Re VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 663
•17 September 2013
[2013] AATA 663
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4071
Re
VMXC
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Deputy President RP Handley Date 17 September 2013 Place Sydney The decision under review is affirmed
................[sgd]........................................................
Deputy President RP Handley
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – whether she has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 sch 2, cl 4
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President RP Handley
17 September 2013
The Applicant has applied for a review of a Social Security Appeals Tribunal (SSAT) decision affirming a decision made by a delegate of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent) rejecting her claim for a Disability Support Pension (DSP).
BACKGROUND
The Applicant was born in Turkey, migrating to Australia with her family at the age of five. She is the mother of two adult children. She is currently receiving Newstart Allowance. The Applicant states that she has suffered from mental problems for many years having been abused by her father and, after an arranged marriage, by her husband. She was receiving a DSP prior to travelling to Turkey in 2008, but this was cancelled after she had been overseas for three months. The Applicant said she remained in Turkey for three years, returning to Australia on 19 January 2012. She phoned Centrelink on 20 January 2012 about lodging a new claim for DSP.
On 30 January 2012, the Applicant lodged a DSP claim form accompanied by a Medical Report of the same date completed by her General Practitioner (GP), Dr A Emin. Dr Emin identified two relevant conditions: reactive depression/panic attacks and lower back pain. On 9 February 2012, the Applicant was assessed by a Job Capacity Assessor who prepared a report dated 15 February 2012. The Assessor found that the Applicant’s “depression” was not fully diagnosed, treated and stabilised and that her “spinal disorder”, while fully diagnosed and treated, was not fully stabilised. On 20 February 2012, Centrelink rejected the Applicant’s claim for a DSP.
The Applicant requested a review of the rejection decision and supplied further medical reports:
·A report by Dr S Nagaratnam of a CT scan of her lumbar spine dated 13 February 2012 that concludes there is “degenerative change throughout the lumbar spine”.
·A report dated 10 April 2012 by Dr James van Gelder, Neurosurgeon, which states that the Applicant “has unusually advanced degenerative disc disease at multiple levels in her lumbar spine” and associated back pain that is “best managed using conservative approaches”.
·A report dated 30 April 2012 by a registered psychologist, Bestegul Tungandame, which states that having initially been referred by Dr Emin for treatment in 2006, she was re-referred for counselling and psychological treatment for depression on 21 February 2012. This treatment included providing “Client Centred Supportive counselling with some component of CBT and Solution Focus Therapy”. The psychologist said, in her opinion, the Applicant would not benefit from an employment support program and was not fit for work.
·A Medical Certificate from Dr Emin dated 7 May 2012 which states that the Applicant suffers from “acute reactive depression and anxiety attacks” which are permanent and likely to deteriorate in two years.
On 9 May 2012, a further Job Capacity Assessment was undertaken and a report of the same date prepared. The Assessor took into consideration a report of a Centrelink Spinal Function Assessment performed on the same date. The Assessor found that the Applicant’s spinal disorder was fully diagnosed, treated and stabilised and recommended an impairment rating of 5 under Table 4 – Spinal Function. The Assessor also found that the Applicant’s psychiatric condition was fully diagnosed, treated and stabilised and recommended an impairment rating of 10 under Table 5 – Mental Health Function.
On 5 July 2012, an Authorised Review Officer affirmed the decision to reject the Applicant’s DSP application and, after a further review, on 27 August 2012, the SSAT also affirmed the decision. On 17 September 2012, the Applicant lodged an application for a review of the SSAT decision by the Administrative Appeals Tribunal.
On 28 May 2013, the Applicant lodged a new claim for DSP. A Job Capacity Assessment Report dated 30 May 2013 found both the Applicant’s “reactive depression/panic attacks” and her spinal disorder to be fully diagnosed, treated and stabilised and recommended an impairment rating of 10 points for each condition (under Table 5 – Mental Function, and Table 4 – Spinal Function, respectively). The Applicant’s capacity for work, with intervention, was found to be 8-14 hours per week and this capacity was “not likely to improve given the chronicity of her symptoms”. The Applicant having registered for a program of support on 6 November 2012, a Centrelink officer decided to grant the Applicant a DSP from the new date of claim.
At the commencement of the hearing, the Applicant asked that the hearing be closed and sought confidentiality orders under s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) because of threats of violence she said have been made by a member of her ex-husband’s family. Being satisfied that the Applicant has a genuine fear for her safety, and noting that she suffers from reactive depression and panic attacks, I made orders under s 35(2) of the AAT Act and in this statement of reasons I have anonymised her name and other identifying facts.
RELEVANT LAW AND ISSUES
Section 94 of the Social Security Act 1991 (Cth) (the Act) states relevantly that (notes omitted):
(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;
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person’s locally accessible labour market.
…
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The following definitions are included in s 94(5):
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
The relevant Impairment Tables are those in effect at the time the Applicant made her claim, which are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
The Impairment Tables contain rules for applying the Tables. Paragraph 6 states relevantly:
Assessing functional capacity
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see section 7.
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
(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.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) requires that the Applicant’s qualification for DSP be assessed as at the date she made her claim for DSP or in the 13 week period following the claim. She first contacted Centrelink about lodging a claim for DSP on 20 January 2012. The relevant period, therefore, is 20 January 2012 to 20 April 2012.
The Respondent accepts that the Applicant suffers from a psychiatric condition and lower back pain, thereby satisfying s 94(1)(a) of the Act. At issue is whether during the relevant period her impairments should have been assessed as having an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)) and, if so, whether the Applicant had a continuing inability to work (s 94(1)(c)).
THE APPLICANT’S CASE
The Applicant said her mental problems may be genetic: her grandfather had such problems and her son suffers from schizophrenia. She said that she was physically abused by her father as a child and, as a result, on one occasion required treatment at the Children’s Hospital. She also remembers being pursued by a man in the school grounds at the age of eight and believes that he was trying to kidnap her. Her parents forced her into an arranged marriage at the age of 19 with her father’s sister’s son who also physically abused her. The Applicant separated from her husband in 1996 and is now divorced, but she said that her ex-husband’s brother does not accept this and has threatened her life. She said she is scared for herself and her children and it was for this reason that she went to Turkey in 2008. Her parents were in Turkey and agreed to support her there when her DSP payments ceased after three months. At that time, her son was also there in Turkey and having treatment for schizophrenia and bipolar disorder.
The Applicant said it has taken many years to sort out her mental problems. Her mental condition has never been “good” – she was always scared of being hit or abused and persisted in trying to resist or escape. She has been taking medication since the age of 19 to try and calm her. Before travelling to Turkey in 2008, she was taking Zoloft prescribed by the psychiatrist she was seeing then whose name was Barbara and who is now working overseas. She was also seeing the psychologist, Bestegul Tungandame for counselling. The Applicant said while she was in Turkey, she stayed in contact with Ms Tungandame and has now resumed seeing her once or twice a week depending on how well she feels. She said while she was in Turkey, she was treated by a psychiatrist, Dr Tijan, who also treated her son. She saw Dr Tijan weekly and every month Dr Tijan provided her with a prescription for medication. The Applicant said she is now seeing another psychiatrist, Dr Chaudhary, on a monthly basis at Westmead and he prescribes her medication: Zoloft 150 mg daily and Temaze 10 mg at night to help her sleep. Her first appointment with Dr Chaudhary was in June 2012 because she had to wait some months for an appointment.
The Applicant said that even with the benefit of her medication, she experiences anxiety and panic attacks. She only drives near her home and a friend drove her to the Tribunal to attend the hearing, which took about 30 minutes using the back streets. Generally, she stays at home where she feels safest unless she has to go out. The Applicant said she gets angry if people do not believe her and treat her unfairly, because she always tells the truth and is proud to be an Australian.
The Applicant said she lives with her son and her daughter. Her daughter gets up early and helps the Applicant with her hair, prepares her breakfast and sets out her medication for the day before going to work. The Applicant avoids crowds because she is liable to have a panic attack. Her daughter does the shopping for her and buys her clothes, for example, over the internet having shown her pictures, or if her daughter is out shopping and sees something suitable, she will phone her mother from the shop, describe the clothing for her and ask whether she would like to buy it. The Applicant said she does not cook because she is frightened of leaving the stove on. She also has three good friends who know about her condition and come round and help.
The Applicant said apart from her mental condition, she also suffers from lower back problems and is currently being treated by Dr M Guirgis, orthopaedic surgeon. She first saw Dr Guirgis in January 2013. (In a report by Dr Guirgis to Dr Emin dated 19 February 2013, Dr Guirgis diagnoses:
·Chronic mechanical derangement of the cervical and lumbar areas of the spine caused by discopathic and spondylotic changes.
·Actively symptomatic osteoarthritis of the wrists, knees and small joints of the feet.
·Symptoms and signs of chronic pain/anxiety/depression.
Dr Guirgis recommended that the Applicant “continue with conservative treatment at the present stage”.
The Applicant said she has had gastric sleeve surgery to limit her weight. She cannot bend from the knees down, bend forward or turn her neck. She cannot manage stairs and cannot travel on public transport. Her friend dropped her outside the Tribunal premises because of her difficulty walking. She also cannot sit in one position for long. To shower she has to sit on a stool and she cannot wash her own hair. Going to the toilet is also very awkward. She now has her own specially equipped bathroom. The Applicant said she wears a magnetic belt around her waist and takes Panadeine Forte for pain.
THE RESPONDENT’S CASE
Ms Anniwell, for the Respondent, said the Respondent relies on the impairment assessment made by the Job Capacity Assessor in the Report dated 30 May 2013. As stated above at paragraph 7, the Report found both the Applicant’s “reactive depression/panic attacks” and her spinal disorder to be fully diagnosed, treated and stabilised and recommended an impairment rating of 10 points for each condition (under Table 5 – Mental Function, and Table 4 – Spinal Function, respectively).
Ms Anniwell submitted that neither of the Applicant’s conditions rate an individual assessment of 20 points, and are not, therefore, categorised as “severe” impairments for the purposes of s 94(2)(aa) of the Act. Thus, the Applicant could not have been qualified for the DSP at the date of claim or within 13 weeks thereafter because she had not at that time actively participated in a program of support, having only returned to Australia on 19 January 2012 after an absence of three years. While the Applicant claims that she was not initially aware of the requirement that she participate in a program of support, even if she had been aware and had participated in a program from January 2012 rather than from November 2012, she would not have met the program of support requirement to qualify her for a DSP. The decision to refuse the Applicant’s January 2012 claim for a DSP should, therefore, be affirmed.
DISCUSSION
Mental Condition
With regard to the assessment of the Applicant’s mental condition and the assessment of 10 impairment points made in the Job Capacity Assessment Report dated 30 May 2013 relied on by the Respondent, I note the criteria for an impairment rating of 10 points under Table 5 – Mental Health Function, are as follows:
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
The Applicant’s evidence indicates that her condition has a moderate functional impact: she needs assistance with self-care and independent living, goes out infrequently, has only a small number of friends who are aware of her condition, has difficulty coping with situations involving stress, and would have difficulty coping with training given the depression and anxiety she suffers and her liability to panic attacks. Nevertheless, while a friend drove her to the Tribunal premises for the hearing, the Applicant was apparently able to concentrate and represent herself adequately at the hearing. In my view, the evidence indicates that the assessment of 10 impairment points for her mental condition is appropriate.
Spinal Condition
With regard to the Applicant’s spinal condition and the assessment of 10 impairment points made in the Job Capacity Assessment Report dated 30 May 2013 relied on by the Respondent, I note the criteria for an impairment rating of 10 points under Table 4 – Spinal Function, are as follows:
There is a moderate functional impact on activities involving spinal function.
(1)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
The Applicant’s evidence indicates that her condition has a moderate functional impact on activities involving spinal function. She told me that she had travelled to the Tribunal’s premises by car, involving a trip of about 30 minutes. During the hearing, she was able to sit for approximately one and a half hours. She said that she is unable to turn her neck, or to raise her hands and arms above her head to wash her hair, and has difficulty bending. In my view, the evidence indicates that the assessment of 10 impairment points for her spinal condition made by the Job Capacity Assessor in the Report dated 30 May 2013 is appropriate.
Conclusion
A person does not have a “severe” impairment as defined in s 94(3B) of the Act, quoted above, unless the person has an assessment of 20 points or more under a single Impairment Table. In order to qualify for a DSP where this is not the case, a person must satisfy s 94(2)(aa) requiring that the person has actively participated in a “program of support” within the meaning of s 94(3C). Such a program is designed to assist persons to prepare for, find or maintain work. Subsections 5(1) and (2) of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Participation Determination) state that to satisfy the requirement to actively participate in a program of support a person needs to have complied with the requirements of and participated in a program of support for a period of at least 18 months during the 36 months ending immediately before the date of claim. In circumstances where a person has not participated in a program of support for at least 18 months, they may be taken to have satisfied the requirement to actively participate in a program of support if, notwithstanding their compliance with the requirements of the program, they have been unable or prevented, “solely because of his or her impairment”, from improving his or her capacity to find, gain or remain in employment through continued participation in the program of support (subsection 5(4) and 5(5)).
In the Applicant’s case, I am satisfied that the assessment of 10 impairment points for each of her mental condition and spinal condition is appropriate. Her impairment is not therefore considered “severe” within the meaning of s 94(3B) of the Act. The Applicant’s claim is treated as having been made at the time she first enquired about reapplying for a DSP on 20 January 2012. Immediately before her claim, she had been overseas for approximately three years and, thus, could not meet the requirement imposed by s 94(2)(aa) that she had actively participated in a program of support.
The Applicant was not therefore qualified for a DSP on 20 January 2012 and in the ensuing 13 weeks, and the decision under review must be affirmed.
DECISION
The decision under review is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley. ...........[sgd].............................................................
Associate
Dated 17 September 2013
Date of hearing 6 September 2013 Applicant In person Advocate for the Respondent Ms B Anniwell, solicitor Solicitors for the Respondent Department of Human Services, Legal Services Division
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Support Pension
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Impairment Rating
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Continuing Inability to Work
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Medical Reports
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