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

[2016] AATA 399

Little and Secretary, Department of Social Services (Social services second review) [2016] AATA 399 (17 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5429
Re	Jo-Anne Little
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member S Taglieri D J Morris, Member
Date	17 June 2016
Place	Perth

The Tribunal affirms the decision under review.

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Member S Taglieri

CATCHWORDS

SOCIAL SECURITY –  enquiry as to portability of pension resulting in medical review and then cancellation of Disability Support Pension –  whether cancellation of pension was correct or preferable decision –  change in applicable Impairment Tables and applicant no longer satisfying qualification requirements –  decision to cancel affirmed

LEGISLATION

Social Security Act 1991 – s 94 – s 94(1) – s 94(1)(b)

Social Security (Administration) Act 1999 – s 80

CASES

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member S Taglieri
D J Morris, Member

17 June 2016

BACKGROUND

1. Ms Jo-Anne Little seeks a review of a decision to cancel her Disability Support Pension (DSP).  Ms Little also sought that, if that decision is set aside, for indefinite portability of DSP to be granted. 

2. The hearing was held on 20 May 2016. Ms Little was present and represented by Mr Tim Safe. The respondent was represented by Mr Ashley Burgess. The T documents as required under section 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence. The following documents were tendered unopposed and were also considered by the Tribunal:

   ·Centrelink Medical Review Report by Dr Sokolowska dated 9 October 2015[1]

   ·Letter from Victoria Kersh, Principal Psychologist dated 22 April 2015[2]

   ·Letter from Victoria Kersh, Principal Psychologist dated 22 April 2015[3]

   ·Letter from Ms S. Wells, Headwest WA dated 19 November 2015[4]

   [1] Exhibit A1

   [2] Exhibit A2

   [3] Exhibit A3

   [4] Exhibit A4

3. During the course of the hearing, the applicant withdrew her application for indefinite portability of DSP. The Tribunal noted that this particular application had been withdrawn and, for the purposes of section 42A of the Administrative Appeals Tribunal Act 1975, it is taken to be formally dismissed.

4. The Tribunal therefore proceeded to consider only the application for review of the decision to cancel Ms Little’s DSP, made on 21 April 2015.

   FACTS

5. Ms Little is a 52 year old lady who was granted the DSP in August 2000. Between August 2000 and 2014, there had been medical reviews in 2002, 2007 and Job Capacity Assessment in 2008, all of which concluded Ms Little suffered permanent psychological and medical conditions with permanent impairment equating to 20 points pursuant to the Impairment Tables then applicable. Ms Little therefore continued to receive DSP during this period.[5]

   [5] T7 to T11 and T33

6. On 31 December 2014 Ms Little contacted Centrelink to inquire about indefinite portability of her DSP as she intended to go overseas within the next month for a period exceeding six weeks. Centrelink advised that she would have to undergo a medical review of her eligibility for DSP based on the new Impairment Tables introduced from 1 January 2012.  Ms Little was also advised that a Job Capacity Assessment (JCA) would be required and that there was a risk that her DSP may be cancelled.  She chose to proceed.

7. A JCA was carried out on 13 March 2015 by a qualified social worker with input from two registered psychologists and a registered occupational therapist.  On 20 March 2015 a second JCA was conducted, this time by a qualified social worker with input from a registered occupational therapist and another registered psychologist. Although the JCA reports reached differing conclusions about capacity for work, each assessment was that no impairment points could be assigned for the medical conditions from which Ms Little suffered.

8. On 21 April 2015, an officer of Centrelink advised the applicant that her DSP was to be cancelled on the grounds that her impairments did not generate the required 20 points, as is a necessary qualification under section 94 of the Social Security Act 1991 (the Act).

9. Ms Little requested a review of the Centrelink decision to cancel the DSP by an Authorised Review Officer (ARO) of the Department of Social Services, who on 19 May 2015 affirmed the original decision.

10. From 1 July 2015, the Social Security Appeals Tribunal ceased to exist and its functions transferred to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT). Under the transitional arrangements set out in the Tribunals Amalgamation Act 2015, the application for review was taken to be an application for AAT first review (AAT1).

11. The AAT1 hearing was held on 15 September 2015.  It affirmed the decision to cancel the DSP.

12. Ms Little has now requested a second review in the General Division of the AAT. 

    ISSUES

13. The ultimate issue in this review is whether the decision to cancel Ms Little’s DSP was the correct or preferable decision.  During the course of the hearing, submissions were made about the relevant date at which the Tribunal should consider qualification.  The Respondent contended that it was at the date of the decision to cancel DSP, namely 21 April 2015. It was contended otherwise by Ms Little and following the hearing, by letter to the Tribunal dated 27 May 2016, it was submitted that the Tribunal should consider a date subsequent to 21 April 2015, the date the DSP payments ceased (1 June 2015) as the relevant date. 

14. As the decision under review is to cancel DSP, the Tribunal is bound to apply section 80 of the Social Security (Administration) Act 1999. As to the relevant date of qualification to be considered, the Tribunal is bound to follow the Federal Court decision in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, wherein Davies J said:

    “The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit…However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration.  Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim…”

15. Consequently, the Tribunal must determine if at the date of the decision to cancel DSP, Ms Little was qualified for the purposes of section 94 of the Act.

16. Section 94(1) of the Act provides that a person is qualified for DSP 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 continued inability to work.  

17. Although Ms Little was first granted DSP in 2000, as medical review took place after 1 January 2012, the Impairment Tables implemented from 1 January 2012 and set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (2011 Determination) are applicable. [6]

    [6] Section 27(3) Social Security Act 1991

    Does the applicant have a physical, intellectual or psychiatric impairment?

18. In 2000, the applicant was diagnosed by Dr Kevin Nikellys, General Practitioner, with “General anxiety disorder, long history reveals PTSD due to past experiences with violence.”  She was also diagnosed by Dr Nikellys with “Depression.”  Dr Nikellys noted that the applicant was not coping well with day to day activities, had altered mood and sleep patterns and general anxiety.[7] The Tribunal notes that Ms Little has been a long-time patient of Dr Nikellys and he is very familiar with her medical circumstances.

    [7] Document T4, at page 75.

19. In 2000 the applicant also saw Mr John Tevake, clinical psychologist.  He noted her long history of difficult personal circumstances and assessed that she scored in the ‘severe’ range on the Beck Depression Inventory II for depression, and in the ‘severe’ range on the Beck Anxiety Inventory.  Mr Tevake also reported that Ms Little (then known as Ms Oppermann), “would appear to have Dysthymic Disorder (DSM-IV 300.4) in view of the long standing nature of her depression,…”. Mr Tevake said that the applicant’s problems were chronic “but hopefully not permanent”.[8]

    [8] Document T5 at page 82.

20. In 2002, Dr Street, a Medical Assessor appointed by the Respondent examined and assessed Ms Little. Dr Street observed that there were chronic symptoms of depression and anxiety with lack of response to treatment which had endured for a considerable time. Dr Street noted that Ms Little was to see a psychiatrist at the Swan District Hospital in 2003. He expressed the view that Ms Little’s impairment was permanent and attracted 20 points under the Impairment Tables applicable at the time. In 2003, Ms Little had another health set-back. She was diagnosed with a petrous apex/tentorial meningioma (brain tumour), for which she had surgery in September 2003.  The surgery appeared to be successful, but the applicant is required to have yearly MRI tests and she could face further surgery if the condition relapses.

21. Ms Little was required to undertake a Job Capacity Assessment (JCA) in 2008 following a medical review.  Her impairment due to depression and anxiety was regarded to be permanent and again 20 points were assigned under the Impairment Tables applicable at the time.[9]

    [9] T33.

22. Medical review was undertaken in 2014. Dr Nikellys submitted a medical report in July of 2014[10] and a further one in February 2015[11]. In the latter report, Dr Nikellys referred to the diagnosis of “depression with anxiety”, said to be confirmed by specialist opinion of a “Psychiatrist -  SDH”, which the Tribunal infers reasonably to be Swan District Hospital given advices from Ms Little during the hearing and reference to this hospital in Dr Street’s 2002 report.

    [10] Part of T11.

    [11] Part of T13.

23. Another JCA was carried out on 13 March 2015 and assessed the brain tumour condition as fully diagnosed and fully treated, and fully stabilised in the sense that it is currently in remission.[12] The JCA also considered the diagnosis of depression and anxiety, and noted this had been diagnosed by a psychiatrist at Albany Hospital in 2001, but the particular report could not be located in 2014.  It also noted that the applicant advised she had not seen a psychiatrist since this time but her condition had been conservatively managed by anti-depressant medication including valium, as needed, since that time. The 13 March 2015 JCA reports that the applicant had a “Psychol/Psychiatric Disorder” which was verified by medical evidence and fully diagnosed.

    [12] Document T14 page 193.

24. The applicant herself said that her symptoms, particularly anxiety, abated when she was in Bali, where she has stayed for lengthy periods as her son and daughter-in-law live there.

25. The JCA reports that discussions with the applicant’s treating general practitioner, Dr Nikellys, found that the applicant’s functional losses from the brain tumour, as referenced to Impairment Table 2 – Upper Limb Function, are “negligible”. Dr Nikellys reported that Ms Little’s anxiety “continues due to uncertainty of progression of Meningioma.  This uncertainty feeds into her anxiety and depression.”[13]

    [13] Document T14 page 194.

26. Miss Victoria Kersh, who describes herself as “Principle [sic] psychologist”, saw the applicant and on 22 April 2015 diagnosed her as suffering from post-traumatic stress disorder (PTSD) and major depression and anxiety, being chronic and severe. Dr John Perica, a consultant psychiatrist, provided a report dated 11 May 2015.[14] Dr Perica said that the applicant presents “with a long history of post traumatic stress disorder, as characterised by problems with temper, impulsive spending and self-harm behaviours.”  Dr Perica changed the medication the applicant was receiving and arranged to have further consultations.

    [14] Document T19 page 212.

27. The Tribunal notes that the introduction to Table 5 – Mental Health Function of the Impairment Tables 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).

28. Dr Perica is an appropriately qualified medical practitioner to make this diagnosis.  His diagnosis also is consistent with, and confirms, the earlier Albany Hospital psychiatrist’s diagnosis, which the Department refers to, but was unable to locate. It is also largely consistent with the persistent experience of chronic depression and anxiety varying in severity over time.

29. The applicant submitted a medical report dated 9 May 2015 from Dr Denka Sokolowska, who described herself as ‘Senior Medical Officer in Psychiatry’ at Bentley Health Service.  Dr Sokolowska reported a diagnosis of “Bipolar Affective Disorder PTSD” with a date of onset of 1 March 2015.  Unfortunately, Dr Sokolowska did not provide any details as to why she cited this date of onset, and instead recorded that the diagnosis was confirmed by Dr Perica and by Miss Kersch.

30. Because her qualifications were not clear from the medical report, the Tribunal sought submissions from the applicant and respondent as to specialist qualifications of Dr Sokolowska. The Australian Health Practitioners Agency website shows Dr Danita Piepiorka-Sokolowska to hold general registration.  The respondent provided advice dated 20 May 2016 to the Tribunal that Bentley Hospital says that Dr Sokolowska uses a shortened form of her surname in day to day practice.

31. The Tribunal notes that Dr Sokolowska is not a qualified psychiatrist or a clinical psychologist, and nor has she held herself out as one.  Her report of 9 May 2015 is not of great assistance in this proceeding because of the date cited for onset lacks any other supporting material. Further, the date of onset is contradictory to the extensive volume of documentation in the T documents, which evidence a very long standing psychiatric condition dating back to the early 2000s.

