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

[2020] AATA 1254

Lambe; Secretary, Department of Social Services and (Social services second review) [2020] AATA 1254 (11 May 2020)

Division:GENERAL DIVISION

File Number(s):      2018/5257

Re:Secretary, Department of Social Services

APPLICANT

AndDanny Lambe

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:11 May 2020

Place:Adelaide

The Tribunal sets aside the decision under review and instead decides that the Respondent is not qualified to receive the disability support pension.

.............................[Sgnd].................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether medical conditions diagnosed, treated and stabilised during the qualification period – whether an impairment rating of 20 points or more existed under the Impairment Tables – decision under review set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

CASES

Fanning and Secretary, Department of Social Services [2014] AATA 447

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

11 May 2020

INTRODUCTION

1. The Respondent, Mr Danny Lambe, lodged a claim for Disability Support Pension (“DSP”) with the Department of Human Services (“Centrelink”) on 17 November 2017. Centrelink rejected the claim and Mr Lambe requested a review of that decision. An Authorised Review Officer of Centrelink affirmed the decision. Mr Lambe requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”). The decision under review was set aside. Subsequently, the Applicant, the Secretary, Department of Social Services applied to the General Division of the Administrative Appeals Tribunal for a second review. 

2. The hearing took place on 31 January 2020. Mr Lambe attended the hearing and was represented by Counsel, Ms Margaret Riley. Mr Christian Visser, of the Department of Human Services, represented the Secretary.

3. Mr Lambe and his mother, Mrs Donna Lambe, gave evidence. A Job Capacity Assessor, Ms Bartemucci, also gave evidence. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975,[1] together with various medical reports and other documents.

   [1] Exhibit 1.

4. Mr Lambe is now 23 years old. The Tribunal heard evidence about impairment of his intellectual function, Attention Deficit Hyperactivity Disorder (“ADHD”), mental health functioning and sleep disorder.

   LEGISLATION AND ISSUES

5. Section 94(1) of the Social Security Act 1991 (“the Act”) provides that a person is qualified for DSP if the person has one or more physical, intellectual or psychiatric impairments which attract a rating of 20 points or more under the Impairment Tables, and has a continuing inability to work. The impairment must be present at the time of the claim or within the following 13 weeks (“the qualification period”), as specified by the Social Security (Administration) Act 1999. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”). The qualification period in this case is 17 November 2017 to 17 February 2018.

6. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week, or undertake a training activity within the next two years; and

   (b)They have actively participated in a “program of support”.

7. The second requirement is not necessary if a person has a “severe impairment”, whereby they are assigned 20 points or more under a single Impairment Table.

8. Accordingly, Mr Lambe will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, and that the impairment is rated at least 20 points under the Impairment Tables, and that he has a continuing inability to work.

9. Mr Lambe’s claim for DSP listed his disabilities, illnesses and injuries as:[2]

   (a)Disorder attention deficit (hyper);

   (b)School avoidant behaviour;

   (c)Non-compliant oppositional behaviour; and

   (d)Long-standing sleep disturbances.

   [2] T10/128.

10. Treatment was by way of dexamphetamine tablets. Also included in the claim form was the level of education completed, it was stated to be ‘year 9 not completed’,[3] and his ability to work or study , expressed as, ‘have had assessment done about 3 years ago by Centrelink and cannot do any more than 13 hrs per week.’[4] At the time of lodging the DSP claim, Mr Lambe was 21 years old.

    [3] T10/129.

    [4] T10/129.

11. In the Statement of Facts, Issues and Contentions (“SoFIC”), the Secretary:

    ·Accepted that Mr Lambe suffered from impairments and therefore satisfied s 94(1)(a) of the Act.

    ·Submitted that the impairment rating for Mr Lambe’s combined impairment from intellectual disability and ADHD is 10 points under Impairment Table 9.

    ·Accepted that Mr Lambe was diagnosed with social anxiety and a sleep-wake phase disorder; however, neither of those two conditions were fully treated or fully stabilised in the qualification period.

    ·Contended that Mr Lambe did not satisfy s 94(1)(b) of the Act as his impairments attracted a rating of 10 impairment points.

    ·Contended that without an impairment rating of at least 20 points, Mr Lambe was not qualified for the DSP during the qualification period.

    ·Sought an order setting aside the decision under review and substituting a decision that Mr Lambe was not qualified for the DSP.

12. In his SoFIC, Mr Lambe:

    ·Noted that the AAT1 was correct in finding that his impairment rating is 20 points under Impairment Table 9.

    ·Contended that the effects of ADHD are separate from the IQ rating measurement.

    ·Contended, in the alternative, that the rating can be 10 points under Impairment Table 9 (intellectual function) and 10 points under Impairment Table 7 (brain function) or Impairment Table 5 (mental health function).

    ·Contended that the sleep-wake phase disorder, was diagnosed, treated and stabilised at the date of claim and rated 10 points under Impairment Table 1 (physical exertion and stamina).

    ·Accepted that a condition of social anxiety was not treated at the time of the DSP claim.

    ·Contended that he has a continuing inability to work and that he satisfied the requirements of section 94 of the Act.

13. The main issue for determination is whether Mr Lambe’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether he had a continuing inability to work.

    IMPAIRMENT TABLES

14. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms, and limitations.

15. Section 6 the Impairment Tables sets out the rules for applying the Impairment Tables and states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment results from a condition that is more likely than not to persist for more than two years.

16. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

17. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and whether treatment is continuing or is planned in the next two years.

18. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised when a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

    EVIDENCE

    Evidence of the Applicant

19. Mr Lambe told the Tribunal that he resides with his mother in a small town in regional South Australia. At the time of the hearing he was receipt of the Newstart Allowance. He had limited secondary education to Year 9 level. He said it was very hard to study and he would sometimes fall asleep. He said that his problem with sleeping has stopped him from doing ‘practically everything’. The issue with sleep affected him at both primary and secondary school. After leaving school, his sleeping pattern remained problematic. He said that it has become more sporadic and a consistent sleeping pattern has never lasted for more than two weeks. The longest period of being unable to sleep is two days.

20. At home, Mr Lambe assists with some of the household tasks, generally after prompting from his mother. When she asks, he chops the wood. His mother mows the lawn, using a ride on mower which he declines to use as he is concerned about controlling it. He said that he does not go shopping with his mother as he does not see any reason to do so. If he needs something from the shops, his mother drives him to Mount Gambier. He does not have a driver's licence as he is afraid of failing the learners test.

21. Mr Lambe gave evidence about his daily routines at the time of the DSP claim. They have not changed in any significant way. His most consistent waking hours are between 12.00pm and 3.00pm, although they can be ‘all over the place’. He said that he does not shower unless he has to go out. He avoids brushing his teeth, he does not change clothes often.

22. Mr Lambe said that he goes to sleep at 8.00pm and gets up after an hour and stays awake until early in the morning. He can be awake for six to seven hours without feeling tired and remains in his bedroom watching TV or playing on the PlayStation.

23. Mr Lambe told the Tribunal that he mostly restricts himself to one meal per day and up to three times a week he cooks for himself; however, the meals are basic. He does not wash the dishes. He has a bank account which he operates, and he does not go anywhere alone. He told the Tribunal that he does not make friends easily, and he has a poor memory. On occasions he gets angry and he has damaged property at home.

24. In cross-examination, Mr Lambe said that he chats with people when he is on his PlayStation and some of them are regular contacts. He said that he sometimes plays games and chats on PlayStation until sunrise and he has had some long interactions of eight to 12 hours. He agreed that he lacks confidence. He saw Dr Gill, a psychiatrist, once, and Dr Gill said that he had anxiety. He did not have therapy for that anxiety.

25. Mr Lambe said that his problems sleeping occurred before dexamphetamine was prescribed and he does not see a connection between that medication and his problems with sleeping. He takes dexamphetamine for his ADHD and he has discussed his sleep issues with his doctor. However, he has not seen a specialist sleep doctor as it would be too expensive and too far to travel. It has been suggested to him recently to exercise. Taking a dog for long walks would make him very tired.

26. Mr Lambe said that he had attempted to do work experience. He would like to care for animals, and he attempted to work as a volunteer at an animal pound. However, he could not comply with the work schedule as it did not match his sleep pattern. He thinks he might be able to do some work in information technology as he is familiar with computers. However, he could not see himself getting and maintaining a job. He has never had a job and he has never applied for work.

    Evidence of Mrs Donna Lambe

27. Mr Lambe’s mother gave evidence. She confirmed that her son’s ADHD was diagnosed in 2005 and at that time his behaviour was poor. The sleep disorder was diagnosed about one year later. In his early schooling he was placed in a special class.

28. Mrs Lambe described her son’s mood swings. She said that sometimes he locked himself in his bedroom. He has punched holes in bedroom walls. The ADHD still affects him although more nowadays in the sense of being argumentative rather than violent. Mrs Lambe said that his sleep problem had existed for many years. He would try to sleep for hours and hours without success.

29. Mrs Lambe confirmed her son’s daily routine. He will not take a shower unless he has an appointment to attend. He does not have a routine for changing into clean clothes and he does not assist her with domestic tasks. She does almost everything for him.  She organises medical and other appointments that he might need to attend and gives him considerable advance notice of those appointments.

30. Mrs Lambe said that her son does not go anywhere alone. She tries to encourage him to come out of his bedroom. He has not expressed any interest to her. She has tried to get him into a computer course; however, none are readily available. She gave evidence about his involvement in a job readiness program and he received one certificate of achievement which was for cooking.

    Medical Evidence

31. A paediatrician at the Flinders Medical Centre, Dr Jeyaseelan, wrote a report dated 19 August 2012[5]  when Mr Lambe was 16 years of age. The report included a comment that he had issues maintaining concentration and focus consistent with ADHD. He was subsequently prescribed stimulant medications to manage the condition. In addition, Dr Jeyaseelan discussed problems with his non-compliant oppositional behaviours and school avoidant behaviours. The report mentioned the sleep disturbance with a near reversed sleep cycle which:[6]

    … has been intermittently and successfully managed by the establishment of sleep hygiene routines and the use of medications, however it has been difficult to maintain good sleep hygiene for long periods of time.

    [5] T14/163-164.

    [6] T14/163.

32. Five years later, in a brief medical report dated 17 November 2017,[7] general practitioner, Dr Jayakody, referred to Mr Lambe’s current medication as dexamphetamine tablets, with current and past history since 2006 of ADHD, school avoidant behaviour, non-compliant oppositional behaviour and long-standing sleep disturbances. Dr Jayakody wrote that Mr Lambe was currently on medication and follow up with counsellors and a specialist. At that time Mr Lambe was 21 years old. This medical report was current at the time of the DSP claim.

    [7] T14/165.

33. A consultant psychiatrist, Dr Gill, wrote a report dated 7 July 2018[8] which was sent to Dr Jayakody. This is an important report which addresses Mr Lambe’s history of ADHD, a condition which was established by paediatricians when he was at school. Dr Gill refers to Mr Lambe’s reversed sleep pattern as a significant problem as he tends to sleep during the day and is awake throughout the night. This is a pattern since childhood and while a range of approaches have been attempted to return to a normal sleep cycle, they have not succeeded. Consequently, Mr Lambe’s social activities have been dominated by social media and online gaming. Dr Gill also mentioned Mr Lambe’s social anxiety and lack of social skills to relate to other people.

    [8] T14/178-179.

34. Dr Gill recommended a reduced dosage at the standard minimum of dexamphetamine for the ADHD condition as he was not certain that a higher dose is warranted. Dexamphetamine assists Mr Lambe’s functioning which is impaired by learning difficulty, low IQ and a lack of social skills. Dr Gill reported that Mr Lambe has diagnoses of sleep wake phase disorder and social anxiety which are quite disabling. Appropriate treatment would include a referral to a sleep clinic to assess Mr Lambe’s sleep pattern and a referral to a clinical psychologist to address the social anxiety.

