Leanne Cowell v Secretary, Families, Housing, Community Services & Indigenous Affairs
[2011] AATA 757
•27 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 757
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2010/4293
GENERAL ADMINISTRATIVE DIVISION ) Re LEANNE COWELL Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R J Groom AO, Deputy President Date27 October 2011
PlaceHobart
Decision The decision under review is affirmed. ..............................................
The Hon R J Groom AO
Deputy President
CATCHWORDS
SOCIAL SECURITY – disability support pension – borderline personality disorder – depression – whether fully diagnosed, treated and stabilised – whether impairment rating is of 20 points or more – impairment rating below 20 points – decision under review affirmed.
Social Security Act 1991, s94 schedule 1B
Social Security (Administration) Act 1991, ss 41, 42 and schedule 2
Secretary, Department of Social Security and Symons [1996] AATA 10662
Re. Tionan and Secretary, Department of Social Security (1997) 24AAR 467
REASONS FOR DECISION
27 October 2011 The Hon R J Groom AO, Deputy President INTRODUCTION
1. This is a review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 23 September 2010 affirming a Centrelink decision to reject a claim made by the Applicant on 4 May 2010 for a disability support pension (DSP).
ISSUE
2. The principal issue to be determined by the Tribunal is whether Ms Cowell satisfies the requirements of section 94 of the Social Security Act 1991 (“the Act”) that she has an impairment rating of at least 20 points, and also a continuing inability to work as at the date of claim or within 13 weeks of that date.
BACKGROUND FACTS
3. Ms Cowell is now aged 38 years. She has suffered from borderline personality disorder and depression for many years. Ms Cowell was able to undertake work duties and generally cope with life prior to her becoming pregnant and then giving birth to twins in 2006. Before then she had held various jobs over significant periods of time including three years as a waitress at a coffee shop and seven years as a bus driver with Metro in Tasmania. Ms Cowell said in her oral evidence that problems with her “… mental health started … when I got pregnant …”. (Transcript p.7).
4. Ms Cowell suffered high blood pressure and other complications during the pregnancy. The twins were delivered in Melbourne by caesarean section. Soon after the babies came home, Ms Cowell’s partner left her to live with his parents. She battled on in most difficult circumstances. Because Ms Cowell was having problems caring for the twins, the relevant Department eventually arranged for the children to be placed with their paternal grandparents. This caused Ms Cowell deep concerns. However, later the twins were taken into the care of Ms Cowell’s mother.
5. With help from her family, Ms Cowell purchased a house in Ravenswood, a suburb of Launceston. She was then able to see the twins regularly. They were staying with her at least one night a week. Ms Cowell became involved in a serious dispute with neighbours over the use by them of her telephone. She was subjected to constant threats and bullying. The police became involved and court proceedings followed. Ms Cowell was so frightened by the neighbours’ conduct she abandoned the house which was later repossessed.
6. Ms Cowell has had great difficulty coping with the many stressful situations that have arisen in her life, and particularly in interacting with people. Her mental state is characterised by “mood swings” including depressed moods. She has been suicidal on a number of occasions. Ms Cowell has at times exhibited annoyance leading to anger. There is present impulsivity and low self-worth. Despite her mental state, she has shown that she has a good work ethic. Ms Cowell has not abused drugs or alcohol.
7. There have been various diagnoses of her medical condition by health professionals including the medical practitioners and psychologists who have been treating her.
8. Dr Cas Stewart, her general practitioner, diagnosed “borderline personality disorder” and “depression” which he described as “permanent” (T9). Dr Anjuman Begum, a general practitioner, completed a medical report dated 23 August 2009 (T4). In it he expressed the opinion that Ms Cowell was suffering from “bipolar affective disorder” and “major depressive disorder” (at page 16).
9. Dr Rosie Bickel, a clinical psychologist, who had 11 psychological sessions with Ms Cowell from April 2009, expressed the opinion that she suffers borderline personality disorder and major depressive disorder. Dr Bickel described depressed mood most of the day nearly every day, diminished interest/pleasure in all activities, insomnia, psycho-motor retardation, fatigue, feelings of worthlessness and recurrent thoughts of death (T7).
