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

[2017] AATA 874

Lancaster and Secretary, Department of Social Services (Social services second review) [2017] AATA 874 (16 June 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4878

Re:Crystal Lancaster

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:16 June 2017

Place:Brisbane

The decision under review is affirmed.

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Senior Member P E Nolan

CATCHWORDS

Social Security – disability support pension – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether Applicant had 20 impairment points – Table 5 – mental health condition – bipolar – 10 points - decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth)

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

CASES

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

SECONDARY MATERIALS

The Guide to Social Security Law

REASONS FOR DECISION

Senior Member P E Nolan

16 June 2017

INTRODUCTION

1. On 3 December 2015 Mrs Crystal Lancaster (the “Applicant”) lodged a claim for Disability Support Pension (“DSP”) stating her medical condition as “bipolar formally known as manic depressant”.[1]

   [1] Exhibit 1, T Documents, T19 DSP claim form, p.130-160.

2. The issue before this Tribunal is whether the Applicant qualified for DSP at the date of claim 3 December 2015 or within 13 weeks thereafter, being up until 3 March 2016.

   HISTORY OF THE MATTER

3. On 3 December 2015 the Applicant lodged a claim for DSP with Centrelink in writing.[2]

   [2] Exhibit 1, T Documents, T19 DSP claim form, p.130-160.

4. On 12 April 2016 a Job Capacity Assessor (“JCA”) conducted a telephone interview with the Applicant and subsequently produced a report.[3]

   [3] Exhibit 1, T Documents, T22 JCA Report dated 12 April 2016 p.172.

5. On 13 April 2016 Centrelink rejected the claim.[4] A Centrelink Authorised Review Officer affirmed the rejection.[5] On application for further review, by the Tribunal’s Social Services and Child Support Division,[6] the rejection was again affirmed.[7]

   [4] Exhibit 1, T Documents, T23 Letter from DHS p.177.

   [5] Exhibit 1, T Documents, T24 Letter from DHS p.179.

   [6] Exhibit 1, T Documents, T25 Letter from AAT to DHS p.185.

   [7] Exhibit 1, T Documents, T2 SSCSD decision p.4.

6. On 14 September 2016 the Applicant applied for this review by the General Division of the Tribunal.

   ISSUES FOR THE TRIBUNAL

7. I note at this point the Secretary concedes the Applicant’s condition causes impairment.[8] The Secretary also concedes the Applicant’s condition is fully diagnosed, treated and stabilised.[9] I am satisfied and agree with the conclusion on those points.

   [8] Respondent Statement of Facts Issues and Contentions p.5 at [31].

   [9] Respondent Statement of Facts Issues and Contentions p.6 at [32].

8. The Secretary contends, however, that the condition ought to only attract 10 points under Impairment Table 5.[10]

   [10] Respondent Statement of Facts Issues and Contentions p.7 at [40].

9. Therefore the issues in contest and that I am to determine in this matter are:

   ·whether, at the relevant time, the Applicant had an impairment rating of 20 points or more under the Impairment Tables; and if so

   ·whether she had a continuing inability to work at the time.

10. Before I deal with the above, it is convenient to set out the relevant legislative framework.

    LEGISLATIVE FRAMEWORK

11. Section 94 of the Social Security Act 1991 (Cth) (the “Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the two remaining requirements are that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

12. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim, in this case 3 December 2015. There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[11] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 3 December 2015 and 3 March 2016.

    [11] See ss 41 and 42, and Schedule 2, cll 3 and s 4(1) of the Social Security (Administration) Act 1999 (Cth).

13. In regards to the Relevant Period, the Respondent rightly relies on Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[12] a matter that stressed:[13]

    the Tribunal must 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).

    [12] [2012] AAT 922.

    [13] Respondent’s Statement of Facts Issues and Contentions p.3 at [15].

14. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[14]  The Tables are function based rather than diagnostic. The Tables describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.

    [14] See s 26(1) of the Act.

15. In the case of Mental Health Function, the Introduction to the relevant table, Table 5, makes it clear that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner… with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

16. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.

    CONSIDERATION

    Bipolar condition

17. In support of her claim for DSP the Applicant provided a medical certificate from her treating psychiatrist Dr Ravi Rawlley. Dr Rawlley, in a letter dated January 2016, noted that the Applicant had a long history of “Bipolar Affective Disorder-I”.[15]

    [15] Exhibit 1, T Documents, T21 Medical Certificate from Dr Ravi Rawlley dated 16 January 2016, p.170.

