Van Twest and Secretary, Department of Social Services (Social services second review)
[2022] AATA 326
•25 February 2022
Van Twest and Secretary, Department of Social Services (Social services second review) [2022] AATA 326 (25 February 2022)
Division:GENERAL DIVISION
File Number:2021/2635
Re:Terese Van Twest
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:25 February 2022
Place:Brisbane
The decision under review is affirmed.
............[SGD]..............................................
Member D Mitchell
Catchwords
SOCIAL SECURITY – disability support pension cancellation – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables at the date of cancellation – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (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)
Cases
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
REASONS FOR DECISION
Member D Mitchell
25 February 2022
INTRODUCTION
Ms Terese Van Twest (the Applicant) was granted the Disability Support Pension (DSP) on 2 June 1994.[1]
[1] Exhibit 1, T Documents, T33, page 176, Centrelink Mainframe Screens: Pension Status History.
On 23 July 2020, the Respondent informed the Applicant that she had been selected for a review of her DSP.[2] The notice required the Applicant to attend an appointment at which she needed to bring completed Income and Assets, Medical Report – Disability Support Pension and Rent Certificate Forms.[3]
[2] Exhibit 1, T Documents, T34, page 187, Centrelink document list and customer contact notes.
[3] Exhibit 2, ST 18, pages 99-101, Selected for Disability Support Pension Review Letter.
In the completed Medical Report – Disability Support Pension Review form dated
14 August 2020, Dr Sabai Naing, general practitioner identified that the conditions having a significant impact on the Applicant’s ability to function were asthma, osteoarthritis of the right knee and anxiety.[4]
[4] Exhibit 1, T Documents, T14, pages 89-99, Medical Report Disability Support Pension Review Section B completed by Dr Naing.
On 16 September 2020, the Applicant attended a telephone appointment with a Job Capacity Assessor (JCA) who in a report dated 23 September 2020 recommended that the Applicant’s:[5]
·asthma was fully diagnosed, treated and stabilised, caused a mild functional impairment and could be assigned an impairment rating of 5 points under Table 1 of the Impairment Tables;
·right knee condition was fully diagnosed, fully treated and fully stabilised, caused a mild functional impairment and could be assigned an impairment rating of 5 points under Table 3 of the Impairment Tables; and
·mental health condition was not fully diagnosed, fully treated or fully stabilised.
[5] Exhibit 1, T Documents, T17, pages 104-115, JCA Report.
On 28 September 2020, the Respondent decided that the Applicant was not qualified for DSP and cancelled the payment on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables.[6]
[6] Exhibit 1, T Documents, T18, pages 116-117, Centrelink Notice: DSP Eligibility.
On 30 October 2020, the Applicant requested a review of the cancellation decision.[7]
[7] Exhibit 1, T Documents, T23, pages 127-133, Statutory Declaration completed by the Applicant.
This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on
6 November 2020.[8]
[8] Exhibit 1, T Documents, T25, pages 135-142, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD).[9] On 19 March 2021, the SSCSD affirmed the decision to cancel the Applicant’s DSP.[10]
[9] Exhibit 1, T Documents, T31, pages 165-166, Request for Statement.
[10] Exhibit 1, T Documents, T2, pages 3-12, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 19 April 2021.[11]
[11] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
On 30 August 2021, Dr Sandra Armstrong, medical advisor of the Health Professional Advisory Unit (HPAU) of Services Australia provided a report in relation to the Applicant’s conditions at the Date of Cancellation.[12] Dr Armstrong, opined that at the Date of Cancellation, the Applicant’s:[13]
[12] Exhibit 2, Supplementary T Documents, ST1, pages 1-12, HPAU Report completed by Dr Armstrong.
[13] Exhibit 2, Supplementary T Documents, ST1, pages 1-12, HPAU Report completed by Dr Armstrong.
·
asthma/COPD was fully diagnosed, fully treated and fully stabilised and caused a moderate functional impairment and could be assigned an impairment rating of
10 points under Table 1 of the Impairment Tables;
·right knee condition was fully diagnosed, fully treated and fully stabilised and caused a mild functional impairment and could be assigned an impairment rating of 5 points under Table 3 of the Impairment Tables;
·mental health condition was fully diagnosed however was not fully treated and fully stabilised;
·sinus tachycardia, sleep apnoea, PTSD, type 2 diabetes, lumbar spine conditions could not be assigned an impairment rating under the Impairment Tables; and
·work capacity could improve to 15-22 hours per week, within the following two years, with intervention.
