Gustard and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 14

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 14

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/977

GENERAL ADMINISTRATIVE DIVISION		)
Re		GUY GUSTARD

Applicant

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

Respondent

DECISION

Tribunal  Professor RM Creyke, Senior Member

Date13 January 2012

Place Canberra

Decision The decision under review is affirmed.

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

Professor RM Creyke, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – mental illness – depression - petit mal epilepsy – hypertension – hepatitis C – job capacity assessment  - implementation of Ombudsman’s report - Falling Through the Cracks: Centrelink, DEEWR and FaHCSIA – engaging with customers with a mental illness in the social security system – whether condition diagnosed, treated and stabilised – impairment rating

Social Security Act 1991 (Cth) s 41, 42, 94, Sch 1B, Sch 2

REASONS FOR DECISION

13 January 2012                   Professor RM Creyke, Senior Member

1.      Mr Guy Gustard, born in 1958, lodged an application for disability support pension (DSP) on 21 June 2010. He claimed to be disabled by his conditions of petit mal epilepsy, feet problems and depression.

2. The claim was rejected by the Secretary on 9 August 2010 as Mr Gustard did not satisfy all the qualifications for DSP in section 94 of the Social Security Act 1991 (Cth) (Act), a decision affirmed on review by an authorised review officer on 19 October 2010. On 1 February 2011, the Social Security Appeals Tribunal affirmed the decision of the Secretary.

3.      On 17 March 2001, Mr Gustard sought further review by the Tribunal.  The matter was heard on 28 November 2011 at Moruya, New South Wales.

History

4.      Mr Gustard lives at Tuross Head, New South Wales.  He married in 2008 and his wife migrated to Australia from the Philippines.  She has a daughter from a former relationship who is now 7 years old.  Mr and Mrs Gustard also have a son, Quin, born in 2011.

5.      Mr Gustard’s wife works two days a week and Mr Gustard looks after the baby.  Mr Gustard has not worked since October 2011. 

6.      Mr Gustard was the principal carer for his parents until his mother died in July 1999, and his father in 2000. He suffered reactive depression after their death.

7.      During a holiday in the Philippines in 2006, Mr Gustard met his current wife.  He made a number of subsequent visits to the Philippines, eventually returning to Australia with her on 2 May 2010. 

8.      In the supporting documentation for his claim for a disability support pension, Mr Gustard’s treating general practitioner, Dr Stephen Ellwood, described Mr Gustard’s conditions as petit mal epilepsy, reactive depression, hyperlipidemia and hepatitis C. Dr Ellwood noted in that document, dated 5 July 2010, that it was Mr Gustard’s depression, and his hepatitis C that were the most disabling. Fatigue, lethargy and exhaustion were the predominant impairments identified in his report.

9.      The Tribunal noted that reactive depression, of its nature, is generally reasonably short-term, and it would be unusual for such a condition to continue for over ten years, as appears to be the case for Mr Gustard.  The representative of the Secretary agreed that there may be a more appropriate diagnosis for Mr Gustard’s depressive condition. Mr Gustard also accepted that reactive depression may no longer be the appropriate label for his depression.

Mr Gustard’s medical conditions

10.   Mr Gustard provided evidence to the Tribunal relating to the medical conditions he considers qualify him for disability support pension.  His contention at the hearing was that his health had been better in 2006 and 2007 than at present.  In particular he said his depressive disorder is worse now than it was previously and this necessitated a change in anti-depressant medication.  He has been on different medication since the latter part of 2010.

Epilepsy

10.     Mr Gustard said he had a long history of petit mal epilepsy and although he has not suffered a seizure for about ten years, he still gets sensations of vagueness which precede a seizure.  That is a signal to him to take valium, which prevents a full-blown seizure occurring. He says the sensation can be triggered by neon lights.  He also refused to use power tools, or climb poles because of the condition.

11.     Mr Gustard said he currently has an unrestricted driver’s licence, obtained in 2009, but he only drives when he feels well.  The epilepsy does not affect his ability to do most things.  He agrees with his doctor’s assessment that the condition causes minimal impact on his life.  In Mr Gustard’s view, that is because he has learned to manage the condition.

Foot problems

12.     Mr Gustard said he also has foot problems from a soft tissue injury in 1986.  The condition meant he was increasingly having problems with his ankles.  The residual pain affects his ability to stand, or walk for any length of time or distance. The pain can prevent him driving long distances. The condition caused him to cease his last employment which was delivering magazines in his local area.

13.     Mr Gustard said that in 2011 he had been asked to increase his number of deliveries to 500 houses.  This was an increase of 200 houses over his previous load. He managed to complete the increased number of deliveries on four occasions, but said he was so exhausted and it took so long to recover that his wife recommended that he cease work, which he did in October 2011.  At that point he had been doing the deliveries for about twelve months.

14.     He acknowledged that Dr Ellwood had not mentioned his foot condition in his assessment report for disability support pension purposes.  He said this was an error on Dr Ellwood’s behalf.  However, Mr Gustard reasoned that because Dr Ellwood had assessed his work capacity as being limited to sedentary activities, this implied that the doctor understood that he suffered from the problem.

Depression

15.     Mr Gustard said his depression commenced when he was the full-time carer for his mother and father, a role he filled for about five years until his parents’ deaths in 1999 and 2000 respectively. He was diagnosed with reactive depression arising from the grief he suffered after his parents died.  However, despite the typically short-term nature of the condition, the symptoms have persisted. Mr Gustard agreed with the diagnosis of clinical neuropsychologist, Associate Professor Wayne Reid, in a report dated 2 November 2011, that his condition should more properly be diagnosed as major depressive disorder.  The report of Associate Professor Reid was received after the application period, and has only been noted by the Tribunal.

16.     Mr Gustard said at the hearing that he had not mentioned the misdiagnosis of his depressive disorder to Dr Ellwood, but would do so when next he sees him.  He had not seen Dr Ellwood since he received Associate Professor Reid’s report. He last visited Dr Ellwood in about October 2011 for a further referral to his treating clinical psychologist, Mr Lloyd Murray.

17.     Mr Gustard was prescribed Sertraline, an anti-depressant, for his depression.  However, he ran out of pills during his last lengthy visit to the Philippines, from which   he returned to Australia in May 2010.  On his return from the Philippines, Mr Gustard said he recommenced taking Sertraline but even on an increased dosage, on this occasion it did not help alleviate his depression. On Dr Ellwood’s advice he tried Effexor but it was not successful. Dr Ellwood then prescribed Escitalopram which Mr Gustard said he has been taking since the beginning of 2011.  He said it is, in his case, a more effective anti-depressant.

18.     Mr Gustard said he had undertaken three counselling sessions with a grief counsellor after the death of his parents in 2000.  He had not sought counselling subsequently since he had been under the impression that he would have to pay for the sessions and he could not afford it. In particular, he was unable to afford counselling on his return from the Philippines in May 2010, despite the disturbing experiences he had encountered whilst overseas.

19.     When he discovered late in 2010 that counselling qualified for a Medicare rebate, he commenced counselling sessions with Mr Lloyd Murray, a clinical psychologist.  He had 3 sessions with Mr Murray before Christmas 2010 and has continued to see him, roughly every fortnight, in 2011.  Centrelink did not ask for a report from Mr Murray since Mr Gustard started seeing him after the application period. However, the representative for the Secretary pointed out that were Mr Gustard to lodge a new claim for disability support pension, a report from Mr Murray would be valuable evidence.

20.     In response to questions at the hearing about the level of his depression, Mr Gustard said his depression was worse than it had been in 2006 and 2007.  However, it was about the same now as it had been in June to September 2010. 

21.     When asked whether he was prepared to go to a psychiatrist at the Mental Health Service of NSW Health, Mr Gustard said he would do so, but he did not believe a psychiatrist practised locally.  However, he conceded that he was prepared to drive either to Sydney or to Canberra to attend a psychiatrist, if necessary.  He also said he now understood that under a Mental Health Care Plan, a referral is usually for a maximum of twelve sessions.

