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

[2018] AATA 413

Stewart and Secretary, Department of Social Services (Social services second review) [2018] AATA 413 (2 March 2018)

Division:GENERAL DIVISION

File Number:           2017/0240

Re:LENE STEWART

APPLICANT

AndSECRETARY, DEPARTMENT OF SOCIAL SERVICES

RESPONDENT

DECISION

Tribunal:Brigadier A G Warner, Member

Date:2 March 2018

Place:Perth

The decision under review is affirmed.

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

Brigadier A G Warner, Member

CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification period – whether Applicant’s conditions fully diagnosed, treated and stabilised – whether Applicant’s conditions attract 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2)
Social Security (Administration) Act 1999 (Cth) – Schedule 2 – Part 2 – cl 2 – cl 4(1) – cl 6(3)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

CASES

Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

SECONDARY MATERIALS

The Guide to Social Security Law  - Part 3.6.1 – Part 3.6.2

REASONS FOR DECISION

Brigadier A G Warner, Member

2 March 2018

INTRODUCTION

1. Ms Stewart seeks review of a reviewable decision of the Social Services & Child Support division of the Administrative Appeals Tribunal (AAT1) dated 15 December 2016 (T2/3) that affirmed a decision to reject her claim for Disability Support Pension (DSP) lodged on 13 May 2016 (T38/263).

2. The hearing was conducted on 11 October 2017 and Ms Stewart participated by telephone conference.

3. The Tribunal notes that Ms Stewart lodged a further DSP claim on 1 July 2016 which is not subject to review by the Tribunal at this time (T43).

   BACKGROUND

4. Ms Stewart was previously in receipt of DSP but it was cancelled on 27 May 2015 because she did not have an impairment rating of 20 points or more and did not have a continuing inability to work (T27/222-225).

5. On 13 May 2016, Ms Stewart lodged a claim for DSP (T38/263), and provided an Inpatient Discharge Report from Bentley Hospital dated 11 May 2016 in support of her application.

6. On 18 May 2016, Dr Greg Neate, senior medical practitioner in psychiatry, provided a psychiatric medical report noting diagnoses of     emotionally unstable personality disorder, opiate harmful use and previous dependence syndrome, and possible organic brain change following meningococcal meningitis and bacterial septicaemia (T39/293).

7. In his report, Dr Neate also noted that Ms Stewart had features of post-traumatic stress disorder following traumatic sexual assaults although he opined: “I do not believe these meet the full criteria for the disorder and are exacerbated by her changeable lifestyle” (T39/298).

8. On 1 July 2016, Ms Stewart provided a report from her general practitioner, Dr John Lutz dated 15 June 2016, which noted that she suffered from organic brain injury (a presumptive diagnosis), opiate dependence, and post-traumatic stress disorder (T40/300).

9. On 23 June 2016, Ms Stewart attended a face-to-face assessment with a Job Capacity Assessor (JCA) who subsequently produced a report on 23 June 2016 (T41/310). The JCA concluded that:

   (a)Ms Stewart’s personality disorder was fully diagnosed, but not fully treated and stabilised;

   (b)Ms Stewart’s drug dependence was fully diagnosed, but not fully treated and stabilised; and

   (c)Ms Stewart had capacity to work 23-29 hours per week within 2 years with intervention.

10. On 24 June 2016, a decision was made to reject Ms Stewart’s claim for DSP on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables (T42/316).  On 24 August 2016, an Authorised Review Officer (ARO) affirmed the decision to reject Ms Stewart’s claim for DSP (T45/349).

11. On 15 December 2016, the AAT1 at first review affirmed the decision under review (T2/3). The AAT1 found that Ms Stewart suffered from various mental health conditions that were not fully diagnosed, treated and stabilised and could not be rated under the Impairment Tables. In relation to Ms Stewart’s illicit drug use, the AAT1 found that the condition was fully diagnosed, but not fully treated or stabilised. In respect of the brain injury, the AAT1 found the condition was not fully diagnosed, treated and stabilised and could not be rated under the Impairment Tables.

12. On 14 January 2017, Ms Stewart lodged an Application for Review of Decision with this Tribunal (T1/1-2).

    ISSUE

13. The Tribunal must decide:

    (a)whether, as at the date of Ms Stewart’s claim for DSP (or within 13 weeks of that date), she had any physical, intellectual or psychiatric impairments;

    (b)if so, whether Ms Stewart’s impairment(s) attracted an impairment rating of at least 20 points under the Impairment Tables; and

    (c)if so, whether Ms Stewart had a continuing inability to work.

    LEGISLATION AND AUTHORITIES

14. The Respondent’s Statement of Issues, Facts and Contentions contains comprehensive details of the relevant legislation and case law (Exhibit 2, para 4).  The relevant legislation is contained in:

    (a)Social Security Act 1991 (the Act);

    (b)Social Security (Administration) Act 1999 (the Administration Act);

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

    (d)Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

15. Section 94 of the Act sets out that the first requirement for qualification for DSP is that a person has an impairment at the time they lodged their claim.

16. The second requirement for DSP is also in s 94 of the Act and provides that the person’s impairment or impairments, must rate 20 or more points against the Impairment Tables at the time they lodged their claim (s 94(1)(b) of the Act). The Impairment Tables are found in the Determination. To apply the Impairment Tables, the condition giving rise to the impairment must be considered permanent, and in the Determination the word “permanent” does not have its usual meaning. For the purposes of the Determination, for a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and be fully stabilised and likely to last for more than two years (cl 6(3) of the Determination).

17. To qualify for DSP, a person is required to have a “continuing inability to work” because of an impairment, pursuant to subs 94(1)(c) of the Act. The term “continuing inability to work” (CITW) is defined in s 94(2) of the Act. Relevantly, a person has a CITW if:

    (a)The person has a severe impairment OR has actively participated in a program of support (POS); and

    (b)The person’s impairment is of itself sufficient to prevent the person from doing any work independently of a POS or undertaking a training activity within the next two years.

18. Policy contained in the Guide to Social Security Law (the Guide) is also relevant.  The relevant policy should be followed unless there are cogent reasons to depart from its application.

19. The Administration Act provides that the start date for a qualified DSP claimant is the date of claim. This means that qualification and impairment ratings must be determined as at the date of claim. The only exception is where the person is not qualified on the date of claim but "will ... become qualified” and "becomes so qualified” within 13 weeks of lodging a claim, in which case the start date is the day they became qualified (Sch 2, Pt 2, cl 4(1) of the Administration Act).

20. The Tribunal has regard to the following cases relevant to the qualification period.  In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, the Tribunal is clear that an applicant’s qualification for DSP can only be considered within the qualification period, and should the applicant’s circumstances change then it would be appropriate for the applicant to lodge a fresh claim. Relevantly, the Tribunal states at [34]:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks).  Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.

21. Further, Gyles J of the Federal Court in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 stated at [1] “…the Applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

22. The Impairment Tables, found in the Determination, contain rules for their application - the Rules for Applying the Impairment Tables (the Rules) (Pt 2 of the Determination). The Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions (Pt 2, cl 2 of the Determination).

    EVIDENCE

23. The evidence before the Tribunal comprised:

    ·the “T Documents” (T1-T50, pp1-389) (Exhibit 1);

    ·the Secretary’s Statement of Issues, Facts and Contentions dated 15 August 2017 (Exhibit 2);

    ·treating doctor’s report by Dr Stefan Schutte dated 3 October 2017 (Exhibit 3);

    ·medical report by Dr S Schutte dated 2 October 2017 (Exhibit 4);

    ·medical report by Dr Vladimir Martyn dated 27 June 2017 (Exhibit 5);

    ·email from Elly Trotti dated 11 October 2017 with attached medical details (3 pages) (Exhibit 6);

    ·letter by Moushumi Johnson from Midwest CADS dated 13 September 2016 (Exhibit 7);

    ·medical report by Dr Philip Green dated 13 December 2016 (Exhibit 8);

    ·undated Statement by Chris Armstrong, Registered Psychologist (Exhibit 9); and

    ·the oral evidence of the Applicant.

    CONSIDERATION

    The qualification period

24. Ms Stewart lodged her claim for DSP on 13 May 2016 (T38). Therefore, the period for consideration of the qualification for DSP is 13 May 2016 to 12 August 2016 (the qualification period).

    Ms Stewart’s evidence

25. Ms Stewart gave her evidence by telephone conference and was supported by Ms Elly Trotti, Regional Community Social Worker.  The Tribunal thought Ms Stewart was an honest witness clearly struggling with her very difficult medical and personal circumstances.  At times during the hearing Ms Stewart became confused and emotional and the Tribunal attempted to afford her every opportunity to provide her information and make her submissions.

26. Ms Stewart told the Tribunal:

    ·She had no family support, rather her father sabotaged her relationship with her psychologist.

    ·The JCA had doctored her file to show incorrect information and bias so that the JCA could retain her own job.

    ·Her mental health fluctuated in clarity and certainty and she experienced episodes of sweeping memory loss which she had not declared to her treating team

    ·She accepted Dr Neate’s statement in relation to her past history of meningococcal meningitis bacterial septicaemia, that “she has not undergone formal neurological assessments” (T39/294), but said that she had undergone a string of other tests.

    ·In relation to her previous receipt of DSP, she seemed unclear as to the reasons for her qualification for DSP at that time and the reasons for its subsequent cancellation.  Since that cancellation she sees herself slipping through the cracks.

    ·Dr Green’s letter dated 13 December 2016 (Exhibit 8) counters the JCA conclusions detailed at Exhibit 2, paragraph 3.5.

    ·Her post traumatic stress disorder (PTSD) should have been taken into account in her assessment for DSP and Dr Neate’s opinion that he did “not believe that the condition met the full criteria for the disorder” (T39/298 and Exhibit 2, para 3.3) was wrong.

    ·The psychometric testing of her cognition mentioned in Dr Neate’s report (T39/298) was not conducted.

27. In her closing submissions, Ms Stewart told the Tribunal that the DSP process was unfair and that the system had failed her.  Although she had many hospital admissions, medical reports and certificates, she thought her application had failed because she did not have the benefit of legal and family support.  Ms Stewart said that she had been going around in circles for two years, and could not understand how her neighbour remained in receipt of DSP despite being less impaired in comparison to Ms Stewart.

    Does Ms Stewart suffer a physical, intellectual or psychiatric impairment - s 94(1)(a) of the Act?

28. The Respondent accepts that Ms Stewart has impairments and that s 94(1)(a) of the Act was satisfied during the qualification period (Exhibit 2, para 4.23). Having regard to the evidence, the Tribunal agrees.

    Do Ms Stewart’s impairments attract 20 point or more under the Impairment Tables - s 94(1)(b) of the Act?

    Mental health conditions

29. The Respondent contends that Ms Stewart’s mental health condition could not be considered fully treated and stabilised during the qualification period and therefore could not be rated under the Impairment Tables (Exhibit 2, para 4.27).

30. The Tribunal noted the large number of medical reports provided by some ten doctors.  These reports included a range of diagnoses including PTSD, psychotic depression, personality disorder, bipolar disorder and epilepsy. The reports indicate Ms Stewart’s underlying problem of drug dependence, which the Tribunal considers separately in the section below.

31. Ms Stewart’s treating psychiatrist, Dr Jude Ayeni, provided a report dated 2 July 2015 as part of an assessment of Ms Stewart’s continuing eligibility for DSP at that time.  Dr Ayeni listed polysubstance abuse comorbid with social anxiety disorder before 2000 as the principal diagnosis.  Dr Ayeni stated that Ms Stewart’s life was centred on drugs but there were high chances for improvement if she could abstain.  He listed “[t]he need to undergo residential drugs rehabilitation” and “[s]upport from community drugs & alcohol for psychosocial rehabilitation” as future/planned treatment (T30/238-247).

32. There is no evidence before the Tribunal that Ms Stewart has engaged in residential rehabilitation or psychological counselling subsequent to Dr Ayeni’s recommendation.  Relevantly, the Bentley Hospital Inpatient Discharge Letter dated 11 May 2016 states in part:

    Most recently seen by psychiatrist, Dr Ayeni in Geraldton in September 2015.  Advised was not appropriate for disability pension and capable to continue with Newstart.  She was to attend psychologist but reports difficulty with consistency of therapist in Geraldton and travel required so did not engage (T37/259).

33. Ms Stewart was an inpatient at Bentley Hospital in the period 3 May 2016 to 11 May 2016 following the breakup of her relationship.  Prior to that admission Ms Stewart worked as a carer at Avivo from 1 December 2016 to 2 May 2016 and was enrolled in a nursing certificate course at TAFE (T38/289 and Ex 2, 4.26(a)).  The Bentley Hospital Inpatient Discharge Letter details the required follow up treatment as: “To attend Dr Lutz for continuation of methadone prescription. May benefit from neuropsychiatry assessment” (T37/262).  There is no evidence that a neuropsychiatric assessment was conducted during the DSP qualification period.

34. In considering Ms Stewart’s mental health conditions, the Tribunal has particular regard to the very detailed report dated 18 May 2016 provided by Dr Greg Neate, senior medical practitioner in psychiatry, shortly after Ms Stewart’s discharge from Bentley Hospital (T39/293-299). 

35. Dr Neate opined that Ms Stewart’s principal diagnosis was that of emotionally unstable personality disorder.  Despite a diagnosis of PTSD made by Ms Stewart’s general practitioner, Dr John Lutz (T40/305), Dr Neate’s specialist opinion was that the diagnostic criteria were not satisfied.  Relevantly, Dr Neate stated in his report: “There are also features of Post-Traumatic Stress Disorder following traumatic sexual assaults, most recently in 2012, though I do not believe these meet the full criteria for the disorder and are exacerbated by her changeable lifestyle” (T39/298). Dr Neate was not convinced that Ms Stewart had bipolar affective disorder, and thought that her episodes of depressed mood were related to her personality disorder, substance abuse and her social circumstances (T39/294).

36. Dr Neate’s recommendations for further testing and review of Ms Stewart’s conditions are included in the Tribunal’s considerations at paragraphs 46 and 47 below. 

37. In relation to the condition of personality disorder, the JCA report dated 23 June 2016 concludes:  “Deemed fully diagnosed not treated and stabilised – no evidence of community based mental health services follow up since discharge from Bentley Hospital 11.5.2016, no evidence of psychological counselling” (T41/311).

38. Having carefully considered the relevant evidence, the Tribunal is reasonably satisfied that Ms Stewart’s mental health condition was fully diagnosed but not fully treated and stabilised during the qualification period.  Accordingly, the condition cannot be rated under the Impairment Tables.

    Drug dependence condition

39. The Respondent contends that Ms Stewart’s drug dependence condition is fully diagnosed, but not fully treated or stabilised (Exhibit 2, para 4.29).

40. In a Bentley Hospital Inpatient Discharge Letter dated 11 May 2016, Dr A Jaworska, psychiatrist, records that Ms Stewart has an extensive history of substance abuse including heroin, prescription and illicit buprenorphine, benzodiazepine, methamphetamines and alcohol since she was 16/17 years of age.  Dr Jaworska records that Ms Stewart had not taken heroin for seven years until she had a relapse of the condition just prior to being admitted in May 2016. Dr Jaworska noted that that Ms Stewart was on a methadone program but had declined to re-engage with Next Step or Fresh Start programs which had assisted with her drug dependence in the past (T41/311).

41. In relation to the condition of drug dependence, the JCA assessor concluded: “Deemed fully diagnosed, not treated and stabilised – no current evidence of engagement with community based rehabilitation program to address polysubstance abuse” (T41/311).

42. There is no evidence before the Tribunal that Ms Stewart had engaged with any psychologist or program, other than visiting her GP for methadone scripts, during the qualification period.

1. Having carefully considered the relevant evidence, the Tribunal is reasonably satisfied that during the qualification period Ms Stewart’s drug dependence condition was fully diagnosed but not fully treated or stabilised.  Accordingly, the condition cannot be rated under the Impairment Tables.

   Organic brain injury

2. The Respondent contends that Ms Stewart’s brain injury was not fully diagnosed, treated or stabilised (Exhibit 2, para 4.31).

3. The AAT1 recorded that Ms Stewart told that tribunal:

   ·In 2008, following an overseas trip, she became unwell and was diagnosed with meningitis.  She was admitted to SCGH and put in an induced coma for 10 days.

   ·She subsequently developed fits for which she takes clonazepam.  She saw a neurologist, Dr Carroll.  He suggested further scans but she cannot afford them.

   ·She was initially prevented from driving.  However she has not had a seizure for over three years and has regained her licence.

   ·She has frequent “fuzzy” heads, memory lapses and difficulty in concentrating. 

4. In a detailed psychiatric report dated 18 May 2016, Dr Neate noted that Ms Stewart’s meningococcal meningitis “may have resulted in subtle organic changes which affected her mood, memory and impulsivity”, and that it was difficult to assess the impact of any possible brain damage.  Dr Neate noted that Ms Stewart had not undertaken formal neurological assessment (T39/229), and Ms Stewart confirmed this in her oral evidence in these proceedings (see para 26 above).

5. Dr Neate also recommended psychometric testing and a neuropsychiatry assessment    (T39/299).  There is no evidence that these recommendations were acted upon during the qualification period, and before this Tribunal Ms Stewart confirmed that she had not undertaken such assessments (see para 26 above).

6. The Tribunal notes that organic brain injury was not a condition considered in the JCA dated 23 June 2016 (T41) and the earlier JCA dated 16 April 2015 (T26).  

7. The Tribunal considers that in the absence of recommended investigation and treatment, there is insufficient medical evidence to find that the condition of organic brain damage is fully diagnosed, fully treated and stabilised. Accordingly, this condition cannot be assigned an impairment rating under the Impairment Tables.

   Overall Impairment Rating

8. The Tribunal finds that Ms Stewart’s conditions cannot be rated under the Impairment Tables and therefore attract zero points. It follows that Ms Stewart does not satisfy s 94(1)(b) of the Act.

   Continuing inability to work

9. Due to the cumulative construction of s 94 of the Act and the Tribunal finding that Ms Stewart does not have an impairment rating of 20 points or more, she is not qualified for DSP. There is no requirement then for the Tribunal to consider whether or not Ms Stewart has a CITW for the purposes of s 94(1)(c) and s 94(2) of the Act.

   CONCLUSION

10. The Tribunal does not doubt that Ms Stewart’s medical conditions are distressing and impact on her life and the Tribunal feels considerable sympathy for her. However, the Tribunal can only apply the evidence before it to the relevant provisions of the Act. Having done that, the Tribunal concludes that Ms Stewart’s medical conditions in relation to the qualification period do not attract an impairment rating of 20 points under the Impairment Tables. Accordingly she cannot be deemed to be qualified for DSP at the time she made her claim.

    DECISION

11. The Tribunal affirms the decision under review.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

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

Administrative Assistant - Legal

Dated: 2 March 2018

Date of hearing:	11 October 2017
Applicant:	By telephone
Representative for the Respondent:	Elle Tattersall
Solicitors for the Respondent:	Sparke Helmore