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

[2020] AATA 4415

Coren and Secretary, Department of Social Services (Social services second review) [2020] AATA 4415 (4 November 2020)

Division:GENERAL DIVISION

File Number:          2019/5943

Re:John Coren

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:D Cremean, Senior Member

Date:4 November 2020

Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant is entitled to Disability Support Pension with effect from 26 February 2018.

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

D Cremean, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – conditions including mental health condition – whether fully treated and diagnosed – qualification period – whether severe functional impact –  DSP entitlement – Decision set aside and substituted

Legislation

Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Cases

Re Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500

REASONS FOR DECISION

D Cremean, Senior Member

4 November 2020

BACKGROUND

1. The Applicant, Mr John Coren, seeks review of a decision made by the
   Social Services and Child Support Division of this Tribunal (“Tier 1”) dated
   27 August 2019. That decision affirmed a decision made on 24 May 2018 by the Respondent, the Secretary of the Department of Social Services, to reject the Applicant’s claim for Disability Support Pension (“DSP”) lodged on 26 February 2018.

2. In his DSP Claim form, the Applicant states that he suffers from the following conditions: chronic neck pain, chronic wrist pain, thoracolumbar back pain, lack of sensation in right leg, shoulder pain and post -traumatic stress disorder (“PTSD”). On 24 May 2018, as noted, the Applicant’s claim for DSP was rejected.

3. On 14 June 2019, an Authorised Review Officer (“ARO”) of Centrelink affirmed the decision to reject the DSP claim. Tier 1 affirmed that decision on the basis that the Applicant did not satisfy the requirements of the Social Security Act 1991 (“the Act”).

4. On 16 September 2019, the Applicant lodged an application for review in this Division of the Tribunal. In his application he says, “With all respect I find the rejection of my appeal distressing due to a number of issues”. He outlines those issues and details them further in an accompanying letter dated also 16 September 2019. I refer to this letter as “the September 2019 letter”.

   HEARING

5. A hearing in this matter was conducted on 1 July 2020. The Applicant was self-represented, and the Respondent was represented by Mr Keith Sypott, a government lawyer.

6. The Applicant gave affirmed evidence by telephone as did Mrs Dianne Coren (carer of the Applicant) and Mr Sypott asked questions of them both in cross-examination.

7. No witnesses were called on behalf of the Respondent and no other witnesses were called.

   LEGISLATION

8. A person qualifies for DSP if they meet the requirements of s 94(1) of the Act which relevantly provides as follows:

   94   Qualification for disability support pension

   (1)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;

9. The Impairment Tables referred to are those mentioned in s 94(1)(b) of the Act and are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Tables”). An impairment rating under the Tables is arrived at by assigning points according to the appropriate table for the condition concerned. The Tables describe functional activities, abilities, symptoms and limitations. The points rating is function based rather than diagnosis based.

10. Before an impairment rating can be assigned under the Tables, qualifying criteria must be met. One of the criteria is that the condition must be permanent. In order for the condition to be permanent, it must be fully diagnosed, treated and stabilised. Another criterion is that the condition must be corroborated. Further, each of ss 94(1)(a), (b) and (c) of the Act must be satisfied separately.

    ISSUES

11. It was found by Tier 1, that the Applicant suffers from conditions which satisfy s 94(1)(a) of the Act described as “psychiatric conditions, spinal pain, right shoulder pain, and right thumb pain”. I am satisfied on the evidence that this is correct, and that the Applicant satisfies s 94(1)(a) of the Act.

12. During the course of the hearing, it became quite clear that the real issue is whether the Applicant also satisfies s 94(1)(b) of the Act — that is, whether he qualifies for an impairment rating of 20 points or more under the Tables or, as regards any of his conditions, under one of the Tables. If I find that he does, the issue is then whether he also satisfies
    s 94(1)(c) of the Act.

13. Pursuant to cl 4(1) of Schedule 2 to the Social Security (Administration) Act 1999, these are all matters I must consider as at the date of his application or within 13 weeks thereafter — that is, from 26 February 2018 until 28 May 2018. This is called the “qualification period”.

14. Further, these are all matters I must decide on the evidence which is before me. I am not restricted to the evidence which was before Tier 1. It is a new hearing, so this addresses matters of concern to the Applicant.

15. Considering the evidence before me, I must decide what is the correct or preferable decision in the matter and I must proceed according to the civil standard of proof (proof, on the balance of probabilities: that is, my findings must be made according to whether something is more likely than not to be so).

    CONTENTIONS

16. The Applicant contended that the decision under review should be set aside and that he has satisfied all the requirements of s 94(1) of the Act, so far as it applies to him.

17. The Respondent contended that the Applicant does not satisfy s 94(1)(b) of the Act, but if he does, he does not satisfy s 94(1)(c), and accordingly the decision under review should be affirmed.

18. More precisely, the Respondent contends that if the Applicant’s post-traumatic stress disorder (“PTSD”) is found to be “permanent” then it concedes it attracts 20 points under the Tables (Table 5). Further, the Respondent concedes that the Applicant’s spinal condition is “permanent” and it is appropriate to consider assigning points under the Tables (Tables 3 and 4). Otherwise, as I have noted, the Respondent contends the Applicant does not satisfy s 94(1)(b) of the Act.

    EVIDENCE

19. It is unnecessary for me to set out verbatim what was said by the Applicant or by Mrs Coren in evidence. I shall instead summarise the main points.

20. Mr Coren said that he and his wife live together and have been married for 33 years.  The children of the marriage are from Mrs Coren’s previous marriage and are all adults now. The youngest in age being 44 years old.

21. Ten or so years ago, the Applicant was involved in a motor car collision (apparently a serious second collision for him) in which he suffered “numerous” injuries. They included a spinal injury and an injury to his thumb. He said however that, “I honestly don’t really remember about the car accident”.

22. But Mr Coren does readily recall the injuries he suffered and following the collision he underwent spinal surgery at S1/L5 level. He says he regards his spinal condition as “[f]ully treated and stabilised as far as it can be”.

23. Following the surgery, Mr Coren has experienced “significant loss of lower limb function”. A suggestion was made by his surgeon to undergo spinal fusion at a later stage if he had “complete loss of lower limb function”. Mr Coren said, he would consider such surgery if he was to end up in a wheelchair otherwise. Moreover, he said he has had numerous operations over the years, and he said, “I really don’t want to see any further surgeons”.

24. During the qualification period, the Applicant said he had been affected by his surgery –indeed he said, he has been affected by the surgery “pretty much” straight after the operation to the present day and that his condition is “not obviously getting any better”. He said he would be suffering between 15 and 20 falls annually –“[s]ome …quite severe”. He further said his legs give way and did so during the qualification period –“because I have no sensation in the lower leg; this is my right leg I’m talking about”. He said, “I can’t feel anything”.

25. One of these falls, Mrs Coren said, caused Mr Coren the problem with his shoulder –“he had to have surgery on [it] and that all goes back to his back”.

26. Mr Coren said he takes medications for his spinal condition including Panadeine Forte and Panadol. He said that of the former, that on “a really, really bad day I can take anything up to eight”.

27. The evidence then turned to the incapacitating effect of Mr Coren’s spinal condition.
    Mrs Coren said that due to the problem with his back, she and he “don’t go anywhere, we don’t do anything because of these issues”. She was referring to Mr Coren’s falls saying, “we need to virtually be with him 24/7”.

28. There was also discussion of Mr Coren’s mental health condition or PTSD and Mrs Coren said, “part and parcel of that is paranoia”.

29. As regard to his mental health condition, Mr Coren said he regards his situation as “severe”. Earlier he had mentioned, he experienced “extremely violent outbursts” where he considered he was “capable of pretty much anything” and where he was suffering “severe panic attacks” and he gave me instances of these.

30. In cross examination by Mr Sypott, the Applicant agreed that it was in 1995 that he was diagnosed by a Dr Eloise Lucas, psychiatrist, with panic attacks, irritability and depression. He volunteered that he had at one point admitted himself into Arundel psychiatric facility.

31. The Applicant agreed that by about 2003, his mental condition had improved since 1995, but that he was still suffering from anxiety and depression “on occasion”.

32. Mr Coren said that he had indeed seen a psychologist after he had consulted with Dr Athey, psychiatrist, in about July 2013. The psychologist was located in High Street Preston, but he said he could not recall the person’s name. He said there was also another psychologist he saw at an address on Settlement Road, Thomastown—at the suggestion either of Dr Athey or of Dr Wong, psychiatrists—but again he could not recall the person’s name. He said, this is not “convenient forgetfulness” but rather “it’s something that I simply do not remember”.

33. Mr Coren agreed that during the period 2014 to 2018, he was not getting assistance from either a psychiatrist or a psychologist.

34. He agreed he had seen Ms Joanna Letcher, psychologist, in about May 2018. The date was one specified in a report from her dated 9 October 2019, which he agreed he had provided.  I note that it could have been April 2018 when he saw her.

35. Mr Coren agreed he had seen Dr Athey in August 2018. He said he had then seen
    Dr Tipierneni, psychiatrist.

36. During the period 2014 to 2018, he agreed he was taking medications for his mental health conditions. He said he was taking an anti-depressant called Rivotril. He said this was originally prescribed by Dr Lucas and he said, “I was taking that basically permanently”. He said he was taking the maximum dosage and it works also as “a preventative for panic attacks and the like”. He continued taking this medication (a quarter dosage) “since –probably 2015/16”.

37. Therefore, Mr Coren said he disagreed with Tier 1, in having recorded him as not receiving any treatment between 2014 and 2018. But he agreed, “I didn’t see anybody between 2014 and 2018 for ongoing medical support in physical terms and the medication that I was on at the time”.

38. Cross examination then turned to Mr Coren’s spinal condition. He described the condition affected his leg, as one where it is as if his leg goes to sleep.

39. Mr Coren said he struggles walking 50 metres but when it was put to him that Dr Barhmer reported he could walk 200 metres before starting to feel pain, he said he just did not remember. He said it is “very difficult” bending and turning, but that he can lift his arms above his head.

    CONSIDERATION

    Section 94(1)(a)

40. I have already indicated that Tier 1 found that the Applicant satisfies s 94(1)(a) of the Act and my view on the evidence, is that finding is correctly made. The Respondent also accepts this.

41. Although the Applicant suffers from a number of conditions, it is, in reality, first his mental health condition and then his spinal condition that he relies upon as justifying a finding being made in his favour on the question of DSP.

    Section 94(1)(b)

    Permanency

42. I noted earlier that to be awarded points under the Tables, a condition must be “permanent”.

43. The Respondent concedes that the Applicant has a permanent spinal condition (that is one which is fully diagnosed, treated and stabilised) for which it is appropriate to assign points.

44. The Respondent also concedes that the Applicant’s mental health condition should be assigned 20 points under the Tables if I should find that it is permanent (that is, fully diagnosed, treated and stabilised).

45. I consider these concessions considerably narrow the field of inquiry.

46. The Respondent in its Statement of Facts, Issues and Contentions (“SFIC”) accepts that the Applicant’s “psychiatric conditions, however described, are fully diagnosed”. This narrows the inquiry even further.

47. In the SFIC, the Respondent contends that “it is evident that, during the qualification period, these conditions were not fully treated or fully stabilised”. Reference is then made to the Applicant not having consulted a psychologist in four (or five) years until seeing Ms Letcher on 24 May 2018. It is stated that, it was “only 4 days prior to the end of the qualification period”.

48. That certainly is true, but it does nonetheless take place during the qualification period which is the period for testing. The qualification period is a fixed period unable to be extended or reduced. The consultation took place during the period and there is no escaping this fact. In a way, in this regard, it would make no difference if it was April 2018 when he saw her—that would still be during the qualification period but further back in time.  

49. However, independently of this fact, but further to it, I am satisfied on the evidence of the Applicant, that it is not correct to say that he did not consult a psychologist in the four (or five) years before seeing Ms Letcher.

50. I have considered the evidence of Mr Coren very carefully and I am quite satisfied that the Respondent’s contention in its SFIC is incorrect and I do not accept it.

51. Tier 1’s reference to him not having seen psychologists in the four (or five) years up to seeing Ms Letcher was put to him in cross examination by Mr Sypott, and Mr Coren immediately reacted by saying, “That’s actually incorrect, I must say”.

52. I am satisfied that Mr Coren is no liar, and that he did see psychologists in the years leading up to the May (or April) consultation with Ms Letcher.

53. I see earlier confirmation of Mr Coren’s evidence in the September 2019 letter accompanying his Application to this Tribunal. That is to say, almost a year before the hearing before me, he said “I can inform that one such professional (Psychologist) was located in Preston and the other in Thomastown, Victoria”.

54. This also was Mr Coren’s evidence before me.  He has been consistent.  I do not see how a year or so beforehand, he could have anticipated Mr Sypott’s exact question. It is true he cannot recall the actual names of the psychologists in question, but I am not troubled by that.  

55. Mr Sypott said “the government has put forward all its relevant records” and by that, I assume he was asking me to infer that Mr Coren must be wrong. But I do not draw that inference. Mr Sypott said that the “consultations haven’t been mentioned previously”, but the fact is they are mentioned in the September 2019 letter which is addressed to “To Whom It May Concern”. I consider that in some fashion or other government records do not tell the full story.

56. There is other material as well. It is not the case that Mr Coren has done nothing in the period leading up to the consultation with Ms Letcher.  There is clear evidence before me, which I accept, that at all relevant times, Mr Coren continued taking his anti-depressant medication (Rivotril).

57. In other words, as I see it, there was nothing else required of Mr Coren in order to establish that during the qualification period, his PTSD was fully treated and fully stabilised. I can see nothing which he failed to do, which he should have done to treat his condition, to enable it to be treated or to stabilise yet more. Certainly nothing else was drawn to my attention by the Respondent.

58. It follows that I am satisfied his condition was permanent at the qualification period.

    Points

59. It is conceded by the Respondent, as I have noted, that the Applicant should be assigned 20 points under the Tables (Table 5) if I should find his mental health condition (PTSD) permanent on the ground that he satisfies “’most’, if not all, of the 20 points descriptors under Table 5” as the SFIC states.

60. I do find Mr Coren’s mental health condition permanent and therefore I assign him 20 points under Table 5 for severe functional impairment. I should indicate, that if that concession was not made, I would have assigned him 20 points under that Table in any event based on the evidence I heard and the various reports.

61. As regards Mr Coren’s spinal condition, I find his functional impairment is moderate, not severe, under Table 4. I find that to be so, because he is not “unable” to carry out all the descriptors under Table 4. He was very clear in evidence that he is able to raise his arms overhead. He is assigned by me therefore 10 points.

    Section 94(1)(c)

62. As I find that the Applicant does have a severe functional impairment under Table 5, there is no requirement that he must have participated in a program of support.

63. It remains an issue, however, which is not conceded by the Respondent, that the Applicant must still satisfy s 94(1)(c) as regards a continuing inability to work.

64. Having found it appropriate to make a finding that Mr Coren’s mental health condition results in severe functional impact, in my view, it is difficult to contend that he has had any continuing ability to work at all.

65. The JCA report of 22 May 2018 (prepared by two persons, one an occupational therapist and the other a psychologist) assesses a capacity within two years with intervention of 15-22 hours per week. This in my view, is quite unmaintainable in light of the evidence I have heard—including the evidence independently justifying in my view a finding of severe functional impact under Table 5. That is to say, irrespective of the Respondent’s concession.

66. In any event as the SFIC states, this JCA assessment is based on the Applicant having impairments of spinal and lower limb function and not on mental health impairment.

67. I therefore reject this JCA assessment.

68. There is another JCA report of 16 March 2020 which assesses a capacity within two years, with intervention of 0-7 hours per week.

69. This second assessment is advanced by the Respondent and accepted should I find, as I do, that the Applicant’s mental health condition is permanent.

70. In light of the evidence I have heard, I regard this assessment as also unmaintainable but not quite as obviously as the earlier one.

71. The Applicant, Mr Coren, is severely impaired by his mental health condition in all the areas in my view, which he would need to be able to use in work or training.

72. These include interpersonal relationships, concentration and task completion, planning and decision making. If Mr Coren were to go to work or training in any ordinary workplace or ordinary training facility, unimpaired capacities in each of these regards would be essential in my view. He would need to be able to get on with others (including superiors and co-workers or co-trainees) in the workplace or facility; he would need to concentrate on what he was doing or on what others were doing; he would need to finish off tasks set for him to do, or  learn how to work with others in team efforts; he would need to plan the order in which things must be done or learned and that in itself may involve considerable decision-making and that decision-making may impact on others, including overall output. Yet in each of these critical areas, Mr Coren is severely impaired by his “psychiatric conditions” as the Respondent puts it.

1. In my view, it is out of the question that the Applicant has any ability to work either now or at the qualification period and that at both points, he has had a continuing inability to work.

2. Further, I am referred by the Respondent in the SFIC to the decision in Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500 as holding that I must disregard on this question any impairments that have not been assigned a rating under the Tables. If that be what the Full Court held in that case, I am satisfied also that the Applicant’s spinal condition, for which I have assigned a rating of 10 points, would add to the Applicant’s continuing inability to work (with or without intervention) within two years from the qualification period or otherwise because of the significant risk of him falling over.  In itself, whether in a workplace or a training facility, that could or would be hazardous both to himself and to others, making him obviously unsuited to work or undertake training within s 94(1)(c).

   DECISION

3. It follows from the above, the Applicant satisfying s 94(1)(a), (b) and (c), that the decision under review must be set aside and a decision substituted that he is entitled to DSP with effect from 26 February 2018.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of D Cremean, Senior Member

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

Associate

Dated: 4 November 2020

Date of hearing:	1 July 2020
Applicant:	By telephone
Advocate for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor