FEDERAL COURT OF AUSTRALIA

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 May 2015. The Tribunal decided to affirm a decision rejecting the applicant’s application for a Disability Support Pension (“DSP”). The appeal is limited to an appeal on a question of law.

2    The applicant filed a claim for a DSP on 4 April 2013. Although her application is dated 25 February 2013, it was not lodged until 4 April 2013. In her application, the applicant referred to her condition of epilepsy and to the fact that she was taking medication for that condition. On 26 June 2013, Centrelink rejected the application. In a record of its decision, it stated that to be eligible for a DSP, the applicant needed to have an impairment of 20 points or more under the impairment tables, and that the applicant had been assessed as not having an impairment rating of 20 points or more.

3    The applicant sought a review of Centrelink’s decision. The decision was reviewed by an Authorised Review Officer who, on 16 June 2014, advised the applicant that he had affirmed the decision under review, and that she did not qualify for a DSP.

4    The applicant sought a review by the Social Security Appeals Tribunal. That Tribunal conducted a hearing on 29 August 2014. On 8 September 2014, it decided to affirm the decision under review. The Social Security Appeals Tribunal decided that the applicant’s total impairment rating under the impairment tables was 5 points, and therefore, she did not satisfy the requirements for a DSP.

5    The applicant sought a review by the Administrative Appeals Tribunal. An analysis of its reasons is set out below.

6    In her notice of appeal to this Court, the applicant identified the question of law as “decision to be reviewed”. The applicant appeared in person. I gave her the opportunity to seek advice and she did so. She put forward an amended notice of appeal which identified the question of law as follows:

Should the Tribunal have taken into account relevant considerations, including the report of Dr Tibrewal dated 20 January 2015.

She identified the grounds relied on as follows:

The Tribunal failed to take into account relevant considerations, including the report of Dr Tibrewal dated 20 January 2015.

7    I will grant leave to the applicant to file and serve the amended notice of appeal.

The Tribunal’s Reasons

8    The Tribunal referred to the qualifications for a DSP provided for in the Social Security Act 1991 (Cth) (“the Act”). Section 94(1) of the Act relevantly provides:

(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;

(ii)    ....

9    The Tribunal said that the applicant needed to satisfy those criteria on the date of her application or within thirteen weeks following that date. That was what the Tribunal called the relevant assessment period and, in this case, was the period from 4 April 2013 to 4 July 2013. Sections 41 and 42 of the Social Security (Administration) Act 1999 (Cth) provide as follows:

41 Commencement

(1)    Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

(2)    Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.

42 Start day

For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

10    The relevant provisions of Schedule 2 are as follows:

3 Start day – general rule

(1)    If:

(a)    a person makes a claim for a social security payment; and

(b)    the person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.

(2)    ...

4 Start day – early claim

(1)    If:

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

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

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

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

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

11    Clause 6 of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 provides that a rating under the impairment tables can only be given if the person’s condition causing the impairment is permanent and that, in turn, means that it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated, has been fully stabilised, and is a condition which is more likely than that in light of available evidence to persist for more than two years.

12    The Tribunal noted that the respondent did not challenge the findings of the Social Security Appeals Tribunal, and accepted that the applicant had an impairment for the purposes of s 94(1)(a). Furthermore, the respondent conceded that the applicant’s epilepsy condition was fully diagnosed, treated and stabilised at the date of her application for a DSP. The Tribunal identified the issue before it as being whether the applicant’s impairment could be allocated an impairment rating under the impairment tables. If so, and the rating was 20 impairment points or more, the Tribunal would then need to consider whether the applicant had a continuing inability to work within s 94(1)(c)(i).

13    The Tribunal identified the medical evidence before it. There were two reports from a Dr Sharma. The first was dated 27 March 2013 and it identified a diagnosis of epilepsy with a date of onset in 1982. Dr Sharma noted that the applicant was admitted to the Queen Elizabeth Hospital on 20 February 2013, and that she was under the care of a neurologist. Dr Sharma noted that the applicant continued to receive treatment for her epilepsy and that her condition was managed by medication (Epilim). He noted that the applicant reported problems with dizziness and tiredness, and that those problems had an adverse impact on her ability to concentrate. In his second report dated 1 August 2013, Dr Sharma confirmed the observations and comments he made in his first report about the applicant’s epilepsy. Dr Sharma also referred to comments made by the applicant to the effect that she felt dizzy and stressed. She considered that she was not getting any better and that she suffered from insomnia and nausea.

14    Associate Professor Jannes is a senior consultant neurologist at the Queen Elizabeth Hospital. He reviewed the applicant on 20 February 2013. In his report of that date he confirmed the diagnosis of generalised epilepsy. He noted that the last reported seizure was in April 2008. He noted that there were no reported side effects relating to the prescribed drug therapy. He noted that the applicant’s driver’s licence had been revoked by the relevant authority and that that suggested non-compliance with the medication regime. He said that the assessment and management of the epilepsy was not altered and that a follow up was directed to take place in 12 months’ time.

15    Dr Tibrewal’s report which is dated 20 January 2015 was before the Tribunal. In the report, Dr Tibrewal outlines the applicant’s medical history which included a diagnosis of epilepsy at five years of age. The frequency of seizures subsequently was not high until a massive seizure in 2008. The applicant consulted a general medical practitioner and commenced treatment through medication. Dr Tibrewal noted that the applicant told him that she led an isolated life and felt tired most of the time. Her sleep pattern was poor and her appetite was reduced. She was unable to concentrate and physical activity was minimal.

16    Dr Tibrewal expressed the opinion that the applicant suffered from major depression with current features of mild to moderate severity. He expressed the opinion that her depression could be secondary to physical morbidities that arise out of her epilepsy, and that the applicant’s social isolation and poor social support was contributing to her depression. Dr Tibrewal suggested an increase in the applicant’s medication (Sodium Valproate) and he expressed the opinion that a referral to a neurologist for a further opinion around the management of her epilepsy would be worthwhile. He also suggested a trial of an anti-depressant and he considered that the applicant might benefit from a referral to a psychologist for interpersonal therapy.

17    The applicant gave evidence before the Tribunal. She told the Tribunal that her epilepsy was reviewed by the Epilepsy Clinic at the Queen Elizabeth Hospital and that she takes Epilim to manage her condition. She told the Tribunal that she lives alone and occasionally goes out to do the shopping and to get exercise. She told the Tribunal that she suffers from dizziness and nausea which she attributes to the epilepsy and the medication. She told the Tribunal that her sleep pattern was poor and that she was frequently tired. She told the Tribunal that she has not worked since 2007. The applicant agreed that her driver’s licence had been withdrawn by the relevant authority because of the effects of her epilepsy, but she disagreed with the comment in Associate Professor Jannes’ report about medication non-compliance. She told the Tribunal that she has complied with her medication regime. The applicant told the Tribunal that she had a seizure in 2008. She had another seizure in 2013 and then a seizure in October 2014.

18    The Tribunal said that Impairment Table 15 was the relevant table for functions of consciousness. For a mild functional impact, Table 15 provides:

19    The Tribunal noted the respondent’s concession that the applicant’s epilepsy was fully diagnosed, treated and stabilised and was controlled by medication. The Tribunal concluded that the appropriate rating was 5 points because it was clear that the frequency and nature of the epileptic episodes fell within the descriptors of a mild functional impact. The effect of the condition on the applicant’s activities of daily living and the restriction on her driver’s licence were consistent with the rating of 5 impairment points.

20    The Tribunal addressed the applicant’s evidence that she had problems with dizziness, fatigue and insomnia and poor concentration. The Tribunal said that if that was an issue requiring resolution then its view was that there was insufficient medical evidence that the dizziness and associated symptoms were caused by the epilepsy and medication.

21    The Tribunal referred to Dr Tibrewal’s report. It said (at [19]):

The report from Dr Tibrewal followed a recent psychiatric assessment of Ms Gallacher. She wanted the Tribunal to receive the report and take it into account. It is a helpful report that sheds light on Ms Gallacher’s current circumstances and their origin. Ms Gallacher represented herself at the hearing. Dr Tibrewal’s report was also helpful in providing the Tribunal with a better understanding of the context of her evidence. However, the conclusion in the report about major depression cannot be taken into account in the assessment of her qualification for the DSP as at the 4 April 2013 and in the 13 week assessment claim period that followed.

(Emphasis added).

22    The Tribunal considered that the applicant did not qualify for the DSP because she did not meet the requirement in s 94(1)(b) of the Act. It was not necessary for the Tribunal to consider whether the applicant had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

Issues on the Appeal

23    The applicant’s submission centred on Dr Tibrewal’s report dated 20 January 2015. She submitted that the Tribunal should have taken this report into account.

24    Dr Tibrewal’s report was received in evidence before the Tribunal, and, as I have said, it referred to the report in its reasons (at [19]). However, the Tribunal did not take into account Dr Tibrewal’s conclusions with respect to the applicant’s depression because those conclusions did not relate to the relevant assessment period (i.e., the period from 4 April 2013 to 4 July 2013). Dr Tibrewal’s report refers to the applicant’s condition of epilepsy apparently diagnosed when she was five years of age and involving a massive seizure in 2008. However, when he comes to express an opinion to the effect the applicant suffers from a major depression, he makes it clear that he is making that assessment as at the time he saw the applicant and wrote his report on 20 January 2015. There is nothing in his report to suggest that the applicant suffered from major depression during the relevant assessment period.

25    The Tribunal did not take Dr Tibrewal’s report into account in the way I have described. However, it did not err in taking the approach it did.

26    In Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252, Gyles J said at 253 [1]:

This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions or the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.

(On appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.)

27    In Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 64 AAR 466, Deputy President Handley said at 473 [31]:

In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.

28    I respectfully agree with the approach taken in those cases. The approach to be taken in this case was dictated by the terms of the legislation (Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 300 [44] per Kirby J; at 315 [99] per Hayne and Heydon JJ).

29    Dr Tibrewal’s opinions about the applicant’s depressive condition were not referrable to the period between 4 April 2013 and 4 July 2013 and the Tribunal did not err in the way in which it dealt with this report.

Conclusion

30    The appeal must be dismissed with costs.

Associate:    

Dated:    23 October 2015