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

[2018] AATA 1250

Innes and Secretary, Department of Social Services (Social services second review) [2018] AATA 1250 (9 May 2018)

Division:GENERAL DIVISION

File Number:           2017/2475

Re:Dale Innes

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:9 May 2018

Place:Sydney

The decision under review is affirmed.

....................................[SGD]....................................

Dr L Bygrave, Member

Catchwords

SOCIAL SECURITY – disability support pension – impairment – whether disability is fully diagnosed, treated and fully stabilised – whether applicant’s impairments attract 20 points or more under the Impairment Tables – mental health – substance abuse – decision under review affirmed 

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

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

REASONS FOR DECISION

Dr L Bygrave, Member

9 May 2018

INTRODUCTION

1. The applicant, Mr Dale Innes, lodged a claim for disability support pension on 3 March 2016.

2. On 30 April 2016, Centrelink rejected Mr Innes’ claim for disability support pension because he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act). This decision was affirmed by an authorised review officer of Centrelink on 13 October 2016.

3. Mr Innes subsequently applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and on 20 March 2017, the SSCSD affirmed Centrelink’s decision to reject Mr Innes’ claim for disability support pension.

4. On 27 April 2017, Mr Innes applied to the General Division of the Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 18 April 2018. Mr Innes attended the hearing and gave evidence by conference telephone. He did not have legal representation.

   RELEVANT LEGISLATION AND ISSUES

   Qualification for disability support pension

6. To qualify for the disability support pension, Mr Innes must satisfy the criteria in subsection 94(1) of the Act, which requires him to show that he has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 points or more under the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, Mr Innes must have met these criteria on 3 March 2016 when he applied for disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period).

   Rules for assigning impairment ratings

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means that a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the next two years: subsection 6(5).

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

13. Relevant to this matter, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition:

    must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

14. The Secretary concedes, and the Tribunal agrees, that Mr Innes suffers from medical conditions that cause impairment and therefore, he satisfied paragraph 94(1)(a) of the Act at the time of his claim for disability support pension.

15. It follows that the determinative issues in this matter are whether, during the claim period, Mr Innes had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Does Mr Innes have medical conditions that can be rated at 20 points or more under the Impairment Tables?

    Mental health

16. Mr Innes suffers from long-standing mental health issues. In his claim for the disability support pension, Mr Innes described his conditions as ‘borderline personality disorder, schizophrenia, psychosis, depression, insomnia, adjustment disorder, paranoia, feelings of persecution, anxiety’.[1]

    [1] Exhibit T30, page 175.

17. Mr Innes’ information is verified by the medical evidence. A psychological report by Mr Garry Lawler (clinical psychologist) dated 12 January 2011 concluded that Mr Innes has chronic depression and anxiety, and he has ‘engaged in some psychological and medical treatments which have not led to significant improvement’.[2]

    [2] Exhibit T8, page 109.

18. Dr Subhra Bhattacharyya (specialist psychiatrist) provided reports dated 16 May 2014 and 20 November 2015. On 16 May 2014, Dr Bhattacharyya stated that Mr Innes’ behaviours ‘suggest borderline personality structure’; he had experienced episodes of depression and psychosis and had a long history of alcohol abuse and binge drinking.[3] Dr Bhattacharyya recommended that Mr Innes continue medication and be referred to a drug and alcohol support service and psychology service.

    [3] Exhibit T19, page 134.

19. In an assessment of Mr Innes on 20 November 2015, approximately three months prior to the claim period, Dr Bhattacharyya reported that:

    Since my last review with Dale, he went away to live in Victoria for 10 months… He said he stayed with friends and stopped taking his medications. He began to feel unwell and returned to [NSW] about three months ago and has been living in a caravan park... He has resumed his medications under your supervision and came to his appointment to review his medications…

    Dale reports problems with anxiety, concentration, mood instability, feeling paranoid around people; all of which responds reasonably well to Quetiapine. He admits to ongoing ETOH abuse although he said he has cut this down from last year.[4]

    [4] Exhibit T27, page 146.

20. Mr Wayne Learmouth (clinical psychologist) provided a report on 15 June 2016 to support Mr Innes’ claim for disability support pension. Mr Learmouth reported that Mr Innes experiences mood instability, depression, anger and paranoia, which affects his daily functioning as follows:

    Reduced social involvement: Mr Innes reported that he is socially withdrawn. He said that he now prefers to remain at home and is too distrusting of others intentions to socialise.

    Limited recreational involvement: Mr Innes spoke of not engaging in recreational activities such as going to the club for raffles or going fishing with friends. He said that his interest in the pleasant activities is greatly reduced and that he experiences reduced motivation.

    Feelings of distrust, perceptions of hostile intent and anger: He reported that he feels increasingly vulnerable in social settings. He believes others are out to get him and will not accept him. These thoughts provoke anger towards others and have caused him conflict in interpersonal relationships. He spoke of being more guarded, particularly when around other people.

    Fluctuating sleep disruption: Mr Innes reported difficulty falling asleep and remaining asleep. This sleep disruption is negatively impacting on his energy levels and mood.

    Alcohol abuse: Mr Innes reports frequent binge drinking, which is limited by financial availability. His alcohol abuse is a maladaptive coping strategy.

    Difficulties with concentration and motivation: Mr Innes reported that he is forgetful and has difficulty concentrating on what he is doing. He finds that he is more easily distracted and has a shorter attention span.

    Communication deficits: Mr Innes reports…deficits in his capacity to express himself and interact with others… [He] has trouble consistently getting what he wants to say across; and he has difficulty reliably understanding what people have said to him unless it has been presented in simple, concrete terms.[5]

    [5] Exhibit T34, page 189.

21. At the Tribunal hearing, there was some discussion about when Mr Innes began to see Mr Learmouth and whether he was having psychological counselling during the claim period. Mr Innes told the Tribunal he was seeing Mr Learmouth prior to the date of the report on 15 June 2016 but could not recall when.

22. I note the documents before the Tribunal show Dr Vinay Karanam (general practitioner) referred Mr Innes to Mr Wayne Learmouth for psychological counselling under a GP Mental Health Care Plan by letter dated 12 December 2015.[6] However, Mr Innes advised a job capacity assessor at Centrelink on 22 March 2016 that he had not yet seen Mr Learmouth.

    [6] Exhibit T28, page 148.

23. Based on the information before the Tribunal, I am satisfied that Mr Innes began seeing Mr Learmouth for treatment of his mental health condition some time during the claim period.

24. At the Tribunal hearing, Mr Innes described his mental health as ‘fluctuating’. He confirmed that he moved to Victoria in 2014-2015 for about ten months and stopped taking medication because he was feeling well. He subsequently had a ‘bad turn’ and returned to NSW. Mr Innes said Dr Bhattacharyya prescribed him further medication and recommended he attend counselling in November 2015, but he could not recall if he complied with taking his medication. He commented that his behaviour in late 2015 and early 2016 was very aggressive and volatile and he was drinking a lot of alcohol.

25. Mr Innes told the Tribunal that he has been seeing Mr Learmouth on a regular basis prior to Mr Learmouth’s report dated 15 June 2016. He said that he takes medication and participates in psychological counselling but prefers to deal with issues ‘in his own way’ and ‘work things out in his own head’ rather than talk with other people. Mr Innes confirmed that his mental health is more stable now because he is taking medication, attending regular appointments with Mr Learmouth and limiting his alcohol consumption. He is planning to commence a detox program.

26. Mr Innes lives on his own in a caravan park with his dogs. He spends his days sitting in his caravan listening to music or the television. A friend at the caravan park and the park owners look out for him but he often neglects to shower and eat. He said he always remembers to provide food and water for his dogs.

27. Based on the medical evidence before the Tribunal, I am satisfied that Mr Innes’ mental health condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. This is because the evidence does not show that, during the claim period, Mr Innes was compliant with his medication. He only began to seek psychological counselling in the later part of the claim period.

28. For these reasons, I am unable to assign points for this condition in accordance with the Impairment Tables Determination.

    Substance abuse

29. As set out in paragraphs 18-20 above, Dr Bhattacharyya and Mr Learmouth reported that Mr Innes has a history of alcohol abuse and binge drinking.

30. There is no evidence before the Tribunal that Mr Innes was participating in any treatment for substance abuse during the claim period. I am satisfied this condition was fully diagnosed, but not fully treated and fully stabilised during the claim period.

    CONCLUSION

31. For the reasons set out above, I am not satisfied that Mr Innes met the requirements of paragraph 94(1)(b) of the Act during the claim period because his impairments were not rated at 20 points or more under the Impairment Tables.

32. As I find that Mr Innes did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.

33. If Mr Innes’ circumstances change, he is entitled to submit a new application for the disability support pension.

    DECISION

    The decision under review is affirmed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...................................[SGD].....................................

Associate

Dated: 9 May 2018

Date(s) of hearing:	18 April 2018
Applicant:	In person
Solicitors for the Respondent:	S Sangha, Department of Human Services