10. Christina Brown, a registered psychologist, stated that Ms Cowell’s experiences with her neighbours in Ravenswood “… meet all the requirements of DSM IV …” and that a “diagnosis of PTSD is appropriate”. Ms Brown also recognised that Ms Cowell is suffering from borderline personality disorder. (See report dated 26 January 2011).
11. Further opinions were expressed by individuals working for various health organisations. In the Tribunal’s view those opinions should not be accorded any significant weight (eg Launceston Women’s Shelter, Adult Community Mental Health Services North and Aspire).
THE LAW
12. Section 94 of the Act relevantly provides 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 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
(f) the person is not qualified for disability support pension under section 94A”.
13. It is conceded by the respondent, and the Tribunal agrees, that section 94(1)(a) of the Act is satisfied because Ms Cowell has an impairment arising from her medical conditions. Subsections 94(1)(d), (e) and (f) of the Act are also satisfied.
14. The Respondent contends that Ms Cowell does not satisfy section 94(1)(b) and (c) within the “qualification period”( ie at the date of claim or within 13 weeks thereafter - see sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999) as she did not have an impairment rating of at least 20 points nor did she have “continuing inability to work”.
DOES THE APPLICANT HAVE AN IMPAIRMENT RATING OF LEAST 20 POINTS?
15. Section 94(1)(b) of the Act requires that Ms Cowell’s impairment rating be at least 20 points using the Impairment Tables in Schedule 1B of the Act.
16. In the introduction to the Tables the following statement is made:
“(2) These Tables are designed to assess impairment in relation to work and consist of system-based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance.”
17. It is not in dispute between the parties, and the Tribunal agrees, that the Table applicable to Ms Cowell’s condition is Table 6 “psychiatric impairment”.
18. It is necessary for the Tribunal to establish a diagnosis based on the best available evidence. After considering all the material before it the Tribunal accepts as reliable the diagnosis provided by Dr Stewart, namely that Ms Cowell suffers from borderline personality disorder and depression. This is essentially the same as the diagnosis provided by Dr Bickel. The Tribunal is not satisfied on the evidence that PTSD is the correct diagnosis of Ms Cowell’s condition. It finds Dr Bickel’s report of 14 January 2010 to be more persuasive than Ms Christina Brown’s two reports of 26 January 2011 and 26 March 2011.
19. On 30 April 2010 Dr Stewart expressed the opinion that the conditions suffered by Ms Cowell were “permanent”. Ms Cowell lodged her claim for DSP shortly after that date, namely on 4 May 2010.
20. Again referring to the introduction to the Tables the following is said at paragraph 5:
“(5) The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.”
21.An issue that arises on the evidence is the fact that Ms Cowell has tended to disengage with psychologists and has sometimes failed to keep appointments.
22.It is noted that in the SSAT decision of 23 September 2010 (which is in evidence before the Tribunal) that Tribunal concluded at paragraph 23:
“On the basis of the evidence provided the Tribunal formed the view and so found that Ms Cowell’s condition of borderline personality disorder and depression should be regard as fully diagnosed, treated and stabilised. The Tribunal concluded that at present Ms Cowell lacks insight and judgment regarding her behaviour which affects her ability to comply with recommended treatment. Although some improvement has been shown as Ms Cowell has not had significant suicidal crises this year and Child Protection Services is working towards reunification with her children, the Tribunal is of the opinion that it is unlikely there will be any significant functional improvement, with or without reasonable treatment within the next two years”.
23. On the question of the weight to be given to a JCA report the Tribunal has considered Mr Sparke’s written submission of 23 August 2011 and also Ms Eder’s responding submission of 29 August 2011. The Tribunal is obviously not bound to accept as reliable opinions expressed by Job Capacity Assessors but must give their opinions appropriate weight bearing in mind their knowledge and training but also fully considering medical and other evidence before it.
