Bradley Berrell and Secretary, Department of Social Services
[2014] AATA 178
•1 April 2014
[2014] AATA 178
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0235
Re
Bradley Berrell
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 1 April 2014 Place Sydney The decision under review is set aside and substituted with a decision that the Applicant was qualified to receive disability support pension on the date of his claim, being 4 May 2012, or within 13 weeks of that date.
........[sgd]................................................................
Ms N Isenberg, Senior Member
Catchwords
SOCIAL SECURITY - disability support pension - psychiatric impairment - permanent conditions - whether the Applicant had an impairment rating of 20 points or more under the impairment tables - whether the Applicant had a "continuing inability to work" - decision under review set aside
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Cases
Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472)
Hamal and Secretary, Department of Social Services (1993) 30 ALD 517
Hanna and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 697
Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms N Isenberg, Senior Member
1 April 2014DECISION
On 4 May 2012 Bradley Berrell, the Applicant, contacted Centrelink about claiming disability support pension (“DSP”) and made a formal application for that pension on 8 May 2012. His application was refused. That decision was affirmed on internal review and upon review by the Social Security Appeals Tribunal ("SSAT"). The Applicant seeks review of that decision.
ISSUES
The issue for determination is whether the Applicant was qualified to receive DSP from 4 May 2012, or within 13 weeks of this date, ie before 3 August 2012. This requires consideration of whether between those dates the Applicant had conditions which were permanent; those conditions attracted an impairment rating of at least 20 points under the Impairment Tables and, if so, whether the Applicant had a continuing inability to work.
THE LEGISLATION
The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Policy advice contained in the Guide to Social Security Law (‘the Guide’) is also relevant.
Section 94 of the Act provides the qualification criteria for DSP. Relevantly, the person must have a physical, intellectual or psychiatric impairment: s 94(1)(a), which attracts an impairment rating of at least 20 points (s 94(1)(b)) and the person must have a continuing inability to work: s 4(1)(c). A continuing inability to work (“CITW”) is defined in s 94(2) of the Act.
The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination) took effect from 1 January 2012. The Determination contains the Impairment Tables (‘the Tables’) and the rules for their application. The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, ie fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
To determine if a condition has been fully diagnosed and treated, consideration must be given to whether there is corroborating evidence of the condition, what treatment has occurred, and whether treatment is continuing or planned in the next two years: s 6(5) of the Determination.
A condition is fully stabilised if the person has undertaken reasonable treatment and there is unlikely to be any significant functional improvement with further reasonable treatment that would enable the person to work in the next two years. A condition can also be considered fully stabilised if the person has not undertaken reasonable treatment and there is a compelling reason for them not to undertake that treatment, or if such treatment is unlikely to result in significant functional improvement that would enable the person to work within the next 2 years: s 6(6) of the Determination.
Reasonable treatment is treatment available at a location reasonably accessible to the person, at a reasonable cost, that can reliably be expected to result in a substantial improvement in functional capacity, be of a type regularly undertaken or performed, has a high success rate and carries a low risk to the person: s 6(7) of the Determination.
THE RELEVANT PERIOD
The Administration Act provides that the start-day for DSP is the date of claim (s 13, 41, 42, Schedule 2 clause 3). This means that qualification and impairment ratings must be determined at the date of claim. The only exception is where the person is not qualified on the day of claim but 'will... become qualified' and 'becomes so qualified' within thirteen weeks of lodging a claim, in which case their start-day is the day they became qualified: Schedule 2 clause 4(1).
The Applicant contacted Centrelink on 4 May 2012 about claiming DSP. He then lodged a claim for DSP on 8 May 2012 which is within 14 days after his contact. By virtue of ss 13, 41, 42, Schedule 2 clause 3 of the Administration Act, the issue is whether the Applicant is qualified to receive DSP on 4 May 2012, or if not, whether he became so qualified within 13 weeks, ie 4 May 2012 to 3 August 2012.
DOES THE APPLICANT SUFFER A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
In his claim, dated 8 May 2012, the Applicant listed one medical condition - schizophrenia, for which he has been prescribed the anti-psychotic medication, "Zyprexa", which is a brand name of Olanzapine.
There was no dispute that the Applicant suffered, during the relevant period, from a psychiatric condition. The Respondent suggested that this condition was properly characterised as “psychosis NOS, and depression”.
Therefore the Applicant satisfies s 94(1)(a) of the Act.
WERE, AT THE RELEVANT DATE, THE APPLICANT’S CONDITIONS PERMANENT, AS DEFINED?
