Havet and Secretary, Department of Social Services (Social services second review) [2018] AATA 2155 (10 July 2018)
Division:GENERAL DIVISION
File Number: 2017/3671
Re:Paul Havet
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:10 July 2018
Place:Sydney
The decision under review is affirmed.
……………….[SGD]………………
Chris Puplick AM, Senior Member
CATCHWORDS
Social Security – Disability Support Pension – Whether the Applicant’s appeal against an unsuccessful application for a Disability Support Pension should be granted – Impairment Tables – Qualification period – Traumatic brain injury – Blepharitis – Blood pressure – Haemochromatosis – Liver problems – Ischaemic heart disease – Fully diagnosed and fully treated – fully stabilised – Decision under review is affirmed
LEGISLATION
Social Security Act 1991
CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Muir v Secretary, Department of Employment and Workplace Relations [2005] AATA 902SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Chris Puplick AM, Senior Member
10 July 2018
This matter concerns an application for a Disability Support Pension (DSP).
The Applicant, Mr Havet, was self-represented and appeared by telephone from The Entrance, explaining that his inability to attend in person was necessitated by him having to remain at home to care for his seven year old son who had recently undergone minor surgery. Although the Applicant had difficulty remembering some dates and matters, in relation to others he demonstrated good powers of recall and was able to engage in constructive dialogue with the Respondent’s representative, Mr George Lozynsky, and the Tribunal.
APPLYING FOR THE DISBILITY SUPORT PENSION (DSP)
Mr Havet made an application for a DSP on 13 April 2016. Such an application triggers an assessment process to determine the eligibility of the Applicant for the DSP on that date or 13 weeks thereafter. That is, any time between 13 April 2016 and 13 July 2016.[1]
[1] Social Security Act 1991 (Cth) s 94.
This is what is referred to as “the qualification period”.
It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the Applicant’s health, changes in their status or acquisition of additional medical or psychological conditions.[2]
These may be material factors in any further application/claim which may be made, but they are not germane to the present assessment.
Whereas in other matters before the Tribunal decisions are to be based on the facts at the time of the Tribunal hearing, that is not the case…
- AGLC
- Havet and Secretary, Department of Social Services (Social services second review) [2018] AATA 2155
- Case
- [2018] AATA 2155
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine if each of Mr Havet's claimed conditions satisfied the statutory requirements of being fully diagnosed, fully treated, and fully stabilised before any assessment of impairment points could be undertaken. Specifically, the Tribunal had to consider the evidence presented for each condition, including medical reports and specialist opinions, to ascertain whether further treatment was ongoing, recommended, or necessary, and whether there was potential for improvement within a two-year timeframe.
The Tribunal reasoned that each condition must be assessed individually against the definitions of fully diagnosed, fully treated, and fully stabilised. While the Secretary accepted that Mr Havet's traumatic brain injury was fully diagnosed, a dispute arose regarding whether it was fully treated and stabilised. The Tribunal noted conflicting medical opinions on this point, with some reports suggesting ongoing treatment and potential for improvement, while others indicated the condition was stabilised. Ultimately, the Tribunal found that Mr Havet's appeal failed, and the original decision to refuse the Disability Support Pension was affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Each condition must be assessed separately to determine if they are fully diagnosed, fully treated and fully stabilised, before the Tribunal can consider whether or not to assign them points on the relevant Impairment Tables.CONSIDERATION OF CONDITIONS It is against these criteria and definitions that the Tribunal must consider each of the conditions advanced by Mr Havet in support of his application.Traumatic Brain Injury As noted above, Mr Havet had brain surgery in both 1991 and 2014 and, as a result, suffered an intracranial aneurysm and haemorrhage which resulted in a degree of impairment manifest by way of changes in his personality, in particular, difficulty controlling his anger and emotions, difficulties with his memory, a diminished degree of sociability, and problems with his libido.[5][5] Medical report from Dr Katrina Morris (dated 11 November 2015) at Tribunal Documents (‘T Documents’) 117-118; Medical report from Dr Nazih Assaad (dated 22 March 2016) at T Documents 121. These manifestations were apparent during the qualification period and have been confirmed by further medical evidence submitted by Mr Havet, although those assessments post-date his DSP application.[6][6] Medical report from Dr Laura Barnfield (dated 9 August 2017) at Tribunal Evidence A1; Medical report from Clinical Associate Professor Heard (dated 24 January 2018) at Tribunal Evidence A2. The Secretary accepts that Mr Havet’s brain condition was fully diagnosed during the qualification period, but disputes that it was fully treated and stabilised.[7][7] See Secretary, Department of Social Services, Statement of Facts, Issues and Contentions, paras 33, 35, 39. This is a matter of some dispute as both the JCA on 16 June 2016[8] and Clinical Associate Professor Heard in his report of 24 January 2018[9] find to the contrary, namely that the condition was fully diagnosed, treated and stabilised.[8] T Documents 161.[9] Tribunal Evidence at A2. In reaching the conclusion advanced by the Respondent, the Secretary relies upon a report by Dr Khale (a general practitioner);[10] the specialist opinion of Dr Assaad;[11] the DMA report;[12] and the neurological report of Dr Morris[13] – all of which suggest that further treatment was ongoing, recommended or necessary during the qualification period and that, as a result, there may well be opportunities for improvement in Mr Havet’s condition within the next two years. There are suggestions in the reports of both Dr Assaad and Dr Morris that referral to a Brain Injury Rehabilitation Service might be beneficial,[14] but neither proceeded to make such a referral and Mr Havet certainly did not attend such a service.[10] T Documents 97-107.[11] Ibid 109.[12] Ibid 170-171. [13] Ibid 118.[14] Ibid 121, 118 (respectively). The Secretary proposes, in the alternative, that should the Tribunal find that the brain condition was fully diagnosed, treated and stabilised, and thus proceed to an assessment of an impairment rating, it should prefer the opinion of the DMA and Clinical Associate Professor Heard (as Mr Havet’s specialist) over that of the JCA.