Lawson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 627

[2013] AATA 627

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2390
Re	Hayden Lawson
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	3 September 2013
Place	Hobart

The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Ms A F Cunningham (Senior Member)

SOCIAL SECURITY – disability support pension – diagnosed conditions of anxiety/depression and opiate dependency – conditions not fully treated and stabilised –decision under review affirmed

Social Security Act 1991, ss 23, 26(1), (3), 94(1), (3A), (3B), (3C), (5)

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

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

1. The applicant, Hayden Lawson seeks the review of a decision of the Social Security Appeals Tribunal (SSAT) made on 26 April 2013 which affirmed a decision of Centrelink not to grant his claim for disability support pension (DSP).

2. Mr Lawson's application for review was listed for hearing before the Tribunal on 28 August 2013. Mr Lawson had requested that his application for review be determined on the basis of the documentary material before the Tribunal.  This included the T Documents, the respondent’s Statements of Issues and Facts and Contentions and List of Authorities. Mr Brian Sparkes who appeared on behalf of the Secretary, requested that the matter be listed for hearing. Mr Lawson was invited to participate in the hearing by telephone link but declined to do so.

   BACKGROUND FACTS

3. The background facts that did not appear to be in contention were that the applicant's claim for DSP was made on 24 October 2012. The claim was refused on the basis that his conditions did not attract an impairment rating of 20 points or more under the Impairment Tables. The decision was affirmed by an Authorised Review Officer (ARO) and by the SSAT on 26 April 2013.  The ARO found that Mr Lawson's conditions were not permanent, fully treated and stabilised because they were subject to ongoing treatment and may improve within the next two years. For this reason his condition could not be allocated an impairment rating and Mr Lawson accordingly failed to meet the qualification provisions for DSP.

4. The impairments accepted by the Secretary are those diagnosed in the medical report accompanying Mr Lawson's application for DSP, namely severe anxiety/depression and opiate dependence.

   SUBMISSIONS

5. In his letter for review by the SSAT Mr Lawson stated that all he was asking for was "a fair go and fair life whilst I try to get better." In his application for review by the AAT he stated that he was informed during his telephone interview that his doctors had said there is nothing more that could be done for him which he considered contradicted the findings of the SSAT.

6. Mr Sparkes contended that the applicant did not qualify for DSP as his impairment rating was not the required 20 points. He submitted that the decision under review is consistent with the law and the Guide to the Social Security Law and should be affirmed.

   ISSUES

7. The issues to be determined are:

   1. Does Mr Lawson have a physical, intellectual or physical impairment?

   2. Does Mr Lawson have diagnosed conditions that have been investigated, treated and stabilised and are likely to continue for at least two years?  If yes,

   3. Do any or all of Mr Lawson's conditions attract an impairment rating of at least 20 points on the Impairment Tables?  If yes,

   4. Does Mr Lawson have a continuing inability to work?

   LEGISLATION

8. The qualification provisions for DSP are contained in section 94 of the Social Security Act 1991 and particularly in subsection (1) which reads as follows:

   “(1)     A person is qualified for disability support pension if:

   (a)       the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)       one of the following applies:

   (i)        the person has a continuing inability to work;

   (ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d)       the person has turned 16; and

   (da)     in a case where the following apply:

   (i)        the person is under 35 years of age;

   (ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

   (iii)      if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e)       the person either:

   (i)        is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)       has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)      is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)      is not an Australian resident; and

   (B)      is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea)     one of the following applies:

   (i)        the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)       the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

   Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27”.

9. The provisions with respect to "continuing inability to work are contained in subsection (2) which provides:

   “(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)     in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)       in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)       in all cases—either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)       if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:    For work see subsection (5)”.

10. Also of relevance are subsection (3):

    “(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

    (a)       the availability to the person of a training activity; or

    (b)the availability to the person of work in the person’s locally accessible labour market.

    (3A)     If:

    (a)       a person is receiving disability support pension; and

    (b)       the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;

    then paragraph (2)(aa) of this section does not apply in relation to that assessment.

    Severe impairment

    (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    Example 1:      A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

    Example 2:      A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

    Example 3:      A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

    Active participation in a program of support

    (3C)     A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection”.

11. "Work" is defined in subsection (5) as:

    “work means work:

    (a)       that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)       that exists in Australia, even if not within the person’s locally accessible labour market”.

12. The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 include the Rules for applying the Impairment Tables and Tables 1 to 15.

13. The requirements set out in subsection 94(1) are conjunctive and a failure to satisfy any one means that a person does not qualify for DSP. It was conceded by the Secretary that Mr Lawson satisfies the provisions of subparagraph (a), (d) and (e) but does not meet the requirements of subparagraph (b) and (c) which concern an impairment rating of 20 points or more and a continuing inability to work.

    IMPAIRMENT RATING

14. Subsection 94(1)(b) of the Act provides that to qualify for DSP a person must have an impairment rating of at least 20 points under the Impairment Tables.

15. Section 23 of the Act provides that Impairment Tables mean the Tables determined by an Instrument under subsection 26(1) of the Act. The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination (the Determination) is the legislative Instrument determined pursuant to subsection 26(3) of the Act. The Tables are provided in Part 3 of the Determination and the rules for applying the Tables are contained in Part 2.

16. The application provisions for the Impairment Tables state in clause 6 of Part 2 that an impairment rating can only be assigned if the person's condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.  The example given is a condition that may last for more than two years but if the impairment resulting from the condition is likely to improve or cease within two years, an impairment rating under the Tables cannot be assigned to the impairment.

17. A condition is assessed as permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, the condition has been fully treated, has been fully stabilised and is more likely than not, in light of available evidence to persist for more than two years. (Clause 6(4)).

18. Subclause 6(5) provides that in determining whether a condition has been fully diagnosed consideration is to be given to corroborating evidence and what treatment or rehabilitation has occurred and whether treatment is continuing or is planned in the next two years.

19. Subclause 6(6) sets out the considerations for assessment as to whether a condition is fully stabilised namely:  whether the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvements to a level enabling the person to undertake work in the next two years; or the person has not undertaken reasonable treatment for the condition and either significant functional improvement to a level enabling the person to undertake work in the next two years is not expected even if the person undertakes reasonable treatment, or there is a medical or other compelling reason for the person not to undertake reasonable treatment. “Reasonable treatment” is defined in subsection (7).  Subsection (8) provides that the presence of the diagnosed condition does not necessarily mean that there will be an impairment rating assigned.

20. The applicant’s two conditions will be separately considered under the following headings.

    ANXIETY/DEPRESSION

21. This condition was diagnosed by Dr Reynolds on 3 September 2012. In the medical report accompanying the application for DSP, Dr Reynolds listed current medication treatment which was commenced on 4 September 2012 with future planned treatment listed as "follow-up, adjustment of treatment". Mr Lawson's compliance with recommended treatment was noted as "very compliant".  The impact of his condition on ability to function was indicated at "more than 24 months" and that within the next two years the effect of the condition on his ability to function was expected to "fluctuate".

22. In a report from Mr Lawson's psychologist dated 16 January 2013,  Andrew McClymont advised that Mr Lawson was referred by Dr Reynolds for psychological support and counselling on 19 September 2012 and that Dr Reynolds had placed him on the methadone program at the same time.  Mr McClymont reported that Mr Lawson was being treated for depression, generalised anxiety, anger management and how to manage stress more adaptively. He went on to state "due to the chronic nature of Mr Lawson's issues, outlined above, I would recommend he be considered for a DSP."

23. Whilst the medical report states that this condition is likely to persist for more than two years, it could not be reasonably concluded on the available evidence, that as at the date of Mr Lawson's application for DSP in October 2012 or within 13 weeks thereafter, his condition had been fully treated and fully stabilised. Mr Lawson’s condition of anxiety/depression was only diagnosed on 3 September 2012 and treatment commenced on 4 September 2012. He was referred to a psychologist on 19 September 2012 and there is no indication from Mr McClymont in his report of 16 January 2013 that treatment has been concluded and/or that Mr Lawson’s condition had stabilised.

24. For these reasons I cannot be satisfied that Mr Lawson's condition of anxiety/depression is permanent within the meaning of the Determination such that it can be assessed for an impairment rating.

    OPIATE DEPENDENCY

25. This condition was reported as having been present for a period of 10 years since around 2002.  The medical report accompanying the application for DSP reported that the impact of the condition on Mr Lawson's ability to function was expected to persist for between three and 24 months and that within two years the effect of the condition on ability to function was expected to fluctuate.

26. Mr McClymont’s report of 16 January 2013 states that Mr Lawson was placed on the methadone program by Dr Reynolds on 19 September 2012. In Dr Reynolds report of 19 September 2012, he states that Mr Lawson first consulted him two weeks previously and had been commenced on Sertraline the week prior to seeing him.

27. The evidence is that Mr Lawson's treatment for opiate dependency commenced in early September 2012, which was less than two months prior to his application for DSP on 24 October 2012. The medical evidence reported on 23 October 2012 was that his condition was expected to improve within 24 months.

28. There is no evidence to support a finding that Mr Lawson's opiate dependency condition was permanent because it had not been fully treated or stabilised or expected to persist for a period of more than two years at the time of his application for DSP or within the 13 week period thereafter. This condition therefore cannot be assessed for an impairment rating under section 94(1)(b) of the Act. There is accordingly no need to consider the remaining issue of continuing inability to work.

29. In accordance with the above findings that Mr Lawson has failed to meet the qualification provisions of section 94 of the Act, I determine to affirm the decision under review.

I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

[Sgd]

Administrative Assistant

Dated  : 3 September 2013

Date(s) of hearing	28 August 2013
Applicant	No appearance
Solicitors for the Respondent	Mr B Sparkes, Program Litigation and Review Branch