Sproule and Secretary, Department of Social Services (Social services second review)

[2017] AATA 424

Sproule and Secretary, Department of Social Services (Social services second review) [2017] AATA 424 (6 April 2017)

Division:GENERAL DIVISION

File Number(s):      2016/5087

Re:Danielle Sproule

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A F Cunningham

Date:6 April 2017

Place:Hobart

Tribunal affirms the decision under review.

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Senior Member A F Cunningham

Catchwords

SOCIAL SECURITY – cancellation of Disability Support Pension – qualification requirements – super ventricular tachycardia (SVT) condition – impairment rating of 20 points not satisfied – continuing inability to work provisions not satisfied – decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975, s 37
Social Security Act 1991, s 94

Secondary Materials

REASONS FOR DECISION

Senior Member A F Cunningham

6 April 2017

1. The applicant, Danielle Sproule, seeks the review of a decision of the Social Services and Child Support Division of the AAT (first-tier review) dated 15 September 2016, which affirmed a decision of Centrelink to cancel her Disability Support Pension (DSP).

2. The applicant was granted DSP in 2008 for a mental health condition. A review was subsequently undertaken and Centrelink decided to cancel the applicant’s DSP on 22 March 2016. This decision was affirmed by an Authorised Review Officer (ARO) on 31 May 2016 on the basis that the applicant did not meet the qualification requirements.

3. The applicant represented herself at the hearing and tendered a number of additional documents, namely:

   ·A report from the Faculty of Health, University Psychology Clinic, University of Tasmania Dated 28 November 2016;

   ·Medical Notes from the Liverpool Health Service, New South Wales;

   ·A letter from Emma Jackson provisional psychologist and Dr Ian Montgomery clinical supervisor, Faculty of Health, University Psychology Clinic, University of Tasmania dated 7 February 2017;

   ·Medical reports from Dr Poxon dated 31 October 2016 and 1 November 2016;

   ·Statement from the applicant dated 10 January 2017; and

   ·Registration details for Dr Mark Richard Cross.

4. Mr Sparkes appeared on behalf of the Secretary and tendered the T documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

5. Following the conclusion of the evidence, the applicant advised that she wished to submit further medical evidence. However the applicant subsequently advised that she was unable to obtain the information and no application to reopen the case was made. The Tribunal accordingly proceeds to determine her application for review on the basis of the evidence submitted.

   ISSUES

6. The issue for the Tribunal to determine is whether the decision to cancel the applicant’s DSP on the basis that she no longer met the qualification requirements was correct. This involves a consideration of the following issues:

   ·Whether the applicant has a physical, intellectual or psychiatric impairment;

   ·Whether the condition(s) is permanent in that it has been fully diagnosed, fully treated and fully stabilised and likely to persist for at least two years;

   ·Whether the condition(s) attract an impairment rating of at least 20 points under the Impairment Tables; and

   ·If so, whether the applicant has a continuing inability to work.

   LEGISLATION

7. The qualification requirements for DSP are contained in subsection 94(1)(a), (b), (c), (d), (e) and (ea) of the Social Security Act 1991 (the Act). The provisions provide as follows:

   “(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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

   (d)the person has turned 16; and

   (da)     in a case where the following apply:

   (i)the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;

   (ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market;

   (iii)if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; 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; and

   (ea)one of the following applies:

   (i)the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.”

   CONSIDERATION

8. The applicant’s treating doctor’s report dated 11 September 2015 lists the applicant’s conditions as unexplained abdominal pain, super ventricular tachycardia (SVT), ischaemic heart disease (IHD), non-insulin-dependent diabetes, DUB and anxiety. The conditions of IHD, non-insulin-dependent diabetes and DUB are reported to be generally well-managed and causing minimal or limited impact on ability to function. Dr Poxon states that the applicant’s anxiety condition, which is concerned with her health, is currently being treated.

9. In a report from Dr Poxon dated 29 March 2016, he lists a number of medical conditions under “current problems”, and states that the applicant’s irritable bowel syndrome is poorly controlled and gives daily pain and unpredictable bowel motions, which makes regular employment very difficult.

10. The Tribunal was advised that in late 2016 the applicant had made a claim for DSP on the basis of her intellectual disability condition. In support of her claim, she submitted a copy of the psychological report prepared by the University of Tasmania psychology clinic dated 28 November 2016.[1] The claim was successful and the applicant is currently in receipt of DSP on the basis of her intellectual disability condition.

    [1] Exhibit A1.

11. At the hearing before the Tribunal, the applicant contended that there is evidence that her intellectual disability has been long-standing, and was present at the time of cancellation of her DSP on 22 March 2016. The applicant referred to a letter jointly signed by Emma Jackson, provisional psychologist and Dr Ian Montgomery, clinical supervisor with the University of Tasmania psychology clinic dated 7 February 2016,[2] which states the following:

    “Based on information available to me, it would appear that Danielle’s intellectual disability was not caused by illness, disease, or a traumatic brain injury.

    Given Danielle’s long-standing history of intellectual disability is associated with academic learning and her familiar links to learning deficits, it is highly likely that Danielle’s intellectual disability is congenital.…”

    [2] Exhibit A3.

12. The applicant also relies on the 2008 medical notes from the Liverpool Health Service. In the Summary of Care regarding a hospital admission in 2007 the notes record “The diagnosis was borderline personality disorder” under the heading “Diagnosis.. Emotionally unstable personality disorder, borderline type. Previous long term psychiatric diagnosis: Emotionally unstable personality disorder, borderline type”. In the Summary of Care for 10/10/2008 the notes state: “The diagnosis was borderline personality disorder. Pt got settled in the ward. Dr. Mark Cross looked after the Pt”.

13. In response, Mr Sparkes contended that whilst there is now some evidence that the applicant’s intellectual disability condition may have been present at the date of cancellation, there was no medical evidence provided at that time to confirm the presence of the applicant’s condition. Accordingly it was not assessed by the respondent in its consideration of the applicant’s qualification for DSP.

14. The medical evidence relied upon by the respondent was the report dated 11 September 2015 completed by the applicant’s treating doctor, Dr Poxon. Whilst Dr Poxon included the applicant’s depression/anxiety as a diagnosed condition, no reference was made to her intellectual disability condition. In a medical report completed by Dr Sougata Das on 31 July 2008, there is no reference to the applicant's intellectual disability condition.[3] The only diagnosed condition referred to is “emotionally unstable and affective instability” with a noted impact on ability to function for between 3-24 months. Dr Das goes on to state “Danielle is a high functioning woman with a good employment history. She has had recent stressors in life, which has impacted her coping abilities. She has frequent mood swings and resulting emotional instability”.

    [3] T5 at pages 21-28 of the T documents.

15. An Employment Services Assessment Report submitted on 20/08/2015[4] records the applicant’s medical condition of “Psychol/Psychiatric Disorder” as permanent. Past treatment included medication, psychiatric interventions and hospital admissions. The report lists current treatment as “medication (endep) and counselling”. The client reported the impacts of the condition as variable but being reasonably well managed and that she is able to consider returning to study. The applicant’s other conditions assessed were a gynaecological disorder and an anxiety disorder.

    [4] T8 at pages 32-34 of the T documents.

16. The conditions assessed in the Job Capacity Assessment Report submitted on 14/12/2015 were “chronic pain, circulatory system (vasculitis), ischaemic heart disease, diabetes – non insulin dependent, psychol/psychiatric disorder, hernia, rectal disorder, asthma and migraine”.[5] The only condition which was accepted as being permanent (that is fully diagnosed, fully treated and fully stabilised) was the applicant’s circulatory system-SVT, for which the assessor recommended an impairment rating of five points. With respect to the applicant’s psycho/psychiatric disorder, the assessor noted that there was no confirmed diagnosis by a clinical psychologist or psychiatrist and that Dr Poxon had advised that the condition has a minimal/limited impact on the client’s ability to function.

    [5] T12 at pages 52-62 of the T documents.

17. The Tribunal accepts the findings of the Job Capacity Assessor and no evidence to the contrary was submitted at the hearing. Although the applicant advised following the hearing that she hoped to submit further evidence in support of her intellectual disability condition, none was provided and there is no evidence of a diagnosis from a relevantly qualified medical practitioner at the time of cancellation of her DSP. The only evidence of a diagnosis from a medically qualified practitioner is contained in the report from the University of Tasmania psychology clinic dated 28 November 2016, which postdates the date of the cancellation of DSP. Whilst the applicant maintained that a medical diagnosis had been made by psychiatrist Dr Mark Cross in 2008, the only diagnosis referred to in the medical notes from the Liverpool Health Service is borderline personality disorder.

18. It was the assessment of the Job Capacity Assessor that the applicant’s capacity for work within two years with intervention was between 15 and 22 hours per week. The Tribunal accepts this finding, there being no evidence to the contrary, and accordingly finds that the applicant also fails to meet the continuing inability to work requirements under subsection 94(2) of the Act, that her impairment prevents her from working for at least 15 hours a week (or being retrained to do so).

    DECISION

19. The findings of the Tribunal are that at the date of the decision to cancel the applicant’s DSP, she failed to meet the qualification requirements of a 20 point impairment rating under the relevant Impairment Tables and the continuing inability to work requirements. For these reasons the Tribunal affirms the decision under review.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A F Cunningham

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Associate

Dated: 6 April 2017

Date(s) of hearing:	24 February 2017
Applicant:	In person
Counsel for the Respondent:	Mr Brian Sparkes