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

Krishna; Secretary, Department of Social Services and (Social services second review) [2016] AATA 172 (23 March 2016)

Division

GENERAL DIVISION

File Number

2015/3083

Re

Secretary, Department of Social Services

APPLICANT

And

Kathryn Krishna

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance

Date 23 March 2016

Place Sydney
1.The decision under review, being the decision of the Social Security Appeals Tribunal made 15 May 2015, is set aside.
2.In substitution, the decision of the Authorised Review Officer made 13 February 2015 cancelling payment of the disability support pension to Ms Krishna, is affirmed.

.....................[sgd]...................................................
J W Constance
Deputy President
CATCHWORDS
SOCIAL SECURITY - disability support pension - cancellation of disability support payment - whether person's impairment is of 20 points under Impairment Tables - whether conditions fully diagnosed, fully treated and fully stabilised - decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) s 94(1)
Social Security (Administration) Act 1999 (Cth) s 80
CASES
Freeman v Secretary, Department of Social Security [1988] FCA 294
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Deputy President J W Constance
23 March 2016
INTRODUCTION

For four years immediately prior to 23 March 2015 Ms Krishna was in receipt of a disability support pension. It had been determined that she was entitled to the pension by reason of impairments arising from a knee condition, irritable bowel syndrome and an eye abnormality. The pension was payable in accordance with the Social Security Act 1991 (Cth).
On 23 March 2015 Ms Krishna’s pension was cancelled on the basis that she no longer satisfied the requirement of having 20 impairment points arising from her disabilities. This decision was set aside by the Social Security Appeals Tribunal on 15 May 2015 and a decision was substituted that Ms Krishna remained qualified for the pension. The Secretary has applied to this Tribunal to review the decision of the Social Security Appeals Tribunal.
For the reasons which follow the decision of the Social Security Appeals Tribunal will be set aside and in substitution it will be decided that on 23 March 2015 Ms Krishna was not entitled to receive the disability support pension.
BACKGROUND
Ms Krishna is 35 years old. On 23 March 2015 she suffered from the following medical conditions:
·major depressive disorder (or bipolar disorder) and anxiety;
·blindness of the left eye;
·chondromalacia of the right knee;
·asthma;
·irritable bowel syndrome;
·migraine headaches.
She continues to suffer these disabilities.
In October 2014 Ms Krishna was issued with a notice in accordance with the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) advising her that her ongoing qualification for the disability support pension was to be reviewed. As part of this review, on 11 December 2014 Ms Krishna underwent a job capacity assessment. I will refer to the report which followed this assessment later in these reasons.
Ms Krishna claims that, based on the impairments arising from the above conditions, she was entitled to receive the pension on 23 March 2015 and therefore the decision under review should be affirmed.
LEGISLATION AND MINISTERIAL POLICY
Social Security (Administration) Act 1999
Section 80 of the Administration Act provides that the Secretary is to determine that a social security payment is to be cancelled or suspended if it is being paid to a person who is not qualified for that payment.
As Ms Krishna’s pension was cancelled, the time at which I must consider her entitlement is the date of cancellation. It is not relevant to consider whether Ms Krishna was entitled to receive the pension at any later time.[1] If this was the case, she was entitled to make a new application for a pension based on the situation that existed at that time.
[1] Freeman v Secretary, Department of Social Security [1988] FCA 294.
Social Security Act 1991
Subsection 94(1) of the Social Security Act provides in part:
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 ……
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
The question of whether a person’s impairment is of 20 points or more is decided by applying the Impairment Tables in force at the time a notice is issued advising them that their pension is be reviewed. A notice was issued to Ms Krishna on 31 October 2014. The relevant tables are contained in the Impairment Tables Determination.
Subsection 6(3) of the Determination provides that a points rating may only be assigned if a condition is “permanent” within the meaning of the social security law. Subsection 6(4) provides that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised and is likely to persist for more than two years.
The Tables define the terms “fully diagnosed”, “fully treated” and “fully stabilised’ to mean:
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.
ISSUES FOR DETERMINATION
The following issues arise for determination.
(1) Was Ms Krishna suffering an impairment or impairments as at 23 March 2015?
(2) If so, did those impairments, or any of them, attract a rating of at least 20 points?
