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

[2019] AATA 3247

McKenna and Secretary, Department of Social Services (Social services second review) [2019] AATA 3247 (1 August 2019)

Division:GENERAL DIVISION

File Number:           2018/0029

Re:Robyn McKenna

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier A G Warner, Member

Member D Fitzgerald

Date:  1 August 2019

Date of written reasons:        4 September 2019

Place:Perth

The Tribunal affirms the decision under review.

.........................[sgd]...............................................

Brigadier A G Warner, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant’s impairments were fully diagnosed, treated and stabilised – whether applicant’s impairments attract 20 points under Impairment Tables – continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 94(1)(a), 94(1)(b), 94(1)(c)

Social Security (Administration) Act 1999 (Cth) – Schedule 2

CASES

Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634

Re Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252

SECONDARY MATERIALS

Guide to Social Security Law, Department of Social Services, version 1.257 – Instruction 3.6.3.05

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

REASONS FOR DECISION

Brigadier A G Warner, Member
Member D Fitzgerald 

4 September 2019

INTRODUCTION

1. On 1 August 2019, the Tribunal, at the conclusion of a hearing held that day, gave oral reasons for its decision to affirm the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 13 December 2017. 

   
   

   That AAT1 decision affirmed an earlier decision of the Department of Social Services

   
   (the Department)

   to reject Mrs McKenna’s claim for disability support pension (DSP) which had been lodged on 14 June 2017 (T46/229).

2. Mrs McKenna, supported by her husband Mr Wayne McKenna, attended the hearing in Perth. The Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers.

3. Mrs McKenna subsequently requested a written statement of those reasons. The written reasons which follow are distilled from the edited transcript of the oral reasons given on

   
   

   1 August 2019.

   BACKGROUND

4. Mrs McKenna was 60 years old when she lodged the relevant DSP claim on

   
   

   14 June 2017 (T31/152-181).

5. On 7 March 2017, a Job Capacity Assessment (JCA) was undertaken by a registered psychologist (T28/143-149).

6. On 21 June 2017, the Department rejected the claim for DSP on the basis that

   
   

   Mrs McKenna did not have an impairment that rated 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) (T34/185). On 18 August 2017,

   
   

   a Centrelink authorised review officer (ARO) affirmed the decision to reject the claim for DSP because the ARO considered that none of Mrs McKenna’s medical conditions were fully diagnosed, treated and stabilised, and therefore could not be assigned impairment ratings.

7. Mrs McKenna applied for a review by the AAT1 on 8 September 2017, and on

   
   

   13 December 2017 that Tribunal affirmed the decision to reject the DSP claim, having found that Mrs McKenna’s mental health condition was not fully diagnosed, treated and stabilised, and her diabetes did not cause her any functional impairment.

8. On 4 January 2018, Mrs McKenna applied for a review by this Tribunal by way of an application dated and signed on 28 December 2017 (T1/1-2). Mrs McKenna gave her reasons for seeking a review as follows:

   This has been ongoing for some time. Centrelink lost the original application back in 2013. We haven’t just applied in 2017. They have asked for a clinical psychologist report stating diagnosis, treatment and ongoing treatment which I am sure is covered in the letter from Dr Bartova. Centrelink did not say we need ongoing treatment from Dr Bartova.

   And further:

   Spokesperson, S. Brakespeare for AAT, acknowledges Robyn McKenna's medical condition, but states since she has not had further treatment with clinical psychologist, she does not have any points to qualify for Disability Support Pension. (T1/2).

   ISSUE

9. The issue in this matter is whether Mrs McKenna was qualified for DSP on the day she lodged her claim, 14 June 2017, or within 13 weeks after that date (the qualification period). This requires consideration of whether the requirements set out in s 94 of the Social Security Act1991 (Cth) (the Act) are met.

   LEGISLATION

10. The legislation applicable in this matter is contained in: the Act; the Social Security (Administration) Act1999 (the Administration Act); the Impairment Tables;

    
    

    and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

11. The relevant policy is contained in the Guide to Social Security (the Guide).  Although the Tribunal is not bound to comply with policy, the Tribunal would normally do so unless there were cogent reasons for departing from it in a particular case (Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634).

12. The statutory and policy provisions are laid out comprehensively in the Respondent’s Statement of Facts & Contentions dated 24 September 2018 (Exhibit R1, paras. 21-32). The qualification criteria for DSP can be summarised as follows:

    (a)Section 94 of the Act sets out the first requirement for qualification for the DSP, and that is that a person had an impairment at the time they lodged their claim, and in the present matter, the Respondent accepts, and the Tribunal is satisfied, that Mrs McKenna meets this requirement, as it is agreed she had a number of conditions when she lodged her claim in June 2017. The second requirement for DSP is also in s 94 of the Act and provides that a person’s impairment must rate 20 or more points against the Impairment Tables at the time the claim was lodged.

    (b)Impairment Tables can be found in the Determination (the Impairment Tables). To apply the Impairment Tables, the condition or impairment must be considered permanent, and in the Determination, the word “permanent” does not have its usual meaning. For the purposes of the Determination, for a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and be fully stabilised and likely to last for more than two years. This requirement is covered in s 6 of the Determination. There is also a requirement that an applicant for DSP must have a continuing inability to work pursuant to s 94(1)(c) of the Act.

    EVIDENCE

13. The Tribunal had before it the following evidence:

    ·The ‘T-Documents’ (T1-T47);

    ·Letter from Mr Wayne McKenna received 31 October 2019 (Exhibit A1);

    ·Centrelink Medical Certificate dated 28 March 2019 (Exhibit A2);

    ·

    Medical Report by Dr Ian McGregor of Champion Lakes Medical Centre dated

    
    

    9 August 2018 (Exhibit A3);

    ·

    Medical Report of Dr Ian McGregor of Champion Lakes Medical Centre dated

    
    

    19 April 2018 (Exhibit A4);

    ·Respondent’s Statement of Facts, Issues and Contentions dated 24 September 2018 (Exhibit R1);

    ·The oral evidence of Mr Wayne McKenna; and

    ·The oral evidence of the Applicant.

    CONSIDERATION

14. An applicant’s claim for DSP must be assessed on the basis of the applicant’s medical conditions as at the date of claim or within 13 weeks of that time. In Mrs McKenna’s case the qualification period is 14 June 2017 to 13 September 2017.

15. In the case of Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley relevantly noted (at [33]) that:

    The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example,

    
    

    the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years”. While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter.

    
    

    For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

    (Original emphasis.)

16. In another matter in the Federal Court, that of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252, Gyles J said at [1]:

    …the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter.

    
    

    Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.

17. These authorities establish that a decision-maker, such as the Tribunal in the present matter, can only consider an applicant’s qualification for DSP within the relevant period. 

    
    

    If the applicant’s circumstances have subsequently changed, it would be appropriate to lodge a fresh claim. 

18. The Respondent contends that Mrs McKenna did not qualify for DSP during the qualification period for the following reasons (Exhibit R1, para. 10):

    a.The Applicant’s medical conditions were not fully diagnosed, treated and stabilised (FDTS) in the qualification period;

    b.The Applicant did not have a total impairment rating of 20 points or more under the Impairment Tables;

    c.The Applicant did not have a severe impairment and had not actively participated in a Program of Support (POS).

    d.The Applicant did not have a continuing inability to work.

19. However, this Tribunal’s review is de novo and the Tribunal now turns to its consideration of Mrs McKenna’s eligibility for DSP.

    Depression and anxiety

20. The Respondent accepts that during the qualification period Mrs McKenna suffered from a depressive condition as noted by Dr McGregor (T18/115-117), and contends that the mental health condition was fully diagnosed but not fully treated and stabilised during the qualification period and therefore cannot be rated under the Impairment Tables.

21. The Tribunal notes that the Impairment Tables require a medical condition to be diagnosed by an appropriately qualified medical practitioner. The introduction to Table 5 of the Impairment Tables states that for assessment of mental health function, the diagnosis must be made by either a psychiatrist, or if not by a psychiatrist, by an appropriately qualified medical practitioner with evidence from a clinical psychologist (T3/35, Table 5).

22. In this matter, the Tribunal accepts the evidence that Mrs McKenna’s mental health condition was fully diagnosed, and that comes from the diagnosis evidence of

    
    

    Dr Ian McGregor and Dr Zdenka Bartova, the clinical psychologist registrar.

