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

[2019] AATA 4986

Besenyei; Secretary, Department of Social Services and (Social services second review) [2019] AATA 4986 (26 November 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7346

Re:Secretary, Department of Social Services

APPLICANT

Frank BesenyeiAnd  

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:26 November 2019

Place:Adelaide

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Tribunal dated 9 November 2018 and substitutes a decision that the respondent does not qualify for a disability support pension.

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P BRITTEN-JONES
(Deputy President)

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension – whether conditions fully treated and fully stabilised in claim period – mental health conditions – drug dependence condition – where respondent had not exhausted reasonable treatment options available for his mental health conditions – decision under review set aside and substituted with a decision that the respondent does not qualify for a Disability Support Pension in the claim period.

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

1. This is an application by the Secretary, Department of Social Services (the applicant) for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 9 November 2018. The AAT1 found that Mr Besenyei (the respondent) was qualified for the Disability Support Pension (DSP) under the Social Security Act 1991 (the Act) on a claim he had lodged with the Department of Human Services on 7 August 2017.

   BACKGROUND LEADING UP TO THE APPLICATION FOR REVIEW

2. The respondent is currently 32 years old, having been born in November 1986.

3. The respondent has endured many difficulties and tragedies in his life. His father was a violent alcoholic who perpetrated domestic violence on his mother. He grew up in a scared household. He also received some beatings. He developed behavioural problems during his schooling and resorted to drug use and glue sniffing. He mainly smoked cannabis but also experimented with methamphetamines, ecstasy and speed. Later he was in a relationship with a woman who bore him a child. Tragically in 2010 the son died from SIDS. He discovered the dead child and witnessed traumatic events at the hospital. Since then his life has changed. He has become angrier and has a very low tolerance of people. Further, the respondent was in another relationship with a woman who suffered a motor vehicle accident and amnesia to the extent that she could not remember their relationship and returned to her ex-partner. Since then the respondent has not had a support or friendship network. He self-medicated using cannabis. During the Claim Period he was consuming about 2 grams of marijuana a day.  His mental health problems stem from all of these events.

4. On 7 August 2017 he lodged a claim for DSP with the Department of Social Services (the Department). The claim form listed the respondent’s conditions as including Post-Traumatic Stress Disorder, Depression, Anxiety, Bipolar, Personality Disorder, and Insomnia.[1] On 10 April 2019, the respondent undertook a Job Capacity Assessment (JCA). The JCA report recommended that: [2] 

   (a) the Respondent had a drug dependence disorder which was fully diagnosed, however this condition was not ‘fully treated and fully stabilised’.

   (b) the Respondent had a mental health condition which was fully diagnosed, however this condition was not ‘fully treated and fully stabilised’.

   (c) the Respondent did not have a ‘continuing inability to work’ as he had an ability to work 15 – 22 hours per week within 2 years with intervention.

   [1]    T10, p 137.

   [2]    T11, p 169 – 176.

5. On 10 April 2018, the respondent’s claimed for DSP was rejected. On 4 July 2018, the respondent sought an internal review of that decision. The authorised review officer affirmed the Respondent’s initial 10 April 2018 that the Respondent did not satisfy the criteria for the DSP.

6. The respondent sought a review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). On 9 November 2018, the AAT1 set aside the Departmental decision and instead found that the respondent did meet the qualification criteria of the DSP. The AAT1 found that the respondent’s mental health condition was fully diagnosed, treated, and stabilised and further that the conditions should be assigned 20 points under the applicable Impairment Table for assessing mental health conditions.[3]

   [3]    Table 5 under the Impairment Tables.

7. On 21 December 2018 the applicant applied for review of the AAT1’s decision.

8. The hearing of the application for review was heard before me on 22 and 26 November 2019. The applicant was represented by Mr Visser from the Department of Human Services. The applicant called Dr. Ewer in support of its application. The respondent was represented by Mr Hemsley, on instructions from Ms. Lewis of the Legal Services Commission. The respondent gave oral evidence before the Tribunal, and called Professor White and Mr Fallo in support of his case.

9. The respondent gave evidence which confirmed his tragic history and current debilitating conditions. He confirmed that leading up to and during the Claim Period he was smoking about 2 grams of cannabis a day.  In more recent times he has reduced his intake.

   ISSUES

10. The issues to be decided by the Tribunal are whether at the date of claim (7 August 2017), or within 13 weeks of that date (6 November 2019) (the Claim Period) the respondent satisfied the criteria for a DSP as provided by s 94 of the Social Security Act 1991 (the Act). That is, did the respondent have:

    1.any physical, intellectual or psychiatric impairments;

    2.an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

    3.a continuing inability to work.

11. In respect of the first criteria, the applicant accepts that the respondent suffers an impairment and satisfies s 94(1)(a) of the Act in respect of his mental health condition and drug dependence condition. I accept that concession and find accordingly.

12. As I noted from the outset, the main contest in this application is the question of whether the applicant’s mental health condition was fully treated and fully stabilised in the Claim Period, which falls within the analysis of the second criteria.

    Permanent conditions

13. The second criteria is that the impairments attract a rating of at least 20 points under the Impairment Tables. Before a condition can be assigned an impairment rating, the condition must be ‘permanent’.[4] 

    [4]    Section 6(3) of the Impairment Tables.

14. The concept of a ‘permanent’ condition is further explained by s 6 of the Impairment Tables to mean:

    Permanency of conditions

    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

    …

    (c)       the condition has been fully stabilised; and

    …

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

15. For a condition to be considered ‘permanent’ it must be ‘fully treated’ and ‘fully stabilised’. Those terms are explained to mean:[5]

    [5]    Section 6(5) – (6) of the Impairment Tables

    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).

    The respondent’s drug dependence condition

16. The respondent conceded that his drug dependence disorder was not fully treated and fully stabilised during the Claim Period. [6] To meet the descriptor of a fully treated and stabilised condition, the respondent must have in effect exhausted his reasonable treatment options. I accept the respondent’s concession and find in accordance with it, as no evidence was provided that the respondent had taken any steps to address his cannabis use prior to or during the Claim Period.

    [6]    Statement of Facts, Issues and Contentions of the Applicant filed 11 September 2019, [18].

    The respondent’s mental health conditions

17. The applicant’s case was that the untreated drug addiction had negative impacts on his mental health conditions which, consequently, were not fully treated and stabilized.

18. When considering whether the mental health conditions have been fully treated I must consider what treatment or rehabilitation has occurred in relation to those conditions in the period leading up to and including the Claim Period. The starting point for this analysis is the report of the psychiatrist, Dr Dhillon dated 28 January 2016. Having diagnosed the respondent with a major depressive order, features consistent with a borderline and dependent personality structure and a cannabis dependence disorder, Dr. Dhillon provided a management plan which prescribed Quetiapine, then Carbamazepine as mood stabilisers.  In addition, he said:

    “Frank would do well with one to one psychological therapy as well as being referred for dialectical behavioural therapy (DBT). I have included a referral form for Frank to be referred for DBT. Frank would also benefit from supportive psychotherapy with a clinical psychologist. … Frank can also be referred to drug and alcohol services. Frank was quite keen to tackle his cannabis dependence disorder with professional help.”

19. Dr. Dhillon saw the respondent one year later and provided a further report dated 17 January 2017. He noted that the respondent did not undergo the recommended dialectical behaviour therapy and, although he had tried to address his cannabis addiction and had contacted Drug and Alcohol Services, he had not participated in any detox program. Despite being given a script for carbamazepine he had not filled it out. Dr. Dhillon reported:

    “I explained to Frank that I would be keen for him to undertake some of the other recommendations I made in the treatment plan. Carbamazepine was a mood stabilizer and I would like him to start as this might be effective for his borderline personality structure as outlined in my previous report. I will try to contact the Western Mental Health Service to see if Frank can undergo group DBT therapy this year. I have also included the list of private psychologists which might be able to provide Frank one to one DBT therapy. It will be important for Frank to also address his cannabis use definitively. Substance use can also exacerbate his mental health problems.”

20. In 2017 the respondent was seeing his general practitioner, Dr. Donohoe, who referred him to Mr. Fallo, a clinical psychologist. The respondent was prescribed Quetiapine in May 2017 and carbamazepine in August 2017. Mr. Fallo saw the respondent on five occasions and wrote a report dated 2 August 2017. He said that the respondent had been referred to him for the psychological treatment of symptoms consistent with major depressive disorder and borderline personality disorder. No details of that treatment were provided but Mr. Fallo concluded that “his history and presentation are strongly suggestive of chronic mental illness with very little likelihood of improvement over the next two years” and “he is unfit for 12 hours of weekly employment and is highly unlikely to improve to any significant extent over the next two years, even with ongoing psychological and psychiatric treatment.”

21. In a later report from Mr. Fallo dated 9 October 2018 he expanded on the issue of treatment and said:

    “He periodically accesses mental health services and hospital admissions when in crisis but no other treatment options are available to him. No treatment to date has led to any improvement in his condition because of the complex combination of dysfunctional personality structure and grief based depressive illness.”

22. Mr. Fallo said further:

    “[Respondent] had exhausted all reasonable treatment options at the time of the application in 2017. He sought psychological therapy under a Medicare mental health plan every year and he presented to psychiatric services regularly. The combination of a dysfunctional personality, complex grief and major depressive illness is highly resistant to treatment and unlikely to change with ongoing treatment.”

23. Dr. Donohoe said in his report dated 14 September 2018 that the respondent “has had a program of treatment with a clinical psychologist Mr. T Fallo and myself. He has also been commenced on a mood stabilizing medication as well as an antidepressant.”

24. Dr. Ewer prepared a report for the applicant dated 28 February 2019. He confirmed the diagnosis of the respondent namely that he is suffering from post-traumatic stress disorder, major depressive disorder, a cannabis use disorder and a borderline personality disorder. He referred to the treatment that the respondent had received for his mental health condition but considered that it fell well short of being appropriate treatment. In particular he noted that he had not had 12 months of dialectical behaviour therapy and he had not had an inpatient stay to help him reduce and abstain from marijuana. 

25. Dr Ewer considered that there were further reasonable treatments not undertaken by the respondent as at the Claim Period. He said that post-traumatic stress disorder and depression are serious but treatable conditions which required a psychiatric management plan. He also said that psychotherapy is an important treatment of most depressive disorders with comorbid post-traumatic stress disorder. Medication could also be used as an alternative when psychological treatment is refused or unavailable. Dr Ewer concluded that these treatments have still not been undertaken and are still relevant. He said that if the respondent had the above treatment, his prognosis would be favourable and it is probable that a number of his symptoms will improve.

26. With respect to the respondent’s substance use Dr. Ewer confirmed that he was suffering from a cannabis use disorder. He considered that the respondent would benefit from an inpatient’s stay to help him detoxify from cannabis. He thought it likely he could abstain from cannabis if he received this treatment. He also opined that the respondent has been using a lot of cannabis and that this would interfere with the treatment of his other psychiatric disorders. He said that if the respondent addressed his cannabis use disorder it is likely that his other psychiatric disorders would improve over a number of months. He concluded that the respondent’s mental health conditions were not fully diagnosed, fully treated and fully stabilised as at the Claim Period. Nor were his substance abuse issues.

27. Dr. Ewer concluded that there are a number of treatment options that have a high probability of improving the respondent’s symptoms and his functioning.

28. Mr. Fallo provided a final report dated 23 July 2019. He confirmed his opinion that the respondent had completed reasonable treatment of his mental health conditions at the relevant time. He said that the respondent’s personality structure is strongly influenced by borderline, paranoid and avoidant features and he would have found it very difficult to endure the tensions of further psychological and psychiatric treatment. For that reason there was no further reasonable treatment to produce a significant improvement in him. Mr. Fallo was asked to give his opinion with respect to the treatment of the respondent’s substance use disorder. He said that the respondent reported “minimal substance use” and that it helped him manage his anxiety and in particular his aggression. He did not assess his substance use as a disorder requiring treatment but rather as a form of self-medication for a chronic condition. In answer to a further question he said that the respondent has reportedly used varying quantities of cannabis over a number of years and “it was my understanding that cannabis use was generally minimal during the relevant period and not adversely impacting on his condition.”

29. Professor Jason White is the Emeritus Professor at the School of Pharmacy and Medical Sciences at the University of South Australia. He was provided with the reports of Mr. Fallo and Dr. Ewer and was asked to comment on the issue of the respondent’s cannabis use in those two reports and the potential treatment of any cannabis related disorder. He noted that cannabis use of 2 grams per day would be considered a heavy use and is consistent with cannabis dependence at that level. He said that treatment for cannabis dependence is normally delivered through an outpatient service and that the respondent could have benefited from outpatient treatment at the time he was using 10 g per week.

30. Prof. White said that cannabis use does not worsen or improve depression but that paranoia can be worsened by cannabis use. He concluded:

    “There is therefore some potential for [the respondent’s] cannabis use to have exacerbated some of the symptoms he experienced and thus his cannabis use may possibly have impaired his treatment, at least for the borderline personality disorder and paranoid personality trait.

    Based on the diagnoses for [the respondent], and assuming that his cannabis use was at a relatively high level at the time in question, reduction of cannabis use through treatment may have had some positive impact on his mental health, although the degree of improvement due to treatment of cannabis dependence is unlikely to have been pronounced.”

    Consideration

31. The oral evidence from the respondent that he was smoking about 2 g of marijuana a day during the Claim Period is critical to the outcome of this case. I note that this evidence was also set out in the applicant’s witness statement which is Exhibit 2 where he said:

    “During the claim. I was using quite a bit of cannabis (perhaps 2 grams a day or more).”

32. Mr. Fallo was asked about this when giving oral evidence he said that the respondent had reported that his use of cannabis was minimal and that it helped him to relax. Consequently, Mr. Fallo did not think his cannabis use was a disorder.  Mr. Fallo said that he was not an expert with respect to cannabis use but that because the respondent’s condition was neurotic and not psychotic that cannabis use would not worsen it.

33. I note that in his letter dated 26 July 2017 Dr. Donohoe said that the respondent had greatly reduced his intake of cannabis. It would appear that both Dr. Donohoe and Mr. Fallo were misled as to the amount of cannabis being consumed by the respondent. I find that the actual position with respect to the respondent was that in the period leading up to and including the Claim Period the respondent was smoking at least 2 g of cannabis a day which puts him in the category of a heavy user and substance dependent at the relevant time.

1. Prof. White is the expert with respect to cannabis use and its effects. Assuming that the respondent’s cannabis use was at a relatively high level at the relevant time (which it was), Prof. White concluded that reduction of his cannabis use through treatment may have had some positive impact on his mental health, although the degree of improvement is unlikely to have been pronounced. In his oral testimony Prof. White said that if the respondent was dependent on the drug (which he was at the relevant time) then it is disruptive to the treatment of his mental health conditions, although he did not think it would impair treatment to a significant degree.

2. Dr Ewer considered that the respondent’s use of cannabis would interfere with the treatment of his other psychiatric disorders. He thought that these psychiatric disorders would improve over a number of months if the cannabis use disorder was addressed. There is no expert evidence which contradicts the opinion of Dr Ewer. His opinion is consistent with the more general expert evidence given by Prof. White. Mr Fallo did not proffer an opinion because he is not an expert with respect to cannabis use and its effects. Consequently, I accept the evidence of Dr. Ewer that the respondent’s use of cannabis would interfere with the treatment of his psychiatric disorders and that those psychiatric disorders would likely improve if the cannabis use disorder was addressed.

3. I find that the respondent’s mental health conditions were not fully treated because his cannabis use disorder was not treated. In order to fully treat his mental health conditions, it was necessary to address the cannabis use disorder. This was not done and therefore I am not satisfied that the mental health conditions where fully treated as at the Claim Period.

4. Further, there was very little evidence from Mr Fallo as to the actual treatment he provided to the respondent for his mental health issues. On the other hand, there is evidence that the treatments suggested by the psychiatrist, Dr Dhillon, were not provided. For example, the respondent never undertook dialectical behavioural therapy, nor did he undertake outpatient detox therapy before the Claim Period.  Dr Ewer referred to numerous reasonable treatments that were available to the respondent but not undertaken. He said that treatment of post-traumatic stress disorder with a co-morbid depressive disorder should involve establishing a management plan which would include a thorough assessment as a first step, some general treatment modalities and psychotherapeutic interventions such as general support, trauma focused treatments, mindfulness-based interventions, cognitive behaviour therapy, interpersonal psychotherapy, insight orientated psychotherapy, bolstering adaptive coping mechanisms and relaxation training. If psychological intervention alone was not successful then medication should be considered and if the depression persisted then an augmenting agent such as lithium should be added. None of these treatments were carried out in any meaningful way based upon the evidence received. I accept the expert opinion from Dr Ewer that if the respondent had the above treatment then his prognosis would be favourable and it is probable that a number of his symptoms would improve, albeit he was unlikely to fully recover.

5. Mr Fallo expressed the opinion that because the respondent’s personality structure was strongly influenced by borderline, paranoid and avoidant features, he would have found it very difficult to endure the tensions of further psychological and psychiatric treatment.  I am not able to accept this opinion because of the lack of evidence with respect to the psychological and psychiatric treatment administered to the respondent. The reports from Mr Fallo do not adequately disclose the treatment provided to the respondent. Further, there is no evidence, for example, that some of the strategies suggested by Dr Ewer were tried and failed with respect to the respondent.

6. Counsel for the respondent sought to rely upon clause 6(6)(b)(ii) of Impairment Tables but I am not satisfied that the respondent has established that there is a medical or other compelling reason for the respondent not to undertake reasonable treatment. Nor am I satisfied with respect to 6(6)(a) or (b)(i).

7. I am not satisfied that the respondent’s mental health conditions where fully treated and fully stabilised during the Claim Period. Consequently, an impairment rating cannot be assigned to his mental health conditions. Section 94(1)(b) of the Act is not satisfied.

8. The decision of the Tribunal is to set aside the decision of the social services and child support division of the Tribunal dated 9 November 2018 and to substitute a decision that the respondent does not qualify for a disability support pension.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

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Legal and Administrative Assistant

Dated:	26 November 2019
Date(s) of hearing:	22 & 26 November 2019
Applicant:	Mr C. Visser, Department of Social Services
Advocate for the Respondent:	Mr G. Hemsley (counsel) on instructions from Ms. Lewis, Legal Services Commission