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

[2016] AATA 671

Mills and Secretary, Department of Social Services (Social services second review) [2016] AATA 671 (10 August 2016)

Division	GENERAL DIVISION
File Number	2015/6602
Re	Joanne Mills
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal

D. J. Morris, Member

Date

Date of written
Reasons

10 August 2016

1 September 2016

Place

Perth

The Tribunal affirmed the reviewable decision.

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D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – long-standing but fluctuating condition with changing medication – assignment of 20 or more points under Impairment Tables – not qualified for DSP – decision affirmed – written reasons requested – written reasons may elaborate on oral reasons given

LEGISLATION

Administrative Appeals Tribunal Act 1975 – s 43(2A).

Social Security Act 1991 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(3B) – s 94(5)

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

CASES

Negri v Secretary, Department of Social Security [2016] FCA 879

REASONS FOR DECISION

D. J. Morris, Member

1 September 2016

BACKGROUND

1. Ms Joanne Mills sought a review of the decision to cancel her Disability Support Pension (DSP) on 4 September 2015.  A telephone hearing was held on 10 August 2016.  The Applicant was self-represented.  The Respondent was represented by Mr Ashley Burgess.  Ms Mills gave evidence under affirmation and was cross-examined by counsel for the Respondent.

2. At the conclusion of the hearing, I made my decision ex tempore and provided oral reasons. In accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975 the Applicant requested a statement in writing of the reasons of the Tribunal for its decision.  This is that statement.

3. In the recent decision of Negri v Secretary, Department of Social Security, Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied.

4. His Honour accepted submissions to the Court that at [24]:

   (a) The oral reasons might be brief and the written reasons include a fuller explanation of the Tribunal’s findings and reasoning.

   (b) The oral reasons might fail to include a matter that was on the Tribunal’s mind at the time of the decision due to oversight, and the written reasons remedy this.

   (c) The oral reasons may be poorly expressed and the written reasons provide clarification of the Tribunal’s findings or reasoning.

5. His Honour stated at [27]:

   As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained.  What is not permissible is altered or new reasoning.  The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently…

6. I have obtained a transcript of the hearing conducted on 10 August 2016.  The hearing was a telephone hearing with four participants – the Applicant, the Respondent, the Member (in Hobart) and the Tribunal hearing attendant (in Perth).  Unfortunately some of the words in the transcript have been transcribed as “[indistinct]” owing to faintness on the telephone line.  I should make plain that I had no difficulty with hearing either the Applicant or Respondent’s submissions and evidence during the hearing.

7. Accordingly, I divide this statement into two parts.  The first is background as to what the matter was before the Tribunal and the applicable law.  The second is a rendering of the reasons I gave ex tempore.

8. Consistent with His Honour’s cautionary remarks in Negri, new reasoning for my decision has not been introduced but this written statement is a fuller explanation of the reasons given orally.

   PART 1 – BACKGROUND TO HEARING AND APPLICABLE LAW

9. Ms Joanne Mills was the recipient of a Disability Support Pension (DSP) from 2008 because of the following permanent condition: depression.  On 4 September 2015, the Department of Social Services (the Department), having undertaken a medical review of her eligibility, cancelled her DSP.

10. Ms Mills sought an independent review of the Department’s decision.  On 28 September 2015 an Authorised Review Officer (ARO) wrote to her to say that, having considered the original decision, the ARO found that it was correct. 

11. The ARO said that the Applicant had, on the medical evidence, the following conditions: depression, possible post-traumatic stress disorder (PTSD), Factor V Leiden deficiency, methicillin-resistant staphylococcus aureus (MRSA) positive, and obesity.  The ARO accepted that the condition of Factor V Leiden deficiency was permanent but had no functional impact on the Applicant and therefore did not attract points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).  The other cited conditions were not accepted as being permanent because they were not fully treated and stabilised.  The ARO said that the Applicant’s total impairment rating is zero points.  The ARO also said that the Applicant did not have a continuing inability to work 15 hours a week or more because of her impairment.

12. On 19 October 2015, Ms Mills lodged an application for review with the Social Services and Child Support Division of this Tribunal.  A hearing was held (AAT1) on 2 December 2015 at which the Applicant was present and gave sworn evidence.

13. AAT1 accepted that the Applicant suffered from depression and that it was an impairment under section 94(1)(a) of the Act. However, AAT1 decided that her condition of depression was not fully treated and stabilised at the time of cancellation “as she had only recently commenced on Pristiq and was being referred for a course of CBT”. Accordingly, AAT1 decided that the depression condition cannot be considered to be permanent for the purposes of the Determination and no assignment of impairment ratings can be made.

