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

[2023] AATA 2428

Betts and Secretary, Department of Social Services (Social services second review) [2023] AATA 2428 (12 July 2023)

Division:GENERAL DIVISION

File Number(s):      2022/3055

Re:Danny Betts

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:12 July 2023

Date of written reasons:        7 August 2023

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides that the decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) dated 8 March 2022 is set aside and substituted with a decision that the Applicant is qualified for disability support pension pursuant to subsection 94(1) of the Social Security Act 1991 (Cth) as at the date of claim, being 16 November 2020.

.......[SGD].................................................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

SOCIAL SECURITY – Social Security Act 1991 (Cth) – Disability Support Pension – Qualification – Physical, intellectual or psychiatric impairment – Impairment Tables – Continuing inability to work – Decision set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth)

CASES

Betts and Secretary, Department of Social Services (Social services second review) [2022] AATA 1716

SECONDARY MATERIALS

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

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

7 August 2023

INTRODUCTION

1. This is an application for review of a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) dated 8 March 2022, affirming a decision of the authorised review officer dated 21 December 2021, that the applicant was not eligible for disability support pension (DSP) after a claim that he lodged on 16 November 2020.

   BACKGROUND

2. The applicant was born in 1973 and is 50 years old. On 16 November 2020, he lodged a claim for DSP, which was rejected on 7 December of the same year. On 21 December 2021, an authorised review officer of the Respondent affirmed the rejection decision. This decision was then affirmed on review by the AAT1, where an oral decision was made. There was no record of written reasons before the Tribunal in this review.

   THE HEARING

3. The Tribunal heard this application on 12 July 2023. The Applicant appeared self-represented, with the assistance of his disability advocate, Ms S. Bateman. The Respondent was represented by Ms S. Navaratnam. I gave an oral decision setting aside the reviewable decision and, in substitution, decided that the applicant is qualified for DSP. I now provide written reasons for this decision.

   IS THE APPLICANT QUALIFIED TO RECEIVE DSP?

4. For an applicant to qualify for DSP, they must meet the criteria under section 94 of the Social Security Act 1991 (Cth) (the Act). Section 94 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; …

5. I have decided that Mr Betts satisfies each of the above criteria, such that he qualifies for DSP, for the following reasons.

   Psychiatric Impairment

6. On an application for DSP, the decision maker must consider whether, within 13 weeks of the date of claim, which in this case was 16 November 2020, the applicant had a physical, intellectual or psychiatric impairment for the purposes of paragraph 94(1)(a) of the Act. In this case, there is abundant evidence of the fact that at the relevant time, Mr Betts was suffering from a psychiatric impairment.

7. It is quite useful to refer to the Tribunal’s earlier interlocutory decision, granting the applicant an extension of time in this application.[1] The learned Member Dr Bygrave helpfully identifies the various medical reports that were provided to the Tribunal. Ms Navaratnam confirmed that there had been no subsequent material filed. I note that Mr Betts makes no claim in respect of any knee or heart condition, and that his application is confined exclusively to the psychiatric sphere.

   [1] Betts and Secretary, Department of Social Services (Social services second review) [2022] AATA 1716.

8. Member Dr Bygrave refers to a number of reports, including the report by psychiatrist Dr Bannan, dated 16 July 2014, which diagnosed Mr Betts with ‘dysthymia plus generalised anxiety’,[2] and described him as ‘a lonely and isolated man’[3] and provided advice about his medications, including anti-depressants. This report also stated that Mr Betts ‘might benefit from referral to a psychologist for cognitive behavioural therapy’.[4] Mr Betts, in evidence, indicated that he had attended at least 30 such sessions.

   [2] T9, 128.

   [3] T9, 128.

   [4] T9, 128.

9. Member Dr Bygrave also referred to a health summary sheet by Dr Nguyen dated 17 November 2020, and a referral by Dr Hayes to psychiatrist Dr Thavakulingam, dated 21 November 2020. In those reports, Dr Hayes stated that Mr Betts suffers from ‘chronic depressive disorder’.[5] That information was repeated in medical certificates completed by Dr Hayes on 6 January 2021, which also indicated or diagnosed Mr Betts with ‘major depressive disorder’ with a ‘date of onset of 6 January 2014’,[6] which is the date when he was seen by Dr Bannan.

   [5] T16, 154.

   [6] T13, 143.

10. There is also reference by Member Dr Bygrave to a Centrelink medical certificate completed by Dr Hayes on 5 May 2021, which refers to ‘major depressive disorder’.[7] Member Dr Bygrave said at [34]:

    I am satisfied the available medical reports show that Mr Betts has had a longstanding major depressive disorder that has been diagnosed by a psychiatrist in 2014. He has trialled a range of antidepressant medications and counselling, and has remained compliant with his current antidepressant medication for a number of years. It also became apparent during the interlocutory hearing that Mr Betts is very isolated and has no support; this has meant that he has found it difficult to access assistance to either ensure he has sufficient medical evidence to support this substantive application or to lodge a new claim for disability support pension. Finally, while the Disability Support Pension Medical Eligibility Assessment Recommendation completed by a registered nurse recommended a referral for psychiatric assessment, the basis for this recommendation is not clear to me in view of the available medical reports.

    [7] T16, 154.

11. The Respondent accepts that Mr Betts’ dysthymia and generalised anxiety, as evidenced by the report of Dr Bannan, satisfy paragraph 94(1)(a) of the Act.

    The Impairment Tables

12. The question is then whether the applicant had an impairment rating from a fully diagnosed, treated and stabilised condition, attracting at least 20 points on the impairment tables. The impairment tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, made under subsection 26(1) of the Act. The relevant table is ‘Table 5 – Mental Health Function’ (Table 5).

    Diagnosed, treated and stabilised

13. The Tribunal did not have the benefit of hearing evidence from a psychiatrist, and I would be reluctant to make any specific findings based upon the medical reports tendered by the applicant. It is nonetheless very clear that the applicant has suffered, and continues to suffer, from a chronic and serious mental health condition since 2014. The question is then whether this mental health condition is appropriately evidenced. The preamble to Table 5 provides:

    Where a person has a permanent condition resulting in functional impairment due to a mental health condition, the diagnosis must be made by an appropriately qualified medical practitioner. This includes a psychiatrist, with evidence from the clinical psychologist if the diagnosis has not been made by a psychiatrist.

14. The Respondent has sought to draw a distinction between the diagnosis of dysthymia and generalised anxiety by psychiatrist Dr Bannan on the one hand, and general practitioner Dr Hayes’ reference to major depressive disorder and post-traumatic stress disorder (PTSD) on the other.

15. Given the similarity between dysthymia and major depressive disorder, I am satisfied that in this case, the relevant diagnosis was made by a psychiatrist, and was supported in subsequent years by a general practitioner. I am quite satisfied that there is sufficient corroborating evidence of the applicant’s severe impairment from a mental health condition. As evidenced by the report of Dr Hayes, and noted by Member Dr Bygrave, Mr Betts has trialled a range of medications to treat this condition. I accept Mr Betts’ evidence that these trials did not work. I am satisfied, considering the available evidence on the whole, that Mr Betts’ condition has been fully diagnosed, treated and stabilised.

16. I turn now to consider whether Mr Betts has a severe functional impairment within the meaning of Table 5.

17. The rating of 20 points may be found if a person has severe difficulty with most of the following: self-care and independent living; social/recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision making; and work training and capacity. I am satisfied in light of the evidence given by Mr Betts that he does in fact have a severe difficulty with most of the foregoing activities.

    Self-care and independent living

18. In terms of self-care and independent living, it is apparent from his evidence that although Mr Betts currently lives independently, he does so with some difficulty. He has occasional support from his nieces, but he does not have regular support, and my conclusion was that he has severe difficulty with self-care and independent living, although he did say he was able to use the toilet and bath and shower on his own.

    Social/recreational activity and travel

19. In terms of social recreational activity and travel, it was apparent that Mr Betts lives a secluded life, he does not travel very much, he said that he had not driven his car for at least two years.

    Interpersonal relationships

20. Mr Betts has few relationships. He has one important relationship with a friend who visits twice a year from Melbourne, and he did have a flatmate until a few years ago, when he moved out. He does have meaningful relationships, however, with his nieces.

21. In light of the evidence given by Mr Betts at the hearing, I am otherwise satisfied that he has difficulty with concentration and task completion, as well as behaviour, planning and decision making.

    Continuing Inability to Work

22. Subsection 94(2) of the Act provides:

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b) in all cases—either:

    (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    …

    (3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

23. As I am satisfied that Mr Betts’ mental health condition attracts 20 points under Table 5, it is a ‘severe impairment’ within the meaning of subsection 94(2)(3B). Consequently, Mr Betts satisfies paragraph 94(2)(aa) of the Act despite the fact he has not completed any days of a program of support. At the hearing, Mr Betts contested this and pointed to his participation in various other programs related to the eligibility for social services. However, the materials before me indicated that he did not, in fact, satisfy any of the program of support requirements.[8]

    [8] T24, 206.

24. As for the requirements under paragraphs 94(2)(a) and (b), Ms Bateman did point out that Mr Betts had not worked since he was employed as a mailman for the post office in 2009. Moreover, the weight of the medical evidence suggests that Mr Betts’ mental health condition is, of itself, sufficient to prevent him from working independently, completing a program of support or undertaking a training activity. I am comfortably satisfied that he has a continual inability to work within the meaning of subsection 94(2) of the Act.

    Final matter

25. The Tribunal heard that Mr Betts had provided some care to his elderly father prior to the qualification period. The Respondent submitted at the hearing that this care amounted to the equivalent of full-time employment. I rejected this submission, on the basis that the degree of support provided by Mr Betts to his father was limited to helping him get dressed, cutting up his food and keeping him company, roughly twice a week. I am not satisfied this degree of care amounted to full-time employment.

    DECISION

26. For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides that the decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) dated 8 March 2022 is set aside and substituted with a decision that the Applicant is qualified for disability support pension pursuant to subsection 94(1) of the Social Security Act 1991 (Cth) as at the date of claim, being 16 November 2020.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

........[SGD]................................................................

Associate

Dated: 7 August 2023

Date(s) of hearing:	12 July 2023
Applicant:	In person
Solicitors for the Respondent:	Ms S. Navaratnam, Services Australia