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

[2017] AATA 477

Elphick and Secretary, Department of Social Services (Social services second review) [2017] AATA 477 (13 April 2017)

Division:GENERAL DIVISION

File Number:2016/0587           

Re:Vaughan Elphick  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member  

Date:13 April 2017

Place:Sydney

The reviewable decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal dated 19 January 2016 is set aside and in substitution, the Tribunal decides that Vaughan Elphick satisfied subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) at the date of cancellation on 17 August 2015.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – mental health conditions – whether applicant’s medical conditions rated at 20 points or more under Impairment Tables – whether applicant had a continuing inability to work – decision set aside and decision made in substitution

LEGISLATION

Social Security Act 1991 (Cth) s 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

13 April 2017

INTRODUCTION

1. The applicant, Mr Vaughan Elphick, was granted a disability support pension from 23 July 2010.[1]

   [1] Exhibit T1-T16.

2. On 19 January 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal affirmed the decision of the Secretary to cancel Mr Elphick’s disability support pension. The basis of this decision was that Mr Elphick ceased to satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act) at the date of cancellation on 17 August 2015.

3. Mr Elphick applied to the General Division of the Tribunal on 5 February 2016 for a review of the SSCSD decision.

4. The matter was heard in Sydney on 6 March 2017. Mr Elphick had legal representation and attended the hearing by phone.

   RELEVANT LEGISLATION AND ISSUES

5. The power for the Secretary to cancel Mr Elphick’s disability support pension is contained in section 80(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). Pursuant to section 118(13) of the Administration Act, the cancellation decision takes effect on the day on which it was made, in this case on 17 August 2015 (date of cancellation).

6. In assessing whether Mr Elphick qualified for the disability support pension in 2015, Centrelink was required to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination), pursuant to sections 27(3) and (4) of the Act.

7. 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 by the Act.

8. Mr Elphick had to satisfy these criteria at the date of cancellation.

9. The Secretary concedes, and the Tribunal agrees, that Mr Elphick suffers medical conditions that cause impairment and therefore, satisfied subsection 94(1)(a) of the Act at the date of cancellation.

10. It follows that the determinative issues in this matter are whether, at the date of cancellation, Mr Elphick 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 Elphick have medical conditions that can be rated at 20 points or more under the Impairment Tables?

11. The 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.

12. 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.

13. 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’.

14. Relevantly, the Introduction to Table 5 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)’.

15. At the Tribunal hearing, Mr Elphick’s legal representative submitted that the only medical conditions for consideration by the Tribunal is his depression and attention deficit hyperactivity disorder (ADHD).

16. I now consider Mr Elphick’s conditions of depression and ADHD and the relevant rating under the Impairment Tables.

    Depression and ADHD – mental health condition

17. Dr Alan Garrity (Consultant Psychiatrist) has been Mr Elphick’s treating psychiatrist since April 2008 and provided medical reports regarding Mr Elphick’s conditions of depression and ADHD on 2 April 2008, 10 February 2009, 10 March 2009, 17 November 2009, 23 December 2009, 7 May 2010, 7 February 2011, 16 March 2015, 3 September 2015, 10 February 2016, 6 May 2016 and 23 June 2016.[2]

    [2] Exhibits T1-T6, T1-T7, T1-T8, T1-T10, T1-T15, T1-T18, T1-T28, ST1, ST3 and ST5.

18. On 3 September 2015, Dr Garrity provided a report that diagnosed Mr Elphick with:

    1.    Treatment resistant Major Depression: onset in early to mid 2000s.

    The depression has proven treatment resistant in that he has failed to respond to multiple trials of various antidepressants and augmenting medications and he has likewise failed to respond to psychological management.

    2.    Attention Deficit Hyperactivity Disorder (ADHD – of the Inattentive Subtype): onset in childhood with treatment in his teens with Dexamphetamine. His symptoms have persisted into adulthood.[3]

    …

    [3] Exhibit T1-T28, p 182.

19. Dr Garrity described Mr Elphick’s symptoms of depression as:

    Low mood, difficulty enjoying anything, markedly reduced motivation and concentration, low energy levels, impaired sleep cycle, social withdrawal, low confidence levels.

    (a)  Severity: moderate to severe (some fluctuation).

    (b)  Frequency: present each day, throughout the day.

    (c)  Duration: over a decade.[4]

    [4] Exhibit T1-T28, p 183.

20. Mr Elphick’s symptoms of ADHD (Inattentive Subtype) were described by Dr Garrity as:

    Impaired concentration and organisation, difficulty taking in information, procrastination.

    (a)  Severity: moderate

    (b)  Frequency: affects him throughout the day

    (c)  Duration: since childhood.[5]

    [5] Exhibit T1-T28, p 183.

21. Dr Garrity further highlighted in his report on 3 September 2015 that Mr Elphick’s main problem has been ‘the COMBINATION of depression with the ADHD’ [emphasis in original].[6]

    [6] Exhibit T1-T28, p 183.

22. In his reports in 2015 and 2016, Dr Garrity described the impact of Mr Elphick’s depression and ADHD on his ability to function. On 10 February 2016, Dr Garrity reported Mr Elphick’s ability to function as follows:

    (a)Self-care and independent living: Mr Elphick lives with his ex-partner who is also his carer. He is unable to live independently and his ex-partner/carer does most of the domestic chores. He is suffering from severe functional impairment.

    (b)Social/recreational activities and travel: Mr Elphick rarely has social contact and his main social contact is with his ex-partner/carer. His social functioning has been severely affected by his disabilities.

    (c)Interpersonal relationships: Mr Elphick rarely has social contact except with his ex-partner/carer and most of his time is spent at home. His impairment is severe.

    (d)Concentration and task completion: Mr Elphick has markedly impaired concentration and very low motivation levels. He is currently trying to study but can only concentrate for a couple of minutes before his attention wanders. His concentration and task completion is severely impaired.

    (e)Behaviour, planning and decision making: Mr Elphick is poorly organised and unstructured in his approach to tasks. He becomes anxious when unable to meet demands of study and ‘copes’ by procrastinating. He struggles to become active before midday. He has severe functional impairment in this area.

    (f)Work/training capacity: In the past decade, the only work Mr Elphick has had was working in a friend’s IT business. He struggled to attend work on a daily basis and his concentration was poor. The work allowed him to work from home but he was not meeting the job requirements and was made redundant after his friend left the business. He is severely functionally impaired in terms of work/training capacity.[7]

    [7] Exhibit ST1, pp 267-268.

23. On the basis of this assessment, on 23 June 2016, Dr Garrity stated that Mr Elphick’s functional impairment is severe and he would rate 20 points on Table 5 of the Impairment Tables.[8]

    [8] Exhibit ST5.

24. Dr Garrity’s diagnosis and assessment of Mr Elphick is supported by reports by Dr Robert Hampshire (Consultant Psychiatrist) dated 11 May 2009 and 24 February 2015, which confirmed Mr Elphick has a depressive illness which is treatment resistant and suffering from post-traumatic stress disorder (PTSD).[9]

    [9] Exhibit T1-T28, pp 175, 198.

25. Dr Ainslie Maddock (General Practitioner) in a medical letter dated 25 September 2015 also confirmed Mr Elphick’s major conditions are:

    Major Depression and Attention Deficit Hyperactivity Disorder (ADHD – inattentive type), however his condition is also impacted by a history or chronic pain and post traumatic stress disorder (PTSD) owing to motor bike accidents in 2004 and 2007 in which he suffered injuries to his right shoulder and right ankle…[10]

    [10] Exhibit T1-T28, pp 180-181.

26. In a confidential review of Mr Elphick’s medical history, Dr Sandra Armstrong (Medical Adviser) provided reports dated 29 September 2016 and 12 October 2016. Dr Armstrong did not assess Mr Elphick in person but undertook an assessment in relation to Mr Elphick based on his medical reports.

27. Dr Armstrong opined that Mr Elphick’s ‘depression and anxiety’ had a moderate impact on his ability to function because he ‘coped well for extended periods’ while his ex-partner/carer was away, he has been able to travel independently overseas, he undertakes full-time university study and engages on social media.[11] Dr Armstrong gave oral evidence at the Tribunal hearing and confirmed her opinion and assessment of Mr Elphick’s condition.

    [11] Exhibit ST11, pp 335-336.

28. Mr Elphick and his ex-partner/carer provided written statements to the Tribunal.[12] At the Tribunal hearing, they also separately gave extensive evidence about the functional impact of Mr Elphick’s depression and ADHD. In particular, Mr Elphick stated:

    ·He worked in Melbourne in 2012–2013 after a friend offered him a job in an IT business.[13] The role was very flexible and he was able to work part-time from home and flexible hours. When his friend left the business, he was made redundant.

    ·He travelled overseas in 2014. He said this was a familiar process and he was able to go through customs and undertake the flight on his own, as he had done this trip previously. However, he required his parents to take him to the airport in Australia and his ex-partner/carer to collect him from the airport in Germany. He stayed with his ex-partner/carer for the duration of his time in Germany.

    ·When his ex-partner/carer was overseas, Mr Elphick is unable to live alone and stayed with his parents during these periods. He is unable to care for himself or undertake domestic chores, but will periodically accompany his ex-partner/carer to do the grocery shopping.

    ·His on-line presence is due to his long-term career in the IT industry. He said that he sits at his computer for a couple of hours every day but often does not know what he has done during this time.

    ·He and his ex-partner/carer enrolled in university study in 2015. This study involved two face-to-face weekly sessions of two hours duration and on-line study. During 2015, he completed five units, which required him to study approximately six hours per week. His ex-partner/carer, who also enrolled in the same course, supported him in his studies and accompanied him to university. He stated that he would not be able to undertake this study without the support and assistance of his ex-partner/carer.

    [12] Exhibits A1 and A2.

    [13] Exhibit ST4.

29. Based on the evidence before me, I am satisfied that Mr Elphick’s mental health condition was fully diagnosed, fully treated and fully stabilised during the claim period. I place significant weight on the evidence of Dr Garrity, who has been Mr Elphick’s treating psychiatrist for almost nine years. Having regard to the information at Table 5 – Mental Health Function, I am satisfied that Mr Elphick’s mental health condition has a severe functional impact on activities involving his mental health function and I assign an impairment rating of 20 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

30. In accordance with my findings at paragraph 29 above, Mr Elphick has a total of 20 points under the Impairment Tables and so has met the requirement of subsection 94(1)(b) for an impairment rating of 20 points or more.

    Does Mr Elphick have a continuing inability to work as defined in section 94(2) of the Act?

31. The next issue I must consider is whether, as required by subsection 94(1)(c), Mr Elphick has a continuing inability to work because of his impairment.

32. A ‘continuing inability to work’ is defined in section 94(2) of the Act, which provides that:

    (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.

33. Section 94(3) requires that I am not to have regard to the availability to the person of a training activity, or the availability to the person of work in the person’s locally accessible labour market.

34. The Secretary advises that Mr Elphick is not a ‘reviewed 2008-2011 DSP starter’ and therefore the Program of Support (POS) requirements do not apply.

35. A Job Capacity Assessment (JCA) Report for Mr Elphick was submitted on 30 July 2015. At the Tribunal hearing, Mr Elphick criticised the JCA interview process as brief; he was not asked relevant questions and his interview was not with a psychiatrist.

36. The JCA concluded that Mr Elphick had a baseline work capacity of 8-14 hours per week and his capacity to work within two years with intervention is 15-22 hours per week.[14]

    [14] Exhibit T-T23, p 158.

37. At the Tribunal hearing on 6 March 2017, Mr Elphick described the effect of his depression and ADHD. He said that he was unable to concentrate for extended periods, has low motivation, procrastinates and relies on his ex-partner/carer to assist him to complete tasks for his university studies. This evidence was supported by Mr Elphick’s ex-partner/carer, who told the Tribunal she needs to make and attend appointments with him because otherwise, he would forget.

38. I also consider the report of Dr Garrity dated 6 May 2016, which stated:

    …I do not believe that a change in medication will lead to any significant functional improvement, to a level enabling him to undertake work…

    I believe his symptoms have severely affected his ability to work. I believe that his attempts in Victoria illustrate how, without the presence of a friend in his actual work environment, he is not able to sustain at least 15 hours per week of work. I don’t think he would be able to sustain at least 15 hours per week or work during the period from 17/8/15 to 17/8/17.[15]

    [15] Exhibit ST3, pp 286-287.

39. On the basis of all the evidence before me, which has been extensively set out in my reasons above and my findings at paragraph 29, I find that Mr Elphick’s impairment is of itself sufficient to prevent him from doing any work independently of a POS during the next two years. I am therefore satisfied that the requirement in subsection 94(2)(a) is met.

40. I must now consider whether, as required by subsections 94(2)(b)(i) and (ii), Mr Elphick’s impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years; or because of his impairment, any training activity is unlikely to enable Mr Elphick to do any work independently of a POS within the next two years.

41. On the basis of all the evidence before me, which has been extensively set out in my reasons above and my findings at paragraph 29, I find that Mr Elphick’s impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years and that any training activity is unlikely to enable Mr Elphick to do any work independently of a POS during the next two years. I am therefore satisfied that the requirement in subsection 94(2)(b) is met.

42. I find that Mr Elphick has a continuing inability to work as required by subsection 94(1)(c) of the Act.

    CONCLUSION

43. For the reasons set out above, I am satisfied that, at the date of cancellation, Mr Elphick was qualified to receive the disability support pension.

    DECISION

44. The reviewable decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal dated 19 January 2016 is set aside and in substitution, the Tribunal decides that Mr Elphick satisfied subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) at the date of cancellation on 17 August 2015.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

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

Associate

Dated: 13 April 2017

Date of hearing:	6 March 2017
Counsel for the Applicant:	Ms R Graycar
Solicitors for the Applicant:	Ms L Rogers
Solicitors for the Respondent:	Ms H Musgrove, Department of Human Services