DERAN HUSEYIN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 120

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 120

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N 2006/1364

GENERAL ADMINISTRATIVE DIVISION		)
Re		DERAN HUSEYIN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date23 February 2009

PlaceSydney

Decision The decision under review is set aside and in substitution thereof the Tribunal decides that the Applicant met the necessary qualifications for Disability Support Pension as at 20 April 2006 and that payment should be reinstated from the day it was ceased, being 3 November 2006.

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

Dr J D Campbell

Member

CATCHWORDS     

SOCIAL SECURITY – disability support pension – cancellation – assessment – applicant’s impairments satisfy rating of at least 20 points pursuant to impairment tables – continuing inability to work – decision under review set aside

Social Security Act 1991 – Section 94, Schedule 1B Impairment Tables

REASONS FOR DECISION

23 February 2009   Dr J D Campbell, Member

1.     Mr Huseyin, aged 22, is unemployed and lives with his parents and older brothers.  Mr Huseyin has suffered from epilepsy since he was eight years old, with all his seizures occurring at night and associated with sleeping.

2.     On 22 July 2002 Mr Huseyin lodged a claim for a Disability Support Pension (“DSP”).  A treating doctor’s report (Dr Nguyen) dated 18 July 2002 described the clinical features of Mr Huseyin’s epilepsy in the following terms:

nocturnal seizures, poor sleep, tiredness, poor concentration, side effects of medication […] Topomax/Tegretol/Frisium, date of onset – 1994 […] likely to persist for more than 2 years.

3.     On 2 August 2002 Dr Ma, a medical adviser with Health Services Australia, detailed the following whole person assessment of Mr Huseyin:

He has suffered from epilepsy since the age of 8.  His seizures all occur in relation to sleep.  He is having jerking movements of all 4 limbs when sleeping and this happens about every second night.  The seizure usually lasts for few seconds to 1 minute but he could have a series of this seizure in one night.  His father reports that he last had repetitive attacks of this transient seizure 2 nights ago.  This condition has affected his sleep significantly and as the result, he often has headache in the morning and tiredness and fatigue during daytime.  He also has great problem with concentration at school and therefore his academic achievement is not satisfactory.  He has been under the care of his specialist and has been on optimal treatment.  His father reports that he actually is better than before after commencing on the current regime of anti-convulsive medication.  However, his frequent seizures at night are still causing severe functional impairment in his normal daily activities and studying.

He also has long history of asthma.  This condition has been well controlled and does not cause any significant problem.

He has total impairment rating of 20.  I agree with his treating doctor that he is medically unfit for open employment for the next 2 years.  He is currently a year 10 student and he is expected to require a lot of support and understanding at school.

4.     A medical report from Dr Bleasel, a staff specialist in epilepsy, dated 20 December 2001 (T4) details the diagnosis, the nature and description of seizures experienced and the response to treatment of Mr Huseyin’s condition.  Dr Bleasel in his report noted Mr Huseyin’s school activities in the following terms:

Deran has had a pretty mixed year at school.  His dad brought along his report and it is clear that he is not paying attention in class.  It seems as though he is talking with his friends often and skylarking.  It is possible that the medication may be impairing his concentration.

5.     Mr Huseyin was granted DSP from 30 September 2002.

6.     In January 2006 a review of Mr Huseyin’s DSP was initiated.  In a treating doctor’s report dated 6 February 2006 (T10) Dr Nguyen described the clinical features of Mr Huseyin’s epilepsy in the following terms:

Frequent episodes of nocturnal seizures.  Seen Dr Andrew Bleasel (neurologist).  Diagnosis – frontal lobe epilepsy (antisocial dominant nocturnal frontal lobe epilepsy), current symptoms – episodic seizures, disturbed sleep, tiredness, poor concentration most of the time, mood swings – denial of his condition, often gets angry/frustrated.

[…]

Impact on ability to function – poor concentration and motivation.  Has difficulty completing tasks, had to give up TAFE.  Gets frustrated easily.  Needs parents to supervise treatment/medication (otherwise would be non compliant).

7.     On 31 March 2006 Ms Lee, an occupational therapist, in a report (T11) detailed her reasons supporting her impairment rating of five points for epilepsy impairment.  Such reasons included:

·The nature and frequency of the seizures, their control by medication and annual review by a specialist.

·That Mr Huseyin is an active, sporty nineteen year old male currently studying full time to be a personal trainer in fitness, which required much physical activity, including boxing.  Also plays for Parramatta Eagles (trains three nights a week with weekend matches).

·Reports feeling tired at times and broken sleep at times, but reports a nil/minimal impact on study or activities of daily living.

·Always punctual at school and never fell asleep in class.  School performance is average.  Good social relationships with classmates and club members.  The guys like his sense of humour.

·Noted (from father) that Mr Huseyin has apparent conflicts and some family issues.  Rebellious at home, verbal arguments and some physical contacts.  Problems seem only to occur at home especially during times of stress such as assessment periods.  Is aware that his son is aware that when he is stressed he is prone to frustration and argument.

8. On 20 April 2006 Centrelink advised Mr Huseyin that his DSP was to be cancelled as his impairment from his epileptic condition had been rated at five points, and impairment from his other conditions, namely asthma and abdominal muscle strain had been both rated at nil points pursuant to Impairment Tables 21 (epilepsy and asthma) and 20 (musculo skeletal) in Schedule 1B to the Social Security Act 1991 (“the Act”).

9.     During the internal review process the Authorised Review Officer (“ARO”) attempted to speak with Mr Huseyin, but the call was terminated by Mr Huseyin.  The ARO reports that he then spoke with his father who stated that his son was not well, extremely uncooperative and that his night time seizures affect his attitude and co-ordination.  The father is reported as stating:

·That he had paid for driving school instructors to help his son get a license, but his son never likes the teachers.

·That his son had made premier youth league but was kicked out for bad attitude.

10.   The ARO noted that behaviour/psych issues had not been listed in any of the medical reports.  The ARO elected to rate Mr Huseyin’s impairment from his epileptic condition at 15 points pursuant to Impairment Table 20.  The ARO also elected, in the absence of any material in the medical reports relating to behaviour or psychological issues, to take such issues no further in terms of assessment.

11.   In a further review by the Social Security Appeals Tribunal (“SSAT”) on 4 September 2006 Mr Huseyin did not attend, with his father detailing his son’s circumstances.  The SSAT considered that the appropriate Impairment Table to assess Mr Huseyin’s epileptic impairment was Table 21 and, as such, concluded that the impairment rating was 10 points.  The SSAT affirmed the decision under review.

Issues

12.   The relevant issues in this matter are:

(a)Did Mr Huseyin at the time of cancellation of his DSP have a physical, intellectual or psychiatric impairment, and if so;

(b)was his impairment 20 or more points when assessed under the Impairment Tables, and if so;

(c)did Mr Huseyin have a continuing inability to work.

Further Material

13.In evidence to the Tribunal Mr Huseyin detailed the following:

·That his schooling experience was a process he attended and that he lacked motivation.  His HSC result was a reflection of such difficulties.

·That his interests while at school and after leaving school were to do with soccer.  He experienced difficulty in a number of soccer clubs over a variety of issues, with severance of the relationship the eventual outcome.

·That he had ceased his personal trainer’s course at TAFE because of a lack of motivation, a lack of concentration and general frustration.

·That he had considered working in the air-conditioning industry but nothing ever eventuated.

·That he had attempted to get a driving license on numerous occasions, but had difficulties with the instructors.

·That he wishes to lead his own life and that this has led him into conflict with his father and one brother.

·That he enjoys going out on weekends with friends and attending night clubs.  He does not drink or smoke.

·He would like to work in an activity where he is able to direct himself and with a minimum of outside interference.

·He admits to being irritable, quick tempered, lacking in motivation, has difficulty with concentration, easily frustrated, often tired and lethargic and at a loss as to what he would like to do.

14.   In a report dated 22 June 2007 (Exh R2) Dr Lovric, a consultant psychiatrist, detailed the following comments:

·Mr Huseyin’s father attended the interview with him and she noted considerable tension between them.

·During the interview Mr Huseyin, while superficially cooperative, several times sent and responded to text messages on his phone and was verbally abusive towards his father.

·Mr Huseyin received very poor marks in his HSC because “I didn’t study one bit” and “I jigged every class I could to train in football”.  Mr Huseyin admitted to rarely studying, significant truancy and behavioural difficulties in class.

·Commenced at TAFE aged 18.  Studied massage therapy for a month and then switched to study to be a personal trainer.  In the first year did not do very well because he did not focus as “I wasn’t really into my studies”.  In the second year he had been suspended twice, and was advised by teachers that he was not welcome in class and accused of “making trouble” in class.  There was also a petition by a female student recommending that he not be allowed back into class after she made a complaint of sexual harassment.  Mr Huseyin was noted as finding it difficult to catch up on his work as a result of the suspension.

·Mr Huseyin denied any psychological symptoms, but upon prompting by his father did state that he took 2 mgs of Ducene twice weekly to assist with his sleeping.

·Mr Huseyin was unwilling to discuss family issues, but was willing for his father to discuss such.  The father noted episodes of verbal and physical abuse by his son towards him and his middle brother, which had required police intervention at their residence.

·Mr Huseyin had never been in active employment and he did not see the need to find a job.

15.   Dr Lovric concluded that Mr Huseyin’s history of behavioural problems occur on a background of probable dysfunctional family relationships.  Dr Lovric considered that Mr Huseyin’s epilepsy may have contributed to some of the issues, with the dysfunctional family relationships perpetuating the situation.  Nevertheless, as such behavioural issues do not appear to be temporarily related to his epileptic seizures, such a contribution, in Dr Lovric’s opinion, is not of major significance.  Dr Lovric considered that Mr Huseyin may suffer from Attention Deficit Hyperactivity Disorder which would be consistent with his hyperactivity and inattention demonstrated during childhood, and with ‘Oppositional Defiant Disorder’ as evidenced by a recurrent pattern of negativistic, defiant, disobedient and hostile behaviour towards authority figures, with frequent loss of temper, defying or refusing to comply with requests or rules of adults and blaming others for his own mistakes or misbehaviour.  Dr Lovric also noted that he had a strong sense of entitlement and that any treatment with stimulant medication for the ADHD may interfere with his epileptic control.

Considerations and Findings

16.   In this matter I have been particular in detailing the material which led to the granting of the DSP in 2002 and the cancellation in 2006.  One of the major difficulties is that neither the ARO nor the SSAT heard from Mr Huseyin.  They relied upon what his father stated and significantly focused on the epileptic condition, while tending to either diminish and/or ignore Mr Huseyin’s long history of behavioural disturbance as evidenced in his description of his experiences at school, at the soccer clubs, at TAFE, in attempting to get a license and within the confines of his family.  While evidence of behavioural issues is in evidence in the report of Dr Bleasel in 2001, the reports of Dr Nguyen, the treating doctor in 2002 and 2006, the report of Dr Ma and the report of the rehabilitation consultant Ms Lee, any endeavour to have Mr Huseyin assessed by a psychiatrist was not undertaken until June 2007.

17.   In her report of 22 June 2007 Dr Lovric highlights the difficulties experienced when undue focus is placed upon a physical complaint, with earlier assessors either failing to ascertain Mr Huseyin’s longitudinal behavioural history or the significance of such a behavioural history.  Alternatively, the assessors may have subsumed such behavioural aberrations to be related to, if not integral to, the physical condition.  Such a propensity is often reinforced when subsequent decision makers undertaking a review process fail to either meet with and/or hear from the individual involved.

18.   I have reviewed all the relevant material that relates to the cancellation of Mr Huseyin’s DSP.  This includes material obtained during the hearing and Dr Lovric’s report.  I also acknowledge that I was advised that despite the cancellation decision being contested by Centrelink, Centrelink has subsequently granted Mr Huseyin’s DSP in early 2008.

19.   While I note that Dr Lovric’s opinion was rendered in June 2007, some fourteen months after cancellation, I consider her analysis and opinion applicable to Mr Huseyin both prior to the time of and after the date of cancellation.  That such an opinion had not been sought earlier is clearly inconsistent with the introductory instructions to the Impairment Tables, where at paragraph 4 the following is nominated:

The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

20.   In the circumstances I have outlined I am satisfied that Mr Huseyin suffered from the following conditions at the time of cancellation of his DSP in April 2006, namely:

·Epilepsy – frontal lobe

·Behavioural disorder

·Asthma

·Abdominal muscle strain

21.   In so stating I conclude on the evidence before me that Mr Huseyin’s behavioural aberrations had a defined longitudinal history, and were of sufficient severity and causing significant functional impairment to warrant a separate diagnosis.  In so finding I rely upon the opinion of Dr Lovric and the evidence which is before me.

22.   As a consequence of my findings I conclude that at the date of cancellation (20 April 2006) Mr Huseyin satisfied s 94(1)(a) of (“the Act”).

23.   In addressing the issue of the assessment of each impairment at the date of cancellation I am mindful that a rating is only to be assigned after a comprehensive history and examination.  Further, the condition must be a fully documented and diagnosed condition which has been investigated, treated and stabilised.  In addressing each impairment I make the following assessment:

(a)     Epilepsy frontal lobe

Fully documented and diagnosed with both physical symptoms (seizure) and post seizure symptoms (tiredness, difficulties with sleep, lack of concentration and motivation), with lack of concentration possibly arising from the medication.

Appropriate Impairment Table is Table 21 – Intermittent Conditions

Assessment:  Table 21.1 – 3 to 4

Major restriction in many everyday activities (driving, undertaking study).  Unable to adequately maintain medication independently, with dependence on parents for such as well as provision of transport.

Table 21.2

Transient to short attacks (single) of transient duration, but may have a series of seizures over five to thirty minutes.

Table 21.3

Severity Level C – average assessment of variable circumstances.

Table 21.4 – 10 points

100 + seizures a year.  Level C severity.

Assessment for ictal phase:  10 points

I would note that assessment of the post ictal phase would result in a somewhat similar assessment, as the duration was longer.

Assessment overall for epilepsy is at least 10 points.

(b)     Behavioural Disorder

Fully documented and diagnosed (Dr Lovric).  Considered, investigated, treated and stabilised as any further treatment is not likely to lead to functional improvement within two years by virtue of the nature of the condition, Mr Huseyin’s willingness to continue to cooperate in a continuing cognitive therapy program and the difficulties associated with medication therapy in the context of Mr Huseyin’s epilepsy (Dr Lovric) are noted.

Appropriate Impairment Table is No. 6

Assessment:  Minimum 10 points as his symptoms are causing significant interference with interpersonal and social relationships, as well as causing serious disruption with educational activities and sports place activities.  Impairment of function requires long term psychological/psychiatric therapy.

(c)     Asthma and abdominal muscle strain

Both impairments are well documented, diagnosed and treated.  Both have negligible impact, with the last attack of asthma being four years prior to cancellation of DSP.  The appropriate Table is 20 and the assessment for each impairment is nil points.

24. In summary, I conclude that the total assessment of Mr Huseyin’s impairments is 20 or more points. I find that Mr Huseyin satisfied s 94(1)(b) of the Act at the date of cancellation.

25.   In turning to the continuing inability to work criterion, I am satisfied that at the date of cancellation Mr Huseyin’s impairment (epilepsy and behavioural disorder) are of itself sufficient to prevent Mr Huseyin from doing any work within the next two years.  In so stating, I note the report of the rehabilitation consultant, Ms Lee, undertaken in March 2006. I consider such report superficial in that it fails to detail and explain the extent of Mr Huseyin’s behavioural aberrations at school, at the soccer clubs, at home and at TAFE to the degree that was necessary.  In making such a finding, I rely upon the report of Dr Lovric and the detail of such behavioural aberrations nominated.  Further, I rely upon the evidence given by Mr Huseyin at the hearing and upon his father.  Further, I would note that some twenty months have elapsed since the date of his cancellation and that throughout the period Mr Huseyin has remained unemployed with the same reasons for such unemployment remaining.

26.   Further, in addressing the issue of whether the impairment (epilepsy and behavioural disorder) is of itself sufficient to prevent Mr Huseyin from undertaking educational or vocational or on-the-job training during the next two years, it is evident from the material before me that Mr Huseyin is not prevented from commencing to undertake such activities, but such material does also allow me to conclude that Mr Huseyin is unlikely to successfully conclude such activities because of the nature of his impairment.  In short, he is able to start but has never finished an undertaking and, in such circumstances, I would conclude that the impairment itself is sufficient to prevent Mr Huseyin from undertaking such activities.

27.   Finally, if the situation arose where he was able to undertake such training, the evidence before me is indicative of an outcome that such training (because of the impairment) is unlikely to enable Mr Huseyin to do any work within the next two years.

28. In summary, I am satisfied that Mr Huseyin did have a continuing inability to work at the time of the cancellation of his DSP in April 2006. In such circumstances I conclude that Mr Huseyin satisfied s 94(1)(c) as defined by ss 94(2), (3), (4) and (5) of the Act.

29.   I have found that at the date of cancellation of his DSP Mr Huseyin satisfied all criteria nominated in ss 94(1)(a), (b) and (c) and as such met the necessary qualifications for DSP.  I determine that the decision under review be set aside and in substitution thereof find that Mr Huseyin met the necessary qualifications for DSP as at 20 April 2006 and that payment should be reinstated from the day it was ceased, being 3 November 2006.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

Signed:         ................[sgd]................................................................
  Associate

Dates of Hearing  12 October 2007, 18 December 2008

and 27 January 2009

Date of Decision  23 February 2009
Advocate for the Applicant       Mr K Huseyin      
Advocate for the Respondent   Mr K Bullock