Kon NATALIZI and SECRETARY, DEPARTMENT OF SOCIAL SERVICES
[2014] AATA 803
•30 October 2014
[2014] AATA 803
Division GENERAL DIVISION File Number
2013/3526
Re
Kon NATALIZI
APPLICANT
And
SECRETARY, DEPARTMENT OF SOCIAL SERVICES
RESPONDENT
DECISION
Tribunal SM PW Taylor SC
Date 30 October 2014 Place Sydney Decision Summary
The decision under review is affirmed.
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SM PW Taylor SC
Catchwords – Social Security – disability support pension – psychiatric condition – portability - cancellation decision – whether condition fully treated and stabilised – whether a severe impairment – decision under review affirmed
Legislation
Social Security Act 1991 s 27(3), 27(4), 63(4), 94(1)(a), 94(1)(b), 94(3B), 1218AA
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
SM PW Taylor SC
In January 2001 Mr Natalizi was diagnosed as suffering from chronic depression. He received a disability support pension from January 2001 until March 2013.
His pension payments stopped because of a cancellation decision Centrelink made in February 2013. That decision followed Mr Natalizi’s October 2012 request for his pension to be subject to an unlimited “portability” period and paid to him whilst he lived overseas, a further medical report from Mr Natalizi’s general practitioner, and a re-assessment Centrelink carried out after giving Mr Natalizi a November 2012 notice under s 63(4) of the Social Security Act 1991 (“SSA 1991”).
The Secretary may determine that a disability support pension recipient has an unlimited “portability” period. The Secretary’s discretion is subject to various conditions, including satisfaction that the person has a “severe impairment” that is likely to persist for at least 5 years: see SSA 1991 s 1218AA. SSA 1991 s 63(4) gives the Secretary a discretionary power to notify disability support pension recipients (and recipients of certain other social security payments) that they are required to undergo a medical examination. Where the Secretary exercises the power by giving the appropriate notice, the recipient’s pension entitlement, and any review of a decision to cancel or suspend that entitlement, has to be determined by applying the “Impairment Tables” in force at the time of the Secretary’s notice: see SSA 1991 s 27(3) & 27(4). An impairment rating of at least 20 points, under the relevant Impairment Tables, is one of the critical disability support pension entitlement qualifications: see SSA 1991 s 94(1)(b). More specifically, only such an impairment point rating permits an impairment to be characterised as “severe”: see SSA 1991 s 94(3B).
The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (“the 2011 Impairment Determination”) was in force at the time of the Secretary’s 7 November 2012 notice to Mr Natalizi. Significant aspects of the 2011 Impairment Determination are that an impairment point rating can only be assigned to conditions that are (i) fully diagnosed, treated and stabilised (ii) cause a functional impairment, and (iii) are likely to persist for more than 2 years: see the 2011 Impairment Determination rules 6(1)-6(4).
The October 2012 medical report from Mr Natalizi’s general practitioner recorded that he was being medicated for depression, and that the condition was likely to persist for up to 2 years. A Job Capacity Assessment was undertaken by a registered psychologist in November 2012 at the request of Centrelink for the purpose of assessing Mr Natalizi’s future work capacity. The report of this examination accepted the depression diagnosis and considered the condition had been fully diagnosed, treated and stabilised. However, the assessor also considered that Mr Natalizi’s depression caused no relevant functional impairment, and did not merit any impairment rating under the relevant Impairment Tables. This consideration was the basis of both Centrelink’s February 2013 cancellation decision, and a subsequent internal review decision in April 2013.
The Social Security Appeals Tribunal’s 2 July 2013 decision affirmed Centrelink’s cancellation decision. The SSAT was satisfied that Mr Natalizi suffered from a major depressive disorder, which it described as “recently diagnosed”. The SSAT considered that, as a consequence of this diagnosis, Mr Natalizi satisfied the basic impairment requirement in SSA s 94(1)(a). But the SSAT was not satisfied his depression had been fully treated and stabilised. The consequence of that dissatisfaction was that no impairment point rating could be applied, and Mr Natalizi could not establish his qualification for disability support pension: see the 2011 Impairment Determination rule 6(3) & SSA 1991 s 94(1)(b).
The essential part of the Tribunal’s dissatisfaction was that it did not consider Mr Natalizi was receiving reasonable treatment for his depression. The Tribunal thought that reasonable treatment included a combination of medication and treatment from a psychologist or psychiatrist. The Tribunal thought that with reasonable treatment Mr Natalizi’s condition would improve within two years.
The long history of Mr Natalizi’s receipt of disability support pension, and the apparent consistency of his depression diagnosis, makes the SSAT’s reasoning appear surprising. However it is less surprising when regard is had to the contents of the 26 October 2012 medical report from Mr Natalizi’s general practitioner. The report indicated that Mr Natalizi had been a patient of the medical practice since April 2004 and had been prescribed medication for depression at the end of January 2012. The only reported symptoms were depressed mood and a generalised fatigue. The general practitioner recorded his opinion that the condition was likely to fluctuate but improve within the next five years. The general practitioner had not referred Mr Natalizi for a specialist consultation nor did he then propose any further treatment.
In his own “information form” dated 26 October 2012 Mr Natalizi stated that he had seen “many doctors” over the years since his depression started in 1997. He listed the names of the various doctors he had consulted. In February 2013 he consulted another general practitioner, Dr Milad. In apparent contrast to the views of the previous general practitioner, Dr Milad opined that Mr Natalizi had severe depression, with psychotic symptoms, and was obviously not fit for work. Dr Milad referred Mr Natalizi to a consultant psychiatrist, Dr Elena Shcherbak. In a report dated 21 May 2013 Dr Shcherbak reported that Mr Natalizi presented with a major depressive disorder that she described as moderate to severe. She recorded that he was comfortable with his existing medications (desvenlafaxine and aripiprazole), but she suggested increasing the former and reviewing the need for the latter. She volunteered a willingness to continue to see Mr Natalizi, review his medication and provide supportive psychotherapy.
It is apparent from the SSAT’s written reasons (2 July 2013 at paragraph 35) that it was significantly influenced by aspects of Mr Natalizi’s evidence. Those aspects included the following matters: (i) he had not followed up his original depression diagnosis with any further psychiatric assessments in the 10 years between 2001 and 2012, (ii) there were substantial periods within that 10 years when he had not been taking any antidepressant medication, (iii) his most recent depression diagnosis was in January 2012, and (iv) his medication regime had been increased by Dr Milad, and recommended for further review by Dr Shcherbak.
Those considerations do encourage a conclusion that Mr Natalizi’s depression had not been fully treated and stabilised either at the time of his October 2012 request for portability of his pension, or at the time of Centrelink’s February 2013 cancellation decision. That conclusion is further encouraged by Mr Natalizi’s evidence in the course of the present review application. He said that after February 2013 he was only taking the antidepressant medication prescribed by his former general practitioner (in January 2012). He could not remember taking two tablets (as suggested in the reports of Dr Milad and Dr Shcherbak). He said he was only taking one tablet. He was not seeing a specialist, did not want to take any serious medication and wanted to see how he would go without medication.
The evidence I have summarised in the four preceding paragraphs shows that Mr Natalizi has a long history of depression. But it also shows that he has tended either to shun, or only periodically seek, medical assistance and has not been compliant with the medication and treatment regimes prescribed or recommended by the medical practitioners he has consulted. This conclusion is particularly apt having regard to the contrast between the recommendations made by Drs Milad and Shcherbak, and Mr Natalizi’s evidence that he has not been taking the medication they prescribed and has not followed up with the treatment Dr Shcherbak recommended. In these circumstances I do not consider that the evidence justifies a finding that Mr Natalizi’s depressive disorder can be regarded as fully stabilised and treated. Consequently it cannot be assigned an impairment rating under the Impairment Tables.
Even if I was satisfied that Mr Natalizi’s depressive disorder was fully stabilised and treated, I would conclude that it did not merit a 20 point rating under the Impairment Tables. The relevant Table in the 2011 Impairment Determination is “Table 5 – Mental Health Function”. The relevant parts of the Table – dealing with “moderate” and “severe” functional impact – are set out below.
Points
Descriptors
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Although Dr Milad, but not Dr Shcherbak, opined that Mr Natalizi was not fit for work, neither his reports, nor any other evidence submitted by Mr Natalizi, specifically addressed the rating criteria in Table 5. Indeed, Mr Natalizi said that he had asked his previous general practitioner to provide such an assessment, but he had refused the request.
There is nothing to warrant a conclusion that Mr Natalizi has severe difficulties, attributable to his depression, with self care. He lives with his parents. He said that his elderly mother helps him put on his shoes, and also does all the cooking for the household. But there is no basis to attribute either that very limited degree of assistance, or his mother’s primary role in attending to the household responsibilities, to his depressive disorder. Indeed the assessor for the November 2012 examination recorded that Mr Natalizi reported being able to manage all the activities of daily living. He has a driver’s licence, a car and is able to drive. I do not think that there is any basis to conclude that he is severely impaired by his condition in relation to his capacity for self care and independent living.
Mr Natalizi gave evidence that he had a friend he regularly visited. He also sometimes went out for dinner with his mother. As well, for many years up until some time in either late 2012 or early 2013, Mr Natalizi had regularly played rhythm guitar in a band. It was a 6 piece band that formed about 7 or 8 years earlier. They were all part time musicians but they rehearsed regularly – each week for 3 hours. They performed, whenever they had the opportunity, in hotels. The band eventually folded, but Mr Natalizi would have liked it to have stayed together, because he enjoyed the music and participation in the band got him out of the house.
About 4 years ago Mr Natalizi met a Thai lady on line. He maintained approximately weekly contact with her thereafter, and eventually went to stay with her in about September 2013. He visited her again in February 2014. On each occasion he spent about 3 months staying with her in the small Thai village where she lived. She can speak, read and write English, although she is not completely fluent with her spoken English. Whilst he stayed with his friend they would visit her relatives and friends. They would also go out to dinner, perhaps once or twice a week. Whilst he was away on these holidays Mr Natalizi was able to manage his own finances. He said that he did not find the experience entirely easy. He did not speak Thai and it was difficult to adjust to a different environment. But he said he stayed because he thought he would benefit from the change and that the experience would help him “beat this depression”.
Mr Natalizi said he had not told his Thai friend about his depression, although he thought that she sensed there was something not quite right with him. Either on his last visit, or after his return, there had been some kind of serious upset in the relationship. He was not confident how or whether that upset would be resolved, but he thought he would try to contact her again at some stage.
This history, of travel and socialisation with the band of which he was a member for many years, does not indicate that Mr Natalizi has severe difficulties with social activities. Neither do they indicate severe difficulty with interpersonal relationships. The November 2012 assessor reported that Mr Natalizi presented for that examination on time and communicated openly. Dr Shcherbak’s May 2013 reported described Mr Natalizi as polite and co-operative, oriented in time, place and person, although his affect was depressed and restricted. Mr Natalizi’s participation in the present hearing was similar. His appeared to be somewhat subdued, but articulate in what he said, able to follow the evidence, and well able to respond to any of the questions asked of him.
Mr Natalizi said that he did little around the house, watched little television (because he did not like it) and spent a lot of time sleeping during the day. He claimed to sleep little at night, and would tend to sit up and play on his computer – either reading emails, chatting with friends (mainly his Thai friend - until recently at least) or doing some kind of research on matters of interest to him. This pattern of activity, which perhaps bespeaks an indolence associated with his depression, contrasts with the commitment and interest that must have been involved in his participation in the band of which he was for so long a member.
Dr Shcherbak’s May 2013 report appears to have accepted at face value Mr Natalizi’s self report that he felt very depressed, amotivated and tired, with decreased concentration. However I would infer from the brevity of her report that she did not obtain, and she certainly did not record, a full history of his activities. (There is, for example, no reference to his musicianship, participation in the band, recent trips to Thailand, or his relationship with the Thai lady.) Even so, Dr Shcherbak’s only, and equivocal, conclusion was that Mr Natalizi presented with a depressive disorder that she regarded as “moderate to severe”.
I agree with Dr Shcherbak’s impression that Mr Natalizi presents as depressed and amotivated. But, in the light of the history I have recorded, and particularly his capacity for self care, the socialisation, skill and commitment involved in his long association with the band of which he was a member, and his extended holiday travels to stay with his Thai lady friend, I am far from satisfied that Mr Natalizi has the kind of severe functional impairment that would merit a 20 point impairment rating under Table 5 of the Impairment Tables. I am also satisfied that there is no basis, other than his diagnosed depressive condition, that would warrant consideration of an impairment rating under any other Table.
DECISION
The decision under review is affirmed.
24. I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member.
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Associate
Dated 30 October 2014
Date(s) of hearing 3 July 2014 Representative for the Applicant Self represented Representative for the Respondent Ms Biljana Salaji, Solicitor
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