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

[2021] AATA 2761

Capric and Secretary, Department of Social Services (Social services second review) [2021] AATA 2761 (9 August 2021)

Division:GENERAL DIVISION

File Number(s):      2020/5123

Re:CAPRIC

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Chris Puplick AM, Senior Member

Date:09 August 2021

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - major depressive disorder – panic disorder - unable to work – whether condition fully treated or stabilised - decision 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

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Shi v Migration Agents Registration Authority [2008] HCA 31.

SECONDARY MATERIALS

American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th Edition), Washington DC, 2013 page 123 ff

REASONS FOR DECISION

Chris Puplick AM, Senior Member

09 August 2021

1. Mr Selim Capric (the Applicant) is seeking a review of a decision by the Social Services and Child Support Division of this Tribunal (AAT1) which affirmed a decision by the Secretary, Department of Social Services (the Respondent) through an Authorised Review Officer (ARO) to deny the applicant’s claim for the Disability Support Pension (DSP).

2. The Applicant has made several claims for the DSP as follows:

   ·24 November 2019 – this claim was rejected on 14 December 2019

   ·20 January 2020 – this claim was accompanied by additional medical evidence beyond that submitted in 2019 – however it was rejected on 2 February 2020

   ·10 February 2020 – this claim was rejected on 20 February 2020

   ·25 February 2020 – the Applicant requested a review of the rejection decision and provided further medical evidence in support of this claim

   ·12 May 2020 a Job Capacity Assessor (JCA) assessed the Applicant’s claim and made certain recommendations supporting its rejection

   ·21 May 2020 the application was rejected by an ARO

   ·1 June 2020 the Applicant sought a review of the ARO’s decision in the AAT1

   ·15 June 2020 an assessment by the Centrelink Health Professional Advisory Unit (HAPU) supported rejection of the current claim

   ·21 July 2020 the AAT1 rejected the application

   ·6 August 2020 the Applicant sought a review of the AAT1 decision in this Tribunal

   ·3 August 2021 the matter was heard in this Tribunal using the Microsoft Team platform in accordance with the Tribunal’s COVID19 protocols.

3. In the meantime, the Applicant lodged a further application for the DSP on 29 May 2020 and this was granted. He has been paid DSP since that date. It is regrettable that the Respondent’s Statement of Facts, Issues and Contentions failed to mention this fact which only came to light when the Applicant himself mentioned it at the hearing. Prior knowledge of this would have been of assistance to the Tribunal.

4. It was confirmed by the Respondent that the grant on 29 May 2020 was on the basis of the Applicant being assessed as rating a full 20 points (a “severe” finding) on the relevant Impairment Table and that this rating set aside the other requirements which relate to an inability to work which must be satisfied if the DSP is to be granted (see discussion below).

   The Disability Support Pension Scheme

5. In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act1991 (Cth) (the Act). Section 94 has three distinct limbs:

   94 Qualification for disability support pension

   (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;

   (ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

6. In essence, these requirements or criteria amount to this:

   ·the person has a physical, intellectual or psychiatric condition;

   ·the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria, set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment). Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;

   ·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;

   ·the person has turned 16; and

   ·the person is an eligible citizen or qualifying resident.

7. Failure to meet any one of these requirements is fatal to application claim for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.

8. In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:

   ·fully diagnosed and documented;

   ·fully treated; and

   ·fully stabilised.

9. These important terms are defined in the Impairment Tables[1] as follows:

   [1] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) s 6.

   ...

   Impairment ratings

   (3) An impairment rating can only be assigned to an impairment if:

   (a) the person’s condition causing that impairment is permanent; and

   (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Permanency of conditions

   (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a) the condition 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.

   Fully diagnosed and fully treated

   (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a) whether there is corroborating evidence of the condition; and

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

   (c) whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b) the person has not undertaken reasonable treatment for the condition and:

   (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

10. Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.

11. A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:

    (a) … doing any work independently of a program of support within the next 2 years; and

    (b) … 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.

12. In addition, there is an important temporal qualification which needs to be met.  The provisions of the Social Security Administration Act 1999 (Cth) mean that an application must have a designated “start date” and the assessment of the applicant’s eligibility is determined within a 13-week period from that start date. That period is referred to as the “qualification period.” The start date is the date on which the application is lodged.

13. In this application the qualification period thus runs from 24 November 2019 to 23 February 2020.

14. The importance of the qualification period is that an applicant’s condition or impairment must be found to be fully diagnosed, treated and stabilised during that period. Evidence (medical and otherwise) must relate to the condition of the applicant in the qualifying period. As a result, evidence submitted after the qualifying period may be relied upon but only to the extent that it is indicative of the applicant’s condition during that period.

15. This constrains the Tribunal’s normal remit which requires it to make its decisions on the material before it at the time of its decision making, including taking into account any material which was not before the original decision-maker.[2] That is not the case in assessing DSP claims.

    [2] Shi v Migration Agents Registration Authority [2008] HCA 31.

16. Evidence that an applicant’s condition had altered materially after the qualification period may form the basis of a later DSP application as there is no limit on the number of times such applications may be made, but it cannot be considered in relation to the claim immediately before the Tribunal.[3]

    [3] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].

17. It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.

    Mr Capric’s Impairments

18. The Applicant claims to be suffering from a number of impairments which relate to his mental health condition. Importantly, these conditions present as manifestations of one basic or underlying condition related to depression and anxiety.

19. Ab initio this means that as the Applicant is claiming only a single condition, it would need to meet the 20-point threshold on the relevant Impairment Table[4] to qualify for DSP. This is not a matter where an accumulation of ratings over a variety of conditions meets the threshold, it must be met in one assessment.

    [4] Table 5 (Mental Health Function).

20. The Applicant has been assessed by a number of medical practitioners, some of whom also meet the level of specialist expertise required by the scheme.

21. Dr Navin Patel (a general practitioner) reported on 15 November 2019 that the Applicant had been diagnosed with conditions of anxiety and stress, however the condition was temporary.[5] Two weeks later (26 November 2019) Dr Patel undertook a more comprehensive mental health assessment making a diagnosis of “depression with a mental health disorder not otherwise specified” and he prescribed a regime of antidepressant medication.[6] On 3 March 2020 Dr Patel referred the Applicant to a psychologist for “an opinion and management for the depression”.[7]

    [5] Tribunal documents (T docs) at [99].

    [6] Ibid at [110].

    [7] Ibid at [142].

22. Dr Yaser Mohammed (a mental health clinician and occupational therapist) recommended that the Applicant be referred to a psychiatrist for an assessment to be made as requested by Centrelink related to the validation of the Applicant’s medication regime and his work capacity.[8]

    [8] Ibid at [120].

23. Dr Ranjeesh Singh (a psychiatrist) first saw the Applicant on 16 January 2020 and made a diagnosis of major depression and panic disorder. This was manifest in the Applicant’s presentation of “low mood, intense sadness, poor attention and concentration and death wishes.” He proposed that the Applicant commence treatment by way of counselling and the continuation of antidepressant medication.[9] Several weeks later (10 February 2020) Dr Singh wrote a report confirming his diagnosis of “major depressive disorder” and “anxiety disorder” noting specifically that the Applicant’s condition had “stabilized on his current medication regime”. This was a regime consisting of selective use of Endep, Sodium Valproate and Diazepam.[10] He also found that the Applicant would be unfit for any form of work for a period of two years.[11]

    [9] Ibid at [122].

    [10] At a later stage Epilim, Lexapro and Vitamin B-12 were added to the medication regime.

    [11] T docs at [135].

24. Some three months later (24 March 2020) Dr Singh reviewed the Applicant confirming his previous diagnoses but also noting that the Applicant should engage in some form of psychological counselling as part of any treatment plan.[12] A further two months on (5 May 2020) Dr Singh recorded a diagnosis of “persistent mixed anxiety depression”. He noted that the Applicant’s treatment included undergoing psychological counselling on a regular basis but nevertheless was of the opinion that the Applicant’s condition was “treated and stabilised and not likely to change despite ongoing treatment.”[13]

    [12] Ibid at [142].

    [13] Ibid at [149].

25. On 2 July 2020 Dr Singh saw the Applicant again and reported to Dr Patel that he found the Applicant “relatively stable”. He noted that the Applicant was engaging in “his usual repertoire of activities including physical exercise and relaxation techniques which he says has helped.” In terms of his relationship with his family members he reports that the Applicant’s relationship with them “hasn’t deteriorated further as he does find it somewhat easier to deal with anger & explosive outbursts.”[14]

    [14] Dr Singh letter dated 2 July 2020.

26. Mr Christopher Koletti (a psychologist) saw the Applicant on 7 April 2020. The Applicant had been referred to him for the development of a mental health care plan and had previously seen the Applicant in March for three sessions to treat his depression. Mr Koletti’s opinion was to the effect that while the Applicant’s GP (Dr Patel) suspected that the Applicant suffered from bipolar disorder, he was unable to confirm that diagnosis in the absence of evidence of any of the relevant clinical signs of mania or hypomania. While admitting that his clinical engagement with the Applicant had been only “brief”, Mr Koletti concluded that he has “only seen the depressive side of his disorder” which he opined would require “long term medical, psychiatric and psychological intervention and treatment to stabilise his mental health. Stability would most likely be achieved across a period of time greater than 24 months.”[15] In his evidence to the Tribunal the Applicant indicated that he found his first session with Mr Koletti useful in terms of a discussion of his conditions but did not derive much benefit from the other sessions which appear to have been more activity-based.

    [15] Ibid at [145].

27. Health Professional Advisory Unit (an agency within Centrelink where clinical assessments of applicants are made by a clinical psychologist) made an assessment of the Applicant on 15 June 2020. It concluded that there was no reason to believe that, with appropriate treatment, the Applicant’s condition could not be improved within the forthcoming 24 months. The HPAU contacted the Applicant’s treating clinicians and noted in relation to their discussion with Dr Singh that the Applicant’s symptoms:    

    “…. Continued to relatively improve since then in line with a “moderate” (Dr Singh’s word) enduring functional impact. For example, he commented that [the Applicant] is gradually increasing his independent outings in the community, such as going for jobs, and expanding his hobbies and interest to include such activities as yoga, which in turn will positively impact his well being.”[16]

    [16] Ibid at [171].

28. The HPAU clinician also spoke to Mr Koletti and records:

    “He stated that he anticipated treatment progress to be slow due to Mr Capric being “very depressed” (Mr Koletti’s words)and presenting with psychomotor retardation and difficulties with attention and memory during and across appointments. However, Mr Koletti stated that he is unsure if the cognitive symptomatology is a side effect of the prescribed medication (i.e. if the symptom are secondary to medication effects, these may respond positively to medication changes.”[17]

    [17] Ibid at [172].

29. There is also a suggestion in Mr Koletti’s report that the Applicant had some problems with “substance abuse disorder”[18] although this is not mentioned in any of the other reports. However, Mr Koletti opines that this is no longer an issue although the HPAU report suggests that this was a form of “self-medication”[19] which suggests some degree of support for Mr Koletti’s concerns about the impact of the Applicant’s medications on his mental health.  Dr Singh, in one if his reports also warns of the dangers of one of the Applicant’s medications “given its potential dependence”.[20] The Applicant himself, in evidence, confirmed that he had self-medicated with the use of Valium and Xanax among other prescription drugs but that he now adhered to a properly prescribed regime only.

    [18] Ibid at [145].

    [19] Ibid at [172].

    [20] Dr Singh, letter 2 July 2020

30. It is important to discuss the Applicant’s medication regime because, as described in the HPAU report:

    “Psychopharmaceuticals can take several weeks to reach optimal effect. There is no evidence Mr Capric engaged in any form of specific and direct treatment for the presenting diagnoses prior to November 2019.”[21]

    [21] T docs at [171].

31. The PBS Patient Summary for the Applicant shows that he was first prescribed a psychopharmaceutical, Amitriptyline (a tricyclic antidepressant) on 23 November 2019, the day before he lodged his relevant DSP application. The PBS record shows that this remains one of the Applicant’s ongoing prescriptions.

32. Consideration of the time needed to assess the success or otherwise of such interventions and treatments was one of the factors leading the HPAU to conclude that:

    “… based on the evidence currently available to Centrelink, it appears premature to conclude that at least relative functional improvements could not be achieved with a further two years of continued treatment.”[22]

    [22] Idem.

    Meeting the criteria

33. The Respondent accepts that the Applicant has been properly diagnosed as suffering from major depressive disorder and panic disorder within the qualification period,  based on the opinion of Dr Singh who, as a psychiatrist, meets the specialist requirement test in the Impairment Tables.[23]

    [23] Respondent’s SFIC at [4.30].

34. The Respondent does not accept Dr Patel’s reported diagnosis of bipolar disorder. Dr Patel is not a qualified psychologist or psychiatrist and, in the opinion of Mr Koletti, the absence of presentations of episodes of mania or hypomania do not support this diagnosis in accordance with the definitions laid down in the Diagnostic and Statistical Manual of Mental Disorders.[24]

    [24] American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5^th Edition), Washington DC, 2013 page 123 ff.

35. What is then required is an assessment of whether or not the accepted impairment(s) was fully stabilised and treated during the qualification period.

1. The Secretary’s position is as follows, maintaining that the impairment was not fully stabilised and treated during the qualification period:

   1.there is no medical evidence to indicate that, prior to November 2019 (the date of lodgement of the claim) the Applicant had undertaken any specific or direct treatment for his mental unwellness;

   2.while the Applicant did receive treatment from his General Practitioner and was prescribed a medication regime, he did not undertake and form of psychological counselling or psychiatric treatment;

   3.the Applicant did not see a psychiatrist or psychologist for treatment until January 2020/March 2020 which was after he lodged his application and there is no evidence that the counselling recommended and planned by Dr Singh was ever undertaken;

   4.the HPAU assessment noted that there is no evidence that the Applicant ever attended any community mental health service and was never a psychiatric inpatient before or during the qualification period.

2. While the Tribunal accepts that the Applicant was treated by Dr Patel and that he (the Applicant) believed that this treatment was sufficient to his needs,[25] or as the Applicant writes “I know my person and mental health”.[26] However, the legislation is predicated upon the requirement than an applicant seek and undertake appropriate specialist treatment when it is available.[27] That treatment was available from Dr Singh and Mr Koletti but their recommendations about counselling were not followed by the Applicant.

   [25] AAT1 decision at paragraph [12] – T docs at [5].

   [26] Applicant’s Review Application form – T docs at [2].

   [27] The Tribunal accepts that some specialist treatment may not be within the financial or other reach of an applicant, but that is not the case in this instance.

3. It should also be noted that Dr Patel’s opinion that the Applicant’s condition was fully diagnosed, stabilised and treated fails to advance any support for this by provision of details of any treatment undertaken by the Applicant prior to his lodging his DSP claim.

4. Dr Singh’s report of 5 May 2020 asserts that the Applicant’s condition was fully treated and stabilised and he characterises it in such a way that might well attract 20 points on Table 5 of the Impairment Tables. He was also of the opinion that there was little chance of improvement in the Applicant’s condition. However, the reported conversation between Dr Singh and the HPAU on 15 June 2020 casts this in a somewhat different light with Dr Singh now opining that he had seen a “moderate” improvement in the Applicant’s condition and that his (the Applicant’s) expanding level of independent activities could lead to even further progress and improvement.

5. The Tribunal also notes the matter raised by Mr Koletti in is conversation with HPAU suggesting that the Applicant’s medication regime may be a contributory factor to his symptomatology and that a review and change of his regime may be worth considering.

   CONCLUSIONS

6. There is no doubt that the Applicant suffers from a number of mental health impairments which have had a profound effect on his life and have rendered him unfit for work in his current state of health. This has been recognised by the granting of the DSP as of 29 May 2020.

7. However, what appears from the evidence is that although the Applicant’s various mental health conditions of major depressive order and panic disorder were fully diagnosed during the qualification period, the Applicant’s position at that time was that he had only recently commenced on an appropriate psychopharmacological regime which had not had time to be assessed as to its success and that he had not availed himself of the counselling and other services recommended by various clinicians.

8. Hence, it was appropriate for the ARO to find and the AAT1 to affirm that at during the qualification period the Applicant’s impairments were fully diagnosed but not fully treated and stabilised.

9. In the period from the end of the qualification period (23 February 2020) to the commencement of the DSP payments (29 May 2020) the Applicant took steps to address these shortcomings. He engaged more fully with a variety of treatment options and the impact of his medication regime presented itself for analysis.

10. On this basis the Respondent was in a position to assess that the Applicant’s impairments were fully diagnosed, treated and stabilised. The Respondent was also in a position to address the issues of any continuing inability to work which may also have been different from those which prevailed during the qualification period.

    DECISION

11. The decision under review is affirmed.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member.

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Associate

Dated: 09 August 2021

Date(s) of hearing:	03 August 2021
Applicant:	In person
Solicitors for the Respondent:	Ms Lauren Boyd - Hunt & Hunt Lawyers