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

[2015] AATA 758

Ondaatje and Secretary, Department of Social Services (Social services second review) [2015] AATA 758 (28 September 2015)

Division	General Division
File Number(s)	2014/3955
Re	Gillian Ondaatje
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	28 September 2015
Place	Sydney

The decision under review is affirmed.

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

Mr S. Webb, Member

SOCIAL SECURITY – Disability Support Pension – psychiatric impairment – psychiatric disorder not fully treated and stabilised at time of claim or within 13 weeks thereafter – no impairment rating as condition causing impairment not permanent – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr S. Webb, Member

28 September 2015

1. Gillian Ondaatje suffered debilitating psychological symptoms. She claimed Disability Support Pension (DSP). Her claim was rejected. She applied for review, but the original decision has been affirmed by Departmental officers and, most recently, by the Social Security Appeals Tribunal. Ms Ondaatje is not satisfied with these decisions, and she applied for review by this Tribunal.

2. By agreement of the parties, the application has been listed to be heard on the papers. I have not had the opportunity to hear from Ms Ondaatje in person. No oral evidence has been called or taken.

   ISSUES

3. Ms Ondaatje’s DSP claim is to be determined under the Social Security Act 1991 (Cth) (the Social Security Act). Essentially, s 94 (1) sets out the core qualification criteria for DSP. All of these criteria must be met for DSP to be granted. In this case, it is necessary to focus on three of the qualification criteria –

   94 Qualification for disability support pension

   (1) A person is qualified for disability support pension if:

   (a) the person has a physical, intellectual or psychiatric impairment; and

   (b) the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c) one of the following applies:

   (i) the person has a continuing inability to work;

   …

4. For DSP to be payable to a claimant, the commencement rules for payment set out in ss 41, 42 and cl 4 of Sch 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) must be complied with. Essentially, for DSP to be payable, the claimant must meet the qualification criteria on the day DSP is claimed, or within 13 weeks thereafter.

5. This means that assessment of Ms Ondaatje’s DSP claim must be made with reference to the period commencing on the day she made her claim – 20 January 2014[1] – and ending 13 weeks thereafter. The retrospective nature of the Tribunal’s review does not mean that the Tribunal must only consider materials, such as medical reports, that were available during the qualification period – the Tribunal must consider all of the relevant materials placed before it, including medical reports and other assessments generated after the qualification period insofar as these bear upon the legal tests the Tribunal must apply with reference to that period.

   [1] T20.

   PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT

6. It is quite clear that Ms Ondaatje has experienced debilitating psychological symptoms for some years. On 16 August 2007, a Job Capacity Assessor reported “symptoms consistent with anxiety and complicated grief” and noted that Ms Ondaatje had “undergone some previous treatments including psychological assistance, psychiatrist appointments, natural healing, hypnosis and prescribed medications”.[2] The Assessor considered that Ms Ondaatje’s anxiety condition was temporary as it had not been diagnosed, treated and stabilised. Unfortunately, no reports or other materials relating to treatment Ms Ondaatje obtained for her psychological symptoms in or before 2007 have been produced.

   [2] T13 folio 45.

7. On 30 July 2009, a further Job Capacity Assessment was made. The Assessor concluded that Ms Ondaatje’s psychological condition was temporary as it was not diagnosed, treated and stabilised. He reported –

   Ms Ondaatje referred to several incindence [sic] that suggested significant paranoia. She referred to having seen a psychiatrist in the past and having trialled some form of medication but was unable to provide details. Assessor unable to confirm further details through telephone contact with the treating GP. It is likely that Ms Ondaatje experiences some psychological symptoms not as yet formally diagnosed.[3]

   [3] T14 folio 48.

8. On 23 July 2013, Dr Kathir certified that Ms Ondaatje was suffering “gastro-inestinal symptoms along with chronic anxiety and depression”.[4] While the Doctor referral Ms Ondaatje to a gastro-enterologist for further assessment, no treatment is suggested in respect of her psychological condition.

   [4] T15.

9. In an Employment Services Assessment Report on 8 August 2013, the Assessor reported that Ms Ondaatje required “Psychological/cognitive assessment/intervention” and “Further diagnostic/medical investigation”.[5]

   [5] T16 folio 56.

10. On 9 December 2013, Dr Abeya, a treating psychiatrist, reported that –

    I have had regular reviews with Gillian over the past few months as her treating psychiatrist.

    I note that she has been under considerable stress and have recently commenced her on medication. Whilst she has shown some response to the medication she continues to face a number of personal stressors and this is likely to worsen her anxieties.[6]

    [6] T17.

11. On 10 January 2014, Dr Abeya provided a Medical Report for DSP in which Ms Ondaatje’s condition is diagnosed as “Schizoaffective Disorder” which the Doctor considered to be a “long term undiagnosed condition”.[7] It appears that Dr Abeya prescribed antipsychotic medication from 23 September 2013 and that “Insight oriented therapy + supportive psychotherapy” commenced on 9 September 2013. The Doctor reported that Ms Ondaatje’s condition was likely to persist for more than 24 months and to slightly improve with treatment –

    Given that she has never previously received treatment – I hope there will be some improvement with further medication – but she is likely to continue to have significant residual symptoms.[8]

    [7] T19 folio 64.

