Twining; Secretary, Department of Social Services and (Social services second review) - [2019] AATA 5296

Twining; Secretary, Department of Social Services and (Social services second review) [2019] AATA 5296 (11 December 2019)
Division:GENERAL DIVISION
File Number: 2017/5111
Re:Secretary, Department of Social Services
APPLICANT

Elizabeth TwiningAnd
RESPONDENT

DECISION
Tribunal: Damien Cremean, Senior Member
Date:11 December 2019
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the Respondent did not satisfy the requirements of paragraph 94(1)(b) of the Social Security Act 1991 as at the date the claim was lodged.
.....[sgd]........................................................
Damien Cremean, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – mental health conditions – migraines whether fully diagnosed, treated and stabilised – whether impairment attracts rating of 20 points or more under the Impairment Tables – whether Respondent has a continuing inability to work – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Damien Cremean, Senior Member
11 December 2019

The Respondent (Ms Elizabeth Twining) applied to Centrelink for disability support pension (‘DSP’) under the Social Security Act1991 (Cth) (‘the Act’) on 3 February 2016. Her application was rejected by the original decision-maker on 16 September 2016, because her impairments did not attract a total of 20 impairment points and she did not have a continuing inability to work.
Ms Twining was not therefore qualified for payment of DSP considering the terms of section 94 of the Act. She then sought an internal review of that decision on 5 October 2016 which was subsequently affirmed by a Centrelink authorised review officer (‘ARO’) on 16 January 2017.
Ms Twining then sought review of the ARO’s decision by the Social Services & Child Support Division (‘Tier 1’) of this Tribunal. Tier 1 made a decision in favour of Ms Twining on 25 July 2017, setting aside the ARO’s decision and remitting the matter to Centrelink for reconsideration with the Direction that she satisfies the provisions of paragraphs 94(1)(a), (b) and (c) of the Act. Centrelink is the service provider for the Department of Social Services.
The Applicant (the Secretary, Department of Social Services) now seeks review of the Tier 1 decision made on 25 July 2017.
The Applicant submits that the Tier 1 decision should itself be set aside and that DSP is not payable to the Respondent. This is opposed by the Respondent who submits, in effect, that the Tier 1 decision is correct and that the decision to set aside the original decision should be affirmed.
The hearing in this matter took place over two separate days on 20 and 21 June 2019. The Applicant was represented by Mr Nacion of Sparke Helmore Lawyers. The Respondent was represented by Ms Dhanji of Counsel, instructed by Ms Chowdhry of Victoria Legal Aid.
Prior to the hearing, on 14 June 2019, I declined an application for an adjournment made by the Applicant to enable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Twining; Secretary, Department of Social Services and (Social services second review) [2019] AATA 5296
Case: [2019] AATA 5296
Decision Date: 11 December 2019

CaseChat Overview and Summary

This matter concerned an appeal by Ms Twining against a decision by the Secretary of the Department of Social Services regarding her eligibility for a disability support pension. The core of the dispute revolved around whether Ms Twining's diagnosed mental health conditions, specifically depression and anxiety, along with her migraines, met the criteria for a disability support pension under the relevant legislation. The case was heard by Senior Member Damien Cremean.

The legal issues before the Tribunal were whether Ms Twining's conditions were fully diagnosed, treated, and stabilised, and whether these impairments attracted a rating of 20 points or more under the Impairment Tables. Crucially, the Tribunal also had to determine if Ms Twining had a continuing inability to work, as required by section 94(1)(c) of the Social Security Act 1991 (Cth).

The Senior Member considered evidence from Ms Twining, her treating general practitioner, and various medical experts, including a neurologist, a psychiatrist, and another medical practitioner. While acknowledging that Ms Twining suffered from depression, anxiety, and migraines, the Senior Member found that the expert opinions, including those called on behalf of Ms Twining, indicated that depression and anxiety were separate conditions. The Senior Member was satisfied that Ms Twining suffered from these conditions during the qualification period. However, the Senior Member concluded that it was unnecessary to consider section 94(1)(c) as Ms Twining did not satisfy the requirements of section 94(1)(b) of the Act, which necessitates that the condition causing the impairment be permanent and likely to persist for more than two years. The Senior Member also noted that Ms Twining herself indicated her migraines, rather than her depression and anxiety, affected her day-to-day living.

Ultimately, the Senior Member determined that the decision under review could not stand and was set aside. However, this did not result in Ms Twining qualifying for the disability support pension. Instead, the original decision that Ms Twining was not qualified for the pension was reinstated, as she did not satisfy the requirements of section 94(1)(b) of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

If the Respondent’s conditions are found to be permanent, it is then a matter of considering the appropriate impairment rating to be given, particularly under Table 5. Subsequently, if an impairment rating is assigned, I must then consider whether the Respondent satisfies section 94(1)(c) of the Act.EvidenceEvidence of Ms Twining There was no witness statement prepared on behalf of the Respondent, her evidence is what she said in the witness box. The Tribunal would have been assisted by such a statement having been prepared. Ms Twining gave sworn evidence which was quite hard to follow at times, due to some vagueness or confusion and reticence in answering some questions. She gave evidence that she is a married woman and mother of six children ranging in ages from 14 to 28. She lives at home in Macleod with her husband. Her only source of income has been Centrelink benefits. She last worked in about 1993 for a television rental company. She said her treating GP is Dr Anthony Michaelson and she first went to see him in maybe 2008 or 2009; initially for migraines she was suffering from but also for a sore knee and about my mental health issues. She said she considered him rather gruff… very short and to the point. She said she recalled her first migraine at about age 15 or 16 but she said she has never seen a specialist about her migraine problem and, despite trying a whole heap of different medications… nothing has worked. She was referred to a Dr Peppard, a neurologist, for Botox treatment but could not afford to see him—as she was advised she would have to see him every three months. She was told he was the only one that did it. She recalled she was still affected by migraines at the time of her claim for DSP at an average of about two a week. During these episodes, which last about two days, she said she would go to bed and turn the lights off. She said she cannot tolerate light or noise on these occasions. When she has a migraine she says I can’t do anything. She added: even to take myself to the bathroom can be a problem—meaning more how I get to the bathroom. The Respondent said she recalls speaking to Dr Michaelson about depression in about 2009 or 2010. She recalls that he diagnosed her with depression in consultation with his mental health nurse. She spent some time with the mental health nurse going through a whole heap of tables and other things for her depression and anxiety. She had seen Dr MacLeod, who she thinks was a clinical psychologist, about both conditions. She indicated she was not sure that her sessions with him were of benefit but they may probably have done her a little good. She thought she had last seen him in 2011 or maybe earlier. Ms Twining said she was always discussing depression/anxiety with Dr Michaelson but could not recall or did not know whether he had diagnosed her with anxiety or social phobia. She stated that he never discussed depression separately to anxiety with her—not with me anyway she said. At the time of her claim for DSP she said she was affected by it most days.

Decision

Reasons for decision

It is unnecessary to consider whether Ms Twining satisfies section 94(1)(c) as the question does not arise in the circumstances. But I should indicate my view that after the qualification period and for a period of two years she probably was capable of working but was possibly disinclined to do so for one reason or another. In any event, Ms Twining indicated in evidence that it was her migraines rather than her depression and anxiety which affected her day-to-day living. CONCLUSION For the reasons I have given I am satisfied that the decision under review cannot stand and must be set aside. Accordingly, the decision of Tier 1 of this Tribunal is set aside meaning that the original decision that Ms Twining was not qualified for DSP must stand as she does not satisfy the requirements of s 94(1)(b) of the Act.

Ratio Decidendi

Legal Principle Established

Dr Michaelson said it was hard for him to sort of generalise about Ms Twining because he only saw her briefly, you know, every couple of months.CONSIDERATION In reaching a decision in this matter I have taken into account the evidence of each of the witnesses summarised above. I have also taken into account: ·the materials in the T-documents; ·the various exhibits tendered at the hearing; ·the Statement of Facts, Issues and Contentions lodged by each party; and·the submissions of the parties provided both orally at the conclusion of the hearing and in writing after the hearing. As stated above, for the purposes of section 94(1)(b) of the Act, an impairment rating can only be assigned where, during the qualification period, the condition causing the impairment is permanent and is more likely than not to persist for more than two years. In this regard, I took the opinion of Dr Schutz to be that Ms Twining is suffering anxiety rather than ongoing or continuing depression. My view is that there is value in seeing and hearing from an expert in person. That does not mean, however, that an expert’s opinion must be accepted merely because it is given in person In this matter, as it happens, I agree with both Drs Cidoni and Michaelson as regards the Respondent’s depression and also with them, and Dr Schutz, as regards her anxiety. I am quite satisfied that a GP is capable of diagnosing depression and anxiety as well as migraines and a myriad other conditions. I consider that upon the evidence given by Ms Twining, it is reasonable for me to find that over a long period of time, well before the qualification period started, she was suffering the conditions in question, namely depression, anxiety and migraines. In respect of migraines I accept her evidence that her condition goes back to her young adult years. I agree also with Drs Cidoni and Michaelson and find that Ms Twining was suffering from depression, anxiety and migraines during the qualification period. However, this last point needs to be qualified because, before I can be satisfied that Ms Twining qualifies for impairment points under the Tables, there are certain threshold and other matters which need to be met. The Respondent submits that anxiety is a symptom of depression and this also was the evidence of Dr Michaelson. However, Dr Michaelson is not a trained psychiatrist and it was the opinion of Dr Cidoni, who is a trained psychiatrist, that in addition to suffering major depression Ms Twining has also been suffering social anxiety. I regard social anxiety I should say as the same as social phobia for present purposes. It is plain to me that Dr Cidoni regarded depression and anxiety as two separate conditions although he said they can be quite difficult to disentangle from one another. Dr Schutz in evidence also said they are separate conditions although they can co-exist. He even went so far to say that anxiety is not a psychiatric diagnosis but is merely a general term. In my view, the balance of expert opinion, including expert opinion called on behalf of Ms Twining, is to the effect that the two conditions are separate and therefore I do not accept the submission that one is only a symptom of the other. In fact, accepting what Dr Schutz reported her as saying, it was even Ms Twining’s view that her depression and anxiety are separate.