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

[2015] AATA 543

Thompson and Secretary, Department of Social Services (Social services second review) [2015] AATA 543 (24 July 2015)

Division	GENERAL DIVISION
File Number	2014/5892
Re	Elaine Thompson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	24 July 2015
Place	Brisbane

The Tribunal affirms the decision under review.

................................[SGD]........................................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Alcohol Dependence – Whether fully diagnosed, treated and stabilised at the relevant time – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 94

Social Security (Administration) Act 1999 (Cth), ss 41, 42 and Schedule 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (Cth)s 5

REASONS FOR DECISION

Senior Member A C Cotter

24 July 2015

INTRODUCTION

1. Elaine Thompson has a long history of anxiety and depression. In 2009/2010, she developed severe alcohol dependence as a result of an abusive marriage. Since that time, she has attempted to battle both afflictions, trying different short term rehabilitation programmes and a variety of medications.

2. One of the programmes Ms Thompson participated in was conducted at the Damascus Unit of Brisbane Private Hospital. She was first admitted for a two week detoxification programme in August 2013 and was admitted again for another programme in late October/early November that year. Following her discharge on that occasion, she went alcohol free for about five weeks before suffering a serious relapse.

3. Matters deteriorated further for her after mid-May 2014, when she lost her accommodation and was forced to live with friends. She was caught for driving under the influence of alcohol. It was about that time that she lodged a claim for Disability Support Pension (“DSP”),[1] which claim is the subject of this application. In the meantime, remorseful, she booked herself into Damascus again for another short term programme.

   [1] Claim lodged 19 May 2014. See Exhibit 1, T Documents, T10, ff60-90.

4. At the same time, she was engaged in Family Court proceedings concerning access to her two sons (who were in their father’s custody). A Family Report prepared for those proceedings in about June 2014 recommended that Ms Thompson undertake a long term rehabilitation programme to help with her condition. She was admitted to Lucinda House, a community based residential rehabilitation centre, in September 2014.

5. Meanwhile, the assessment of Ms Thompson’s DSP claim continued in parallel. Her interview with a Job Capacity Assessment (“JCA”) assessor in June 2014 was conducted at a time when she was part way through one of her stays at Damascus. Noting that Ms Thompson was having ongoing treatment and had recent changes in her medications, the assessor did not consider that her condition was fully treated and fully stabilised.[2] Centrelink subsequently declined Ms Thompson’s claim for DSP on the ground that her impairments did not have a rating of 20 points or more.[3]

   [2] Exhibit 1, T Documents, T12, ff106-111

   [3] Exhibit 1, T Documents, T13, ff112-113.

6. A review by an Authorised Review Officer affirmed that decision.[4] Ms Thompson sought a review of that decision by the Social Security Appeals Tribunal (“SSAT”).

   [4] Exhibit 1, T Documents, T16, ff127-131.

7. By the time the Social Security Appeals Tribunal (“SSAT”) heard her application in October 2014,[5] Ms Thompson was resident in Lucinda House. She told the SSAT that arrangement could continue for up to nine months. The SSAT noted the report of her doctor that Ms Thompson was in long term recovery and, although the prognosis was uncertain, recovery was positive. As Ms Thompson had not previously undertaken a comprehensive, long term rehabilitation programme of the type offered by Lucinda House, the SSAT concluded that her alcoholism was not fully treated and fully stabilised at the time of the claim, such that her impairment could not be assigned a rating. As the issues of her depression and alcoholism impacted on each other, the SSAT did not think a rating could be assigned to her depression either. It affirmed the decision to decline the claim for DSP. Ms Thompson seeks a review of that decision.

   [5] Exhibit 1, T Documents, T2, ff5-8.

   ISSUES FOR THE TRIBUNAL

8. I have recounted those matters at some length, as the parallel developments, in Ms Thompson’s treatment and the assessment of her DSP claim, need to be kept in mind when considering the issues in this matter.

