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

[2019] AATA 2704

Callaghan and Secretary, Department of Social Services (Social services second review) [2019] AATA 2704 (16 August 2019)

Division:GENERAL DIVISION

File Number:           2018/6706

Re:Thomas Callaghan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:16 August 2019

Place:Sydney

The decision under review is set aside, and in substitution the Tribunal decides that the Applicant qualifies for Disability Support Pension pursuant to section 94 of the Social Security Act 1991 (Cth).

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during qualification period – whether condition fully diagnosed, treated, stabilised – whether impairment attracts 20 points or more under the Impairment Tables – where impairment is severe and attracts 20 points under a single table - decision set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth) – s 94

Social Security (Administration) Act 1999 (Cth)

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

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security Guide

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

16 August 2019

1. This is an application by Mr Thomas Callaghan (the Applicant) for review of a decision of the Social Security and Child Support Division of this Tribunal (‘AAT1’) made on 11 October 2018 to affirm the decision of an Authorised Review Officer (‘ARO’) of Centrelink dated 25 July 2018. The ARO affirmed the original decision made by an employee of Centrelink on 20 March 2018 rejecting the Applicant’s claim for Disability Support Pension (‘DSP’) on the grounds that the Applicant did not meet the criteria under section 94 of the Social Security Act 1991 (Cth) (‘the Act’), namely that he did not have an impairment rating of 20 points or more under the Impairment Tables.

2. The Tribunal’s decision is informed by the following:

   (a)the Act;

   (b)the Social Security (Administration) Act:

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

   (d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the POS determination’); and

   (e)the policy contained in the Guide to the Social Security law (‘the Guide’).

   BACKGROUND

3. At the time of his application for DSP and for the relevant period thereafter, the Applicant lived at Margaret River in Western Australia. The Applicant gave evidence that in years prior to his DSP application he had been working away at sea on ships, but stopped working in early 2016 due to his psychological conditions. While living in Western Australia he saw a number of different doctors, including a Dr Christopher Thexton who appears to have first diagnosed the Applicant with depression in 2013.

4. Since the AAT1 hearing the Applicant has moved to New South Wales, where he received further treatment from Dr Anthony O’Halloran, general practitioner, and Dr Padmini Howpage, psychiatrist.

5. On 31 January 2018 the Applicant applied to Centrelink for DSP, listing his conditions as being a viral illness (Ross River Virus) and depression.

6. The Applicant was unrepresented at the hearing. The Tribunal notes that the Applicant was assisted in getting to the Tribunal by a case worker, because of his anxiety about going out in public.

   THE ISSUES

7. The issue to be determined is whether as at 31 January 2018 or within 13 weeks thereafter (‘the qualification period’) the Applicant met the requirements of section 94(1) of the Act, in particular whether:

   (a)the Applicant suffered from a physical, intellectual or psychiatric impairment; and

   (b)whether the Applicant’s impairments were of 20 points or more under the impairment tables; and

   (c)whether the Applicant had a continuing inability to work.

   DID THE APPLICANT SUFFER FROM A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD?

8. The qualification period has been considered by the Tribunal on a number of occasions and it is well expressed in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 and Fanning and Secretary, Department of Social Services [2014] AATA 447 that it is not open to the Tribunal to use any evidence of progression of a medical condition to grant an application for DSP because of those changed circumstances. Accordingly the medical evidence can only be considered to the extent that it is relevant to the Applicant’s condition during the qualification period.

9. In the decision under review, the AAT1l found that the Applicant did suffer a relevant impairment. For the purposes of these proceedings, the Respondent concedes that during the qualification period the Applicant suffered physical impairments due to his medical conditions and therefore satisfied the requirements of section 94(1)(a) at the date of claim and therefore within the qualification period. It is clear from the medical evidence presented both at the AAT1 hearing and before this Tribunal that this is the case.

   WERE THE APPLICANT’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?

10. For the purposes of this decision, the Applicant concedes that his viral illness was temporary and has been resolved since his initial application for DSP. It is therefore only necessary to deal with the Applicant’s mental health condition

11. Accordingly the Tribunal must consider the requirements of section 94(1)(b) in determining whether the Applicant has a rating of 20 points or more under the Impairment Tables.

12. Paragraph 6(3) of the Impairment Tables states that a condition can only be assigned an impairment rating if the condition is permanent. Paragraph 6(4) states that a condition is permanent if:

    (a)It has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

13. In this regard, the Respondent accepts that the Applicant’s mental health condition was fully diagnosed but contends that it was not fully treated and stabilised within the qualification period. It was submitted that doctors treating the Applicant during the qualification period recommended further treatment and changes to medication, his condition cannot be considered to be fully treated and stabilised.

14. Having reviewed all of the available medical evidence, the Tribunal finds that the Applicant’s mental illness was in fact fully treated and stabilised within the qualification period.

15. There was a clear and agreed diagnosis of the Applicant’s condition, he was on a treatment regime and his condition was stabilised. The fact that there were slight changes in medication does not mean that his condition was not fully diagnosed, treated and stabilised. Many medical and psychological conditions cannot be considered to be static or unchanging however permanent they may be. Symptoms may wax and wane, new treatments may become available which affect long-term symptoms and the effluxion of time may also have an effect. Moreover it is well accepted that in cases of mental illness, medications can overtime lose their effectiveness and may need further adjustment.

16. In the case of the Applicant I have particularly taken into account the evidence from Dr Padmini Howpage, the Applicant’s treating psychiatrist, in her report dated 30 April 2019. Dr Howpage in her report agrees with the opinion of Dr Christopher Thexton, whose evidence was before the AAT1. Dr Howpage states:

    Thomas was first diagnosed with Major Depression on the 20.5.13 by his GP at the time Doctor Christopher Thexton of Margaret River Surgery…… He was then fully diagnosed with Major Depression on 1.6.16 by Dr Thexton with the condition of fully treated, stabilised and seeing no further room for improvement in following years, I concur with this statement to be accurate.

17. Dr Howpage concludes her report with a prognosis as follows:

    His condition and symptoms of Major depression 20 points + deficiency [sic] severely impacts his ability to function and advise Thomas is not capable for work in any capacity now and into the next 2 years due to his long persisting yet stabilised and treated condition.

18. Although not a psychiatrist for the purposes of the Impairment Tables, Dr Anthony O’Halloran, the Applicant’s GP, also outlines the Applicant’s treatment and concludes with the following statement:

    I am confirming full diagnosis of Major Depression of severe type 20 points + for Thomas been fully treated and stabilised seeing no room for further improvement or work capacity in the next 2 years and agree with previous full diagnosis of Major Depression and condition from Dr Christopher Thexton dated 1/6/16 after consulting.

19. The Respondent contended that I should prefer the evidence of a DSP Medical Assessment Recommendation dated 16 July 2018 which made a determination that the Applicant’s condition was fully diagnosed, but not fully treated and stabilised as further reasonable treatment had been recommended – however, in light of all of the evidence considered above, this was clearly not the preferable course and the Tribunal declines to follow it.

20. The Tribunal agrees with the assessment of Dr Howpage, supported by Dr O’Halloran. It is quite clear from the evidence presented that the Applicant has severe difficulties in relation to self-care and independent living. He has had great difficulty in maintaining social relationships and has spent most of his time indoors and alone. It appears that he rarely left his accommodation in Western Australia except to walk his dog which he found very difficult. He has had suicidal thoughts on numerous occasions. Although he represented himself at the Tribunal hearing, this was obviously very stressful for him and the stress it was causing him was clearly evident. He was concerned about any strangers being in the room. He was unable to get to the Tribunal independently and relied upon his case worker to drop him off. The Applicant is clearly unable to work or to undergo any significant training, particularly if this involves interaction with strangers.

21. The evidence given by the Applicant was consistent with the evidence given to the AAT1. Despite fairly rigorous cross-examination, which was again clearly stressful to the Applicant (although handled sensitively by the Respondent’s representative), the Applicant’s evidence as to the severe impact of his condition was not shaken.

22. The Tribunal rates the Applicant’s impairment as being severe and assigns it 20 points under Table 5, the Impairment Table for Mental Health Function.

    DID THE APPLICANT HAVE A CONTINUING INABILITY FOR WORK?

23. The Tribunal notes that the Applicant did attend a program of support, although as he has been assigned more than 20 points under a single impairment table, this is not relevant in accordance with sections 94(2)(aa) and 94(3B) of the Act. He therefore satisfies the ‘continuing inability for work’ requirement under section 94(1)(c) of the Act.

    DECISION

24. The Tribunal is satisfied that at the date of his original application on 31 January 2018, the Applicant satisfied the criteria for the granting of DSP.

25. Accordingly the decision under review is set aside, and in substitution the Tribunal decides that the Applicant qualifies for Disability Support Pension pursuant to section 94 of the Social Security Act 1991 (Cth).

I certify that the preceding 25 (twenty – five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 16 August 2019

Date of hearing:	17 June 2019
Applicant:	In person
Advocate for the Respondent:	Mr S Agnello
Solicitors for the Respondent:	Department of Human Services