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

[2015] AATA 599

Henderson and Secretary, Department of Social Services (Social services second review) [2015] AATA 599 (17 August 2015)

Division	General Division
File Number	2014/6542
Re	Kimberley Henderson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	17 August 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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

Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Less than 20 points under the Impairment Tables – Decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr M Denovan, Member

17 August 2015

1. Mr Kimberley Henderson, the applicant, is 57 years old, and currently in receipt of newstart allowance. His claim for disability support pension (“DSP”), lodged on 8 July 2014, was rejected. He believes the decision to reject his claim was incorrect and he has applied to this Tribunal to have that decision reviewed. Mr Henderson was employed as a public servant until September 2008. He was in receipt of Austudy from 2011 to September 2013. In his initial claim form, he stated he had impairment, due to “Depression, cancer, Bulging disc, anxiety, skin inflammation, tittanus, aches and pain [Austism (per psychiatry)” (sic).[1]

   [1] Exhibit 1, T documents p 108.

2. A Job Capacity Assessor prepared a report in relation to Mr Henderson on 15 August 2014. That report concluded Mr Henderson has Depression and autism, that both these conditions were fully diagnosed, treated and stabilised, and a combined impairment rating of 20 points was assigned. The assessor determined that Mr Henderson did not qualify for DSP because he had not met the Program of Support (POS) requirements and because he has a baseline work capacity of 15-22 hours per week.[2]

   [2] Exhibit 1, T documents p 165.

3. Mr Henderson requested a review of this decision and on 15 September 2014 an Authorised Review Officer (ARO) reviewed and affirmed the decision to reject Mr Henderson’s claim for DSP. The SSAT reviewed and affirmed the decision on 19 November 2014. The SSAT reduced Mr Henderson’s combined impairment rating from 20 to 10 points.

4. Both parties have agreed this matter is to be determined on the papers. Mr Henderson has provided a detailed written submission,[3] in which he has set out the reasons why he believes the decision under review is wrong.

   EXHIBITS

   Exhibit 1 – T Documents

   Exhibit 2   Secretary’s statement of facts and contentions dated 3 March 2015

   [3] Exhibit 1, T documents p 160.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

5. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. Insofar as it is relevant for present purposes, s 94 of the Act (as it appeared at the relevant date) provides that the applicant must:

   ·have a physical, intellectual or psychiatric impairment;

   ·have an impairment of 20 points or more under the Impairment Tables;[4] and

   ·have a continuing inability to work.

   [4] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.

6. A person has a continuing inability to work under s 94 of the Act if:

   ·     They have an inability to work, due to their accepted impairments, for 15 hours or more per week, and

   ·     they have a severe impairment of 20 points or more under a single Table, or they have actively participated in a program of support.

7. Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the Relevant Period”). The Relevant Period in which Mr Henderson must satisfy all the criteria to qualify for DSP was from 8 July 2014 to 7 October 2014.

8. Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”),[5] it is necessary to determine whether Mr Henderson’s conditions can be regarded as being permanent and whether the impairment resulting from the conditions is likely to persist for more than two years.[6] A condition will be considered permanent where it has been fully diagnosed, treated and stabilised.[7]

   [5] Which was made by the Minister pursuant to s 26(1) of the Act.

   [6] s 6(3) of the Determination.

   [7] Ibid s 6(4).

9. The issues I must determine are:

   a)    which of Mr Henderson’s medical conditions, if any, can be assigned an impairment rating;

   b)    whether a rating of 20 impairment points or more can be assigned; and

   c)    whether Mr Henderson has a continuing inability to work.

   CONSIDERATION

10. On 8 July 2014, general practitioner, Dr Capulong completed a medical report, in which he confirmed the applicant had the following conditions:

    a)Austistic spectrum disorder and depression-major;[8] and

    b)Lumbar-sacral spondylosis and facetal arthropathy/spinal stenosis.[9]

    [8] Exhibit 1, T documents p 138.

    [9] Exhibit 1, T documents p 141.

11. On 4 August 2014, psychiatrist Dr Jenkins provided a medical report confirming Mr Henderson has been diagnosed with major depression with anxiety, and autistic spectrum disorder.[10]

    [10] Exhibit 1, T documents p 146.

12. There are no medical reports before me that support Mr Henderson’s claim that he suffers impairment due to “tittanus” (most likely tinnitus), or “skin inflammation”. According to Dr Capulong, Mr Henderson has been treated for prostate cancer, and that condition causes no or minimal impact on his current ability to function.[11] It therefore cannot be allocated a rating from the Impairment Tables.

    [11] Exhibit 1, T documents p 144.

13. On the basis of the medical reports before me, I accept Mr Henderson has Autistic spectrum disorder, depression and anxiety, lumbar-sacral spondylosis and facetal arthropathy/spinal stenosis.

    Which of Mr Henderson’s medical conditions, if any, can be assigned an impairment rating?

    Spinal condition (Lumbar – sacral spondylosis and facetal arthropathy/spinal stenosis)

14. The JCA determined that this condition could not be rated because there had not been a specialist consultation and the applicant had not engaged in any secondary interventions such as pain management or physiotherapy. In the decision of the SSAT, it is noted that Mr Henderson does not contest this finding.[12]

    [12] Exhibit 1, T documents p 24.

15. In his medical report, Dr Capulong advised that as a result of this condition, Mr Henderson has reduced endurance, difficulty with prolonged walking and sitting, and difficulties bending and lifting.[13]

    [13] Exhibit 1, T documents p 143.

16. I find that there is insufficient medical evidence before the Tribunal that would allow me to be reasonably satisfied that this condition has been fully diagnosed, treated and stabilised. Until a condition is fully diagnosed, treated and stabilised, no rating can be allocated from the Impairment Tables.

    Autistic spectrum disorder

17. In his medical report dated 4 August 2014, psychiatrist Dr Jenkins indicated Mr Henderson’s condition of autistic spectrum disorder has been fully diagnosed, and will likely persist for more than 24 months and Mr Henderson’s capacity to function as a result of this condition will remain unchanged. Dr Jenkins’s states this condition is fully treated, and fully stabilised.[14]

    [14] Exhibit 1, T documents p 154.

18. Dr Jenkins stated that as a result of this condition, Mr Henderson has “difficulty with people, impaired information processing, difficulty with change, and problems with working with others.”[15]

    [15] Ibid.

19. Mr Henderson provided further information as to the manner in which he is impaired by this condition in the information he sent to this Tribunal.

20. Impairment to brain function is assessed under Table 7. When allocating a rating, it is not permissible to rely on self-reporting alone. There must be corroborating evidence of the person’s impairment, such a treating doctor’s report. There is no corroborating evidence that Mr Henderson needs occasional assistance with day-to-day activities. The maximum rating he can be allocated from Table 7 is 5 points.

    Depression and anxiety

21. Table 5 of the Determination is used to assess impairment due to conditions that affect a person’s mental health. The introduction to that Table lists the requirements necessary to allocate a rating. One of those requirements is that either a psychiatrist, or a medical practitioner with evidence from a clinical psychologist, must make a diagnosis of a mental health condition.

22. In his report Dr Jenkins provided a diagnosis of depression and anxiety, and stated this is a chronic condition that is expected to persist for more than 24 months, and the effect of the condition on Mr Henderson’s capacity to function within the next 2 years is expected to remain unchanged.

23. Dr Jenkins noted Mr Henderson suffered from impaired concentration, difficulty completing tasks and difficulty multitasking, as a result of his depression and anxiety. Mr Henderson has provided lengthy submissions in which he articulates the impact of this condition on his capacity to function. According to Mr Henderson, the condition severely affects him, and he believes he should be allocated 20 impairment points from Table 5.

24. On the basis of the evidence of Dr Jenkins, I consider the maximum points Mr Henderson can be allocated from Table 5 is 10. To be allocated 20 points, a person must have severe difficulties with most of the tasks listed in the table. Significant is the example given in relation to concentration and task completion in that Table, which reads:

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

25. I note Mr Henderson interacted with the SSAT during his hearing, and after reading the decision I conclude that hearing was for considerably more than 10 minutes. Of greater significance are the lengthy and multiple submissions Mr Henderson has prepared and sent to this Tribunal, the SSAT and to Centrelink. Many of these submissions are detailed, very articulate, and well written. This suggests that Mr Henderson may have the capacity to concentrate on a task for a considerable period, and also may have the capacity to work, at least on a part time basis.

26. Mr Henderson has a total of 15 impairment points. He does not have 20 or more points under a single table. He has not participated in a program of support for the required time. He therefore does not satisfy either s 94 (1)(b) or 94(1)(c) of the Act.

    DECISION

27. Mr Henderson does not satisfy s 94(1)(b) or 94(1)(c) of the Act and therefore does not qualify for DSP during the relevant period. The Tribunal affirms the decision under review.

I certify that the preceding 27 (twenty seven) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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

Associate

Dated 17 August 2015

Date of hearing	Hearing on the papers
Applicant	In person
Advocate for the Respondent	Mr R McQuinlan, Department of Human Services