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

[2017] AATA 1004

Carey and Secretary, Department of Social Services (Social services second review) [2017] AATA 1004 (28 June 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4292

Re:Christopher Carey

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr D. J. Morris, Member

Date:28 June 2017

Place:Perth

The reviewable decision is affirmed.

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Mr D. J. Morris, Member

Catchwords

SOCIAL SERVICES – Disability Support Pension (DSP) – whether diagnosed condition fully treated and fully stabilised – lack of evidence of regular treatment – not therefore able to be assigned impairment points for diagnosed condition – decision affirmed.

Legislation

Acts Interpretation Act 1901, s 36

Administrative Appeals Tribunal Act 1975, s 37

Social Security Act 1991, ss 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(3B), (94)(5)

Social Security (Administration) Act 1999, cl 4 of Schedule 2

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

REASONS FOR DECISION

Mr D. J. Morris, Member

28 June 2017

BACKGROUND

1. The Applicant, Mr Christopher Carey, applied for Disability Support Pension (DSP) on 26 August 2015 (lodged on 27 August 2015) on the basis of certain mental health conditions.

2. On 5 September 2015 a delegate of the Respondent, the Secretary of the Department of Social Services (the Department) rejected Mr Carey’s application on the basis that he was not a resident of Australia when he made his claim. 

3. Mr Carey sought a review by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  On 19 October 2015 the ARO accepted that Mr Carey had returned to Australia on 12 August 2015 with the intention of residing in Australia permanently and that he was currently a resident of Australia (T35, p 166).  The ARO told Mr Carey that his application for DSP should be reconsidered.

4. On 11 November 2015 the Department rejected Mr Carey’s application for unlimited portability of his DSP.

5. On 11 November 2015 Mr Carey underwent a Job Capacity Assessment (JCA).  The JCA recommended that he be assigned 20 impairment points under Table 5 – Mental Health Function of the Impairment Tables Definition (infra), and that his baseline capacity to work was between 8 and 14 hours a week, which would remain the same within two years with intervention, (T37, pp 170-175).

6. On 10 February 2016 a review was conducted in the Department’s Health Professional Advisory Unit (HPAU) by Dr Christopher Minogue, an occupational physician.  Dr Minogue’s opinion was that Mr Carey’s mental health condition, while diagnosed, was not in his view fully treated and stabilised because of his frequent and prolonged absences from Australia since 2007 which Dr Minogue felt are likely to have resulted in a discontinuity of treatment, (T38, pp 176-178).

7. On 11 February 2016 a Disability Medical Assessment was conducted by a clinical psychologist engaged by the Department, Dr Lisa Clarke.  Dr Clarke disagreed with the conclusions of the JCA and considered that Mr Carey’s mental health conditions were not fully treated or stabilised as he had not seen a psychiatrist for approximately four years and had not had psychotherapy for at least six months.

8. On 4 March 2016 Mr Carey’s claim for DSP was rejected by the Department.  Mr Carey sought a review of this decision by an ARO.  The ARO found that Mr Carey’s mental health condition was permanent and should be assigned 10 impairment points under Table 5 of the Determination. On the evidence, the ARO could not be satisfied that the functional impact on Mr Carey of his medical conditions was so severe that 20 impairment points should be assigned.  As Mr Carey did not have a ‘severe’ impairment rating; he did not meet the program of support requirements and did not have a continuing inability to work.  Accordingly, he was not qualified for DSP.

9. Mr Carey sought a review of this decision by the Social Services and Child Support Division of the Tribunal (AAT1).  On 28 July 2016 AAT1 found that it could not assign impairment points for Mr Carey’s mental health conditions on the basis that they could not be considered fully treated and fully stabilised at the date of his claim.

10. Mr Carey sought a review by the General Division of the Tribunal.  The hearing was held on 30 March 2017.  Mr Carey represented himself and was assisted by his mother, Mrs Carey, who also gave evidence in support of her son’s application.  Mr Carey was cross-examined by the Respondent’s representative, Ms Sharon Sangha.

11. Two medical witnesses gave concurrent evidence at the hearing, Mr Zyron Krupenia, clinical psychologist, was called by Mr Carey and Dr Christopher Minogue, physician, was called by the Respondent.

12. The Respondent tendered documents under section 37 of the Administrative Appeals Tribunal Act 1975.

13. At the conclusion of the hearing, the Tribunal issued a direction for Mr Carey to provide evidence of consultations with psychiatrists or clinical psychologists, including any treatment, for the period from 2012 to 2015 and for the Respondent to make any submissions in response.  Mr Carey subsequently provided the Tribunal with a letter from Professor David Castle, Professor of Psychiatry at the University of Melbourne, dated 4 April 2017, and the Respondent made a written submission in reply dated 27 April 2017.

14. The Tribunal took these documents into account in its consideration.

    THE LAW

    Qualification for DSP under the Act

15. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

16. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied.  A person is qualified for DSP 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.

17. The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination).  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

18. The applicable provision relating to Mr Carey’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.

19. So, therefore, for a person to be qualified for DSP, the person must have an impairment within the meaning of the Act.  Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables.  Thirdly, the person must have a continuing inability to work.

20. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, which means the impairment is assessed to be a ‘severe’ impairment under section 94(3B).  If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    What is the relevant period for considering the claim?

21. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

22. So, was Mr Carey qualified for DSP on the date he lodged his claim, 27 August 2015? If he was not qualified on that date, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act and item 6 in the table in section 36(1) of the Acts Interpretation Act 1901, did he become qualified on a day in the thirteen week period after the day he lodged his claim, a period which commenced on 28 August 2015 and ended on 27 November 2015?  This is called the claim period.

    Did Mr Carey have impairment?

23. The first step in considering whether a person is qualified for DSP is whether the person satisfied section 94(1)(a) of the Act in the claim period.  In his submissions, the Respondent contended that Mr Carey suffered from mental health conditions, including depression, anxiety and obsessive compulsory disorder (OCD).

24. The Tribunal had before it a significant amount of documentation relating to Mr Carey’s medical history.  As mentioned above, the relevant Impairment Tables for DSP changed from 1 January 2012.  Table 5 – Mental Health Function has as a mandatory requirement in relation to assessing a condition under that table that there must be a diagnosis by a psychiatrist or, lacking that, a diagnosis by a treating medical practitioner with a corroborative diagnosis by a clinical psychiatrist.

25. On 25 January 2012 (T14 p 68) Professor David Castle completed a medical report for an earlier claim for DSP by Mr Carey.  Professor Castle is a specialist consultant psychiatrist.  He reported a confirmed diagnosis of “depression/anxiety” with a date of onset of 1999.  He reported symptoms including a longstanding low mood, lack of motivation, poor concentration, fatigue and preoccupation with the past.  He noted the prescribed medication and said that a functional effect on Mr Carey was difficulty in completing tasks.

26. The Tribunal also had before it later corroborative diagnoses confirming a range of longstanding mental health conditions including OCD, body dysmorphic disorder, depression and anxiety.

27. The Tribunal is satisfied that Mr Carey has impairment, namely depression, OCD and anxiety and that he satisfied section 94(1)(a) of the Act in the claim period, and the Tribunal so finds.

    What is the correct assignment of impairment points?

28. As mentioned above, the face to face JCA conducted on 11 December 2015 (T37, p 170) recommended that 20 impairment points be assigned under Table 5 for Mr Carey’s mental health conditions.  The Tribunal notes that this assignment was consistent with the conclusions of an earlier JCA dated 30 April 2015 (T24, p 108) which was considering a claim for unlimited portability.

29. The ARO disagreed with the JCA.  The ARO recorded that, before he came to his decision, he had a discussion with Mr Carey.  He recorded the nature of the conversation (T44 p 193):

    I rang and spoke with Mr Carey by phone.  I talked about the decision to reject his claim for DSP, which he lodged in August 2015.  I explained the terms diagnosed, treated and stabilised.  Mr Carey said he was seeing a psychiatrist – Dr Hagan until 2011.  He retired then.  He has not seen a psychiatrist since.  He was also seeing Dr Castle up to the same time, but this also ceased in 2011.  Dr Castle was only a temporary measure.  He had been seeing Dr Hagan since he was a child.

    Mr Carey said he has not seen other psychiatrists because of cost.  Medicare does not cover this.  Also his frequent overseas travel makes it difficult.

    Mr Carey said he was been seeing Zyron Krupenia over many years.  He said he saw him 4 times in August 2015 and on occasions over the previous few years.  Mr Carey said he has not seen Mr Kupenia since August 2015, because the appointments available under Medicare had been fully used.

30. The ARO, with Mr Carey’s permission, subsequently spoke to Mr Krupenia.  He recorded, in relation to that discussion (T44 p 194):

    Mr Krupenia said he had been treating Mr Carey for approximately 20 years.  He suffers from a range of Occupational [sic] Compulsive Disorders and anxiety disorders.  Mr Krupenia said Mr Carey exhibits high degree social anxiety.  It was also mentioned that Mr Carey has a body dysmorphic disorder.  Mr Carey has seen a psychiatrist in the past.

    Mr Krupenia has not seen Mr Carey since August 2015.  He saw him twice at that time.  Previously he had not seen Mr Carey for two years.  I clarified this point and confirmed that Mr Krupenia had seen Mr Carey twice in the past two years.

    Mr Krupenia said he was not sure that ongoing appointments would serve any purpose or improve Mr Carey’s situation.  Mr Carey has had supported psychotherapy, CBT and anxiety management in the past.  He said there was no reason to think further psychotherapy would help.  Mr Krupenia said medication stabilises the symptoms.

    I asked about the medication.  I noted Mr Carey had not seen a psychiatrist for many years and would a review of his medication be worthwhile.  Mr Krupenia said a review would not hurt, but the current medication was adequate.  Currently this is prescribed by his GP.  If they did try different medication there was some chance it would make the situation worse in the same way it may work.

    Mr Krupenia felt Mr Carey’s situation was stable and his condition would not improve with additional treatment.

31. The ARO also considered the HPAY report done by Dr Minogue dated 10 February 2016 (T38, p177).  Dr Minogue’s opinion said, in part:

    The DSP impairment tables require there be corroborating evidence of the functional impacts of a medical condition; ‘Self-report of symptoms alone is insufficient.’  The customer’s frequent prolonged absences from Australia since October 2007, long before the grant of DSP was made, are likely to have resulted in a discontinuity of treatment and medical/psychologist follow-up.  It is unclear whether treating doctors/psychologists have been aware of the customer’s peripatetic lifestyle.  The nature of his activities during his overseas sojourns had not clearly been elucidated.

    …..

    The assessor noted in the December JCAR that “The client reported inability to use public transport due to paranoia and inability to be in close proximity to people.”  This statement appears inconsistent with customer’s history of habitual air travel to, and presumably various forms of travel within, South East Asia, including very likely some activities in busy and crowded cities and towns.  When questioned by a review officer in October 2015 he appears reluctant to provide details about his activities in Asia.  In my opinion his self-reported level of mental health functioning and related impacts on activities of daily living are insufficiently corroborated by medical evidence.

    I do not consider that a 20-point impairment rating under Table 5 is reliable and, indeed the available objective lifestyle evidence makes this rating less likely.  This assumes that the mental health condition is fully treated and stabilised, which I consider questionable given the customer’s denial of permission for case discussion with his clinical psychologist.

32. Dr Clarke, clinical psychologist, undertook a Disability Medical Assessment on 11 February 2016 (T41, p 184).  In answer to the question: Does your report differ from the Job Capacity Assessment report provided with this referral? Dr Clarke provided the following written remarks:

    “Yes.

    Reason: As previously explained, it is my opinion that the client’s mental health conditions are not fully treated or stabilised.  The RANZCP Clinical Practice Guidelines for Mood Disorders suggests a number of other options in cases where the depression is treatment-resistant (as it appears to be in this client’s case).  These options include seeking a second opinion (from a psychiatrist), and changing or augmenting medication. …”

    Mr Krupenia’s evidence

33. Mr Krupenia gave evidence that he had seen Mr Carey on two occasions in August 2015 face to face, but had had a number of telephone conversations with him in 2016.  He said he had not seen Mr Carey from August 2015 to October 2016.

34. Mr Krupenia said his initial contact with Mr Carey was in January 1997.  He saw him in 2004 and 2007 and there were “a good few years when I didn’t see him.”

35. Mr Krupenia said that there had been more than one attempt at changing Mr Carey’s medication.  He believed Mr Carey had been adequately assessed by Dr Hagan, Dr Castle, psychologists in hospitals and other doctors who have tried antidepressant medication.

36. When asked about Mr Carey’s frequent travel overseas, Mr Krupenia said he was aware of Mr Carey’s travel but not its frequency.  He was also aware of his domestic travel.  Mr Krupenia’s opinion was that this travel was a reflection of his disorder – he could not settle and was constantly restless.  He said the travel was probably a way for Mr Carey to feel safe and less anxious.

37. When asked whether he thought the frequent travel would have an effect on the continuity of treatment of Mr Carey, Mr Krupenia said the felt this was not necessarily the case because was not under psychiatric treatment, that psychiatrists do not see patients weekly when they are stable and Mr Carey, in his view, just needed “review six monthly”.

    Dr Minogue’s evidence

38. Dr Minogue said he felt Mr Carey’s treatment had been disrupted.  He said that the behavioural aspects of Mr Carey’s mental health condition were more likely to come to the fore with more frequent consultation.  Dr Minogue stated his opinion that he did not think four of the five Descriptors in the ‘severe’ impairment part of Table 5 of the Impairment Tables would be met by Mr Carey.  When asked if he concurred with Dr Clarke’s assessment, Dr Minogue said he did to the extent that it appeared Mr Carey had not seen a psychiatrist since 2012.  He said, in cross-examination, that he had not come to any professional conclusion about whether Mr Carey needed anti-psychotic medication, but he did conclude that he needs psychiatric review.

    Mr Carey’s evidence

39. Mr Carey said he lived with his mother in a suburb in Perth, and had done so for more than 20 years.  He agreed that he travelled to visit an uncle in Melbourne three or four times a year on average, staying sometimes for up to a month.

40. He agreed that he travelled overseas to Thailand regularly to see his father, who lives there.  He agreed that he had travelled to Malaysia in 2016, the Philippines in 2015, New Zealand in 2011 and Singapore, most recently in January 2017.

41. Mr Carey told the Tribunal that on these trips he accompanied his father who frequently travelled in his work.  He said he did not undertake much sightseeing and had little social interaction but had made some friends in Bangkok because he found it “easier to form friendships there”.

42. He said he travelled using his father’s frequent flyer points and his father often booked his international travel but sometimes he booked his own domestic travel.

43. Mr Carey told the Tribunal he had put into practice psychotherapy and had tried “lots of treatment over the years”.  Mrs Carey urged the Tribunal to look at the totality of her son’s case.  She said Dr Minogue did not have the specialist qualifications required to make assessments under Table 5 and Dr Clarke should not in her view make psychiatric assessments.

    Consideration

44. There is no doubt to me that Mr Carey has a range of significant mental health conditions, and has had them for many years.  There is evidence of certain behavioural challenges back to his boyhood in the medical reports before the Tribunal.

45. The Respondent concentrated arguments on Mr Carey’s overseas travel as evidence that he did not meet a 20 point assignment of points under Table 5.  The Tribunal agrees that it does affect meeting Descriptor (b) which reads:

    “Social/recreational activities and travel;

    Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues.”

1. But the Tribunal also notes Mr Carey’s evidence that he did not travel in a ‘tourism’ sense, but rather to see his father or to accompany him.  He did not go, for example, on excursions or do the usual things people do when travelling for recreation.  The Tribunal also notes Mr Krupenia’s considered opinion that he felt this travel, which Dr Minogue rightly characterised as ‘peripatetic’ was partly a consequence of his disorder, which had, as a quality, ‘restlessness.’

2. The Tribunal is inclined to accept Mr Kupenia’s evidence in that regard.

3. During the hearing there was discussion about the regularity of Mr Carey’s consultation with psychiatric specialists.  After the hearing, Mr Carey obtained a letter from Professor Castle dated 4 April 2017.  Noting that the first two sentences are somewhat contradictory, the letter read as follows:

   I am preparing this letter at the request of Chris Carey who I first saw on the 11/12/2006.  Chris had ongoing care with me and I did consult with him between 2012 and 2015.  I assessed him as having severe body dysmorphic disorder as well as obsessive compulsive disorder both of which are very incapacitating for him.  Every time I did see him he was struggling very much with his symptoms despite reasonably high doses of antidepressant medications as well as psychological input.

   My belief is that he is severely disabled by his symptomology and that he could not currently be expected to work.  I confirm that I last saw him in February 2017 before his return to his parents in Perth.  I can provide further information should you so wish.

4. The nub of the issue for Mr Carey is whether the Tribunal can find his mental health condition ‘permanent’ in terms of assigning impairment points under the Determination.

5. The difficulty for Mr Carey is that he appears not to have consulted regularly with a psychiatrist since his long-standing psychiatrist, Dr Hagan, retired in 2011.  On the evidence, his consultations with Professor Castle have been sporadic, presumably when he has been staying with his uncle in Melbourne.

6. The Tribunal appreciates that there is a significant cost to see psychiatrists in private practice and takes this into account when considering this matter.  However, in terms of Mr Carey seeing his treating clinical psychologist, Mr Krupenia, on Mr Krupenia’s evidence he saw Mr Carey twice either just before or at the beginning of the claim period (i.e. in August 2015) and it appears he may not have seen him between 2007 and 2015.  In any event there was no evidence that Mr Carey saw Mr Krupenia (or another clinical psychologist) on a regular basis.

7. In regard to Dr Clarke’s report, the Tribunal does not find her reference to the Clinical Practice Guidelines of the Royal Australian and New Zealand College of Psychiatrists tremendously useful in this consideration because they are simply re-stating part of the content of those Guidelines.  Without reflecting on her professional expertise, and taking into account that hers was simply an analysis on the papers, the Tribunal notes that Dr Clarke is not a psychiatrist and she can only offer a corroborative opinion within the field of her expertise.

8. The Tribunal also notes what Mr Carey said about the speciality of Dr Minogue.  However, in this regard the Tribunal does not interpret Dr Minogue as proffering an opinion on Mr Carey’s mental health conditions, his report concentrated on whether there had been a continuity of treatment. The Tribunal does not believe that the fact that Dr Minogue is not a psychiatrist affects his ability to express a professional view on that particular question as a clinician, and notes in his evidence he expressly did not adopt a view on the medication prescribed for Mr Carey’s conditions.

9. Section 6(4) of the Determination requires that, in considering whether a person is qualified for DSP, consideration must be given in assessing the functional impact of a condition, as to what treatment has occurred in relation to the condition and whether treatment is continuing or planned in the next two years.

10. Section 6(6) of the Determination requires also, in deciding whether a condition is fully stabilised, the person must have undertaken reasonable treatment and either it is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next 2 years, or the person has not undertaken such reasonable treatment and no significant functional improvement is expected in the next two years or there is a medical or other compelling reason not to undertake the treatment.

11. Importantly, in terms of deciding what “reasonable treatment” is, section 6(7) (d) states that it is treatment that “is regularly undertaken or performed.”  The Tribunal must take into account this stipulation.

12. On the basis of the lack of evidence before the Tribunal of regular consultation with a psychiatrist or psychologist before the claim period, the Tribunal finds that it is not able to assign impairment points for Mr Carey’s mental health conditions.

13. The Tribunal also notes that the Determination makes clear that impairments must be assessed for their work-related functional impact.  DSP is not a benefit payable to a person because the person has disability; it is a benefit payable because a person has a disability that means that person has a continuing inability to work.

14. Even if the Tribunal were to find that Mr Carey’s mental health condition was fully diagnosed, fully treated and fully stabilised in the claim period, which it has not, it would seem to me that on his own evidence the functional impact on him would point more towards the allocation of 10 impairment points under Table 5, not the 20 points required under one table for an assessment that a person has a ‘severe’ impairment in terms of section 94(1)(b) of the Act.  However, the Tribunal makes no finding on this question, and notes the strongly expressed views of Mr Krupenia in his letter dated 17 October 2016 which could be taken into account in a fresh claim for DSP.

15. The Tribunal knows this outcome will disappoint Mr Carey.  As previously said, the Tribunal has no doubt that Mr Carey must deal daily with a significant range of mental health challenges, as must his mother who gave evidence about what she does to care for him.  As mentioned above, the evidence of his more recent consultations with Mr Krupenia, and with Professor Castles, may be relevant to a fresh claim for DSP, but they are not relevant to the claim he lodged on 27 August 2015.  The outcome is that Mr Carey was not qualified in the claim period for DSP.

    DECISION

16. The decision is affirmed.

I certify that the preceding 61 (sixty one) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member

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Administrative Assistant

Dated 28 June 2017

Date of hearing	30 March 2017
Applicant	In person
Representative for the Respondent	Ms S Sangha
Solicitors for the Respondent	Mills Oakley Lawyers