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

[2020] AATA 4316

George and Secretary, Department of Social Services (Social services second review) [2020] AATA 4316 (29 October 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2019/7685
GENERAL DIVISION  )

Re: Terrence Raymond George
Applicant

And: Secretary, Department of Social Services
Respondent

DIRECTION

TRIBUNAL:  D Cremean, Senior Member

DATE OF CORRIGENDUM: 8 December 2020

PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application so that reference on page 1 of the decision to “17 March 2017” is replaced with “16 March 2017”.

.....[sgd]..............................................................
Senior Member

Division:GENERAL DIVISION

File Number:          2019/7685

Re:Terence George  

APPLICANT

AndSecretary, Department of Social Services 

RESPONDENT

DECISION

Tribunal:D Cremean, Senior Member

Date:29 October 2020

Place:Melbourne

The decision under review is set aside and a decision substituted that the Applicant is entitled to Disability Support Pension with effect from 17 March 2017.

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

D Cremean, Senior Member

SOCIAL SECURITY - Disability support pension – several conditions including depression and anxiety – whether fully diagnosed, treated and stabilised – corroboration – whether severe impairment – decision under review set aside

Legislation

Social Security Act 1991 (Cth)

REASONS FOR DECISION

D Cremean, Senior Member  

29 October 2020

1. The Applicant, Mr Terrence George, seeks review of a decision of the Social Services & Child Support Division of this Tribunal (“Tier 1”) made on 28 October 2019 affirming a decision of the Respondent (now called “Services Australia”) made on 17 August 2017 rejecting his claim for Disability Support Pension (“DSP”) which was affirmed by an Authorised Review Officer (“ARO”) on 19 August 2019.

2. The Applicant’s claim for DSP was made on 16 March 2017 and he included the following conditions in his application:

   Depression, severe;

   Anxiety;

   Hypertension;

   Mood changing;

   Arthritic back;

   Alcohol use. Excess;

   Anger problems;

   Anti-social;

   Cholesterol;

   PTSD – severe;

   Paranoia;

   Insomnia.

3. His application to this Tribunal was received on 25 November 2019. In his application he mentioned that the information he provided regarding his back complaint was not considered by Tier 1, which he says has deteriorated. He mentions also his mental health condition and he says, “…I am depressed and stressed, not sleeping and worried if my back will ever improve.”

4. A hearing by telephone was conducted in this matter over two days on 10 July 2020 and 3 August 2020. The second day was necessary to enable me to hear from Dr Mena Attalh, medical practitioner.

5. At the hearing the Applicant was self-represented and the Respondent was represented by Ms S Roberts, lawyer.

6. Affirmed evidence was given by Mr George and Ms James and also by Dr Attalh. All were cross-examined by Ms Roberts. The Respondent called no witnesses.

7. At the conclusion of the hearing I reserved my decision and indicated that it would be delivered in due course.

8. These are now the Reasons I give for the decision I have made.

   LEGISLATION

9. Qualification for DSP is governed by the Social Security Act 1991 (Cth) (“the Act”).

10. Section 94(1) of the Act as far as relevant provides:

    1A 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;

    (ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system

    …

11. The Impairment Tables referred to in s 94(1)(b) are set out in the Social Security (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011 (“the Tables”). An impairment rating under the Tables is arrived at by assigning points according to the appropriate Table for the condition concerned. The Tables describe functional activities, abilities, symptoms and limitations. The points rating is function based rather than diagnosis based.

12. Before an impairment rating can be assigned under the Tables, qualifying criteria must be met. One of the criteria is that the condition must be permanent. In order for a condition to be permanent it must be fully diagnosed, treated and stabilised. Another of the criteria is that the condition must be corroborated. Further, each of ss 94(1)(a), (b) and (c) of the Act must be separately satisfied.

    ISSUES

13. It was found by Tier 1 that the Applicant suffers from conditions which satisfy s 94(1)(a) of the Act. Those conditions were “…adjustment disorder with mixed anxiety and depressed mood” and “mild osteoarthritis”.[1]

    [1] Tier 1 decision, p 2.

14. In regard to the first condition (adjustment disorder), Tier 1 concluded that that condition was fully diagnosed but found that it was not fully treated and stabilised. Tier 1 made the finding that, at the time he made his claim, the Applicant had not pursued treatment with a clinical psychologist which may have resulted in significant functional improvement. Therefore, he could not be assigned any impairment rating under the Tables.

15. Tier 1’s findings in relation to the second condition (osteoarthritis) are similar. It appears that Tier 1 found the condition was fully diagnosed (although the expression used was “accurately diagnosed”) but not fully treated and stabilised. This was because ongoing physiotherapy and medical review is required. Therefore, again, he could not be assigned any impairment rating under the Tables.

16. Tier 1 found therefore that the Applicant was not qualified to receive DSP in respect of his claim of 16 March 2017 and it acknowledged that this would be a “disappointing outcome” for him.[2]

    [2] Tier 1 decision, p 4.

17. Mr George was indeed disappointed with that outcome and has accordingly made an application to this Tribunal to review Tier 1’s decision.

18. During the hearing it became quite clear that the real issue is whether the Applicant satisfies ss 94(1)(b) and (c) of the Act in respect of his mental health condition, although he does suffer other conditions. That is, whether in respect of that condition he qualifies for an impairment rating of 20 points or more under Table 5 of the Tables. He argues that he does. The Respondent argues that he does not.

19. If I find that the Applicant qualifies for 20 points under Table 5, assuming corroboration, the issue then is whether he also satisfies s 94(1)(c) of the Act.

20. Pursuant to cl 4(1) of Schedule 2 to the Social Security (Administration) Act1999 (Cth) these are all matters I must consider as at the date of his claim or within 13 weeks afterwards – that is, from 16 March 2017 until 16 June 2017. This is called the “qualification period”.

21. Further, these are all matters I must decide on the evidence which is before me. I am not restricted to the evidence which was before Tier 1.

22. Considering the evidence before me, I must decide what is the correct or preferable decision in the matter and I must proceed according to the civil standard of proof – that is, on the balance of probabilities. That means my findings must be made according to whether something is more likely than not to be so.

    CONTENTIONS

23. The Applicant contends that the decision under review should be set aside and that he has satisfied all the requirements of s 94(1) of the Act so far as they apply to him. It was clear to me, as I have indicated, that the focus of the hearing was on the Applicant’s mental health condition.

24. The Respondent, on the other hand, contends that the Applicant does not satisfy s 94(1)(b) of the Act. However, the Respondent contends that if he does, he does not satisfy s 94(1)(c) of the Act and, accordingly, the decision under review is correct and must be affirmed. The Respondent also raises an issue of corroboration which, in effect, is one prior to the issue of s 94(1)(b).

    EVIDENCE

    Mr George and Ms James

25. I shall deal with the evidence of both the Applicant and Ms James together as this is how the hearing was conducted.

26. It is unnecessary to set out verbatim what was said by the Applicant and by Ms James in evidence and I shall, instead, summarise main points.

27. Mr George said that he and Ms James live together and have been doing so for 35 years. They have no children together, but Ms James has children from a previous relationship.

28. The Applicant explained that there were floods in Rochester in Victoria in 2011 where they lived on a five-acre property.

29. He said that it was the Goulburn Murray Water Authority which had created an issue that flooded their five acres of land – they sat, he said, “with three foot of water for eight days” and “our house was a wreck” and they had to be out of it for six months living in a caravan in winter, showering outside.  He said, “this is the start of my depression and anxiety”, but he said, “it went downhill from there”.[3]

    [3] Transcript, 10 July 2020, p 6.

30. Mr George agreed with a question from me that this depression is still continuing in his life – “Absolutely, yes” he said. He said it shows up by making him feel “[s]ad, emotional, angry, depressed, anxiety [sic]”.[4]  He said he has been feeling the same way psychologically “since literally 2011” and both “up and down since”.[5]

    [4] Ibid, p 7.

    [5] Ibid, p 13.

31. He said in addition to being treated for hypertension with Olmesartan tablets he also takes Temazepan sleeping tablets. He has been taking tablets for sleeping for seven or eight years but “not all the time”.  He also stated he takes Mirtazapine (an anti-depressant); Crestor for cholesterol; and Panadol Osteo for his back two or three times a day. He added he also has “regular treatment of physio”.[6]

    [6] Ibid, p 14.

32. He then spoke of an issue involving his father’s estate. His father died of cancer in 2016, his mother having died in 2000. They had been married for over 40 years. He was the only child of the marriage.

33. His father later re-married another woman and was married to her for eight years.

34. He said that when his father died he spoke to his father’s wife and “she just got on the phone and screamed down the phone… that everything was hers and I was to get nothing”.[7]

    [7] Ibid, p 9.

35. This matter of his father’s estate ended up in the Supreme Court of New South Wales but failed to resolve at mediation. However, it did settle upon legal advice, he said, because: “I wasn’t prepared to put my life and my hard work over the years in a judge’s hands to lose everything”. He said if he lost, he would be bankrupt.[8]

    [8] Ibid, p 11.

36. So, he said, “I took a paltry sum of money and disappeared basically.”[9]

    [9] Ibid.

37. Mr George said that what prompted him to make his claim when he did was advice from Centrelink about their expecting him to work and if he could not do so then he should apply for DSP. At this time, he agreed that uppermost in his mind was his mental health condition.

38. Mr George then explained he had been seeing a psychologist on a regular (monthly) basis for two years but this had stopped because the psychologist moved on in her career. He stated that he continued seeing his family doctor  and that he “acted as probably - I would class as a social worker, and times when I was not in good spaces… he would spend the time with me in his practice and walk me through a few things that I had to try and get sorted out”.[10]

    [10] Ibid, p 15.

39. At this point Ms James spoke up and said that the Applicant “was a very, very angry person at that time” making threats about driving his car into Water Authority premises. She said he did not want to try the cognitive behaviour therapy – she said “we” often or throughout. She mentioned times when she was in the car with him and “would be worried that he would drive the car off the road”. She said that the issue of his father’s marriage “was another knife in the back” for him which sent him “further into a state of anxiety and depression”.[11]

    [11] Ibid, p 15-16.

40. Ms James said at times the Applicant “didn’t want to get out of bed” and “didn’t want to have anything to do with anything”.[12]  She said that during the qualification period Mr George’s condition was “terrible” and that “he just wasn’t himself”. He “was angry at everything”. Ms James said, “You couldn’t have a… proper conversation with him”. She said he was “restless” at night and “couldn’t sleep properly”. She said it “was a very anxious time, all around that time” and added that was not only during the qualification period but “leading up to that and after that”. She said that at that time “[e]very time it rained, we would get that same sensation – that same smell – of floodwater”. She said Mr George’s anger with the Water Authority “rose its head again”.[13] During this time she said the Applicant was “drinking as well” and that she thought he was “drinking to try and hide it all or make it better”.[14]

    [12] Ibid, p 18.

    [13] Ibid, p 19.

    [14] Ibid, p 28.

41. At about this point, the matter was adjourned to enable arrangements to be made for Dr Attalh to be able to attend.

42. On the next occasion (before Dr Attalh gave evidence) Ms Roberts cross-examined the Applicant.

43. In cross-examination, Mr George clarified that it was a Ms Cheryl Munzel, a social worker, who he had been seeing on a monthly basis for an hour at a time for about two years whom he called a “psychologist”. He confirmed he had stopped seeing her because she left her practice area, but he did not agree that, after seeing her, by about April 2014 his condition had stabilised. However, he did agree that he got some benefit from her counselling sessions.

44. The Applicant agreed there was a report from Dr Attalh dated 13 May 2014 in which he suggested arranging a psychiatrist for him, but, he said, “he was just talking to me about it” and the Applicant in any event was “very hesitant” to go ahead with that because, he said, “I’d literally have to start all over again of my life basically”, so Dr Attalh “stepped in and started doing the counselling”.[15]

    [15] Transcript, 3 August 2020, p 45.

45. Dr Attalh had prescribed Mirtazapine and the Applicant said that “in the later periods” Dr Attalh was talking about taking him off that medication but then, he said, “I left the area”. He said, however, he had never been taken off his medication “since the day I got it”.[16]

    [16] Ibid, pp 45-46.

46. A report from Dr Carla Tucker, a clinical psychologist, had recommended the Applicant, he agreed, “Refresh cognitive behaviour therapy”, but he did not see this person for receiving treatment as such, but instead he saw her for the issue with his father’s estate.[17] He said he saw Dr Tucker for six hours over two sessions.

    [17] Ibid, p 47.

47. He agreed that seeing Ms Munzel would have helped him with managing the stress he was experiencing - “yes, absolutely, without a doubt”.[18]

    [18] Ibid, p 48.

48. In further cross-examination (after Dr Attalh had given evidence) the Applicant said he did not seek out help from Ms Munzel after his father had died because she had left the area and “no one knew where she’d gone”.[19]

    [19] Ibid, p 62.

49. The Applicant agreed there were times when he had contemplated self-harm or suicide – “particularly if I saw the water authority people in the local area”.[20] He said he told these things to Dr Attalh. He said, “he sort of talked me through it” but he also said (in reference to Dr Attalh’s evidence), “but he didn’t remember that, which I find very hard to believe”.[21]

    [20] Ibid.

    [21] Ibid, p 63.

50. The Applicant agreed that in the six months leading up to his DSP claim he had seen Dr Attalh on seven occasions lasting for between 20 and 30 minutes. He agreed he had seen him during that six months for a number of issues including his mental health. He said Dr Attalh “always spoke to me with the mental health issues”.

51. The Applicant agreed that a week before submitting his DSP claim he saw Dr Brianna Cummings on 10 April 2017 (which may not be the correct month) who noted he was suffering “Low mood, disturbed sleep, anxiety, anger plus emotional management”.[22] He said he did not disclose to her his suicidal thoughts or thoughts of self-harm because that was “the first and only occasion that I saw her”.[23]

    [22] ST3, Supplementary T documents, p 21.

    [23] Transcript, 3 August 2020, p 64.

    Dr Mena Attalh

52. Dr Attalh was called to give evidence in this matter upon the initiative of the Tribunal and the matter was adjourned for this purpose.

53. Dr Attalh agreed the Applicant had been his patient for a number of years before he left the medical practice and transferred to Moama, New South Wales.

54. He said he graduated MBBS in 2005 and that in the course of his degree he studied “mental training”.

55. He agreed he had prescribed Mirtazapine in December 2016 which he said is an anti-depressant used also for anxiety and for help with sleep. He agreed he had also prescribed Olmetec, a blood pressure tablet, and Rosuvastatin which is intended to release cholesterol.

56. It was his view that at the time he prescribed the Mirtazapine, the Applicant was suffering from depression. He said, however, he could not recall “a time that this affected Mr Terry to have an impact on his function or the capacity, a serious impact on the function or the capacity”.[24]

    [24] Ibid, p 54.

57. He said he formed this view from his “assessment of his symptoms” and also from his notes, but he did not presently have access to them.[25]

    [25] Ibid.

58. Dr Attalh, when read a comment of Dr Brianna Cumming (made on 10 April 2017) that the Applicant “has suffered from mixed depression and anxiety since 2011 as a result of a traumatic event ,the Rochester floods, and after treatment and counselling his condition has stabilised”, said “I cannot comment on that”.  When asked why, the answer he gave was “I would comment on my assessment”, in other words, he indicated, “not on any other professional assessment”.[26]

    [26] Ibid.

59. Dr Attalh was then asked if he could say the Applicant’s condition had been fully treated by him and his reply was “could you please rephrase the question again?” When re-expressed he said, “I treated Mr George as far as I know. I did my best to treat him”. He said, “we offered him counselling, support sessions like counselling sessions”. He described it as “supportive counselling.”[27]

    [27] Ibid, p 55.

60. He said:

    Supportive counselling is to assess his symptoms to make sure he’s a low risk in terms of the suicidal risk because he suffers from a depression so he was a low risk. To make sure he’s maintaining his daily activity, to make sure he takes his tablets, his medication.[28]

    [28] Ibid.

61. Dr Attalh agreed that the anti-depressants he prescribed, he thought, “had a good effect” on the Applicant.

62. Dr Attalh agreed there is no psychiatrist in Rochester and in cross-examination agreed there are psychiatrists in Bendigo. Dr Attalh was asked a question about a report he provided dated May 2014 in which he said that the Applicant was suffering from major depression and a generalised anxiety disorder and that at that point he was taking medication and undergoing counselling.  He was then asked, “Do you know who his psychologist was?” to which he gave the reply, “Sorry, I don’t recall that”. After some prompting, however, he agreed it was Cheryl Munzel – “Yes, now I remember”, he said.  Then he said, “So he saw Cheryl first and then I think Cara Tucker”.[29]

    [29] Ibid, p 57.

63. Dr Attalh said he did not know why the Applicant ceased to see Ms Munzel.

64. The report Dr Attalh prepared stated that treatment was to include referral to a psychiatrist for review, but he said he didn’t “recall sending George to a psychiatrist”. He said he didn’t recall “because I think the condition he was progressing better by time, so we didn’t go and send him to a psychiatrist”. He added that the Applicant “saw a psychologist but not a psychiatrist. As far as I remember of course. I don’t have the records in front of me”.[30]

    [30] Ibid.

1. Dr Attalh agreed that in March 2015 he issued a medical certificate that stated the Applicant was suffering from an adjustment disorder and that it was he who made that diagnosis.

2. When asked whether the Applicant would have benefited from specialist review by a psychiatrist or cognitive behaviour therapy, Dr Attalh said “From a psychiatrist, I don’t think so.” He then added: “Cognitive behaviour therapy, he was already seeing a psychologist, which can provide CBT, plus his GP, which is myself, we provide CBT as well.”[31]

   [31] Ibid, p 59.

3. He was asked whether the Applicant would have benefited from continuing to engage with cognitive behavioural therapy after the death of his father in 2015 and he answered: “Adjustment disorder by itself doesn’t need… course of CBT, this can be done with a GP.”[32]

   [32] Ibid.

4. He indicated he agreed that the Applicant was also suffering from depression, stating, “Yes, because he was on medication.”[33]

   [33] Ibid. p 60.

5. Dr Attalh agreed that if in the Applicant’s case there had been suicidal ideation, he would have recommended cognitive behavioural therapy.

6. The Tribunal, after an exchange with the witness, established that Dr Attalh had talked to the Applicant about the Rochester floods and that also he recalled speaking with him about the issue with his father’s estate.

   CONSIDERATION

7. In order to qualify for DSP, the Applicant must satisfy each of the paragraphs of s 94(1) of the Act as far as relevant.

   (a) Section 94(1)(a)

8. I am satisfied that the Applicant meets the requirement in s 94(1)(a). In particular, I am satisfied he suffers a mental health condition and did so during and since the qualification period. Also, I am satisfied he suffers from osteoarthritis. As well, I am satisfied he suffers hypertension, but this did not figure in Tier 1’s decision.

9. In the conduct of the hearing, it was apparent that his mental health condition was of primary concern to him and to Ms James. Therefore, I confine my consideration to that condition. I make no findings about his osteoarthritis or hypertension or other conditions.

10. The evidence before me as to his osteoarthritis was insufficient to enable me to make findings in any event. 

11. It is not of concern to me, given the concession made, that Dr Attalh resigned from the medical clinic on 23 February 2017 and thus before the qualification period. There is a clear statement from Dr Cumming made on 10 April 2017, during the qualification period, that the Applicant was suffering from “mixed depression and anxiety.”

    (b) Section 94(1)(b)

12. The first issue is whether the Applicant satisfies the requirement that his condition be permanent. If I find it is permanent, it is then a matter of deciding what points rating he should be assigned under the Tables.

13. If I find the Applicant does satisfy s 94(1)(b), assuming corroboration, I must then decide whether he also satisfies s 94(1)(c) of the Act or not.

    (i) Permanency

14. To be satisfied that the Applicant’s condition was permanent during the qualification period, I must be satisfied that it was fully diagnosed, fully treated and fully stabilised.

15. Despite aspects of his evidence being less than impressive - and, in fairness, there may have been audio issues - I consider I am in a position to rely on the evidence of Dr Attalh ,and that of the Applicant himself, together with documents on file, to make a finding that a requirement of permanency at and during the qualification period is satisfied.

    Fully diagnosed

16. Firstly, I find the Applicant’s condition was fully diagnosed during the qualification period.

17. I rely upon the concession of the Respondent in its Statement of Facts, Issues and Contentions (“SFIC”). The concession made is that “as at the qualification period, the Applicant’s mental health condition of adjustment disorder with mixed anxiety and depression was fully diagnosed.”[34] Apart from a question about whether the depression should be described as “major” or not, I consider this concession to be one properly made and fully justified.

    [34] Respondent’s Statement of Facts, Issues and Contentions, p 7.

    Fully treated

18. The SFIC makes it clear that the Respondent does not concede that the Applicant’s mental health condition was fully treated during the qualification period.

19. Paragraph 6(5) of the Tables stipulates that, in determining whether a condition is fully diagnosed and fully treated (the former not arising) for the purpose of paragraphs 6(4)(a) and (b) of the Tables, the Tribunal must consider:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

20. I have considered each of the matters specified in paragraph 6(5) and, having done so, I make the finding that the Applicant’s mental health condition was fully treated at the qualification period.

21. In particular, I rely upon the evidence of Dr Attalh.

22. The first mention of the Applicant’s depression in the T Documents is in a medical certificate from the Campaspe Medical Centre dated 20 August 2012 stating date of onset as Monday 17 January 2011 with symptoms: “Anxiety, depressed mood, poorc[sic]sleep,stress”. It is obvious then that his depression is long standing and related to a specific time or event.

23. Subsequent medical certificates by the Clinic are to the same effect.

24. A medical report dated 13 May 2014 signed by Dr Attalh describes the Applicant’s condition as “Major Depression and Generalised Anxiety Disorder”. His current treatment is described as “(Anti-depressant) Mirtazapine [indecipherable]; Counselling with Psychologist”. At one point he says, “Minimal impact on Function”, but then he says, with respect to the next two years, “Terrence is suffering from depression and anxiety for last 2 years the effect on his ability to function can’t be predicted”. He says, “Arrange for Psychiatrist for review and assessment”.

25. When the Applicant gives evidence that he is “[s]ad emotional, angry, depressed, anxiety” and that he has been feeling this way “since literally 2011”, I accept he is telling me the truth and his evidence is backed up by the notations on the Clinic’s certificates and the Report of Dr Attalh.

26. From at least 13 May 2014 until near the qualification period I accept that Dr Attalh knew his patient well and was sufficiently placed to speak with authority about his mental health. The Applicant had seven attendances with Dr Attalh leading up to his DSP claim.

27. As regards the counselling he was receiving, it was from Ms Cheryl Munzel who went by multiple titles including “Mental Health Clinician”, “Mental Health Social Worker” and “Social Worker”.

28. I did not hear from Ms Munzel and I have no idea of her qualifications, but I am not satisfied I should readily agree that she is or was ever a clinical psychologist. I regard her as a social worker and this accords with the Applicant’s evidence.

29. By this point, at 13 May 2014, I am confident in saying that Dr Attalh knows his patient has a longstanding condition of depression and anxiety which impacts on his life. The impact was described by him then as “Minimal”, but he also indicated that the future impacts “can’t be predicted”. But, if one considers the conditions the Applicant (and Ms James) endured as a result of the floods, I can readily understand why Dr Attalh should describe the depression as “Major”. I cannot understand therefore why he should say that his depression was of “Minimal impact” when, in relation to future impacts,  he said, “the effect on his ability to function can’t be predicted”.

30. I have no information about how long or how carefully Dr Attalh read the instructions in the part of the form concerned with “Impact on ability to function”. But the form directs a doctor to be “specific and consider the impacts on” eight separate categories. In contrast, Dr Attalh’s response seems very brief. 

31. These two statements, “Minimal impact” and “the effect on his ability to function can’t be predicted”, do not seem to match up, particularly in light of what Dr Attalh was asked to do in completing the form. Indeed, the whole report appears to a casual reader to have been written in a hurry, but that is not a finding I make. 

32. But I can say that the existence of these two statements, which I regard as hard to reconcile, gives me pause to consider Dr Attalh’s oral evidence about the functional impact of Mr George’s depression and to sound a note of caution about it, especially if I consider that Dr Attalh was right or more accurate in the first place in describing Mr George’s depression as “Major”.

33. In that regard, I note that Dr Attalh’s later report, where he examined the patient on 7 August 2015, states “uncertain on impact on daily function”. This again does not seem consistent with the confident “Minimal impact” stated by him in the report a year or so earlier. And it must not be forgotten that when he wrote “Minimal impact”, the events surrounding the death of Mr George’s father had yet to occur. I mention at [98] those events did have an effect on him, as Dr Attalh himself noted.

34. If I had doubts about whether the Applicant was truly suffering “Major” depression in 2014, it seems to me I have less occasion for such doubts after those events of 2016 – the death of his father and the issue of his father’s estate. Indeed, Dr Attalh did recall speaking with him about that issue. I note that in the medical certificate dated 12 January 2016 Dr Attalh even mentions the Applicant’s anxiety symptoms having been “aggrevated [sic] by the death of his father.” Ms Roberts even refers to that as “another traumatic event in his life that caused his mental health to decline”.

35. By 2016, Dr Attalh also knew Mr George’s family well. Ms James said in evidence that “Dr Attalh knew our family, Terry, myself, daughter, granddaughter, he knew us all and would always – we felt comfortable with telling him anything.” So, she continued, “when he was talking to Terry about his mental health, we were - Terry and I were comfortable that he was supporting him”. [35]

    [35] Transcript, 3 August 2020, p 75.

36. I accept Dr Attalh’s evidence that as regards Mr George, “I did my best to treat him”. There is no contrary evidence and I do not regard cross-examination as having revealed any diminished professional care and attention.

37. When he knows the Applicant out of numerous counselling sessions, and when he knows also the Applicant’s family, I am satisfied I should rely on his medical opinion regarding the Applicant’s mental health condition.

38. In such circumstances I rely upon the view Dr Attalh expressed to the effect that the Applicant was being sufficiently treated by the anti-depressants he had prescribed him, by the counselling he had been receiving and by the cognitive behaviour therapy he had been receiving from Dr Attalh himself also.  Dr Attalh is not a psychiatrist but he is not unskilled either in my view and was, I consider, well placed as a medical practitioner with study in “mental training” to provide (what he called) “supportive counselling”. These would include times, in the Applicant’s own words, when “I was not in good spaces and…he would spend the time with me in his practice and walk me through a few things that I had to try and get sorted out”.[36]

    [36] Transcript, 10 July 2020, p 15.

39. I do not consider I am bound to say that only a psychiatrist or clinical psychologist can diagnose depression and anxiety. Certainly, no such rule was advanced in submissions in this case. But there is the report in any event of Dr Cumming of 10 April 2017 who is a psychologist.

40. Ms Roberts submitted (based on Medicare records) that these counselling sessions with Dr Attalh, of between 20 and 30 minutes, once or twice a month “would just not have been adequate to address the mental health symptoms” the Applicant described. Reference was made to Dr Attalh being “a busy GP dealing with other medical issues such as Mr George’s back condition and the skin biopsy and other things”.[37]  Ms Roberts also said of the Applicant’s counselling sessions with Dr Attalh that “there was obviously…at best, some incidental discussion on his mental health alongside dealing with physical health issues”. [38]

    [37] Transcript, 3 August 2020, p 67.

    [38] Transcript, 3 August 2020, p 71.

41. I am satisfied that this is not an accurate characterisation. I am not informed how “busy” Dr Attalh would have been in the small country town of Rochester. Perhaps not busy at all. That could explain why he found himself able to spend time with Mr George. I can see no evidence produced to me that the actual times of between 20 and 30 minutes were not adequate or that more than once or twice a month was necessary. The fact that Dr Attalh dealt with the Applicant’s other conditions also has no substance in it. That is not unusual for a GP. I do not see how Ms Roberts can say “at best [there was] some incidental discussion on his mental health”.[39] In my view, there is not evidence supporting this claim.

    [39] Ibid.

42. Ms Roberts then says, “in our submission …for someone who claims that they were suicidal, that is grossly inadequate treatment for someone who has those symptoms”.[40] I discuss suicidal ideation below at [107]. But the submission proceeds on the assumption that at the consultations with Dr Attalh there was only “some incidental discussion” on the Applicant’s mental health condition “at best”. This is unfounded. I refer to [105] above.

    [40] Ibid.

43. It was also the Respondent’s submission that if the Applicant had disclosed suicidal ideation to Dr Attalh, he would have recommended him for cognitive behavioural therapy. The Applicant himself is clear that he did disclose this to Dr Attalh. But Dr Attalh was specifically asked “Did Mr George ever disclose any suicidal ideation with you?” and his answer was “Not at the back of my mind”.[41] I am not in a position to resolve this conflict one way or the other. Both cannot be correct, but I cannot assess whether it is Mr George or Dr Attalh. So, the premise for the submission is lacking; I am not able to find and do not find that suicide ideation was disclosed to Dr Attalh by the Applicant. But even had the Applicant disclosed it to him, Dr Attalh said he would have recommended him for cognitive behavioural therapy, but he did not say he would have referred him to someone else outside the practice for that therapy. The whole tenor of his evidence is that he was giving him such therapy without need for a psychiatrist.

    [41] Ibid, p 59.

44. It is not correct to say, as Ms Roberts did, that Mr George disclosed suicidal ideation to Dr Cumming and that “off the back of that consultation she’s made a referral for him to see a clinical psychologist”.[42] I consider that Ms Roberts is really referring to Dr Tucker. But no such recommendation was made by Dr Tucker. See further below [117]-[118]. The most Dr Tucker says is “Refresh Cognitive Behaviour Therapy”. But that is what Mr George was receiving from Dr Attalh. This recommendation was made for the particular purpose of the legal proceedings involving his father’s estate and not from Dr Cumming as his treating mental health practitioner.

    [42] Ibid, p 68.

45. I have formed the view therefore that Mr George was “fully treated” as at the qualification period. I accept Dr Attalh’s judgement that it was not necessary for him to be referred to a psychiatrist. I accept it when he says Mr George “was progressing better by time”. I also accept his professional judgement that the Applicant would not have benefited by a review by a psychiatrist and note that he stated “From a psychiatrist, I don’t think so”.  There is no medical evidence called by the Respondent to different effect. I reject arguments of the Respondent’s representative to contrary effect, either above or below.

46. I reject the submission of Ms Roberts, which is unsupported, that “Dr Attalh did not realise how serious Mr George’s mental health condition was and that’s why he didn’t actually make the appropriate recommendations for treatment”. I have said I cannot find as a fact that suicidal ideation was mentioned. Ms Roberts did, however, make it clear that this was advanced only as a possible explanation. Again, though, I have no idea of the evidence on which she based such as a possibility.

47. It is true that in the report of 13 May 2014, Dr Attalh had said “Arrange for psychiatrist for review and assessment”. But I accept nothing ever came of this. Moreover, it was long before the qualification period and I accept the Applicant’s evidence that Dr Attalh was “just talking about it”.

48. A suggestion also was made in submissions that the Applicant “had this very, obviously, helpful therapeutic relationship” with Ms Munzel and that he should have pursued this further at the qualification period. However, nothing was said about Ms Munzel having disappeared after the time of the death of the Applicant’s father whereas the Applicant said,  “no one knew where she had gone”.

49. There is a report of Dr Cara Tucker dated 31 July 2016 in which she confirms the Applicant’s symptoms. This is in the T documents and is referred to in the Respondent’s SFIC. The focus of that report I consider is the legal proceedings concerning the Applicant’s father’s estate.

50. The SFIC states that Dr Tucker “recommended up to 10 therapy sessions to address his adjustment disorder in the context of the ongoing court case”. From this, the Respondent submits that the Applicant’s condition is not fully treated because he has “not taken up recommended reasonable treatment considered likely to lead to significant improvement by both Dr Tucker and to some extent by Dr Cumming”.

51. As is indicated by the SFIC itself, I do not regard Dr Cumming as having plainly recommended this, so I say nothing further about that as regards her, but I consider this is expressed misleadingly as regards Dr Tucker. She in fact says - “If Mr George required such therapeutic services history reveals patterns and at a minimum I would suggest up to ten sessions…”. That is not recommending 10 sessions as such: it is recommending 10 sessions if Mr George requires further therapeutic services. Then Dr Tucker later says: “Favourably, Mr George’s history of previous mental health treatment has provided the benefit for amenability to future treatment as required”. All this indicates is that the Applicant is amenable to having treatment because he has had it in the past. That is far from her saying that it would be “reasonable treatment considered likely to lead to significant improvement” as the SFIC states. Dr Tucker does not mention “improvement” or “significant improvement”. In any event, the whole tenor of her remarks is focused on the legal proceedings issue and that was over at the qualification period.

52. To say, as the SFIC does, that the Applicant “declined mental health treatment at the time of [Dr Tucker’s report] but that he thought he may need some treatment following finalisation of his legal proceedings” is again not quite how the report of Dr Tucker actually reads. Unfairly, it makes him seem wilful in refusing treatment.  In fact, the report says: “When queried about future treatment, Mr George says he may need some after the court proceedings but does not need any treatment at this time”.

53. Another submission made by Ms Roberts was that Dr Tucker “diagnosed [the Applicant’s] condition for the first time in July 2016” and that “there’s no evidence of any treatment that Mr George undertook between that diagnosis and making his claim for DSP.” It is not correct to say that the Applicant’s condition was first diagnosed in July 2016; it was recorded first in August 2012, but it was diagnosed for the first and only time by Dr Tucker in July 2016. Moreover, there is clear evidence of continuing treatment after July 2016 with Dr Attalh and Ms Roberts corrected her submission to say “other than, I guess, Mr George’s oral evidence that he was seeing Dr Attalh for counselling on a regular basis”. 

1. Another submission put to me is that the Applicant has moved away from the Rochdale area, has a new GP and is now seeing a psychologist. Ms Roberts said that this, inter alia, “supports a finding by the Tribunal that that was reasonable treatment that was likely to result in an improvement of his condition”. I regard this as carrying little or no weight. It does not seem to be supported by any evidence of relevance. Something which is happening now, long after the qualification period, cannot speak for what was happening three or four years ago.

2. Finally, reference is made by Counsel to Dr Attalh’s statement “encourage part time job” appearing in the T Documents at T15. I would not regard this as a therapeutic proposition for the purposes of “reasonable treatment” under the Tables and I did not understand it was quite put that way in any event. However, the document significantly adds, I note, “to be assessed by Centre Link”, so it is not merely a recommendation to find part-time work.

   Fully stabilised

3. The Respondent’s SFIC also makes it clear that it is not conceded that the Applicant’s mental health condition was fully stabilised as at the qualification period.

4. In determining whether I should find that Mr George’s condition was fully stabilised at the time, I must again have regard to the matters set out in paragraph 6(5) of the Tables and also to paragraph 6(6) of the Tables which states:

   Fully diagnosed and fully treated

   5In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a)whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next 2 years.

   Fully Stabilised

   6For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b)the person has not undertaken reasonable treatment for the condition and:

   (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

5. Having duly considered both the matters set out in paragraph 6(5) and the stipulations contained in paragraph 6(6), I have formed the view and find that the Applicant’s mental health condition at the qualification period was fully stabilised.

6. To some extent I have dealt with this above. Inevitably there is some expected overlap between being “fully treated” and “fully stabilised”. If a person has been fully treated, usually, they will be fully stabilised. Some greater differentiation is needed in the Tables.

7. In any event, I also separately consider the Applicant’s mental health condition was fully stabilised at the qualification period.

8. Nothing obvious seems to have made his mental health condition worse at the qualification period. The legal proceedings over his father’s estate was the immediate occasion for Dr Tucker’s report.

9. But, as the Applicant himself said in evidence, he has been feeling the same way psychologically “since literally 2011” acknowledging some ups and downs. His one condition of depression has continued throughout.

10. Almost on its own, this indicates some stabilisation. There is one constant theme throughout the years since 2011: “[s]ad emotional angry depressed anxious”.

11. Additionally, however, I refer to and rely upon the report of Dr Cumming, dated during the qualification period on 10 April 2017, in which she states of the Applicant’s mental health that “after treatment and counselling his condition has stabilised”.

12. To my mind that is an observation of significance from a professional person which I can rely upon on the question of whether the Applicant’s condition was fully stabilised.

13. I have already rejected the view that there was any further reasonable treatment which the Applicant could have followed up with which would lead to significant functional improvement

    Corroboration

14. The Respondent submits that if I accept that the Applicant’s mental health condition was fully treated and fully stabilised then I must look at the functional impact of that condition. In that regard however I must consider the question of corroboration.

15. Table 5 (Mental Health Function) is the appropriate Table:

Introduction to Table 5

·    Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

·    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).

·    Self-report of symptoms alone is insufficient.

·    There must be corroborating evidence of the person’s impairment.

·    Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
• interviews with the person and those providing care or support to the person.

·    In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.

·    The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects.  This is to be kept in mind when discussing issues with the person and reading supporting evidence.

·    The signs and symptoms of mental health impairment may vary over time.  The person’s presentation on the day of the assessment should not solely be relied upon.

·    For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

Points

Descriptors

0

There is no functional impact on activities involving mental health function.

(1)      The person has no difficulties with most of the following:

(a)      self care and independent living;

Example: The person lives independently and attends to all self care needs without support.

(b)      social/recreational activities and travel;

Example 1: The person goes out regularly to social and recreational events without support.

Example 2: The person is able to travel to and from unfamiliar environments independently.

(c)      interpersonal relationships;

Example: The person has no difficulty forming and sustaining relationships.

(d)      concentration and task completion;

Example 1: The person has no difficulties concentrating on most tasks.

Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.

(e)      behaviour, planning and decision-making;

Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.

(f)       work/training capacity.

Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.

5

There is a mild functional impact on activities involving mental health function.

(1)      The person has mild difficulties with most of the following:

(a)      self care and independent living;

Example: The person lives independently but may sometimes neglect self-care, grooming or meals.

(b)      social/recreational activities and travel;

Example 1: The person is not actively involved when attending social or recreational activities.

Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.

(c)      interpersonal relationships;

Example: The person has interpersonal relationships that are strained with occasional tension or arguments.

(d)      concentration and task completion;

Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.

Example 2: The person has some difficulties completing education or training.

(e)      behaviour, planning and decision-making;

Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.

Example 2: The person has slight difficulties in planning and organising more complex activities.

(f)       work/training capacity.

Example: The person has occasional interpersonal conflicts at work, education or training that requires intervention by a supervisor, manager or teacher or changes in placement or groupings.

10

There is a moderate functional impact on activities involving mental health function.

(1)      The person has moderate difficulties with most of the following:

(a)      self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)      social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2:  The person will often refuse to travel alone to unfamiliar environments.

(c)      interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)      concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e)      behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f)       work/training capacity.

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

20

There is a severe functional impact on activities involving mental health function.

(1)      The person has severe difficulties with most of the following:

(a)      self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b)       social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c)      interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)      concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e)      behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f)       work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

30

There is an extreme functional impact on activities involving mental health function.

(1)       The person has extreme difficulties with most of the following:

(a)       self care and independent living;

Example 1: The person needs continual support with daily activities and self care.

Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility.

(b)      social/recreational activities and travel;

Example: The person is unable to travel away from own residence without a support person.

(c)      interpersonal relationships;

Example: The person has extreme difficulty interacting with other people and is socially isolated.

(d)      concentration and task completion;

Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes.

Example 2: The person has extreme difficulty in completing tasks or following instructions.

(e)      behaviour, planning and decision-making;

Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement.

Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed.

(f)       work/training capacity.

Example: The person is unable to attend work, education or training sessions other than for short periods of time.

1. Reference is made to the Introduction to Table 5 which states: “Self-reporting of symptoms alone is insufficient” and “There must be corroboration of the person’s impairment”. Corroboration also, as I have noted, arises under para 6(5)(a) of the Tables. The following consideration extends to that as well.

2. Under the Tables, “impairment” is defined as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.

3. Examples of corroborating evidence are also given in the Introduction to Table 5 as including a report from the person’s treating doctor, reports relating to a person’s mental health and interviews with the person and those providing care or support to the person.

4. The evidence of Dr Attalh and Ms James, together with items on file, I consider adequately corroborates the evidence of Mr George as will be apparent.

5. Indeed, as to Ms James, Ms Roberts was inclined to make a concession in this regard but seemed to be saying that as to both the Applicant and Ms James “their evidence is not corroborated by the evidence of the GP”.  I was unclear as to how it was put that the evidence of Ms James had to be corroborated by that of Dr Attalh.

6. My finding, however, which must be based on the balance of probabilities, is that there is corroborating evidence for a finding which I make of severe functional impact.

   (ii) Points rating

7. The evidence in this matter does not warrant a finding of extreme functional impact but neither does it justify a finding of no functional impact.

8. My finding therefore must be between mild functional impact, moderate functional impact and severe functional impact.

9. In the SFIC the Respondent contends, with some qualifications, that the appropriate impairment rating is mild. Those qualifications are that in some respects the Applicant meets some of the descriptors justifying a moderate impairment rating.

10. At this point I refer to Dr Attalh’s assessment given in evidence—that “as far as I remember I don’t recall that the depression had a severe impact on his function or…capacity”.  He said this was “from my assessment of his symptoms” and “my notes, and my notes at this time”. These notes included his 2016 Centrelink notes. In the Centrelink form of 13 May 2014 Dr Attalh had said the Applicant’s depression was of “Minimal impact” even though describing it as “Major”.

11. I have certain misgivings about accepting these statements of Dr Attalh and I have indicated I should approach his evidence on this point with caution, above at [96]-[98]. It is important that I note also that his statement about “Minimal impact” was made before the events of 2016 which Counsel agreed “caused his mental health to decline”.

12. Moreover, I have no basis for knowing that when Dr Attalh wrote “Minimal impact” on the 2014 form he had in mind what constitutes mild or moderate or even severe functional impact under Table 5 of the Tables.

13. I consider therefore that the assessment of the functional impact of Mr George’s mental health condition is something I must undertake for myself having regard to all the evidence. Anything else, I consider, would be an abdication of my review role.

14. In my view, considering all the evidence, the Respondent’s contention of a mild impairment rating is very far from the mark. I say the same also with respect to a moderate impairment rating.

15. I am satisfied on the evidence that the Applicant meets the criteria for a severe impairment rating. His depression is longstanding and was deeply felt both at the qualification period and beyond. His depression manifests itself in all those ways which match appropriate descriptors. I consider he meets all descriptors as I explain but only most need be satisfied.

16. Although some of the descriptors in Table 5 for both moderate and severe overlap to some degree, I consider there are special aspects of the Applicant’s mental health condition which warrant a severe rating.

17. In particular, I refer to the Applicant’s anger. I refer to the danger that Ms James has felt on occasion in the car with him. She was saying in effect his depression on those occasions manifesting in anger could harm someone else, or even others, other than or as well as himself. That dimension, in my view, takes his depression beyond moderate and into severe. 

    Self-care and independent living

18. Because he does not live on his own, I cannot say that Mr George satisfies descriptor (1)(a) in an obvious way. If I was to consider how well the Applicant would cope with living on his own, I would say he could cope satisfactorily for much or possibly most of the time.

19. But it is clear to me that Ms James has given him significant support throughout this difficult time in his life in the years from 2011 preceding his DSP claim and subsequently, and I cannot be satisfied that he would be where he is today without her care and concern or her input with Dr Attalh as well. She spoke in terms of “we” in giving evidence, as I have noted.

20. It troubles me, therefore, to say therefore that Mr George demonstrates a capacity to

    
    

    self-care and live independently in another sense. Indeed, Dr Tucker’s letter of 31 July 2016 specifically says, “he looks to his partner Sandra for support”.

21. Descriptor (1)(a) does not in my view relate only to those who happen to live on their own, for it would be quite discriminatory if it did, but embraces persons not living on their own who could not cope well if they were living on their own. I am not aware of any authority on this point and none was mentioned to me.

22. On this basis, I find the Applicant satisfies descriptor (1)(a).

    Social/recreational activities and travel

23. I am satisfied the Applicant meets the requirements of descriptor (1)(b). There is strong evidence in my view that Mr George’s mental health condition has severely impacted on social/recreational activities and travel. As the Respondent’s SFIC correctly states, Dr Attalh in 2015 reports anger issues and social withdrawal.

24. Anger is something which also figures prominently in the evidence of Ms James. At or about the time of him making his claim for DSP, she said Mr George “was a very, very angry person”. She said that during the qualification period he “was angry at everything”, but particularly his anger was directed at employees of the Water Authority.

1. The example given to descriptor (1)(b) does not suit this case but it is only an example.

2. Social activities or travel, I would think, could include going for drives in the car or driving down the shops. But these occasionally were times of considerable worry and upset for Ms James. When she was in the car with him, she said, “I would be worried that he would drive the car off the road”.

3. Ms James also said that there were times during this period when Mr George “didn’t want to get out of bed” and “didn’t want to have anything to do with anything”.

   Interpersonal relationships

4. I am satisfied the Applicant meets the requirements of descriptor (1)(c).

5. This raises somewhat similar issues to the previous descriptor. But they are not the same.

6. Again, I make note of Dr Attalh’s observations in 2015 of anger issues and social withdrawal. I note also the evidence of Ms James about Mr George being “a very, very angry person”.

7. Anger combined with social withdrawal are not inclined, in my view, to be qualities leading to successful social contacts and involvement.

8. Further, the letter from Dr Tucker of 31 July 2016 describes a person content with limited social contact outside family. Dr Tucker notes that Mr George grew up an only son and it can be expected he would be, in any event, self-reliant by nature, more so perhaps than others. However, Dr Tucker also speaks of his “other” interests, apart from helping Ms James around the house, as being horses and watching football. Those are the things that bring him “happiness”.

9. But this, I must indicate, is in my view a relatively limited range of activities affording thus a limited range of opportunities to mix socially and meet or interact with others. I consider that it is consistent with someone who is indeed socially withdrawn and is likely to be self-reliant to a degree in any event.

10. Added to this are those days spoken of by Ms James when the Applicant “didn’t want to get out of bed” and “didn’t want to have anything to do with anything”.

    Concentration and task completion

11. I am satisfied the Applicant meets the requirements of descriptor (1)(d).

12. Counsel for the Respondent said that the Tribunal had heard “from Sandra [Ms James]… that he [the Applicant] sort of lost interest and couldn’t concentrate, but there’s no medical evidence to corroborate any of these symptoms”.

13. In my view that does not correctly summarise this part of the evidence of Ms James. Indeed, it errs in favour of the Applicant. However, even if it did, I am not satisfied that it is Ms James’ evidence which must be corroborated. She is giving corroboration. The Tables do not specify there must be corroboration of corroboration.

14. In any event, her evidence was clear that during the qualification period “[y]ou couldn’t have a…proper conversation with him” referring to the Applicant. This was because he was so overcome with anger at times that having a proper conversation with him or completing one was out of the question.

15. I consider this sort of occurrence is consistent with someone who is very depressed and suffering, in Dr Attalh’s words, “loss of motive” and “low mood”.

16. Further, however, someone suffering both of those symptoms may possibly (as in this case) have an inclination not to want to get out of bed on occasion or may not “want to have anything to do with anything” no matter whether it is something partly progressed to completion or not, or whether it requires concentrated effort or not.

    Behaviour, planning and decision-making

17. I am satisfied the Applicant meets the requirements of descriptor (1)(e).

18. The Applicant’s anger, a symptom of his depression, has on occasion profoundly affected his behaviour. I refer to the evidence of Ms James that the Applicant would be “making threats about driving his car into [Water] Authority premises”. She was worried at times that he might drive his car off the road with her in it.

19. If I accept his evidence that he did speak with Dr Attalh about self-harm – and I have not found that as a fact – then the contemplation of that by him is a serious instance of aberrant behaviour and irrational planning.

20. The example to descriptor (1)(e) refers to significant and frequent disturbances in behaviour, thoughts and conversation.

21. I am satisfied the Applicant fits substantially within this example. The Applicant’s thoughts were disturbed whenever he saw Water Authority employees “in the local area”. There was a pattern of disturbed thoughts and behaviour regarding the Water Authority and its officers communicated to Ms James and recounted by her. This was clearly brought on, in my view, by deep-seated anger over the 2011 floods.

22. I would also regard the Applicant as one whose decision making was severely affected by his depression. For example, those times when he did not want to get out of bed and decide to do things with himself during the day – useful things or not – and those times he did not want to have anything to do with anything. In the case of those latter occasions he was deciding not to participate in things in the ordinary course of living.

23. Ms Roberts highlighted that the Applicant was able to exercise

    
    

    decision-making capacities in being able to make medical appointments and so on. But these things do not seem to me to respond adequately or at all to those times when his decision-making was severely affected by depression.

    Work/training capacity

24. I am also satisfied the Applicant meets the requirements of descriptor 1(f).

25. Dr Tucker, in her report of 31 July 2016, records that the Applicant had an upbringing “with a strong work ethic”. She also says he is “a hard-working and entrepreneur [sic] who lost his entire business and quality of living with [his] business during the floods and aftermath in 2011”.

26. The Applicant does not impress me therefore as someone who would avoid work if he was able, or required, to do it. But I consider the Applicant’s mental health condition at the qualification period and beyond would have prevented him from working. I say “would have” because he was not in fact working at the time.

27. I consider his depression, with its symptoms, would have prevented him from working.  He would be having issues with sleep in preparation for the working day ahead. He would be angry and difficult for employers to cope with and difficult for colleagues to work alongside . He would not cope with work pressures due to anxiety. He would be socially withdrawn or in a low mood and not be part of the team. He could find it difficult to meet production or other targets and become a source of dissatisfaction or disagreement. He could resent being given directions by those in authority over him. He could or would be difficult to motivate to get things done around the workplace which could represent a hazard to fellow colleagues if he needed to act swiftly for safety or similar reasons.

28. I consider all these factors would have affected the Applicant in any workplace or, for that matter, training facility during the qualification period and beyond.

    (c) Section 94(1)(c)

29. I consider that the Applicant satisfies s 94(1)(c)(i) of the Act in that he had completed a required program of support for the required period in the 36 months preceding the date of his claim for DSP.

30. It may not, therefore, be necessary to add this, but I am satisfied that at the qualification period the Applicant had and since then has had a continuing inability to work. My reasons for saying this are the same as those I set out in [183].

    CONCLUSION

31. I am satisfied the Applicant meets all the criteria in s 94(1)(a), (b) and (c).

32. It follows that the decision under review must be set aside and that he is entitled to DSP from the date of his claim.

I certify that the preceding 188 (one hundred and eighty-eight) paragraphs are a true copy of the reasons for the decision herein of D Cremean, Senior Member.

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

Associate

Dated: 29 October 2020

Date of hearing:	10 July and 3 August 2020
Applicant:	By telephone
Advocate for the Respondent:	Ms S Roberts
Solicitors for the Respondent:	Mills Oakley Lawyers