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

Pavlovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 1245 (3 May 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0994
Re:Zorica Pavlovic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:03 May 2018
Place:Sydney

The Tribunal affirms the decision under review.
.........................[SGD]...............................................
Chris Puplick AM, Senior Member
CATCHWORDS
Catchwords
SOCIAL SECURITY – disability support pension – rejection of claim for disability support pension – qualification period – eligibility – whether disability is fully diagnosed, treated and stabilised – whether the Applicant’s impairment attracts 20 points or more under the impairment tables – rheumatoid arthritis – depression and anxiety – decision affirmed
LEGISLATION
Legislation
Social Security Act 1991 (Cth) ss 26(1), 94
Social Security (Administration) Act 1999 (Cth) schedule 2
CASES
Cases
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558.
SECONDARY MATERIALS
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
03 May 2018

This is the matter of Zorica Pavlovic and Secretary, Department of Social Security concerning an application for a Disability Support Pension (DSP).
The simple question before the Tribunal is whether, within the period of 22 September 2015 and 22 December 2015 Mrs Zorica Pavlovic was eligible for the payment of a DSP.
It is the finding of the Tribunal, for the reasons stated below, that she was not.
In these proceedings Mrs Pavlovic was self-represented but assisted by her daughter.
The respondent was represented by Mr David McLaren.
The Tribunal wishes to thanks both parties for their assistance.
This application for a DSP was made on 22 September 2015 and that triggers an assessment process to determine the eligibility of Mrs Pavlovic for the DSP which must take place as of the date of the claim or within 13 weeks thereafter. That is, any time between 22 September 2015 and 22 December 2015 (the qualification period).

The qualification period is set out in clause 4(1) of schedule 2 of the Social Security (Administration) Act 1999 (Cth).
It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the applicant’s health, changes in their status or acquisition of additional medical or psychological conditions.
These may be material factors in any further application/claim which may be made but they are not germane to the present assessment.
Whereas in other matters before the Tribunal decisions are to be based on the facts at the time of the Tribunal hearing, that is not the case in relation to the DSP. The Tribunal can only consider information from within the qualifying period as it has no legislative authority to do so otherwise.
In order to qualify for the DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act (Cth) (the Act).
In essence these requirements or criteria are:
(a)The person has a physical, intellectual or psychiatric impairment;
(b)The person rates 20 points or more on the Impairment Tables Determination[1] (which are a set of criteria established to assess the level of impairment set out in a Determination made under section 26 of the Act). Points may be accumulated for a variety or number of conditions or in certain circumstances awarded directly for one condition of particular severity;
(c)The person has a continuing inability to work or the Secretary is satisfied that the person is participating in a programme known as the supported wage system;
(d)The person has turned 16; and
(e)The person is an eligible citizen or resident.
[1] Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 made under s 26(1) of the Social Security Act 1991. Dated 6 December 2011 and effective as of 1 January 2012.
Failure to meet any one of these requirements is fatal to the application and the Tribunal has neither the power nor the authority to disregard any such failure.
Pursuant to section 6(4) of the Impairment Tables Determination, in assessing the points referred to above, the condition (however defined) giving rise to the impairment must be:
·Fully diagnosed and documented;
·Fully treated; and
·Fully stabilised.
Again, each of these conditions must be met before any assessment against the criteria in the Impairment Tables can be awarded.
An inability to work is also defined in section 94(2) of the Act. The impairment prevents the person from:
(a)in all cases--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) in all cases--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.
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, and making sure that the rules are applied equally to each case.
MULTIPLE APPLICATIONS
Although as I have noted the application immediately before me is one dated

22 September 2015, this is not the only DSP application relevant to Mrs Pavlovic.

There are in fact three.[2]
[2] Reconstructed from the narrative in the Tribunal Documents and the Respondent Statement of Facts, Issues and Contention.
(a)DSP Claim 22 September 2015 (the 22 September 2015 application)
oThis claim was lodged on 22 September 2015.
oMrs Pavlovic attended a Job Capacity Assessment interview on 2 February 2016.
oFollowing this, the DSP claim was rejected by the delegate of the Minister on 4 February 2016.
o
Mrs Pavlovic then supplied a number of further of medical reports from

Drs Wiren and Handel during April and May 2016.[3]
[3] See in particular Tribunal Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975(Cth) (Tribunal Documents) at pp. 154-158; 160-165; 166-171.
oHaving considered all this new information, the original decision was affirmed by an Authorised Review Officer (ARO) on 8 August 2016.[4]
[4] ARO notes, Tribunal Documents at pp. 180-181 and Notification at pp. 183-187.
oA letter from a specialist Consultant Psychiatrist, Dr Carne was further provided on 19 September 2016.[5]
[5] Tribunal Documents at pp. 188-189.
oIn the light of this specialist advice a further review was conducted by the same ARO who once again affirmed the original denial decision on 13 October 2016.^[6]
[6] Tribunal Documents at pp. 190.
oThis original decision was appealed to the Social Services and Child Support Division of this Tribunal (AAT1) on 10 October 2016.
oThe Tribunal at first instance heard the application on 2 November 2017 and rejected the application on 10 January 2017 affirming the original decision.[7]
[7] Tribunal Documents at pp. 3-9.
o
The matter was appeal for second-tier review to this Tribunal on

20 February 2017.
oThe hearing date was 3 April 2018.
(b)DSP Claim 10 July 2017
oWhile these proceedings were on foot a second DSP claim was lodged by the Applicant on 10 July 2018.
oIt was rejected by the delegate of the Minister on 18 July 2018.
(c)DSP Claim 6 November 2017
oA third DSP claim was lodged by the Applicant on 6 November 2017.
oA finding was made by a Job Capacity Assessor on 16 November 2017 that the Applicant would be awarded 20 points on the single Impairment Table for a condition related to “Traumatic Brain injury”.[8]
oAs at the date of hearing the Tribunal is unaware of the outcome of this most recent application.
[8] Supplementary Tribunal Documents at pp. 223-230.
In any event, the two subsequent DSP applications are not relevant to these proceedings as the Tribunal is obliged to make findings solely about the strength or otherwise of
the

22 September 2015 application.
The core of the 22 September 2015 application relates to claims for impairment on the basis of two stated conditions.
As I have noted, each condition must be fully diagnosed, fully treated and fully stabilised (FDTS) before any assessment of a possible impairment rating can be assigned.
RHEUMATOID ARTHRITIS
Dealing with this is slightly problematic. It is accepted by the Secretary (and thus not in issue) that it is fully diagnosed as a condition, but the Secretary contends that it is not fully treated and stabilised. This is, in part, because such an assessment rests on whether or not Mrs Pavlovic is compliant with her medication schedule. Dr Handel’s[9] unchallenged evidence is to the effect that when Mrs Pavlovic takes her medication she is capable of functioning to near normal levels of capacity, but when she is non-compliant her degree of impairment is quite severe.
[9] Specialist Rheumatologist.
In evidence before the Tribunal at its hearing on 3 April 2018, Mrs Pavlovic described her condition in the qualifying period as one in which “she could not get out of bed” or “just had to roll out of bed” due to the impact of the arthritis. She stated that at this time she was not receiving treatment from Dr Handel but that once this started there was a significant improvement in her condition. She is, of example, able to make effective use of her mobile phone, in this instance to help her manage her appointments.
The complexity arises, however not just because there is a question of compliance against non-compliance but because the non-compliance itself may be a result (direct or indirect) of one of her other health conditions related to hydrocephaly or traumatic brain injury.
This puts the Tribunal in a somewhat difficult position. The Rules which precede the Tables themselves require that note be taken of the nature of “episodic or fluctuating” conditions so that in these cases the “overall functional impact” of the impairment is rated.^[10]
[10] s.11(4) Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
As I understand it, subject to correction, conditions, when they are “episodic” are so as a result of exogenous uncontrollable factors – in other words they happen regardless of the behaviour of the subject. This is not akin to a patient who fails to take their asthma medication for example, and then suffers an attack. In this case the failure to take medication may be beyond the control of Mrs Pavlovic.
Even so, whether they are episodic or not, the evidence is such that the Tribunal cannot be satisfied that the condition is fully treated and stabilised. Further and continuing treatments are indicated and the prospect of stabilisation and improvement, if not recovery, are attainable. This was particularly the case during the qualifying period when Mrs Pavlovic was in regular consultations with Dr Handel (her rheumatologist) and the frequency of these consultations was itself predicted on being the best therapeutic approach to ensuring medication compliance.
I accept that the condition of rheumatoid arthritis while fully diagnosed was not fully treated and stabilised during the qualifying period and thus does not qualify for assessment against any of the Impairment Tables.
DEPRESSION AND ANXIETY
Although subsequent medical reports bring before the Tribunal evidence of further medical conditions, the original DSP application lists (apart from the rheumatoid arthritis) only one other claimed medical condition, namely depression and anxiety.
Again this matter is not entirely clear as to what Mrs Pavlovic’s condition was during the qualifying period. As I have said, there is subsequent medical information related to matters of hydrocephaly, traumatic brain injury, previous motor vehicle accidents and the like. It is difficult to determine the extent to which any of these was, albeit not stated at the time, a material health condition or impairment during the qualifying period.
In the September 2015 applications Mrs Pavlovic lists Dr Philip Wiren as her treating doctor, describing him as a “psychologist”. However Dr Wiren refers to himself simply as her General Practitioner. At various stages he is shown as qualified “MB. ChB”[11] or “B.Sc, M.B, Ch.B”[12]
[11] Tribunal Document at p 179.
[12] Tribunal Document at p 188.
This distinction is important because the Impairment Tables make it clear that diagnoses of mental health conditions cannot be made solely by general practitioners. They must be made by a professional qualified psychiatrist or clinical psychologist.
The claim that Mrs Pavlovic was suffering from depression was made in a form completed by Dr Wiren dated 28 October 2015 in which he describes his “field of expertise” as being “mental health”.[13]
[13] Tribunal Document at p 141.
In the Job Capacity Assessment report of 3 February 2016, the Job Capacity Assessor reviewed all material available at the time and found that the condition of depression was not fully diagnosed, treated and stabilised because there was no confirmed diagnosis from a qualified psychiatrist or clinical psychologist to support it.
On this basis as neither condition (rheumatoid arthritis or depression/anxiety) was fully diagnosed, treated and stabilised, the original DSP application was refused and nil impairment points were awarded for either of the conditions.
There followed further letters from Drs Wiren and Handel which elaborated further on

Mrs Pavlovic’s condition and drew attention to the fact that she had recently been made homeless, which of course would add to anyone’s sense of depression. These representations were given further consideration by the ARO who nevertheless affirmed the original rejection decision on 8 August 2016.
Six weeks (or thereabouts) later, Mrs Pavlovic provided the Department with a letter from Dr Jonathan Carne, a qualified Consultant Psychiatrist. The letter dated 31 August 2016 was originally sent to Dr Wiren.[14]
[14] Tribunal Documents at p.188.
This letter is capable of supporting a diagnosis of depression, although it does not purport directly to make such a diagnosis, rather it accepts this condition as a given fact.

Dr Carne is a specialist authorised under the legislation to make such diagnoses.

The letter also refers to Mrs Pavlovic as suffering from hydrocephalus and traces

Mrs Pavlovic’s history of depression back to the 1980’s when she apparently suffered several instances of domestic violence at the hands of at least two male partners.
Dr Carne’s letter raises some problems for the Tribunal. As noted, in the first instance it is not a clear and specific diagnosis of depression, secondly it introduces the element or condition of hydrocephalus for the first time and thirdly it post-dates the qualifying period by approximately a year.
I will deal with this latter point first. Here guidance is provided by a determination by Deputy President Forgie in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 (Eid) where it was noted:
[88] It matters not, in my view, that the diagnosis came after 19 December 2011 provided Mrs Eid was suffering from the condition at that date and provided it could be said, on all of the evidence, to have been fully treated and fully stabilised as at that date. In everyday English usage, a “diagnosis” is “...the process whereby a disease or disorder is provisionally identified on the basis of its symptoms and the patient’s medical history. ...”. In medical usage, its meaning is little different: “... 1. The art of the act of determining the nature of a patient’s disease. 2. A conclusion reached in the identification of a patient’s disease.” There is nothing inherent in the process of diagnosis or in diagnosis itself that suggests that a condition does not exist until it is diagnosed. There is nothing in Schedule 1B[15] or in the Impairment Tables that suggests that either. All that they do is require that the condition be fully diagnosed. A person can suffer from a condition on a particular date even if it is yet to be identified and a name given to it as a result of a subsequent process of diagnosis that has regard to, among other matters, the symptoms that the person suffered on that date and his or her medical history at that time. Provided there is a diagnosis at some stage and the evidence shows that the person suffered from the condition in the relevant period, that meets the description of being a condition that is fully diagnosed.
[15] Schedule 1B was replaced by the new set of Impairment Tables effective 1 January 2012
It is on this basis that I am prepared to agree that this condition of depression was fully diagnosed. Again I have some difficulty with the issue of the extent to which the condition was, at the relevant time, fully treated and stabilised. There is evidence from Dr Wiren of Mrs Pavlovic being on medication[16] (citalopram) and there appears to be little evidence of any expected improvement in her condition. As such, on balance, I find her condition to be fully treated and stabilised. This is also the position adopted by the Secretary.[17]
[16] Tribunal Document at p. 144.
[17] Respondent Statement of Facts, Issues and Contentions at [67].
This leads then to an assessment of the degree of impairment, for which I must turn to Table 5 of the Impairment Tables Determination, entitled Mental Health Functions.
The Secretary contends that on the basis of items in this Table, Mrs Pavlovic rates a score of nil points, or five points at the very most.[18]
[18] Ibid at [68].
I am in no way bound by the finding of the AAT1 decision, who determined that a score of ten points on this Table was appropriate.
Once again I must refer back to the health and impairment status of Mrs Pavlovic at the time of the qualifying period. A great deal of material before the Tribunal post-dates that period and while I have no doubt that it reflects accurately the position at the time of writing it is necessary to relate any impairment finding to the qualifying period only.
Similarly, Mrs Pavlovic’s evidence before the Tribunal, while I have no doubt it genuinely reflects her recall of her condition in the qualifying period, was often seriously at odds with the contemporaneous medical evidence on the same point, namely the degree of her functional capacity and the impact of any impairments.
On that basis I find that evidence from Drs Wiren and Handel[19] note that at that time the Applicant was able to live independently without support and similarly that she was able to take public transport, albeit with some mild difficulties. I accept this as a true reflection of the Applicant’s condition at the time, especially given that during (or immediately prior to) this period she was, according to her own evidence at the Tribunal hearing, able to render assistance in looking after her own parents, including being able to do some cleaning and cooking.
[19] Dr Wiren (13 April 2016) at Tribunal Documents p. 157. Dr Handel (23 October 2015) at Tribunal Documents p. 137
I do find that the Applicant had some mild difficulties with matters of inter-personal relationships. This is understandable given her experiences which included an unstable and potentially violent domestic environment, homelessness and her on-going issues related to her overall mental health condition. The AAT 1 found that Mrs Pavlovic had some issues with her level of concentration and task completion[20] and in his report of 28 October 2015 Dr Wiren found her to be functionally “disorganized.”[21] This related especially to an inability at least compromised ability to seek rental accommodation at a time when she was “sleeping on the floor of daughter’s flat.”[22] It also touches on her capacity in relation to planning and decision making.
[20] Tribunal Documents p. 8.
[21] Tribunal Documents p. 143.
[22] Dr Wiren at Tribunal Documents p. 142.

In evidence, Mrs Pavlovic dealt at some length with questions of memory loss, including the extent to which this was remarked upon (not always kindly or helpfully) by members of her family. A reference from Dr John Tsingos (who appears to be a General Practitioner) addressed to the Memory Disorders Clinic at the Prince of Wales Hospital refers to “issues of memory problems becoming worse with time”[23] and Mrs Pavlovic herself indicated that she was attending the clinic from time to time, finding it to be helpful. There is also evidence of a referral from Dr Wiren to Dr Bentivoglio (a neurologist) asking him to assess Mrs Pavlovic in relation to “memory problems”[24]. There is no evidence indicating any follow-up to this referral.
[23] Tribunal Documents at p. 222.
[24] Supplementary Tribunal Document dated 6 November 2017 referred to in Respondent Statement of Facts, Issues and Contentions [34].
On the basis of material before the decision-maker the Secretary concedes that the Applicant “had mild difficulties with work/training capacity as at the qualifying period.”[25]
[25] Respondent Statement of Facts, Issues and Contentions at [85].
Taking all this material together, I find that Mrs Pavlovic had mild difficulties with “most” (i.e. four of six) of the check items set out in the five point schedule of Table 5 of the Impairment Tables Determination, namely in relation to:
·Interpersonal relationships;
·Concentration and task completion;
·Behaviour, planning and decision-making; and
·Work/training capacity.
I thus assess Mrs Pavlovic as rating a score of five points in relation to her mental health condition.
Together with my assessment in relation to the impact of rheumatoid arthritis this results in Mrs. Pavlovic being assessed as rating a total of five points on the Impairment Tables.
She thus fails to qualify for the DSP on the basis of not being assessed with a rating of at least 20 points.
MATTERS RELATED TO BRAIN INJURY
I cannot leave this overall assessment of Mrs Pavlovic’s level of impairment without reference to the matters of hydrocephaly and (traumatic) brain injury which are referred to in documentation dated well after the qualifying period.
It appears that these conditions may relate as far back as matters associated with a major traffic accident when Mrs Pavlovic was about ten years of age (i.e. around 1971/1972) and, as a pedestrian was struck by a motor vehicle, this led (about a year later) to her having a vascular shunt installed, which has subsequently been replaced eight or nine times.
Were such conditions to be fully diagnosed, treated and stabilised at that time, this would have a major impact on the Applicant’s impairment assessment. References to the aetiology of these conditions suggest that they are long-standing and certainly pre-date, or are at the very least coterminal with the qualifying period. The Job Capacity Assessment undertaking in the November 2017 claim, included within the Supplementary Tribunal Documents, has previously been mentioned.
However I feel that I am not able to take these matters into account as they were not stated as conditions in the original DSP application now before me, nor are they supported by the level of expert medical opinion (with due respect to Dr Carne) that I would have required to be satisfied of their inclusion for decision-making purposes. In the Secretary’s Statement of Facts, Issues and Contentions (at paras 87-91) there is reference to evidence before AAT1 from Dr Handel on this matter, but such evidence is not before me now and I cannot therefore give consideration to it.
In any event, the Tribunal at first instance, with this evidence before it, determined that neither the hydrocephaly nor the “acquired brain injury” were fully diagnosed, treated and stabilised. In submissions put to me in the hearing, this was the position advanced by the Secretary. I have no basis to depart from that conclusion and do not do so. I find any matters related to possible brain injury to be not fully diagnosed, treated or stabilised.
CONTINUING INABILITY TO WORK
The Secretary makes certain contentions regarding Mrs Pavlovic’s continuing inability to work, however, given that I have found that Mrs Pavlovic does not meet the impairment threshold test of 20 points, I am not required to consider this matter further and I decline to do so.
CONCLUSION
Mrs Pavlovic, at the relevant time, had a physical, intellectual or psychiatric impairment as required for consideration under section 94 of the Act.
Assessing Mrs Pavlovic’s impairments against the prescribed Impairment Tables I find that she had an impairment rating of nil points for rheumatoid arthritis and five ) points for her mental health condition.
As this is below the legislative requirement of 20 points I find that she did not, at the relevant time, qualify for the DSP
The reviewable decision of AAT1 dated 10 January 2017 is affirmed.
I note that Mrs Pavlovic still has outstanding claims for DSP before the Department and they are likely to be resolved on a different basis from those which were before this Tribunal.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 03 May 2018

Date of hearing: 3 April 2018

Advocate for the Applicant: Ms Pavlovic

Solicitors for the Respondent: Mr D McLaren, Department of Human Services

[2018] AATA 1245

3 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Standing

Statutory Construction

Procedural Fairness

Date of hearing:	3 April 2018
Advocate for the Applicant:	Ms Pavlovic
Solicitors for the Respondent:	Mr D McLaren, Department of Human Services