ALAN COOK and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 323

[2013] AATA 323  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0030
Re	ALAN COOK
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	21 May 2013
Place	Brisbane

The Tribunal affirms the decision under review.

……………[Sgd]…………………….
Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Psychological impairment from Asperger’s disorder – Impairment Tables – Condition not fully diagnosed and stabilised and not permanent – No impairment rating allocated – Applicant not qualified for disability support pension during the relevant period – Decision under review affirmed 

LEGISLATION

Social Security Act 1991 (Cth) ss 27, 94

Social Security (Administration) Act 1999 (Cth) Sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr R G Kenny, Senior Member

BACKGROUND

1. On 12 June 2012,[1] Mr Cook (the applicant) made a claim for disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (the Act). This was rejected by a Centrelink delegate on 31 August 2012[2] on the basis that relevant documentation had not been provided by him, as requested by Centrelink in a letter dated 19 July 2012[3]. There is no material before me to indicate that the decision of 31 August 2012 was reviewed further.

   [1] Exhibit 1, T-documents, pp. 68-93.

   [2] Exhibit 1, T-documents, p. 163.

   [3] Exhibit 1, T-documents, p. 166.

2. Following contact by the applicant with Centrelink on 3 and 7 September 2012,[4] the applicant lodged a further claim for disability support pension on 18 September 2012[5]. This was rejected by Centrelink on 10 October 2012 on medical grounds[6] and the applicant was notified of that decision by letter dated 13 October 2012[7]. On 29 October 2012,[8] an authorised review officer affirmed the decision of 10 October 2012[9]. The effect of the decision of the Social Security Appeals Tribunal (the SSAT) on 13 December 2012 was that the decision of the authorised review officer was affirmed. The condition identified by the applicant’s treating practitioner, Dr Crawford da Silva, in his report dated 10 September 2012, was Asperger’s disorder.[10]

   [4] Exhibit 1, T-documents, pp. 102 and 153.

   [5] Exhibit 1, T-documents, pp. 104-127.

   [6] Exhibit 1, T-documents, p. 144-145 and 148.

   [7] Exhibit 1, T-documents, p. 133.

   [8] Exhibit 1, T-documents, p. 135-138.

   [9] In her reasons, the authorised review officer identified the claim lodged on 12 June 2012 (which was rejected on 31 August 2012) rather than the claim lodged on 18 September 2012 which was rejected on 10 October 2012 and which was identified by the authorised review officer as the decision she reviewed.

   [10] Exhibit 1, T-documents, pp. 94-101, esp. p. 95.

   LEGISLATION, ISSUES AND SUBMISSIONS

3. The qualifications for disability support pension are set out in s 94 of the Act. It is common ground that the applicant meets the age and residency requirements of that provision and has a mental impairment in relation to Asperger’s disorder. The remaining requirements in s 94 of the Act, and the matters in issue, are:

   ·whether the applicant has an impairment rating of 20 points or more which is calculated under the Impairment Tables[11] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 as required by s 94(1)(b) of the Act; and, if so

   ·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

   [11] See s 27 of the Act.

4. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the claim or in the period of 13 weeks from the day of the claim.[12] In the applicant's case, that period runs from 18 September 2012 until 17 December 2012 (the relevant period).[13] As I read the decision of the authorised review officer in this matter, only the decision of 10 October was reviewed and it relates to the relevant period starting on 18 September 2012. When the matter was determined by the SSAT, consideration was given to the applicant’s circumstances with effect from the date of his initial claim on 12 June 2012. For the respondent, Mr Bob Hamilton submitted that this was appropriate and I have also considered the impact of the applicant’s Asperger’s disorder throughout that period.  

   [12] See Schedule 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).

   [13] Under s 13 of the Act, the relevant period may commence from an earlier date of contact if that contact is acknowledged in writing by Centrelink and the formal a claim is made within 14 days: the contact on 7 September 2012 was not so acknowledged and the formal claim was made more than 14 days after the contact on 3 September 2012.

5. The requirements to be followed in applying the Impairment Tables are set out in s 6 therein, which reads:

   6 Applying the Tables

   Assessing functional capacity

   (1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

   Applying the Tables

   (2) The 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.

   Note: For additional information that must be taken into account in applying the Tables see section 7.

   Impairment ratings

   (3) An impairment rating can only be assigned to an impairment if:

   (a) the person’s condition causing that impairment is permanent; and

   Note: For permanent see subsection 6(4).

   (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

   Permanency of conditions

   (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b) the condition has been fully treated; and

   Note: For fully diagnosed and fully treated see subsection 6(5).

   (c) the condition has been fully stabilised; and

   Note: For fully stabilised see subsection 6(6).

   (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Fully diagnosed and fully treated

   (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a) whether there is corroborating evidence of the condition; and

   (b) what treatment or rehabilitation has occurred in relation to the condition; and

   (c) whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (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.

   Note: For reasonable treatment see subsection 6(7).

   Reasonable treatment

   (7) For the purposes of subsection 6(6), reasonable treatment is treatment that:

   (a) is available at a location reasonably accessible to the person; and

   (b) is at a reasonable cost; and

   (c) can reliably be expected to result in a substantial improvement in functional capacity; and

   (d) is regularly undertaken or performed; and

   (e) has a high success rate; and

   (f) carries a low risk to the person.

   Impairment has no functional impact

   (8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.

   Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.

   Assessing functional impact of pain

   (9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:

   (a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

   (b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

   (c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

6. Mr Hamilton submitted that, on the evidence of Dr da Silva, the applicant’s Asperger’s disorder was fully diagnosed but not fully treated or fully stabilised so as to be permanent such that an impairment rating could be allocated to it under s 94(1) of the Act. He also submitted that, in accordance with the findings by the job capacity assessor in his report dated 4 October 2012,[14] the applicant did not satisfy the incapacity for work requirements of s 94(2) of the Act. He submitted that the decision under review should be affirmed.

   [14] Exhibit 1, T-documents, pp. 128-132.

7. The applicant submitted that he had been suffering from Asperger’s disorder since he was 10 years of age, that it was permanent, that it should be allocated an impairment rating of at least 20 points under Table 5 of the Impairment Tables and that he was not capable of undertaking work or retraining for work because of his condition.

   EVIDENCE

8. Dr da Silva is the psychiatric registrar with the Homeless Health Outreach Team (HHOT) in Cairns. In his report in support of the applicant’s claim for disability support pension, he entered a diagnosis of Asperger’s disorder with 1976 as the year of onset. He wrote that the applicant had been diagnosed with Asperger’s disorder at that time.[15] In a later report, dated 4 April 2013,[16] he noted that the applicant had “symptoms and signs consistent with a diagnosis of Autism (mostly on the Asperger’s disorder spectrum of symptomatology)”. He noted that the applicant was under the care of HHOT in Cairns having approached that team in May 2012. Dr da Siva described him as having a family history of mental disease and as having had a “prejudiced upbringing” with little support during his formative years. His opinion was that it was highly likely that the applicant would “not be able to function for extended periods of time due to the nature of his illness”.

   [15] Exhibit 1, T-documents, p. 95.

   [16] Exhibit 2.

9. The applicant’s evidence was that the common symptom from his Asperger’s disorder is that he feels as though he is in a mirage with a need to keep moving forward regardless of who or what is in front to him. This causes embarrassment when amongst other people because he gives an appearance of rudeness. He has that feeling when walking but also when riding a bike or driving a car. He has been involved in near accidents which have only been averted by the actions of others. He no longer drives a car because of this and he has fits from time to time. He has not fully explained these symptoms to Dr da Silva.

10. The applicant was shown an extract from “WebMD” provided by Mr Hamilton which purports to set out the features of Asperger’s disorder.[17] The applicant said that the extract was descriptive of himself. It lists common symptoms as including problems with social skills and coordination, repetitive behaviours and communication difficulties and also notes that many with the condition are skilled or talented. The first report of Dr da Silva identified the applicant as having relationship difficulties, poor concentration, poor memory and reduced attention span as well as difficulty with learning new skills. Dr da Silva referred to the treatment of the applicant as involving the use of medication and ongoing case management and he suggested that he undergo cognitive behavioural therapy with a local mental health group. As to the effect of the condition on the applicant’s ability to function, his opinion was that it was uncertain and was expected to fluctuate.[18]

    [17] The extract is headed “Asperger’s Syndrome” and was taken into evidence as exhibit 3.

    [18] Exhibit 1, T-documents, p. 96.

11. A Job Capacity Assessment (JCA) report was completed on 4 October 2012 by “David”, a registered psychologist.[19] David’s opinion was that the condition had been fully diagnosed and fully treated but that it was not fully stabilised. He relied on the report of Dr da Silva. He also noted that the applicant had reported that he had recently undergone a relationship breakdown and had only recently moved to Cairns where he was, at that time, living in a homeless shelter. David concluded that the applicant had a temporary work capacity of 0 to 7 hours per week but a baseline work capacity of 15 to 22 hours per week in moderate semi-skilled work such as in cleaning or as a storeman.

    [19] Exhibit 1, T-documents, pp. 128-132.

    CONSIDERATION

12. As noted above,[20] the requirements to be followed in applying the Impairment Tables are set out in s 6 thereof. No impairment may be allocated to the applicant’s Asperger’s disorder unless it is permanent in the sense that it is fully diagnosed, fully treated, fully stabilised and is more likely than not, in light of available evidence, to persist for more than two years. Dr da Silva noted that the applicant has suffered from the condition since 1976 and that it is expected to persist for two years after he wrote his report in September 2012. He also diagnosed Asperger’s disorder though he refers to a diagnosis reported by the applicant from his childhood. I do not read his later report as providing a definitive diagnosis of the condition by Dr da Silva when he described symptoms and signs consistent with a diagnosis of Autism, mostly on the Asperger’s disorder spectrum of symptomatology. I am not satisfied that the condition has been fully diagnosed by Dr da Silva and, in any event, I have noted that Dr da Silva described ongoing case management, in particular, suggesting that the applicant undergo cognitive behavioural therapy. In that situation, I accept the opinion of David in relation to the degree of stabilisation of the applicant’s Asperger’s disorder.

    [20] See para 5 (above).

13. On the basis of those findings, the applicant’s Asperger’s disorder cannot be considered to be permanent for the purposes of the Impairment Tables and it follows that the threshold of impairment points required under s 94(1) of the Act is not met. The applicant is not qualified for the disability support pension during the relevant period. It is not necessary for consideration to be given to his capacity for work.

    DECISION

14. The Tribunal affirms the decision under review.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

........................[Sgd]................................................

Associate

Dated 21 May 2013

Date of hearing	2 May 2013
Applicant	In person
Solicitor for the Respondent	Mr Bob Hamilton