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

[2019] AATA 2475

Pearson and Secretary, Department of Social Services (Social services second review) [2019] AATA 2475 (9 August 2019)

Division:GENERAL DIVISION

File Number:           2018/3670

Re:Skye Pearson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:9 August 2019

Place:Sydney

The Tribunal finds that as the Applicant’s impairment is not of 20 points or more under the Impairment Tables, she does not qualify for Disability Support Pension under section 94(1) of the Social Security Act 1991 (Cth).

The decision under review is affirmed.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during qualification period – whether condition fully diagnosed, treated, stabilised – whether impairment attracts 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 94

Social Security (Administration) Act 1999

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security Guide

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

9 August 2019

1. This is an application for review of a decision of the Social Security and Child Support division of the Tribunal (‘AAT1’) made on 30 April 2018, which affirmed the decision of the Centrelink Authorised Review Officer (‘ARO’) dated 29 November 2017 which rejected the Applicant’s claim for Disability Support Pension (‘DSP’).

2. The issue for determination is whether the Applicant meets the criteria set out in section 94(1) of the Social Security Act 1991 (Cth) (‘the Act’), in particular whether at the relevant date of 14 December 2016 or within 13 weeks of that date, the Applicant:

   (a)had a physical, intellectual or psychiatric impairment for the purposes of section 94(1)(a) of the Act; and

   (b)had an impairment rating of at least 20 points on the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘Impairment Tables’) for the purposes of section 94(1)(b) of the Act; and

   (c)had a continuing inability to work as defined in section 94(2) of the Act for the purposes of section 94(1)(c) of the Act.

   BACKGROUND

3. The Applicant is 36 years old. She has a son who was born in 2018. The Applicant currently does not work although she does appear to have been employed in the past. The Tribunal notes that there is no evidence of her ever working as a singer, actress or model despite an online profile page, presented in evidence by the Respondent, in which the Applicant indicated that she did have an involvement in such work. The Applicant gave evidence that this online profile page was in fact out of date and had not been updated for many years.

4. The Applicant gave evidence that she had suffered serious abuse as a child and again as a young woman. She outlined her social difficulties resulting from her anxiety and also gave evidence as to the various medications she has taken and the various therapists and doctors she has consulted over the years. I accept that evidence.

5. The Applicant has received significant ongoing support and assistance from her parents and acknowledges the help they have given her even at difficult times. It was clear from the evidence that her parents played a significant role in the lives of the Applicant and her son. Evidence was also given as to the stress that the issues surrounding her various claims for DSP had caused the Applicant including the cost burden of seeking various medical opinions. There was some evidence that on the advice of her parents the Applicant had seen a doctor in relation to illicit drug usage. The Applicant disputed that she was regularly using drugs and I accept her evidence in this regard.

6. Under questioning from the Respondent’s representative the Applicant admitted that she had never attended a program of support as required to meet the qualifications for DSP.

7. On 14 December 2016 the Applicant lodged a claim for DSP in which she listed her medical conditions as primarily psychological, including chronic post-traumatic stress disorder, disassociation, sinusitis and paraesthesia.

8. On 23 February 2017 Ms Pearson attended a face-to-face job capacity assessment in person related to her DSP claim. In a job capacity assessment report dated 15 March 2017, the assessor found that Ms Pearson had a mental health condition that was fully diagnosed, treated and stabilised. She was assessed as attracting 10 points under Table 5 (Mental Health Function) of the Impairment Tables and it was found that she had a baseline work capacity of up to seven hours per week, as well as a work capacity within two years, with some intervention, of 15 to 20 hours per week.

9. On 3 June 2017, Centrelink made a decision to reject Ms Pearson’s claim for DSP on the ground that she did not have an impairment rating of 20 points or more. The matter was reviewed again on 6 September 2017 and at that time the assessor, a registered psychologist, found that Ms Pearson had a mental condition which was not fully diagnosed and that she had a baseline work capacity of nought to seven hours per week and a work capacity within two years, with intervention, of 15 to 22 hours per week.

10. That original decision was affirmed by an ARO on 29 November 2017 who found that Ms Pearson’s mental health condition was not fully diagnosed, and so points could not be assigned under the Impairment Tables. The ARO also found that another physical impairment had been resolved by surgery.

11. On 30 April 2018, the AAT1 affirmed the decision of the ARO. Relevantly, like the ARO, the AAT1 found that Ms Pearson’s mental health condition was not fully diagnosed and therefore points could not be considered under the Impairment Tables and also that her physical ailment had in fact been resolved by surgery in 2016.

12. Ms Pearson made a further application to this Tribunal on 9 July 2018. In support of her application Ms Pearson provided further medical evidence as follows.

    (a)Report of Dr Ferguson, Gen practitioner dated 31 May 2018;

    (b)Report by Dr Bridges, Gen practitioner dated 16 August 2018;

    (c)Letter from Dr Bridges to Dr Saker dated 16 August 2018;

    (d)Report from Dr Siddiah medical offlcer dated 24 August 2018;

    (e)Report by Dr Wohlfart, Gen practitioner dated 24 September 2018;

    (f)Report of Ms Dunn, clinical psychologist dated 11 October 2018;

    (g)Report of Dr Saker psychiatrist, dated 18 October 2018.

    CRITERIA TO BE APPLIED

13. The relevant legislation is set out in the Act, the Social Security (Administration) Act 1999, the Impairment Tables and the Social Security (Active Participation for Disability Support Pension) Determination 2014. It is also relevant to consider the policy set out in the Social Security Guide of the Department of Human Services. Policy in the guide should be applied unless there are cogent reasons not to do so.

14. It is well-settled in cases such as Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, affirmed by the Federal Court in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, that the Tribunal can only consider an applicant’s qualification for DSP within the qualifying period, that is the 13 week period from 14 December 2016 (the date on which her claim was lodged) to 15 March 2017.

15. The Impairment Tables made pursuant to section 26(1) of the Act also apply. Section 6 of the Impairment Tables set out the requirements for assessing the level of functional impairment and assigning impairment ratings. Relevantly, the section states that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent, and that a condition is considered permanent if it has been fully diagnosed, fully treated and fully stabilised.

    CONSIDERATION

16. The first issue to consider is whether as at 14 December 2016 or within 13 weeks of that date, the Applicant had a physical, intellectual or psychiatric impairment for the purposes of section 94(1)(a) of the Act.

17. In its decision the AAT1 found that the Applicant did in fact suffer from a mental health disability during the qualification period. This diagnosis is backed up by subsequent reports including the reports filed by the Applicant for the purposes of this hearing. Accordingly the Tribunal agrees that on the basis of the various medical reports provided, the Applicant had a mental health condition, in particular anxiety, depression and possibly post-traumatic stress disorder, during the qualification period and therefore meets the requirements of section 94(1)(a) of the Act. It is noted that the Applicant’s gastrointestinal condition had been resolved by this time and was not a consideration before this Tribunal.

18. The next issue for determination is whether the Applicant’s mental health condition was fully diagnosed, treated and stabilised during the qualification period. In accordance with the introduction to Table 5, which is the Impairment Table relating to mental health function, the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner, which includes a psychiatrist, with evidence from a clinical psychologist if the diagnosis was not made by a psychiatrist.

19. An examination of the medical reports submitted by the Applicant in support of her claim indicates that Ms Dunn, a clinical psychologist, first saw the applicant on 18^th September 2018. She provided a report dated 11 October 2018 with a diagnosis which corroborates the earlier diagnosis of Dr Ferguson, a general practitioner. Ms Dunn sets out a treatment plan for Ms Pearson in her report.

20. Dr Saker, a psychiatrist, provided a report dated 18 October 2018 with a firm diagnosis of post-traumatic stress disorder. Dr Saker’s management plan made recommendations for a change to the Applicant’s medication and recommended she continue her ongoing relationship with her psychologist.

21. The diagnoses of Ms Dunn and Dr Saker do not indicate that they relate to the qualification period and in fact do not purport to do so. I note that Dr Ferguson in an earlier report of 8 March 2017 could not recall the name of a psychiatrist who saw Ms Pearson prior to the qualification period because the records were no longer available.

22. It is apparent from the reports that Ms Pearson’s condition had not been fully treated and stabilised during the qualification period. Dr Saker in his report of 18 October 2018 states that Ms Pearson is still trialing different medication. Although a change of medication may not be unusual in the case of a psychiatric condition, it appears clear from Dr Saker’s comment that no ongoing treatment regime had at that stage been determined, even though the condition may have been fully diagnosed.

23. The Tribunal cannot reasonably be satisfied that the Applicant’s condition was fully treated and stabilised during the qualification period. In fact, there is no evidence to support such a contention.

24. As the Tribunal has found that the Applicant’s condition had not been fully treated and stabilised during the qualification period, no points can be assigned to her condition under the Impairment Tables.

25. In light of the above findings, it was not necessary for the Tribunal to consider the continuing inability to work criteria under section 94(1)(c) of the Act.

    DECISION

26. As the Applicant’s impairment is not of 20 points or more under the Impairment Tables, she does not qualify for DSP under section 94(1) of the Act.

27. The decision of the AAT1 is affirmed.

I certify that the preceding 27 (twenty - seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 9 August 2019

Date of hearing:	13 June 2019
Applicant:	In person
Advocate for the Respondent:	Dr S Thompson
Solicitors for the Respondent:	Department of Human Services