Scott; Secretary, Department of Social Services (Social services second review)

[2017] AATA 564

Scott; Secretary, Department of Social Services (Social services second review) [2017] AATA 564 (19 April 2017)

Division:                  GENERAL DIVISION

File Number(s):      2015/5286

Re:Secretary, Department of Social Services

APPLICANT

AndSheree Scott

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:19 April 2017

Place:Sydney

The Tribunal affirms the decision of the Social Services & Child Support Division of this Tribunal dated 3 September 2015 which set aside a decision rejecting the application Mrs Scott made for disability support pension (DSP) and sent the matter back for reconsideration with the directions that Mrs Scott satisfies ss 94(1)(a), (b) and (c) of the Social Security Act 1991 .

............................[sgd].................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY ACT – disability support pension – whether the impairment was fully diagnosed, treated and stabilised – mental health condition – depression – post-traumatic stress disorder – Impairment tables – Table 5 Mental Health Function – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

19 April 2017

The purpose of this review

1. The applicant, Secretary, Department of Social Services, has applied for the review of the decision of the Social Services & Child Support Division of this Tribunal (AAT1) dated 3 September 2015 which set aside a decision rejecting the application Mrs Scott made for disability support pension (DSP). The AAT1 decision sent the matter back for reconsideration with the directions that Mrs Scott satisfies ss 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act).

   The legislation

2. To qualify for the DSP, s 94(1) of the Act requires that Mrs Scott satisfy all the following criteria:

   ·She must have a physical, intellectual or psychiatric condition that impairs her ability to function (s 94(1)(a));

   ·Her impairment must rate 20 points or more under the Impairment Tables (s 94(1)(b)); and

   ·She must have a continuing inability to work (s 94(1)(c)).

3. Mrs Scott’s claim for DSP must be assessed based on her medical conditions as at the date of the claim, 13 March 2015, or within 13 weeks of that time, that is, in the period until 12 June 2015.

4. Clause 6 of Pt 2 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) sets out rules for applying the Impairment Tables. Relevantly, cl 6 requires that:

   ·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;

   ·The condition causing the impairment is permanent and the resulting impairment is more likely than not to persist for more than 2 years;

   ·For a condition to be permanent, it must have been fully diagnosed by an appropriately qualified medical practitioner, been fully treated, fully stabilised, and likely to persist for more than 2 years;

5. Clause 6 provides detailed definitions of ‘fully diagnosed’, ‘fully treated’, ‘fully stabilised’ and related terms. A copy is annexed.

   Impairments

6. At the hearing, the applicant accepted that Mrs Scott had a number of conditions during the relevant period which gave rise to impairments:

   ·Breast cancer since 1996 which was fully diagnosed, treated and stabilised and consequential lymphedema, for which the applicant accepted 5 points was the appropriate rating.

   ·Diabetes mellitus type 2 diagnosed in 2008, which is fully diagnosed, treated and stabilised but for which 0 points should be allocated according to the applicant.

   ·Depression/PTSD since 2009; and

   ·Calcaneal spurs

7. It is necessary for this decision to consider only Mrs Scott’s mental health condition.

   The issue

8. At the hearing, the applicant advised the Tribunal that the issues had narrowed since it had prepared its Statement of Facts Issues and Contentions. The question for the Tribunal is whether during the relevant period, Mrs Scott’s mental health condition had been fully treated.  The applicant accepted that it had been relevantly fully diagnosed, based on Dr Pahuja’s report dated 10 March 2016. 

9. Dr Pahuja is a consultant psychiatrist. Her diagnosis is:

   [Mrs Scott’s] presentation is best conceptualised by her suffering complicated grief, chronic major depressive disorder – recurrent and post-traumatic stress disorder having emerged since the completed suicide of her father.”

10. Dr Pahuja recorded that Mrs Scott’s psychiatric history “spans some 20 years requiring one admission to hospital in the context of deliberate self-harm”.

11. The applicant accepts that if the Tribunal finds that Mrs Scott’s mental health condition has been fully treated, then it is fully diagnosed and stabilised.

