Ledgard and Secretary, Department of Social Services (Social services second review)
[2016] AATA 130
•4 March 2016
Ledgard and Secretary, Department of Social Services (Social services second review) [2016] AATA 130 (4 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2953
Re
Rhys Ledgard
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Prof R McCallum AO, Member
Date 4 March 2016 Place Sydney The decision under review is affirmed.
..........................[sgd]..............................................
Prof R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – impairment ratings – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4(1)
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Prof R McCallum AO, Member
4 March 2016
INTRODUCTION
The Applicant, Mr Rhys Ledgard is a young man in his late twenties and he has had a difficult start in life. On 28 April 2015, Mr Ledgard gave the following evidence to the former Social Security Appeals Tribunal (SSAT). The decision is dated 28 April 2015. The SSAT wrote as follows.
[18] Mr Ledgard informed the tribunal that, from a very early age, he and his seven siblings were subjected to frequent severe abuse by their father until the parents separated in 1996, when he was nine years old; The father is currently serving time in prison for pedophilia convictions in 2013. He is due for release in 2017. One brother and one sister have subsequently been diagnosed with schizophrenia, and one sibling has attempted suicide while on medication. Ever since childhood, Mr Ledgard has suffered anxiety and depression and this was exacerbated in 2013 when he had to give court evidence in relation to the past abuse of himself and his siblings by his father.
In late 2013, after one misdiagnosis Mr Ledgard was diagnosed with testicular cancer. His right testicle was removed and he underwent chemotherapy.
The Application For DSP
On 19 January 2015, Mr Ledgard lodged a claim for Disability Support Pension (DSP). Mr Ledgard listed the following impairments: “chronic post-traumatic stress disorder” and “recovering from testicular cancer”.
A medical report from a psychiatrist Dr Chanter dated 15 January 2015 accompanied the claim. Dr Chanter presumptively diagnosed Mr Ledgard with post-traumatic stress disorder (PTSD). Dr Chanter wrote that "no current pharmacotherapy at the time - has seen me for assessment and is seeing a psychologist”.
On 12 February 2015, Mr Ledgard attended a job capacity assessment with a registered psychologist. The assessor held that Mr Ledgard's PTSD was fully diagnosed, but that it was not fully treated and stabilised. The assessor wrote as follows.
Onset listed as "unknown" by psychiatrist in medical report and there is no date of diagnosis.
Client reported onset in 1993 following trauma, however reported he did not seek treatment until 2013. The client reported that suppressed memories began resurfacing in 2013 and prior to this he was "functioning" as he had family support. The client reported since memories have returned in 2013 he finds it very difficult to sleep and to maintain his concentration. He stated that lots of things he sees trigger memories. He stated that he finds it hard to maintain relationships and has significant anxiety regarding appointments. Previous treatment was counselling in 2013 while living in Mount Isa with Samara Mill (General Registration, psychologist) for at least one year and then counselling with Clinical Psychologist Louise Morow since 28/11/2014. The client reported that he has consulted with a psychiatrist (Dr Chanter) on 3 occasions since October 2014. Client stated he has not tried pharmacotherapy, reporting he does not wish to try medication as he has seen the effects medication is having on his siblings.
At this stage condition is not considered fully treated or stabilised. Further intervention with clinical psychologist and psychiatrist may assist reduce symptoms and improve coping skills. Treating psychiatrist has indicated that the impact of this condition is expected to affect the client's ability to function for 18-24 months.
In relation to Mr Ledgard's recovery from testicular cancer, the assessor wrote that Mr Ledgard said that he was experiencing kidney stones for which he was due to consult with a urologist.
In relation to Mr Ledgard’s testicular cancer, the assessor held that there was insufficient medical evidence available to consider this condition to have been fully diagnosed, treated and stabilised.
Centrelink rejected Mr Ledgard's claim for DSP.
Reviews by An ARO and the SSAT
Mr Ledgard sought reviews from an Authorised Review Officer (ARO) and from the SSAT, but to no avail.
The ARO held that the PTSD was not fully treated and stabilised. The ARO further held that the testicular cancer was well managed and had little impact on Mr Ledgard's capacity to function.
