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

[2016] AATA 291

Hicks; Secretary, Department of Social Services and (Social services second review) [2016] AATA 291 (1 April 2016)

Division	GENERAL DIVISION
File Number	2014/6678
Re	Secretary, Department of Social Services
APPLICANT
And	Casey Hicks
RESPONDENT

DECISION

Tribunal	Senior Member N A Manetta
Date	1 April 2016
Date of written reasons	5 May 2016
Place	Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision of the Social Security Appeals Tribunal and substitutes a decision that the determination of the Authorised Review Officer be affirmed.

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Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances - disability support pension - whether impairments arising from condition eligible to be considered - whether condition fully diagnosed and fully treated and fully stabilised – no history of applicant having regular consultations with medical specialists – condition not fully diagnosed and fully treated nor was condition fully stabilised – condition ineligible to be considered – decision set aside

LEGISLATION

Social Security Act 1991, ss 26(3), 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member N A Manetta

5 May 2016

1. After delivery of my oral decision and reasons, a request was made for written reasons, which I now publish.

2. This is an application by the Secretary of the Department of Social Services seeking a review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 28 November 2014.  In its decision, the SSAT reversed earlier a decision taken in the applicant’s Department and affirmed by an Authorised Review Officer (“ARO”) to refuse to Mr Casey Hicks, the respondent in these proceedings, a disability support pension (“DSP”) in respect of his application dated 5 September 2013.  Mr Visser appeared for the applicant; Mr Shepley appeared for the respondent.

3. Before me, it was common ground between the parties that Mr Hicks was required to participate in a program of support in order to qualify for the DSP unless the impairments arising from his eligible conditions attracted 20 points under a single Impairment Table.

4. It was also common ground that Mr Hicks could only receive 20 points under a single Impairment Table if his depression is eligible to be considered.  If his depression is not eligible to be considered, he would not receive 20 points from a single Impairment Table in respect of any of his other conditions.

5. The parties agree that Mr Hicks has not participated in a program of support.  It follows that a critical threshold question for me to consider is whether Mr Hicks’ depression is an eligible condition which I am entitled to consider in connection with his application for a DSP. 

6. In my opinion it is not.  It follows from this conclusion that Mr Hicks is ineligible to receive a DSP and I should reverse the decision of the SSAT.

   BACKGROUND FACTS

7. I now set out the background facts and then my reasons for my conclusion.  Mr Hicks, who was born in 1981, was injured at work in 2001 when he suffered a crush injury to his left foot.  Unfortunately, in 2004, he was involved in a hit-and-run car accident and suffered further injuries to his left leg.  Mr Hicks made a compensation claim in due course and was eventually compensated for these injuries.

8. As I have noted, Mr Hicks made a claim for DSP on 5 September 2013.  It is agreed between the parties that Mr Hicks’ injuries to his foot and leg have left him with a residual impairment warranting 10 points under the relevant Impairment Table.  I accept that agreement for the purposes of deciding the application before me today.

9. Mr Shepley submitted that Mr Hicks has developed a serious depressive disorder as a result of the physical injuries to which I have earlier referred.  I accept that Mr Hicks does have serious mental health concerns.  On the evidence before me, he has not worked since 2001, when he was 20 years of age.  The evidence given to the Tribunal by both his father and a family friend paints a rather concerning picture of an intermittently withdrawn, distracted, and occasionally angry, younger person living somewhat aimlessly.  Apparently, there have been occasions of inappropriate drug use.

   LEGISLATIVE FRAMEWORK

10. Nevertheless, it is quite clear that any impairments arising from the depressive disorder may only be counted under the Impairment Tables if the disorder is “fully diagnosed and fully treated” and is “fully stabilised”. These specific requirements, authorised to be imposed by s 26(3) of the Social Security Act 1991 (“the Act”), appear in clause 6 of the relevant Determination.[1]

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

11. I shall not read out the requirements but refer to them generally.  A condition must be “fully diagnosed and fully treated”.  I am required to consider in this connection whether there is corroborating evidence of the condition, whether treatment or rehabilitation has occurred, and whether treatment is continuing or is planned in the next two years.  I am not satisfied that Mr Hicks’ mental health issues, which may be classified generally as a major depressive disorder[2], have been fully diagnosed and fully treated.

    MEDICAL EVIDENCE

    [2]     Including a posttraumatic stress disorder.

    Dr Marty Ewer

12. The evidence before me indicates that Mr Hicks attended Dr Marty Ewer’s surgery in 2009.  Dr Ewer was engaged to provide a report in connection with Mr Hicks’ claim for compensation.  Dr Ewer’s report dated 5 August 2009[3] was, as the report itself acknowledges, a single assessment of Mr Hicks’ condition for legal purposes.  Dr Ewer was not engaged as Mr Hicks’ treating psychiatrist.

    [3]     Exhibit A1, T51.

13. The report refers to an earlier report by Dr Ewer dating back to 2005.  This latter report notes a major depressive disorder.  If Mr Hicks’ information, as supplied to Dr Ewer in 2009, is accurate, Mr Hicks did not see a psychiatrist between 2005 and 2009.  At paragraphs 22.2 and following of the 2009 report, Dr Ewer draws the following conclusions:

    ·Mr Hicks’ psychiatric state has not yet stabilised but he would expect further significant improvement with best practice and evidence based treatment;

    ·Mr Hicks has not yet reached maximal medical improvement in relation to his depression and there are still a number of treatment options available to Mr Hicks that is not yet tried and therefore it is premature to assess any permanent residual psychiatric disability;

    ·Mr Hicks’ depression would improve significantly with appropriate treatment.

    Ms Deborah Turner

14. In 2009, Mr Hicks was also examined again for medico-legal purposes by Ms Deborah Turner, a psychologist.  Her report is relatively brief and does not address future treatment options.

    Dr Nigel Cord-Udy

15. I note further that Dr Cord-Udy’s report dated 2 February 2015[4] (well after the relevant date of September 2013) refers, even at that late stage, to the desirability of Mr Hicks trying different medications, and he recommended a formal referral to Adelaide for further treatment.  Dr Cord-Udy apparently saw Mr Hicks on this occasion in his clinic visit to Kadina.  There is no evidence before me of continuous consultation with medical specialists leading up to the September 2013 DSP claim.

    [4]     Exhibit A3.

16. In all the circumstances, I do not believe Mr Hicks’ mental condition was fully diagnosed and fully treated by September 2013.  There is, as I have said, no evidence of continuous consultation or a planned programme of therapy to assist Mr Hicks in the period leading to September 2013.

17. Similarly, I do not believe Mr Hicks has undertaken reasonable treatment as defined. I am not satisfied that further reasonable treatment is unlikely to result in significant functional improvement to a level enabling Mr Hicks to undertake work in the next two years.  I cannot say that is the case on the evidence before me.  Indeed, the evidence goes so far as to suggest that there has been no regular contact with any medical specialist in respect of Mr Hicks’ depression notwithstanding the very significant problems his father reported to the Tribunal concerning anger and withdrawal.

18. In connection with a submission that Mr Hicks had undertaken reasonable treatment, Mr Shepley pointed to the limited treatment opportunities in Ardrossan where Mr Hicks has lived at most relevant times.  I do not accept, however, that Adelaide would not be reasonably accessible by Mr Hicks based on the evidence that was given to me at the Tribunal.  A family friend, Ms Cooper, spoke of firm family support as well as her support.  Ms Cooper said the trip to Adelaide from Ardrossan took some two and a half hours by car depending on traffic.  I accept that assessment.

19. I would not find that, in the circumstances of this family, regular trips to Adelaide to secure treatment for Mr Hicks would be unreasonable or impractical.  For Mr Hicks’ family, Adelaide is a reasonably accessible location for treatment.

    CONCLUSION

20. My conclusion, therefore, is that I am prevented from assigning an impairment rating to Mr Hicks’ depression by clause 6(3) of the Impairment Tables Determination.  He is ineligible, therefore, to receive any points under the Tables in respect of any impairment arising from his depression.

21. As there is no eligible medical condition or conditions put forward that would warrant a rating of 20 points from a single Impairment Table, Mr Hicks must demonstrate participation in a program of support in order to qualify for the DSP.  As I have earlier noted, it is accepted that he has not participated in any such program.  Accordingly, he is ineligible to receive a DSP in respect of his September 2013 application.

22. I would expressly note that I make no criticism of Mr Hicks’ family, and I make no judgment as to why Mr Hicks has not received appropriate medical attention by specialist practitioners over the years.  It was not the task of the Tribunal to investigate that matter.  Nevertheless, it does appear clearly to be the case that Mr Hicks would benefit from a program of consultation and therapeutic intervention.  He has not received these in the past in a co-ordinated and continuous way.

    DECISION

23. The formal decision of the Tribunal will be to set aside the decision of the SSAT and to substitute a decision that the determination of the ARO be affirmed.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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Dated 5 May 20165 May 2016

Date(s) of hearing

Advocate for the Applicant

Solicitors for the Applicant

Advocate for the Respondent

Solicitors for the Respondent