Mills; Secretary, Department of Employment and Workplace Relations
[2006] AATA 1093
•19 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1093
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/582
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
NANCY MILLS
Respondent
DECISION
Tribunal Senior Member Bernard J McCabe
Dr J B Morley, Member
Date19 December 2006
PlaceBrisbane
Decision The decision under review is set aside and the matter is remitted to the applicant for the purposes of carrying out a work assessment. ..................[Sgd]............................
SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment tables – continuing ability to work – work assessment required – decision set aside and remitted for reconsideration
Social Security Act 1991 s 94(1)
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
REASONS FOR DECISION
19 December 2006 Senior Member Bernard J McCabe
Dr J B Morley, Member
introduction
1. Nancy Mills is the respondent to these proceedings. She suffers from anxiety and depression. She says these conditions make it impossible for her to work full-time. She applied for the disability support pension (DSP) on 10 November 2004. Centrelink rejected her application. She appealed the decision to the Social Security Appeals Tribunal (the SSAT) which ordered that she be granted DSP. The Secretary has appealed that decision to this Tribunal.
2. The case requires us to consider whether we are satisfied the respondent has 20 points under the impairment tables referred to in s 94(1) of the Social Security Act 1991 (the Act). We must also consider whether Mrs Mills has a continuing inability to work.
the materialbefore the tribunal
3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. We were also provided with statements from Mrs Mills and from Ms Mandalls, a Centrelink psychologist who dealt with Mrs Mills. Both of these individuals gave oral evidence at the hearing, as did Dr Boyes. Dr Boyes is the respondent’s treating psychiatrist.
4. The applicant was represented by Mr Rangiah of counsel. Ms Heyworth-Smith of counsel represented Mrs Mills.
the background
5. Mrs Mills is a married woman. She was approximately 53 years of age when her claim for DSP was lodged with Centrelink. She trained as a speech pathologist in the United Kingdom and she has been registered to practice in Queensland since 1980. She took a job with the state Department of Education in 1981. She worked as a speech pathologist on a full-time basis in the Hinchinbrook region until she resigned in January 1991. She says she resigned because of her symptoms of anxiety and depression.
6. The respondent did not work during the remainder of 1991. After a holiday with her husband in Canada, she took an appointment as a part-time teacher’s aide with the Department of Education in January 1992. She worked with one child for 15 hours per week. She persisted in that role until June 1993. She subsequently commenced private practice as a speech pathologist from her home in July 1993.
7. Mrs Mills worked at a steady pace up until about 2003. She did not have a heavy load. She said she felt a sense of stability during this period but knew she would experience increasing anxiety if she tried to increase her workload.
8. The respondent says she has experienced symptoms of depression and anxiety since she was a child. She says the symptoms fluctuate. She developed techniques for managing her condition over the years but she said that became more difficult while she working for the Department of Education prior to 1991. She began seeing a psychiatrist in Townsville in 1992. She saw him on an irregular basis until 1997. She said the treatment helped as she developed a greater level of insight into her condition. She was placed on anti-depressant medication in 1997.
9. Mrs Mills’s condition deteriorated in 2003 when she experienced a conversion disorder. The condition was diagnosed after she was examined by several neurologists. She went back to her former psychiatrist who referred her in due course to Dr Boyes. The respondent said the treatment focused on identifying the triggers for her anxiety and depression. She said she had not been conscious of the need to manage her lifestyle to avoid situations that might lead to deterioration in her condition up to that point.
10. Mrs Mills says she knows that she cannot work more than 15 hours a week. She says she cannot deal with new situations. Her anxiety levels rapidly rise if she takes on new challenges. She agreed that not all aspects of her work were stressful: she said keeping notes was easy enough to deal with, but she had difficulty taking on new clients and found the preparation for client sessions and writing reports to be a problem.
11. The respondent tendered Dr Boyes’s report dated 5 May 2006. The report concludes the respondent “has a well-documented history of a chronic generalised anxiety disorder, co-morbid with dysthymic disorder.” The symptoms fluctuate and she occasionally exhibits significant symptoms of major depression. She has also experienced episodes of psychotic decompensation and a bipolar episode. Dr Boyes added the depressive condition is fully-treated and stabilised although it is unlikely there will be any improvement. The report was prepared some time after the period during which the respondent’s claim must be assessed but there is nothing in the report to suggest the respondent’s condition has altered since that time.
12. In an earlier report dated 2 February 2005 that was provided to the SSAT, Dr Boyes asserted the applicant would be unable to work for more than 20 hours per week for the next two years. Her report of 5 May 2006 is more nuanced. Dr Boyes says the respondent could not work more than 15 hours a week in her current occupation but leaves open the possibility that she might be capable of other forms of work. Dr Boyes told the hearing (in answer to a question from Dr Morley) that the respondent’s condition is presently stable but she was vulnerable to the development of new problems (eg, the conversion disorder, the bipolar episode) and each lapse seemed to be more serious than the last. Dr Boyes also appeared to qualify the suggestion in her report that it was possible the respondent could get work in another field. When Dr Morley asked Dr Boyes about the potential for Mrs Mills to take up a new line of work or to study, Dr Boyes said it was difficult to say.
13. Ms Mandall, the Centrelink psychologist, assesses claimants for DSP. She concluded Mrs Mills would become able to undertake up to 30 hours of work each week within 24 months. There is no adequate basis for that conclusion given the respondent’s work history and the medical evidence that her condition is unlikely to improve. We do not think Ms Mandall’s report is useful for present purposes.
14. The respondent said she could not do more than 15 hours a week in her existing job. She did not think she was able to take on a new job because of her condition. She agreed she had keyboard skills but said the problem was undertaking new challenges. She said it was not just a matter of gritting her teeth and dealing with the anxiety: the anxiety impacted on her functioning.
the legislation
15. We have already identified the two issues to be decided in this case. As it happens, there was little evidence in relation to the first of the questions (ie, whether the respondent has 20 points on the impairment tables). The applicant says it is strictly speaking unnecessary to reach a view on that point because the condition is not permanent. An assessment cannot be made under the impairment tables if the condition is temporary in nature.
16. Mr Rangiah referred me to the Tribunal’s decision Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938. In that case, Deputy President Hack, SC discusses the concept of permanence in the impairment tables. The preamble provides at paragraph 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 2 years.
17. In the course of his discussion, Deputy President Hack explained (at paragraph 21-22):
It is, I think, important to realize that "temporary" is used by Centrelink in this context in a special sense. It is a shorthand way of describing a condition which is not, at that time, capable of being regarded as being permanent. That judgment is to be made on the basis of the material capable of throwing light on the issue of whether the conditions were, at the relevant time, fully documented and diagnosed conditions which had been investigated, treated and stabilised.
The Parliament has determined that disability support pensions are to be paid when certain qualifying criteria are satisfied. The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.
18. We agree with that view. We are satisfied there is evidence in this case – most obviously the detailed report and testimony from Dr Boyes – that the respondent’s condition is stabilised even though the depressive condition of its nature tends to fluctuate. It is being treated more or less successfully. We note Dr Boyes’s advice that the condition is unlikely to improve in the foreseeable future. We are satisfied the condition is permanent in the relevant sense.
19. It is therefore necessary to consider the assignment of an impairment rating. The SSAT considered the evidence in light of Table 6. It noted there was some avoidance of daily tasks and a severe disruption of work ability. It allocated 20 points under the relevant table. We are satisfied that conclusion is appropriate after reviewing all the evidence before us, including the more detailed evidence of Dr Boyes.
20. The second question we must address is whether there is an ongoing inability to work. The requirement is set out in s 94(2) which provides:
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
21. The expression work is defined in s 94(5) as follows:
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
22. The evidence from Dr Boyes makes it clear the respondent cannot undertake more than 15 hours of work each week in her current occupation. But Dr Boyes also said she did not know whether Mrs Mills could undertake other work, with or without training. She specifically recommended that Centrelink consider those options.
23. There was little evidence before us as to what sort of work Mrs Mills might undertake. There was a discussion of her keyboard skills but that did not appear to take into account special requirements that she might have. Ms Heyworth-Smith encouraged us to decide there was no work available in those circumstances.
24. We are not prepared to do that because we do not have sufficient evidence before us to reach an informed conclusion on the issue. Given Dr Boyes’s evidence has now opened the door to the possibility that the respondent might be able to find work within the meaning of the Act, we think it is appropriate set aside the SSAT decision and remit the matter to the applicant who can conduct a proper assessment of the opportunities open to the respondent. The assessment will presumably require Centrelink to liaise with the respondent’s treating doctor and take into account her difficulties in dealing with new situations and experiences. That task will require careful attention. It is possible Centrelink will not be able to identify appropriate work for the respondent to do – in which case she will presumably become entitled to a grant of DSP.
conclusion
25. The decision under review is set aside and the matter is remitted to the applicant for the purposes of carrying out a work assessment.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr J B Morley, Member.
Signed: .....................................................................................
Associate Adam RyanDate of Hearing 18 May 2006 & 16 November 2006
Date of Decision 19 December 2006
The applicant was represented by Mr Rangiah of Counsel.
The respondent was represented by Ms Heyworth-Smith of Counsel.
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