18. Dr Rawlley had previously noted the Applicant’s many relapses. He observed that the Applicant struggled in balancing work with other stressors of life. He asserted that the Applicant has an inability to work full-time and gave his support for a DSP application.[16]

    [16] Exhibit 1, T Documents, T20 Letter of Dr Ravi Rawlley dated 12 November 2015, p.164.

19. In light of the concessions made by the Secretary and of the medical evidence available to the Tribunal,[17] I am satisfied that the Applicant meets the criteria under section 94(1)(a) and 94(1)(b). I am now able to assign an impairment rating based on the descriptors in the relevant Impairment Table - Table 5. The Secretary contends that the condition ought to only attract only 10 points under Impairment Table 5.[18]

    [17] see Respondent Statement of Facts Issues and Contentions p.5 at [31], and p.6 at [32].

    [18] Respondent Statement of Facts Issues and Contentions p.7 at [40].

    Table 5 – Mental Health Function

20. The introduction to Table 5 notes:

    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).

21. I am satisfied, and in light of the Secretary’s concessions, that Dr Rawlley is suitable qualified to have made such a diagnosis. Having reached that conclusion it is necessary to establish how many Impairment Points the Applicant’s condition attracts under Table 5, being the relevant table.

22. Under Table 5 the descriptors for 10 points (with examples) are as follows:[19]

    [19] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

    There is a moderate functional impact on activities involving mental health function.

    (1)       The person has moderate difficulties with most of the following:

    (a)       self care and independent living;

    Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

    (b)       social/recreational activities and travel;

    Example 1: The person goes out alone infrequently and is not actively involved in social events.

    Example 2:  The person will often refuse to travel alone to unfamiliar environments.

    (c)        interpersonal relationships;

    Example: The person has difficulty making and keeping friends or sustaining relationships.

    (d)       concentration and task completion;

    Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

    Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

    (e)       behaviour, planning and decision-making;

    Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands. 

    Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

    Example 3: The person’s activity levels are noticeably increased or reduced.

    (f)         work/training capacity.

    Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

    The Applicant’s evidence

23. Both the Applicant and her husband Mr Lancaster presented at the hearing. The couple sought leave for Mr Lancaster to appear on the Applicant’s behalf. I was satisfied with that arrangement, but it became apparent that Mr Lancaster was taking a combined role of advocate and witness. The Applicant interrupted a number of times with matters that were of an evidentiary nature. I determined the couple should each take an oath as if both were a witness, thus allowing them the flexibility to present the Applicant’s case as best they could.

24. The Applicant testified that she was able to work during the relevant period, but that it was not to her maximum efficiency. She told the Tribunal that she is able to go out and do the shopping but that generally her husband goes with her. The couple attend church together and she is involved in the church’s affairs.

25. At Church the Applicant and her husband socialise with other members of the congregation. The Applicant had also helped a neighbour with their gardening, she no longer does so but ceased doing so at her husband’s request and not because she was unable or incapable to do the work.

26. The Applicant said that her employer became difficult when she took time off and this was an unfortunate issue but there was nothing she could do. The Tribunal was not presented with evidence regarding the number of days off. This made it difficult to assess exactly how much she actually works.

27. However, from the evidence provided, she had been able to continue in employment through the relevant period and according to the medical statement she is able to continue working today.

28. The Applicant’s evidence is consistent with an impairment rating of 10 points. At most the Applicant’s impairment could be said to create moderate difficulties in respect to the above descriptors. This is consistent with the interpretation of the JCA.[20] I am persuaded that the JCA was correct in their assessment and in their allocation of 10 Impairment Points.

    [20] Exhibit 1, T Documents, T22 JCA Report dated 12 April 2016. p.172-176.

29. I am not persuaded that the evidence should lead me to conclude the Applicant’s impairment ought to be assigned a higher rating of 20 points.

    Continuing Inability to Work

30. The Applicant’s condition has not attracted 20 or more points under the Impairment Tables. Therefore, it is not necessary for me to consider a continuing inability to work.

    CONCLUSION

31. The Applicant does not qualify for DSP because her condition can only attract 10 points under the Impairment Tables during the relevant period.

32. The decision under review is therefore affirmed.

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

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Associate

Dated: 16 June 2017

Date of hearing:	12 May 2017
Advocate for the Applicant:	Mr Joseph Lancaster
Solicitors for the Respondent:	Ms Maleah Underhill Department of Human Services