24. Four separate Job Capacity Assessment Reports (“JCA”) were prepared in which Ms Cowell’s work capacity was assessed. The most recent JCA report is dated 23 February 2011. It was prepared by Claire Kirby, a registered psychologist, with a contribution from Paul Hayes, also a registered psychologist. Although prepared well outside the “qualification period” the report assists the Tribunal in its understanding of the nature and degree of Ms Cowell’s impairment.
25. The assessors acknowledge at page 3 of their 2011 report that Ms Cowell’s condition of borderline personality disorder and major depressive disorder were fully diagnosed, treated and stabilised. As noted in their report this finding is consistent with the decision of the SSAT. The assessors indicate agreement that Ms Cowell’s lack of engagement with psychologist was “… a reflection of impaired judgment associated with borderline personality disorder rather than an informed active choice not to engage in treatment”. After considering all the evidence the Tribunal is satisfied that as at the date of the claim for the DSP Ms Cowell’s conditions of borderline personality disorder and depression were then permanent and “fully diagnosed, treated and stabilised”. In arriving at that conclusion the Tribunal has given the word “treated” a broad rather than a restricted meaning (see Secretary, Department of Social Security and Symons [1996] AATA 10662 and Re Tionan and Secretary, Department of Social Security (1997) 24AAR 467).
26. The next question to be determined is whether Ms Cowell’s medical conditions result in a impairment rating of at least 20 points.
27. Ms Eder for the Applicant contends that the appropriate rating is 30 points under Table 6. It was submitted that Ms Cowell suffers “… a serious psychiatric illness with major impairments in several areas such as work, interpersonal relations, judgment, thinking or mood. For example, a depressed person avoids friends, neglects family, is unable to do housework. I submit that that exactly describes the symptoms that Ms Cowell had described to us today and symptoms that her numerous psychologists and her GP, that she has been seeing for many years, also describes and has consistently described.” (Transcript page 29).
28. On the other hand Mr Sparkes for the Respondent argues that if indeed the conditions were fully diagnosed, treated and stabilised then “… the Secretary would say that the SSAT was correct in allocating 10 points …”.
29. In this case no medical professionals were called to give evidence. It is therefore necessary for the Tribunal to rely on the written medical reports that are before it. It finds that the most reliable and persuasive report is that provided by Dr Bickel and dated 14 January 2010. Dr Bickel had treated and observed Ms Cowell on 11 occasions. In her report which was addressed to Ms Wong of the Legal Aid Commission of Tasmania, she said as follows :
“Ms Cowell only satisfies the minimum number of criteria for BPD and her condition is thus not severe. She reported to have coped well prior to falling pregnant with the twins. She had a regular full-time job, was buying a house and used riding with her best friend as a coping strategy. However she has never had successful close relationships, and it is suggested that when the closest possible relations (with her twins) occurred, she could not cope with this, together the large number of stressful events pertaining to health problems during pregnancy, child birth and post-natal and subsequent involvement of Child and Family Services. Ms Cowell does not abuse drugs or alcohol and is well organised, attending all scheduled appointments and providing regular payments. Ms Cowell’s anger is fuelled by her tendency to blame organisations, which then intensifies her anger to a point where she feels justified in making complaints/or even loses control and starts verbally abusing staff. Although this blaming is protective, it has also resulted in the vicious cycle of conflict with various organisations, which then leads to Ms Cowell feeling powerless, hopeless and depressed.”
30. The review by this Tribunal is a de novo consideration of all of the material before it. The decision of the SSAT however is in evidence. It is noted that the SSAT panel considered the evidence and determined that the correct impairment rating for Ms Cowell was 10 points.
31. The only other health professional who expressed a definite view about the appropriate impairment rating to be assigned to Ms Cowell was Ms Claire Kirby in the JCA report of 23 February 2011. That report post-dated the SSAT decision. The rating recommended by Ms Kirby was also 10.
