Ian Peel and Secretary, Department of Social Services

[2014] AATA 959

[2014] AATA 959

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2863
Re	Ian Peel
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	22 December 2014
Place	Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – application for disability support pension (DSP) – anxiety and depression – alcohol dependence – s 94(1)(a) satisfied – psychiatric conditions not fully diagnosed, treated and stabilised – impairment rating not attracted – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975, s37

Social Security Act 1991 s94

Social Security (Administration) Act 1999

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

REASONS FOR DECISION

Miss E A Shanahan, Member

1. Mr Peel lodged an application for the disability support pension (DSP) with Centrelink on 1 October 2012.  .  His application was supported by a medical report from his general practitioner, Dr Gray, which stated that Mr Peel’s disabling conditions were chronic anxiety, depression, and alcohol dependence present since late 2003 but exacerbated in 2009 by the breakdown of his marriage.  The application was  rejected on the basis that Mr Peel’s psychiatric conditions were not verified as being permanent, fully diagnosed, treated and stabilised and therefore did not attract an impairment rating under the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  The Job Capacity Assessment was conducted by a registered psychologist.

2. Mr Peel sought review of the decision by a Centrelink authorised review officer (ARO). On 27 November 2013 the ARO affirmed the decision. Mr Peel sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT) on 10 February 2014.  The SSAT affirmed the ARO’s decision on 7 April 2014.  Mr Peel lodged an application with this Tribunal for review of the SSAT decision on 3 June 2014. 

3. Mr Peel represented himself and the Secretary, Department of Social Services (the Secretary) was represented by Mr Tim Noonan, Principal Government Lawyer, Department of Human Services. The Tribunal was provided with the documentation lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents), which have been assigned Exhibit number R1.

   BACKGROUND TO THE APPLICATION

4. Mr Peel has not had full time work for many years.  He worked sporadically as a part‑time delivery driver in late 2013 or early 2014.  According to the report by his general practitioner, Mr Peel has suffered from chronic anxiety and depression, with alcohol dependence since 2003.  This has recently been exacerbated as a result of the failure of his marriage. 

5. Since late 2011 Mr Peel has received cognitive behavioural therapy (CBT) from a psychologist, who is a registered, but not a clinical, psychologist.  While his anxiety has improved with an anxiolytic medication, he has not responded to the use of anti‑depressants.  The treatment of his alcohol dependence has been, in effect, zero, because he does not acknowledge that he has a drinking problem.  Mr Peel has seen a drug and alcohol adviser at the Colac Area Health service on one occasion only.  He has not seen a clinical psychologist or a psychiatrist. 

6. Mr Peel regards his conditions as longstanding and permanent.  He believes this should qualify him for DSP. 

7. Dr Gray, who has been Mr Peel’s treating general practitioner since 2004, has provided the diagnoses of the psychiatric disorders and outlined their treatment as being a referral to a psychologist, general practitioner support and CBT. 

8. The registered psychologist, Ms Gabrielle van de Schoor has described his symptoms as low mood, low motivation, sadness, a high level of anxiety with pacing, worry and difficulty winding down.  At times he feels hopeless and helpless.  He uses alcohol on a daily basis and, in her opinion, this qualifies for the diagnosis of alcohol dependence.  Ms van de Schoor regarded Mr Peel as struggling to cope with the day-to-day tasks of ordinary living.  She also stated that while he had a job as a cleaner in early 2012, this was short-lived. 

9. Ms van de Schoor was subsequently asked for a further opinion, which she provided on 21 October 2014.  She confirmed that her original report had been verified by Mr Brett Jones, a clinical psychologist, in view of the Secretary’s requirements that such diagnoses be made by a psychiatrist or a clinical psychologist.  However, Mr Jones has not himself spoken with Mr Peel.

10. Ms van de Schoor, in answer to queries posed by Mr Noonan, opined that Mr Peel’s anxiety was not permanent, in that past attempts at treatment of the condition with medication and CBT had been aborted before completion. Therefore, the anxiety could not be considered as fully diagnosed, treated and stabilised in order to attract an impairment rating.  In addition, Ms van de Schoor acknowledged that his alcohol dependence had never been treated and therefore did not meet the legislative requirements of being fully treated and stabilised.  Again, an impairment rating was not attracted.

11. The SSAT hearing was conducted by telephone on 7 April 2014.  Mr Peel apparently gave some evidence to the SSAT, stating that his depression and alcohol dependence had the greatest effect on his day-to-day functioning.  Mr Peel confirmed that on some occasions he can’t be bothered doing anything and that he has no desire to take any medication apart from Valium.  He stated that he no longer saw Ms van de Schoor. 

12. Mr Peel was offered the opportunity to give evidence before this Tribunal but did not have anything further to add in terms of his symptomatology or treatment. 

    RELEVANT LEGISLATION

    94Qualification 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;

    (ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...

13. The Social Security (Administration) Act 1999 (the Administration Act) imposes limits on the qualification period, Schedule 2, subclause 4(1)

    Schedule 2—Rules for working out start day

    4Start day—early claim

    (1)If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and ...

    SUBMISSIONS

14. Mr Peel did not make any oral submissions at the hearing.  

15. Mr Noonan submitted that all the evidence before the Tribunal indicated that Mr Peel’s psychiatric disorders, namely chronic anxiety, depression and alcohol dependence, could not be assigned an impairment rating as they were not permanent in the sense that they were not fully diagnosed, treated and stabilised.  The only appropriate evidence provided was that of the registered psychologist, as affirmed by a clinical psychologist to this effect.

    TRIBUNAL’S DELIBERATIONS

16. There is no appropriate medical evidence before the Tribunal attesting to Mr Peel’s psychiatric conditions of chronic anxiety, depression and alcohol dependence having been fully diagnosed, treated and stabilised at any time since his first presentation in 2003.  He has not completed a full course of treatment at any time, including his CBT and the use of anxiolytics, although he occasionally still takes Valium.  He has not been seen or assessed by a psychiatrist with a view to other forms of treatment, including medication. He is reluctant to travel beyond his home in Colac to obtain such opinions and treatment.

17. Mr Peel’s conditions have not been fully diagnosed, treated and stabilised and do not attract an impairment rating.  Therefore, Mr Peel clearly does not satisfy s 94(1)(b) of the Act.

18. Mr Peel does not meet the required criteria for qualification for DSP. 

19. The Tribunal advised Mr Peel to obtain the opinion and treatment of a psychiatrist.  To assist Mr Peel, the Tribunal checked online the availability of such treatment in Colac.  It ascertained that a psychiatrist attends in Colac on a regular basis.  This information was provided to Mr Peel.

20. The Tribunal affirms the decision under review. 

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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Administrative Assistant

Dated  22 December 2014

Date of hearing	1 December 2014
Applicant	In person
Advocate for the Respondent	Mr Tim Noonan, Department of Human Services