Editors --- "Disability support pension; whether a fully documented, diagnosed condition; whether condition has been investigated, treated and stabilised" [2010] SocSecRpr 1; (2010) 12(1) Social Security Reporter, Article 1

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Disability support pension; whether a fully documented, diagnosed condition; whether condition has been investigated, treated and stabilised

ROBERTS and SECRETARY TO THE DFHCSIA

(2010/95)

Decided: 10th February 2010 by A.Britton

The issue

In this matter the question for the Tribunal was whether any or all of Roberts’ conditions had been ‘diagnosed... investigated, treated and stabilised’, as required by the legislation.

Background

Roberts suffered from several conditions (depression, lumbar spondylosis and carpel tunnel syndrome) and in May 2008 applied for disability support pension (‘DSP’). Centrelink accepted that these conditions were permanent, but refused her claim on the basis that none of her conditions had been fully diagnosed, treated and stabilised. The SSAT affirmed this decision in respect of Roberts’ depression and carpel tunnel syndrome, but concluded that although her lumbar spondylosis had been fully diagnosed, treated and stabilised it nevertheless did not meet the level of impairment required for a grant of DSP to be made.

The law

The qualification requirements for the DSP are contained in s.94(1) of the Social Security Act 1991 (the Act) which provides that a person qualifies for DSP if, among other things, the person’s impairments are rated at a total of 20 points or more under the Impairment Tables contained in Schedule 1B of the Act. Paragraphs 4 and 5 of the Introduction to the Impairment Tables provide that –

4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of decision adverseto Ms Roberts on the basis of the shortcomings in the supporting material.’ a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years.

The Introduction to the Impairment Tables (in Paragraph 6) also sets out the factors to be considered in determining whether a condition has been fully diagnosed, treated and stabilised, including the need to consider what treatment has occurred or is being considered, its availability and accessibility, and whether with reasonable treatment there is likely to be significant functional improvement within two years.

Discussion

The Tribunal considered in turn each of Roberts’ three conditions. In respect of her depression, the Tribunal noted that the Centrelink decision had been based on several reports, including a job capacity assessment report and a report from her treating doctor. Although taking prescribed anti-depression medication for some six years, and though her treating doctor had referred Roberts to a Depression Clinic, Roberts had never been assessed by a person qualified in the area of psychiatry or psychology. The Tribunal accepted that she suffered from a significant disability and that her functional capacity was limited, but concluded that in the absence of specialist opinion it was not possible to determine whether her depression had been fully diagnosed, treated and stabilised. The Tribunal determined that such a specialist investigation was essential in order to determine her eligibility for DSP in respect of her depression.

In respect of lumbar spondylosis, the Tribunal again had access to a report from Roberts’ treating doctor, and a separate work capacity assessment which made several recommendations in relation to possible interventions regarding Roberts’ depression and carpel tunnel syndrome, but none in relation to her lumbar spondylosis. In these circumstances, the Tribunal again concluded that a specialist report needed to be obtained in relation to the adequacy of past, current and possible future treatment for Roberts’ lumbar spondylosis.

Finally, in relation to Roberts’ carpel tunnel syndrome, the Tribunal noted her treating doctor’s report that this condition was generally well managed and caused limited functional impact. The work capacity assessment made various suggestions as to steps which could be taken to alleviate the symptoms of this condition. The Tribunal concluded that this condition could not be said to be fully treated or stabilised, but that even were this not so, it would not attract any impairment rating.

Formal decision

The Tribunal affirmed the decision under review in respect of the Applicant’s carpel tunnel syndrome, but directed that the decision under review in so far as it related to depression or lumbar spondylosis be remitted to Centrelink for reconsideration in accordance with certain paragraphs in its reasons, which were as follows:

‘In my view, on the material before me it is not possible to reach any concluded view about whether Ms Roberts’ condition was fully diagnosed, treated and stabilised. It is uncontroversial that she suffers from a significant disability and her functional capacity is limited. Because of a combination of factors which include the nature and severity of her condition, Ms Roberts is not well placed to obtain appropriate medical evidence to support her claim. In these circumstances, the appropriate course in my view is to arrange for further investigations to be undertaken by a person with suitable qualifications in the area of psychiatry or psychology and, if considered appropriate, for further enquiries to be made of Dr Chandler. That course is consistent with para. [4] of the Tables which states:

‘...The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.’ [emphasis added]

In making this decision, I am mindful of the practical difficulties in making a retrospective assessment. Nonetheless given the circumstances in my view it would be inappropriate to make adecision adverse to Ms Roberts on the basis of the shortcomings in the supporting material.’

[P.A.S.]