32. As a result of her medical conditions Ms Cowell has clearly had long-standing problems in maintaining relationships and in coping generally with the many stressors and strains of her life. However, prior to her pregnancy and the birth of the twins, she was able to hold down a responsible position and also to reasonably manage at home. The problems associated with her pregnancy, the strain for caring for young twins, the departure of her partner, work-related problems and the serious harassment she endured at Ravenswood caused Ms Cowell to suffer serious ill health, including bouts of depression and suicidal thoughts and actions.
33. However in more recent times Ms Cowell’s circumstances appear to have been more stable and less stressful to her. As a result her health problems have not been as severe as they were, with fewer periods of hospitalisation and suicidal thoughts. Nevertheless it is recognised that she clearly still functions with difficulty and has to cope with the ongoing symptoms of her permanent medical conditions.
34. For a rating of 20 points the disorder requires “serious” symptomatology or impairment “that requires treatment by a psychiatrist”. In this case there is no evidence of treatment by a psychiatrist. The treatment has been by general practitioners or psychologists. The word “requires” should be interpreted generously. It does not mean that there must be evidence that the person has in fact been treated by a psychiatrist. However the condition should be so serious that it requires treatment by a psychiatrist. It is obviously helpful to an applicant if he or she has in fact received such treatment. In this case there is no evidence of treatment by a psychiatrist but nor is there any evidence suggesting that treatment by a psychiatrist is necessary.
35. Ms Cowell’s medical condition of borderline personality disorder and depression did not suddenly arise at or about the time of the birth of the twins. Of course the symptoms were more severe at that time. It is reasonable to infer from the evidence that Ms Cowell’s medical conditions existed well before that point in time, and indeed were present when, for example, Ms Cowell was working as a public transport bus driver for Metro. In other words Ms Cowell held down that very responsible and quite demanding position for some seven years, despite her borderline personality disorder and predisposition to depression. She may have had difficulties at work and sometimes had days off but her conditions clearly did not cause “serious disruption of work or ability to work”. If that had occurred, it is most unlikely that Ms Cowell could have remained in that position for seven years.
CONCLUSION
36. The Tribunal has considered all of the material before it, including in particular Dr Bickel’s view that Ms Cowell’s condition “is thus not severe”, the opinion of Ms Claire Kirby that the appropriate impairment rating is 10 points, and evidence that, in the past, despite suffering from her medical conditions Ms Cowell has been able to maintain employment in responsible positions for considerable periods of time.
37. Although Ms Cowell will inevitably continue to suffer some ongoing symptoms of her conditions of borderline personality disorder and depression, the Tribunal is satisfied that with further treatment by a psychologist, and with assistance from the Disability Employment Service (see the JCA report of 23 February 2011) Ms Cowell has the capacity to engage in worthwhile employment.
38. In the Tribunal’s view the applicant’s psychiatric illness or disorder is not so serious nor is her impairment in functioning sufficient as to satisfy the test for 20 points in the Impairment Tables. There is no evidence of treatment by a psychiatrist or any suggestion from health professionals that treatment by a psychiatrist is required. The Tribunal is not satisfied that the conditions will, of themselves, cause serious disruption of work attendance or ability to work. In a more stable and less stressful environment Ms Cowell should be able to again take up carefully selected employment.
39. The Tribunal finds that the applicant does not have an impairment rating of 20 points or more in Table 6 “psychiatric impairment”.
40. The Tribunal will not proceed to consider whether Ms Cowell has a continuing inability to work as an impairment rating of 20 points is a prerequisite to obtaining a DSP.
DECISION
41. The decision under review is affirmed.
I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO, Deputy President.
Signed:
Sue Gourlay............................................................................
AssociateDate/s of Hearing 18 August 2011
Date of Decision 27 October 2011
Counsel for the Applicant Ms S Eder
Solicitor for the Applicant Launceston Community Legal Centre
Counsel for the Respondent Mr B Sparkes
Solicitor for the Respondent Centrelink Advocacy Branch
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