    
    

    Dr McGregor’s report of 29 June 2015 lists anxiety/depression as a condition suffered by Mrs McKenna since 2015 (T18/115-116). There is evidence that Mrs McKenna has been treated pharmacologically with Lexapro for her depression and anxiety

    
    

    (T18/117, T25/136).

23. Ms Sarah Daniels (registered psychologist) reported on 25 July 2017 that Mrs McKenna experienced “symptoms consistent with elevated levels of stress, anxiety and depression” (T35/187), and had attended four counselling appointments since her referral on

    
    

    12 April 2016.

24. On 4 September 2017, and the Respondent notes that this is within the qualification period, Dr Zdenka Bartova, a clinical psychologist registrar, reported a diagnosis of Major Depressive Disorder and Generalised Anxiety Disorder. In that letter, Dr Bartova said that Mrs McKenna had presented for treatment and assessment on 28 August 2017.

    
    

    Dr Bartova reported that she could not comment on previous treatment undertaken by

    
    

    Mrs McKenna, but considered “…she would benefit from Cognitive Behaviour Therapy to treat her mood and anxiety symptoms, to increase her engagement in activities and to improve her independent living skills”. Dr Bartova noted that Mrs McKenna had expressed interest in having further psychological treatment (T40/197).

25. However, the AAT1 decision (T2/6, para. 18) records that the AAT1 was informed that

    
    

    Mrs McKenna was yet to commence treatment with Dr Bartova. The Tribunal notes that the AAT1 hearing occurred on 13 December 2017, which was some three months after the recommendation made by Dr Bartova, and three months after the end of the qualification period. Before this Tribunal, Mrs McKenna confirmed that she had been intending to start the treatment in January 2018.

26. The Tribunal has regard to the JCA report dated 7 March 2017, which remarks that the onset of the anxiety/depression condition was 1 May 2012 as reported by

    
    

    Dr Ian McGregor on 16 February 2017, and:

    Given that further Specialist Psychiatric or Clinical Psychology assessment or intervention has yet to be provided, the condition is not considered fully diagnosed, fully treated or stabilized as further treatment may significantly improve function over the next 2 years. (T28/144)

27. Before the Tribunal, Mr and Mrs McKenna explained that financial and healthcare plan constraints precluded engagement in the counselling recommended for Mrs McKenna.  The Tribunal concludes that the reported counselling sessions previously undertaken with Ms Daniels, in conjunction with Dr Bartova’s opinion that Mrs McKenna would benefit from further cognitive behaviour therapy, indicates that at the end of the qualification period

    
    

    Mrs McKenna’s condition was not fully treated and stabilised. The reports indicate that

    
    

    Mrs McKenna had not undergone all reasonable treatment, and in the clinical psychologist’s opinion, further recommended treatment could be expected to improve her functional capacity. There is no medical evidence before the Tribunal indicating that if this treatment was undertaken, Mrs McKenna’s symptoms and functioning were unlikely to improve.

28. The Tribunal is reasonably satisfied that as at the qualification period, Mrs McKenna’s mental health condition was fully diagnosed but not fully treated and stabilised.

    
    

    It follows that the anxiety/depression condition attracts no points under the Impairment Tables.

    Diabetes

29. The Respondent contends that Mrs McKenna’s diabetes was fully diagnosed, treated and stabilised in the qualification period, but causes minimal functional impairment,

    
    

    such that it does not warrant any rating under the Impairment Tables (Exhibit R1,

    
    

    para. 38).

30. On 27 January 2012, Dr McGregor noted diabetes in a Centrelink medical report form, noted treatment for diabetes and stated “diabetes remains well-controlled” (T14/100-102).

31. In a further report on 29 June 2015, Dr McGregor notes a diagnosis of non-insulin dependent diabetes mellitus, and that an MRI report confirms the diagnosis and a clinical history of diabetes (T18/116-123).

32. In a medical certificate dated 19 May 2016, Dr McGregor noted the symptoms of diabetes as being polydipsia, polyuria and nocturia and that they were likely to persist (T21/126).

33. Mrs McKenna, reported to the JCA in March 2017 that she has reviews every three months with a dietician and that her diabetes condition had not stabilised. The relevant JCA report recorded:

    Given that further Specialist Endocrinology Assessment and dietician intervention has yet to be provided, the condition is not considered fully diagnosed, fully treated or stabilized, as further treatment may significantly improve function over the next 2 years.

    The Contributing Assessor, [redacted] a Registered Occupational Therapist, has reviewed the condition and is in agreement that further Specialist Review or treatment options may significantly improve functioning within the next 2 years and that the condition is therefore not regarded as fully diagnosed, fully treated or fully stabilized. (T28/145)

34. Having examined and balanced all the evidence, the Tribunal agrees with the Respondent’s contention that Mrs McKenna’s diabetes was fully diagnosed, treated and stabilised. However, there is no evidence before the Tribunal that the condition causes functional impairment of any significance, and therefore it does not attract points under the Impairment Tables.

    Renal impairment

35. The Respondent contends that Mrs McKenna’s renal condition was fully diagnosed but not fully treated and stabilised in the qualification period, and notes there is limited evidence available to assess the impact of the condition (Exhibit R1, para. 39).

36. On 27 January 2012, Dr McGregor noted the condition renal impairment in a Centrelink medical report form, and noted that the diagnosis had been confirmed by laboratory reports, but that the cause was unknown. He noted that there had been no deterioration in the last three years, but considered there could be potential for further deterioration due to diabetes (T14/103-107).

37. A report of a MRI undertaken on 15 April 2016 recorded: “Severe renal impairment...
    If clinically appropriate, nephrologist referral may be considered” (T18/123). There are no reports to indicate that Mrs McKenna has obtained that specialist input for the renal condition.

38. On 15 May 2017, Dr McGregor noted that the condition was asymptomatic

    
    

    (neither displaying nor causing symptoms) (T29/150, T38/191), and that opinion was repeated in a further certificate on 15 August 2017 (T38/191). Elsewhere, in a letter dated 9 August 2018, which is well outside the qualification period and does not relate to or refer to the qualification period, Dr McGregor notes that “because of her diabetes and renal impairment Mrs McKenna is chronically fatigued… and her medical conditions have greatly impacted on the activities of daily living” (Exhibit R1, Annexure A).

39. The Tribunal notes that the renal impairment condition is not assessed in the JCA report dated 8 March 2017 (T28).

40. The Tribunal finds that Mrs McKenna’s renal condition was fully diagnosed at the qualification period, notes the oral evidence given during the hearing of recent deterioration in the condition, but having careful regard to all the material before it,

    
    

    is satisfied that it was not fully treated and stabilised at the qualification period.  Even if the Tribunal was to find that the renal condition was fully diagnosed, treated and stabilised (FDTS) at the qualification period, there is insufficient evidence before the Tribunal to assess the functional impact of this condition. It follows that impairment points cannot be awarded under the Impairment Tables.

    CONCLUSION

41. Although the JCA report in its work capacity rationale remarks that: “The customer’s FDTS work capacities are 30+ hours per week, as the customer does not have any permanent, fully diagnosed, treated and stabilised medical conditions” (T28/147), the Tribunal is satisfied, consistent with the Respondent’s submissions, that Mrs McKenna’s diabetes condition was at the qualification period FDTS. 

42. Having carefully considered all the evidence and the circumstances of this DSP application, the Tribunal concludes that Mrs McKenna did not satisfy s 94(1)(b) of the Social Security Act 1991 during the qualification period, as her impairments did not attract a rating of 20 points or more under the Impairment Tables. Because Mrs McKenna does not have an impairment rating of 20 points and did not satisfy s 91(1)(b), it is not necessary to consider whether she has a continuing inability to work pursuant to

    
    

    s 94(1)(c) of the Act.

    DECISION

43. It follows from all the above that the decision to reject Mrs McKenna’s claim for DSP was the preferable and correct decision, and therefore, 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 Brigadier AG Warner, Member, Member D Fitzgerald.

.....[sgd]...................................................................

Associate

Dated: 4 September 2019

Date of hearing:	1 August 2019
Applicant:	In person
Representative for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore