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

[2020] AATA 1120

McKenzie and Secretary, Department of Social Services (Social services second review) [2020] AATA 1120 (1 May 2020)

Division:GENERAL DIVISION

File Number(s):      2019/4550

Re:Jade McKenzie

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:1 May 2020

Place:Canberra

The decision under review is affirmed.

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Bill Stefaniak AM RFD, Senior Member

SOCIAL SECURITY – Disability Support Pension – psychiatric impairment suffered by applicant – qualification period for Disability Support Pension – incorrect advice from Department considered - whether the psychiatric impairment met the threshold of 20 points under the Impairment Tables – whether condition was fully treated, fully diagnosed and fully stabilised as at claim period - whether applicant had a continuing inability to work – program of support not relevant - decision under review affirmed

Eid v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558

Social Security Act 1991 (Cth) s 94

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

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

1 May 2020

BACKGROUND

1. The Applicant was born in 1983 and grew up in the area of Milton/Ulladulla, New South Wales.

2. After leaving school she was employed in several jobs. She also married her childhood boyfriend and had 3 children to him: the first, a son born in September 2003, then a daughter born in January 2008 and finally her third child, a son born in January 2012.

3. The Applicant worked as a restaurant/function manager from January 1999 until August 2003 and then as restaurant staff from June 2007 until December 2007, at which time she left 8 months pregnant with her second child.

4. The Applicant had dreadful complications after the birth of her first child (hence her inability to work from September 2003 until June 2007. As a result of giving birth, her son suffered severe head injuries and the Applicant suffered internal damage. She and her son needed extensive medical attention as a result and it was not until her son was 8 years old that he was out of the woods, medically speaking.

5. As a result of the trauma she suffered in 2003, it seems that she developed a mental health condition, the effect of which is ongoing.

6. Due to her ongoing condition she has not worked since June 2007. In her last position, the Applicant gave evidence that she would be sick approximately 3 to 4 times in a single shift, which was a symptom of her mental health condition - she could not control it and this was the main reason she had to stop work and not return after the birth of her daughter.

7. In more recent times her anxiety attacks have manifested themselves in uncontrollable bowel motions of up to 6 times a day. She finds it difficult to go very far from home or even shop for long periods as a result. This condition, and its’ earlier manifestation of uncontrollable throwing up, is a result of her mental health condition rather than any physical impairment or defect. While the Applicant is at home, she has the comfort of a bathroom nearby and can usually make it in time.

8. Since 2003, the Applicant has suffered from Anxiety, Depression, Social Anxiety, Panic Disorder and Body Function Control. Her General Practitioner (GP) of 17 years standing is Dr Matthew Kennedy and her Psychologist and counsellor since 2017 is Mr Neil Smith. Both are located close to her current home. Since 2003, the Applicant has seen a number of counsellors and psychologists and stated that from 2003 until 2011 she attended upon Chris Symons, Greg Humphries and Michelle Moulos.

9. In her oral evidence, the Applicant told the Tribunal none of them really helped her but that she finds Mr Neil Smith to be of assistance.

10. She has tried various medications from time to time but now seems resigned to continuing with Sertraline which she has used over many years.

11. Whilst she was pregnant with her second son (about 9 years ago), the Applicant took in her deceased friend’s children - 4 boys: one aged 14, twins aged 15 and a 16 year old. Apart from a few issues with drugs and alcohol all the boys ended up good citizens, all with good work prospects. Only one of the twin boys still lives with the Applicant. The Applicant’s biological children are also doing well. It was obvious to the Tribunal that she is and has been a good mother and had raised her own children and those of her deceased friend very well. They are all a credit to her.

12. The Applicant told the Tribunal she does their washing and cooks for them and her children and one of the twin boys assist her with other chores and filling in forms and the like.

13. The Applicant is also grateful that her parents live close by and visit her frequently to help out. The Applicant also has a close friend who drops in once a week or thereabouts to make sure she is alright.

14. Up until this time, the Applicant was receiving government support by way of a Child Support Allowance. However, the Applicant’s payments were to shortly cease as she was no longer eligible given her children’s ages. Prior to losing the child support allowance, the Applicant went to Centrelink and, after submitting several medical certificates excusing her from any work for 3 months, was told by staff to apply for a Disability Support Pension (DSP). On 25 June 2018, the Applicant made a claim for DSP as a result of her ‘Anxiety, Depression, Social Anxiety, Panic Disorder, Body function control’.

15. The Applicant’s claim was rejected on 1 August 2018, as was the internal review of that decision by an Authorised Review Officer on 21 March 2019. The Applicant then applied for Tier 1 review to the Social Security and Child Support Division of the Tribunal. On 10 July 2019, the Social Security and Child Support Division of the Tribunal also rejected her application for review. The Applicant now finds herself before the General Division of the Tribunal seeking Tier 2 review. As a result of the current COVID-19 pandemic, and with the consent of the parties, the matter was heard in Canberra by telephone between the parties and the Tribunal.

    THE LAW

16. Section 94 of the Social Security Act 1991 (the Act) relevantly states that:

    94(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 …

17. At hearing, the Respondent conceded that the Applicant has a mental health condition falling under the meaning of ‘psychiatric impairment’ and meets the criteria in section 94(1)(a) of the Act. Therefore, the Tribunal must only turn its mind to the requirements in subsection (b) and (c).

18. The Applicant’s condition relevantly falls under Table 5 (Mental Health Function) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables).The Applicant must qualify for 20 points under that table. An impairment rating can only be assigned to the Applicant if the impairment, as at the time of the claim period, is deemed to be fully diagnosed, fully treated and fully stabilised.[1]

    [1]Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 at [6.4] – [6.6].

19. The claim period runs for 13 weeks after the date of application for a DSP and in this case ends on 24 September 2018. This Tribunal is restricted to this 13 week period and any changes in the Applicant's condition after that date cannot be considered.

20. In relation to the issue of a continuing inability to work, section 94(2) provides:

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support -- the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a) in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support with the next 2 years; and

    (b) in all cases – either:

    (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

21. If the Applicant gets 20 points under the Impairment Tables for her one impairment she does not need to have done a program of support (and in the Applicant's case she has not participated in a program of support).[2]

    [2] Exhibit R3.

22. ‘Any work’ as referred to in section 94(2) of the Act, means any work anywhere in Australia, at at least award wages. So, even if there is no work in her area this is not something that can be taken into account in determining whether the Applicant qualifies for DSP.[3] As indicated at the hearing, the legislation deliberately makes it hard for a person to qualify as the purpose of the legislation is to assist and encourage people to work.

    [3] See the Social Security Act 1991 s 94(3).

23. However, as I also indicated to the Applicant at the hearing, a person can have as many attempts at claiming DSP as they wish. There is nothing to stop a person putting in an application every 3 or 4 months. It is matter of satisfying the criteria.

    SUPPORTING EVIDENCE

24. The main evidence supporting the Applicant’s claim is as follows.

25. Two letters from her GP, Dr Mathew Kennedy, dated 24 May 2018 and 19 June 2018.[4] In particular, Dr Kennedy’s letter dated 19 June 2018 states:[5]

    The [Applicant] suffers from severe social anxiety disorder, generalised anxiety disorder, and depression. Despite regular psychotherapy, and SSRI medication, [she] has had little improvement. More intensive weekly psychotherapy is planned. The prognosis is uncertain, and the likelihood of significant improvement is limited. It is very unlikely [the Applicant] will be able to return to work in the foreseeable future.

    (emphasis added)

    [4] Section 37 Tribunal Documents (T)8; T9.

    [5] T9, folio 140.

26. Dr Kennedy, in his letter dated 24 May 2018, provides a history of panic attacks dating back to 2006 and lists the current medication the applicant was prescribed (including Sertraline).[6] In his several medical certificates to Centrelink at the time he states:[7]

    Symptoms

    Severe anxiety when with others, seeing psychologist currently, chronic depression/anxiety, this patient has had severe disabling social anxiety for 17 years, and is having ongoing psychotherapy, severe social anxiety disorder, requiring long term management

    Prognosis

    Uncertain pending further treatment and psychotherapy

    [6] T8.

    [7] T7, folio 136.

27. Mr Neil Smith, psychologist, and counsellor, sent a letter dated 18 June 2017 to Dr Kennedy:[8]

    [The Applicant] suffers with Panic Disorder, experiencing the full range of autonomic responses when confronted with anxiety provoking stimuli. She has become social phobic, experiencing panic when attending school assemblies and supermarkets etc.

    Up to this point, [the Applicant’s] attendance and engagement with intervention has been sporadic and I believe that this is also artefact of her condition. As part of her treatment includes some imaginal exposure, she has, at times, felt apprehensive in attending. Today, I have stressed the need for attendance to be regular and have given her strategies to prepare for appointments etc.

    [The Applicant’s] condition has developed into a generalized anxiety disorder and her panic disorder manifests with comorbid mixed anxiety and depression.

    We will, over the next few months, embark upon further cognitive behavioural strategies to address.

    In the mean time, I would support the need for exemptions from attending work placements etc, as required by Centrelink, as [her] symptoms include the inability to control bodily function, and have included inability to control bowels in public places. Naturally, the best long term situation for [the Applicant] would see her fully engaged in the workplace and the public arena, and our treatment will be towards this end.

    [8] T5, folio 133.

28. On 18 October 2018, Clinical Psychologist, Ms Lauren McNamara, prepared a report after seeing the Applicant on that day.[9] The Applicant had, with difficulty driven to Nowra from Milton/Ulladulla region to see her. In that report, Ms McNamara went through the Applicant’s background and under the heading ‘Impression’ stated:[10]

    Panic Disorder with Agoraphobia (differential diagnosis of Somatic Symptom Disorder) Depressive symptoms secondary to complex and long standing anxiety disorder. Psychosocial and financial stress associated with caring for her children as a single parent

    (emphasis added)

    [9] T14, folio 182 – 184.

    [10] T14, folio 183.

29. At the hearing, much was made of the fact that the date of this report fell outside the claim period. The Respondent argued that the applicant had not been formally diagnosed within the claim period and accordingly, on that ground alone, her current claim must fail.

30. The Respondent, acting as a model litigant, did refer the Tribunal to the case of Eid v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 where Deputy President Forgie found that the applicant qualified for DSP relying on medical material including a diagnosis made outside of the claim period. In that case Deputy President Forgie said:[11]

    While it is true that Mrs Eid’s Fibromyalgia was not diagnosed until after 19 December 2011, I do not think that anything in s 94 or in Schedule 1B requires the diagnosis to have been made at the date a claim was made or taken to have been made… These matters must be viewed in light of the material available and in relation to the period which her qualification for a DSP is being determined. Any subsequent change in her health is, as Gyles J said in Harris v Secretary, Department of Employment and Workplace Relations, irrelevant except insofar as it may cast light on the position at the relevant time…

    In the case of Mrs Eid, there is no actual change in her condition. Her functional limitations have remained constant over a long period of time.

    [11] Eid v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [85] – [86].

31. The Tribunal notes that the Tribunal Member in Tier 1 review was quite satisfied that the diagnosis was valid for the claim. I would point out that whilst a diagnosis has to be made by a Psychiatrist or clinical psychologist, it can be clearly seen that Ms McNamara diagnosed a  ‘long standing anxiety disorder (emphasis added)’ which I take to mean a condition that had been present for a lot longer than the 20 day gap between the diagnosis by Ms McNamara and the end of the claim period. The diagnosis is also supported by the observations of Dr Kennedy and Mr Smith.

32. Accordingly, that argument, in my view, does not have any legs and I reject it. I find that the condition of Panic Disorder secondary to long standing Anxiety Disorder was fully diagnosed as at the claim period.

33. On 23 May 2019, Dr Lee Verrall, GP, prepared a report and outlined the following:[12]

    The [Applicant] has been a long standing patient at the Mollymook Medical Centre for care applying to her mental health conditions : Panic disorder with agoraphobia and depressive symptoms secondary to complex long standing anxiety disorder (as well as other health conditions).

    These conditions have been treated and have stabilised as at the 22^nd of June 2018, and despite further engagement with Neil Smith (psychologist) have not improved since request from Ms MacNamara on the 18^th October  2018.

    Continued treatment with medication and psychothjerapy (sic) in unlikely to improve her ability to function in the next 2 years.

    (emphasis added)

    [12] T17, folio 191.

34. Accordingly, I am satisfied, and even more so after hearing from the applicant under oath, that as of 23 May 2019, her condition was fully diagnosed, treated and stabilised for the purposes of the Act.

35. On 4 October 2019, Dr Verrall prepared another letter for Centrelink stating:[13]

    [The Applicant] is currently experiencing increased levels of stress related anxiety based on the loss of current benefits with her son Wyatt, turning 8 yrs old.

    Based on my assessment she meets the criteria for a severe functional impact of her stress related anxiety, agoraphobia and panic attacks impacting on the ability to normal engage and participate in society.

    her main problems associate to interpersonal relationships and the ability to participate in work activities for an extended period on a regular basis.

    [13] Exhibit A2.

36. Finally, on 4 October 2019, Mr Neil Smith addressed the criteria for awarding 20 points under Table 5 of the Impairment Tables:[14]

    [The Applicant] experiences severe impairment in the areas of:

    Social/recreational activities and travel: She avoids leaving the house other than for urgent and critical reasons regarding the care of her children. She will not venture out of the home on her own, other than for appointments with doctors and psychologist. Otherwise, she requires assistance from her older children to leave the home.

    Interpersonal relationships: [The Applicant] has one close friend who attends her house once a week to provide emotional and practical supports.

    Concentration and task completion: [The Applicant] experiences panic attacks and the triggering of her autonomic nervous system makes concentration on the simplest of tasks extremely difficult. She requires assistance from her children to complete administration tasks and to complete forms etc. During counselling sessions, [she] will often “drift” from attention and become overwhelmed, bursting into fits of tears and nausea. She frequently has to leave the counselling room to attend the bathroom.

    Behaviour, planning and decision making: As mentioned above, [the Applicant] will often engage in erratic behaviours when placed under pressure. She will attend counselling, and then cancel appointments for fear of leaving the home and confronting her extreme fears. Also as mentioned above, she requires assistance from her children and her friend to complete tasks. I believe that she cares for her children well, but that her energy and capacity to meet non-childcare responsibilities are extremely impaired.

    Work and training capacity: I do not believe that [the Applicant] possesses the capacity to engage in any meaningful long or short term work and training activities.

    …

    It is my opinion that her condition is as stable as can be expected and that it is, after lengthy psychotherapy and pharmacological intervention, unlikely to improve within any reasonable timeframe.

    [14] See Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Table 5.

37. As can be seen, Mr Smith awarded the Applicant 20 points on the Impairment Tables as he felt she qualified on all descriptors except ‘(a) self-care and independent living’. It is clear that all parties, including the Applicant, feel that she does a pretty good job with independent living having successfully raised her 3 biological children and 4 now adult orphaned boys.

38. However, Mr Smith did not stipulate if his opinion only related to the situation as at 4 October 2019 or applied as at the claim period. Unfortunately, despite efforts by the Applicant and the Tribunal, Mr Smith was not available to enable the parties to clarify his opinion.

1. It would have been really helpful if Mr Smith was able to be contacted but for the purposes of arguments sake I will assume his addressing of the descriptors covered the claim period. I would have also felt more comfortable if I could have got him to elaborate on several of his statements, especially around descriptors (c) and (d).

   DISCUSSION

2. After hearing from the Applicant, and without the means to ask Mr Smith some questions on descriptors (c) and (d), I am satisfied the Applicant, as at the claim period, did not satisfy (a) for the reasons given above but did satisfy (b), (e) and (f).

3. She only travelled alone to familiar areas (and then, not very often). Her behaviour, thoughts and conversation were severely and frequently disturbed according to the evidence of Mr Smith which corroborated her own evidence. She was also clearly unable to attend work or training on a regular basis over a lengthy period because of her issues- especially her bowel issues caused by her condition.

4. Indeed (and this also addresses the issue of continuing inability to work), I am comfortably satisfied, as at the claim period, and indeed now and into the foreseeable future, that there is no way this woman could work in any capacity in a workplace (and I cannot think of any work realistically available to her anywhere in Australia at award rates and above which she could do from home where at least she has a good chance of making the toilet most times before disaster strikes) even with a program of support, let alone without one. Her condition simply does not seem to lend itself to any gainful employment within the meaning of the Act.

5. However on descriptor (c), I am satisfied that the Applicant seems to have reasonable interpersonal relationships in that she has a friend who visits her regularly and can at least attend shops and school activities but without much contact with others there. In that respect, she is probably not all that much different from many other people.

6. With regards to (d), the Applicant can concentrate in my view for more than 10 minutes, as she did a good job of concentrating on and understanding the Tribunal proceedings, albeit and understandably getting a bit upset from time to time. I do note the strong statement of Mr Smith and again, it was a pity he could not elaborate on descriptor (d) under oath. Mr Smith may also have been able to tell the Tribunal if the Applicant had symptoms of slow movement or reaction times (which I could not gauge by telephone Hearing).

7. On the evidence before me, I am only satisfied the Applicant satisfied 3 of the 6 descriptors for an impairment rating of 20 points under Table 5 of the Impairment Tables as at the claim period and not ‘most’ of the descriptors as is required to make a finding for an impairment rating of 20 points under the Act ( i.e. at least 4 out of 6 )

8. I am also satisfied the Applicant had a continuing inability to work as at the claim period.

9. I must say that had I had any discretion in the matter, I would grant the application with effect 25 June 2018. I was satisfied the Applicant was a witness of truth, conscientiously doing her best to answer all questions put to her by the Tribunal and the solicitor for the Respondent. It was clear to me from her evidence and that of Dr Kennedy, Mr Smith, Dr Verrall and Ms MacNamara that she had had these mental conditions for 17 years or thereabouts, that they were not going to improve and that she really was unemployable primarily due to her bowel issues and that this was the situation from even before the claim period continuing to the present time.

10. It also seemed to me, but without any evidence to take this point further, that as a result of her Gynaecological issues giving birth, some of the bowel issues might be of a physical nature (possibly as a result of complications associated with the birth of her first child in 2003 as well as mental health related, thus activating Table 13 of the Impairment Tables. It is possible that the Applicant may satisfy descriptor 3(a) for an impairment rating of 20 point under Table 13, i.e. her condition may affect the comfort or attention of co-workers. It may be worth the Applicant requesting Dr Kennedy or Dr Verrall to look into this further, for the purposes of any future claim for DSP

11. Unfortunately for the Applicant, applying the law as I have to, it is with reluctance that I note the evidence of all her health professionals in 2018 speak of her needing to engage in further medical interventions and/or counselling sessions in an effort to improve her condition thus indicating that her condition, whilst long standing, was, as at the time of the claim period, not yet full treated (although I think it is fairly clear it could be described as stabilised).

12. It is not until the letter of Dr Verrall of 23 May 2019 that her health professionals unequivocally state that any further treatment with medication and psychotherapy ‘is unlikely to improve her ability to function in the next 2 years’.

13. As a result, because the Applicant’s condition was not fully treated as at the claim period (June to September 2018), her claim cannot be successful.

14. Even if I were to find that the Applicant’s condition was fully treated as at the claim period, there is still the issue of her satisfying 4 out of the 6 descriptors to achieve an impairment rating of 20 points in Table 5 of the Impairment Tables. From the evidence before me, I can be only satisfied as to 3. I am confident Mr Smith, had he been able to give evidence, or if he now did an updated report, could elaborate further and it may well be the Applicant can satisfy 4 or even 5 of the descriptors should she make a new application for DSP.

15. It is clear in my view that, as a result of Dr Verrall's letter of 23 May 2019, the Applicant’s condition is now clearly fully diagnosed, treated and stabilised (although it would not hurt if the Applicant requested Dr Verrall or Dr Kennedy to provide a supplementary report confirming those opinions).

16. As the Applicant’s condition is now properly diagnosed by a clinical psychologist, I would suggest the Applicant see her GP and Mr Smith requesting updated reports addressing, in some detail, the descriptors in Table 5 and indeed Table 13 (if applicable) of the Impairment Tables.

17. Once the Applicant has that updated evidence she should make a new application for a DSP.

18. I can fully understand the frustration and stress the Applicant feels as a result of this process - she is not alone – it is common with seriously ill people, who for whatever reason, do not qualify for a DSP the first time around. There is however, nothing stopping the Applicant from applying again. The system indeed expects and encourages it as was alluded to by the solicitor for the Respondent during the hearing.

19. The Applicant can also use this decision if it is useful for any new application and she should certainly show it to her Doctors and Mr Smith in case it may assist them. I have also made certain findings of fact which may be useful in any new application.

20. I conclude by reiterating a point I have made in several forums, namely  that the Respondent could avoid a lot of wasted time, resources and distress to genuinely sick people, by only processing applications for DSP once the applications include the necessary documentation needed to support them.

    DECISION

21. For the reasons given above, the decision under review will be affirmed.

60.     I certify that the preceding 59 (fifty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bill Stefaniak, AM RFD.

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Associate

Dated: 1 May 2020

Date(s) of hearing:	6 April 2020
Applicant:	In person
Solicitor for the Respondent:	Ms Laura Hinwood, Comcare