Psychosis NOS
The Applicant’s evidence was that, as a child, his anger condition had been diagnosed as ADD. He said that he had attempted to kill himself four times. On at least one occasion, police had been called and he had been taken to the Mater Hospital. He explained that the voices in his head had been present for some years, but that they had worsened after his grandmother, who had cared for him for much of his childhood, died. The voices in his head tell him to kill himself. The Applicant told the SSAT that it was when he discovered he was going to be a father for the second time it prompted him to attend the doctor. He said that Dr Hart, his GP, had suggested mental illness from the first appointment in April 2012. The doctor referred him to a psychiatrist, a young man at Lake Macquarie Mental Health Service (“Lake Macquarie”), sometime before he had applied for DSP. However the young man moved to the Central Coast and he was passed on to Dr Hutton. He had to wait a fortnight to get into see her.
In support of his claim the Applicant provided a medical report from Dr Hart, dated 8 May 2012, who referred to the Applicant’s schizophrenia. Dr Hart stated that this was a presumptive diagnosis and that no further investigatory tests were planned to confirm the diagnosis. He referred to the Applicant experiencing symptoms of auditory hallucinations, mood swings and irritability. He anticipated the condition would affect the Applicant for at least 24 months and considered there to be an uncertain prognosis. He noted that the current treatment was “anti-psychotic medication”, the side effects of which were lethargy and muscle spasm.
On 24 July 2012 Dr Hart provided another medical report about the Applicant’s “schizoaffective disorder”, and again stated that the condition would affect the Applicant for more than 24 months and had an uncertain diagnosis. He referred there to the Applicant’s depressed mood and his poor interactions with others.
A Psychiatric Registrar at Lake Macquarie, Dr Hutton, provided a report dated 27 August 2012. She wrote that she had been the Applicant's doctor since 14 June 2012 and that the Applicant had been a patient of Lake Macquarie since that date. He had been referred because of auditory hallucinations, anxiety, and lack of impulse control. She diagnosed two conditions - psychosis and depression. She stated that both conditions would affect the Applicant for more than 24 months and would fluctuate. For psychosis, she stated that the Applicant was currently being treated with Paliperidone after having had a poor response to Olanzapine. The treatment for depression was Mirtazapine (which is known by the brand name Avanza). She stated for both conditions that the future planned treatment was psychology input.
The Respondent submitted that the report of Dr Sutton should not be taken into consideration for the purposes of the assessment as it was provided outside of the relevant period. This submission relied on the view of a JCA assessor in a report of 26 November 2013. I reject this submission on the basis that the Applicant had clearly been in the care of Dr Hutton from 14 June 2012.
Somewhat incongruously, the Respondent accepted, on the basis of Dr Hutton’s report, that during the relevant period this condition was fully diagnosed. However, the Respondent contended that the condition was not, during the relevant period, fully treated and stabilised. The Respondent submitted that, although the Applicant had consulted a psychiatrist within the relevant period, his medication was only being trialed. As to his medication, the Applicant’s evidence was that Dr Hart first gave him some medication. Then, when he saw the young male psychiatrist, he was given a sample of Olanzapine, which has the brand name Zyprexa. He had to return to Dr Hart to get the script. At first it worked well but within about a week it lost its effectiveness. When he finally got into see Dr Hutton she gave him some Paliperidone and he took both it and Zyprexa together for a period, so as to be weaned off Zyprexa and gradually introduce Paliperidone. By about 16 July 2012 he was taking Paliperidone alone. That medication works well and he is still taking it. Dr Hart confirmed in a letter of 7 November 2013 that he had been prescribing Paliperidone for the applicant since 16 July 2012.
The Respondent also submitted that I should infer from the observation in Dr Hutton's report that the Applicant’s “current treatment is Paliperidone, past treatment Olanzapine - poor response" that the Applicant was trialing medication and it could not be said, with the prescription of Paliperidone on 16 July 2012, that he had completed full and optimal treatment for psychosis by the end of the relevant period. The Respondent relied on the view of the final job capacity assessor, on 26 November 2013, that prescription medication usually takes several weeks to take effect and reduce the symptoms present. I accept the Applicant’s evidence that the medication worked and continues to work well. In any event, the Tribunal has found on many occasions that the treatment of psychiatric disorders is an ongoing one, and that may necessarily involve trialing of medication over years and introduction of other medication as new products are available. This does not, in my view, detract from regarding a condition as ‘fully treated’ : Hanna and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 697.
The Respondent also referred to Dr Hart's treating doctor report for the new claim, dated 18 April 2013, in which he wrote, in respect of schizoaffective disorder/schizophrenia that the current treatment is "antipsychotic medication, Date commenced 24 August 2012". The Respondent asked me to infer that as the type of anti-psychotic medication is not specified there was a possibility that medication, other than Paliperidone, had commenced on 24 August 2012. The Applicant’s evidence was that he continues to take Paliperidone. Further, Dr Hart’s letter of 7 November 2013 confirms that the Applicant has taken Paliperidone since 16 July 2012.
The Respondent also noted that in both of Dr Hart's treating doctor reports for the present claim, as well as his report in support of the new claim, the doctor consistently indicated in answer to the question "Patient's compliance with recommended treatment" that the Applicant is only "usually compliant" with his medication. In Dr Hutton's report, she ticked the box "very compliant" with respect to the Applicant's compliance with recommended treatment for depression, whereas she ticked the box "usually compliant" with respect to compliance with recommended treatment for the condition psychosis NOS. From this, the Respondent submitted, if the Applicant were only "usually compliant" in the early stages of taking medication it could not be said that he could be considered to be “fully treated” within less than three weeks of commencement of treatment (ie from 16 July 2012 when it was prescribed until to the end of the relevant period, namely 3 August 2012). The Applicant’s evidence, which I accept, was that he often forgets to take his night time medication – the Paliperidone – and his flatmate needs to remind him to take it. He gave evidence of poor concentration and inability to self-manage. I am not prepared to make an adverse finding about his less than optimal compliance, in circumstances where his condition is likely to make full compliance problematic. Dr Hutton continuing to prescribe the medication, knowing that the best the Applicant can manage is “usual compliance”, supports my view.
The Respondent noted that Dr Hutton stated that the future treatment is "psychological input". The Respondent submitted that this further indicates that the treatment regime cannot be considered completed in the relevant period. The Applicant gave evidence of being contacted daily by a psychiatric nurse, which he said was because of his suicide attempts. There was no evidence of other psychological input being advocated by Dr Hutton or Dr Hart.
I accept therefore that by the end of the relevant period the Applicant’s Psychosis NOS was fully treated and stabilised and an impairment rating can therefore be made.
Depression
The Respondent noted that in the Applicant's claim, depression was not listed as one of his claimed conditions. Neither was it listed in Dr Hart’s treating doctor’s reports, although in his second medical report, dated 24 July 2012, Dr Hart referred to the Applicant’s depressed mood. It was only in Dr Hutton’s report of 27 August 2012 that depression was first listed as a medical condition. The Respondent, properly in my view, accepted that this condition was fully diagnosed as Dr Hutton was consulted in the relevant period. However, the Respondent contended that depression was not fully treated and stabilised.
Dr Hart’s letter of 7 November 2013 notes that the Applicant had been prescribed Mirtazapine since 15 June 2012. I therefore accept that the condition had been treated since that date. The Applicant’s evidence is that he continues to take that medication each morning because it calms and relaxes him. The Respondent relied on the conclusion of the job capacity assessor in the report of 26 November 2013 that prescription medication usually takes several weeks to take effect and reduce the symptoms present. I accept that, by 3 August 2012, the Applicant had been taking Avanza for his depression for several weeks. I reject the Respondent’s submissions that the Applicant was merely trialing the medication and it could therefore not be said that he had completed full and optimal treatment by the end of the relevant period. The effectiveness of the medication continues.
I accept, therefore, that by the end of the relevant period the Applicant’s depression was fully treated and stabilised and an impairment rating can therefore be made.
WHAT IS THE APPROPRIATE RATING OF THE APPLICANT’S CONDITIONS?
Both psychiatric conditions are assessed together under Table 5 – Mental Health Function.
The Applicant told the SSAT that he had lost many jobs because of his anger and, at the age of 18, he served eight months home detention in relation to an assault, although the charges were eventually dropped. He worked in security, but lost his licence because he provoked fights and bashed someone with a torch. He was in the Army Reserve, but was always in trouble because of his aggression. He tried cleaning work and retail but there were arguments and he was aggressive. He said there is a custody dispute with the mother of his five-year-old, as she is scared of his anger. He admitted to some violence towards her. He said that he just 'snaps, out of nowhere', and whoever is standing in front of him will cop it. He said that he is afraid of hurting someone, and is getting all the help that he can. He could not see a future for himself.
His evidence before me, in addition, was that his housemate helps him and has to remind him to take his medication. She helps calm him down and helps him control his anger. She reminds him to eat.
He gets into arguments and ‘every time’ he leaves the house he ‘gets charged’ because of his random anger and violence. There are AVOs against him. Dr Hutton’s advice is to avoid socialising with people he doesn’t know. Consequently he does not leave the house other than to go to the doctor. He has people who run errands for him. He does not socialise and has no relationship with anyone. He is estranged from his parents and siblings but another family member usually drives him to the doctor. He will not take any detour afterwards, and comes straight home. He has missed seven appointments because he could not get someone to take him to the doctor. He cannot consider leaving the house on his own.
Both his children usually live with him, but it is his flatmate who cares for them, although he does provide some care. He did not know why he was able to provide some care for the children, but not care for himself.