35. Dr Gill considered that Mr Lambe’s ADHD, intellectual disability and learning difficulty are stable and will always limit his work capacity. Dr Gill concluded:[9]

    Whether or not social anxiety or sleep pattern can be improved remains to be seen. However, he is unlikely to be able to enter the workforce in the short to medium term, although I would never say never with someone as young as he is. There would need to be a lot of work done before paid employment would be possible and that would likely need to be in a supported environment.

    [9] T14/179.

    Psychological Assessments

36. A registered psychologist, Ms Bartemucci, gave evidence about assessments of Mr Lambe which she conducted. She has been employed for 21 years by the Commonwealth Government in her role as a Job Capacity Assessor and psychologist. Since 2002 she has held a position of senior psychologist and her evidence was that she has conducted thousands of Job Capacity Assessments. Following referrals by Centrelink, she conducted two assessments of Mr Lambe. The first Job Capacity Assessment (“JCA”) report dated 5 March 2018 followed testing of Mr Lambe and his mother on 22 February 2018.[10] The second assessment took place on 6 November 2018 and her JCA report dated 19 November 2018 was received in evidence.[11]

    [10] T14/169-174.

    [11] Exhibit 7.

37. In the first JCA, Ms Bartemucci administered the Weschler Adult Intelligence Scale-Fourth Edition (“WAIS-IV”) (Australian adaptation) and the Adaptive Behaviour Assessment System-Third Edition (“ABAS-3”). Those tests are used for consideration of a person’s intellectual function under Impairment Table 9. The WAIS-IV (or equivalent) is used for assessment of intellectual function and the ABAS-3 (or other standardised assessments) is used for the assessment of adaptive behaviour.

38. Ms Bartemucci had the reports from Dr Jeyaseelan and Dr Jayakody at the time of the first JCA; however, the psychiatric examination by Dr Gill had not yet occurred. In terms of intellectual function, Ms Bartemucci reported that the assessment results indicated that Mr Lambe has low average intelligence skills. His overall intelligence was assessed in the low average range FSIQ 82 with a 95% likelihood that his IQ range is between 78 to 86. Ms Bartemucci noted the interaction of other diagnostic conditions, including ADHD and sleep disorder.

39. In relation to adaptive behaviour, Ms Bartemucci administered the assessment to Mr Lambe and to his mother. She was concerned about discrepancies between his responses and the responses of his mother. These discrepancies relate to interpretations by each individual of the adaptive skills under consideration. Based on the mother’s responses, Mr Lambe’s adaptive functioning is so impaired that he would need to reside in supported residential care were it not for the fact that he is living with his mother. Ms Bartemucci considered that Mrs Lambe’s responses about her son’s adaptive deficits may arise from something other than learning difficulties.

40. Consequently, Ms Bartemucci concluded that the adaptive behaviour test results were invalid, ‘given the idiosyncratic responding and perceived inconsistencies with results on formal intelligence testing.’[12] She recommended that Mr Lambe be reviewed by a psychiatrist to ascertain if diagnoses from earlier medical reports were still appropriate together with the assessment of the impact of those diagnosed conditions on his overall functioning.

    [12] T14/175.

41. As it happened, Mr Lambe subsequently consulted the psychiatrist Dr Gill and the result of that consultation is set out in Dr Gill’s report dated 7 July 2018, as summarised above.

42. Ms Bartemucci’s second JCA involved the administration of the ABAS-3 to Mr Lambe through verbal questioning and responding. Ms Bartemucci asked Mr Lambe each individual question and noted each of his responses. This process enabled her to explore and explain questions and answers as required. Documents provided to Ms Bartemucci included the report by the psychiatrist Dr Gill.

1. Ms Bartemucci considered that the results which she obtained on the second assessment provide a reliable measure of Mr Lambe’s overall adaptive functioning. She found that Mr Lambe’s overall level of adaptive behaviour is in the borderline range of functioning. He obtained a score of 76 on the general adaptive composite and the applicable range would be 73 to79.

2. Ms Bartemucci noted some difficulties that Mr Lambe has with independent living and notably tasks relating to self-care and self-direction. She considered that Mr Lambe would have greatest difficulty with tasks that require a degree of initiative. Examination of his responses led Ms Bartemucci to conclude that he would have most difficulty with tasks such as finding his own transport, arranging appointments, managing medication and tasks generally that require numerical calculation. She also noted Mr Lambe’s lack of initiative with domestic tasks such as washing, cleaning and cooking, to the extent that he rarely assists with those tasks.

3. In the second JCA, Ms Bartemucci considered Mr Lambe’s other conditions. She reported that the condition of ADHD was fully diagnosed, treated and stabilised during the qualification period. She considered that the sleep wake phase disorder and anxiety were diagnosed, but not yet fully treated or stabilised.

4. Following Ms Bartemucci’s assessments, Mr Lambe’s solicitors were able to arrange an assessment by a psychologist, Mr Ramsey. That assessment took place on the 22 May 2019 and amongst the information provided to Mr Ramsey were the two psychology assessment reports by Ms Bartemucci.

5. Mr Ramsey’s report[13] included the result of a Woodcock Johnson IV Tests of Cognitive Abilities and the result of an ABAS-3 assessment.

   [13] Exhibit 4.

6. In relation to general intellectual ability, Mr Ramsey concluded that Mr Lambe’s overall, IQ score falls in the 70 to 85 range which demonstrates a low intellectual function. His scores on the individual IQ domains are in the low average range.

7. Mr Ramsey administered the ABAS-3 to both Mr Lambe and his mother. He found that the results were significantly different, with Mr Lambe rating himself higher in all domains in comparison with his mother’s ratings. This is a finding which is similar to Ms Bartemucci’s conclusions from her first assessment.

8. In relation to functional behaviour, Mr Ramsey found that Mr Lambe’s self-rating was considerably higher than his mother’s rating of functional behaviour and Mr Ramsey wrote that based on his overall IQ score and self-report, ‘presents at face value as being more capable than his mother’s rating indicates’.[14] Mr Ramsey considered the discrepancies between the two assessment results and worked on the basis that Mr Lambe is potentially overestimating his abilities whereas Mrs Lambe is potentially underestimating his abilities.

   [14] Exhibit 4, 5.

9. As Mr Lambe’s overall IQ score falls in the 70 to 85 range, Mr Ramsey considered that Mr Lambe had a low intellectual function. In relation to the ABAS-3 results, Mr Ramsey concluded that Mr Lambe’s self-report indicated a range in the mild to moderate category. In considering Mrs Lambe’s assessment, the results would fall in the severe range. Noting the discrepancies and the IQ score, Mr Ramsey concluded that Mr Lambe has low intellectual functioning with moderate impact in accordance with the criteria in Impairment Table 9. This result equates with Ms Bartemucci’s second assessment which led her to conclude that there is a moderate impact on Mr Lambe’s intellectual function.

   CONSIDERATION

10. The principle is now well-established in several decisions of the Tribunal and the Federal Court that medical reports that come into being after the qualification period are only relevant to the extent that they provide evidence as to the applicant’s condition during the qualification period.

11. The rationale for that approach is highlighted in the comments of the Tribunal in Fanning and Secretary, Department of Social Services,[15] DP Handley states at [33] that:

    [15] [2014] AATA 447.

    The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

    Those comments are relevant in view of the lapse of time between the lodging of the DSP claim on 17 November 2017 and the hearing before this Tribunal on 31 January 2020. However, the task for the Tribunal is to assess Mr Lambe’s conditions and their functional impact at the time of the DSP claim and the assessment period.

12. The applicable impairment rating for each of Mr Lambe’s conditions will be considered in turn by reference to the Impairment Tables.

13. Section 10(5) of the Impairment Tables provides that where two or more conditions cause a common impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table. Where a common or combined impairment results from two or more conditions. Section 10 (6) states that:

    …it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    Intellectual Function

14. Impairment Table 9 is to be used where the 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.

15. Assessments are required of intellectual function and adaptive behaviour. They must be made by an appropriately qualified psychologist.

