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

[2020] AATA 3494

Trajkovska and Secretary, Department of Social Services (Social services second review) [2020] AATA 3494 (10 September 2020)

Division:GENERAL DIVISION

File Number:          2019/5070

Re:Elica Trajkovska

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:D Cremean, Senior Member

Date:10 September 2020

Place:Melbourne

The Tribunal affirms the decision under review.

....[sgd]...................................................................

D Cremean, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – conditions including mental health condition – whether fully treated and diagnosed – qualification period – whether severe functional impact – no DSP entitlement – decision affirmed.

Legislation

Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

D Cremean, Senior Member

10 September 2020

BACKGROUND

1. The Applicant, Mrs Elica Trajkovska, seeks review of a decision made by the

   
   

   Social Services and Child Support Division of this Tribunal (“Tier 1”) dated

   
   

   5 August 2019. That decision affirmed a decision made on 18 December 2018 by the Respondent, the Secretary of the Department of Social Services, to reject the Applicant’s claim for Disability Support Pension (“DSP”) lodged on 16 October 2018.

2. In her DSP Claim form, the Applicant states that she suffers from the following conditions: chronic adjustment disorder; depression; anxiety; panic attacks; chronic pain syndrome; and disc prolapse C5-C6.

3. On 4 June 2019, an Authorised Review Officer (“ARO”) of Centrelink affirmed the decision to reject the DSP claim. Tier 1 affirmed that decision on the basis that the Applicant did not satisfy the requirements of the Act.

   HEARING

4. A hearing in this matter was conducted on 15 May 2020. The Applicant was self-represented and the Respondent was represented by Mr Ashley Burgess, a lawyer from Sparke Helmore.

5. The Applicant gave affirmed evidence by telephone and Mr Burgess asked questions of her in cross-examination.

6. No witnesses were called on behalf of the Respondent and no other witnesses were called.

   LEGISLATION

7. A person qualifies for DSP if they meet the requirements of s 94(1) of the Social Security Act 1991 (“the Act”), which relevantly provides as follows:

   94   Qualification for disability support pension

   (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 applies:

   (i)     the person has a continuing inability to work;

8. The Impairment Tables referred to are those mentioned in s 94(1)(b) of the Act and are set out in the SocialSecurity (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011 (“the Tables”). An impairment rating under the Tables is arrived at by assigning points according to the appropriate Table for the condition concerned. The Tables describe functional activities, abilities, symptoms and limitations. The points rating is function based rather than diagnosis based.

9. Before an impairment rating can be assigned under the Tables, qualifying criteria must be met. One of the criteria is that the condition must be permanent. In order for the condition to be permanent, it must be fully diagnosed, treated and stabilised. Another criterion is that the condition must be corroborated. Further, each of ss 94(1)(a), (b) and (c) of the Act separately must be satisfied.

   ISSUES

10. It was found by Tier 1 that the Applicant suffers from conditions which satisfy s 94(1)(a) of the Act. I am satisfied on the evidence that this is correct and that the Applicant satisfies s 94(1)(a) of the Act.

11. During the course of the hearing it became quite clear that the real issue is whether the Applicant satisfies s 94(1)(b) of the Act — that is, whether she qualifies for an impairment rating of 20 points or more under the Tables or, as regards her mental health condition, under one of the Tables (Table 5) . If I find that she does, the issue is then whether she also satisfies s 94(1)(c) of the Act.

12. Pursuant to cl 4(1) of Schedule 2 to the Social Security (Administration) Act 1999, these are all matters I must consider as at the date of her application or within 13 weeks thereafter — that is, from 16 October 2018 until 18 January 2019. This is called the “qualification period”.

13. Further, these are all matters I must decide on the evidence which is before me. I am not restricted to the evidence which was before Tier 1.

14. Considering the evidence before me, I must decide what is the correct or preferable decision in the matter and I proceed according to the civil standard of proof (on the balance of probabilities: that is, my findings must be made according to whether something is more likely than not to be so).

    CONTENTIONS

15. The Applicant contended that the decision under review should be set aside and that she has satisfied all the requirement of s 94(1) of the Act so far as it applies to her. It was clear to me, as I have indicated, that the focus of the hearing was on the Applicant’s mental health condition.

16. The Respondent contended that the Applicant does not satisfy s 94(1)(b) of the Act, but that, if she does, she does not satisfy s 94(1)(c), and accordingly the decision under review must be affirmed.

    APPLICANT’S EVIDENCE

17. It is unnecessary for me to set out verbatim what was said by the Applicant in evidence.

    
    

    I shall, instead, summarise its main points.

