QGZY and Secretary, Department of Social Services (Social services second review)
[2016] AATA 523
•22 July 2016
QGZY and Secretary, Department of Social Services (Social services second review) [2016] AATA 523 (22 July 2016)
Division
GENERAL DIVISION
File Number(s)
2015/6182
Re
QGZY
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 22 July 2016 Place Canberra The decision that QGZY was not qualified for DSP on 22 June 2015 is set aside and in place thereof, the Tribunal decides that she was qualified for DSP on that day. The calculation of DSP payments to which she is entitled is remitted to the Secretary.
QGZY’s eligibility for indefinite portability of DSP is remitted to the Secretary under s 42D(1) of the AAT Act for further consideration.
...................[sgd].....................................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – cancellation following review of qualification for indefinite portability – assessment of qualification on cancellation day – impairments – rating of impairments – severe impairment – continuing inability to work – qualification requirements satisfied – decision set aside and remitted
PRACTICE AND PROCEDURE – jurisdiction – original decision to cancel disability support pension and reject claim for indefinite portability – no reference to portability in formal notice of decision – portability not considered by authorised review officer or Tribunal on first review – jurisdiction not confined to matters considered on review – meaning of ‘decision’ – broad construction – scope of review includes qualification and portability for DSP
LEGISLATION
Social Security Act 1991 ss 6, 94, 1118AAA, 1218AAA
Social Security (Administration) Act 1999 ss 80, 142, 179
CASES
Comcare v Sassella [2001] FCA 1514
Fuad and Telstra Corporation Limited [2004] AATA 1182
Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574
Yan and Secretary, Department of Social Services [2014] AATA 294SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
22 July 2016
QGZY has suffered from schizophrenia and other medical conditions for many years. She was granted disability support pension (DSP). When she applied for indefinite portability of her DSP, a review was conducted and her DSP was cancelled. QGZY sought review of this decision, but the decision has been affirmed. QGZY has applied for further review.
Procedural facts
On 22 January 1998, QGZY was granted DSP under the terms of the Social Security Act 1991 (the Act) then in force. On 17 March 2015, QGZY requested indefinite portability of DSP. Centrelink determined that a ‘medical review’ of QGZY’s qualification for DSP was required for the purposes of assessing her eligibility for indefinite portability. It was in this context that QGZY provided Centrelink with the ‘Medical Report’ documents in T18 and T19.
On 1 May 2015, QGZY’s case was referred for a Job Capacity Assessment.[1] The Centrelink notes reveal that the referring officer recorded –
“Claim has been checked for non-medical eligibility, including residence, income, assets and compensation.”
[1] T30 folio 272.
The Job Capacity Assessor referred the case to the Secretary’s Health Professional Advisory Unit for an opinion. On 10 June 2015, a written opinion was produced, indicating that QGZY did not qualify for DSP.[2]
[2] Exhibit 7; T21.
On 18 June 2015, the Job Capacity Assessment was undertaken. The Assessor reported that QGZY did not meet the eligibility requirements for DSP.[3]
[3] T22.
On 19 June 2015, a Centrelink officer informed QGZY that her DSP would be cancelled on the basis of the adverse Job Capacity Assessment.
On 22 June 2015, a delegate of the Secretary decided to cancel QGZY’s DSP and found that she was not eligible for indefinite portability.[4] Information regarding the cancellation of QGZY’s DSP was set out in a notice issued on that day.[5] I was informed at the hearing that DSP payments may have continued for some time, pending completion of review processes, but a further cancellation notice was issued to QGZY on 11 November 2015.[6] I have not seen evidence that QGZY was, otherwise, provided with a written decision or notice rejecting her request for indefinite portability of DSP.
[4] T30 folio 270.
[5] T23 folio 226.
[6] T29.
On 25 June 2015, QGZY requested review of the 22 June 2015 decision.[7]
[7] T30 folio 268.
Subsequently, the determination was reviewed and affirmed by an Authorised Review Officer (ARO) and by the Social Services and Child Support Division of this Tribunal on first review.
QGZY is not content with these decisions. She applied for further review.
Issues
The issue at the heart of the proceedings is whether QGZY qualified for DSP on the day it was cancelled – 22 June 2015 (the cancellation day).
In order to qualify for DSP, QGZY must satisfy the requirements of s 94 of the Social Security Act 1991 (the Act) at that time. There are three key criteria of present relevance under s 94(1) –
(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;
…
I was informed that the Secretary accepts that QGZY meets the tests under s 94(1)(a) and (c). For reasons that will appear, I think those concessions are well made.
For the purposes of s 94(1)(b), it is necessary to determine whether QGZY’s impairments attract a rating of 20 or more points under the Impairment Tables. These Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
A further issue arose at the hearing in respect of the Tribunal’s jurisdiction to determine QGZY’s application for grant of indefinite portability. I will deal with this issue first.
Jurisdiction
It was in the context of QGZY’s application for indefinite portability that her DSP came under review and was subsequently cancelled. The portability issue was not expressly dealt with in review proceedings before the ARO or this Tribunal at first instance. For this reason, there is a live question whether the Tribunal presently has jurisdiction on second review to determine QGZY’s eligibility for indefinite portability.