14. Ms Mills sought a review of the decision of AAT1 before the General Division of this Tribunal, which is this hearing.

15. The purpose of this hearing, therefore, is to review the original decision of the Department’s officer that the Applicant was not qualified for DSP on the date it was cancelled.

16. I note that the other medical conditions referred to by the ARO were not considered by AAT1, nor were they advanced by either the Applicant or the Respondent in this hearing.  The reason the Applicant sought a second-tier review was on the basis that AAT1 had erred in relation to the medication prescribed for her depressive condition.

    Qualification for DSP under the Act

17. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 (the Act) and the qualification criteria for DSP must be satisfied.  For this reason, it must be established that the person has –

    (a)         a physical, psychological or mental impairment;

    (b) the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)         a continuing inability to work.

18. The Impairment Tables under which a person must be assessed under the Act are 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.

19. In respect of a ‘continuing inability to work’, if Ms Mills is assigned 20 points under the Impairment Tables but does not have a ‘severe impairment’ for the purposes of section 94(3B) of the Act – that is, if she is not assigned 20 or more points under a single Impairment Table – then the Secretary must be satisfied that the Applicant has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014.

    PART 2 – THE HEARING

20. The Respondent tendered documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).

21. The Applicant tendered:

    ·Letter from Dr Anna Munday of Phoenix Medical Centre to Ms Jessica Fitzgerald of The Henry Street Centre dated 1 February 2016 to which was attached a document headed ‘GP Mental Health Care Plan – Patient Assessment’ (Exhibit A1); and

    ·Medical certificate from Dr Anna Munday dated 23 November 2015 (Exhibit A2).

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

22. The Respondent conceded that the Applicant suffered a depression condition capable of giving rise to an impairment as at 4 September 2015 for the purposes of section 94(1)(a) of the Act. The Tribunal agreed with this, and the hearing proceeded on that basis.

    If so, what is the correct assignment of points under the Impairment Tables?

23. The focus, therefore, was whether the condition was “permanent” and, if so, what points are correctly assigned to the condition under the Impairment Tables.

24. In her report of 5 November 2014 (p 142 of the T-documents), Dr Lisabeth Finn, reported:

    Ms Mills’ presentation indicated severe depression in the past 20 months… Her presenting outcomes on the Depression, Anxiety and Stress Scale indicated extremely severe depression and stress and moderate anxiety levels.

25. I noted in the hearing that I had consulted the Australian Health Practitioners Agency website which records that Dr Finn is a registered clinical psychologist.  The Respondent acknowledged this.

26. I note that Dr Munday’s medical report of 15 September 2015 (page 133 of the T-documents) stated that Ms Mills’ condition of depression/possible post-traumatic stress disorder, had a date of onset of 2006 and had been diagnosed by a psychiatrist or clinical psychologist (not named) at Alma Street, Fremantle Hospital.  The Applicant confirmed that she had attended the Alma Street Clinic attached to that hospital on several occasions.

27. I note that the ARO (p 145 of the T-documents) accepted that the evidence indicated that the Applicant’s condition of depression has been present since 2006 and was first diagnosed at that time.  The ARO, after commenting on further assessment for PTSD and treatment, concluded that Ms Mills’ depression and PTSD cannot be considered fully treated and stabilised and the impact of these conditions “is expected to improve within the next two years”.  While I concur with the ARO in regard to the PTSD, I do not agree with the conclusion about the depressive condition, nor is there any apparent basis for the assertion that it is expected to improve within the next two years.  It is being managed and I am sure improvement is the aim of the treatment, including the change in medication, but in fact in the GP Mental Health Plan dated 14 September 2015 (p 168 pf the T-documents), Dr Munday reported that there had been no improvement to the depressive symptoms in spite of four sessions with a counsellor in 2014.

28. It is therefore my conclusion that that the Applicant did satisfy the requirements of having a permanent condition.  There is corroborating and consistent medical evidence back to 2002.  There is a diagnosis by appropriately qualified medical practitioners.  There is evidence of impairment under Table 5 – Mental Health Function. I accept that the Applicant’s medical condition fluctuates, but that does not mean that it does not satisfy the criteria of being fully diagnosed, fully treated and fully stabilised and is not capable, applying Rule 11(4) of the Impairment Tables, of being assessed.

29. In the hearing I drew the Respondent’s attention to the last dot point on page 22 of the Minister’s Determination, relating to the assessment of a person’s mental health function.  That dot point reads:

    For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

30. The Applicant has such a fluctuating condition. I do not agree with the conclusion of AAT1 that a change in the Applicant’s medication necessarily means that the condition is not stabilised.  It is not uncommon in mental health conditions of long-standing (as is the case in this instance) that medications are changed in order to better manage a person’s condition.  That is a matter of fact.  In the reasons that the Applicant gave in putting forward her application for a second review, she stated that AAT1 did not appreciate that her recent commencement with the antidepressant Pristiq did not take account that she had been prescribed the antidepressant Effexor for an extended period and that she had been taking antidepressant medication for many years.

