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

Irvine and Secretary, Department of Social Services (Social services second review) [2019] AATA 2001 (19 July 2019)
Division:GENERAL DIVISION
File Number: 2018/1830
Re:Kane Irvine
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:19 July 2019
Place:Melbourne

The Tribunal affirms the decision under review to reject the Applicant’s claim for Disability Support Pension.
...............[sgd].................................................
Dr Stewart Fenwick, Senior Member
Catchwords
SOCIAL SECURTIY – application for disability support pension – whether applicant qualified pursuant to s 94 Social Security Act 1991 – multiple impairments – whether applicant’s impairments rated at 20 points or more under the Impairment Tables – intellectual function assessed using screening tool – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
19 July 2019
BACKGROUND

Mr Irvine applied to the Tribunal on 6 April 2018 for review of a decision of the Social Services and Child Support Division dated 23 February 2018 (AAT 1). AAT 1 affirmed the decision of an Authorised Review Officer (ARO) dated 24 November 2017. The ARO affirmed a decision made by Centrelink in December 2016 to reject Mr Irvine’s application for a Disability Support Pension (DSP).
Mr Irvine has had his capability for work assessed in four Job Capacity Assessment Reports (JCA). These extend from 2010 through to September 2018. The first report arose from an earlier assessment for DSP, the balance relate to the DSP application the subject of this review, dated 2 November 2016. The qualification period extends 13 weeks to 1 February 2017.
There is variation among the conditions being considered and the impairment assessed in the JCA reports, and in the assessments of the various decision makers. This is relevant as no written submissions were lodged with the Tribunal on Mr Irvine’s behalf. Mr Irvine was represented in the Tribunal and at the hearing by his treating psychologist Mr Redman, a Clinical and Forensic Psychologist.
The principal focus of this decision is Mr Irvine’s overall mental health and intellectual ability in the light of a history of ADHD, depression and possible low intellectual function in general.
LEGISLATIVE FRAMEWORK
A person qualifies for the DSP if the criteria under s 94 of the Social Security Act 1991 (SS Act) are satisfied. The relevant criteria for the purposes of this decision are:
(1)the person has a ‘physical, intellectual or psychiatric impairment’ (s 94(1)(a)); and
(2)the person has an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)).
Further criteria for assessing a person’s qualification for DSP are found in the Tables and rules established under s 26 of the SS Act and set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Under the rules:
(1)an impairment rating can only be assigned if the person’s condition is permanent (rule 6(3)(a));
(2)a condition is considered permanent if it is fully diagnosed, fully treated and fully stabilised and, ‘more likely than not, in light of available evidence, to persist for more than 2 years’ (rule 6(4)(a)-(d)); and
(3)a condition is fully stabilised (rule 6(6)) if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;
…
Rule 10 sets out steps for selecting Tables and making impairment assessments. Accordingly, Tables are selected after loss of function is identified (rule 10(1)(a)). A single condition may cause multiple impairments, and multiple conditions may cause a single impairment, but in either case an impairment can only be assessed once (rule 10(3)-(6)).
ISSUES
It is conceded in the Secretary’s Statement of Facts Issues and Contentions that Mr Irvine had conditions that satisfied s 94(1)(a) of the SS Act during the qualification period. For the reasons I will give below, the further criteria under s 94 of the SS Act relating to having a continuing inability to work and/or participation in an appropriate program do not need to be addressed.
The issues arising in this matter are therefore whether, during the qualification period:
(1)Mr Irvine had conditions that were fully diagnosed, treated and stabilised; and
(2)if so, whether a rating of 20 points or more can be assigned with reference to the Tables and rules.
FULLY DIAGNOSED, TREATED AND STABILISED
Mr Irvine’s application for review was completed by his mother. It includes a reference to his IQ being assessed as 72, and is accompanied by a written statement that refers to mental health problems, severe depression and observations about his intellectual capacity and general ability to cope with aspects of life.
A Medical Report Disability Support Pension, dated 13 July 2010 (T5, pp 16-23), lists two conditions – depression and carpal tunnel syndrome. The report lists depression as Condition 1 (‘condition with most impact’) and records treatment as being ‘antidepressants’. Condition 2 is carpal tunnel syndrome for which Mr Irvine appears to have had surgery in 2010, based on a Work Cover Progress Medical Certificate (T7, p 29).
In his application for DSP dated 17 September 2016 (T14, pp 46-75), Mr Irvine did not identify medical conditions in support of his claim. A medical certificate filed with Centrelink by his GP Dr Omifolaji, dated 10 October 2016 (T15, p 76), identifies his conditions as ADHD and major depression. Both are described as ‘exacerbation of existing condition’ with onset dates stated to be 1984 and 2008 respectively.
These conditions were considered in the second JCA report, dated 1 December 2016 (JCA 2) (T17, pp 79-86), which accepted them as fully diagnosed. JCA 2 was completed by a Registered Psychologist who reports the ADHD as also being fully treated but not fully stabilised. The depression was considered not fully treated and not fully stabilised. JCA 2 also touches on partial hearing loss and carpal tunnel syndrome, which were not the subject of submissions at the hearing.
The third JCA report, dated 30 July 2017 (JCA 3) (T25, pp 100-105), also completed by a Registered Psychologist, addresses ADHD, depression and intellectual disability. Both ADHD and depression are considered fully diagnosed, fully treated and fully stabilised. The intellectual disability is described only as ‘verified by medical evidence’ and is not further assessed due to the absence of an adaptive behaviour assessment. The decision of the ARO (T31, pp 115-119) repeats the findings of JCA 3 as to Mr Irvine’s medical conditions.
AAT 1 addressed a different suite of conditions. AAT 1 found: ADHD and carpal tunnel syndrome fully diagnosed, fully treated and fully stabilised; anxiety/depression fully diagnosed, but not fully treated and stabilised; and, sleep apnoea not fully diagnosed, treated and stabilised.
The fourth JCA report, dated 25 September 2018 (JCA 4) (ST2, pp194-202), was completed by a Clinical Psychologist. JCA 4 considered Mr Irvine’s ADHD and depression as fully diagnosed, but neither were considered to be fully treated and stabilised. The report also describes his intellectual disability as verified by medical evidence, but not fully diagnosed in the absence of an accurate cognitive assessment. JCA 4 addresses the conditions in the context of the relevant qualification period.
The Secretary’s Statement of Facts, Issues and Contentions, dated 3 April 2019, addresses: ADHD; depression; intellectual disability; carpal tunnel syndrome; and, sleep apnoea. At the hearing the Respondent made closing submissions on the first three of these conditions only. Mr Irvine’s representative Mr Redman was provided the opportunity at the hearing to respond to these submissions; however, the other conditions which have arisen in the course of Mr Irvine’s claim history (hearing loss, carpal tunnel syndrome and sleep apnoea) were not the subject of evidence or submissions at the hearing.
ADHD
The earliest formal diagnosis of ADHD (attention deficit hyperactivity disorder) was that of Dr Manuel, dated 14 January 2014 (T8, pp 30-31). I note this report is described as a ‘291 assessment’ which, under the Medicare Benefits Schedule, is a professional attendance by a consulting psychiatrist to provide an assessment and management plan where appropriate. The diagnosis provided is ‘ADHD with anxiety and depression’.
As noted, Mr Irvine’s treating GP described the ADHD as commencing in 1984. Mr Irvine was born in 1976, which would make onset at around age eight. The report of Associate Professor Wong, dated 20 January 2010 (T3, pp 13-14), confirms the first formal diagnosis as being that of Dr Manuel, but notes attention and concentration issues first emerged during Mr Irvine’s school years, ‘as far as I can ascertain’. His overall conclusion was: ‘[t]he clinical picture is compatible with that of ADHD in reasonable control’.
The medical certificate from Mr Irvine’s treating GP of 10 October 2016, as noted above, cited ADHD and major depression. Two GP’s from the same clinic, Dr Omifolaji and Dr Mathews, also submitted to CBUS (an industry superannuation fund) two medical certificates on Mr Irvine’s behalf in January 2017 (T19, 89-90) titled ‘Application for Payment of Benefit – Permanent Incapacity’. They cited, respectively: ADHD; major depression; and severe learning difficulty, and ADHD; depression; and, anxiety.
JCA 2 was prepared following a face-to-face assessment and reports that Mr Irvine: ‘ceased working in February 2016 as position was dismissed [sic] as he was making multiple mistakes’. This refers to Mr Irvine leaving his last permanent job as a bus driver. At the hearing Mr Irvine gave evidence that at the time he left work staff were being let off due to a lack of available work and he himself had been ‘put off’. While I was unable to ascertain the exact circumstances of his departure, this information together with the industry fund medical certificates suggests his medical condition may have played some part in his leaving the workforce, but whether through dismissal remains unclear.
Mr Irvine has a history of drug prescription for ADHD. Dr Manuel prescribed Dexamphetamine (Ritalin in the alternative), and Associate Professor Wong recommended this be continued. Mr Irvine’s GP prepared a patient drug list in May 2017 (T23, p 98) which also reports Dexamphetamine for ADHD.
No additional medical evidence was raised at the hearing in relation to this condition. It was submitted on behalf of the Respondent that there was a contradiction between Associate Professor Wong’s observation that ADHD was under reasonable control and the treating GP’s reference to exacerbation. I am not persuaded, given the strength of the medical evidence overall, including the history of medication, that this is a significant discrepancy. I also note the decision of the ARO and AAT1 that this condition was fully diagnosed, treated and stabilised. On the basis of the evidence provided, I am satisfied that ADHD is fully diagnosed, treated and stabilised.
Depression
The earliest reference to depression is found in the Medical Report Disability Support Pension of July 2010. Further history is found in the first JCA report (JCA 1), dated 5 August, 2010 (T6, pp 24-28). This report was based on a face-to-face assessment with an employment services provider (with no clinical qualification cited). It records Mr Irvine stating his treatment had been underway for seven years since the death of his father (which would make onset sometime around 2003). He had received counselling but had ‘not sought any psychological treatment for quite some time’. There is no statement made about the condition being considered fully diagnosed, treated or stabilised. JCA 1 notes Mr Irvine was taking anti-depressants and the DSP Medical Report lists anti-depressants under ‘Past treatment’, and anti-depressants and mood stabilizers under ‘Current treatment’ and ‘Future/planned treatment’ (T5, p 18).
Dr Manuel’s report also addresses anxiety and depression. She reports past medication of Zoloft and Effexor XR, both of which are anti-depressant medications. I have referred above to the occasions on which treating GPs have provided reports or certificates citing anxiety and depression. In the case of Dr Omifolaji, as noted, the diagnosis was ‘major depression’ in the medical certificate provided around the time of Mr Irvine’s second DSP claim, and this is repeated in another Centrelink medical certificate dated 16 June 2017 (T24, p 99). Mr Irvine’s patient drug list also cites prescriptions of Diazepam for ‘anxiety disorder’ (‘only when needed’) and Escitalopram for ‘depression’.
A report of Mr Redman, dated 4 October 2017 (T28, 108-110), states: ‘The co-morbidity of depression was evident and assessed with Hamilton Rating Scale. That showed a severe depression …’ This report also notes a medication regime consistent with that described in Mr Irvine’s patient drug list, with the addition of another drug, Mirtazapine, which is an anti-depressant. At the hearing Mr Redman asked Mr Irvine when he first commenced taking medication for his depression. Mr Irvine responded ‘from about 18 and off and on since then’.