32. Notwithstanding that there has been a variety of descriptions of the psychological disorder suffered by Ms Little as “anxiety”, “depression”, “PTSD”, “bipolar”, the weight of consistent medical evidence dating back to 2000 when the DSP was granted, which cited “depression and anxiety, and schizotypical [sic] personality disorder”[15], and the 2015 diagnosis by a qualified psychiatrist, referring to the applicant’s “long history” of a psychological disorder, all support the conclusion that the applicant does also have a psychological impairment which satisfies the requirements of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 and section 94 of the Act. The Tribunal so finds.

    [15] Document T21 at page 217.

33. Having reached this conclusion, it is necessary to consider what points rating applies to Ms Little’s permanent psychological impairment.

    What is the correct rating under the Impairment Tables?

34. In terms of the meningioma, the applicant advised the JCA that she experienced a number of effects, including intermittent numbness in the right hand, pain in the back of the head, loss of a sense of smell and needing glasses to read.  There is also medical evidence of left facial and right sided paraesthesia which has remained unchanged since 2003.  Dr Nikellys reported that the functional impacts associated with the brain tumour are negligible.

35. While the Tribunal accepts that Ms Little suffers residual unpleasantness from the effects of required treatment for the brain tumour, these do not enable points to be assigned pursuant to Table 2 - Upper Limb Function of the Impairment Tables, for the meningioma.

36. In terms of the psychological disorder, the applicable table is Table 5 – Mental Health Function.

37. Ms Little usually lives independently and has been able to travel fairly frequently to Bali, where she keeps a room.  There is no evidence to suggest that she has not planned and organised this travel quite effectively.  There is also evidence that she has been employed intermittently in the hospitality industry, most recently 3 to 5 years ago for approximately 45 hours a week.[16] For a period, she ran a food van and told the Tribunal that she had to give up the job because the van did not have power-assisted steering and was too heavy for her to drive.  However, she effectively undertook the various tasks this work entailed, including managing the preparation and sale of food, and other elements of the job, which is to her credit.

    [16] Document 714 at page 197.

38. The Tribunal notes long and consistent medical evidence of anxiety and a history of traumatic personal experiences, including suicide ideation, none of which was challenged by the respondent.  The Applicant has provided extensive accounts of her difficulties with activities ranging from normal daily living, personal care and work.[17] These are largely corroborated by the contents of Dr Nikellys’ reports and also that of Dr Aung.  The Tribunal finds that on all the evidence before it that the descriptors for 10 points under Table 5 of the 2011 Determination are satisfied and should therefore be assigned.

    [17] Part of T13 and T37 and T38.

39. The Tribunal therefore concludes that the requirements of section 94(1)(b) of the Act were not satisfied at the date the Respondent cancelled Ms Little’s DSP. Although she suffered from permanent conditions, being Meningioma and Psychiatric disorders (variously described as noted above), such conditions could not be assigned 20 points under the 2011 Determination which applied at the relevant time. The applicant was not qualified for DSP on the relevant date, 21 April 2015.

40. As each part of section 94(1) of the Act must be satisfied for a person to be qualified for DSP, it is not necessary for the Tribunal to go on to consider whether the applicant has a continuing inability to work.

41. The Tribunal notes that it is open to the applicant to make a future application for DSP, should there be more persuasive psychiatric and other evidence, capable of demonstrating that 20 points ought to be assigned for the medical and psychological conditions from which she suffers. 

42. Since Ms Little first qualified for DSP, the requirements applicable for continued qualification for such payment have become stricter with the introduction of the 2011 Determination and Tables under it. The regrettable outcome for her is that the reviewable decision must be and is affirmed

    DECISION

43. For the above reasons, the Tribunal affirms the decision under review.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Member S Taglieri , D J Morris, Member

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Administrative Assistant

Dated 17 June 2016

Date of hearing	20 May 2016
Date final submissions received	1 June 2016
Advocate for the Applicant	Mr T Safe
Representative for the Applicant	Sussex Street Community Law Service Inc.
Representative for the Respondent	Mr A Burgess
Solicitors for the Respondent	Sparke Helmore Lawyers