Derrick and Secretary, Department of Social Services (Social services second review)

[2017] AATA 714

Derrick and Secretary, Department of Social Services (Social services second review) [2017] AATA 714 (22 May 2017)

Division:GENERAL DIVISION

File Number:2016/3911           

Re:Christopher Derrick  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:22 May 2017

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant has impairment rating of 20 point or more under the Impairment Tables – whether applicant had a continuing inability work – mental health function – condition rated less than 20 points under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 94,

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

22 May 2017

INTRODUCTION

1. The applicant, Mr Christopher Derrick, is 38 years old. He lodged a claim for disability support pension on 26 November 2015.

2. The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Derrick did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

3. In a decision dated 8 July 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Derrick not satisfy subsection 94(1)(b) of the Act and so he did not qualify for the disability support pension.

4. On 22 July 2016, Mr Derrick applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 11 May 2017. Mr Derrick attended the hearing by phone and was assisted by a community representative.

   RELEVANT LEGISLATION AND ISSUES

6. Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.

7. In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Mr Derrick must satisfy the requirements of section 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, that is between 26 November 2015 and 25 February 2016 (the claim period).

8. The Respondent concedes, and the Tribunal agrees, that Mr Derrick suffers medical conditions that cause impairment and therefore, he satisfied subsection 94(1)(a) of the Act at the time of his claim for the disability support pension.

9. It follows that the determinative issues in this matter are whether, during the relevant claim period, Mr Derrick had:

   (a)an impairment rating of 20 points or more under the Impairment Tables; and

   (b)a continuing inability to work as defined in section 94(2) of the Act.

   Does Mr Derrick have medical conditions that can be rated at 20 points or more under the Impairment Tables?

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

11. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

12. The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.

13. Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition ‘must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).’

14. I now consider Mr Derrick’s medical conditions and their appropriate rating under the Impairment Tables.

    Mental health condition

15. In his claim for Disability Support Pension signed and dated 30 November 2015, Mr Derrick listed his disabilities as severe anxiety, severe depression, learning difficulties, severe stress, alcohol addiction and sleeping problems.

16. A medical certificate by Dr Jerome Dimaano (general practitioner) dated 30 November 2015 diagnosed Mr Derrick with anxiety/depression, which had a date of onset of 15 November 2007. Dr Dimaano listed Mr Derrick’s symptoms as anxiety, poor motivation, depression and poor sleep pattern, and set out treatment as:

    Past: psychotherapy

    Current: further psychotherapy

    Planned: recommencement of medication.[1]

    [1] Exhibit T18.

17. Dr Jane Selby (clinical psychologist) provided a medical report dated 28 January 2016. Dr Selby diagnosed Mr Derrick with anxiety disorder and noted he ‘scores “EXTREMELY SEVERE” for anxiety, stress and depression on DASS (21) [Depression, Anxiety Stress Scales] scale’ [emphasis in original].[2] Dr Selby further stated that Mr Derrick commenced psychological treatment in December 2010 and described his symptoms as:

    General anxiety, most days, severe to incapacitating panic symptoms lasting hour or so. Needs help from neighbours when severe, including practical help such as shopping. …

    Inability to concentrate due to easily-triggered anxiety/panic. Stress related. Anxiety-triggered irritability leading to poor social skills.

    [2] Exhibit T22, p 173.

18. Mr Derrick told the Tribunal that he has been seeing Mr Darren Wilson (consulting psychologist) since 2010. Mr Derrick said that seeing Mr Wilson on a fortnightly basis, when he is able to access appointments though ATAPS (Access To Allied Psychological Services), provides him with strategies to deal with his anxiety and depression.

19. Mr Wilson has provided a number of reports dated 8 April 2010, 1 July 2010, 15 July 2010, 7 February 2011, 6 March 2013, 17 July 2013, 30 October 2013, 30 April 2015, 30 June 2016 and 24 November 2016. In his report dated 24 November 2016, Mr Wilson observed Mr Derrick ‘has had a long history of significant adjustment difficulties as he worked through his involvement in numerous social anxiety producing situations’ and assessed his anxiety condition as having a severe functional impact.[3]

    [3] Exhibit ST10.

20. Dr Prashanth Mayur (consultant psychiatrist) reported on 27 January 2017, approximately one year after the relevant claim period. Dr Mayur stated that Mr Derrick ‘presented with a complex set of problems including learning disability, symptoms of ADHD and anxiety since childhood’.[4] He further noted that Mr Derrick ‘is adamant that he will not start medications due to his religion’ and ‘trials of antidepressant medications have been unsuccessful’. Dr Mayur described Mr Derrick as anxious with depressive symptoms which have worsened over the past two years.

    [4] Exhibit ST14.

21. At the Tribunal hearing, Mr Derrick said that he had taken antidepressant medications for approximately five years between 2010 and 2015. However, in his view, these medications did not assist his mental health conditions and led to him gaining weight. Mr Derrick told the Tribunal that seeing Mr Wilson on a regular basis is most beneficial to assisting him to manage his anxiety, depression and stress disorder. However, he is only able to see Mr Wilson regularly when he has ATAPS appointments.

22. The Secretary contends that Mr Derrick’s condition was fully diagnosed but not fully treated because he had not recommenced taking medication as set out in Dr Dimaano’s medical certificate on 30 November 2015. I accept Mr Derrick’s view, which is medically corroborated by Dr Mayur, that he trialled taking antidepressant medications for five years but has found these to be unsuccessful in treating his mental health conditions.

23. Mr Derrick told the Tribunal that he lives alone but requires assistance. His brother visits him once or twice per week; his neighbours help him with shopping and household chores, and remind him to shower and care for himself. While he engaged with people socially in late 2015, he said he doesn’t do this anymore. He struggles to watch TV or undertake any task that requires concentration for 30 minutes, and participated in the Tribunal hearing with the assistance of a community representative. He sleeps during the day and said he has one good day a week.

24. Mr Derrick’s evidence to the Tribunal indicates that the functional impact of his anxiety and depression has significantly worsened since he lodged his claim for disability support pension in November 2015. However, I am required to assess the functional impact of his condition at the relevant claim period.

25. The Job Capacity Assessment (JCA) report dated 10 February 2016 stated that Mr Derrick reported:

    …he has good days and bad days and on good days he can do his own shopping and cooking etc however on bad days he requires assistance from friends and family… He reports poor concentration…for more than 30 mins… [H]e has difficulty sustaining interpersonal relationships…[5]

    [5] Exhibit T23, p 183.

26. Based on the evidence before the Tribunal, I am satisfied that Mr Derrick’s mental health condition was fully diagnosed, fully treated and fully stabilised during the relevant claim period. Having regard to the information at Table 5 – Mental Health Function, I am satisfied that Mr Derrick’s mental health condition had a moderate functional impact on activities involving his mental health function during the relevant claim period and I assign an impairment rating of 10 points. In making this assessment, I have regard to paragraph 11(4) of the Impairment Tables Determination, which states that episodic and fluctuating conditions should reflect ‘the overall functional impact of those impairments’.

    CONCLUSION

27. For the reasons set out above, I am satisfied that Mr Derrick did not meet the requirements of section 94(1)(b) of the Act during the claim period as his impairments were not rated at 20 points or more under the Impairment Tables.

28. As I find that Mr Derrick did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.

29. If Mr Derrick’s circumstances change, he is entitled to submit a new application for the disability support pension.

    DECISION

30. The decision under review is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave

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

Associate

Dated: 22 May 2017

Date of hearing:	11 May 2017
Advocate for the Applicant:	Ms S Brybag, Penrith Disabilities Resource Centre Inc.
Solicitors for the Respondent:	Ms C Alexander, Department of Human Services