Clausen and Secretary, Department of Social Services (Social services second review)
[2017] AATA 737
•19 May 2017
Clausen and Secretary, Department of Social Services (Social services second review) [2017] AATA 737 (19 May 2017)
Division
GENERAL DIVISION
File Number
2016/3512
Re
Adrian Clausen
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D. J. Morris, Member
Date 19 May 2017 Place Perth The reviewable decision is set aside, and, in substitution therefor, the Tribunal decides that Mr Clausen is eligible for indefinite portability of his Disability Support Pension from the date of this decision.
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D. J. Morris, Member
CATCHWORDS
SOCIAL SERVICES – Disability Support Pension (DSP) – request for unlimited portability – whether person has severe impairment – assessment of ability to work – decision set aside – applicant fulfils requirements for determination of unlimited portability
LEGISLATION
Social Security Act 1991, ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c), 1218AAA
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
D. J. Morris, Member
19 May 2017
BACKGROUND
The Applicant, Mr Adrian Clausen, was first granted Disability Support Pension (DSP) in 1999 on the basis that he had Chronic Fatigue Syndrome (CFS).
On 5 January 2015 he made a request for unlimited portability of his DSP under section 1218AAA of the Social Security Act 1991 (the Act).
In his request, Mr Clausen provided a statement relating to his health and listed eight medical conditions: Spinal injury; CFS; Gunshot wound; Oesophageal reflux; Tinnitus; Nerve damage; Neck injury; and Post Traumatic Stress Disorder (PTSD), (T11, pg 45).
On 20 January 2015, Dr Rhoanna McNeill, of the South Metropolitan Health Service – Mental Health, wrote a medical letter to Dr Ian McWhirter of Canning Medical Centre. Dr McWhirter was the Applicant’s treating general practitioner at that time, (T12, pp 46-48).
Dr McNeill gave some history of the Applicant. She reported he had been married for four years but divorced some 17 years before 2015. She said he had not been employed since the age of 28.
On 20 January 2015, Dr McWhirter provided Centrelink with a medical report. He said that Mr Clausen had been a patient at his practice since 2008 and his patient since 2013. Dr McWhirter stated that the condition with the most impact on the Applicant was L5/S1 post disc bulge and listed current symptoms as “right leg numbness and left foot numbness; lower back pain.” Dr McWhirter then listed CFS as another condition and stated that “no treatment [was] available.” He said that the current symptoms were that Mr Clausen was “tired all the time”, and had poor endurance. Dr McWhirter considered that both the spinal condition and the CFS condition were expected to persist for more than 24 months and the effect on Mr Clausen’s ability to function is expected to remain unchanged, (T13, pp 49-59).
Dr McWhirter listed other medical conditions which he categorised under the part of the form for conditions that are generally well managed and that cause minimal or limited impact on ability to function. They were a gunshot wound to the right leg, which occurred in 1990; GORD reflux, with a diagnosis date of 2000; Tinnitus with a diagnosis date of 1999 and PTSD.
On 20 May 2015 Mr Clausen wrote to Centrelink concerning Dr McNeill and Dr McWhirter. He made certain allegations against them which are not relevant to this application for review. He asked that Centrelink no longer “consult” either Dr McNeill or Dr McWhirter and instead contact Dr Samantha Maisey or Dr Ann-Sofi Pokrant at Canning Medical Practice. He said that he had only consulted with Dr McWhirter on “very few occasions”, (T17, pg 75).
On 16 July 2015, a general practitioner (whose name was redacted) from the Health Professional Advisory Unit of Centrelink provided an opinion in relation to Mr Clausen’s work capacity and referred to a Job Capacity Assessment (JCA) report of 8 June 2015 which apparently had recommended that the Applicant be assessed to have 20 impairment points under Table 1 – Functions requiring Physical Exertion and Stamina and a current and future capacity to work of between 0 and 7 hours per week. After considering this JCA report, the HPAU’s considered medical opinion was that Mr Clausen does have CFS and that it was fully diagnosed, fully treated and fully stabilised and attracted 20 points, (T19, pg 86).
The HPAU’s assessor went on to express a medical opinion that “a current work capacity of 8-14 hours per week is accurate. This is not likely to improve in the future, even with intervention, due to the chronicity of his conditions”, (T19, pg 87).
On 5 August 2015 an officer of Centrelink advised Mr Clausen that his request for an indefinite portability determination was rejected because, although the decision-maker allocated 20 impairment points on the basis of the recent medical review, the Secretary’s delegate found that he did not meet the “no future work capacity” criteria because he would be able to undertake “suitable light employment on a part-time basis of 8-14 hours per week”, (T21, pg 106).
Mr Clausen sought a review of the original decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision. On 25 November 2015 the ARO affirmed the original decision.
The Applicant then sought a review by the Social Services and Child Support Division of the Tribunal (AAT1). AAT1 conducted a hearing on 10 June 2016 and affirmed the original decision, (T2, pp 5-9).
Mr Clausen sought a review by the General Division of the Tribunal. The hearing was held on 30 March 2017. The Applicant represented himself and was cross-examined by Ms Sharon Sangha, representing the Respondent, the Secretary of the Department of Social Services.
The Respondent tendered documents under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The Applicant lodged a large number of documents with the Tribunal prior to the hearing but, although noting them, I did not admit them into evidence as I considered they were not relevant to this application for review.
THE LAW
The Act sets out certain requirements for a determination that a person has unlimited portability for his or her DSP. Relevantly, section 1218AAA(1) states:
1) The Secretary may make a written determination that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person's impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
At the commencement of the hearing, the Respondent submitted that, in the case of Mr Clausen’s application, the requirements of section 1218AAA(1)(a)(b) and (c) were met, but contended that, as Mr Clausen had a work capacity of between 8 and 14 hours, he does not meet the requirements of section 1218AAA(1)(d).
The Respondent contended that Mr Clausen lived independently and travelled periodically abroad, that he did his own shopping and consequently, on balance, he did have a work capacity of between 8 and 14 hours a week.
Consideration
In the medical evidence before me from Dr McWhirter, it was clear to me that Mr Clausen has a number of medical conditions. It is not necessary for me to go into each of them in detail in this review other than to find, on considering all the medical evidence before it, that the Tribunal affirms the conclusion of the original decision-maker that Mr Clausen should be assigned 20 impairment points for his CFS condition under Table 1 – Functions requiring Physical Exertion and Stamina of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). I therefore find that Mr Clausen satisfies the requirements of section 1218AAA(1)(b) of the Act.
The Applicant’s evidence during the hearing was consistently of constant fatigue. He sleeps most of the day and although he has a computer at home he cannot use it for long because it makes him feel ill. In terms of computer-generated documents he prepared in relation to his application, he said that he had to prepare them in multiple sessions, in “ten minute bites” because of his inability to focus and concentrate. When he flies, he said he sedates himself and, when abroad, he gave evidence that he sleeps in his accommodation and cannot go on excursions, though he did go on some bus trips and would visit local bars. He says he feels unwell “all the time”.
Mr Clausen’s evidence to the hearing was consistent with what it appears he said to AAT1. His evidence was consistent with a finding that he suffers from significant health challenges from his CFS and I also note that an effective major barrier for him is his significant mental health condition.
The JCA report before the Tribunal stated that the assessment took place on 21 May 2015 and was submitted on 28 July 2015. It is apparent to the Tribunal that there was a JCA report dated 8 June 2015. An International Services officer within the Department then referred this 8 June 2015 document to a medical practitioner in the Health Professional Advisory Unit (HPAU) on 6 July 2015 (T19 pp 86 and 87). In the HPAU, the author wrote:
At a job capacity assessment (JCA) on 8th June 2015, Mr. Clausen was assessed to have 20 impairment points in Table 1. Functions requiring Physical Exertion and Stamina, and a current and future capacity to work of 0-7 hours per week. An International Services (CIS) officer has referred Mr. Clausen’s case to the HPAU for file review of the impairment rating points and capacity to work assessed at that JCA.
The JCA report dated 8 June 2015 referred to by the HPAU was not contained in the section 37 documents submitted by the Respondent to the Tribunal. The JCA report which was provided was at T20 (pp 92 et seq) and was dated 28 July 2015. That later JCA states that the assessment was conducted face to face with Mr Clausen on 21 May 2015.
It is apparent that the face to face JCA assessment report initially recommended that Mr Clausen be allocated 20 impairment points and his current and future work capacity was recommended to be between zero and seven hours a week. Then, on reviewing this 8 June 2015 report, the author of the HPAU said, in relation to recommending the allocation of impairment points (T19, p 87):
It is my medical opinion that when considering all the currently available evidence to the department, that Mr. Clausen does have the FDTS medical condition of CFS, and that he has a severe, 20 point, impairment under Table 1. Functions requiring Physical Exertion and Stamina, reaching criteria 1.(a)(iv) and 1.(b).
The HPAU then went on to consider the Applicant’s capacity to work and states, (T19, pg 87):
Mr. Clausen has a number of co-existing medical conditions to his CFS. These are listed in his current JCA dated 8th June 2015 and include and include low back and neck pain, depression, post-traumatic stress disorder, right leg and left hand injuries. Many of these conditions, while permanent, do not meet the criteria to be considered FDTS as defined by the department or otherwise attract no impairment ratings individually. Mr. Clausen has documented difficulty with poor concentration and endurance and would be suitable for sedentary or desk-based clerical work for short periods of time. It is my medical opinion that a current capacity to work of 8-14 hours per week is accurate. This is not likely to improve in the future, even with intervention, due to the chronicity of his conditions.
[original emphasis]
The JCA report of 28 July 2015 stated, in regard to Mr Clausen’s CFS condition, (T20, pg 92):
This condition is considered fully treated and stabilised as Mr Clausen has engaged in reasonable treatment, with significant improvement/change in his condition considered unlikely. This condition is chronic and longstanding in nature with no evidence of significant change/improvement since it’s [sic] onset. The current MR notes there is no treatment available for this condition, which is expected to “remain unchanged” for “more than 5 years” and the letter from Dr Watson dated 19/09/00 notes “I think the prognosis for him for any worthwhile recovery in the next two years is extremely poor.
The Tribunal also had before it the medical letter of Dr David Watson, physician, which detailed Mr Clausen’s condition. Although it is dated in the year 2000, there was no evidence before the Tribunal of any functional improvement in this condition since that time.
Given the divergence between the recommendation about Mr Clausen’s future capacity to work from the face to face assessment on 21 May 2015 and then in the file assessment by the HPAU just short of two months later, the Tribunal considered it was important to obtain a copy of the 8 June 2015 JCA report in order to properly review the original decision made about Mr Clausen’s application for unlimited portability of his DSP.
Inquiries were made of the Respondent after the hearing, and a lawyer representing the Secretary provided a response on 4 May 2017 which said, in part:
I am instructed that the JCA report (dated 8 June 2015) to which the HPAU opinion refers, is the document appearing at T20. While the report was finally “submitted” on 28 July 2015 following consideration of the HPAU opinion, the HPAU referral was on the basis of an earlier “submission” of the report on 8 June 2015. This is the report to which the HPAU doctor refers. We are instructed that a report in its draft stage on 8 June 2015 is not available.
The Tribunal regards this response as somewhat unsatisfactory. The later JCA report is very clearly not the same document that is referred to in the HPAU as the “current JCA dated 8th June 2015” because it states (T20, p 105):
This report was returned to the Assessor for amendment on 15/07/15 following a referral to the HPAU by the referrer. The report has been updated to reflect advice received from the HPAU.
In the 28 July 2015 JCA report, the assessor recommended, (T20, pg 105):
Mr Clausen is assessed as having a very limited work capacity and no employment related referral is recommended. On the basis of currently available information provided by Mr Clausen there is insufficient corroborating evidence to confirm that Mr Clausen had no future work capacity independently of an ongoing program of support and that this level is likely to remain for at least five years. Reassessment of this may be appropriate should additional medical evidence be provided in the future (e.g. verification of mental health conditions from a Psychiatrist/Clinical Psychologist).
Pursuant to the powers provided in section 33 of the AAT Act, the Tribunal made inquiries of the Royal Australian and New Zealand College of Psychiatrists which verified that Dr McNeill was elected a Fellow of that College in 2017 and commenced psychiatric training in 2005. The Tribunal was unable to ascertain when Dr McNeill qualified as a psychiatrist and thus when she moved into the class of persons required for a corroborative diagnosis of a mental health condition.
The Tribunal notes that the Applicant “forbade” the Department from contacting Dr McNeill but that does not preclude the Tribunal from considering her medical reports. She makes significant comments about Mr Clausen’s mental health conditions which, because of the lack of certitude about when she qualified, I do not believe I can safely take into account in terms of concluding this may be assessed as a permanent condition under the Determination, but I also note that Mr Clausen’s mental health condition is said by appropriately qualified medical professionals to be linked to his CFS. In this regard the Tribunal notes the relevant conclusion of Dr Sandra Thomson, psychiatrist at Health Services Australia in 1999.
Dr Thomson discussed the link between CFS and depression, noting Mr Clausen was “particularly adamant” he did not suffer from depressive symptoms; she nevertheless concluded (T4, pg 26) that “there does appear to have been some premorbid charactereological issues that may be accounting for his current presentation”.
In answer to the specific question: If unable to do their usual work, is there any type of work you think would be suitable, Dr Thomson replied as follows:
No, at present because of both his physical difficulties and concentration difficulties I do not think that Mr Clausen would be suitable for any type of work.
[emphasis added]
The Tribunal is faced with the position of having before it a medical opinion based on a file assessment of documents, including a document which the Respondent states is apparently not available to the Tribunal but which it is evident from the HPAU Opinion was prepared by the Job Capacity Assessor and which made recommendations on the Applicant’s work capacity following a face to face job capacity assessment. Taking into account that it was the later and amended JCA on which the original decision-maker decided Mr Clausen did not meet the requirements of section 1218AAA(1)(d) of the Act, the task of deciding whether that decision was both correct in law and the preferable decision where a discretion is to be exercised (as in this case) is made more difficult without this document.
The HPAU stated (T19, p 87):
It is important to note that while there is no evidence that Mr. Clausen requires assistance of another person for activities of daily living (although he lives alone, and as such there is no available support person to provide assistance), there is repeated evidence on file that Mr Clausen would have an inability to perform even very light gardening or housework.
[emphasis added]
The HPAU noted that the Applicant had expressly prohibited the Department from contacting the author of the Applicant’s medical report, Dr McWhirter, and that prohibition, in the Opinion author’s view, prevents any further detailed clarification of the severity of the impacts of the CFS on Mr Clausen. The Tribunal considers this unfortunate, because by taking this stance the Applicant was impeding a complete assessment of his range of not insignificant health challenges.
In this case, the function of the Tribunal is to assess the available medical evidence before it to conclude whether or not the decision that the Applicant has the capacity to work between 8 and 14 hours a week was the correct and preferable decision.
On the weight of the evidence of Dr McWhirter about the functional effect of Mr Clausen’s CFS (which is supported by the recommendation of the Job Capacity Assessor and the opinion of the HPAU), he has a severe impairment, as I have already found. I also take into account the evidence at the hearing and the considered psychiatric evidence of Dr McNeill and Dr Manon.
Mr Clausen has a range of long-standing medical conditions. It would seem to me that his mental health status, which is long-standing on the analysis of Dr McNeill and Dr Manon, combined with his CFS, significantly compromises his functional abilities. I note that the Respondent contended that the Applicant’s mental health condition is not fully diagnosed, fully treated and fully stabilised, but I do believe that, on balance, it does have a significant effect on his overall capacity for future work.
The first JCA of 8 June 2015 apparently concluded on the evidence that the Applicant’s work capacity was between zero and seven hours a week and only changed this after the HPAU Opinion. The Tribunal must bear in mind that section 1218AAA(1)(d) relates to the Secretary being satisfied to exercise a discretion, consistent with the provisions of the Act. There is, therefore, a lacuna in the chain of material which led to the delegate’s decision because of the absence of the 8 June 2015 JCA, and the Tribunal cannot be satisfied, given the Respondent’s failure to produce this document, that the discretion was correctly exercised in terms of assessing the Applicant’s work capacity.
Taking into account the beneficial nature of social security law, the Tribunal therefore concludes that the recommendation in the initial face to face assessment in relation to Mr Clausen’s future capacity to work (which not only included an assessment of the medical documentation but also a discussion with the Applicant) is to be preferred over the HPAU Opinion. In coming to this conclusion, the Tribunal does not reflect on the expertise of the author of the HPAU Opinion but in this merits review, the Respondent has not provided a document which was before him or her and which the doctor used to form considered conclusions. So I therefore find that the preferable conclusion to draw, after taking all the medical evidence into account about the effects of his medical condition on his functional impairment, is that Mr Clausen has, as initially recommended by the Job Capacity Assessor, a work capacity of between zero and seven hours a week of work.
The consequence is that the Tribunal finds that Mr Clausen satisfied not only section 1218AAA(1)(a), (b) and (c), but he also satisfies section 1218AA(1)(d) of the Act, and should be granted a determination that the portability of his DSP is for an unlimited period.
DECISION
The reviewable decision is set aside, and, in substitution therefor, the Tribunal decides that the Applicant satisfied the requirement for a determination of unlimited portability of his DSP from the date of this decision.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of D.J. Morris, Member
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Administrative Assistant
Dated: 19 May 2017
Date of hearing: 31 March 2017 Applicant: In person Representative for the
Respondent:Ms S Sangha Solicitors for the Respondent:
Mills Oakley Lawyers
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