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

Talya and Secretary, Department of Social Services (Social services second review) [2017] AATA 1240 (10 August 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5701
Re:Loureen Talya
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Date:10 August 2017
Place:Sydney

The decision under review is affirmed.
...................[sgd].....................................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – depression and post-traumatic stress disorder – vertigo – headaches – head, neck and back pain – applicant has physical and psychiatric impairments – applicant’s impairments do not total 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
CASES
Fanning and Secretary, Department of Social Services [2014] AATA 447
Ulukut and Secretary, Department of Social Services [2014] AATA 399
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
REASONS FOR DECISION
10 August 2017

The Applicant, Ms Loureen Talya, who is aged in her fifties, was born in Bagdad Iraq. She is the youngest of five children and her father passed away when she was two.
In 2012, Ms Talya and her two older sisters fled to Lebanon. Ms Talya and her sisters arrived in Australia as refugees in July 2014 and they live together in rented accommodation.
Ms Talya has not worked since coming to Australia, and she presently receives NewStart Allowance.
On 4 February 2016, Ms Talya applied to the Department of Human Services which is better known as Centrelink for the Disability Support Pension (DSP).
On her claim form Ms Talya listed her impairments as migraine headache, depression and anxiety, cervical and lumbar spondylosis, inusitis, Osteoarthritis and Vertigo.
On 4 March 2016, Ms Talya undertook a Job Capacity Assessment (JCA) conducted by a registered occupational therapist with a registered psychologist as the contributing assessor. The JCA report is also dated 4 March 2016.
The assessors held that Ms Talya’s post-traumatic stress disorder, vertigo and her spinal disorder were fully diagnosed, but were not fully treated and stabilised. Accordingly, these impairments could not be assessed under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables).
Finally, the JCA report held that Ms Talya’s capacity to undertake work with intervention was 23 to 29 hours per week.
On 4 March 2016, Centrelink rejected Ms Talya’s claim for DSP as she did not have a rating of 20 points under the Impairment Tables.
Ms Talya Seeks Reviews
Ms Talya sought review of the original decision from an Authorised Review Officer (ARO). However, on 20 July 2016 the ARO affirmed Centrelink’s decision.
Ms Talya sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1).
On 5 October 2016, the AAT1 affirmed the decision under review.
In relation to Ms Talya’s post-traumatic stress disorder and depression, the AAT1 held that it was fully diagnosed, but that it was not fully treated and stabilised during the claim period.
The AAT1 also considered Ms Talya’s vertigo, dizziness and headaches, and held that they had not been fully treated and stabilised during the claim period.
Finally, the AAT1 held that on the medical evidence Ms Talya’s neck, back and joint pains had not been fully diagnosed and treated during the claim period.
Ms Talya has now appealed to the General Division of the AAT which is known as an AAT second review (AAT2).
THE LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The criteria for DSP are set forth in section 94 of the SS Act. In Ms Talya’s circumstances, subsection 94(1) relevantly provides:
Qualification for disability support pension
1A 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;
Put simply, I must be satisfied, first, that Ms Talya has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Ms Talya has a continuing inability to work.
THE THIRTEEN WEEK QUALIFYING PERIOD
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Ms Talya’s eligibility for DSP in the 13 week period commencing on the day on which Ms Talya’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Ms Talya qualified for DSP between 4 February 2016 and 5 May 2016.
The date of the AAT2 hearing was 28 July 2017 which is just over fourteen months after the end of the claim period.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said:
[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. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “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”.
[33] The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
Therefore, I am required to examine Ms Talya’s impairments in the claim period which is from 4 February 2016 to 5 May 2016.
THE IMPAIRMENT TABLES
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Ms Talya are worth 20 points under the Impairment Tables. This requires a few words of explanation.
In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to 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: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.
Subsection 6(5) of the Impairment Tables provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.
Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.
It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.
Finally, where a person claims that she or he is suffering from depression etc., the introduction to table 5 of the Impairment Tables which is titled “Mental function” provides:
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).
THE CONCESSIONS OF THE RESPONDENT
Paragraph 5.1 of the Respondent’s Statement of Facts, Issues and Contentions is as follows:
The Secretary accepts that the Applicant suffers from impairments arising from the following conditions and therefore satisfies paragraph 94(1)(a) of the Act:
(i)      PTSD with Major Depressive disorder
(ii)    Vertigo.
(iii)    Migraine headaches and dizziness.
THE HEARING
Ms Loureen Talya attended the hearing and she was accompanied by her sister Ms Rouzaiat Talya. They both gave sworn evidence with assistance from an interpreter in the Assyrian language.
Ms Loureen Talya said that she first saw a doctor about her conditions shortly after she arrived in Australia.
Ms Loureen Talya was asked why she had changed the tablets for her depression without consulting a doctor, she said that the doctor had changed it.
Ms Loureen Talya said that she came to the hearing by train. She always travels with her sister and cannot travel without her sister.
Ms Loureen Talya said that her sister sometimes helps her to wash and to dress, but at other times she can do this on her own.
Ms Loureen Talya was asked about her English classes. She said that she has completed 800 hours of English and that she has been exempted from further attendance for six months.
Ms Loureen Talya was asked about her head and neck pain. Ms Loureen Talya said that she feels pain in her neck and back when bending or sitting and also she feels pressure on her head when she stands up or walks at a fast pace.
Ms Loureen Talya said that she is still seeing a Psychiatrist, but she cannot remember the Psychiatrist’s name. She is not doing cognitive behavioural therapy, but is just taking medication.
In cross-examination, Ms Loureen Talya was asked whether she last saw a psychiatrist on 5 July 2017. She said she did not remember the date.
Ms Loureen Talya was taken to the report of Dr Mukesh Kumar dated 5 July 2017. Dr Kumar who is a psychiatrist indicated that he had changed her medication. Ms Loureen Talya was asked whether she was taking that medication, and she answered that she was taking the medication.
Ms Loureen Talya was asked whether this medication had made a difference. She answered that the medication made her more relaxed. She also said she feels pain in her neck and back when bending or sitting and also she feels pressure on her head when she stands up or walks at a fast pace.
The letter from Dr Kumar reads in part as follows.
I note she is on the following medications:
·Lexapro 20 mg daily
·Endep 25 mg note
Loureen is quite difficult to engage and finds recalling the details of her past stressful. Her sister provided most of collateral information. They report that her symptoms have been present for the last 30 years. It is difficult to ascertain any causative or precipitating factors, though her sister believes that her experience of multiple wars in Iraq shaped her symptoms.
…
The symptoms appear to be related to anxiety. She is unable to communicate with people independently and needs her sister to be around at all times. In fact her sister said she has to assist Loureen in activities of daily living including assistance in showers and putting on clothes. She suffers from “dizziness” and has had falls which is what her sister is worried about and hence the constant supervision. I note she has seen ENT specialists as well as neurologists and so far as I understand, there is no confirmed medical cause for the above. It is also significant to note that these symptoms are more prominent when she is anxious. There is a history of panic attacks and these do encompass the “fainting episodes” she has had. She is quite disabled by these, she is not able to go out by herself, she cannot speak to people, and has never been married or worked. Her sleep is also described as poor with frequent waking periods, her appetite is variable and her concentration is poor… There is no history of any psychotic symptoms.
…
Her past history is somewhat difficult to explore. She does not engage well in the interview and her sister is quite concerned about her ongoing condition. It is likely that her past abuse is a significant factor in her current symptoms. Their father died when Loureen was quite young and their mother suffered from a psychiatric condition and was unable to care for them. Loureen has had no formal education and is illiterate in her native language. She has never worked and has almost always relied on her family for support. She has never married and has no children.
On mental state examination, she presents as a middle aged woman of average build. She was dressed neatly and her overall grooming and hygiene were fair. Loureen sat in a chair with a downward gaze. She spoke briefly when spoken to and the volume of her voice was very low. Though she was not agitated, she found the interview difficult and was unable to participate, possibly due to anxiety of meeting a new person. She reported her mood as “low" and her affect was anxious. She denies any thoughts of self harm or suicide and there were no psychotic symptoms during the interview. Her insight and judgment are reasonable.
Opinion:
·Major depressive disorder
·I note that PTSD has been a previous diagnosis. Though I was unable to establish this in assessment today, I believe there is merit in keeping this diagnosis and this needs to be explored in sessions ahead.
Management:
·I have provided information on the illness, treatment options and follow up arrangements.
·If not done recently, I suggest the following investigations: FBC, EUC, LFT, and a TFT
·Loureen does not believe that the current medications are helping her. In discussion with her the decision is to change them.
·I suggest reducing the dose of Lexapro to 10 mg for the next 3 days and then to cease it.
·Please also cease the Endep.
·After a washout period of 5 days, please commence her on Fluoxetine 20 mg daily.
·I also suggest continuing psychological therapy with Ms Klara Georges.
·I will review her mental state regularly.
Ms Loureen Talya was asked whether she was still seeing an ear nose and throat specialist for her Vertigo. She said that she had seen a specialist, but it did not help with her dizziness. She said she had experienced dizziness since she was in Iraq and a doctor she saw in Iraq thought it would never go away.
Ms Rouzaiat Talya also gave sworn evidence and said that she thought her sister’s depression was a strong case of depression.
Ms Rouzaiat Talya said that her sister often did not comprehend what was said to her. The Tribunal said that Ms Loureen Talya comprehended the questions which had been asked of her, and that the medical reports noted that she could comprehend what was said to her. Ms Rouzaiat replied that she was the one living with Ms Loureen Talya and that she had to repeatedly explain things to her.
The Tribunal asked whether Dr Kumar was still treating Ms Loureen Talya. Ms Rouzaiat Talya said that this was so and that Dr Kumar was a fine doctor.
CONSIDERATION
I am required to decide, as I stand in the shoes of the Secretary, whether Ms Talya qualified for DSP during the claim period, that is, from 4 February 2016 to 5 May 2016.
First, I am required to decide whether Ms Talya has any impairments. Given the concessions of the Respondent which were quoted above, together with the medical and oral evidence, I find that Ms Loureen Talya suffers from post-traumatic stress disorder and depression; vertigo, headaches and dizziness; and related head, neck and back pain.

Second, I am required to decide whether any of these impairments have been fully diagnosed, treated and stabilised. If so, I must rate each impairment under the relevant table in the Impairment Tables.
Third, if the impairments of Ms Talya receive a rating of 20 points under the Impairment Tables, I am required to decide whether Ms Talya has a continuing inability to work.
The Post-Traumatic Stress Disorder and Depression
Was Ms Talya’s post-traumatic stress disorder and depression fully treated and stabilised during the claim period?
There are a series of medical reports concerning Ms Talya’s depression which are fully set out in the documents forwarded to the Tribunal by Centrelink pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth). These reports show that Ms Loureen Talya’s post-traumatic stress disorder and depression were not fully treated and stabilised during the claim period; that is from 4 February 2016 to 5 May 2016.
Two reports make this point. A letter from Dr S Benjamin, who is a consultant psychiatrist, dated 19 May 2016. Dr Benjamin wrote in part as follows:
She did not receive psychiatric treatment in Iraq or Lebanon, but she has been prescribed antidepressant medications after she arrived in Australia. She was referred to a psychiatrist at Liverpool who diagnosed her with Post-Traumatic Stress Disorder and prescribed her a combination Lexapro and Avanaza. Her compliance however, has been irregular.
…
Mental State examination: Loureen was appropriately dressed, and kempt. Her affect was reactive, but she felt depressed and burdened. She was preoccupied with traumatic memories related to her time in Iraq. She was also distressed by her physical health problems. There was no suggestion of Psychotic or Obsessive Phenomena. Her cognitive functions were clinically unremarkable. She denied thoughts of self-harm.
Provisional Diagnosis/ Differential diagnosis: Loureen’s presentation is consistent with the diagnosis of Chronic Major Depressive Disorder. There is also evidence of residual symptoms of Post-Traumatic Stress Disorder and Fibromyalgia.
…
Psychiatric Management: I counselled Loureen and I asked her to continue Lexapro 20mg mane and Endep 25 mg note. I asked her to return to see me after one month.
It is clear from the letter of Dr Kumar, dated 5 July 2017, which has been quoted above, that Ms Talya was still being treated for depression and that a new medication regime was being tried. It will be recalled that the date of Dr Kumar’s letter was 5 July 2017 which is fourteen months after the end of the claim period
Accordingly, I find that Ms Talya’s post-traumatic stress disorder and depression were not fully treated and stabilised during the claim period.
The Other Impairments
Ms Talya also suffers from vertigo, headaches and dizziness, and related head, neck and back pain.
There are many medical reports on these impairments.
On 9 September 2015, Dr Neil Griffith, who is an ear nose and throat specialist wrote, in part, as follows:
She is has seen ENT surgeon Dr Peter Winkler and nothing untoward was found and that she has good hearing.
A CT scan of the brain and IMs of 25/08/15 was remarkable. I understand an MRI scan of the brain was attempted yet she was unable to carry through with the scan.
On examination Loureen managed heel-toe-gait perfectly well, yet during Romberg's test started to fall suddenly to one side. There was no nystagmus. She described feeling dizzy when she sat up yet her blood pressure at the time was 143/85 and there was no nystagmus. There was no temporal artery tenderness. Optic fundi and eye movements and her upper and lower limb examination was normal.
In summary l felt Loureen in addition to having chronic daily headaches a form of tension headache also has dizziness, which I suspect is anxiety related on a background of significant insomnia.
There is no easy way to obtain any information about her reported meningitis in an Iraqi hospital 30 years. While headaches can occur following meningitis she has no objective abnormal neurological findings apart from symptoms of anxiety and tension style headaches. After detailed discussion with her I have commenced her on Lexapro building up to 10 mg mane and organised the vestibular test. I will look to review her following the completion thereof.
In a subsequent report dated 8 April 2016, Dr Griffith wrote as follows:
I reviewed Loureen who has chronic daily headaches and has fallen over three times with dizziness. I commenced her in September last year for anxiety and depression on Lexapro; however, this has been ceased and she is seeing a psychiatrist. Dr Ismail who commenced her on Miriazapine 30 mg daily. She took this and ceased this as she stated she felt dizzy. She has also seen Dr. Ian Golis-Graham who diagnosed fibromyalgia and commenced her on Endep 25 mg bd, which she took for a month and then ceased. Currently, she is only taking the Lyrica 75 mg bd for fibromyalgia. Her main problem I feel is that of anxiety and depression. I feel while her depression and anxiety continue her chronic daily headaches are going to continue and I feel the key to her dizziness and chronic daily headaches lies with control of depression and anxiety. Thus I have not given Loureen any further follow up appointments. I have instructed her to return to Dr Ismail and Dr Ian Golis-Graham.
The letter from Dr Kumar dated 5 July 2017, which has been quoted in part above, also makes the point that the impairments of vertigo, dizziness, headaches, neck and back pain are related to Ms Loureen Talya’s post-traumatic stress disorder and depression.
Having regard to all of the evidence before me, I find that Ms Talya’s impairments of vertigo, dizziness, headaches, neck and back pain are related to her depression. From the medical reports before the Tribunal it does appear that they will not be fully treated and stabilised until Ms Talya’s post-traumatic stress disorder and depression have been fully treated and stabilised.
Accordingly, I find that these other impairments were not fully treated and stabilised during the claim period.
I find that Ms Loureen Talya does not comply with subsection 94(1) paragraph (b) of the SS Act because none of her impairments were fully treated and stabilised during the claim period. Therefore, it is not necessary for me to determine whether Ms Talya has a continuing inability to work within the meaning of sub-section 94(1) subparagraph (c)(i) and attendant provisions of the SS Act.
I appreciate that Ms Loureen Talya and her two sisters fled from Iraq as refugees and have found sanctuary in Australia. I hope that Ms Loureen Talya’s impairments can be fully treated and stabilised in order to lessen her present difficulties.
DECISION
The decision under review is affirmed.

I certify that the preceding 66 paragraphs are a true copy of the reasons for the decision herein of

.............................[sgd]...........................................
Associate
Dated: 10 August 2017

Date(s) of hearing: 28 July 2017

Applicant: In person

Solicitors for the Respondent: Ms S Wavamunno, Department of Human Services

[2017] AATA 1240

10 August 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date(s) of hearing:	28 July 2017
Applicant:	In person
Solicitors for the Respondent:	Ms S Wavamunno, Department of Human Services