All but the first JCA were completed by psychologists. Two consider Mr Irvine’s depression as fully diagnosed, but not fully treated and stabilised, whereas JCA 2 (from mid-2017) found the condition fully diagnosed, treated and stabilised. JCA 4 (from 2018) considered there was insufficient evidence of psychological intervention and that a recommendation of Dr Manuel in 2014 to trial a different medication had not been followed. Dr Manuel’s report in fact states that an alternative anti-depressant might be ‘considered’ if his depression does not improve on Ritalin or Dexamphetamine. It also recommends Mr Irvine continue with his cognitive therapy.
The report of Mr Irvine’s GP, dated 8 December 2017 (T33, p 130), provides an overview and summary of his medical status: ‘high doses’ of medication for ADHD and major depression and anxiety; regular GP treatment; and, consultations with three psychiatrists, a psychologist and a mental health social worker. The report concludes: ‘With several therapies tried over the past several years, I am of the opinion that his condition has stabilised and unlikely to improve any further’.
It was submitted on behalf of the Respondent that depression was fully diagnosed but not fully treated and stabilised in the qualification period. At the hearing emphasis was placed on a recent conversation reported between Mr Redman and a Centrelink staff member in an Additional Medical Evidence for Disability Support Pension Record, dated 27 March 2019 (ST5, pp 365-366). Mr Irvine commenced a program of treatment with Mr Redman in March 2017 (T21, p 93).
This conversation was the subject of cross-examination at the hearing. Mr Redman confirmed the substance of the conversation in the form of accepting several propositions put to him by the Respondent’s representative. These were: that Mr Irvine’s depression was exacerbated by his leaving employment; was not fully treated and stabilised when he commenced treatment with Mr Redman; and, that this would have had an impact on the clinical assessments he administered. This conforms, in substance, with the text entered into a box titled ‘Other details’ on the record.
I make several observations about this issue. First, there are two versions of the relevant record lodged with the Tribunal (ST5, pp 365-366 and ST6, pp 367-368). Both records appear to have been completed by a person named ‘Julia’, on the same day following telephone contact with Mr Redman, however the staff ID numbers are different. Second, while both records contain the same report of the conversation with Mr Redman, they otherwise differ in substantive content. Third, the question of what was meant by exacerbation is not elaborated further in the record, and was not clarified in evidence at the hearing. Fourth, I note the conversation took place two years after the time period under discussion.
The first record identifies Condition 1 as being ‘Depression, ADHD, Intellectual difficulty’, and the prognosis is described as ‘Temporary exacerbation of a permanent condition’. The second record describes Condition 1 as ‘Depression’, and Condition 2 is described in the following way: ‘ADHD is a permanent condition with onset usually in childhood’. This reads like a generic description of the condition, not a diagnosis as such. The prognosis for depression in the second record is: ‘Long standing condition that has been exacerbated by recent termination of employment’.
The focus of the submission and evidence based on these records was the conversation note, which does not differ between the two documents, and which was confirmed by Mr Redman. However, its unexplained duplication and the ambiguity of its provenance, and, more importantly, the variation in the description of conditions and prognoses raise questions about the weight to be placed on this material. Furthermore, it is not clear whether the author (or authors) understood the chronology of Mr Irvine’s matter correctly given the reference in the second record to ‘recent termination’. In addition, in the case of the first record, the author has accepted that the conditions listed were ‘permanent’ but this potentially conflicts (in the context of DSP claims) with the conversation notes in the record which address whether the conditions were fully treated and stabilised.
I note AAT 1 found anxiety/depression not fully treated and stabilised. On the basis of documentary evidence lodged with the Tribunal and Mr Irvine’s oral evidence I find there is consistent evidence supporting a diagnosis of depression, a finding supported by the evidence as to medication. While the dates for onset and medication vary between 1993, 2003 and 2008 I am satisfied that this condition was fully diagnosed, treated and stabilised.
Intellectual Disability
The question of Mr Irvine’s possible intellectual deficits was not a feature of his second DSP application. It did not arise in JCA 1. The ARO referred to assessment of Mr Irvine’s intellectual function and this appears to be a reference to a report of Mr Redman, dated 18 April 2017 (T21, p 93), following Mr Irvine’s initial March 2017 consultation. Mr Redman’s subsequent report of October 2017 also addresses a range of clinical assessments made following the administration of several tests.
Clinical assessment tools appear not to have been used to diagnose Mr Irvine’s intellectual capacity until after the qualification period. This does not rule them out for diagnostic purposes, as I accept that a clinical finding may relevantly bear on a condition or conditions, and to an existing claim for benefits.
Mr Redman’s assessments were the subject of cross-examination at the hearing. The assessments and their interpretation are particularly relevant for the purposes of an impairment assessment under Table 9 – Intellectual Function. There is no evidence suggesting another medical condition that may be the cause of any intellectual impairment, and so I will deal with Mr Irvine’s mental capacity below when considering impairment ratings.
Other conditions

It is submitted in the Secretary’s Statement of Facts, Issues and Contentions that Mr Irvine’s carpal tunnel syndrome was fully diagnosed, but not fully treated and stabilised. This is on the basis of documents lodged with the Tribunal including the report of Mr Merenstein, dated 11 November 2010 (T7, p 29), which appears to indicate that he may have performed carpal tunnel decompression surgery for Mr Irvine.
It is submitted in the same Statement of Facts, Issues and Contentions that sleep apnoea was not fully diagnosed, treated and stabilised, and that no evidence as to its status has been provided. A report by Dr Omifolaji, dated 30 August 2017 (T27, p 107), identifies obstructive sleep apnoea as part of ‘Significant Medical History’, accompanied by a date of 10 August 2017. No further information in relation to sleep apnoea is provided in that report. I accept the Respondent’s submissions as I am satisfied that no relevant evidence has been adduced and no submissions made that allow me to address these other conditions further.
IMPAIRMENT ASSESSMENT
Table 5 – Mental Health Function
Both JCA 2 and the ARO assessed moderate impairment, assigning 10 points for ADHD. The Secretary’s Statement of Facts, Issues and Contentions submits that a maximum of 10 points should be assigned for ADHD, and a maximum of 5 points for depression. I note that Tables are selected based on a loss of function and do not directly correspond to particular permanent conditions.
Documents provided by the Respondent include an assessment based on severe functional impairment under Table 5, and described as including handwritten notes by Mr Redman, attached to Centrelink correspondence dated 25 November 2017 (T32, p 123). Mr Redman also provided a written assessment of severe functional impairment to the Respondent in a report dated 22 August 2018 (ST1, p 191). AAT 1 summarises evidence provided by Mr Irvine during his first tier hearing, but otherwise does not mirror the structure of the Tables.
Self care and independent living
Mr Irvine gave evidence at the hearing that he lives with his mother and has done so for some years. He stated that he moved to be with his mother when she was sick and ‘sort of stayed there ever since’. He stated that he provided help to his mother since he is ‘a lot younger’. Mr Irvine also stated he has been with his mother since losing his job, which was in early 2016. In cross-examination at the hearing, Mr Irvine was asked about a statement in JCA 2 (from an assessment in November 2016) that he has ‘been living on his own since 2 years ago [sic]’ (T17, p 81). Mr Redman’s report of October 2017 states Mr Irvine’s mother ‘has resumed care of him’ and notes that Mr Irvine’s mother had to help him develop a daily routine and assist with bills and appointments. Mr Irvine was not able to be conclusive as to when in fact he started living with his mother.
AAT 1 found that Mr Irvine was able to manage a range of ordinary household chores such as cleaning and being able to make a cup of tea and a sandwich. The assessments completed by Mr Redman indicate Mr Irvine receives help from his mother organising his life but are not specific as to the impact on self care.
The focus of the examples under this descriptor is the person’s capacity to function with respect to activities such as personal hygiene, personal grooming, and nutrition through provision of meals. An extreme level of impairment might be indicated by a person needing to live with family or in a facility. The evidence as to precisely when and why Mr Irvine commenced living with his mother is ambiguous, but I accept his oral evidence that he lived with his mother in the qualification period. In any event this of itself is not definitive of this particular descriptor. The evidence available suggests Mr Irvine is largely self-sufficient, and accordingly I assign a mild functional impairment to this descriptor.
Social/recreational activities and travel
Mr Irvine gave evidence that he was able to drive himself to his medical appointments. He did not assist his mother with shopping as she was capable of doing this herself, with some help from nieces. He also gave evidence that he had been bedridden for several years. Mr Irvine stated in evidence he was nervous and a loner but does sometimes go out for social events. Mr Redman’s assessments note that Mr Irvine has difficulty socialising and stays at home a lot.
I accept that since stopping work Mr Irvine has led a life restricted largely to home life and medical appointments as a result of his conditions. I assign a moderate impairment rating under this descriptor.
Interpersonal relationships
The evidence at the hearing, discussed above, and which I accept, indicates that Mr Irvine has a limited range of personal relationships. The notes of the assessments conducted by Mr Redman are consistent with this evidence.
The examples provided with the descriptors in the Table vary somewhat in their focus. Mild impairment might be indicated by occasionally strained relationships, and moderate impairment by difficulty making friends. Based on the evidence of Mr Irvine’s conditions and his personal history which is available to me, I am satisfied that I am able to assign a rating of moderate impairment.
Concentration and task completion
Dr Omifolaji’s medical certificate of October 2016 (T15, p 76) states Mr Irvine had difficulty concentrating on tasks. His August 2017 report (T27, p 107) states that Mr Irvine’s conditions affected his memory and ability to focus. His December 2017 report (T33, p 130) describes Mr Irvine’s task completion being impacted by his becoming distracted and disorganised when another person is present. Both reports post-date the qualification period, but I am satisfied they reflect an opinion about Mr Irvine’s ongoing state based on conditions which I have found to be permanent. Mr Redman notes in his October 2017 report that he administered clinical evaluations highlighting difficulty with sustaining attention and constant distractibility. Mr Redman’s assessments of impairment under this descriptor are similar in content to that in these medical reports.
I am satisfied on the evidence that I can assign a moderate impairment rating to this descriptor.
Behaviour, planning and decision making
Dr Omifolaji’s medical certificate of October 2016 describes Mr Irvine as experiencing memory loss. As noted above, Mr Redman’s October 2017 report states that Mr Irvine needed help from his mother with a range of activities such as paying bills and making appointments. I note Mr Irvine is reported in JCA 2 as advising that one of the reasons for his departure from work as a bus driver was ‘making multiple mistakes’ (T17, p 84). Mr Redman’s assessments refer to erratic behaviour, distractibility and ‘doing things wrong’.
I note the example in this descriptor for mild functional impairment is that a person has ‘slight difficulty’ in planning and organising more complex activities. I am satisfied on the basis of the evidence that Mr Irvine has a greater degree of difficulty in planning and decision making caused by his conditions than this, and I therefore assign a moderate rating.
Work/training capacity
In evidence at the hearing Mr Irvine provided a detailed work history spanning the end of high school through to his most recent full-time position as a bus driver. This accords with the work history presented to JCA 2 (T17, p 84). I accept that Mr Irvine was employed primarily in a variety of trades until around the age of thirty, when he ceased full-time work. Mr Irvine’s DSP application (T14, p 73) includes the following statement under a question addressing workplace support related to the disability: ‘wasn’t supported at work when working as Bus Driver despite asking for support’.
I have considered the large volume of handwritten notes written in the first person and submitted to the Respondent by Mr Redman (ST4, pp 213-366). I take these to be Mr Irvine’s personal reflections about his life and experiences and they include references to instances of workplace bullying. This material was not ventilated at the hearing. Mr Redman’s assessment notes state Mr Irvine is unable to attend work, that he will not cope at work due to his mental illness, and has learning difficulties.
The examples provided with this descriptor focus on a person experiencing problems in the workplace in the form of conflict or other issues giving rise to managerial intervention. I am satisfied there is adequate evidence before me that Mr Irvine’s conditions cause him some degree of difficulty in the workplace, and I assign a mild impairment.
Summary
Under Table 5 I have assigned a moderate impairment rating to four of the six descriptors. Being most of the descriptors, this leads to a total impairment rating of 10 under this Table.
Table 9 – Intellectual Function
A preliminary issue arises as to when Mr Irvine’s ADHD was diagnosed. The Introduction to Table 9 states that it is to be used where a person has a ‘permanent condition resulting in low intellectual function (IQ score of 70 to 85) resulting in functional impairment, which originated before the person turned 18 years of age’. The first formal diagnosis of Mr Irvine’s ADHD was that of Dr Manuel in 2014, but her report does not clearly state whether the condition is to be considered as originating in his childhood. Dr Omifolaji has, as noted, reported onset of ADHD as 1984. Mr Irvine was around eight years old in 1984. For the reasons I will come to about the adequacy of assessment tools, it is not necessary to resolve the threshold issue as to when this condition originated.
As noted above, Mr Redman administered clinical assessment tools including those that bear on intellectual ability, and this was the subject of cross-examination. It was submitted on behalf of the Respondent that this condition was not fully diagnosed, treated and stabilised because diagnostic assessments were not undertaken during the qualification period, and the particular assessment tool required under Table 9 was not administered. I will address the latter question because it is potentially dispositive of this impairment issue.
Mr Redman used a WASI-II (Wechsler Abbreviated Scale of Intelligence) with Mr Irvine in his March 2017 consultation leading to a result of IQ in the ‘Borderline Range viz 68-78’ (T28, p 109). His report describes this as a ‘short IQ test’. Table 9 requires an assessment of intellectual function in the form of WAIS IV (Wechsler Adult Intelligence Scale) ‘or equivalent contemporary assessment’. It was submitted on behalf of the Respondent that only an abbreviated test had been administered and a full assessment was required. It was also submitted that there were errors in the way this assessment had been administered and the score calculated. Under cross-examination Mr Redman recalculated the score and produced a similar result to that reported.
Is the WASI-II an adequate measure? Both tests are assessment products owned by Pearson Clinical. Information publicly available[1] about these assessments indicates that WASI-II is a screening tool that may indicate that a comprehensive intellectual assessment is needed. While WASI-II subtests can be substituted for the equivalent subtests in WAIS-IV, there are further subtests in the WAIS-IV comprehensive assessment tool.
[1] >
The Introduction to Table 9 is specific in its designation of IQ assessment tool. It also goes on to require an assessment of adaptive behaviour, when an IQ assessment generates a result in the range 70-85. I am not satisfied that the use of an abbreviated screening tool satisfies the requirement to use WAIS IV or equivalent. An initial screening assessment cannot be considered an ‘equivalent’ test when the additional subtests have not been administered, particularly when the application of the Table rests on the accuracy of the assessment of IQ. Accordingly, I do not assign an impairment rating under this Table.
CONCLUSION
I have assigned a total impairment rating of 10 points under Table 5. Under s 94(1)(b) of the SS Act Mr Irvine cannot qualify for the DSP unless his impairment rating is of 20 points or more. Therefore, it is not necessary to consider whether the remaining qualification criteria apply.
Accordingly, I find that Mr Irvine did not qualify for the DSP during the relevant qualification period because his impairment has been assigned a rating less than the required 20 points.
DECISION
Under s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review to reject the Applicant’s claim for Disability Support Pension.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

......[sgd].....................................................
Associate
Dated: 19 July 2019

Date of hearing: 4 June 2019

Advocate for the Applicant:
John Redman & Associates

Mr John Redman

Solicitors for the Respondent: Sparke Helmore Lawyers
Mr Nam Nguyen

[2019] AATA 2001

19 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal