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

[2017] AATA 598

Boscolo and Secretary, Department of Social Services (Social services second review) [2017] AATA 598 (3 May 2017)

Division:General Division

File Number(s):      2015/1277

Re:Mario Boscolo

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:3 May 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member J F Toohey

CATCHWORDS

Social Security – disability support pension – psychological impairment – post traumatic stress disorder – schizophrenia/psychosis – substance abuse – whether applicant’s impairments fully diagnosed during claim period – whether impairments fully treated and stabilised during claim period – Tribunal not satisfied any impairment fully treated and stabilised during claim period – decision under review affirmed

Practice and Procedure – application for adjournment – whether hearing should be adjourned – Tribunal satisfied applicant had reasonable opportunity to obtain legal advice or representation and to prepare for hearing – adjournment refused

LEGISLATION

Social Security Act 1991 s 94

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

Tribunals Amalgamation Act 2015

Victims Support and Rehabilitation Act 1996

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member J F Toohey

3 May 2017

BACKGROUND

1. On 8 February 2013, Mr Mario Boscolo applied for a disability support pension (DSP).  Centrelink decided he did not qualify for DSP and, on 3 April 2014, the Social Security Appeals Tribunal (SSAT) affirmed that decision.  On 1 July 2015, the SSAT became the Social Services and Child Support Division of the amalgamated Administrative Appeals Tribunal (AAT).  In accordance with the provisions of the Tribunals Amalgamation Act 2015, Mr Boscolo’s current application is taken to be one for “AAT second review”.

2. Mr Boscolo’s application for review has a long history.  After a number of conferences and directions hearings, it was listed for hearing on 23 March 2017.  The first question that arose was whether the hearing should proceed on that date.  To explain my reasons for deciding that the hearing should proceed, despite Mr Boscolo’s objection, it is necessary to set out the history of his application in some detail.

3. Mr Boscolo has been incarcerated since May 2016 following his conviction for a number of offences.  He declined to give the Tribunal any details of his offences and they have no direct bearing on his present application.  I understand that, with the help of his mother, Sylvia Boscolo, whom he nominated as his representative in the Tribunal proceedings, he has been trying to obtain legal advice and representation in connection with an appeal against his conviction on the ground that he was unrepresented at trial and unfairly convicted.

4. Arrangements were made for Mr Boscolo to participate in the Tribunal hearing on 23 March 2017 by video link to the prison.  At the commencement of the hearing, Mr Boscolo and his mother requested an adjournment in order for him to obtain legal representation.  While his request was being discussed, Mr Boscolo left the room in the prison, saying he would no longer participate in the hearing.  A prison officer confirmed to the Tribunal that he had left the room and had said he would not participate in the hearing.  The video link was left open in case he changed his mind.  After 15 minutes, the officer advised that Mr Boscolo had confirmed he would not participate in the hearing.

   SHOULD THE HEARING OF MR BOSCOLO’S APPLICATION PROCEED?

5. Mr Boscolo and his mother maintained it would be unfair for the hearing to proceed on 23 March 2017 because he had been unable to obtain legal representation.  For the following reasons, I am satisfied that Mr Boscolo has had more than fair opportunity to obtain legal advice and representation, to provide any further information he wishes to submit in support of his application for review, and to participate in the hearing.

   Application for review lodged

6. Mr Boscolo lodged his application for review on 8 May 2014.  Five preliminary conferences were listed between 15 July 2014 and 2 October 2015.  One was vacated when the Tribunal was not available; the others were vacated at Ms Boscolo’s request because she or Mr Boscolo was unwell.  No medical certificate was provided on any occasion but the Tribunal agreed to relist the conference each time.     

7. On 17 September 2014, a listing notice was sent to Ms Boscolo for the conference on 2 October 2014.  The notice advised that failure to attend could result in Mr Boscolo’s application for review being dismissed.  On 2 October 2014, Ms Boscolo telephoned the Tribunal to say Mr Boscolo could not attend the conference as he had an appointment with his barrister.  She declined to participate in the conference on his behalf.

   Application dismissed

8. On 8 October 2014, the Tribunal, differently constituted, dismissed Mr Boscolo’s application under s 42A(2) of the Administrative Appeals Tribunal Act 1975.

   Application reinstated

9. On 18 March 2015, Mr Boscolo applied for reinstatement of his application for review, and an extension of time in which to make his application.  His applications were granted.