On 18 February 2022, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether at the Date of Cancellation the Applicant met the DSP eligibility requirements.
THE LAW
The relevant law in assessing a person’s ongoing qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).Section 23 of the Act provides that DSP is a social security payment.
Section 80 of the Administration Act provides that where the Respondent is satisfied that a social security payment is being paid to a person who is not qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.
Section 94 of the Act prescribes the criteria that must be met in order to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[14]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[15] and
3.does the Applicant have a continuing inability to work?[16]
[14] Section 94(1)(a) of the Act.
[15] Section 94(1)(b) of the Act.
[16] Section 94(1)(c)(i) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012.[17] Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
[17]Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[18]
[18] Section 6(3)(a) of the Determination.
The word “permanent” takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[19] As such, a condition could be considered permanent from the perspective of it being life-long, but would not meet the definition under the DSP requirements.
[19] Sections 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must 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.[20]
[20] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[21]
(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.
[21] Section 6(6) of the Determination.
Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[22]
[22] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[23] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[24]
[23] Section 6(2) of the Determination.
[24] Section 8(1) of the Determination.
Where a person was in receipt of the DSP prior to 1 July 2006, the saving and transitional provisions of Schedule 1A of the Act and section 9 of Schedule 2 of the Employment and Workplace Relation Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth) apply so that they are subject to the definition of work as it appeared in the Act prior to 1 July 2006. In such circumstances for a person to be found to have a continuing inability to work and therefore satisfy the requirements of section 94(1)(c) of the Act they must be unable to work for at least 30 hours a week on wages at or above the relevant award at the Date of Cancellation.[25]
[25] Noting that in considering a DSP cancellation a person is not required to have participated in a program of support, see section 94(3A) of the Act.
RELEVANT PERIOD
The relevant period in this matter is the day on which the Applicant’s DSP was cancelled, being 28 September 2020 (Date of Cancellation).[26] The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions, functional impairments and inability to work as they were at the Date of Cancellation.
[26] As per Shi v Migration Agents Registration Authority [2008] HCA 31, [144]-[145].
ISSUES
Based on the evidence before the Tribunal it is clear that the Applicant had impairments at the Date of Cancellation and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[27]
[27] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 6, paragraph 39.
Based on the evidence before the Tribunal and in light of the transitional definition of work that applies in this matter for the purposes of determining whether the Applicant had a continuing inability to work, it is clear that she did not have the ability to work 30 hours a week at the Date of Cancellation. The Tribunal therefore finds that the Applicant met the requirement of section 94(1)(c) of the Act at the Date of Cancellation. This point is not in contention.[28]
[28] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 12-13, paragraphs 88-94.
As such the remaining issue for the Tribunal to consider is whether, at the Date of Cancellation, the Applicant’s impairments attracted 20 points or more under the Impairment Tables. The Respondent considers the Applicant’s impairments at the Date of Cancellation included: asthma/COPD,[29] osteoarthritis of the right knee[30] and mental health conditions,[31] as well as lower back pain, dizziness, tachycardia, high blood pressure, high cholesterol, type 2 diabetes and critical illness myopathy[32] conditions (collectively other conditions).
[29] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraphs 41-54.
[30] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-10, paragraphs 55-67.
[31] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 68-80.
[32] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 12, paragraphs 81-86.
IMPAIRMENT TABLES
The Impairment Tables set out in the Determination outline the requirements to assess a person’s functional impairment resulting from a condition which is considered to be permanent for the purposes of the Determination. The relevant descriptors for the Impairment Tables that have been raised as being applicable in this matter are set out below.
Table 1 of the Impairment Tables deals with functional impairment when performing activities requiring physical exertion or stamina and provides as follows:[33]
Table 1 – Functions requiring Physical Exertion and Stamina
[33] Impairment Table 1 – Functions requiring Physical Exertion and Stamina, Part 3 of the Determination.
Introduction to Table 1
- Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
- The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
- Self-report of symptoms alone is insufficient.
- There must be corroborating evidence of the person’s impairment.
- Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
- a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
- results of exercise, cardiac stress or treadmill testing.
Points
Descriptors
0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
Table 3 of the Impairment Tables deals with functional impairment when performing activities requiring the use of legs or feet and provides as follows:[34]
Table 3 – Lower Limb Function
[34] Impairment Table 3 – Lower Limb Function, Part 3 of the Determination.
Introduction to Table 3
· Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
- a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
- results of diagnostic tests (e.g. X-Rays or other imagery);
- results of physical tests or assessments showing impaired function of the lower limbs.
· For the purposes of this Table lower limbs extend from the hips to the toes.
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
Table 5 of the Impairment Tables deals with functional impairment due to a mental health condition and provides as follows:[35]
Table 5 – Mental Health Function
[35] Impairment Table 5 – Mental Health Function, Part 3 of the Determination.
Introduction to Table 5
· Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
- interviews with the person and those providing care or support to the person.
· In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
· The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
· The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
· For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
Points
Descriptors
0
There is no functional impact on activities involving mental health function.
(1) The person has no difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently and attends to all self care needs without support.
(b) social/recreational activities and travel;
Example 1: The person goes out regularly to social and recreational events without support.
Example 2: The person is able to travel to and from unfamiliar environments independently.
(c) interpersonal relationships;
Example: The person has no difficulty forming and sustaining relationships.
(d) concentration and task completion;
Example 1: The person has no difficulties concentrating on most tasks.
Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.
(e) behaviour, planning and decision-making;
Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.
(f) work/training capacity.
Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
5
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
APPLICANT’S EVIDENCE AT HEARING
At Hearing, the Applicant gave evidence under affirmation. The Tribunal considers that the Applicant was open and honest with her answers to the questions she was asked. The Tribunal accepts that the Applicant has multiple health concerns that impact on her ability to undertake daily activities. It was clear to the Tribunal that the Applicant enjoys the work that she does undertake however her ability to undertake such work is affected by her poor health.
At Hearing the Applicant told the Tribunal that:
·
She agrees that her asthma should be assigned 10 impairment points under
Table 1 of the Impairment Tables as the level of functional impairment is always at a 10 point rating and sometimes at 15 points.
·Her asthma does not limit her ability to cook, clean her bathroom/toilet, self-care or tidy up, those things are affected by her mental health, hip, knee, back and shoulder conditions.
·It was accurate to say that around the Date of Cancellation she was walking her dogs for 40 minutes when she could, however her dogs stop a lot which gives her time to catch her breath and rest her knee. When she can, she will sit or lean on a fence to have a break. So the 40 minutes are not 40 minutes of continual walking.
·She needs to take transport everywhere as she is constantly short of breath.
·She agrees she could walk 500 to 600 metres however would need her puffer and a rest if she was to walk that distance all at once. She could do it if she had to but would not do it if she did not have to.
·When she goes shopping, she uses a trolley as a walking frame and sits down when she needs to.
·She agrees that her knee condition should be assigned 5 impairment points under Table 3 of the Impairment Tables.
·She cannot stand in one spot for 10 minutes, she needs to move around or sit down a lot.
·She can only sit for half an hour as it is too painful.
·She does not use a walking stick but sometimes uses her umbrella to help her when she is walking.
·When she is walking her knee plays up so even if she was not short of breath she would still need to stop and rest.
·She has a neck issue that started at the beginning of 2020 after surgery and if her neck is out she feels dizzy.
·She has bursas of the shoulder.
·She suffers from neck, back, shoulder, hip and knee pain.
·Her knee is painful when walking or driving.
·She manages this pain by taking Panadol during the day and Panadol Forte or Endone in the evening so she can sleep.
·Her mental health condition is not a new condition. She was diagnosed with it when she was very young and has had a lot of treatment over the last 20 years.
·She is unable to provide evidence of the treatment she has received as it is no longer in existence and she should not be penalised for that.
·She is on new medication and seeing a psychologist, and as a result, her mental health has improved a bit, but not significantly.
·She was diagnosed after her DSP was cancelled with PTSD and her depression and anxiety relates to that as well.
·She relied on the DSP to access treatments for her conditions, since cancellation she can no longer afford those treatments and she feels that her conditions are now deteriorating and becoming unstable.
·She believes that her depression and anxiety were fully diagnosed, fully treated and fully stabilised at the Date of Cancellation.
·She uses cannabis to treat her mental health as she believes it is the most effective treatment for her anxiety.
·When asked what her view was of Dr Duke’s and other practitioners’ opinions that she should cease using cannabis, she understands why they say that and that there is evidence to support that cannabis can make mental health worse, however her viewpoint is that for her it is good for her anxiety. She knows that smoking cannabis is bad for her asthma, but she needs it for anxiety. If she stops using cannabis, she cannot function at all, cannot leave the house and her blood pressure goes up.
·She has accepted that her mental health is the best it will be.
·Prior to the review of her DSP she had last seen a psychologist and used medication in 2012. The treatment at that time did not work, rather it made her worse. She felt she is better off treating herself, so she did not seek any further conventional treatment.
·She sought referral to a psychologist in 2020 as she was overusing her Ventolin inhaler and her mother had passed away in August and she had thought it was a good time to see a counsellor.
·She considers that her depression and anxiety should be assigned at least
5 impairment points under Table 5 of the Impairment Tables, as it causes a consistent functional impairment of 5 impairment points and at times 10 impairment points when the conditions are fluctuating.·Her lower back pain, dizziness, tachycardia, high blood pressure, high cholesterol, type 2 diabetes, critical illness myopathy, sleep apnoea, hip, shoulder and neck conditions are all relevant. They do not affect her function that much on their own as she manages them with medication, exercise and physiotherapy. They are however impacted upon by her three main conditions, for example, when her anxiety is bad her blood pressure goes up.
·The management of all of her conditions take a toll on her.
·She has been employed as a casual disability support worker for a number of years and she enjoys that work.
·She has been working with a client who she assists to spend time in the community for two, 2 hour shifts a week.
·Her hours may increase to two, 3 hours shifts a week however that is her limit.
·When she can work more she does however she cannot do the level of work Centrelink wants her to.
·
30 hours a week of work is definitely out of the question, she is comfortable with
4 to 6 hours a week on average.
·Overall, she contended that she should be assigned 10 impairment points under Table 1 and 5 impairment points under Tables 3 and 5 of the Impairment Tables and as such her DSP should be reinstated.
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
Asthma/COPD condition
The Respondent accepts that the Applicant’s asthma/COPD condition was fully diagnosed, fully treated and fully stabilised at the Date of Cancellation based on the medical reports provided by Dr Naing and Dr Seneviratna, respiratory physician. The Respondent contended that this condition causes the Applicant a moderate functional impairment which can be assigned no more than 10 impairment points under Table 1 of the Impairment Tables.[36]
[36] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraphs 41-54.
At Hearing the Applicant told the Tribunal she agrees that her asthma condition should be assigned 10 impairment points under Table 1 of the Impairment Tables.
The Tribunal, having considered the material before it in totality, notes that, the summary of evidence set out by the Respondent in paragraphs 42-53 of its Statement of Facts, Issues and Contentions,[37] together with the evidence provided at Hearing by the Applicant, paints the picture that the functional impact caused by the Applicant’s Asthma/COPD condition at the Date of Cancellation is in line with the 10 impairment point rating under Table 1 of the Impairment Tables.
[37] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraphs 42-53.
Based on the evidence before it, the Tribunal finds that the Applicant’s asthma/COPD condition was fully diagnosed, fully treated and fully stabilised at the Date of Cancellation and can be assigned a rating of 10 impairment points under Table 1 of the Impairment Tables.
Right knee condition
The Respondent accepts that the Applicant’s osteoarthritis of the right knee condition was fully diagnosed, fully treated and fully stabilised at the Date of Cancellation based on the medical reports provided Dr Naing and Dr Armstrong and the available x-rays. The Respondent contended that this condition causes the Applicant a mild functional impairment which can only be assigned 5 impairment points under Table 3 of the Impairment Tables.[38]
[38] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-10, paragraphs 55-67.
At Hearing the Applicant told the Tribunal she agrees that her right knee condition should be assigned 5 impairment points under Table 3 of the Impairment Tables.
The Tribunal, having considered the material before it in totality, notes that, the summary of evidence set out by the Respondent in paragraphs 56 to 62 of its Statement of Facts, Issues and Contentions,[39] together with the evidence provided at Hearing by the Applicant, paints the picture that the functional impact caused by the Applicant’s right knee condition at the Date of Cancellation is in line with the 5 impairment point rating under Table 3 of the Impairment Tables.
[39] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 56-62.
In considering the appropriate impairment rating under Table 3 of the Impairment Tables the Tribunal also considered the descriptor for a 10 impairment point rating.
The Tribunal notes that while in relation to the Applicant’s asthma/COPD condition the impairment rating was assigned in part on the basis that she was unable to walk far outside the home and needs to drive or get other transport to local shops or community facilities, that rating was made in light of supporting medical evidence and on the basis that the Applicant’s reduced walking capacity was a result of her frequent symptoms of shortness of breath.
In contrast in relation to the functional impact of the Applicant’s right knee condition, while the Tribunal notes the Applicant’s evidence that her knee pain restricts her walking capabilities and requires her to take rests, there is no supporting medical evidence that this condition causes her to be unable to walk far outside her home, requiring her to need to drive or get other transport to local shops or community facilities. The introduction to Table 3 of the Impairment Tables provides that self-reporting of symptoms alone is insufficient, there must be corroborating evidence of the person’s impairment. The only direct medical evidence in this regard before the Tribunal was provided by Dr Naing who opined that the Applicant may experience some difficulty with walking long distances and navigating stairs due to knee pain but that it was manageable with simple analgesia and panadeine forte.[40]
[40] Exhibit 1, T Documents, T15, page 101, Disability Support pension Medical Eligibly Assessment Recommendation.
Consequently, the Tribunal considers that the Applicant’s inability to walk far outside her home and need to drive or get other transport to local shops or community facilities is predominately resultant of her asthma/COPD, rather than her right knee condition. Further there is no evidence before the Tribunal that the Applicant was unable to use stairs or steps without assistance or was unable to stand for more than 5 minutes.
Based on the evidence before it, the Tribunal finds that the Applicant’s right knee condition was fully diagnosed, fully treated and fully stabilised at the Date of Cancellation and can be assigned a rating of 5 impairment points under Table 3 of the Impairment Tables.
Mental health conditions
The Respondent accepts that the Applicant’s depression and anxiety conditions were fully diagnosed at the Date of Cancellation, however contended that they were not fully treated and fully stabilised.[41] The Respondent relied on the following summary of the evidence before the Tribunal:[42]
[41] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 10, paragraph 68.
[42] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 69-80.
69.The Applicant’s Medical Report for DSP review noted that these conditions were treated through psychotherapy with Ms Alpana Baruah (Clinical Psychologist) (T12, 83).
70.On 14 August 2020 the Applicant’s doctor, Dr Naing completed a Medical Report for a DSP review (T14, 88-89). Dr Naing noted that the Applicant had anxiety since childhood and that the condition was diagnosed in 1978. Dr Naing listed the Applicant as being treated with an SSRI and that she was awaiting psychologist treatment (T14, 99).
71.Dr Naing was contacted by the Agency on 2 September 2020 and noted that, in respect of the Applicant’s anxiety and depression, the Applicant was recently referred for psychotherapy, she took medication for the conditions and that it appeared to have been some time since the Applicant had engaged in therapy. Dr Naing expected that some improvement in function could occur with treatment (T15, 101).
72.The JCA submitted 23 September 2020 notes that the Applicant reported she had engaged in one session of psychotherapy with Ms Baruagh and planned to attend more sessions in the future. The Applicant stated that she last saw a psychologist twenty years prior and that she saw a psychiatrist as a child. The Applicant advised she started taking Lexapro one month prior to the assessment and that she had not being on any antidepressants since approximately 2010. The Applicant stated the Lexapro was helping with her mood but not her anxiety. The Applicant also noted that she self-medicated most days with cannabis (T17, 107).
73.In a report dated 17 December 2020, Ms Baruagh confirmed a diagnosis of anxiety and depression (T32, 170). Ms Baruagh noted that the Applicant was being discharged from her care after six sessions because the Applicant was relocating (T32, 171). Ms Baruagh encouraged the Applicant to cease her use of cannabis. Ms Baruagh also noted that the Applicant reported to find the sessions very beneficial and that the Applicant wished to continue therapy.
74.On 18 February 2021 Dr Noella MacPherson GP referred the Applicant to BayPscyh Consultants for a further six visits with a psychologist (T32, 173).
75.On 8 July 2021 Dr Carlota Cunha GP referred the Applicant to Dr Spencer Duke (Psychiatrist) (ST3, 14-15).
76.On 15 July 2021 Dr Duke wrote an initial report for Dr Cunha (ST5, 18-19). Dr Duke noted the Applicant’s history of treatment, personal trauma and recent deterioration of functional impairment (ST5, 18-19). Dr Duke diagnosed the Applicant with PTSD and confirmed the diagnoses of generalised anxiety, relapsing depression and agoraphobia (ST5, 19). Dr Duke noted that the Applicant’s use of cannabis may impair her ability to improve her mental health (ST5, 19). Dr Duke encouraged the Applicant to seek a clinical psychologist and discuss her history of personal trauma and build resilience against using cannabis. Dr Duke noted the Applicant could continue on her dose of 20mg of Lexapro.
77.On 27 September 2021 Dr Cunha completed a report in relation to an NDIS application (ST8, 31-35). That report details the Applicant’s medications for her mental health conditions including Sertraline from 2010 to 2011, Mirtazapine since 2011, sodium valproate from 2010 to 2011, Escitalopram since 2020 and psychotherapy since August 2021 (ST8, 33).
78.On 11 November 2021 Dr Cunha completed a Mental Health Plan in respect of the Applicant with treatment including schema therapy, cogitative behavioural therapy and medication (ST11, 40).
79.Dr Armstrong’s report dated 30 August 2021 considered the Applicant’s mental health conditions to be not fully treated and stabilised (ST1, 4-5). Dr Armstrong particularly noted the lack of psychotherapy in the last twenty years, and the Applicant’s PBS records which showed that the Applicant was prescribed escitalopram (Lexapro) on six occasions between 9 August 2020 and 15 January 2021, and that only two of those occasions were prior to the date of cancellation. Dr Armstrong opined that two months would not be a sufficient period of time to assess a response to an antidepressant. Dr Armstrong noted that most authorities consider that regular cannabis use (more than once per week) is likely to exacerbate anxiety and depression, and treatment for the Applicant’s cannabis dependence would improve her mental health functioning (ST1,4-5).
80.The Secretary submits that the lack of treatment for the Applicant’s mental health conditions in the preceding twenty years up until cancelation, the report of Dr Armstrong dated 30 August 2021, and the evidence that the Applicant was considered by her treating psychologist as likely to benefit from further treatment, including ongoing psychological counselling and reduction in cannabis use (and has in fact benefitted from such treatment) supports a finding that the Applicant’s mental health condition at the time of cancellation was not fully treated and stabilised. As such, no impairment rating can be assigned to the resulting impairment.
Based on the evidence before it and in particular the reports of Dr Alpana Baruah, clinical psychologist[43] and Dr Spencer Duke, psychiatrist[44] the Tribunal finds that the Applicant’s depression and anxiety were fully diagnosed at the Date of Cancellation.
[43] Exhibit 1, T Documents, T32, pages 169-170, Report of Dr Alpana Baruah.
[44] Exhibit 2, Supplementary T Documents, ST5, pages 18-19, Report of Dr Duke
The Tribunal accepts that the Applicant’s depression and anxiety are long standing conditions and notes that the Applicant’s evidence was that she had not received psychological treatment for a substantial number of years prior to the review of her DSP as in her opinion, medication and psychotherapy had not worked, she could adequately self-medicate and she considered her conditions were as good as they were going to get.
The Applicant’s self-assessment of potential benefits of further treatment for her depression and anxiety are at odds with the medical opinions provided by Dr Naing, Dr Baruah,
Dr Duke and Dr Armstrong, all of whom indicated that her harmful use of cannabis may impair her progress and recommended further psychological treatment.The Applicant’s general practitioners have continued to treat her under a mental health care plan and refer her for psychological treatment. Dr Baruah reported on
17 December 2020 that the Applicant had completed 6 psychological treatment sessions and had verbalized that therapy sessions had been very beneficial to her and that she intended to continue with the process of psychological treatment after she relocated.[45][45] Exhibit 1, T Documents, T32, pages 169-170, Report of Dr Baruah.
Although Dr Duke in his report of 15 July 2021 recommended that the Applicant cease her use of cannabis and outlined numerous methods for achieving that, the Applicant told the Tribunal that while she understood the advice the doctors had given her, in her experience her use of cannabis is necessary to manage her anxiety otherwise she cannot function at all.
It is clear to the Tribunal that the Applicant is dependent upon cannabis and sees her use of it as self-medicating the effects of her anxiety. The medical evidence is however that cannabis use does not constitute appropriate treatment and in fact is likely to impair her progress. While the Applicant told the Tribunal that the medication and psychological treatment she had received in the last 18 months have provided her with some improvement but not significant improvement, there is no supporting medical evidence before the Tribunal to indicate that her continued engagement in recommended treatment (including ceasing use of cannabis) would not be likely to result in significant improvement in her mental health.
The Tribunal accepts Dr Armstrong’s assessment that:[46]
[The Applicant’s] MBS history indicates that she only saw Ms Baruah on one occasion prior to the date of cancellation, so I consider it was unlikely that she would have had an adequate number of psychological treatment sessions at that time. [The Applicant’s] MBS history does not show any visits to a psychiatrist or other clinical psychologist between 1/1/18 and 1/7/21. Her PBS history shows that she was supplied with escitalopram 10mg, an antidepressant on 6 occasions between 9/8/20 and 15/1/21, but only 2 of these occasions were prior to the date of cancellation. 2 months would not be a sufficient period of time to assess response to an antidepressant and I note that her escitalopram dose was increased to 20mg on 18/2/21. [The Applicant’s] PBS history does not show that she was supplied with any other antidepressants since 1/1/18. I therefore consider that her anxiety and depression were not fully treated and stabilised, as of the date of cancellation. I also note that most authorities consider that regular cannabis use (more than once per week) is likely to exacerbate anxiety and depression, so it may be that treatment for her cannabis dependence would improve her mental health functioning.
[46] Exhibit 2, Supplementary T Documents, ST1, pages 4-5, HPAU Report completed by Dr Armstrong.
Noting that almost all of the medical evidence in relation to the Applicant’s mental health conditions occurred after the Date of Cancellation and indicated medication had only recently been started before that date and that further treatment should be undertaken, the Tribunal finds that the Applicant’s depression and anxiety conditions were not fully treated and fully stabilised at the Date of Cancellation.
As such the Applicant’s depression and anxiety conditions cannot be considered permanent for the purposes of assigning an impairment rating under the Impairment Tables.
Other conditions
The Respondent contended that the Applicant’s other conditions could not be considered permanent and as such could not be assigned impairment ratings under the Impairment Tables.[47]
[47] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 12, paragraphs 81-86.
At Hearing the Applicant told the Tribunal that her other conditions which included lower back pain, dizziness, tachycardia, high blood pressure, high cholesterol, type 2 diabetes, critical illness myopathy, sleep apnoea, hip, shoulder and neck conditions were relevant to paint her whole medical picture. Her evidence was that, those conditions were under control with medication, exercise and physiotherapy and of themselves did not cause functional impairments. The Tribunal notes the Applicant’s evidence that her other conditions are however impacted upon by the primary conditions discussed above.
Based on the evidence of the Applicant and in the absence of any substantive medical evidence in relation to the treatment, stability and functional impact caused by her other conditions, the Tribunal finds that these conditions cannot be considered permanent for the purposes of assigning an impairment rating under the Impairment Tables. For completeness should one or more of the Applicant’s other conditions be considered permanent, due to the lack of evidence before it in relation to the functional impact caused by the other conditions, the Tribunal would find that nil points could be assigned under the Impairment Tables.
CONCLUSION
The Tribunal finds that at the Date of Cancellation the Applicant
(a)had impairments for the purposes of section 94(1)(a) of the Act.
(b)had a continuing inability to work for the purposes of section 94(1)(c) of the Act.
(c)for the purposes of section 94(1)(b) of the Act the Applicant’s:
(i)asthma/COPD condition was fully diagnosed, fully treated and fully stabilised and can be assigned a rating of 10 impairment points under Table 1 of the Impairment Tables;
(ii)right knee condition was fully diagnosed, fully treated and fully stabilised and can be assigned a rating of 5 impairment points under Table 3 of the Impairment Tables;
(iii)depression and anxiety conditions were fully diagnosed, however were not fully treated and fully stabilised, and therefore could not be considered permanent for the purposes of applying the Impairment Tables and cannot be assigned under impairment rating;
(iv)other conditions were not permanent for the purposes of applying the Impairment Tables and therefore cannot be assigned an impairment rating; and
(v)impairments attract a total of 15 points under the Impairment Tables.
Accordingly, as the Tribunal has found that at the Date of Cancellation the Applicant’s impairments do not attract 20 points or more under the Impairment Table, the decision under review is affirmed.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.........[SGD]...................................
Associate
Dated: 25 February 2022
Date of hearing: 18 February 2022 Applicant: By Phone Advocate for the Respondent: Mr Samuel Harvey
Solicitors for the Respondent: Services Australia
Section 27 of the Act requires that where a person is receiving DSP and the Respondent assesses the person’s qualification for DSP, the Respondent must apply the instrument in force under section 26 of the Act on the day the assessment notice was given. In this case the Determination was in place on
27 January 2017 and must be applied.
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