Ms Narelle Lewis and Secretary, Department of Social Services

[2014] AATA 598

[2014] AATA 598  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4199
Re	Ms Narelle Lewis
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	26 August 2014
Place	Sydney

The decision under review is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

26 August 2014

BACKGROUND

1. On 26 October 2012 Ms Lewis lodged a claim for Disability Support Pension (DSP) on the basis that she suffered a mental health condition that was having an impact on her ability to function. The condition was described in the claim form as “bipolar, depression, panic attacks and anxiety”.

2. Ms Lewis’ claim was rejected by Centrelink, both initially and on internal review, and subsequently the Social Security Appeals Tribunal (SSAT) on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) in that she did not have an impairment rating of 20 points or more under the Impairment Tables.

3. In this proceeding Ms Lewis seeks review of the decision of the SSAT.

4. Ms Lewis was self-represented and attended the hearing by telephone.

   ISSUES

5. In order to be qualify for DSP Ms Lewis had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 26 October 2102 and 25 January 2013.

6. It is agreed that Ms Lewis satisfied s 94(1)(a) of the Act and that she suffers from “major depressive disorder co-morbid with symptoms of anxiety” and “borderline personality disorder”.

7. The Respondent contends that, during the claim period, Ms Lewis’ mental health condition was not “permanent” within the meaning of the Act and therefore an impairment rating could not be allocated.

8. Alternatively, the respondent contends that if the Tribunal finds Ms Lewis’ mental health condition was “permanent”, during the claim period, the correct impairment rating under Impairment Table 5 was no more than 10 points and therefore did not satisfy s 94(1) (b) of the Act.

9. Therefore the issue to be decided is, whether, during the claim period, Ms Lewis’ mental health condition was “permanent” and, if so, whether the correct impairment rating under Impairment Table 5 was 20 points or more.

   IMPAIRMENT RATING

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Determination) requires that an impairment rating only be assigned if the condition causing that impairment is permanent.

11. The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised and is more likely than not to persist for more than two years.

    Was Ms Lewis’ mental health condition fully diagnosed and fully treated?

12. In determining whether a condition has been fully diagnosed and fully treated the determination states that the following must be considered :

    (a)whether  there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned

13. Also, functional impairment caused by a mental health condition is assessed under Impairment Table 5. The introduction to this Table stipulates that the diagnosis of a 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)”.

14. Dr S Prasad in an undated report, received by Centrelink on 26 November 2012, states that Ms Lewis suffered from depression, anxiety and panic attacks.

15. Dr Prasad records the date of diagnosis as 25 September 2012 and also notes that treatment with Citalopram 20 mg was commenced on that date and that a conference with a psychologist had been scheduled.

16. On 19 November 2012 Ms N Savage, a psychologist (endorsed in clinical psychology) diagnosed the applicant as suffering from  major depressive disorder co-morbid with symptoms of anxiety. Ms Savage reported that Ms Lewis attended three sessions between 29 October 2012 and 15 November 2012 and outlined a treatment plan which included psycho-education for depression and anxiety as well as anxiety management training.

17. Clearly there is sufficient evidence to conclude that during the claim period Ms Lewis suffered a mental health condition that was fully diagnosed and treated.

    Was Ms Lewis’s mental health condition fully stabilised?

18. The Determination states 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.”

19. In her oral evidence, Ms Lewis explained that her symptoms were most prominent during the last three months of 2012 and early 2013 and that it was about six months before she noticed any real improvement.

20. In January 2013 Ms Lewis started seeing Ms K Veljaca, a clinical psychologist, and continued to see her regularly until December 2013 when Ms Veljaca went on maternity leave.

21. In a report dated 22 February 2013, Ms Veljaca makes a diagnosis of borderline personality disorder and notes that Ms Lewis commenced intensive psychotherapy on 6 March 2013.

22. Ms Veljaca states that Ms Lewis will need regular and consistent treatment for at least one to two years and records her current medication as Citalopram at 30 mg.

23. In March 2013 Ms Lewis started seeing Dr R Pulley, a psychiatrist, who she has been seeing regularly since that time.

24. In a letter dated 19 May 2014 Dr Pulley confirms the psychiatric diagnoses of “major depressive disorder, recurrent, non-melancholic” and “borderline personality disorder”.

25. Dr Pulley notes that he first saw Ms Lewis in March 2013 and that she has been treated up to a dose of 40 mg of Citalopram , regular psychotherapy with a clinical psychologist and basic activity scheduling techniques. He notes that the treatment is continuing and that there has been a reasonable response.

26. Dr Pulley notes that at the time of her claim Ms Leis had not yet accessed psychology or psychiatry input and expressed the opinion that it was possible but not certain that such treatment would improve her level of function within two years.

27. In respect to the Impairment Table Dr Pulley states that Ms Lewis suffers from moderate functional impairment in activities involving mental health functioning.

28. In her oral evidence Ms Lewis agreed that her symptoms and level of functioning had improved gradually since commencing treatment in late 2012. She added that there had been a significant improvement when her Citalopram dose had been increased to 40 mg in about May 2014. She stated that her mood had stabilised, she was able to go out more, was less panicky and was now able drive to Sydney on her own.

29. It is clear from the evidence that any impairment suffered by Ms Lewis as a result of her mental health conditions has improved since she started treatment in late 2012.

30. This would suggest that during the claim period her mental health condition could not have been considered as stabilised, particularly as the diagnosis was made about one month before the date of claim. In my view, it would have been too early to conclude that treatment, which essentially started during the claim period, was unlikely to result in significant functional improvement over the next 2 years.

31. Furthermore, even if I were to accept that Ms Lewis’ mental health condition was fully stabilised during the claim period, in his letter of 19 May 2014 the Dr Pulley assessed her functional impairment as being moderate, which would lead to an impairment rating of 10 points under impairment Table 5.

32. Although it is not entirely clear from Dr Pulley’s letter as to the precise time which his assessment applies to there is no inference in his letter and there is no other evidence before the Tribunal which could lead to a conclusion that that Ms Lewis condition had a severe functional impact on activities involving her mental health function either during the claim period or thereafter.

    DECISION

33. For the reasons set out above, I am satisfied that during the claim period Ms Lewis  impairment was not 20 points or more under the Impairment Tables.

34. This means that Ms Lewis did not satisfy s 94(1)(b) of the Act and therefore was not qualified for DSP.

35. The decision under review is affirmed.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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Associate

Dated 26 August 2014

Date of hearing	14 August 2014
Applicant	By telephone
Solicitors for the Respondent	Department of Human Services