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

Bevington and Secretary, Department of Social Services (Social services second review) [2017] AATA 684 (20 March 2017)
Division:GENERAL DIVISION
File Number(s): 2016/2253
Re:Blayne Bevington
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:20 March 2017
Date of written reasons: 24 April 2017
Place:Sydney

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 11 April 2016, and in substitution, decides that the Applicant qualified for Disability Support Pension as at 13 August 2015.
........................[sgd]................................................
Bill Stefaniak AM RFD, Senior Member
Catchwords
SOCIAL SECURITY - disability support pension – refused – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – decision under review set aside
Legislation
Social Security Act 1991 ss 94(1)(a)-(b)
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
WRITTEN REASONS FOR ORAL DECISION
Bill Stefaniak AM RFD, Senior Member
24 April 2017

In this application, the Tribunal is reviewing a decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal, which was made on 11 April 2016, affirming a decision of the Department of Social Services (the Department) to cancel the applicant’s Disability Support Pension (DSP) from 13 August 2015, and the issue that has to be decided is whether the applicant was qualified to receive DSP as at the date of cancellation, namely 13 August 2015. That is the date that I have to have due regard to. That is the relevant date for the evidence.
The relevant section is s 94(1) of the Social Security Act 1991 (Cth) (the Act), which inquires whether the applicant satisfies the criteria, which was that he had a physical, intellectual or psychiatric impairment for the purposes of s 94(1)(a); and an impairment that attracted a rating of at least 20 points under the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination), for the purposes of s 94(1)(b) of the Act and also see section 94(2) in relation to a continuing inability to work.
The applicant is a young man born in 1993. On 26 May 2009, or effectively from that date, he had been in receipt of DSP. He was granted that on the basis of impairments arising from the condition of autism, for which he was assigned an impairment rating of 20 points under the old Impairment Table 6 for a psychiatric impairment. His Attention Deficit Hyperactivity Disorder (ADHD) and anxiety were assessed as part of the claim, but were awarded zero points each under the old Impairment Table 6, which was used for permanent psychiatric impairments only. The law at that time was also that if there was insufficient clinical information available, a current or recent specialist report should be obtained.
For 20 points, one needed to have:
A psychiatric illness or disorder with either serious symptomology or impairment in functioning that requires treatment by a psychiatrist (example frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious antisocial behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal of workplace relationships with serious disruption of work attendance or ability to work.
So, it is either or there in relation to that. Either serious symptomology or impairment. That was the old scale. The new scale is now contained in the Tables as I indicated and, effectively, Table 7 is the most applicable, for autism, although Table 5, Mental Health Function, may also be of some assistance.
On 27 March 2015, the applicant was notified his ongoing qualification for DSP was being reviewed and in a report completed for the purposes of the review, his treating doctor, Dr Papandrea, listed the conditions which may have impacted on him, and that is Ehlers-Danlos Syndrome (EDS). Dr Papandrea noted the applicant had been diagnosed with EDS in August 2013 by rheumatologist, Dr Howe. Dr Papandrea listed the other conditions impacting on the applicant’s ability to function as autism, ADHD, generalised anxiety disorder, spondylosis and coeliac disease.
On 26 June 2015, the applicant underwent a Job Capacity Assessment (JCA). The JCA assessed the applicant for the following conditions; EDS, autism, ADHD, anxiety and spondylosis. The JCA found that the applicant’s anxiety and spondylosis were not fully diagnosed, treated or stabilised and that no impairment rating could be awarded for those conditions. The JCA did not refer to the applicant’s coeliac disease. The JCA found also that the applicant’s EDS, autism and ADHD were fully diagnosed, treated and stabilised.
The JCA awarded the applicant a total of 5 impairment points, recommending zero points in Table 2, Upper Limb Function, and Table 3, Lower Limb Function, respectively for impairments due to EDS, 5 points under Table 7, Brain Function, for autism and zero points under Table 7, Brain Function, for impairment due to ADHD.
It further found that the applicant had a capacity for work within two years with intervention of 15 to 22 hours a week. There are some issues in relation to that assessment, which I will come to shortly.
On 13 August 2015, the Department wrote to the applicant and informed him that his DSP would be cancelled and that the Department determined the applicant was not qualified because he did not have an impairment rating of at least 20 points under the Impairment Tables.
The applicant, through his mother, sought internal review, which was affirmed by an authorised review officer on 22 September 2015 and on 24 September 2015, the applicant’s DSP was cancelled. The authorised review officer relied on the JCA report. The Job Capacity Assessor attempted on a couple of occasions to contact the applicant’s mother and did not leave any return contact number for her to ring back on. I do not think that is satisfactory.
The applicant sought review of the decision of the authorised review officer and the SSCSD made its decision on 11 April 2016, affirming the decision.
Sworn oral evidence was given at the hearing by the applicant, his mother and by Dr Papandrea. The applicant indicated that at school he had trouble focussing and concentrating, and had a teacher’s aide. He went to school from Year 4 on and off, and he was in a support unit for Year 7 to 9. He was in a special class of six students with a teacher and a teacher’s aide He was sent to mainstream classes from Year 10 to 12, where he struggled to cope. He got an ATAR in his HSC of 33.
After leaving school, the applicant volunteered at the Marine Rescue. That did not go so well. He had a bad reaction to training and suffered post-traumatic stress disorder.
He worked in a number of roles for short periods, however, was often unable to do the work required He worked at a shoe store checking bags. He was unable to do that work and they had to let him go.
The applicant then joined the Green Army. The applicant said he was okay for two or three days, but the more he did, the more it hurt and, at the end of it, he could not keep up. There was a lot of travelling and there is documentation indicating that the travel times would be anything over an hour each way just to get to the site.
After the Green Army, he did one and a half days per week, as a Salvation Army and SES volunteer. At the SES, the applicant tried his best to keep up the work but he felt his pain was increasing over time and he had to cease work there.
At the Green Army, he pulled weeds. He said his back was sore. His fingers would cramp up. He would be able to kneel for about five minutes but then he would need to rest, sit down and wait for about 10 to 15 minutes and then he would be right to go again for another five and the process would repeat itself. He said that particular activity had a lot of sitting and travelling. He would sit for 20 minutes and then sometimes he would be able to stand up.
He said there was a lot of teaching, a lot of sitting down and learning. It was 50-50 basically learning and weeding. He could do work at elbow level but he could not do work above his shoulder and it was the same at the State Emergency Service. He indicated he could walk to his bus stop but he would rest every five or 10 minutes and he would sit down for about 20 minutes. He could go for 10 minutes with great difficulty. He has found it very difficult to use a knife and fork because of his fingers. For some reason, he found chopsticks easier. A normal grip would just cause him a lot of pain. He said his sleep patterns were also bad and he took a number of different types of medication to get to sleep. He said in the last five or six years this got a lot worse.
In relation to the JCA, the applicant stated that he did not understand all the questions. He said they were very broad, and often included multiple questions. He said he had trouble sitting still for 10 minutes and had to get up.
In relation to his condition of EDS, it is a very painful disease with which the applicant was diagnosed in 2013, which effectively means his joints can go in and out. He dislocates ribs, shoulders and knees Sometimes they pop back in and sometimes he has to put them back in. The pain is just like anyone else dislocating a joint, but it is something that happens pretty much on a weekly basis for the applicant and this has been going on for quite some time, since certainly he was a young teenager when he had to give up soccer and some other sports as a result. He said dislocations can occur at any time.
The applicant said he was trying to manage the actual condition itself. In answer to a question as to whether he was doing any recovery physiotherapy, he said he had not been for 12 months due to the cost which was about $70 per session. He indicated he had not attended any of the pain clinic sessions since 11 January 2016 because of the cost. He was living with pain.
His mother then gave evidence and she said he was diagnosed with ADHD at the age of five and autism at the age of seven. She said a change of routine is a problem. He has minuscule attention and there were some significant issues there. She talked about how he dislocated a shoulder at birth and that he was a swimmer but, unfortunately, he had to drop out of that, even though he does swim now and has been swimming and this is part of some of the physio.
In terms of the EDS, he was diagnosed in 2013. It affects joints, all the tissues, skin laxity, the blood vessels and it is a different type of pain. It is a nerve pain, a joint pain where even sneezing hurts. He says the pain changes something in his brain. According to Dr Howe and Dr Maher, the applicant’s fatigue is somewhere in the vicinity of five to six times the rate of a normal person. She also said she had been told there was no cure for EDS, just lifelong management. Some people end up in a wheelchair.
She stated that two days ago, prior to the hearing, he had rolled over in bed and dislocated a rib, which then popped back in. She indicated that she could not go to the JCA and they would not change the date. She said that was not a big concern because he had been there before but when he came home and told her that the questions were long and he did not know what they wanted him to say, she was a bit concerned.
He cannot hold things properly because his fingers go backwards. He could not do the pressure and the pain. For some reason, he could use chopsticks.
She said that she had to cut things up for him. He has trouble with pieces of meat. On his day, he can pick things up from the floor and even uses his toes if he cannot bend down.
The applicant also gave some further evidence and was further cross-examined. He has one friend and a couple of people he talks to. He had a girlfriend but that was a stressful situation. He finds it easier one on one.
His mother indicated to the Tribunal at this point and said that the Green Army had been completely informed about his difficulties prior to him going there. Despite his problems, they accommodated him as best they could.
Dr Papandrea has been his doctor for nine years and the applicant indicated he sees him about once a month. He gave evidence as well as provided statements. He said in relation to the EDS, he regarded it as treated and fully stabilised and what was occurring now in terms of treatment was effectively management of the ailment. He said, “[the applicant] needs day to day coping strategies to allow him to function and cope. There is no treatment or cure for EDS”. He said in 2016, the applicant had also had a heart strain. He indicated Dr Ring, who provided a statement, was not an EDS specialist but was a pain specialist and he said that the applicant has spondylosis, not arthritis.
He said in relation to his spine, his L5/S1 is not connected to his vertebrae and that causes spinal pain. He said he had 14 visits in the year 2015; in January, February, April, May, June, August onwards. He said he knows the applicant has tried to work at the sports store and suffered.
He was cross-examined and the doctor said in his report that EDS was treated by physiology. Future treatment would include hyper-therapy and swimming. He said that that was having a positive effect. He said it was useful because it kept his muscles in tone, and gave him fitness. He did not think it would make a difference with the inflammation. He felt that his ADHD and his anxiety were well-managed. The anxiety, however, was ongoing and has not changed much over the years may be linked to the autistic traits.
Other relevant documentation here, as I have said earlier, is the JCA report of 2 June 2009, and that indicated autism, formally diagnosed in 2003:
…has had monitoring and reviews with [paediatrician] over the years. Treatment includes antidepressant and anti-psychotic medications, future treatment to continue as is. …current impact of his condition on his ability to function is expected to persist for more than 24 months and within the next 2 years, the effect of this condition on his ability to function is expected to remain unchanged.
Similarly with the ADHD and anxiety. Autism, which was assessed under the former Table 6, Psychiatric Impairment, attracted a rating of 20 points, and zero ratings for anxiety and ADHD. The JCA assessor stated:
Autism
[The applicant] was assigned a rating of 20 on table 6 given the Autistic Spectrum disorder condition that has an impact on his daily, social and occupational functioning. The condition is considered fully diagnosed, treated and stabilised, as it was formally diagnosed in 2003. [The applicant] has had had monitoring and reviews with Paediatrician over the years and support throughout his schooling. Treatment includes antidepressant and anti-psychotic medications, future treatment to continue as is. Condition results in poor social communication, limited concentration span and inappropriate behaviours. Medical report indicates that the current impact of his condition on his ability to function is expected to persist for more than 24 months and within the next two years the effect of his condition on his ability to function is expected to remain unchanged.
…
Barriers to be addressed
…
Social interaction
Limited social communication skills, which may impact on ability to maintain effective personal relationships, as well as with prospective employers/peers/ colleagues.
Anxiety Disorder
Symptoms of anxiety impacting on mood and level of functioning.
Language/communication
Difficulties with speech, this may have an effect on employment options and performance.
Limited employment history
Does not have any employment skills and experience. This may reduce his competitiveness in the open labour market.
Workplace support required
Limited ability to sustain work unassisted.
Concentration limitations
Impaired concentration impacting on ability to maintain focus on work-related tasks.
…
Current (baseline) capacity for work: 8-14 hours per week, in suitable employment, given the symptoms and resulting impacts of his combined medical conditions that have an impact on his daily social and occupational functioning.
[The applicant’s] conditions result in limited social skills, limited concentration span, that results in a reduced ability to focus and complete tasks, hyperactivity, inappropriate behaviour, sensitivity to some sounds and smell, anxiety with unfamiliar situations, crowded situations and change in routine. The applicant] requires prompting with tasks related to hygiene and ongoing support with the completion of school tasks and assignments.
That JCA went on to describe a work capacity of eight to 14 hours in a suitable employment and, similarly, within two years with intervention and referred to various medical reports that JCA had at that time.
It is interesting to note that, as well as that JCA report of 2 June 2009, there was a further report on 17 February 2014, which was an Employment Services Assessment report conducted face-to-face. It indicated that the autism was permanent. This report basically seems to have reiterated the fact that he had been assessed at eight hours plus a week. It noted the 2009 report and identified some interventions, disability management education, post-placement support, psychiatric services treatment, vocational assessment, work experience. It said:
In consideration of the client’s identified circumstances, a referral to the Disability Employment Services – Employment Support Service would be appropriate. This would assist in addressing identified barriers to work related to identified health needs, along with providing moderate ongoing workplace support. A referral to this program will be actioned by the assessor following submissions of the report.
Again the baseline capacity was assessed as eight plus hours, “taking into account the impacts of his verified permanent medical conditions” and felt “while permanent conditions were identified as significant, impact on the client’s baseline work capacity is not anticipated”.
This situation continued until the review and the JCA report of 26 June 2015. That was an assessment done by a registered psychologist and it was face-to-face, which took place on 12 May 2015 without the applicant’s mother being present.
Autism was described as permanent and likely to persist, as was anxiety and spondylosis. For both upper and lower limb function, he was rated at zero points. For autism, he was rated 5 points, and zero impairment points for brain function. His total impairment points were 5. The supporting reason summary is as follows:
The client was previously assessed for Disability Support payment in 2009 by [name], who determined a rating of 20 points in Table 6 and was given a work capacity of eight to 14 baseline with intervention. This assessment determines that the Table 7, Brain Functions, is more appropriate to assign impairment rating for the functional loss as a result of autism and zero rating for the condition EDS, consistent with supporting medical evidence and the client’s self-report. This report determines a reduced impairment rating and, hence, an increased work capacity to client due to the condition of anxiety disorder was originally rated as fully treated and diagnosed. New medical evidence 20 April 2015, does not confirm that the client has any consultation with the psychiatrist or clinical psychologist to confirm the diagnosis. Therefore, this condition is now considered not fully diagnosed and there are no functional losses reported as a result of the ADHD.

There is nothing to indicate how long the face-to-face interview went for. The Applicant gave sworn evidence indicating it was pretty quick. He was asked to do one thing and that was to do the squats, asked some questions which he had some problems with and his mother was also concerned he may have, in putting on a brave front, not have answered the questions correctly. It concerns me, with someone diagnosed with autism in 2003 and these other problems, that the JCA was not adjourned to enable the applicant’s mother to attend. She is, effectively, his carer. There is evidence that she is on a carer’s allowance, or had been on a carer’s allowance. She is now in employment and may no longer be eligible for a carer’s allowance.
It does concern me that this interview went ahead. Had she been there, it would have meant I could place a lot more weight on that report, however, on account of the applicant’s diagnosed conditions, I cannot give a great amount of weight to that report. I cannot be satisfied that any of the statements made by the applicant would necessarily be entirely accurate, and that it is clear from his own evidence that he could not understand a lot of the questions and, perhaps, that he was trying to give an answer that he thought the assessor actually wanted to hear.
Apart from giving oral evidence at the hearing, the applicant’s mother wrote a letter dated 1 September 2015, which stated:
…at the time of [the applicant’s] Job Capacity Assessment, I had been off work for 6 weeks due to medical reasons and had just returned, making further time off difficult. I asked that the time of [the applicant’s] appointment be changed to a time I could attend, but was told that was not possible. This was quite important as [the applicant] is easily confused by questions, especially if they are lengthy in nature. When [the applicant] came home after the appointment he did let me know that he was not sure what was being asked at times during the interview.
She then went on in relation to the general anxiety disorder diagnosed at age 7 by Dr Poulsen. She then indicated he was also seeing Dr Sawle in relation to anxiety and depression. She stated
[The applicant] suffers chronic joint pain and muscle pain due to fatigue and the retention of lactic acid and nerve pain due to injury sustained from subluxations and dislocations. He is in pain every day, only the degree differs. The pain, and the fear of worse pain, impacts him emotionally and psychologically. His joints are so lax that he moves with constant awareness, “holds himself” (braces himself) to try and prevent joints from subluxating. He needs regular massage from a person with experience with his condition (otherwise further damage could be done) to relieve his pain but, at times, the finances do not allow this. We do what we can.. He has severe pain days where medication is not enough and where he is restricted to rest. This could be one to three days per week and the Job Capacity Assessment mentions upper limb, lower limb function stating Blayne has difficulties when he has a dislocation but does not state now often he experiences a subluxation or dislocation. Blayne has, on average, three subluxations per week. The joints that this affects include his knees, ankles, hips, wrists, shoulders, jaw, elbows less than other joints, and, on occasion, his ribs. He also suffers chronic back pain. If he needs to cough or sneeze, he tries to physically brace his ribs in an effort to prevent dislocation. He often subluxes in his sleep. These events cause chronic pain to flare to acute pain, and depending on the joint, this mean he moves move slowly or, it is a lower limb, requires him to rest. In addition to this, Blayne experiences a major event two to three times a month on average. These are dislocations that require more than a day or so to heal, or may require a trip to the doctor, usually only if there is some question as to whether or not the joint is back in properly. Once again, these cause a flare-up in chronic pain. As you can imagine, every day Blayne assess his physical condition to the best of his ability. Each of those items listed under lower limb functionality, he could possibly do some days of the week. Other days, he may not be able. He tries to walk for fitness, as he is no longer able to play sport, but he has to evaluate this ability each day.
And then she goes on about his employment:
I do not believe that Blayne has ever been able to sustain employment. Blayne has a strong desire to be employed and I believe he demonstrated this to his first Disability Employment Services ability options when he was assigned to them early in 2014. He regularly attended the office, whether he had an appointment or not, to see what was available. They commented earlier on is eagerness. Despite this enthusiasm, Blayne has considerable issues maintaining employment, usually due to pain, unsuitable duties, high absenteeism for all the reasons listed above. Please find list of employers, start and end dates and where I put days absent.
Paul’s Warehouse. Started 19 June ‘14, ended 3 November ‘14. Blayne experienced considerable issues with modifying his duties relating to both his autism. Duties were too broad causing severe anxiety over what was expected and Ehlers-Danlos. After medication between ability options, Blayne’s GP and Paul’s Warehouse, some of his duties were modified but some could not be arranged due to the business needs of Paul’s Warehouse. Employment had to be discontinued due to the aggravation caused to Blayne’s EDS. See letter from GP written at the time.
Outback Restaurant. Started 27 November ‘14 and ended 27 May ‘15. Blayne, again, experienced high absenteeism due to Ehlers-Danlos. Modification to his duties were made but still experiencing significant difficulty. At this point, Blayne has also experienced some issues with both employer and employment service. Understanding his condition is difficult and it cannot be physically seen. He is becoming extremely anxious and agitated, causing further aggravation to his pain et cetera. He was reduced to one three hour shift per week. He is devastated. Not long before he leaves, he is informed by Heidi from Ability Options that he is no longer on their service but he does not know why.
The Green Army. Started 28 May ‘15 and ended 3 August ‘15. Due to difficulties experienced at Outback, Blayne decided to try the Green Army as a close family friend is also with the service. I was very wary but he was completely upfront about all issues and was surprised when he was accepted. I was willing to let him try. His state of mind was quite bad at this point and I was hopeful for success. I also had a long discussions with his GP. Blayne was exceptionally happy with the Green Army, but as you can see from the letter enclosed, still suffered high absenteeism. Eventually we realised that Blayne could not receive Green Army and Disability Support Pension. We originally thought he was allowed to work so many hours et cetera, like his other positions, and due to the need for him to have financial security, he had used all available six days and chose the DSP. Individually, these conditions are limiting but, taken together, they interact with each other and make Blayne’s life very difficult to navigate. He is tough but each day is a challenge and he relies heavily on not only support and care from me, but the financial security the pension affords him, not through choice but through necessity.
Blayne did not ask for any of this, and I realise that I am only his mother, but I am the one who cares for him and explains all the things in the world that he does not understand and sees the pain that he endures, most of the time with determination. I have watched him relocate joints. I know that he looks like a big strapping young man, and he is very verbal, but this does not mean he understand. I have included whatever medical information that I have and, if you require more, please let me know. Michelle Kennedy.
There is some medical evidence and, of course, the medical evidence has to be relevant as at August 2015. Quite frequently, in this Tribunal, we see people whose pensions were stopped, in say August/September 2015, bring in material that is really good for late 2016 and early 2017 but, unfortunately, does not cover the period in question, which is 2015. I must say Dr Papandrea has made an effort here to ensure that that has been rectified in terms of some of the documentation.
Dr Ring provided a report on 11 January 2016. He goes into his history. Dr Ring indicates that the applicant was involved in some workplace bullying. It goes into his history in terms of his sporting history, his family situation and made a number of recommendations. He talked a lot in relation to pain and gave some advice in relation to this and arranged for individual occupational therapy and physiotherapy appointments for the next month, and felt the applicant would benefit from a multidisciplinary education session at the clinic.
I can certainly see how the respondent, in relation to that particular report, felt that there was some ongoing issues there, certainly in relation to pain management, and came up with their conclusion that the EDS, whilst properly diagnosed, had not been fully stabilised because there was some other things to attempt. Certainly that is true in relation to the pain.
Dr Sawle, clinical psychologist, also provided a report. He began treating the applicant in December 2013. He confirmed the applicant’s earlier diagnosis of anxiety disorder. He also confirmed his diagnosis of autistic spectrum disorder and comorbid social anxiety disorder. He said his social anxiety causes him to experience anticipatory anxiety. That he is focussed on forthcoming social situations in which he has to perform or be evaluated by others. This is particularly salient to his participation in seeking and, on occasions, completing work-related activities where evaluation and performance is mandatory. His condition precipitates avoidance and panic attacks making it difficult for him to pursue successful opportunities to seek and maintain employment. His condition can be understood as being fully treated and stabilised.
Ms Christine Gardner also did a report indicating that the applicant had reported he was unable to sit or stand for extended periods of time. She indicated he was able to walk unaided at a slow moderate pace for three minutes before stopping, on a treadmill, due to pain and fatigue. He was able to pick up objects up to two kilograms in weight from the floor. He had difficulty picking up and carrying objects above shoulder level. He was unable to reach up over his head for more than 30 seconds, using either arm, and he was limited by pain and instability. He was unable to stand for greater than two minutes at a time. He reported that this was limited with pain. He was observed to be sitting for five minutes before standing and moving. He was observed to have no issues using his iPhone, a pen with modified grip, handling money and he appeared to have a full range of movement in his cervical lumbar spine. She felt he had reduced functions in his upper limb, lower limb and spinal function but, without previous exposure to his history, clinical and radiological tests, there are limitations to a question of whether this is his full capacity.
Dr Papandrea provided three reports. Firstly, a note of 21 March 2016; a report dated 19 July 2016; and a report dated 13 December 2016. His 21 March 2016 report stated:
Mr Blayne Bevington, now 23 years of age, has a complex mix of psychological, intellectual and physical disabilities that has culminated in a number of unsuccessful attempts at achieving sustainable employment. Since his last Job Capacity Assessment report, carried out by the department at Centrelink in June 2015, Blayne has been further assessed at Nepean Chronic Pain Clinic by pain management specialist, Dr Liam Ring, as well as a recent review by his treating psychologist, Dr Gary Sawle. These reports have been attached with this letter as supporting medical documents for Blayne. He is also awaiting assessments by his physiotherapist to determine his physical capacity and limitations, as well as an assessment of the Genetic Disorders Clinic at Nepean Hospital, the appointment of which is not till later in the year.
In summary, however, his chronic problems remain. He has a diagnosis of autistic spectrum disorder with comorbid social anxiety disorder. The effects of his condition is outlined in Dr Sawle’s report and is considered to be longstanding, permanent, fully treated and fully stabilised. His autism is also confounded with Mr Bevington’s attention deficit hyperactivity disorder, which was diagnosed in childhood. He has learning difficulties, particularly with language, concentration is limited and has difficulties with comprehending instructions and set tasks unless they are broken down and repeated for him. He also suffers from Ehlers-Danlos Syndrome, EDS, which has manifested with multiple recurrent episodes of joint subluxations and overt dislocations from relatively trivial stressors. It is also manifested by way of chronic joint pain. The EDS also exacerbates Blayne’s anxiety disorder due to anticipation and fear of imminent joint dislocations and associated pain that follows.
Mr Bevington also suffers from lumbar back and generalised spinal pain, which is easily aggravated with prolonged standing or bending over and which limits his walking distance considerably. Given the multitude of all these conditions combined, and the fact that they are all chronic, permanent and, in all probability, not likely to improve to the extent that will allow him to be employable on a sustained basis...
On 19 July 2016, Dr Papandrea wrote a further report:
This is a report to further clarify Mr Bevington’s EDS in relation to my previous report dated 21 March 2016 and will incorporate references to impairment tables for the use and determination of a Disability Support Pension to this patient. Just for the record, I have been Blayne Bevington’s treating general practitioner for the past nine years. His diagnosis of EDS was confirmed by rheumatologist, Dr Graydon Howe in 2013. It is a condition that has no specific treatment or cure. In Blayne’s case, it is manifested by way of multiple joint chronic pain, dislocations and subluxation and chronic spinal back pain, both prior to 2013 and since. His condition has, however, been managed by way of physiotherapy to improve general physical conditioning, the pain clinic to assist with chronic pain management and psychological professional therapy to assist Blayne cope with his chronic pain and anxiety linked to his EDS. This management does not affect the EDS per se, only his quality of life.
In reference to the principles set out in subsections (2) and (3) of the Impairment Tables, I will specify below Blayne’s impairment as defined in the various tables.
Table 1.
There is a mild functional impact in activities requiring physical exertion or stamina; 5 points. Blayne experiences fatigue easily and back pain with prolonged walking, standing and most tasks of moderate manual labour.
Table 2.
There is a moderate functional impact on activities on using hands or arms; 10 points. Reaching out with an arm has caused dislocation of the shoulder in the past and risk for same is ongoing. Blayne cannot hold a pen or pencil properly due to hyperflexible finger joints.
Table 3.
There is a mild functional impact on activities using lower limbs; 5 points. There is difficulty walking due to pain in knees, ankles and back and also risk of lower limb joint dislocation. He is unable to stand for more than 10 minutes due to lower back pain.
Table 4.
There is a mild functioning impact on activities involving spinal function; 5 points. There is risk of shoulder dislocation with activities over head height. There is a difficulty bending to knee level and straightening up again due to back pain.
In summary, Blayne’s EDS is fully diagnosed, fully treated and fully stabilised. The patient is undertaking reasonable treatment for his condition and then any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years. It is also important to note that this definition, and state of Mr Bevington’s EDS, was applicable prior to August 2015.
On 13 December 2016, he provided a further report:
This is a report, in addition to the one completed for Blayne Bevington, dated 19 July 2016, which was based on his functional impairments in relation to his EDS. This report will use Brain Function, Impairment Table 7, for the purpose of classifying Blayne’s functional impairment based on an autistic spectrum disorder where an IQ is not rated as low.
Table 7.
There is moderate functional impact resulting from a neurological and cognitive condition. Blayne has moderate difficulties in the areas of memory, attention and concentration, problem solving, planning, comprehension and self-awareness.
Attention and contention
There is a well-documented history of Blayne having learning difficulties at school. For example, inability to stay on task, constant fidgeting, fussing and generally disruptive. Aspect, the autism behavioural service, was called out to the school to offer assistance with his teaching and by Year 7 he was in the Support Unit at Glenmore Park High. This has not changed much as an adult with short-term attention span, fidgeting and distracting behaviours. My own observations in the consulting room back up these claims with Blayne rocking back and forth on his chair, picking up my letter opener and twirling it around, looking around the room and making distracting comments.
Planning
Blayne is unable to plan or organise tasks, particularly new things or things with any slight complexity. He can only follow one instruction at a time and will be overwhelmed with anxiety at the very thought of having to plan things for himself and has manifested in the past by biting himself.
Memory
Blayne has two main chores at home, i.e. put out the bins and do the dishes. These have been his chores for the past eight to nine years. On average, he needs reminding four out of seven days a week.
Comprehension
Blayne requires one instruction at a time to be given to him, or else he gets confused. He has been like this his whole life. An example would be school assignments. These would have to be broken down to the most basic components and given to him a piece at a time. Blayne was also a fairly strong swimmer but by 11 or 12 years of age, he found it difficult to keep up in senior squads as drills became more complex.
Self-awareness
Blayne is not aware fully of his cognitive deficiencies and his type of interaction with other people may often be inappropriate for the situation and cause either misunderstanding or misjudgement of his personality. An example was when he was referred to a plastic surgeon regarding his feet. Upon first meeting the surgeon Blayne looked him straight in the eye and quite frankly stated, “I do not like what you do”. The surgeon was taken aback by what Blayne said and his mother had to explain to him that Blayne saw plastic surgeons only as cosmetic surgeons, e.g. breast enlargements, nose jobs et cetera, but he did not understand that this was an inappropriate thing to say at the time. In summary, Blayne undoubtedly fits in the category of moderate functioning impairment as defined in Table 7, Brain Functioning.
Standing in the shoes of the decision maker, it is appropriate to consider the Impairment Tables, as I see it, accepting, as I do, that the evidence I prefer is the evidence of Dr Papandrea, who has been the applicant’s GP for nine years. He regularly sees him about once a month, but he specifically said 14 occasions in 2015, and he is well qualified to comment on all of these issues. I would agree with the Secretary in relation to the applicant’s ADHD being generally well managed, the spondylosis not being fully treated or stabilised at the relevant date and coeliac disease having minimal functional impairment. However, I accept what Dr Papandrea has said in terms of his assessments and I will actually go through those tables shortly.

I indicated, whilst often the JCAs are very helpful, on this occasion I think there was a significant flaw in not having the applicant’s mother there, nor was she spoken to by the Job Capacity assessor and for the reasons already given, I place little weight on it.
So, where Dr Papandrea has made some observations, a medical practitioner who has been the treating doctor and the GP for this young man for a number of years, that is the evidence that I would prefer in this instance. I would say, too, in relation to these matters, looking at the various tables, and, again, I would probably defer to Dr Papandrea because he has seen this young man on a monthly basis, it seems, for the last nine years, in relation to Table 1, Physical Exertion, it would appear that he does have some difficulties certainly mobilising to local facilities without stopping for a rest and he certainly cannot do heavy manual labour. He would certainly, in my view, get 5 points for Table number 1.
For Upper limb function, Table 2, Dr Papandrea has indicated 10 points there. He would certainly have difficulty, it seems, holding or using a pen or pencil. He certainly has difficulty doing up buttons or tying shoelaces. He can unscrew a lid. He may well have difficulty picking up a litre of liquid. A light, but bulky, object might well be difficult as well. Possibly 10 points there but he certainly has difficulties picking up heavy objects, handling small objects like coins, cannot do up buttons, reaching up and out to pick up objects. He would certainly get 5 points there, and possibly 10. I see the doctor has given him 10.
In terms of the Lower limb function, Table 3, he certainly has some difficulties walking to local facilities, shops or the bus stop, and he is unable to stand for more than 10 minutes. So, certainly he would get 5 points, in my view. Spinal function, he certainly has some difficulty with activities over head height. Not so much looking upwards but it seems his spinal functions might well flow into Table 3 in terms of using secateurs above head height. Bending to knee level or straightening up without difficulty is certainly a problem and that is probably more spinal. He appears to be able to turn his trunk and move his head.
In terms of the mental health function and, again, this is somewhat similar to Table 7 and this deals with the autism specifically, but also perhaps to the ADHD and the anxiety, and I think I probably should deal with Table 7 because that is probably the most applicable. In terms of that, and I am looking at the criteria for 20 points, where there is a severe functional impact. The applicant needs frequent, at least once a day, assistance and supervision and has severe difficulties in at least one of the following:
·Memory - he is unable to remember routines, regular tasks and instructions. That may well be so and that was certainly something that occurred at school and his mother certainly has to remind him, perhaps not daily, but certainly a number of times a week to do his two regular tasks.
·Attention and concentration - he is unable to concentrate on any task, even the tasks that interest him, for more than 10 minutes. As mentioned at hearing, the cartoons interest him, but in a 26 to 30 minute cartoon show he switches off and goes off and wanders in to see his mother on about four occasions during that time frame. I should say, at this stage, I have no reason to disbelieve his mother or, indeed, the applicant.
·Problem solving - A person is unable to solve routine day to day problems such as what to do if a household appliance breaks down and he needs regular assistance and advice. I accept this in this case.
·Planning - the person is unable to plan and organise daily routines, such as going to the movies or a supermarket. I accept this is true for the applicant. He may be able to get to the shops himself but there is not a huge amount of evidence in relation to that, so perhaps that is one where there is a question mark.
·Decision making – the applicant is unable to prioritise and make complex decisions and often displays poor judgment resulting in negative outcomes for self or others. It is very difficult for him to make decisions because of his autism.
·Comprehension – the applicant is unable to understand basic instructions and he needs regular prompts to complete tasks. He had an aide at school and his mother has to remind him to do the basic chores. Also, when he was doing the Green Army course, his friend had to dig him in the ribs to keep his attention and he, obviously, would need instructions to be repeated to him and certainly the evidence is the need to be prompted.
·Visual-spatial function – there is evidence that the applicant has very good visuo-spatial function.
·Behavioural regulation – the applicant is often unable to control his behaviour, even in a routine day to day situation. Whilst there is no evidence of the applicant being abusive verbally or otherwise. Indeed he comes across as well mannered, but in terms of saying inappropriate things in day to day situations, well, we have the instance of the plastic surgeon.
·Self-awareness - the person lacks awareness of his own limitations resulting in significant difficulties in social interactions or problems arising in day to day activities. The applicant simply does not feel comfortable unless he is with someone he knows. He has limited social contact. He has a friend but he certainly has significant difficulties in social interactions and, even though he liked the girl next to him on the Green Army course, if he met her in the street he just would not know what to say, and that is just a day-to-day activity.
So, I would think there is a very strong case for him to be awarded 20 points and, if I was doing that, I would take note of what the doctor has said but I would be inclined to award him 20 points for Table 7. If I am wrong there, 10 points, moderate functional impact, which I think is what the doctor has said. He needs occasionally, at least once a day assistance, with day-to-day activities.
Moderate difficulties in at least one of the following. He often forgets to complete regular tasks such as putting out the bin. Absolutely, that is correct. Attention and concentration. He has difficulty concentrating on complex task for more than 30 minutes. Certainly, he has trouble doing it for more than 10. The person has difficulty solving some day-to-day problems, or problems not previously encountered, and may need assistance from time to time. Problem solving there. Planning - he has difficulty planning and organising new or special activities, for example, organising a large birthday party. He clearly could not do that. Decision making - he has some difficulty in prioritising decision making and displays poor judgment at times. Comprehension - he has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations. Visual spatial function - I understand he is very good at that. Behaviour regulation - occasionally, less than once a week, has difficulty controlling behaviour, such as showing frustration or anger or losing temper. There is not much evidence of that and he displays no physical aggression.. There is evidence, I think, he is frustrated. Whether it is once a week is not clear. Self-awareness - he lacks awareness of his own limitations resulting in mild difficulties and social interaction or problems arising in day-to-day activities. There is evidence of that.
Clearly, he would qualify for 10 points. In my view, I actually think he would qualify for 20 points on the way I see it and I say that as at August 2015. It is very similar, in some respects, because autism is certainly a brain function but also a lot of people with autism can be described too as having a mental health function. In terms of that, I note self-care and independent living, and some of the anxiety and ADHD also come up. Self-care and independent living, I note he, effectively, does live dependently. He lives with his mother and he needs regular support to live independently. He would need visits or assistance at least twice weekly. I think he probably needs daily support from the sound of it. His mother is there. She chops up his food. He has significant problems concentrating. I think it is far safer he is living at home and there would be some difficulties with independent living and he certainly would need regular support, in my view not just at least twice a week, but on a daily basis if he did. He only travels alone in familiar areas, such as local shops - that is true here.
Personal relationships - He has a very limited social contact and involvement, unless they are organised for him and he often has difficulty interacting with other people. He may need assistance or support from a companion to engage in social interactions. That is certainly the case and the evidence is clear on that. Concentration and task completion - he has difficulty concentrating on any task or conversation for more than 10 minutes.
Behaviour planning and decision making - his behaviour, thoughts and conversation are significantly and frequently disturbed. I cannot be certain about the frequency. He certainly can’t concentrate. That is probably less of a problem than some of the others and he is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness, namely he has a history of time off and, certainly in relation to this autism and his ADHD and perhaps anxiety, that would be so.
So, it would seem, if those factors could be described as a Table 5, rather than a Table 7, in my view, he would get 20 points there. Whether he can have it for both would be another thing but, clearly taken in whole and accepting, as I do, Dr Papandrea’s evidence, it seems to me that this young man clearly, in my view, would qualify at least for 20 points on Table 5 and/or Table 7.
I make the above assessments, just like Dr Papandrea has, as at 13 August 2015.
Sadly, sometimes people can’t work for various reasons. The applicant has certainly tried helped by his mother, to get into work. I think the final word in terms of the evidence and submissions in this matter from the applicant himself were as follows:
I tried and failed. I cannot have a continuing ability to work. I would love to be able to do so.
I hope one day in the future, with further advances in modern medicine and maybe new different types of work becoming available, the applicant will have the opportunity to do so, but that day has not yet come nor is it likely to for some years yet.

CONCLUSION

I think that the evidence does support that he was doing all he could to actually get out and try to do something. Unfortunately, he has not succeeded.
The effect of my decision will be that the decision of the Administrative Appeals Tribunal, Social Services and Child Support Division which was made on 11 April 2016, is set aside, and in substitution, I find that the applicant was qualified to receive the Disability Support Pension as at 13 August 2015.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

..........................[sgd]..............................................
Associate
Dated: 24 April 2017

Date(s) of hearing: 3 & 20 March 2017

Applicant’s representative: Ms Kennedy

Solicitors for the Respondent: Department of Human Services

[2017] AATA 684

20 March 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date(s) of hearing:	3 & 20 March 2017
Applicant’s representative:	Ms Kennedy
Solicitors for the Respondent:	Department of Human Services