Renaye O'Donnell and Secretary, Department of Social Services

[2014] AATA 388

[2014] AATA 388

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4875
Re	Renaye O'Donnell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	20 June 2014
Place	Sydney

The Tribunal affirms the decision under review.

........[Sgd]................................................................

Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – requirement to participate in a program of support - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Ms N Bell, Senior Member

20 June 2014

1. Renaye O’Donnell claimed disability support pension in July 2012.

2. Section 94 of the Social Security Act 1991 provides for the following requirements for eligibility to receive disability support pension:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s combined impairment is of 20 points or more under the impairment tables; and

   (c)the person has a continuing inability to work; and

   (d)in a case where not one of the person’s impairments attracts an impairment rating of 20 points, the person has actively participated in a program of support.

3. A Centrelink officer rejected Ms O’Donnell’s claim on the basis that although she met the requirement of 20 points under the impairment tables, she had not participated in a program of support. That decision was affirmed on further internal review by an authorised review officer and was also affirmed on review by the Social Security Appeals Tribunal. Ms O’Donnell has been assessed as having 20 points – 10 for Major Depression, and 10 for Attention Deficit Disorder. The Secretary has adopted this assessment and does not dispute that Ms O’Donnell has 20 points under the impairment tables.

4. However, Ms O’Donnell has not participated in a program of support to the extent required by section 94 of the Social Security Act. The records of her attendance at job service providers from May 2012 do not satisfy the requirement for participation for 18 months in the 36 months prior to the date of claim. Nor does Ms O’Donnell satisfy any of the exemptions from this time requirement that are set out in clause 5 of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011. The only way to avoid this requirement, which it is not in dispute Ms O’Donnell failed to meet, is for at least one of Ms O’Donnell’s impairments to attract, on its own, 20 points under the impairment tables. The question of whether one of Ms O’Donnell’s conditions does attract 20 points is the essential issue in this application.

   Major Depression

5. Ms O’Donnell has been suffering from major depression since 2009. She has been on medication since that time and sees her psychiatrist about once every three months. She used to see a psychologist.

6. Ms O’Donnell told the Tribunal that she starts her day by driving her eight year old son to school, which is only around the corner from where she lives. She prefers to drive and not walk because she has no will to walk and be confronted with any person. She frequently gets anxious when going to shops. She said that after she drops her son off at school, she comes home, shuts the door and does not want to deal with people or the outside world. She said she has to build up her confidence to do basic everyday things and gets anxious about seeing other people. She said she does not really maintain any friendships and the only type of family support she has is from her mother who lives one hour away and who tries to see Ms O’Donnell about once a week or a fortnight.

7. Ms O’Donnell said she spends her days either reading online, which she is able to do for 30 to 60 minutes at a time, or by simply sleeping. She said her focus is poor but she can concentrate on things that are important to her. She is able to go to the shops and buy food, but gets anxious about it. She said she never goes anywhere that is unfamiliar.

8. Ms O’Donnell said she is able to pay her bills online and deal with her landlord. She said she has difficulty keeping the house tidy and organised, preparing more than just basic meals and getting all of the washing done. She described herself as very indecisive. She said that for two or three days per week she just sleeps and has to set an alarm to make sure she wakes in time to collect her son from school.

9. Ms O’Donnell said she takes her son to soccer training twice each week and attends his games and his school sports carnival. She mentioned that she had been addicted to oxycontin and withdrew in 2011.

10. In the Medical Report form dated 30 August 2012, Dr Newnham, Ms O’Donnell’s treating psychiatrist, indicates that Ms O’Donnell has been diagnosed with Major Depression since March 2010. She writes that the clinical features of this condition for Ms O’Donnell include: “low mood, anxiety, poor concentration, poor energy”. In a medical certificate dated 21 February 2012, Dr Newnham states that Ms O’Donnell exhibits symptoms of “anxiety, fatigue, poor concentration, depressed mood”.

11. Ms O’Donnell said that when she sees ‘Emily’ at her job service provider, she talks to Emily about what goes on with her life. Recently, she was offered a program, but Ms O’Donnell said she panicked and could not attend. She said she has a fear of not being able to do it. She said her job service provider has not referred her to any other program. Ms O’Donnell told the Tribunal that no one at her job service provider has spoken to her treating psychiatrist.

12. Ms O’Donnell said that for some time she ran a small business selling Thai artwork at markets, including those at Bondi, Surry Hills, Newcastle, Maitland and Warner’s Bay. She said that her mother and stepfather, now deceased, helped her with framing the artwork and her mother would accompany her to the markets. She said she is hoping her biological father will now help her with framing. She said she last tried to sell at a market about 18 months ago.

13. Mrs Hall, Ms O’Donnell’s mother, spoke to the Tribunal. She said Ms O’Donnell is unable to work because her motivation is low. She said her ability to communicate is nil, she is not focussed and cannot plan on a day-to-day basis, that “she’s not there” at all, that she is “in a black hole”. She said that her daughter phones her 2 or 3 times a day seeking advice on what she needs to get through the day.

14. Mrs Hall confirmed that the last time her daughter did market work was about 18 months ago.

15. Mrs Hall said that Ms O’Donnell keeps her up to date on her meetings with her job service provider and agreed that it could be described as “just a chat”. She said that the job service provider does not really know how to help her.

16. In light of this evidence, I considered Ms O’Donnell’s depression against Table 5. The job capacity assessment of November 2012, by, ‘Bronwyn’, a Registered Nurse, assessed her as having ten points under the table:

10

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.

1. On the basis of Ms O’Donnell’s description of her condition and that of Dr Newnham, most of the above descriptors echo the symptoms and effects she and her doctor described.

2. In order for Ms O’Donnell to meet the ‘severe’ rating under Table 5, she must experience severe difficulties with most of the following:

20

There is a severe functional impact on activities involving mental health function.

(1)       The person has severe difficulties with most of the following:

(a)       self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b)       social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c)       interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)       concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e)       behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f)       work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

1. The above descriptors go beyond the experience described by Ms O’Donnell and Dr Newnham.

2. It follows that I cannot assess Ms O’Donnell’s psychiatric condition as attracting more than 10 points under the table.

   Attention Deficit Disorder

3. In her report of August 2012, Dr Newnham, indicates that Ms O’Donnell has been diagnosed with Attention Deficit Disorder since adolescence. Dr Newnham writes that Ms O’Donnell has had a “long history of poor concentration, memory and organisation”. She writes that her current treatment has resulted in an improvement of her concentration and organisation. The job capacity assessment of November 2012 assessed Ms O’Donnell as having ten points under Table 7:

10

There is a moderate functional impact resulting from a neurological or cognitive condition.

(1)       The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:

(a)       memory;

Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.

(b)       attention and concentration;

Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.

(c)       problem solving;

Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.

(d)       planning;

Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).

(e)       decision making;

Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.

(f)       comprehension;

Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.

(g)       visuo-spatial function;

Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.

(h)       behavioural regulation;

Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).

(j)        self awareness.

          Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.

1. In order for Ms O’Donnell to meet the ‘severe’ rating under Table 7, she must experience severe difficulties with most of the following:

20

There is a severe functional impact resulting from a neurological or cognitive condition.

(1)       The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:

(a)       memory;

Example 1: The person is unable to remember routines, regular tasks and instructions.
Example 2: The person has difficulty recalling events of the past few days.
Example 3: The person gets easily lost in unfamiliar places.

(b)       attention and concentration;

Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes.
Example 2: The person is easily distracted from any task.

(c)       problem solving;

Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice.

(d)       planning;

Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip).

(e)       decision making;

Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.

(f)       comprehension;

Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks.

(g)       visuo-spatial function;

Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects).

(h)       behavioural regulation;

Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.

(j)        self awareness.

          Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.

1. I am mindful that, although Ms O’Donnell suffers difficulties in planning, problem solving and decision making and relies on advice from her mother, she has been able to run a small business, albeit with assistance, shop for food as necessary, take and collect her son to and from school as required and ensure he attends sports practice, see to her financial affairs, and read online for 30 to 60 minutes at a time. This places Ms O’Donnell in the moderate functional impact range.

2. It follows that I cannot assess Ms O’Donnell’s ADD condition as attracting more than 10 points under the table.

3. It follows that Ms O’Donnell remains subject to the requirement to participate in a program of support as provided for in the legislation and the Direction. She has not done so. This means that even though she has been found to have psychiatric impairments and that those impairments attract a total rating of 20 points under the impairment tables, she is not eligible to be paid disability support pension.

   DECISION

4. The Tribunal affirms the decision under review.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

.......[Sgd].................................................................

Associate

Dated 20 June 2014

Date of hearing	2 May 2014
Applicant	In person
Solicitors for the Respondent	Ms K Martini, DHS Program Review Litigation