    [8] T19 folio 66.

12. On this material, it is quite clear that Ms Ondaatje had a psychiatric impairment on the day she made her claim for DSP on 20 January 2014.

13. This means that the first qualification criterion in s 94(1)(a) is met.

    IMPAIRMENT RATING

14. The second qualification criterion requires Ms Ondaatje’s psychiatric impairment to be rated under the Impairment Tables. These are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

15. The Determination sets out rules that must be applied when applying the Impairment Tables. Under subs 6(3), an impairment rating can only be assigned if the person’s condition causing the impairment is permanent. Subsection 6(4) provides that a condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, and it has been fully treated (subs 6(5) applies) and fully stabilised (subs 6(6) applies).

16. On the reports of Dr Abeya, it is quite clear that Ms Ondaatje’s Schizoaffective Disorder was diagnosed before she made her DSP claim on 20 January 2014, but it had not been fully treated or stabilised at that time – she commenced treatment in September 2013 and on 10 January 2014 Dr Abeya reported that some improvement was expected.

17. Subsequent reports of Dr Abeya on 21 February 2014[9] and 21 March 2014[10] address issues relating to Ms Ondaatje’s functional capacity for work and her efforts to continue in employment, but these do not shed any further light on the treatment or stability of her psychiatric illness. That said, I accept Dr Abeya’s assessment that Ms Ondaatje’s functional capacity was significantly impaired at the time. In a further report dated 6 September 2014, Dr Abeya says that the antipsychotic medication adversely affects Ms Ondaatje’s cognitive capacity and –

    Her situation has been worsened by recent major stresses in her personal life... This has left her with more anxiety and depressive symptoms.

    To her credit she has done her best to try and work (e.g. childcare) But has lacked the capacity to continue through [sic] – owing to her cognitive slowing and fatigue. Whilst she is yet looking for work owing to her illness her capacity to sustain employment remains uncertain.

    [9] T23.

    [10] T27.

18. On 15 April 2014, Raynor Lander, Ms Ondaatje’s treating psychologist, reported that Ms Ondaatje “continues in her recovery from her illness and has been told to avoid undue stress”.[11] This suggests that Ms Lander expected further improvement in Ms Ondaatje’s psychiatric condition.

    [11] T28 folio 128.

19. Doing the best with the available materials, it is quite clear that treatment of Ms Ondaatje’s psychiatric condition continued throughout the 13 week period following the day on which she claimed DSP.

20. Furthermore, it is not presently established that Ms Ondaatje’s psychiatric condition was fully stabilised during the period from 20 January 2014 to 21April 2014. Dr Abeya and Ms Lander appear to anticipate some further improvement in Ms Ondaatje’s condition. I am unable to conclude that the pharmacological treatment prescribed by Dr Abeya and the psychological treatment provided by Ms Lander were unlikely to result in significant functional improvement such that Ms Ondaatje would be able to undertake work in the ensuing two years.

21. On the present materials, I am not able to assess the nature and extent of the “significant residual symptoms” Dr Abeya referred to on 10 January 2014 in reference to the DSP qualification period of 13 weeks following 20 January 2014. Dr Abeya does not suggest what these residual symptoms might be or the extent to which treatment of Ms Ondaatje’s condition may reduce residual symptoms and result in functional improvement. Dr Abeya does not suggest, for example, that the functional impairments reported on 21 March 2014 are ‘significant residual symptoms’ that would be unlikely to improve with treatment. In all likelihood, an assessment of this kind could not be made until the effects of treatment are known.

22. The letters of support Ms Ondaatje provided from Qi Xuan Wu, a service coordinator with Medicare Local, Magdy Massoud, a social worker, and Kylie Minahan, a social welfare worker, illuminate Ms Ondaatje’s difficult circumstances and confirm that treatment was ongoing in August and September 2014. On 1 August 2014, Ms Minahan noted that Ms Ondaatje’s condition was “relatively unstable”.

23. Even though I am sympathetic to Ms Ondaatje’s case, and I am sure that she has experienced very significant difficulties as a result of her psychiatric illness, the present evidence does not permit a finding that her condition was fully treated or fully stabilised when she made her DS claim or within the period of 13 weeks thereafter.

24. This means that her psychiatric impairment cannot be treated as ‘permanent’ for the purposes of subs 6(3) and it cannot be given a rating under the Impairment Tables.

25. It follows that Ms Ondaatje does not meet the second qualification criterion in s 94(1)(b).

    CONCLUSION

26. As Ms Ondaatje’s psychiatric impairment is not able to be given a rating of 20 or more points under the Impairment Tables, her DSP claim cannot be granted. It is not necessary for me to proceed further to determine whether she had a continuing inability to work for the purposes of s 94(1)(c) of the Social Security Act.

27. It is open for Ms Ondaatje to make a further claim for DSP, if she has not already done so. This is perhaps cold comfort to a person in her shoes, when more than 18 months have elapsed since she made her claim for DSP and she is struggling as a sole parent in the most difficult circumstances.

    DECISION

28. The decision under review must be affirmed.  

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb

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

Associate

Dated 28 September 2015

Date(s) of hearing	26 August 2015
Applicant	Self-represented
Solicitors for the Respondent	Department of Human Services