9. Under the Social Security Act 1991 (Cth) (“Act”), the principal qualification criteria for DSP are: that the applicant has a physical, intellectual or psychiatric impairment; that his or her impairment is of 20 points or more under the relevant Impairment Tables; and that he or she has a continuing inability to work.[6]

   [6] Section 94(1) of the Act.

10. An applicant’s eligibility for DSP is to be assessed as at the date of the claim (in this case, 19 May 2014) or within 13 weeks after that date.[7]  That means that the relevant period for consideration of Ms Thompson’s claim is 19 May 2014 to 18 August 2014.

    [7] See ss 41 and 42, Schedule 2, clauses 3(1) and 4(1) of the Social Security (Administration) Act 1999.

11. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”).[8] Under the rules for applying the Impairment Tables, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[9]

    [8] A legislative instrument made under s 26(1) of the Act.

    [9] See s 6(3) of the Determination.

12. In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than two years.[10]

    [10] See s 6(4) of the Determination.

13. It is not in dispute that Ms Thompson suffers from recognised conditions of Alcohol Dependence and Major Depression Disorder. That was conceded, quite rightly, on behalf of the Secretary.[11]

    [11] See Secretary’s Statement of Facts and Contentions dated 21 May 2015 at paragraph [26], Exhibit 4.

14. The principal issue is therefore whether 20 points or more can be assigned to the impairments arising from those conditions. Given the parallel developments in Ms Thompson’s treatment and the assessment of her claim, that raises an important threshold issue:  whether her conditions were fully treated and fully stabilised at the date of claim (there being no issue, again, that they were fully diagnosed).[12] If they were not fully treated and fully stabilised, they cannot be assigned a rating and so, Ms Thompson’s claim would fail.

    [12] See Secretary’s Statement of Facts and Contentions dated 21 May 2015 at paragraphs [27] and [36], Exhibit 4.

15. If, however, the conditions are considered to have been fully treated and fully stabilised at the relevant time, the additional question arises as to whether Ms Thompson had a continuing inability to work.

16. I deal with those issues below.

    CONSIDERATION

    Do the Impairments attract 20 points or more?

17. As I mentioned earlier, there is first a threshold question to be determined, namely whether Ms Thompson’s respective impairments were fully treated and fully stabilised. I deal with that issue by reference to both conditions.

    Fully treated and stabilised?

    What is meant by “fully treated” and “fully stabilised”?

18. In determining whether a condition has been fully diagnosed and fully treated, the following factors are to be considered: 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 planned in the next two years.[13]

    [13] See s 6(5) of the Determination.

19. A condition is “fully stabilised” if:[14]

    (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.

    [14] See s 6(6) of the Determination.

20. Finally, “reasonable treatment” is treatment that:[15]

    (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.

    [15] See s 6(7) of the Determination.

    Alcohol Dependence

21. Ms Thompson’s claim was accompanied by the medical report of her general practitioner, Dr Gary Wright, who also attached two letters from her psychiatrist, Dr Ben McDarmont,[16] which detail the history of her treatment. The later of those letters, in November 2013, confirmed Ms Thompson’s admission to Damascus in August of that year and reported that she had shown substantial mood improvement during the admission. He had arranged for her to attend ongoing follow-up as a day patient and had also booked her into a relapse prevention weekend in late November. Dr McDarmont’s medical report of 7 July 2014 described Ms Thompson’s then current treatment as having been an inpatient for alcohol and drug treatment which commenced on 2 June 2014 (presumably a reference to Damascus), ongoing fortnightly review and the prescription of anti-craving medication. As to future treatment, he noted that she was to continue the fortnightly relapse prevention review.[17] More recently, Dr McDarmont has given a letter confirming that he provided psychiatric care for Ms Thompson from July 2013 to September 2014.[18] He said that during that period she was receiving “full treatment”. According to his letter, she had inpatient detoxification and relapse prevention admissions and had subsequently attended long term residential rehabilitation (presumably a reference to Lucinda House). Dr McDarmont concluded that “[o]n the basis of the treatment received, her alcohol dependence was considered stabilised”.[19]

    [16] Exhibit 1, T Documents, T11, ff 103-105.

    [17] Exhibit 1, T Documents, T14, ff 115-125.

    [18] Exhibit 3.

    [19] Exhibit 3.

22. In a letter dated 1 March 2015,[20] Dr Wright stated that he considered Ms Thompson to be “fully treated and stabilised as of 19 May 2014”. In response to the question whether  recommended treatment had been commenced or completed as at the time of claim, he said that she had commenced all treatment mentioned and that her condition had stabilised; ongoing support and treatment would be for maintenance and relapse prevention, but was not expected to result in any significant functional improvement. Significantly, Dr Wright made no specific reference to Damascus or Lucinda House.

    [20] Exhibit 4, Attachment C.

23. A letter dated 16 February 2015 from Ms Vernesa Turalic, Program Facilitator at Lucinda House,[21] confirmed that Ms Thompson entered rehabilitation on 8 September 2014 and completed the programme on 22 January 2015 with ongoing outreach support. The outreach treatment for relapse prevention was expected to last until July this year, at which point it is anticipated that Ms Thompson will continue it with Alcoholics Anonymous (“AA”). Obviously, Ms Turalic was unable to comment on matters as at the date of claim since Ms Thompson entered the programme after the relevant period had expired.

    [21] Exhibit 4, Attachment B.

24. While in Lucinda House, Ms Thompson was seen by a general practitioner, Dr Catherine Davis. In a letter dated 9 October 2014,[22] Dr Davis confirmed that Ms Thompson was doing well in the programme at that stage. She said that Ms Thompson’s recovery was “positive”, although she was unsure of her prognosis. Dr Davis expressed the opinion that Ms Thompson would never be able to work due to symptoms of alcoholism.

    [22] Exhibit 1, T Documents, T18, f 135.

25. In her oral evidence at the hearing, Ms Thompson expanded on her time at Lucinda House and the impact which it had on her. She explained that Lucinda House provided residential rehabilitation, with residents being responsible for their own rooms. While on the programme, she was taken to: three or four AA meetings a week; into the community for activities such as arts therapy; to the gym three times a week; and had fortnightly sessions with a psychologist, Dr Julie Nos,[23] to help deal with addiction. Asked during cross-examination whether she had noticed any improvement in her condition, Ms Thompson said that it took some time, but her greatest improvement was through attending the AA meetings. She had previously had poor experiences with such meetings in Sydney, but said she derived a lot of support from them while in the Lucinda House programme - so much so that she now regularly attends meetings of different groups on the Sunshine Coast (where she now resides) several times a week; she says they have a “calming effect” on her.

    [23] Letter Vernesa Turalic dated 16 February 2015, paragraph [4]. Exhibit 4, Attachment B.

26. Ms Thompson confirmed that she has not had a relapse in the five months since she left Lucinda House. She was concerned when she left Lucinda House because it was the first time she had lived alone since leaving the matrimonial home; she had to take responsibility for herself, such as buying groceries and paying bills. Living alone means that she has to be disciplined, to make sure that she cooks for herself and eats healthily. She also needs to be disciplined in ensuring that she gets out of the house and into the community, and does regular exercise. She recently bought two kittens to help her “be in the moment” and take responsibility for them.

27. Importantly, the access arrangements in respect of her sons have eased progressively and improved considerably, to a point where they stay with her on weekends and she will have care of them for half the June/July school holidays. That has been helped by the fact that she has moved back to the Sunshine Coast where her sons also reside with their father.

28. Even though she has moved from Brisbane, she remains in contact with Lucinda House. She tries to visit once a month, if not fortnightly, and receives their news updates. She is in contact by phone and email. She still sees Dr Nos for follow-up visits.

29. Considering Ms Thompson’s observations and insight and the opinions of her doctors and health professionals, is it possible to say that her Alcohol Dependence condition was fully treated and fully stabilised at the time of claim in May 2014? Her doctors at the time, Drs Wright and McDarmont, state or suggest so, but significantly, neither deal with the impact of the Lucinda House long term residential rehabilitation programme. Dr Wright does not mention it at all, while Dr McDarmont simply makes a passing reference to the fact that Ms Thompson has attended such a programme, without making any comment or judgment on it or how it might impact on her.

30. Prior to entering Lucinda House, Ms Thompson had not completed any long term rehabilitation programme.[24] While it might be suggested that she had already experienced a range of treatment over a long period of time and that a long term residential programme would offer little more than mere “maintenance”, I consider that the Lucinda House programme, with its additional focus on independent living skills and community reintegration, remained a viable treatment option to be considered as at the date of claim. It was accessible, could be expected to result in some improvement (at least in the short term), and appeared to be offered regularly with reasonable success and low risk. Although it is still early days, the obvious positive impact it has had on Ms Thompson to date reinforces my view that it was a treatment option worthy of consideration.

    [24] She told me that a few years earlier, she had been admitted to a long term residential programme, Buttery in Northern New South Wales, but discharged herself early to be with her family for Christmas.

31. For that reason, I agree with the Secretary’s contention that Ms Thompson’s Alcohol Dependence condition was not fully treated and fully stabilised as at the date of claim, and that therefore, no points should be assigned to it.

    Major Depression Disorder 

32. The report of Dr Wright[25] which accompanied Ms Thompson’s claim, described her condition as Depression and Anxiety, possible Bipolar Disorder and Alcohol Dependence. Dr McDarmont’s letter of 11 November 2013,[26] which was attached to that report, likewise identified Alcohol Dependence and Major Depressive Disorder.

    [25] Exhibit 1, T Documents, T 11, ff92-105.

    [26] Exhibit 1, T Documents, T 11, f103.

33. As mentioned earlier, when the JCA assessor saw Ms Thompson, she was part way through her then latest admission to Damascus. She told the assessor that she had been attending programmes to develop skills to learn how to defuse situations and manage emotions, anxiety and stress. She also reported that on her attendance at Damascus, how her medication was changed, and following that, how dosages were continuing to be adjusted.[27]

    [27] Exhibit 1, T Documents, T12, f107.

34. In light of the further counselling which Ms Thompson was receiving during her visits to Damascus and in view of the ongoing changes in her medication and dosages, it is not unreasonable to suggest that her Depressive Disorder was also yet to be fully treated and fully stabilised as at the date of claim. Although the Lucinda House programme largely concentrated on alcohol addiction, it seems that some of the life skills it sought to instil would also have been beneficial in dealing with the Major Depression Disorder. That is especially so given the comorbidity of the two conditions which makes it difficult to ascertain the functional impact caused by each; it is unlikely that one condition would have been stabilised without the other being stabilised.

35. For those reasons, I do not accept that this condition was fully treated and fully stabilised as at the date of the claim. Therefore, an impairment rating cannot be assigned to it.

    What points should be assigned?

36. It follows from what I have said that no points should be assigned to either condition because neither was fully treated and fully stabilised at the time of the claim. It is therefore unnecessary to consider this question further.

37. However, in the event that I am wrong on that question and ratings are to be assigned, I set out briefly below my views as to the points which I would have otherwise assigned to each impairment.

    Alcohol Dependence

38. In the event that a rating could be assigned to Alcohol Dependence, I would accept the Secretary’s submission, that 10 points under Table 6 (Functioning related to Alcohol, Drug and Other Substance Use) is appropriate. Dr Wright concluded that there was a moderate impact.[28] According to Ms Turalic, Ms Thompson displayed minimal ability to process complex thoughts and required assistance to manage her finances and maintain adequate housing,[29] which would attract a rating of 10 points.

    [28] Letter Dr Gary Wright dated 1 March 2015, paragraph [8]. Exhibit 4, Attachment C.

    [29] Letter Vernesa Turalic dated 16 February 2015, paragraph [3]. Exhibit 4, Attachment B.

1. There is no evidence to satisfy the descriptors for the severe functional 20 point rating. In particular, there is no evidence as to the effect on personal care and hygiene during the relevant period. Further, Ms Thompson was in rehabilitation during at least part of the relevant period, so she would not have been spending most of her time using, procuring or recovering from the effects of alcohol, as one of the descriptors requires. I therefore doubt that she would have been able to satisfy the 20 point descriptors during the relevant period.

   Major Depression Disorder

2. In the event that, contrary to my view, this condition was considered to be fully treated and fully stabilised at the time of claim, I would assign 10 points under Table 5 (Mental Health Function). Dr Wright considered that there was a moderate impact on mental health function.[30] Dr McDarmont noted that the condition had an impact on Ms Thompson’s concentration and decision making.[31] Ms Thompson told the JCA assessor that she had difficulties with mood, coping, concentration, memory and organisation and that she avoided some tasks and had low motivation and limited social interaction.[32] However, there is insufficient evidence to satisfy the descriptors for severe functional impact (20 points).

   [30] Letter Dr Gary Wright dated 1 March 2015, paragraph [8]. Exhibit 4, Attachment C.

   [31] Exhibit 1, T Documents, T14, f123.

   [32] Exhibit 1, T Documents, T 12, f107.

   Total points

3. It follows from what I have said that if, contrary to my view, ratings were to be assigned, Ms Thompson would have an impairment rating of 20 points in total.

   Continuing Inability to Work

4. In light of my finding that no ratings should be assigned to either condition, it is not necessary to consider whether the third principal criterion under the Act has been satisfied, namely whether Ms Thompson had a continuing inability to work.

5. However, if I am wrong on that matter and points were to be assigned, I consider, for the reasons mentioned above, that a maximum of 20 points in total could be assigned over two Tables. As neither impairment would attract 20 points on its own, neither could be classified as “severe” under the Act.[33]

   [33] See s 94(3B) of the Act.

6. That means that in order to establish that she had a continuing inability to work, Ms Thompson would have to satisfy the requirement that she had actively participated in a program of support[34] for at least 18 months during the three years preceding the date of her claim.

   [34] See ss 94(2)(aa) and (3C) – (3E) of the Act and Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (Cth).

7. According to the Department’s records, Ms Thompson did not satisfy this requirement during the relevant period.[35]

   [35] Exhibit1, T Documents, T20, f 142.

8. Ms Thompson contended that she is covered by an exemption to that rule, in that she was prevented from participating solely by reason of her impairment. While the records show that Ms Thompson had medical exemptions at various times, she was still unable to satisfy the relevant exemption in s 5(5) of the Social Security (Requirements and Guidelines-Active Participation for Disability Support Pension) Determination 2011 (Cth) because she was not participating in a program of support at the date of claim. While the Department’s records reveal that she was referred to Mission Australia Maroochydore on 14 May 2014, there is no evidence to suggest that she in any way participated in a program of support with Mission Australia, or even attended an appointment, prior to claiming DSP[36] on 19 May 2014.

   [36] Exhibit 1, T Documents, T 29, ff 142, 145-146.

9. In the absence of evidence to the contrary, I accept the Secretary’s submission on that point, that Ms Thompson was not actively participating in a program of support and that no relevant exemption applied. Accordingly, I consider that Ms Thompson would be unable to satisfy the criterion that she had a continuing inability to work at the relevant time.

   CONCLUSION

10. To summarise, I consider that Ms Thompson did not qualify for DSP because neither her Alcohol Dependence nor her Major Depressive Disorder were fully treated and fully stabilised at the time of claim, meaning that neither could be assigned ratings under the relevant Impairment Tables. Even if they did attract ratings, I do not believe that Ms Thompson would have been able to satisfy the Continuing Inability to Work criterion, in that she was not actively participating in a program of support.  I appreciate that this is a disappointing result for Ms Thompson, but it should not discourage her from making a new claim in the future.

11. The decision of the SSAT is therefore affirmed.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

...............................[SGD]...............................

Associate

Dated 24 July 2015

Date of hearing	23 June 2015
Applicant	In person
Advocate for the Respondent	Donna Smith