’s mother provided a further statement dated 26 October 2015 in which she described events in her daughter’s childhood, teenage, early and current adult life that sadly, may now have culminated and be contributing factors to her current stress and situation. She described health issues, marital problems both for her and for her daughter and health issues Ms Kaynak confronted.
Ms Kaynak also provided a statement dated 9 January 2015 from a friend, Karen Capp, an accountant who has known Ms Kaynak since their children attended kindergarten, some 14 years earlier. Ms Capp stated that:
…
I have provided financial help throughout Amanda’s treatment during 2013/14 which is now continuing into 2015. I have been to Kerang and Bendigo on numerous occasions to provide emotional support to Amanda and have cared for her children whilst there and also provided housing for her children in …(where I reside) when required. Amanda’s mental state has severely declined after her cancer diagnosis which has incapacitated her to the extent where she is unable to do routine tasks and function in everyday life. A pension payment for Amanda would be extremely beneficial to her financial situation.
…
Ms Kaynak also submitted a medical certificate from Dr John Gruner of the Monbulk Family Clinic dated 22 October 2015 in which he states:
Mrs Amanda Kaynak has records in our computer file from 2001 to 2008 and we will look for paper file from when we started in 1999. She has had long term anxiety and depression.
On 18 November 2015 Ms Kaynak submitted documents relating to counsellor visits she had been involved in between September 2010 and December 2011. Ms Kaynak stated that it has taken me an enormous amount of time to get records that are archives. She also indicated that she was still awaiting records from Monash Health. Ms Kaynak indicated that she was assisted due to homelessness and my son of 13 at the time, playing up after which he then went into the realm of criminal activity. She also mentioned other factors relating to her son and a relationship in which he was and is involved which caused her huge stress. Ms Kaynak asked that the counselling visits, of which there were many, be accepted as evidence that she has had …Severe Anxiety and Mental Health issues for most of my life.
An intake report which summarises contacts with Ms Kaynak by an agency on behalf of the Victorian Department of Health and Human Services was provided to the Tribunal. The report required responses to various questions about Ms Kaynak’s family and herself. One of the topics relates to mental health; depression which has the identified response of Yes. The names of the workers that Ms Kaynak dealt with are given but not their qualifications. There is also a letter from a family services worker at St Luke’s Anglicare, Kirsten White, dated 30 November 2011 wishing Ms Kaynak well and encouraging her, including:
I know that you have a lot on your plate at the moment but the inner strengths that you possess aides you in keeping on top of things and when things do get that little bit difficult you will seek the support & help that you need, such as reaching out for support through your family or friends.
The Tribunal provided Centrelink with the documentation submitted by Ms Kaynak after the hearing, seeking its comments. On 27 November 2015, Centrelink provided the following updated submission:
I refer to the further documents provided by Ms Kaynak to the Administrative Appeals Tribunal on 18 November 2015.
After consideration of these documents, the Secretary remains of the view that Ms Kaynak does not meet the requirements under subsection 94(1) of the Social Security Act 1991 to be qualified for the disability support pension at the date of her claim made on 16 September 2013.
Ms Kaynak submits that this documentation is evidence that she has had severe anxiety and mental health issues for most of her life.
This documentation appears to relate to case management by Family Services – DHS. The Secretary submits this cannot assist the Tribunal as:
a)It does not confirm diagnosis by a psychiatrist or a clinical psychologist;
b)Contains no evidence of specific mental health management; and
c)Contains no evidence of functional impact.
The Secretary contends that Ms Kaynak’s anxiety and mental health issues cannot be considered as fully diagnosed, treated and stabilised.
Ms Kaynak asked that she be given more time to chase up the outstanding reports from Monash Health. Notwithstanding the above submission, the Tribunal allowed Ms Kaynak additional time to await outstanding requests for information from the hospital and other sources. On 18 March 2016 the Tribunal wrote to Ms Kaynak asking for progress on obtaining the documentation and asking for the material to be lodged by 18 April 2016. On 2 May 2016 Ms Kaynak contacted the Tribunal in a distressed state saying she was going to drop off further material the following day.
On 5 July 2016 the Tribunal received a medical certificate dated 23 June 2016 from Dr Van Rensburg in which he provided a history of her cancer treatment. He then stated:
…
She also suffers a long-term anxiety and depressive illness, which she is having treatment for.
Amanda is visiting her relatives in Darwin for a 7-week period and in that time will require a review of her medication.
…
The Tribunal also received a Patient Health Summary dated 23 June 2016 setting out her current medications and her Active Past History which shows that the date that Anxiety/Depression was added to her computerised medical record was 1 July 2014.
The Tribunal accepts that Ms Kaynak suffered from anxiety and depression prior to September 2013 and that her health and family issues resulted in the condition getting worse at certain points of time. However, the Tribunal has to consider the situation at the time of claim. Unfortunately, the Tribunal is unable to allocate any impairment points as there had not been a diagnosis by a psychiatrist or confirmation by a clinical psychologist before or during the period under consideration in mid-September 2013 to mid-December 2013 nor does it seem that the condition had been fully treated or stabilised.
CONCLUSION
Ms Kaynak’s does not have any points allocated for her medical conditions during the relevant period. The Tribunal finds that Ms Kaynak does not meet section 94(1)(b) of the Act during the relevant period as she has not been allocated a total of 20 points for her impairments under the Impairment Tables.
The Tribunal accepts that Ms Kaynak was experiencing a major health problem when she lodged her claim and was unable to work given the debilitating nature of her symptoms. The Tribunal is also impressed by Ms Kaynak’s attempts to gather up relevant documentation and have her doctors, family and friends provide statements and reports. However, the Tribunal is bound by the relevant legislation and is unable to ignore or override its provisions.
DECISION
The Tribunal affirms the decision under review.

45. I certify that the preceding 44 (forty‑four) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member

...................[sgd]........................................
Associate
Dated 31 January 2017

Date of hearing
17 September 2015, 27 October 2015,

& 5 July 2016

Applicant In person

Advocate for the Respondent Mr James Henderson

[2017] AATA 118

31 January 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction