SAAO; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 445

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 445

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600372

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And SAAO

Respondent

DECISION

Tribunal Senior Member R W Dunne
Dr E T Eriksen (Member)

Date29 May 2008

PlaceAdelaide

Decision The Tribunal sets aside the decision under review and substitutes a decision that the respondent was not eligible for Disability Support Pension at the time of its cancellation on 9 May 2006. 

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – entitlement to Disability Support Pension – impairment rating of 20 points or more under the Impairment Tables – “continuing inability to work” – decision set aside.

Social Security Act 1991 ss 94(1), (2), (3), (5), Schedule 1B

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Secretary, Department of Social Security v Pusnjak (1999) 29 AAR 561
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500

REASONS FOR DECISION

29 May 2008   Senior Member R W Dunne
  Dr E Eriksen (Member)         

1.      In this matter, SAAO (“respondent”) had been receiving a Disability Support Pension (“DSP”) since 30 November 2000.  Following a medical assessment, a delegate of the applicant (“Centrelink”) decided to cancel the DSP, with effect from 20 June 2006, and this decision was affirmed by an Authorised Review Officer (“ARO”).  The respondent sought to have the ARO’s decision reviewed by the Social Security Appeals Tribunal (“SSAT”).  The SSAT decided to set aside the decision under review and substituted its decision that the respondent was still entitled to receive DSP and that her pension be re-instated from the date of cancellation.  The applicant has applied to this Tribunal for a review of the decision of the SSAT.

2. At the hearing, Ms Martine Welfare (from Centrelink Legal Services Branch) appeared for the applicant and Ms Margaret Riley from Welfare Rights Centre (SA) Inc. appeared for the respondent. The respondent gave evidence, along with oral evidence by telephone given by Dr T Kennare, retired Medical Practitioner. Oral evidence was given for the applicant by Dr G George, Consultant Psychiatrist and Ms D Kirwan, Rehabilitation Consultant. The T documents and supplementary T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) were admitted into evidence as Exhibit A1 and Exhibit A2, respectively. In addition, the following documents were admitted:

·report of Dr G George dated 13 February 2007 (Exhibit A3);

·report of Dr G George dated 15 April 2007 (Exhibit A4);

·Job Capacity Assessment Report of Ms D Kirwan dated 23 May 2007 (Exhibit A5);

·report of Dr T Kartuf dated 19 April 2007 (Exhibit A6);

·report of Ms D Kirwan dated 3 July 2007 (Exhibit A7); and

·report of Dr T Kartuf dated 27 September 2007 (Exhibit R1).

3. Upon the request of Ms Riley prior to the hearing, the Tribunal made an appropriate order under s 35(2) of the AAT Act restricting the publication of evidence given before the Tribunal and of matters contained in documents lodged with the Tribunal, and that the hearing take place in private.

4.      The Tribunal noted that, in a Work Capacity Assessment Report dated 2 May 2006 (Exhibit A1, T5 at page 36), a Rehabilitation Consultant had recommended a 20 point impairment rating (under Table 6 of the Impairment Tables) with respect to the respondent’s depression/anxiety.  This impairment rating was affirmed by the ARO (Exhibit A1, T10 at page 54).  A similar finding, with respect to the respondent’s impairment rating, was found by the SSAT in paragraph 9 of its decision (Exhibit A1, T2).  When questioned by the Tribunal, Ms Welfare stated that the applicant did not accept that the respondent should be assigned an impairment rating of 20 points for her depression under Table 6 of the Impairment Tables.

issues for the tribunal

5. The issues for the Tribunal, in considering s 94 of the Social Security Act 1991 (“Act”), are:

·whether the respondent had a physical, intellectual or psychiatric impairment;

·whether the impairment attracted an impairment rating of at least 20 points under the Impairment Tables contained in Schedule 1B of the Act; and

·whether the respondent had a “continuing inability to work” within the meaning of s 94(1)(c) and s 94(2) of the Act.

legislation

6. Entitlement to DSP is to be found within the provisions of s 94 of the Act, which is reproduced relevantly as follows:

“94       Qualification for disability support pension

(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;

(ii)  the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)       the person has turned 16; and

(e)       the person either:

(i)  is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)  has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)  is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)        is not an Australian resident; and

(B)       is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

Note 1:       For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2:       for Impairment Tables see section 23(1) and Schedule 1B.

(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)  the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)       either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on‑the‑job training during the next 2 years; or

(ii)  if the impairment does not prevent the person from undertaking educational or vocational training or on‑the‑job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

Note:          For work see subsection (5).

(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 educational or vocational training or on‑the‑job training; or

(b) if subsection (4) does not apply to the person—the availability to the person of work in the person’s locally accessible labour market.

…

(5)       In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

on‑the‑job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

work means work:

(a)  that is for at least 30 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.

…”

7. The Impairment Tables referred to in s 94 are to be found in Schedule 1B of the Act. The Introduction to the Tables relevantly includes the following:

“4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6.  In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

·what treatment or rehabilitation has occurred;

·whether treatment is still continuing or is planned in the near future;

·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

…”

8.      The Table for psychiatric impairment (Table 6) includes the following pre-amble:

“It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders.  …  The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness.  Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature.  Table 6 is used for permanent psychiatric disorders only.  If there is insufficient clinical information available, a current or recent specialist report should be obtained.”

background and evidence of respondent

9.      The respondent is 36 years of age.  She was married in December 2004 and has a baby girl, who was born in November 2007.  When her DSP was cancelled in May 2006, she was interviewed by a Rehabilitation Consultant.  The interview took only 10 minutes and the Consultant took few notes and asked the respondent few questions relating to her work or the state of her health.  When her DSP was first granted in November 2000, she was unable to work, was depressed and slept a lot of the time.  In addition to her depression, which began in about 1994 when she had glandular fever, she started suffering from trichotillomania in 1996 when she was taken off the anti-depressant, Zoloft.  She had been working up until 1994 when she became ill, but was unable to return to work when her trichotillomania started.  When she did work again, she became embarrassed and uncomfortable because she felt people were looking at her all the time.  She chose to cover her head, but still found it difficult in the work environment, where she tended to keep to herself.  She also suffered from other symptoms at the time.  She continued to be depressed, was tired all the time, did not want to socialise and tended to stay at home and keep to herself.  She became irritable because she could not cope.  She did not want to go to work and had problems with irritable bowel syndrome.  She had difficulty with one of her work colleagues, who was her superior and criticised her work all the time.  This put extra pressure on her because she was concerned that her work was being watched “extra closely”. She was consulting with Dr Kennare at the time and was seeing him at least monthly, sometimes more often. 

10.     The respondent was working when her DSP was cancelled, but her health had not substantially changed.  She had undergone cognitive behaviour therapy for her depression and also had treatment for trichotillomania.  Her prescribed medication had also changed from Zoloft to Cipramil.  She was employed as an administrative assistant at a local university and had been in that role since April 2005.  She had previously been working casually for about 15 hours a week in the enrolments area of the university and had applied for and been offered her current permanent position. The position involved working 29.4 hours a week or 7.21 hours a day, four days a week.  A five day week had not been offered, but she would not have taken it because it would have involved too much work for her.  In fact, she had been trying to get a job with less hours, but a permanent position had not become available.  She said working the hours she did was taking a toll on her health.  When asked why she had been unable to work 30 hours a week, she said she had discussed it with her doctor and, with her medical conditions, believed that 29.4 hours was too much to begin with and she would not be able to increase those hours in the long term.  She had worked 29.4 hours a week because she could see an end to that period, at which time she knew she would be able to reduce her hours.  That made working the 29.4 hours a week easier to bear. 

11.     When asked by Ms Riley about her health at the time her DSP was granted, the respondent said she was also suffering with eye problems and visual migraines.  She said she still suffered from these conditions and they had worsened in the past two years.  Her migraines used to last for five minutes, but now they were lasting for 45 minutes at a time.  She said she found the situation difficult because she had to pretend that she was working on her computer, when she could see nothing at all.  When questioned by the Tribunal, she said she took no medication for her migraines and had been told that there was nothing that could be prescribed for her.  She said she was in arrears with her sick leave and tried to take annual leave regularly to break up her work commitments.  She had not taken sick leave with her pregnancy, but had been allowed to take eight days anti-natal leave as sick leave when she was suffering from depression.  She said she was presently on paid maternity leave, which would last for 18 weeks and at the end she would be taking more annual leave in advance.  When her leave ran out, she would go back to work at reduced hours.  She would receive full pay until July, after which she could reduce her work time to 17 hours a week.  She said the opportunity for reduced hours had not been available to her previously, but could only be negotiated with her employer once she had a family. 

12.     The respondent said she had tried to study to better herself, but found that she had very low concentration and would suffer from anxiety attacks in examinations when she was surrounded by a lot of people.  She had not studied since 2005 because she was unable to do that and work at the same time.  She started going to the Anxiety Disorders Clinic at the medical centre near her place of employment and went there every two to three weeks.  She was taught several coping mechanisms, particularly to address her trichotillomania and panic attacks.  She had been at the Clinic for a few years and had been in contact, on and off, with the main therapist there, who was a nurse.  She said she consulted with Dr Neil Gehan for a couple of years, starting in December 2002.  She did not find him to be particularly helpful because, unlike Dr Kennare, he did not give her much feedback regarding her medical conditions.  She said Dr Kennare had been trying to refer her to a psychiatrist at the medical centre and they had kept referring her back to the Clinic for treatment for her anxiety.  She said she had consulted psychiatrists over more than 10 years, but stopped when she started studying at university in about 2003.  She said the medication she was currently taking was Domperidone.  She had been taken off her antidepressants when she was pregnant, and when this happened she said she became suicidal.  The only reason she survived was because she was pregnant and carrying a baby.  She still suffered from trichotillomania, even when she was on medication.  At the moment and with her husband working, she would have weekly visits from Child and Youth Health and would be in contact with the Anxiety Disorders Clinic nurse regularly. 

13.     Ms Riley asked the respondent about her meeting with Dr George.  She said she thought it did not go well.  She said he put words into her mouth and would not let her speak of her own free will.  Because she could not remember times when she saw psychiatrists, he was putting a lot of pressure on her.  She said that, when Dr Kennare retired, she started seeing Dr Kartuf in early 2007, but was trying to find a different doctor who practised in mental health.  Dr Kartuf did not like counselling and was not able to offer her a lot of support.  When questioned further by the Tribunal, the respondent said that, whilst receiving DSP, she felt her health had been much the same.  She did not feel suicidal as often, but because she worked her migraines had worsened and so had her problems with irritable bowel.  In cross-examination, the respondent said that she was not under the care of a regular general practitioner at the moment.  Dr Kartuf had referred her to a consultant psychiatrist, who she had seen several times.  Her last appointment had been the day before she had her baby, but she was unable to make the appointment.  She said she had asked Dr Kartuf to refer her to the psychiatrist because of her depression.  When questioned further by Ms Welfare, she said that, even though she had seen several psychiatrists, she had not been under the constant care of any one psychiatrist for any length of time.  Dr Kennare had been her main care provider.  In re-examination by Ms Riley, the respondent said that, although she had seen several different psychiatrists during the period, she had found consulting with Dr Kennare to be more beneficial.  The last psychiatrist she had seen was Dr Lucas.  She had not discussed her medication with him because Dr Kennare was usually the one who prescribed the medication for her.

medical evidence

Reports of Dr T Heint

14.     The reports of Dr Heint are dated 22 September 2000 (Exhibit A2, T3 at page 24) and 1 December 2000 (Exhibit A2, T4 at page 25).  In both reports, Dr Heint refers to the respondent’s “long-standing” depression and trichotillomania.  The trichotillomania had responded to treatment and was fairly well controlled. 

Report of Dr M Lewis

15.     The T documents contain psychological assessments relating to the respondent as far back as 10 August 1999.  However, the most relevant assessment is that of Dr M Lewis, Consultant Occupational Physician, dated 22 November 2000 (Exhibit A2, T5 pages 26-28).  It was based on this assessment that the respondent was granted DSP from 30 November 2000.  In his assessment, Dr Lewis found the respondent suffered from a major depressive illness, which was well controlled and appeared to be improving with psychiatric treatment.  He gave the illness an ongoing temporary status.  He found that the respondent suffered from irritable bowel syndrome, which was adequately controlled.  However, he found she also suffered from a number of medical conditions and, from the Impairment Tables, he assigned to them the impairment ratings set out below:

·asthma – impairment rating of 15 points under Table 2;

·visual migraine – impairment rating of 10 points under Table 20;

·diplopia – impairment rating of 10 points under Table 14.

Reports and Evidence (taken by telephone) of Dr T Kennare

16.     In examination by Ms Riley, Dr Kennare said he had no more expertise in mental health than any other general practitioner.  He had known the respondent from 1994 until the end of 2006, when he retired.  Her depression had been diagnosed within the first six to twelve months of him first meeting her and she had received ongoing treatment since that time.  She had seen a number of psychiatrists, such as Dr J Kent and Dr T Heint, as well as cognitive behaviour therapy through the Anxiety Disorders Clinic.  During most of that time she had taken antidepressant medication.  He thought it important that she receive further cognitive behaviour therapy and counselling, but it would be unlikely to lead to a complete resolution of her problems.  In relation to Dr George’s reports, he said it was difficult to see how Dr George could satisfactorily decide that the respondent was in remission, given that when he himself had last seen her she had reasonably significant ongoing symptoms.  As to the Job Capacity Assessment Reports, given her ongoing depression and her other health issues, he thought she was probably capable of working somewhat less than 29 hours per week and certainly no more.

17.     In cross-examination by Ms Welfare, Dr Kennare said he thought the only condition that had an impact on the respondent’s ability to function was her depression.  Her other conditions were not as chronic or as persistent as the depression and anxiety.  He acknowledged that, as a general practitioner, his expertise was in diagnosis and treatment of people’s health issues and not in psychiatry.  When questioned by the Tribunal, he said that, because of the chronic and long-standing nature of her problems, he did not accept Ms Kirwan’s assessment that there would be a significant functional improvement in the respondent within the next two years.

Reports and Evidence (taken by telephone) of Dr G George

18.     In her examination, Ms Welfare referred Dr George to his report dated 13 February 2007 (Exhibit A3), following his meeting with the respondent on 8 February 2007.  He said that she was working 29 hours a week and had aspirations to study at university, which he saw as good prognostic signs that she was coping quite reasonably.  In his report (at page 7) he stated:

“… She is not under any constant psychiatric care at the present time and her medication has not been changed for a good number of years.  I believe that she is quite capable of working the 29 hours but obviously, her medical conditions could interfere with her ability [to] cope over time.  However from a psychiatric viewpoint, I do not see her suffering an ongoing illness which would prevent her from working.”

19.     Ms Welfare then referred Dr George to his report dated 15 April 2007 (Exhibit A4).  He said he had been asked for his second report to review a Work Capacity Assessment dated 2 May 2006 (Exhibit A1, T5), a report from Dr Kennare dated 30 May 2006 (Exhibit A1, T9) and the reports from Dr Heint dated 22 September 2000 and 1 December 2000 (Exhibit A2, T3 and T4).  When asked whether his earlier opinions had changed, he said the reports that he had reviewed tended to re-affirm over time that the respondent had suffered a severe depressive disorder, around the year 2000, which was associated with chronic trichotillomania.  When questioned by the Tribunal about the respondent’s medical conditions and his statement that he believed she was quite capable of working 29 hours a week, Dr George expanded his view and said:

“Look, I think to put it in perspective, I read or went over the [sic] report recently where something like 15 per cent of the employed population is taking antidepressant medication at any one time, so a lot of people are taking antidepressants either for anxiety or depression and continue to work full-time hours, so you’re really looking – for somebody who is depressed – for ongoing symptoms that are incapacitating and I didn’t find those in this particular lady.  The other conditions that she has – again, if you wanted probably to look at community surveys – probably a fair degree of people in the population that have to deal with irritable bowel syndrome and they do – they do actually use conservative measures to control their symptoms. … it’s very common in the population, I believe, and so again people can take medication for that to control symptoms during the day and night, or then again they sleep in an elevated position at night so they don’t get reflux.  The diabetes again is something that can be controlled through strict diet and exercise and also taking drugs like Metformin – but I don’t think she was taking Metformin for her diabetes – so she hadn’t even got to the stage with her diabetes, I think, whereby she was taking any oral hypoglycemics – so in terms of looking at those particular conditions that she mentioned to me they seemed to be conditions that certainly could affect her from time to time, but weren’t necessarily permanent.” (Transcript, page 13)

20.     In cross-examination by Ms Riley, Dr George opined that, for a depressive disorder, antidepressant medication was the first line of treatment.  The second line of treatment, after mood improvement, was to consider cognitive behaviour therapy.  He said that he was aware that the respondent had seen Dr Heint for a period of three months in 2000 and was seeing Dr Neil Gehan in 2002.  He said he was not aware of other cognitive behaviour therapy that the respondent had received.  When asked further by Ms Riley whether he thought the respondent would gain a significant functional improvement from a further program of consultation with a psychiatrist, Dr George said that, if she was going to attempt more than 29 hours work a week, then seeing a psychiatrist may be useful in terms of a review of her medication.  He said that the respondent would have to be motivated to do this.  She may feel she was coping well without this further treatment if she was under the care of a psychologically minded general practitioner who would provide most of what a psychiatrist or psychologist might provide. 

reports and evidence of ms dani kirwan

21. Ms Welfare referred Ms Kirwan to her Job Capacity Assessment Report dated 23 May 2007 (Exhibit A5). In making her assessment of the respondent’s conditions, she said that no impairment points had been allocated to the conditions that were considered to be permanent under the Act, these conditions being diabetes, irritable bowel syndrome and asthma. She said these permanent conditions did not receive any impairment points because the respondent had reported to her that the conditions were not having a significant impact on her ability to sustain the level of employment she was undertaking at the time. Further, she said that this was supported by the treating doctors’ reports of Dr Kennare in 2002 and 2006, where he listed the medical conditions as being generally well-managed and not having any significant impact on the respondent’s functional ability (see Exhibit A1, T3 at pages 12-16). When questioned further about the respondent’s functional ability, Ms Kirwan said:

“… Just from my personal experience it is not uncommon for individuals to come to their job capacity assessments and say that they have had to try two, three or four different types of anti-depressant medication before they find the one that is adequately controlling their symptoms.  So I just found it a little bit unusual that the medication hadn’t been changed in order to try to better stabilise the condition, so it is certainly possible that if that medication were changed, that the condition would be better stabilised – more stabilised, sorry, and would result in some level of improvement.  The other reason – there are two other reasons why the condition was considered temporary is the – [SAAO] advised that she had stopped seeing a psychiatrist and hadn’t had any mental health intervention for quite a number of years when I initially met with her which is quite – it just seemed to be a little bit strange because Dr Heint mentioned in one of his letters that he wrote, dated 2000, that both the depression and the trichotillomania were showing some level of improvement while she was engaged in behaviour therapy and psychiatric intervention.  Also the terminal treatment for one [sic] trichotillomania is the use of anti-depressant medication and the ongoing cognitive behaviour therapy which are generally used in combination rather than just the anti-depressant medication.  So it is my opinion that, if Mrs ….. had been participating in the CVT [sic] as well as the anti-depressant medication the condition would likely result in some level of significant improvement. …”  (Transcript, pages 24-25)

When asked about the respondent’s other medical conditions referred to in her report, Ms Kirwan said that the respondent had advised her they were not preventing her from working at that time, and that the reason she needed to take time off work was because of her depression and trichotillomania. 

22.     Ms Welfare then referred Ms Kirwan to her report dated 3 July 2007 (Exhibit A7).  She said she had been asked to provide this second report after Dr Kartuf had provided his report dated 19 April 2007 (Exhibit A6).  In his report, Dr Kartuf had assigned impairment ratings of 40 points for each of the respondent’s listed medical conditions.  Ms Kirwan said that it was extremely rare for a single condition to be assigned 40 points under the Impairment Tables, and for an individual to receive 40 points for all their medical conditions was unheard of.  In fact, some of the conditions that Dr Kartuf had referred to, such as diabetes under Table 19, could only ever be assigned a maximum of 20 points under the Table. 

23.     Ms Kirwan was referred to the assessment of the respondent’s Work Capacity (page 4 of her Assessment Report).  She said she assessed the respondent’s future capacity for work within 24 months (without intervention) as 30+ hours per week.  In doing this, only the respondent’s permanent conditions (diabetes, irritable bowel syndrome and asthma), all of which had nil impairment ratings, had been taken into account.  It had not been possible to assign impairment points to the respondent’s temporary conditions, such as depression and trichotillomania.

24.     In cross-examination, Ms Riley referred Ms Kirwan to the report of Dr Heint dated 22 September 2000 (Exhibit A2, T3) where the respondent was described as having “long standing problems of depression and anxiety and trichotillomania”, to the treating doctor’s report of Dr Kennare dated 12 December 2002 (Exhibit A2, T1) (where the respondent complained of depression, irritable bowel syndrome and asthma), and to the later report of Dr Kennare dated 30 May 2006 (Exhibit A1, T9), in which he said:

“I have known [SAAO] for the past 10 years.

She has a long history of depression that was diagnosed in 1994 requiring Psychiatric assessment and management.  Associated with this condition, she suffers from trichotillomania and has received psychological support and counseling through the Anxiety Disorders Unit at … Medical Centre.

…”

When asked by Ms Riley why, after so many years, she was still detailing the respondent’s depression as temporary, Ms Kirwan said:

“I called it temporary because I assessed [SAAO] after that during March, I think it was, in 2007 and what I’m asked to do is determine whether or not from that date of the assessment, the condition will last for longer than 2 years, and given that if she had have [sic] engaged in suitable treatment from March 2007 until March 2009, I think the condition would have shown significant improvement.” (Transcript, page 35)

25.     In further cross-examination by Ms Riley, Ms Kirwan said that the respondent’s functional losses would have improved in two years, although they had not improved in six years, because it had been some time since the respondent had access to any cognitive behaviour therapy and the fact that her medication had not been reviewed for over seven years.  She believed that these two factors would bring about a significant functional improvement in the respondent’s health. 

applicant’s submissions

26.     In summary, the submissions by Ms Welfare for the applicant (as the Tribunal understood them) were as follows:

(a) Based on paragraph 4 of the Introduction to the Impairment Tables in Schedule 1B of the Act, for a rating to be assigned to a medical condition, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

(b) Having regard to the report of Dr George dated 13 February 2007 and his oral evidence, the respondent’s depression was not adequately treated at the time of cancellation of her DSP. As her impairments could not be assigned an impairment rating of at least 20 points under the Impairment Tables contained in the Act, she did not satisfy s 94(1)(b).

(c)       Given his experience and expertise as a consultant psychiatrist, Dr George’s evidence that the respondent’s depression was temporary should be preferred over the evidence of Dr Kennare and Dr Kartuf.

(d)      Although Dr Heint was also a consultant psychiatrist, his reports in relation to the respondent were provided in September and December 2000.  As this was at a significantly earlier period in time, the report and evidence of Dr George was more relevant.

(e)      Ms Kirwan also found the respondent’s depression to be temporary and stated that treatment was pending.  Her report and evidence should be preferred, as she had had the benefit of Dr George’s report and of reviewing other medical reports.

(f)       Even if the Tribunal found the respondent’s depression to be permanent, it could not be rated 20 points in the Impairment Tables as Dr George’s evidence was that the respondent was functioning at a reasonable level.

(g) If the Tribunal found that s 94(1)(b) was satisfied, the respondent did not have a continuing inability to work because of an impairment. The reason the respondent was not working 30 hours per week was not because of the impairment “of itself” as required by s 94(2) of the Act.

(h)      Only permanent conditions could be taken into account when determining whether a person had a continuing inability to work.  As the respondent’s depression was not a permanent condition, it could not be taken into account in determining her work capacity.

(i)        Based on the Work Capacity Assessment dated 2 May 2006, Dr George’s reports dated 13 February 2007 and 15 April 2007, the Job Capacity Assessment Report dated 23 May 2007 and the letter from the Job Capacity Assessor dated 3 July 2007, the respondent’s impairment of itself was not sufficient to prevent her from undertaking educational or vocational training or on-the-job training during the next two years.

(j)        The Job Capacity Assessment Reports in regard to the respondent’s work capacity should be preferred over other conflicting medical evidence.  In particular, the Job Capacity Assessment Report dated 23 May 2007 and the subsequent letter from the Job Capacity Assessor dated 3 July 2007 should be preferred over other conflicting evidence in regard to the respondent’s work capacity because the Job Capacity Assessor produced her report after consideration of all the medical evidence and opinions concerning the respondent’s impairments. 

respondent’s submissions

27.     In summary, the submissions by Ms Riley for the respondent (as the Tribunal understood them) were as follows:

(a)      The evidence of the respondent’s treating doctor of long standing (Dr Kennare) was accepted by the SSAT.  The SSAT found that the respondent satisfied all of the criteria for the grant of DSP and she had done so since the date of cancellation.  The evidence of Dr Kennare, as the respondent’s treating doctor of long standing, should be preferred over the evidence of Dr George and Ms Kirwan.

(b)      The evidence of Ms Kirwan that the respondent’s depression was temporary was not supported by the evidence of Dr George.  Ms Kirwan’s evidence was to the effect that the respondent’s depression was not fully stabilised because it was likely that there would be significant functional improvement, with reasonable treatment, within the next two years.  As the respondent had undertaken cognitive behaviour therapy previously, of which Dr George was unaware, and he had said he would not change her medication, it would be unlikely that there would be any significant functional improvement in the respondent’s depression within the next two years.

(c) As there was evidence of the respondent’s depression since 1994, her condition had been diagnosed, treated and stabilised. Based on the evidence of Dr Kennare, that her depression was not in remission and was likely to persist for the foreseeable future, and the Work Capacity Assessment Report dated 2 May 2006, the respondent satisfied s 94(2) of the Act.

(d)      The respondent did not have an ability to work for at least 30 hours per week at award wages or above and the SSAT had recognised her limitations.

(e)      The respondent suffered from well documented, long standing depression and other ailments that prevented her from being able to undertake work for 30 hours per week or more.

consideration and application of the law

28. In order to qualify for DSP, the respondent must have a physical, intellectual or psychiatric impairment (s 94(1)(a)) which can be assigned an impairment rating of at least 20 points (s 94(1)(b)) under the Impairment Tables in the Act. However, the respondent must also have a continuing inability to work (s 94(1)(c)(i)). A continuing inability to work (at the time of cancellation of her DSP) meant the respondent could work within the next two years or that she could be retrained or retraining was unlikely to enable her to work within two years (s 94(2)). In the respondent’s case, “work” meant work of at least 30 hours a week at award wages or above which existed anywhere in Australia (s 94(5)).

29. It was accepted (and the Tribunal is satisfied) that the respondent satisfied paragraphs (a), (d) and (e) of s 94(1). Does she also satisfy paragraphs (b) and (c) of s 94(1)?

30. Like the SSAT, the Tribunal found the respondent to be a credible and forthright witness. She gave her evidence in an open and straightforward manner. In relation to the consideration of s 94(1)(a) and based upon the evidence before it, the Tribunal makes the following relevant findings of fact:

(a)      At the time of the hearing, the respondent was 36 years of age, had been married since December 2004 and had given birth to a baby girl in November 2007.

(b)Symptoms of depression were recognised in the respondent in 1994 when she suffered glandular fever. 

(c)       When granted DSP, the respondent was depressed, she was unable to work and perform other every-day tasks and required considerable sleep.  She also suffered from trichotillomania, which affected her personal esteem, and she had a low level of concentration in her studies and later in her work environment.

(c)       At the time her DSP was cancelled in May 2006, the respondent was suffering from depression, trichotillomania, type 2 diabetes mellitus, asthma and irritable bowel syndrome.  She was working four days (or 29.4 hours) a week. 

(d)       A five day working week had not been offered to the respondent.  She had worked 29.4 hours a week because she could see a time in the future when she would be able to work reduced hours. 

(e)       Between the period in which her DSP was granted and cancelled, the respondent’s health had remained substantially the same.

Is the respondent’s impairment of 20 points or more under the Impairment Tables?

31.     The Tribunal notes that, in November 2000 when her DSP was granted, the respondent was assigned the following ratings under the Impairment Tables by Dr M Lewis from Health Services Australia Limited:

·15 points for asthma under Table 2;

·10 points for visual migraine under Table 20; and

·10 points for diplopia under Table 14.

No impairment points were assigned for the respondent’s depression (temporary) and irritable bowel syndrome (adequately controlled).

32.     In his treating doctor’s reports dated 11 December 2000, 12 December 2002, 30 April 2004 and 20 February 2006, Dr Kennare has consistently referred to the respondent’s diagnosed and long-standing depression, with her associated trichotillomania, as the medical condition that has had a significant impact on her ability to function.  He has repeated the diagnosis in his report dated 30 May 2006 (Exhibit A1, T9 at page 49).  The respondent’s other medical conditions of diabetes, irritable bowel syndrome and asthma have all been described as generally well managed and of causing minimal or limited functional impact.  In his oral evidence, Dr Kennare acknowledged that, as a general practitioner, his expertise was in diagnosis and treatment of health issues and not in psychiatry.  When questioned by the Tribunal, he said that he saw the respondent on a monthly basis, “largely as a sort of supporting counseling process”.  This relationship was confirmed by the respondent in her evidence when she said:   

“Well, like I said, I have seen several different psychiatrists during that period and, really, I think seeing Dr Kennare was more beneficial for me than seeing the psychiatrists that I saw, just with the various methods that some of them use to treat patients.  I found that just seeing him and having him to go and speak to was definitely more beneficial than going and speaking to the psychologist – psychiatrist.” (Transcript, page 63)

She confirmed it again when, in answer to questioning by Ms Riley as to the comparison between Dr Kennare and her present general practitioner, Dr Kartuf, the respondent said of Dr Kartuf:

“He’s – he doesn’t.  He – even – I mean, it’s hard to say – he just doesn’t offer that – he’s very much – he sees me for my appointment time and he doesn’t offer a lot of support and he says himself, you know, he doesn’t sort of do that thing – sort of thing – he doesn’t like the counselling and whatever.” (Transcript, page 51)

33.     In the Tribunal’s view, although the reports of Dr Kennare detailed the respondent’s medical conditions, particularly her depression and associated trichotillomania, his oral evidence was of little assistance.  As the respondent’s treating doctor for 14 years, he was obviously qualified to present his evidence to the Tribunal.  However, he frankly acknowledged that he was (or had been) a general practitioner and his expertise was in diagnosis and treatment of health issues and not in psychiatry.  The reports of Dr T Heint (Exhibit A2, T3 and T4 at pages 24-25) were not of current relevance.  The opinions expressed were given well before the respondent’s DSP was cancelled and the Tribunal gives them little weight.  As to the reports of Dr Kartuf (Exhibits A6 and R1), who was apparently too busy to give oral evidence, the Tribunal found them to be too general in nature and simply did not aid the respondent in her case. 

34.     Ms Welfare, in her submissions to the Tribunal, pointed to the wording of paragraph 4 of the Introduction to the Impairment Tables.  To repeat, for a rating to be assigned to a medical condition under the Tables, the condition must be a fully documented, diagnosed condition that has been investigated, treated and stabilised.  More importantly, the Tribunal notes from paragraph 5 of the Introduction, the condition must be considered to be permanent and, once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years, and a condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.  To assess whether a condition is fully diagnosed, treated and stabilised, it is necessary to consider, amongst other things, whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years. 

35.     In his report dated 13 February 2007, Dr George did not see the respondent’s depression as being permanent and did not believe that she warranted an assessment of impairment under Table 6 of the Tables.  In commenting upon the respondent’s application for DSP, he said (at page 7 of his report):

“In view of the fact that [SAAO] is both working 29 hours a week and has aspirations to study at university again, attending two lectures per week, I do not believe that her application can be justified.  She is not under any constant psychiatric care at the present time and her medication has not been changed for a good number of years.  I believe that she is quite capable of working the 29 hours but obviously, her medical conditions could interfere with her ability [to] cope over time.  However from a psychiatric viewpoint, I do not see her suffering an ongoing illness which would prevent her from working.”

Then, in his oral evidence, when asked whether he considered the respondent’s depression to be temporary or permanent, he said:

“Well, I saw it as being temporary, simply because she had a period of being quite well over the last 18 months, apparently coping reasonably, despite different symptoms from time to time, which were probably related to physical conditions more than anything else.”  (Transcript, page 10)

36.     In making his assessment of the respondent’s depression at the time her DSP was cancelled, Ms Welfare submitted that, as a consultant psychiatrist having the relevant expertise, Dr George’s evidence should be preferred over the evidence provided by general practitioners, in particular, the evidence of Dr Kennare.  The other psychiatric evidence was that of Dr Heint in September 2000 and December 2000, but that cannot be seen as of the same currency or relevance as the evidence of Dr George.  The Tribunal agrees with and accepts the cogency of these submissions.  In the Tribunal’s view, Dr George’s evidence in relation to the respondent’s depression is supported by the oral evidence of Ms Kirwan.  When asked by Ms Welfare why no impairment points were assigned to the respondent’s depression in her Job Capacity Assessment Report, Ms Kirwan said:

“So that was why the new impairment points are added – were given for the permanent conditions.  Now, the trichotillomania and the depression were considered to be temporary conditions in that they don’t meet the legislation’s definition of being fully diagnosed, treated and stabilized and, as such, no impairment points were able to be provided for those conditions.  The reason behind why these conditions were considered to be not fully diagnosed, treated and stabilized is because during the assessment [SAAO] advised that she has been taking one type of anti-depressant medication since, I think it was 1994 or, at least, since the treating doctor’s report, dated 2000.  This was also confirmed in the treating doctor’s reports and in Dr George’s report. …”  (Transcript, page 24)

37. It was Ms Riley’s submission that the evidence and reports of the respondent’s treating doctor of long standing showed that her depression, which had existed since 1994, was permanent and that she continued to satisfy the requirements of s 94(1)(b) of the Act. Ms Riley referred the Tribunal to the decision of Gyles J, in the Federal Court, in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, where he said (at paragraph 17):

“17. It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment. My initial impression, having read s 94 of the Social Security Act 1991 and the Tables, was that the AAT should not have rejected the application on that basis. Having considered the helpful arguments of counsel on the point, I remain of that view.”

In the Tribunal’s view, Gyles J was concerned that the diagnosis of a long standing medical practitioner should be rejected on the basis of further examination by another medical practitioner or practitioners.  In her submission, Ms Riley has sought to compare the evidence of Dr Kennare, the respondent’s long standing treating doctor, with that of Dr George, an experienced consultant psychiatrist.  As has been mentioned in paragraph 33 of these reasons, Dr Kennare acknowledged that his expertise was not in psychiatry, but in providing feedback, support and counseling to the respondent.  The respondent saw Dr Kennare’s involvement as more beneficial than consulting with a psychiatrist.

38. On the evidence provided by Dr George and Ms Kirwan, the Tribunal finds that the treatment prescribed by Dr Kennare had not been adequate, and any proposed future treatment could not be reliably expected to result in substantial improvement in her condition. It was unlikely there would be any significant functional improvement, with or without reasonable treatment, within the next two years. In these circumstances, at the time of the cancellation of her DSP, the respondent’s impairment did not attract an impairment rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act.

did the respondent have a “continuing inability to work”?

39. Given the Tribunal’s finding in relation to s 94(1)(b), it is unnecessary to consider whether the respondent had a continuing inability to work within the meaning of s 94(1)(c)(i) and s 94(2). Nevertheless, the Tribunal considers it appropriate to express its view.

40.     Moreover, based on the evidence of Dr George and Ms Kirwan, the Tribunal is of the view that the respondent’s functional impairment is, of itself, not sufficient to prevent her from doing any work within the next two years and to prevent her from undertaking educational or vocational training or on-the-job training during the next two years.

41. Under s 94(1)(c)(i) of the Act, when read with s 94(5) (as those provisions existed at the time the respondent’s DSP was cancelled), a person had a “continuing inability to work” because of an impairment if the Secretary (or the Tribunal) was satisfied that the impairment was of itself sufficient to prevent the person from doing any work within the next two years, and the impairment was of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next two years. Under s 94(5) and in the respondent’s case, “work” meant work that was at least 30 hours per week in Australia at award wages or above. In Secretary, Department of Social Security v Pusnjak (1999) 29 AAR 561, Drummond J (in the Federal Court) considered the operation of s 94(2) of the Act. At paragraphs 31 and 32 of his decision, the learned Judge said:

“31  If, as I think it should be, s 94(2)(a) directs the Secretary to confine his determination to whether the impairment of itself is sufficient to prevent the person from doing any work that may be available anywhere in Australia, being work for which that particular person is already fitted without first requiring some form of occupational retraining, s 94(2)(b) then, logically enough, moves on to identifying what impact the availability of occupational retraining is to have on the eligibility of the particular applicant for a disability support pension who surmounts the first hurdle of s 94(2)(a).

32  Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s 94(2):

As to s 94(2)(a) Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? If so:

As to s 94(2)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?

If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work.  …”

42.     Ms Welfare submitted (and the Tribunal accepts) that only permanent conditions can be taken into account in determining whether a person has a continuing inability to work.  In Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500, the Full Federal Court (Drummond, Kiefel and Dowsett JJ) said at paragraph 22:

“22   Obviously enough, subs 94(2) is intended to define the expression ‘continuing inability to work’ for the purposes of par 94(1)(c).  It is of interest that the expression defined in subs 94(2) is ‘a continuing inability to work because of an impairment’.  Impairment is referred to in pars 94(1)(a) and (b) but not in conjunction with the expression ‘a continuing inability to work’ in par 94(1)(c).  Its presence in subs 94(2) demonstrates that the continuing inability referred to in subpar 94(1)(c)(i) must be the result of the impairment referred to in pars 94(1)(a) and (b).”

It follows that, as the respondent’s depression was not a permanent condition, it is unable to be taken into account in determining her work capacity.   

43.     The Tribunal also accepts Ms Welfare’s contention that the respondent’s depression was not of itself sufficient to prevent her from undertaking educational or vocational training or on-the-job training during the next two years.   In saying this, the Tribunal prefers the evidence and opinions of Dr George (in his reports dated 13 February 2007 and 15 April 2007) and Ms Kirwan (in her Job Capacity Assessment Report dated 23 May 2007 and her subsequent report dated 3 July 2007), rather than the contrary opinions and evidence of Dr Kennare and Dr Kartuf.  In her closing, it was Ms Riley’s submission that the evidence of Dr George and Ms Kirwan was somehow inconsistent because Dr George had said he would not change the respondent’s medication, and he was unaware that she had undertaken cognitive behaviour therapy two years before he had seen her.  The Tribunal is unable to accept this submission.  In the Tribunal’s view, Dr George’s unqualified opinion would not have changed, even if he had been aware that the respondent had been involved in cognitive behaviour therapy two years before his assessments in 2007.      

44. Again, on the evidence before it, the Tribunal finds that, at the time of the cancellation of her DSP, the respondent did not satisfy the requirements of s 94(1)(i) of the Act.

45.     During the course of the hearing, Ms Riley questioned the respondent about her eye problems (diplopia) and visual migraines, which were conditions from which she suffered at the time her DSP was granted.  When asked whether she still suffered from those conditions, the respondent said:

“I do.  They virtually got worse in the past two years.  I – they used to last for five minutes, not they’re lasting for 45 minutes at a time and when I’m at work it’s pretty hard because I’ve got to pretend that I’m still working, or try and find something to do when I can’t actually see anything at all – to work on my computer – when a lot of my work – 90 per cent of my work is on the computer.” (Transcript, page 43)

Ms Riley indicated to the Tribunal that she had hoped to have a report from an ophthalmologist about the respondent’s eyes, but had been unable to make an appointment until 27 February 2008.  Ms Riley further indicated that it was her intention to submit the report to the Tribunal.  On 13 May 2008, after these reasons had been written, Ms Riley forwarded the report to the Tribunal Registry.  Given the timing of the report, and the fact that it was not available to the applicant, the Tribunal was not inclined to consider it.  Nevertheless, the report was perused but the Tribunal found it to be in only brief and general terms and of little real assistance.  For these reasons, the report has been disregarded.  It seems to the Tribunal that a more detailed and comprehensive report, together with a current report from a psychiatrist as to the respondent’s depressive condition, might be of benefit to her in any future claim for DSP she might wish make to the applicant.

decision

46.     For the reasons above, the Tribunal sets aside the decision under review and substitutes a decision that the respondent was not eligible for Disability Support Pension at the time of its cancellation on 9 May 2006.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne and Dr E T Eriksen (Member)

Signed:         .....................................................................................
  Associate

Date of Hearing  5 February 2008
Date of Decision  29 May 2008

Advocate for the Applicant       Ms M Welfare

Centrelink Legal Services Branch

Advocate for the Respondent   Ms M Riley

Welfare Rights