31. The signs and symptoms of mental health impairment may vary over time.  It is my view that changing from one antidepressant drug to another doesn’t necessarily, of itself alone, indicate a lack of stabilisation in the condition.  It is, in fact, trying a different course of treatment to see if there can be a better outcome for a patient with a fluctuating but long-standing medical condition. On balance, I therefore conclude that this condition may be assigned points under the Impairment Tables.

    Evidence at the hearing of functional impact

32. Ms Mills gave evidence to the Tribunal that she lives independently with her children.  They are of primary school age. She takes them to school and advised the Tribunal at the hearing that, while her mother helps out a lot, she is solely responsible for them.  She does not cook an evening meal as they go to her parents, who live close by, every evening.  Ms Mills does prepare breakfast for them each day.  She prepares her own lunch and goes shopping with her mother for groceries and household needs.  She does all the usual domestic chores around the house such as washing. She said that she sleeps a lot during the day and does not undertake much activity. She drives to the school and sometimes to her parents’ house, and takes the vehicle to the service station for fuel and the like.

33. I concluded on the basis of this evidence and the medical evidence submitted in the T-documents that there was a ‘moderate’ functional impact on Ms Mills’ daily activities of her depressive condition. I explained to Ms Mills that section 94 of the Act sets out what the qualifications are for DSP and the Applicant said she was familiar with these requirements.

34. I explained to the Applicant that each part of section 94 of the Act has to be satisfied for a person to qualify for DSP. The first requirement is that the person must have impairment(s). I noted that this has been conceded by the Secretary that the Applicant has depression, although the Secretary does not concede that it is fully treated and fully stabilised.

35. I then referred to section 94(1)(b) of the Act which provides that the person’s impairment must attract a rating of 20 or more points under the Impairment Tables. I referred to the Minister’s Determination of the Impairment Tables and explained that for a person to get 20 points illustrating a severe functional impact, the person has to have severe difficulties with most of the following.  I gave the example:

    (a) Self-care and independent living

    Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

36. I then referred to the evidence from the Applicant that, while she has support from her parents, that she lives independently and looks after her children, and on her own evidence she prepares some meals and looks after domestic chores in the home.

37. I then referred to the part in Table 5 of the Determination that refers to social/recreational activities and travel.  I accept that the Applicant had said she does not socialise much but that she does shop with her mother and take the car to be filled up at the petrol station and go to medical appointments.  The Applicant confirmed in response to my question that she meets, as necessary, with teachers at the school her children attend.

38. I referred to the part of Table 5 of the Determination relating to a ‘severe’ functional impact: that the person must have difficulty concentrating on any task or conversation for more than 10 minutes.  I noted that the Applicant does not have that difficulty and that she had followed the proceedings in the hearing without difficulty, which Ms Mills agreed with.  I noted also that the Applicant had undertaken academic study, completing a Certificate III and a Certificate IV in Community Services and studying psychology at Murdoch University.  She said she withdrew from university studies owing to the understandable and sudden trauma of her twin sister passing away as a result of Sudden Adult Death Syndrome, not because she was not capable of undertaking the study. 

39. As the ‘severe functional impact’ part of Table 5 of the Impairment Tables requires that most of the Descriptors must be factually satisfied, I then explained that the assignment of 20 points in relation to the Applicant’s mental health condition is not met in her case. 

40. I found (a) that her depressive condition is permanent; and (b) that she does have a moderate functional impairment, applying Table 5 of the Impairment Tables; and (c) that, accordingly, she should be correctly assigned 10 points for this mental health condition. 

41. I explained that this means that section 94(1)(b) of the Act was not satisfied and the consequence is that the original decision taken on 4 September 2015 that she was not qualified for DSP was correct.

42. I reminded Ms Mills that, as the Respondent had said during the hearing, it is open to the Applicant to make a further application for DSP if her condition is deteriorating but I could not say whether or not she would be successful in such an application.  I reiterated that the Tribunal must look back to what her condition was on the date of cancellation, not any other time.

43. I said that the decision of the Tribunal is that the Department’s decision is affirmed, and the hearing then adjourned.

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

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Administrative Assistant

Dated 1 September 2016

Date of hearing

Date of Receipt of Request
For Written Reasons

10 August 2016

19 August 2016

Applicant

In person

Representative for the
Respondent

Mr A Burgess

Solicitors for the Respondent

Sparke Helmore Lawyers