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

[2020] AATA 289

Foenander and Secretary, Department of Social Services (Social services second review) [2020] AATA 289 (25 February 2020)

Division:GENERAL DIVISION

File Number:          2019/3172

Re:Nigel Foenander

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:25 February 2020

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member R West

Catchwords

SOCIAL SECURITY – disability support pension – mental health condition – spinal condition – right shoulder pain – cryptogenic organising pneumonitis – whether conditions fully treated and stabilised in the qualification period – whether impairments attract rating of 20 points or more under impairment tables – program of support not undertaken – whether applicant has a severe impairment – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353

Fanning and Secretary, Department of Social Services, Re (2014) 144 ALD 133; [2014] AATA 447

Secondary Materials

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

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Member R West

25 February 2020

BACKGROUND

1. This matter concerns the refusal of the Disability Support Pension (DSP) to the Applicant and is a Second Tier Review of that decision by the Administrative Appeals Tribunal, General Division (Second Tier Review).

2. The relevant history of the matter is as follows:

   (a)The Applicant made his original application for DSP on 18 July 2018.

   (b)Centrelink assessed and refused the application on 7 September 2018 (Initial Decision).

   (c)A Departmental authorised review officer (ARO) affirmed the Initial Decision on 15 January 2019 (ARO Decision).

   (d)A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (First Tier Review) and a decision affirming the ARO Decision was handed down on 14 May 2019.

   (e)The Applicant applied for a Second Tier Review on 4 June 2019.

3. A hearing relating to the Second Tier Review was held on 5 December 2019.  The Applicant was self-represented.  The Respondent was represented by Ms Anneliese Massey, a solicitor with Sparke Helmore Lawyers.

   QUALIFYING PERIOD

4. The Tribunal must make a decision whether to grant the DSP having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] Social Security (Administration) Act 1999 ss 37, 42; sch 2 cls 3–4.

5. In this case the qualification period commenced on 18 July 2018 and ended on 17 October 2018.

6. In assessing whether a condition has stabilised and is likely to persist for the future the Tribunal must look at the situation during the qualification period, having regard to the evidence available at the time.  Evidence of deterioration in the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Covenden and Secretary, Department of Social Services, Re [2018] AATA 353 at [7].

   DSP QUALIFICATION

7. To qualify for the DSP an applicant must satisfy the requirements set out in s 94(1) of the Social Security Act  1991 (the Act) as assessed during the qualification period.

8. In essence s 94(1) of the Act requires that:

   (a)the Applicant have a physical, intellectual or psychiatric impairment;

   (b)the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years;

   (c)the Applicant has a severe impairment (an impairment rating of at least 20 points on a single table contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables)), or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

   (d)the Applicant has a continuing inability to work, or the Secretary is satisfied that the Applicant is participating in the supported wage system.

9. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment, or has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.

10. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014  (the Determination) provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

11. In conducting the Second Tier Review, the Tribunal has had regard to the documents produced by the Respondent pursuant to ss 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the T Documents); the oral evidence of the Applicant; and a bundle of medical reports related to the Applicant’s heart condition (Exhibit A1).

    Background

12. The Applicant is 64 years old.  He previously worked as a teacher’s aide, a funeral celebrant and an entertainer.[3] 

    [3] T23 p.133.

13. In September 2015 he was sent to prison, having been convicted of an offence committed some 30 years earlier.  He was released from prison in November 2017 and will be on parole until September 2020.  He has not had paid employment since his release from prison and claims that he has little chance of obtaining employment with his criminal record; especially because of the common pre-employment requirement that he obtain a Police Check and Working with Children Check.

14. The Applicant’s claim for DSP relates to the following conditions:

    (a)a mental health condition;

    (b)a spinal condition – lower back pain, lumbar joint degeneration and cervical radiculopathy;

    (c)right shoulder pain; and

    (d)cryptogenic organising pneumonitis (COP).

    Preliminary Consideration

15. In the course of his submissions the Applicant acknowledged that he had not actively participated in a program of support, as required by s 94(2) of the Act. This was because, at the time of lodging his claim for the DSP in July 2018, he had not had the opportunity to participate in a program for at least 18 months in the three years immediately prior to the date of claim, as required by s 7 of the Determination. Participation had been prevented by his imprisonment.

16. Accordingly, the issue of whether the Applicant met the requirements of s 94(2) during the qualification period depends solely on whether any of his impairments is a severe impairment, attracting a rating of 20 points or more on any one of the Impairment Tables.

17. The first issue for determination for each condition is whether the Applicant’s claimed impairments can be rated under the Impairment Tables. An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period the Applicant’s condition causing the impairment is permanent, that is, fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.[4]

    [4] The Act s 94(1).

    Mental health condition

18. The Applicant claims to suffer from a major depressive disorder and post-traumatic stress disorder. This diagnosis is confirmed in the report of Dr Ian Katz, consultant psychiatrist, of 27 June 2018.[5]

    [5] T9 at p.57.

19. The Respondent accepts that the Applicant’s mental health condition was fully diagnosed during the qualification period but disputes that it was fully treated or stabilised at that time.

20. The Applicant gave evidence that his current mental health condition had resulted from his term of imprisonment.  He said that prior to his time in prison he was an outgoing person but now feels worthless and out of place.

21. Dr Bihag Bhatt, the Applicant’s general practitioner, reported that the Applicant’s mental health condition, which he had noted since 2012, had deteriorated since his release from prison.[6]  Dr Bhatt noted that since 2012 the Applicant had trialled various medications and undertaken psychological counselling.  Dr Bhatt’s assessment in July 2018 was that the Applicant had exhausted all reasonable treatment options and was not expected to improve over the following two years.[7]

    [6] T14 at.96.

    [7] Ibid.

22. Dr Katz reported in September 2018 that the Applicant’s condition was likely to persist and continue to follow a chronic course, and that it was unclear whether his condition was likely to improve significantly.[8]  Dr Katz noted that the Applicant had taken Pristiq at 100mg/day for the preceding eight years, and at the time of his assessment the Applicant had been prescribed: Pristiq at 150mg/day, Olanzapine as an anti-depressant and Prazosin at 2 mg/day (recently increased by Dr Bhatt).[9]  Dr Katz recommended the continuation of this medication together with continuing counselling but noted that future treatment would involve further reappraisal of the medication management, with a potential change in the anti-depressant medication or further augmentation pharmacotherapeutic strategies.[10]

    [8] T17 at p.110.

    [9] Ibid.

    [10] Ibid.

23. The fact that Dr Katz contemplated a review of the Applicant’s medication is not inconsistent with a finding that the Applicant’s condition had been stabilised.  Equally it does not indicate that the Applicant’s condition was likely to improve.  Given the pessimistic appraisal of Dr Katz at the time, he may well have contemplated a review of the Applicant’s medication to address the potential for deterioration in his condition.

24. Both Dr Katz and Dr Bhatt reported that the Applicant was being seen by a psychologist as part of the recommended treatment for his condition.[11]  The Applicant gave evidence that he had seen Ms Alisa Brown, a psychologist, monthly during the qualification period and until May 2019. No medical records for Ms Brown’s treatment were produced to the Tribunal, however, as was noted in the First Tier Review decision, this information is unlikely to add significantly to an assessment of the Applicant’s condition.

    [11] T17 pp.109–110; T11 p.60.

25. The Tribunal notes that the Job Capacity Assessment report of 7 September 2018 states that the Applicant was released from prison after two years of incarceration and would require a period of adjustment and it is anticipated that with ongoing treatment and review that his current level of function may significantly improve within the next twenty four months.[12]  This assessment is not supported by the medical evidence and the Tribunal gives it no weight.

    [12] T15 at p.101.

26. On the basis of the available medical evidence, in particular, the report of Dr Katz of September 2018, the Tribunal is satisfied that the Applicant’s mental health condition was fully diagnosed, treated and stabilised during the qualification period.

27. The Respondent asserts, in the alternative, that should the Tribunal conclude that the Applicant’s mental health condition is able to be assessed under the Impairment Tables it should attract a rating of zero points under Table 5.

28. The Applicant’s evidence was that:

    (a)he lived by himself and was able to attend to his household needs without assistance;

    (b)he performed as a voluntary singer, with a friend, at aged care facilities from time to time and was able to drive a car and use public transport;

    (c)he had a few friends, but had fallen out with members of his family and others, not because of his mental health condition but rather because of their response to the stigma attached to the nature of his criminal conduct;

    (d)he experienced short-term memory losses occasionally, but he read a lot and wrote poetry;

    (e)there was no medical evidence to suggest that he had difficulty concentrating for more than 10 minutes or had slowed movement or reaction time;

    (f)there was no medical evidence of significantly disturbed behaviour, thoughts or conversations; and

    (g)the Applicant accepted that his criminal conviction[13] contributed to his inability to obtain employment. 

    [13] T23 at p.133.

29. Having reviewed Table 5 and the evidence of the Applicant’s impairment, the Tribunal is satisfied that the Applicant’s mental health condition does not meet most of the indicia set out in the Table that would indicate a severe functional impact on activities involving mental health functions.  Accordingly the Applicant’s mental health condition does not attract a rating of 20 points as a severe functional impact.

    Spinal condition – lower back pain, lumbar joint degeneration and cervical radiculopathy

30. The Respondent disputes that the Applicant’s claimed lower back condition was fully diagnosed, treated or stabilised during the qualification period. The Tribunal notes that no medical evidence was presented to establish a diagnosis confirming the cause of the Applicant’s lower back pain.

31. The Respondent accepts that the Applicant’s cervical and lumbar back conditions were fully diagnosed during the qualification period but disputes that they were fully treated or stabilised.  The diagnosis of cervical radiculopathy was confirmed by CT scans conducted on 4 April 2018[14] and lumbar joint degeneration was noted in a patient health summary in July 2014.[15]

    [14] T7 at p.54.

    [15] T24 at p.136.

32. On 15 June 2018 the Applicant received nerve root block injections adjacent to the C5 nerve.[16]  The Applicant gave evidence that the injections gave him relief for about one week but after that the neck pain returned.  On 4 July 2018 he was put on an outpatients’ list for Monash Health Back and Neck Outpatient clinic for assessment and management[17] of his cervical and lumbar spine but the Applicant confirmed in his evidence that he was still on the list and had not received any treatment.  The Applicant also confirmed that he had been prescribed Neurontin by Dr Katz who suggested he give it a go.

    [16] T8 at p.56.

    [17] T10 at p.58.

33. On the basis of this medical evidence the Tribunal is satisfied that the Applicant’s cervical and lumbar back conditions were fully diagnosed during the qualification period, but is not satisfied that the Applicant’s spinal conditions were fully stabilised and fully treated during the qualification period. Accordingly the Applicant’s spinal conditions cannot be assessed under the Impairment Tables.

    Right shoulder pain

34. The Applicant gave evidence that he experiences pain in his right shoulder, although he said that it does not affect him a great deal.  He described it as occasional twinges. He said that he had been given two steroid injections by his GP a few months ago which had been effective for about two or three days before the pain returned.  He said that he takes painkillers and had been prescribed Neurontin by Dr Katz about six months earlier which assisted to mask the pain.  He stated that he was recommended to have physiotherapy treatment but it did not give him any relief.  He had not been recommended for surgery.

35. X-rays of the Applicant’s right shoulder in August 2018 showed no evidence of lesions, fractures or degenerative changes although an ultrasound noted a low grade subacromial bursitis with normal rotator cuff tendons.[18]

    [18] T13 at p.95.

36. On the basis of this evidence the Tribunal is not satisfied that the Applicant’s right shoulder condition was fully diagnosed, treated or stabilised during the qualification period. Accordingly it cannot be assessed under the Impairment Tables.

    Cryptogenic organising pneumonitis (COP)

37. The Respondent disputes that the Applicant’s claimed COP was fully diagnosed, treated or stabilised during the qualification period.

38. A CT pulmonary angiogram report dated 22 October 2018 found bilateral paraenchymal opacities in the Applicant’s lungs but it merely raised the possibility of COP.[19] The Applicant stated that he had had a dry cough prior to that report, for which he was prescribed antibiotics but they were unsuccessful. The Applicant was first diagnosed with COP in 13 November 2018 when he was examined by Associate Professor Alistair Wright at Latrobe Hospital.[20]  Professor Wright prescribed a management plan for the Applicant’s condition which was to take account of the side effects of steroid treatment on the Applicant’s depression and psychosis.  The plan involved low doses of prednisolone for at least three weeks to slowly wean him over two to three months, subject to improvements in his CXR and with monitoring for side effects.  The plan also involved Ostelin for bone and GI protection.[21]

    [19] T18 at p.111.

    [20] T20 at p.114-115.

    [21] Ibid p.114.

39. In view of this evidence it is clear that the diagnosis and planned treatment for COP was not commenced until after the qualification period. Accordingly the Tribunal finds that the COP condition was not fully diagnosed, treated or stabilised during the qualification period and could not be assessed under the Impairment Tables.

    Conclusion

40. For the reasons discussed, the Tribunal finds that the Applicant does not satisfy the requirements of ss 94(1)(b) and (c)(i) of the Act. The Applicant does not have an impairment which rates 20 points or more under the Impairment Tables, nor does he have a continuing inability to work as defined in s 94(2)(aa) of the Act in that he does not have a severe impairment as defined in s 94(3B) or he has not participated in a program of support within the meaning of s 94(3C).

    DECISION

41. The Tribunal affirms the decision under review.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 25 February 2020

Date of hearing:	5 December 2019
Applicant:	In person
Advocate for the Respondent:	Anneliese Massey
Solicitors for the Respondent:	Sparke Helmore Lawyers