16. An assessment of intellectual function is to be undertaken in the form of a WAIS-IV or equivalent contemporary assessment. This assessment should be conducted after the person turns 16 years of age.

17. An assessment of adaptive behaviour can be by the Adaptive Behaviour Assessment System (“ABAS-II”), the Scale for Independent Behaviour- Revised (“SIB-R”) , the Vineland Adaptive Behaviour Scales (“Vineland-II”) or any other standardised  assessment that meets the criteria which are set out in the Introduction to Impairment Table 9.

18. Both Ms Bartemucci and Mr Ramsey found that Mr Lambe’s IQ score was in the low average range. Ms Bartemucci concluded that Mr Lambe’s full-scale IQ was 82 (in the range 78 to 86). The Tribunal is satisfied that Mr Lambe meets the criteria in Table 9 for low intellectual function.

19. The descriptors in Table 9 of the impact on intellectual function are based on the metrics in the adaptive behaviour tests. In evidence Ms Bartemucci described the descriptors in Table 9 as very structured. They permit less professional judgement and are more prescriptive than the descriptors in the other Impairment Tables. In this case, Ms Bartemucci and Mr Ramsey used the ABAS-3 for the assessment of Mr Lambe’s adaptive behaviour.

20. For a moderate impact on intellectual function, Impairment Table 9 provides:

10

There is moderate impact on intellectual function.

(1)      At least one of the following applies:

(a)      the person is assessed as having a score of adaptive behaviour of between 71 to 79, on either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R) or the Vineland Adaptive Behaviour Scales (Vineland-II); or

(b)      the person is assessed as being within the percentile rank of 3 to 8 on a standardised assessment of adaptive behaviour.

1. Ms Bartemucci concluded that Mr Lambe rated 76 on the ABAS-III. In those circumstances, the descriptor for a moderate impact on intellectual function would apply with a rating of 10 points under Impairment Table 9.

2. Similarly, Mr Ramsey concluded that Mr Lambe’s result was low intellectual functioning with moderate impact, rating 10 points under Impairment Table 9.

3. Ms Bartemucci’s first report was considered by the AAT1. However, that report did not have the results from the ABAS-3 assessment. The AAT1 noted that it would have been preferable to know the ABAS-3. That evidence became available subsequent to the AAT1 decision through the second report from Ms Bartemucci and Mr Ramsey’s report.

   ADHD

4. Impairment Table 7 is to be used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function. The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

5. The descriptors in Table 7 range across deficits and difficulties in memory, concentration, problem solving, planning and decision-making, comprehension, behavioural regulation and self-awareness.

6. On Mr Lambe’s behalf, it was contended that the effects of his ADHD are separate from the IQ rating measurement, that his ADHD was diagnosed, treated and stabilised and represented a moderate impairment to work capacity.

7. In his report, Mr Ramsey described ABAS-3 as an assessment of an individual’s ability to carry out practical, everyday skills required for daily demands noting:[16]

   [16] Exhibit 4, 5.

   These daily adaptive skills include eating, dressing, expressing needs, taking care of personal belongings, interacting with peers, controlling one’s behaviour in structured settings, following a schedule, communicating with other people, and practising safety.

   He noted that the assessment has a focus on independent behaviour, it measures what an individual does in addition to capability, with adaptive behaviours grouped into composite areas of conceptual, social and practical skills.

8. Mr Ramsey referred to Mr Lambe’s co-morbid diagnosis of ADHD, sleep-wake phase disorder and social anxiety. He noted that those conditions:[17]

   [17] Exhibit 4, 6.

   … would be most likely contributing to his difficulty with some of the functional behaviours assessed (areas such as forward planning, showing initiative, staying focused on tasks etc.)…when considering the criteria listed in Table 7, [Mr Lambe] would meet the criteria of having a moderate functional impact.

9. Ms Bartemucci considered the reports from Dr Jeyaseelan, Dr Jayakody and Dr Gill. She noted the confirmation of the ADHD diagnosis by the psychiatrist Dr Gill in July 2018. The use of dexamphetamine was continuing, though at reduced levels following Dr Gill’s review. Ms Bartemucci understood from Mr Lambe that there was no further plan for psychiatric review and treatment and that his medication was managed by his general medical practitioner.

10. In evidence, Ms Bartemucci stated that the ABAS-3 has 244 questions and some of those questions cover issues relating to impairments from ADHD. She reported that the ABAS-3 assesses adaptive skills across 11 domains which include home living, health and safety, self-care, functional academics and self-direction. It has ratings across a person’s adaptive behaviours in various settings.

11. In evidence, Ms Bartemucci acknowledged that ADHD is a neurocognitive disorder which would be rated under Impairment Table 7. However, in the Impairment Tables, the introduction to Table 7 states that it should not be used when a person has an impairment of intellectual function which is already assessed under Table 9 ‘unless the person has an additional condition affecting neurological or cognitive function’.

12. Ms Bartemucci concluded in her second assessment report that the condition of ADHD was fully diagnosed, treated and stabilised. Ms Bartemucci considered that no additional impairment should be assigned for the condition of ADHD as the information about that condition was contained in the assessment of low intellectual functioning. She added:[18]

    [18] Exhibit 7, 7.

    No additional rating is considered applicable, as the deficits arising from this condition are considered to be reflected in the rating for low intellectual functioning.”

13. Accordingly, the functional impact of ADHD was already taken into account in the 10 points which Ms Bartemucci rated under Impairment Table 9.

14. As previously indicated. and in accordance with Sections 10(5) and 10 (6) of the Impairment Tables, double counting must be avoided. Otherwise the same impairment from dual or multiple conditions would be assessed more than once.

15. Mr Lambe’s SoFIC included a helpful summary of some decisions of the Tribunal in cases involving dual or multiple conditions affecting an individual, including conditions such as ADHD, depression and autism spectrum disorder. Those decisions provide useful guidance about the approach which the Tribunal has taken in these types of cases. In the end, however, the circumstance of each individual is always unique and especially so, it might be thought, in assessments involving brain function, intellectual function and mental health.

16. The Secretary contended that the functional impairments from the ADHD cannot be identified that are separate and distinct from Mr Lambe’s difficulties with functional behaviours that are assessed by the ABAS-3. On that basis, assigning a rating under Table 7 and a rating under Table 9 would lead to double counting.

17. The Secretary correctly contended that Mr Ramsey does not identify functional impairments from the co-morbid conditions that are distinct from the difficulties in functional behaviours which the ABAS-3 assesses.

18. Mr Ramsey’s conclusion in his report about double counting is not expressed in a way that is entirely clear. However, if Mr Ramsey’s conclusion is interpreted to be that separate ratings should be made under Table 9 and also under Table 7, then that is a conclusion that the Tribunal does not accept.

19. In summary, the Tribunal accepts Ms Bartemucci’s evidence and finds that the condition of ADHD was fully diagnosed, treated and stabilised during the qualification period. However, no additional impairment rating is applicable.

20. The Tribunal is satisfied that Mr Lambe has a condition resulting in low intellectual function and that he has ADHD. The Tribunal is satisfied that both conditions were fully diagnosed, treated and stabilised during the qualification period. The functional impacts of the conditions overlap. The combined impairment rating is 10 points under Table 9.

    Sleep Reversal Disorder

21. Mr Lambe has had problems with sleeping from childhood. Those problems have continued to the present day. The report from the psychiatrist Dr Gill confirmed a diagnosis of sleep wake phase disorder. He suggested a referral to a sleep clinic to assess Mr Lambe’s sleep pattern.

22. For Mr Lambe it was contended that the sleep reversal disorder was fully diagnosed, treated and stabilised during the qualification period. It was contended that the sleep disorder has a mild, possibly moderate effect on Mr Lambe's stamina and that the condition should be assessed under Impairment Table 1.

23. Ms Bartemucci assessed the sleep disorder as diagnosed, but not fully treated or stabilised. She wrote: [19]

    [19] Exhibit 7, 8.

    There is little information regarding whether future treatment will be undertaken in regards to this condition, and therefore any impacts from this condition are not considered stabilised as yet.

24. Mr Ramsey referred to Mr Lambe’s co-morbid diagnosis of ADHD, sleep wake phase disorder and social anxiety. He noted the difficulty of ascertaining whether there was, on the one hand, a behavioural pattern in Mr Lambe’s daily activities in which Mrs Lambe takes responsibility for domestic tasks and routines while Mr Lambe pursues his lifestyle without taking more responsibility for the domestic tasks. On the other hand, the behavioural pattern may be a consequence of sleep wake phase disorder and social anxiety.

25. Mr Lambe told the Tribunal that his capacity for work is affected by his sleep disorder. For example, he tried to do some work as a volunteer; however, he could not sustain it because he was falling asleep. He does not see a connection between the use of dexamphetamine for ADHD and the problems that he has with a sleeping pattern. He has not consulted a specialist regarding the sleep disorder as any specialist would be too far away and too expensive. At one stage when he was obtaining assistance from an employment services provider, the assistance was phased across various times which were adjusted because of the sleep disorder.

26. There are brief references to Mr Lambe’s sleep disturbance in the reports by Dr Jeyaseelan in August 2012, Dr Jayakody in November 2017 and Dr Gill in July 2018. Dr Gill recommended a referral to a sleep clinic. Also, Mr Ramsey referred to Mr Lambe’s sleep wake phase disorder without, however, discussing it in any detail. His emphasis was on the assessments of intellectual function and behaviour adaptation.

27. The medical evidence about treatment for the sleep disturbance is minimal. The report from Dr Jeyaseelan, which is almost eight years old, refers to successful and intermittent management of the problem by the establishment of sleep routines through the use of medications; noting, however, that it was difficult to maintain good outcomes for long periods of time. Dr Jeyaseelan also noted the use of stimulant medications to address the ADHD. The report by Dr Jayakody in November 2017 refers to the long-standing sleep disturbances without going into any detail about treatment.

28. While the sleep disorder was fully diagnosed during the qualification period, the evidence is by no means clear that the condition was fully treated and fully stabilised. Accordingly, the Tribunal is unable to assign an impairment rating to that condition.

    Other Conditions

29. It was conceded for Mr Lambe that a condition of social anxiety was not fully treated and stabilised at the time of the DSP claim. That concession is correct. The evidence about social anxiety was not enough to have any bearing upon the impairment ratings.

    SUMMARY

30. The Tribunal finds that s 94(1) (a) of the Act regarding impairment is satisfied.

31. The Tribunal finds that Ms Lambe’s intellectual function and ADHD were fully diagnosed, fully treated and fully stabilised during the qualification period. The applicable rating is 10 impairment points under Impairment Table 9.

32. Ms Lambe’s sleep-wake phase disorder was not fully treated and fully stabilised during the qualification period and no rating can be assigned in respect of it.

33. With a total of 10 impairment points, Mr Lambe does not have an impairment, or combination of impairments, attracting a rating of at least 20 points under the Impairment Tables during the qualification period. Therefore, he does not satisfy s 94(1)(b) of the Act.

34. In these circumstances it is not necessary to consider whether during the qualification period Mr Lambe had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

35. As Mr Lambe was not qualified for DSP at the time, he lodged her claim or within 13 weeks of that date, the Tribunal is obliged to set aside the decision under review.

    DECISION

36. For the reasons set out above the Tribunal sets aside the decision under review and instead the Tribunal decides that Mr Lambe is not qualified to receive the DSP.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for the decision herein of Member I F Thompson

….................[Sgnd]......................

Associate

Dated: 11 May 2020

Date of hearing:	31 January 2020
Advocate for the Applicant:	Mr Christian Visser, Department of Human Services
Advocate for the Respondent:	Ms Margaret Riley