Re Fanning and Secretary, Department of Social Services
[2014] AATA 447
•4 July 2014
[2014] AATA 447
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4408
Re
Wendy Fanning
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 4 July 2014 Place Sydney The decision under review is affirmed.
...............................[sgd].........................................
Deputy President RP Handley
Catchwords
SOCIAL SECURITY – disability support pension – whether condition is permanent – whether condition fully treated and stabilised during the relevant period
PRACTICE AND PROCEDURE – medical evidence from outside the relevant period that the condition was intractable – whether Tribunal can consider evidence outside the relevant period in determining the correct and preferable decision
Legislation
Social Security Act1991 (Cth) ss 42, 94
Social Security (Administration) Act 1999 (Cth) s 13, cl 4 Sch 2Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Hood v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 555
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Watson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 361Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President RP Handley
4 July 2014
Ms Fanning has applied to the Tribunal for the review of a decision of the Social Security Appeals Tribunal (SSAT) to affirm a decision of Centrelink to refuse her claim for the disability support pension (DSP).
BACKGROUND
Ms Fanning was born in 1958 and is aged 56. She lives with her daughter, her marriage having broken down in July 2012. She suffers from depression and anxiety.
Ms Fanning lodged a claim for the DSP on 11 July 2012, having first contacted Centrelink about this on 6 July 2012. In the Treating Doctor’s Report accompanying her claim, dated 9 July 2012, her General Practitioner (GP), Dr Richard Kwong diagnosed her as suffering from depression and anxiety attacks, with a date of onset and diagnosis of January 2012. He noted that she was being treated with medication and counselling. He stated her prognosis at that time was uncertain. He also diagnosed hypertension for which Ms Fanning was taking medication, with significant improvement expected. Dr Kwong made no mention of other conditions such as Non-Insulin Dependent Diabetes or Arthritis referred to by Dr Williams in a later report dated 5 February 2014 referred to below.
Dr Kwong referred Ms Fanning to a psychiatrist, Dr Warwick Williams, who first saw her on 8 August 2012. In his report to Dr Kwong dated 12 August 2012, Dr Williams referred to her being chronically depressed and suffering panic attacks, and said that she met the diagnostic criteria for generalised anxiety disorder. Dr Williams noted that apart from antidepressant medication prescribed by Dr Kwong, Ms Fanning had had no other treatment. He suggested changes to her medication and said that he would set up an appropriate cognitive behaviour therapy (CBT) program for her.
On 30 August 2012, Centrelink decided to reject her claim for DSP on the ground that her conditions had not been fully diagnosed, treated and stabilised. Ms Fanning asked for a review of this decision. On 10 June 2013, an Authorised Review Officer (ARO) affirmed the decision. She said that as Ms Fanning had not had any specialist treatment at the time of claiming the DSP, her condition could not be accepted as being fully treated and stabilised.
Ms Fanning applied for a review of this decision by the SSAT. Dr Williams prepared a report for Centrelink dated 26 June 2013. He stated that, at the time he first saw Ms Fanning, she “easily met the diagnostic criteria for generalised anxiety disorder”. He said he treated her by “massively increasing the dose of her antidepressant medication” and making some other changes to her medication. Ms Fanning “also applied herself diligently to a range of self-help techniques”. There was some initial improvement in her condition but this did not last long. Dr Williams said that at the time of writing his report, despite “the huge amount of treatment effort”, she was still substantially depressed and met the diagnostic criteria for major depression which he considered to be “her final state” and that there was not likely to be any improvement in her persistent anxiety symptoms. He said while the intensity of her symptoms will fluctuate from time to time, “she will need ongoing psychiatric supervision and long term psychiatric medication”.
On 21 August 2013, the SSAT decided to affirm the ARO’s decision. While finding that Ms Fanning’s depression and anxiety were long term conditions, the Tribunal was not satisfied that these conditions had been fully treated and stabilised at the time of her claim for the DSP. She had not commenced treatment with Dr Williams at that time and had not had any other specialist treatment or assessment.
On 3 September 2013, Ms Fanning applied to the Administrative Appeals Tribunal for a review of the SSAT decision.
On 27 November 2013, Ms Fanning lodged a new claim for the DSP. A Job Capacity Assessment Report dated 27 May 2014 found that Ms Fanning’s depression was fully diagnosed, treated and stabilised and accorded 20 impairment points to this condition. Ms Fanning was granted the DSP backdated to 27 November 2013. The following decision relates to her earlier claim for the DSP.
LEGISLATION AND ISSUES
For her application to succeed, Ms Fanning must qualify for the DSP on the date of her claim, being 6 July 2012, or within 13 weeks, that is by 5 October 2012: s 42 and clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act). I will refer to this period as ‘the relevant period’. Section 13 of the Administration Act provides for the date of claim to be the date on which the person first contacted Centrelink about making a claim, provided the claim form is lodged within 14 days of that contact.
Pursuant to s 94(1) of the Social Security Act1991 (the Act), to qualify for the DSP during the relevant period, a person:
(a)must have a physical, intellectual or psychiatric impairment, or impairments,
(b)which are rated at 20 or more points according to the Impairment Tables, and
(c)must have a continuing inability to work as defined in the Act.
The Respondent accepts that Ms Fanning suffers from depression, anxiety and hypertension, thereby satisfying s 94(1)(a) of the Act. The first question for the Tribunal, therefore, is whether these conditions rate 20 or more points according to the Impairment Tables during the period 6 July 2012 to 5 October 2012. If not, her application cannot succeed.
The Impairment Tables
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the 2011 Determination).
The following subparagraphs of clause 6 are relevant in relation to the assessment of impairment ratings:
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
6(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7)..
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
The Respondent accepts that Ms Fanning’s conditions were fully diagnosed within the relevant period. Dr Williams confirmed that Ms Fanning suffered from depression and anxiety in his report dated 14 August 2012. The question for the Tribunal is whether her depression and anxiety were fully treated and stabilised within the relevant period.
EVIDENCE ABOUT MS FANNING’S MEDICAL CONDITIONS
The Tribunal has been provided with a number of more recent reports about Ms Fanning’s mental health condition. Dr Williams completed a Treating Doctor’s Report on 5 December 2013 in which he diagnosed ‘Treatment Resistant Chronic Major Depression’ and ‘Generalised Anxiety Disorder’ with a date of onset of about 2008. He also diagnosed Ms Fanning with ‘Panic Disorder’, reporting that Ms Fanning experienced “currently about 10 attacks per week”. Dr Williams has provided further reports for Centrelink dated 10 December 2013 and 21 January 2014.
Like Dr Williams’ earlier reports, the report dated 10 December 2013 details the treatment provided to Ms Fanning and states that while, with treatment, her condition initially showed some improvement, the improvement did not last long and it became clear that her psychiatric conditions are intractable. The report dated 21 January 2014 states that when he saw Ms Fanning on that day, “she was in a terrible state” following alleged derogatory treatment by a worker from ‘Macarthur Disability Services’. Dr Williams said he had to “greatly increase the dose of Ms Fanning’s medications, as I am very concerned about her deteriorating mental state”.
Dr Williams also provided a report for the Tribunal dated 5 February 2014 confirming Ms Fanning’s psychiatric conditions, and noting that she also suffers from constant arthritic pain affecting her right shoulder and right knee for which she takes a strong pain killer, Endone.
The Tribunal has also been provided with a report from a psychologist, Barbara Kirby dated 7 November 2013. Ms Kirby said she saw Ms Fanning for an initial assessment on 14 October 2013. She stated: “My impression is that Ms Fanning is experiencing a Mixed Episode of Anxiety and Depression.” Ms Fanning was attending weekly for therapy including:
Cognitive Behaviour Therapy to challenge negative rumination and inactivity cycles, sleep routines, pacing and balancing activities, and gradual exposure therapy including tasks such as leaving the house for a short duration, attending a local shop briefly, going for a walk outside.
The Respondent has provided the Tribunal with a Job Capacity Assessment Summary dated 8 January 2014 reviewing Ms Fanning’s assessment during the relevant period. The JCA states that on the basis of the available medical information no impairment rating could be assigned at that time and noted that Ms Fanning had not been connected with a Program of Support for 18 months or more over the previous three years. However, as noted above, a Job Capacity Assessment Report dated 27 May 2014, prepared for Ms Fanning’s claim lodged on 27 November 2013, found her depression to be fully diagnosed, treated and stabilised and accorded this condition 20 points under Table 5.
MS FANNING’S CASE
Mr Mack, representing Ms Fanning, referred to Dr Williams’ report dated 10 December 2013 in which he said:
During the relevant period, it was my initial impression that she would improve, but this turned out to be an error. She has been consistently impaired since this time. There is no likelihood of any further improvement because of her lack of response to a huge treatment effort.
…
During the relevant period, I was still experimenting with different medication approaches, in the hope that these might improve her level of functioning, but as I mentioned above, this turned out to be incorrect.
Mr Mack said Ms Fanning’s mental health condition proved to be intractable during the relevant period. With the benefit of that additional evidence, it is now open to the Tribunal to determine that her condition was fully treated and stabilised during the relevant period. Mr Mack referred to the Tribunal decision in Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 (Easterbrook) in support of his contention. In that case, the Tribunal relied on the evidence of a Consultant Rheumatologist (a fourth report dated about four weeks after the end of the relevant period) who, it appears, had been treating the applicant for at least 11 months before the relevant period, and who had trialled both medication and other treatment without achieving any significant change. Relying on this evidence, the Tribunal found that the applicant’s condition was fully diagnosed, treated and stabilised during the relevant period and could be regarded as permanent.
Mr Mack also referred to the decision in Hood v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 555, where, at 13, in the context of further evidence post-dating the SSAT decision in a DSP matter, Ryan J, noting the High Court decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, said the Tribunal acted correctly in approaching the matter afresh.
Mr Mack also submitted that Ms Fanning should not be disadvantaged by the error made by her treating specialist. He referred to the Full Federal Court decision in Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130, where the Court, at [30], referring to the decision of Gyles J at first instance, noted:
30 His Honour found it troubling that an applicant with a long standing diagnosed condition being treated in a conventional fashion was rejected for benefit simply on the basis that further examination by another medical practitioner might suggest some other diagnosis or some other treatment. An applicant for benefit should present with a properly prepared application supported by a treating doctor. His Honour observed that it did not follow that an applicant must foresee potential difficulties and obtain specialist advice and treatment before making a claim. The decision maker was entitled to make its own investigation of the claim and to form a view adverse to the claimant based on that investigation. But that was a very different thing from the decision maker rejecting a claim because of speculation that a hypothetical third party might come to an adverse opinion. His Honour said (at [18]):
That is an unsatisfactory situation bearing in mind the capacity of, and the resources available to, applicants for this kind of benefit. In my opinion, such speculation could not be a proper basis for a decision to reject this applicant’s claim based upon chronic pain. The same can be said of the claim based upon depression. If further investigations were required, it was up to the Department to organise them.
He went on to observe that the AAT stood in the shoes of the Department and was in precisely the same situation as the decision maker. It could have arranged investigation of the claim under the provisions of s 33 of the AAT Act. This having been said, his Honour did not go so far as to say that the AAT was obliged in this case to carry out an investigation but rather that, absent investigations, it should have made a decision on the material before it without taking account of hypothetical third party investigations.
Mr Mack noted that in the Treating Doctor’s Report dated 9 July 2012, Dr Kwong stated that the date of onset and diagnosis for Ms Fanning’s depression and anxiety was January 2012 and that Ms Fanning had been treated in his practice for a number of years. He had treated her depression and anxiety with three different medications. Mr Mack referred to the decision in Watson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 361 in which the Tribunal preferred the opinion of a GP with “extensive training and experience in mental health” (at [37]) to that of a registered psychologist who prepared the JCA Report.
THE RESPONDENT’S CASE
The Respondent submits that Ms Fanning does not satisfy s 94(1)(b) of the Act because her impairments fail to attract an impairment rating of 20 points or more in respect of the relevant period. In particular, her anxiety and depression were not fully treated and stabilised during the relevant period and, therefore, cannot be allocated an impairment rating. With regard to her hypertension, Dr Kwong indicated that this was well-managed and caused minimal or limited impact on her ability to function and, moreover, significant improvement was expected. The Respondent submits that her hypertension was not fully stabilised during the relevant period or, in the alternative, warrants a rating of nil impairment points under Table 1 of the Impairment Tables.
Mr Davidson, for the Respondent contended that the focus should be on the factual circumstances existing during the relevant period so that the decision was referrable to a “snapshot” on Ms Fanning’s circumstances at that time. Of relevance is whether there was any further reasonable treatment to take place. Dr Williams planned and had commenced further treatment. The fact that the treatment subsequently proved to be ineffective, does not mean that Dr Williams was in error.
DISCUSSION
The principal issue for the Tribunal is whether Ms Fanning’s anxiety and depression should be accorded an impairment rating as at the relevant period from 6 July 2012 to 5 October 2012. This turns on whether these conditions were fully treated and stabilised at that time.
Central to this question is the issue of how the Tribunal should approach the more recent reports of Dr Williams, particularly that dated 10 December 2013, noting that this was some 14 months after the relevant period. The Tribunal’s role, standing in the shoes of the original decision-maker, is to consider a matter afresh. This would generally allow the Tribunal to consider evidence not before the original decision maker. As stated by Kirby J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, at [43]:
… the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision, the fact that the review contemplated by s 43 of the AAT Act is one addressed to a "decision", inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review.
Furthermore, Hayne and Heydon JJ stated at [99] that:
Unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision‑maker to act; there is nothing in the AAT Act which would provide such a limitation.
In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, the Tribunal stated at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
As noted above, this does not mean that a later opinion is irrelevant. For example, it could be open for an expert to come to a conclusion after the relevant period, based on the symptoms and success of treatment during the relevant period, that a condition was intractable at that time. That is not the situation in Ms Fanning’s case. Although her GP, Dr Kwong, referred her to Dr Williams in about early July 2012, Ms Fanning could not get an appointment until 8 August 2012. While Dr Kwong’s Treating Doctor’s Report, dated 12 July 2012, notes that Ms Fanning had previously been treated with medication and counselling, there had been no specialist treatment before that of Dr Williams. Dr Williams did not know that Ms Fanning’s condition was intractable until after he had tried relevant treatment with her and that treatment had proved to be ineffective. That did not occur until well after the relevant period. The case is distinguishable from Easterbrook, where the applicant had undergone treatment with a specialist up to 15 months prior to making a claim for DSP.
While Dr Williams stated in his report dated 10 December 2013 that he was “in error”, in my view this does not accurately reflect what happened. During the relevant period he “was still experimenting with different medication approaches, in the hope that these might improve her level of functioning”. At the time, it could not be concluded that further treatment would not likely result in significant functional improvement over the following 2 years. As stated by Dr Williams, his “initial impression was that she would improve”. For these reasons, Ms Fanning’s mental health condition was not fully treated and stabilised during the relevant period. Her condition cannot, therefore, be allocated an impairment rating under the Impairment Tables because the condition is not regarded as ‘permanent’ for the purposes of the 2011 Determination.
I note that Ms Fanning has made allegations of mistreatment by Centrelink staff and staff of Macarthur Disability Services. She claims that this mistreatment was on the grounds of her Aboriginality. Any such mistreatment is abhorrent.
Conclusion
As Ms Fanning’s anxiety and depression was not fully treated and stabilised during the relevant period, it cannot be accorded an impairment rating under the Impairment Tables. Her claim for the DSP cannot therefore succeed because she did not satisfy s 94(1)(b) of the Act at that time.
Having so decided, it is not necessary for me to consider whether she also had a continuing inability to work.
I note that Ms Fanning has been granted the DSP with effect from 27 November 2013.
DECISION
The decision under review is affirmed.
I certify that the preceding 41 ( forty-one) paragraphs are a true copy of the reasons for the decision of Deputy President RP Handley. ........................[sgd]................................................
Associate
Dated 4 July 2014
Date(s) of hearing 30 June 2014 Counsel for the Applicant J Mack Solicitors for the Applicant S Leary; Haille Paine Solicitors Advocate for the Respondent S Davidson; Department of Human Services
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