(3) If so, did Ms Krishna have a continuing inability to work (as defined in the Act) as at 23 March 2015?
CONSIDERATION
Issue 1: Was Ms Krishna suffering an impairment or impairments as at 23 March 2015?
It is not in dispute that at the relevant date Ms Krishna suffered the following impairments:
·psychiatric disorder;
·blindness of the left eye;
·chondromalacia of the right knee;
·asthma;
·irritable bowel syndrome;
·migraine.
Issue 2: Did the impairments, or any of them, attract a rating of at least 20 points as at 23 March 2015?
Psychiatric disorder
There are varying reports of when Ms Krishna first suffered mental illness, which may have been as early as 2002. The Secretary does not dispute that Ms Krishna was suffering a psychiatric condition on 23 March 2015.
On 24 November 2014 Ms Krishna's General practitioner, Dr Chen, reported that the condition which had the most impact on Ms Krishna was “Bipolar and anxiety attack”.[2] She noted the current symptoms as “Depressed most of the time. Insomnia. Mood swing. Suicidal thoughts on & off. Panic attack.” [3]
[2] Exhibit A1 p.157.
[3] Exhibit A1 p.158.
Ms Krishna said that at present she takes mood stabilising and anti-depressant medication and consults her general practitioner and her psychologist. She feels “low” and has suicidal feelings about twice per week. She feels anxious and lacks motivation most of the time. Her mental state has worsened since March 2015.
On 11 December 2014 Ms Krishna's job capacity was assessed.[4] During that assessment she advised that she had attended a mental health clinic on one occasion in early 2012 and that she saw a psychologist for two or three counselling sessions. She had not consulted a clinical psychologist or a psychiatrist at the time of the assessment.[5]
[4] Job capacity Assessment Report submitted 12 January 2015 exhibit A1 p.169.
[5] Exhibit A1 p.171.
Ms Krishna did consult Dr Natha, Psychiatrist, on or before 20 March 2015, before the cancellation of the pension. She sought treatment for a major depressive episode. The reference to Dr Natha from Dr Chen indicated that this episode was a reaction to the review of the pension.[6] The report by Dr Natha does no more than confirm treatment for a major depressive episode.[7]
[6] Exhibit A1 p.187.
[7] Exhibit A1 p.193.
The Secretary argued that there is no evidence from a psychiatrist confirming the diagnosis of bipolar and panic attacks at the time of cancellation. Nor is there evidence from a psychiatrist supporting the existence or continuation of a psychiatric condition at that time.
In view of the minimal evidence from Dr Natha I am not satisfied that the mental health condition suffered by Ms Krishna, was fully diagnosed, treated and stabilised at the time of the cancellation. For this reason I cannot assign an impairment rating for this condition.
Blindness of the left eye
The parties agree that the appropriate rating is five points. On the evidence available this is a proper agreement.
Chondromalacia of the right knee
This condition was diagnosed in 2010 by Dr Pead.[8] Dr Ho, orthopaedic surgeon, confirmed the diagnosis.[9]
[8] Exhibit A1 p.113.
[9] Exhibit A1 p.102.
Ms Krishna gave evidence to the Social Security Appeals Tribunal that she was unable to kneel or squat, that she could walk for about 20 minutes at a time and that she was able to climb stairs with difficulty and that she could use public transport. She told me that in March 2015 she suffered pain and stiffness in her knee every day and that she used a knee brace and a walking stick. She negotiated the 15 stairs in her home three or four times per day. Further she said that she could walk only 20-30 meters without needing to rest. She could stand for five to ten minutes. Her condition has worsened since March 2015.
The Secretary argued that Ms Krishna’s knee condition was not fully treated and stabilised at the date of cancellation as, apart from her taking analgesic medication, there was no evidence of medical intervention between 2011 and March 2015. However I am not satisfied that Ms Krishna’s knee condition had changed significantly during that time. I am not satisfied that there is sufficient evidence to support the Secretary’s argument in this regard.
I have taken into account that in the Job Capacity Assessment Report dated 12 January 2015 the knee condition was noted as being fully diagnosed, treated and stabilised.[10]
[10] Exhibit A1 p.172.
On the basis of Ms Krishna’s evidence I am satisfied that her knee condition at the time of cancellation justified a rating of no more than five points.
Table three provides for a rating of five points in the case of “mild functional impact on activities using lower limbs.” It reads, in part:
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a)the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b)the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a)the person is unable to stand for more than 10 minutes;
(b)the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
On the evidence I am not satisfied that Ms Krishna meets the requirements for a rating of 10 points. Paragraph (1) of this rating provides:
(1) At least one of the following applies:
(a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b)the person is unable to use stairs or steps without assistance; or
(c)the person is unable to stand for more than 5 minutes …
I am satisfied that in March 2015 Ms Krishna did not meet any of the criteria referred to in the preceding paragraph. Although she travels by bus or car to the shops, this appears to be the result of the distance involved. Ms Krishna told me that she walks about 20-25 minutes from the bus stop to the shops, taking rests on the way. I am satisfied that she was able to walk a reasonable distance from her home in March 2015. It may be that she cannot do so now as she said that her condition has worsened.
Asthma
Ms Krishna has suffered asthma from childhood. In her report of November 2014 Dr Chen lists the condition as well managed and of minimal impact on Ms Krishna’s functioning.[11]
[11] Exhibit A1 p.163.
Ms Krishna was assessed by Dr Kong, Occupational Physician on 1 September 2015 as part of the review. He reported that she has only seen her general practitioner for symptomatic treatment and does not have an asthma management plan. In his opinion Ms Krishna would benefit from a specialist review and the development of a plan to manage the worsening symptoms she now describes.[12]
[12] Exhibit A1 p.241.
I am satisfied that at the date of cancellation the asthma condition was not fully treated and stabilised.
Counsel for Ms Krishna did not make any submissions in regard to the condition.
Irritable bowel syndrome
Ms Krishna was diagnosed with irritable bowel syndrome no later than 2010. At this time Dr Pead reported that the condition was well managed.[13] On 24 November 2014 Ms Krishna’s general practitioner, Dr Chen, also reported that the condition was generally well-managed and had limited impact on her ability to function.[14]
[13] Exhibit A1 p.132
[14] Exhibit A1 p.163.
When she gave evidence before the Social Security Appeals Tribunal Ms Krishna said that the condition caused her to be confined to her home on some days.
Counsel for Ms Krishna did not make submissions in relation to this condition.
I accept the following contention put on behalf of the Secretary:
…… symptoms of the severity now reported by the Respondent require specialist review to identify and trial appropriate treatment options. As at the date of cancellation, the Respondent had not seen a specialist, and had not been taking any medication. Dr Chen has indicated that considerable improvement can be expected over the next two years, and Dr Kong has indicated a number of treatment options are available to the Respondent for this condition. This suggests that with appropriate treatment, directed by a specialist, significant functional improvement is expected. As such, the condition cannot be accepted to have been fully treated and stabilised as at the date of cancellation and therefore it cannot be assigned an impairment rating.
Migraine
Dr Chen also reported this condition to be generally well-managed and of limited impact in November 2014.[15]
[15] Exhibit A1 p.163.
Ms Krishna had a CT scan in March 2015 and a MRI was recommended. This has not been carried out. Dr Kong reported that in September 2015 the condition had not been properly investigated and that further treatment options existed and were yet to be trialled by Ms Krishna.[16]
[16] Exhibit A1 p.241.
Counsel for Ms Krishna did not make any submissions in relation to this condition.
I am satisfied that the migraine condition had not been fully diagnosed, treated and stabilised as at the date of the cancellation. As a result no impairment rating can be assigned.
CONCLUSION
For the reasons stated above I am satisfied that as at 23 March 2015, being the date of cancellation of the payment of the pension to Ms Krishna, her disabilities could be assigned a combined rating of no more than 10 points. On this basis she was not qualified for payment of a disability support pension.
The decision under review, being the decision of the Social Security Appeals Tribunal made 15 May 2015 will be set aside. In substitution, the decision of the Authorised Review Officer made 13 February 2015 which cancelled payment of the disability support pension to Ms Krishna, will be affirmed.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
...............[sgd].........................................................
Associate
Dated 23 March 2016

Date of hearing 8 February 2016

Date final submissions received 8 February 2016

Solicitors for the Applicant B Salaji; Department of Human Services

Solicitors for the Respondent R Bickovsky; Legal Aid New South Wales

[2016] AATA 172

23 March 2016

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairment Rating

Continuing Inability to Work

Division	GENERAL DIVISION
File Number	2015/3083
Re	Secretary, Department of Social Services
APPLICANT
And	Kathryn Krishna
RESPONDENT

Tribunal	Deputy President J W Constance
Date	23 March 2016
Place	Sydney

Date of hearing	8 February 2016
Date final submissions received	8 February 2016
Solicitors for the Applicant	B Salaji; Department of Human Services
Solicitors for the Respondent	R Bickovsky; Legal Aid New South Wales