The SSAT held that Mr Ledgard's testicular cancer was fully diagnosed, treated and stabilised. However, as it did not impact on Mr Ledgard's capacity to function, it was assessed at nil points under table 10 of the impairment tables which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Table 10 is titled "Digestive and Reproductive Function".
The SSAT wrote the following about Mr Ledgard's PTSD.
[23] Dr Chanter confirmed that she had diagnosed PTSD in October 2014, but was unsure of when it had its onset. She confirmed past treatment by a psychologist's counselling and that current symptoms of PTSD include hypervigilance, anxiety, flashbacks and re-experiencing phenomena and nightmares, together with irritability, anger and mood instability. She expects the condition to continue to impact on function for 13-24 months and is uncertain of his prognosis.
[24] The tribunal accepted that Mr Ledgard's mental health issue had been fully diagnosed at the date of application, but found that the PTSD had not been fully treated or stabilised by January 2015 at the date of application, given that he is awaiting commencement of medication and that he requires further counselling by a clinical psychologist following some early signs of response to the sessions. The tribunal also noted that the psychiatrist expects significant improvement within two years. The tribunal decided it was unable to award impairment points from Table 5 (Mental Health Function) because at the date of application PTSD had not been fully treated and stabilised, and may be temporary.
Mr Ledgard now appeals to this Tribunal.
THE LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The criteria for DSP are set forth in section 94 of the SS Act. In Mr Ledgard's circumstances subsection 94(1) relevantly provides:
(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;
…
Put simply, I must be satisfied, first, that Mr Ledgard has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the impairment tables. Finally, I must be satisfied that Mr Ledgard has a continuing inability to work.
The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. It relevantly provides as follows.
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 the program of support was wholly or partly funded by the Commonwealth; 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.
…
This definition is complex, but in essence, unless a person has a severe impairment, the person must have participated in a program of support. A severe impairment is defined in subsection 94(3B) as follows.
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.
This means that in Mr Ledgard's circumstances, if any of his impairments are assessed at 20 points under one of the impairment tables, that impairment will be a severe impairment. If none of Mr Ledgard's impairments are severe impairments, he will be required to have participated in a program of support.
"Program of support" is defined in subsection 94(5) as follows.
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(I) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
Under subsection 94(3C) of the SS Act, a person has actively participated in a program of support if the person satisfies the requirements set out in the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (Cth) (the POS Determination).
It is not necessary to set out subsections 5(1) and 5(2) of the POS determination. Suffice to write that these provisions specify persons must participate in programs of support for 18 months in the three years before lodging their claims for DSP.
Finally, Mr Ledgard's impairments must be sufficient to prevent Mr Ledgard from doing any work independently of a program of support within the next two years.
THE 13 WEEK QUALIFYING PERIOD
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Ledgard's eligibility for DSP in the 13 week period commencing on the day on which Mr Ledgard's claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Ledgard qualified for DSP between 19 January 2015 and 20 April 2015.
In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:
In the Tribunal's consideration as to whether a condition has been stabilized and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the claim period may still be relevant, but only in so far as they are referable to the applicant's condition during the claim period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
[33] … 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 claim period is not directly relevant to the Tribunal's decision.
Therefore, in determining the eligibility of Mr Ledgard to receive DSP I am confined to examining Mr Ledgard's impairments during the thirteen week claim period which is from 19 January 2015 to 20 April 2015.
THE CONCESSIONS OF THE RESPONDENT
Paragraph 20 of the Respondent's Statement of Facts and Contentions is as follows.
The Secretary accepts that during the relevant period the Applicant suffered from PTSD and testicular cancer ... The Applicant therefore, satisfies s 94(1)(a) of the Act.
THE ISSUES BEFORE THE TRIBUNAL
Given the Respondent's concessions, Mr Ledgard complies with subsection 94(1)(a) of the SS Act as he has impairments. Therefore, the first issue which I am required to decide is whether any of the impairments of Mr Ledgard have been fully diagnosed, treated and stabilised during the claim period. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the impairment tables.
The second issue which I am required to decide is whether Mr Ledgard has a continuing inability to work pursuant to subsection 94(1)(c)(i) and subsection 94(2) and attendant provisions of the SS Act. It will not be necessary to decide this issue if I find that Mr Ledgard's impairments do not attain an assessment of 20 points under the impairment tables.
THE IMPAIRMENT TABLES
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Ledgard are worth twenty points under the impairment tables. This requires a few words of explanation.
In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the impairment tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.
Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.
It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then a single rating should be assigned in relation to that common or combined impairment under a single Table. However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, 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.
THE HEARING
The date of the hearing was 25 February 2016. Mr Ledgard did not appear at the hearing. When telephoned, Mr Ledgard said that he did not realise that he had to appear in person
The Request for an Adjournment
Mr Ledgard said that he wished the matter to be adjourned because he was seeking advocacy assistance with multiple issues. Mr Ledgard said that his mental health was not at a normal level and that he had difficulty in communicating and in understanding what was said to him.
The Respondent said that Mr Ledgard had not returned a medical report form which was to be filled in by his doctor. The Respondent added that it was open for Mr Ledgard to make a further application for DSP in the future.
I refused Mr Ledgard's request for an adjournment. Mr Ledgard was not able to say when he would receive advocacy help and he did not have any further medical evidence for this Tribunal.
The Evidence of Mr Ledgard
Mr Ledgard gave sworn evidence over the telephone. I found him to be a truthful witness.
Mr Ledgard said that he has been suffering from flashbacks since 2013 owing to the abuse he received as a child. He said that he began seeing Dr Chanter in late 2014, but that he has not seen Dr Chanter for a while.
Mr Ledgard said that his current psychologist is Louise Morrow whom he has been seeing on a fortnightly basis and he is due to see her tomorrow. He said that he has been taking faverin for about the last six months but it does not agree with him. He said he was waiting to discuss this medication with Dr Chanter.
In relation to his recovery from testicular cancer, Mr Ledgard said that he had been suffering pain where the incision had been made. On 10 February he went to see his Urologist who prescribed Lyrica.
CONSIDERATION
As Mr Ledgard has impairments, the first issue which I am required to decide is whether any of the impairments of Mr Ledgard have been fully diagnosed, treated and stabilised during the claim period. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the impairment tables.
Post-Traumatic Stress Disorder
Having regard to the evidence, I find that Mr Ledgard's PTSD was fully diagnosed during the claim period.
Mr Ledgard only began seeing Dr Chanter who is a psychiatrist in late 2014. In his evidence at the hearing, Mr Ledgard said that he had not seen Dr Chanter for a while, although he was seeing Louise Morrow who is his psychologist He has not yet had an opportunity to discuss his medication of faverin with Dr Chanter. Having regard to the evidence, I find that the PTSD was not fully treated and stabilised during the claim period. This means that it cannot be assessed under the impairment tables.
Testicular Cancer
Having regard to the evidence, I find that Mr Ledgard's testicular cancer was fully diagnosed during the claim period.
At the hearing, Mr Ledger gave evidence that he had been taking Lyrica since visiting his urologist in February because he still suffered pain from the incision. In other words he was still receiving treatment.
Having regard to the evidence, I find that Mr Ledgard's testicular cancer was not fully treated and stabilised during the claim period.
For completeness, if I had found Mr Ledgard's testicular cancer to have been fully diagnosed, treated and stabilised during the claim period, on the evidence before me I would have assessed it at nil points under table 10 of the impairment tables as it does not greatly impact upon Mr Ledgard's ability to function.
Conclusion
I find that Mr Ledgard's PTSD and testicular cancer were fully diagnosed during the claim period. I further find that Mr Ledgard's PTSD and testicular cancer were not fully treated and stabilised during the claim period. Therefore, I find that Mr Ledgard does not comply with subsection 94(1) paragraph (b) of the SS Act.
It is not necessary for me to determine whether Mr Ledgard has a continuing inability to work within the meaning of subsection 94(1) paragraph (c) subparagraph (i) and attendant provisions of the SS Act
I do hope that Mr Ledgard is able to obtain appropriate advocacy and medical assistance. It is open to him to make a future claim for DSP.
DECISION
The decision to refuse Mr Ledgard's claim for Disability Support Pension is affirmed.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Prof R McCallum AO, Member ...............................[sgd].........................................
Associate
Dated 4 March 2016
Date(s) of hearing 25 February 2016 Applicant By phone Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security – disability support pension
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Impairment Ratings
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Fully Diagnosed, Treated and Stabilised
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