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

[2016] AATA 869

Brien; Secretary, Department of Social Services and (Social services second review) [2016] AATA 869 (2 November 2016)

Division	GENERAL DIVISION
File Number	2015/2000
Re	Secretary, Department of Social Services
APPLICANT
And	Damien Brien
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	2 November 2016
Place	Sydney

The decision of the Social Security Appeals Tribunal dated 27 March 2015 is set aside and in substitution, the Tribunal decides that as at the date of cancellation on 1 December 2014, Mr Brien did not qualify for disability support pension.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – whether conditions fully diagnosed treated and stabilised – whether rated 20 points or more – none of respondent’s impairments severe – mental health conditions – chronic polysubstance dependence – decision under review set aside and substituted

LEGISLATION

Social Security Act 1991, ss 94, 27(3) and (4)

Social Security (Administration) Act 1999, ss 80(1) and 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

2 November 2016

INTRODUCTION

1. The respondent, Mr Damien Brien was granted a disability support pension on 26 September 2011.

2. On 27 March 2015, the Social Security Appeals Tribunal (SSAT) set aside the decision of the Secretary to cancel Mr Brien’s disability support pension. The basis of the SSAT decision was that Mr Brien satisfied the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act) at the date of cancellation on 1 December 2014.

3. The Secretary applied to the General Division of the Tribunal on 28 April 2015 for a review of the SSAT decision.

4. The matter was heard in Sydney on 13 October 2016. Documents pertaining to the hearing were sent to Mr Brien at his postal address on file. The Tribunal also attempted to phone Mr Brien several times in the week prior to 13 October 2016 and at the hearing. Mr Brien did not attend the hearing and consequently, provided no oral evidence to the Tribunal. I have marked the documents filed by the Secretary in accordance with s 37 of the Administrative Appeals Tribunal 1975 (Cth) as Exhibits T1 and ST1. 

   RELEVANT LEGISLATION AND ISSUES

5. The power for the Secretary to cancel Mr Brien’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 1 December 2014 (date of cancellation).

6. In assessing whether Mr Brien qualified for the disability support pension at the date of cancellation, 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 Brien had to satisfy these criteria at the date of cancellation.

9. The Secretary concedes and the Tribunal agrees that Mr Brien 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 Brien 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 Brien have medical conditions that can be rated at 20 points or more under the Impairment Tables?

11. The Impairment Tables Determination states that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’: paragraph 6(3). As set out in paragraph 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 provides 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 the 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. I will now consider Mr Brien’s medical conditions and their relevant rating under the Impairment Tables Determination.

    Mental health condition

16. Dr Aubrey Yeh (General Practitioner) completed medical reports for the disability support pension on 19 September 2011 and 28 July 2014, which diagnosed Mr Brien with major depression, bipolar affective disorder and anxiety disorder. Dr Yeh stated that Mr Brien had multiple mental health issues that were treated with medication and planned counselling.

17. A medical report for disability support pension by Dr Julian Keats (Senior Addiction Medicine Registrar) on 16 December 2014 (two weeks after the date of cancellation), diagnosed Mr Brien with ‘complicated grief and depression’ that was treated with anti-depressants, case management and counselling support. Dr Keats reported that Mr Brien’s depression manifested in:

    Low mood, anhedonia, loss of hope for the future, negative ruminations and intensive thoughts of guilt, marked impairment of focus, concentration and memory. Pre-existing depression exacerbated by drug dependence. Marked deterioration following death of de facto long term partner in Sept 2014 from complex medical illness. Impaired attention/concentration/memory affects goal directed planning, following through…, problem solving and decision-making. …social withdrawal and difficulty with interpersonal interactions.

    The impact of the condition on Mr Brien’s ability to function is recorded as expected to persist for ‘[m]ore than 24 months’.

18. A review of Mr Brien’s medical evidence by Dr Sandra Armstrong (Medical Adviser) at the Health Professional Advisory Unit (HPAU) reported on 8 September 2016 that:

    The medical evidence indicates that Mr Brien has long standing psychiatric issues. However there is no evidence that he has had a psychiatric diagnosis confirmed by a clinical psychologist or psychiatrist, as required by the impairment table guidelines, so his psychiatric conditions cannot be rated as fully diagnosed, treated and stabilised, as of the date of his DSP cancellation.

19. I concur with Dr Armstrong’s view that there is no evidence before me that Mr Brien’s mental health condition has been diagnosed by a clinical psychologist or psychiatrist at the date of cancellation. Both Dr Yeh and Dr Keats provided information about Mr Brien’s depression; however, neither Dr Yeh nor Dr Keats is a clinical psychologist or psychiatrist.

20. I am not satisfied that Mr Brien’s mental health conditions were fully diagnosed, treated and stabilised at the date of cancellation as required by the Impairment Tables. For this reason, Mr Brien’s condition cannot be considered permanent at the date of cancellation and cannot be rated under the Impairment Tables.

    Chronic polysubstance dependence

21. Mr Brien has a long history of chronic polysubstance dependence, and participation in rehabilitation and opiate maintenance programmes.

22. Medical reports by Dr Yeh dated 19 September 2011 and 28 July 2014 stated Mr Brien was on a methadone program. Dr Keats reported on 16 December 2014 that Mr Brien has chronic polysubstance dependence, with episodic intoxication or withdrawal.

23. On 8 September 2016, Dr Armstrong reported a telephone conversation with Dr Keats on 31 August 2016 as follows:

    I phoned Dr Keats & he told me that he hadn’t seen Mr Brien since he completed the 16/12/14 MR for his DSP claim. He would have been seen by other doctors in the drug & alcohol service. As this was 18 months ago, Dr Keats could not remember the form he had completed. He told me that Mr Brien has not had a formal cognitive assessment, but he has difficulties with executive functioning & concentration. Dr Keats could not provide a specific example regarding the impact of Mr Brien’s cognitive difficulties. He felt that Mr Brien’s cognitive difficulties were partly due to his previous drug use & partly due to his depression. Dr Keats did not think they were related to his methadone use. Dr Keats expressed unhappiness at DHS’s treatment of Mr Brien and said that he empathised with his situation.

24. Based on her review of the medical evidence, Dr Armstrong agreed with the SSAT decision that the:

    …correct impairment rating on table 6 [functioning relating to alcohol, drug and other substance use] is 10 points for a moderate impact, as of the date of DSP cancellation, as descriptor (2) is met. Mr Brien is in sustained remission and is receiving opiate replacement therapy, and is able to complete most activities of daily living.

25. The SSAT decision also assessed Mr Brien’s substance use disorder under Table 7, which is used where ‘a person has a permanent condition resulting from functional impairment related to neurological or cognitive function’. The SSAT relied on Dr Keats’ report, which described the impact of Mr Brien’s chronic polysubstance dependence on his ability to function as: ‘cognitive impacts of past drug use affect ability to concentrate, plan and make decisions’.

26. Although I accept Dr Keats’ description that Mr Brien’s prior drug use had a cognitive impact, I note that there is no further medical evidence before the Tribunal, such as a diagnostic test or cognitive function assessment, to corroborate a diagnosis that Mr Brien has a permanent cognitive functional impairment.

27. I also refer to the Impairment Tables Determination at paragraphs 10(5) and (6), which provides:

    Multiple conditions causing a common impairment

    (5)       Where two or more conditions cause a common or combined impairment, a   single rating should be assigned in relation to that common or combined   impairment under a single Table.

    (6)       Where a common or combined impairment resulting from two or more   conditions is assessed in accordance with subsection 10(5), it is   inappropriate to assign a separate impairment rating for each condition as                 this would result in the same impairment being assessed more than once.

28. Based on the medical evidence before me, I am satisfied that Mr Brien’s condition of chronic polysubstance dependence was fully diagnosed, fully treated and fully stabilised at the date of cancellation. In accordance with the information at Table 6 – Functioning related to Alcohol, Drug and Other Substance Use, I find that Mr Brien has a moderate functional impact from alcohol, drugs or other harmful substance use and I assign an impairment rating of ten points. I also find in accordance with paragraph 10(6) of the Impairment Tables Determination that I cannot assign an additional separate impairment rating for this condition under Table 7.

    Other conditions

29. Dr Yeh reported on 19 September 2011 that Mr Brien had hepatitis C, reflux oesophagitis and low back pain, which were medical conditions that are generally well managed and cause minimal or limited impact on his ability to function. There is no further medical evidence before me to find these conditions have any current functional impact on Mr Brien and I assign an impairment rating of 0 points for these conditions.

30. In his report dated 16 December 2014, Dr Keats listed that Mr Brien had long QT syndrome, which was a medical condition that is generally well managed and causes minimal or limited impact on his ability to function. There is no further medical evidence before me to find this condition has any current functional impact on Mr Brien and I assign an impairment rating of 0 points for this condition.

    CONCLUSION

31. For the reasons set out above, I am satisfied that at the date of cancellation Mr Brien did not meet the requirements of s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.

32. As I find that Mr Brien did not qualify for disability support pension at the date of cancellation, it is not necessary for me to consider whether he had a continuing ability to work at the date of cancellation.

33. If Mr Brien’s circumstances have changed since the date of cancellation, he is entitled to submit a new application for disability support pension at any time.

    DECISION

34. The decision of the SSAT dated 27 March 2015 is set aside and in substitution, the Tribunal decides that as at the date of cancellation on 1 December 2014, Mr Brien did not qualify for disability support pension.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member. 

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

Associate

Dated 2 November 2016

Date of hearing	13 October 2016
Solicitors for the Applicant	Department of Human Services
Respondent	No appearance