GLENN LANE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 165

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 165

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0003

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GLENN LANE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date9 March 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..................[Sgd]....................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Cancellation of disability support pension – Impairment from alcohol dependence, mood disorder and multiple drug dependence - Conditions not permanent as not fully diagnosed, treated and stabilised – No allocation of an impairment rating – Qualification requirements for disability support pension not met on cancellation date - Decision affirmed.

Social Security Act 1991 (Cth) –. ss 23, 94 Sch 1B

Social Security (Administration) Act 1999 (Cth) s 80

REASONS FOR DECISION

9 March 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      Glenn Lane was in receipt of disability support pension, under the Social Security Act 1991 (Cth) (the Act), from November 2006 until September 2009. It was cancelled by Centrelink on 12 August 2009 but payments continued until it was again cancelled on 23 September 2009. That later cancellation decision was affirmed by an authorised review officer on 20 October 2009 and, in turn, by the Social Security Appeals Tribunal (SSAT) on 26 November 2009.

LEGISLATION, ISSUES AND SUBMISSIONS 

2.      The disability support pension is a social security payment[1].  Where a person is no longer qualified for a social security payment, it may be cancelled[2].  The issue for the Tribunal is whether Mr Lane was qualified to receive the disability support pension on 23 September 2009, the relevant cancellation date.  The qualifications to receive a disability support pension are set out in s 94 of the Act.  It is common ground that Mr Lane meets the age and residency requirements of that provision.  The remaining requirements thereof are:

·whether Mr Lane had a physical, intellectual or psychiatric impairment; and, if so

·whether he had an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b) thereof; and, if so

·whether he had a continuing inability to work as required by s 94(1)(c)(i) of the Act.

[1] See s 23 of the Act.

[2] See s 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

3.      It is not in dispute that Mr Lane has psychiatric impairments in the form of alcohol dependence and mood disorder – anxiety/depression.  Mood disorder – anxiety/depression was first diagnosed by his treating doctor, Dr Bryan Brink, on 25 August 2009 and treatment for this condition commenced on 28 September 2009.  Mr Guthrie submitted that no impairment rating may be allocated to mood disorder – anxiety/depression because, as at 23 September 2009, it was not a treated and stabilised condition. 

4.      Mr Guthrie’s submission in relation to alcohol dependence was also that, based on a relapse by Mr Lane on or around 20 October 2009, it was not a stabilised condition for which an impairment rating may be allocated.  Alternatively, he submitted that, in the event that a rating may be considered under Table 7 of Schedule 1B of the Act, the appropriate rating was 5 points.  Mr Guthrie based this on the Job Capacity Assessment Report, dated 15 September 2009, by registered nurse Jayne Saul.

5.      A further condition, “multiple drug dependence”, was first diagnosed by another of Mr Lane’s treating doctors, Dr John Byrnes, on 20 October 2009.  Mr Guthrie submitted that no impairment rating may be allocated for this condition because it had not been diagnosed as at 23 September 2009. 

6.      In relation to work capacity, Mr Guthrie submitted that, on the basis of Ms Saul’s report, Mr Lane was capable, with appropriate intervention, of performing 15 to 22 hours work per week and did not satisfy s 94(1)(c)(i) of the Act.

EVIDENCE

7.      Mr Lane has been in receipt of the disability support pension since November 2006 because of his alcohol dependence.  After the initial cancellation of disability support pension in August 2009, he obtained documentation from Centrelink which he requested Dr Brink to complete.  This was a treating doctor’s report (TDR).  Dr Brink completed this on 25 August 2009[3] and reported that the appropriate diagnoses of relevant conditions in Mr Lane’s case were “alcohol dependence” and “mood disorder-anxiety/depression”.  Dr Brink wrote that Mr Lane was not consuming alcohol at that time and that he had been sober since January 2008.  He described the other condition as being related to anxiety in Mr Lane because he was fearful of relapsing into alcohol abuse which had troubled him since he was a teenager.  He noted that Mr Lane had taken medication in the form of Advanta and had attended counselling in the form of Alcohol Anonymous (AA) meetings.  Dr Brink referred Mr Lane for counselling with the organisation “Focus”. 

[3] See T12/66.

8.      On 15 September 2009, a Job Capacity Assessment Report was completed by registered nurse, Jayne Saul, and registered occupational therapist, Leah Percival[4].  They were also of the opinion that Mr Lane was not consuming alcohol when they saw him and had not done so since January 2008.  In their report, they nominated him as suffering from alcohol dependence, from anxiety and from drug dependence.  They noted that the anxiety had been diagnosed by Dr Brink in August 2009. 

[4] See T13/74.

9.      Ms Saul and Ms Percival were told by Mr Lane that he also had a long history of cannabis and amphetamine usage.  He had concealed the taking of these drugs from Dr Brink, whom he knew very well and felt too shameful to reveal this habit to him.  He did, however, advise another local doctor, Dr John Byrnes, of this habit.  Dr Byrnes provided a report, dated 20 October 2009[5] in which he diagnosed “multiple drug dependence”.

[5] See T24/109.

10.     Mr Lane attended counselling with Tracey Anderson, Psychologist, from Focus.  Ms Anderson completed a report, dated 19 October 2009[6].  Therein, she detailed Mr Lane’s long term poly-substance abuse in relation to cannabis and methamphetamines as well as a recent relapse into alcohol abuse.  Ms Anderson recommended continuing treatment over the following 2 years.

[6] See T21/95.

11.     In his evidence, Mr Lane said that he had remained abstinent from January 2008 until his disability support pension was first cancelled in August 2009.  He did not disclose this to Dr Brink, Ms Saul or Ms Percival when he saw them in August/September.  He was able to remain free of alcohol only because he substituted other drug usage in the form of cannabis and methamphetamines.  He did not disclose this to Dr Brink but did so advise Ms Saul, Ms Percival and Dr Byrnes.  Mr Lane said that, with continued counselling, he hoped to remain free of alcohol and other drugs in the future.

12.     In their report, Ms Saul or Ms Percival recommended an impairment rating of 5 points under Table 7 of Schedule 1B for alcohol dependence.  In relation to work capacity, they concluded that Mr Lane was capable of working for only 8 to 14 hours per week at the time when they saw him but opined that this would increase to 15 to 22 hours per week in moderate less skilled work with intervention.

CONSIDERATION

13.     A requirement in s 94 of the Act is that Mr Lane’s physical impairment must equate to 20 or more points under the relevant Table in Schedule 1B of the Act.  In addition to listing the various Tables for allocating impairment ratings, Schedule 1B also contains an Introduction which sets out principles to be applied in making the appropriate assessment.  The Introduction includes the following:

4.A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised ...

5.The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years ...

14.     As at 23 September 2009, drug dependence had been referred to by Ms Saul and Ms Percival in their report.  However, that condition had not been formally diagnosed by any medical practitioner.  Further, while mood disorder- anxiety/depression was diagnosed by Dr Brink, that condition, as noted by Ms Anderson, was the subject of ongoing treatment.  Accordingly, I am satisfied that both drug dependence and mood disorder do not meet the pre-conditions set out in Schedule 1B concerning diagnosis and treatment and, accordingly, cannot allocate an impairment rating in relation to them. 

15.     For alcohol dependence, the relevant Table in Schedule 1B reads:

TABLE 7.       ALCOHOL AND DRUG DEPENDENCE     

Alcohol and drug dependence is assessed using Table 7.  A rating other than NIL on this Table should only be assigned where the person's medical and other reports, history and presentation consistently indicate chronic entrenched drug and alcohol dependence.  It should also be causing a functional impairment; the use of drugs or alcohol does not in itself constitute or necessarily indicate permanent impairment.  Any associated neurological functions or end organ damage should also be assessed on the appropriate tables in addition to Table 7.  The ratings are then added together to obtain a total work‑related impairment rating.

When applying this Table, consideration should be given to the known biological and behavioural effects of particular substances.

Rating	Criteria
NIL	A pattern of alcohol or drug use with no or only minor effects on daily functioning or work capacity.
FIVE	A pattern of alcohol or drug use sufficient to cause intermittent or temporary absence from work.
TWENTY	Dependence on alcohol or other drugs, well established over time, which is sufficient to cause prolonged absences from work.  Reversible end organ damage may be present.
THIRTY	Dependence on alcohol or other drugs, well entrenched over many years, with minimal residual work capacity.  Irreversible end organ damage may be present.
FORTY	Pattern of heavy alcohol or other drug use with severe functional disability and irreversible end organ damage.

16.     Mr Lane’s evidence was that he was consuming alcohol in late August and in September 2009.  Despite his abstinence for more than 12 months prior to this, that change in his consumption, as confirmed in the report of Dr Byrnes, reveals that the condition was not stabilised.  On the basis of the pre-conditions in Schedule 1B, this would preclude the allocation of an impairment rating for alcohol dependence.  Mr Lane did not advise Dr Brink of his altered pattern of consumption.  Neither did he so advise Ms Saul or Ms Percival whose report provides the only recommended impairment rating under Table 7 for alcohol dependence as at the relevant cancellation date.  This rating was 5 points.  That is less than the 20 points required under s 94 of the Act to qualify for the disability support pension.  As Mr Lane does not meet the threshold impairment requirement, it is unnecessary to consider his capacity for work under s 94(1)(c) of the Act.  Nevertheless, I note that the work capacity assessment of Ms Saul and Ms Percival is that Mr Lane did not satisfy the work capacity requirement on the relevant cancellation date.

DECISION

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed:  .....................[Sgd]....................................................

Kate Slack, Research Associate

Date/s of Hearing  24 February 2010
Date of Decision  9 March 2010
Applicant was self-represented
Solicitor for the Respondent     Mr Joe Guthrie, departmental advocate