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

[2018] AATA 1618

Boyle and Secretary, Department of Social Services (Social services second review) [2018] AATA 1618 (6 June 2018)

Division:GENERAL DIVISION

File Number:           2017/1964

Re:Shaun Boyle

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:6 June 2018

Place:Sydney

The decision under review is affirmed.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – application refused – impairment tables – whether condition is fully diagnosed, treated and stabilised – mental health – stress, anxiety and agoraphobia – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

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

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

Decision under review

1. Mr Boyle seeks the review of a decision rejecting his claim for disability support pension (DSP).

2. The decision was made by the Social Services and Child Support Division of the Tribunal on 9 March 2017 (AAT1). AAT1 affirmed the decision of an Authorised Review Officer made on 1 November 2016 which had affirmed the decision made by the Department of Human Services (the Department) on 17 August 2016 to reject his claim for DSP.

   The issue to be determined

3. The issue the Tribunal has to determine is whether Mr Boyle qualified for DSP within the period of 13 weeks beginning on the date on which he lodged his application, 11 July 2016.

   The legislative framework

4. Section 94 of the Social Security Act 1991 (Cth) (the Act) provides:

   94(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. The respondent accepts that Mr Boyle satisfies paragraph 94(1)(a) of the Act.

6. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination) contains the Impairment Tables used to assess a person’s impairment for the purposes of paragraph 94(1)(b) of the Act.

7. Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent, and the impairment is more likely than not, in light of available evidence, to persist for more than two years.

8. Subsection 6(4) of the Determination provides that a condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and stabilised and is likely to persist for more than two years.

9. Subsection 6(5) of the Determination provides that in deciding whether a condition has been fully diagnosed and treated, a decision maker must consider:

   a)whether there is corroborating evidence of the condition;

   b)what treatment or rehabilitation has occurred in relation to the condition; and

   c)whether treatment is continuing or planned in the next two years.

10. Subsection 6(5)(b) of the Determination provides that in determining whether a condition has been fully treated, the treatment that has occurred in relation to the condition must be considered.

11. The Guide to Social Security Law at 3.6.3.05 elaborates that a condition is considered fully treated if it is determined that the person has received all reasonable treatment (emphasis added) for the condition.

12. Subsection 6(6) of the Determination provides that a condition is fully stabilised if the person:

    (a)has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement; or

    (b)has not undertaken reasonable treatment but such treatment is either not expected to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years, or there is a medical or other compelling reason for the person not to undertake reasonable treatment.

13. Subsection 8(1) of the Determination provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

    Background

14. Mr Boyle was born at the beginning of 1971. He has been living with his parents since 2012 and has been receiving newstart allowance intermittently from 9 September 2002 when he was 31 years old, and most recently from 1 October 2015. He lodged a previous claim for DSP on 15 September 2015 which was rejected (the first DSP application).

    The evidence

15. At the end of the hearing of this matter, there was an inconsistency between Mr Boyle’s evidence about his continuing treatment by a treating psychologist, and the Medicare records that did not support his claims. To address that difficulty, the Tribunal made directions which permitted Mr Boyle to file a statutory declaration from his mother about her knowledge of his treatment by his psychologist, and the respondent to conduct a search in relation to the treating psychologist to determine his address, if he was currently practising or when he had ceased practice, and thereafter to contact him seeking details of the dates and nature his treatment of Mr Boyle.

16. A telephone directions hearing was held on 13 October 2017. Mr Boyle had lodged screen shots of text messages between him and the treating psychologist, and his mother had provided a statutory declaration. The respondent had sent a letter to the treating psychologist seeking the abovementioned information. The respondent’s legal representative had confirmed in a telephone conversation with the treating psychologist that he had received the letter and he had said that he might reply. The Tribunal advised the parties that if he did, it would hold a further telephone directions hearing. The treating psychologist did not reply to the letter.

17. The Tribunal emphasises that it has to determine whether Mr Boyle qualified for the DSP during the 13 week period beginning on 11 July 2016. Evidence that came into existence before or after that period is only relevant to the extent that it assists the Tribunal to make that determination.

18. In his claim for DSP lodged on 11 July 2016, with which this decision is concerned, Mr Boyle reported that he suffered from mental health issues, specifically stress, anxiety and agoraphobia. He nominated a clinical psychologist, Ms Farr, and the treating psychologist, as treating doctors. 

19. In response to the question: Do you believe this treatment affects your ability to work or study (e.g. your mobility, capacity to lift/carry, day to day living, ability to remember and communication with other people)?, Mr Boyle answered “Yes” and gave the detail “Agoraphobia”.

20. The medical evidence and the Medicare records show that Mr Boyle was seeing Ms Trista, psychologist, as of 19 September 2012. He attended three appointments with her in October 2012, one in November 2012, two in December 2012, one in February 2013, two in March 2013, and one in each of May, June, July and August 2013. He next saw another psychologist (the treating psychologist) in October 2013. Thereafter, he had two appointments with the treating psychologist in November 2013, one in January 2014, and four in March 2014. According to the Medicare records he next saw the treating psychologist on 24 July 2015, once in August 2015, and then on 4 and 11 September 2015. That is the last time the Medicare records show that Mr Boyle saw the treating psychologist.

21. The Medicare records show that Mr Boyle saw Ms Farr, clinical psychologist, on two occasions, on 29 January 2016 and 5 February 2016. The next occasion he saw a psychologist according to those records is 27 June 2017, when he saw the psychologist recommended by his mother.  

22. There are various referrals and Mental Health Treatment Plans from the general medical practice Mr Boyle attended which are consistent with the above outline of treatment.

23. The treating psychologist provided a report dated 25 September 2015 in support of Mr Boyle’s first unsuccessful application for DSP, which the treating psychologist said he had encouraged. The treating psychologist diagnosed “Serious Acute Anxiety (with agoraphobic elements) and Major Depression”. He stated that he was managing Mr Boyle’s “acute anxiety surrounding complex family issues” and referred to a gap in treatment “until earlier this year”. That is consistent with the Medicare records that show Mr Boyle did not see the treating psychologist between 28 March 2014 and 28 July 2015.

24. In his report dated 25 September 2015, the treating psychologist wrote:

    The intensity of his current symptomatology are such that it is a preventative barrier to both finding and securing any type of employment in his local community… If the stressor were to end in a satisfactory outcome (and there is no known time frame around when this might occur), then I would surmise that recovery would be at least numerous weeks to a few months of fortnightly sessions, which will lead to Mr Boyle exceeding the limit of sessions that Medicare will subsidise for the remainder of 2015 placing an even higher financial burden to remain in treatment…

    Treatment

    ·    Fortnightly psychological treatment

    Time Frame for Treatment/Recovery

    ·    Uncertain due to dependency on the ongoing nature of his environmental stressors. I would expect that recovery may be most likely to fall within approximately 6-12 months at the earliest.

25. A face to face Job Capacity Assessment (JCA) was carried out on 17 November 2015 for the purpose of the first DSP application. Based on the treating psychologist’s report and the discussion with Mr Boyle, the assessor found that there were no verified permanent, fully diagnosed, treated and stabilised conditions and therefore impairments cannot be recorded.

26. The treating psychologist provided a further undated letter which the Tribunal finds was written before 18 December 2015, based on the JCA report carried out on 17 August 2016 in respect of the DSP application, the subject of this decision. The treating psychologist’s letter makes it clear that the break in Mr Boyle’s treatment in 2014 was because “Symptoms appeared to be holding steady and he was doing well”, and that Mr Boyle was referred to the treating psychologist again on 11 June 2015, “with a heightened experience of anxiety that was impacting him in a much more profound manner that (sic) the year prior”. The treating psychologist said that he expected that Mr Boyle “is likely to be significantly impacted by anxiety associated with trauma until the end of 2017 and into 2018”.

27. Mr Boyle asked to be referred to a clinical psychologist, as noted in the GP’s referral to Ms Farr dated 18 December 2015, because he was “advised by current counsellor and Centrelink to do that”. A GP Mental Health Treatment Plan – Review” was attached to the referral.   

28. In a brief letter dated 22 January 2016, Ms Farr confirmed that Mr Boyle attended an “initial psychological assessment session” with her on 22 January 2016. She provided a one page “Support Letter for Disability Support Pension” dated 15 February 2016 which stated that Mr Boyle had attended three sessions and had been referred “to a clinical psychologist to provide a diagnosis for the purpose of obtaining the Disability Support Pension by Centrelink”. She diagnosed Agoraphobia and Major Depressive Disorder. 

29. Ms Farr concluded:

    It is unlikely that Mr Boyle can obtain or maintain employment given his current psychological functioning. He is attending psychological treatment with Daniel Staunton (sic) to address his symptoms and work towards improving his exposure to social situations and emotional regulation. With continued and appropriate treatment including cognitive behavior (sic) therapy Mr Boyle may improve to a point where is (sic) capable of working. Such progress may be more likely to occur following the resolution of Mr Boyle’s personal issues. Without this resolution, Mr Boyle continues to be triggered emotionally.

30. After the DSP application, the subject of this decision, was lodged, a JCA Report was prepared on a “File Assessment” basis on 17 August 2016. The assessor found that Mr Boyle’s “psychol/Psychiatric Disorder” was “permanent”, that it was verified by medical evidence and fully diagnosed by a clinical psychologist. However, the assessor considered that the condition had not been “optimally treated or stabilised as the client has not engaged in pharmacological management as suggested by the GP, has not seen a psychiatrist for medication management and both the clinical and forensic psychiatrist have indicated further gains are expected with improvement in the client’s personal factors and ongoing psychological treatment”.

31. The assessor referred to the reports of Ms Farr dated 15 February 2016 and reports from the treating psychologist dated 25 September 2015 and 18 December 2015, and a report from Dr Giri, GP, dated 18 December 2015.

32. Before this hearing, Mr Boyle lodged medical reports from Dr Kana, general practitioner, dated 14 June 2017 and a second undated report which was provided to the Tribunal on 25 July 2017 (the second report), and a statutory declaration from Ms Alldred. Ms Alldred had been his partner since 2013. Her evidence was about the impact on Mr Boyle of irritable bowel syndrome.

33. Dr Kana’s report dated 14 June 2017 set out his opinion that Mr Boyle’s mental health condition was fully treated and stabilised as at 11 July 2016. He then assessed Mr Boyle’s condition against Impairment Table 5 as severe, although his condition satisfied some factors for the extreme rating. He also expressed the opinion that as at July 2016, Mr Boyle did not have the capacity to work 15 hours a week within the next two years. Dr Kana provided reasons for each of the opinions he expressed.

34. Dr Kana’s second report stated that Mr Boyle suffers “functional somatic symptoms of the digestive system and other various forms of somatic dysesthesia relating to his mental health condition such as headaches, chest pains and shortness of breath”. He set out details in relation to those matters. Dr Kana assessed Mr Boyle’s condition against Impairment Table 10 as moderate and applied a rating of 10 points. Dr Kana did not state that he was assessing Mr Boyle’s conditions as of 11 July 2016.

35. After the hearing, Mr Boyle submitted screen shots of text messages between him and the treating psychologist between 3 September 2015 and 11 March 2016. They show that he exchanged text messages with the treating psychologist about appointments scheduled on 4 September 2015, 11 September 2015, 16 October 2015, 30 October 2015, 20 November 2015, 22 January 2016, 19 February 2016, and 11 March 2016. 

36. Mr Boyle’s mother, a registered nurse and midwife, provided a statutory declaration dated 3 October 2017 in which she stated that Mr Boyle attended appointments with the treating psychologist on 16 October 2015, in January 2016, on 19 February 2016, and 11 March 2016. She believed that Mr Boyle continued to see the treating psychologist and had spoken to him on 12 April 2016 and 12 October 2016 because she “had discussed (Mr Boyle’s) treatment” with Mr Boyle “during those times”. She was aware that Mr Boyle was “no longer” seeing the treating psychologist, and was currently being treated by a clinical psychologist she had recommended and “has been seeing (that psychologist) for a number of months now”.

37. Eight photographs of a rash on various parts of the body were attached to the statutory declaration of Mr Boyle’s mother. Although not referred to in the document, she stated that Mr Boyle had cancelled a 9 October 2015 appointment with the treating psychologist because of stress and anxiety about having to decide about an overseas job opportunity and that he had broken out in a stress rash. The Tribunal infers that the photographs are evidence of that rash on that occasion.

    Consideration and findings

38. Mr Boyle told the Tribunal that he managed to get Medicare to cover his treatment and has not been asked to pay any money. That statement supports a finding that the Medicare records should be an accurate record of Mr Boyle’s attendance on medical practitioners. The Medicare records show that Ms Farr charged for only two attendances, on 29 January 2016 and 5 February 2016, although it is clear from her letter dated 22 January 2016 that he attended an “initial psychological assessment session” on that day. The Tribunal infers that Ms Farr did not charge for that session.  

39. The text messages Mr Boyle provided do not prove that he attended the appointments with the treating psychologist referred to in the text messages. However, Ms Farr refers to Mr Boyle being treated by the treating psychologist when she saw him at the beginning of 2016. While the Medicare records do not support that finding, the Tribunal will accept that he did for the purposes of this decision.    

40. Mr Boyle maintained at the hearing that his psychological treatment by the treating psychologist continued through July 2016 and beyond. He also told the Tribunal that both Ms Farr and the treating psychologist moved away and there was a month when he did not see anyone. He also said that the treating psychologist left earlier in 2017.

41. The respondent sent a notice to the Australian Health Practitioner Regulation Authority (AHPRA) pursuant to s 196 of the Social Security (Administration) Act 1999 (Cth) requiring the production of information about the treating psychologist’s registration as a psychologist and his last address. It shows that his most recent registration as a psychologist was valid to 30 November 2016 and that his last place of practice was where Mr Boyle had consulted him.

42. The text messages Mr Boyle provided indicate that the treating psychologist had a practice of sending text messages reminding Mr Boyle of his appointments. The last appointment referred to in a text message from the treating psychologist is 11 March 2016. There is no other contemporaneous evidence that supports Mr Boyle’s claims to have had only had a one month break in his psychological treatment or his mother’s evidence about some later appointments with the treating psychologist.

43. The Tribunal does not accept that Mr Boyle attended a psychologist appointment between 11 March 2016 and 27 June 2017 when the Medicare records show that he started to see another psychologist.

44. The Tribunal has taken into account Dr Kana’s evidence about Mr Boyle’s psychological condition. Dr Kana stated that his opinion that Mr Boyle’s mental health condition was fully treated and stabilised “is based on corroborating evidence by numerous other health professionals”. The evidence of psychological treatment is outlined above. It shows that psychological treatment stopped, although Ms Farr’s evidence shows that she expected that Mr Boyle would continue under the treating psychologist’s care. The treating psychologist’s most recent evidence was in December 2015. The Tribunal finds that at that time, the treating psychologist envisaged continuing to treat Mr Boyle for the foreseeable future.  

45. The Tribunal does not agree with Dr Kana that Mr Boyle’s mental health condition was fully treated and stabilised during the qualification period. He had ceased treatment in March 2016. The Tribunal does not agree with Dr Kana that Mr Boyle has undertaken reasonable treatment. The evidence does not support that finding.

46. The analysis undertaken in the Health Professional Advisory Unit report dated 6 September 2017 supports the Tribunal’s finding.

47. For the above reasons, Mr Boyle did not qualify for DSP during the qualification period.

    Decision

1. The Tribunal affirms the decision under review. made by the Social Services and Child Support Division of the Tribunal on 9 March 2017 (AAT1) which affirmed the decision of an Authorised Review Officer made on 1 November 2016 which had affirmed the decision made by the Department of Human Services (the Department) on 17 August 2016 to reject Mr Boyle’s claim for DSP.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated:   6 June 2018

Date of hearing:	18 September 2017
Applicant:	In person
Solicitors for the Respondent:	J. Eslick, Department of Human Services