David Openshaw and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs
[2012] AATA 95
•17 February 2012
[2012] AATA 95
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/5324
Re
David Openshaw
APPLICANT
And
Secretary, Department of Families, Housing, Community Services & Indigenous Affairs
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 17 February 2012 Place Brisbane (heard in Lismore) The decision is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – cancellation of disability support pension – statutory criteria of impairment – lower limb function and psychiatric conditions – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94(1), schedule 1B
REASONS FOR DECISION
Deputy President P E Hack SC
17 February 2012
INTRODUCTION
The applicant, Mr David Openshaw, suffers from both physical and mental ailments. In 2008 Centrelink, on behalf of the respondent Secretary, took the view that those ailments, and their consequences, were of sufficient gravity to qualify Mr Openshaw to receive a disability support pension (DSP). Mr Openshaw was granted DSP from 18 April 2008.
Centrelink revisited the matter in August 2011. On 16 August 2011 it decided that Mr Openshaw’s ailments were not such as qualified him for DSP. His pension was cancelled. The decision was affirmed on internal review and by the Social Security Appeals Tribunal on 23 November 2011. Mr Openshaw seeks a review of the decision in this Tribunal. Given the nature of the decision under review the present case is one where, unusually, issues of qualification must be considered at, or around, the time of decision rather than as at the date of hearing.
THE LEGISLATION
By virtue of s 94(1) of the Social Security Act 1991 (Cth) a person is qualified for DSP if, relevantly,
(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;
…
The reference to Impairment Tables is a reference to the Tables that comprise Schedule 1B to the Act. The Introduction to the Tables explains that they,
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.
They do so by assigning ratings based on the severity of the impact of the medical condition on normal function.
It is relevant, given the issues raised, to make further reference to the Introduction and, in particular, the notion of “diagnosed, treated and stabilised”. The following passages bear upon that issue:
4.… 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:
owhat treatment or rehabilitation has occurred;
owhether treatment is still continuing or is planned in the near future;
owhether 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:
otreatment that is feasible and accessible ie, available locally at a reasonable cost;
owhere 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.
…
As will appear, it is not necessary to consider the meaning of the expression “continuing inability to work”.
MR OPENSHAW’S IMPAIRMENTS
Mr Openshaw has two conditions that are relevant – an impairment of his lower limb function and a psychiatric condition.
Lower limb function
Table 4 of the Impairment Tables deals with impairment to the function of the lower limbs. So far as is relevant, that Table provides:
TABLE 4. FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250‑500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50‑250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self‑propelled wheelchair.
… [emphasis in original]
Mr Openshaw’s right lower limb is impaired by a below knee amputation. In February 2011 Mr Openshaw was assessed by an occupational therapist, Ms Solange Solander. She concluded (and the Secretary accepts) that the condition had been fully treated and stabilised (although Mr Openshaw reports phantom pain). At that time Mr Openshaw was reporting generalised pain, reduced mobility, extreme difficulty with squatting, running or walking more than one block and difficulty with prolonged standing. He could sit for periods up to 60 minutes, could stand for up to 30 minutes and could walk, at a slow pace, less than 500 metres. Ms Solander considered that there was demonstrable evidence of loss of strength, mobility, stability, balance and sensation such as to cause moderate interference with walking, squatting or kneeling i.e. Ms Solander considered that the lower limb impairment warranted a rating of 10 points on Table 4.
Mr Openshaw accepts that Ms Solander accurately recorded the complaints that he then made and her characterisation of the extent of interference as “moderate”. In those circumstances it is appropriate to assess the level of functional impairment at ten points. I should add, for completeness, that more recently Mr Openshaw has been afflicted by a neuroma which has caused increased pain and discomfort however I understood him to accept that, as that part of his condition was not fully treated (he is due for surgery in the near future), it was not possible to regard that condition as permanent and thus take it into account in determining the lower limb impairment.
Psychiatric condition
The more difficult questions arise when considering Mr Openshaw’s psychiatric condition. At the outset I note that the Impairment Tables, in dealing with psychiatric disorders, provide as follows:
TABLE 6. PSYCHIATRIC IMPAIRMENT
It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
Rating Criteria
NIL Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TEN Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full‑time work. (eg. short periods of absence from work).
TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti‑social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
…
This is a case where, in the language of the introduction to the psychiatric impairment table, there is “insufficient clinical information available”. Mr Openshaw says that he suffers from anxiety and depression and from post-traumatic stress disorder. In November 2010 his general practitioner, Dr David West, described the condition as anxiety which had a “minor” impact on his ability to function. There have been no other professional assessments of the impact of Mr Openshaw’s psychiatric condition although a psychologist, Ms Lesley Wells, who has treated Mr Openshaw recently, noted that Mr Openshaw “had been diagnosed with Post-Traumatic Stress Disorder co-morbid with Depression”. It is as well to leave questions of precise diagnosis for the moment and direct attention to the matters of treatment and effect.
Mr Openshaw says that he was receiving treatment – medication and counselling – through the Campbelltown Mental Health Unit some years ago but that that ceased by July 2009 when he moved from Sydney to live in Casino. From that time he was not being treated on a regular basis until July or August 2011 when he was referred by his new general practitioner to the psychologist, Ms Wells who has seen him on at least seven occasions since September 2011. In these circumstances I am not satisfied that Mr Openshaw’s psychiatric condition is capable of being assigned a rating. It is impossible to know, on the material before me, whether the treatment, recently commenced, will lead to a significant functional improvement. Given that it has been prescribed by a medical practitioner there is an inference, readily drawn, that that doctor considered that it would.
That being so Mr Openshaw did not satisfy the statutory criteria of impairments warranting 20 points or more under the assessment tables and the decision made was correct.
It is understandable that Mr Openshaw is aggrieved by the decision; so far as he can see, nothing in his situation had changed yet the Secretary considered that he was no longer qualified for DSP. The answer, unfortunately, is probably that the original decision was incorrect.
Mr Openshaw has, I gather, made another claim for DSP which is yet to be determined. It is to be hoped that Centrelink will pay heed to the concluding sentence of clause 4 of the introduction to the Tables and the reference to the need to an “investigation of poorly defined conditions”. To similar effect, the introductory words to Table 6 speak of the need to obtain a current or recent specialist report where there is insufficient clinical information. While it is undoubtedly the case that Mr Openshaw suffers from a psychiatric condition (or conditions) there is a dearth of information about that condition. In fairness to Mr Openshaw there ought be a proper investigation of his mental condition, necessarily by Centrelink as Mr Openshaw lacks the resources to undertake the necessary investigation.
I will then affirm the decision under review.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
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Associate
Dated 17 February 2012
Date of hearing
The applicant appeared in person
Representative for the respondent
15 February 2012
Ms MJ Brazier
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