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

[2018] AATA 4942

Strachan and Secretary, Department of Social Services (Social services second review) [2018] AATA 4942 (14 November 2018)

Division:GENERAL DIVISION

File Number(s):      2017/6529

Re:Hope Strachan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:14 November 2018

Date of written reasons:        13 February 2019

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the reviewable decision dated 25 October 2017 has been affirmed by the Tribunal.

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Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension ­– chronic fatigue syndrome – anxiety and depression – migraine – scoliosis – whether applicant’s conditions fully treated and stabilised – whether applicant has a continuing inability to work – program of support – decision affirmed

SECONDARY MATERIALS

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

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

13 February 2019

1. In relation to this matter, Ms Strachan has some four ailments and she made an application for disability support pension back on 16 May 2017. The period by law I have to look at is that date and 13 weeks after it, which takes us up to 15 August 2017 (the “claim period”).

2. It may well be that the situation might have got worse although in her case I think only in one instance does it appear to have got worse. That is obviously of some relevance, but the period I am restricted to is the claim period.

3. Her claim was rejected by the Department of Social Services (“the Department”) on 26 June 2018 and she then went through the process of appealing to an authorised review officer, who affirmed the decision; and then the AAT1, which also affirmed the decision of the Department.

4. From that decision she appealed to this tribunal on 2 November 2017.

5. I am delighted to see she got some assistance from Legal Aid in relation to this matter and she was also assisted by Mr James Miller from Disability Advocacy operating out of Newcastle who assisted her at the hearing. The applicant was very lucid and clear in her evidence as well.

THE LAW

1. To get disability support pension an applicant has to have a permanent medical condition. That is a condition that has been fully diagnosed, fully treated and fully stabilised and is likely to persist for more than two years.

2. Secondly, he or she has to satisfy the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). There are 15 tables, which deal with functional abilities. A person needs to get at least 20 points under those tables to satisfy them. Now, that can be 20 points for any one condition or 20 points or more added up from a number of conditions.

3. So, for example, if the applicant got two lots of 10 points for her four conditions or maybe a 10, a 5 and a 5 and a 5, that would be over 20 points over more, and she would satisfy that condition but then she would have to have shown that she’d undertaken in the three years prior to applying for the disability support pension a program of support (“POS”). That means that she has to have participated in that program for 18 months or more within the three year period prior to applying for disability support pension.

4. This can be a difficult requirement as often participants have a medical certificate saying they cannot do the program but unfortunately that is not counted. One has to actually turn up and attempt to do the program to have that counted. I have made a number of criticisms of programs of support, in other cases.

5. I note that the applicant had medical certificates in this case indicating she was too ill to turn up and do the program. However, by law, she was only counted as having done 293 days of the POS in the three years prior to 16 May 2017, which is somewhat short of the 546 days she needed to do.

6. As indicated, I have already commented in other cases in relation to the fact that if a person physically cannot go to a POS and get a medical certificate to attest to that fact, then maybe that is something the legislature needs to look at. It seems to be very much a Catch-22 situation.

7. There are instances when the POS providers do indicate to the Department that there is nothing they can do to help a client and accordingly discharge them from the program, which then has the effect by law of exempting the client from the requirement of doing 18 months of a POS.

8. One of the problems is (though not necessarily in this case) that as POS providers get paid for the people they have in their program, they are naturally perhaps somewhat reluctant to discharge them and prefer to keep them on their books. That is a problem with the system.

9. I have mentioned this in previous cases and it is certainly something that I have passed on to the Department on a number of occasions and on one occasion passed on to the relevant Minister as well. So hopefully any bugs in the system can be ironed out. In this instance unfortunately 293 days is not sufficient.

10. To overcome this requirement an applicant would need 20 points under any one of the tables.

11. As well as that an applicant has to finally show that they are unable or at least unlikely to be able to do any work, for at least 15 plus hours a week, without support, within the next two years of any type of employment at award wages anywhere in Australia.

12. Normally if someone gets 20 points under any one table it is fairly obvious that they are going to naturally meet that last requirement.

13. It is a deliberately difficult test as I indicated to the parties at the hearing

14. At any rate the job of the tribunal is to apply the law and we have very little discretion in areas like this where the law is quite clear and there are some very detailed tables for doctors to look at.

15. The other requirement is that any evidence by an applicant has to be corroborated and it has to be corroborated by preferably a doctor or a health professional. In terms of Table 5 – Mental Health, the diagnoses has to be made by a clinical psychologist or a psychiatrist. After that, of course, once a diagnosis is made an applicant’s GP can corroborate the applicant’s evidence.

16. In relation to the other 14 tables a diagnosis by a doctor (such as the patient’s GP) is sufficient. But there needs to be evidence corroborating what an applicant says and invariably the medical evidence obviously is the best form of corroborating evidence. I do note in this matter there is corroboration from various doctors.

17. So the conditions have to be fully diagnosed, fully stabilised and fully treated first and then points can be allocated.

18. To be fully stabilised a person has to have undertaken reasonable treatment and any further reasonable treatment is unlikely to result in any significant functional improvement to enable them to undertake work in the next two years.

19. Reasonable treatment is defined as treatment that is available at a location reasonably accessible to the person, at a reasonable cost and be treatment that can be reliably expected to result in a substantial improvement. It has to be treatment that is regularly undertaken or performed, has a high success rate, and carries a low risk to the person. It is not for example reasonable to expect a person on newstart allowance who may be allowed 10 sessions with a psychologist a year under Medicare to attend the desired 20 sessions per year for the simple fact that the person just simply cannot afford to pay for any more sessions.

20. The law does acknowledge that.

THE APPLICANT

1. The applicant went through school to year 12. She certainly struck the tribunal as being a very intelligent young lady. She had some significant issues in the past. In fact, she indicated to the tribunal her first medical issues probably resulted from even before she was born because she was diagnosed with scoliosis of the spine at six months of age. She started having depression and anxiety at 17. She did have some migraines when she was eight. About four years ago she realised she had chronic fatigue syndrome.

2. In terms of actual diagnoses there is no dispute in relation to her mental health issues, as her anxiety and depression have been diagnosed. Although now the respondent has indicated it had some problem with it being fully treated and stabilised.

3. In terms of her chronic fatigue syndrome (Table 1 – Functions Requiring Physical Exertion and Stamina) again that has been fully diagnosed, but the respondent submitted that it has not been fully treated and stabilised.

4. It appears there is a more recent diagnosis of migraines that is outside the claim period, but at any rate that condition might be tied up with mental health and depression as well.

5. Where a person has similar illnesses, injuries or problems, which can be dealt with under two or three tables, one picks the most applicable table and allocates points accordingly.

6. The migraines may well come into this category although more evidence is required in relation to that condition to see whether it stands alone or should be incorporated into an existing table such as Table 5 – Mental Health Function.

7. The applicant has a partner, Rory, and initially at the time of the claim period she was living in Tea Gardens with her partner and his parents. She got on well with his mother who also had some chronic fatigue syndrome problems and she got on fairly with Rory’s father although she felt that they were wearing out their welcome.

8. Her partner’s parents moved interstate which meant that she had to do more herself. Rory seems to help out a lot, and he does most of the work around the home including the cleaning and the cooking.

9. The applicant is able to drive and recently got her Ps earlier this year. She could not drive in 2017 during the claim period. She is able to take Rory to work (he works about 10 minutes’ drive away) and pick him up and she can drive for up to about an hour. After an hour it really is problematic and she has to stop and rest.

10. She has trouble sleeping at night and it is the same now as it was then. The only thing that has changed in the last 15 months is her migraines are now worse. Apart from that everything is much the same, although she probably had less to do during the claim period than she does now because Rory’s parents would do a lot of the work around the home when they lived there.

11. She had trouble and still has trouble sleeping. It is partly pain, partly over thinking. She has nightmares. She tosses and turns, wakes up a lot. She would normally get up probably at about 8 or 9 am during the claim period. She gets up now at about 7.30 am to take Rory to work and she also picks him up. She would often have trouble waking up and would sleep through the alarm.

12. She would take her cat outside and just sit there in the sun and get some fresh air, then have breakfast, which usually was toast and coffee although she might have some cereal. Anything more than that in terms of food preparation Rory would do because she gets dizzy and shaky.

13. She would try to manage her fatigue; it was a matter of knowing her limitations. She would not do a lot around the house at all because Rory would do that. He would do the work, the laundry and the food preparation. She could do the laundry and would do that sometimes when she would have good days and she would put it in the dryer. She would watch TV, and some videos; mainly self-help videos but she also enjoys serials. She would play puzzles on her computer. This was how she would basically fill in her day.

14. She also on good days would do sculpture. She is a very talented sculptress and she does it with coloured clay and through the Internet takes pictures and puts them on the Internet. She has got a few retainers. She gives some of the sculptures away and sometimes people will buy them.

15. She sometimes does washing up and she can put things away. She can put things above head height. She can bend down to put things on a bottom drawer but that will cause her some pain. She said it is a struggle to put things up above her head and she seemed to relate that to an ankle injury as much as anything although I would think that is probably more to do with her back. It is painful to bend down and put the dishes away but she can do it.

16. Rory does the garden. She will sometimes water the plants. She has horses and will sometimes groom them, which again means putting her arms up but that does cause her some pain.

17. She says she would tend to have a shower every two or three days because that can be quite exhausting. Sometimes if need be she will try to have a bath but the heat will often cause her migraines.

18. She certainly has seen a number of doctors, psychologists and health professionals to assist her with her issues.

19. At the time of the claim period she would walk for seven minutes or so to the shops which are a couple of blocks away.  She would sit and have coffee and maybe a cake at the little café there Sometimes Rory would go with her. When he went shopping she would simply walk around and he would push the trolley as it was too heavy for her.

20. She would often pick up medicines from doctors at the shops. She would go to the doctor at least once every two weeks trying different medications. She would walk back sometimes or at other times Rory’s parents would come and pick them up.

21. She is better in winter because in summer the heat tends to drain her and that caused her some significant problems.

22. She indicated that she was not one who really had many friends but she certainly had a couple of friends on the Central Coast and she would still be in contact with them maybe once a year.

23. She indicated she was not an angry person. She had worked at Coles when she was younger for about a year but because of the anxiety she could not face the job. She was given a choice of either resigning or getting fired, so she took the option of resigning. She has certainly tried a number of different medications and she does find she gets anxious for no reason.

24. She used to paint also but now does the sculpting because it is easier than painting. It is rather hard holding a brush apparently. She has her own website.

25. She was to see a rheumatologist in relation to her chronic fatigue. But there appears to have been a considerable stuff-up in relation to that, in that she thought she was on a waiting list. However, when she checked it out she found out that her doctor had asked for her to be put on a waiting list and the other rheumatologist had noted it but the period ran from January 2018. She was not put on anything urgent and she still has not been seen. She is meant to be seen by the end of January 2019.

26. It is important that she see the specialist to ascertain if anything actually can be done in terms of the chronic fatigue syndrome because the medical advice she has to date is simply that there is not much that can be done and she will just have to adjust to it. By seeing the rheumatologist, there is some possibility that an improvement may occur as a result of an expert examination.

27. I should add there that her general practitioner, Dr Anil Mathad, who has been treating her for about three years has said in paragraph 5 of his report dated 10 April 2018, outside the claim period: “The diagnosis of chronic fatigue syndrome can be confirmed by a rheumatologist and any newer therapies or treatments under their scope might make a difference to her condition. But I am not sure if it will make any difference to her condition.”

28. There is other documentation indicating that it certainly could make a difference and there is really nothing else that needs to be tried. As I said, it is unfortunate that that still has not occurred but hopefully that will occur soon.

29. There was also a letter from Mr James Kneller, a psychologist from Life Matters, dated 29 March 2018 in evidence where Mr Kneller addresses her specific mental health functioning and has regard to the tables. He also feels that she is highly reliant on her partner at times when it comes to adhering to treatment, exercise and plans and he said that her physical issues make it difficult for her to complete or consistently do set tasks.

30. I should say when she was talking to the tribunal that she was far more concerned with the effects of her chronic fatigue syndrome than the mental health issues.  Mr Kneller the psychologist states in a report dated 29 March 2018:

    With regards to impairment ratings for the specific mental health functioning for Ms Strachan the following is my opinion on her current functioning.

    Self-care and independent living – mild

    Comment: Ms Strachan lives independently with her partner and may sometimes have issues with self-care, grooming or meals.

    Social recreational activities and travel – moderate

    Comment: Ms Strachan rarely goes out alone and is not actively involved in the community or social events.

    Interpersonal relationships – moderate

    Comment: Ms Strachan has limited social friendships outside of her family unit and partner. She has made friendships online that she is maintaining.

    Concentration and task completion – moderate

    Comment: Ms Strachan struggles to maintain concentration on tasks such as her artwork for longer than 30 minutes.

    Behaviour planning and decision making – moderate

    Comment: Ms Strachan has difficulty coping with stress or situations and has mood difficulties that impact her decision making process. Her thoughts are not consistently significantly disturbed.

    Work training capacity – severe

    Comment: Ms Strachan does not work or study at present and it is unlikely she could do so on a regular basis without a high level of support.

    In my opinion Ms Strachan’s depression and anxiety would affect her ability to work, particularly in a full-time role. Her ability to concentrate and learn new tasks is limited. Her anxiety around her physical limitation leads her to being hesitant to attempt new activities due to fear of exacerbating her physical health. Depression often leads to difficulty with decision making, social interactions and memory in a workplace setting, all of these are ongoing issues for Ms Strachan.

31. He then mentioned she had been to the hospital in July 2017 for self-harm, which required a change of therapy. Since then she had not indicated any ongoing self-harm ideation.

32. The above are the relevant documentary evidence in support of her application.

APPLYING THE TABLES

1. I will start with Table 5 – Mental Health Function and note that the job capacity assessor who saw her in relation to her pension awarded her 10 points for mental health issues, as did the review officer and the AAT1. The effect of Mr Kneller’s report is that he has given her four moderates and two severe ratings which also indicate 10 points under Table 5.

2. I find in relation to the chronic fatigue syndrome (Table 1 – Functions Requiring Physical Exertion and Stamina) that it is certainly diagnosed. Certainly it appears to be fully stabilised. The question is has it been fully treated. I do not think there is much more that can happen except clearly the rheumatologist may make a significant difference. It may be something, it is reasonable treatment, it may work and it may lead to a significant improvement. One only hopes that can occur because the applicant is a very intelligent, capable young lady who, if her main conditions could be largely overcome, I think would have a very bright future in the workforce.

3. Perhaps doing something creative, as she is doing, but doing it with a higher degree of confidence, a higher volume rate and maybe a higher creativity rate, which could lead to not only a lot of mental stimulation and fulfilment but perhaps monetary benefit as well. A lot rides on when she actually has that assessment by the rheumatologist and hopefully that is going to be in the next couple of months.

1. I cannot at this stage assess the condition’s functional impact because, for the reasons I just gave above, I cannot say it is fully treated at this stage because we are waiting for her to see the specialist.  If nothing comes out of that, and there is no further treatment that is going to work, I do not think anything else will. The condition can then be assessed.

2. As at the period and probably as at now prior to any further treatment, I would certainly say 10 points is quite reasonable for Table 1. This is because she does experience frequent fatigue when performing day-to-day activities around the home, and due to those symptoms she is not able to walk far outside the home; she can go seven minutes but that is not far and she does need to drive a car to get to community facilities and shopping centres.

3. She certainly would also have difficulties I think doing some day-to-day chores such as changing the sheets on a bed. There is no indication she has done that. Also, she has to be able to use public transport or walk around a supermarket. She does not actually use public transport but she can walk around a supermarket. She can perform work related tasks of a clerical, sedentary or stationary nature, tasks not requiring a high degree of physical exertion. She can sit and fold clothes and also she can sculpt albeit she does get tired.

4. I think there is enough there to indicate that, had the condition been fully treated, diagnosed and stabilised as at May to August last year, she would get 10 points. She could not get 20 because she does not need the help of another person to walk around a shopping centre or to travel from the car into the shopping centre or indeed to stay with her on public transport. She is able to perform some light day-to-day tasks such as folding items, which she can do if she is sitting down. So clearly she can actually do all the tasks one should not be able to do if one is to qualify for 20 points under Table 1.

5. She may have some difficulty sustaining work related tasks if she is sitting down for a continuous shift of more than three hours but because she fails on the first count she could not get 20 points even if she was fully diagnosed and treated.

6. In terms of the spinal function (Table 4 – Spinal Function) I certainly find that is fully diagnosed, treated and stabilised. I think it has been there for ages and it is something she seems to manage and it is not something that is first and foremost in her mind. There is little evidence in relation to her back but she may be able to get 5 points on the basis that she has some difficulty in activities at overhead height that require her to look upwards, in that whilst she is putting items away above her head occasionally that does cause a bit of a strain. Also in terms of her horses who are 15 and 16 hands high (that is quite big horses) she does have difficulty in terms of grooming them and can only do that for a certain amount of time.

7. I have no idea if she is able to bend to knee level or straighten up and we did not really cover much about her turning her trunk. But it is possible there that one could say she has mild difficulties in activities involving overhead heights and 5 points I think might be a reasonable amount to award there.

8. So, I cannot award any for Table 1 but I think it is possible (and there is a bit of a dearth of evidence) that 5 points may well be applicable to Table 4. But, I would really need some more evidence than just what was before me.

9. I assess her as being entitled to 10 points under Table 5 as at the claim period. But if I had to assess her now, and I will make this as a finding of fact, I did find that her main concern really was her chronic fatigue syndrome.

10. In terms of 10 points as at now for Table 5, I would have to be guided by a doctor or a psychologist or a health profession, which I am not. Just on her evidence, whilst I accept 10 at the claim period, she would have trouble getting anymore because it seems from her evidence that  she seems to manage quite well.

11. For example, it is difficult to say that she just goes out alone infrequently and is not actively involved in social events. She does not have many social events to go to, but she does go and have a cup of coffee with her partner and had gone to things with his parents at the relevant time (i.e. the claim period). There is no evidence she refuses to travel alone to unfamiliar environments simply because she probably does not need to travel and whilst she does not have any close friends it is more because of her fatigue and it seems she still does keep in contact with other people, so it is hard to say that she has difficulty making and keeping friends or sustaining relationships.

12. It also seems she is able to concentrate on longer tasks for more than 30 minutes such as reading a chapter from a book or watching TV. as she certainly can concentrate for more than 30 minutes watching TV.

13. The applicant does not seem to be a difficult person; she seems to be a very pleasant person who will go with the flow and who would fit it to a work environment. It is only because of her physical problems that she might have trouble in the workplace.

14. Accordingly, I do make the observation from what she told me today, and in the absence of a further medical report, that she might struggle to get 10 points under Table 5 and certainly could not get 20.

15. I think it was perhaps because she was so focused on her chronic fatigue syndrome problems that perhaps she may have put the emphasis on that rather than other areas that might have actually been more mental health related.

16. For Table 7 – Brain Function I find there is still some work that needs to be done as it only appears to have been formally diagnosed earlier this year and at any rate there are some issues as to exactly what effect it does have on her. A lot of this deals with memory and attention, problem solving, planning anything, prioritising decisions, understanding any instructions, difficulty reading maps or giving directions and things like that. Table 7 may not be the most applicable table. Table 1 or Table 5 may be applicable.

17. So on that basis I would have to say that all I could allocate as at the claim period would be a maximum of 15 points and I probably would need a bit more information in relation to Table 4 anyway in terms of what exactly she could do because what she can do might be sufficient even to not qualify her for 5 points under that table.

18. As she does not get 20 points in total, I do not have to look at the POS requirement.  I note however that she has not done a POS.

19. As I am uncertain as to her current status vis-a-vis a POS, it may be that she has not done the required 546 days in the last three years needed to qualify and, if that is so, she would need 20 points for any one condition. Under the tables the condition that seems most likely to me to get 20 points after hearing her evidence is the chronic fatigue syndrome condition.

20. As the result of the evidence before me, I have to affirm the decision of the AAT1 for the reasons I have given.

WHERE TO FROM HERE?

1. I make three fairly brief comments. First, it is crucially important that the applicant see the rheumatologist and, if need be, if he/she suggests some type of operation or better medication to follow that advice and then see if it helps the condition. It sounds like there might be something that can be done.  It seems to me to be about the only way and only chance for that condition to improve. I hope it is successful, because if it is, all sorts of things become possible.

2. Second, the applicant needs to continue on with the POS. This is important because it is a criterion to get a disability support pension but probably more importantly, if it is a reasonable program it might actually help the applicant in gaining employment in a job she is suited to. The applicant is a young lady who is 29 years old who is clearly talented, has a lot to offer, and would be far better off within herself as well as contributing to the community if she was in some form of gainful employment. Now, gainful employment, of course, could mean developing her sculpture business using her great artistic talents.

3. As well, whilst she cannot ride horses anymore because of a bad accident with her ankle she obviously has an affinity with animals. There are potential employment possibilities in that field. Indeed there are probably a number of things this talented young woman can do.

4. I appreciate the difficulties she has had in concentration when doing the various certificate courses but hopefully the rheumatologist can do something positive to assist there.

5. However, if the suggestions the rheumatologist makes do not work or he/she decides there is little he/she can do to help, then that will mean that her chronic fatigue syndrome is fully diagnosed, treated and stabilised and it can then be assessed again.

6. If things do not work out I would certainly suggest a trip back to the doctor and go through the various tables with the doctor – namely Tables1,4,5, and 7 and have him rate those in accordance with the descriptors in each table, more or less like her general practitioner did in relation to her mental health. But the doctor needs to relate her conditions to each of those descriptors and address them accordingly.

7. It may well be next time round she will be able to qualify for a disability support pension, although it would be far better if the rheumatologist is able to do something that leads to a significant improvement in her chronic fatigue syndrome for the reasons I have alluded to above.

8. The final thing I have to look at, is her ability to work 15 hours plus in the next two years independently of a POS.

9. I note what her doctor, Mr Anil Mathad, says there. He said in his report dated 10 April 2018:

   I am not sure if there are any jobs which would suit such an impaired person. She might be able to work in my opinion at least 15 hours a week.

10. Because of that comment I cannot say there is sufficient evidence present before me to say she will not be able to do 15 plus hours a week after two years. It would appear at this stage she might be able to; we will know more after the applicant goes to see the rheumatologist and the final part of that jigsaw puzzle is put in place, hopefully to her benefit.

11. So the bottom line is, I cannot change the decision of the AAT1 or the Department. I think having looked at all the evidence and taking into account what the parties have said, I think they have come to the correct and/or preferable decision, so I will have to affirm the AAT1’s decision.

I certify that the preceding 91 (ninety -one) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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Associate

Dated: 13 February 2019

Date(s) of hearing:	14 November 2018
Advocate for the Applicant:	Disability Advocacy NSW
Solicitors for the Respondent:	K Dunlop, Department of Human Services