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

[2017] AATA 400

Ashworth and Secretary, Department of Social Services (Social services second review) [2017] AATA 400 (30 March 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2964

Re:Nelson Ashworth

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:30 March 2017  

Place:Sydney

The decision under review is affirmed.

.............................[sgd]...........................................

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – disability support pension – Impairment Tables – whether conditions fully diagnosed, treated and stabilised – Autism Spectrum Disorder – Attention Deficit Hyperactivity Disorder – mental health issues – functional impact – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42, sch 2

SECONDARY MATERIAL

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

REASONS FOR DECISION

Senior Member A Poljak

30 March 2017

1. Mr Ashworth seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 5 May 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) on 12 October 2015, and affirmed by an Authorised Review officer (“ARO”) on 31 December 2015, refusing Mr Ashworth’s claim for the disability support pension (“DSP”) which was lodged on 29 July 2015.

2. Mr Ashworth’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For Mr Ashworth to qualify for DSP, he had to satisfy these criteria on 29 July 2015, when he applied for the DSP, or within the following 13 weeks, that is, by 28 October 2015 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that Mr Ashworth was qualified for DSP during the relevant period.

5. The Secretary accepts that Mr Ashworth suffered from a number of conditions during the relevant period including Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder and a mental health condition. He therefore satisfies section 94(1)(a) of the Act.

   IMPAIRMENT TABLES

6. The first issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”. 

8. Subsections 6(3) and 6(4) provide that an impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

    (a)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.

11. The Macquarie Dictionary defines undertaken as, inter alia, committing oneself to, taking on, and promising to do a particular thing. I am of the view that to undertake something, there is a level of commitment to see it through.

12. Reasonable treatment is defined in subsection 6(7) as 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.

13. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, s 11(1)(c) provides:

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    Autism Spectrum Disorder (“ASD”) and Attention Deficit Hyperactivity Disorder (“ADHD”)

14. The Secretary accepts that Mr Ashworth’s ASD was fully diagnosed, treated and stabilised during the relevant period. This is supported by the evidence of Dr Thambipillay in a report dated 15 September 2008, the report of Dr Wijesinghe dated 12 August 2015 and a medical certificate of Dr Leslie dated 2 May 2016.

15. In regards to ADHD, Dr Muul, consultant psychiatrist, notes in his report dated 10 March 2016, that Mr Ashworth “had been diagnosed as suffering from an ‘Attention-Deficit/Hyperactivity Disorder’ in the past and aspects of this are still present.” The applicant advised at the hearing that the condition had been stable since diagnosed. I therefore consider that the ADHD condition was fully diagnosed, treated and stabilised during the relevant period.

16. The question then to be determined in these proceedings is the functional impact of the conditions on Mr Ashworth having regard to Table 7 of the Impairment Tables.

17. It is important to note that for multiple conditions causing a common problem (impairment), subsection 10(5) and 10(6) of the Impairment Tables provides:

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) …it is appropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once. (emphasis added)

18. Dr Wijesinghe, consultant psychiatrist, in his report dated 12 August 2015, says Mr Ashworth has a deficit in social cognition and social anxiety, and states:

    “This is a young man who is able to finish his HSC despite a diagnosis of high functioning autism. His main deficit was in social cognition and was socially awkward. He also describes depressive symptoms since the age of 16. He was not treated with antidepressants. He complains of depression with increased sleepiness. He feels tired and lethargic. There is no history of mania. There is no history of psychosis. He feels guilty and worthless. He feels guilty about his predicament. He had thought of harming self but not now.”

19. Dr Muul, consultant psychiatrist, also says in his report dated 14 April 2016, that Mr Ashworth would have “significant difficulties finding and keeping employment because of his impairments”. He opined that:

    “Mr Ashworth’s work capacity is severely impacted by his diagnosed autism spectrum disorder and attention deficit hyperactivity disorder which makes it difficult for him to maintain concentration on any task greater than a few minutes as a consequence, his work capacity is 10-14 hours per week.”

20. In the Health Professional Advisory Unit (“HPAU”) report prepared by Dr Sandra Armstrong, a number of phone conversations with some of Mr Ashworth’s treating doctors are recorded. Relevantly Dr Armstrong had a phone conversation with Mr Ashworth and general practitioner Dr Leslie on 31 October 2016. Dr Armstrong summarises the conversation in her report as follows:

    “Dr Leslie told me that Mr Ashworth has lots of trouble coping with change and can “act out” when he is frustrated- for example raise his voice, but he does not act out physically. Intellectually he is “pretty high functioning”… Dr Leslie did not know if he received regular assistance from others. Mr Ashworth concentration and memory are good. He has exams coming up, and is very anxious about the deadlines and expectations involved… He can cope with problem-solving in a familiar environment, but would have difficulty in a new environment… Dr Leslie stated that he requires control over processes and would only be able to work 15 hours/week or more in an environment that was supportive of his ASD, not in a mainstream environment.”

21. In a phone conversation with psychiatrist Dr Wijesinghe on 4 November 2016, Dr Armstrong notes:

    “Dr Wijesinghe told me that Mr Ashworth had significant struggles with social functioning, due to his ASD and depression...Dr Wijesinghe said Mr Ashworth memory was good and he had some problems with concentration, but could concentrate for more than 10 minutes. Mr Ashworth problem-solving ability was “ok” in normal situations, and he did not have difficulties with planning, decision-making and comprehension abilities… He said Mr Ashworth did have some difficulty with behavioural regulation, but no outbursts, and he did have self-awareness of his limitations. He would not have needed daily support…”

22. At hearing, Mr Ashworth provided a number of additional documents in support of his application. Relevantly summarised as following:

    (a)The report dated 23 August 2016, Dr Muul noted that Mr Ashworth “has difficulties dealing with change and he’s prone to fixed routines” and that Mr Ashworth “is limited in his abilities to work and interact with others”;

    (b)Dr Leslie, Mr Ashworth’s general practitioner, opines in a report dated 4 August 2016, that Mr Ashworth conditions “amount to 20 points on the impairment scale for a cognitive condition”. He states that Mr Ashworth “has a capacity to work in a structured environment designed to accommodate his disability for 10 - 14 hours a week”; and

    (c)Berenice Murphy, TAFE course coordinator, comments on Mr Ashworth difficulties in regulating his behaviour and lack of self-awareness, she gives examples of these behaviours in the learning environment at TAFE in a letter dated 4 October 2016.

23. Mr Ashworth also provided a summary of his demerit points from The Roads and Maritime Services dated 20 June 2012; disciplinary interview records from his previous employment with KFC dated 27 August 2013 and 5 September 2013; a record for claim of an incident on 8 May 2015 from NRMA Insurance; and a Custom Incident and Restricted Servicing Arrangement Summary; all of which I have read and considered.

24. During a job capacity assessment undertaken on 29 September 2015, it is recorded that Mr Ashworth reported being “easily distracted by noise which causes him to lose concentration”. He reported that “he attended mainstream classes at school and had access to a teacher’s aide. He obtained average grades in school however he feels he could perform better with more support”. Mr Ashworth said that “he is currently a full-time TAFE student and is receiving support to organise his work placement however he is obtaining above average grades”.

25. Mr Ashworth advised the SSCSD at  hearing that he lives independently in his own home. He receives no support from community services. In order to help make ends meet, he shares his premises with a housemate. He confirmed that he was independent in all activities of daily living, although he stressed that he needs to operate according to a strict routine to function effectively. Mr Ashworth advised the tribunal that he was independent in relation to his financial affairs, and also that his housemate frequently accompanied him to do the grocery shopping.

26. Mr Ashworth advised at hearing that his condition had remained the same since the hearing before the SSCSD and confirmed that the evidence he gave during that hearing was correct at that time.

27. Mr Ashworth advised the Tribunal during these proceedings, that he was currently living by himself but had previously lived with a flatmates and his brother. He advised that his brother emails him regularly with regular job list and reminders to keep him focused on strict routines which his brother says allows Mr Ashworth to function more effectively (see letter from Travis Ashworth dated 14 May 2016). Mr Ashworth advised that he manages his day-to-day finances and that his parents help him with things such as car insurance. Mr Ashworth has recently finished a TAFE course in social work which was conducted on a part-time study load equivalent to 12 hours per week. Mr Ashworth said that his parents do his gardening but he can do most things around the house himself. Cooking is limited to microwave cooking. He does his shopping online since his flatmate has moved out. Mr Ashworth also said that he cares for a pet Labrador. Mr Ashworth advised that when he is not studying he goes to Wagga Wagga. He drives there alone. He also advised that he was able to drive at night, and would drive once a day to McDonald’s while on holidays.

28. Having regard to all of the evidence before me, particularly the evidence detailed above, and the descriptors in Table 7 of the Impairment Tables, I find that Mr Ashworth has a moderate functional impact resulting from ASD and ADHD. This equates to a maximum of 10 impairment points.

    Mental Health Condition

29. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

30. The Introduction to Table 5 of the Impairment Tables provides (inter alia):

    “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).” (emphasis added)

31. However before functional impact is to be assessed I must be satisfied that the condition is fully diagnosed, fully treated and fully stabilised. The Secretary accepts that Mr Ashworth’s mental health condition was fully diagnosed during the relevant period but concedes that it was not fully treated and fully stabilised.

32. Dr Muul, consultant psychiatrist, noted in his report dated 10 March 2016, that Mr Ashworth said he “had been depressed since he was 16 years of age and had been under the care of his family doctor in Wagga Wagga.”

33. Dr Wijesinghe, consultant psychiatrist, first saw Mr Ashworth on 11 August 2015 and opined in a report dated 12 August 2015, that he suffered from atypical depression. Dr Wijesinghe advised:

    “I will start him on Aurorix 150mg bd increasing 150mg bd. The dose may need to be increased. He may benefit from psychotherapy and a mental health care plan. These interventions may help his psychosocial functioning.

    I could consider referring him to psychotherapy after reviewing him at six weeks.”

34. As Dr Wijesinghe advised in the report dated 12 August 2015, interventions may help with Mr Ashworth’s psychosocial functioning and treatment is still ongoing, I am not satisfied that during the relevant period Mr Ashworth’s mental health condition was fully treated and fully stabilised. It follows that no impairment rating can be given for this condition.

    CONCLUSION

35. Since Mr Ashworth’s conditions do not rate 20 or more points under the Impairment Tables, it is not necessary for me to consider whether he had a continuing inability to work during the relevant period.  It follows that his claim for DSP cannot succeed.

36. I affirm the decision under review. 

37. Mr Ashworth may apply for DSP again at any time.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.......................[sgd].................................................

Associate

Dated: 30 March 2017

Date(s) of hearing:	16 January 2017
Advocate for the Applicant:	Z Traeger
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services