Other evidence from Mr Gustard

22.     When asked at the hearing why he had not lodged a new claim, Mr Gustard said that he thought he could not do so while the existing review process was still under way.  The representative for the Secretary pointed out that he had been informed by herself and others during the review process that this belief was incorrect. The Tribunal reinforced this recommendation. Mr Gustard agreed that he would lodge a new claim now that he understands that this step is available.

23.     Mr Gustard noted that sleep deprivation is a problem for him. He did attend a sleep clinic on 15 August 2011 and saw a Doctor Reddel.  On the day of the hearing, he had left Dr Reddel’s report at home, but said that it indicated that his sleep problems are anxiety-related. Mr Gustard also noted that his capacity for work was more limited than had been indicated in the report of the job capacity assessor undertaken for his disability support pension application.

24.     He said his magazine delivery work had been ostensibly for one day a week, but the nature of the work and his decreasing efficiency, meant he could not manage the task within the allotted hours.  So he spread the work over several days, but even then it would take him several days to recuperate. His feet hurt, and he had lightness, dizziness, and cramps after his deliveries. He said the folding of the magazines hurt his hand, which also took time to recover. According to Mr Gustard, even the twelve hours, as suggested by Dr Ellwood in his second report, spread over 4 days, was probably too much for him to manage on a consistent basis. 

Medical evidence

25.     Dr Ellwood has been Mr Gustard’s treating general practitioner since 1995.  He completed a medical report in connection with Mr Gustard’s application for disability support pension on 5 July 2010. In that report he listed the conditions from which Mr Gustard suffered as reactive depression, hepatitis C, hyperlipidemia or hypertension, and petit mal epilepsy.

26.     Of these conditions, it was Dr Ellwood’s view that the most disabling was the depressive disorder, diagnosed in July 1999. That led to symptoms of ‘lethargy, insomnia, poor concentration, and poor organisations skills’. Dr Ellwood also said Mr Gustard’s hepatitis C, diagnosed in 1986, led to lethargy and decreased endurance, and this too was disabling. Dr Ellwood noted that Mr Gustard had not had an epileptic seizure since 2000, and that his hyperlipidemia was controllable by diet. These conditions, according to Dr Ellwood caused minimal dislocation to his patient.

27.     Dr Ellwood’s conclusion in his initial report was that Mr Gustard was only suited to ‘a very light workload, eg ½ days a few days a week of sedentary work’. In a second report Dr Ellwood provided on 23 August 2010, his opinion about Mr Gustard’s capability for work was expressed as ‘low level work ie low physicality, low stress’ for hours described as: ‘3 hours, 4 days a week’. 

Other evidence

28.     A Centrelink Job Capacity Assessment Report, dated 4 August 2010, was completed following an assessment on 21 July 2010 by Ms Kim George, a Rehabilitation Counsellor at the Centrelink office in Bateman’s Bay.

29.     The disabling conditions she reported for Mr Gustard were: lower limb deficiencies, namely, an injury to his right foot which affected prolonged walking; depression; hypertension; hepatitis C; and epilepsy. She noted that the lower limb deficiencies were not verified by medical evidence, that is, not diagnosed. She assessed that Mr Gustard’s hepatitis C and epilepsy were fully diagnosed, treated and stabilised; apart from his foot condition, she assessed the other conditions, namely his depression and his hypertension, as diagnosed but not treated and stabilised. 

30.     Overall she assessed that his conditions impacted on his employability due to ‘limited motivation, confidence and self-esteem to set and pursue personal and vocational goals, attention and concentration limitations, limited ability to interact with others in a variety of contexts’.  She also noted that he had endurance limitations, was fatigued due to mental exhaustion, and that barriers to re-employment were his child-care responsibilities, family relationships, and his limited employment history.  She reported that he had last worked in 1986, with an employer who had employed him for the previous 15 years.  Nonetheless, she assessed that he could work for 15-22 hours per week, and for up to 29 hours with support, in light, less skilled jobs such as administration, or repetitive process work. She also recommended cognitive behaviour therapy, counselling, work experience, support to find and maintain employment, and child care assistance.

31.     In her evidence at the hearing, Ms George stated that she had telephoned Dr Ellwood to clarify an indecipherable word in one of his reports, and conceded that she had not sought information about why he had not referred in his reports to lower limb deficiencies.  In her view it is for the customer to adduce evidence of any claimed disabilities. In any event, she did not think information about his foot would have changed the outcome. She acknowledged, however, that in other circumstances, it was expected that she would contact the treating professional, or general practitioner to try to resolve any perceived inconsistency. 

32.     She said she had listed ‘depression’ not ‘reactive depression’ in the ‘condition’ line because reactive depression was not among the limited collection of conditions in the electronic system menu with which she works.  As she said, it was not a free text section.  She also confirmed that it was not clear from Mr Gustard’s account as to when his three counselling sessions had occurred. In any event, her view was that it would be usual for there to be at least ten to twelve sessions of counselling to achieve maximum effectiveness and to enable a finding of ‘condition stabilised’ in a person with depression.

33.     She had recommended assessment by a psychiatrist in her report on Mr Gustard because the condition of reactive depression, she understood, was a temporary condition, and the date of onset was 1999. In her view, an assessment by a professional was needed to resolve this puzzle. She said that a condition would not be considered to be ‘fully documented, treated, investigated and stabilised’ when conditions were poorly defined. However, again, even if the diagnosis was clear, in her opinion the outcome would have remained the same because the depressive condition suffered by Mr Gustard still required further treatment.

34.     She said that if a person with a mental impairment seeks a disability support pension and has difficulty finding a doctor or specialist in the area, there is a special assessment procedure. That procedure applies if the person lacks insight, judgement or both. In those circumstances, the Job Capacity Assessor can intervene and organise a specialist assessment if appropriate. She did not consider this appropriate in the case of Mr Gustard since he already had a treating doctor’s report.

35.     Although she said she found the diagnosis of reactive depression puzzling, she did not consider she should have asked Mr Gustard about this because her position was not a diagnostic and treating role, and for the purposes of assessment, further information was not required. In her view the information from Dr Ellwood was sufficient to indicate that the condition was not treated as at the period June to September 2010, since the Sertraline he was taking was ineffective, and he had not undergone sufficient or recent counselling sessions.

36.     She said she did not consider it was her role to advise Mr Gustard that he would benefit from cognitive behaviour therapy, despite recommending this in her assessment. She said she would only do so if the person lacked insight, had serious symptomology, or was at risk of harm to others or to self. In those circumstances, she would contact the treating doctor. In her view, Mr Gustard did not fall within that group on the day she saw him.

37.     In relation to hypertension, Ms George said it was not treated and stabilised since there are treatments other than diet which he could undertake. In relation to hepatitis C, a symptom of which is fatigue, she said she did not refer to that symptom specifically because the table should be chosen based on the major impairment reported. She explained that her failure to refer to insomnia in her list of symptoms, despite having been more fulsome than required in relation to other symptoms, was because the assessment should be exclusively about treatment, not symptoms. She also did not think there was anything special about the report relating to hepatitis C beyond the information in Dr Ellwood’s report.  She chose to use Table 20 rather than Table 11.1 because the pervading impairment was fatigue or exhaustion.

38.     In her baseline assessment of the number of hours Mr Gustard would be capable of working, she did not include his condition of depression, since in her opinion it had not been fully treated and stabilised. Her assessment was based solely on medical conditions, while the treating doctor’s report takes account of psychosocial factors. She said she only had Dr Ellwood’s initial report which referred to a very light workload, half days a few days a week. His later report also said ‘initially’ 3 hours a day for four days a week, indicating a graduated return to work. In her view, Dr Ellwood’s assessment indicated he considered Mr Gustard would be capable of more hours over time.  She said she deemed Mr Gustard  would be able to sustain 15 to 22 hours work a week, and more with support, despite the treating doctor’s recommendation.

39.     She also noted that the assessment was terminated because Mr Gustard became aggressive. It was accepted by the Tribunal that there had been a personality clash between Mr Gustard and Ms George, and this had not assisted the assessment.

Other matters

40.     Mr Gustard raised as an issue at the hearing that Ms George had not heeded what he claimed to be recommendations by the Commonwealth Ombudsman arising from the report, Falling Through the Cracks:  Centrelink, DEEWR and FaHCSIA – engaging with customers with a mental illness in the social security system.’[1]  Mr Gustard claimed that since he was suffering from a depressive condition, he was one of the ‘customers with a mental illness’ intended to benefit from the recommendations in the report.

[1] Commonwealth Ombudsman, Falling Through the Cracks: Centrelink, DEEWR and FaHCSIA – engaging with customers with a mental illness in the social security system’, Report No 13 (2010).

41.     At the hearing, Ms George said that she was aware of the Ombudsman’s report, but it had a publication date of September 2010. To her knowledge any response to the report and changes to policies or practices had not come though the employment networks at the time she conducted the assessment.

42.     In cross-examination, she was asked whether she knew of the Ombudsman’s recommendation that in cases of poor diagnosis, Centrelink should refer the person to a psychologist for a further assessment.[2] Ms George responded that if the outcome was likely to be altered she would have made such a recommendation, but not in Mr Gustard’s case. She said she was deemed to be the person to make that judgement.

[2] Recommendation 4 in Id at 13, 24.

43.     There was uncertainty at the hearing about the status of the recommendations, whether the recommendations had been accepted, and if so, whether the recommendations were in force at the relevant time. Following the request of the Tribunal, the representative of the Secretary helpfully arranged for a response to these issues. Responses were received from Centrelink dated 13 and 14 December 2011.

44.     The responses indicated that what was in effect recommendation 4 of the report, namely, that the Guide to Social Security Law (Guide) be updated ‘to ensure that it appropriately supports the special procedure for assessing customers who are unwilling or unable to provide medical evidence’, had occurred in July 2010. The Guide was changed to provide the circumstances in which ‘eligibility for DSP can be assessed based on a Centrelink registered psychologist’s diagnosis of a mental health condition in circumstances where a claimant does not present medical evidence’. This update preceded the publication of the final version of the Ombudsman’s report.

45.     The change made in July 2010 therefore only applied in circumstances where medical evidence was not available. As Mr Gustard had obtained medical evidence from his treating general practitioner for the purposes of his application, the change was not of relevance to his application, and the Tribunal so finds.

46.     The response indicated that the Guide was further updated in July 2011, to take account of other recommendations relating to the Job Capacity Assessment process, including procedures in relation to ‘vulnerable customers with a suspected mental health condition, training for staff assisting customers presenting with a mental illness, and new Impairment Tables for DSP cases.   Since these changes were outside the time frame for Mr Gustard’s claim, they would not have applied to his claim, even if relevant.  For that reason, they are not further considered.

Legislation

47.     The relevant legislation is the Social Security Act 1991 (Cth) (Act). Section 94 sets out the criteria to be met for disability support pension. Section 94 states:

94 Qualification for disability support pension

(1)  A 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; …

and

(d)  the person has turned 16; and

(e)  the person either:

(i)  is an Australian resident at the time when the person first satisfies paragraph (c). …

Note 2:       for Impairment Tables see section 23(1) and Schedule 1B.

Continuing inability to work

(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(aa)  in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and

(a)  in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b)  in all cases--either:

(i)  the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)  if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note:          For work see subsection (5).

(3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)  the availability to the person of a training activity; or

(b)  the availability to the person of work in the person's locally accessible labour market.

(3A)  If:

(a)  a person is receiving disability support pension; and

(b)  the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person's qualification for that pension;

then paragraph (2)(aa) of this section does not apply in relation to that assessment.

"work" means work:

(a)  that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)  that exists in Australia, even if not within the person's locally accessible labour market.

Issues

48.     The issues are whether Mr Gustard was qualified to receive DSP on 21 June 2010, or within 13 weeks of that date.  In turn that requires that Mr Gustard has:

·A physical, intellectual or psychiatric  impairment;

·A diagnosed condition that has been investigated, treated and stabilised and is likely to continue for two years;

·An impairment rating of at least 20 points ascribed under the Impairment Tables contained in Schedule 1B of the Act; and

·A continuing inability to work because of the impairment.

Consideration

49. Section 94 of the Act provides the criteria to qualify for disability support pension. To be qualified the person must have a physical, intellectual or psychiatric impairment that attracts an impairment rating of at least 20 points under the Impairment Tables, and have a continuing inability to work.

50.     The start date for disability support pension for a person is the date of claim,[3] provided the person qualifies either at the date of claim or within thirteen weeks after that date.[4] Mr Gustard’s date of lodgement of his claim was 21 June 2010.  As a consequence, his eligibility is tested on that date or any day up to an including 20 September 2010.

[3] Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 2, cl 3.

[4] Id ss 41, 42, Sch2, cl 4(1).

51. It was conceded by the Secretary that Mr Gustard met the requirements of section 94(1)(a). He had both physical impairments and a psychiatric impairment in that his treating doctor had certified he was suffering from hepatitis C, epilepsy, hypertension, and depression. Those findings have not been challenged and are accepted by the Tribunal.

52.     The Tribunal notes that Mr Gustard and Ms George also agreed that his lower limb deficiencies were disabling.  However, the Tribunal is limited in its consideration to the conditions claimed and considered in the decision under review, namely, those referred to in the treating doctor’s report.  Mr Gustard is encouraged to include the impairment from his foot problems in any future claim.

53.     Initially the Secretary argued that Mr Gustard’s claim might be supported by the views expressed by Associate Professor Smith in the report of 28 October 2011, which appeared to comment on all of Mr Gustard’s conditions.  However, the report had been obtained for the sole purpose of consideration of a condition, acalculia, which Mr Gustard had suggested might explain some of his symptoms. At the hearing, the representative for the Secretary conceded that this report and the opinions on Mr Gustard’s conditions that it contained were therefore not relevant for the Tribunal hearing. In light of the report, Mr Gustard, did not press the claim relating to acalculia, nor suggest that the report be relied on by the Tribunal.  The Tribunal did not take account of the report in its findings.

54. The principal questions were whether Mr Gustard’s conditions had been investigated, treated and stabilised, whether they were likely to continue for two years, whether his conditions attracted a total impairment rating of 20 points or more under Schedule 1B of the Act, and whether he had a continuing inability to work.

55.     The Tribunal notes that the Introduction to the Impairment Tables states that before a rating can be assigned to a condition, the condition ‘must be a fully documented, diagnosed condition which has been investigated, treated and stabilised’.[5]  In deciding whether a condition has been fully diagnosed, treated and stabilised, the Introduction to the Impairment Tables indicates that factors to be considered include:

·what treatment or rehabilitation has occurred;

·whether treatment is still continuing or is planned in the near future; and,

·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

[5] Act, Schedule 1B, Introduction, cl 4.

56.     To be classified as permanent it must be established that the conditions ‘will persist for the foreseeable future’, that is at least for two years, as at the date of claim.[6]

[6] Act, Sch 1B, Introduction, clause 5.

57.     The Tribunal notes that Ms George had assessed Mr Gustard’s level of impairment under Tables 6 and 20 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension, in Schedule 1B of the Act. The Social Security Appeals Tribunal used Table 6 and Table 11.1. The representative for the Secretary agreed at the hearing that the SSAT’s choice was correct, since one of Mr Gustard’s conditions – hepatitis C – was a liver condition. Table 11, the gastrointestinal table, deals with conditions involving the stomach, duodenum, liver and biliary tract. The Tribunal adopts as correct the Tables applied by the SSAT, namely, Table 6 and Table 11.1.

58.     Ms George found Mr Gustard’s epilepsy and hepatitis C were fully diagnosed, treated and stabilised; that his hyperlipidemia was diagnosed but not fully treated or stabilised as he was not then undergoing treatment for the condition; and his depression was also diagnosed, but not treated and stabilised as he had undergone insufficient counselling sessions, his anti-depressant medication at the time was ineffective, and ‘optimal treatment would include assessment by a psychiatrist’ and cognitive behavioural therapy, for example, by a clinical psychologist.

59.     The Social Security Appeals Tribunal (SSAT) did not deal with the issues of treatment and stabilisation.  However, applying Table 6 of the Impairment Tables, the SSAT assigned Mr Gustard 10 points for depression, and nil points under Table 11.1 for hepatitis C. The latter assessment was made on the basis that Mr Gustard’s hepatitis C was asymptomatic and did not require treatment. The SSAT considered his petit mal epilepsy was no longer an issue. No mention was made of his hypertension.

60.     Mr Gustard informed the Tribunal that for six months while in the Philippines he had not been receiving treatment for his depression. Although he had gone back on Sertraline on his return in May 2010, in July 2010, at the time of the assessment, the medication was ineffective and he was subsequently prescribed a different and now more effective anti-depressant medication. On that basis, the Tribunal finds that although he was being treated during that period, his condition had not stabilised since the medication was proving ineffective.

61.     The Secretary has contended, based on the assessment of Ms George, that three counselling sessions were insufficient to indicate that Mr Gustard’s depression had been treated and stabilised. In particular, the contention stated:

It seems Mr Gustard has not been seen by a psychiatrist for further assessment of his depression and he could also benefit from being referred to a clinical psychologist for psychological management of his depression.

62.      Mr Gustard’s evidence was that he underwent three counselling sessions at the Moruya Grief Counselling Service at Moruya Hospital, following the death of his parents.  That was the period in which he was diagnosed with reactive depression. He also contended that there was no psychiatrist operating in his local area, and he had not been able to consult the Mental Health team at Moruya Hospital. He has been having counselling sessions with a clinical psychologist, Mr Lloyd Murray, since December 2010, but this is outside the period under consideration.

63.     That means, apart from the three sessions in 2000, Mr Gustard did not seek counselling prior to or during the period to September 2010. As he was not on an effective medication in the period June to September 2010, nor had he received counselling at that time, Mr Gustard’s depressive condition could not be considered to be stabilised at that time, and the Tribunal so finds. As Mr Gustard has now been receiving counselling sessions regularly since late 2010, and is on an effective anti-depressant, he should meet the criteria for stabilisation of a depressive condition if he lodges a further application for disability support pension.

64.     The Tribunal notes that, in the light of Professor Reid’s report, the diagnosis of reactive depression no longer appears to be appropriate.  Mr Gustard should obtain a further diagnosis of his depressive condition.  Mr Gustard has agreed to speak to Dr Ellwood about this issue.  

65.     Applying Table 6 in relation to Mr Gustard’s depression, the evidence indicates that his depression was not of such severity that he suffered from ‘frequent suicidal ideation’, had ‘severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour,’ or ‘psychotic illness with continuing symptoms’.  That meant he also did not qualify for 20 points under Table 6.

66.     The two conditions – hyperlipidemia and petit mal epilepsy – were considered by Dr Ellwood to be of lesser disabling impact.  The hypertension condition was being treated with diet, and Mr Gustard had not had an epilepsy attack since 2000. In relation to his hepatitis C, Dr Ellwood certified that the condition was diagnosed, but was only ‘mildly active abnormal’, that it was not currently being treated but that it would continue, with fluctuating impact, for the ensuing 24 months.

67.     The Tribunal finds that his hepatitis C condition, does not lead to ‘nausea and vomiting’ (Table 11.1, criteria for 10 points).   In addition, since the symptoms are not being treated, the symptoms cannot be assessed following ‘optimal treatment’. In these circumstances, the Tribunal could only assess Mr Gustard’s level of impairment for his hepatitis C condition as nil.  Since his epilepsy and hyperlipidemia have not been assessed by Dr Ellwood as medically disabling, no points can be ascribed to them. 

Decision

68. In these circumstances, the maximum number of points under the Impairment Tables for Mr Gustard’s accepted conditions was 10 points. Accordingly, he did not meet the minimum criteria in section 94(1)(b) of 20 points in the period of three months between 21 June 2010 and 20 September 2010. That meant he was not then qualified for disability support pension and there is no need to go on to consider his continuing inability to work. The decision under review must be affirmed.

69.     

The Tribunal notes that Mr Gustard has been strongly advised by the representative for the Secretary and by the Tribunal to lodge a new claim for disability support pension. That claim should also consider his impairment from his foot conditions which were not listed in the claim under consideration.

Date of Hearing        28 November 2011
Date of Decision       13 January 2012
Solicitor for the Applicant       Self Represented
Solicitor for the Respondent                       Glenda Heggen
  Centrelink Program Litigation and Review   Branch