He sleeps most of the day, because he has such poor sleep at night. He might not fall asleep until about 5.00 am and then sleeps till 7.30 am, gets up and takes his morning medication, and then sleeps again until about 2.00 pm. He then just sits around until it's time for bed. He might watch TV but has no concentration, and he is easily distracted. He has tried to break the cycle, without success.
The Respondent made no submission as to the appropriate rating of the Applicant’s condition. I note however that on 22 April 2013, in respect of his new claim, a Job Capacity Assessment report was undertaken via file assessment. The assessor assessed 20 impairment points from Table 5 for psychological/psychiatric disorder. Dr Hart had confirmed that the Applicant would meet the severe functional impact on activities involving mental health function criteria. The Respondent was unable to point to any evidence of an increase in severity in the Applicant’s condition between the relevant period and the date of that JCA assessment that might account for the latter attracting more points.
From his evidence, both before me and before the SSAT, I accept that the Applicant’s condition is severe. I find that a rating of 20 impairment points is appropriate in that I find he has severe difficulties in:
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
(b) social/recreational activities and travel;
(c) interpersonal relationships;
(d) concentration and task completion;
(e) behaviour, planning and decision-making;
(f) work/training capacity.
DOES THE APPLICANT HAVE A CONTINUING INABILITY TO WORK (CITW)? HAS THE APPLICANT ACTIVELY PARTICIPATED IN A PROGRAM OF SUPPORT?
A person has a continuing inability to work if the Secretary (or the Tribunal on review) is satisfied that the person has actively participated in a program of support. The Respondent conceded that the Applicant met the requirements of a program of support.
A person’s impairment must also, of itself, be sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, within the next two years. The availability of work or a training activity locally is to be disregarded when deciding if a person has a CITW: s 94(2) - 94(3) of the Act.
Section 94(5) of the Act defines work as work that exists in Australia that is for at least 15 hours a week on wages at or above the relevant award wage.
The Respondent contended that the Applicant does not have a CITW to work for at least 15 hours per week as defined by s 94(5) of the Act, and so does not satisfy s 94(1)(c) of the Act.
The Respondent relied on the assessments made by the job capacity assessors:
·On 29 May 2012 a face-to-face JCA was undertaken by two Centrelink assessors - a registered occupational therapist and registered psychologist. The assessors considered the Applicant had a temporary work capacity till 29 November 2012 of 0-7 hours per week. His ‘baseline’ work capacity of 15-22 hours per week was said to be ‘somewhat affected’ by his schizophrenia which it was acknowledged impacts upon his mood, concentration and endurance. Within two years, with appropriate intervention, his future work capacity was considered to be 23-29 hours per week, and the suitable work is moderate less skilled work, such as a cleaner.
·When assessed on 18 September 2012, the Applicant was considered at that time to have a temporary work capacity of 0-7 hours per week and that that would continue until 2 September 2013. His work capacity was said to be significantly affected by his symptoms. His future work capacity within two years with intervention was assessed at 15-22 hours per week in moderate less skilled work.
·When the Applicant was assessed via file assessment on 22 April 2013, the assessor, a registered psychologist, considered he had a baseline work capacity of only 8-14 hours a week. That position was not considered to be any different in the following two years, even with intervention.
·On 26 November 2013, the Applicant was considered to have a temporary work capacity of 0-7 hours per week until 2 December 2013. His future work capacity within two years with intervention was 15-22 hours per week in moderate less skilled work.
The Respondent submitted that the job capacity assessors are qualified to make an assessment of the Applicant's CITW as they have specialised knowledge and experience in identifying barriers to employment, interventions, such as Disability Employment Services, available programs and suitable occupations to determine a person's impairment rating and work capacity.
There is an abundance of medical evidence about the debilitating effects of the Applicant’s condition. I have also accepted the Applicant’s evidence of his poor sleep cycle, and his lethargy and lack of concentration. In my view it is highly unlikely that any normal workplace could tolerate this: Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769; Hamal and Secretary, Department of Social Services (1993) 30 ALD 517; Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472). Moreover, I accept that the Applicant does not leave the house, on his evidence, and, on his psychiatrist’s advice does not mix with strangers so as to avoid conflict situations. In those circumstances, the Applicant would not be a candidate for any employment that would entail attendance outside the home and entails interacting with others.
Therefore, I find that the Applicant has a CITW and therefore satisfies s 94(1)(c) of the Act.
I therefore find that, in the relevant period, the Applicant met all the requirements for entitlement to DSP.
DECISION
46. The decision under review is set aside and substituted with a decision that the Applicant was qualified to receive disability support pension on the date of his claim, being 4 May 2012, or within 13 weeks of that date.
I certify that the preceding 45 (forty five) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
...........[sgd]...........................................................
Associate
Dated 1 April 2014
Date of hearing 21 March 2014 Applicant In person Advocate for the Respondent Ms Phyllis Lee, Program Litigation and Review Branch, Department of Human Services
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