Edward Quinn and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

[2013] AATA 62

[2013] AATA 62 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3157
Re	Edward Quinn
APPLICANT
And	Secretary, Department of Families, Housing, Community Services & Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President RP Handley
Date	6 February 2013
Place	Sydney

Decision Summary:  The decision under review is affirmed.

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

Deputy President RP Handley

CATCHWORDS

FAMILY ASSISTANCE AND SOCIAL SECURITY – Application for Disability Support Pension (DSP) – Tables of Impairment – Whether Applicant’s conditions were fully diagnosed, treated and stabilised at the time of his application for DSP – Insufficient medical evidence – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Deputy President RP Handley

1. Mr Quinn has applied for the review of a decision of the Social Security Appeals Tribunal (the SSAT) made on 5 July 2012 to affirm a departmental decision to reject Mr Quinn’s claim for a disability support pension (DSP).

   BACKGROUND

2. Mr Quinn was born in 1967 and is aged 45. He is single and lives with his father in the family home. Mr Quinn suffers from anxiety and depression associated with drug dependency and a urethral stricture which requires treatment from time to time.  He has been receiving Newstart Allowance payments since 8 May 2006.

3. On 29 July 2011, Mr Quinn lodged a claim for DSP. On 15 September 2011, a Centrelink officer decided that Mr Quinn was not qualified for DSP because he did not have an impairment of 20 points or more under the Impairment Tables. This decision was affirmed by an authorised review officer and by the SSAT and, on 25 July 2012, Mr Quinn applied to the Tribunal for a review of the SSAT’s decision.

   THE RELEVANT LAW AND ISSUES

4. Section 94 of the Social Security Act 1991 (Cth) (the Act) states relevantly that:

   (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;

   …

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

   (aa)  in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)  in all cases--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)  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.

   …

   (3B)  A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

5. Work is defined in s 94(5) as follows::

   "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.

6. The Impairment Tables means the Tables determined by legislative instrument made by the Minister pursuant to s 26(1) of the Act.

7. Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) requires that Mr Quinn’s qualification for DSP be assessed as at the date he made his claim for DSP or in the 13 week period following this. His claim was lodged on 29 July 2011. The relevant period is, therefore, 29 July 2011 to 28 October 2011.

8. There is no dispute that Mr Quinn suffers from a physical and a psychiatric impairment thereby satisfying s 94(1) of the Act. At issue is whether these impairments should attract an impairment rating of 20 points or more under the Impairment Tables and, if so, whether Mr Quinn has a continuing inability to work.

   SUBMISSIONS

9. The Secretary submits that Mr Quinn’s physical and psychiatric conditions were not fully diagnosed, treated and stabilised during the relevant period and so cannot be considered permanent within the meaning of the Act. Thus, Mr Quinn does not satisfy s 94(1)(b) of the Act. The Secretary also submits that even if Mr Quinn were to satisfy s 94(1)(b), he does not have a continuing inability to work (s 94(1)(c)). The Secretary contends that Mr Quinn’s impairments have not been assigned an impairment rating of 20 points or more under a single Impairment Table and he does not therefore have a ‘severe impairment’ as defined in s 94(3B). Where a person does not have a ‘severe impairment’, s 94(2)(aa) requires the person to have actively participated in a program of support. If the person has not done so, they cannot be found to have a continuing inability to work. The Secretary contends that because Mr Quinn does not have a severe impairment and has not actively participated in a program of support, he does not have a continuing inability to work and does not satisfy s 94(1)(c)(i) of the Act. Thus, he was not qualified for DSP at the relevant time.

10. Mr Quinn expressed his frustration that despite having submitted evidence from his general practitioner, Dr MA Cole about the level of his impairments and his continuing inability to work, nobody seems to be listening to him. Mr Quinn said his condition remains unchanged and prevents him working.

    THE EVIDENCE

11. The medical evidence available in respect of Mr Quinn comprises reports from Dr Cole. There is also a report dated 17 August 2011 from a counsellor, Ms B El-Husseini. I note, however, that while Ms El-Husseini has a Master of Social Science and Graduate Diploma in Counselling, she is not a psychologist and not qualified to make a psychological assessment. Thus, the only medical reports provided to me are those of Dr Cole.

12. Mr Quinn said he had submitted earlier medical certificates stating that he was unfit for work, and I note he has been receiving Newstart Allowance since 8 May 2006. No such documents were included in those provided to me by the Department. In view of the Department’s contention that Mr Quinn’s conditions were not fully diagnosed, treated and stabilised at the relevant time, in my view, if such documents are held by the Department, they should have been provided.

13. In the Medical Report completed by Dr Cole on 22 August 2011 in connection with Mr Quinn’s claim for DSP, Dr Cole diagnoses “depression – anxiety” with a date of onset of more than 10 years. She states the date of diagnosis as 20 July 2010 which was the date she first examined Mr Quinn. Dr Cole describes the history of this condition as “long-term anxiety/depression (secondary to) drug abuse – on & off medication – social phobia”, and the current symptoms as “Socially withdrawn – difficulties travelling, getting out of home”. In terms of the effect of this condition on Mr Quinn’s ability to function, Dr Cole states, “[u]nable to concentrate, probs getting out of home eg to go shopping, agoraphobic”, which is expected to persist for more than 24 months. She states: “[h]ope for gradual improvement” noting that Mr Quinn should continue counselling and medication. In view of this comment and the comment in Dr Cole’s later report dated 19 September 2012 that when Mr Quinn became her patient, “He was started with anti-depressants, referred for counselling”, there is a suggestion that treatment might have led to an improvement in his condition.

14. Dr Cole also diagnoses Mr Quinn as suffering from a “urethral stricture”, diagnosed on 28 September 2010, which gives rise to progressive difficulty in passing urine, culminating in acute retention. Dr Cole noted that Mr Quinn has had surgery for this condition (he was hospitalised on 28 July 2010 for two days) but needs to follow this up with “regular self-catheterisation to assist voiding – still some difficulties”. She said this condition might require follow-up with the treating specialist for a re-dilation. In terms of functional effect, Dr Cole states this condition causes “some difficulties when away from home”. That there may be a need for “follow up” suggests that the condition might not be fully stabilised at that time. 

15. Dr Cole has also provided medical certificates from time to time over the period 28 September 2010 to 21 February 2012 certifying that Mr Quinn is unfit for work because of his depression, which is a permanent condition and likely to persist for two years or more. 

16. Most recently, for the purpose of these proceedings, Dr Cole provided a report dated 19 September 2012. Dr Cole states:

    Edward Quinn was initially seen here in July 2010 when he presented due to an urgent urological medical condition. He had not seen any doctors for many years and had become recluse [sic], with problems of anxiety/depression and drug dependency. …

    Having dealt with his urgent medical problem his issues with anxiety and depression began to be addressed. He gives a long history of amphetamine use and cannabis addiction.

    He was started with anti-depressants, referred for counselling and in April 2011 was issued a Centrelink medical certificate as his anxiety, social phobia and agoraphobia were preventing him seeking work.

17. Dr Cole describes how Mr Quinn was living with his parents. She commented that when his mother was admitted to hospital in December 2011, her being admitted to hospital “for a while was good for Edward as he had to take on more household chores and actually accompanied his father with shopping and groceries as well as a few times did errands on his own”. This suggests some improvement in Mr Quinn’s functioning at that time. His mother subsequently died in early 2012 and he continues to live with his father. Mr Quinn has continued with counselling and antidepressants but is still using cannabis daily and:

    … has to take valium for anxiety, particularly when having to meet people, speak to people or attend interviews.

    His long term daily use has left him mildly cognitively impaired. He suffers chronic anxiety and depression. He is unreliable.

    He is still somewhat agoraphobic and has no social interaction other than family and close friends.

    I cannot see his condition changing much in the future as, to date, attempts to help have not been fruitful.

    With reference to Table 6 – Psychiatric Impairment in your impairment schedule I rate him as a level 30, and from Table 7 – Alcohol and Drug dependence – as a level 20-30.

18. In her report dated 17 August 2011, Ms El-Husseini stated:

    Edward has been attending counselling sessions on a regular basis to address the above mentioned issues. Edward disclosed that he is a frequent cannabis smoker and that this was a habit that he has been addicted to for over thirty years. Edward also revealed that he has battled with substance abuse for most of his life and only in the last five years has been able to abstain from excessive alcohol consumption and other drug use.

    … Edward disclosed that he has been admitted into psychiatric care in the past for a suicide attempt and drug induced psychosis. …

    Edward has been diagnosed with depression and panic disorder. He spends a great deal of time in his room and on most days struggles to get out of bed. Edward also finds it challenging to be out in public and avoids having to leave the house. …

    At this particular stage, it is believed that Edward is not work ready and most likely to be incapable of maintaining employment. …

    … I strongly recommend that Edward be considered for the Disability Support Pension until these issues have been effectively treated or managed. …

19. There are also three Job Capacity Assessment (JCA) Reports for Mr Quinn:

    ·In the first JCA report completed by Jillian Bonham, a physiotherapist, dated 7 October 2010, Ms Bonham states that both Mr Quinn’s depression and urinary tract disorder are fully diagnosed and permanent but not fully treated or stabilised and that a significant improvement in symptoms could be expected within the next two years. Ms Bonham recognises that Mr Quinn had a very limited capacity for work at that time (0 to 7 hours per week) because of his “currently exacerbated permanent medical conditions” and considered that his assessed work capacity of 15-22 hours per week due to his medical conditions was likely to last more than two years. She said the conditions did not prevent Mr Quinn from using public transport.

    ·In the second JCA report completed by Michaela Murphy, a registered nurse, dated 9 September 2011, Ms Murphy states that Mr Quinn’s depression and drug dependence is fully diagnosed and permanent but his urinary tract disorder is temporary. Ms Murphy appears to consider that Mr Quinn’s depression is not fully treated, and that his urinary tract condition is still undergoing review and treatment. Ms Murphy  states that Mr Quinn’s capacity for work within two years is 15-22 hours per week but that Mr Quinn has a capacity for 30 hours plus per week as “the customer does not have any permanent, fully diagnosed, treated and stabilised medical conditions”. Ms Murphy also states that Mr Quinn’s medical conditions prevent him from using public transport.

    ·In the third JCA report completed by Donna Digiacomo, a registered psychologist, dated 17 April 2012, Ms Digiacomo states that Mr Quinn’s depression is permanent but makes no mention of a urinary tract disorder. It is not clear whether Ms Digiacomo regards Mr Quinn’s depression as fully treated and stabilised. She states that Mr Quinn’s capacity for work within two years is 15-22 hours per week with counselling intervention and assistance, and that Mr Quinn’s depression does not prevent him from using public transport.

20. In the case of all three reports, there appears to be very little evidence to support the conclusions reached and, in my view, I should accord them very little weight. Other than Dr Cole’s evidence, one of the frustrations about making a decision in this case is the lack of relevant medical evidence. For example, there is no psychiatric or psychological assessment. Given that Mr Quinn’s anxiety and depression and drug dependence are long standing conditions as a result of which, according to Dr Cole, he is currently unfit for work, in my view, there needs to be such an assessment to assist in ascertaining whether any further treatment may lead to improved functional capacity (the capacity a person experiences in relation to work). Functional capacity is emphasised by the Impairment Tables (see paragraph 3 of the Introduction to the Tables), and is an important factor in determining whether a person has a continuing inability to work. In the particular circumstances of this case, it would, in my view, have been beneficial for Centrelink to have assisted Mr Quinn in obtaining a psychiatric or psychological assessment. Unfortunately, this did not happen.

21. The Introduction to the Impairment Tables, at paragraph 4, requires that for an impairment rating to be assigned, “the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”. Clause 4(1) of Schedule 2 of the Administration Act (see paragraph 7, above) requires that the relevant period for Mr Quinn’s qualification for DSP to be assessed is the date of claim or the 13 week period following this – that is 29 July 2011 to 28 October 2011. I am not satisfied from the evidence available to me that during that period Mr Quinn’s conditions were fully documented nor fully investigated, treated and stabilised. However, I note that since that time, the situation may well have changed and Dr Cole’s report dated 19 September 2012 indicates that it has.

22. At the telephone hearing in this matter, Mr Quinn told me that he was no longer seeing Ms El-Husseini and that he wanted to see a psychologist for treatment and had obtained a referral for this purpose from Dr Cole. I suggested to Mr Quinn that he might ask his treating psychologist to prepare a psychological report and should consider lodging a new claim for DSP having first obtained such a psychological report and an updated report from Dr Cole addressing both his anxiety and depression and his urethral condition. Such reports should accompany the new claim.

    DECISION

23. I have expressed the frustration I have experienced in determining this matter as a result of the lack of medical evidence. However, given that I am not satisfied from the evidence available to me that during the relevant period Mr Quinn’s conditions were fully documented nor fully investigated, treated and stabilised, I have reluctantly decided that the decision to reject Mr Quinn’s claim for a DSP should be affirmed.

I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.

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

Associate

Dated 6 February 2013  

Date of hearing	31 January 2013
Date final submissions received	31 January 2013
Applicant	In person
Advocate for the Respondent	K Martini, Department of Human Services