RAJESHNI MALA CHARAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 970

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 970

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3777

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		RAJESHNI MALA CHARAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Miss E A Shanahan, Member

Date18 December 2009  

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) E A Shanahan

Member

SOCIAL SECURITY – disability support pension claim – anxiety and depression – s 94(1)(b) not satisfied – decision affirmed.

Social Security Act 1991

Social Security (Administration ) Act 1999

REASONS FOR DECISION

18 December 2009   Miss E A Shanahan, Member       

1.      Ms R Charan lodged a claim for disability support pension (DSP) on 31 October 2008 based on a four to five year history of anxiety and depression.  Dr C Tan, her treating general practitioner supported her claim.  He certified that her psychological condition would persist for more than 24 months. On 22 February 2008, a job capacity assessor (JCA) noted the diagnosis of anxiety and depression.  However, the JCA reported that these conditions were considered to be temporary and secondary to personal issues, including three miscarriages.  A JCA completed a further assessment on 19 November 2008.  The JCA found that Ms Charan’s anxiety disorder was permanent.  However, she reported that it had not yet been fully diagnosed, treated and stabilised, as Dr Tan had recommended that Ms Charan be seen and treated by a psychologist or psychiatrist.  Dr Tan had prescribed anti-depressant medication (Efexor) early in 2008 without significant benefit to Ms Charan. 

2.      In January 2009 Ms Charan was referred to a psychiatrist for assessment and treatment.  After the first visit, she elected not to continue as she did not like the psychiatrist.  She is unable to remember the psychiatrist’s name and no report of that visit was available to the Tribunal. 

3.      Ms Charan has not worked for approximately five years.  Her earlier employment was in sales, customer service and administrative duties.  She has completed short courses in modelling and hair dressing and has obtained a gaming licence. 

4.      On 22 May 2009 the original decision was affirmed by an authorised review officer (ARO).  Ms Charan applied to the Social Security Appeals Tribunal (SSAT) for review of the decision.  The SSAT also affirmed the decision.  On 13 August 2009 Ms Charan sought review of the SSAT decision by the Administrative Appeals Tribunal. 

5. Ms Charan had requested that the hearing be conducted by telephone. This was not ideal, as there were problems with voice clarity. Ms Charan was self‑represented and Mr P Carson appeared (by telephone) for the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs. The Tribunal had before it the documents provided in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (T‑Documents). 

ISSUES BEFORE THE TRIBUNAL

6. There is no dispute that Ms Charan has a psychiatric impairment. Therefore, she satisfies s 94(1)(a) of the Social Security Act 1991 (the Act). The issue is whether Ms Charan satisfies s 94(1)(b) and (1)(c) of the Act. Sub-clause 4(1) in Schedule 2 of the Social Security (Administration) Act 1999 requires the Tribunal to assess Ms Charan’s eligibility for DSP within the 13 week period after Ms Charan lodged her claim on 31 October 2008. 

EVIDENCE

7.      Ms Charan gave evidence that her anxiety and depression were ongoing but that she has improved a little.  In the last one to two months she has developed back pain but has not yet sought medical treatment for this symptom.  She continues to take Efexor.  She believed that the psychiatrist she saw in January 2009 had given her the wrong advice and for this reason Ms Charan had not kept any further appointments.  She said that in March 2009, on Dr Tan’s referral, she consulted Dr S Kwong, a psychiatrist.  After five or six sessions with Dr Kwong, Ms Charan determined not to continue treatment as she had not improved.  She stated she did not need psychiatric treatment of any sort.  The Tribunal notes she attended a psychologist once in 2007 or 2008. 

DOCUMENTARY EVIDENCE

8.      Dr Tan has provided two treating doctor’s reports (TDR), (T5 and T9) outlining Ms Charan’s symptoms of poor endurance, inability to concentrate, tiredness, feeling down, anxiety and chest pain when anxious. 

9.      In a report dated 22 April 2009 (T13), Dr Kwong confirmed that Ms Charan suffers from chronic anxiety and a depressive state with anxiety, hypochondria, panic attacks, suicidal ideation and poor memory and concentration.  Dr Kwong considered that Ms Charan was incapable of gainful employment and that her prognosis was poor.

10.     The assessments of the three JCAs (T3, T6 and T11) found that Ms Charan’s psychiatric condition is permanent but not fully treated and stabilised.  The assessment of 30 January 2009 also concluded that Ms Charan had the capacity to work in a low skilled position for 15 to 22 hours per week (T11).

LEGISLATION

11.     Section  94 of the Act sets out the requirements for eligibility for DSP as follows:

(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…

Schedule 1B of the Act contains the Tables for the Assessment of Work‑Related Impairment for Disability Support Pension (the Impairment Tables).  The Impairment Tables are to be used for the purpose of allocating ratings to conditions as required under s 94(1)(b) of the Act.  The Introduction to the Impairment Tables provides that a rating can only be assigned to a condition that has been investigated, treated and stabilised.

The Administration Act subclause 4(1) Schedule 2 states:

4.(1)If:

(a)a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)the person is not, on the day on which the claim is made, qualified for the payment; and

(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)the person becomes so qualified within that period;

The claim is taken to be made on the first day on which the person is qualified for the social security payment.

TRIBUNAL’S DELIBERATIONS

12. Ms Charan suffers from an anxiety disorder and chronic depression and thereby satisfies s 94(1)(a) of the Act. However, In the period under review (13 weeks commencing on 31 October 2008) her psychiatric conditions could not be assessed under the Impairment Tables for the purpose of s 94(1)(b) of the Act because they were not treated or stabilised. Therefore, the decision under review was the correct decision and the Tribunal affirms the decision.

13.     Ms Charan will consider lodging a further claim having failed to improve significantly following five or six months of psychiatric treatment including counselling.  Unfortunately, she has terminated this treatment. 

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan

Signed: .Dianne Eva
  Clerk

Date of Hearing  26 November 2009
Date of Decision  18 December2009
Advocate for the Applicant       Self Represented
Advocate for the Respondent   Mr Pat Carson, Centrelink Legal Services