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

[2016] AATA 1089

Conroy and Secretary, Department of Social Services (Social services second review) [2016] AATA 1089 (23 December 2016)

Division	GENERAL DIVISION
File Number	2015/6537
Re	Richard Conroy
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	23 December 2016
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Mr Conrad Ermert, Member

SOCIAL SERVICES - cancellation of Disability Support Pension - relevant date - whether person has a physical, intellectual or psychiatric impairment - whether the impairment is of 20 points or more under the Impairment Tables - mental health condition not diagnosed by psychiatrist or with evidence from clinical psychologist - mental health condition not fully diagnosed - unable to assign impairment rating - not qualified for Disability Support Pension - decision affirmed

LEGISLATION

Social Security Act 1991

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

CASES

Joan Elizabeth Freeman v Secretary, Department of Social Security [1988] FCA 294 (18 August 1988)

REASONS FOR DECISION

Mr Conrad Ermert, Member

INTRODUCTION

1. In 2002 Mr Richard Conroy, the Applicant, was diagnosed with Adjustment Order and commenced on medications.  In the ensuing years Mr Conroy received treatment for obsessive-compulsive disorder (OCD) and depression.  On 19 December 2008 Mr Conroy lodged with Centrelink a claim for Disability Support Pension (DSP).  Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent.

2. On 17 April 2015 Centrelink initiated a review of Mr Conroy’s continuing qualification for DSP.  On 21 July 2015 an officer of Centrelink decided that Mr Conroy was no longer qualified for the payment of DSP as his impairment no longer attracted an impairment rating of 20 or more points (the original decision).   On the same day Centrelink cancelled Mr Conroy’s DSP.

3. Mr Conroy sought a review of the decision.  On 17 September 2015 an Authorised Review Officer (ARO) of Centrelink affirmed the original decision.  Mr Conroy sought a review of the ARO decision.  On 23 November 2015 the Social Services and Child Support Division of the Administrative Appeals Tribunal  (Tribunal) (first review) affirmed the ARO decision.

4. Mr Conroy then sought review in the General Division of this Tribunal and that proceeding is the subject of this decision.

   HEARING

5. At the hearing Mr Conroy represented himself and gave evidence by telephone under affirmation.  Mr Cameron Munro, of the Department of Human Services, represented the Respondent, also by telephone.

6. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents) together with the following Supplementary T-Documents:

   ·ST1 – Computer screens – Immigration Advised Movements;

   ·ST2 – Academic results, Academy of Interactive Entertainment;

   ·ST3 – Transcript of results, Academy of Interactive Entertainment;

   ·ST4 – Transcript of results, Academy of Interactive Entertainment;

   ·ST5 – Transcript of results, Academy of Interactive Entertainment; and

   ·ST6 – Extracts from claim for Austudy.

7. For Mr Conroy I took in:

   ·Exhibit A1 – Medical Report of Dr Elaxi Modi dated 20 April 2016;

   ·Exhibit A2 – Case Closure Summary from Chandler CAMHS dated 12 December 2002;

   ·Exhibit A3 – Report of Jamie Rundle, Psychologist, dated 28 April 2003;

   ·Exhibit A4 – Report of Bernadette Martin, Psychologist, dated 24 September 2015;

   ·Exhibit A5 – Report of Bernadette Martin dated 22 October 2015;

   ·Exhibit A6 – notes of Burwood Health Care pages 1 to 43; and

   ·Exhibit A7 – Report of Dr Geoffrey Hogan, Consultant Psychiatrist, dated 8 October 2016.

8. For the Respondent I took in for consideration the Secretary’s Statement of Facts and Contentions dated 19 September 2016.

   LEGISLATION

9. The relevant legislation is contained in the:

   ·Social Security Act 1991 (the Act); and

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

   ISSUES

10. Subsection 94(1) of the Act details the requirements for qualification for DSP as follows:

    (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. The issues I must determine are whether:

    ·Mr Conroy has physical, intellectual or psychiatric impairments; and if so

    ·The impairments attract a rating of at least 20 points under the Impairment Tables; and if so

    ·He has a continuing inability to work.

    EVIDENCE

12. In his evidence Mr Conroy said that no-one had ever told him that he had to see a psychiatrist or clinical psychologist.  He added that he could not afford to see one without Medicare benefits. 

13. He had nothing to add to the reports already submitted.

14. Asked about the diagnosis of his mental health condition Mr Conroy said he was diagnosed by Jamie Rundle, a psychologist.  He has recently seen Dr Hogan, a Consultant Psychiatrist. 

15. In regard to treatment Mr Conroy said that he started treatment under a mental health plan only in 2015.  He found his sessions with Ms Martin were useful for his depression.  He has not participated in self-help or support groups as suggested by Ms Martin, and has only been seeing psychologists. 

16. When asked for his comments regarding the assessments recorded by Dr Modi in his report dated 14 August 2015 (Exhibit A6, page 7 of 43) Mr Conroy said the comments were not reasonable.  He considered that Dr Modi was lazy in completing a referral to a psychologist.

17. Responding to questions regarding his functional impairments in the terms of the descriptors in Table 5 of the Impairment Tables Mr Conroy said:

    ·He could care for himself and live independently;

    ·He cannot travel alone into unfamiliar areas; his wife goes with him;

    ·He agreed that he had travelled to South America in 2009 and also travelled overseas in 2013 to meet his future wife;

    ·He has good relationships with his wife, he regularly sees his mother, brother and sister, however he has neglected his friends and now has only one friend; and

    ·His OCD interferes with his concentration, however he has completed a part-time course of study on the internet; he said it took three months to complete the course, working on it once per week.

    TRIBUNAL CONSIDERATIONS

    Relevant Date

18. The Respondent contends that the Tribunal must consider whether Mr Conroy was qualified for DSP on the date of cancellation and at no other time.  The Respondent cites the decision of the Federal Court in the matter of Joan Elizabeth Freeman v Secretary, Department of Social Security [1988] FCA 294 (18 August 1988).

19. In that decision the Court found:

    12. The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal's consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal's jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s.19.

20. Adopting the reasoning in Freeman I find that the relevant date for the consideration of Mr Conroy’s qualification for DSP is 21 July 2015, that being the date of the cancellation.

    Does Mr Conroy have an Impairment (s.94(1)(a))?

21. The Respondent concedes that Mr Conroy satisfies subsection 94(1)(a) of the Act in that he suffers from OCD / Depression / Adjustment Disorder.

22. There is medical evidence to support this condition.  I accept the concession and find that Mr Conroy has a psychiatric impairment.

    Does the Impairment attract 20 or more Impairment Points (s.94(1)(b))?

23. Subsection 6(3)(a) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the impairment is permanent.  Subsection 6(4) provides that a condition is permanent if the condition:

    (a)      has been fully diagnosed by an appropriately qualified medical practitioner, and

    (b)      has been fully treated, and

    Note: For fully diagnosed and fully treated see subsection 6(5).

    (c)      has been fully stabilised; and

    Note: For fully stabilised see subsection 6(6).

    (d)      is more likely than not, in light of available evidence, to persist for more than 2 years.

24. In considering whether the condition has been fully diagnosed I note the Introduction to Table 5 Mental Health Function requires the diagnosis must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

    I note the following reports as relevant to the diagnosis of the condition:

    ·Dr Robert Beovich, General Practitioner, in his treating doctor’s report dated 20 October 2004 records: “Diagnosis: Obsessive-Compulsive-Disorder; Past treatment: Psychologist; Current Treatment; Aropax Tablets – psychologist; Future Treatment: Continue Psychologist & Aropax”;

    ·Dr A Goh’s report dated 15 November 2004 which records: “obsessive compulsive disorder; clinical details provided in new TDR exactly the same as TDR dated 10/9/04 … Attachment to Medical Report (SA016) – This 19 year old man presented for a medical examination on 7/10/2004 as part of a Disability Support Pension – new claim.  I was the initial medical examiner … He had obsessive compulsive disorder for which he had just commenced medication (Aropax) for in the 2-3 months prior to the initial assessment”;

    ·Dr M Pietryk, General Practitioner, in a report dated 18 May 2006 recorded: “Diagnosis: Adjustment Disorder / Depression / Also Obsessive Compulsive Disorder since ’98; History: has seen psychiatrist before becoming a patient at this clinic (post –overdose attempt) & OCD diagnosed”;

    ·Job Capacity Assessment Report dated 22 August 2006 which records: “Treatment Details:  The client has been taking medication and is trying to get a referral to a psychologist”;

    ·Dr Pietryk’s report dated 18 December 2008 records: “Saw Psychiatrist in 1998 who diagnosed OCD & Depression, Saw Mr John Jakupi 12/12 ago (Psychologist) … No specialist reports on record at this clinic”;

    ·Dr Elaxi Modi, General Practitioner, in a report dated 27 April 2015 recorded: “Diagnosis: Obsessive compulsive disorder / depression, adjustment disorder Confirmed: (marked ‘Yes’ box) Jamie Rundle, Chandler House” ; and

    ·Ms Bernadette Martin, Psychologist, dated 27 August 2015 which recorded that Mr Conroy had attended two appointments, on 20 August 2015 and 27 August 2015, under a referral and Mental Health Care Plan from his GP.

25. Dr Pietryk recorded in his report of 2006 that Mr Conroy has seen a psychiatrist however I note that the comment is recorded in the history section of the report.  In his 2008 report Dr Pietryk notes that he had no specialist reports at his clinic when compiling the report. This suggests to me that the information originated from Mr Conroy.  I find support for this opinion from the reports of Dr Beovich which records treatment only from a psychologist and Dr Goh, the initial medical examiner for a DSP claim which records involvement of neither a psychiatrist nor a psychologist.  In addition, Dr Modi records the diagnosis as being confirmed by Jamie Rundle who is a psychologist.  I note also that none of the psychologists to whom Mr Conroy was referred are qualified as clinical psychologists.

26. As I have no evidence before me that Mr Conroy’s mental health condition has been diagnosed by a psychiatrist or with supporting evidence from a clinical psychologist I find that the condition is not fully diagnosed in the terms of the Impairment Tables.  As a result the condition is not permanent in the terms of the Impairment Tables and I am unable to assign an impairment rating to the condition.

27. As his mental health condition cannot be assigned an impairment rating Mr Conroy’s impairment does not satisfy the requirements of subsection 94(1)(b) of the Act.  As the criteria in subsection 94(1) are cumulative and all must be satisfied there is no need for me to consider whether Mr Conroy has a continuing inability to work.  As a result he does not satisfy all the requirements of subsection 94(1) of the Act and, at the relevant date, he is not qualified for the payment of DSP.  This means that the Tribunal decision on first review was correct and must be affirmed.

    DECISION

28. I affirm the decision under review.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

[sgd]........................................................................

Associate

Dated 23 December 2016

Date of hearing	17 November 2016
Date final submissions received	29 November 2016
Applicant	In person
Advocate for the Respondent	Mr Cameron Munro, Department of Human Services