Shannon Francis and Secretary, Department of Social Services
[2014] AATA 183
[2014] AATA 183
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5598
Re
Shannon Francis
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 4 April 2014 Place Sydney The decision under review to refuse Ms Francis’ application for the DSP is affirmed.
........................[sgd]................................................
Deputy President RP Handley
Catchwords
SOCIAL SECURITY – disability support pension – eligibility - impairment tables – whether 20 impairment points could be assigned under one or more tables – whether conditions were fully diagnosed, treated and stabilised – conditions not fully treated, diagnosed and stabilised at the date of claim or the 13 weeks following – decision affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) sch 2 cl 4
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President RP Handley
Ms Francis has applied to the Tribunal for a review of a decision of the Social Security Appeals Tribunal (SSAT) to affirm a decision to refuse Ms Francis’ application for the Disability Support Pension (DSP).
BACKGROUND
Ms Francis is aged 38. She is single, her marriage having ended in about 2001. She last worked in about 2004 and is currently receiving Newstart Allowance.
On 24 February 2012, Ms Francis lodged a claim for the DSP. In the accompanying Treating Doctor’s Report dated 27 February 2012, her then General Practitioner (GP), Dr Choe F Chan diagnosed Ms Francis as suffering from “Deep Depression”, listing the symptoms as anxiety with panic attacks, agoraphobia, insomnia, poor concentration and substance abuse. Dr Chan said Ms Francis was being treated with antidepressants and counselling. She said the impact of this condition on Ms Francis’s ability to function was expected to persist for more than 24 months and the prognosis within the next two years was uncertain. Dr Chan noted that Ms Francis also suffers from bronchial asthma that is treated with aerosols and is generally well-managed, causing minimal or limited impact on her ability to function.
On 14 May 2012, a Job Capacity Assessment (JCA) was undertaken by Centrelink. This found that Ms Francis’s depression was not fully diagnosed, treated or stabilised as at the date of claim or within 13 weeks thereafter. Her asthma, while diagnosed, was not fully treated or stabilised. She was found to have a temporary work capacity of 8 to 14 hours per week to enable her to manage her current condition and for her to pursue treatment options, and a baseline work capacity of 15 - 22 hours per week which, with intervention, could increase to between 23 and 29 hours per week within two years.
On 15 May 2012, Centrelink rejected Ms Francis’s claim on the basis that her conditions were not fully treated and stabilised, and that she had a capacity to work of over 15 hours per week. This decision was affirmed by an Authorised Review Officer on 24 July 2012 and by the SSAT on 9 November 2012. The SSAT found that Ms Francis’ depression was not fully diagnosed and could not therefore be assigned an impairment rating. It also concluded that Ms Francis’ asthma was not fully treated and fully stabilised. On 13 December 2012, Ms Francis applied to the Tribunal for a review of the SSAT decision.
On 30 May 2013, after applying to the Tribunal for a review, Ms Francis made a new claim for the DSP. A Treating Doctor’s Report dated 25 June 2013 was subsequently provided by Dr Elizabeth Hindmarsh, Ms Francis’ GP since 16 October 2012. Dr Hindmarsh dated the onset of Ms Francis’ anxiety/depression to 2004 and her asthma to 1995. Dr Hindmarsh also noted that Ms Francis is currently overweight and has a vitamin D deficiency. Dr Hindmarsh made no comment on the impact of asthma, of being overweight and of the vitamin D deficiency on Mr Francis’ ability to function. She said Ms Francis has been seeing a clinical psychologist in respect of her depression/anxiety since February 2013 but still gets anxious and depressed, becomes very isolated, and self-medicates with alcohol. In terms of the impact on her ability to function, Dr Hindmarsh said the condition makes it difficult for Ms Francis to leave the house, and for her to concentrate. It affects her interpersonal relationships. The impact, according to Dr Hindmarsh, is expected to last more than 24 months and the prognosis is uncertain. However, Dr Hindmarsh said Ms Francis is seeing a dietician, starting back on an exercise program and trying to improve her condition.
A Treating Doctor’s Report dated 28 June 2013 was also provided by Dr Chai-Heng Nge, clinical psychologist, who has been treating Ms Francis since 21 March 2013. Dr Nge’s stated diagnosis is “Major Depressive Episode” with a date of onset of 2006. Dr Nge said Ms Francis is taking Zoloft for her depression and he is treating her with Cognitive Behaviour Therapy (CBT). He stated the following impacts of her depression on her ability to function: “cognitive deficits – poor concentration, memory problem, inability to make decision and problem solving – lack of cognitive flexibility, slowed motor movement”. He said the impact was expected to persist for more than 24 months but improve within the next two years.
Centrelink has also undertaken two further JCAs in respect of Ms Francis, dated 24 July 2013 and 18 March 2014. The later JCA Report notes that at the date of Ms Francis’ DSP claim (28 February 2012), her depression had not been diagnosed by either a psychiatrist or a clinical psychologist as required by the Guidelines for the relevant Impairment Table. The Report states that Ms Francis’ asthma is permanent, and fully diagnosed and treated but, at the date of claim, it was stated by Ms Francis’ then GP, Dr Chan, to be expected to significantly improve. Thus, the condition is not considered to have been stabilised at that time. There is no reported impact on Ms Francis’ ability to function.
RELEVANT LAW AND ISSUES
The criteria an individual must meet in order to qualify for the DSP is specified in section 94 of the Social Security Act 1991 (Cth):
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 …
There is no dispute that Ms Francis suffers from physical and psychiatric impairments (s 94(1)(a)). However, at issue is whether her impairments can be assigned an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)). Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that this is to be assessed as at the date Ms Francis made the claim for the DSP or in the 13 week period following the claim. Ms Francis lodged her claim for the DSP on 24 February 2012. The relevant period, therefore, is 24 February 2012 to 23 May 2012.
The Impairment Tables, contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the 2011 Determination) provide a framework for the assignment of impairment points to specific conditions. The Tables specify effects on the mobility of a person and their everyday life that the decision-maker must consider in determining the level of impairment.
The Impairment Tables contain rules for applying the Tables. Paragraph 5 states:
5 Purpose and design of the Tables
(1) In applying the Tables, regard must be had to the principles set out in subsections (2) and (3).
Purpose and general design principles
(2) The Tables:
(a) unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b) are function based rather than diagnosis based; and
(c) describe functional activities, abilities, symptoms and limitations; and
(d) are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Note: impairment is defined in section 3 to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
Scaling system and descriptors
(3) In the Tables:
(a) subject to section 11, where a descriptor applies in relation to an impairment, an impairment rating can be assigned to that impairment; and
Note: For impairment rating and descriptor see section 3.
(b) the first line of each descriptor, which is formatted in italics, describes the level of impact of the impairment to be identified by reference to the particular examples of functional activities, abilities, symptoms and limitations contained in the numbered paragraphs below it, if any; and
(c) the introduction to each Table sets out further rules with which to apply the Tables and rate an impairment.
Paragraph 6 states relevantly:
6. Applying the Tables
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see section 7.
The ‘Rules for applying the Impairment Tables’ set out in the 2011 Determination state in paragraph 6(3) that an impairment rating can only be assigned to an impairment caused by a condition that is ‘permanent’ and the resulting impairment is more likely than not, in the light of available evidence to persist for more than two years. Paragraph 6(4) states that a condition is ‘permanent’ if it is fully diagnosed by an appropriately qualified medical practitioner and if the condition is fully treated and fully stabilised.
In these proceedings, what is at issue is whether Mr Francis’ depression and asthma were fully treated and fully stabilised at the date of claim or during the 13 weeks thereafter.
Subparagraph 6(5) of the Rules details what is to be considered in determining whether a condition was fully treated.
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.
The test of fully stabilised is elaborated in subparagraph 6:
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.
If the Tribunal is satisfied that Ms Francis’ depression and asthma were fully treated and stabilised, it can proceed to assign an impairment rating to both conditions. Paragraph 6(1) of the rules states that impairment must be assessed on the basis of the functional capacity of the person. The Tribunal must look at, among other things, what a person can and cannot do. Paragraph 10 of the Rules details how the Tribunal is to approach the process of assigning an impairment rating:
10 Selecting the applicable Table and assessing impairments
Selection steps
(1) Table selection is to be made by applying the following steps:
(a) identify the loss of function; then
(b) refer to the Table related to the function affected; then
(c) identify the correct impairment rating.
(2) The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
The relevant Tables to the assessment of Ms Francis’ impairment are Table 5, which concerns ‘Mental Health Function’, and Table 1, concerning functions that require ‘Physical Exertion and Stamina’.
If, using the relevant Tables, the Tribunal decides that Ms Francis’ depression and asthma conditions do not warrant a combined impairment rating of more than 20 points, Ms Francis does not qualify for the DSP because of s 94(1)(b). If, however, the Tribunal decides that her impairments do warrant a combined rating of more than twenty points, it must proceed to consider whether Ms Francis has a continuing inability to work pursuant to s 94(1)(c)(i).
Section 94(2)(aa) provides that where an individual does not suffer from a ‘severe impairment’ (defined in s 94(3B) as where 20 points or more are assigned under a single Impairment Table), they must have actively participated in a program of support in order to satisfy the criterion of continuing inability to work. It is accepted that Ms Francis participated in a program of support for the requisite period prior to the date of her claim. Section 94(2) also sets out other requirements that must be satisfied in order to determine whether an individual has a continuing inability to work. The Tribunal must consider whether:
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Section 94(5) defines ‘work’ as meaning work that is for at least 15 hours a week.
MS FRANCIS’ EVIDENCE
Ms Francis attended the hearing with her mother, Mrs Francis, with both of whom I spoke at some length. Ms Francis said she has suffered from asthma since a young age which is treated with the use of a preventive medication delivered via a puffer and by Ventolin. If she takes her medication, her asthma is well-controlled.
Ms Francis said she has suffered from depression for many years. Mrs Francis said her daughter has suffered from depression since she was a child. Ms Francis said she has been taking Zoloft prescribed by her GP for about 10 years. Zoloft “takes the edge off – makes it a little easier to deal with things”. She said she has seen counsellors in the past. For example, the Liverpool Mental Health Service referred her to two different counsellors. She has not, it appears, seen a psychiatrist.
Mrs Francis said her daughter’s condition has deteriorated over the past 12 to 18 months and has become a lot worse over the past six weeks. Ms Francis has been treated by a clinical psychologist, Dr Nge, since being referred to him in February 2013. She said that she usually sees him every two weeks but has not seen him for the past month. Mrs Francis said when she last took her daughter to see Dr Nge, her daughter would not get out of the car and Dr Nge had to come to the car to speak with her. Dr Nge is treating Ms Francis with CBT but she said this is not helping her. He has suggested she should try a different medication.
Ms Francis said she shares a house with her father. She does not have a routine – every day is different. Usually, she does not do anything – she just sits in her bedroom. Sometimes, she feels well enough to drive the five minutes to her mother’s house. Her mother does her shopping. Mrs Francis said she usually has to visit her daughter. Occasionally, she manages to take her daughter with her to do a little shopping or she accompanies her daughter for her medical appointments or to Centrelink. Going to Centrelink is a big effort for her daughter. Ms Francis said she feels socially isolated and has lost contact with all her friends. She sees her sisters sometimes when they come to visit her or if they are at her mother’s house.
Mrs Francis said, at the time her daughter made her original claim in February 2012, her daughter was going to the Centrelink office in Liverpool. For the past year, she has attended the smaller, quieter Centrelink office in Ingleburn. Ms Francis said the people at Centrelink do not believe her and try to force her to do things of which she is not capable. Having to deal with Centrelink has become part of the problem and has made her condition worse. She did see a social worker at the Ingleburn office late last year who said she would get back to her but never did.
Mrs Francis said her daughter has still not heard the outcome of the authorised review officer’s review of the decision to refuse her May 2013 claim for the DSP. They spoke with the officer at Ingleburn late last year but have still not been informed of her decision.
It was clear from my discussion with Ms Francis and her mother that they are extremely frustrated by Ms Francis’ contact with Centrelink and with what appears to me to be a lack of support.
DISCUSSION
As stated above, there is no dispute that Ms Francis suffers from physical and psychiatric impairments thereby satisfying s 94(1(a) of the Act. At issue is whether she satisfied s 94(1)(b) – whether her impairments can be assigned an impairment rating of 20 points or more under the Impairment Tables.
The relevant table in respect of Ms Francis’ asthma is Table 1, which is applied in respect of functions that require physical exertion and stamina. However, I note that Ms Francis did not mention asthma in her original claim. Her GP, Dr Chan said in his treating doctor’s report dated 27 February 2012 that Ms Francis suffers from bronchial asthma, that this was expected to improve significantly and, in terms of impact on her ability to function, she should “Avoid smoke/dust”. Asthma is mentioned by her current GP, Dr Hindmarsh, in her report dated 25 June 2013, but she makes no mention of any impact on Ms Francis’ ability to function. I am not satisfied from the available evidence that there is any significant functional impact on activities requiring physical exertion or stamina and therefore conclude that a nil impairment rating is appropriate for this condition.
With regard to Ms Francis’ depression, at the time of her claim and in the 13 weeks thereafter, there was no evidence from either a psychiatrist or a clinical psychologist to support the diagnosis of “Deep Depression” made by Ms Francis’ GP, Dr Chan in his report dated 27 February 2012. The Introduction to Table 5 – Mental Health Function, states:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
Dr Chan listed the relevant symptoms as anxiety with panic attacks, agoraphobia, insomnia, poor concentration and substance abuse. He said she was being treated with antidepressants and counselling. It is unclear what counselling he was referring to, although Ms Francis said she had been referred to counselling by the Liverpool Area Mental Health Service. She also said she has been taking Zoloft for many years. Dr Chan said the condition was likely to persist for more than 24 months and the prognosis was uncertain.
In my view, in the absence of further evidence, it was reasonable for the Centrelink decision-maker to conclude that Ms Francis’ depression was not fully diagnosed, fully treated and fully stabilised as required by the Tables. More than a year after the original claim, and as a result of a second DSP claim, there is medical evidence from a clinical psychologist, Dr Nge, confirming a diagnosis of depression but, in my view, given Ms Francis’ history of her condition and its effect, and in view of the fact that Ms Francis states Dr Nge has told her she should try a different medication, there is a strong case for Ms Francis to have a full psychiatric assessment.
I am not satisfied on the basis of the evidence available at the time of the claim and in the period immediately thereafter that Ms Francis’ depression was fully diagnosed, fully treated and fully stabilised. An impairment rating cannot, therefore, be attributed to that condition and Ms Francis does not satisfy the requirement set out in s 94(1)(b) of the Act. Thus, she was not qualified for the DSP at the time of her original claim on 24 February 2012 and in the 13 week period ending on 23 May 2012.
I asked Mr Misrachi, who represented the Respondent at the hearing, to contact the Centrelink office at Ingleburn and ask that the ARO’s decision on the review of the decision to refuse Ms Francis’ May 2013 claim for DSP should be communicated to Ms Francis, who was unaware of any decision having been made. I explained that the ARO’s decision letter would inform Ms Francis of her right to seek a review by the SSAT, and I explained that any further appeal to the Administrative Appeals Tribunal (AAT) could only be made once the SSAT had finalised its decision. This is the process dictated by the Act and the AAT is without jurisdiction unless all prior steps have been completed.
I also asked Mr Misrachi to contact the Centrelink office at Ingleburn and ask that Ms Francis receive appropriate support from a Centrelink social worker. Ms Francis’ and her mother’s evidence indicates that such support has not been forthcoming in the past or has been inadequate and there has been a lack of understanding of Ms Francis’ condition and how this affects her.
I suggested to Ms Francis that she should contact the local area Mental Health Service to ask for their support and for a psychiatric assessment by a Health Service psychiatrist. While Ms Francis has been seeing a clinical psychologist since 21 March 2013 according to Dr Nge, there appears to have been no recent psychiatric assessment. The Department may also itself wish to consider arranging for a psychiatric assessment.
Notwithstanding the present lack of a psychiatric assessment, such evidence as is available indicates that Ms Francis’ depression is a long standing medical condition. Ms Francis’ current treating doctor, Dr Hindmarsh states in her report dated 25 June 2013 that Ms Francis, her patient since 16 April 2013, has suffered from “Anxiety/Depression” since 2004. In his report dated 28 June 2013, Clinical Psychologist, Dr Nge diagnosed “Major Depressive Episode” with a date of onset of 2006. If Ms Francis has been treated for depression for a period of at least 10 years, as she claims, there is all the more reason that there should be a proper psychiatric assessment.
In view of my finding that Ms Francis does not satisfy s 94(1)(b), it is unnecessary for me to consider the further issue of whether Ms Francis had a continuing inability to work (s 94(1)(c)). I note, however, Centrelink records show Ms Francis participated in a program of support for more than 18 months before the date on which she claimed DSP and would therefore satisfy s 94(2)(aa) of the Act.
DECISION
The decision under review to refuse Ms Francis’ application for the DSP is affirmed.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley ...........................[sgd].............................................
Associate
Dated 4 April 2014
Date(s) of hearing 31 March 2014 Date final submissions received 31 March 2014 Applicant In person Advocate for the Respondent S Misrachi, Department of Human Services.
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