18. The Applicant seeks  review in this Tribunal because she says, in her application for review dated 14 August 2019, among other things, that the “previous decision-makers  failed to take into account all of the evidence which clearly supports a finding that I have a severe impairment under Table 5”.

19. The Applicant in her Application also refers to reports of psychiatrist Dr Surya Tipirneni, consultant psychiatrist, which she says indicate that she suffers from, in one instance, “severe depression” and, in another, “Chronic Major Depression”.

20. The first report of Dr Tipirneni is dated 30 October 2018 – which is during the qualification period – and states that “[t]he Applicant has developed Severe Depression, anxiety with panic attacks since March 2011 following her injury involving cervical neck (C5, C6 disc degeneration/deterioration and prolapse)”. This is repeated by Dr Tipirneni in her second report dated 20 February 2019 in which she adds that the “diagnosis psychiatrically is predominantly one of Chronic Major Depressive Disorder, Severe Type with Panic Attacks and Chronic Pain Syndrome. This is in the context of cervical neck injury with a disc prolapse at C5, C6.”.

21. In evidence the Applicant said that following a car accident in March 2011, she had gone home with a sore neck, and that the pain became so severe she was taken by her husband to the hospital. She was then put on strong pain relief medication. She stated that a chiropractor diagnosed a disc prolapse. After some weeks of treatment and rest, the pain gradually eased, and she was able to return to work.

22. After a period of time she tried full-time work but the pain was still affecting her, and one day on the way to work she had “a massive panic attack” on the freeway. She said she was in the middle of the freeway: “I was just in between where cars were coming from every direction”. She managed to move her car after a while and contacted her workplace. She was taken back to work and declined to go home. Since that time, she has not travelled on a freeway. She did not tell her husband or family about this for fear they would be upset with her, “[b]ecause they could see that I was in so much pain and I was killing myself and I wouldn’t listen to them”.

23. At about this time the Applicant says she suffered a “nervous breakdown” and ended up in hospital for three days. She said, “I had a nervous breakdown because I wanted to get better”. Following this the Applicant said she suffered panic attacks and could not leave the house. She said, “I couldn’t get in the car”, but she remembered her husband taking her once because “I couldn’t be on my own at home”. After this time, she said she could not work anymore.

24. The Applicant then gave evidence, in answer to questions from me, addressing the various descriptors in Table 5 of the Tables regarding her mental health function, as well as the question of whether she is capable of continuing to work.

25. In cross-examination the Applicant agreed, with reference to the qualification period, that there are days “when I really can’t remember”. She mentioned that she experiences a “really low mood” and every couple of months “I get into this really bad hysteria” which “would have happened” during that period – “I guarantee you”. “There’s no way”, she said, “that wouldn’t have happened then”.

26. The Applicant was then referred to the reports of Dr Tipirneni but she said, “I can’t even read any reports any more”. She said she feels “sick even looking at them”.

27. The Applicant was taken to a report of Dr Tipirneni dated 6 November 2019 (which was tendered as Exhibit B) and was asked whether that conveyed an accurate representation of what she had told Dr Tipirneni in respect of the qualification period. The Applicant said, “Oh my God. I can’t remember. I can’t remember”. Then when asked about her memory of events during the qualification period the Applicant’s answer was that: “I don’t keep a diary, I don’t remember, but I know I had [episodes of depression] the whole time”.

28. Other matters were asked of the Applicant about what she may have told Dr Tipirneni and she said, at one point, “I don’t know anymore, I’m so confused. I don’t know”. But she said, “all I can tell you is what I’m telling you now”.

29. In further evidence, the Applicant was asked about her statements about taking daily walks. But the Applicant answered, “If I did say daily, I meant to say …. I don’t do it every day that is certainly for sure”. She then clarified: “If anything I would probably do it twice a week at the moment”, and she agreed that this is what she was doing “back at the end of 2018”. She agreed she would walk to the shops and back carrying some items — a journey one way of about 30 minutes.

30. The Applicant was then asked about her evidence that she does not “speak at all to [her] husband”. However, she agreed she did speak to her husband when he would be showering her and doing other things. These would be times when she had reached a point where she described herself as “hysterical”.

31. The Applicant agreed she gave evidence before Tier 1 that she would have temper outbursts. When asked what she meant by this, she said, “temper… where I get my panic attacks, I probably meant that, I can’t remember” but she agreed this was “back in August 2019”.

