Darren Riera and Secretary, Department of Social Services

[2015] AATA 190

[2015] AATA 190  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5113
Re	Darren Riera
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	30 March 2015
Place	Brisbane

The Tribunal affirms the decision under review.

................................SGD........................................

Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – DSP – 20 points or more under the Impairment Tables – Alcoholism - Anxiety and depression - Decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth), s 13, Schedule 2

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Dr M Denovan, Member

30 March 2015

1. Mr Darren Riera is the applicant in these proceedings. He lodged a claim for Disability Support Pension (“DSP”) on 7 February 2014. On 26 February 2014 the Respondent decided to reject this claim. An Authorised Review Officer (“ARO”) affirmed that decision on 6 August 2014 as did the Social Security Appeals Tribunal (“SSAT”) on 10 September 2014. The applicant applied to the Administrative Appeals Tribunal (“AAT”) on 30 September 2014.

2. I must decide whether Mr Riera met the eligibility criteria for DSP on 7 February 2014, or within 13 weeks of that date (“the relevant period”). If so, Mr Riera will be entitled to DSP from the date he contacted the respondent and indicated his intention to claim, which was on 3 February 2014.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

3. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. To the extent that it is relevant for present purposes, s 94 of the Act provides that the applicant must:

   ·have a physical, intellectual or psychiatric impairment; and

   ·have an  impairment of 20 points or more under the Impairment Tables;[1] and

   ·have a continuing inability to work.

   [1] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.

4. Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within the relevant period. In this case the relevant period is from 7 February 2014 to 9 May 2014.

5. There are rules for applying the impairment tables (“the Impairment Tables”), in deciding if a person qualifies for DSP. The Impairment Tables are function-based, rather than diagnosis based. Ratings are assigned to reflect the level of functional impairment from conditions that have been accepted to be permanent, and fully diagnosed, fully treated and fully stabilised.

6. A person’s functional capacity rated under the Impairment Tables concerns their capacity to work. The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating can be assigned from the Impairment Tables.

7. A person is regarded as having a continuing inability to work under s 94 of the Act if the Secretary is satisfied that:

   ·they have an inability to work for 15 hours or more a week due to their accepted impairments; and

   ·they have actively participated in a program of support.

   This second requirement is not necessary if a person has a severe impairment of 20 impairment points or more under a single Impairment Table.

8. Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”),[2] it is necessary to determine whether Mr Riera’s conditions can be regarded as being permanent and whether the impairment resulting from those conditions is likely to persist for more than two years.[3] A condition will be considered permanent where it has been fully diagnosed, treated and stabilised.[4]

   [2] The Determination was made by the Minister pursuant to s 26(1) of the Act.

   [3] s 6(3) of the Determination.

   [4] s 6(4) of the Determination.

9. Mr Riera claims he is permanently unable to work because he suffers from alcoholism and anxiety and depression. The Secretary accepts Mr Riera has impairments for the purposes of s 94(1)(a) of the Act.

10. The Secretary contends that neither Mr Riera’s alcoholism nor mental health conditions are fully diagnosed, treated and stabilised, and cannot be assigned a rating under the Impairment Tables.

11. The issues that I must determine are:

    ·which, if any, of Mr Riera’s conditions meet all the legislative criteria within the relevant period to be allocated an impairment rating; and

    ·if any can be rated, whether he has 20 impairment points or more; and if so whether he has a continuing inability to work.

    CONSIDERATION

12. Mr Riera gave evidence in person at the hearing. He told me he believes he has suffered from alcoholism and mental health problems for years. He said he was attacked 6-7 years ago, and he believes he now has post-traumatic stress disorder as a result. He said his doctor advised him he needed treatment some time ago, but that he thought he was doing all the right things, so he ignored his doctor’s advice. He has worked as a forklift driver and has worked in a number of bars, serving drinks and fixing gaming machines.  He was not sacked from his last employment, which was about two years ago. Rather, he decided to quit because he finds dealing with people difficult, and he believes it worsens his anxiety. He was having trouble handling people.  

13. Mr Riera did not have any treatment for his mental health conditions until after he lodged his claim. He was seeing a psychologist for some months, however he ceased that treatment when he realised the provider was not a clinical psychologist. He admitted the only reason he was having the treatment was to satisfy the requirements to qualify for DSP.

14. Mr Riera said there is a history of alcoholism and depression in his family. He admitted to not having been motivated to pursue training options that would assist him in obtaining employment that would not aggravate his mental health problems.

15. The medical report that accompanied Mr Riera’s claim was prepared by Dr Thompson and dated 6 February 2014.[5] Dr Thompson provided the diagnoses of alcoholism and anxiety and depression. In a later report dated 1 April 2014[6], Dr Thompson indicated these diagnoses were presumptive. He indicated psychological treatment was planned as treatment for these conditions. The applicant provided a referral letter from Dr Alam dated 31 January 2014[7] which confirmed a mental health plan was pending.

    [5] Exhibit 1, f. 50.

    [6] Exhibit 1, f.74.

    [7] Exhibit 1, f. 42.

16. On the basis of the reports of Dr Thompson, I find that all of Mr Riera’s conditions are presumptive, and have not been fully diagnosed. Table 5 is used to assess impairment caused by mental health conditions. Before any points can be allocated from that table, it is a mandatory requirement that the diagnosis of the mental health conditions is made by a psychiatrist or clinical psychologist. During the relevant period, no such diagnosis of Mr Riera’s mental health conditions was made. No impairment points can therefore be allocated for those conditions. The diagnosis of alcoholism is currently presumptive, and the condition therefore cannot be regarded as fully diagnosed, treated and stabilised. It cannot, therefore be allocated a rating.

    CONCLUSION

17. Mr Riera does not satisfy the criteria set out in s 94 of the Act. Specifically, Mr Riera does not have any conditions that can be regarded as fully diagnosed, treated and stabilised in the relevant period. He therefore has no points from the Impairment Tables and does not satisfy s 94(1)(b). He also had not completed a program of support prior to lodging this application for DSP. The requirement is that he complete 18 months of a program of support. Mr Riera does not satisfy any of the grounds that would exempt him from this requirement. Mr Riera did not have an incapacity to work, and does not satisfy s 94(1)(c). Mr Riera is therefore not eligible to receive DSP.

    DECISION

18. The decision under review is affirmed.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

................................SGD........................................

Associate

Dated 30 March 2015

Date of hearing	18 February 2015
Applicant	In person
Solicitors for the Joined Party	Jasmine Forsyth, Department of Human Services