Clarke and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1124

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1124

ADMINISTRATIVE APPEALS TRIBUNAL        N°V2006/343

GENERAL  ADMINISTRATIVE  DIVISION
Re		JONATHAN CLARKE

Applicant

And

SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:Dr R. McRae, Member

Date:11 December 2006

Place:Melbourne

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) R. McRae

Member

SOCIAL SECURITY ‑ disability support pension ‑ bipolar disorder ‑ whether treatment is stabilised

Social Security Act 1991 s 94(1)

Social Security (Administration) Act 1999 schedule 2

REASONS FOR DECISION

11 December 2006  Dr R. McRae, Member

1.      Mr Jonathan Clarke (the Applicant) seeks a review of a decision by the Social Security Appeals Tribunal (the SSAT) dated 11 April 2006.  The SSAT affirmed a Centrelink decision dated 20 June 2005 to reject the Applicant’s claim for disability support pension (DSP) because he did not medically qualify for that pension at the time of his application or in the 13 weeks thereafter (the relevant period).  Centrelink acts as service delivery agent for the Secretary to the Department of Employment and Workplace Relations (the Respondent).

2.      The issue before the Tribunal is whether the Applicant is entitled to DSP at the date of application for DSP according to the requirements of the Social Security Act 1991 (the Act).  The Tribunal’s decision is that the Applicant is not entitled to DSP.  

3.      The hearing was conducted by telephone. 

BACKGROUND

4.      The Applicant is a twenty-seven year old man who was diagnosed with bipolar disorder in 1993.  He is receiving newstart allowance, and regularly lodges medical certificates supporting his inability to seek employment.  He has worked as a housepainter, but has a poor employment history. 

5.      The Applicant lodged a claim for DSP on 20 April 2005.  Centrelink had the Applicant examined by Advanced Personnel Management on 10 June 2005.  A psychologist assessed the bipolar disorder as temporary, recommending further psychiatric treatment to aid better management of the condition and symptoms. 

6.      Centrelink rejected the claim for the DSP on 20 June 2005 because the Applicant’s condition had not been fully investigated, treated and stabilised.  Therefore s 94 of the Act could not be satisfied.  A Centrelink Authorised Review Officer reviewed the decision and affirmed it on 27 January 2006.  The Applicant then sought review of the decision by the SSAT.

APPLICANT’S SUBMISSION

7.      The Applicant was self-represented.  He has received informal legal advice from an unnamed commercial lawyer who is his acquaintance.  He relied on previously submitted reports which had been considered by the SSAT.  He submitted that his bipolar disorder was stabilised because he understands how he is feeling and is accepting treatment.  He submitted that he alters his oral medication treatments (including breaks from medication), guided by his local general medical practitioner, with a view to determining the best one or the best combination for him with the least side-effects.  He still has other things to try.  He has not considered counselling for assistance in the management of his bipolar disorder. 

8.      Under cross-examination, the Applicant agreed his treating general medical practitioner (who had completed the DSP treating doctor’s report) had been treating him for five days prior to completing the report on 20 April 2005.  He agreed that at the time of the application he was taking no treatment, as stated in the application form.  He agreed that a treatment plan had been in place one day prior to his lodging the DSP application.  He agreed that the report contained no reference to a treatment plan.  He agreed that he was trialling different combinations of oral medication to determine the best combination for him with least side-effects.  He accepted that a letter dated 6 April 2006 from his treating general medical practitioner contained the sentence He has restarted an antidepressant, Lovan, in the last month.  He agreed he has not consulted a psychiatrist, even when this was suggested by his treating general medical practitioner. 

LEGISLATION

9. When deciding whether a person qualifies for DSP, the decision maker needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within a further 13 weeks.

10. Section 94(1) of the Act provides that DSP is payable if:

94(1)…

(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;

…

11.     Paragraph 4 of the Introduction to Schedule 1B of the Act provides that:

A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised…

12.     Paragraph 5 of the Introduction to Schedule 1B of the Act provides that:

The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years…

FINDINGS

13.     There is no dispute regarding the diagnosis of bipolar disorder.  The Applicant therefore has a psychiatric impairment.

14.     The Applicant’s testimony indicated his bipolar disorder had not been fully treated and stabilised during the relevant period.  There is no evidence that the Applicant consulted a psychiatrist.  There is no evidence that psychiatric assessment was not locally available.  There is no evidence of specialist medical evaluation to assess the prognosis for further improvement within the next two years.  There is no evidence that the Applicant’s bipolar disorder had been investigated, treated and stabilised during the relevant period as required by the Act before any rating is contemplated at the time of the application for DSP.

15.     During the relevant period, the Applicant’s bipolar disorder was being actively treated, with the Applicant searching for a satisfactory medical treatment combination.  This continues to be the case.  The requirement that the bipolar disorder has been treated and stabilised has not been met.  Consequently, an impairment rating cannot be allocated for the bipolar disorder. 

16.     No new diagnosis, investigation or treatment was presented in evidence. 

CONCLUSION

17. The Applicant satisfies s 94(1)(a) of the Act.

18.     However, the Applicant does not satisfy s 94(1)(b) of the Act. 

19.     Therefore, there is no requirement to consider s 94(1)(c) of the Act.

20.     The Tribunal concludes that during the relevant period the Applicant did not satisfy the requirements necessary for DSP. 

DECISION

21.     Accordingly, the decision of the Respondent to reject the claim for DSP was the correct and preferable decision and the Tribunal affirms that decision.

I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision of:

Dr.R. McRae, Member

(sgd):     . Dianne Eva

Clerk

Date of Hearing:  11 December 2006

Date of Decision:  11 December 2006
Advocate for the Applicant:        Self‑represented

Advocate for the Respondent:    Ms K Paul, Centrelink Legal Services Branch