   Preliminary conferences

10. Following the reinstatement of Mr Boscolo’s application, preliminary conferences were listed on 23 June 2015 and 3 August 2015.  Ms Boscolo asked to have the first vacated as Mr Boscolo would be “in court all day”.  The listing was vacated and she was asked to provide confirmation of Mr Boscolo’s court appearance.  None was provided.  

11. On 17 August 2015, 17 September 2015 and 29 September 2015, a conference registrar made directions that Mr Boscolo was to advise the Tribunal if he wished to proceed with his application, failing which his application might be dismissed.

12. On 7 October 2015, Ms Boscolo telephoned the Tribunal to say she was awaiting further legal advice and Mr Boscolo would not be available for a hearing in October or November, as he had “court cases”.

    Application listed for hearing

13. Mr Boscolo’s application was first listed for hearing on 12 February 2016.  On 16 October 2015, the Tribunal directed him to provide any additional information on which he proposed to rely.  No further information was provided.  On the day before the hearing, a Tribunal officer contacted Ms Boscolo to check that all was ready for the hearing.  She advised she had forgotten about it and was unwell.  The hearing was vacated.

14. A second hearing, listed for 30 June 2016, was vacated at Ms Boscolo’s request because Mr Boscolo was incarcerated following his conviction in May 2016 and an appeal was pending. 

15. A third hearing was listed for 24 January 2017.  At a telephone directions hearing on 13 December 2017, Ms Boscolo advised that she intended filing further medical evidence before the hearing.  Mr Boscolo attended the hearing by telephone and Ms Boscolo was present in person.  The hearing was vacated at Mr Boscolo’s request so that he could obtain legal advice and representation.  The Tribunal made directions that, if Mr Boscolo sought a further adjournment of the hearing, he must make his request in writing seven days before the hearing and, if seeking an adjournment for a medical reason, he must provide a medical certificate.  Arrangements were made for a duty solicitor from the Legal Aid Commission to telephone Ms Boscolo to discuss his application for review.

    Request to adjourn hearing on 23 March 2017

16. Mr Boscolo’s application was next listed for hearing on 23 March 2017.  On 22 March 2017, Ms Boscolo telephoned the Tribunal to request an adjournment on the ground that she was unwell and Mr Boscolo had not had the opportunity to obtain legal advice and representation.  She was advised she should provide a medical certificate if she was unwell but that the hearing would proceed and the Tribunal would consider any request for an adjournment at its commencement.

17. On 23 March 2017, Ms Boscolo produced a medical certificate stating that she had been “unable to prepare and attend a tribunal hearing since the 6th of March 2017 till the 31st of March 2017 inclusive” because of an infection.  Ms Boscolo maintained that the telephone appointment with the duty solicitor lasted less than a minute and was “useless”, that the solicitor did not have the file with her and could not provide her with advice.

18. As I understand it, the “T-documents”, being the documents given to the Tribunal and an applicant by the Secretary in accordance with s 37 of the Administrative Appeals Tribunal Act 1975, are provided to the duty solicitor before an appointment. If that did not occur in this case, and if the solicitor was unable to assist Ms Boscolo as she claims, that is most regrettable. However, the Tribunal file shows that this was the sixth occasion on which an appointment was arranged with the duty solicitor between 1 July 2014 and 28 February 2017. On each occasion before 28 February 2017, Ms Boscolo either failed to keep the appointment or telephoned to say she was too sick to attend.

19. At the hearing on 23 March 2017, Ms Boscolo maintained she had been in contact with a solicitor who had advised he would represent Mr Boscolo, but he was not available that day.  Asked if she had an appointment with the solicitor, Ms Boscolo said she would arrange an appointment immediately following the hearing.  The Tribunal has not had any communication from a solicitor about representing Mr Boscolo.

20. Ms Boscolo maintained it would be unfair for the hearing to proceed.  She maintained that Mr Boscolo had not had access to his file.  Asked why, as his representative, she had not provided him with copies of the T-documents and the respondent’s statement of facts issues and contentions and attachments, Ms Boscolo maintained she had not had time and she had been focusing on his other matters.  It is relevant that she has had copies of the T-documents since June 2016, and the respondent’s statement of facts, issues and contentions since December 2015, and a revised version since December 2016.

21. Mr Boscolo and Ms Boscolo were asked whether they had any further medical evidence in support of his application.  Ms Boscolo maintained that she had, but that she had been focusing on his Supreme Court matter since December 2016.  It was pointed out that a direction was made in October 2015 for any further evidence to be given to the Tribunal but that none had been provided.  Mr Boscolo and Ms Boscolo maintained they had been focusing on his Supreme Court proceedings.

22. At about this point in the proceedings, Mr Boscolo left the room and did not return.

23. Asked what further medical information she had in support of his application for review, Ms Boscolo maintained she had a report prepared by a psychologist in connection with Mr Boscolo’s criminal proceedings, but it was at home.  Asked why she could not have posted it to the Tribunal, she said she had a lot to deal with.  Asked how it would assist with this application, she said it would confirm Mr Boscolo’s “unwellness”.  She was unable to say that it would throw any light on the period that is relevant to his application for review of the decision concerning DSP.

24. At this point, Ms Boscolo said she declined to be further involved in the proceedings and she would not speak on Mr Boscolo’s behalf.  She maintained that the directions made on 16 December 2016 were draconian and biased.  She maintained that I was biased and should withdraw from the proceedings. 

    Request for adjournment refused

25. In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is accessible, and fair, just, economical, informal and quick, and it must conduct a proceeding with as little formality and technicality, and with as much expedition, as statutory requirements and a proper consideration of the matters permit: ss 2A and 33(1) of the Administrative Appeals Tribunal Act 1975. Nothing in these provisions allows the Tribunal to depart from its overriding obligation to afford parties procedural fairness.

26. I am not persuaded that failing to grant the adjournment would mean that Mr Boscolo is denied a fair hearing and would result in a denial of procedural fairness to him.

27. I do not accept that the directions made on 16 December 2016 (or any other direction made in these proceedings) was “draconian”.  Neither Mr nor Ms Boscolo raised any objection to them at the time.  They were made in light of the lengthy history of non-appearances and requests to vacate listings, and were made to avoid any misunderstanding as to what would be required should any further request for adjournment be made.

28. I do not accept that I am biased in my approach to Mr Boscolo’s request.  In my view, that submission is based simply on my decision not to grant the adjournment.

29. I am satisfied that Mr Boscolo has had a fair and reasonable opportunity to seek legal advice and representation, and to provide any further information he has in support of his application.  None has been provided in almost three years since he lodged his application for review.  It is relevant that the claim period under consideration is from February 2013 to May 2013 and several medical reports, including from his treating psychiatrist, have been provided through the Secretary which post-date that period.  It is difficult to conceive how further medical reports at this time, especially from a doctor who did not see Mr Boscolo around the time of his claim, could assist in determining whether he qualified for DSP at that time.

30. For these reasons, the request to adjourn the hearing is refused.

    QUALIFICATION FOR DSP

31. To qualify for DSP, a person must satisfy the criteria in s 94 of the Social Security Act 1991 (the Act). In summary, a person must have:

    (i)    an impairment rating of 20 or more points according to the Impairment Tables in the Act; and

    (ii)   a continuing inability to work.

    THE CLAIM PERIOD

32. Mr Boscolo had to satisfy the criteria in s 94 on 8 February 2013 when he applied for DSP, or within the following 13 weeks, that is by 10 May 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the claim period.

33. Mr Boscolo’s qualification for DSP must be assessed solely by reference to the claim period: Gallacher v Secretary, Department of Social Services [2015] FCA 1123. Any changes in his conditions after the claim period is only relevant insofar as they may cast light on the position during the claim period: Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252.

    RULES FOR ASSIGNING IMPAIRMENT RATINGS 

34. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables). 

35. The Impairment Tables include instructions and rules for assessing an impairment and assigning it a rating.  Depending on how it affects a person’s ability to function, an impairment may be rated between nil and 30 points.

36. An impairment rating can only be given to a condition that is permanent: paragraph 6(3).  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and more likely than not will persist for more than two years: paragraph 6(4). 

37. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the near future; and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years: paragraph 6(5) and (6).

38. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: paragraph 6(6).

39. In considering whether a condition was fully treated and stabilised during the claim period, the Tribunal must consider the treatment that had taken place, and was intended to take place, and its likely effect, during the claim period.  Subsequent treatment, and whether or not it was effective, is not directly relevant: Fanning and Secretary, Department of Social Services [2014] AATA 447.

40. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, the Tribunal said:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the tribunal must look at the situation as it was, and the evidence that was available, [during the claim period]. Any subsequent evolution of the particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind toward the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application.  It is not open in law for this Tribunal to use any evidence of such progression to directly award DSP because of those changed circumstances.

41. These comments are especially apt in Mr Boscolo’s case because of the time that has passed since he lodged his claim for DSP.

    MR BOSCOLO’S PSYCHOLOGICAL CONDITIONS

42. Mr Boscolo’s application for DSP was accompanied by a report from his general practitioner, Dr Daniel Chalmers, dated 31 January 2013.  It referred to a single condition, post-traumatic stress disorder (PTSD), which had its onset in April 2011. 

43. The history of Mr Boscolo’s psychological condition is complex.  He has been diagnosed with PTSD and, later, with schizophrenia and alcohol abuse.  The first question for the Tribunal is whether any of his conditions was fully diagnosed, fully treated and fully stabilised during the claim period.  This task is complicated because the medical reports indicate that his conditions are related in that his “schizophrenia/psychosis” (as it has been described) appears to have developed later, and as a result of, his PTSD, but there is no clear delineation between the two, especially as to the timing of onset.

44. I will deal with Mr Boscolo’s conditions in turn.

    WAS MR BOSCOLO’S PTSD FULLY DIAGNOSED DURING THE CLAIM PERIOD?

    Dr Chalmers’ report 

45. Dr Chalmers described the history of Mr Boscolo’s condition as “anxiety started after being shot in March 2011” and his symptoms as “anxiety, nightmares, flashbacks about shooting”.  He described Mr Boscolo’s past treatment as “counselling”, his current treatment as “awaiting psychiatric review” and future treatment as “psychiatric assessment”.  He thought its impact on Mr Boscolo’s ability to function would persist for more than 24 months and expected his condition would “significantly improve” within the next two years.

1. In a medical certificate dated 5 February 2013, Dr Chalmers described Mr Boscolo’s PTSD as “temporary” and “likely to show considerable improvement within 2 years”.  Dr Chalmers provided an identical certificate on 11 April 2013.

   Mr Merritt’s report

2. On 14 February 2012, Mr Tony Merritt, clinical psychologist, provided a report in connection with a claim by Mr Boscolo for compensation under the Victims Support and Rehabilitation Act 1996 for a psychological or psychiatric injury sustained in March 2011 when he was shot during a home invasion.

3. Mr Merritt reported that, at the time of its assessment, Mr Boscolo was experiencing symptoms of intrusive thoughts, insomnia, flashbacks, nightmares, hypervigilance, hyper arousal, fears for his family, paranoia, caffeine misuse, marijuana misuse, agitation, restlessness, sweating and trembling.  He had seen a psychologist for around 10 sessions, but had apparently “made little in the way of progress with his psychological functioning”.

4. Mr Merritt diagnosed Mr Boscolo as suffering from extremely severe depression, anxiety and stress and found he met the diagnostic criteria for chronic PTSD.  He thought Mr Boscolo’s prognosis “would most likely be guarded to poor”.

   Consideration

5. The Impairment Tables require that a mental health condition be diagnosed by an appropriately qualified medical practitioner, either a psychiatrist or a clinical psychologist: Introduction to Table 5.  Mr Merritt is a qualified clinical psychologist.  The Secretary accepts, and I am satisfied, that Mr Boscolo’s PTSD was fully diagnosed before the claim period.

   WAS MR BOSCOLO’S PTSD FULLY TREATED AND STABILISED DURING THE CLAIM PERIOD?

6. Mr Merritt’s report indicates that, in February 2012, Mr Boscolo’s PTSD was chronic and his prognosis poor.  That information could suggest that his condition was fully treated and stabilised 12 months later, during the claim period.  However, at the time of his report, Mr Merritt could only say that Mr Boscolo had undergone 10 sessions of counselling and that his prognosis looked “guarded to poor”.  He reported that he saw Mr Boscolo four times between December 2011 and January 2012.  There is no further information about the period between his report and the claim period.

7. According to Dr Chalmers’ report in January 2013, Mr Boscolo was still awaiting psychiatric review and further psychiatric assessment was planned.  Although he thought Mr Boscolo’s condition would persist for more than two years, Dr Chalmers expected significant improvement during that time.  He expressed a similar opinion in his certificate on 11 April 2013.  In June 2013 when he prepared the mental health plan, Dr Chalmers thought there were prospects of Mr Boscolo’s symptoms reducing with intervention.

8. On 27 June 2013, Dr Chalmers prepared a GP Mental Health Plan for Mr Boscolo.  He noted symptoms of PTSD and depression.  In a medical certificate dated 27 June 2013, Dr Chalmers stated that Mr Boscolo had severe PTSD due to him being “allegedly assaulted by police on 25/6/2013” and he would be unfit to attend for bail reporting for two weeks.

9. On 11 December 2013, Mr Boscolo starting seeing Ms Wendy Corliss, a mental health nurse, on a referral from Dr Chalmers.  In a letter dated 10 March 2015 to the Tribunal, Ms Corliss reported that she had been providing regular treatment to Mr Boscolo for PTSD since December 2013.  She thought he was still very unwell and not in a position to find work. 

10. In a letter dated 2 April 2014 to the SSAT, Dr Chalmers wrote that Mr Boscolo had suffered PTSD following the home invasion and, over the previous year, he had become more paranoid; he had started counselling with a mental health nurse and had been started on two different medications.  Dr Chalmers noted that Dr Allnutt had agreed Mr Boscolo had a psychotic illness and was awaiting further psychiatric review by a psychiatrist, Dr Anthony Henderson. 

11. In my view, it cannot be said that Mr Boscolo had undergone all reasonable treatment during the claim period when he had undergone limited treatment by that time and when he was awaiting referral to a psychiatrist.

12. Dr Chalmers thought Mr Boscolo’s symptoms of PTSD and psychotic illness had been present since 2011 and had not improved.  Evidently, Dr Chalmers no longer held to the more optimistic assessment he had during the claim period.  However, he did not revise his opinion until well after the claim period.  It does not follow, because an expectation of improvement is not in fact borne out, that it was fully treated and stabilised during the relevant period. 

13. I am not satisfied on the information before me that Mr Boscolo’s PTSD was fully treated and stabilised during the claim period.  It follows that it cannot be given an impairment rating.

    WAS MR BOSCOLO’S SCHIZOPHRENIA/PSYCHOSIS FULLY DIAGNOSED DURING THE CLAIM PERIOD?

    Dr Allnutt’s report

14. Dr Stephen Allnutt, psychiatrist, provided a report dated 3 March 2014 to Mr Boscolo’s then solicitors in connection with his alleged offending in January 2012.  He noted that Mr Boscolo first saw a mental health professional when he had 40 hours of counselling with the psychologist between March and June 2011 following the home invasion.

15. Dr Allnutt thought Mr Boscolo manifested symptoms consistent with a chronic psychotic disorder.  He said “differential diagnosis would include delusional disorder and paranoid schizophrenia, as well as a drug-induced psychosis with auditory hallucinations and delusions of persecution”.  He noted that Mr Boscolo described developing symptoms consistent with PTSD following the home invasion in March 2011.  He thought the combination of increased substance abuse and the background of PTSD triggered the onset of a delusion belief system, although he did not put any particular time on when that occurred.

16. Dr Allnutt thought Mr Boscolo was unfit to stand trial at that time but, with treatment, would likely be fit within 12 months.  He reported that he had spoken with Dr Chalmers and advised referral to a psychiatrist as soon as possible.

    Dr Henderson’s report

17. On 2 December 2014, Dr Henderson provided a forensic psychiatric report to Mr Boscolo’s then solicitors in connection with a number of charges he was facing including breaches of apprehended domestic violence orders, common assault, and assault police and resist arrest.

18. Dr Henderson reported that he had been Mr Boscolo’s treating psychiatrist since 1 May 2014 following a referral from Dr Chalmers for depression and PTSD.  He took a detailed history from Mr Boscolo in what he described as “a disorganised and thought disordered manner”.  He noted that Mr Boscolo had a “very limited psychiatric treatment history” and he had not previously taken any form of psychiatric medication (contrary to Dr Allnutt’s report on 3 March 2014 that Mr Boscolo was taking antidepressants but could not recall their name).

19. Dr Henderson’s diagnosis was “(a) Schizophrenia – Paranoid Type, and (b) Substance Use Disorder – Alcohol Type”.  His diagnosis of schizophrenia was made on the basis of Mr Boscolo’s beliefs that he was under constant monitoring, consistent with persecutory delusions.  Dr Henderson reported his psychotic experiences “appear to have developed 3 years ago following a ‘bungled’ home invasion where he was shot” and his symptoms had been “intensified” and “unremitting” since their onset.

20. Dr Henderson said Mr Boscolo had a “recent history” of Substance Use Disorder when he had resorted to binge drinking in an attempt to drown out his distressing psychotic experiences.   However, since commencing antipsychotic medication, he had reduced his alcohol intake “to an appropriate level”. He reported that Mr Boscolo accepted ongoing psychiatric treatment of his illness, and he would accept psycho education and rehabilitation measures aimed at reinstating his premorbid level of functioning”.

    Consideration

21. The Secretary contends that there is no evidence that, during the claim period, Mr Boscolo was experiencing symptoms of schizophrenia or psychosis.  The Secretary contends that the diagnosis of schizophrenia was not made until nearly two years after the claim period.

22. I accept that submission.  In April 2014, Dr Chalmers thought Mr Boscolo had deteriorated and become paranoid over the past year – which could include the claim period – but no diagnosis was made by an appropriately qualified professional (for the purposes of the Impairment Tables) until March 2014 when Dr Allnutt diagnosed a chronic psychiatric disorder.  I do not think anything turns on his reference to differential diagnoses.

23. In December 2014, Dr Henderson thought Mr Boscolo was suffering a mental illness, diagnosed as schizophrenia, at the time of his offences in early 2012 and that it had been unrelenting and unremitting for the previous three years.  That is not the same as saying it was fully diagnosed during the claim period because, at that time, Mr Boscolo was taken to be suffering from PTSD. 

    WAS MR BOSCOLO’S SCHIZOPHRENIA/PSYCHOSIS FULLY TREATED AND FULLY STABILISED DURING THE CLAIM PERIOD?

24. Even if I was to find that Mr Boscolo’s schizophrenia/psychosis was fully diagnosed during the claim period, I am not satisfied that it was fully treated and fully stabilised during that period.

25. There is no evidence that Mr Boscolo was being treated for a psychotic condition during the claim period; his treatment at that time was directed at his PTSD rather than psychosis.  It was not until April 2014 that attention was turned to treating his psychotic illness.  Dr Henderson did not start treating him until May 2014.

26. On 10 August 2015, Dr Henderson provided a report to Centrelink in which he stated he had been Mr Boscolo’s treating psychiatrist since May 2014; his presentation had been consistent with the diagnosis of psychotic disorder, most likely schizophrenia; he had presented regularly for treatment and had commenced an antipsychotic medication “with an improvement in his mental state”.  Dr Henderson reported that Mr Boscolo was “currently stable”.  He thought Mr Boscolo needed a further six months of treatment before he would be considered able to commence looking for work; at that time he believed Mr Boscolo would be “able to manage working a minimum of eight hours work with a view to increasing his work in a graded manner”.

27. There is no information before the Tribunal as to whether Dr Henderson’s expectations of further improvement were borne out.  However, it is relevant that he did not consider Mr Boscolo’s condition to be stable until well after the claim period.

28. I am not satisfied, on the information before me, that Mr Boscolo’s “schizophrenia/psychosis” was fully treated and stabilised during the claim period.  It follows that it cannot be assigned an impairment rating.

    WAS MR BOSCOLO’S SUBSTANCE ABUSE FULLY DIAGNOSED, FULLY TREATED AND FULLY STABILISED DURING THE CLAIM PERIOD?

29. In March 2014, Dr Allnutt referred to Mr Boscolo’s alcohol consumption, which he noted had been recently reduced.  Dr Henderson’s diagnosis of substance use disorder was not made until December 2014, well after the claim period, by which time he said Mr Boscolo reported he had reduced his alcohol intake “to an appropriate level”.  He recommended the following treatment: that Mr Boscolo abstain from “abuse level binge drinking”; that he undergo monitoring with periodic liver function test analyses with his general practitioner at least once every three months; and should his alcohol intake return to abuse levels, that he accept referral to a drug and alcohol group or a residential facility.

30. On the basis of this information, I am not satisfied that Mr Boscolo’s substance abuse was fully diagnosed during the claim period, and nor was it fully treated and fully stabilised during that period.  It follows that it cannot be given an impairment rating.   

    CONTINUING INABILITY TO WORK

31. As Mr Boscolo did not have an impairment rating of 20 or more points, according to the impairment tables, during the claim period, he did not qualify for the DSP during that period and his application for review must fail.  It is not necessary to determine whether he also had a continuing inability to work.

    CONCLUSION

32. For these reasons, I find that Mr Boscolo did not qualify for DSP during the claim period 8 February 2013 to 10 May 2013.  However, nothing about this decision prevents him from applying for DSP again now, or in the future.

33. I affirm the decision under review.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of  Senior Member J F Toohey.

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

Associate

Dated: 3 May 2017

Date(s) of hearing:	24 January 2017 and 23 March 2017
Advocate for the Applicant:	Ms S Boscolo
Solicitors for the Respondent:	Ms G Heggen, Department of Human Services