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

[2017] AATA 184

Thornton and Secretary, Department of Social Services (Social services second review) [2017] AATA 184 (16 February 2017)

Division:GENERAL DIVISION

File Number:           2016/2212

Re:Phen Thornton

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr D.J. Morris, Member

Date:16 February 2017

Place:Perth

The Tribunal affirms the decision under review.

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Mr D.J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully stabilised – condition fully diagnosed, but treatment still continuing in claim period – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1999 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2) – s 94(3B) – s 94(5)

Social Security (Administration) Act 1999 – Sch 2, cl 4(1)

CASES

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

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; (2014) 64 AAR 466; [2014] AATA 447

Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1; [2015] FCA 1123

REASONS FOR DECISION

Mr D.J. Morris, Member

16 February 2017

BACKGROUND

1. Ms Phen Thornton seeks a review of the decision to reject her claim for Disability Support Pension (DSP), made on 23 July 2015. 

2. The hearing was held on 17 January 2017. The Applicant was represented by a personal advocate, Mr Frank Macri. The Respondent was represented by Mr Ashley Burgess. The Applicant gave evidence under affirmation and was cross-examined by counsel for the Respondent.

3. The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence.

   FACTS

4. Ms Thornton applied for DSP on 23 July 2015.  In her application she cited three medical conditions: Post Traumatic Stress Disorder (PTSD); Depression with psychosis; and Arthritis with osteopenia. Dr Malcolm Roberts, FRANZCP, consultant psychiatrist, provided the Department of Social Services (the Department) with a medical certificate dated 24 July 2015 in which he cited a diagnosis of two conditions: Post traumatic stress disorder (PTSD) and Major depressive disorder, severe with psychotic features.

5. On 8 September 2015 an officer of the Department rejected Ms Thornton’s claim for DSP. The officer decided that none of Ms Thornton’s medical conditions could be considered permanent, in the sense of being fully diagnosed, fully treated and fully stabilised, at the time of her claim and therefore no impairment points could be assigned to her. This is the original decision.

6. The Applicant sought a review by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision. The ARO reviewed the decision and on 10 November 2015 affirmed it.

7. Ms Thornton sought a review by the Social Services and Child Support Division of this Tribunal (AAT1). After conducting a hearing, on 24 March 2016 AAT1 affirmed the original decision.

8. The Applicant then sought a review by the General Division of the Tribunal, and that is this hearing.

   THE LAW

   Qualification for DSP under the Act

9. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and, in particular, section 94 of that Act.

10. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying has –

    (a)              a physical, psychiatric or intellectual impairment; and

    (b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)a continuing inability to work.

11. The Impairment Tables referred to in section 94(1) (b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination). This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

12. The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1) (c) and section 94(5) of the Act is work that is for at least 15 hours a week.

13. So, therefore, for a person to be qualified for DSP, the person must have impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.

14. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, which means the impairment is assessed to be a ‘severe’ impairment under section 94(3B). If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    What is the relevant period for considering the claim?

15. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)       the person become so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

    MATTER TO DECIDE

16. Was Ms Thornton qualified for DSP on 23 July 2015? If she was not qualified on that date, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act, did Ms Thornton become qualified on a date in the thirteen week period after the day she lodged her claim, a period which ended on 22 October 2015? This is called the claim period.

    Does the Applicant have a physical, intellectual or psychiatric impairment?

17. As mentioned above, the Tribunal had before it Dr Roberts’ medical certificate of 24 July 2015 with two diagnoses of chronic severe PTSD and Major Depressive Disorder. The Tribunal also had a radiological report by Dr Mark Holland dated 11 May 2015 which found, in relation to Ms Thornton’s cervical spine, that she suffered a loss of normal cervical lordosis and mild multilevel vertebral body endplate degenerative change.

18. The Respondent, in his submissions, accepted that Ms Thornton had impairments, but contended that they did not attract a rating of 20 or more points under the Impairment Tables during the claim period and contended that she did not have a continuing inability to work.

19. Although Ms Thornton cited an arthritis condition in her DSP application, there was no corroborating medical evidence before me that she has such a condition. There was also mention to AAT1, and at this hearing, of an historical injury to her right hand which has weakened it, but scant medical information about that condition as well.  Without disputing this evidence from the Applicant, in the absence of corroborating medical evidence, I am unable to consider these particular conditions further.

20. The Tribunal had before it a medical certificate dated 29 January 2016 from Dr Ikechukwu Onwuegbuna, general practitioner, and a medical certificate from Dr Ali Hussain, general practitioner, dated 3 May 2016. Both medical practitioners give their professional address as Rockingham Medical Centre. Dr Onwuegbuna states that Ms Thornton has been a patient at that practice since 2011 but his patient since 19 October 2015. Dr Hussain does not say when she became his patient. Both of these certificates diagnose ‘PTSD’ and state that this condition is “likely to show considerable improvement within 2 years” but as both are well after the claim period, I note them but do not take them into account in this consideration, except to make clear that Dr Roberts’ specialist diagnosis and prognosis is preferred by the Tribunal.

21. Having considered the medical evidence before the Tribunal, I find that Ms Thornton did have impairment at the time of her claim, namely mental health conditions and a spinal condition. I therefore find that she satisfied section 94(1)(a) of the Act at that time.

    What is the correct rating under the Impairment Tables?

22. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, Rule 5(2)).

23. Rule 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others do for the person.

24. Rule 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

25. Under Rule 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

26. Rule 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

27. The Impairment Tables Rules also provide, at Rule 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.  In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

28. It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.

    Spinal condition

29. As mentioned above, the Tribunal had before it a report from Dr Holland relating to the Applicant’s spinal condition. This report recorded the following findings:

    X-RAY CERVICAL SPINE

    Findings: There is a loss of the normal cervical lordosis which may be indicative or muscular spasm but the bony alignment is maintained. No odontoid peg subluxation seen. There is mild multilevel vertebral body endplate degenerative change. No significant facet joint arthropathy. The intervertebral disc heights and neural foramina are normal.  No destructive bony lesion.

    THORACIC SPINE X-RAY

    Findings: The normal bony curvature and alignment is maintained. There is no scoliosis. The vertebrae have normal appearance. The intervertebral disc heights are well maintained. No facet joint arthropathy. The vertebral bodies appear osteopaenic but there is no significant endplate collapse.

30. While this report supports a possible diagnosis of a cervical spine condition, there was no other evidence before the Tribunal of any treatment. Rule 6(5) of the Impairment Tables requires consideration of what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years. Unfortunately, the paucity of other documentation, other than the x-ray report, in relation to this condition at the time of the claim means that the Tribunal cannot assign impairment points for it, and I so find.

    Mental health conditions

31. The Tribunal had before it the diagnoses of Dr Malcolm Roberts. The Respondent’s position was that he accepted these diagnoses but contended that Ms Thornton’s mental health conditions were not fully treated or fully stabilised during the claim period.

32. The Respondent noted that Ms Thornton had first seen Dr Roberts on 3 July 2015 and that she had commenced fortnightly appointments with him from July 2015.

    Evidence of Dr Roberts

33. Dr Roberts gave telephone evidence at the hearing. He said that the Applicant suffered from severe PTSD which has been complicated for three years by a major depressive disorder with psychotic features. He said that treatment started on 3 July 2015 but she has not responded to treatment.

34. In his medical report dated 29 August 2015, Dr Roberts stated:

    Ms Thornton was diagnosed with a Major Depressive Disorder by her GP 3 years ago but she could not tolerate two different antidepressants which were prescribed for her.  When I assessed Ms Thornton I made a diagnosis of Major Depressive Disorder, severe, with psychotic features and also a diagnosis of Post Traumatic Stress Disorder.

35. The Tribunal notes that the previous diagnosis is also referred to in the Job Capacity Assessment (JCA) report of 8 September 2015. In the Introduction to Table 5 – Mental Health Function, the Determination requires a corroborative diagnosis of a mental health condition by a psychiatrist or a clinical psychologist. Given the three year time delay, notwithstanding Dr Roberts’ diagnosis matches one diagnosis apparently made by Ms Thornton’s general practitioner, I do not find that these conditions were diagnosed in terms of the mandatory stipulations in the Determination until the diagnosis by Dr Roberts.

36. Dr Roberts provided a further medical report dated 8 June 2016 which he said was an addendum to his 29 August 2015 report. In the 8 June report he stated:

    My diagnosis of Major Depressive Disorder (which was a diagnosis made by her treating general practitioner three years earlier) was a secondary diagnosis to the PTSD.

    There is no cure for chronic PTSD and PTSD worsens over time when patients are receiving intensive treatment.

    This has indeed been the case with Ms Thornton who has deteriorated overall in her mental state since I first met her even though she has been treated with numerous psychotropic drugs in relatively high doses.

    Ms Thornton continues to suffer with chronic anxiety with flashbacks of her previous shocking traumas and she has regular nightmares. She is increasingly intolerant of stress including normal or mild levels of daily stress.

    …

    Ms Thornton will continue to require long term intensive psychiatric treatment for the foreseeable future.

37. Dr Roberts told the Tribunal about how he initially prescribed Lexapro, an antidepressant, for Ms Thornton, and Saphric but, following a dystonic reaction, he changed the prescription and on 29 August 2015 increased the dosage.  Among other drugs, he also prescribed a strong sedative, Kalma, to help her with her panic attacks, and also Lithium.

38. Dr Roberts said that he treated the Applicant’s psychosis from the start when she first consulted him, and that it made her suicidal. He was asked whether psychological intervention would have assisted but said in his opinion such intervention would not, in her case, when she was suffering from such severe, treatment-resistant symptoms, and it may be counter-productive and damaging. 

39. In answer to a question from the Tribunal, Dr Roberts said it was his opinion that Ms Thornton’s mental health condition is ‘stable’ in the sense that it has not responded to treatment. He said that PTSD is by its nature a permanent condition but a Major Depressive Disorder can be responsive to treatment, but in the Applicant’s particular case he has concluded that this condition is resistant to change, and they are linked.

40. He said that Ms Thornton is very compliant with treatment. Dr Roberts said his professional view was that the Applicant’s prognosis was poor and she is a long-term risk of suicide ideation.  Dr Roberts said his opinion was that Ms Thornton’s chronic PTSD was so severe that it, alone, meant she was unable to work. He stated in his 29 August 2015 report:

    Ms Thornton’s symptoms are chronic and severe and disabling so that she will not be fit to return to work in the future even with prolonged treatment with large doses of psychotropic drugs and intensive support psychotherapy.  She is keen to return to work but I am very concerned that her strong work ethic could do her enormous harm if she tries to keep working when she is worn out and suffering from severe symptoms in spite of receiving treatment.

    Evidence of the Applicant

41. Ms Thornton told the Job Capacity Assessor on 2 September 2015 that she had commenced taking Lithium on Dr Roberts’ prescription “one week ago”. She told the Assessor that she experienced an onset of auditory hallucinations in May 2015 and also told this hearing that she “heard voices” which were derogatory and upsetting but that there had been some improvement with recent treatment. She said her mental health conditions made her want to take her own life and caused her to stop working.

42. She gave evidence under cross-examination that at the time of the claim she cooked, could catch public transport and watched television and was working six days a week for around 5 hours per day as a hotel cleaner.

43. I found Ms Thornton’s evidence truthful, although she sometimes became confused about dates and times.

    Consideration

44. The Tribunal had before it some details of significantly traumatic personal experiences Ms Thornton had endured in her past. I am satisfied by the evidence before me, and particularly the cogent evidence of Dr Roberts, that Ms Thornton suffers from a severe mental health condition, and that this condition was fully diagnosed in the claim period.  It is clear to me that this condition now has a severe effect on her daily life and on her ability to work.

45. In putting myself in the shoes of the decision-maker at the time she made her claim, I must consider whether her mental health conditions were ‘permanent’ in the claim period.  In the use of this word ‘permanent’, the Impairment Points Determination gives it a particular and special meaning, not the ordinary meaning. For a condition to be permanent, under Rule 6, it means that it must be fully diagnosed by an appropriately qualified medical practitioner (a requirement that I find is satisfied in this case) but it must also be fully treated and fully stabilised. What those particular terms require me to consider is elaborated in Rule 6(5) and 6(6).  In terms of whether the Applicant’s mental health condition is fully treated, I must look at what treatment and rehabilitation has occurred and whether treatment is continuing or is planned in the next two years. 

46. Ms Thornton first started seeing Dr Roberts only three weeks before she lodged her application for DSP. He started her on a course of treatment which he has since had to alter because of significant side-effects, but he told the Tribunal that in the course of his care he has come to the conclusion that her psychosis is ‘treatment-resistant’. When asked whether he knew initially that the psychosis was treatment-resistant, Dr Roberts’ response was “That took time to establish”. Therefore, I conclude that this is an opinion he has come to after trying different treatments and assessing the effect on the Applicant.

47. I accept Dr Roberts’ evidence about his prompt clinical diagnosis of Ms Thornton’s PTSD and major depressive disorder conditions. I also accept his clinical opinion about the trajectory of Ms Thornton’s significant psychiatric condition.  On his evidence it was only after he had been treating her for some time that Dr Roberts came to his professional conclusion that her depressive disorder condition was treatment-resistant, and that was his conclusion after regular consultation with the Applicant and prescribing different and increasing doses of certain medicaments.

1. Deputy President Handley discussed the particular question of where continuing treatment of a person claiming DSP has not resulted in a hoped for improvement in Fanning and Secretary, Department of Social Services [2014] AATA 447 where he said, at [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 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.

   Besanko J, in Gallacher and Secretary, Department of Social Services [2015] FCA 1123 referred to this approach in Fanning with approval.

2. Given that this particular course of care by Dr Roberts commenced only 20 days prior to this DSP claim and has continued through and beyond the claim period, I am unable to find that Ms Thornton’s mental health conditions could be considered to be ‘permanent’ in the terms required in the Determination in the claim period. 

3. Mr Macri submitted that the Tribunal should have regard to the fact that mental health conditions, in particular, can fluctuate. I accept this fact and so take it into account, and note that that Rule 11(4) of the Determination requires a decision-maker to assess the overall impact on a person of an episodic or fluctuating condition in assigning impairment points, but that Rule also requires that the condition itself must have stabilised in the claim period.

4. This general circumstance is discussed in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 wherein Member Breen stated, at [34]:

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

5. As I explained at the hearing, I cannot look prospectively beyond the claim period of what might be the medical situation now, or what might have become the Applicant’s treated and stabilised medical health circumstances in the time between the claim period and this hearing.  Accordingly, the regrettable outcome is that I am unable to assign impairment points for her mental health conditions.

6. As mentioned above, the Impairment Tables for DSP are function-based, not simply diagnosis-based. Even if I were able to conclude that Ms Thornton’s mental health condition could be assessed using Impairment Table 5 – Mental Health Function, at the time of her claim she would not, on her own evidence at the hearing, meet the requirements of most of the Descriptors in this Table for the assignment of 20 impairment points for a ‘severe’ functional impact. At that time, she said she was living with two friends and was able to cook and clean, shop for groceries by herself, catch public transport independently, visit the pub, and was able to work. She told the Tribunal that she is no longer able to do many of these things independently, or in some cases at all. 

7. Her evidence at the hearing was that she was working “full-time, 6 days a week” for five hours a day, from 10 am until 3 pm. Mr Macri made a submission that Ms Thornton’s evidence about how much she was working at the relevant time was confused. Even accepting that Ms Thornton might have been mistaken about the number of hours she was working, the JCA recorded in September 2015 that she had been working as a housekeeper part-time until two months before, i.e. July 2015.  Ms Thornton gave some evidence of the deterioration in her functional capacity and the Tribunal notes that Mr Macri moved in to live in the same house as her in early 2016 to help care for her, but that evidence of deterioration, together with the now established treatment by Dr Roberts, would be relevant to a fresh claim for DSP, not this claim.

8. As the Tribunal is unable to assign 20 or more impairment points to Ms Thornton at the time of her claim or in the 13 weeks thereafter, she did not meet the requirements of section 94(1)(b) of the Act at that time, which is necessary for a successful DSP claim. Accordingly, it is not necessary for me to go on to consider whether she had satisfied the requirements of section 94(1)(c) of the Act in regard to a continuing inability to work.

   Conclusion

9. Ms Thornton’s situation may well be a clear case of someone who may now be medically qualified for DSP. But the Tribunal must apply the law. In undertaking this review of the original decision, I cannot replace it with a fresh decision that, on the basis of how the Applicant’s health is now, she may now meet the qualifications under the Act; I must carefully consider whether the original decision was correct at the time it was made. I have decided that it was.

10. It is open to the Applicant to make a fresh application for DSP at which subsequent medical evidence and changes in functional impact of impairments can be taken into account.

    DECISION

11. The Tribunal affirms the decision under review.

I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Morris, Member

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Administrative Assistant

Dated: 16 February 2017

Date of hearing:	17 January 2017
Representative for the  Applicant:	Mr F Macri
Representative for the  Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers