Stanton and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1153

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1153

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/1581

GENERAL ADMINISTRATIVE DIVISION		)
Re		CAROLINE STANTON

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N. Isenberg, Senior Member

Dr J. Campbell, Member

Date22 March 2007

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Ms Stanton had, at the date of application, an entitlement to the disability support pension.

……..……...[sgd]...................

N. Isenberg,
  Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – consideration of evidence, legislation, schedules and case law – the decision under review is set aside

LEGISLATION

Social Security Act 1991 – sections 94; Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2

CASE LAW

Hudson and Department of Family and Community Services [2000] AATA 502

Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517

REASONS FOR DECISION

22 March 2007 Ms N Isenberg, Senior Member and Dr J Campbell, Member

DECISION UNDER REVIEW

1.      Ms Stanton’s claim for disability support pension (“DSP”), made on 22 July 2005, was rejected by Centrelink on 24 August 2005.  While Centrelink, on behalf of the Secretary of the Department of Employment and Workplace Relations, agreed that she suffers from a psychiatric condition, Centrelink did not agree that her impairment attracts the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (“the Act”).  Nor did Centrelink agree that she meets the other requirement of eligibility for DSP, that is, a ‘continuing inability to work’. These requirements are set out in section 94 of the Act and are as follows:

94  Qualification for disability support pension

94(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.

…

94(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.

BACKGROUND

2.      Ms Stanton last worked ten years ago and currently receives Newstart Allowance.

3.      On 28 July 2005 Ms Stanton lodged a claim for DSP.  In support of her claim, Ms Stanton’s treating doctor, Dr Muthukrishnan, diagnosed Ms Stanton as suffering from depression and anxiety. 

4.      On 22 August 2005 Alison Baimon of Advanced Personnel Management completed a work capacity assessment on Ms Stanton.  Ms Baimon assessed that Ms Stanton’s depression and anxiety was temporary because she has not yet received optimal treatment for her condition.  As a result, on 24 August 2005 Centrelink decided to reject Ms Stanton’s claim for DSP on the basis that her medical problems were temporary. 

5.      On 19 October 2005 an authorised review officer accepted that Ms Stanton’s problems were permanent but considered the combined impairment rating for depression and anxiety was ten points.  Therefore the original decision to reject Ms Stanton’s claim for DSP was affirmed.  That decision was also affirmed by the Social Security Appeals Tribunal (“SSAT”) but it was decided the following impairment ratings were appropriate:

·Ten points for depression and anxiety under Table 6

·Five points for alcohol and drug dependence under Table 7  

6.      Ms Stanton contends she suffers from a permanent condition of chronic residual schizophrenia, as diagnosed by Dr Dinnen, and not from depression and anxiety.  As a result of her condition she is unable to work.

ISSUE(S) BEFORE THE TRIBUNAL

7.      The issues to be determined are:

a)Does Ms Stanton have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,

b)Does she have a continuing inability to work due to her impairment because:

·     the impairment of itself prevents her from doing any work for at least 30 hours per week at award wages within the next two years; and EITHER

·     the impairment of itself is sufficient to prevent her from undertaking educational or vocational training or on the job training during the next two years; OR

·     such training is unlikely (because of the impairment) to enable her to do any work for at least 30 hours per week at award wages within the next two years.

CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP

8. Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, we had to consider if Ms Stanton was entitled to the DSP by 21 October 2005.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

9.      In coming to the correct and preferable decision, we took into account all the evidence, submissions, case law and relevant legislation.

Did Ms Stanton by 21 October 2005 have a physical, intellectual or psychiatric impairment of 20 points or more?

10.     Ms Stanton gave evidence of ‘doing weird things’ in Brisbane in 1980 which resulted in her being admitted to a psychiatric ward for 3 months.  She was prescribed medication, which she continued to take for about a year.  She did not know what the diagnosis of her condition. 

11.     At about that time she would drink up to a whole bottle of scotch, once a month.  She drank spirits, whenever she could.  By 1992 she was drinking scotch and coke every couple of days, and would drink whatever quantity was available.  By the time she lodged her claim she was drinking ‘heaps’ – 3-4 drinks, but has since cut down to drinking only on Sundays.  She also uses marijuana daily and has in the past used LSD, including preceding her admission to hospital in 1980.

12.     In 1996 she received grief and relationship counselling.  In 2003 she commenced consulting Dr Muthukrishnan as her GP.  He has prescribed sleeping tablets and anti-depressants and provided counselling. 

13.     She also calls Lifeline about twice a week.  She said she might call Lifeline:

“when I’m feeling really bad and really low and I feel like I just want to take my life and it’s not worth living and I might as well just get off this planet and then nobody worries about me. I don’t have to worry about anything else.”

14.     She also telephones her friends, even through the night and they ‘usually lift [my] spirits’.  They have given her a mobile because she won’t answer her home phone.

15.     She said that she had been encouraged by her friends to lodge a claim for DSP because:

“I was being sad all the time. I had strange thoughts. I was thinking – actually, I was thinking – actually, I was thinking a lot of my friends were turning against me as well, and I just put that down to a bit of paranoia thinking, you know, like – say, I would go somewhere, I would think well, that people were talking about me.”

16.     She said she prefers living on her own.  She described locking up the house and feeling there was someone outside.  She keeps a hockey stick next to where she sits and a baseball bat next to the bed.  She thinks people are talking about her at the shops and has abandoned her trolley many times.  She goes to the ladies and splashes herself with water to calm down.  She hears voices about once month and feels threatened.  She sees herself as a ‘big fat ugly person’.  She told us of failed personal relationships and her grief when her father died.  She described herself as ‘cranky with the world’.

17.     At home she keeps the kitchen ‘pretty clean’ because of her fear of a recurrence of food poisoning.  In relation to the bathroom, however, she ‘can’t be bothered’.

18.     In relation to employment she told us about a job she had left following some harassment.  She walked out after threatening another employee with a knife.  Another job ended because of perceived discrimination, while another ended when she ‘had a bad experience’ with one of the nurses.  She did not proceed with work with the elderly or sick for which she had trained because she thought it might frustrate her.

Medical evidence

19.     It was conceded by the Department that Ms Stanton has a ‘psychological condition’.  We took that to mean a ‘psychiatric’ condition, given that the Department accepted that her condition is depression and anxiety or, following Dr Lovric’s report of 21 June 2006, dysthymic disorder.

There was much evidence directed at precisely defining the condition: depression and anxiety, dysthymic disorder or chronic residual schizophrenia.  We took the view however that the precise ‘label’ of her condition was immaterial, once the full extent of her symptoms was canvassed: see Hudson and Department of Family and Community Services [2000] AATA 502.

20.     Our consideration therefore focused on the symptomatology.

21.     In a treating doctor’s report dated 22 July 2005, Dr Muthukrishnan, General Practitioner, said that Ms Stanton suffered anxiety and depression, and noted that she was sleepless, with poor energy and motivation, a lack of enthusiasm for life and panic and mood swings, and an inability to socialise or interact with people.  He noted that her condition is complicated by indulgence in alcohol & marijuana.

22.     Dr Dinnen, consultant psychiatrist provided reports dated 21 July 2006 and 17 August 2006.  In his first report, Dr Dinnen diagnosed residual type of schizophrenia and considered Ms Stanton’s condition to be chronic, well established, and the major cause of the interference with her ability to function.  He wrote of her compulsive habit of picking fluff from the carpet, and her hearing people calling her name.  She told him of hearing noises outside and going to look.  She told him she feels someone is going to ‘come and get her’.  She has a baseball next to the bed because she is afraid at night.  She told him that about two years ago she had attempted suicide.  In summary, he noted her delusions, hallucinations, and disorganised speech.

23.     Dr Dinnen gave evidence that he considered the first episode, in 1980, was a major psychotic breakdown.  Since that time there had been ‘no area of full social competence’.  He attributed her vagueness and delusional tendencies, hallucinations and thought disorder to schizophrenia rather than chronic cannabis dependence.

24.     Ms Stanton was examined by Dr Lovric, consultant psychiatrist, at the Department’s request.  It was submitted that Dr Lovric’s report was to be preferred because her opinion was consistent with that of Ms Stanton’s treating doctor, Dr Muthukrishnan who diagnosed depression and anxiety in his reports.  This was not strictly accurate because Dr Lovric had diagnosed dysthymic disorder.

25.     Dr Lovric did not find Ms Stanton to be depressed at interview.  There was no evidence of psychosis or suicidal ideation.  Ms Stanton did not appear anxious or agitated.  In addition to her dysthymic disorder, Dr Lovric noted Ms Stanton’s anxiety symptoms occasionally when in supermarkets.  The doctor acknowledged that there were some sleep problems.  Dr Lovric told us that Ms Stanton did not provide a history of violence and anger in the workplace, nor did she give a history of self harm other than one suicide attempt.  She provided no history of interpersonal instability.  Dr Lovric conceded that, had Ms Stanton provided a more detailed history, she would have probed further.

26.     Ms Stanton had given evidence that she hides a lot of things from doctors because she is scared that they will ‘schedule’ her again.  She said her examination by Dr Lovric lasted only 20-25 minutes.  In fairness to Dr Lovric, if Ms Stanton did not tell her the full story, the doctor was never going to be in a position to fully assess her symptomatology.  We therefore prefer the more detailed evidence of Dr Dinnen.  While we too found Ms Stanton engaging, and with some humour, as Dr Lovric, we also found her evidence to be somewhat disjointed.

27.     The relevant parts of Table 6 provide as follows:

Rating  Criteria

TENModerate and regular symptoms and generally functioning with some difficulty. (eg. Noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work attendance and/or ability to work but the impairment would not prevent full-time work. (eg. Short periods of absence from work).

TWENTYPsychiatric illness or disorder with either a serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. Frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is a significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.”

28.     We consider that a rating of 20 is appropriate.  The descriptor for 10 points refers to the ‘beginnings of some interference with interpersonal or workplace relationships’.  In Ms Stanton’s case she has a long history of interpersonal problems, although she apparently has a small but very supportive circle of friends upon whom she relies for frequent emotional support.  She has had unsatisfactory relationships, the last ending in violence on her part, according to Dr Dinnen’s report.  The descriptor calls for ‘minor’ effects on work attendance whereas Ms Stanton has not worked for 10 years.  Her work has been troubled and her jobs have ended in anger and frustration.  Although she has worked in supermarkets, her anxiety (even as a customer) makes it unlikely that this work would prevent her from being sufficiently reliable to work full time.  There is also the likelihood of a confrontation with customers or other staff.

29.     A rating of 20, however, is appropriate where there is serious symptomatology.  We regard the evidence of hearing voices in her home such as to require her to continually have a potential weapon beside her, of itself, amounts to ‘serious symptomatology’.  In addition there is her suicidal ideation, her need for counseling about twice per week, her reluctance to answer the phone, her haphazard approach to housework, her continued use of drugs and regular excessive amounts of alcohol, her sleep problems, her compulsive behaviour, her anxious behaviour in supermarkets, the need for medication and her poor self-image.

30.     We did not consider it necessary to separately rate Ms Stanton’s drug/alcohol dependence under Table 6 as Dr Dinnen regarded the condition as co-morbid with her schizophrenia.  In any event, having come to the view that her condition to be assessed is more appropriately described merely as a ‘psychiatric condition’, this would encompass an alcohol and/or drug dependence.

31.     On balance, therefore, we consider that it is appropriate to allocate 20 impairment points in respect of her psychiatric condition under Table 6.

Does Ms Stanton have a continuing inability to work because of the impairment?

32.     We observe that in making our finding of 20 impairment points we have included remarks as to the impact of Ms Stanton’s psychiatric condition on her work ability.

33.     The Respondent contended though that the weight of evidence indicates that Ms Stanton does not have a continuing inability to work.  The Work Capacity Assessment report by Alison Baimon indicates that Ms Stanton has a capacity to work more than 30 hours per week within 24 months with educational training, vocational training or on the job training.  Dr Lovric also considered Ms Stanton would be capable of employment within the next two years.  We repeat our observations in relation to Dr Lovric not being aware of the whole of Ms Stanton’s symptomatology.  We note too that even Dr Lovric did not consider Ms Stanton’s lack of motivation for work to be malingering, but rather a symptom of her condition.

34.     We share Dr Dinnen’s opinion in his report of 21 July 2006 that it would be ‘nonsensical to suggest [Ms Stanton] could be rehabilitated to the work force’.

35.     In Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 (at 525), the Tribunal described the realities of the modern workplace and the need to consider the issue of work in its context:

"When considering the issue of work in this context, the tribunal is of the view that it is the ‘normal workplace’ against which a person's abilities are to be judged, not the workplace of the ‘benign employer’.”

36.     Given her job history, we do not consider any employer would be able to tolerate her anger and frustration, nor the possibility of confrontations with customers or other staff. Further, we accept, as Dr Dinnen opined, that her condition would prevent her from benefiting from retraining for work within the next two years.

37.     We therefore find that Ms Stanton was, at the relevant date, qualified for DSP because she has an impairment, which is properly rated at at least 20 points under the Impairment Tables.  We also find that because of the impairment, she has a continuing inability to undertake any work for at least 30 hours per week in the next two years.

DECISION

38.     The decision under review is set aside and in substitution therefor the Tribunal decides that Ms Stanton had, at the date of application for DSP, an impairment rated at 20 points and because of that impairment has a continuing inability to undertake any work for at least 30 hours per week in the next two years, and as a result, had an entitlement to the DSP at the date of her application.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER

Signed:   [sgd] Jun Lee
                   Associate

Date of Hearing  13 December 2006 and
  7 March 2007
Date of Decision  22 March 2007
Counsel for the Applicant  Elizabeth Wood

Representative for the Applicant  Anastasia Toliopoulos – Legal Aid Commission

Representative for the Respondent  Ken Bullock – Centrelink Legal Services Branch