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

[2016] AATA 751

Brassaud and Secretary, Department of Social Services (Social services second review) [2016] AATA 751 (28 September 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0652
Re	Jamie Brassaud
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	28 September 2016
Place	Sydney

The reviewable decision of the SSCSD dated 31 December 2015 is set aside and in substitution the Tribunal decides that Mr Brassaud satisfied s 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) at the date of cancellation on 11 June 2015.

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Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of applicant’s pension – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – skin condition awarded 20 points under Table 14 – depression and bipolar disorder awarded 10 points under Table 5 – chronic right knee pain awarded 5 points under Table 3 – continuing inability to work – decision set aside and decision made in substitution

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) ss 80(1), 118(13)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

28 September 2016

INTRODUCTION

1. The applicant, Mr Jamie Brassaud, was granted a disability support pension from 26 October 2010.

2. On 31 December 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal affirmed the decision of the Secretary to cancel Mr Brassaud’s disability support pension. The basis of this decision was that Mr Brassaud ceased to satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act) at the date of cancellation on 11 June 2015.

3. Mr Brassaud applied to the General Division of the Tribunal on 8 February 2016 for a review of the SSCSD decision.

4. The matter was heard in Sydney on 18 August 2016. Mr Brassaud attended the hearing in person. He had legal representation and was assisted by his mother, Ms Elizabeth Brassaud.

   RELEVANT LEGISLATION AND ISSUES

5. The power for the Secretary to cancel Mr Brassaud’s disability support pension is contained in s 80(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). Pursuant to s 118(13) of the Administration Act, the cancellation decision takes effect on the day on which it was made, in this case on 11 June 2015 (date of cancellation).

6. In assessing whether Mr Brassaud qualified for the disability support pension in 2015, Centrelink was required to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination), pursuant to ss 27(3) and (4) of the Act.

7. Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined by the Act.

8. Mr Brassaud had to satisfy these criteria at the date of cancellation.

9. The Secretary concedes and the Tribunal agrees that Mr Brassaud suffers medical conditions that cause impairment and therefore, satisfied s 94(1)(a) of the Act at the date of cancellation.

10. It follows that the determinative issues in this matter are whether, at the date of cancellation, Mr Brassaud had:

    (a)an impairment rating of 20 points or more under the Impairment Tables; and

    (b)a continuing inability to work as defined in s 94(2) of the Act.

    Does Mr Brassaud have medical conditions that can be rated at 20 points or more under the Impairment Tables?

11. The Impairment Tables Determination requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in para 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

12. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

13. The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.

14. Relevantly, the Introduction to Table 5 of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition ‘must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)’.

15. The medical conditions of Mr Brassaud set out in the disability support pension medical report completed by Dr Frank Goderie (General Practitioner) on 4 July 2015 are:

    ·hidradenitis suppurativa – skin condition;

    ·depression and bipolar disorder type 1 – mental health condition; and

    ·chronic right knee pain – lower limb condition.

16. I now consider Mr Brassaud’s medical conditions and their relevant rating under the Impairment Tables.

    Skin condition

17. Mr Brassaud was diagnosed with hidradenitis suppurativa in 2005. A report by Dr Duncan Stanford (Dermatologist) dated 14 April 2005 described ‘recurrent boil-like lesions affecting the axillae and groin area and perianal zone’. Dr Pablo Penas (Consultant Dermatologist) reported on 23 September 2010 that Mr Brassaud has:

    …a form of hidradenitis… He has multiple inflammatory and suppurative nodules on the sides of the trunk and groins that are causing severe impact in his quality of life and daily living activities. This is a chronic condition with intermittent flare-ups that responds poorly to therapy.

18. At the Tribunal hearing, Dr Goderie confirmed that hidradenitis suppurativa is a rare autoimmune condition that causes short-term flare-ups of boils/abscesses and long-term scarring. He noted that the condition cannot be treated using creams or dressings.

19. Mr Brassaud told the Tribunal that his skin condition was aggravated by heat and sunlight and was ‘unbearable in summer’. He described difficulty moving and sitting as his clothes rub against the boils/abscesses, and said he was only able to wear a singlet in summer.

20. I am satisfied that Mr Brassaud’s skin condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. In accordance with the information at Table 14 – Functions of the Skin, I find that Mr Brassaud’s condition had a severe functional impact on activities requiring healthy, undamaged skin at the date of cancellation. As Mr Brassaud’s condition meets the descriptors of 1(d) and 1(e), I assign an impairment rating of 20 points. This is also consistent with Dr Goderie’s medical report on 30 December 2015, which described Mr Brassaud’s skin condition as fitting with ‘severe to extreme functional impairment as per Table 14’ of the Impairment Tables.

    Mental health condition

21. On 3 December 2009, a report by Dr Luciano Diana (Consultant Psychiatrist) diagnosed Mr Brassaud with bipolar disorder and set out a medication management plan. A report by Dr Howe Synnott (Psychiatrist) dated 15 September 2011 confirms this diagnosis.

22. At the Tribunal hearing, Dr Goderie affirmed that Mr Brassaud was assessed by the Black Dog Institute in 2009 and 2011, and medication was the primary treatment of the condition. He described Mr Brassaud’s bipolar disorder as fluctuating between depression and manic/hypomanic episodes, which affects his capacity to engage socially and participate in tasks that require any concentration. When Mr Brassaud experiences depression, he is unable to engage with people and seek assistance; and when he has a manic/hypomanic episode, he may be overconfident and undertake risky behaviour.

23. Mr Brassaud told the Tribunal that, while he lives with his wife and has a close relationship with his family, he does not have friends or an active social life. He finds it difficult to express himself and feels that he upsets people. He said that it is stressful when he has to engage with people.

24. Based on the evidence before me, I am satisfied that Mr Brassaud’s mental health condition was fully diagnosed, fully treated and fully stabilised during the claim period. I have regard to the information at Table 5 – Mental Health Function and am satisfied that Mr Brassaud’s mental health condition has a moderate functional impact on activities involving his mental health function and I assign an impairment rating of 10 points. In making this assessment, I have regard to para 11(4) of the Impairment Tables Determination, which states that episodic and fluctuating conditions should reflect ‘the overall functional impact of those impairments’.

    Lower limb condition

25. In 2004, Mr Brassaud had a motorcycle accident that injured his right knee. He suffered pain and swelling in his knee, and subsequently underwent a right knee reconstruction.

26. A report by Dr Greg Stackpool (Orthopaedic Surgeon) dated 7 May 2014 diagnosed ‘intermittent right knee symptoms’, ‘arthritis in the knee’ and ‘some mechanical symptoms’. On 27 March 2015, Mr Brassaud underwent an arthroscopy on his right knee to alleviate these symptoms.

27. Dr Goderie told the Tribunal that, due to arthritis, Mr Brassaud’s right knee condition is more likely to worsen over time. Any further treatment, including a knee replacement, is not available to Mr Brassaud until he is significantly older.

28. At the Tribunal hearing, Mr Brassaud described having tightness, swelling and pain in his right knee, which is aggravated by walking. He said that he prefers to drive rather than walk when he leaves his house.

29. Based on the medical evidence before me, I am satisfied that Mr Brassaud’s lower limb condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. In accordance with the information at Table 3 – Lower Limb Function, I find that Mr Brassaud’s condition at the date of cancellation had a mild functional impact on activities involving the lower limb and I assign an impairment rating of 5 points.

    Conclusion

30. In accordance with my findings at paragraphs 20, 24 and 29 above, Mr Brassaud has a total of 35 points under the Impairment Tables and so has met the requirement of s 94(1)(b) for an impairment rating of 20 points or more.

    Does Mr Brassaud have a continuing inability to work as defined in s 94(2) of the Act?

31. The next issue I must consider is whether, as required by s 94(1)(c), Mr Brassaud has a continuing inability to work because of his impairment.

32. A ‘continuing inability to work’ is defined in s 94(2) of the Act, which provides that:

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

    (b)in all cases—either:

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

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

33. Section 94(3) requires that I am not to have regard to the availability to the person of a training activity, or the availability to the person of work in the person’s locally accessible labour market.

34. The Secretary advises that Mr Brassaud is not a ‘reviewed 2008-2011 DSP starter’ and therefore the Program of Support (POS) requirements do not apply.

35. A Job Capacity Assessment (JCA) Report for Mr Brassaud was submitted on 12 May 2015. I find the following problems with the JCA Report:

    (a)The assessment of Mr Brassaud took place on 19 January 2015, five months before the Report was submitted. I note that during this five month period, Mr Brassaud underwent an arthroscopy on his right knee. This was not included in the JCA Report.

    (b)Mr Brassaud’s mental health condition did not meet ‘fully diagnosed, treated and stabilised criteria’ because the JCA assessor was unable to contact Dr Harvey, who completed a medical report for Mr Brassaud in December 2014. The JCA assessor then considered that Mr Brassaud’s bipolar condition was not ‘fully treated’.

36. The JCA concluded that Mr Brassaud had a baseline work capacity of 8-14 hours per week and his capacity to work within two years with intervention is 15-22 hours per week.

37. At the Tribunal hearing on 18 August 2016, Mr Brassaud described the effect of his mental health condition and skin condition. He said that his mental health condition affects his ability to engage with people, and he can experience depression to such an extent that it is difficult to get out of bed. His skin condition causes significant pain, especially when he has a ‘flare-up’.

38. Mr Brassaud’s mother, Ms Elizabeth Brassaud, is the Manager at Bulli Community Centre and offered Mr Brassaud the opportunity to volunteer at the centre in January 2016.

39. Ms Brassaud told the Tribunal that her son was only able to volunteer at the Centre for two days. This was because he had difficulties doing any outside work as the heat and sun aggravated his skin condition. He also found working inside with other people too confronting, which increased his anxiety. Ms Brassaud said that Mr Brassaud was unable to concentrate or undertake straightforward tasks such as using a photocopier or answering the phone. He did not return to the Centre after two days.

40. I also consider the oral evidence of Dr Goderie, who told the Tribunal that Mr Brassaud was unable to work because of the combination of his mental health condition and skin condition. Dr Goderie said the fluctuating nature of Mr Brassaud’s mental health condition meant that he could either experience periods of depression that prevented him from leaving the house; or have episodes of mania/hypomania which manifests in inappropriate and potentially dangerous behaviour. Mr Brassaud’s skin condition also prevents him from working in any outdoors environment.

41. On the basis of all the evidence before me, which has been set out above and in my findings at paras 20, 24 and 29, I find that Mr Brassaud’s impairment is of itself sufficient to prevent him from doing any work independently of a POS during the next two years. I am therefore satisfied that the requirement in s 94(2)(a) is met.

42. I must now consider whether, as required by ss 94(2)(b)(i) and (ii), Mr Brassaud’s impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years; or because of his impairment, any training activity is unlikely to enable Mr Brassaud to do any work independently of a POS within the next two years.

43. On the basis of all the evidence before me, which has been extensively set out above and in my findings at paras 20, 24 and 29, I find that Mr Brassaud’s impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years and that any training activity is unlikely to enable Mr Brassaud to do any work independently of a POS during the next two years. I am therefore satisfied that the requirement in s 94(2)(b) is met.

44. I find that Mr Brassaud has a continuing inability to work as required by s 94(1)(c) of the Act.

    CONCLUSION

45. For the reasons set out above, I am satisfied that, at the date of cancellation, Mr Brassaud was qualified to receive the disability support pension.

    DECISION

46. The reviewable decision of the SSCSD dated 31 December 2015 is set aside and in substitution the Tribunal decides that Mr Brassaud satisfied s 94(1)(a), (b) and (c) of the Act at the date of cancellation on 11 June 2015.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated 28 September 2016

Date(s) of hearing	18 August 2016
Solicitors for the Applicant	I Turton, Illawarra Legal Centre
Solicitors for the Respondent	A Kennedy, Department of Human Services