Ms C and Secretary, Department of Social Services
[2014] AATA 523
[2014] AATA 523
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3273
2014/1728
Re
Ms C
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Senior Member J Toohey
Date 31 July 2014 Place Sydney The Tribunal affirms the decision to cancel Ms C’s disability support pension on 30 July 2012.
The Tribunal sets aside the decision that Ms C does not qualify for a disability support pension on 28 May 2013 and in substitution decides Ms C qualifies for the disability support pension on that date.
........................................................................
Senior Member J Toohey
CATCHWORDS - SOCIAL SECURITY – disability support pension – cancellation – impairment rating – further application – whether applicant qualified – decision concerning cancellation of pension affirmed – decision refusing application set aside
Legislation
Social Security Act 1991 s 27 (3), 94
Social Security (Administration) Act 1999 s 42 and Sch 2
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J Toohey
Background
The applicant in this case, Ms C, was hospitalised under the care of a psychiatrist over the course of six months in 1986 for post-natal depression. She has been under the care of health care professionals and on medication for anxiety and depression for much of the time since.
These proceedings concern two decisions made by Centrelink and affirmed by the Social Security Appeals Tribunal (SSAT) concerning Ms C’s eligibility for Disability Support Pension (DSP).
To qualify for DSP, a person must satisfy the criteria in s 94 of the Social Security Act1991 (the Act). In particular, a person must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
The first reviewable decision
In August 2004, Ms C was granted DSP after being diagnosed with severe depression.
In 2012, Centrelink reviewed Ms C’s payment and decided she was no longer impaired to the extent required to qualify for DSP. On 30 July 2012, Centrelink cancelled her payment. In June 2013, the SSAT affirmed that decision.
In respect of this decision, I have to decide whether, at 30 July 2012, Ms C qualified for DSP. That will depend on whether she satisfied the criteria in the Act as it was at that time, in particular, whether the severity of her impairment was such that it rated 20 points on the Impairment Tables. The Impairment Table to be used to assess her impairment is the relevant Table in force at the time Centrelink commenced a review of her eligibility to continue to receive DSP: s 27(3). If Ms C’s impairment rates 20 points on the Table, Centrelink accepts that her payment should not have been cancelled.
The second reviewable decision
On 28 May 2013, Ms C applied for DSP again. Since 2004, when she was granted DSP, there had been amendments to the Act which introduced the requirement that, where a person claims DSP for a “mental health condition”, the condition be diagnosed 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)”.
In August 2013, Centrelink decided that Ms C did not qualify for DSP because her anxiety and depression could not be considered fully diagnosed, treated and stabilised in accordance with the Impairment Tables.
In particular, Centrelink noted that Ms C had ceased psychological counselling in December 2012 after showing improvement after ten counselling sessions over three months, and had not started counselling again until late April 2013, shortly before she made her claim. Centrelink also considered that, with appropriate interventions and assistance, it was expected that her work capacity could increase to more than 15 hours per week within two years, meaning she did not have a continuing inability to work within the meaning of the Act.
In March 2014, the SSAT affirmed Centrelink’s decision, finding that, at the time of her application for DSP, Ms C’s mental health problem was not fully diagnosed by a clinical psychologist or psychiatrist, or fully treated and stabilised, in which circumstances her condition could not be assigned an impairment rating.
The Impairment Tables
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
An impairment rating can only be assigned if:
(a)the condition causing that impairment is permanent; and
(b)the impairment is more likely than not to persist for more than two years.
A condition is considered permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, it has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
In deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
In respect of “mental health function”, the Impairment Tables require that the diagnosis 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)”.
A condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and 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; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Evidence about Ms C’s medical conditions
The medical evidence concerning Ms C’s medical conditions comprises:
(i)Dr Rob McMurdo, report dated 13 February 1986;
(ii)Dr Anne Hellman, reports, dated 16 August 2004 and 12 March 2007;
(iii)Dr Amanda Alcock, report dated 6 June 2007 and mental health plan dated 13 June 2007;
(iv)Dr Elizabeth Babich, reports undated and dated 19 February 2008;
(v)Dr Judy Kestel, report dated 25 March 2009;
(vi)Dr Sarah Lee, report dated 20 November 2009;
(vii)Dr Suveer Gupta, reports dated 3 April 2012 and 7 August 2012;
(viii)Dr Jonathon Bentley, medical certificate dated 3 October 2013;
(ix)Hazel McKenzie, psychologist, reports dated 15 September 2012, 8 November 2012, 15 November 2012, 13 December 2012, 27 April 2013 and 14 May 2013;
(x)Dr Joan Tooke, general practitioner, report dated 24 May 2013; medical certificate dated 17 January 2014, WorkCover certificate of capacity dated 17 January 2014 and medical report dated 25 March 2014;
(xi)Dr Anthony Dinnen, consultant psychiatrist, report dated 29 April 2014.
Centrelink has provided reports of Job Capacity Assessments on 14 September 2004, 27 July 2012 and 4 July 2013.
Should Ms C’s pension have been cancelled on 30 July 2012?
Ms C has been a patient at the Beecroft Family Practice since January 1993. Up until February 2013, her usual general practitioner was Dr Hellman. Since mid-February 2013, she has seen Dr Joan Tooke. Dr Tooke gave evidence by telephone to the Tribunal. She had Ms C’s clinical notes dating back to 1993 available to her.
Medical historyMs C was first admitted to the Northside Clinic, a hospital which specialises in the treatment of mental health conditions, in 1986 with post-natal depression. The only record available of her admission is an unaddressed letter written by Dr McMurdo, dated 13 February 1986, which states Ms C required inpatient treatment and ongoing therapy for a nervous disorder. Dr Tooke gave evidence that Ms C’s admission to the Northside Clinic is indicative of a significant depressive illness after the birth of her third child. To her knowledge, Ms C’s diagnosis, which could be described as a mood disorder, has not really changed since that time,
Dr Tooke gave evidence that Ms C sees someone at the practice once every month or two months. She was on medications including Zoloft up until late 2011, and she took medication intermittently in 2012. Dr Tooke confirmed that Ms C had been prescribed medication continually but she did not always take it.
The documents listed at paragraph [11(i) to (vi)] all refer to Ms C suffering a depressive illness; that she had ongoing treatment from 2004 to 2009; and her illness affected her ability to function to varying degrees.
Dr Suveer Gupta, a general practitioner at the Beecroft Family Practice, provided a medical report dated 3 April 2012 in support of Ms C’s continued claim for DSP. In her report, Dr Gupta confirmed a diagnosis of anxiety with clinical onset of 1992 and stated that Ms C had regular reviews in the practice; she had seen a psychiatrist in the past and has received psychological treatment in the past. Dr Gupta recorded a history of precipitating factors as “new complicated tasks” and “periods of increased stress”. She listed Ms C’s current symptoms as “periods of anxiety: emotional labiality: low concentration: sleep disturbance and mood swings” with marked frequency “over the past 12 months”. Dr Gupta noted treatment as home based exercise and stress management as well as Zoloft, and future treatment as ongoing reviews to maintain levels of anxiety.
Although at the time of the cancellation there does not appear to be a current diagnosis from an appropriately qualified medical practitioner as required by the Impairment Tables, and there is very little evidence about Ms C’s condition from 2009 to 2012, after hearing Dr Tooke’s evidence I am satisfied that Ms C has a longstanding depression that was appropriately diagnosed at the date of cancellation. The absence of a medical report confirming the diagnosis at that time does not defeat her claim.
The medical evidence indicates Ms C has suffered with anxiety and depression for almost 30 years, that the condition fluctuates and that she has received ongoing treatment for her condition. It is clear that the severity of her symptoms varies and accordingly she has sought counselling and treatment at times when her anxiety has been elevated. Ms C also attempts to manage her condition through non-clinical counselling offered by her church, home exercise and stress management, and medication intermittently. Having regard to the long history of her condition, I am satisfied that at the date of cancellation of her DSP Ms C’s anxiety and depression was also fully treated and stabilised.
Work history
Ms C was employed part-time as a carer with Anglican Retirement Village Castle Hill (ARV) from early 2005 to 2014. She worked four-hour shifts, three to four times a week and was responsible for the care of dementia, high care and palliative patients, some of whom were mentally ill. She described her duties in a statement made for the purposes of a workers compensation claim in May 2013, as feeding and dressing patients and attending to their sanitary and hygiene needs; completing reports detailing changes to patients’ behaviour and illnesses; managing infection control and health and safety issues; food preparation and cleaning; progress reporting; and liaising with management and reporting to patient’s relatives. She stated she performed these duties for the three years prior to making her statement on a daily basis, every time she worked.
In the same statement, Ms C claimed her employment “caused or contributed to her current psychological condition”. She complained that, when new management took over at ARV three years prior to her workers compensation claim, she was required to work in the high care unit without rotation to other departments, she was worried about the lack of training and the risk this posed to staff and patient safety, and she was bullied. It appears her employment caused increased stress and Ms C ceased working with ARV on 21 April 2013 due to her medical condition. Her employment was subsequently terminated on medical grounds on 4 April 2014.
Study
Between 1995 and 2001 Ms C was enrolled in, but did not complete, a Bachelor of Arts degree at Macquarie University. In 2007 she enrolled in a Bachelor of Laws with Macquarie which she completed in 2012 (according to her academic transcript). Steve Bailey, Manager of the Macquarie University Health and Wellbeing Administration and Ms C’s Disability Advisor, provided a letter dated 7 May 2014 confirming Ms C was registered with the University’s Disability Service throughout her enrolment. The Disability Service assists students with significant disabilities to undertake their studies. For Ms C, this meant a reduced study load and the option to study externally, flexibility with assignment deadlines when needed, additional exam time, and consideration of her circumstances when marking her work.
Ms HC, Ms C’s daughter, was enrolled in a Bachelor of Laws at Macquarie University at the same time as Ms C although she completed her degree earlier. She gave evidence that she provided a lot of support to Ms C to help her get through her studies.
Mr SH, a family friend, provided a letter to the Tribunal dated 8 May 2014 advising he supported Ms C in her studies by extensively editing her attempts at essays. He said she also needed prompting to stay focused as she became easily distracted and that she struggled with her comprehension and concentration so that tasks took “unusually long periods” to complete.
Dr Tooke confirmed that she was aware Ms C received help from Ms HC and a friend to get through her studies. She was also aware that Ms C received special consideration at university.
Other effects on functioning
Ms C gave evidence that she completed her studies in 2011 with a lot of help and that she wanted to complete her practical legal training. She said she completed her course by correspondence and sometimes took a long time to complete assignments.
Ms C said that at the relevant time, she needed prompting to care for herself and there were times when her daughter had to encourage her to eat. She showered herself and could go out by herself but was very dependent on people to help her to get organised. She said she goes through periods of buying impractical things at the supermarket.
Ms C said she had friends come to her house on Tuesdays and Thursdays to organise her to get to work and that she was panicking about her work. Her daughter was living with her at the time (and also worked for ARV) but was working different shifts. Ms C said her work at ARV was manual, like “baby-sitting” the patients. In August 2012, she also worked briefly in an office job for three hours a week which she got through a friend but this did not work out.
In her workers compensation statement Ms C said she played soccer socially and spent most of her time in church activities. She gave evidence at the hearing that she had a few friends whom she met for coffee every one to two weeks and confirmed that she was in a soccer team and played a couple of times but did not train with the team.
Ms HC gave evidence that her mother’s capacity for self-care had become worse in the last year and she needed a lot of prompting; she had to help her in the mornings and occasionally prepared meals for her. She said her mother received help from a friend to get to work as she was having trouble getting out of the house and that her friend would pick her up to go to church. Ms HC said she helped her mother with her studies and that she stopped work to help her because things were becoming chaotic at home. Before she resigned from work she was doing night and weekend shifts so Ms C had support from her other sister and a friend on the weekend. Ms HC said she attended soccer matches with Ms C, helped her with shopping, and that she went most places with her mother.
Asked to describe the effect of Ms C’s condition on her ability to function at 30 July 2012, in particular whether she would describe it as mild, moderate, severe or extreme, Dr Tooke said it was somewhere between moderate and severe, and fluctuated. The clinical notes show Ms C was certified unfit for work for a brief period from 2 August 2012. In mid-August 2012 she was referred to Dr Pashu, psychiatrist at the Hills Centre, but she could not afford to go.
Consideration
The indicators of moderate impairment as set out in Table 5 – Mental Health Function are that a person has moderate difficulties with most of the following:
(a)self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)behaviour, planning and decision making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)work/training capacity;
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
To qualify for DSP at the date of cancellation Ms C would have to be assessed as having severe difficulties with the following:
(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.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity;
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
On balance, taking into account Ms C’s history of employment at the time, her involvement with the church and social activities, her ability to study and complete a degree, albeit with help, and Dr Tooke’s assessment, I find Ms C’s impairment rated moderate, rather than severe, at the time her DSP was cancelled.
Conclusion
Because I find that Ms C’s impairment did not rate 20 or more points on the Impairment Tables at the time her DSP was cancelled, it is not necessary to consider whether she also has a continuing inability to work.
It follows that this decision is affirmed.
Did Ms C qualify for DSP when she applied on 28 May 2013?
For Ms C’s application to succeed, she had to qualify for DSP on 28 May 2013 when she applied, or within 13 weeks, that is by 27 August 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will refer to this period as “the relevant period”.
To qualify for DSP, Ms C had to have an impairment rating of 20 or more points on the Impairment Tables during the relevant period, and a continuing inability to work which, following the amendments to the Act, means her impairment prevented her from being able to work for 15 or more hours per week, even with training and support, in the two years following her claim: s 94(2).
Diagnosis and treatment
Although she had been referred to Dr Pashu in August 2012, Ms C did not see him. The first psychiatrist or clinical psychologist she saw after lodging her claim in May 2013 was Christina O’Connell, a clinical psychologist, whom she saw in February 2014. Ms O’Connell did not provide a report.
Prior to her referral to Ms O’Connell, Ms C saw psychologist Hazel Mackenzie for 10 sessions from September 2012 to December 2012. Ms McKenzie provided six reports which describe Ms C as having difficulties with self-confidence, previous trauma and dependency issues. Her therapy involved cognitive behavioural therapy and “mindfulness/ACT techniques”. Ms McKenzie reported progress in Ms C’s presentation and ratings of how she was feeling over the sessions and, by her tenth session, Ms C was “feeling better”. Ms McKenzie wrote that she had “learned to put up better boundaries in her relationships, be less critical of others and self, put less pressure on herself and she also has incredible faith that gives her a positive and hopeful perspective outlook on things”.
Ms C took a break from therapy over the summer of 2012 but returned in April 2013 when Ms McKenzie reported she was suffering “in the extremely severe range for Depression, Anxiety and Stress”. She attributed this decline in Ms C’s condition to work place stress. On 14 May 2013, Ms McKenzie reported Ms C had significant stress levels and that her mood and wellbeing scores were low which she attributed Ms C’s involvement in legal proceedings.
On 1 April 2014, Dr Anthony Dinnen, consultant psychiatrist, saw Ms C for the purpose of providing a report for her workers compensation claim. Dr Dinnen took a history of Ms C working 15 hours per week and that she could do more at times when working under the previous management; that she now had stress as a result of the new management; she was “stuck” in the dementia unit; she was being blamed for problems and she was being bullied. As a result of work stress she was up all night crying, she could not cope with her duties at home, and she started to miss shifts and make excuses to avoid work.
Dr Dinnen recorded Ms C’s symptoms as sleep problems, anxiety, headaches, poor memory, forgetfulness and loss of concentration. She reported low self-confidence, grief, depression in the mornings, loss of interest and aggression (which resolved). When asked how she was feeling compared with a year ago she replied that she “only has 20% of life now without work”. Dr Dinnen diagnosed a depressive disorder which appeared likely to persist. He noted she was taking antidepressants and had psychological therapy and attends her local doctor regularly.
Dr Dinnen wrote that it appeared Ms C was not impaired prior to the recent events in the workplace and that it was more probable than not that her illness was triggered by workplace events. He said Ms C will require further treatment for “at least the next year or two”.
It is clear that, from at least April 2014, there is a diagnosis of Ms C’s psychiatric condition by an “appropriately qualified medical practitioner.” However, Centrelink contends that, during the relevant period there was no diagnosis and that, following the instructions in the Impairment Tables, Ms C’s condition cannot be considered fully diagnosed and cannot be assigned a rating.
I do not accept, in all the circumstances of the case, that it can sensibly be said that Ms C’s psychiatric condition was not diagnosed by an appropriately qualified medical practitioner at the date of this claim. As discussed above, she has been treated for a severe depressive illness since 1986. There is no reason not to accept Dr Tooke’s evidence that her admission to Northside Clinic on and off over six months is evidence of a significant depressive condition. She has received regular treatment for her condition over the years and her diagnosis has recently been confirmed by a psychiatrist. Given the long history of her illness I am satisfied that her condition was appropriately diagnosed at the relevant time.
Was the condition fully treated and stabilised during the relevant period?
Ms C has a history of treatment of her anxiety and depression for nearly 30 years. As already mentioned at paragraph [25], her condition has fluctuated and her treatment has varied at times, including periods of little or no treatment. It is clear however that she has maintained some form of treatment over the years. I am satisfied therefore that during the relevant period Ms C’s condition was fully treated.
Dr Tooke gave evidence about Ms C’s condition including her capacity for future work. The transcript shows she said:
Senior Member … Can you tell me what you would say, going back to May to August 2013, what you would say about her ability to work within the next two years from then?
Dr Tooke:At that stage I would have said, no, she couldn't work.
Senior Member: And that even with time and with support and, say, retraining, that she would not have been able to work within the next two years?
Dr Tooke: Not within two years, no.
…
Ms Heggan (representative for Centrelink):
In your view, could the applicant cope with work that is less mentally demanding, rather than working in a nursing home?
Dr Tooke:Possibly, for very short periods of time, with no stress. I don't know of jobs like that.
Ms Heggan: Have you ever discussed work options with her?
Dr Tooke: Yes. Yes.
Ms Heggan: And given that she has a degree and quite a lot of life skills, do you have a view on whether she could undertake perhaps some sort of office work or working in a store?
Dr Tooke:It's possible. If there were no stresses or deadlines. For very short periods of time. I don't believe that she will be able to practice as a lawyer.
Senior Member: When you say for very short periods of time, what do you mean?
Dr Tooke: I mean, you know, two or three hours a day.
…
Ms Heggan: So do you think it's possible that she might be able to work, say, three hours a day, five days a week; or perhaps four hours for three days a week?
Dr Tooke: She certainly can't at the present. It's possible if she gets a lot better but I have doubts whether she would manage to keep working.
Ms Heggan: So next year, that would be two years from the date of claim, by halfway through next year, do you think it might be possible that she could undertake just these 15 hours a week?
Dr Tooke: 15 hours, no. I think she could probably do less than that but 15 hours would probably be too much. She was doing eight hours before and she had trouble coping with that, so I don't think she is going to be able to cope with 15.
The Tables state that a condition is fully stabilised if:
… the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years
On the basis of Dr Tooke’s evidence, which I accept, I am satisfied that Ms C’s condition was also fully stabilised during the relevant period.
Did Ms C’s impairment rate 20 points?
In March 2014 Dr Tooke completed a medical report in support of Ms C’s claim for DSP. She reported her symptoms as “poor concentration, poor attention, difficulty sorting documents and completing tasks, insomnia, anxiety & panic, anorexia, all current since early April 2012 and showing only little improvement”. Dr Tooke wrote that Ms C “has severe cognitive dysfunction due to depression” that her “concentration, attention, memory and problem solving are impaired” and that her condition was likely to remain unchanged for the next two years. She listed her current and future treatment as counselling.
Dr Tooke gave evidence that she would describe Ms C’s impairment from May 2013 as severe; she was not able to work, could not get organised to finish her degree, was having problems with relationships and family, and was “a mess”. Asked what had changed from before, to after, 30 July 2012, which led to the referral for counselling, Dr Tooke said the doctor was concerned that Ms C had stopped taking her medication, she reported her symptoms had been ongoing for a long time, and she had difficulty concentrating at work and taking on new tasks, so she was referred for review of her diagnosis and advice on management.
Dr Tooke gave evidence that she was not aware that Ms C had told a workers compensation investigator in May 2013 that she had been playing soccer. She said the practice had encouraged Ms C to exercise and she knew she had been walking and she did not see much difference between that and playing soccer. Dr Tooke said she is not physically impaired and referred to the fact she been able to work as a carer.
Ms C agreed at the first hearing she had played soccer but said it was only once or twice, and her daughter took her. I accept Ms C’s evidence about this.
Ms HC filed written submissions addressing the indicators for impairment under the Mental Health Impairment Table. She reports that her mother depends on her heavily in areas of self-care and independent living. She says members of their church frequently assist her mother with collecting the mail, paying bills, purchasing daily groceries, gardening, taking out the bins and filling the car with petrol.
Ms HC says that she has to attend social activities with her mother unless the activity is in a familiar place or in their local area. She says many of Ms C’s friendships have broken down; she has few social occasions and finds it difficult to connect to people.
With regard to concentration and task completion, Ms HC wrote her mother’s attention span is short and she gets distracted easily. She is confused, cannot organise herself and her house is in disorder; she often misses appointments with friends because she forgets and she panics before she has to go anywhere unless she has support to get organised; she seems to worry about everything and she constantly talks about her concerns and is obsessive about past events and people in her life.
Ms HC reports that her mother paces the house several nights a week due to insomnia and that she cries in her bedroom for long periods of time. Ms C told Ms HC that she cries because of “emotional pain and constant thoughts about things that happened in the past and each day” Ms HC said that her mother often says she feels dizzy and like she is going to faint. She said the police have been called because of the “arguing and crying all night”.
In relation to her mother’s work/training capacity, Ms HC said her mother used to panic a lot before shifts and would not be able to organise herself to get to work due to stress. She said her mother constantly talked about work pressures and that sometimes it took hours for her anxiety to calm down after shifts.
I accept Dr Tooke’s evidence that Ms C’s functional impairment was severe during the relevant period and, having regard to the Mental Health Function impairment table as set out at paragraphs [38] and [39] above, I am satisfied Ms C’s functional impairment during the relevant period aligns with a severe rating, meaning 20 points on the Impairment Table.
Did Ms C have a continuing inability to work?
Asked whether Ms C had a continuing inability to work, as that term was explained to her, within the relevant period, Dr Tooke gave the evidence referred to above at paragraph [54]. Asked to explain why, even with time, support and retraining, Ms C would not have been able to work within the next two years, Dr Tooke said her ability to organise was impaired, she had poor concentration, she was late for appointments, she had a short attention span, she relied on her daughter and friends to get her anywhere, she had severely impaired judgement in connection with a personal relationship, her house was in a mess, she could not organise food or get house repairs done. It was what Dr Tooke described as “a terrible time”.
Dr Tooke gave evidence that Ms C still has large periods of anxiety and her attention is dysfunctional, she needs help with everything, she has had a lot of counselling but she is still “in that space”. Asked whether Ms C’s depression would improve once her workers compensation claim is finalised, Dr Tooke said she has not worked for more than 12 months; if she was financially supported so that she did not have to work her anxiety would be reduced but the reasons for her depression have not been resolved and she does not think her depression will change.
I am satisfied that, even allowing that Ms C is not prevented from undertaking a training activity, such an activity is unlikely to enable her to work independently of a program of support within the next two years. I am satisfied that she had a continuing inability to work during the relevant period.
Conclusion
Because I find Ms C’s depression did not rate 20 points on 30 July 2012, I affirm the decision to cancel her DSP on 30 July 2012.
Because I find Ms C’s depression rated 20 points during the relevant period and she had a continuing inability to work, the decision that she was not eligible for DSP on 30 May 2013 is set aside and in substitution I decide that she qualified for the DSP on that date.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey. .............................................
Associate
Dated 31 July 2014
Date(s) of hearing 7 April 2014 and 9 May 2014 Representative for the Applicant Self-represented Representative for the Respondent Ms G Heggan, Solicitor
0
0
0