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

[2016] AATA 391

Grant and Secretary, Department of Social Services (Social services second review) [2016] AATA 391 (14 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3674
Re	Colin Grant
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	14 June 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

Catchwords

PENSIONS, BENEFITS, ALLOWANCES – application for disability support pension – psychiatric disorder – psychiatric opinion and psychologist opinion obtained post-lodgement of claim – prior psychiatric records not available – condition not fully diagnosed, treated and stabilized – decision affirmed.

Legislation

Social Security Act 1991

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

REASONS FOR DECISION

Miss E A Shanahan, Member

14 June 2016

1. Mr Grant gave notice of intention to claim a benefit and seek a healthcare card by telephone to Centrelink on 5 December 2014. He did not, however, lodge his formal application until 29 January 2015, this claim being for disability support pension (DSP). Mr Grant claimed that his conditions were depression, anxiety, insomnia, confidence gone, suicidal, broken nose. His treating general practitioner, Dr Othman, provided a medical report in support of the claim, dated 20 January 2015. Dr Othman provided a diagnosis of depression with adjustment disorder as diagnosed by a psychiatrist, Dr De Silva on 11 December 2014. Following a job capacity assessment on 13 February 2015, a Centrelink delegate rejected the claim for DSP on 16 February 2015.

2. Mr Grant requested an internal review. On 10 March 2015, an Authorized Review Officer affirmed Centrelink’s decision.

3. Mr Grant then lodged an application with the Social Security Appeals Tribunal (SSAT) for review of the Authorized Review Officer’s decision. On 26 March 2015, the SSAT affirmed the reviewable decision based on its finding that Mr Grant’s psychiatric condition was not fully treated and stabilized, and therefore could not be allocated an impairment rating.

4. Mr Grant lodged an application for review by the Administrative Appeals Tribunal (AAT) on 15 July 2015. At the hearing on 25 February 2016, he was accompanied by his father and his sister. His sister assisted him with the presentation of his evidence. Mr Tim Noonan, a solicitor of the Freedom of Information and Litigation Branch of the Department of Human Services, represented the Secretary.

5. Mr Grant gave oral evidence before the Tribunal. The Tribunal was also provided with the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). A report was also received on 18 December 2015 from Ms June Chia, a psychologist.

   BACKGROUND TO THE APPLICATION

6. Mr Grant claims to have suffered from a depressive disorder since the death of his mother in 2006. Mr Grant told the Tribunal that his mother had died from complications of alcoholism, having suffered from a major depressive disorder for many years. On Mr Grant’s mother’s side, there is a strong family history of psychiatric disorder. Mr Grant’s sister, who accompanied him, had also suffered from a major depressive disorder, for which she receives DSP. Mr Grant’s sister’s condition is improving and she is working to establish a furniture restoration business.

7. Mr Grant gave evidence that he had not had a stable place of residence for over three years, and had not seen his children for many years. His evidence is that he has not worked for three years, except for a couple of days of home-based work where he sat and stared at his computer. He has had some short-lived employment opportunities, but was sacked twice.

8. Mr Grant says he had attended psychiatrists and psychologists over the years and has been taking the antidepressant Effexor 300mg daily for many years. He admits he is not always compliant. While the medical evidence suggests he has been taking the drug Avanza since January 2015, he says he had never taken it. Mr Grant also admitted to alcohol abuse, involving drinking to excess whenever he is under stress, including as a frequent occurrence in the weeks leading up to the hearing. He has presented to accident and emergency departments in public hospitals but has not received any treatment or follow up, and on the latest occasion when he attended Western Health Hospital he was diagnosed and treated as having had a panic attack.

9. Mr Grant has worked as a mechanical engineer, although he did not complete his course in this speciality. Mr Grant claims to have worked for Boeing Corporation designing aeroplanes, and believes he could do this again if his depression was controlled. Having recently shifted to Williamstown, he has not seen his usual practitioner Dr Othman for some years and has consulted a local general practitioner Dr Al Kamil, who apparently would not provide any reports as he was unwilling to indulge in the paperwork.

10. Mr Grant was unable to recall the names of any psychologists or psychiatrists he had consulted in the past that could provide reports as to his diagnosis and earlier treatment, with the exception of the name of a psychologist, ‘Emily’.

11. At the time of the hearing, Mr Grant was feeling anxious, depressed and admitted to having been suicidal, although had not exhibited any intent.

    DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

    Dr Mohd Rozaidil Fitri Bin (Aldil) Othman, General Practitioner

12. Dr Othman had completed the medical report accompanying the claim for DSP, providing the diagnosis as provided by Dr De Silva of depression with an adjustment disorder requiring counselling from [a psychologist], continuation of the drug Effexor and commencement of Avanza 30mg at night, which according to Dr Othman was commenced on 19 January 2015. Dr Othman expected Mr Grant to significantly improve in the next two years, with appropriate treatment.

    Dr Chintanie De Silva, Psychiatrist

13. Dr De Silva first saw Mr Grant on 11 December 2014. Mr Grant had recently been evicted from his accommodation and lost most of his possessions as a result of this eviction. He had lost his driver’s licence some fifteen months earlier due to drink-driving and was continuing to rely on alcohol to manage his distress.

14. Mr Grant had also been involved in a significant legal battle with his siblings over the inheritance from his Mother’s estate. Having lost his driver’s licence in May 2013, he lost his job because of his inability to drive in February 2014. Dr De Silva regarded Mr Grant as being angry, impatient and disappointed in his inability to support his children. Mr Grant informed Dr De Silva that he had an intelligent quotient (IQ) of 140 when at school, which he now felt had greatly declined. He was apparently expelled from school which, on his reasoning, was because he was too creative.

15. Dr De Silva later diagnosed an adjustment disorder with depressed mood on the background of strong Cluster B traits. He recommended re-commencing Effexor, introducing Avanza 30mg at night and counselling under a mental health care plan with Dr Tim McCorriston, a clinical psychologist.

16. Mr Grant has not seen Dr De Silva since that initial consultation in December 2014, nor is there any evidence that he saw Dr McCorriston.

    Report from Ms June Chia, Psychologist      

17. This report is addressed To Whom it May Concern, and states that Ms Chia has been providing psychological treatment to Mr Grant since August 2015 for a major depressive disorder with associated anxiety. She described the same symptoms as reported by Dr De Silva, but noted that Mr Grant’s Effexor dose had now increased to 600 mg per day. Ms Chia reported that despite the increased dose of Effexor, Mr Grant had threatened suicide twice in the preceding months, leading to police intervention on both occasions. She regarded Mr Grant as being at imminent risk of being homeless, and believed this risk increased his anxiety and stress.

18. Ms Chia considered there would be no significant improvement until Mr Grant achieved financial stability and housing security. She concluded that he had no work capacity and supported his application for DSP.

19. While Ms Chia is a psychologist, she is not a clinical psychologist. Ms Chia did, however, append to her report that the report itself was prepared under the supervision of a clinical psychologist.

    Job Capacity Assessment

20. A job capacity assessment was undertaken on 10 February 2015 by a registered psychologist. The assessor accepted the diagnosis of depression with adjustment disorder and noted that Mr Grant had attended approximately 10 sessions with a psychologist and was continuing to take the antidepressant Effexor. As there was no verified, permanent, and fully diagnosed, treated and stabilized psychiatric condition, an impairment rating was not attracted.  The assessor considered Mr Grant unable to work more than seven hours per week at the time of the assessment, but determined that his baseline capacity was 15-22 hours per week and that with additional support over the next two years, could achieve a capacity of 23-29 hours per week.

    RELEVANT LEGISLATION

21. Section 94 of the Social Security Act (the Act) outlines the requirements for qualification for DSP, stating:

    94 Qualification for disability support pension

    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; and

    SUBMISSIONS

22. Formal submissions were not made. However, Mr Grant’s sister made an undertaking to assist him to obtain medical reports regarding his psychiatric status prior to the date of his claim, he having seen both psychiatrists and psychologists in the past.

23. Mr Noonan did not object to this undertaking to obtain more detailed psychiatric evidence.

    TRIBUNAL’S DELIBERATIONS

24. It is quite clear, based both on the evidence before the Tribunal and the Tribunal’s observance of Mr Grant at the hearing, that he suffers from a psychiatric disorder, be it a major depressive disorder or, as diagnosed by Dr De Silva, an adjustment disorder with depressed mood. Dr De Silva’s report does not identify the stressor resulting in the adjustment disorder but in the report of 11 December 2014, Dr De Silva did identify in addition to the adjustment disorder a background of strong cluster B traits.

25. According to the Diagnostic and Statistical Manual of Psychiatric Disorders 4^th Edition (DSM-IV-TR) cluster B personality traits, which would be present at a lesser level than in a definitive cluster B personality disorder, are antisocial, borderline, histrionic and narcissistic traits. In the individual, these traits give the appearance of being overly dramatic, emotional or erratic.

26. Mr Grant’s Centrelink records relating to pension status and allowance/benefit history reveal that he has received Newstart allowance payments, or at least applied for them, since mid-2000. The records indicate frequent cancellations and rejections, being for failure to supply documentation and cancellations resulting from failure to report to Centrelink or failure to attend interviews.

27. Mr Grant has also been referred for job seeker assistance on several occasions commencing in 2003, and again attended irregularly and did not lodge documentation as required. His last job access placement was with Sarina Russo Job Access starting on 23 July 2015. Overall, it is estimated that he has done four months of training towards any requirements he may need to satisfy in a program of support.

28. Given the paucity of medical reports, the Tribunal allowed Mr Grant to obtain further medical information and he was to provide submissions by 27 April 2016. The only additional information provided was confirmation from the psychologist Mr Carlo Saba that Mr Saba had provided counselling sessions on several occasions in March and April 2013 as part of a general practice mental health plan.

29. Mr Grant satisfies section 94(1)(a) of the Act in that he has a psychiatric disorder requiring treatment and stabilization.

30. As found by the Job Capacity Assessor in February 2015, Mr Grant’s psychiatric disorder was not fully treated or stabilized during the review period of 6 January 2015 to 7 April 2015, and in fact at the time of the hearing on 25 February 2016. He claims he is taking Effexor, but also stated that he has never taken Avanza, which was prescribed in January 2015. It is also clear that he is not always compliant with this medication, particularly when drinking alcohol to excess. As his adjustment disorder with depressed mood is not, by any means, stabilized, an impairment rating is not attracted and he fails to satisfy section 94(1)(b) of the Act.

31. It is not necessary for the Tribunal to consider section 94(1)(c) of the Act or his continuing incapacity for work, or any requirement for a program of support given his failure to satisfy section 94(1)(b). The Tribunal, based on the evidence, must affirm the decision under review.

32.     I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member.

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

Associate

Dated             14 June 2016

Date of Hearing	25 February 2016
Applicant	In Person
Solicitor for the Respondent	Mr Tim Noonan
Solicitors for the Respondent	Department of Human Services, Freedom of Information & Litigation Branch