DAVID CATANIA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 457
•20 July 2012
[2012] AATA 457
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0993
Re
DAVID CATANIA
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
Decision
Tribunal Senior Member Dr K S Levy RFD
Date 20 July 2012 Place Brisbane The Tribunal affirms the decision under review.
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Senior Member Dr K S Levy RFD
Catchwords
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment tables – Applicant suffered from “permanent” impairment – Impairment attributed at least 20 points under the impairment tables in Schedule 1B – No continuing inability to work – Decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Social Security Act 1991 (Cth) s 94, Schedule 1B
Cases
Crossland and Secretary, Department of Families and Community Services [2004] AATA 864
Woodiwiss and Secretary, Department of Families and Community Services [2003] AATA 846
Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769
REASONS FOR DECISION
Senior Member Dr K S Levy RFD
20 July 2012
INtroduction
The applicant, David Catania, applied for disability support pension on 5 May 2011. The application was rejected by Centrelink on 25 May 2011, determining that he did not have 20 impairment points as required by s 94 of the Social Security Act 1991 (Cth) (“the Act”). He applied for review of that decision. An authorised review officer rejected his application on 7 November 2011. He subsequently appealed to the Social Security Appeals Tribunal which, on 8 February 2012, also affirmed the original decision. He now seeks a further review to this Tribunal.
The hearing of this matter commenced on 27 June 2012. After a short hearing, the applicant was reluctant to proceed to give evidence or to be cross examined. Following a submission by the Secretary’s advocate, the applicant agreed for the matter to proceed by way of “hearing on the papers”. In light of the applicant’s consent, which occurred while he was giving evidence on oath, I proceed on the basis that the parties consented to finalisation of the application without a hearing under s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
ISSUEs
The issues for determination are concerned with whether, on the date of the application, 5 May 2011 (or within 13 weeks from that date), Mr Catania was qualified for disability support pension under s 94 of the Act. Specifically, the following questions must be determined:
(1)Are any of the applicant’s impairment(s) “permanent” within the terms of the Act; and if so,
(2)Do any of those permanent impairment(s) demonstrate that they should be awarded at least 20 points under the impairments tables (see Schedule 1B of the Act); and if so,
(3)Does Mr Catania have a “continuing inability to work” as prescribed by s 94?
EVIDENCE
There is considerable documentary evidence of Mr Catania’s developmental years and adult life. He was born in 1966 and is now 46 years of age. He was the youngest of 10 children and he has reported a difficult childhood with some of his older siblings. In addition, his father took him to work with him until he was approximately 11 years of age, when his father died. It was only then that he was sent to school and was enrolled in Year 7. Having no previous education, he struggled with being at school and, with limited education, entered the workforce. It appears for most of his life, he has been involved in criminal activities and has spent a good period of time in jail for fraud and related offences. He married at the age of 21 and had two children. He adopted two others; he also now has two younger children as well.
He is currently on bail awaiting trial for similar fraudulent offences in Victoria. Two of his children apparently live with him, a matter which was their choice (extracted from a Job Capacity Assessor report, Exhibit 1, T-document 11, folio 89). He has been diagnosed with anxiety and depression and his general practitioner, Dr Cameron, has noted that he has strict bail conditions which include daily reporting to police; avoiding shopping centres; and not carrying a mobile phone.
MEDICAL AND PSYCHOLOGICAL EVIDENCE
The evidence presented was affected by the following medical and psychological reports:
(a) There is a report dated 24 November 2003 from a psychologist who prepared an assessment of Mr Catania’s condition for Centrelink. He described the applicant as having a significant traumatic incident involving his wife and at that time, had anti-depressant medication which he objected to taking. The depression was said to result from this personal trauma as well as his long term offender history.
As at November 2003, it was said that his capacity for work was up to 7 hours per week building up to 14 hours per week after six months and then up to 30 or more hours per week within two years of that date. The assessment of that capacity was said to be the same whether or not there were any interventions provided to assist with education or training to overcome some skill deficits.
His condition was described as temporary at that time and the symptoms were said to be moderate and regular. He was able to function with some difficulty and at that time, there was a withdrawal from social contacts and recreational activities. However, it was reported that none of these factors would prevent him from undertaking full time work. The report of the psychologist was that Mr Catania’s depression was reactive to previous and on-going trauma but that he would then be expected to improve over time.
(b) In January 2010, it was noted that Mr Catania had completed a program to cope with a gambling problem. The certificate states that he successfully completed that course.
(c) In October 2010, he took a range of psychological tests. While noting his formal education and the fact he had limited reading and writing skills, the test results showed a verbal communication score in the lower average range; a non-verbal skill score which was better than his verbal skills; a perceptual reasoning score in the high average range; a working memory score in the lower average range and processing skills which were average. In summary, the psychologist reported that there were some inconsistencies in individual scores compared with his overall test scores, and this pointed to him suffering from educational disadvantage rather than any innate learning disability.
(d) Since early 2011, Mr Catania has had a number of assessments by medical practitioners and other health professionals. In February 2011, Mr Brownhill, a clinical psychologist, diagnosed that he had a depressive episode which was extremely severe in terms of stress, depression and anxiety.
(e) On 28 April 2011, his general practitioner, Dr Cameron, diagnosed depression and general anxiety disorder which he opined that Mr Catania was unfit for work for about from that time until April 2012.
(f) On 12 May 2011 there was a Job Capacity Assessor (JCA) report compiled by a physiotherapist and a registered occupational therapist. That report described his early work experience in a wrecking yard and that he has since been in prison four times since the age of 17. The report states that he would be keen to find work but is concerned by his lack of work history and ability to commit to a job. While he would like to undertake a trade, he would also be satisfied with being a delivery driver or a courier. His psychological impairments were noted and the JCA report identified various interventions would assist him in seeking and undertaking work: support in his job seeking, literacy and numeracy skill, short adult courses, self-improvement courses and offender support groups were all identified as being of potential benefit.
The Job Capacity Assessors also noted that in addition to the lack of experience and other barriers to obtaining employment, psychologically he was highly anxious. He had reported a history of disrupted sleep, forgetfulness, lack of concentration and motivation, internal frustration, feeling overwhelmed and insecure, and difficulty coping with his everyday life. His capacity to adequately explain his feelings is also difficult for him.
(g) On 25 July 2011, Dr Cameron wrote a further report three months after his first report. He again diagnosed general anxiety disorder and noted the applicant’s difficulties with communication and cognitive processing. At that time he then thought that Mr Catania would be fit for a maximum 14 hours work per week because of his bail conditions.
(h) On 7 November 2011, the authorised review officer reviewed the applicant’s claim for disability support pension. He noted the applicant’s capacity to manage his daily living requirements and expected his current position to exist for the following two years.
consideration
I have considered all of the evidence presented to the Tribunal.
To assess the three issues for determination the relevant legislative provisions must be examined. These are contained in section 94 of the Act 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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
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(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
…
(b) in all cases -- either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person’s locally accessible labour market.
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
…
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
(5) In this section:
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work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
Turning now to the three issues for determination, there are aspects of the applicant’s claimed incapacity and limitations which exist now and for the next two years. In addition, there is the effect of the degree of his incapacity to work for two years or more. In order to examine and determine the three issues, I make the following findings of fact:
1.Mr Catania has suffered psychiatric conditions of general anxiety disorder and episodes of depression on an ongoing basis from November 2003 until the present time.
2.The applicant suffers from educational disadvantage which has led him into unlawful behaviour and unwanted attention by the police and criminal courts.
3.His general practitioner found that Mr Catania is unfit for work of more than 14 hours per week until April 2012.
Issue 1 - Are any of the applicant’s impairments “permanent” within the terms of the Act
Section 94(1)(a) provides that to in order qualify for disability support pension, a person must first have a physical, intellectual or psychiatric impairment. The evidence here is considered in light of the applicant’s background and, in particular, his disadvantaged childhood and education. He has given an account of abuse by family members and the fact that his childhood education was largely denied to him. His employment experience is restricted to unskilled jobs and he has been incarcerated it seems, for a significant period of his working life overall. It also appears that he has underdeveloped social and emotional skills which led him into criminal activities at least since the age of 17.
The JCA report noted that he has more recently associated with a female friend and that he has benefitted from her friendship and support. There are still some outstanding criminal charges which may cause an interruption to that relationship.
The history of psychiatric impairment commenced in 2003 when there was said to be a temporary condition of depression. There is then a gap in evidence until 2010. The evidence then shows in 2011 there was a diagnosis of general anxiety disorder and depressed moods and that has been independently diagnosed by both the job capacity assessors and a clinical psychologist.
Given the longstanding nature of his conditions and the reports of a number of professionals qualified in relevant fields, I accept that Mr Catania presently suffers from a psychiatric impairment of general anxiety disorder and episodic depression. I also accept that these conditions will remain in their present state without any significant change over the next 2 years. I am therefore satisfied that he has a psychiatric impairment as required by s 94(1)(a).
Issue 2 – Do any of the permanent impairment(s) demonstrate that they should be awarded at least 20 points under the impairments tables (see Schedule 1B of the Act)
Dr Cameron’s report noted that the applicant has general anxiety disorder and depression existing since at least April 2011. Dr Cameron at that time described symptoms of generalised anxiety, moderately depressed mood and problems of concentration. The impact of these symptoms on his ability to function was said to affect both of his cognition and communication and it was expected that that would continue for three to 24 months.
To assess whether the applicant has a condition which should have a rating of 20 points or more in the impairment tables, reference must be had to Schedule 1B of the Act. To obtain a rating at all, there must first be a diagnosis and secondly, the condition must be regarded as “permanent”. For it to be “permanent”, the condition or diagnosis must also be treated and stabilised and regarded as persisting for at least for the next two years. Over that period, it would be expected that the condition would be unlikely to have any significant functional improvement, with or without reasonable treatment.
In order to determine whether the condition is fully diagnosed, treated and stabilised, Schedule 1B requires a consideration of the following factors:
·What treatment or rehabilitation has occurred;
·Whether treatment is still continuing or is planned in the near future;
·Whether any further reasonable medical treatment is likely to lead to significant functional improvement with the next two years.
Given Mr Catania has had to spend a considerable amount of time in jail, it is unlikely all possible treatment for him has been exhausted. However, he has had long term deficits in cognitive and behavioural functions and given he has outstanding charges yet to be determined, it seems unlikely his present conditions will significantly improve in the next 2 years as he is likely to have sub-optimal conditions for treatment. That is supported by Dr Cameron’s report of 28 April 2011. He made a later report of 25 July 2011 but he did not complete that aspect of the form. I am therefore satisfied that any change to these conditions in the next 2 years is most unlikely.
With respect to the ratings and the criteria used to assess the applicant’s most appropriate score, regard must be had to Table 6 of Schedule 1B and the criteria listed. I have had regard particularly to the ratings (and the corresponding criteria) for a nil rating and a rating for 10, 20 and 30 impairment points.
As the applicant has a longstanding educational disadvantage and involvement in criminal activities with approximately four periods of imprisonment since the age of 17, together with the fact he is presently awaiting to be dealt with again by the Courts, his level of anxiety and likely improvement from any program, training or support might not be seen as being carried out in optimal conditions. He has previously been rated as having 10 impairment points. He clearly satisfies the criteria for 10 points. In my view, there is also a question about whether he satisfies some of the other criteria given his longstanding deficits. When considering the criteria for 20 impairment points, it requires a psychiatric illness with serious symptomatology or impairment requiring treatment by a psychiatrist, for example, where there are frequent severe anxiety attacks, serious anti-social behaviour etc. Where 30 impairment points are justified, there must be a serious psychiatric illness with major impairments in several areas such as work, interpersonal relations, judgment, thinking or mood, for example, where the depressed person avoids friends, neglects family, is unable to do house work or where his speech is at times, obscure, illogical or irrelevant.
Taking account of the detailed areas of psychological deficits reported by Ms Norberry dated 8 November 2010 and the more recent referral by Dr Cameron for the applicant to receive psychological treatment from a clinical psychologist, I am satisfied that he suffers from a psychiatric and/or functional deficit compared to the average person when it comes to verbal, perceptual and other skills. He has also had, perhaps partly because of his offending behavioural impulses, a psychiatric diagnosis which is of longstanding, even though there is a period between 2003 and 2011 where there is no evidence of his condition throughout all of that period. However, given the childhood background and the paucity of working history from ages 17 to 46, I am satisfied that he has frequent severe anxiety attacks as well as serious antisocial behaviour which require psychological treatment which are the criteria for being awarded 20 impairment points. I think it is inconceivable that his conditions subsided entirely between 2003 and 2010. I am satisfied that there is sufficient evidence on the balance of probabilities that 20 impairment points would be more appropriate in the instance and I find accordingly. He therefore satisfies s 94(1)(b) of the Act with 20 impairment points.
Issue 3 – With respect to any permanent impairments of 20 points or more, does Mr Catania have a “continuing inability to work” as prescribed by the legislation
Having satisfied s 94(1)(a) and (b), consideration is now given to whether he satisfies s94(1)(c). This is the remaining section which is in contention in this case.
The JCA report has shown there are a number of barriers to the applicant’s employment. He has a limited employment history which makes him considerably less competitive than others. He has limited job seeking skills, a low level of formal education and limited literacy skills. He also has some family relationship breakdown, although this latter issue is not sufficiently documented in the evidence to assess its full impact on Mr Catania’s mental health. There is evidence, however, that he is more likely to build up internal frustration than to explode violently and two of his children have chosen to live with him voluntarily. This is not indicative of somebody with a criminal background who is extremely callous and without empathy.
I also note that the two job capacity assessors, a physiotherapist and an occupational therapist, have noted that the current baseline work capacity for Mr Catania should be regarded as eight to 14 hours per week. They have made that finding by acknowledging there are functional restrictions such as disrupted sleep, forgetfulness, lack of concentration and being emotional at times. The report concludes that he will be suitable for moderate semi-skilled work such as a bus driver, earth mover, forklift driver, store person or courier. In addition, the professional judgement of the Job Capacity Assessors is that he has a future capacity for work within two years with intervention of 23 to 29 hours per week, undertaking the same occupations as noted above. The interventions noted earlier of job seeking skills, literacy and numeracy training and perhaps, post-secondary or adult vocational courses, self‑improvement course and offender support groups, would be of assistance. I note also that despite the fact that he has the anxiety of future court appearances ahead with him, he does have a female friend and he seems to have contact with at least some of his children.
I take into account also, the report of Dr Cameron, his general practitioner, about the problems with cognition and communication skills although those comments have been consistently acknowledged by the job capacity assessors. Dr Cameron also noted in April 2011 that Mr Catania would be unfit for work until 28 April 2012. In his latest report dated July 2011, he states that the applicant would be fit for a maximum 14 hours work per week in line with his bail conditions.
I also note the applicant refuses to take anti-depressant medication. Perhaps his condition may be better controlled if he did adhere to the medication regime. Nevertheless, there are many people who suffer from psychological or psychiatric conditions but still have capacity for some work.
Whether he has a continuing inability to work is amplified in subsections (2), (3) and (4) of s 94. That is, he will have a continuing inability to work if:
(a)The impairment will prevent him from doing any work independently of a program of support within the next two years; and
(b)The impairment, of itself, would prevent him from undertaking a training activity during the next two years; or even though he could undertake a training activity he would be unlikely to do any work independently of a program of support within the next two years.
It is clear from Dr Cameron’s report that he has the capacity for 14 hours per week of work at present within the limit of his bail conditions. The job capacity assessors, which include an occupational therapist, consider that he will have the capacity to work for up to 23-29 hours per week with interventions over the next two year period. The interventions proposed have already been recorded. It appears therefore, he would have the capacity for 15 or more hours per week within two years, excluding the factors which are prohibited from being taken into account (s 94(3)) and various case authorities submitted by the respondent (e.g. Crossland and Secretary, Department of Families and Community Services [2004] AATA 864; Woodiwiss and Secretary, Department of Families and Community Services [2003] AATA 846; Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769).
Having regard to the applicant’s present condition and some personal factors with which he has had to cope with for some time (for example his educational disadvantage and lack of employment experience), I accept the assessments of Dr Cameron and the job capacity assessors and their professional judgements that there is a capacity for the applicant to do some work within the next two years within the standards prescribed by the legislation. I cannot be confident that he may be able to undertake work for 23 to 29 hours per week but I find the evidence points to him having the capacity to work above 15 hours per week over the next two years. He therefore does not satisfy the statutory standard of having a continuing inability to work.
Consequently, the applicant does not satisfy s 94(1)(c). As the applicant for disability support pension must meet all the requirements of s 94 and s 94(1)(c) is not satisfied here. The applicant therefore does not qualify under the legislation.
The decision under review is therefore affirmed.
31. I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD.
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Associate
Dated 20 July 2012
Date of hearing 27 June 2012 Applicant In person Advocate for the Respondent Mr Joe Guthrie
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