Cheng and Secretary, Department of Social Services (Social services second review)
[2015] AATA 846
•3 November 2011
Cheng and Secretary, Department of Social Services (Social services second review) [2015] AATA 846 (3 November 2011)
Division
GENERAL DIVISION
File Number
2015/1801
Re
Edmund Cheng
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 3 November 2015 Place Sydney The decision under review is affirmed.
..........................[sgd]..............................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
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
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Professor R McCallum AO, Member
3 November 2015
INTRODUCTION
Mr Edmund Cheng, the Applicant, is aged in his early thirties. He is currently in receipt of NewStart allowance.
Mr Cheng has had a major depressive illness for approximately 15 years.
It will suffice to note that on 13 November 2005, Mr Cheng was abducted, threatened and robbed. On 10 October 2006, Ms Giarrantano who is a clinical psychologist prepared a report for the Victims Compensation Tribunal. Ms Giarrantano reported that Mr Cheng had a major depressive illness and chronic Post Traumatic Stress Disorder which caused moderate difficulty in social and occupational functioning. Ms Giarrantano recommended that Mr Cheng continue with his medication regime and attend counselling with a clinical psychologist experienced in the treatment of depression and anxiety disorders.
On 23 November 2009, Dr Gutkin who is a consultant psychiatrist and psychotherapist, reported that Mr Cheng had alcohol dependence with an underlying anxiety and depressive disorder with panic attacks and narcissistic personality disorder. Dr Gutkin described the condition of Mr Cheng as severe and recommended two years of intensive psychotherapy as an outpatient. Dr Gutkin reported that Mr Cheng was admitted to South Pacific Private on 2 November 2007, was still under his care but received most of his treatment from Ms McDonald who is a clinical psychologist.
On 11 August 2010, Dr David who is Mr Cheng's general practitioner, reported that Mr Cheng had anxiety and depression. Dr David reported the current symptoms as lethargy, malaise, sadness and anxious feelings, and treatment as Cymbalta, Seroquel and psychiatric and psychological assessment.
The application for DSP
On 15 September 2014, Mr Cheng lodged a claim for Disability Support Pension (DSP) in which Mr Cheng reported that he had anxiety, depression and asthma.
On 18 September 2014, Dr David reported that Mr Cheng had anxiety and depression and alcohol dependence.
On 28 November 2014, a Centrelink Job Capacity Assessment Report was completed by a registered psychologist. The assessor reported that the anxiety depression was fully diagnosed and treated, and the alcohol dependence was fully diagnosed. The assessor held that Mr Cheng's baseline work capacity was 8-14 hours per week and this was expected to improve to 23-29 hours within two years with intervention.
Centrelink refused Mr Cheng's application for DSP and he sought review from an authorised review officer (ARO).
On 4 February 2015, the ARO set aside the original decision and decided that the Anxiety and Depression of Mr Cheng was fully diagnosed, treated and stabilised and assigned 10 points under Table 5 which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). Table 5 is titled "Mental function".
Mr Cheng sought review from the former Social Security Appeals Tribunal (SSAT). On 31 March 2015, the SSAT affirmed the decision of the ARO.
Review by this Tribunal
Mr Cheng has applied to this Tribunal for review of the decision of the SSAT.
On 1 June 2015, Mr Cheng lodged with this Tribunal, a medical report dated 31 March 2015 from Associate-Professor Greenwood who is his current treating psychiatrist. Associate-Professor Greenwood reported that Mr Cheng had Major Depression which had been treated with medication and psychotherapy and described the current symptoms as being anxiety, hopelessness, depressed mood, insomnia, and agitation, loss of motivation, loss of concentration and loss of energy.
Associate-Professor Greenwood reported that Mr Cheng's condition was expected to persist for more than 24 months and the effect of the condition on his ability to function was uncertain.
In a further report dated 1 July 2015, Associate-Professor Greenwood writes as follows.
Edmund Cheng is ... currently enrolled in a degree course in Film Studies at the University of New South Wales. He has been attempting this course for 9 years now without yet completing it.
He suffers long standing Major Depression and a severe Anxiety Disorder for which he has been receiving treatment from a variety of sources including his GP, Dr Gallo and Dr Tim David, Psychologists including Eva Ferro and Dana Adam and a psychiatrist, Dr Brian Gutkin. He has been admitted to South Pacific Hospital in 2007 both for treatment of alcohol abuse and his depression and anxiety.
He has been referred to my care since March 2015. I have given him medication to assist with his depression and anxiety. At present this is Cymbalta 60mg daily and Tegretol 100 mg daily.
This has been beneficial in improving his symptoms although his anxiety is resistant to a medication treatment. The symptoms for which he is receiving treatment include mood depression, loss of self-esteem, anxiety with panic and especially performance anxiety, insomnia with severe initial symptoms, alcohol abuse of 4 standard drinks daily, ruminating negative thinking and loss of energy, motivation and concentration.
THE LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The criteria for DSP are set forth in section 94 of the SS Act. In Mr Cheng's circumstances subsection 94(1) relevantly provides:
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;
...
Put simply, I must be satisfied, first, that Mr Cheng has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Mr Cheng has a continuing inability to work.
The 13 week qualifying period
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Cheng's eligibility for DSP in the 13 week period commencing on the day on which Mr Cheng applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Cheng qualified for DSP between 15 September 2014 and 15 December 2014.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at 34:
In the Tribunal's consideration as to whether a condition has been stabilized and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).
This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the claim period may still be relevant, but only in so far as they are referable to the applicant's condition during the claim period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
[33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the claim period is not directly relevant to the Tribunal's decision.
Therefore, in determining the eligibility of Mr Cheng to receive DSP I am confined to examining Mr Cheng's impairments during the thirteen week claim period which is from 15 September 2014 to 15 December 2014.
THE CONCESSIONS OF THE RESPONDENT
Paragraphs 4.6 and 4.11 of the Respondent's Statement of Facts and Contentions are as follows.
4.6 The Respondent does not dispute that the Applicant suffered from physical impairments which impacted on his ability to function for the period in question. Therefore, it is accepted that the Applicant satisfies paragraph 94(1 )(a) of the Act.
4.11 The Respondent accepts the Applicant's Major Depression and Anxiety Disorder as fully diagnosed, treated and stabilised during the period in question and contends that the combined impact on the Applicant's ability to function is consistent with a maximum of 10 points under Table 5.
THE ISSUES BEFORE THE TRIBUNAL
Given the Respondent's concessions, Mr Cheng complies with subsection 94(1)(a) of the SS Act as he has impairments. Therefore, the first issue which I am required to decide is whether any of the impairments of Mr Cheng have been fully diagnosed, treated and stabilised during the claim period. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the Impairment Tables.
The second issue which I am required to decide is whether Mr Cheng has a continuing inability to work pursuant to subsection 94(1)(c)(i) and attendant provisions of the SS Act including the participation requirements set out in section 94A of the SS Act. It will not be necessary to decide this issue if I find that Mr Cheng's impairments do not attain an assessment of 20 points under the Impairment Tables.
The Impairment Tables
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Cheng are worth 20 points under the Impairment Tables. This requires a few words of explanation.
In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.
Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.
It is also important to appreciate that under sub-section 10(5), if two or more conditions cause a common or combined impairment, then a single rating should be assigned in relation to that common or combined impairment under a single Table. However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, 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.
THE EVIDENCE OF MR CHENG
Mr Cheng attended the hearing and gave sworn evidence. I found him to be a truthful witness.
Mr Cheng said that he has suffered from depression since he was 15 years of age. He described the 2005 kidnapping and robbery. He said that this crime which was perpetrated on him, left him shaking, quite distrustful of others, with paranoia, and fear for his safety.
Mr Cheng also described his admission to South Pacific Private in 2007 as his depression had been compounded through drinking alcohol.
He was asked if he still drank alcohol. Mr Cheng said that he had gone to Alcoholics Anonymous, but that he had stopped going more than two years ago as there were no persons of his age with whom he could relate.
Mr Cheng said that he drinks five small cans of beer on most nights, but not on every night.
Mr Cheng said he completed high school in 2003, and completed a TAFE diploma in 2004. In semester two of 2006, Mr Cheng enrolled in a Bachelor of Arts degree, majoring in Film Studies at the University of New South Wales and is still completing this degree.
Mr Cheng explained that in the first semester of 2015, he obtained a pass in one subject and is awaiting the mark for the second subject. He said he spent nine hours a week at the University.
In semester two of 2015, Mr Cheng enrolled in two more subjects, but recently he discontinued one subject. Before the discontinuance, Mr Cheng spent six hours a week at the University, but now he spends three hours a week there.
In cross-examination, Mr Cheng recalled that in one subject in semester two of 2014 he obtained a distinction grade. He said that he finds assessment tasks very stressful.
Mr Cheng said that he travels to the University by bus. He said that he does have difficulties as he sometimes believes he is being watched. Mr Cheng said that he travels by himself on public transport to visit doctors and Centrelink.
Mr Cheng said that he can self care, dressing, showering and shaving. His Mother does the cooking, the washing and pays the bills. Mr Cheng said that he occasionally goes out on his own to have a meal. He usually goes to the same places with which he is familiar.
Mr Cheng said that he doesn't really have friends. However, everyday he spends time online, from three to five hours. He said that he didn't think this was healthy.
Mr Cheng said that he does have difficulty concentrating. He can do things, but he gets no satisfaction.
Mr Cheng said that he does have asthma which affects his breathing and he has panic attacks. He said that he can still do things.
Mr Cheng said that his drinking interferes with his patterns of sleep.
In cross-examination, Mr Cheng recounted his work history which has mainly been in the fast food industry. He worked for McDonalds for seven years, but in 2008 McDonalds said they no longer needed his services. Mr Cheng said that he delivered Pizzas for three years but then stopped doing this job.
Mr Cheng said that he has had a full driving licence for seven or eight years. He said that driving was something which he was good at. However, Mr Cheng said that he could only drive for an hour and that longer journeys were too difficult for him.
CONSIDERATION
The first issue which I am required to decide is whether any of the impairments of Mr Cheng have been fully diagnosed, treated and stabilised during the claim period. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the Impairment Tables.
Depression and anxiety disorder
From the detailed medical evidence I find that Mr Cheng's depression and anxiety disorder was fully diagnosed, treated and stabilised during the claim period.
Having regard to all of the evidence, I accept that this impairment does affect Mr Cheng's activities. The issue which I am required to decide is whether the depression and anxiety disorder has a moderate affect or has a severe effect on Mr Cheng. If moderate, the assessment would be for 10 points under Table 5 of the Impairment Tables, if severe, the assessment would be for 20 points under Table 5. I shall assess Mr Cheng's depression pursuant to the six descriptors in Table 5.
(a) Self-care and independent living
From the evidence of Mr cheng, he does self-care, dressing, etc., however, his Mother looks after him. At most, his difficulties are moderate.
(b) Social/recreational activities and travel
From the evidence, Mr Cheng frequently travels alone on public transport, and he does engage in recreational activities online. I find that these limitations have a moderate effect on Mr Cheng.
(c) interpersonal relationships
The examples for severe are,
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
From the evidence I find that Mr Cheng's limited social contacts do have a severe effect on his activities. He has few, if any, friends and very limited face to face contact with people.
(d) Concentration and task completion
Mr Cheng was able to concentrate throughout the hearing which lasted one hour. He answered questions and made comments with clarity. Given the completion of his subjects at the University of New South Wales in 2014 and in 2015, I find that at most his limitations in concentrating have a moderate affect upon Mr Cheng.
(e) behaviour, planning and decision-making
Again, having regard to his oral evidence and to the medical evidence, at best any limitations on behaviour, planning and decision-making are moderate. He is successfully completing subjects at tertiary level which obviously requires some decision-making.
(f) Work/training capacity
From the evidence, Mr Cheng does have difficulties in undertaking work. However, he is studying at tertiary level. He also has capacity to engage online. At most, I find that his limitations are moderate.
Assessment under Table 5
I have found that five of the six descriptors in Table 5 have a moderate effect on Mr Cheng. I further find that descriptor (c) Interpersonal relationships has a severe affect on Mr Cheng. To attain a rating of 20 points under Table 5, four of the six descriptors must be found to have severe impacts. As only one descriptor falls into this category, Mr Cheng does not attain a 20 point rating. As I have found that five of the six descriptors have a moderate impact on Mr Cheng, I assess his depression and anxiety disorder at 10 points under Table 5 of the Impairment Tables.
Post Traumatic Stress Disorder
Paragraph 4.10 of the Respondent's statement of facts and contentions is as follows.
The Respondent accepts the Applicant's Post Traumatic Stress Disorder (PTSD) and Narcissistic Personality Disorder as fully diagnosed. However, the Respondent contends that there is insufficient evidence to determine whether these mental health conditions were fully treated and stabilised or have resolved. In particular, the Respondent notes that the Applicant's PTSD was diagnosed by Ms Giarrantano (clinical psychologist) in 2006 and Ms Adam (psychologist) in 2013 but was never reported by the Applicant's GP or the psychiatrists who the Applicant consulted between 2009 and 2015.
I accept that in her report of 13 February 2013, consultant psychologist Ms Dana Adam wrote as follows.
Edmund seems to suffer from complex Posttraumatic Stress Disorder with severe symptoms of Anxiety and Depression, further complicated by substance abuse. He is in need of long term therapy.
I further accept that no later medical reports comment on Mr Cheng's Post Traumatic Stress Disorder.
I infer from the later medical evidence that the Post Traumatic Stress Disorder most probably has been subsumed in Mr Cheng's depression and anxiety disorder. I find that there is insufficient evidence for me to conclude that Mr Cheng's Post Traumatic Stress Disorder was fully treated and stabilised during the claim period.
Alcohol dependence
I accept that Mr Cheng has suffered from alcohol dependence. As I wrote in the introduction, consultant psychiatrist Dr Gutkin reported that Mr Cheng had alcohol dependence. However, there is little medical evidence on this dependence in the past two years. In his application for DSP dated 15 September 2014, Mr Cheng did not mention his alcohol dependence. In his report dated 18 September 2014, Dr David reported that Mr Cheng's alcohol dependence was well managed.
In his evidence, Mr Cheng said that he was still drinking alcohol, and that he had stopped going to Alcoholics Anonymous meetings more than two years ago.
From the evidence before me, I find that Mr Cheng's alcohol dependence was not fully treated and stabilised during the claim period and cannot be assessed under Table 6 of the Impairment Tables which is titled "Functioning related to Alcohol, Drug and Other Substance Use".
Asthma
From his evidence, I accept that Mr Cheng suffers from asthma and that it affects his breathing. However, Mr Cheng has provided no medical evidence about this condition. Accordingly, I find that Mr Cheng's asthma was not fully diagnosed, treated and stabilised during the claim period.
CONCLUSION
I have found that Mr Cheng's depression and anxiety disorder is assessable at 10 points under Table 5 of the Impairment Tables. I have found that none of Mr Cheng's other impairments are assessable under the Impairment Tables.
It is therefore unnecessary for me to decide whether Mr Cheng has a continuing inability to work pursuant to subsection 94(1)(c)(i) and attendant provisions of the SS Act including the participation requirements set out in section 94A of the SS Act. Accordingly, I find that Mr Cheng does not qualify for DSP as his impairments are not assessed at 20 points under the Impairment Tables.
DECISION
The decision under review that Mr Cheng does not qualify for disability support pension is affirmed.
I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member .............................[sgd]...........................................
Associate
Dated 3 November 2015
Date of hearing 14 October 2015 Applicant In person Solicitors for the Respondent Department of Human Services
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