Tamay and Secretary, Department of Social Services (Social services second review)
[2019] AATA 1277
•13 June 2019
Tamay and Secretary, Department of Social Services (Social services second review) [2019] AATA 1277 (13 June 2019)
Division:GENERAL DIVISION
File Number: 2018/4401
Re:Aydan Tamay
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms Amy Wood, Member
Date:13 June 2019
Place:Melbourne
The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 29 June 2018 is affirmed.
..................[sgd]......................................................
Member
Catchwords
SOCIAL SECURITY – disability support pension – condition not fully treated and stabilised – medical advice not acted on – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1991 (Cth)
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms Amy Wood, Member
xx June 2019
Preliminary matter:
On or about 14 January 2019, Ms Aydan Tamay (“the Applicant”) wrote (by email) to the Tribunal and stated that she “will not be able to come to the hearing in person and would rather a hearing via the telephone [be] arranged”. This request was accommodated by the Tribunal.[1]
[1] This decision was not made by Member Wood and it is unclear whether the Respondent consented to the request, however, it is noted that the lawyer who appeared by telephone at hearing on behalf of the Respondent did not raise any objection to the matter being heard by telephone.
Background:
On or about 10 November 2017, the Applicant lodged a claim for the Disability Support Pension (“the DSP”). The Applicant relied on the following medical conditions in her claim:
-Primary condition: Dysthymia and mood dysregulation secondary to workplace bullying.
-Secondary condition: Adjustment disorder with mixed anxiety and depressive mood secondary to traumatisation.[2]
[2] Medical Certificate prepared by Dr Damien Polioudakis dated 21 October 2017 – T15, 32
On 10 January 2018, a Job Capacity Assessment was undertaken.[3] On or about 11 January 2018, the Applicant’s claim for the DSP was rejected (“the original decision”) on the basis that she did not meet the Australian residence requirements.[4]
[3] T19, pages 45-50.
[4] T20, page 51.
On 02 May 2018, an Authorised Review Officer (“the ARO”) decided that the Applicant met the residency requirements; but affirmed the original decision-maker’s decision to reject the claim for the DSP as her conditions were not assessed as fully treated and stabilised at the time.[5] At the request of the Applicant, this decision was reviewed by the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”). On 29 June 2018, the decision of the ARO was affirmed by the AAT1.[6] On or about 23 July 2018, the Applicant made an application to the General Division of the AAT for Second Review of Decision.[7]
[5] T24, pages 57-61.
[6] T2, pages 3-9.
[7] T1, pages 1-2.
Hearing:
On 29 March 2019, the Applicant appeared (as requested) at the hearing by telephone. She was not legally represented. She was extremely emotional and expressed suicidal intentions “if I get another no” (and similar).
Before proceeding to hear the matter, the Tribunal confirmed that the Applicant was:
(a) prepared and content to represent herself;
(b) that she did not wish to seek legal advice; and
(c)that she was feeling mentally well enough to proceed with the hearing as scheduled.[8]
[8] The Tribunal notes that the s 37 documents demonstrate that the Applicant has a history of threating self-harm.
The Tribunal also confirmed that the Applicant had been provided with a copy of the Section 37 documents (“T-documents”) and a copy of the Respondent’s Statement of Issues, Facts and Contentions dated 11 February 2019.
The hearing was conducted as a submission based hearing and the Tribunal heard submissions from both the Applicant and the Respondent.[9] The T-documents were received into evidence,[10] together with the following additional material filed by the Applicant:
i.Medical Report of Dr Damien Polioudakis dated 16 October 2018;
ii.Medical Report of Dr Damien Polioudakis dated 23 October 2018;
iii.Medical Report of Dr Stuart Wild dated 19 January 2018;
iv.Medical Report of Dr Stuart Wild dated 06 November 2018;
v.Email from the Applicant to Dr Marc Herington dated 14 January 2019 provided to the Tribunal by the Applicant on 14 January 2019.
[9] The Respondent did not require the Applicant for cross-examination.
[10] T1-33, pages 1-123.
Legislative framework:
The relevant legislation is the Social Security Act 1991 (Cth) (herein referred to as “the Act”). Section 94(1) of the Act outlines the requirements that must be met for an applicant to qualify for the DSP. Section 94(1) must be considered in conjunction with the provisions of the Social Security (Administration) Act 1991 (Cth) (herein referred to as “the Administration Act”) and the rules outlined in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (herein referred to as “the Impairment Tables”).
Uncontested matters:
The Respondent submitted that the date for determining whether the Applicant satisfied the requirements pursuant to s 94, is the date the claim for the DSP was lodged, unless the Applicant becomes qualified within 13 weeks of lodging the claim. The Applicant did not contest this submission.
The Respondent submitted that the Applicant contacted Centrelink on 30 October 2017 regarding her claim for the DSP; however, her claim for the DSP was made on 10 November 2017. Therefore, in order to qualify for the DSP, she must have met the requirements prescribed by s 94 between 10 November 2017 and 09 February 2018 (being 13 weeks from 10 November 2017). The Respondent submitted that this is the qualification period. The approach put forward by the Respondent was not disputed.
Issue for determination:
The Tribunal must determine whether the Applicant satisfied the legislative requirements (and thus qualified for the DSP) between 10 November 2017 and 09 February 2018 (“the qualification period”).
Pursuant to s 94(1), the first matters for consideration when assessing a claim for the DSP are as follows:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables… and…
(c) one of the following applied:
(i) the person has a continuing inability to work…
The Respondent accepts that the Applicant satisfied s 94(1)(a) of the Act. This position is consistent with the medical evidence tendered.[11] The Tribunal must therefore determine whether the Applicant satisfied the remaining requirements under s 94(1) during the qualification period.
[11] It is noted that the case on behalf of the Applicant did not separate the two conditions but they were put and relied on as essentially one condition – a psychological condition/disturbance.
Sub-section (b) requires that a person’s impairment is of 20 points or more under the Impairment Tables. Rule 6 of the Impairment Tables outlines how the tables are to be applied. Sub-rule (1) states that the impairment of a person must 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. Sub-rule (2) states that the Tables may only be applied to a person’s impairment after the person’s medical history in relation to the condition causing the impairment, has been considered. Sub-rule (3) states that an impairment rating can only be assigned to an impairment if (a) that person’s condition causing that impairment is permanent; and (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Sub-rule (4) outlines how it is to be determined as to whether a condition is permanent for the purposes of assigning an impairment rating. Sub-rule (4) states:
(4) For the purposes of paragraph 6 (3)(a) a condition is permanent if:
(a) that condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than two years.
Sub-rules (5), (6) and (7) outline the considerations relevant to the assessment of whether a condition has been fully diagnosed, fully treated and is fully stabilised.[12]
[12] Fully diagnosed and fully treated
As outlined above, the rules require that a medical condition must be permanent before an impairment rating can be assigned to the functional impact of a condition.
The first question for the Tribunal is: was the condition fully diagnosed, fully treated and fully stabilised (as defined) during the qualification period?
The Applicant’s treating general practitioner prepared a report dated 10 November 2017 (the date the qualification period commenced and the claim for the DSP was filed). In that report Dr Polioudakis notes the following relevant matters:[13]
o“I have only recently taken over her medical care…”
oThe Applicant “... has been referred to a psychiatrist Dr Stuart Wild at the Albert Road Clinic today for further assessment of her mental health.” (Emphasis added).
[13] T16, page 42.
On 19 January 2018, a medical report was prepared by Dr Stuart Wild addressed to the Applicant’s treating general practitioner, Dr Polioudakis.[14] In that report the following matters are highlighted:
o “Thank you for your referral of Aydan, who I met this week [namely in mid-January 2018]”
o“She would benefit from pharmacological treatment, probably with an SSRI plus or minus a benzodiazepine, but she has strong negative views of psychopharmacology, based on her observations of people she has known including her mother, and no matter what I put to her, including escitalopram starting at 1mg daily using the oral solution, she would not countenance any form of pharmacotherapy.”
o“Aydan I think is now quite stuck. She has a potentially treatable disorder through a combination of pharmacotherapy and CBT, and this might return her to the workplace, but I think she is unlikely to apply herself to treatment and so is likely to continue in a disabled state for the foreseeable future.”
[14] T21, pages 53-35.
Both of the Applicant’s treating medical practitioners gave evidence in relation to whether her condition was fully treated and fully stabilised as at the qualification period.
Fully treated:
It is clear that as at the commencement of the qualification period, the Applicant had commenced treatment with a new general practitioner and had been referred to a new psychiatrist. Whilst the medical evidence indicates that in the years prior to the qualification period, the Applicant had received a fair level of treatment from practicing psychologist(s), she had only been assessed by psychiatrists as one-off consultations; usually in the context of her WorkCover claim and not for treatment.
The Tribunal finds the referral to a treating psychiatrist on 10 November 2017 a matter of significance. By mid-January 2018, Dr Wild had only seen the Applicant once and had only conducted his first consultation with her. He had not built a therapeutic relationship. Likewise, the Applicant had only just commenced seeing a new general practitioner for treatment.
In these circumstances, the Tribunal is not satisfied that the Applicant’s condition was fully treated during the qualification period.
Fully stabilised:
The Tribunal is not satisfied that, as at the qualification period, the Applicant’s condition was full stabilised as defined by the Impairment Tables.
An applicant’s condition is fully stabilised when: (a) either the 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 2 years; or (b) the person has not undertaken reasonable treatment for the condition and: (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The Tribunal accepts that both the Applicant’s treating medical practitioners, in particular, the opinion of a qualified psychiatrist, Dr Wild, that the Applicant would benefit from medication. There is no evidence to the contrary in this regard.
Reasonable treatment:
The Tribunal is satisfied that the proposed treatment is “reasonable treatment” as defined in sub-sections 6(7) of the Impairment Tables. The treatment is reasonably available, at a reasonable cost, likely to cause substantial improvement in her condition, the treatment is conventional and mainstream, is regularly prescribed to other mentally unwell persons with success and carries a low (if any) risk to the Applicant.
In all the circumstances, the Tribunal is satisfied that the Applicant has declined “reasonable treatment”.
Having made the findings above, the Tribunal must consider whether there is a reason that compels the Applicant not to undertake the recommended reasonable medical treatment.
The Tribunal notes that the Applicant agreed that she refuses to follow the medical advice of her treating medical practitioners, but argued that she has a compelling reason for refusing the reasonable treatment. The Applicant submitted to the Tribunal that she refuses to take medication because she does not think the medication will work and she doesn’t like what the medication does to a person. The Applicant informed the Tribunal that she has never taken antidepressant, antianxiety or antipsychotic medication.
The Tribunal finds that there is no evidence before it that the Applicant has any reliable knowledge of what affect antidepressant (or similar) medication will have on her and her condition. Furthermore, there is no medical evidence before the Tribunal rebutting Dr Wild’s opinion that she would benefit from pharmacological treatment. In fact, the opinion of Dr Wild is supported by Dr Polioudakis. As outlined above, the Applicant has never taken pharmacological treatment. The Tribunal is of the view that that the Applicant’s stance (in relation to medication) is fundamentally irrational and unsupported by the available expert evidence. The Tribunal notes that the Applicant’s case is strikingly different to a patient who refuses to undergo surgery to their cervical spine, given the invasive nature of the medical procedure and all of the well-known risks associated with such surgery.
The Tribunal accepts the Respondent’s submission that that the Applicant’s conditions are not fully treated or fully stabilised. The most compelling medical material produced (from the Applicant’s new treating psychiatrist) during the qualification period demonstrates that, at that time, the Applicant’s condition was not fully treated and not fully stabilised. The Tribunal is not persuaded that the Applicant qualified for the DSP at any time during the qualification period. The evidence failed to adequately address the permanency (treatment and stabilisation) of the Applicant’s medical conditions during the qualification period.
Conclusion:
The Tribunal is not satisfied that the Applicant’s medical conditions were permanent during the qualification period (namely between 10 November 2017 to 09 February 2018). In these circumstances, an impairment rating cannot not be assigned to the psychological condition relied on and therefore the Applicant has an impairment rating of nil points. It follows that the Applicant does not satisfy s 94(1) of the Act and did not qualify for the DSP.
In these circumstances, it is not necessary for the Tribunal to examine whether or not the Applicant had a continuing inability to work during the qualification period.
DECISION
The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 29 June 2018 is affirmed.
Further matter:
The Tribunal notes that the Applicant’s medical conditions may have altered since her claim in November 2017. If so, the Applicant may consider testing her eligibility for the DSP afresh by a further claim.
The Tribunal notes that throughout the hearing on 29 April 2019, the Applicant informed the Tribunal that she has filed a further, more recent claim for the DSP and is awaiting the determination of same.
| I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Amy Wood, Member |
....................[sgd]....................................................
Associate
Dated: 13 June 2019
| Date of hearing: | 29 March 2019 |
| Applicant and Respondent: | By telephone |
| Lawyer for the Respondent: | Ms Ailsa Bramley, Solicitor |
| Solicitors for the Respondent: | Department of Human Services |
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully Stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the 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 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Standing
0
0
0