32. The Applicant was then asked various questions about visits from her grandchildren.

    
    

    She said, “when I was really low, they wouldn’t come”. She acknowledged her grandchildren had moved closer to her. Referring to occasions when she would not see her grandchildren because they would not be brought over by her daughter she said, “she wouldn’t bring them because I just needed my space…”. But she said she could not recall telling Dr Tipirneni that. Then she added, “I’m getting so confused”. She said, “they wouldn’t come that often if I’m not well”. She said that “only my daughter would come”. Again, she added, “I’m getting so confused”.

33. As regards her panic attack when she was driving, as described above at para [‎22] of these reasons, she agreed she drives to the houses of her son and daughter – up to about 10 minutes away. Otherwise though she said she must have a person with her in the car – her husband or someone else, but she said she would “[r]arely, rarely do that”.

    
    

    The Applicant said she does not like “going out” or “going into shopping centres”. At this point the Applicant claimed she was “getting a really bad headache”, and cross examination concluded.

34. In clarification of aspects of the evidence she had given, the Applicant explained as regards her psychiatrist appointments:

    “It’s really, really hard for me to give you pinpoints. All I can say is that this happens — this has been happening like a lot where I go downhill and I just need my space. And it’s just hard for me to go back and tell you this is the date, this is the time, this is what’s happened, this is how I felt, it’s just really hard for me to pinpoint everything”.

35. As to communication with her husband, the Applicant said, “we just don’t have that connection anymore”. She said, “we’ve been through a lot and we just don’t know how to communicate anymore”. She described her husband as “very private”.

36. The Applicant confirmed that everything she had told me was “true” and she made it clear that she could not consider going back to work. She said she had not done a program of support but “no one asked [her] to do anything like that”.

    CONSIDERATION

    Section 94(1)(a)

37. I have already indicated that the Respondent concedes that the Applicant satisfies s 94(1)(a) of the Act and my view on the evidence is that that concession is rightly made.

38. Although the Applicant suffers from back pain, it is, in reality, her mental health condition that she relies upon as the condition justifying a finding being made in her favour on the question of DSP. I must comment as before that, at times, I have found her evidence exceedingly difficult to follow.

    Section 94(1)(b)

    Permanency

39. I noted earlier that to be awarded points under the Tables a condition must be “permanent”.

40. The Respondent concedes that the Applicant has: a fully diagnosed, treated and stabilised mental health condition (for which a rating of 10 points (moderate impairment) was awarded under Table 5 of the Tables, by Tier 1); and a fully diagnosed, treated and stabilised spinal condition in the C5/6 area of her neck (for which also a rating of 10 points (moderate impairment) was awarded under Table 4 of the Tables by Tier 1).

41. I consider these concessions are rightly made and justified.

42. It is also submitted by the Respondent that the impairment ratings which have been awarded to the Applicant are appropriate. It is submitted by the Respondent that the evidence is not such that I should make a finding of severe impairment for a 20-point impairment rating under Table 5 of the Tables in respect of the Applicant’s mental health condition.

43. On the other hand, as I have noted, the Applicant in her application claims that a finding of severe impairment is warranted. She refers, in particular, to the medical evidence.

44. As I see it, the principal question for me to consider is, therefore, whether the Applicant should be rated at 20 points for severe impairment under Table 5 of the Tables, or 20 points or more under more than one Table.

45. It was not submitted by the Applicant that I should consider whether 20 points for severe impairment is the appropriate rating for her spinal condition under the Tables. Accordingly, it is unnecessary, I consider, for me to say anything further about it, save for me to say that I am satisfied on the evidence that it warrants an impairment rating of 10 points under Table 4.

    Points rating for mental health condition

46. It then becomes a question of deciding whether to award a 20-point impairment rating for severe functional impairment in respect of the Applicant’s mental health condition using Table 5.

47. The descriptors for severe functional impact are as follows:

20

There is a severe functional impact on activities involving mental health function.

(1)     The person has severe difficulties with most of the following:

(a)    self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b)    social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c)    interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)    concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e)    behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f)    work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

1. The evidence in this case does not justify a finding of severe functional impact for the Applicant’s mental health condition during the qualification period.

2. As regards descriptor (1)(a), self care and independent living, I am not satisfied on the evidence that the Applicant needs regular support to live independently — that is, “needs visits or assistance at least twice a week from a family member, friend, health worker or support worker”. The Applicant never mentioned being visited by health workers or support workers. She did, however, mention there are “days when [she] can’t function”, days when she “can’t get out of bed”. On these days her daughter would come over and help her out and her daughter would “bring the grandkids, so they can lift [her] mood a little”.

   
   

   I accept that this does happen. But I am unable to say when it has taken place — whether during the qualification period or not — or how frequently it has occurred. Certainly, there is nothing on which I can base a finding that this happened at least twice a week during the qualification period or during any part of it.

3. The Applicant indicated this was happening “[t]wo to three times a week”, but it was apparent she was talking about the current day. Upon questioning, she indicated she was referring to the qualification period, but this was upon being reminded that that is the period that matters. I consider my questioning encouraged her to answer that way and as a result I am not satisfied that her independent recollections can be relied upon by me to say that she meets the requirements of descriptor (1)(a) in this regard. But even if I could be so satisfied, there would then be a question arising under cl 8 of the Tables about whether I could regard her evidence as corroborated.

4. The Applicant referred also to not wanting to go shopping and she said that “I don’t like being in crowds”. But she did state in her oral evidence that there were times where she would go on “daily walks” and she would do some shopping. Further, she said she “can’t drive long distances”.

5. But none of these other matters I consider shows a lack of capacity for independent living — at least during the qualification period.

6. The Applicant gave evidence of times she remembers when she would “completely shut down”, or have “massive panic attacks”, and her husband would carry her from the bed and into the shower to relax her. She confirmed that these occurred during the qualification period. She said these episodes occurred “more than twice, or at least twice” during the period but did not say whether this was weekly, fortnightly or monthly. Moreover, I must indicate I am not satisfied that they did in fact take place during that period because I do not consider the Applicant has a good recollection of the things that did happen during that period. Indeed, with reference to these episodes she said, “I can’t remember”.

7. A further example of her poor recollection of this critical period is her reference to her “daily walks”, which, under cross examination, became “I don’t do daily walks” and then altered again to a walk “probably” twice a week. The Applicant agrees she has problems with her recollections of the time: “it’s just really hard for me to pinpoint everything”, she said. But it is her recollection that I must rely upon in order to decide whether she qualifies for DSP. Medical opinions are only one of the considerations that I must take into account; her direct evidence is very important in assessing the functional impact of her conditions during the qualification period. 

1. As regards descriptor (1)(b), social/recreational activities and travel, the Applicant said that she was within this category. She referred to the local walks she took and to the local shops she would go to, and that she was not a member of any clubs or such like.

   
   

   She said, “I just couldn’t be around people”. However, she did say she takes an interest in listening to “some” talkback radio and she said she watches the news on television. So, in my view, she is not without recreational activities and she does see family.

2. But the Applicant lives in a rural location where social activities are possibly scarcer, and she did say that she is visited by her grandchildren and attends family events like birthdays. The clear impression I gained was that the Applicant is content seeing her family and does not need or want to see others outside the family circle. For instance, she was quite clear that “I just want to be on my own”. This appears to be strictly what she wants, and I am unable to attribute it to her mental health condition in the evidence she gave me or in the medical opinions I have seen.

3. As regards descriptor (1)(c), interpersonal relationships, when asked whether that applied to her, the Applicant said, “I’d say that it does”, which I did not consider as a confident assessment on her part. But she said, with reference to the qualification period, “I’ve lost most of my friends, most of my family because of the way I am”. She then said, “I don’t see anyone”. But this is not correct because she has been seeing her grandchildren when she has been up to doing so. She spoke of the absence of connection between herself and her husband but I am unable to determine whether this is due to her mental health condition or whether it is due to the nature of her husband’s personality, whom she said is a “very private” person.

4. In my view the Applicant was endeavouring somewhat to tailor her evidence to fit the descriptor. And I consider she was doing so by exaggerating her isolation to some extent. 

5. As I have already indicated, the Applicant lives in a rural location (which she described as “quiet”) and it is evident to me, in her own words, that: “I want to be on my own”, and that she wants to be that way because she does not need or want to see others outside the family circle. When she refers to losing “most of my friends” and “most of my family” because of the way she is, I am unable to be confident about making any finding referring this to the qualification period.

6. Nor am I satisfied that when she says, “the way I am”, she means because of her mental health condition or because of other reasons. This leaves the possibility that the way she is may not be attributable solely to her mental health condition as it may be that other factors are at work. I say nothing further about these. In any event, whether that be so or not, she still has friends left as well as some family members including her son and daughter and grandchildren.

7. As regards descriptor (1)(d), concentration and task completion, the Applicant said this applied to her because “I find it really hard to concentrate, I forget a lot” and that this was so (“[m]ost definitely”) during the qualification period. However, the evidence she gave was consistent with someone being merely forgetful (“I couldn’t tell you how many times I couldn’t find things”, she said) or merely not being bothered to concentrate on something (on watching television, she said, “I’m watching it just with my eyes”, and “my brain would just go with the fairies”). At another point, later on, she said there are days when she could not “be bothered doing anything”.

8. I did not regard the Applicant’s evidence as connecting her lack of concentration or forgetfulness with her mental health condition — her depression. She did not say that she was dominated by thoughts of depression such as to prevent concentration or cause forgetfulness. I am not overlooking either that the Applicant is getting on in years (age 57) and that her lack of concentration or forgetfulness could be just due to the ageing process. Moreover, despite her general assurances, I could not see that her issues with concentration and forgetfulness were distinctly related to the qualification period. Certainly, she has seemed to have no trouble concentrating sufficiently to complete (in a complex fashion) her application for review of the decision of Tier 1, if that is any guide.

9. As regards descriptor (1)(e), behaviour, planning and decision-making, the Applicant needed some encouragement to identify quite how this descriptor applied to her. But after a while she seemed confident that it did. Her evidence was more on the behaviour and planning sides. She took as an example of the former, my statement that behaviour could include lying in bed. As to this she said, “Most definitely”. She said, as to planning, there was no planning: “I don’t plan anything”, and added, “God, I wish I could”.

   
   

   She also spoke of tearful times talking to her grandchildren: “I would get teary because I love them so much”. She repeated, “I don’t know”, several times when asked if she wanted to add anything else about decision making.

10. I am not confident that the Applicant truly does meet this descriptor. I can accept that lying in bed is behaviour and that not a lot of planning for things (or looking forward to things) happens in the Applicant’s life. But I am not satisfied these are due to her mental health condition – except perhaps lying in bed and feeling, in her words, “I don’t have anything to look forward to. I don’t have a purpose.” But she did not volunteer much information at all about how she met this descriptor, in particular, about decision making. Further, I could not be satisfied that, if she did meet the descriptor at one point or another, that this was during the qualification period.

11. As regards descriptor (1)(f), work/training capacity, the Applicant considered that under this heading she would be too “low” to be able to go to work: “No way I could concentrate and go to work”. She attributed this to her depression. However, I doubt that I can say or find this is due wholly to her depression. She did not explain why she agreed (“Yes definitely”) it was attributable to her depression although the opportunity was offered.

12. Nor am I positively able to make a finding that this lack of capacity occurred during or even around the time of the qualification period. It must not be forgotten that the Applicant has now and even by then been out of the workforce for a long period of time and I would expect her to provide a negative answer on her capacity to work or train in any event.

    Conclusion

13. To be given a rating of 20 points under Table 5 for her mental health condition, I must be satisfied on the evidence that the Applicant has severe difficulties with most of the descriptors set out above.

14. Upon careful analysis of the evidence in this matter, I am unable to be satisfied that the Applicant has severe difficulties in the case of any of those descriptors. Or, if she does have difficulties in regard to any of the activities described in the descriptors, I am not satisfied that this is due to her mental health condition. Moreover, I am not satisfied that she had severe difficulty with the activity or activities during the qualification period.

15. I return to what I said earlier that it is conceded, and I accept also, that the Applicant has a mental health condition, but that is quite a different thing to saying that she therefore qualifies for a 20-point impairment rating under the Tables for it. As regards her failure to qualify, I must indicate also that I have not been able to be confident about relying on her recollection of events during the quite precise qualification period and it is her recollection of events which principally is critical.

16. In light of my findings, it is unnecessary to consider the issue of corroboration which was raised.

17. In consequence of the above, I find the Applicant does not satisfy s 94(1)(b) of the Act.

18. I note the medical reports in the case, which I have considered and taken into account, but I base my conclusion on the evidence given to me by the Applicant.

    Section 94(1)(c)

19. Being satisfied the Applicant does not meet the requirements of s 94(1)(b) of the Act it is unnecessary for me to express any view about s 94(1)(c) except to note that the Applicant has not participated in a program of support.

20. According to ss 94(2aa) and (3B) of the Act, it would have been necessary for the Applicant to have done so, in that, while she qualifies for 20 points across multiple Tables, she does not qualify for 20 points under a single Table.

    DECISION.

21. I shall not depart from the decision of Tier 1 in light of concessions made and in light of my own findings.

22. Accordingly, the Tribunal affirms the decision under review.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of D Cremean, Senior Member

....[sgd]...................................................................

Associate

Dated: 10 September 2020

Date of hearing:	15 May 2020
Applicant:	By telephone
Advocate for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers