DAVID EVANS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 282

[2013] AATA  282

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3682
Re	DAVID EVANS
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Dr A Frazer, Member
Date	9 May 2013
Place	Perth

The Tribunal affirms the decision under review.

.(Sgd) Dr A Frazer.......................................................................

Dr A Frazer, Member

Catchwords

SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairments – applicant’s impairments not considered permanent or sufficient rating –applicant not qualified for disability support pension – decision under review affirmed

Legislation
Social Security Act 1991 (Cth), s 94 and Sch 1B

REASONS FOR DECISION

Dr A Frazer, Member

9 May 2013

INTRODUCTION

1. Mr David Evans, (“the applicant”), who is 39 years old, is now in receipt of DSP for his post traumatic stress disorder (PTSD) and depression and the DSP commenced on 7 November 2012.

2. The applicant had previously lodged a claim for DSP on 11 April 2012. 

3. On 25 May 2012 a Centrelink officer rejected the claim for DSP.  On 13 June 2012 an Authorised Review Officer (“ARO”) affirmed the decision to reject the claim for DSP.  The ARO noted the applicant suffered from a PTSD condition which was not fully treated and stabilised.

4. On 23 August 2012 the Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decision noting the applicant’s psychiatric impairments were not fully treated and stabilised and therefore not permanent, during the relevant period, that is the proceeding 13 weeks to 11 July 2012.  The applicant therefore he did not qualify for DSP. 

5. On 23 August 2012 the applicant made an application to this Tribunal for review of the SSAT’s decision.

   THE RELEVANT LEGISLATION

6. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act.  It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1).  Section 94 of the Act otherwise relevantly provides:

   “        94(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;

   …

   94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)       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).

   …

   94(5) In this section:

   training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

   (a)       education;

   (b)       pre‑vocational training;

   (c)       vocational training;

   (d)       vocational rehabilitation;

   (e)       work‑related training (including on‑the‑job training).

   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.

   …”

7. The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act.

   THE EVIDENCE

8. The evidence before the Tribunal comprised:

   ·the “T Documents” (T1-T34,) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);

   ·The oral evidence of the applicant by teleconference.

   The applicant’s evidence

   ·The applicant suffered a severe assault in February 2005.  The applicant first saw a psychiatrist, Dr Stephen Proud, on 3 August 2011.  This was for compensation purposes and was the first time the effects of the 2005 incident on his mental health had been investigated.  Dr Proud notes the applicant has had inadequate psychiatric treatment since the assault. He diagnosed PTSD and recommended the applicant undergo assessment by a psychiatrist, psychologist and take medications to assist sleeping. 

   ·Dr Bowie, the applicant’s GP, stated in a Medical Report dated 9 April 2012, that he referred the applicant to a psychologist, Ms Jones, on 3 October 2011 and that had commenced the applicant on Deptran. The applicant first saw Ms Jones on 1 December 2011.  The applicant said he is still receiving counselling every couple of weeks.

   ·

   The relevant medical evidence

9. Report by Dr Stephen Proud, psychiatrist, dated 3 August 2011.

10. Centrelink Medical Report by Dr Bowie, dated 9 April 2012.

11. Employment Services report by Dr Ashford, psychologist, dated 26 March 2012, stating the applicant suffers from PTSD and depression.

12. Letter by Dr Jones, psychologist, dated 5 December 2011 confirming the applicant had his first assessment on 1 December 2011.

13. Report by Dr Szudej, psychiatrist, dated 27 July 2012, stating the applicant suffers from depression and PTSD and that treatment would involve antidepressants and psychotherapy. He anticipated both conditions would somewhat fluctuate or improve over the next 24 months.

    THE IMPAIRMENT TABLES

14. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”.  The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:

    “1.These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …

    2.These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. …

    …

    4.A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …

    5.The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

    6.In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

    ·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 within the next 2 years.

    In this context, reasonable treatment is taken to be:

    ·treatment that is feasible and accessible ie, available locally at a reasonable cost;

    ·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

    It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

    In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

    ·evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and

    ·indicate why this treatment is reasonable; and

    ·note the reasons why the person has chosen not to have treatment.

    …”

    ANALYSIS

    Impairments

15. It is common ground that, at all material times, the applicant has PTSD and depression. These are impairments within the meaning of para (a) of s 94(1) of the Act.

16. The first matter for the Tribunal’s determination is whether the applicant, when he applied for the DSP on 11 April 2012,  and within the 13 weeks following, ie to 11 July 2012, had a total impairment, by reason of his impairments, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.

17. The Tribunal accepts that the applicant underwent an extremely traumatic event in 2005.  However, the consequences of this event for the applicant’s mental health were first diagnosed by Dr Proud in August 2011.  The applicant started counselling, which is ongoing, in December 2011.  The applicant did not see a treating psychiatrist until 27 July 2012 and was recommended for further treatment with psychotherapy and antidepressants.  At that time the psychiatrist stated the applicant’s condition was likely to fluctuate or improve.  This assessment and recommendation for further treatment by a treating psychiatrist did not take place until after the relevant period for consideration of the applicant’s DSP.  Therefore, the Tribunal finds that the applicant’s psychiatric impairments were not fully treated and stabilised, and are, therefore, not permanent during the relevant period. 

18. The applicant therefore does not satisfy para (b) of s 94(1) of the Act.

19. As the applicant does not satisfy para(b) of the s 94(1) of the Act it is unnecessary to consider whether the applicant satisfies para (c) of s 94(1) of the Act.

    DECISION

20. For the above reasons the Tribunal affirms the decision under review.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member .

(Sgd) D. Chapman...............................................................

Associate

Dated     9 May 2013

Date(s) of hearing	5 March 2013
Applicant	In person
Representative  for the Respondent	Ms L Gallagher                  Sparke Helmore