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

Hicks and Secretary, Department of Social Services (Social services second review) [2019] AATA 744 (18 April 2019)
Division:GENERAL DIVISION
File Number: 2016/5990
Re:Jake Hicks
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak QC, Presiding Member
Dr A. Reddy, Member

Date:18 April 2019
Place:Melbourne

The Tribunal affirms the decision under review
.....................[sgd]..............................................
Mr A. Maryniak QC, Presiding Member
Catchwords
SOCIAL SECURITY – Disability Support Pension – Where the Applicant’s Disability Support Pension was cancelled – Whether the Applicant was qualified to receive Disability Support Pension as at date of cancellation – Whether conditions are fully diagnosed, treated and stabilised – Whether the Applicant can be assigned 20 points under the Impairment Tables – Decision affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999
(Cth)


Cases
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Freeman v Secretary, Department of Social Services [1988] FCA 294
Harrison and Secretary, Department of Social Services [2017] AATA 458
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr A. Maryniak QC, Presiding Member
Dr A. Reddy, Member
18 April 2019

The Applicant has sought review of the decision made by the former Social Services and Child Support Division of this Tribunal (“AAT1”) on 11 August 2016, which affirmed a decision made by the Department of Human Services to cancel his Disability Support Pension (DSP) on 10 February 2016 (“the cancellation date”).
This Tribunal is to determine whether the Applicant was qualified to receive the DSP on the cancellation date.
The Applicant gave evidence during the hearing and was cross-examined. Documentary evidence relevant to the matter was also tendered by the Respondent.
Background Facts
The Respondent provided the following background which was not challenged by the Applicant.
The Applicant was born in July 1992.
On 27 July 2008 the Applicant was granted DSP.
On 20 February 2015 the Department issued a notice under section 63 of the Social Security (Administration) Act 1999 to the Applicant.
On 3 August 2015 the Department received a response to the notice from the Applicant and his treating GP, Dr Chitson. The Applicant listed his medical conditions as Ehlers-Danlos Syndrome ('EDS') and anaphylaxis and noted:
·his current treatment as pain killers and EpiPen.
·he was not currently employed.
·he had not completed a program of support in the past six months.
·he had not started a program of support.
On 23 December 2015 a Job Capacity Assessment ('JCA') reported that the Applicant's condition of a musculo-skeletal disorder was fully diagnosed, treated, and stabilised and attracted 5 points under Table 3 (lower limb function) and 0 points under Table 2 (upper limb) of the Impairment Tables. Enuresis, and immune-deficiency were also considered fully diagnosed, treated and stabilised but attracted 0 points under Table 13 (continence function) and Table 15 (immunodeficiency) respectively. ADHD and drug induced psychosis were not found to be permanent due to insufficient evidence.
The JCA assessed that the Applicant had the capacity for work of 15-22 hours per week with intervention.
On 10 February 2016 the Department cancelled the Applicant's DSP ('original decision') as he was assessed as having an impairment rating of less than 20 points.
On 10 February 2016 the Applicant sought review of the original decision.
On 8 April 2016 a JCA reported that the Applicant's condition of a musculo-skeletal disorder was fully diagnosed, treated, and stabilised and attracted 5 points under Table 3 (lower limb function) and 0 points under Table 2 (upper limb) of the Impairment Tables. Enuresis, and immune-deficiency were also considered fully diagnosed, treated and stabilised but attracted 0 points under Table 13 (continence function) and Table 15 (immunodeficiency) respectively. ADHD and drug induced psychosis were not found to be permanent due to insufficient evidence. The JCA assessed that the Applicant had the capacity for work with intervention within 2 years of 15-22 hours.
On 14 April 2016 an Authorised Review Officer ('ARO') affirmed the original decision.
On 25 May 2016 the Applicant sought review of the ARO decision at the AAT1.
On 11 August 2016 the AAT1 affirmed the ARO decision. The AAT1 determined that the Applicant's EDS was fully diagnosed, treated, and stabilised and attracted 5 points under Table 2 (upper limb), 10 points under Table 3 (lower limb) and 0 points under Table 4 (spinal function) of the Impairment Tables.
On 7 November 2016 the Applicant sought review of the decision of the AAT1.
The Tribunal is to consider whether a person qualified for DSP on the date of cancellation. Any subsequent change to conditions or later entitlement must be the subject of a further claim (see Freeman v Secretary, Department of Social Services [1988] FCA 294 and Harrison and Secretary, Department of Social Services [2017] AATA 458). As outlined above, the relevant date in this matter is 10 February 2016.
The Impairment Tables used to assess qualification
Subsections 27(3) and 27(4) of the Act provide that the Impairment Tables in force on the date a notice pursuant to subsection 63(2) of the Social Security (Administration) Act 1999 (“the Administration Act”) is issued to review a person's qualification for DSP are to be used in the assessment.
As the Department issued the Applicant a notice pursuant to section 63(2) of the Administration Act on 20 February 2015 in relation to assessing the Applicant's qualification for DSP, the current Impairment Tables (in force on 1 January 2012) apply.
Qualification for disability support pension
Section 94 of the Act details the qualification criteria for DSP and states in so far as relevant to this application:
“94(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.”
Each of these qualification criteria are addressed below.
Paragraph 94(1)(a) of the Act/Physical, Intellectual or psychiatric impairment
The Respondent accepts that Applicant satisfies paragraph 94(1)(a) of the Act.
Paragraph 94(1)(b) of the Act/Impairment rating of 20 points or more
The Impairment Tables contain provisions for the assessment of a person's impairment for the purposes of paragraph 94(1)(b) of the Act.
Paragraph 6(3) of the Impairment Tables provides that an impairment rating can only be assigned to an impairment if the person's condition causing the impairment is permanent, and the impairment is more likely than not, in light of available evidence, to persist for more than two years.
Paragraph 6(4) of the Impairment Tables provides that a condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and stabilised and is likely to persist for more than 2 years.
Paragraph 6(5) of the Impairment Tables provides that in deciding whether a condition has been fully diagnosed and treated, a decision maker must consider:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or planned in the next 2 years.
Paragraph 6(6) of the Impairment Tables provides that a condition is fully stabilised if the person:
(a)has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement; or
(b)has not undertaken reasonable treatment but such treatment is either not expected to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years, or there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment is defined in paragraph 6(7) of the Impairment Tables as treatment that:
(a)Is available and accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)Is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Paragraph 8(1) of the Impairment Tables provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Paragraph 10 of the Impairment Tables provides that the Impairment Table specific to the condition must always be applied to that impairment unless instructions in the Table specify otherwise.
Paragraph 11(2) of the Impairment Tables provides that when deciding between whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person the relative descriptors should be compared to determine which impairment rating is to be applied.
Paragraph 11(4) of the Impairment Tables notes that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall function of those impairments, taking into account the severity and duration.
Paragraph 11(5) of the Impairment Tables provides that, to avoid doubt, where a person's diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.
The Federal Court and this Tribunal have set out the following principles:
“The Tribunal has found that although policy is not binding it will ordinarily be followed unless there is a cogent reason not to do so (see Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The word 'temporary' is used by the Department in this context as a shorthand way of describing a condition which is not, at the time, capable of being regarded as being permanent based on fully documented and diagnosed conditions which had been investigated, treated and stabilised (Re Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938).”
The Guidelines to the Impairment Tables provide that:
“Where the descriptor refers to ‘most of the following’, most is taken to be more than half.
The descriptors in each Impairment Table are interlinked in that they follow a consistent, incremental hierarchy and all descriptors should be read and compared before a decision is made to apply an appropriate Impairment Rating.
Chronic pain has been fully diagnosed, fully treated and fully stabilised any resulting impairment should be assessed using the relevant Impairment Table to the function that is affected.”
EDS – Ehlers Danlos Syndrome
The Respondent had accepted in its opening submissions that the Applicant's condition of EDS was fully diagnosed, treated, and stabilised at the date of cancellation. The Respondent contends that this condition would attract 5 points under Table 2 (upper limb function), 0 points under Table 3 (lower limb function) and 0 points (spinal function) of the Impairment Tables. However, upon close of evidence at the hearing the Respondent submitted that the condition, while fully diagnosed, was not fully treated or stabilised.
In closing, the Respondent contended that the Applicant’s condition was fully diagnosed but it was not fully treated or fully stabilised at the date of cancellation.
The Tribunal considered the following information provided in the medical evidence before it:
(a)In a letter dated 17 June 2005, Dr A Baldam (general practitioner) states that the Applicant (aged 12 years) was seeing an orthopaedic surgeon for a “likely congenital abnormality causing muscle and ligament laxity” which was causing a knee and foot disorder requiring strapping tapes and orthotics. Dr Baldam recommended the Applicant attend a disability swimming program.
(b)On 6 July 2006, Dr A Naiss (general practitioner) provided an Enhanced Primary Care (EPC) program referral form for the Applicant to attend Mr T Pritchard (physiotherapist).
(c)In a letter dated 27 July 2006, Dr Naiss wrote a letter seeking an opinion, management and genetic counselling for the Applicant’s medical condition which included hyper flexibility of joints and ligaments and recurrent dislocation of patella joints and ankles as well as flat fee. She noted that other joints were affected as well including the neck, spine, shoulders and hands. There was evidence of skin hyper elasticity. Dr Naiss wondered if this was a genetic condition and possibly a new mutation.
(d)In additional letters dated 27 July 2006, Dr Naiss requested Zimmer splints, ankle braces and thoracic braces for the Applicant and requested physiotherapy and occupational therapy services as well as assessment at the musculoskeletal and orthopaedic clinic at the Royal Children’s Hospital and for an opinion and management of Mr Hicks’ EDS.
(e)In a letter dated 1 September 2006, Mr T Pritchard, (physiotherapist) states that the Applicant has EDS causing increased joint laxity and instability for which he had been treating him with strengthening exercises. Mr Pritchard noted that the Applicant would need ongoing rehabilitative treatment for acute episodes of spinal or peripheral joint pain and instability. He might also need other braces, a gym or swimming program or some home strengthening equipment.
(f)In letters dated 30 October 2006 and 13 November 2006, Mr S Hall (exercise physiologist) states that the Applicant has been following a “progressive resistance exercise program” to increase his joint stability in his shoulder, knee and ankles. Mr Hall suggested cycling, rowing, supervised gentle resistance training and possibly a regular Body Pump class once a week to help develop the Applicant’s fitness.
(g)In a letter dated 19 February 2007, Mr M O’Sullivan (orthopaedic surgeon) considers a possible diagnosis of EDS and refers the Applicant to a bone dysplasia clinic for further assessment.
(h)In a form dated 25 January 2007, Dr Baldam requests aids and equipment for the Applicant’s condition of EDS.
(i)An appointment appears to have been made for the Applicant to be seen at the Royal Children’s hospital Genetics clinic on 1 May 2007.
(j)In a letter dated 8 July 2008, Dr C Fiedler (paediatrician) states that he had seen the Applicant once in late October 2007. Dr Fiedler was of the opinion that the Applicant’s main problem was EDS. The Applicant was experiencing recurrent knee dislocations because he was not compliant with wearing his knee braces. “He seems to be getting some physiotherapy support by the physio department of the hospital”. Dr Fiedler was of the opinion that the Applicant needed an orthopaedic or a sports medicine opinion concerning his muscular skeletal complaints; bracing and splinting was also necessary.
(k)In two medical reports dated 8 July 2008, Dr Baldam states that the Applicant has been diagnosed with EDS causing joint laxity and dislocations as well as pain on movement limiting mobility to 400 metres and causing difficulty standing in or accessing and exiting a bus or a train and negotiating steps. He needed a wheel chair and crutches for mobility most of the time and the effect of this condition on the Applicant’s ability to function was expected to deteriorate within the following two years.
(l)Clinical notes and results of investigations obtained by a Delegate of the Chief Executive Officer Centrelink from Warnambool Medical Clinic for the period 19 February 2013 to 19 February 2018 reveals that the Applicant attended in May 2013 for back pain. Results of a CT scan done in July 2013 found there was a mild diffuse disc bulge at L5 to S1 with degenerative changes noted in the lumbosacral region most markedly at L5 to S1. He was prescribed Tramadol at this time.
(m)In a medical report dated 3 August 2015, Dr Chitson (general practitioner who had seen the Applicant for the first time on that date) states that the Applicant has EDS; which was confirmed in 2005 by Mr N Sundaram (orthopaedic surgeon). The Applicant had “loose ligaments, clicking bones, aching bones, prone to dislocations and fractures”. He was being treated with “pain management and exercises” and future planned management was to include analgesia, physiotherapy and other exercises. Dr Chitson was of the opinion that this condition would impact on Mr Hicks’ ability to function in terms of mobility and heavy duties; particularly movement and dexterity and the effect on his ability to function was expected to fluctuate within the following two years.
(n)In a medical certificate dated 26 February 2016, Dr I Sutherland (general practitioner) stated that the Applicant has been diagnosed with EDS causing lethargy, hypermobility, chronic pain, and mobility issues for which he is to be treated with “supportive and symptomatic”therapy. The doctor lists this as a permanent condition with an uncertain prognosis.
(o)A pharmaceutical benefits schedule (PBS) patient summary, as well as a Medicare patient history report for the Applicant which covers the period between 6 February 2013 and 6 February 2018, lists analgesic and anti-inflammatory medications like Tramadol, paracetamol, oxycodone and Diclofenac were prescribed during that time, but these appear to have been provided sporadically and follow up by the treating doctor’s appears to have been infrequent with lengthy gaps in between the Applicant’s attendances for medical reviews and treatment.
(p)In a brief letter dated 24 January 2017, Mr A Sutherland (orthopaedic surgeon at Southwest Orthopaedics) states that the Applicant had been diagnosed with left elbow dislocation which could be mobilised under the guidance of a physiotherapist. The Applicant was then discharged from the clinic.
(q)In a letter dated 7 February 2017, Dr A Gault (general practitioner) states that he had seen the Applicant for the first time on 5 January 2017. Dr Gault states that the notes he had available from previous treating doctors that could assist him in making a retrospective assessment of the Applicant’s health are insufficient. Dr Gault then goes on to say that it is his understanding that the Applicant has been on disability support pension since the age of 16 on the basis of EDS and ADHD. However, despite having written documentation by previous clinicians regarding the Applicant’s medical conditions, Dr Gault felt that the “the opinion of an Occupational Physician and some objective testing would be extremely valuable in making a more rational assessment of his capabilities…”
During the hearing the Applicant told the Tribunal that the symptoms of the condition being considered in this section have troubled him since childhood. He needs to be cautious all the time because he could easily dislocate a joint or injure himself and the specialists can’t do anything to help him; he has learned to manage the symptoms on his own. However, when he was questioned about this in more detail the Applicant acknowledged that he has been aware that the symptoms of this condition have been worsening during the last two years. He is more limited in his mobility because of the pain and the increasing laxity in his joints and this causes more frequent painful dislocations. He is in more pain and has been using street grade and poor quality marijuana to manage the pain when he does not have access to prescribed analgesic medications. Prescribed analgesic medications help because they take the “edge off the pain” he constantly experiences. The Applicant stated he sometimes lives at home with his partner and their young children and sometimes he is homeless and sleeps on the streets. His unsettled lifestyle further exaggerates the pain and joint instability and he struggles to cope. Recently the general practitioner he has been consulting has discussed further investigations, specialist consultations and a general overview of the possible treatment strategies that could be employed to better support him manage this condition; the Applicant acknowledged that an established treatment plan would be helpful.

Having considered all the medical evidence before it and taking into account the Applicant’s oral evidence at the hearing the Tribunal has decided that the medical evidence supports the finding that the Applicant was diagnosed with EDS by paediatricians and other specialists when he was a child. The Applicant experiences spinal and peripheral joint muscle pain, ligament laxity and recurrent dislocation of joints in his upper and lower limbs requiring splints, braces and mobility aids like a wheel chair and crutches. He has been prescribed analgesic and anti-inflammatory medications for the pain, but it appears that he did not take these on a regular basis. He attended physiotherapy and occupational therapy services for strengthening exercises, but his attendance at these has also been inconsistent. The Tribunal cannot be satisfied that this condition was fully treated and fully stabilised at the date upon the evidence before it.
Allergies and Immune Deficiency Disorder
The Respondent conceded that the Applicant’s allergy condition was fully diagnosed, treated and stabilised at the date of cancellation of his disability support pension.
The Tribunal noted the following in the documentary evidence:
(a)In a letter dated 31 December 2002, Dr B Ogilvie (general practitioner) states that the Applicant’s mother had reported that her son was having a reaction to bee stings and noted that he ought to be given 10mg Phenergan immediately and transferred to hospital after this for assessment.
(b)In a letter dated 11 February 2003, Dr K Rainsford (general practitioner) provided a letter of referral for the Applicant’s worsening bee allergy. The doctor noted that the Applicant had not as yet had any true anaphylactic reaction to a bee sting.
(c)In a letter dated 15 January 2006, Dr A Naiss suggests that the Applicant needed to be reassessed for worsening reactions to bee stings and provision of an Epipen.
(d)In another letter dated 20 January 2006, Dr Naiss states that the Applicant has been suffering from “urticaria and allergic dermatitis” which occurred after “swimming in outdoor swimming pool which contains 150-cyanuric acid which seems to be the most likely cause of his most recent urticaria”.
(e)Dr Baldam requested an EpiPen for the Applicant in a form setting out an action plan for anaphylaxis dated 25 January 2007.
(f)In a letter date stamped 10 March 2007, Dr D Cutting (paediatrician) and Dr D Bannister (paediatric allergist) state that the Applicant was seen at the Royal Children’s Hospital Department of Allergy and Immunology on 14 February 2007. He was noted to have increasingly severe local reactions to bee stings for which he was given Phenergan on the last few occasions when the ambulance was called. The specialists were of the opinion that the breathing problems he was experiencing when stung were more likely to be as a result of a panic reaction. The skin prick testing reactions were localised and not very clear but an anaphylaxis management plan and an EpiPen were organised nevertheless.
(g)In a medical report dated 3 August 2015, Dr Chitson lists anaphylaxis to bee stings as being one of the conditions affecting the Applicant. This is included in the section of the report seeking information about any other medical conditions affecting the Applicant that are generally well managed and that cause minimal or limited impact on his ability to function.
The Applicant told the Tribunal that he has not been stung by bees for several years. He hasn’t carried an EpiPen with him since 2008; the first one that he was given had to be discarded because it was out of date. He has learned to quietly avoid areas where bees are swarming and tries not to panic because he knows that he could be stung by bees disturbed by his anxious reaction to their presence. He has also learned to be cautious about swimming in certain pools and always checks with the pool manager to make sure that the chemicals he is allergic to are not being used in the pool before entering.
The Tribunal is satisfied these conditions do not currently impact on the Applicant’s daily functioning and concluded they did not warrant any points under the Impairment Tables.
Nocturnal Enuresis
The Respondent conceded that this condition was fully diagnosed, but maintained that it was not fully treated and stabilised at the time of cancellation.
The Tribunal noted the following in the documents before it:
(a)In a letter dated 15 January 2006, Dr Naiss provides a list of medications currently being prescribed for the Applicant and these include Minirin nasal spray (used to treat primary nocturnal enuresis) to be used at night.
(b)In a medical report dated 3 August 2015, Dr Chitson records nocturnal enuresis on five out of seven days as being the second condition affecting the Applicant. His current treatment included continence pads at night, pelvic exercises and an “incontinence program”.
The Applicant told the Tribunal that he no longer uses pads at night, but he does wet his bed at least two or three times a month. He had been linked into a program that provided support for people with longstanding nocturnal enuresis, but has not been in touch with the unit for several years and he hasn’t consulted a renal specialist about this condition recently either.
Based on insufficient corroborating medical evidence before it, the Tribunal has decided it is unable to determine whether the condition was fully treated and stabilised at the time of cancellation of the Applicant’s pension. Consequently, the Tribunal is unable to assign an Impairment Rating to this condition.
ADHD, mental health conditions and substance abuse disorder
The Respondent’s view is that there is limited information with regard to the Applicant’s condition of attention deficit hyperactivity disorder (ADHD) and based on the lack of evidence it is not possible to consider whether this condition could be considered fully diagnosed, treated or stabilised at the date of cancellation; or if it attracts an impairment rating under the Impairment Tables. Further, the Secretary contends that the Applicant’s mental health conditions could not be rated under the Impairment Tables as there is no evidence that these have been diagnosed by a psychiatrist or a clinical psychologist as required by the Introduction to Table 5 – Mental Health Function. The Applicant’s condition of substance abuse is unable to be rated under the Impairment Tables as it is listed as a temporary condition by Dr Sutherland in February 2016 with a date of onset commencing after the date of cancellation. Past psychosis has been mentioned in the medical evidence but there is no indication that this condition was current at the date of cancellation.
The Tribunal considered the following medical evidence:
(a)The Tribunal noted that on 3 June 1995, Dr N Thies (paediatrician) provided a letter certifying that he thought the Applicant, who was three years of age at the time, suffered from ADHD even though he was relatively young to have this diagnosis made regarding his presentation. Dr Thies decided to trial the Applicant on some unspecified medication.
(b)In a further heavily redacted letter dated 22 July 1998, Dr Thies confirms the diagnosis of ADHD for which the Applicant was being treated with Ritalin.
(c)In another heavily redacted letter dated 2 August 2001, Dr A Waldron (general practitioner) refers to the Applicant being prescribed Ritalin for management of ADHD.
(d)In a letter dated 17 June 2005, Dr Baldam certifies that the Applicant suffers from ADHD.
(e)In letters dated 15 January 2006 and 27 July 2006, Dr Naiss provides a list of medications currently being prescribed for the Applicant (now a 12 year old) and there is no mention of Ritalin being prescribed at this time.
(f)In a medical report dated 8 July 2008, Dr Baldam states that the Applicant has ADHD but does not provide any other details other than to state that “behaviour can be a problem”.
(g)Clinical notes and results of investigations from Warnambool Medical Clinic for the period 19 February 2013 to 19 February 2018 state that during a clinic attendance on 22 July 2013, the Applicant was encouraged to continue taking olanzapine which he had discontinued. In September 2014 the clinic was contacted by Mr Ragg (general surgeon and endoscopy) because the Applicant had become agitated while waiting to go into theatre for a minor surgical procedure. The clinic notes record instances of the Applicant becoming agitated and aggressive on another occasion in 2014 and again in July 2015. The Applicant did not attend this clinic again after 23 July 2015.
(h)In a medical report dated 3 August 2015, Dr Chitson lists ADHD and previous psychosis (drug induced) as being other conditions affecting the Applicant. These are included in the section of the report seeking information about any other medical conditions affecting the Applicant that are generally well managed and that cause minimal or limited impact on the Applicant’s ability to function. In a medical certificate dated 26 February 2016, Dr Sutherland lists past substance abuse as causing a drug induced psychosis and marihuana dependence for which the Applicant has attended a detoxification program and counselling in the past. The doctor was of the opinion that this was a temporary condition with an uncertain prognosis.
(i)A pharmaceutical benefits schedule (PBS) patient summary for the Applicant which covers the period between 6 February 2013 and 6 February 2018 lists quetiapine which was prescribed in January 2016 and again in March 2017.
(j)In a letter dated 7 February 2017, Dr Gault states that the Applicant’s mental health problems are also likely “to have a considerable impact on his work capacity and again I believe an assessment by an appropriately trained Psychiatrist with the focus being on his capacity to work rather than treatment per se is necessary before a final decision can be made in regard to his ongoing eligibility for the DSP”.
The Applicant told the Tribunal that he has been managing all his psychological and drug dependency difficulties by himself for several years. He admitted he had not consistently sought treatment for any of these issues though he did attend a rehabilitation facility and stopped using drugs of dependency for a while. He has not been reviewed for ADHD since he turned 16 and he has not been taking any medication for this. He has also been seen by psychologists and psychiatrists for assessment and various treatments including antipsychotic medications like quetiapine have been recommended for his mental health issues, however, he hasn’t always been compliant with recommended treatment. He started smoking marijuana again when he had relationship difficulties and when he experienced worsening generalised pain, particularly in his back. The combination of his itinerant lifestyle and worsening health has caused him to have suicidal ideation and he decided he needed to make a more specific effort to consult a specialist.
Based on the insufficient corroborating medical evidence before it the Tribunal formed the view that the conditions ADHD, mental health conditions and substance abuse disorder could not be considered to be fully diagnosed, fully treated or stabilised at the time of cancellation of the Applicant’s disability support pension payments.
Conclusion
In the circumstances, the Tribunal finds that the Applicant does not have an impairment rating of 20 points or more as at the cancellation date and does not qualify for the DSP. Hence, there is no need to consider whether or not the Applicant has a continuing inability to work.
The correct and preferable decision is that the AAT’s decision of 11 August 2016 be affirmed.
In the event that he is advised to do so, the Applicant may wish to make a ‘fresh’ application for the DSP, if the current medical evidence available to him supports such an application.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member and Dr A. Reddy, Member

.......................[sgd]...........................................
Associate
Dated: 18 April 2019

Date(s) of hearing: 20 November 2018

Applicant: In person

Advocate for the Respondent: Mr N. Nguyen

Solicitors for the Respondent: Sparke Helmore

[2019] AATA 744

18 April 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	20 November 2018
Applicant:	In person
Advocate for the Respondent:	Mr N. Nguyen
Solicitors for the Respondent:	Sparke Helmore