Rather than delay the hearing, I issued orders allowing time for both parties to consider their respective positions on this point and to make properly considered submissions. I have received written submissions from the Secretary.
The Secretary does not consider the Tribunal has jurisdiction to determine QGZY’s eligibility for indefinite portability. In the Secretary’s submission, the Tribunal’s second review jurisdiction is confined to matters that were specifically considered on first review by the Tribunal.[8]
[8] Secretary’s Supplementary Statement of Facts, Issues and Contentions, 29 June 2016, paragraphs [3] and [4].
No written submissions have been provided by QGZY. This notwithstanding, I will proceed to determine the jurisdictional point.
The Tribunal’s jurisdiction in respect of second tier review is conferred by legislation – in this case by s 179 of the Social Security (Administration) Act 1999 (the Administration Act):
179 Application for AAT second review
(1) Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a) if an AAT first review affirms a decision—that decision as affirmed; or
(b) if an AAT first review varies a decision—that decision as varied; or
(c) if an AAT first review sets a decision aside and substitutes a new decision—the new decision; or
(d) if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT—the directions or recommendations of the AAT.
As can be seen, if the Tribunal’s first review affirmed the decision, it is the ‘decision as affirmed’ that is the subject of review on application. That is what occurred – on 26 October 2015, the Tribunal on first review decided that “The decision under review is affirmed”.[9]
[9] T2 folio 3.
Under s 142(4)(a) of the Administration Act, the decision under review by the Tribunal on first review is the decision as affirmed by the ARO. The ARO affirmed the primary decision made on 22 June 2015.
Thus, under s 142 and s 179 of the Administration Act, the decision before the Tribunal at first and second review was the original decision on 22 June 2015, as affirmed.
It is in respect of this decision that the Tribunal’s second review jurisdiction is enlivened.
The Secretary’s submission proceeds on the assumption that the Tribunal’s second review jurisdiction is confined to matters specifically considered by the first review of the Tribunal. This is not correct. The Tribunal’s second review jurisdiction rests on the conduct of a ‘first review’, not on the particular matters considered by the Tribunal in that review.
When a decision is affirmed for the purposes of the Act and the Administration Act, it is left unchanged and intact in all regards. Thus, if a decision is affirmed on first review by the Tribunal, the decision under review stands, unchanged, ‘as affirmed’, and it is this decision that is before the Tribunal on second review. This is so whether or not the Tribunal on first review specifically considered all of the matters of assessment and deliberation necessary for the purposes of making the decision. As Tamberlin J observed in Yan and Secretary, Department of Social Services[10] at [10] there is a distinction to be drawn between what is required to make a decision and what is required on review of that decision. While the task of the Tribunal on review is to consider the merits and to make the correct or preferable decision on the materials placed before it, oftentimes the course of review is informed to some extent by issues raised and contested by parties to the proceedings.
[10] [2014] AATA 294.
In the present case, for example, the Tribunal on first review considered that QGZY did not meet the DSP qualification requirement under s 94(1)(b) of the Act and did not proceed further to consider whether she had a continuing inability to work for the purposes of s 94(1)(c). It does not follow, and I do not understand the Secretary to be arguing, that the Tribunal on second review has no jurisdiction to determine this issue for the purposes of s 94(1)(c).
To my mind, in the exercise of powers under the Act or the Administration Act, all the matters that are before a primary decision maker are carried forward on review. In the example of this case, the s 94(1)(c) issue was before the original decision maker and the Tribunal on first review, and it is before the Tribunal on second review even though it was not expressly dealt with on first review.
Once the jurisdictional facts are established, it may be necessary to determine the scope of the decision under review – what was before the original decision maker for determination. This is a practical matter rather than an issue of jurisdiction.
In this case, it is quite clear that there were two matters before the original decision maker. QGZY requested grant of indefinite portability. Consideration of her request involved a medical review of her eligibility for DSP as well as other considerations. Both matters were squarely before the original decision maker.
The 22 June 2015 decision is set out in the document in T23. As can be seen, the decision expressly deals with cancellation of QGZY’s DSP and is silent on the question of indefinite portability. Nevertheless, Centrelink’s computer records of the decision reveal that both issues were addressed by the decision maker. In these records, the decision is expressed in two parts:
“MEDICAL REVIEW assessment
Customer no longer qualifies for DSP as:
the impairment rating is less than 20 points.
and therefore s94 of the Social Security Act is not satisfied.
…
PORTABILITY DECISION
As CUS does not meet the requirement of SSA s94, CUS therefore does not meet the requirement of SSA s1218AAA, as there is not a “severe impairment” or “no future work capacity”. CUS is therefore not eligible for indefinite DSP portability.”[11]
[11] T30 folio 270.
As can be seen, the decision to cancel QGZY’s DSP on 22 June 2015 was made on the basis of an adverse assessment of her eligibility under s 94(1) of the Act. The consequential effect of this decision is that QGZY could not meet the eligibility tests for grant of indefinite portability under s 1118AAA of the Act – one of the essential requirements is that she ‘is receiving’ DSP. Once her DSP was cancelled she could not meet this requirement under s 1118AAA(1)(a) - the adverse assessment and related decision meant that her request for indefinite portability failed at the first hurdle.
This raises an interesting question – for the purposes of determining the Tribunal’s second review jurisdiction, is the original decision to be construed narrowly, on the basis of what it expressly deals with in the notice given to QGZY, or should it be construed broadly to include all matters that were before the decision maker for determination, whether expressly dealt with to finality or not?
There is an open line of argument based on what Finn J said in Comcare v Sassella[12] at paragraphs [22] and [23] that for a ‘decision’ to be properly formed it must involve intent and express result. But the Secretary did not raise or pursue an argument of this kind. I think that the more recent decision of Downes J, sitting as Tribunal President, in Fuad and Telstra Corporation Limited,[13] which was referred to with approval by the Full Federal Court in Irwin v Military Rehabilitation and Compensation Commission,[14] provides authoritative guidance in respect of jurisdictional issues arising from the sequential effects of adverse decision making. Even though those cases deal with adverse decision making and compensation claims under different enactments, I think a similar principle applies in the present case under the Act.
[12] [2001] FCA 1514.
[13] [2004] AATA 1182.
[14] (2009) 174 FCR 574 at [22] and [23].
To my mind what Downes J said in Fuad at [4] and [5] is apposite here –
4. …nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.
5. It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way.
Construing an operative ‘decision’ in this way is consistent with the beneficial nature of the Act, generally, and the review provisions, in particular, and with the broad meaning given to that word under s 3(3) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Thus, in the circumstances of this case, even though only the threshold qualification issue was expressly dealt with in the notice of decision, I would construe that decision as dealing with both of the qualification and portability issues placed in issue by QGZY’s claim. The decision-maker’s notes are quite clear: an adverse finding was made in respect of QGZY’s qualification for DSP and this rendered her ineligible for indefinite portability. The two limbs of the decision can plainly be seen, albeit that the first is determinative of the second. Adverse decisions of this kind may commonly flow in this way: if a claimant fails to meet a threshold requirement, other matters under claim cannot be granted and may fall away from determination. Nevertheless, the decision maker in this instance was alive to both issues and both issues were for determination.
I am satisfied that QGZY’s eligibility for indefinite portability of DSP was before the original decision maker. As I have said, that decision maker made a decision in two parts – QGZY was not qualified for DSP and she was not eligible for indefinite portability.
Both of these matters were before the ARO and this Tribunal on first review. In each case, the adverse finding in respect of qualification for DSP was affirmed. And in each case, the decision maker did not proceed to determine the issue of eligibility for indefinite portability. This was presumably because, without qualification for and receipt of DSP portability, the grant of indefinite portability was not open.
Nevertheless, each of these matters was before the decision-maker, and they are before the Tribunal on second review.
Impairment
The Secretary accepts that QGZY suffered from schizophrenia, diabetes type 2, asthma and gastro-oesophageal reflux disease as of the cancellation day. The presence of these medical conditions when QGZY’s DSP was cancelled is established on the balance of probabilities. . In a report dated 13 April 2015, Dr Vakeeswaran, QGZY’s treating general practitioner, refers to chronic obstructive pulmonary disease.[15] It is not clear if QGZY suffered from this condition as well as asthma on the cancellation day.
[15] T18 folio 202.
It is quite clear on Dr Vakeeswaran’s 13 April 2015 report that, at the time, the symptoms of QGZY’s psychiatric condition included “hearing voices, anxiety, agitation and fidgity [sic] on and off”,[16] “tiredness” and “Poor compliance with medication and diet because of her severe mental health issues”.[17] The doctor noted similar symptoms in a medical certificate dated 9 April 2015, in which he certified that QGZY was unfit for work from that date to 10 July 2015.[18] Dr Vakeeswaran reported that “family issues” were a factor in the relapse of her condition from time to time.
[16] T18 folio 197.
[17] Ibid, folio 198.
[18] T17 folio 193.
On 20 August 2015, Dr Caetano, a consultant psychiatrist, and Dr Mahmood, a registrar at the Blacktown Mt Druitt Hospital, reported –
“When unwell, she presents with paranoid ideas that people are after her, auditory hallucinations, agitation, poor sleep, reduced appetite, decreased concentration, persecutory delusions, hopelessness and anxiety that something bad is going to happen to her.
During her last assessment, although her mental state was generally stable, she expressed some paranoid ideation and perceptual disturbances especially at the time of stress. Her current stressors include financial problems.”[19]
[19] T28 folio 253.
On this evidence, before and after the cancellation day, I think it can be accepted that QGZY had psychiatric impairments on that day.
The parties agree, correctly in my assessment of the evidence, that QGZY’s diabetes mellitus was, in all likelihood, the cause of impairment as of the cancellation day. It appears probable that this condition caused hypoglycaemic symptoms and retinopathy at that time.
Even though QGZY suffered from asthma, gastro-oesophageal reflux disease and (possibly) chronic obstructive pulmonary disease on the cancellation day, the present evidence does not establish the extent to which, if at all, each of these conditions caused impairment.
This notwithstanding, I am satisfied that the first qualification criterion under s 94(1)(a) is satisfied.
Impairment rating
The second essential qualification requirement under s 94(1)(b), requires QGZY’s impairments to be assessed and a rating of 20 or more points assigned under the Impairment Tables set out in Part 3 of the Determination.
Part 2 of the Determination sets out rules that must be followed when assessing impairments. Only an impairment that results from a ‘permanent’ medical condition may be assigned a rating where the impairment is expected to persist for more than 2 years.
A ‘permanent’ medical condition is one that has been fully diagnosed, fully treated and fully stabilised at the particular time: s 6(4). Regard is to be had to the matters set out in s 6(5) when deciding if a medical condition is fully diagnosed and fully treated. The determinants of a medical condition being fully stabilised are set out in ss 6(6) and (7).
I will address QGZY’s impairments in respect of the various medical conditions diagnosed by her treating doctors.
Chronic obstructive pulmonary disease and asthma
Whether or not a diagnosis of chronic obstructive pulmonary disease had been made on or before the cancellation day, the present materials are not sufficient to establish that this condition was fully treated or fully stabilised at that time. I am satisfied that, if this condition existed on the cancellation day, it was not ‘permanent’. Any impairment resulting from this condition cannot, therefore, be assigned a rating under the Impairment Tables.
There is very scant evidence of QGZY’s asthma condition. It appears that QGZY may have suffered from this condition for a long time. Even if it is found to be ‘permanent’ for the purposes of the Determination, as I have said, the parties agree that the present materials do not establish the extent of any resulting impairment.
I think the concessions made by the parties are correct.
While it is possible, even likely, that QGZY suffered from breathing difficulties from time to time as a result of asthma, the nature, extent and functional impact of any such difficulties are not established by the present evidence. Simply put, the present evidence is not sufficient to establish the extent of any impairment QGZY may have suffered on the cancellation day as a result of asthma (or any other respiratory condition).
For this reason, even if the condition is taken to be permanent (which is not presently established), a rating greater than 0 points cannot be assigned.
Gastro-oesophageal reflux disease
Even though it is accepted that QGZY suffered from gastro-oesophageal reflux disease on the cancellation day, the present materials do not establish this condition was fully treated or fully stabilised at that time. For this reason, for present purposes, it is not a ‘permanent’ condition under the Determination. Furthermore, as I have said, the parties agree that the nature, extent and functional impact of any impairment resulting from this condition is not presently established.
No rating can be assigned for impairments resulting from QGZY’s gastro-oesophageal reflux disease.
Diabetes Mellitus
I accept that QGZY was diagnosed with diabetes mellitus many years ago.
On 9 April 2015, Dr Vakeeswaran certified that QGZY’s diabetes was permanent, but the prognosis was uncertain.[20]
[20] T17 folio 193.
On 13 April 2015, Dr Vakeeswaran diagnosed “severe uncontrolled Diabetes”[21] and reported that QGZY “Need to go on insulin treatment. Very reluctant for insulin treatment at this stage”.[22]
[21] T18 folio 199.
[22] Ibid, folio 198.
On 6 November 2015, the doctor certified that QGZY’s diabetes was “stabilised”.[23]
[23] Exhibit A5.
On 11 December 2015, Dr Nguyen reported for Professor Maberly, an endocrinologist, that –
“her Type 2 Diabetes Mellitus is currently complicated by suboptimal overall glycaemic control and diabetic retinopathy disease. She currently is not experiencing hypoglycaemic symptoms with insulin use. To improve her glycaemic control she is now currently managed on four different medications including insulin…”[24]
[24] Exhibit A4.
That being so, I do not accept the submission that QGZY’s diabetes was fully treated and fully stabilised as of the cancellation day.
I am satisfied that this condition was not fully treated or fully stabilised on 22 June 2015. For this reason, it cannot be taken to be ‘permanent’ at that time, and no rating can be assigned under the Determination.
Schizophrenia
It is quite clear, and the parties agree, that QGZY’s schizophrenia condition was fully diagnosed, fully treated, and therefore ‘permanent’ for the purposes of the Determination on the cancellation day. The medical evidence, and the reports of Dr Vakeeswaran and Dr Caetano in particular, is sufficient to establish that impairments resulting from this condition at that time were expected to persist for more than 2 years.
QGZY has obtained psychiatric and other medical treatment for this condition over many years, since 1995. It appears that she obtains psychiatric treatment when her condition manifests into florid psychotic episodes, but otherwise (and for some years) she has managed the condition with regular daily doses of anti-psychotic medication. There is no medical recommendation for any further or different treatment.
On 13 April 2015, Dr Vakeeswaran reported that the current impact of this condition on QGZY’s ability to function was expected to last more than 5 years.[25] On 27 March 2013, two years previously, the doctor reported at that time that he expected the functional impact of the condition was likely to fluctuate but persist for more than 24 months.[26]
[25] T18 folio 198.
[26] T15 folio 186.
On 10 July 2015, Dr Mahmood reported that the functional impact of QGZY’s schizophrenia condition was expected to persist for more than 24 months, but the effect of the condition was uncertain –
“[QGZY’s] mental state depends on various factors including her compliance to treatments, financial condition, support from her 3 children, and management of her Diabetes Mellitus.”[27]
[27] T24 folio 234.
I am satisfied that QGZY’s impairments resulting from her schizophrenia condition were likely to persist for more than 2 years from the cancellation day and, for this reason, they are capable of being rated under the Impairment Tables.
That being so, it is necessary to assess the functional impact of such impairments under relevant Tables. Psychiatric impairments are to be assessed under Table 5.
Table 5 sets out a graded scale, with ratings and related criteria at 0, 5, 10, 20 and 30 point levels.
In his 13 April 2015 report, Dr Vakeeswaran described QGZY’s psychiatric state using words such as ‘severe mental health issues”[28] and “significant mental health issues”.[29] I do not accept the Secretary’s submission that these words are not meant to convey the extent or degree of functional impact of impairments resulting from the condition. Dr Vakeeswaran was not called to give oral evidence so this aspect of his report could not be tested. Nevertheless, the words ‘severe’ and ‘significant’ are adjectives the doctor chose to describe the degree or extent of the ‘mental health issues’ affecting QGZY at the time. It is quite clear that the mental health issues the doctor identified included the symptoms of QGZY’s psychiatric disorder and the effect of this condition on her ability to function.
[28] T18 folios 198 and 201.
[29] Ibid, folio 200.
On 9 April 2015, Dr Vakeeswaran certified QGZY as unfit for work or study. He recorded her symptoms at that time – “hearing voices on and off, very anxious, fidgity [sic], insomnia” - and listed “schizophrenia with severe anxiety” as a factor bearing upon her participation in return to work activities.[30] His use of the word ‘severe’ indicates the level or degree of QGZY’s anxiety symptoms at that time.
[30] T17 folio 193.
On 18 June 2015, a Job Capacity Assessor (a registered psychologist) reported the purported contents of conversations with Dr Vakeeswaran, including –
“Discussion with Dr Vakeeswaran indicated that the client has not experienced ongoing active symptoms of psychosis in over 10 years and all current concerns are generally related to anxiety and family stress, rather than symptoms of the condition. Treating doctor stated that the client is managing the condition well and is generally fine.”[31]
[31] T22 folios 221-222.
As can be seen, there is a substantial difference in Dr Vakeeswaran’s April 2015 report (and certification) of QGZY’s psychiatric symptoms and the Job Capacity Assessor’s account of information the doctor provided in June 2015. The Job Capacity Assessor was not called to give evidence, so this aspect of the evidence could not be tested. On balance, I prefer the doctor’s own report over the second-hand report conveyed by the Job Capacity Assessor. When the doctor’s subsequent evidence is considered, I think it is highly unlikely that QGZY’s symptoms would have remitted between April and November 2015 to the extent reported by the Job Capacity Assessor in June 2015.
On 6 November 2015 and 19 February 2016, Dr Vakeeswaran certified that QGZY was unfit for work or study. He distinguished QGZY’s anxiety as a diagnostic entity, separate from her schizophrenia. The basis on which this was done is not explained by the present evidence. On the question of whether anxiety is a symptom of QGZY’s schizophrenia or a separately diagnosed mental illness, I prefer the evidence of Dr Caetano – Dr Caetano is a psychiatrist who is more qualified than Dr Vakeeswaran to diagnose psychiatric illnesses. I will proceed on the basis that anxiety is a symptom of QGZY’s schizophrenia. Her symptoms in November 2015 and in February 2016 were “ANXIOUS, CRYING, VERY DISTRESSED”. Dr Vakeeswaran listed “SEVERE ANXIETY AND DISTRESS” as factors which may impact on her participation in return to work activities.[32] Once again, the word ‘severe’ is used as a measure of QGZY’s anxiety.
[32] Exhibit 5 and Exhibit 8.
On this evidence it appears that the character of QGZY’s symptoms may have changed somewhat in the period from April 2015 to November 2015 – she became very distressed, but it is not clear whether she continued to hear voices and suffer from insomnia. Nonetheless, it is quite clear that the severe nature of her anxiety persisted.
In a report dated 24 February 2016, Dr Vakeeswaran set out details of his assessment of the functional impacts of QGZY’s schizophrenia condition –
“She is totally dependent on her daughter who lives with her.
She has no significant issues with physical activities but has significant difficulties coping with stress because of her mental health issues.
Her social and recreational activities are very limited.
She has significant difficulties interacting with people other than her family members.
Has very limitted [sic] planning and decision making skills.
…
She needs regular support from family and psychologist…”[33]
[33] Exhibit 3.
Even though this report is several months after the cancellation day, it is important for two reasons. Firstly, Dr Vakeeswaran’s use of phrases such as “totally”, “significant” and ‘very limited” indicate his assessment of the degree or extent of the functional impact of QGZY’s schizophrenia condition on her ability to function. Secondly, as the severity of QGZY’s anxiety appears to have remained relatively constant from April 2015 to February 2016, it may be inferred that the functional effects and impairments the doctor described in February 2016 are similar to those affecting QGZY in April 2015 and on the cancellation day.
QGZY gave evidence that her condition became worse when her DSP was cancelled. To some extent this is supported by the change in symptoms recorded by Dr Vakeeswaran. Nevertheless, QGZY’s oral evidence must be treated with caution. There are serious questions about the extent to which it is reliable and the weight that should be given to her self-assessment of the relative state of her psychiatric condition. Having heard her evidence and observed her during the hearing, I am unable to determine the extent to which the evidence she gave is derived from her memory of events that actually occurred and insight into her condition, or from perceptions that are affected by her mental illness. It is quite clear that, during the hearing, she relied upon her daughter, DA, for assistance to manage her behaviour and paranoid ideation. For these reasons, it is not appropriate to rely upon QGZY’s evidence without corroboration.
DA told me that her mother’s condition has not changed much over a period of years – symptoms of the condition persist but fluctuate in intensity and her mother has required ongoing support. It appears that QGZY lived with another daughter, DB, in Sydney before and after the cancellation day. She has lived with DA in Canberra since January 2016.
QGZY’s reason for moving from Sydney appears to be related to the mental health of DB and the extent to which, if at all, she could care for her mother, as well as QGZY’s financial circumstances, which were strained. The evidence is that QGZY gambled on poker machines at a local worker’s club in Sydney, near where she lived and with which she was familiar, and that she purchased cigarettes from a local tobacconist on most days – QGZY smokes at the rate of one pack per day. No doubt her financial circumstances were exacerbated by cancellation of her DSP.
I understand that QGZY ceased driving in or about December 2015 as a result of incurring fines and after a number of minor motor vehicle accidents over a lengthy period.
The present evidence does not establish that QGZY relapsed into psychosis, or that changes to her living arrangements and the cessation of her driving is attributable to a worsening of QGZY’s psychiatric condition when her DSP was cancelled.
The evidence of Dr Vakeeswaran and DA is that QGZY has poor planning and decision-making capacity and requires regular support of family members. The doctor reported that QGZY “is usually compliant with medications” but she has “Poor compliance with medication and diet because of her severe mental health issues” and requires “Closed monitoring of … her compliance with medications”.[34] I take this to mean that QGZY relies, to some extent, on the support of family members to maintain compliance with medications. DA gave evidence that her mother rarely prepares meals and she requires support with shopping, personal hygiene and social interactions. This account is supported by Dr Vakeeswaran’s 24 February 2016 report and, generally, by the report of Dr Mahmood on 10 July 2015.[35]
[34] T18 folios 197, 198 and 201.
[35] T24 folio 234.
Considering Table 5, I am satisfied that QGZY’s psychiatric impairments are properly assessed as having a severe impact on activities involving her mental health function. As of the cancellation day, she required regular support of family members and health providers to live independently. DA’s evidence is that her mother would not shop, cook, prepare meals or adequately maintain personal hygiene without regular support and assistance from family members – she was not capable of living independently without such support on a continuing basis.
Her capability to travel was confined to places and routes with which she was familiar – to her local tobacconist, supermarket or worker’s club, for example. Whether or not QGZY was reluctant to travel to unfamiliar places on or about the cancellation day is not clearly established – she retained a driver’s licence at that time. But, on DA’s evidence, it is clear enough that even if QGZY was not reluctant, she would experience substantial difficulty finding her way in an unfamiliar environment unless she was accompanied by a support person, and for this reason she would not travel to an unfamiliar destination by herself.
Her interpersonal relationships were fraught and difficult, even with family members. There is some evidence that she would attend music activities with a small group of friends, and she travelled overseas to visit a family member. It is not entirely clear how these activities were organised. I accept DA’s evidence that the music activities were organised by friends and that it was she, DA, who arranged for her mother to travel with the support of another person to visit a family member. I accept DA’s account that her mother’s paranoia and agitation cause her difficulty relating with people. This is supported by the 27 March 2013 report of Dr Vakeeswaran. The doctor reported the following impacts upon QGZY’s ability to function –
“Anxious
Paranoid delusions
Aggitation [sic]
They affect her social and physical functioning.”[36]
[36] T15 folio 186.
Even though this report predates the cancellation day by more than two years, I am satisfied that the impact of QGZY’s psychiatric impairments has not changed significantly for some years. A Job Capacity Assessor was undertaken on 12 June 2008. At that time it was reported that QGZY had been working in part-time employment as a cleaner, but “she is struggling to maintain this employment and her position is in jeopardy due to extended sick leave”.[37] The assessor reported –
“She experiences mood swings, irritability, cognitive distortions, social withdrawal, sleep disruption and difficulties with concentration and memory.”[38]
[37] T14 folio 180.
[38] T14 folio 179.
The weight of the evidence is sufficient to establish that QGZY has very limited social contact and that she does not engage in social activities unless these are organised for her by someone else – she requires assistance and support to engage in social interactions.
There is clear evidence that QGZY has difficulty with cognitive functions, including concentration, planning and decision-making. Her concentration difficulty is not quantified in time, however. I understand that on or about the cancellation day, QGZY did no household chores, those tasks being undertaken by DA, DB or other family members. DA’s evidence is that, without assistance from a family member, commonly her mother could not complete simple household tasks, such as cleaning up or putting rubbish in the bin, because she would lose concentration and forget what she was doing. On this evidence it may be inferred that QGZY had a short concentration span of only a few minutes at that time. I accept DA’s account of her mother’s functional cognitive impairments at or about the cancellation day. I understand that QGZY was residing with DB in Sydney at that time, but DB was not called to give evidence and one must do the best with the evidence at hand. DA visited her mother and sister in Sydney before and after the cancellation day and she is in a position to provide direct evidence about the practical, functional effects of her mother’s psychiatric disorder at that time.
The Secretary argues that QGZY was apparently able to concentrate and follow the hearing over a number of hours and she does not, therefore, meet the descriptors at the 20 point level. This submission lacks merit for two reasons. Firstly, QGZY’s qualification for DSP is to be assessed as of the cancellation day, not the day of the hearing. Secondly, while it may be true that QGZY was present throughout the hearing, it is quite clear to me that her attention wandered and her contributions were consistently, but to varying degrees, infected by paranoid delusion. It appears to me that this diverted her rationality in formulating logical responses to questions put to her during the hearing and, as some of her responses made clear, this affected her understanding of the processes involved.
The evidence of QGZY suffering persistent or residual paranoid delusions or ideation and auditory hallucinations from time to time is quite clear. I accept that this form of disruption to her thinking and behaviour was present on or about the cancellation day. On DA’s evidence and the reports of Dr Vakeeswaran, I am satisfied that thought delusions of this kind significantly and frequently disturbed QGZY’s behaviour and thinking at that time. Furthermore, I accept DA’s evidence that her mother had significant difficulty dealing with complexity, such as filling in forms or following directions or a recipe that she did not already know.
On Dr Vakeeswaran’s 9 April 2013 medical certificate, QGZY was unfit for work or study on the cancellation day, in part at least, because of her psychiatric symptoms. It appears that QGZY’s psychiatric condition prevented her from attending part-time work on a regular basis in 2008. The present evidence does not establish that this impairment or functional effect of mental illness has changed since that time. The medical certificates of Dr Vakeeswaran establish that QGZY has been unfit for work or study for extended periods since that time. On balance, I am satisfied that QGZY was not able to attend work, education or training activities on a regular basis over an extended period on or about the cancellation day, and that her ability to engage in such activities was confined to short periods, if at all.
On balance, considering the descriptors and examples set out in Table 5, I am satisfied that QGZY’s psychiatric impairments have a severe functional impact on activities involving mental health.
I do not accept the Secretary’s submission that QGZY’s psychiatric impairment is properly assessed as having a mild functional impact at the 5 point level. The available evidence is sufficient to establish that the functional impact is greater than mild or moderate.
I should say at this point that the scaling of the various factors set out at the 5, 10, 20 and 30 point levels in Table 5 involves relativity. The examples are just that – they exemplify functional impacts at the particular level, and they should not be treated as definitive rules. Quite clearly, an example at one level might also apply at another. A person might be reluctant to travel alone to unfamiliar environments (at the 5 point level), while also often refusing to travel alone to such environments (at the 10 point level) and only travelling alone in familiar areas (at the 20 point level). In order to properly apply the Table, it is necessary to undertake a qualitative and quantitative assessment of functional impact at relevant levels on the available evidence. For example with the ‘selfcare and independent living’ factor, if there is evidence that the person lives independently but may sometimes neglect self-care, grooming or meals (at the 5 point level), it is necessary to consider whether the person needs some support to live independently and maintain adequate hygiene and nutrition (at the 10 point level), and whether the person needs regular support to live independently (at the 20 point level).
In my assessment, QGZY had extreme difficulty with some but not most of the factors at the 30 point level. She had severe difficulty with most of the factors at the 20 point level. Her difficulty was greater than a moderate difficulty at the 10 point level or a mild difficulty at the 5 point level. That being so, I am satisfied that a rating of 20 points should be assigned under Table 5.
It follows that QGZY satisfied the second qualification requirement for DSP under s 94(1)(b) of the Act.
Continuing inability to work
The Secretary concedes that QGZY has a continuing inability to work. This concession is well made.
QGZY was in receipt of DSP before 11 May 2005. That being so, the definition of ‘work’ in the Act at that time applies. This means that QGZY will have a continuing inability to work if it is established by evidence that her assessable impairments rendered her unable to work 30 or more hours per week, or to undertake training activities that would equip her for work to that extent, within two years of the cancellation day.
The present evidence is that QGZY was certified unfit for any work or study on the cancellation day and for subsequent periods from 6 November 2015 to 5 February 2016 and from 19 February 2016 to 19 May 2016. As can be seen, Dr Vakeeswaran’s medical certification of unfitness is not continuous, although in March 2013 he certified that QGZY’s unfitness for work as a result of her psychiatric illness was “ongoing”.[39]
[39] T16 folio 192.
On 18 June 2015, the Job Capacity Assessor reported that QGZY had a temporary work capacity of 0 to 7 hours per week, pending treatment of her diabetes with insulin. The Assessor reported that QGZY had a baseline work capacity of 8 to 14 hours per week as her “schizophrenia will impact upon her motivation, concentration and tolerance for stress within the workplace”.[40] The Assessor went on to report that QGZY had capacity for work within 2 years with intervention of 15 to 22 hours per week. The interventions were “Psychiatric services/treatment”, “Counselling” and “Alternative medical treatment options”. No explanation is provided for the selection of these interventions and the assumption that, if undertaken, they would lead to an increase in QGZY’s work capacity within two years.
[40] T22 folio 224.
I have not found any evidence to support this conclusion in the present materials. The medical evidence is that psychiatric treatment is required in the event of a psychotic relapse, but I do not see how intervention of that kind in such circumstances would increase QGZY’s ‘baseline’ work capacity – such treatment might be expected to return QGZY to her pre-psychotic state, but this would not increase her baseline work capacity. It is not clear what is meant by ‘counselling’ intervention. The evidence of Dr Vakeeswaran is that QGZY relied on support from her treating psychologist. There is no medical recommendation for any additional psychological counselling or for another form of counselling. The proposition that alternative medical treatment options might increase QGZY’s work capacity within two years is similarly mystifying. It is not clear what alternative medical treatment options the Job Capacity Assessor thought existed in June 2015 that would be expected to improve QGZY’s work capacity to 15 or more hours per week. The evidence before me does not provide a firm basis for drawing any such inference or conclusion. For these reasons, I cannot give the Assessor’s report much weight – there are serious questions about the probative value of the report.
It appears that the Job Capacity Assessor referred QGZY’s case for a further opinion from the Health Professional Advisory Unit of the Secretary’s Department. The resulting report was tendered in evidence. It appears that, while the name of the person who formulated the opinion is not known, the qualifications of the person are recorded to be “RN”.[41] I take this to mean the person was qualified as a registered nurse. In any event, the person reported –
“Based on the information available to me including the additional information provided by the Assessor it appears that this customer has made a gradual recovery in mental health function. Except for past episodes of exacerbations over ten years ago, she does not present with impaired insight or judgement. She is on maintenance low dose medication…
…
Furthermore, there is no evidence of impaired cognitive or vegetative deficits or disturbed behavioural function.
All this combined does not suggest a severe impairment.
She has an impairment that is chronic and long term but she is able to do many things across the domains of table 5…
Based on the medical evidence, referrer’s interview of the customer, and additional information obtained the overall functional impact of her mental health condition is more in keeping with a mild to moderate impairment point rating.”
[41] Exhibit 7, page 1.
The basis on which the assessment is made and the ‘additional information obtained’ is not clear. For present purposes, the probative value of a registered nurse (with the greatest respect to registered nurses) providing an on paper opinion of this kind about a long-established psychiatric illness is rather dubious. Furthermore. it is not clear to me that the tests set out in the Determination and in Table 5, in particular, were properly applied in the formulation of this opinion. For these reasons, the report carries little weight.
On balance, when all of the medical evidence is considered, I think that it is likely that QGZY has not been fit for work or study since March 2013, and conceivably since June 2008. She attempted to work in part-time employment as a cleaner, but the effects of her psychiatric disorder rendered this not sustainable. The present evidence does not establish that this subsequently changed.
Doing the best with the available evidence, I think that it is probable that QGZY was not fit for ‘work’ or employment-related training activities on the cancellation day or subsequently, and she had a continuing inability to work at that time for the purposes of s 94(1)(c) of the Act.
Indefinite portability
As I have found that QGZY meets the DSP qualification requirements and she was qualified for DSP on the cancellation day, the next issue to determine is whether her request for indefinite portability of DSP can be granted.
The parties are in agreement that this aspect of the proceedings should be remitted to the Secretary under s 42D of the AAT Act.
Even though this issue may be determined on the present evidence within the Tribunal, I am mindful that the hearing proceeded without resolution of the jurisdictional point as the parties were not prepared to address that matter at the time. That being so, I think it is appropriate to accede to their agreement that this part of the decision under review should be remitted to the Secretary for reconsideration. The period for reconsideration will be that set out in s 42D(5)(b) of the AAT Act.
Conclusion
I am satisfied that QGZY qualified for DSP on the cancellation day. This means that the decision under review must be set aside.
There remains the issue of QGZY’s eligibility for indefinite portability. As I have said, this aspect of the decision is remitted to the Secretary under s 42D(1) of the AAT Act for further consideration. If it is necessary, the proceedings will resume under s 42D(8) at a convenient time.
Decision
The decision that QGZY was not qualified for DSP on 22 June 2015 is set aside and in place thereof, the Tribunal decides that she was qualified for DSP on that day. The calculation of DSP payments to which she is entitled is remitted to the Secretary.
QGZY’s eligibility for indefinite portability of DSP is remitted to the Secretary under s 42D(1) of the AAT Act for further consideration.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ..........[sgd]..............................................................
Associate
Dated 22 July 2016
Date of hearing 24 June 2016 Date final submissions received 27 June 2016 Applicant In person Solicitors for the Respondent Department of Human Services
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