12. If the Tribunal finds that the condition has been fully treated, there is a further question:  What is the appropriate rating of that impairment under Table 5? For Mrs Scott to succeed, the rating must be 20 points or more.  

    Background

13. The applicant relies on the two medico-legal reports provided by Dr Pahuja, dated 10 March 2016 and 27 May 2016.

14. Dr Miller has been Mrs Scott’s general practitioner since 2010. Mr and Mrs Scott lived in a house in the Hunter Valley in New South Wales until they began to live in the caravan in about May 2014 for financial reasons. Mr Scott ceased working in about June 2014 and they were unable to afford the mortgage repayments on their home.  Their evidence was that they stayed in caravan parks in the Hunter Valley area until December 2015 when the decision was made to travel.  Mrs Scott has not seen Dr Miller since then.

15. The Tribunal accepts Mrs Scott’s evidence that the medical report signed by Dr Miller, and dated 10 March 2015, (Dr Miller’s first report) which accompanied her DSP application, was filled out by the practice manager. The information in that report regarding her mental health condition is unhelpful. Because the Job Capacity Assessment Report (JCA Report) submitted on 14 April 2015 relied on the first incomplete report, it is of no assistance in relation to assessing Mrs Scott’s mental health condition.   

16. Mrs Scott obtained another report which Dr Miller filled out, signed and dated 8 May 2015 (Dr Miller’s second report). Dr Miller also provided a brief third report dated 7 November 2016.

17. The clinical notes from Mater Mental Health Services show that Mrs Scott was being treated with medication for her mental health condition and managed by her then general practitioner at the time of her involuntary admission on 28 December 2009 following her attempted suicide.  During her admission, she was treated with medications. At the date of discharge, 30 December 2009, she was to continue to take medication and was referred to the Hunter Valley Mental Health Team for post-discharge management and follow-up.

18. The evidence is clear that Mrs Scott had not had psychiatric or psychological treatment, or taken medications since 2010. In May 2014, her father committed suicide following the diagnosis of a terminal illness.  That event resulted in an exacerbation of Mrs Scott’s condition.

19. In Dr Miller’s opinion, Mrs Scott does not tolerate medication well.  In her second report, in response to a question about future/planned treatment, Dr Miller wrote:

    -    Nil

    -    Continued to support and counciling (sic) recent suicide of pt’s father.

    The applicant’s argument

20. The applicant relied on Dr Pahuja’s evidence to argue that Mrs Scott had not consulted a psychiatrist or clinical psychologist for appropriate treatment for her mental health condition at the relevant time and therefore she cannot be considered to be fully treated during the relevant period.  The applicant argued that Mrs Scott’s evidence that she had previously engaged in counselling and taken medication, did not assist because she had stopped the treatment in around 2010 of her own volition or in consultation with her general practitioner rather than in consultation with a clinical psychologist or psychiatrist.

21. The applicant argued that Mrs Scott has not taken steps to engage in treatment, which Dr Pahuja considered may be of assistance.  

22. In her second report, Dr Pahuja said that Mrs Scott has not undertaken reasonable treatment for the condition “with respect to the relevant period” as required by cl 6(6)(b) of the Impairment Tables. The applicant argued that it followed that Mrs Scott’s mental health condition was therefore not fully stabilised during the relevant period and no rating should be assigned.

23. The applicant argued that if the Tribunal did not accept that argument, the impairment rating for the mental health condition was no more than 10 points according to Table 5. The applicant argued that the functional impact of Mrs Scott’s itinerant lifestyle, travelling around Australia in a caravan and staying no longer than 28 days at a camp site, cannot be clearly delineated from the functional impairment.

    CONSIDERATION

24. In Dr Pahuja’s opinion, at the relevant period, Mrs Scott would have required trauma-focused cognitive behavioural therapy and a referral for ongoing psychiatric care, in addition to ongoing psychological treatment in conjunction with pharmacotherapy to manage the current conditions. 

25. Dr Pahuja noted that barriers to such treatment were Mrs Scott’s itinerant lifestyle and said that further treatment options are available to her, however:

    she would require to be more reliably located in one region to access treatment and have stable accommodation in order to enhance her own psychosocial recovery.  This would allow her to re-engage with her support network, preferably in her previous hometown in the Hunter Valley.

    With an improved psychosocial setting and increased support as well as being reconnected with primary care services, mainly her general practitioner with whom she had a good rapport and ongoing relationship, it would then be appropriate to refer her to psychology services and specialist psychiatric care.  With the holistic and comprehensive approach to treatment there would be some improvement in her condition in the next two years.

26. In response to a question asking her to address each of the descriptors in Table 5, Dr Pahuja wrote:

    … having considered the issue of stabilisation further and considering the prognosis for improvement within the next two years in light of the factors of the history of the condition, response to previous treatment, attitude to engaging the psychiatric treatment and psychosocial factors of unstable accommodation and a travelling lifestyle, the expected rate of recovery is slow. In my opinion her conditions are likely to persist for more than two years and that significant functional improvement is unlikely within two years from now. Given the history of poor response to previous treatment as reported by Ms Scott, a positive response to future medication is guarded, particularly given the psychosocial setting and limited access to specialist care. I therefore consider her condition as fully stabilised. She cites the barrier to her obtaining stable accommodation as the financial situation of herself and her husband, neither of the couple being able to engage in ongoing employment. Ms Scott has been unable to cope with paid employment for over nine years and therefore is unlikely to be able to improve to a degree to participate in rehabilitation or part-time employment.

27. The Tribunal finds that Dr Pahuja did not appreciate from her interview with Mrs Scott that the decision to move away from the Hunter Valley and pursue an itinerant lifestyle was because Mrs Scott did not want to have contact with people, particularly because people in the area knew about the circumstances of her father’s suicide. 

28. Therefore, the Tribunal does not accept that Dr Pahuja’s opinion about the benefits of Mrs Scott relocating to the Hunter Valley is well-founded.  While she did get on well with Dr Miller, Mrs Scott did not have what could be called a support network in that area.  On Mrs Scott’s evidence, returning to that area could adversely affect her mental health. Her social isolation was her choice to cope with her mental health condition, not a consequence of the itinerant lifestyle as Dr Pahuja believed. The Tribunal does not consider that Dr Pahuja’s assertion that the Hunter Valley would provide “an improved psychosocial setting and increased support” is well-founded. 

29. Taking into account the evidence of Mr and Mrs Scott and Dr Pahuja and Dr Miller, the Tribunal finds that Mrs Scott’s mental health condition has been fully treated.  

30. The Tribunal prefers the opinion of Dr Miller, a general practitioner, who has had more than five years’ experience treating Mrs Scott, to the opinion of Dr Pahuja whose opinion is based on one interview.  The Tribunal finds that Mrs Scott’s mental health condition has been fully treated. 

31. Dr Pahuja’s comments that “given the history of poor response to previous treatment as reported by Ms Scott, a positive response to future medication is guarded, particularly given the psychosocial setting and limited access to specialist care”, show that she accepts Mrs Scott’s claim about a poor response to medications, but she does not give that history appropriate weight.  Further, Mrs Scott was in her home until May 2014 and in her long-term local area until December 2015, only three months before Dr Pahuja saw her. That is, Mrs Scott was living within the area of the “support network” upon which Dr Pahuja relied to enhance Mrs Scott’s prospects of recovery until shortly before Dr Pahuja assessed Mrs Scott. The Tribunal finds Dr Pahuja’s opinion about the benefit of future treatment in the next two years speculative and not well-founded.  

32. Dr Pahuja’s opinion about functional improvement reinforces the Tribunal in finding that Mrs Scott’s condition has been fully treated.  Dr Pahuja’s opinion was: 

    ·Significant functional impairment to a level enabling Ms Scott to undertake work in the next two years is not expected to result, even if Mrs Scott undertakes reasonable treatment.   Mrs Scott would not be able to work at least 15 hours per week.   She “may” be able to increase her capacity to a maximum of 10 hours per week paid or volunteer work which would contribute to her overall wellbeing and recovery should she engage in the recommended treatment within two years of the relevant period.

    ·The goal of the treatment ought not be paid employment.  Mrs Scott has not worked in paid employment for nine years and had had no employment for six years.

    ·Mrs Scott is unable to engage in work or training because of her mental health condition.

33. Even accepting Dr Pahuja’s opinion that Mrs Scott has not undertaken reasonable treatment for the condition, on her evidence significant functional improvement to a level enabling Mrs Scott to undertake work in the next two years is not expected to result, if she undertakes reasonable treatment.  That is, even accepting Dr Pahuja’s opinion, Mrs Scott’s condition is fully stabilised as defined in cl. 6(6)(b). 

34. The Tribunal does not accept the Applicant’s implicit claim that the Impairment Table requires greater or determinative weight to be given to the opinion of a consultant psychiatrist than to the opinion of a general practitioner in relation to appropriate treatment or stabilisation of a condition.     

35. The Tribunal does not accept the Applicant’s argument that Dr Pahuja’s opinions about the functional outcome of treatment was expressed in the context of Mrs Scott pursuing her itinerant lifestyle and therefore should not be taken into account for that reason.  Dr Pahuja’s opinions as distilled above were not so qualified. 

36. The Tribunal does not consider that Dr Pahuja accurately applied Table 5 of the Impairment Tables to the findings she made about the functional impact of Mrs Scott’s condition. In the Tribunal’s opinion, the functional impacts Dr Pahuja identified satisfy the criteria for 20 points, taking into account the examples given in that Table.  The criteria for 20 points is attached. In making the following findings, the Tribunal has taken into account the criteria for 10 points but finds that the impairment satisfies the 20 points criteria.  

37. The Tribunal finds that requiring her husband to be present in order to live independently and maintain adequate nutrition, satisfies criterion (a).

38. Rarely going out alone and not being involved in social events satisfies criterion (b).

39. Being completely isolated and having difficulty sustaining relationships with two of her children, satisfies criterion (c).

40. Mrs Scott’s reported difficulty to concentrate on prolonged tasks does not satisfy criterion (d). 

41. Mrs Scott does not engage with any demanding situation, being unable to cope with stress or pressure, experiencing outbursts, significant social withdrawal and depressed mood and reported limited activity in the day spending most of the time in bed. Such impact satisfies criterion (e).

42. Mrs Scott is unable to engage in work or training which satisfies criterion (f).

43. Mrs Scott has severe difficulties with five out of six, or most of the criteria based on Dr Pahuja’s findings on functional impact, and therefore satisfies the criteria for 20 points impairment. Mrs Scott’s impairment is severe pursuant to s 94(3B).

44. Based on Dr Pahuja’s evidence, which is reinforced by Dr Miller’s evidence, Mrs Scott’s impairment is of itself sufficient to prevent her from doing any work independently of a program of support within the next two years and that impairment is of itself sufficient to prevent her from undertaking training activity during the next two years.

45. Mrs Scott satisfies s 94(1)(a), (b) and (c) of the Act.

    Decision

46. The Tribunal affirms the decision of the Social Services & Child Support Division of this Tribunal dated 3 September 2015 which set aside a decision rejecting the application Mrs Scott made for disability support pension (DSP) and sent the matter back for reconsideration with the directions that Mrs Scott satisfies ss 94(1)(a), (b) and (c) of the Social Security Act 1991.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member.

...................................[sgd].....................................

Associate

Dated: 19 April 2017

Date(s) of hearing:	2 December 2016
Solicitor for the Applicant:	T Hillyard, Department of Human Services
Solicitors for the Respondent:	C Eagle, Welfare Rights & Advocacy Service

(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).

7 Information that must be taken into account in applying the

Tables

(1) Subject to subsection (2), in applying the Tables the following information must be taken into account:

(a)the information provided by the health professionals specified in the relevant Table; and

(b)any additional medical or work capacity information that may be available; and

20	There is a severe functional impact on activities involving mental health function.
(D	The person has severe difficulties with most of the following:
(a)	seif 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.